Volume 2 — Bedell

The nature of the action and the facts, so far as material, are stated in the opinion. A tenant in common is not liable for rent or for the use and occupation or mesne profits of premises in the absence of an agreement to pay rent on an ouster of the co tenants by the one in possession. (Kline v. Jacobs, 68 Penn.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, made April 14, 1900, affirming an order of Special Term awarding to defendant a counsel fee and alimony pendente lite. The nature of the proceeding, the question certified and the facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. The appellants are qualified electors of the first election district of the seventh ward of Yonkers, and as such entitled to registration. (Const.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 6, 1900, affirming an order of Special Term continuing a temporary injunction restraining the comptroller of the city of New York from paying to the defendant Carpenter the salary of clerk of the Municipal Court of the city of New York for the third district of the borough of Brooklyn, and the defendant Lynch, as judge of that court, from…

The nature of the action and the facts, so far as material, are stated in the opinion. The dissmissal of the complaint was proper as to the defendant Downey, because he had not been in any way connected with the happening of the accident.

The facts, so far as material, are stated in the opinion. There is nothing before this court to review. Where a judgment of conviction is reversed on the facts by the Appellate Division, its decision is not reviewable by this court.

Crane, as substituted trustee under the last will and testament of Lewis F. Battelle, deceased, and construing certain parts of said will. The facts, so far as material, are stated in the opinion.

Appeal, by permission, from an order and judgment of the Appellate Division of the Supreme Court in the first judicial department, entered respectively February 16 and March 3, 1900, affirming an order and judgment of the Appellate Term of the Supreme Court for said department, which reversed a judgment of the Municipal Court of the city of New York in favor of plaintiff for a sum of money due on contract.

1898, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion. There is a defect of parties.

The motion . to dismiss the complaint in its entirety should have been granted. The charges of nuisance and negligence were not sustained. (Jorgensen v. Squires, 144 N. Y. 280; Welsh v. Wilson, 101 N. Y. 254; Hand v. Klinker, 22 J. & S. 433; Callanan v. Gilman, 107 N. Y. 360; O’Reilly v. L. I. R. R. Co., 4 App. Div. 139.) Under the circumstances under which the plaintiff went upon the platform the defendants owed her no duty in respect thereto.

The nature of the action and the facts, so far as material, are stated in the opinion. The superintendent had no power to employ for a stated term. (L. 1848, ch. 40, § 7; Smith v. C. D. Assn., 12 Daly, 304; Camacho v. H. B. N. & E. Co., 2 App. Div. 369; Carney v. N. Y. L. Ins. Co., 19 App. Div. 160; Trustees, etc., v. Bowman, 136 N. Y. 524; Seymour v. Wyckoff, 10 N. Y. 213; Bank of Attica v. Mfg.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant was entitled to a trial by the court of its equitable counterclaim for the reformation of the written contract. (Code Civ. Pro. §§ 969, 974; Maher v. H. Ins. Go., 67 N. Y. 283; Kilmer v. Smith, 77 N. Y. 226; A. C. Sav.

judgment of the appellate division of the supreme court in the fourth judicial department, entered May 5, 1900, affirming a judgment of the Niagara county court convicting the defendant of the crime of grand larceny in the first degree, and an order denying a motion for a new trial. The facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. The deed to Bock has been conclusively shown to have been one of trust only, and the declaration was a valid one to the extent of and during the life of William A. Wilson.

<p>Game law—Laws 1892, ch. 488, § 246.</p> <p>Section 246, of the Game Law, which provides that any justice of the peace, police justice or magistrate having criminal jurisdiction, on proof that any of the provisions of the statute has been violated by any persons temporarily within his jurisdiction, but not residing there permanently, or by any person whose name and residence are unknown, shall issue his warrant for the arrest of such offender, and cause him to be committed or held to bail, does not authorize the arrest of a person for trespassing on a private park, and taking fish therefrom, and holding him to bail to answer any liability to the owner, as such liability is to be asserted and enforced in a civil action.</p>

The facts, so far as material, are stated in the opinion. The commissioners of docks and ferries of the city of Mew York had power under the provisions of the Greater Mew York charter to remove the relator at their pleasure. (L. 1897, ch. 378, § 1536; People ex rel. v. Robb, 126 N. Y. 180; Const. N. Y. art. 10, § 3; People ex rel. v. Van Wyck, 157 N. Y. 495.) Rule 42 of the civil service commission, so far as it attempts to restrict a statutory right of removal, is void.

