Volume 2 — New York Appellate Division Reports

Appeal by the plaintiffs, Vaughn C. Sweet and another, from a judgment of the County Court of Oswego county, entered in the office of the clerk of the county of Oswego on the 18th day ox-November, 1895, upon the decision of the court reversing a judgment of a justice of the peace.

<p> Hegligence-^ measure of damages where an injured child is three and one-half years of age. </p> <p>In an action brought to recover damages resulting from the death of the plaintiff’s intestate caused by the alleged negligence of the defendant, a street electric railway company, it appeared that the deceased was a child of the plaintiff, of the age of three and one-half years; bright, intelligent, active and in good health; that she resided with her parents and four brothers and sisters, all under the age of eight years; that the plaintiff was a cabinet maker thirty-four years pld, and earned eleven dollars a week. Beyond these facts there was nothing to show the pecuniary value of the child to her next of kin. The jury returned a verdict for the plaintiff fer the sum of §375.</p> <p>Held, that the verdict should be allowed to stand;</p> <p>That in such a case where the child had no earning capacity there was no rule under which the amount of the verdict could be determined, except such as rested in the good sense of the jury.</p>

Appeal by the defendant, Mary R. Hoefler, from a judgment of the Supreme Court in favor of the .plaintiff, entered in the office of the clerk of the county of Monroe on the 23d day of January, 1895, upon the verdict of a jury rendered after a trial at the Monroe Circuit. June 20, 1888, the plaintiff and John 0. Hoefler intermarried, and thereafter they lived together at’ Geneva, H. Y., as husband and wife until February 22, 1892.

<p>■Practice — ■making a second motion when a former one for the same relief is pending . undetermined is improper.</p> <p>The plaintiff in an action noticed a motion to strike out certain denials contained in certain defenses of an answer. The defendant appeared and objected, for the reason that no grounds for the motion were stated in the notice of motion, and the court thereupon took the papers. While this motion was pending and undetermined, and without permission to make a new motion for the same relief, the plaintiff noticed a second motion at the Special Term for the same relief, and stated in the notice of motion that he withdrew the former motion upon the ground that, by inadvertence, he had omitted to state the grounds, of that motion. The Special Term granted the latter motion.</p> <p>Held, that the practice could not be sanctioned;</p> <p>That the plaintiff could not countermand or withdraw his former motion with- • oiit the payment of costs or without the consent of the court, neither of which was shown.</p>

<p>Executors andMdministrators—a claim for funeral expenses, presented to the adminis-. trators and rejected, is barred by the six months’ Statute of Limitations— Code of Civil Procedure, §§1814, 1815; 1822, 2743. '■ '</p> <p>" In an action brought to enforce a claim for the purchase price of a burial casket and for services rendered at the funeral of Daniel Shannon, it appeared that the services were rendered at the,instance of his daughter; that subsequently the defendants were appointed administrators, with the will annexed, and that they published a notice to creditors to present claims against the estate; that the plaintiff presented his claim which was rejected, and that the present action, in which the defendants were sued as individuals, without describing them in their representative capacity, the complaint stating facts which rendered it uricertain in which capacity the cause of action existed against the defendants, was brought upon the claim more than six months after -it was rejected.</p> <p>A demurrer was interposed to that part of the answer which set up the six months’ Statute of Limitations as a bar to a recovery.</p> <p>Held, that the demurrer was properly overruled;</p> <p>That although the claim arose after the death of the decedent, it was not governed-by the ¡same rule as one' arising under a contract made by executors or •administrators upon a new and independent consideration;</p> <p>That the object of the Statute of Limitations was to facilitate the early settlement of- estates, and should be held applicable to a claim for funeral expenses; at least in a case where the claimant had elected to present his claim, to the . . administrators with the will annexed after they had advertised for claims.'</p>

Appeal by J. Rogers & Co. and others from an order of the Supreme Court, made at the Jefferson Special Term and entered in the office of the clerk of the county of Jefferson on the 19th day of September, 1895, ratifying and confirming a sale of real and personal property of the Wendler Machine Company, which sale took place on the 22d of August, 1895, pursuant to. a postponement of sale noticed to take place on the 15th of August, 1895.

<p>Appeal by the defendant, The Town of Brighton, from a judg- ' ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 30th day of April, 1895, upon the verdict of a jury rendered after a trial at the Monroe Circuit, and also from an order entered in said clerk’s office on the 30th day of April, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The jury rendered a verdict in favor of the plaintiff for $3,000.</p> <p>On the 21st^day of January, 1893, the plaintiff was walking along one of the highways in the town of Brighton. There had been a heavy fall of snow the night before, re-enforcing snow already upon the ground, and as she reached a bridge over one of the streams crossing the highway upon which she was walking she was overtaken by a gentleman in a sleigh,' driving his horse upon a trot. As she stepped out of the beaten path to allow him to pass, her foot and leg passed through a hole in the bridge and she received the injuries of which she complains. The hole detained her leg in the bridge so that she could only be released therefrom by the gentleman’s, going to the neighbors and obtaining an axe and cutting away a portion of the wood of the bridge. The evidence tended to show that the hole had continued in the bridge in practically the same condition as it was at the time of this injury, since sometime in the fall of 1891, and that the commissioner had been notified of its existence and the necessity of reparation.</p> <p>It also appeared that after the plaintiff’s injuries an abscess formed upon the injured member, which was subsequently lanced, but that it continued to discharge, and was treated by a physician for nearly two months, and that during the greater portion of this time she was confined to her bed, and suffered to such an extent that at one time her life was despaired of.</p>

<p>Will — bequest to corporations in excess of one-half of the decedent’s estate—remote hews may object—value of the estate with power to use the principal, how determined— life estate, how deducted—Laws of 1860, chap. 360.</p> <p>Persons who are in fact heirs at law of a testator, however remote their relation-. ship may be, are entitled to raise the objection that the testator has devised or bequeathed to one of the various associations and corporations, mentioned in chapter 360 of the Laws of 1860, more than one-half part of his estate remaining after the payment of his debts.</p> <p>A testator, who left neither father, mother or child, or descendant of a child, by his will, provided, among other things, that his wife should have during the term of her natural life the income and profit of all his estate; that in case this was not sufficient to afford her a proper and. suitable support, his executors should sell and dispose of so much of his personal and real estate as might be necessary to provide for her personal comfort during , the lifetime of the wife, who was seventy years six months and sixteen days old when her husband died, and survived him about three years, and during which period of her widowhood the executors encroached considerably upon the principal of the estate.</p> <p>Meld, that the value of the estate must be determined as of the tjme of her death, and that it was not a case, in view of the discretionary power given to the executors to employ a part of the corpus in the support of the widow, where it was proper or possible to ascertain the value of the testator’s estate at the time of his death, and then deduct the value of the life estate.</p>

<p>Appeal by the respondent, The 'Board of Trustees of the Village of Penn Yan, from an order of the Supreme Court, made at the Monroe Special Term and entered in the- office of' the cleric of the county of Yates on the 2d day of December, 1895, directing that a peremptory writ of mandamus issue requiring the respondent to pay the claim of the relator.</p> <p>The village of Penn Yan was incorporated pursuant to chapter 119 of the Laws of 1889. In 1894 there was a board of health of said village appointed pursuant to chapter 661 of the Laws of 1893, which, on the 24th of March, 1894, appointed the relator health officer for the then ensuing year; and at a meeting .of the board held April 26, 1894, the relator being present, “ It was moved and carried, the compensation' of health officer be one (1.00) dollar per visit for ordinary cases, but in cases of small pox, diphtheria and scarlet fever it is not to exceed four (4.00) dollars.” June 17,1894, small pox broke out in a dwelling in said village occupied by four families.</p> <p>The relator avers in his affidavit “ that under "the employment and by the direction of the board of health of said village of Penn Tan deponent treated the case as a physician and had the sole and exclusive charge of the same.”</p> <p>August 7, 1894, the relator made out the following bill against the village:</p> <p>“ Penn Tan, N. T., Aug. 7, 1894.</p> <p>“ Village of Penn Tan,</p> <p>“ To M. H. McGovern, Dr.</p> <p>“ Physician and Surgeon.</p> <p>“ For services as health officer.</p> <p>" Treatment of small pox patients, moving and burying the same, from June 17th until July 29, ins., at $25 per day, 43 days............................................ $1,075.”</p> <p>The relator meeting the president and. secretary of the board of health procured the following indorsement to be entered on his bill: “ The foregoing bill is correct. and ' allowed. Frank Dains, Pres. Board of Health. O. N. McAdams, Sec’y.” The bill, however, was never presented to or audited by the board of health. On the same day, August 7, 1894, the bill was presented to the board for trustees of the village and was filed with its clerk. After hearing the relator the trustees, November 9, 1894, audited and allowed the bill at $600. November 15, 1894, the relator presented a bill for $1,075 to the board of health, which passed the following resolution: It was moved and carried that the bill be paid.” Thereafter the village raised by tax the sum of $600, which was tendered to and refused by the relator. On January 15, 1895, the relator verified the following bill, and on the eighteenth of that month inclosed it in a letter to the trustees of the village, stating that he wished to withdraw his prior bill and present the following bill instead:</p> <p>“Village of Penn Tan</p> <p>To M. H. McGovern, Dr.</p> <p>“ 1894. To services as a physician, upon the employment of the Board of Health of said village, in the treatment and care of small pox patients in said village, from and including June 17th, to and including July 29th, 1894, at the price of $25 per day ....................■................... $1,075</p> <p>“ Tates County, ss. :</p> <p>“ M. H. McGovern, being duly sworn, says that he is a physician and surgeon residing in the village of Penn Tan, in said county ; that the services above mentioned have been rendered by this deponent, as above set forth, upon the employment and under the direction of the board of health of said village; that-the account as above rendered is correct, and that no part thereof has been paid. That at a meeting of the board of health of said village of Penn Tan, duly had after the rendition of said services, the amount of the claim of deponent as herein set forth was_ allowed and fixed by the said board of health as the amount of the compensation which should be paid to this deponent ■ for his services in attending the Small pox • patients and cases in said'village, under said employment of said board of health.</p> <p>“M. H. HcGOVERH.</p> <p>“ Sworn to before me, this lath day of January, 1895.</p> <p>“ Benjamin L. Hoyt,</p> <p> “ Nota/ry Public.” </p> <p>Ho action being taken by the trustees on this second bill, the relator began these proceedings on the, 10th of April, 1895, and a peremptory writ of mandamus was issued directing the trustees to pay to the relator the full amount of his bill.</p>

<p>Demurrer want of privity as to lath defendants — misjoinder of causes of action .' —no right to a rescission of the contract in the alsence of fraud.</p> <p>The complaint in an action alleged that a person named Bryant- had invented- a machine for cutting screw threads, which was not patented, that he assigned a one-half interest in it to the plaintiff; that the defendants, named Bond'and' Pierce, co-partners, entered into an agreement with the plaintiff by Which they were to obtain a patent for the machine, manufacture and introduce it into use and to account to the plaintiff for onedialf of the profits; that pursuant to the terms of the agreement, the plaintiff assigned to Bond and Pierce his interest . in the patent; that Bond and Pierce obtained the patent, carried on the business, but failed to account to the plaintiff; that subsequently the defendant the Pierce Steam. Heating Company was organized as.a corporation, and, by some arrangement with Bond and Pierce, used the machine for a certain time; that ' then another corporation, the defendant the American Radiator Company, was organized, which had been using the machine under an arrangement with Bond and Pierce, and had not accounted for such úse and profit; and, finally, the complaint alleged that each oí said corporations knew oí 'the plaintiff’s agreement with Bond and Pierce.</p> <p>Meld, that the complaint was subject to a demurrer based upon the ground that it failed to state a cause of action against all of the defendants;</p> <p>That it stated a cause of action against Bond and Pierce, but that no privity was-alleged, nor could any be inferred, between the plaintiff and the two corporate defendants;</p> <p>That there was no allegation that Bond and Pierce fraudulently transferred any interest in the fiatent to either corporation, or that any agreement with the ■ plaintiff was violated when Bond and Pierce permitted the corporations to use the machine; That, in order to make the corporations liable to the plaintiff, there must have been some agreement by them to pay him, and that no such agreement was either alleged or inferable;</p> <p>That there was an improper joinder of causes of action;</p> <p>That, if the corporations were liable to the plaintiff, a separate action should have been brought to compel an accounting for the .value of the use of such patent for the specific period during which each corporation used the machine, as it did not appear that there was any commiinity of interest between the corporations;</p> <p>That the fact that Bond and Pierce were stockholders in each corporation in no way affected this view;</p> <p>That the plaintiff was not entitled to the relief demanded that the defendants should transfer the patent back to him, as the plaintiff did not attack the assignment made by him to Bond and Pierce as fraudulently made or induced, nor did he allege that his interest in the patent was denied, but merely alleged the failure of Bond and Pierce to account to him in pursuance of then- agreement. .</p>

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Herkimer on the 13tli day of December, 1894, upon the verdict of a jury -rendered after a trial at the- Herkimer Circuit, and also from an order entered in said clerk’s office on the 10th day of December, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>pill of particular's—as to the name of the party who made false representations — a denied, that, the reps'esentations were made is necessary.</p> <p>The complaint in an action alleged that the plaintiff was induced to purchase certain stocks of the defendant by means of false representations made by authorized agents of the defendant, but did not disclose who these persons were. The defendant moved for a bill of particulars upon an affidavit which stated that it was ignorant of the names of the persons who had made the representations relied on; but there was no proof that the allegation of the complaint relative to the false representations was denied by the defendant nor was a copy of the answer read upon the motion.</p> <p>Held,, that the motion for a bill of particulars was properly denied.</p>

<p>Appeal by the defendant, Hugh J. Reilly, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of September, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term, and also from an order entered in said clerk’s office on the 10th day of August, 1895, overruling thet defendant’s demurrer to the plaintiff’s complaint.</p>

Appeal by the defendant, the Roscoe, Lumber Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Queens on the 21st day of October, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Queens County Circuit.

