Volume 2 — New York Supplement

On exceptions from trial term. Action by Emily Ford, administratrix of John Ford, against the Lake Shore & Michigan Southern Railway Company.

James J. Coates and another sued Horace J. Harvey and another to recover damages for a breach of warranty in the sale of two pounds of onion seed. Verdict for plaintiffs, and defendants appeal.

Action by Robert Palen and another against Frederick Haake for the price of a car-load of coal. Verdict and judgment for plaintiffs, and defendant appeals.

<p>Appeal from jury term; P. H. Dugro, Judge.</p> <p>Action by Richard V. Harnett against Robert E. Westcott, as president of Westeott’s Express Company, to recover the value of a trunk and its contents. Verdict and judgment for plaintiff for $690, from which judgment, and an order denying a motion for a new trial, defendant appealed.</p>

<p>Receivers—Appointment by Superior Court—Former Order op Supreme Court.</p> <p>Where the order of the New York superior court appointing a receiver provides that nothing therein contained shall afEect the right of any receiver theretofore appointed over any property of defendant to act in accordance with the powers and duties conferred upon him, does not conflict with a previous order of the supreme court appointing a receiver of defendant’s property.</p>

Action by Austin P. Baldwin and others against the Stamford Manufacturing Company to recover demurrage for 10 days, at the rate of eight pounds sterling a day. There was a judgment for plaintiffs for $445.99, and defendant appeals.

Olin, Referee. Action by Bernard Cahn and others, trading under the firm name and style of Cahn, Belt & Co., to restrain Jacob Gottschalk from selling whiskey under the brand of “Maryland Jockey Club,” alleging that it is an infringement of their trade-mark, “Maryland Club,” as applied to whiskey. Decree for plaintiffs. Defendant appeals.

On motion to require bill of particulars. Philip B. Thompson, a lawyer of Washington, D. C., sued the KnickerIbocker Ice Company, claiming $10,000 for services in the settlement of a dispute between the company and the United States government in reference to She company’s liability to taxation on certain notes or tickets alleged by the ¿government to have been issued for circulation.

<p>Witness—Contbadiction—Fobmeb Admissions.</p> <p>Admissions and declarations of a foreman, relating to work of which he was in charge, are admissible to contradict his statements made as a witness against his employer in an action concerning such work.1</p>

Action by Emile Beneville against John Whalen, receiver of the Friendship Boat Club, a voluntary association, for legal services rendered for said club. Judgment for plaintiff for $275, and defendant appealed.

<p>On demurrer to complaint.</p>

<p>On motion for adjustment of costs.</p>

<p>1. Wills—Probate—Proof of Execution.</p> <p>Upon application for probate of a will subscribed by P. and N. as witnesses, it appeared to have been read by F., who wrote it, in testator’s presence, who also read it himself; no others then being present. P.’s first testimony was that testator signed in the presence of both witnesses, but, after hearing the testimony of N., agreed with him that testator signed before N.’s arrival, and afterwards declared the paper to be his will, and the signature to be his, before both. P. also testified that testator requested both to sign, while N. did not recollect that P. was asked, though both signed in testator’s presence. B., a legatee, who was present, corroborated the witnesses to some extent, but testified that he also witnessed the will, which was evidently a mistake. Held, the execution of the will was sufficiently proved.</p> <p>2. Same—Proof of Capacity to Make.</p> <p>In a case where the mental capacity of testator was at issue, it appeared that, shortly prior to the execution of the will, he visited a physician, who testified that he regarded him as a mental and physical wreck, incoherent in speech, unfit for any business, and incompetent to give directions for a complicated bequest. Other witnesses testified similarly; while, on the other hand, a much greater number of witnesses, among whom were those having business connection with him, family servants, the priest who confessed him, and others having opportunities for observation, including a witness to the will, testified to his soundness of mind at about the time of the execution thereof. The will itself, except one clause of minor importance, was reasonable, and there was reason to believe that it was the fault of the draughtsman, and that testator, in reading the will hurriedly, overlooked its real purport. Held, that the preponderance of proof was in favor of testamentary capacity.1</p> <p>3. Same—Undue Influence—What Amounts to.</p> <p>In such case, it appearing that testator had lately married a woman with whom he had lived in adultery for years, and who was his principal legatee, the other legatee being an old employe; that the wife had stated that she intended to induce testator, who was then suffering from a chronic disease of which he soon after died, to destroy an earlier will, and make one in her favor; that she had solicited him to marry her; and that no children, brothers or sisters, or other near relatives, were disinherited thereby,—the will is not invalid, by reason of undue influence.</p>

O’Brien, Justice. Action by Morris Rubens and Bernhard Rubens against the Ludgate Hill Steam-Ship Company, Limited, to recover damages for negligence in the transportation of certain furs. From an order granting motion to make the complaint more definite and certain plaintiff appealed.

Action brought by William Richards in justice’s court against John Derrick and Nellie Derrick. Plaintiff had judgment, and defendants appealed to the county court, which reversed the judgment as to Nellie Derrick, and affirmed it as to John Derrick, who appeals to the general term.

Action to foreclose a mortgage by Conrad Mohr against John Dorschel and William M. Lyddy, as guardian ad litem for Annie Dorschel. Plaintiff appeals from an order denying his motion to compel defendants to receive and accept notice of appeal to the general term.

In the matter of the petition of Hubert O. Thompson, Commissioner, etc., for the appointment of commissioners of appraisal, under the aqueduct act, (Laws N. Y. 1883, e. 490,) to take lands belonging to Clinton W. Sweet, Defendant appeals from the award of damages assessed by the commissioners.

In the matter of the petition of Hubert O. Thompson, commissioner, etc., for the appointment of commissioners of appraisal, under the aqueduct act, (Laws N. Y. 1883, c. 490,) to condemn lands belonging to George Hart. Defendant appeals from the award of damages assessed by the commissioners.

<p>Eminent Domain—Compensation—Award op Commissioners—When Set Aside.</p> <p>An award of commissioners in condemnation proceedings under the act authorizing the construction of the new aqueduct, (Laws N. Y. 1883, c. 490,) will not be disturbed on appeal, where no legal errors are assigned, unless it appears to be manifestly and grossly inadequate, though it be shown that much larger prices were realized on former sales of lots, and the evidence would have warranted a larger award.</p>

Appeal by Nathaniel Niles from a surrogate’s decree upon his accounting as an administrator of the estate of Chauncey Stephens, deceased, and from the surrogate’s orders denying an application for the appointment of a special guardian for Hannah M. Stephens, and denying motion to send case back to referee for additional findings, and for resettlement. The Connecticut AVestera bonds referred to in the opinion were railroad bonds belonging to the estate.

On application for removal of a justice of the peace. Petition of John H. Vreeland for the removal of William H. Thomas, justice of the peace. The justice issued a warrant, January 6, 1888, for the arrest of Yreeland upon a charge o>f using a steam-dredge in taking oysters from a planted bed, in violation of Pen.

<p>On rehearing. Former opinion, 46 Hun, 521.</p> <p>Nathan Cushing was the owner of a building of which a part was leased to Charles W. Butler, and, the building having settled, Cushing’s agent employed men to shove up the girders, which, were supported on piers, and upon the girders so supported the floor timbers rested. While the men were engaged in removing timbers in the story over the cellar, the whole building came down, and a fire resulted, which destroyed Butler’s property. This action was brought by Butler for the damages; and, plaintiff having recovered, defendant appealed. The general term affirmed the judgment, holding that the defendant was liable without proof of the agent’s negligence; and that, if the action rested on negligence, it fell under that class of cases where the accident itself is proof of neglect, if unexplained. See 46 Hun, 521. The motion for reargument was made upon the ground of surprise; the appellant’s counsel not having argued the point decided by the court that negligence need not be proved.</p>

<p>Appeal from special term. ^</p> <p>Warrant of attachment issued on affidavit of James B. M. Grosvenor against Isaac Sickle. Defendant’s motion to vacate the warrant denied, and he appeals.</p>

. William Kayton and others appeal from an order denying their motion to vacate an. attachment issued against them at the instance of George F. Vietor and others.

On motion, for trial by jury. This is an action by Dennis R. Alward against Emily B. Alward, who are husband and wife, in which the plaintiff seeks to recover certain moneys paid out and advanced by him, at the defendant’s request, in and about the management of her separate estate, and asks to have the amount thereof declared a lien upon said estate.

<p>1. Municipal Corporations—Icy Streets—Action by City—Pleading.</p> <p>A city sued to recover from defendant the amount of a judgment against it for injuries resulting from a fall on the ice, caused by water running from the waterspout of defendant’s building. The complaint alleged that the spout was a nuisance ; that the city defended the action, and paid the judgment; but did not allege any such notice of the nuisance as would render the city liable for the accumulation of ice. Held that, as the judgment could have been recovered only on proof .of such notice, the allegation that it was rendered requires the inference that the city had such notice.1</p> <p>2. Same—Icy Streets—Liability of Negligent Property Owner to City.</p> <p>In such a case the city and the person whose negligence caused the injury are not im pa/ri delicto; and where, as in this instance, the negligence of the city is constructive, rather than actual, the rule that one wrong-doer cannot recover damages against the other for injuries caused by their‘joint ofEense cannot apply.1</p>

L. Ingraham, Judge. Charles Putzel sued Mathew W. Wilson, Mathew S. Wilson, and Minnie I. Wilson for services in negotiating a loan. Judgment for plaintiff by direction, and defendants appeal.

On demurrer. The complaint in this case alleged, after the introductory averments, as follows: “Third, the plaintiff alleges, upon information and belief, that the defendant received the sum of sixty-six dollars and sixty cents on or about. March 25, 1886, on deposit, which was deposited by this plaintiff’s agents, subject to plaintiff’s order by check or draft at any time, and that the defendant, Albert Anderson, accepted said money in trust to be drawn upon.

This is an action brought by the Humphreys Homeopathic Medical Company against Beatson J. Bell et al. to restrain the latter from preparing and packing their medicines for market so as to resemble plaintiff’s, and to restrain defendant Bell from advertising himself as late manager of plaintiff. Judgment for plaintiff. Defendants appeal.

<p>1. Wills—Capacity to Make—Submission to Jury.</p> <p>The validity of a will being contested upon the ground of want of mental capacity in the testator, it is proper to submit to the jury, in addition to the issue of sanity, the question whether the testator, at the time of the execution of the paper proposed as his will, knew the contents thereof, and understood what disposition was therein made of his property.1</p> <p>2. Same—Capacity to Make—Condition before and after Execution.</p> <p>In such case an instruction that “the only point of time to be looked at by the jury at which the capacity of the testator is to be tested, is that when the will was executed, ” while abstractly correct should not be given, because misleading, as his capacity before and after the time of the execution of the will would be material to determine what such capacity was at the time of such execution.1</p> <p>3. Trial—Objections to Evidence—Waiver by Agreement.</p> <p>Where parties agreed in the beginning of a trial that they would not object to evidence taken under a commission, except as noted on the return, and one party has himself, under such agreement, introduced illegal testimony, he will not he allowed, on appeal, to object to the incompetency of the testimony of' the adverse party admitted under said agreement.</p> <p>4. Same—Instructions—Matters Previously Charged.</p> <p>The court having fully instructed the jury as to the law upon a particular question, it is not error to refuse an instruction upon the same question, although correctly propounding the law.</p> <p>5. Appeal—Review—Sufficiency of Evidence.</p> <p>The evidence upon an issue being conflicting, the court will not set aside the verdict on the ground that it is contrary to the evidence.</p>

McGowan, Judge. Action by Bertha Rodding against Terence Kane and others to recover the possession of land. Judgment for plaintiff, and defendants appealed.

Action by Richard S. Roberts against Cora C. Freeborn, executrix of the last will and testament of- Freeborn, on a covenant to repair leased premises. The judgment on the report of the referee was for plaintiff for the sum of $913.47, and defendant appealed.

Action by John Muhr against the mayor, etc., of the city of New York, for personal injuries. Verdict directed for defendant, and plaintiff appealed.

Case submitted upon agreed statement of facts. On June 16, 1887, the plaintiff, John R. McPherson, by written contract, sold to defendant, Du Bois Smith, certain real estate in Sew York city. Becoming doubtful as to McPherson’s title, Smith refused to receive the deed and pay the purchase money. By agreement, the questions in difference were submitted to the general term for decision.

On application for final order. This is an application for a final order in proceedings for the dissolution of the Livingston Sportsmen’s Association, and for the appointment of a receiver of its property.

Action by John H. Wilson against the Yew York Central & Hudson River Railroad Company for damages for lowering the grade of, and temporarily obstructing, a street adjacent to plaintiff’s lot in the city of Rochester. The report of the referee was in favor of defendant. Plaintiff appealed.

On exceptions from circuit court. Action by Frederika Egerer against the Yew York Central & Hudson River Railroad Company for damages to real estate in the city of Rochester. At the circuit a verdict was directed for defendant, and upon a case and exceptions a motion was made by plaintiff to set aside the verdict.

Lawrence county. Action by Benjamin Harder against the Rome, Watertown & Ogdensburgh Railroad. Company for personal injuries. The plaintiff attempted to walk across the defendant’s track, and was struck by its engine, and injured. This action was brought to recover damages for the injury; the complaint charging the defendant with negligence. The injury was sustained at Ogdensburgh.

Action by William J. Butler against the Glens Falls, Sandy Hill & Fort Edward Street Railroad Company, for injuries sustained in attempting to board defendant company’s street car. Judgment for plaintiff. Defendant appeals.

<p>Mortgages—Action to Ascertain Amount or Lien—Decree.</p> <p>In an action by a purchaser of one of several lots, incumbered by a blanket mortgage, to ascertain the amount of the debt properly chargeable on his lot, and release the mortgage on payment thereof, a decree providing for the payment of the entire mortgage debt by plaintiff, and that each of the other lot-owners shall pay to plaintiff their respective shares thereof, and, on default, directing the sale of his lot, is incorrect, and will be modified so as to require each owner to pay the amount properly chargeable against his lot, and, on default by any one, ordering his lot to be sold.</p>

Action by Dorcas U. Van Name against Paul N. Van Name for an absolute divorce on the ground of adultery. Judgment for plaintiff, and defendant appeals.

Action by Hiram Maxfield against Theresa M. Hoecker to foreclose a mortgage. The defenses were that it was obtained by duress, and given to compound an alleged felony. It appeared in evidence that about January 28, 1884, plaintiff held some nineteen or twenty thousand dollars of promissory notes made by various individuals, and indorsed by Frederick Hoecker, defendant’s father, which plaintiff claimed were, and which in fact were, forged.