The nature of the action and the facts, so far as material, are stated in the opinion. The complaint should have been dismissed for the reason that there was no consideration to support the agreement to pay the plaintiff more than his legal fees.

. The facts, so far as material, are stated in the opinion. The testator had power to enlarge the field of investment for trustees named in his will. (Denike v. Harris, 84 N. Y. 89; Matter of Stewart, 30 App. Div. 368.) The will itself authorized the trustees to make the investments which were made. (Lawton v. Lawton, 35 App.

<p>1. Appeal—When Question of Law Dependent upon Determination of Question of Fact is not Reviewable. The. question as to whether a contract is void under the Statute of Frauds is ordinarily a question of law reviewahle by the Court of Appeals under an exception taken to a refusal to nonsuit upon that ground; but in a case where that question is dependent upon the determination of a question of fact, viz., as to whether there"was a consideration sufficient to sustain the contract, and that has been settled by a verdict and by a unanimous affirmance by the Appellate Division of the judgment entered thereon, exceptions to the refusal to nonsuit upon that ground raise no question which the Court of Appeals has power to review.</p> <p>3. Trial—Refusal of Request to Charge. Where a stockholder of a corporation, who is also a creditor, signs a consent that a sale of its property be made, and receives in lieu thereof from the party benefited by such consent his oral promise to pay from the proceeds of such sale the sum due to him as a creditor, the question of consideration to support the agreement is not solely dependent upon such consent as a stockholder, and upon the trial of an action to recover such sum, a request to charge that it was not necessary that every stockholder should give his consent either in writing or orally in order to enable the trustees to make a valid sale of the property of the corporation is properly refused.</p> <p>Lamkin v. Palmer, 34 App. Div. 355, affirmed.</p>

<p>1. Stock Corporation Law—Construction of § 30. The provision of section 30 of the Stock Corporation Law (L. 1893, ch. 688) which declares that if the annual report required by the law is not made and filed, the directors shall jointly and severally he personally liable for all the debts of the corporation then existing, is remedial, and. if necessary, should be liberally and not narrowly construed so as to embrace the debts within the language of the act, however strictly it may be construed as to the acts of the directors constituting their alleged default, or as to the evidence of debt of the corporation; and corporate bonds secured by a mortgage upon a corporation’s real estate are within the meaning and intent as well as within the language of such provision.</p> <p>3. Limitation of Action to Enforce Penalty. The cause of action to enforce the penalty prescribed for failure to file the annual report required by law, on account of a default, made before the maturity of the bonds or interest coupons for the amount of which it is sought to hold the directors, accrues at the dates respectively of the maturity of the coupons and the bonds, as to the directors then in office; and the liability of a director, whose election and default in filing the report occurs after the maturity of the debt, attaches at the time his default is complete, since the debt is “ then existing; ” and if the action is begun within three years from the earlier date it is within the limitation prescribed by section 394 of the Code of Civil Procedure.</p> <p>3. Liability of Directors for Successive Failures to File Annual Report—Joinder of New Directors. Successive defaults in making and filing reports by the same directors do not renew as to them the penalty already incurred under section 30, but when a new member comes into the board amew default makes him jointly and severally liable for the debts “ then existing,” that is, he becomes jointly liable with the old members of the new defaulting board; and a single action may be maintained against both the old and new directors if brought before the Statute of Limitations bars the liability of either.</p> <p>4. Effect of the Participation as Director in Previous Defaults by the Vendor of Bonds. That the vendor of corporate bonds was at the time of the sale a director of the corporation and was participating with the other directors in the default in filing the annual report, and, therefore, could .not enforce the penalty prescribed by section 30 against his co-directors, does not prevent the purchaser of the bonds from enforcing the penalty on account of a subsequent default by them in which the vendor also participated.</p> <p>5. Mistake of Date at which Directors Incurred Penalty. A mistake by the plaintiff in an action to enforce the penalty prescribed by section 30 for failure of directors to flic the annual report, in alleging the date at which the penalty was incurred, due to a mistake as to the date the law fixes, is not reversible error if within the true dates the plaintiff has shown Ms right to recover.</p> <p>Morgan v. Hedstrom,, 35 App. Div. 547, affirmed.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The mortgage .foreclosed in this action was fraudulent and void because there was no actual and continued change of possession and the mortgage was not filed. (2 R. S. 136, § 5; L. 1833, ch. 279, § 1; Thomas on Chat. Mort. 222, § 325 ; Karst v. Gane, 136 N. Y. 316; L. I. & S. Co. v. Payne, 13 App.