Appeal by the defendants, the Hew York Press Company (Limited) and another, from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 30.th day of October, 1895, as denies the motion theretofore made by the defendants to strike out from the amended complaint in the action the following .allegation as irrelevant: “ That, immediately after said publication was • made, the…

<p>Appeal by the plaintiff, William' H. Schecker, from an order of the Supreme- Court, made at the. Westchester Special Tertia and entered in the office:, of the clerk of- the - county of Queens, on the 16th day of- December, 1895, directing the. clerk of Queens, county. to remove from the files of the court and deliver to the deféndant Kate A. Woolsey, or her attorneys, all papers on file in his office in the action.</p> <p>Also from an order made at the Westchester Special Term and entered in the office of the clerk of the county of Queens on the 6th day of January, 1896, denying the plaintiff’s motion to resettle said- order entered in the clerk’s office of the county of Queens on the 16th day of December, 1895, directing the removal of the papers in the action from the files of the court.</p> <p>Also from an order made at the Westchester Special Term and entered in the office of the clerk of the county of Queens on the 21st day of January, 1896, vacating the order entered in the office of the clerk of the county of Queens on the 6th day of January, 1896, and resettling the order entered in said clerk’s office on the. 16th day of December, 1895, except from so much of said order entered January 21,1896, as purports to resettle the order entered December 16, 1895, by reciting therein the reading of the affidavit of Henry G. Atwater.</p>

<p>Foreclosure — vacating a judgment — there should he clear proof of an injustice done.</p> <p>Upon the hearing oí an appeal from an order vacating a judgment in foreclosure and permitting the New Amsterdam Beal Estate Association to defend the action, it appeared that the mortgage for §10,000 was given by the New Amsterdam Beal Estate Association, which answered alleging that the mortgage was in fact a security for only $5,000, of which §2,000 had been paid; the affidavit of John H. Clapp, the attorney for the mortgagor, stated that he allowed judgment to be taken because one James W. Malcolm requested him to do so and promised to see that the amount of the mortgage was properly adjusted after-wards at an amount much less than the plaintiffs claim. This statement Malcolm, who it did not appear had any authority to represent, or that he assumed to represent, the plaintiff, positively denied.</p> <p>Held, that it was improper to vacate the judgment;</p> <p>That the mortgagor had had its day in court, had failed to offer any proof in support of its defense, and that a judgment recovered under such circumstances should not be set aside unless there was clear proof that the moving parties had suffered an injustice.</p>

<p>Appeal by the defendant, The United States Projectile Company, from a judgment of the City Court of Brooklyn in favor of the plaintiff, entered in the office of the clerk of said court on the 5th day of April, 1895, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 8th day of May, 1895, denying the defendant’s motion for a new trial made upon the minutes. " '</p>

. Appeal by the defendant,. Joseph Le Comte, from a judgment of the City Court of Brooklyn in favor of the plaintiff,, entered in the office of the clerk of said court on the 14th day of May, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of May, 1895, denying the defendant’s motion for a new trial made upon the minutes.

<p> Negligence—master and servant—failure to show that a machine was defective. </p> <p>In an action brought by a servant to recover damages resulting from injuries caused by the alleged negligence of the defendant, the plaintiff's evidence tending to show that he was injured by reason of a plunger in a power press (moved by the pressure of the foot upon a treadle), having moved without such pressure being applied, was contradicted upon every material point.</p> <p>The defendant proved that the machine had been in use about a year; that six months before the injury, and again just prior to the trial, the manufacturer of the machine had examined it and found it in a safe condition; that from the principle of its construction it was apparent that the punch .could not come down of its own motion a part of the way and then return to its place, as it was claimed by the plaintiff that it did; that there was no defect in the parts of the machine, these having been produced in court.</p> <p>Held,, that the proof given upon the part of the defendant overcame that offered by the plaintiff, and that a judgment for the plaintiff should be reversed.</p>

<p>Trust—net income to he paid to a widow — the cost of ordinarry repairs must he deducted from the income — overpayment to the widow who had supported minor children—trustee allowed for this support in order to offset the overpayment.</p> <p>The will of Julius E. Braunsdorf gave all his property to his executors in trust to pay his debts, to collect and receive the rents, income and profits, and to pay “ all necessary expenses and charge for the proper care and preservation thereof, and after the payment of such charges and expenses ” to pay from the “ net income ” §300 annually to his mother during her life, the remainder of the income to his widow for her maintenance, and after the death of his mother to pay to bis widow, while she remained such, the whole net income. Upon the death of the widow the testator devised the whole estate to such of his children as should then he surviving, and the surviving issue of any deceased child; he also gave his executors a power of sale.</p> <p>He died in 1880 and left him surviving eight children, of whom five were minors; his mother died in 1881, his widow in 1891.</p> <p>Upon the accounting of his executor, it appeared that the executor had paid more than the net income to the widow, by reason of his having paid, and not deducted from the income, about §7,000 expended for repairs and improvements to the real estate of the testator; that of this amount about §1,285 was paid to erect a frame factory, which, with the lot (which was materially increased in value thereby), was subsequently sold in an action for partition for §1,950, and this sum was divided among the children; that the balance of the §7,000 was expended for temporary necessary repairs to eleven buildings.</p> <p>The widow supported the minor children during their minority, and there was no fund whatever during her widowhood out of which these children could have been supported.</p> <p>Held, that as the building of the frame factory had increased the value of the lot upon which it was built, that expenditure should be allowed to the executor;</p> <p>That as the net income of the estate had been given to the widow by the will, she was entitled only to what was left of the income, after deducting from the gross income the necessary expenses for the proper care and preservation of the estate; that consequently the executor was not entitled to credit for the .expenditures made for temporary repairs;</p> <p>That in view of thé fact that the widow had maintained the minor children during their minority at her own expense, it was equitable that the shares of such children should be charged with the sum which she had expended for such purpose, and that in adjusting the account of the executor the amount which he had expended for ordinary repairs might be presumed to have been. advanced from the principal of the'estate for the support of the minor children, and might be allowed to .the executor as a credit against the sum paid out of the principal by him for ordinary repairs.</p>

Appeal by the defendants, William S. Gribbel and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of. Kings on the 4th day of December, 1895, continuing in force a temporary injunction granted in the action on the 26th day of .November, 1895, until the determination thereof.

Appeal by the plaintiff, James J. Hogan, from a judgment of the City Court of Yonkers in favor of the defendant, entered in the office of the clerk of the said court on the 15th day of November, 1895, upon the decision of the court rendered after a trial before the court without a jury dismissing the plaintiff’s complaint, and also from an order entered in said clerk’s office denying the plaintiff’s motion to amend the complaint.

Appeal by the plaintiff, Abram O'. Gibson, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Richmond on the 13th day of Hovember, 1895, upon the decision of the court rendered after a trial at the Richmond Special Term.

Certiorari issued out of the Supreme Court, and attested On the 25th day of January, 1896, directed to the excise commissioners of the city of Poughkeepsie, commanding them to return to the office of the clerk of • the county of Dutchess all and singular their proceedings in regard to the revoking of the license of the relator to sell intoxicating.liquors.

<p> Order of wrest — cannot issue unless there is a complaint. </p> <p>An application for an order of arrest under subdivision 4 of section 549 of thq Code of Civil Procedure cannot be made before the existence of a complaint in the action, inasmuch as the Code gives the remedy in a case “ where it is alleged in the complaint that the defendant was guilty of a fraud.”</p>

Appeal by the plaintiff, Christian Mosel, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 22d day of - October, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Queens County Circuit.

<p> Summons—order to publish or serve personally without the State—failure to. state .the address of the defendant—personal service without the State made more than thirty days after the order and .after an attachment was granted is good—jthe attachment may for that reason be vacated.. </p> <p>An order of publication need not contain both a requirement that the summons shall be published and also á further provision that service of the summons may be made without the State, at the option of the plaintiff.</p> <p>When the .plaintiff makes no election between the. two modes of service and inserts both provisions in the. order, the omission to specify the place to. which copies of the summons, complaint and order, addressed to the defendant, shall be directed is not a jurisdictional defect which is fatal to the order where the papers are served personally out of the State.</p> <p>Where the order of publication is made inore than thirty days before the date ■when personal service of the' summons was made without the State and a warrant of attachment has also been granted in the action against the property of the defendant more than thirty days before such service of the summons without the State, the effect is that the service of the summons is good, but the delay entitles the defendant to have the attachment vacated.</p>

<p>Brooklyn:—rights of the elevated railroad in the streets — building of a sewer beneath the railroad — the expense of shoring up.the elevated structure is a charge upon the company.</p> <p>The Brooklyn Elevated Railroad Company has no fee in the streets of Brooklyn over which it is constructed, in the sense in which the word fee is ordinarily used, but it has a franchise which cannot be abrogated or destroyed by the public authorities without their making compensation therefor.</p> <p>Any grant to the elevated railroad company must necessarily he construed as subject to the right of the public to enter upon the street for such a purpose as that of laying and constructing a sewer, and any interference with the elevated railroad company in the proper construction of such work must be con- • sidered as a burden which the elevated railroad company assumed to bear.</p> <p>Upon the submission of a controversy, made upon an agreed statement of facts, it appeared that the city of Brooklyn constructed a sewer beneath the Brooklyn Elevated Bailroad Company’s structure; that the contract of the city provided that the contractor should support the sides of the excavation with suitable planks and shoring; that this excavation rendered it possible that the elevated structure might settle, and that, in order to guard against this' danger, the elevated structure itself was shored up.</p> <p>The question presented for decision was whether the city should meet this latter expense or whether it should be borne by the elevated railroad company</p> <p>Held,, that the burden must fall upon the elevated railroad company.</p>

Motion by the district attorney to dismiss an appeal from an order of a Special Term of the Supreme Court, discharging the relator from imprisonment.

Appeal by the defendant, Asa Gibbons, from a judgment of the Oity Court of Yonkers in favor of the plaintiff, entered in the office of the clerk of said court on the 1st day of October, 1895, upon the verdict of a jury rendered by direction of the. court, and also from an order denying said defendant’s request to go- to the jury and from an order granting the plaintiff’s motion for the direction of a verdict.

Appeal by the plaintiff, John Hynes, from a judgment of the Supreme Court in favor of the defendant John W. Alexander, entered in the office of the clerk of the county of Westchester on the 30th day of December, 1895, upon the decision of the court rendered after a trial at the Westchester Special Term dismissing the plaintiff’s complaint, and also from an order entered in said clerk’s office* on the 30th day of November, 1895, directing the . entry of said judgment.

Appeal by the defendant, Robert R. Chapman, from a judgment of the Supreme Court, entered in the office of the - clerk of the county of ' Queens on the 13th day of June, 1895,' upon the decision of the court rendered after a trial at the Queens County Special Term, directing the distribution of the fund, which is the subject of the action, in the manner set forth in the judgment,

<p>Negligence — am, open gate at a railroad crossing, the proximate cause — killing a horse upon the track — degree of can'e required of the defendant.</p> <p>In an action brought to recover damages resulting from the death of a horse caused by the alleged negligence of the defendant, it appeared that the plaintiff’s farm lay on each side of the defendant’s railroad track, which ran north and south; that there was a crossing running east and west; that the horse in question was kept in a barn on the east side; that upon this side the defendant maintained at the crossing a gate; that on the west side there was an opening, but no gate; that when the accident happened the gate on the east side was open; that this gate had been used by the defendant’s servants, but it did not appear who opened the gate, nor how long it had been open; that the horse went through the open gate on the east side of the track, went to the west side of the track and started to recross, and, when the train in question came, ran up the track for a distance of about 400 feet, became caught in a culvert and was struck by the train.</p> <p>Upon the trial the court submitted to the jury the question whether the defendant was'guilty of negligence which led to the gate on the east side being open, and it refused to charge that there was no proof that the gate was opened by the defendant.</p> <p>Held, that as there was no proof whatever that the ■ defendant opened the gate, and none that the fence and gate which it had erected upon the east side were not in all respects sufficient, the defendant could not be charged with negligence;</p> <p>That, as the proximate cause of the accident was the fact that the gate upon the east side of the track was open, it was unnecessary to consider the obligation of the defendant to have placed a gate at the opening which existed on the west side;</p> <p>That, assuming that the defendant was not responsible for the open gate through which the horse strayed, it could only be made liable for reckless, wanton or malicious conduct upon the part of its employees in running the horse down.</p>

<p> Set-off-r an answer demanding that certain sums he credited upon an account does not set up a counterclaim—a reply is not required. ■ </p> <p>Where the defendant in an answer interposed in an action alleges that he ought to be credited with a certain amount upon, the account, which is the basis of the plaintiff’s claim, the answer must be deemed to state facts which merely go to defeat the' plaintiff’s cause of action. Such facts may amount to a defense, but do not constitute a counterclaim.</p> <p>The pleading .of such an offset in an answer does not require a reply, and, where no reply has been served by the plaintiff, the defendant is not entitled to a judgment, upon the pleadings, for the amount of the offset.</p>

Appeal by the. defendant, The Home Insurance Company of the city of New York, from an order of the Supreme Court, made at the Kings County Special Term and. entered in the office of the clerk of the ■ county of Westchester on the 6th day of February, 1896, denying its motion to change the place of trial from Westchester county to New York county, made upon the ground of the convenience of witnesses.

<p> Possession of warehouse receipts and acts of ownership and control of the goods stored impose a liability to pay storage. </p> <p>In an action brought to recover for the storage of certain barrels of cement, it appeared that on the 28th day of March, 1885, one Yon Angern stored with the plaintiff (a public warehouseman) the barrels of cement in question upon stated rates of storage and took warehouse receipts for the same, transferable by indorsement, which stipulated that the person to whom they were transferred should be deemed to be the owner of the goods and merchandise so far as to give validity to any pledge or transfer made or created. In July, 1885, Yon Angern made a note payable to a bank and pledged to the bank, as security for the note, the warehouse receipts, and the defendants guaranteed the pay- • ment of the note under an agreement that they were to receive, if forced to pay it, the note and the right and title of the bank to the warehouse receipts. The defendants having been forced to pay the note, received from the bank the receipts duly indorsed, and subsequently the receipts were presented to the plaintiff by Wills, one of the defendants; the plaintiff’s bookkeeper asked him at that time whether he should make out bills for the accrued storage, to ■ which Wills assented, and the receipts were made out and were given to Wills, who testified that they were made out against Yon Angern.</p> <p>Subsequently the defendants offered to sell the goods,, and the plaintiff, at the defendants’ .request, allowed them to be examined, and on the 16th day of January, 1886, the present defendants sued the present plaintiff, alleging in that action . that they, the present defendants, had become the owners of the merchandise represented by the receipts; that the barrels were not barrels of cement; that the present plaintiff had stored them so negligently that the contents had become worthless, and demanded as damages the sum of $3,500, with interest; that action resulted in favor of the present plaintiff.</p> <p>At all times and during the pendency of that action the barrels remained on storage with the present plaintiff, and the present action was brought to recover all the storage which had accrued thereon.</p> <p>Held, that the defendants, being in possession of the muniments of title, knew of the storage and the rates agreed to be paid therefor, and having claimed, in the action referred to,, to be the owners of the goods, and having as such owners demanded damages for the alleged negligence of the warehouseman, they were liable to pay the storage stipulated for under the contract made by Yon Angern.</p> <p>Ingraham, J., dissenting.</p>

Appeal by the defendant, Eiubomir R. Mestaniz, from a judgment of the Superior Court of the city of Hew York in favor of the plaintiff, entered in the office of the clerk of'said court on the 24th day of October, 1895, upon the verdict of a jury rendered by direction of the court.