Appeal by the Equitable Reserve Fund Life Association, defendant, from a judgment in favor of the plaintiff, John M. Mayer, entered upon the verdict of the j ury upon the trial at the Ulster county circuit; also from the order denying the motion made by the defendant upon the minutes to set aside the verdict, and grant a new trial. The action was brought by the plaintiff to recover as assignee upon a certificate of membership issued by the defendant to Charles Stephan.

<p>Appeal from surrogate’s court, Rockland county.</p> <p>This case is an appeal from the decree of the surrogate’s court of Bockland county admitting to probate a paper purporting to be the will of Edward D. Hesdra, proposed by Millard F. Onderdonk, who was named as executor therein. The will was contested by Amanda Tordoff, who claimed to be the next of kin, by one Estelle Hesdra, an alleged heir, and by the attorney general for the state, claiming that the deceased had died without heirs. The contestant Tordoff appealed.</p>

<p>Insurance—Agents—Action eor Commissions—Sufficiency of Evidence.</p> <p>Plaintiff agreed to solicit insurance on commission, with additional commissions on renewal of policies secured by him. Defendant reserved the right to discharge plaintiff for any malpractice, in which case he should forfeit such additional commissions. Plaintiff, having been discharged for failure to forward premiums, testified, in an action for such additional commissions, that he had taken notes for the premiums under directions of defendant’s vice-president, which the latter denied having given. A witness testified that plaintiff said he was foolish to take the course he did. Held that, on such conflicting evidence, a verdict for plaintiff would not be disturbed.</p>

On exceptions from circuit court, Kings county; Cullen, Justice. Action by Lucy Maria Terrell against Haney B. Wheeler and others to recover the possession of a lot or parcel of land situate in the city of Brooklyn, sold for taxes assessed in lieu of arrearages of taxes thereon, under chapter 114, Laws N. Y. 1883, and bought by plaintiff, and, not having been redeemed within one year, conveyed to her by the registrar of arrears of said city.

The complaint alleged that the real estate and property were in equity the personal property of the late insolvent firm of McDonnell, Kline & Co. at the death of John McDonnell, one of the members of the firm, and also at the time the mortgage was given, and therefore was only upon the surplus after payment of the firm debts; that, as the firm was insolvent, there was no surplus, and therefore the mortgage attached upon nothing, and the surplus, after payment of admitted…

Action for damages by Naomi Dunsbach against William H. Hollister for the maintenance of a nuisance, and an injunction restraining its further continuance. Judgment for plaintiff, and defendant appeals.

<p>On contest of a will.</p>

<p>On application for admission of John H. Clearwater’s will to probate.</p>

<p>1. Trespass—Measure of Damages—Injury to Leasehold Interest.</p> <p>In an action for injury to a leasehold interest in a hotel, where the evidence tends to show that defendant’s wrongful acts have decreased plaintiff's business, and thus diminished the rental value of such leasehold interest, the measure of damages is the depreciation of such rental value.</p> <p>2. Same—Damages to Heal Estate—Opinion Evidence.</p> <p>On the trial of such action, a witness who has known the property for 42 years, has been familiar with it for 32 years, and was its owner for 13 years, is competent to express an opinion as to such rental value both before and after the injury.</p> <p>3. Trial—Conduct of—Question for Jury—Conflicting Testimony.</p> <p>On the trial of such action it appeared that a gateway opened by defendant did not lead upon the required strip of land, but into defendant’s depot. Defendant’s evidence tended to show that there was no travel over such strip, unless trains stopped opposite the hotel, which they had long since ceased to do, but passed on to the depot, from which there was a passage to the hotel. Plaintiff’s evidence tended to show that the opening should be opposite the entrance to the hotel, where it could be observed; that for many years a large number of passengers had passed through such opening, ceasing only when the fence was erected. Held, that the evidence, being conflicting, the question of damages to plaintiff was properly submitted to the jury.</p> <p>4. Same—Instructions—Request to Charge.</p> <p>On such trial defendant claimed, as matter of law, that a regulation prescribed by it for persons passing through such gateway was reasonable. Plaintiffs consented that the court so instruct, but defendant declined to accept the admission, and the court said, “ I will charge, if you request;” and then stated that such regulation was a reasonable and proper one. Held, that such instruction was not open to the criticism that the court did not so charge, unless requested by defendant; the fair construction being that the first part of the court’s remarks was addressed to defendant’s counsel, and the latter to the jury, defendant acquiescing.</p> <p>5. Same—Evidence—Value oe Real Estate.</p> <p>On such trial, where a witness has stated that he knows what such rental value was, he is properly allowed to state the same, as the inquiry calls for a fact within Ms knowledge, and not for his opinion.</p> <p>6. Easements—Right of Way—Obstruction—What are Excessive Damages.</p> <p>In determining such question it appeared that the jury had before them the size and capacity of the hotel, its furniture and surroundings, the manner in which it was conducted, and the sources of its patronage, for many years; that the reservation of right of way and free access across such strip of land was regarded at the time it was made as a valuable appurtenant right; that such right of way had been entirely barred for 83 days, after which time a gateway was erected, through which people were allowed to pass under railroad regulations. Plaintiff testified that with such right of way the hotel was worth $12,000 per annum, and without it was valueless; and that the receipts from a restaurant attached shrank from $1,900 to $700 per month. Two former trials of the action had resulted in verdicts for plaintiff of $20,000 and $6,000, respectively. Held, that a verdict of $10,000 for plaintiff would not be set aside as excessive. Beckwith, C. J., dissenting.</p> <p>7; Witness—Examination—Usurping Province of Jury—Harmless Error.</p> <p>On such trial a witness was allowed to state what such rental value would have been if defendant had maintained a sufficient gateway to the hotel over a certain strip of land, as it was required to do. A point in issue was whether a gate established by defendant was sufficient. Held, that the allowance of such statement was error, as it was the province of the jury to determine the question of sufficiency ; but as all the facts were before the jury, and as the attention of the witness was particularly called to the condition of the gateway as established, such error was harmless.</p> <p>8. Pleading—Amendment—When Allowed.</p> <p>In such action the complaint alleged that defendant had constructed a fence across a strip of land leading to the hotel, which it appeared both plaintiff and defendant were entitled to use in common, but that it was defendant’s duty to maintain a gateway through the fence. It further alleged that defendant had constructed a fence across an alley leading to the hotel, with the use of which it appeared defendant had no right to interfere. Held that, though the theory of the complaint was that defendant had no right to erect either fence, it was broad enough to embrace a failure to maintain the required gateway, and should be amended to conform to the proof; and therefore a refusal to nonsuit plaintiff or to direct the jury to find nominal damages was not error.</p>

Action by Charles B. Bauch to recover damages for the construction by the Hew York, Lackawanna & Western Bail way Company of a raised roadway or embankment opposite plaintiff’s premises. Judgment was entered for plaintiff on the verdict of a jury, and defendant appeals.

Action by John C. Avery against the Hew York Central & Hudson River Railroad Company, to recover damages for defendant’s failure to maintain an opening across a strip of land leading to plaintiff’s hotel. Judgment for plaintiff,, and defendant appeals.

<p>On motion for reargument.</p> <p>Action on a bond brought by Albert F. West against Wm. Kurtz. Judgment for defendant, and plaintiff appeals.</p>

Action by David 0. Woolsey and others, owners of a steamer, against Hugo Finke, for damages for the rescission of a contract by defendant, chartering the steamer for a certain length of time. Judgment for plaintiffs, and defendant appeals.

Appeal by Lewis S. Samuel from an order of the special term requiring him to complete his purchase of land sold by James K. O. Sherwood, as receiver,, under an order of court made in the two. causes of People against The Open Board of Stock-Brokers' Building Company of the City of New York, and James W. Randall against Cortland Parker, President of the Open Board-of Stock-Brokers of the City of New York.

Certiorari, upon petition of relators against the mayor and common council of the city of Troy, to review the determination of the common council whereby they designated as official newspapers four papers published in the city, upon the ground that the designation was made without requiring the evidence that such papers had the largest circulation within the corporate limits of the city, and because the common council refused to require such evidence; the relators claiming,…

<p>Appeal from surrogates’ court, Schenectady county.</p> <p>In the matter of the probate of the will of Sarah Lansing.</p>

B. Edwards, Surrogate. Appeal by Milton P. Haas from a decree of the surrogate of Broome county, confirming the final account of Walton McKinney, administrator, and ordering a distribution of the estate of Kellie Haas, deceased. Kellie Haas died intestate November 8, 1884, leaving no child her surviving, but leaving her husband, Milton P. Haas.

Special proceeding by Horace Mathews against Henry D. Mathews and Helen P., his wife, to recover possession of certain premises claimed to have been leased. Plaintiff had judgment, and defendants appeal.

This is an appeal by John H. Post, one of the defendants, from an order adjudging him guilty of contempt in not transferring certain shares of stock.

The action was ejectment, by John P. Eisenlord, to recover lands in Fulton county of which Peter 0. Eisenlord died seized and intestate. The plaintiff claimed to be his legitimate son and only heir at law. He is the son of Margaret Lipe, and was born October 21, 1857. Peter O. Eisenlord was a physician at Palatine, Montgomery county. He died June 30, 1885, never having lived with Margaret Lipe as her husband. The defendants are his heirs if the plaintiff is not.

This was an action of ejectment by John P. Bisenlord for lands of which Dr. Peter O. Bisenlord died seized. The lands were situate in Montgomery county.' The jury rendered a verdict in favor of the plaintiff. Thereupon a motion was made by the defendants upon the minutes, at the same circuit, to set aside the verdict and grant a new trial.

The city of Albany sued John W. McNamara, executor of Mary E. Payne, deceased, to recover money paid for her treatment in the Homeopathic Hospital. Judgment for plaintiff, and defendant appeals.

Action by Albert Labro against Annie Campbell, for unlawful entry. Defendant appeals from a judgment for treble damages entered on a verdict for plaintiff.

<p>House and Street .Railroads—Elevated Railroads—Adutters—Measure of Damages.</p> <p>In an action for damages to abutting property, caused by the construction of an elevated railroad along a street, the measure of damages is the difference between ■ the rental value of such property with and without the railroad between the diyfce of its building and the commencement of the action, and evidence of the surrouhding circumstances, the disastrous effect of the railroad on the street, the depreciation of land in the vicinity, and the suspension of building on the street caused by the railroad, is admissible on the question of damages, when such propertyis unoccupied, and hence has no rental value.1</p>

Action by Margaret Buckley, administratrix of Daniel Buckley, deceased, against the Port Henry Iron Ore Company, of Lake Champlain, to recover for the death of said deceased. Plaintift had judgment, and defendant appeals from an order overruling a motion to set aside the verdict, and grant a new trial. Daniel Buckley, on January 9, 1885, was engaged as a workman in the mine of defendant. This was an open pit about 200 feet deep.

Montgomery county. Eugene Sullivan, defendant, was indicted for the crime of willfully discharging a loaded fire-arm at a railway train and car moving upon a railway. He was brought to trial before a jury at the Montgomery county court of sessions, duly held by the county judge and two justices for sessions of that county at the court-house in Fonda, on the 12th day of March, 1888.

Action by Catherine Dawson against the city of Troy for injuries received tby a fall on a sidewalk of the defendant city. The facts of the case are fully .stated in the dissenting opinion of Landón, J.

Action by Francis Schrowang against Artemas Sahler, assignee for benefit of creditors of Snyder, for the conversion of certain lumber by defendant. From a judgment for plaintiff, and an order denying motion for new trial, defendant appeals.

<p>Appeal from special term.</p> <p>Appeal by the supervisors of Schoharie county from an order granting a writ of prohibition.</p>

Action by Emma L. Terwilliger on a certificate of insurance issued by the Supreme Council of the Boyal Arcanum, upon the life of her husband, Abram Terwilliger. The trial court, on defendant’s motion, set aside the verdict for plaintiff, and awarded a new trial. On appeal, the general term reversed this order, and directed judgment for plaintiff on the verdict. From this judgment defendant appeals.

O. Dykman, Justice. Action by Mary 0. Hamilton against Alexander B. Hudson, for breach of a contract for the sale of a lot, and the construction of a house thereon, and to recover back purchase money paid therefor, alleging false representations on the part of defendant as to the price paid for the lot, and the value of the same, and defective construction of the house.

This is an appeal from a decree admitting to probate the will of George E. Jacott, deceased, over the objections of Emma Benrimo, cousin and heir of the testator, and declaring void a clause in the will bequeathing a legacy to the Calvary Protestant Episcopal Church, because the will was made within two months of the testator’s death.

The people ex rel. Charles G-. Burnham bring certiorari against Edward F. Jones and others, commissioners of the land-cilice, to review the grant of certain land under Lake Ontario to the Bartholomay Brewing Company.

<p>Action by Fritz Genenz against Mary T. De Forest to recover for a dog bite. There was judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Fulton county court.</p> <p>Oliver C. Collins sued Maria Fairchild for the price of certain lumber. Judgment for defendant, and plaintiff appeals.</p>

<p>Masteb and Sebvant—Negligence of Sebvant—Pboof of Relation.</p> <p>In an action for personal injuries, it appeared that, while plaintiff was driving along a road in front of defendant’s house, his cart was upset by striking some frozen “chunks” of shavings removed from defendant’s house, where they had been used as banking, and placed in the street by defendant’s son, whereby plaintiff was injured. A day or two before the accident, defendant was notified that the “ chunks ” might be dangerous, and replied that they would soon thaw out, when he would scatter them. Defendant’s son had at one time engaged a workman to repair defendant’s house, for which defendant paid, and on the occasion the son had carried mortar and brick; but there was no evidence that he was a servant of defendant. It was not shown that defendant told his son to remove the banking, or saw him doing it, or knew where the “chunks" came from when he spoke of their thawing out, or that there was not similar banking around neighboring houses. Meld, that plaintiff was properly nonsuited.</p>

Martin M. Miller sued Irving Magee on three promissory notes.

Action by George Maders against Zachariah Lawrence on a promissory note. Judgment for defendant. Plaintiff appeals. Code Civil Proc. 2sT. Y. provides that a counter-claim must be a cause of action “arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action.”

<p>Appeal from special term; Allen, Judge.</p> <p>Appeal by Danzig, the assignee, from an order depriving him of his statutory commissions.</p>

Action on a promissory note, brought by George A. Dowden against John Calvin and Thomas Wright. The court directed a verdict for plaintiff, and defendants appeal.