<p>1. Municipal Oobpobations—Assessment fob Local Impbovement — Defect Appabent on Face of Pboceedings. If a provision of a municipal charter requiring an assessment for street paving to be apportioned upon the lots of land abutting on the street “according to the number of feet frontage upon the same ” be unconstitutional as talcing property without due process of law, the invalidity of an assessment made under it is apparent on the face of the proceedings, and an action in equity to set the assessment aside as a cloud on title cannot be maintained.</p> <p>2. Waiveb of Constitutional Objection. A property owner who signs a petition for a street pavement under a charter which requires the cost to be apportioned among the owners according to frontage, necessarily asks that the work be done under the statutory rule and thereby waives any right to object to it upon the ground that it constitutes a taking of property without due process of law.</p> <p>3. Ibbegulabity in Pboceedings fob Stbebt Impbovement Cubed by Statute. An irregularity in a proceeding for a street improvement consisting in the requirement by the common council of two bonds, one to accompany the bid and to be conditioned that if the bid is accepted the bidder will enter into a contract with the city for doing the work, and the other to be executed on the award of the contract and to be conditioned for its performance, instead of following the provision of the charter which requires one bond to be given when the bid is made, and which is to cover not only the execution of the contract but its performance, will not avoid an assessment when another section of the charter provides that '" every assessment for the purpose authorized by this title, shall be valid and effectual, notwithstanding any irregularity, omission or error in any of the proceedings relating to the same * *</p> <p>4. Vabiance between Petition and Obdinanoe as to Kind of Paving Matebial. The variance between a petition for the paving of a street which asked for “Trinidad sheet asphalt” and the ordinance directing the street to be paved with “ Asphaltum sheet pavement,” the specifications requiring the material to be “refined lake asphalt” and distinctly excepting land or overflow asphalt, does not invalidate an assessment for the pavement even if the term “lake asphalt” is more comprehensive than “Trinidad asphalt” where Trinidad asphalt was actually used and there is no proof to show that the exclusion in the specifications of land and overflow asphalt was improper.</p> <p>5. City of Schenectady—■ Expense of Repaving Stbeet Intebsections. The amendment of section 59 of the charter of the city of Schenectady (L. 1890, ch. 294, as amd. by L. 1893, ch. 190), by omitting the provision that the cost and expense of repaving the street intersections should he borne by the city at large, had the effect of imposing the whole cost of repaving a street on the abutting lots.</p> <p>6. Method of Paying Assessment. Under section 61 of the charter of the city of Schenectady, the determination whether an assessment for repaving a street shall be payable in installments or not is, in the absence of request by the petitioners for the improvement, vested in the common council.</p> <p>Conde v. Gity of Schenectady, 29 App. Div. 604, reversed.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to hold that a revocation of the agency was effected by the substitution of, two new notes for those which were destroyed. (People v. N. R. S. R. Co., 121 N. Y. 617; 1 Am. & Eng. Ency. of Law, 1218; Hunt v. Rousmanier, 8 Wheat. 174.) It was error to deny the defendant’s motions to go to the jury and for a new trial, and to direct a verdict for the plaintiff.

In 1896, the plaintiff, a domestic turnpike corporation, operated a turnpike which extended from the city of Rochester to the village of Charlotte, and one Marsenus H. Briggs was, and for several years had been, its treasurer. In June, 1896, the defendant, who resided at Rochester, received a letter from Mrs. O. S. Warren, of Silver City, New Mexico, inclosing four fire insurance policies, and requesting him to collect the premiums upon the same.

This action was commenced in 1892 by fourteen plaintiffs who own various mills on Oatka creek, a natural stream running through the counties of. Wyoming, Genesee and Monroe, against the defendant, a domestic corporation engaged in the manufacture of salt at a point on said creek above the mills of the plaintiffs, to restrain it from diverting or polluting the waters thereof.