Appeal by the .plaintiff, Mary E. Straub, from a judgment of the Supreme Court in favor of the, defendant, entered in the office of. the clerk of the county of New York on the 15th day of April, 1895, upon the dismissal of the complaint directed by the court , after a trial at the New York Circuit befope the court and a jury.

Appeal by the defendant, Thomas Henry French, from a judg-' ment of the Court of Common Pleas for the city and county of New York in favor of the plaintiff, ente'red in the office of the clerk, of said court on the 12th day of December, 1895, after the overruling of exceptions ordered to be heard in the first instancé at the General Term of the Court of Common Pleas, and also from an order entered in said clerk’s office on the 21st day of December, • 1895, denying the…

<p>Appeal by the plaintiffs, Mary E. Hindman and others, and by the - -defendants, Cornelia Hartwell Haurand and others, from a judgment of the Supreme Court, entered -in the office of the clerk of the county of Hew York on the 4th day of February, 1895:, upon the decision of the court rendered after a trial at the Hew York Special Term,."adjudging that certain legacies bequeathed by the last will and testament of Bernard <J. Haurand, deceased, are not liens upon the real estate devised by the testator in his will.</p> <p>The following is the will of Bernard J. Haurand, deceased:</p> <p>“ In the Hame of God, Amen.</p> <p>“I, Bernard-J. Haurand, of'the city and State of Hew York, being of sound mind, memory and understanding, do hereby make, publish and declare this to be my last will and testament in manner and form following, namely:</p> <p>“'First. I most earnestly request and direct that, my remains be interred in my family burial jilot in the Baltimore cemetery in the city of Baltimore, in accordance with the wishes in that regard heretofore expressed to my beloved wife.</p> <p>“ Second. I direct that my funeral expenses and all the just debts and lawful debts may be paid and discharged as soon after my decease as practicable.</p> <p>“ Third. I give and bequeath to Cornelia. Hartwell, the widow of my brother, Rudolph Haurand, of Richmond, Virginia, the sum of fifteen hundred dollars, to be held, used and employed by her in securing a house or providing a home for and for the benefit generally of her children Lizzie Norah, Ella Cornelia, John Bernard, and William Rudolph; and I hereby commit to my said brother’s widow the care and custody of the sum above, mentioned for the uses and purposes aforesaid for the term of her natural life; the object of this bequest being to aid in providing a home for my said sister-in-law and for her children.</p> <p>“ Fourth. From and after -the death of the said Cornelia Hart-well, my brother’s said widow, I give and bequeath the said sum of fifteen hundred dollars and the proceeds and results of the same or of any investment thereof whatsoever, the same maybe, to my nieces and nephews, the said Lizzie Norah, Ella Cornelia, John Bernard and William Rudolph Haurand, to be equally divided between them, share and share alike, absolutely; and to their respective heirs and assigns forever.</p> <p>“ Fifth. I give and bequeath to my nieces Louise Jane, Mary Elizabeth and Florence Haurand, of the city of Baltimore, severally, the children of my deceased brother, William Haurand, the sum of five hundred'dollars each, aggregatingfif teen-hundred dollars; the said sum of five hundred dollars each being given to my said three nieces absolutely, and to them respective heirs and assigns forever.</p> <p>“Sixth. I direct that my-executrix hereinafter named as soon as practicable, after my decease cause and procure a monument to my memory to be erected in the plot aforesaid in the said Baltimore cemetery, at an expense of one "hundred and fifty dollars; and I hereby give and bequeath to my sister, Mrs. Elizabeth Kesinodel of said city of Baltimore the sum of one hundred dollars, in trust, nevertheless, to apply the interest and income derived therefrom towards the keeping in proper order and repair the said plot and monument in said cemetery; and after the death of my said sister the interest and income of said last-named sum shall be applied to the same purpose in the manner and by the person or persons as she shall direct; and I most earnestly request my relatives who may survive me and their descendant not to neglect the keeping in order of the said burial plot but as the years go by, to keep and maintain the same in neat and proper order and condition..</p> <p>. “Seventh. After the bequests and provisions above mentioned, I give, devise and bequeath to my beloved wife, Ellen F. Haurand, all the rest, residue and remainder of my estate, real and personal, wheresoever the same may be, and of whatsoever character or description the same be known, to my beloved wife absolutely, and to her heirs and assigns forever.</p> <p>“And lastly, I make, constitute and appoint my said beloved wife, Ellen E. Haiirand, the sole executrix of this my last will and testament, hereby revoking and declaring absolutely null and void all former or other wills by me at any time made.</p> <p>“ Witness Whereof, I have hereunto set my hand and seal at the city of New York, aforesaid, this twenty-first day of April, in the year of our Lord, one thousand eight hundred and eighty-six.</p> <p>“BERNARD J. HAURAND. [l. s.]</p> <p>“ The above and foregoing instrument was on the date of the day thereof signed, sealed, published’ and declared by the testator, Bernard J. Haurand, as and for his last will and testament in our presence, and we, at his request and in his presence, and in the presence of each other, have hereunto subscribed our names as witnesses thereto:</p> <p>“ James W. Covert, residing at L. I., City of N. Y.</p> <p>“ James E. McLaughlin, residing at Jamaica, L. 1.”</p>

<p> Guaranty—tender of collaterals on demand of payment—the taking, of additional security by a creditor does not discharge the guarantor—promise by a corporation to procure some one to buy shm'és from its creditor if another does not — a judg- ■ ment in an action at law cannot provide for the return of collateral. </p> <p>In an action brought to recover a loan of £7; 000 and interest, it appeared that a corporation was organized in London in 1883, in which the plaintiff, William Robertson, was a director and at times chairman of the board of directors; that the articles of association, among other things, provided that the directors might refuse to transfer shares in case a member was in any manner indebted to the company, oí in the case of shares not fully paid, where the company did not approve of theproposed transferee; that on the 29th day of July, 1886, the plaintiff,, William Robertson, and the defendant entered into a written agreement hy which such plaintiff, at the request of the defendant, agreed to lend the company the sum • of £7,000 upon its mortgage debenture of the same amount, payable August 12, 1889, the agreement .providing that if, before this date, the'company should have issued debentures to the amount of £140„000, then, upon seven days’ notice, the loan should become due;, the defendant further' covenanted to pay the claim himself in case of default by the company, and to this end agreed that debentures to be issued to him to the amount of £14,000, he being a very large stockholder in the-corporation, should be deposited as security for the loan with a certain firm, to be held by them as long as the loan remained unpaid.</p> <p>Payment was not made oh August 12, 1889, and a further agreement was entered into between the company, the defendant and the plaintiffs, which recited the . former agreement, and contained a covenant that if the company did not pay the loan on August 12, 1892, the defendant would pay it; the defendant also covenanted that he would transfer, or procure to be transferred, to the plaintiffs £14,000 nominal value of the mortgage debentures of the company held by him, and payable August 12, 1892, these to be held'as collateral security., It. was further provided that if prior to August 12, 1892, the total debenture. issue of the company should amount to £140,000 the company would, upon seven days’ notice, pay the loan, and that if. it did not do so the defendant would make the payment upon a month’s notice; that upon such payment the " collateral security should be redelivered to the defendant;, that these securities-should be deposited with the Lloyds- Bank in London, there to be held while the loan -remained unpaid, or until it was necessary to sell them to pay the loan; that while the loan remained unpaid to the plaintiffs the defendant would ■ use his votes and influence to keep the plaintiff William Robertson in his posi- . tian-as a director of the company; that whenever he ceased to be a director, the loan remaining unpaid, the defendant would immediately purchase-at par all the shares held by William Robertson.</p> <p>It further appeared that on the 31st day of December, 1889, the company indorsed on this latter agreement a supplemental memorandum which recited that it was intended upon the part of the company to enter into a further stipulation thereinafter stated, which had been omitted by inadvertence; that the company accordingly further agreed, in relation to the covenant that the defendant would immediately purchase the shares of William Robertson; that in the event that the defendant did not do so, or in the event that the company refused to register a transfer of such shares to the defendant, then the company would procure the shares of William'Robertson, to be purchased at their par value by, and to be.transf erred to, some responsible transferee. This supplemental agreement was executed by the company alone, and put in the plaintiff’s possession, hut the defendant had no knowledge of it.</p> <p>The Clarendon Company failed to pay the £7,000 loan, and this action was brought to recover that amount and interest. •</p> <p>Held, that the plaintiffs were entitled to recover;</p> <p>That, as the action was one at law, the judgment could not contain a provision for the return to the defendant of his securities upon his payment of the loan;</p> <p>That, as the securities were to be deposited with Lloyd’s Bank, to be held by it for the benefit of both parties, the plaintiffs were not entitled to the possession of the securities, and consequently were under no obligation to return them;</p> <p>That the plaintiffs were not bound to demand payment, and were merely bound to give notice of the default;</p> <p>That a right of action accrued to "the plaintiffs without any demand, and hence they were not obliged to make any tender; «•</p> <p>That the supplemental agreement of the 31st of December, 1889, did ‘ not operate to discharge the defendant from his guaranty that he would pay the loan; that the rule relative to sureties did not apply;</p> <p>That there was no alteration whatever in the contract which the defendant had guaranteed to perform, and that the effect of the supplemental agreement was that the plaintiffs had received additional security, which was to become available in case the defendant failed to comply with his contract;</p> <p>That the effect of the company’s promise to procure a responsible person to buy the shares of William Robertson in case the defendant did not, was not to constitute that agreement a separate and distinct obligation, but that it was an obligation entered into by the company at the foot of the contract, to become operative only in the event of the failure of the defendant to comply with the obligation which he had assumed, and which in no way deprived the company of any property which the defendant hada right to claim that it should apply to the payment of its indebtedness to the plaintiffs.</p>

Motion by the appellant, William Roeber, for a reargument, or for leave to go to the Court of Appeals, upon an appeal taken to the Appellate Division of the Supreme- Court for the first judicial department. This action was brought to recover the damages resulting from the publication of an alleged libel. (See 1 App. Div. 427.)

Appeal by the defendants, John T. Downing, as administrator of Rose Downing, deceased, and others, from a judgment of the Superior Court of the city of New York in favor of the plaintiffs, entered in the office of the clerk of said court on the 16th day of July, 1895, upon the decision of the court rendered after a trial at a Special Term thereof.

Appeal by the defendant, Leon Tanenbaum, from a judgment of .the -Court of Common Pleas for the city and county of Hew York in favor óf the plaintiff, entered in the office of the clerk of said court on the 23d day of April; 1895, upon the verdict of a' jury, and also from an order entered in said clerk’s office on the 23d day of April, 1895, denying the defendant’s motion for a new trial made upon the minutes. - This action was brought to recover commissions upon the sale…

<p>Pleading-tissues as to the assumption by one corporation of the obligation of another — the Statute of Frauds must be pleaded.</p> <p>In an action brought to recover the damages resulting from a breach of contract for services, the complaint set forth two contracts made by the Glen Cove Manufacturing Company, under which the plaintiff was employed for a term of five years, unless the company should discontinue its business, in which event the company might declare the - agreement void, and alleged that the ' company was “absorbed” by the defendant; that the plaintiff was notified by the defendant of the consolidation of the two companies, and that thereafter Ms employment would be by the defendant at the yearly salary of 82,500, upon the same terms and conditions set forth in the contracts above mentioned, and that the defendant agreed to pay the salary and ratified the employment.</p> <p>The answer denied this allegation as to the plaintiff’s employment being continued by the defendant, but in no manner pleaded the Statute of Frauds.</p> <p>-It appeared that the Glen Cove Manufacturing Company had not availed itself of its option to declare the agreement void.</p> <p>.Held, that the only question presented by the pleadings was whether or not the defendant had assumed the obligation of the Glen Cove Manufacturing Company to employ the plaintiff as provided in the agreement made between him and that company;</p> <p>That if, for any reason, the Statute of Frauds constituted a defense to the plaintiff’s claim the defendant could not avail himself of it, as he had not pleaded the statute.</p> <p>Where the Statute of Frauds is not pleaded it must be regarded as waived.</p>

Appeal, by the defendant, Max. Kaempfer, from a judgment of the Court of Common Pleas for the city and county of New York ' in favor of the plaintiff, entered. iii the office of the clerk of said court on the 3d day of July, 1895, upon the decision of the court, rendered after a trial at.an equity term of said court, and also from the amended judgment and decree entered in said clerk’s office on the 5th day of September, 1895.'

Appeal by John S. Huyler, a junior attaching creditor, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of January, 1896, denying his motion to vacate the whole of an attachment granted in the action, and also permitting the plaintiff to modify its attachment by reducing the amount of the sum claimed therein.

Appeal by the defendant, William Hays, from • a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of tire county , of New York on the 11th day of November, 1895,. upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 18th day of November, 1895, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Isidor Oohnfeld, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York upon the 20th day of April, 1895, upon the dismissal- of the complaint directed hy the court after a trial at the Hew York Circuit, and also from an order entered in said clerk’s office on the 16th day of May, 1895, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal -by J. Edward Simmons, as receiver of The American Loan and Trust Company, from an-order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the. 9th. day of December, 1895, directing said receiver to pay from the funds in his hands as such receiver to Lorenzo Burrows, the receiver of the estate of Ros^well S. .Burrows, deceased, of his 'attorney, a sum of money deposited with the American Loan…

Motion by the defendants, John Murray and another, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance upon the dismissal of the complaint, directed by the court after a trial at the Hew York Circuit-on the 16th day of October, 1893, before the court and a jury.

Appeal' by the plaintiff, the National Union Bank, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of December, 1895, denying the plaintiff’s motion for an injunction pendente lite, except from so much of said order as vacated an order entered in said clerk’s office on the 17th day of December, 1895, upon said motion.

Motion by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, upon the verdict of a jury, rendered after a trial at a term of the Superior Court of the city of New York on the 6th day of February, 1895.

Appeal by the defendants, Ellen S. Cornue and another,; from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New-York on the fth day of December, 1895, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendants’ demurrer to the complaint.

Appeal by the defendant, The Agricultural Insurance Company of Watertown, New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of May' 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office denying said defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiS, Amelia L. Spies, as executrix,-etc., of Francis ‘Spies, deceased, from a judgment of the Court of'Common Pleas for the city and county of New Fork in favor -of the defendant, entered in the office of the clerk of said court on the 25th day <of November, 1895, upon the dismissal of the complaint -directed iby the court after a trial before the court and a jury.'</p>

Appeal by the' defendant, Mary 0. Maxwell, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of July, 1895, confirming the report of á referee appointed in surplus money proceedings, and awarding the surplus moneys to Mary L. Barbey. This action was brought for the foreclosure of a mortgage covering premises No. 9 East Seventy-fourth street, New York city.