The ¡National Bank of WestTroy brought an action against Margaret Levy, executrix, etc., of Bernard Levy, and Catharine Byan, administratrix of the estate of Michael Byan, to set asido a mortgage executed by Byan to Levy, as being in fraud of the rights of creditors. In accordance with the report of the referee, judgment was rendered in favor of plaintiff, and defendants appealed.

Action for work and labor by Antonie Fox against Benton Turner. Verdict and judgment for plaintiff below, and defendant appeals.

Appeal by John Hurd and others from a verdict and judgment in favor of the plaintiffs, James Averill and others. Code Civil Proc.

<p>Action commenced in justice’s court by Charles Milbanks against Solomon Coonley. Judgment for plaintiff. Defendant appeals.</p>

Action by George B. Boss against Valentine Honor for the recovery of $80, ■alleged to be due on contract. Defendant denied plaintiff’s demand, and alleged by way of counter-claim that plaintiff was indebted to him in the sum of $125 for services performed and merchandise furnished. There was judgment for plaintiff, and defendant appeals. Argued before Learned, P. J., and .Landon and Ingalls, JJ.

<p>Courts—Jurisdiction of County Courts—When Attaches.</p> <p>A declaration in the county court for work performed, which alleges that the work was reasonably worth $1,000, “ or thereabouts, ” and that defendants had only paid $500, “ or thereabouts, ” and prays an account, and for judgment for the balance found due, is sufficient to give the court jurisdiction from the date of service of process, under Const. N. Y. art. 6, § 15, providing that county courts shall have original jurisdiction “in all cases * * * in which the damages claimed shall not exceed $1,000, ” and the jurisdiction will continue until judgment is demanded for more than $1,000.</p>

<p>1. Powers—Testamentary—Intention to Exercise.</p> <p>A husband gave two-thirds of his property in trust for his wife during life, with power in her to dispose of the same by will. By her will, after some small legacies, she gave her household furniture to W. for the use of her grandchildren; “ also the use of all the residue of my property, of every description, for the maintenance of said children during minority; the residue to he equally divided among ” them when the youngest should become 21 years old. She had substantially no property except the furniture. Held that, as there was no other property on which the general devise could operate, testatrix intended to exercise the power of appointment given by the will of her husband.</p> <p>2. Writs—Process—Service on Minor.</p> <p>Under Code Civil Proc. N. Y. §§ 436, 2526, providing for service on a minor undei 14 by giving a copy of the summons to him in person, and one to his father, mother, or guardian, a service of a citation for the probate of a will on such a minor by giving a copy to his mother is invalid, and is not cured by the appointment of a guardian ad litem.</p> <p>3. Wills—Construction—Declarations of Testatrix.</p> <p>Declarations of a testatrix that she intended to execute a power of appointment are inadmissible to aid in the construction of her will.</p>

<p>Appeal from special term. Henry N. Burhans sued to set aside an assignment made by Hugh Kelly as fraudulent. Judgment for plaintiff, and defendants appeal.</p>

Upon the final accounting of Dewitt C. Dow, executor of the last will and testament of Fanny S. Rich, deceased, a decree was rendered by the surrogate’s court of Schoharie county directing said executor to sell certain personal property, and invest the proceeds. From this decree John S. Smith, devisee and legatee under the will, appealed.

<p>Appeal from circuit court, Washington county.</p> <p>Action on a promissory note, brought by Peter Lawson against Timothy and Daniel Buckley. Judgment for defendants. Plaintiff appeals.</p>

Action by Alida Tobey, as administratrix, against the city of Hudson, for personal injuries to plaintiff’s decedent. Judgment for plaintiff. Defendant appeals.

Action by Ann Keane against the village of Waterford for injuries from negligence of defendant in failing to keep the sidewalk clear of ice. Verdict and judgment for plaintiff, and defendant appealed.

Action by Constance B. Price against De Witt C. Holman and others, executors of the will of Walter W. Price, late husband of plaintiff, to recover interest on funds used by testator belonging to plaintiff. Judgment for defendants, and plaintiff appealed.

<p>Insurance—Aqents—Insurance Broker.</p> <p>A broker in the employment of a firm of insurance agents, whose sole duty is to solicit insurance for them on commission, having a desk in their office, and’ soliciting for no one but them, is not such an agent of the firm that notice to him of additional insurance obtained by a policy-holder, whose insurance was issued by them upon the solicitation of the broker, is notice to the firm. Landon, J., dissenting.</p>

<p>1. Writs—Publication—Authority to Make Order—Collateral Attack.</p> <p>In an action to foreclose a mortgage, an affidavit of the plaintiff’s attorney that he had placed the summons in the hands of a person who had searched one week for defendant, and that he then delivered the same to the sheriff, to which affidavit was attached the summons with the sheriff's certificate of “not found, ’’authorizes the court to make an order of publication, and the same cannot be attacked collaterally.</p> <p>8. Same—Publication—Service by Mail.</p> <p>Neither is such order void as not stating the name of the place to which the summons and complaint should be sent, under Code Civil Proc. § 135, then in force, providing that in case of publication the court must direct a copy of the summons and complaint to be deposited in the post-office directed to the defendant at his residence, unless the same is not known, and cannot with reasonable diligence be ascertained, it having ordered the same to be deposited, postage paid, in the post-office, directed to defendant at New Y ark city, where the affidavit alleged he had formerly resided, his then whereabouts being unknown.</p>

<p>1. Infancy—Guardian ad Litem—Appointment—Service of Order.</p> <p>In an action for partition an order was entered pursuant to Code Civil Proc. N. Y. § 173, designating a guardian ad litem of an infant defendant temporarily absent from the state, unless he, or some one for him, should procure such a guardian to be appointed within 10 days after service of a copy of the order, which was directed to be made on the infant’s father, the plaintiff in the suit. Held, that such service must be had on the father within this state.</p> <p>2. Same—Publication.</p> <p>Such service cannot be made by publication in the manner prescribed for service of a summons.</p> <p>3. Vendor and Vendee—Defective Title—Recovery of Money Paid.</p> <p>Where a vendor’s title is derived from a sale in a partition suit against an infant defendant, and there is grave doubt as to the validity of the appointment of the guardian ad litem in the partition proceedings, it is not a marketable title, and the vendee may recover money paid under the contract of sale, and for attorney’s services in examining the title.</p>

Action by Honora Sullivan against John McCann and another, executors and trustees under the will of John Sullivan, deceased, to recover dower in testator’s estate.

Motion to punish H. G. McFaddin et al., defendants, for contempt.

Action by Theodore Thomas against the Musical Mutual Protective Union, for a judgment that article 8, §§ 1, 2, and article 9, § 2, so far as it relates thereto, of defendant’s by-laws, are illegal and void, and for a further judgment that defendant’s directors and officers be enjoined and restrained from enforcing them against plaintiff. The case was tried at special term before the court, who found for plaintiff, and from the judgment entered in the case defendant appeals.

<p>Appeal from circuit court, Hew York county.</p> <p>Action by David Stewart against Collis P. Huntington and others, of whom Huntington only was served, for breach of a contract for the sale of railroad stock, wherein it was agreed that, if plaintiff, after examination, should be dissatisfied, defendant would return the stock to plaintiff on repayment of the price, and also that if defendant should purchase other stock, and pay therefor more than the price paid plaintiff for his stock, he would pay plaintiff the difference. Judgment for defendants, by direction of the court. Plaintiff appeals.</p>

<p>Pledge—Rights of Pledgeor—Ascertainment of Amount Due.</p> <p>A pledgeor’s right to have ascertained the amount due on the obligation, and to recover possession of the pledge on payment thereof, continues until his title is divested bv a lawful sale, and passes to his assignee in bankruptcy; and neither Rev. St. U. S. | 5057, providing that all suits by or against an assignee in bankruptcy shall be commenced within two years after the cause of action accrued, nor the New York statute of limitations, affects such right.1</p>

<p>1. Trusts—Validity—Construction of Will.</p> <p>Testator devised real estate to Ms wife for life, remainder to be equally divided between bis children, and directed her to execute a conveyance of the shares of his two daughters to a trustee named, to take effect after her death, for their separate use, which was done accordingly. Held, that the trust was passive, and therefore void, and that the statute of uses vested in such daughters the legal title to their shares.</p> <p>0. Same—Right of Beneficiaries to Question Validity—Order of General Term.</p> <p>A decree of the general term revoking the letters testamentary which had been issued to such wife, and removing her as trustee, does not preclude the daughters from questioning the validity of such trust, the will having contained other trusts.</p>

<p>At chambers. Motion by-a junior attaching creditor to vacate prior attachments.</p>

<p>At chambers. Motion to vacate order of arrest.</p> <p>Motion to vacate an order of arrest, granted upon a complaint and affidavit verified by plaintiff’s attorney on information and belief. The complaint alleged that plaintiff and other creditors placed their claims in defendant’s hands for collection, and subsequently advanced him money to purchase certain of the debtor’s lands, which were sold at auction; that defendant purchased such lands in his own name, but as agent or trustee for plaintiff and the other creditors, and had resold them, refusing to account to plaintiff and the other creditors for their respective shares of the proceeds. The complaint further alleged that the amount to which plaintiff was entitled out of such proceeds, together with the amount advanced by him, was $5,000, for which sum he prayed judgment. The affidavit stated as the grounds of deponent’s information and belief written communications made by plaintiff, and letters, statements, and other writings made, written, and furnished by defendant, and in deponent’s possession.</p>

<p>At chambers. Petition for dissolution of corporation. Motion to confirm referee’s report, etc.</p>

At chambers. Motion to retax costs. Replevin for chattels of the aggregate value of $2,500. Plaintiff recovered a verdict for one of the chattels, an engine, valued at $300, and defendants for the remainder. The defense upon which defendants succeeded as to such part of the property was that the same had become attached to realty of which they were the owners. Both parties presented bills of costs for taxation, but the clerk taxed the costs in favor of plaintiff.

At chambers. Motion to compel completion of a purchase of land. The purchaser refused to complete his purchase because of alleged defects in the title. The title is derived through the will of John H. Williams, who-resided in South Carolina, and executed his will in that state. The will was executed in the presence of three witnesses, and was proved in the court of ordinary of South Carolina, May 6, 1861.

Civil action for money. Action by O’Connor, receiver of the property of Herbert Foote Beecher, appointed in supplementary proceedings against the Mechanics’ Bank, for the amount of a legacy due said Beecher under his father’s will, on deposit in the bank by the executors. Trial by the court, jury being waived, and judgment for plaintiff.

On motion, for a new trial, heard in the first instance, at general term, upon the exceptions taken by the defendant at the trial.

On application to set aside a sale of land. Trial by the court. Two actions, one by Francis Lahey against Gouverneur Kortright and Lawrence M. Kortright, and the other by James Marshall against the same defendants, to recover back moneys paid on account of the purchase price of certain parcels of real estate at a sale in partition of the estate of Nicholas G. Kortright.

Plaintiif’s complaint was dismissed at the trial. The cause had previously been partially tried before a referee, who died before its final submission. The clerk disallowed defendant a trial fee before the referee, and also the fees of 33 witnesses who were duly subpoenaed, and whose fees had been paid, and who would have been called to impeach the plaintiff, or her supposed witnesses, if the trial had proceeded.

Demurrer to complaint. Action by Indiana V Stromeyer against R. Carman Combes for damages for alleged fraudulent and illegal disposition of plaintiff’s rights and interest as a stockholder in the Pennsylvania So Western Railroad Company.

<p>1. Corporations—Stockholders—Individual Liability—Certificate of Paid-Up Stock.</p> <p>Under Laws N. Y. 1848, c. 40, § 10, providing that stockholders of a corporation shall he liable to its creditors to an amount equal to the amount of their stock until the entire capital stock is paid in, and a certificate thereof made and recorded as prescribed in section 11, which requires the certificate to be verified by the president and a majority of the trustees, and recorded in the county clerk’s office within 30 days after payment of the last installment of the capital stock, failure to make and record such certificate within the required time renders the stockholders individually liable to corporation creditors, though the entire capital stock has been paid in.</p> <p>2. Same—Dissolution—Failure to File Certificate.</p> <p>Laws N. Y. 1885, § 10, declaring that a corporation shall he dissolved unless its capital stock is paid in within two years after its incorporation, applies only to the payment of the stock, and does not require such certificate to he filed within the two years.</p>

On demurrer to a counter-claim. Action by Anna Van Benthuysen against John Van Benthuysen fora limited divorce on the ground of cruel and inhuman treatment. Defendant answered, setting up plaintiff’s adultery as a counter-claim, and demanded an affirmative judgment of divorce thereon. There was a demurrer to such counter-claim. Code Civil Proc.

On certiorari to an assessment. Actions by the people on the relation of the Fitchburgh Railroad Company against the assessors of the towns of Hoosic, Pittstown, and Schaghticoke, and same on the relation of the Boston, Hoosac Tunnel & Western Bailroad Company against the same.

At chambers. Motion to set aside service of summons, and vacate order of arrest. Action by Annie L. Murphy, by- her guardian ad litem, against Field W. Sweezy, for damages for breach of promise to marry, and assault.

<p>Deposition—Of Witness for Use on Motion—Presence of Attorneys—Cross-Examination.</p> <p>Under Code Civil Proo. JST. Y. § 885, which provides that where a party intends to make or oppose a motion, and it is necessary for him to have the affidavit or deposition of a person, not a party, to use upon the motion, the court may make an order - appointing a referee to take the deposition of that person, where the witness appears before the referee, refuses to answer on the advice of the opposing party’s attorneys, but afterwards objection to the examination is withdrawn, and the attorneys disclaim, under oath, having interfered with its due course, they will be allowed to be present, but not to cross-examine the witness.</p>

<p>Action for dissolution of partnership, accounting, etc.</p>

Action by Phillip Braender against the Harlem Lighting Company to enjoin as a nuisance the operation of an electric lighting station adjoining plaintiff’s houses in the city of Hew York. Judgment for plaintiff.

At chambers. Demurrer to traverse of return to writ of habeas corpus. Writs of habeas corpus and certiorari issued to the Sisters of St. Dominick, a corporation, for the discharge of James Maloney from the asylum under its charge. The return to the writs showed that the petitioner was held by virtue of a commitment to the asylum by one of the police justices of Hew York city, under Pen.