The nature of the action and the facts, so far as material, are stated in- the opinion. Middleton’s powers as agent were co-extensive with the business and duties committed to his care. (Goldwater v. L., L. & G. Ins. Co., 39 Hun, 176; 109 N. Y. 618.) Middleton as the local agent of a transportation company could make contracts binding upon the company even in direct contravention of the rules and instructions of the company.

Term granting a peremptory writ of mandamus requiring the defendant to place the name of the relator upon its membership roll and to restore him to the rights and privileges pertaining to membership in the Democratic general committee of Kings county. At a primary election held in September, 1899, the relator was duly elected a member of the Democratic general committee of Kings county and afterwards duly qualified by paying the prescribed dues.

The fa-cts, so far as material, are stated in the opinion. The findings of fact made by the trial court having been approved and affirmed by the unanimous decision of the Appellate Division, those facts as found will be accepted here as conclusive, and as they abundantly support the conclusions of law of the surrogate this court should reverse the order and decree appealed from without considering any of the other questions in the case.

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 28,.1898, modifying and affirming, as modified, a judgment in favor of plaintiff entered upon the report of a referee. This action was brought to recover certain shares of stock, or the value thereof, which had been pledged by plaintiff with the defendant Dittman as security for the payment of a jiromissory note for $1,000.

<p>Motion for reargument. (See 163 N. T. 542.)</p>

a judgment in favor of plaintiffs entered upon the report of a referee. On the second day of March, 1874, Mary S. Yan Beuren and Caroline Hoppock devisee under the will of Samuel Cary, entered into a written lease under their hands and seals, whereby the former, in consideration of the annual rent of one thousand dollars to be paid by the latter, leased to her premises situated on. Fourteenth street, in the city of New York, for the period of twenty-one years.

The nature of the action and the facts, so far as material, are stated in the opinion. As a matter of law the defendant did not waive the right to an arbitration. (Vandergriff v. C. E. Co., 161 N. Y. 435; De Witt v. A. Ins. Co., 157 N. Y. 353; Ronald v. M. R. F. L. Assur. Co., 132 N. Y. 378; Underwood v. F. J. S. Ins. Co., 57 N. Y. 500; Allen v. G. A. Ins. Co., 123 N. Y. 12; Decker v. Sexton, 19 Misc. Rep. 59; Bogardus v. N. Y. L. Ins.

This was an action for the recovery of certain barrels of whisky, which, as it was alleged, were wrongfully detained from the plaintiffs by the defendant.

” The judgment of affirmance below, and the order striking out from the notice of appeal to the Appellate Division the 'words declaring appellant’s intention to bring up for review the order denying his motion for a new trial, should be reversed, and the proceedings remitted to the Appellate Division with directions that it should proceed to determine the question whether the verdict of the jury was contrary to the evidence. (Code Civ. Pro. § 1316; Voisin v. C. M. Ins.

This action was brought to restrain the defendant from cutting and felling any timber upon plaintiff’s lands, and from removing therefrom any of the wood or timber previously cut and felled, except in accordance with the provisions of the contract hereinafter set forth, and to recover damages for the wrongful cutting and destruction of wood and timber not within the terms of said contract.

<p>Attorney and Client — Waiver of Lien by Declaration of Trust. An attorney who makes a formal and explicit declaration of trust in favor of his client, with the statement that he holds property, which was the proceeds of a judgment recovered through him, for the purposes expressed in said judgment, and in no other way, and that upon the conveyance of the property to such persons as the cestui que trust may designate, he will pay over the proceeds of the sale to the latter, expressly waives any general or specific lien he may have had thereon for services rendered as attorney to the cestui que trust.</p> <p>West v. Bacon, 13 App. Div. 371, modified.</p>

The judgment determines that the plaintiffs, whose lot adjoins the lot of the defendant, had no easement or appurtenance in the defendant’s lot or building either for support or access, or for the use of water and sewer pipes. The trial judge found that Andrew Crawford died in 1874,- seized of the two lots in question, fronting upon 126th street in the city of New York, each 25 feet front and rear, and in depth, side by side, 100 feet.