Appeal by the plaintiff, G-. B. Scott, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 20th day of November, 1894, upon the dismissal of the complaint directed by the court after a trial át the New York Circuit before the court and a jury,, with notice of an intention td bring up for review upon such appeal an interlocutory judgment entered in said clerk’s office dismissing the complaint;…

Appeal by the defendant, Iienry Haaker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of November, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 5th day of November, 1895, denying the defendant’s motion for a new trial made upon the minutes. • The action was brought to recover damages…

Motion by the plaintiff, Frederic N. Blanc, for a new trial upon a case containing exceptions, ordered to be heard at the General Term in the first instance, upon the verdict of a jury directed by the court after a trial at the New York Circuit on the 10th day of October, 1895.

Appeal by the defendants, John R. Martinez Hernz, as executor and trustee, etc., of Ramon Martinez Hernandez, deceased, and another, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 25th day of November, 1895, upon the decision of the court, rendered after a trial at an equity term thereof.

Appeal by the defendant, Lloyd I. Seaman, from a ¡judgment of the Court of Common Pleas for the city and county of New York, entered in the office of the clerk of said court on the 5th day of August, 1895, upon the report of a referee.

<p> Purchase of goods obtained by fraud—proof as to bona fldes. </p> <p>What proof establishes a bona fide purchase for full value of goods obtained from the true owner by fraud, considered.</p>

<p> Mre insuramee policy—when an executor of the insured may sue for a loss to both real and personal property occurring after histestatofs death—when an appraisal is unnecessa/ry unless "required" </p> <p>Where a policy of fire insurance covering real property runs to the legal representatives of the insured, his executor or administrator is, in the event of his. death, the proper person-to bring an action for a loss occurring after his death.</p> <p>In such case, the executor may maintain, in his own right, an action for the loss-sustained by the personalty, while in regard to a loss of the real estate he may be regarded as trustee of an express .trust, suing in his own name for the benefit of the heirs of the insured.</p> <p>These causes of action may be enforced in a single action, and separate actions, one by the executor relative to the personal, and another by the heirs relative to the real, property, <hre unnecessary.</p> <p>A provision in a policy of insurance that “ the loss shall not become payable Until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers, when an appraisal has been required,” means that where an appraisal has been “required” by either party, the sixty days run from the receipt by the company of the award in connection with the proofs of loss, but that where no appraisal has been “ required ” the sixty days run from the receipt by the company of the proofs of loss, together with any ascertainment or estimate which has been reached'by the parties.</p> <p>When, however, no appraisal has been made nor any ascertainment or estimate has been reached by the parties, the sixty days run from the receipt of the proofs of loss.</p>

<p>Foreign executor—jurisdiction of an action affecting the decedents estate will he assumed hy the courts of the State of Few Torh only to prevent a failure of justice by reason of the executor’s misconduct—pledge of securities—right to enforce it in an action against an executor as an individual—right of the estate to he heard,— situs of property.</p> <p>In an action brought by the widow of one Walter S. Collins against the defendant (Collins’s executor) individually, it appeared that the testator, a resident of New Jersey, died in 1893, and that by his will, admitted to probate in New Jersey, he appointed the plaintiff and the defendant as his executors; that the plaintiff qualified as executor and the. defendant renounced. Immediately after the testator’s death a tin box containing securities was removed from his house to the office of the plaintiff’s legal adviser in New York, and the securities have ever since remained in this State. The box contained certain securities belonging to the plaintiff, also certain securities belonging to the deceased, some of which latter securities were attached to an instrument signed by him under date of March 14, 1889, which instrument purported to create a trust in favor of the plaintiff to secure her against loss through the decedent’s having pledged §7,000 of her bonds as collateral to his note.</p> <p>At the request of the plaintiff, who found her own claims to be hostile to the interests of the estate of her husband, the defendant withdrew his renunciation and qualified as executor, and the letters testamentary issued to the plaintiff were revoked, and in October, 1894, she began the present action, alleging in her complaint that the deceased in 1884 took and used securities belonging to .her, which, with the exception of seven bonds, which he had pledged as collateral to his note to the First National Bank of Staten Island, N. Y., on March 14, 1889, could not be identified, and she asked as relief that she be declared entitled to receive so much of the general property of' her husband as would repay her for the amount of her property which he had used.</p> <p>The defendant admitted the allegations of the complaint, consented to' a reference, and the referee reported that the entire estate of the deceased, if necessary, should be applied to redeem the seven pledged bonds, and he directed that the securities attached to the trust instrument of March 14, 1889, be sold first, and that then the other securities and property should be sold; and that if any surplus resulted it should remain in the hands of a receiver. The complaint was thereupon amended so that it might correspond with the relief granted.</p> <p>About a month later the judgment was vacated by consent; the defendant answered over; denied all the plaintiff’s equities; alleged want of jurisdiction of the subject-matter of that action; that’-the estate of the deceased was insufficient to pay his debts, and also set up a defect of parties, in that neither the heirs nor the creditors of the deceased were joined. A second reference was had in which the referee reported in favor of the plaintiff, granting substantially the same relief, except that any surplus be paid to the defendant instead of being retained by the receiver.</p> <p>NsM, that the original claim of the plaintiff that she be repaid out' of the estate for all her property used by the deceased was not tenable;</p> <p>That her claim that the whole estate be applied to redeem the seven bonds was not tenable, as there was nothing to show that any of the securities found in the box were purchased with her'money or the proceeds of her property;</p> <p>That she was not entitled to have the specific securities attached to the trust instrument of March 14, 1889, applied to redeem the seven bonds; the court having no jurisdiction to make such a direction;</p> <p>That the facts that the plaintiff now resided in this State; that the defendant had an office in this State, and that the securities were here, were not sufficient, to confer jurisdiction upon the courts of this State to act in the premises;</p> <p>That in this action, expressly brought against the defendant simply as an individual, he, being a mere depositary of the securities, could not be required by a, court of equity to make any disposition of them beyond returning them to such person as was legally entitled to them, and could not be required to apply them or their proceeds equitably in hostility to the legal title;</p> <p>That the court had no power to take the securities out of the hands of a depositary in order to give them to a receiver appointed by the court;'</p> <p>That if the action were to be regarded as one brought against the estate, the courts of the State of' New York ought not to assume jurisdiction in the matter;</p> <p>That a foreign executor should not be pursued in the courts of the State of New York, unless he had been guilty of misconduct from which a failure of justice would result if the courts of the State of New York did not assume jurisdiction;</p> <p>That it was the policy of the law that estates of decedents should be settled in the original forum;</p> <p>That as neither the instrument of March 14,1889, nor the securities attached thereto, were ever delivered, and as no default was shown and as the situs of the property represented by the securities was in New Jersey, the domicile of their owner, it did not appear that the plaintiff was entitled to any relief in the courts of the State of New York under this trust instrument of March 14, 1889;</p> <p>That before the plaintiff should be granted any relief, either at law or in equity, the estate of the deceased was entitled to be heard in the matter, and that, owing to the manner in which the action had been conducted, the estate had never had its day in court.</p> <p>Rumsey and Ingraham, JJ., dissenting.</p>

<p>Appeal by the defendants, Katherine Heuser and another, from a judgment of the Court of Common Pleas for the city and county of Hew York in favor of the plaintiff, entered in the office of the clerk of said court on the 29th day of October,-1895, upon the decision of the court rendered after a trial at an Equity Term of said court directing the foreclosure of a mechanic’s lien. .</p>

<p> Common carriers—injury to baggage—presumption as to the condition of baggage' when received from a railroad company by a transfer express company—burden, of proof. </p> <p>In an action brought to recover for damage done to a trunk, it appeared that the-plaintiff checked her trunk in good order from Troy to New York; that while-upon the train she gave her check to the agent of the defendant with instructions to deliver it at a certain address; that she heard nothing of the trunk ' until three days later when it was delivered to her soiled, broken and empty, having upon it the defendant’s label.</p> <p>The defense was that the defendant did not receive the trunk when the train arrived, and that it was delivered two days later at the baggage room of the railroad company by the driver of Dodd’s express when it was in a damaged condition, and that the defendant delivered it in that condition. The court directed a verdict for the defendant.</p> <p>Held, that the presumption was that the trunk continued in good condition while it remained in possession of the railroad company;</p> <p>That the plaintiff gave prima facie proof of the delivery of the trunk to the defendant in its original condition, when she showed, by its subsequent delivery to her by the defendant, that the defendant after securing her check obtained possession of the' trunk;</p> <p>That the burden was upon the defendant to rebut the presumption thus created that it received the trunk in the condition in which it -was when it was originally checked;</p> <p>That the case should have been submitted to the jury.</p>

<p>Appeal by William Brookfield, Commissoner of Public Works of the City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county- of New York on the 19th day of December, 1895, directing the issuance of a peremptory writ of mandamus to reinstate the relator in the position in the department of public works, from which he was discharged on the 2d day of November, 1895. '</p>

Appeal by the plaintiff, Henry W. T. Steinway, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 19th day of April, 1895, upon the' decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint.

<p>Appeal by the defendant, Thomas Curren, from a judgment of the Court of Special Sessions of the Peace of the city and county of New York, rendered on the 22d day of July, 1895, convicting him of -the crime of assault in the third degree.</p>

<p>Appeal by the plaintiff, Philippe Bello, as administrator, etc., of Joseph Bello, deceased, from.a judgment of the Superior Court of the city of New York in favor of the defendant, entered in the office of the clerk .of said court on the 14th day of November, 1895, upon the dismissal of the complaint, directed by the court after a trial before the court and a jury, and also from an order entered in said clerk’s office on the 7th day of November, 1895, denying the plaintiff’s motion for a new trial made upon the minutes.</p> <p>This was an action brought by the plaintiff as administrator of Joseph Bello, deceased, a son, to. recover damages for injuries . received by said decedent, which caused his death, and which plaintiff alleges were due to the negligence of the defendant’s servants and employees.</p> <p>At the time of the accident the boy was a bright intelligent lad of. the age of eight years and ten months; he had attended public schools three years-, and, according to his father, he could read the names of streets — “every name and everything.” The accident occurred on Sullivan street, in the middle of the- block between ' Broome and Spring streets, on November 27, 1894, between five and six o’clock in the evening, when, as testified, “ it was a little dark.” Sullivan street is narrow, with a grade almost level between Broome and Spring streets, having therein only one car track, which is the north or up track of the Seventh avenue line. The car which ran over the boy was going north in the direction of Spring street, and the manlier in which the accident occurred was detailed by only two witnesses, and, using the language employed by them upon the- trial, was as follows :</p> <p>Anthony F. Oadmore, plaintiff’s first witness, testified as follows: “ As I was coming up near Spring street I saw a boy running across the street and he fell. I holloaed to the driver; I don’t suppose he heard me, and I ran up to him and said, Boy in under the car.’ He stopped, and I said,. Take your brake • up and shove your car back,’ and they shoved the car back. * * * The street was clear of all obstructions. There was nothing to obstruct any one’s view. * * * The boy started from the west side of the street and was going east. * * * When the boy was-at the track I should judge that the heads of the horses attached to the car were about twenty-five feet from him, and then I called out. . I didn’t '</p> <p>call out exactly at the minute when the horses were yet twenty-five feet from the boy; when I see that he did he didn’t put the brake on I hollered out. I halloaed to the driver when the boy was twenty-five feet away from the heads of the horses. * "" * The boy was running across the track. When he was twenty-five feet away from the heads of the horses he fell and was lying across the track, and I suppose he was trying to get up. I saw him fall while he was running from the west side of the street, and he fell on the track. At the time he fell, and when the heads of the horses were still twenty five feet distant from him, I called out to the driver to stop. * * * I told him tliere was a boy under the car and to take off his brake and back up. He got down and took the car back; I don’t suppose he knew the boy was there.” In addition he testified that the driver was talking with a man on the east side of him standing on the platform of the car. “ When the driver was talking to'a man on the platform,.as I have stated, the driver was facing east — he had his face tinned east — the car ivas going north. He continued that conversation until the boy was struck • he never know that they struck him until I halloaed out.” Upon cross-examination this witness said: “I didn’t take any notice whether there was any wagons between the car and the west pavement or not. * * * ■ I couldn’t swear that there was, and couldn’t swear there was not. * * * Mr. Prank Spinetti kept a fruit store there. * * * His place was right where this accident happened. Sometimes in the evening ■ there is from two to three wagons there, and sometimes there ain’t. I couldn’t tell you whether there was any wagons there on this particular' night or not.” The witness could not confirm or deny that upon the coroner’s inquest he had testified that there were two wagons standing there. He further stated that he was “ sure that the boy fell on the track before the horses got to him •—■ he stumbled and he fell. When the boy fell, the car, just at the time, was about twenty-five feet away. I don’t think it would take a second or a tenth of a second before the horses reached him. It was only fifty feet. He could have got away if the driver had put his brake on and seen him. * * * At any rate he would have had to get up and go away and get out of his way before that second or tenth of a second. That is all the time the driver had to stop the car in.”</p> <p>Another witness, one. Joseph Orante, testified as follows: “ I saw the boy cross the street from the west side, on the front of the barber shop, oh the cast side of Sullivan street. He was crossing from the west side of Sullivan street toward the east side. "* * * I saw the boy fall; he fell in the middle of the street. At that timé the horses attached to the car that was going north were about twenty-five feet away. At the time that this boy fell and .when his horses were yet so far distant the driver was on the front of the car, he had the reins in his hands and talked this way with a gentleman on this side of him. He was not looking ahead; * * * he was looking to the east side of the street. * * * He was not looking in the direction in which the boy fell. I saw the boy fall, and then I saw the horses going and I heard somebody halloa.” Upon ■cross-examination he said that he saw the boy running across the street not so fast as a run. “ I said the boy was not running fast; he was running a little; he' was not walking. I should think there was a wagon before the barber shop. I am sure there was one. . There could not have been two or three there. * * * I know there was one there, but I didn’t see any other.”</p> <p>In addition to these witnesses the only others examined in plaintiff’s behalf was a car driver, who testified that a car could be brought to a full stop after the application of the brake in about five feet; and the plaintiff, who gave evidence as to the boy’s ■capacity. ,</p> <p>, At the close of such testimony the complaint was dismissed upon the ground that it had not been shown that the accident occurred solely through the negligence of the defendant. The plaintiff, however, moved for a new trial, which motion was reserved, and in the opinion thereafter written, the judge sustained his formér ruling and denied the motion for a new trial ripon the additional ground that,' ■even “ if it is to be assumed from the facts that the defendant was guilty of negligence, it would be an equally fair inference that the . deceased was likewise at fault and that his contributory negligence or the combined negligence of both led to the accident.”</p>