<p>Trusts—Trustees—Appointment and Removal.</p> <p>The cestui que trust claimed that a lease executed by the trustee was improvident, and should be set aside; that the rent was too small; that she had received nothing; that she had requested the trustee to take steps to set aside the lease, and he had declined. The trustee had sent her an account and his check for the balance shown to be owing her, but she had returned the check because the account contained no statement of taxes and insurance which ought to have been paid, after ■ payment of which she would receive no income. In returning the check, she stated that all her business was done through her attorneys, (naming them,) to which the trustee replied that he was required to apply the income to her support, and did not feel justified in paying it to her attorneys. Held that, as the relations between the trustee and cestui que trust were not cordial, and as the latter was a married . woman, and old enough to have some judgment as to her own interests, the trustee would be removed at petitioner’s costs, no fault on his part being shown.</p>

<p>Attachment—Afeidavit-aDescriftion of Claim.</p> <p>An affidavit for attachment described the claim sued on as for “the services of the plaintiff, as the attorney of the defendant, rendered in prosecuting certain suits upon his retainer, arid for drawing and engrossing certain instruments in writing, ” “which services were performed, and money advanced, between” stated dates. JBeld, that the affidavit contained a direct and positive averment of indebtedness for services performed and money advanced, and not a mere allegation of indebtedness without any facts.</p>

<p>On motion to set aside a judgment.</p>

Chapter 455, Laws 1847, and amendments, prescribe the manner of assessing damages arising from the laying out of roads by the highway commissioner.

<p>Appeal from special term, Saratoga county.</p>

Action by the people against Benton Turner to recover penalties for cutting-timber on land of tile state. Verdict and judgment for plaintiff, and defendant appeals.

Action by Fannie Balcom, administratrix of Lewis Balcom, against Maggie Adams, for work done and goods sold by plaintiff’s intestate for defendant. From an order refusing to vacate an order by a judge for an examination of defendant, the latter appealed.

<p>Proceeding for the voluntary dissolution of á corporation, under Code Civil Proc. tit. 11.</p>

This is an appeal from an order denying a motion by Edward J. Maxwell to vacate an order removing him as assignee of John Reddish, an insolvent debtor, and an appeal from the order of removal.

<p>Partnership—Accounting—Receivers—Appointment.</p> <p>It appeared in an action for a partnership accounting that, by reason of the uncodected ana unconverted firm assets, no final decree determining the rights of the parties could then be made. Held, that danger of loss or waste to the property in dispute was sufficiently shown to warrant the appointment of a receiver, under Code Civil Proc. 3ST. Y. § 713, providing that a receiver may be appointed on the application of a party establishing an apparent right to the property, and that there is danger of its loss or injury, though the complaint simply prayed an accounting; but as the insolvency of neither of the parties was alleged, they would not be required to pay over money of the firm in their hands to the receiver.</p>

<p>1. Parent and Child—Custody of Children—Courts—Jurisdiction.</p> <p>Code Civil Proc. N. Y. §§ 2017-2019, giving justices of the supreme court, or anyone authorized to perform the duties of such justice, jurisdiction to award writs of habeas corpus, and to examine into the cause of the detention of a prisoner, and in a proper case to discharge him, does not confer jurisdiction on such officers to take an infant from the custody of the mother, and award it to the father.</p> <p>2. Same—Powers of County Judge.</p> <p>Laws N. Y. 1877, c. 417, subd. 21; repealing Laws 1847, c. 280, § 16, which conferred on a single justice the powers of a chancellor or vice-chancellor, deprives such justice of equity powers out of court; and therefore a county judge, under Code Civil Proc. § 241, giving a county judge the powers conferred by law, in general language, upon an officer authorized to perform the duties of such justice, has no authority to make an order taking an infant from the custody of its mother, and awarding to its father, as such jurisdiction is purely equitable.</p>

C. Nott, Judge. Action in the city court of Albany by Adele Duparquet and Pierre Duparquet against Charles Fairfield, survivor of himself and John Elmendorf, deceased, lately partners trading under the name of Fairfield & Elmendorf. Judgment by default for plaintiffs, and defendant appealed to the county court, where the judgment was reversed, and plaintiffs appeal to the general term.

<p>Appeal from special term, Albany county; Mayham, Justice.</p>

<p>On motion for a temporary injunction.</p>

<p>Constitutional Law—Police Power—Warehousemen—Elevators—Regulation of Charges.</p> <p>Laws N. Y. 1888, c. 581, regulating the charges of grain elevators, does not violate that provision of the constitution which declares that no person shall be deprived of life, liberty, or property without due process of law.</p>

<p>1. Eminent Domain—Elevated Railroads—Procedure.</p> <p>The New York Elevated R. Co., having by Laws N. Y. 1875, c. 595, acquired all the rights, powers, privileges, and franchises of the West Side & Yonkers P. R. Co., which it had purchased, and which by Laws 1866, c. 697, and Laws 1867, c. 489, was vested with all the powers relative to acquiring real estate, conferred upon railroad companies formed under the general railroad act, (Laws 1850, c. 140,) and acts amendatory thereof; and having subsequently, through the action of the rapid-transit commissioners, pursuant to Laws 1875, c. 606, § 36, acquired the right to construct and operate its East-Side lines, and become vested with the same power to condemn real estate for those purposes that it already had for the purposes of its West-Side lines; and the Metropolitan Elevated Ry. Co. having been granted all the rights and privileges, and made subject to all the provisions, of chapter 140, by Laws 1873, c. 885, except as modified by that act, such companies have all the powers, in regard to acquiring real estate for the purposes of their incorporations, which are given by chapter 140, and the amendments thereof, to corporations formed under that law; and, in taking legal proceedings to acquire real estate, they may follow the mode of procedure prescribed in that chapter, and the amendments thereof.</p> <p>2. Same—Procedure—Application for Appointment of Commissioners—Notice—</p> <p>Publication.</p> <p>The petitions for appointment of commissioners to assess damages for the taking of real estate for purposes of the road, as provided for by that chapter, described the real estate to be taken as “ so much of the privilege, easement, or other interest in said street as is taken, appropriated, or interfered with by the construction and maintenance of the elevated railroad of the petitioner. ” Held, thatthepetition did not authorize the acquisition of “land, ” within the meaning of Laws 1876, c. 198, § 2, requiring notice by publication to be given of the application for appointment of commissioners to assess the value of land contained in any street or avenue in which the owners of adjoining lands on the line of the street or avenue claim the fee or a right of property, and which is sought to be taken for the purposes of a railroad; and hence the court had jurisdiction of the proceeding, although the service by publication was not made.</p> <p>3. Same.</p> <p>The term “real estate,” as used in chapter 140, covers all incorporeal hereditaments, easements, rights, and privileges necessary to the construction and operation of the roads contemplated by the act.</p> <p>4. Same—Petition—Description of Land.</p> <p>The roads having heen constructed at the time the condemnation proceedings were instituted, such petitions sufficiently designate what real estate is to be compensated for; especially as the reports of the rapid-transit commissioners, which are matters of record, contain the specifications and requirements according to which the roads were to be built; and the petitions allege that they were so built, and ask for so much real estate as has been taken for the roads so constructed.</p> <p>5. Same—Offers to Purchase.</p> <p>The railroad companies, shortly before filing their petitions, personally served written offers to purchase upon the owners of some of the parcels of land sought to be acquired; mailed offers to the owners of other parcels; left offers as to other parcels with some person upon the premises, which in some cases came to the notice of the owners; and all these offers were declined, or taken no notice of, or the counter-offer was considered exorbitant by the company. Most of the owners had already sued for damages for the taking of their property, and in their verified complaints had placed the value of the property at sums which the companies considered grossly extravagant. Held that, as the estimates of value entertained by the owners and the companies differed so widely as to render it almost certain that the offer to purchase would be rejected, the efforts made by the companies were a sufficient compliance with Laws 1850, c. 140, requiring a railroad company, before instituting condemnation proceedings, to make a bona fide and unsuccessful effort to purchase the property sought to be taken.</p> <p>6. Same—Burden of Proof.</p> <p>Laws 1850, c. 140, § 15, providing that land-owners whose interests are to be affected by condemnation proceedings may show cause against granting the petition, and may disprove any of the facts alleged in it, requires "the owners to disprove the allegations of the petition capable of disproof, but not those allegations peculiarly within the knowledge of the petitioners; and, as the allegations of the petition concerning the offers to purchase involved, matters as much within the knowledge of the owners as of the companies, it was for the owners to show that they did not in fact receive the offer, or, if they did receive it, why they did not accept, or make a counter-offer; and that there was reasonable ground to suppose that further negotiations might have resulted in an agreement to purchase the real estate.</p> <p>7. Same—Right to Exercise the Power—Leased Railroad.</p> <p>A railroad corporation, whose road is leased to another company, may nevertheless exercise the right of eminent domain.</p> <p>8. Same—Prior Construction of Road.</p> <p>A railroad corporation may condemn real estate over which its road was built at the time the condemnation proceedings were instituted.</p> <p>9. Same—Pendency of Actions for Damages.</p> <p>The companies may maintain condemnation proceedings as to those .parcels the owners of which have sued the companies for damages.</p> <p>10. Same—Death of Owners.</p> <p>That the owners of some of the parcels sought to be acquired were dead, and that, as to other parcels, only part of the owners were served with notice, does not deprive the court of jurisdiction of the condemnation proceedings; as, in cases where the owners are dead, the parcels may be omitted from the orders, and in cases where only part of the owners were served those not served can be afterwards brought in by amendments.</p> <p>11. Same—Amount to be Taken.</p> <p>That a small portion of the stations of an elevated railroad were used for newsstands does not prove that stations of smaller size would adequately accommodate the traveling public, and does not prevent the company from acquiring title, by condemnation, to the real estate on which the stations are built.</p> <p>12. Same—Eailube to Include All Land Taken.</p> <p>Condemnation proceedings need not include all the real estate of a particular owner, taken for the purposes of the roads; as the companies may acquire real estate in one street, although they do not acquire title to real estate actually taken in another street.</p>

Action by Patrick Dillon against the Acme Oil Company to restrain defendant from operating its oil refinery, whereby the water in plaintiff’s well was polluted. There was a judgment for plaintiff, and defendant appealed.

Action to compel transfer of stock. Charles L. Weller, receiver, etc., brought suit against the J. B. Pace Tobacco Company and others, to have transferred to him, as receiver, 273 shares of the capital stock of the defendant company. He was appointed receiver pendente lite by a court of California, and in the same order the stock in question was referred to.

<p>1. Municipal Corporations—Detective Streets—Notice op Injury.</p> <p>Laws N. Y. 1886, c. 572, providing that no action against a city, having 50,000 inhabitants or over, for damages for personal injuries caused by the negligence of the city, shall be maintained, unless notice of intention to commence the action, and of the time and place at which the injuries were received, shall have been filed with the counsel of the corporation within six months after the cause of action accrued, applies to New York city, although the consolidation act, § 110Í, provides for giving notice of all claims against the city to the comptroller, and enacts that no action shall be maintained against the city until 30 days have elapsed since the . claim was so presented; and notice of a claim for damages for personal injuries must be given to both the comptroller and corporation counsel.</p> <p>2. Same—Obstructions—Nuisance.</p> <p>The complaint alleged that the city negligently suffered the alleged obstruction and nuisance to remain upon the street after notice of its existence: Held, that the action was for the city’s negligence, and not for damages caused by the existence of a nuisance, as, after notice, the city was negligent in not removing the obstruction.</p>

<p>1. Corporations—Corporate Names—Insurance- Companies.</p> <p>Laws N. Y. 1877, c. 211, providing that'no fire, fife, marine, or other insurance company shall use a name or title which shall, at the time of the organization of the corporation, be used to designate a fire, life, marine, or other insurance company already existing under the laws of the state, does not prohibit a life insurance company from adopting a name previously used by a fire insurance company.</p> <p>2. Same—Injunction—Against Use op Corporate Name.</p> <p>When the defendant company organized under the name “Commercial Union Life Insurance Company of New York, ” the plaintiff company, under the name “Commercial Union Assurance Company, ” was engaged in the business of fire and marine insurance, which was the only insurance business it could lawfully transact. It Was shown that many fire insurance companies have the same name as life insurance companies, and that no uncertainty or confusion arises from that fact; and defendant disclaimed intention to copy plaintiff's name. Beld, that it was not shown that injury would result to plaintiff during pendency of the action to restrain the use of the name assumed by defendant; and that plaintiff was not within Code Civil Proc. § 603, providing that when plaintiff demands in his complaint, and it appears that he is entitled to, an injunction restraining the commission or continuance of an act, the commission or continuance of which during pendency of'the action will injure plaintiff, injunction maybe granted to restrain it.</p>

<p>Actions—Joinder of Causes.</p> <p>A complaint in one count alleged an agreement with the M. R. Co., defendant, for the purchase of the property of another company at the sale under foreclosure of a mortgage held by the former, and for the organization of a new company by the stockholders of the old one, of whom plaintiff was one, and to whose rights he had succeeded; that the property was sold to defendant trust company, and a new company was formed principally of d irectors of theM.R. Co.; that the new company issued stock to the trust company in payment for the property of the old one, and issued a mortgage to defendant trustees, and that its officers, who were defendants, had acted fraudulently, and in the interest of the H. R. Co.; and demanded enforcement of the agreement, and damages for its breach, and an im unction against the officers of the new company from acting as such. Held, that's, cause of action on the agreement was improperly joined with one for the -removal of the officers of the new company; and that neither cause affected all the parties.</p>

<p>1. Negligence—Instructions—Submission to Jury.</p> <p>When plaintiff claims that the gates were open, and the train standing still, and, as she attempted to enter, the train started without notice, and threw her down, inflicting severe injuries, a charge that plaintiff must prove by a preponderance oí testimony that defendant was negligent; that it left the gate open, and the train started just as she was about to get on board, and before she had the opportunity; and that she did nothing an ordinarily prudent person would not do; and that the train had not started when she attempted to get on board,—clearly leaves to the jury the only questions in the case.</p> <p>2. Carriers—Of Passengers—Duty to Be Careful—Railroad Companies.</p> <p>A charge that in the case of steam railroads the utmost care must be used in carrying passengers is strictly correct, and cannot prejudice defendant, sued for an injury to a person entering its train, even if it has no application to the evidence.</p> <p>3. Appeal—Review—Conflicting Evidence.</p> <p>Where the evidence is conflicting, and the issues are clearly presented in the charge of the judge, and a motion for a new trial is overruled by him, the verdict of the jury will not be disturbed.</p>

An appeal by the plaintiff from an order of the Monroe special term, denying his motion to vacate an ex parte chamber order granted by a justice of this court requiring the plaintiff, who became a non-resident of the state after the commencement of the action, to file security for costs, as required by Code Civil Proc.

Appeal by the plaintiffs from a judgment in an action of ejectment tried at the Monroe circuit, and from an order made at special term denying their motion for a new trial founded on a ease and exceptions.