<p>1. Contract to Furnish Goods — Measure of Damages for Breach of. A contract to furnish at least'$1,000 worth of cigarettes a year, plus two per cent of that sum, is implied by an agreement for a term of five years, executed between a cigarette manufacturer and certain dealers, providing that the former shall allow the latter $1,000 per annum to be deducted in equal monthly installments from current hills, and shall make a further allowance of two per cent below the price given to any other house in the states of New York and New Jersey oh a certain brand of cigarettes, in consideration'of which the dealers hind themselves to “push” that brand of cigarettes and not to push other brands, and the measure of damages for the breach of such contract by the manufacturer’s refusal to furnish the cigarettes is the difference between the amount the dealers were to receive in case they performed it and the cost of performance,</p> <p>2. Appeal—Dismissal of Counterclaim on the Ground that the Facts Stated do not Constitute a Cause of Action. Where, in an action by the manufacturer for a balance due on account of goods sold and delivered, the dealers interposed a counterclaim, alleging a breach of the plaintiff’s implied contract to furnish them with goods, a dismissal of the counterclaim, on the ground that the facts stated did not constitute a cause of action, after defendants had opened their case to the jury, had entered upon their evidence and had shown that the plaintiff had sold and transferred his business, is erroneous, where the motion to dismiss was not based upon any insufficiency of the evidence, but upon the ground that there was no such implied contract, and the record does not show that the defendants had closed their case when the motion was granted. ■</p> <p>Ellis v. Miller, 82 App. Div. 33, reversed.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The contract between Baynes and Lewis did not purport to be the contract of the Great Northern Insurance Company. (Newton v. Bronson, 13 N. Y. 587; Mayor, etc., v. Stuyvesant, 17 N. Y. 34.) The contract did not create a trust. (Hermans v. Robertson, 64 N. Y. 332; Kelly v. Robertson, 40 N. Y. 432; Butler v. Duprat, 20 Wkly.

The action was to recover upon a promissory note as follows: “ $5,000.00. . Toledo, O., June 30, 1897.. “ Six months after date we promise to pay to the order of Arlington U. Betts five thousand dollars at Rochester, N. Y., interest at 6 per cent. “ Value received.

<p>1. Homicide—Evidence—Identity.</p> <p>Declarations or statements, made in the presence of a party charged with crime, are only competent when the person affected hears and fully comprehends the effect of the words spoken, and when he is at full liberty to make answer thereto, and then only under such circumstances as would justify the inference of assent or acquiescence as to the truth of the statements, by his remaining silent.</p> <p>2. Same.</p> <p>A police officer was allowed to testify that he called in a bell-boy to identify the accused as being the person whom he served at the hotel; that he told him to speak to all the persons in the room; that the bell boy said there was no use in speaking, and pointed out Kennedy, the accused; that Kennedy denying that he ever saw the bell-hoy, witness said, “ Stop, Kennedy, you will understand this later,” and that he sent for other witnesses to identify him. Held, that his testimony was hearsay, incompetent, and prejudicial to defendant.</p>

<p>1. Murder—Sufficiency of Evidence.</p> <p>When, if the People’s witnesses are to be believed, there is not only-ample proof of circumstances which tend to show that the decedent was killed by defendant, but also direct proof to the same effect, the question of the credibility of witnesses and as to whether decedent was killed by defendant and, if so, whether the act was committed under circumstances constituting the crime of murder in the first degree are for the jury.</p> <p>2. Same—Trial—Privilege of Witness.</p> <p>It does not follow that a witness is not entitled to his privilege, because, upon the face of the question when unexplained it did not appear that the answer would have the effect claimed. He is entitled to this privilege if the evidence or his examination as a witness would either tend to incriminate him or disclose a link in the chain of testimony which might convict him of crime and is protected without being required to explain how he might be incriminated by the answer, and the question whether the witness should be required to answer rests largely in the discretion of the court.</p> <p>3. Trial—Remarks of District Attorney to Jury.</p> <p>In summing up, on a trial for murder the district attorney persisted again and again in declaring what the law was as to premeditation and deliberation in spite of the statement by the court that it would, at the proper time, instruct the jury upon the subject, and in spite: of the court’s remark “ I would not discuss it.” Held, that while the course pursued by the district attorney was not seemly or to be: commended it did not present reversible error as the court distinctly and plainly instructed the jury upon the question and instructed it to disregard any matter that had been stated as'to the law or what the law should be, or in regard to any opinion or decision of the courts, except such as should be made by the trial judge.</p> <p>4. Same—Appeal.</p> <p>The district attorney stated that “ in the country of defendant the regard for human life is not as with us * * * in the kingdom from whence he comes to murder there simply means a penalty for twenty years in prison,” with no proof in the case to sustain the statement, but on defendant objecting withdrew his remarks on the subject, and the court expressly directed the jury to disregard them. Held, that the error, if any, was merely technical and should be disregarded on appeal.</p> <p>5. Same—Failure of Defendant to Testify—Code Crim. Pro. § 393.</p> <p>Where the court calls the attention of the jury to the provisions of section 393 of the Code of. Criminal Procedure and charges that while the defendant in all cases may testify in his own behalf, still, that his neglect or refusal to do so does not create any presumption against him, it corrects any error of the district attorney in commenting on defendant’s failure to testify in his own behalf.</p> <p>6. Same—Reading of Law Books by Jury.</p> <p>Where, on a trial for murder, one of the jurors had a copy of the Penal Code and Code of Criminal Procedure which he read and exhibited to his fellows, but the book was taken away as soon as the attention of the prosecution was called to it and no objection raised by defendant until an adverse decision had been reached. Held that while it was irregular and misconduct on the part of the jury yet as there was no proof that it in any way affected the result or was prejudicial to defendant, the court below was justified in denying an application for a new trial, based on that ground.</p> <p>7. Same—New Trial—Newly Discovered Evidence.</p> <p>A new trial will not be granted on newly discovered evidence where it is not such as required the court below to hold that it would probably change the result if a new trial was granted nor that it could not have been discovered before the trial by the exercise of due diligence.</p>