<p>Sales — evidence of marlcet value — sale ly sample — charge of the court as to the measure of damages.</p> <p>In an action brought to recover the damages resulting from the breach by the defendants of a contract to deliver goods ordered by the plaintiffs, there was no dispute but that the goods had not been delivered, nor but that the sale was made by sample. There was sufficient evidence of an absolute sale of a part of the goods, and the plaintiffs recovered. Upon the trial one of the plaintiffs was permitted to testify that he had visited certain establishments, and was allowed to prove what it would have cost him to procure the goods at their prices.</p> <p>Held, that while the evidence was not strictly competent evidence of value, the question asked was competent,with a view to showing the effort made by the plaintiffs to replace the goods, and that, as other and competent testimony relative to the market value was given and accepted as correct by the jury, as appeared by the verdict, the defendants were not injured by the admission of the plaintiff’s testimony.</p> <p>The sample by which the goods were sold was shown to the witnesses on -both sides, and there was a dispute as to whether it- was a sample of perfect or imperfect goods.</p> <p>Held, that it was proper for the plaintiffs to ask a witness the market value of perfect goods of that quality.</p> <p>The court charged that the measure of damages upon a failure to deliver goods sold is the difference between the contract price and- the market value; the defendants’ counsel subsequently asked the court to charge that in estimating damages the plaintiffs could not, in any view of the case, recover more than ' the difference between the contract price per yard and “ the market value of imperfect goods such as the sample submitted to the witness.”</p> <p>Held, that the charge as made was proper, and that this request was properly - denied, as one of the questions in the case was whether the sample was ,a sample of perfect or of imperfect goods, and that consequently the counsel had no right, in the request which he made, to characterize the goods as imperfect.</p>

<p>Appeal by Almira Dusenberry, one of the legatees named in the last will and testament of Albert McCord, deceased, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 9th day of May, 1895, directing that the supplemental objections filed by said appellant to the executors’ account should be disallowed, and overruling the same.-</p> <p>Albert McCord, the testator, died in 1886, possessed of personal property and seized of two houses, and in and by his will, after payment of the debts and a legacy, he bequeathed his personal estate to his five children in equal shares, gave to his wife one-tliird of the net rents of the real estate, and to his five children the remaining two-thirds, to be “ collected and paid over to my said five children by my said executors during the life of my said wife.” The said will further provides and directs that “ immediately, after the death of my said wife, or as soon as my executors shall deem it most expedient, said property to be sold,” and the proceeds divided among said five children. The will was admitted to probate and letters testamentary were granted to John J. McCord and Albert McCord, Jr., the accounting executors herein. After they had qualified and entered upon their official duties, Albert McCord, Jr., one of the executors, prepared and presented to and procured to be signed by the widow and heirs the following paper: “ We, the undersigned, heirs to the estate of Albert McCord, Sr., deceased, do, hereby agree to pay Albert McCord, Jr., the sum of thirteen dollars per week' until other arrangements may be made, for taking charge, cleaning and doing such repairs to the property as are necessary.” The executors were alloived full commissions, and in their accounts they credit themselves with weekly payments of thirteen dollars made pursuant to such agreement, which was objected to by Almira Dusenbm-y, one of the. children of the testator, who had signed the agreement, which objection, however, was overruled, and the credit allowed. This presents the question upon this appeal.</p>

<p> Insurance policy — requiring a return of the unearned premium, upon its cancellation by the company—tender.of the unearned premium by letter sufficient—a return of the policy required. </p> <p>An action was brought to recover the amount of a loss occasioned by fire to .property insured under a policy of insurance issued by the defendant to the plaintiff, which provided that it might be surrendered and also that .the company might cancel it on five days’ notice; that the unearned portion of the premium should be returned on surrender of the policy by the insured, the company retaining the customary short rate, except that when the policy was canceled by the company by its -giving notice, it should retain only the pro rata premium.</p> <p>During the existence of the policy, and on October 3, 1892, the plaintiff received from the defendant a notice that the policy would be canceled by the. company on October 6, -1892, and that the unearned premium due, if any, would be held subject to the order of the plaintiff and the return of the policy. The plaintiff paid no attention to the notice, never returned the policy, and the defend- . ant never returned the premium, and thereafter, a loss by fire having occurred, the plaintiff brought this action.</p> <p>Held, that the policy was canceled, notwithstanding the fact that the defendant had not actually paid over to the insured the unearned premium;</p> <p>That its statement-to the insured that it held the unearned premium subject to his order and to the return of the policy amounted in law to an offer to return the premium to him, and called for action upon his part;</p> <p>That such an offer' or tender was properly coupled with a demand for the return of the policy, as, by the express terms of the policy, the defendant was entitled to its return upon payment of the unearned premium;</p>

<p>Grimes —proof of good cha/racter bears directly upon the question of guilt or innocence in every case—its weight is for the ¡jury — when a crime is established beyond a reasonable doubt.</p> <p>Evidence of good character is to beconsidered as an absolute probative fact, bearing directly upon the question of guilt or innocence, no matter how direct and positive the evidence against the accused may be, and in every case the weight to be given to it is to be determined by the jury.</p> <p>A charge which substantially instructs the jury that good character is only to be considered when a reasonable doubt may arise on the evidence as to the guilt of the defendant is erroneous.</p> <p>In every case the defendant is entitled to an instruction that his guilt must be proved beyond a reasonable doubt.</p> <p>If upon a consideration of all the evidence, with such presumptions and inferences as fair-minded and intelligent men have a right to draw from facts which have been established, the jury have such a conviction .of the guilt'of the defendant that a prudent man. would act upon it ’in matters of the highest importance to himself, the jury may safely say that guilt has been established beyond a reasonable doubt.</p>

<p>Appeal by the defendant, Adolph Bernhard, from that part of: an order of the Supreme Court, made at the New York Special. Term and entered in the office of the clerk of the county of New York on .the 13th day of December, 1895, which denies the defendant’s motion to set aside the order of arrest heretofore granted in. the action.</p>

<p>Appeal by the plaintiff, James J. Hatchett, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 28th day of March, 1895, upon the decision of the court rendered after a trial at the Hew York Special .Term. .</p>

<p>Appeal by the plaintiff, The United States National Bank, from a judgment of the Supreme Court in favor of the defendant William A. Underwood, entered in the office of the clerk of the county of New York on the 24th day of April, 1894, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 11th day of April, 1894, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Gustave Heye, as sole surviving executor, etc., of Alexander M. Lawrence, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 26th day of February, 1895,- upon the report of a referee. •</p>

<p>•Contract—promise to pay when certain money is received and when certain notes are collected — obligation created thereby — where an answer contains a general denial the plaintiff must prove his case. • ■</p> <p>An action was brought against Julia Heyman, since deceased, upon a contract by which she agreed to pay Hattie S. Simm, from and after December 5, 1893, the sum of §25 a week out of §100 a week which George W. Venable had agreed to pay Julia Heyman in the period from October 5, 1892, to September 31, 1893; and further to pay §200 on March 28, 1894, as one- . fourth of the amount which Julia Heyman had received from George W. Venable between October 5, 1892, and December 5, 1892; and further to pay one-quarter of two notes of George W. Venable, each for §5,000, one payable in September, 1893, and the other in March, 1894, as soon as the notes were paid.</p> <p>The complaint alleged a breach of the contract in that Julia Heyman did not pay the twenty-five dollars per week nor one-quarter of the two notes of George W. Venable.</p> <p>The answer of the defendant admitted the making of the agreement and that Julia Heyman had received a notice requiring her to enforce her agreement with, and her notes against, George W. Venable,, and denied all the other allegations of the complaint. It also stated as an affirmative defense that Julia Heyman had received certain moneys from George W. Venable which had been disposed of as stated in the answer, but there was no admission that the money in question was received from George W. Venable under the contract ple.aded in the complaint.</p> <p>It was admitted upon the trial that the §200 due March 28, 1894, had been paid. Held, that no cause of action was established;</p> <p>That the payments to be made by Julia Heyman were contingent upon her receiving from George W. Venable the §100 a week and the money secured by the notes, and the complaint did not allege that she had received any moneys from him;</p> <p>That Julia Heyman had not agreed to collect the money covered by the contract from George W. Venable, and she could only be put in default for a breach of her contract if she refused to collect them under such circumstances as would enable the plaintiff to establish negligence on her part which deprived him of the benefit of the contract;</p> <p>That it did not appear that Julia Heyman had refused to collect the notes or that any loss had accrued because the moneys had not been collected;</p> <p>That the affirmative defense in which it was stated that certain money had been received from George W. Venable could not avail the plaintiff, as it was not stated that the money was received under this contract, and for the further reason that where a general denial is interposed the plaintiff must prove his case.</p>

<p>Cebtioeabi issued out of the Supreme Court and attested on the 5th day of April, 1895, directed to Joseph Murray and others, composing the board of commissioners of excise of the city and county of New York, directing them to certify and return to the office of the clerk of the county of New York all and singular their proceedings in relation to the removal of the relator from the office of an inspector of excise for the city of New York.</p>

Appeal by the defendant, Whipple & Co., as chief executive officer of the South and North American Lloyds, performing corresponding functions of a treasurer thereof,, from an interlocutory -judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of November, 1895, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the…

<p>Appeal by the plaintiff, Simon B. Camacho, .from a judgment of the Court of Common Pleas for the city and county of New York in favor of the defendant, entered, in the office of the clerk of said court on the 7th day of November, 1895, upon the dismissal of the complaint upon the merits, directed by the court, after a trial before the court and a jury.</p>

<p>Torts—using'' another as a shield from an-explosion—requests, to charge matter . already changed—competency of jurors—proof of the identity of the defendant with one making, admissions —scope of disparraging questions — newspaper a/rticle used as a basis for questions—results of an explosion, inconsistent with Hie plaintiff’s testimony.</p> <p>Where upon: the. trial of an action tó recover damages for a tort, the jury found that the defendant deliberately caused the plaintiff to. change his position in such a manner that, the person of the plaintiff became a protection to the person of the defendant .from an impending explosion, anticipated by the defendant but not by the plaintiff, the. court considered that the apt of the defendant entitled the plaintiff to recover. ,</p> <p>Where the court has charged fully and completely upon a point in issue, it is not bound to repeat the matter in the particular words chosen by counsel</p> <p>A juror is competent who states that, disregarding sympathy and all other considerations, he can listen to the testimony and render a verdict upon.it alone.</p> <p>The court is justified in rejecting a juror who has formed or expressed an, opinion in a case- gathered from statements of parties, or from á previous trial, although, he may testify that his judgment would not he swayed by the opinion. '■ .</p> <p>A witness may testify to the admissions of the defendant, although he does not know him personally and had never seen him before. Identity may be established in such a cage by circumstantial evidence, and even by similarity of . name. , •</p> <p>The trial judge must in his discretion determine to what extent he will allow • questions, disparaging to a witness, and not relevant to the issue. - ,</p> <p>An article written by a newspaper reporter with regard to the occurrence out of which the action grew, and containing an alleged interview with the defendant, may be used as the basis of questions put to the defendant on cross-examination, where the article itself -is not read to the jury. _</p> <p>Upon the trial of an action, in which it was claimed that the defendant used the body of the plaintiff to protect him from an explosion of dynamite, contained: in.a bag brought into the office of the defendant by an insane person, and that the purpose of the insane person was suspected by the defendant while the plaintiff was ignorant of it, it appeared that portions of the body of the defendant were injured which, upon the theory of the plaintiff ought to have been covered by the body of the plaintiff, if his statement of the relative positions of the actors in the incident was correct.</p> <p>Held, that it was impossible to estimate the effect of such an explosion, and that the court would not reverse the judgment because of eccentric results which proceeded from it. . /•</p>

<p> Negligence—injury from a jerlc, in sta/rting a cable ca/r, throwing the plaintiff down—failure of proof. </p> <p>In an action brought to recover damages resulting from injuries caused by the alleged negligente of the defendant, it appeared that the plaintiff, while riding upon a cable car, was thrown down and injured by a sudden jerk which came when the car was started, and, beyond the fact that this jerk occurred, no proof was given of negligence in the management of the car. No testimony was given as to the manner in which the cable' car was started, nor of the motion ordinarily produced by the.grip, nor of its motion after the gird had attached itself to the cable.</p> <p>'Held, that there was no proof of the negligence of the defendant which entitled the plaintiff to recover,</p>

<p>Agency — agreement to sell as agent and to remit the proceeds — a demand by the principal is unnecessary—advances for freight and storage not allowed — the title to the goods is in the principal—the agent taking promissory notes is liable for the amount thereof.</p> <p>In an action brought by principals against an agent, it appeared that the plaintiffs, merchants in New York, on the' 4th day of June, 1891, entered' into a written contract with the defendant, who resided at Minneapolis, by the terms . of which the plaintiffs constituted the defendant a selling agent of their German cement, of which the defendant agreed to sell 4,000 barrels as a minimum, at a- price of two dollars and thirty-five cents per barrel at sixty days for a certain curbing contract, and at two dollars and thirty-seven cents per barrel for all other business at three months from the date of shipment. The merchandise was to be billed by the plaintiffs to the defendant, and he was to sell it' as agent, and to bill, deliver and remit as agent, any money which he received for the cement as soon as he obtained it. For his sei'vices he was to receive whatever he could obtain beyond the prices fixed.</p> <p>The plaintiffs shipped to the defendant 4,000 barrels, of which he sold but 500, of this latter he sold, in November, 1891, and in April, 1892, 400 barrels, and received payment for the same, and in June, 1892, 100 barrels, and received notes for the same.</p> <p>Upon the trial of the action the plaintiffs recovered.</p> <p>Held, that the defendant was acting solely in a fiduciary-capacity, and that he received the proceeds of the sales as agent;</p> <p>That no demand was necessary before bringing the action, as it was the duty of the defendant, under the agreement, to remit the moneys as soon as they were received;.</p> <p>That he was not entitled to retain out of the proceeds of sale advance's which he had made for freight, insurance and storage;</p> <p>That any charges of this character were to be borne by the defendant, whose entire compensation was to be derived from his profits over and above the agreed prices;</p> <p>That the defendant took the risk of selling 4,000 barrels, and that any outlays which he made were his own loss;</p> <p>That the title to the goods was at all times in the plaintiffs, and that they had a right at the end of the season to reclaim whatever amount, of the goods remained unsold;</p> <p>That' if the defendant sold goods and took the notes of the purchasers, he was still bound to remit. the proceeds of the sale at the time fixed for remittance, whether or not the notes were paid.</p>

<p>Appeal by the plaintiff, Henry Otten, from a judgment of the Superior Court of the city of New York in favor of the defendant, entered in the office of the clerk of said court on the 16th day of August, 1894, upon the decision of the court rendered after a trial at a Special Term of said court,</p>