Action by James Stewart and George Stewart against George H. Robinson and others, executors of Joseph Colwell, deceased, for distribution of decedent’s estate, and payment of the debts of S. S. Hepworth & Co., a partnership, of which deceased was a member in his life-time. The complaint was -dismissed, and plaintiffs appealed.

<p>Criminal Law—Admission op Act Charged—Finding Attempt to Commit.</p> <p>On an indictment for assault in the first degree, by shooting, where defendant - admits the shooting, but pleads self-defense, there must be an acquittal, or a verdict of guilty either in the first or second degree, as the evidence may show; and defendant is not entitled to an instruction that the jury may find an assault in the firs't, second, or third degree, or an attempt to assault in any of those degrees, as provided by Pen. Code N. Y. § 35, as the plea of self-defense admits the. higher grade of the crime.</p>

<p>Negligence—Proximate and Remote Cause.</p> <p>Defendant’s train having become uncoupled through a defective appliance, a brakeman, while engaged in repairing the mishap in the portion of the train remaining stationary, was, by the negligence of the engineer, backed upon by the engine and forward part of the train, and killed. Held, that the proximate cause of the accident was not the defective appliance, but the negligence of a fellow-servant, and that defendant was not liable.1 Dykman, J., dissenting.</p>

<p>Proceeding by George Munro to restrain Ormund G. Smith and others from inf'ringingonplaintiff’s right to a certain device, whereby he designated a series of publications.</p>

<p>On application for injunction.</p>

<p>1. Execution—Supplementary Proceedings—Receivers—Conveyances to.</p> <p>Defendant will not be compelled to convey his property to a receiver, in proceed ings supplementary to an execution, when the property is within reach of plaintiff's execution.</p> <p>2. Same—Receivers—Possession of Realty.</p> <p>A debtor for whom a receiver has been appointed cannot be compelled, in supplementary proceedings, to deliver possession of land to the receiver, though it has been sold under execution, and is within the redemption period; Code Civil Proc. N. Y. § 8447, providing for the delivery of property to the receiver, applying only to personal property.</p>

On exceptions from circuit court. Action by Lyman F. Hurlburt and another, administrators of Charles Hurl-hurt, deceased, against Ella Hurlburt, administratrix of Theron D. Hurlburt, deceased, for a sum of money placed in the hands of defendant’s intestate by plaintiff’s intestate, and alleged by defendant to have been a gift. There was a verdict for defendant, and plaintiff moved for a new trial on exceptions ordered to be heard at the general term in the first instance.

Action by Mary Kegney against Anna M. Ovens. Verdict for plaintiff, and defendant appeals from judgment entered on the verdict, and from an order denying motion for new trial.

<p>Argued before Barnard, P. J., and Pratt, J.</p>

<p>Appeal from Dutchess county court; Daniel W. Guernsey, Judge.</p> <p>This action was brought in justice’s court by Alexander H. Dudley against Matthew V. B. Brinckerhoff. On trial plaintiff recovered judgment for $48.50, the amount of his claim, and defendant appealed to the county court, and in his appeal demanded a new trial. Thereupon plaintiff moved to dismiss the appeal, because the judgment demanded by either party in his pleadings did not exceed the sum of $50. The motion was denied, and on trial, at the close of plaintiff’s case, it was dismissed because he had not proved his cause of action. Plaintiff thereupon appealed from this judgment, and the order refusing to dismiss the appeal, to the general term, and the court decided that defendant was not entitled to a new trial, because it did not appear from the record that either party demanded a judgment exceeding $50, though defendant’s bill of items of set-off was for $50. Defendant then obtained from the county court an order for a new trial, based on the following amended return of the justice: “Defendant’s answer. Defendant denied the complaint, and stated that he had a counter-claim against plaintiff for goods and merchandise sold and delivered to plaintiff, of the value of fifty-five dollars, for which he demands judgment.” Prom this order the plaintiff appealed. Code Civil Proc. § 3068, relative to appeals from justices’ courts, provides that, “where the sum for which judgment was demanded by either party in his pleadings shall exceed fifty dollars, ” the appellant is entitled to a new trial.</p>

Action for dower by Miranda Peart against James Peart and others. Motion ' to make complaint more definite and certain denied, and defendants appeal. Argued before Barker, P. J., Haight, Bradley, and Dwight, JJ.

<p>Appeal from surrogate’s court.</p> <p>Appeal from an order of the surrogate on petition to re-probate the will of Louis S. Hopkins, deceased. The surrogate refused to re-probate it. The petitioner appeals.</p>

Application by Samuel W. Wortman for a mandamus to the common council of the city of Buffalo to appoint the applicant to the office of street inspector.

On motion to continue injunction. Action by Sherman S. Rogers, as a citizen and tax-payer of the city of Buffalo, against the mayor and common council of the city, to enjoin payment for the services of one Diebold, a street inspector under a temporary appointment by the street commissioner.

Action by Merchants’ Bank of Rochester and others against Ignatz Thalheimer, and Yette Thalheimer, his wife, and William Thalheimer, their son, to set aside conveyances, an assignment, and a judgment for fraud. Judgment for plaintiffs, and defendants appeal.

<p>1. Fraudulent Conveyances—Consideration—Evidence.</p> <p>In an action to set aside a conveyance as fraudulent, it appeared that the grantor and grantee were brothers and partners in business, and, with two others, owned land, an undivided fourth being conveyed to each. The grantee testified that they were not partners in the land, which was the understanding of one of the co-owners, while that of the other was to the contrary. The land was sold, and the proceeds deposited partly in the firm name and partly in that of the grantee, and checked ' out by the grantor, upon the agreement, as the grantee testified, to repay him his share, with interest, on demand. The grantor used the money in a hotel business in another state, the title to which, as well as the register and insurance, were in his individual name. All the hotel business was transacted in the grantor’s name, and, while there wa's evidence of admissions by the grantee that he was interested in it, he denied it, and denied making the admissions. The conveyance was made in consideration of the money loaned. Held, that the land was not the firm’s property, and that the grantor owed the grantee for his share of the proceeds so used.</p> <p>2. Same—Insolvency—Fraudulent Transfers.</p> <p>An insolvent debtor may transfer property to a creditor to pay a debt justly due, and such transfer is not void as to other creditors.1</p>

Action by Ellen Harrington against the city of Buffalo for injuries resulting from a fall on the sidewalk. Verdict for plaintiff. From an order denying a motion for a new trial defendant appeals.

<p>Writs—Service by Publication—Death of a Plaintiff—Trusts—Action by Trus-</p> <p>TEE.</p> <p>On the death of the trustee of a married woman, pending the publication of the summons in an action in which they are joined as plaintiffs, the action is suspended until his successor is appointed, when the publication must be commenced ¿Ze nova, and a motion or order to suppress the publication is unnecessary.</p>

Action for injuries alleged to have been received by plaintiff while in defendants’ employ. Plaintiff was taken to one Swain by defendants’ superintendent., McDowell, and Swain gave hint work. Plaintiff testified that he was engaged at the sandpapering machine, (a machine not at all dangerous to work upon.) when he was directed by Swain to work on the planing machine.

<p>Action on a lease. Trial by court without a jury.</p>

<p>1. Contracts—Actions on—Evidence—Süeeicienoy.</p> <p>Evidence that plaintiff did work to a certain value upon a building at the order of defendant’s son, then in his employ; that defendant stated that he had orders to repair the building, and would send his son to attend to it; and that, when the bill was presented, defendant said it was right, and promised to pay it, makes out a 'ipri/ma facie case in an action for its value, and the ownership of the building is immaterial.</p> <p>2. Same—Evidence—Declarations—Principal and Agent.</p> <p>Evidence of what the son said when he ordered the work, it being subsequently connected by defendant’s admission, should have been admitted.</p>

<p>On motion for probate. Contest as to the validity of the alleged last will and testament of James B. Ogden, deceased.</p>

<p>Appeal from special term; Ingraham, Judge.</p> <p>This is an appeal by defendant John H. Starin from an order adjudging him guilty of contempt of court in violating an injunction.</p>

<p>1. Actions—Elections—Estoppel—Joint Tort-Feasobs.</p> <p>Where the owner of goods wrongfully taken has waived the tort and recovered in an action ex contractu against some of the tort-feasors, he is estopped by his election from maintaining trover and conversion against the others.</p> <p>2. Pleading—Pleading and Prooe—Formeb Judgment.</p> <p>The record of such former recovery may, in an action for conversion, be given in evidence under a general denial.</p>

<p>Trial at special term, with judgment dismissing the complaint. Amos R. Eno appeals.</p>

<p>Petition of James Eckerson for a writ of certiorari.</p>

<p>Frank Comesky, for Slocum. A. & A. X. Fallon, for Veghte.</p>

<p>Application for mandamus. On demurrer to alternative writ.</p>

<p>Railroad Companies—Consolidation—Rights op Bondholders op the Constituent Companies.</p> <p>It is no defense to an action by a bondholder against a railroad, for the accrued interest on bonds secured by a mortgage on the defendant’s property and franchise, that the defendant has entered into an agreement for the consolidation of its property and franchise with another company, pursuant to the provisions of Laws N. Y. 1869, c. 917; as section 5 of that chapter provides that “the rights of all creditors of and all liens upon the property of either of said corporations, parties to said agreement, shall be preserved unimpaired, and the respective corporations shall be deemed to continue in existence to preserve the same. ”</p>

<p>Practice in Civil Cases—Production of Books and Papers.</p> <p>Plaintiffs’ affidavit stated that they sold goods to defendants; that afterwards, without plaintiffs’ knowledge, their clerk wrote a letter to defendants, offering, as defendants allege, a modification of the contract, and under which defendants returned part of the goods; and that plaintiffs are entirely ignorant of the contents of the letter. The pleadings sustain these facts, and defendants do not claim the letter to be their affirmative defense. Held, that an order granting a discovery of the letter would issue.</p>

<p>Divorce—Abandonment—Separation prom Bed and Board</p> <p>A husband left Ms wife, announcing his intention never to live with her again, and testified, in an action for a legal separation, that he would not resume his relation of husband to her, and would not live in the same house with her. He had furnished her with certain sums of money for her support and that of her two infant children, and had visited her apartments every day to see the children, but all relations between himself and her had been abandoned by Mm. Held, that there was an abandonment, which entitled the wife to a separation from bed and board, and the custody of the children, with proper provision as to the husband visiting them.</p>

<p>Evidence—Heaesay.</p> <p>In an action to recover for injuries to a dog, alleged to have been inflicted by defendant, it is improper to admit evidence that a material witness for plaintiff had stated that he would, or was going to, shoot the dog, and that plaintiff had paid him to make an affidavit in the case, without laying a foundation for contradiction by asking the plaintiff’s witness about the statements. Code Civil Proc. § 3063, providing that on appeals from justices objections merely technical and not affecting the merits shall be disregarded, does not abrogate the fundamental rules of evidence.</p>

Action by Frederick Kuklo against John Kleis, commenced before a justice’s court. The plaintiff appeals from an order dismissing an appeal to the county court. Code Civil Proc. N. Y. § 3015, provides that “when the plaintiff is nonsuited, or discontinues or withdraws the action, or where the judgment is confessed, or a verdict is rendered, * * * the justice must forthwith render judgment, and enter it in his docket book.”

Action by the Wrought-Iron Bridge Company of Canton, Stark county, Ohio, against the town of Attica, for $3,975, the contract price of a bridge, and $89.61, as the expense of removing an old bridge. From the judgment on a verdict for plaintiff, and an order denying motion for new trial, defendant appeals.

Action begun before a justice by L. R. Bennett and son against the Western Union Telegraph Company for error in transmitting a message. On appeal to the county court a verdict for $51 damages was recovered, upon which judgment was entered, and the defendant appealed.

<p>Appeal from special term, Cattaraugus county.</p> <p>This is an appeal by Frank C. Vinton, supervisor of Persia, from a judgment on the findings and decision of the judge at special term dismissing his complaint in an action to compel the authorities of Cattaraugus county to apply moneys collected by taxation to the payment of certain bonds voted in aid of a railroad.</p>

Cross-appeals from special term, Monroe county. Action by Enos B. Wood, as supervisor of the town of Hamlin, against the board of supervisors of Monroe county and Alexander McVean.

<p>Appeal from court of sessions, Monroe county.</p>

Application to probate the will of Elizabeth A. S. Rockwell, deceased, contested by John J. P. Bead, the brother of decedent, who appeals from the decree admitting it to probate.

This is an appeal by James H. McGuire from a judgment in the county court reversing the j udgment of a justice’s court, in an action brought against appellant by Oscar W. Vallen.

<p>Perjury—Indictment—Allegations oe Falsity.</p> <p>An indictment for perjury, alleging that the defendant wickedly, falsely, feloniously, etc., testified to certain matters specified, though not in full compliance with Code Grim. Proc. N. Y. § 291, requiring it to contain proper allegations of the falsity of the matter on which the perjury is assigned, will be sustained under section 681, providing that no departure from the form or mode prescribed by the Code in respect to any pleading renders it invalid, unless it has actually prejudiced the ■defendant, or tends to his prejudice, in’respect to a substantial right.</p>

Action by Charles J. Pendleton to recover from the Waterloo Baptist Church .a balance of salary alleged to be due plaintiff for services as pastor. Judgment for plaintiff, and defendant appeals.

<p>1. Landlord and Tenant—Leases—Principal and Agent—Attorney in Pact.</p> <p>Where the owner’s attorney in fact executes a lease in which he names himself as lessor, the words “attorney, ’’etc., appended to his signature, are merely deseriptio personae; and, the tenant having held over after the expiration of the lease, the owner may maintain an action for the rent as the lessor’s assignee.</p> <p>2. Same—Holding Over—Liability for Rent.</p> <p>Where the tenant, under a lease for one year, which provides for a renewal, holds over after its expiration, and pays rent for the succeeding month, an agreement to continue the lease for another year will be implied, though the tenant had refused to renew it.</p> <p>3. Same—Action for Rent—Defects in Premises.</p> <p>Where a lessee for one year renews his lease by holding over, and then abandons the premises, he is estopped to deny that the drainage was in good condition when he entered, as guarantied by the lease; nor is he released from payment of rent by Laws N. Y. 1860, c. 345, exempting lessees from liability where the premises become untenantable without their fault,—the defect having existed when the term for which rent is claimed commenced.</p> <p>4. Sale—Covenants—Waiver.</p> <p>Defendant cannot set up a counter-claim on the warranty in the lease, since all objections to the premises were waived by the holding over.</p> <p>5. Same—Duty to Repair.</p> <p>Where the lessee covenants to return the premises in good repair, he cannot require the lessor to make any repairs.</p> <p>6. Same—Evidence—Making Repairs after Abandonment.</p> <p>In an action for rent, where defendant has abandoned the premises, alleging that they were untenantable because of defective drainage, evidence that plaintiff repaired the drainage after the vacation is incompetent; there being no question of negligence, and the evidence not establishing an accepted surrender.</p> <p>7. Appeal—Review—Discretion of Trial Court.</p> <p>Under Code Civil Proc N. Y. § 1187, authorizing the submission of facts specially to the jury, such submission is within the discretion of the court, and not reviewable.</p>

Action by Frederick C. Durant and others against the East River Electric Light Company for certain chattels alleged to be in premises leased by and in possession of defendant.