<p>Contempt — When One Payment of Fine Imposed upon Several ■ Defendants for a Civil Contempt is a Satisfaction as to All — Code Civ. Pro. § 3384, Sued. 2. Where a motion is made to punish several defendants for a civil contempt in willfully disobeying an injunction order directed to and issued against all the defendants proceeded against, and an order adjudging them guilty of such contempt does not state the actual loss or inj ury of the plaintiff, nor any items from which the amount thereof may be computed or inferred, under subdivision 2 of section 2284 of the Code of Civil Procedure, a single fine of §250 may be imposed upon all of the defendants served in the proceeding, for which each defendant is severally liable, and in default, any one and all are liable to imprisonment, but one payment is a satisfaction as to all.</p> <p>Socialistic Go-op. Pub. Assn. v. Kuhn, 51 App. Div. 579, modified.</p>

<p>1. Appeal — Non-reviewable Order oe Appellate Division Granting New Trial. An order of the Appellate Division granting a new trial in an action tried before a j ury, where there is a conflict in the evidence and the order may have been based upon the insufficiency of the evidence, is not reviewable by the Court of Appeals, unless it appears from the record that the order denying a new trial vjas affirmed as to the facts- or the appeal therefrom dismissed.</p> <p>2. Allowance op Appeal prom Non-reviewable Order Does not Appeot its Disposition. The allowance by the Appellate Division of an appeal to the Court of Appeals does not require the adoption of any •different rule in determining the questions thus brought before it from that enforced in ordinary cases where no such allowance is necessary, and where the appeal is from an order not reviewable, it must be dismissed notwithstanding its allowance.</p> <p>Qcvponigvi v. Altieri, 29 App. Div. 304, appeal dismissed.</p>

<p>1. Appeal — The Appellate Division has no Authority to Reverse by Modifying a Portion of an Order not Appealed From. Where it appears upon the face of an order of the Appellate Division that upon an appeal from an order of the Special Term it reversed a portion thereof ■ordering a new trial, which was not appealed from, by modifying it and directing that the trial be continued before a different referee than that named in the Special Term order, the appellant has the right to insist in the Court of Appeals upon an appeal thereto from an affirmance by the Appellate Division of the judgment obtained against him upon the trial had in pursuance of such order, that the order was in excess of the authority of the Appellate Division, and, hence, that the proceedings based thereon were illegal.</p> <p>2. All Grounds Relied upon for Dismissal Must be Specified on First Motion Therefor. Where a motion has been made for the dis-' missal of an appeal to the Court of Appeals, a subsequent motion, based upon grounds which were not brought to the attention of the court upon the first motion, must be denied; since a party may not make as many separate motions to dismiss an appeal as he has, or supposes he has, distinct grounds therefor, but must instead assign on his first motion all the reasons that he relies upon for a dismissal.</p> <p>Ferguson v. Bruckman, 18 App. Div. 358; 26 App. Div. 628, reversed.</p>

The facts, so far as material, are stated in the opinion. The testatrix, by the 8th article of her will, appointed individual trustees, not by name, but by an adequate description, and did not intend to appoint either a municipal corporation or any officers thereof in their official characters, or the officers of a supposed municipality that did not exist.