<p>Contract to pay the debt of another —■ good, as a compromise of a disputed claim — liability for the debt of a firm created by accepting a transfer of its assets.</p> <p>In an action brought upon a promise to pay a sum of money, it appeared, that the plaintiff had loaned to the firm of B. L. Ackermann & Sons $7,000, and had insisted that the defendant repay it upon the ground that lie was a member of the firm, of which the defendant had in fact been previously a member, h¡jiving, however, before the loan was made, turned over the business to his sons under an -agreement that they were to pay his wife a certain sum of money, and in case of their not doing so that he should have a right, to resume posses- • sion of the business, of which facts the plaintiff had no - notice. The loan to the firm was'recognized by the defendant as a valid claim against the sons at least, and he -promised, after resuming control of the business, to pay the plaintiff in consideration, among other things, that she would release the sons.</p> <p>Meld, that the agreement had a good consideration wfien viewed as a- compromise of a disputed claim;</p> <p>That it was possible that, under the circumstances, the defendant was liable for the loan as a claim upon the assets of the/firm of which he took possession upon resuming the business when he returned from Europe.</p>

<p>Criminal action — motion to change the place of trial — it is a special proceeding in the Supreme Coun't requiring the ten days’ notice, which cannot he shortened —an order shortening the time is erroneous, hut not void—the trial may proceed unless stayed^-Laws 1859, chap. 462—Code of Civil Procedure, §§ 3333, 3334, 767, 768— Code of Criminal Procedure, §§ 346, 347.</p> <p>"Where the Legislature has prescribed the time within which a proceeding should be taken, its requirements are binding on the courts,- and should be observed.</p> <p>'Time should not be shortened in any case where the Legislature has fixed the time, except as a condition of granting a favor.</p> <p>Where the facts presented upon an,application to change the place of trial of .a ■ criminal action deserve serious consideration, it is 'erroneous for the court to deny the motion peremptorily.</p> <p>, Prior to the Code of -Criminal Procedure, the proper procedure for the change of the place of trial of an indictment for a felony was by a motion made in the Court of Oyer and Terminer, where the motion could be made either by the People or by the defendant. This procedure was changed by the Code of -Criminal Procedure, and such a motion can now be made by the defendant -only, and must be made at a Special Term of the Supreme Court on at least ten days’ notice to the district attorney.</p> <p>The criminal action is not removed from the Oyer and. Terminer by the motion to change the place of trial, but that court is at liberty to proceed with the trial in the ordinary form, unless the trial is stayed in the manner provided in section 347 of the Code of Criminal Procedure.</p> <p>The motion to change the place of trial becomes a special proceeding in the Supreme Court, to be commenced by the service of affidavits and by a notice of motion, upon the service of which papers the Supreme Court acquires sole jurisdiction, and can at once do such acts' as postpone q, hearing or allow further papers to be served, but it cannot act upon the question of changing the place of trial except upon a notice of at least ten days, as prescribed in section 346 of the Code of Criminal Procedure, which time it cannot properly, by an order to show cause, shorten; but, if it does so, its' action is -erroneous, but not void, under the rule that, where a court has acquired jurisdiction by the service of due process, its action in the proceeding, while it may be mistaken and, therefore, reversible, is not void.</p> <p>The defendant has a right to say when a motion to change the place of trial of an indictment shall he made, and if the day which he fixes is so far off that a delay of the trial until that time would obstruct the administration of justice, the court may vacate the stay granted upon a proper motion for that purpose, or may impose an earlier hearing of the motion as a condition of allowing the stay to remain in force; but the court has no power to fix any other time than that named by the defendant for the hearing of the motion.</p>

<p>Appeal by the defendant, William W. McLaughlin, from a judgment of the Court of Oyer and Terminer- of the county of Hew York, rendered on the 19th day of June, 1895, convicting him of ..the crime of extortion, with notice of an intention to bring up for review upon such appeal an order entered in the Hew York county clerk’s office on the 20th day of May, 1895, vacating a stay of proceedings, and denying the defendant’s ■ motion for a change of the place of trial from the county of Hew York to some other county.</p> <p>The crime was alleged to have been- committed in the city of .Hew York, Hovember 21, 1891,,and to have consisted in extorting fifty dollars from one Seagrist by means of a threat to do an unlawful injury to his property. (Penal Code, §§ 552, 553.)</p> <p>The defendant was, at the time, a police captain in the first precinct of the city of New York, and the threat was claimed to have been made by one Burns, who was at the time a wardman in the defendant’s precinct.</p> <p>Seagrist had for several years been in the business, in the city of New York, of tearing down old buildings. The indictment was filed Marclí 18, 1895, and in the first four counts charged in different forms the crime of bribery,, and in the fifth count charged the crime of extortion, in the following language, in brief: “ The said William W. McLaughlin * * * $50 in money, * * * of one Francis W. Seagrist, the younger, a dealer in second-hand building materials, who was * * * lawfully engaged in business as such and was * * * employed in demolishing and tearing down, and causing to be demolished and torn down, a certain building situated in the first ward * * * hiring, employing and using'therein and therefor divej-s * * * laborers and workmen, feloniously did obtain from the said Francis W. Seagrist, the younger, with his consent, such consent being * * * induced by a wrongful use of fear, to wit, fear induced * ‘ * * by means of a threat - * * to do an unlawful injury to the property of the said Francis W. Seagrist, the younger; that is to say, to injure, annoy, harass and obstruct him * * * in his said business, and prevent him from properly, freely and profitably carrying on the same, and especially to unlawfully harass, interfere with, obstruct and impede the said Francis W. Seagrist, the younger, whilst he should be so * * * ■ engaged and employed in the. demolishing and tearing down of the said building ' * * * and to prevent and 'hinder him from properly performing, the work, labors and duties necessary and requisite therefor, unless he * * * gave the said William W. McLaughlin the said sum of money.”</p> <p>■ There have been two trials of the defendant under this indictment. The first trial began April 15, 1895, and continued until May 11, 1895, when the jury disagreed and were discharged. Upon the first trial, at the close of the People’s case, the district attorney elected to proceed only upon the fifth count, for-the crime of extortion. After the disagreement and discharge of the jury on the first trial, the court directed that the second trial be commenced on Monday, May 20, 1895. On Saturday, May 18, 1895, counsel for the defendant served upon the district attorney notice of an application under section 344, et seg/., Code of Criminal Procedure, to be heard at a Special Term in New York city, June 3, 1895, to remove the indictment and action from the New York Oyer and Terminer to the Oyer -and Terminer of some other county, upon the ground that a fair and impartial trial could not be had in the county of New York. With this notice of application was also served an order made May 1T, 1895. by a justice of the Supreme Court, residing in Brooklyn, staying the trial of the indictment under section 34J, Code of Criminal Procedure, until such application could be made and decided. Such order staying the trial was indorsed upon the papers- and filed in New York county as required by section 348. On Monday morning,' May 20, 1895, about seven o’clock, the district attorney served upon defendant’s counsel an order made by a justice of the Supreme Court residing in New York city, requiring the defendant to show cause in the New York Special Term at ten-thirty o’clock the same morning, why the time to. make such application for removal should not be shortened from June 3, 1895, when it was noticed to be heard, to May 20, 1895, and why the application should not be then and there made and heard. At ten-thirty o’clock of that day the defendant appeared by counsel before the Special Term in New York, for the special purpose of objecting, and he did object to’ the jurisdiction and- power of -the court to shorten the ■ time for making the application for removal .orto, compel the- instant hearing of such application. These objections were overruled by the court and the defendant was ordered forthwith to make'.the application for, removal. The defendant refused to make the application until the time for which it had been noticed, June 3, 1895. The court, on the application of the district attorney, then denied the application for removal and vacated the order staying the trial made by the . Brooklyn justice. This order was made and entered, and thereupon the second trial was proceeded with. At the commencement of this second trial the defendant objected to the jurisdiction of the court to proceed, on the ground that the order staying the trial was still in force, and that the New York Special Term had no power to vacate the stay, and its order doing so was void.' This objection was, ■ overruled and the trial was proceeded with. This trial continued until June 8, 1895, when it resulted in a verdict of guilty of the. crime of extortion. On June 19, 1895, judgment was rendered that the defendant be imprisoned in the State’s prison in Sing Sing for two years and six months. A certificate of reasonable doubt was made by another justice of the Supreme Court residing in Brooklyn, and the defendant was thereupon admitted to bail pending the appeal to this court.</p> <p>A separate appeal was taken from the order made by the Hew York Special Term denying the defendant’s application to remove the indictment and action to another county for trial, and vacating the order made by the Brooklyn justice staying the trial. That appeal is also before this court, having been argued separately from the appeal from the judgment. Many questions are raised by the defendant upon this appeal from the judgment, and the facts relating to these questions will be referred to in considering the questions themselves.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 27th day of September, 1895, directed to O. H. LaGrange, James R. Sheffield and Austin E. Ford, fire commissioners of the city of Hew York, commanding them to certify and return to the office of the clerk of the county of Hew York all and singular their proceedings in relation to the dismissal of the relator from the position of fire marshal of the city of Hew York.</p>

<p>Ib’usts— agreement by one, a tenant in common and uncle of Ms co-tenants, to vurchase in the realty for their common benefit—vresumption in favor of the co-tenants — Statute of Frauds.</p> <p>In an action brought to procure the specific performance of an oral agreement relating to real property, it appeared that the defendants were the executors of Robert H. Arkenburgh, who, with four other persons, of whom Arkenburgh was the uncle, each owned an undivided fifth interest in certain property in New Jersey as tenants in common, of which a sale in partition was about to be had' Which would have resulted in a loss; that Robert H. Arkenburgh promised that if the other parties would not bid he would buy in the property, pay all assessments and taxes thereon, and would divide the surplus of any proceeds thereof, after he was reimbursed, equally between himself and the other tenants in common. The property was bought in by Arkenburgh who took the title and died about four years later holding the title to the property, which after his death was sold under a power of sale contained in his will.. '</p> <p>The plaintiff in. the present action, one of the original co-tenants, sought to impress a trust upon the .land which would entitle her and the other tenants in common to share in the proceeds. The executor of Arkenburgh admitted the trust, while the executrix, who appealed from a judgment sustaining it, ignored it in her answer and set up the Statute of Frauds as a defense to the action. j3eld, that the plaintiff was entitled to her share of the proceeds;</p> <p>That the presumption is ordinarily that a tenant in common who purchases an Outstanding interest does so for the benefit of all the proprietors, and that when, in addition to this presumption, there are ties of blood and a distinct promise by an uncle that he would purchase for the benefit of his nephews and nieces, there can be no doubt of the propriety of holding that he made his purchase as trustee;</p> <p>That, in view of the- fact that after the death of Robert H: Arkenburgh his representatives had recognized the rights of the other -tenants in common, and sold the laud after consultation with them and in partial execution of the decedent’s agreement, equity would impress a lien upon the proceeds of the sale which, being personalty, were exempt from the operation of the Statute of Frauds.</p>

<p>Cross-appeals by the defendants, The Gorham Manufacturing Company and another, from an injunction judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the. county of Hew York on the 7th day of December, 1895, upon the decision of the court rendered after a trial at the Hew York Special Term; and by the plaintiff, Lillie J. Earle, from so much of said judgment as fails to award to her any damages sustained by her by reason of the taking and detention of the chattels and personal property mentioned and referred to in the judgment herein, in addition to the injunction granted against the defendants-appellants.</p> <p>In and prior to August, 1893, Ferdinand P. Earle was lessee of the Hotel Hew Hetherland and the Hotel Hormandie in the city of. Hew York. Prior to August 3, 1893, he bought certain silverware of the defendant Gorham Manufacturing Company, gave his notes therefor, amounting to over $35,000, and on said date executed a mortgage on said silverware as security for their payment. Thereafter more silverware was purchased by Mr. Earle from the defendant company to the amount of about $3,500. In January, 1894, an agreement was entered into by Mr. Earle, the defendant company and two other corporations, creditors of the former, whereby, among-other things, a series, of notes was given to replace those then held by the defendant company, and to cover the price of the silver subsequently bought, and interest accrued. Hotes were also given to the other corporations, representing existing indebtedness; and the whole was secured by a mortgage, executed to the defendant Robinson as trustee, of the lease of the Hotel Hormandie, and all property of every nature in said hotel, more particularly set forth in a schedule annexed. In case of default in the payment of any of the notes, and the continuance thereof for thirty days, authority was given to the mortgagee to sell the mortgaged property, pay all the notes,, with costs and expenses, and return the overplus, if any, to the mortgagor. This mortgage did not cover the silverware, but there was a provision therein “ that none of the present security now held by said three corporations, or either of them, is to be changed in any respect; but that this extension of the terms of payment is in consideration of the payment of one dollar ($1) and the giving of this mortgage as further collateral security thereto.”</p> <p>In March, 1894, all Mr. Earle’s right, title and interest in and to the mortgaged silverware was sold on execution, together with other-property, to the plaintiff.</p> <p>The first of the new notes payable to the defendant company fen. due on April 5, 1894. On this date a balance was due thereon, and: ■ the company, on April sixth, took possession by a city marshal of all the silverware covered by the mortgage which was then in the-. Hotel Hew Hetherland, being $34,000 worth or over. On April twenty-third Mr. Earle paid the balance due upon the note of April, fifth, and it was surrendered to him. There- is a conflict of testimony as to what occurred between Mr. Earle and the representative-of the company when this note was paid. ' The former states that, the company agreed to relinquish possession of the silverware, which, the latter denies. Since this time all notes have been 'paid to the-defendant company ‘ as. they fell due, the payments amounting to-about $14,000. After the payment on April twenty-third the. attorney for the defendant company demanded either that Mr. Earle- or the plaintiff redeem the silverware by paying in full' the debt to-the company, ■ or deliver to the marshal a certain portion thereof which had been removed from the Hotel Hew Hetherland before he-took possession. This was not done, and on May eighteenth a sale-of the silverware was advertised for May twenty-sixth. On May twenty-third a temporary injunction order against the sale wasgrante'd, which was continued during the pendency of the action by order made June 1, 1894. The judgment .appealed from enjoins the defendants, appellants, their agents or servants, from inter fering- or intermeddling with the plaintiff in the possession of the silverware covered by the mortgage of August 3, 1893, or selling, assigning, transferring or inctimbering the same, until default in the payment of some one of the notes set forth in the mortgage dated.. ' January 2, 1894.</p> <p>Further facts are stated in the opinion.</p>

<p>Appeal by George H. Davidson, a junior attaching creditor, from an order of the Supreme Court, made at the New York' Special Term and entered in the office of the clerk of the county of New York on the 13th day of February, 1896, denying his motion, to vacate an attachment obtained by the plaintiffs in the action.</p>

<p>Appeal by the plaintiff, Louise Wingrove, née Unger, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of January, 1896, adding to an order made at another Special Term held by a different judge, a provision to the effect that plaintiff deposit the pass book mentioned in her complaint with the' clerk of the court within two days after the service of a copy of such order as amended.</p>

<p>Elevated railroads of New York — a witness cannot testify that their construction increased the value of property.</p> <p>In an action brought by an abutting owner to recover, of the elevated railroad companies of New York, damages for the taking of easements appertaining to real property, it is improper .to allow the defendant to ask a witness what effect the construction of the elevated railroad had upon the value of the premises. That question is one to be decided by the court or á jury, and not by the opinions of witnesses. ■</p>

<p> Vendor and purchaser—marketable title—encroachment by a building of two inches on the adjoining lot—burden of proof as to adverse possession—payment by the vendor for repairs made by the vendee. </p> <p>In an action brought to recover damages for a failure upon the part of the defendant to convey to one Hoik a marketable title to premises which the defendant had agreed to sell to him, it appeared that the premises in question had a building upon them which had been erected for more than twenty years, which encroached by about two inches upon the adjoining lot; that Hoik went into possession and made some repairs upon a statement by the defendant that if the title failed he would pay for the repairs; that the adjoining lot was owned by infants; and title to the two inches could not be obtained from them.</p> <p>Held, that as there was no question but that the encroachment existed the vendee was justified in refusing to complete the purchase;</p> <p>That the burden of showing that there had been an adverse possession of the strip in question,which by lapse of timé had ripened into a title, rested upon the vendor;</p> <p>That a vendee would not be required to complete a purchase where it appeared that there was a reasonable objection to the title and no clear and satisfactory proof that such objection was without foundation;</p> <p>That as it appeared that the defendant had induced the vendee to proceed with his repairs upon a promise to pay for them if the title failed, the defendant, the title having failed, was bound to perform the promise.</p> <p>Barrett and O’Brien, JJ., dissented.</p>

<p>Appeal by the defendant, the Manhattan Investment and Construction Company, from a judgment of the-Superior Court of the city of New York in favor of the plaintiffs, entered in the office of the clerk of said court on the 15th day of April, 1895, upon the decision of the court rendered after a trial at a Special Term thereof.</p>

Appeal by the plaintiff, Augusta G. Genet, from a judgment of the Superior Court of the city of New York in favor of the defendant, entered in the office of the clerk of said court on the 1st day of July, 1895, upon the decision of the court rendered after a trial at a Special Term thereof.