Action by Harry Levene and others against John M. Rabitte for the contract price of certain handkerchiefs sold and delivered. A verdict was directed for plaintiffs, and respondent moved for a new trial on the minutes.

A motion was made by the defendants to consolidate five actions pending in this court between the same parties, all upon promissory notes, the claims aggregating about 85,500. The sum sued for in each action is less than #2,000. The motion was denied upon the ground that the statute has fixed the limit of jurisdiction of this court and the parties may not enlarge it by consent.

Action by Albert ICraenler against George Sieburg for the conversion of certain property, bar-fixtures, etc. The complaint alleges, in substance, that on or about the 9th of March, 1884, the plaintiff was lawfully possessed of certain property, bar-fixtures, etc., of the value of $650; that in the month of March, 1884, defendant unlawfully converted and disposed of the same to his own use.

A judgment was entered on the verdict of a jury, in an action tried before Chief Justice McAdam and a jury, in favor of David'Kaufman against John Keenan. The defendant appealed to. the general term from said judgment, which judgment was affirmed on appeal, with costs to the plaintiff, which were taxed at the sum of $86.34, and judgment entered thereon, on the 4th day of June, 1883.

The complaint herein alleges, in substance, the commencement of an action in the district court of the city of Hew York for the Tenth… Held: all the property of the said Mapes; that on the day to which the ease was adjourned (January 16,1888) plaintiffs appeared in said court, by their said attorney, before said defendant, the presiding justice of said court, and asked for judgment against Mapes on said verified complaint; and that said justice thereupon rendered judgment…

A judgment was entered January 16, 1888, in favor of Joseph Strauss and others, plaintiffs, and against Morris Seamon, defendant. An attachment procured by the plaintiffs against the property of the defendant was vacated on appeal to the general term of this court, with costs, which were offset against said judgment.

Action by Rosalind C. Richmond against J. B Brewster & Co. for the value of a carriage sold by defendants for storage charges. Judgment was entered on a verdict for plaintiff for $900, and defendants appeal.

Action by James Blewitt against Stephen H. Olin for work done and materials furnished. A verdict was directed for plaintiff, and defendant appealed.

The complaint alleged that the plaintiffs were manufacturers of worsted yarns,'under the firm name of Wallace & Co., near Bradford, in Yorkshire, England. That about the 20th of June, 1886, the defendants; Frederick D. Blake and others, requested the plaintiffs’ firm to manufacture for defendants 500 pounds of yarn, known as No. 260, at an agreed price of 29d. sterling per pound.

<p>Appeal from trial term; Pitshke, Justice.</p> <p>. This action was brought by the plaintiff, Mary J. Clark, as executrix, etc., of Benjamin S. Clark, deceased, to recover the sum of $525, the amount of a promissory note bearing date March 20,1886, made by defendants Sloctim, payable three months alter date to the order of defendant Bullock, and delivered to defendant Bullock, and alleged to have been indorsed by him before maturity, and delivered for value to Benjamin S. Clark, who died April 7, 1888, leaving a will. Letters testamentary thereon' were issued April 29, ■1888, to the said plaintiff. The complainant alleges the presentation of- said note for payment by plaintiff and refusal to pay, the protest thereof, and-that .no part thereof has been paid, etc.</p> <p>The defendants in their separate answers each admit the making of: the note, but deny the delivery of the note bo Clark for value. Defendants each allege that the note was made by the defendants Slocum, and indorsed by defendant Bullock, and delivered to said Clark at the request of Lemuel H. Wilson, upon the express understanding and agreement, made by and between the said Clark and the said Wilson, and by and between the said Clark-and the said defendants, before the indorsement and delivery thereof, that the said Clark should within three months from the date of said note organize a gas company to operate in the town of Gravesend, Kings county, and should obtain from the local authorities of said town a license, etc., to lay pipes, etc., and that said note should be held by said Clark as collateral security for the payment by Wilson to Clark of any and all moneys that Clark should use or expend in obtaining the said license, etc.; but that Clark did not within the said three months, or at any other time, either organize the said company or obtain such license. The action came on for trial on April 9, 1888. Plaintiff’s counsel offered in evidence letters of administration granted to Mary J. Clark as administratrix, etc., of Benjamin S. Clark, and also the note in suit, the signature of the maker and indorser being admitted, and rested his ease. After the admission of the testimony of the defendants, Slocum & Bullock, as to the consideration of the note, and during the examination of defendant’s witness Charles B. Clark, the managing clerk of Benjamin S. Clark up to the time of his death, for the purpose of showing the extent of the indebtedness of the Brighton Gas Company, of Wilson, and of the defendant Slocum, to said Benjamin S. Clark, a book was produced by plaintiff’s counsel to the witness, who, after an inspection of the same, testified: “ This is the book I entered the charges in that Mr. Clark made in his day-book; it is a journal, and is in my handwriting.” Witness further testified that he found at pages 388, 389, an account with L. IT. Wilson, that he could testify from his present memory, without looking at the book, as to the transactions between Clark and Wilson. After further testimony by the witness as to certain specific services rendered by Clark to Wilson, etc., the book was offered in evidence, and the ledger account with Wilson on pages 388 and 3891 The defendants’ counsel objected to the admission of the book in evidence as incompetent and irrelevant, and' on the further ground that the witness had testified that it was not a book of original entries. Plaintiff’s counsel also offered the book in evidence, and the account therein with the Brighton Gas Company at pages 428 and 429. Defendants’ counsel objected to the admissions of said accounts, on the same grounds as before stated. The accounts were admitted in evidence, to which admission defendants’ counsel duly excepted. From a judgment entered on the verdict of the jury, and an order denying a motion for new trial, defendants appeal.</p>

<p>Appeal from trial term.</p> <p>Action by Timothy J. Cagney against the Manhattan Bailway Company, for wrongfully refusing to allow him to ride on its road. Verdict and judgment at trial term for plaintiff, and damages assessed at $500. Defendant appeals.</p>

<p>Practice in Civil Cases—Dismissal after Death of Party —Attorney and Client—Authority.</p> <p>An order and judgment dismissing an action for want of prosecution, after the death of the sole defendant, are erroneous; and, the attorney’s authority having been revoked by his client’s death, his interest in the costs will not sustain the dismissal.</p>

On motion to set aside judgment. Action by Margaret E. Niebuhr against John Schreyer for an accounting. The referee found a balance due defendant, and judgment was entered therefor on the filing of the report. Code Civil Proc. N. Y. § 1228, provides that “where the whole issue was an issue of fact, which was tried by a referee, the report stands as the decision of the court,” and that judgment maybe entered on filing the report.

On motion to quash or set aside indictment. The defendant, John Price, alias C. H. Simmons, was indicted for grand larceny in stealing thirty-five $1,000 debenture bonds, and the indictment averred a prior conviction of one C. H. Simmons, in the state of Georgia, of an-offense which, if committed in this state, would be a felony, and said C. H. Simmons was alleged to be the defendant-.

<p>Appeal from judgment on report of referee.</p>

<p>1. Railroad Companies—Negligence—Province of Jury.</p> <p>Where loaded, cars, sent onto a side-track by a flying switch, go through an open switch onto a second siding, colliding with other cars, and killing the horses, with which they were being drawn, and there is evidence to show that the loaded cars followed so closely that there was no time to close the switch, and also evidence of an attempt to warn the men in charge of the train, and as to whether the train was ahead oí time, the question as to negligence on the part of the company is properly submitted to the jury.1</p> <p>2. Same—Instruction.</p> <p>An instruction that the omission of the engineer to observe the warning given did not constitute negligence on the part of the company is properly refused.</p> <p>3. Same—Contributory Negligence—Evidence—Sufficiency.</p> <p>It being contributory-negligence to be drawing cars at train-time with horses on a side tiáck onto which cars are regularly sent by a flying switch, a verdict against the railroad company for.loss of the horses cannot be sustained where the evidence of the conductor, and two brakemen, and the record of the time of leaving the station before, as taken by both the head brakeman and engineer, show the train to have been then 15 minutes late, and another witness testifies that at 1:10, taking particular-notice of the time in order to have a clear track, and, having first telegraphed to learn the position of the train, he left the station beyond, at which the train was due at 1:30, going up the track with a hand car, three-quarters of a mile, to the switch, and arriving at least 20 minutes before the collision, although two witnesses for plaintiff testify that the train was ahead of time, one of whom did not know the schedule time for the station beyond, but said a mill whistle blew for 1 o’clock as the train passed the switch, but he did not know that the mill followed railroad time, and the other said he did not look at the time, as he had no watch.</p>

Mary Harmon was indicted for selling intoxicating liquors on Sunday. The court of sessions sustained a demurrer to the indictment, and the people appeal.

<p>Appeal from surrogate’s court, Erie county.</p>

Cullen, Justice, ■ Action by Daniel Barker, as administrator of Harriet Barker, deceased, against John H. Harbeck, Henry Harbeck, and Thomas D. Robinson, executors of Elvira Harbeck, deceased. The defendants appeal from a judgment for plaintiff, and from the order denying motion for new trial.

Action by Robert Speir, Jr., against the town of New Utrecht, for.an injunction against the collection, of assessments for opening and improving a .certain avenue, on the ground that a portion of the land for the highway was never legally acquired, but still is the property of plaintiff. At the opening of the trial it was stipulated that defendant waives all question of remedy, and that all questions be considered and decided the same as if in any other form of action.

Proceedings were instituted by the executors of Isaac H. Arnett, in the surrogate’s court, for a settlement of account. The district attorney appeared, and asked an order for the payment of the inheritance tax on behalf of the people, and objected to the account as presented. The objection was overruled and the district attorney excepted.

’ Action to set aside fraudulent conveyances. ■ Actions by Charles H. Johnson, receiver, to set aside a mortgage executed by Charles S.i Philips to Eli Bennett, and certain transfers of property by said Philips to his wife, Julia E. Philips, as fraudulent and void as against judgment creditors.

Action by Charles Williams against the Delaware, Lackawanna & Western Railroad Company for injuries. Verdict and judgment for plaintiff. Defendant appeals. The evidence showed that plaintiff, who was an engineer ■employed by defendant, left the shops on a dark night, carrying a lantern, walking through the yard on the tracks, as was the custom of the employes and others, as the company must have known.

<p>Payment—Voluntary Payment—Partnership—Accounting.</p> <p>An agreement by indorsers (copartners) with, the holder of notes that the latter should try to collect them from the makers, and on his failure to collect the indorsers would pay, does not alter the rights of the parties, nor suspend the operation, of the statute of limitations; and the payment of the balance uncollected by the executors of one of the partners, after the expiration of the statutory period, is a voluntary payment, and not a charge against the other partner, especially where the statutory period had also elapsed since the last attempt to collect from the makers.</p>

This appeal is from an order overruling preliminary objections, and directing a reference to take proofs on issues of fact raised by the petitioner and opposing affidavits. Code Civil Proc. § 1788, authorizes the court, in an action to dissolve a corporation, to appoint a temporary receiver.

<p>1. Sales—Executory Contract—Delivery.</p> <p>Under a contract for the manufacture and delivery of a specified number of bottles, in quantities as called for, within one year, to be paid for at a specified time after each shipment, plaintiff, having delivered all that were called for, is entitled to recover, though the last shipment, made at the end of the year, does not complete the number specified in the contract.</p> <p>2. Same.</p> <p>During the year defendant ordered only a small number of bottles, and on August 38th, the day after the expiration of the year, plaintiffs notified it that the remainder of the bottles were ready for delivery. In the evening of August 28th defendant telegraphed: “You may deliver remainder of bottles here on or before August 30th, on terms of contract of August 25,1883. ” Plaintiffs at once began to procure the cars necessary, 27 in number, completing the shipment on August 30th. September 2d, before any of the bottles had been received, defendant telegraphed, refusing to receive any bottles delivered after August 30th not inspected at plaintiffs’ expense, and in such quantities as defendant should thereafter order. The last of the bottles arrived at the place of consignment, September 18th, the delay being largely due to the interference of defendant in the attempt to prevent their delivery. Held to constitute a complete delivery as soon as possible after the receipt of the order of August 28th.1</p> <p>3. Same—Contract—Construction—Evidence.</p> <p>The contract calling for “amber-colored bottles, to weigh two ounces, and to be of uniform weight and color, ” evidence is admissible to show that it is impossible to produce bottles absolutely uniform in weight and color, and that the custom of the manufacturers has established a limit of variation to be allowed, and which was not exceeded.</p> <p>4. Same—Contract—Performance.</p> <p>It is immaterial that a portion of the bottles shipped by plaintiffs were not manufactured at their own works, but at those of another firm; they being manufactured for plaintiffs expressly for this contract, in moulds furnished by them, and under the inspection of one of their managers.</p>

<p>Appeal from surrogate’s court, Monroe county.</p> <p>In the matter of the accounting of Enos <2. Laney, administrator of James Laney, deceased.</p>

Injunction by Charles E. Hequembourg against the city of Dunkirk and others. Plaintiff appeals from order denying motion to continue the injunction.

' Replevin by Underhill and others against Ramsey for goods alleged to have been procured from plaintiffs by defendant’s assignor for benefit of creditors, by means of fraudulent representations. The verdict was for plaintiffs, and motion for new trial on the judge’s minutes was overruled. Defendant appeals.

Action originally commenced in justice’s court by Cyrus Crouse against the Hew York, Pennsylvania & Ohio Railroad Company. Judgment against plaintiff for $103.10 costs, and execution issued. Motion to set aside execution sustained, whereupon defendant appeals.

Application of the Rochester, Hornellsville & Lackawanna Railroad Company to acquire title to land, against Charles H, Hartshorn and others. Motion to set aside award of commissioners appointed to determine the compensation to be paid, denied, and defendants appeal. The general railroad act N. Y. art. 1, § 4, provides that no subscriber shall be received until he has paid1 10 per cent, in money on the amount subscribed.