The action was brought to recover the sum of §1,950, the complaint alleging that sum to be due the plaintiff upon his deposits in the defendant’s bank. The facts, so far as material, are stated in the opinion. The several accounts stated became conclusive upon the failure of the plaintiff upon examination of the accounts to object to the same, irrespective of whether he was or was not guilty of negligence in making the examination. (Myers v. S. W. Nat. Bank, 193 Penn.

<p>1. Fire Insurance — Insured’s Refusal to Answer Question—. Materiality of Question a Mixed Question of Law and Fact. The materiality, upon the question of the actual cash value of an insured steamer at the time of its destruction by Are, of the inquiry, made of insured pursuant to a provision of the policy requiring them to submit to an examination under oath, as to the amount they paid for it, is a question of fact or a mixed question of fact and law, when the refusal to answer the inquiry is relied upon as a defense to an action on the policy, where they purchased the steamer from a third person who purchased it, with other property, at a receiver’s sale, and they expended §3,500 upon it after they became the owners.</p> <p>2. Mistake as to Materiality. The provision of an insurance policy that the insured shall submit to examination under oath, does not bind them to answer every question propounded, however irrelevant; and if, acting in good faith, they make a mistake in deciding that an inquiry in respect to the price paid for insured property is not, under the circumstances, material on the question as to its cash value at the time of the Are and refuse to answer it, it is not ground for visiting them with a forfeiture of the beneAts under the policy.</p> <p>3. Construction of Provision Requiring Insured to Submit to Examination under Oath. A provision of an insurance policy, the object of which is to prescribe the manner in which an accrued loss is to be adjusted and ascertained, that the insured shall submit to examination under oath, is not to be subjected to any narrow or technical construction, but is to be construed liberally in favor of the insured.</p> <p>Porter v. Traders’ Ins. Go., 33 App. Div. 628, affirmed.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The defendants’ promise wTas not to pay their own debt, nor a promise made upon any consideration moving to them and beneficial to them ; but it was a promise to pay the precedent debt of third parties, and it was void under the Statute of Frauds, if oral, and equally void, though in writing, unless the writing be sufficient to satisfy the statute.

<p>1. Promissory Note—Liability for Indorsement before Delivery to Payee. Where a note is indorsed before its delivery to the payee at the request of the maker, the indorser knowing before such indorsement that his name is required by the payee as a condition of making the loan to, or procuring it for, the maker and as security .for its payment, the indorser is placed in the same relation to the payee as if he had.indorsed by express agreement with him, and is liable as first and not as second indorser.</p> <p>2. Presumption Arising from Face of Note not Conclusive. The presumption arising from the face of a note that one who indorsed the ■ same before delivery to the payee is not liable to the latter, is not conclusive, and may be overcome by evidence that he intended to become liable as first, and not as second, indorser.</p> <p>Davis v. Bly, 32 App. Div. 124, affirmed.</p>

John Tobin, the husband of the .relator, was a fireman in the fire department of Brooklyn for ten years prior to November 1, 1895, when he was retired upon a pension. He died about four months afterwards. During his membership he had contributed to the “ Widows’ and Orphans’ Belief Fund.” Upon his retirement he requested his name to be taken from the list of subscribers to that fund. He assigned as a reason that his relations with his wife were not satisfactory.

The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The deed from Williams Holt to Joseph Clary did not vest the title in Clary as sole tenant, but it inured to the benefit of his cotenants. One tenant in common cannot buy out an outstanding or adverse title so as to defeat the rights of his cotenants. The purchase will inure to their common benefit, subject to the equal contribution of the expense. (Van Horne v. Fonda, 5 Johns.

The action was brought to recover damages for alleged negligence causing the death of Andrew C. Stewart, the plaintiff’s intestate, on November 23, 1897. Stewart was in the employ 'of defendant, and while engaged in laying brick in the wall of a building which the defendant was erecting in Long Island City, the scaffold upon which he was standing, which the defendant had caused to be erected for the purpose, fell, and caused his death.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 12, 1897, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at an Equity Term.</p>