<p>Costs — imposed as terms for opening a, default — must be paid before another similar action can be brought.</p> <p>Upon an appeal from an order made in an action denying the defendant’s motion for a stay of proceedings until the costs of an action in the Superior Court were paid, it appeared that, in an action brought by the plaintiff as adminis • trator in the Superior Court to recover damages resulting from the death of his. intestate, caused by the alleged negligence of the defendant, the complaint was; dismissed upon a default. Leave to open the default was granted the plaintiff upon the payment of costs, which the plaintiff did not pay, and judgment was-entered dismissing the complaint, with costs.</p> <p>Subsequently the plaintiff commenced a new action in the Supreme Court, the. complaint in which was substantially the same as that in the action brought in the Superior Court.</p> <p>Held, that the plaintiff could not maintain an action in this court, evidently designed to evade the terms imposed by the Superior Court, unless he complied with those terms and paid the costs imposed.</p>

<p>Motion by the relator, Jacob Simermyer, for a reargtiment of the ^appeal pending in the Appellate Division of the Supreme Court for -the first judicial department. (Reported in 1 App. Div. 434.)</p>

<p>Appeal by John J. McCoolc from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the lJth day of February, 1896, denying his motion to vacate an order made in the action on the 4th day' of December, 1895, directing him to appear before a referee in said order appointed and to give his deposition to be used by the plaintiff upon a motion to be made by her for an attachment against the Atchison, Topeka and Santa Fe Railroad Company.</p> <p>The plaintiff, being about to apply for an attachment against the defendant, the Atchison, Topeka and Santa Fe Railroad Company, a non-resident corporation, obtained an order to take the deposition of a person, who refused to make an affidavit, to be used on the application for the' attachment. In addition to the order and the papers upon which it was granted, there were served-two subpoenas, requiring the witness to appear before the referee named in the order, one requiring him to appear personally, and the other a subpoena duces tecum addressed to him individually and-as receiver of the railroad company. Thereafter a motion was made to vacate the order and set aside the subpoenas; and it is from the order denying the motion to vacate that this appeal is taken.</p>

<p>Appeal by the'defendant, Robert E. Westcott, as president of the Westcott Express Company, from a judgment of the Superior Court of the city of New York in favor of the plaintiff, entered upon the verdict of a. jury, and also from an order denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover damages resulting from personal injuries to the plaintiff alleged to have been caused by the negligence of the defendant. No question is made by the appellant but that there was sufficient evidence to support a verdict for the plaintiff, so far as negligence on the part of the defendant, and the absence of contributory negligence on thé part of the plaintiff, were concerned.</p> <p>The questions raised on this appeal relate to alleged errors in the reception of evidence and in the charge of the court, and to the verdict of the jury in that the damages were excessive.</p>

<p>JPraud—false representation — attesting a forged assignment of a stock certificate — acts not binding a, corporation.</p> <p>In an action brought to recover damages, resulting from the defendants’ testator’s fraudulent,attestation of an assignment of stock, it appeared that in May, 1873, a person named Westfall owned a certificate for fifty shares of stock in the Forty-second Street and Grand Street Railroad Company in New York; that about Appil 37, 1887, a person named Alien, the transfer agent of the company, who had in his possession a number of blank certificates of its stock signed by -its former president, filled out one of the blank certificates to correspond with Westfall’s real certificate, signed it as transfer agent, wrote upon it the name ■of Charles Curtiss as treasurer, placed the company’s seal 'upon it, and then wrote Westfall’s name as a signature to the blank assignment which was , printed on the back of the certificate. Allen then applied to the plaintiff for a loan, offering the certificate as security for his note, which the plain tiff refused to accept unless Westfall’s signature was attested. Allen then procured Charles Curtiss, the defendants’ testator, to sign the assignment as a witness to the forged signature of Westfall, upon the faith of-which the plaintiff accepted the . certificate, the signature of Charles Curtiss being known to its cashier.</p> <p>The note was not paid and the present action was brought to recover the damages resulting from the fraudulent attestation by Charles Curtiss as to the signature of Westfall, the complaint alleging that the plaintiff had relied upon the representation thus made;, that it was false, and that the plaintiff had suffered damage because of it.</p> <p>Meld, that the action could be maintained as one for fraud;</p> <p>That the act of Charles Curtiss was a representation by him that the signature to the assignment of the certificate was made by Westfall in his presence, or was acknowledged by Westfall in his presence, and that he had become a wit-mess at Westfall’s request;</p> <p>That as Charles Curtiss knew that Allen intended to use the certificate to procure a loan, and that his signature would be relied upon by the party making the loan, and falsely asserted that a material fact was true and thereby induced another to act upon the fact to his prejudice, an action for deceit would lie against him or his estate;</p> <p>That the acts of Allen as treasurer and of Charles Curtiss who was then president of the railroad company in illegally assigning the stock, were not within the scope of their employment and did not bind the company.</p>

<p>Appeal by the defendant, J. George Grauer, from a'judgment of the Supreme Court in favor of the. plaintiff, entered upon the verdict of a jury rendered by direction of the court, and also from an order denying the defendant’s motion for a new trial made upon the .minutes. (</p> <p>The action was brought upon a promissory note for $1,200, alleged to have f>een made by Mary Hines, and indorsed by John Graff, M. Gartner, the defendant Grauer,. and the Spencer, Needham Company arid held by the plaintiff.' The action was in form against the maker and all the indorsers, but the trial was had and the verdict was ordered against the defendant Grauer alone.</p> <p>Upon the trial the plaintiff gave evidence tending to show that the indorsement of Grauer upon the not-e was in his handwriting. Indeed, his indorsement was hardly denied in his answer. Plaintiff also gave evidence tending to show that he purchased the note of the Spencer, Needham.Conapany, and paid full value for it before its maturity, that it was duly protested when due and notice given to defendant Grauer. The note, was put in évidence, and the plaintiff rested. The defendant Grauer was sworn, but would riot say that the’ indorsement of his name on the note was not in his own handwriting.</p> <p>The defendant offered to prove that the note was never given by the alleged maker thereof; but the court held that such proof was immaterial so long as it appeared -that the plaintiff was a bona fide •purchaser of the note before maturity. The defendant stated that he made no requests to go to the jury, and thereupon the court ordered a verdict for the plaintiff. There was no exception to the direction of the verdict, but there was an exception to the denial of the motion for a new trial.</p>

<p>Appeal by the plaintiff, Arthur Robertson, from an order of the Supreme Court, made at the New York Special Term, opening the default and inquest taken in the above-entitled action at a' trial term-of the court, and setting the case down for trial at a future day.</p> <p>The case was called January 2, 1896, and by consent of counsel was set down for trial January 10, 1896, which was Friday. The case was reached January 10, 1896, and called for trial An application was made by the managing clerk of the defendant’s attorney to postpone the trial and set the case down for some day the following week or place it on the next' clerk’s calendar. He produced his affidavit, showing that defendant’s attorney had been obliged to go to Chicago January T, 1896, to engage in the trial of a case in the United States court and that he was actually engaged in such trial and would not reach the city of New York earlier than the following Sunday night or Monday morning. The plaintiff’s counsel was willing that the case be postponed until the following week if it could then be tried and prevented from going to the foot of the calendar. The court refused to make such disposition of the case, holding that the application for the postponement was insufficient-under the rules. The trial was then proceeded with. -A jury was impaneled, and thereupon the managing clerk of the defendant’s attorney consented that the court might order a verdict without any evidence being given by the plaintiff, and the verdict was so ordered.</p> <p>A motion was promptly made to set aside the inquest, restore the ' case to the calendar and set it down for trial. Upon this motion it appeared that the defendant’s attorney on the day before the cause was originally called and set down for trial, Friday, January 10, 1896, instructed his managing clerk to keep the whole week commencing January 10, 1896, clear of court engagements as such attorney must be absent from New York city and in Chicago during that week in the trial of a cause in the United States court; that ■ when the case was called, however, such managing clerk consented to the cause being set down for Friday, January 10, 1896, upon the understanding and assurance (but not of the court) that the case ■ could not possibly be reached on that day, but it would then take its place early in the following week, and would be likely to be tried on Monday, January 13, 1896. Raving made this disposition of the cause he at once informed defendant’s attorney what he had done, and the attorney expressed at the time his fear that .through the stringency of the new rules the case might come up on Friday and it might be difficult or impossible to have it held until the following Monday. The managing.clerk, however, expressed the opinion that setting the case down for Friday would result in its not coming to trial until the following Monday. The attorney, therefore, left for Chicago and was away when the case came on for trial on Friday, January 10, 1896. Rpon this motion it also appeared that it was not the intention of the parties that the consent of defendant to .a verdict being ordered for plaintiff should in any way interfere with defendant’s motion to be thereafter made to set aside the inquest and have the case set down for trial at a future day. The managing clerk so testified and plaintiff’s attorney did not deny it.</p> <p>The court made an order February 5, 1896, setting aside the inquest upon the payment of ten dollars costs, and setting the cause down for trial February 17, 1896, and from this order plaintiff appeals.</p>

<p>Injunction — compelling the display of an advertising curtain in a theater.</p> <p>Upon an appealby the plaintiff from an order denying a motion for an injunction pendente lite, it appeared that the defendants, lessees of a theater, agreed tax allow the plaintiff to. put up and display, at his own expense, in front of the theater stage, a curtain to be covered with advertisements; that, after the plaintiff had prepared the curtain and had made certain payments " upon the contract, the defendants refused to allow the curtain to be displayed</p> <p>Meld, that as none of the advertisements appeared to be objectionable, and as the plaintiff had incurred expense and paid the money agreed to be paid upon his., ps¡rt,- and as an action for damages would hot be. an adequate remedy because of the difficulty in ascertaining the damages, and also because, the defendants appeared to be irresponsible, the plaintiff was entitled to equitable relief, requiring the defendants, if -they continued to conduct the" theater, to -use the curtain, and forbidding their use of any other curtain in the location-where the contract provided that the curtain in question should be used..</p>

<p>Appeal by the plaintiff, Mark H. Eisner, from so much of an interlocutory judgment of the. Supreme Court in favor of the defendant, Mary E. Guriel, entered in the office of the clerk. of the county of New York on the 14th day of January, 1896, upon the decision of the court rendered after a trial at the New York Special Term, as overrules the plaintiff’s demurrer to the second defense contained in the answer of the defendant, Mary E. Guriel.</p> <p>The action was brought for the partition of the premises No. 322 East Fourteenth street, in the city of New York. The complaint alleges that the premises were formerly owned by Eliza Eisner, the mother of the plaintiff and of the defendant, Mary E. Guriel; that by her last will and testament they were devised to the plaintiff and the said defendant during their joint lives and the lifetime of the survivor ; that upon the death of the survivor the premises were directed to be sold and the proceeds paid over, one-eiglith part to each of six named children of the testatrix other than the plaintiff and the defendant, Mary E. Guriel, one-eighth part to the lawful issue of the plaintiff, and one-eighth part to the lawful issue of the defendant, Mary E. Guriel; and that in case of the death of any of said children before the time specified, their issue were to take collectively the share of the parent. Louis A. Eisner, one of "the six children above mentioned, predeceased the testatrix, leaving two sons. These two grandchildren and the five surviving children were made parties defendant; but children of the said five surviving sons and daughters of the testatrix and also of the defendant, Mary E. Guriel, were not made parties. The second defense in the answer of the defendant, Mary E. Guriel, alleges a defect of parties on account of this failure.</p> <p>Other facts are stated in the opinion.</p>

<p>. Appeal oy the plaintiffs, Hipólito Dumois and others, from a final judgment of the Court of Common 'Pleas for the'city and county of Hew York in favor of the defendants, entered in the office of the clerk of said court on the 21st day of December, 1895, • dismissing the complaint, and also from an interlocutory judgment entered in said clerk’s office on the 25th day. of Hovember, 1895, upon the decision of the court rendered after a trial at a Special Term of' said court sustaining the defendants’ demurrer to the first cause of action contained in the amended complaint.</p> <p>Plaintiffs’ first cause of action alleges that the defendants leased to the plaintiffs and other parties all their interest in the easterly half of Pier 12, East river, and in the whole of Pier 13, East river, together with all their rights of wharfage and cranage, and all other rights connected with the use of said piers, for a period of five years from January 1, 1891; that previously to the execution of this lease the city had. unlawfully erected and maintained upon the westerly half of Pier 12 a nuisance, namely, a dumping board, and that an action brought by the lessors was then pending to compel the city to remove this dumping hoard, and that the lease contained a covenant that nothing therein should prejudice or affect that suit. The complaint then goes on to state that the plaintiffs are the successors in interest of all the other parties who were originally lessees; that since the execution of the lease, to wit, on January 6, 1894, the defendants, Without the knowledge of the plaintiffs, commenced an action against the mayor, aldermen and commonalty of the city of Hew York to recover damages “for the use and occupation of the easterly half of said Pier/12” by the street cleaning department for the purpose of a dump, claiming that they were entitled to wharfage accruing from the easterly half of said Pier 12, and to one-lialf of the wharfage accruing from the outermost end of said pier, and charging that the city had erected upon the westerly half of the said pier a dumping board which diminished the wharf-age which would otherwise have accrued to them, etc. It further avers that the complaint in said latter action alleged that the present defendants were entitled to the wharfage for the easterly half of said pier, whereas the present plaintiffs were so entitled from and •after January 1, 1891, when their lease began; that this action was settled by a payment of $400 a month from May 1, 1885, to January 1,1894, with interest on the payments from their respective dates, and on the whole sum from January’1, 1894; and that .$14,400 of this amount, or the payments accruing from January 1, 1891, to January 1, 1894, represented damage suffered By the plain- . tiffs, and was paid to the defendants to and fpr their use. What became of the original suit referred to is not stated. The judgment demanded was $14,400, with interest on $400 from February 1, 1891, and from the first of each succeeding month during said period, and on the whole amount, with the interest already accrued, from January 1, 1894. This cause of action was demurred to upon the ground that it did not state facts sufficient to constitute a cause ■of action.</p>

Appeal by. Moses Weil and another, as executors, etc., of Abraham Ostheim, deceased, from an order of the Surrogate’s Court of the county of New York, entered- in said Surrogate’s Court on the 10th day of October, 1895, directing said executors to pay over to the guardian of an infant legatee twenty-five dollars per month during the next ensuing three years for the support and maintenance of the infant.