Certiorari by People ex rel. Catherine P. Chamberlain against Iiobert Smith and others, assessors of the town of Lyons, Wayne county, and Lewis E. Wolfe, town clerk, for the purpose of reviewing the assessment made by defendants of 56 shares of the capital of a national bank, owned by relator. Writ dismissed and relator appeals.

An appeal from a judgment in a foreclosure action brought by Susan Curtis and others, as executors of William Curtis, deceased. The mortgage was given to secure an indebtedness of $5,000 arising out of a loan of that sum of money by William Curtis to the defendant, Hoses Hart, the mortgagor, on the 28th day of April, 1882. The only defense was the plea of usury.

An appeal from an order made at the Niagara circuit, on the defendants’ motion, postponing the trial of the cause for the term. At the time the notice of appeal was served by the plaintiff, he was in default in the non-payment of costs awarded by two separate orders previously granted at special term in the sum of $10 each.

Action by Mary G. Durfee to restrain Henry P. ICnowles from prosecuting proceedings instituted by him to foreclose a mortgage upon lands owned by the plaintiff. The report of the referee dismissed the complaint, with costs, and plaintiff appeals.

Action for personal injuries brought by Cornelia Ganiard against the Rochester City & Brighton Railroad Company. A verdict in favor of the plaintiff for the sum of $2,500 was returned in the circuit court. From the judgment entered o» this verdict, and from an order of the special term denying a motion for new trial, defendant appeals.

Replevin by Isaac Fenno and others against John W. Hannan, as sheriff, and others, for a quantity of goods sold by the plaintiffs, as merchants, doing business in Boston, to Michael Carroll, a merchant doing business in Rochester. The sale was made in September, 1886, and upon credit, amounting to $2,011.

Defendant was indicted for the offense of sending threatening letters. Upon being arraigned, he demurred to the indictment, on the ground that the facts stated therein did not constitute a crime. The same was overruled, and the defendant pleaded not guilty, and after the verdict was rendered moved in arrest of judgment, which was denied, and he was sentenced to imprisonment for one year and four months.

<p>Eminent Domain—Compensation—Evidence.</p> <p>Commissioners, appointed to determine the compensation for land taken for a railroad, should not consider, in mitigation of damages, a voluntary offer by the railroad company of a strip of land which, if accepted, might tend to counteract an inconvenience otherwise resulting and proper for consideration in estimating damages.1 Dwight, J., dissenting.</p>

Action by Mary E. Chaffey against the Equitable Reserve Fund Life Association. Order vacating an order for the examination of an officer of defendant as a witness before trial; whereupon plaintiff appeals.

<p>Release and Discharge—Personal Injuries—Effect of Receipt.</p> <p>Receipt of a release from all causes of action by a railroad company, from a person claiming to have been injured on one of its cars, is no admission of liability.</p>

H. Clement, Judge. This is an action brought by Fanny 0. Neer against Charles B. Farley, sheriff of King’s county, for the seizure and sale of certain personal property, consisting of livery stock, on execution issued on a judgment in favor of Oakley & Smith, and against Curtis & Neer, a copartnership composed of Joseph Curtis and Milton M. Neer, husband of the plaintiff.

Action by Chancey Stevens for the price of furniture manufactured for the defendants, Baldomero Sonto and another. Verdict for plaintiff, and from a judgment entered thereon, and an order denying a motion for new trial, defendants appeal.

This is an action upon an undertaking given by the defendant on an appeal to the court of appeals from a judgment of the supreme court in favor of this plaintiff, Margaureit A. Murray, who was defendant in the supreme court suit against William F. Barks, who was plaintiff therein.

On April 21, 1883, one M. R. Ford applied to and obtained from the defendant, the National Union Bank of Dover, N. J., a draft on the National Broadway Bank for “eight 50-100 dollars.” Ford, or some one in his interest, raised the eight” to “eighty,” thereby making it appear to be a draft for “eighty 50-100 dollars,” and then induced the plaintiff, William W. Flannagan, to give him $80.50 for it; which he did in good faith, believing the draft to have been .originally drawn…

<p>This action is brought by Bernhard Meyer against the American Star Order, a benevolent society incorporated under the laws of New York, with subordinate lodges throughout the state. Plaintiff became a member of one of these lodges—Wolf Krengel Lodge No. 26—on September 7, 1886. This lodge, having no by-laws of its own, was governed by the constitution of the grand lodge, which provides, among other things, that, upon the death of the wife of a financial member of the order in good standing, he shall be paid the sum of $500. Plaintiff on June 19,1888, received from Wolf Krengel Lodge a withdrawal card, having paid all his indebtedness to the lodge up to that date. He was at that time a financial member of defendant’s order in good standing. On June 21, 1888, acting on his withdrawal card, he applied for admission to the James A. Garfield Lodge of the same order, but was rejected. On the 2-7th of the same month he applied for admission to the King David Lodge of the order, but was again rejected. On June 30,1888, his wife died, and this action is brought to recover the $500 which plaintiff claims was payable to him at her death.</p>

Hearing on objections filed by Alice G. Wolfe to the account of Samuel D. Babcock and another, as sole surviving trustees under the will of Joel Wolfe, deceased.

<p>Objections to account of Gottlieb Kopp, general guardian, by the ward.</p>

<p>Appeal from special term, Yates county.</p> <p>Action for specific performance of a contract for the sale of land, brought by George C. Wheeler against Horace H. Wheeler. Plaintiff purchased the land from Ephraim Wheeler, his father, and defendant is also a son of said Ephraim Wheeler. Judgment for plaintiff, and defendant appeals. Code Civil Proc. § 829, provides that a party to an action shall not be examined as a witness in his own behalf, against a person deriving his title from a deceased person, concerning a personal transaction between the witness and the deceased person.</p>

This -is an appeal from two orders granted at the Erie county special term, the first ordering an attachment to issue against Frank F. Gilbert, as sheriff of Erie county, unless he shall return the execution issued in this action within five days after the service of a copy of the order.

<p>Appeal from special term, Yates county.</p>

Action by Isabella Duncan against the City of Buffalo for injuries caused by falling on a sidewalk in defendant city. From a judgment entered on verdict, and from an order denying motion for new trial, defendant appeals.

Action by John C. Maack to set aside an assignment for benefit of creditors by John H. Maack to John F. Maack. After the commencement of the action John H. Maack, the assignor, died, and Eliza Maack, as administratrix, was substituted as defendant in his place. The complaint was dismissed, and plaintiff appeals.

The action was brought by H. Nelson Curtice against Amara B. West to recover for materials furnished and work performed in the construction of a hotel building for the defendant. The defendant alleged that the materials were furnished and the work done under a contract which.the plaintiff failed to perform; and that as a consequence he has sustained damages of $1,000, for which he demands judgment. Judgment on report for plaintiff, and defendant appeals.

Action by Margaret Kenney, administratrix of Alexander Kenney, against the New York Central & Hudson River Railroad Company, for the wrongful death of decedent. Interlocutory judgment overruling demurrer to complaint» and defendant appeals.

<p>1. Railroad, Companies—Municipal Aid — Separate Petitions — Single Adjudication.</p> <p>- Under Laws N. T. 1871, c. 925, §§ 1, 2, providing that when a majority of the taxpayers representing a majority of the taxable property of a town shall make application by petition to the county judge, setting forth that they desire that the town shall create and issue its bonds to an amount named, and invest the same, or the proceeds thereof, in the stock or bonds of a railroad company, the judge shall order publication of notice, and on the day appointed make an adjudication whether the petitioners represent a m aj ority of the taxable property, where two such petitions, one calling for an amount in addition to the amount of the other, are presented, each representing a majority of the’ taxable property, but the names thereon in common do not represent such majority, a single adjudication, that each petition represents such majority, is within the judge’s jurisdiction ; and the issue of bonds to an , amount equal to the combined amounts called for in both petitions, upon such pro- " ceeding, is merely an irregularity not affecting their validity.</p> <p>.2. Same—Petition—Investment.</p> <p>A desire in the petition that the bonds be invested in stock of a railroad company is within the statute authorizing a desire that the bonds or the proceeds be so invested; the variance being merely an irregularity not affecting the jurisdictional character of the petition.</p> <p>:3. Same—Adjudication—Relief Ordered—Failure of Clerk to Sign.</p> <p>" ' Under section 2, providing that the judge shall make such adjudication, andcause . the same to"be entered of record in the office of the clerk of the county, and that ■ such judgment and record shall have the same effect as other judgments, it is not ,, necessary that it.specify any relief, or declare any amount; and the failure of the clerk to sign it Is a mere irregularity, not affecting the validity of the bonds.</p> <p>■i."Same—Authority of Commissioners—Contracts with Company.</p> <p>A petition of tax-payers for the issuance of railroad aid bonds, providing that a , certain quantity shall he issued when the road.is located through the town, authorizes the commissioners, appointed in pursuance of the petition, to postpone their issue to a later stage in the progress of the work, by contract with the company.</p> <p>.5. Same—Constitutional Prohibition—Obligation of Contracts.</p> <p>Under section 1, providing that acceptance of a subscription founded on a petition for the issuance of railroad aid bonds shall bind the company, and that non-complionce with any condition inserted in the petition shall not invalidate the bonds, a ■contract by the commissioners, whereby they subscribe the whole amount of bonds, "to be "delivered when the road is built through the town, on a petition authorizing them to subscribe, but providing that the final issue of bonds shall not be made till the road is completed,'—accepted by the company,—-hinds it, though the bonds are in escrow; and a subsequent constitutional prohibition of such aid by towns, before actual delivery of the bonds, does not invalidate them.</p> <p>6. Same—Date of Issue—Evidence. _</p> <p>_ The date of railroad aid bonds, prior to the constitutional amendment forbidding their issue, is not conclusive evidence on behalf of the holder, on the question of his bona Tides, that they were issued before the amendment.</p> <p>7. Same—Rights of Tax-Payers—Estoppel.</p> <p>The levy by officers of a town of taxes to pay interest on railroad aid bonds does not estop the "tax-payers thereof from contesting their validity.</p> <p>8. Same—Remedies.</p> <p>■A town for which railroad aid bonds have been issued" may bring an action in equity to restrain the payment of interest, and to require them to he delivered up and canceled, and is not compelled to wait till action is brought thereon at law, and. , ;set up their invalidity as a defense.</p>

The action was brought in the county court for partition of certain land in the city of Buffalo. Interlocutory judgment was entered November 17,1881, reciting that partition of the premises could not be made without great prejudice to the parties, as appeared by referee’s report; and directed a sale of the land, and division of the proceeds between the parties according to their interests.

Action by Samuel J. Howell and William A. Presby against Frank T. Gilbert, sheriff of Erie county, to recover the possession of certain personal property. Judgment for plaintiffs on the report of a referee, and defendant appeals.

<p>Appeal from circuit court, Erie county.</p> <p>Action of trespass qu. cl. brought by Sylvander B. Partridge against Leander Bussell. Trial to the court, judgment for defendant, and plaintiff appeals.</p>

This appeal is taken by defendant from an order referring the issues for trial and determination by a referee in an action brought by Charles F. Shepard against George P. Eddy as committee of Emeline A. Scovell, a person of unsound mind.

This is an action of ejectment, brought by Jane Hendy against Albert G! Smith. Judgment was rendered for the plaintiff upon a general verdict and special findings, and a motion for new trial denied, and the defendant appeals.

The 10 supervisors of the city of Auburn drew upon the city treasurer an order, of which the following is a copy: “$21,550. Auburn, N. Y., Dec. 27, 1887.

This action was brought by John L. Romer, as assignee of G-eorgeanna Guenther, against Harriets'. Koch, as administratrix of Harry H. Koch, deceased, to recover for the alleged conversion of certain personal property, to-which plaintiff claimed title as assignee. Defendant alleged in defense that Koch was sheriff, and took-the property on attachment and execution against the assignor.

<p>Appeal from Allegany county court.</p>

<p>1. Indians—Conveyance of Lands—Ratification by Senate—Implied Ratification.</p> <p>A treaty and conveyance of lands in New York, made by and with the Seneca tribe of Indians in the presence of a commissioner of the United States, as required by act Cong. March 30, 1803, and in accordance with the provisions of a treaty entered into before the adoption of the federal constitution, between New York and Massachusetts, the original claimants of the tract, and conveying to those having the right of pre-emption secured by that treaty, which treaty had been ratified by the United States after the adoption of the constitution, is valid and effectual to pass the title, even though not formally ratified by the senate of the United States, as would be required by the provision of the act of March 30,1802, that no purchase of any title or claim to lands from Indians shall be valid unless made by treaty pursuant to the constitution, where such conveyance has been followed by an entire surrender and abandonment of the land by the Indians for about 60 years, and by an act of congress providing for the protection of the fund derived from the sale, and by treaties between the United States and the Indians, in which the boundaries of the reservation as described do not include the tract in question.</p> <p>2. Same—Payment of Consideration.</p> <p>The treaty reciting payment, and no question having been raised by the Indians or by the government as to full payment being made, in the absence of clear proof it cannot be objected, after so many years, that the full price has not been paid.</p>

<p>1. Gaming—Gaming Contracts—Bohemian Oats Note.</p> <p>A contract for the sale of 34 bushels of Bohemian oats, at $15 per bushel, secured by the buyer’s note, payable in 13 months, the seller undertaking, by a bond, to sell for the purchaser, within a year, 68 bushels of like oats, at $15 per bushel, and render to him the proceeds, less 33% per cent, commission, is not a gaming contract, within the meaning of 3 Rev. St. N. Y. (7th Ed.) 1968, rendering all wagering contracts void.</p> <p>2. Contracts—Public Policy.</p> <p>Such contract is not void, as against public policy, on the ground that the undertaking on the part of the seller cannot be carried out without practicing deception, or is impossible of performance, though it is stipulated that the price is fictitious, for speculative purposes.</p> <p>3. Negotiable Instruments—Fraud—Bona Fide Holders—Province of Jury.</p> <p>■ _ The undertaking of the company selling the oats appearing on its face impracticable, and there being evidence that the company was represented to be responsible, and to have a capital of §100,000, while only 10 per cent, of that amount was paid in, and also representations as to profits made by others, and that the plaintiff was not a bona fide holder of the purchaser’s note sued on, the case should have been submitted to the jury on the-question of fraud, and it was error to 'direct a verdict for plaintiff.</p>

Certiorari on the relation of Francis A. Hill, as supervisor of the town of ■Ontario, in the county of Wayne, to review the proceedings of the board of ■supervisors of the county of Wayne in equalizing the assessments made by -the assessors of the several towns.