<p>Appeal by the plaintiff, Maggie Pratt, by Peter Andreoli, her guardian ad litem, from an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of ¡New York on the 4th day of February, 1-896, denying her motion, for. leave to. enter judgment in the action upon the report of a referee; also from ah order entered in said clerk’s office on the 3d day of February, 1896, vacating so much of an order of reference as appointed the referee therein named, and appointing a new referee to hear and determine the action.</p> <p>This action was brought by the plaintiff against the defendant, her husband, for a judicial separation from bed and board on the ground of his abandonment and non-support of her. -</p>

Certiorari issued out of the Supreme Court and attested on the 7th day of December, 1895, directed to Theodore Roosevelt, Avery D. Andrews, Andrew D. Parker and Frederick D. Grant, composing the board of police commissioners of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings which resulted in the dismissal of the relator from the position of captain of the twenty-fifth…

Appeal ¡by the defendants, Spencer S. Bullis and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of June, 1895, upon the decision of the court rendered after a trial at the New York Special Term, and also' from the decision upon which said judgment was entered.

<p>Appeal, by the defendant, the Magnolia Metal Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of February, 1896, denying the defendant’s motion to compel the plaintiff to pay the sheriff’s fees and disbursements and to direct said sheriff to deliver forthwith to the defendant its property in his possession by virtue of a warrant of attachment.</p>

<p>Partition—form of demurrer to an answer by an executrix claiming dower as an individual—-a person named in the summons as executrix may appear and defend as an individual — the Statute of Limitations, that dower is lost unless the dowress enters in one year, must be pleaded.</p> <p>The complaint in an action, brought to procure the partition of certain real property (to which Susie S. Weeks, described as “ executrix under the last will and testament of Alexander A. Ogsbury, deceased, was made a party defendant”), alleged, among other things, that Alexander A. Ogsbury, formerly the husband of Susie S. Weeks, died seized of an estate of inheritance in a portion of the premises; that he left a will by which his interest in the premises was devised tea 1 trustee in trust to pay the net income to Susie S. Weeks, in lieu of dower, during her life, so long as she should remain his widow; that upon her death or marriage the premises were to pass to the plaintiffs and the defendant William L. Ogsbury; that the widow remarried; that her name was now Susie S. Weeks, ■ and that thereby all the right, title and interest of Alexander A. Ogsbury or his trustee in the premises became vested in the plaintiffs and the defendant William L. Ogsbury.</p> <p>The defendant Susie S. Weeks did not answer as executrix, but as an individual. She admitted the provision of her husband’s will, denied that she had ever received any income from the trust estate, denied that she ever elected to take the provision of her husband’s will in lieu of dower or that his will ever became operative to deprive her of dower; she admitted her remarriage, alleged that her former husband was seized during coverture of an estate of inheritance in the premises and claimed her dower.</p> <p>The plaintiffs demurred “to the counterclaim set forth in the amended answer * * * on the ground that it appears upon the face of said counterclaim that the same does not state facts sufficient to constitute a cause of action.” The demurrer was overruled, and the plaintiffs appealed both from the order overruling the demurrer and from the interlocutory judgment.</p> <p>Held, that an appeal did not lie from the order, but only from the interlocutory judgment;</p> <p>That the demurrer was bad in form;</p> <p>That the answer of Susie S. Weeks was a defense and not a counterclaim;</p> <p>That consequently the demurrer should have been put upon the ground that the answer was insufficient in law upon its face;</p> <p>That Susie S. Weeks had a right to controvert the allegations of the complaint, in effect, that because of her marriage her interest in the premises had become vested in others, as stated in the complaint;</p> <p>That Susie S. Weeks, although described as executrix, had an interest in the action as an individual, and was in. her individual capacity a necessary party thereto, and had a right to set up her individual rights in the subject of the action;</p> <p>That while, as a general rule, a person not named in the summons cannot appear- and defend, yet, if he does so, the proper remedy of the plaintiff is to move-to set aside his appearance;</p> <p>That, if the plaintiffs had a right to invoke the statutory provision, that a widow loses her right of dower when there is a testamentary provision made for her-in lieu of dower, unless she enters upon the land and commences proceedings, to recover dower within one year, it was the duty of the plaintiffs to have-pleaded the statute it being a Statute of Limitations,</p>

<p>Appeal by defendant, William Simpson, from' a.judgment of the Court of Common Pleas for the city and county of New York.in favor of the plaintiff, entered in the office of the clerk of said court on the 10th day of December, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the- 10th day of December, 1895, denying the defendant’s motion for a new trial made npon the minutes.</p>

<p>Place of trial—changed for the convenience of witnesses to a county in which neither pa/i'ty resides — Qode of Oivil Procedure, §§ 983, 988, 98,4, 987.</p> <p>Where an action is transitory in its nature the court has power to change the place .of trial to another county to suit the convenience of witnesses, although that county is mot the county in .which either of thé .parties to the action resides.</p>

<p>Assignment for benefit of creditors — an express trust which on the death of assignee vests in the Supreme Court—it need not appoint the personal representative of the assignee his successor—-an accounting and dischcurge of the sureties — Laws 1882, chap. 185; 1877, chap. 466, § 10; 1885, chap. 380.</p> <p>An assignee for creditors is a trustee of an express trust.</p> <p>Where an assignee for the benefit of creditors dies the trust vests in the Supreme Court, under the provisions of chapter 185 of the Laws of 1882, and does not vest in the personal representative of the deceased assignee.</p> <p>Section 10 of chapter 466 of the Laws of 1877, known as the Assignment Act, does not require the court to appoint the personal representative of the deceased assignee.</p> <p>Where an assignee has died, the court, in appointing his successor, should direct that the personal representative of the deceased assignee account for his proceedings and turn over to the new assignee the property of the estate, and that thereupon his sureties be discharged.</p>

<p> Where a deed is made to executors, “ their heirs and assigns,” the grantees take as individuals. </p> <p>Upon the submission of a controversy upon an agreed' statement of facts, it appeared that Frederick Wagner, by his will, appointed as his executors the defendant and Catharine Wagner; that, after they had qualified, Mary Kelly ■ conveyed by deed certain premises to them as executors, and to their heirs and assigns forever, , similar language being used in the habendum clause.</p> <p>Subsequently,. Catharine Wagner having died, the defendant, as sole surviving executor of Frederick Wagner, entered irito a contract with the plaintiff to sell him the premises conveyed by Mary Kelly, the title to which the plaintiff refused to accept, upon the ground that the deed of Mary Kelly conveyed the premises to the defendant and to Catharine Wagner as individuals, and that ¡ the defendant alone as survivor could not convey.</p> <p>Held, that the deed of Mary Kelly was a deed to the grantees as individuals, and that the words, describing them respectively as executor and executrix of Frederick Wagner, constituted merely a descriptio personarum;</p> <p>That this view was supported by the fact that the deed was made to run to their heirs and assigns and not to their successors;</p> <p>That even if it had been shown that the property conveyed was bought by them with the money of the estate of which they were executors, or that the conveyance was taken by them while they were acting in their representative •capacity, it was doubtful whether these facts would have made any difference in the construction to be given to the words of the deed.</p>

<p>Stipulation in a Lloyds fire insurance policy issued, by agents that an action thereon must be against the agents, is not against public policy — the underwt'iters are bound. •</p> <p>The complaint., in an action brought upon a contract of insurance, made between the plaintiff and the defendants as agents of certain underwriters doing business as the Metropolitan Lloyds of New York city, alleged that the defendants, acting as attorneys for the underwriters, covenanted to insure certain property for §1,000, agreeing that in case of a loss by fire the defendants should pay to the plaintiff $1,000 or the amount found due and payable under the contract upon presentation of the proofs of the loss; that a loss had occurred, the amount of it; that defendants had failed to pay it, and that, pursuant to the contract, it was agreed that the underwriters should pay the plaintiff the loss in equal proportions, share and share alike.</p> <p>The complaint then contained the following statement of a provision contained in the policy: “No action shall be brought to enforce the provisions of this policy except against the general managers as attorneys in fact and representing all of the underwriters, and each of the underwriters hereby agrees to abide the result of. any suit so brought as fixing his individual responsibility hereunder.”</p> <p>The defendants interposed a demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action.</p> <p>Held, that the action could be maintained;</p> <p>That, as the contract contained provisions which were evidently intended to bind the defendants personally, they were liable personally upon such covenants, although they executed the instrument only as agents;</p> <p>That the provisions of the contract, as alleged in • the complaint, tha’t no action should be brought to enforce the contract except against the defendants as - attorneys in fact and as representatives of all the underwriters, was valid;</p> <p>That all stipulations made by parties for the government of their conduct or the control of their rights in the trial of a cause or in the conduct of a litigation would be enforced by the courts;</p> <p>That the clause in question did not oust the court of jurisdiction, but was, in effect, an agreement that the fact of the liability of the underwriters and the amount to be paid by each one, in case of a liability, should be ascertained in and by this action;</p> <p>That, as the number of underwriters was large, such a course would decrease the expense which would be involved in making them all parties;</p> <p>That the court was authorized to fix in the present, action the sum to be paid and might apportion it among the principals, and, if it should' appear that the defendants were personally liable, might thus hold the agents with or without a judgment apportioning the amount to be paid by the several principals;</p> <p>That each underwriter would he bound by "the judgment, because, although not a party to the action, each had, by the terms of the contract, agreed to abide the result of the action;</p> <p>That while it was true that specific performance could not be enforced in equity of a contract by which parties agreed to submit their differences to arbitration, yet, if the contract was carried out, the parties would be bound by the result thus arrived at;</p> <p>That, even as thus stated, the principle of the rule should not be extended.</p>

<p>Contract of guaranty —■ intention of the pm'ties controls —paroi evidence inadmissible where the terms a/re unambiguous.</p> <p>In an action brought upon a sealed, instrument of guaranty, dated October 13,1891, by. which the defendant guaranteed to the plaintiff the payment, by James H. ■ Root, as agent for Hattie P. Root, of all sums up to §5,000, which might become due and owing from said Root, as'agent, on account of coal of-the Ben Carbon Colliery which might be sold to or by said agent, it appeared that on October 15, 1891, two days after the execution of the guaranty, the plaintiff entered . into a contract with Hattie P. Root, by James H. Root, as her a'gent, by which the plaintiff, among other things, agreed to give Hattie.P. Root the sole agency for the sale of the total output of the Ben Carbon Colliery, “at all points along the line of the New York, Lake Erie and Western Railroad Company, its branches and connections; ” and also agreed to fill all the orders for coal sold-by said Hattie P. Root or her agents to any person on the line of the railroad and its branches or connections, while Hattie P. Root agreed to employ James H. Root as her agent, and to give to the plaintiff the written guaranty of the defendant, in the sum of §5,000, for the faithful performance of her.agreement by James H. Root.</p> <p>The guaranty in suit did not refer to the contract, but it was found that it constituted a part of the consideration of the contract by the referee who tried the cause, who did not. find, however, that the defendant knew, when she made the guaranty, what the provisions of the contract to be made between the plaintiff and Hattie Root were to be, or that she gave the guaranty in view of any particular contract, or solely to secure the performance of the contract made October 15, 1891.</p> <p>In November and December, 1891, James H. Root received but failed to pay for certain quantities of coal, and thereupon this action was -brought upon the guaranty.</p> <p>Held, that as none of the circumstances attending the execution of the guaranty were sho.wn, the guaranty must be construed upon its own words alone;</p> <p>That the intention of the parties must be ascertained, and that when ascertained the' defendant was entitled to have the contract, thus construed, applied - strictly;</p> <p>That the guaranty was broad enough to cover any coal sold by James H. Root, or to him as agent for Hattie P. Root, but that if confined to coal delivered under ■the contract of October fifteenth, "as by that contract Hattie P. Root had been given by the plaintiff the' sole agency for all the coal sold upon the line of the New York, Lake Erie and Western railroad, it was only necessary in order to bring the sale within the guaranty for the plaintiff to show that the place where the coal was delivered was upon the line of that railroad;</p> <p>That as there was no ambiguity in these provisions of the contract, paroi evidence was inadmissible to explain them;</p> <p>That as the contract contained no phrases peculiar to the trade, no such phrases could be interpolated by the defendant, and then be explained by paroi evidence.</p>

<p>Appeal by John H. Davis and another, executors and trustees, ■etc.,, of Augustus Whiting, from an order of the 'Surrogate’s Court ■of the county of New York, entered in said Surrogate’s Court on the 6th day of January, 1896, affirming an order entered in said Surrogate’s Court on the 26th day of March, 1895, which confirmed ■an appraisement of the value of the inheritance of Charlotte Whiting under the will of Augustus Whiting, deceased.</p>

<p>Excise Law — license refused to a place, a previous license to which was revoke;», because of its bad character.</p> <p>Where a license, granted to sell liquor upon certain premises, has been revoke! for the reason that the place has become a resort for disorderly persons, an application for a new license made by anothdr person six weeks later, in the absence of proof that the character of the place has changed, is properly refused by the excise commissioners of the city of New York.</p> <p>Where a building has become a resort for prostitutes and thieves it is not a suitable place for t'he sale of liquors.</p>

<p>Appeal by the plaintiff, Louis Lowenstein, from an order of the Supreme Court, made at a Trial Term and entered in the office of the clerk .of the county of ¡New York on the 18th day of February, 1896, denying his motion to correct the verdict of a jury rendered in the, action.</p>