Action by George Bork against the city of Buffalo and Anzi L. Barber to restrain proceedings in the confirmation and collection of a tax for a local improvement. The complaint was dismissed, and plaintiff appeals. Code Civil Proe. § 1925, allows an action by a resident tax-payer to prevent waste of or injury to the estate, funds, or other property of a county, town, city, or village.

' Application for peremptory writ of mandamus. Charles F. Bishop appeals from an order directing the writ to issue, and also from an order denying his motion to be made a party to the proceeding. Relator moves to dismiss the first appeal.

The Rochester City & Brighton Railroad Company is a duly-organized corporation, authorized by its charter to construct and operate a surface street railroad in the city of Rochester. Judgment, on report of referee, in favor of Carrie E. Clark, restrains it from operating its road in and over and upon that portion of Park avenue which lies adjacent to the premises described in the complaint, and south of the center line thereof.

On motion for new trial, upon the minutes. Action by James Allen against Michael Allen, John J. Allen, and James H. Allen, for the wrongful conversion of a negotiable note. Verdict for defendants. ■ •

At chambers. Application for alimony and counsel fees. Action by Carmela Meo against Francisco Meo, to annul the marriage on the ground of fraud.

<p>Receivers—Distribution of Fund—Rents.</p> <p>Where an order of court authorizes a receiver to rent certain premises to a tenant then in possession, one of the defendants, at a fixed annual rate, and he does, not accept the lease and pay the amount, and the receiver leases to others for a greater-sum, the former tenant is not entitled to the excess.</p>

At chambers. Application by Simpson for an injunction restraining Brown and others, inspectors of election, Eighth election district of the Ninth assembly district, from permitting voters to vote by installments; that is, by one or more ballots at one time, and other ballots at other times.

Action by Isabella F. Simmons against John T. Martin, Latimer E. Jones, and others, to set aside a conveyance by Jones to Martin as in fraud of creditors. Jones, being largely indebted to one Benjamin Ludington, entered into an agreement with him and Martin, by which thé' latter agreed to pay $85,000 to Ludington, then due from Jones, and to allow Jones two years in which to repay the amount.

<p>1. Corporations—Officers—Compensation—Fixing Salary—Officer Taking Part in Meeting.</p> <p>Where an officer of a corporation whose duties do not require the exercise of any special knowledge, ability, or attention presides at a meeting of the trustees in which a resolution voting him a salary is passed, though he testifies that he did not vote, and it is not recorded that he did, no dissent appearingpthe resolution is invalid.</p> <p>2. Same—Quantum Meruit.</p> <p>The only testimony that the services were of any value being that of the officer himself, he cannot be held to be entitled to the salary on the quantum meruit.</p>

At chambers. On motion of plaintiff, Bresiin, for an injunction pendente lite to restrain the defendant, Quinn, from exercising the duties of the office of master workman of district assembly No. 49 of the order of ICniglits of Labor of America.

<p>Attachment—Affidavit—By Agent—Sufficiency.</p> <p>An affidavit for attachment, made by a son of plaintiff, which states that plaintiff is absent from the state, and that he is entitled to recover a certain sum for breach of contract, but which does not show that the affiant, as agent or otherwise, personally conducted the business out of which the claim arises, nor disclose any circumstance tending to show that he had any knowledge enabling him to state the facts in the affidavit alleged positively and of his own knowledge, is insufficient to authorize the issuance of the writ.</p>

At chambers. On motion to set aside decree. Motion to set aside a decree of absolute divorce, obtained on the ground of ■ adultery, by Samuel H, Linn against Amelia C. Linn. In 1877 the plaintiff left his wife, and has since, as he says, resided in Hew York, Philadelphia, and Europe.

The action was brought by Richard Putnam for damages alleged to have been sustained by reason of the wrongful seizure, sale, and conversion by the defendants to their own use of certain personal property belonging to him.

Action by George H. Tilden against Andrew H. Green and others, executors and trustees, and against heirs at law and next of kin other than plaintiff, to have certain devises and bequests in the will of Samuel J. Tilden •declared illegal and void.

Action by John Graham against Gideon E. Fountain and John Morrow, tereco ver moneys paid on a contract to purchase certain land, it being alleged by plaintiff that defendant did not tender a marketable title. James L. Curtis and Clarissa E. Curtis, his wife, conveyed the land in question to Eliza ltacey, as trustee of Clarissa E. Curtis, for life, and in trust to convey after her death to her surviving children.

On demurrer to complaint. Action by Eugene Kelly against Jay Gould, the Mexican Oriental International & Interoceanic Railroad Company, the Mexican Southern Bail way Company, foreign corporations, and others, for false representations, whereby ¡they obtained money on drafts drawn on an irresponsible company.

<p>1. Criminal Law—Appeal—Affirmance—Procedure Below.</p> <p>Code Grim. Proc. N. Y. § 549, provides, in reference to criminal appeals, that after the certificate of - judgment has been remitted, all orders necessary to carry the judgment into effect must be made by the court to which the certificate is remitted. Defendant’s senténce of death in the general sessions was affirmed by the court of appeals, and the cause remitted to the trial court. Held, that the general sessions properly directed the sentence to be executed, and named a day therefor.</p> <p>2. Same—Jurisdiction in Capital Cases—Constitutional Law.</p> <p>The appellate jurisdiction of the supreme court in criminal cases is statutory, and Code Grim. Próc. N. Y. § 517, providing that an appeal from a sentence of death mustbe to the court of appeals instead of the supreme court, as theretofore, is constitutional.</p>

<p>Action by Maximilian Fleischmann and another, trading as Fleischmann & Co., against Simon Newman, to restrain defendant from manufacturing and selling compressed yeast in packages of the same size and shape as the-packages of compressed yeast manufactured by plaintiffs, and from using a wrapper of the same material, and a label of the same"color, and bearing the-same device, as that used by plaintiffs. Plaintiffs’ yeast was sold in small square packages, wrapped in tin-foil, with a circular yellow label, with “Fleischmann & Co.’s Compressed Yeast. None genuine without our signa-' turc.” and a fac simile of plaintiffs’ signature stamped on it. Defendant’s yeast was put up in similar packages, with a circular yellow label, of a paltr shade than plaintiffs’ label, and on it was stamped, “Atlantic Yeast Company,” in place of “Fleischmann & Co.’s Compressed Yeast;” and in larger type, “None genuine without my signature;” followed by, “S. Newman, Propr.,” in print, and witli the signature of defendant at the bottom in larger script than on plaintiffs’ label. The labels were somewhat similar in general ■ appearance, and the court found that consumers were deceived into buying defendant’s yeast as that of plaintiffs’, though defendant sold his yeast as of hi» own make.</p>

On motion for peremptory writ of mandamus. The relator, B. A. Fraser, justice of the peace of the town of Delhi, Delaware county, on complaint duly made, issued on the 10th of September, 1887, a warrant, returnable before himself, for the arrest of one Arthur Murray, charged with the commission of a petit larceny in the town of Bovina, in said county.

<p>Municipal Corporations—Liabilities—Examination op Claimant by Comptroller.</p> <p>Under the consolidation act of Rew York city, (Laws E". Y. 1882, c. 410, § 123.) providing that the comptroller may require any person, presenting for settlement an account or claim against the corporation, to he sworn before him as to any facts relative to its justness, the word “ claim ” includes claims for damages for personal injuries.</p>

<p>Insurance—Mutual Benefit Insurance—Who mat be Beneficiaries.</p> <p>Laws N. Y. 1883, c. 175, under which defendant, a mutual life insurance company, was organized and acting, expressly recognizes the right of a certificate holder to name a beneficiary, without limiting such beneficiary to any particular class or relationship ; and, as there is nothing in the by-laws, or in the certificate sued on, expressly restricting such right, defendant had the power to issue it, and it is valid, though the beneficiary is not related to the member.</p>

<p>Eminent Domain—Profile of Railroad—Additional Land for Cut and Pill.</p> <p>Under Laws N. Y. 1850, c. 140, §8 23, 38, providing that a railroad company, before constructing any part of its road, shall make a profile of its intended route, and give the occupants of land proposed to be taken 15 days’ notice thereof, during which they may apply for a change of route, and that for road purposes a strip of land not more than 6 rods wide may be taken, and, at points where cuts or embankments are necessary, enough more to insure their safety, no new profile is necessary before taking such additional land of an owner who did not apply for a change of route, upon its being found necessary to make a cut 70 feet deep at that point.</p>

William P. Roome having commenced supplementary proceedings against his debtor, Samuel H. Swan, the receiver appointed therein sold a seat in the Consolidated Petroleum & Stock Exchange of New York, belonging to the defendant. The latter refusing to execute his written consent to the transfer, application was made for an order compelling him to do so.

<p>On motion to vacate an order to examine E. Q. Eben, a judgment debtor, in proceedings supplementary to an execution issued in February, 1874.</p>

<p>On motion to vacate execution against the person.</p> <p>Action on a promissory note, brought by G-. Carrigan against H. L. Wash- . burn.</p>

On motion for an order of interpleader. Code Civil Proe. § 820, provides that “a defendant, against, whom an action to recover upon a contract * * * is pending, may, at any time before answer, upon proof by affidavit that a person not a party to the action makes a demand against him for the same debt, * * * without collusion with him,” apply for an order substituting such person in his place, and discharging him fi:om liability to either, on paying the amount into court, and…

At chambers. On motion for trial as a marine cause. Action by David Warn against the Easton & McMahon Transit Company, for wages as master of a canal boat.

<p>Appeal from jury term; Richard O’Gorman, Judge.</p> <p>Action by George Filbert against the Delaware & Hudson Canal Company for negligence whereby plaintiff fell and had his arm crushed between the bumpers of cars on defendant’s track. Verdict and judgment for plaintiff, and defendant appeals.</p>

Action by Harriet D. Green against William H. and Harriet E. Griswold and the Union Trust Company of Hew York, to subject funds deposited with the trust company to the claims of the creditors of William H. Griswold.

Action by Charles F. Kuehnemundt against James D. Smith, as president of the New York Stock Exchange, to have the suspension of plaintiff from the exchange declared null and void.

Defendant, the First National Bank of Jersey City, had among its depositors one F. F. Wilder, who on June 1, 1883, drew his check, dated on that day, to his own order, for $500; and, at his request, the bank certified- it on the same day, making it payable at the American Exchange National Bank, New York. Wilder bought a diamond from the plaintiff, Theresa Lynch, giving her in payment therefor this check, but without indorsing it.

<p>On petition for the probate of the will of Isabella P. Sarauw, deceased.</p>

<p>1. Descent and Distribution—Le&acy Taxes—Appbaiseb’s Report.</p> <p>Under Laws N. Y. 1887, e. 713, imposing a tax on certain legacies, etc., and providing in section 13 that, “in order to fix the value oí the property subject to the payment of the tax, ” the surrogate shall appoint an appraiser, who shall ascertain? the fair market value of the property, and report thereon, it is the appraiser’s duty to report all the property liable to tax; and it is improper for his report to contain also a statement of the exempt property.</p> <p>2. Same—Property to be Appraised.</p> <p>An appraiser’s report, showing that he had appraised “ all the property of the deceased made known to him by the executor, ” is insufficient, as he should appraise all the property liable to the tax, regardless of the source of his information. .</p> <p>3. Same—Valuation op Property.</p> <p>The report should also show that the property was appraised at “ its fair market value, ” in accordance with the provisions of the act.</p> <p>4. Same—Reference to Briefs of Counsel.</p> <p>In ascertaining the property so liable, it is improper for the appraiser to rely on . the briefs of counsel for the facts to sustain his findings. f</p> <p>5. Same—Notice of Appraisal.</p> <p>The appraiser should mail notices to all persons known to him as having an interest in the property, and a report showing that only the persons whose names appear in the order of appointment were notified is insufficient.</p>

<p>Executors and Administrators—Appointment—Non-Resident—When Preferred. Administration of an estate will be granted to a non-resident married daughter, in preference to a dissolute, irresponsible, and dishonest son of the intestate, though a resident of the state.</p>

<p>On petition for the probate of the will of James Castles, deceased.</p>

J. Evans, Judge. Action by Byron Bice, assignee of C. A. Simpkins, against Thomas D. Pen-field, sheriff of Oneida county, for a debt due Simpkins for the care of cattle placed in his custody by a deputy-sheriff. The action was originally brought before a justice of the peace of the city of Borne, where the plaintiff was non-suited. The county court, on December 30, 1887, reversed the judgment of nonsuit, and the defendant appealed.

Hammond, Judge. This is an appeal by the defendant, Susanna Huebener, from a judgment in favor of the plaintiff, Deloss Penny, for the sum of $70.50, and $95.32 costs. Appellant complains of the action of the county court in finding that the counter-claim set up by her was not supported by the evidence.

At chambers. Action for injunction. Frederick A. Stokes, Horace S. Stokes, John A. Mitchell, and Andrew Miller filed their complaint against Frank Allen and Joel P. White, to restrain the defendants from the use of the name “The Spice of Life” as the title of a book being published by them.

<p>On motion for amendment of judgment.</p> <p>Motion by Henrietta E. Hoxie to amend, nunc pro tune, a judgment obtained against Anna E. Kennedy and Sarah L. Downer, executrix of the estate of Terrence J. Kennedy, deceased. Plaintiff desires to amend by adding: “ And it is hereby further adjudged and directed that the real estate hereinafter described, of .which Terrence Kennedy died seized, be sold, and that the proceeds arising from said sale be applied towards the payment of this judgment. The aforesaid real estate is described as follows;” giving description of several parcels of land.</p>

On exceptions from jury term. Action by the Second Rational Bank of Allentown on an accommodation note indorsed by the Pottier & Stymus Manufacturing Company to plaintiff. The action was tried before a judge and a jury. The judge directed the jury to render a verdict for defendant, and further directed that plaintiff’s exceptions' be heard in the first instance at the general term.

Action by Robert M. Clare against Samuel Lockard and Martin E. Halpin on a certain stipulation signed by Lockard and acknowledged before Halpin, as a notary, not to dispose of a judgment in favor of Lockard, and on which Halpin had an attorney’s lien. There was a j udgment for plaintiff, and defendants appealed.

■ Action by Annie T. Coffey against Leonard Chapal and others to recover for personal injuries received while in defendant’s service. Plaintiff appeals from a judgment of nonsuit.

Action by Mary E. James against Joseph W. Schmidt for the amount of a street assessment deducted from the price of certain lots on Cooper street, in the city of Brooklyn, sold by plaintiff to defendant. Defendant having agreed to purchase the lots, refused to accept a deed unless the assessment theretofore made should be deducted, and the deduction was allowed. The-assessment was afterwards vacated, and plaintiff demanded the amount thereof from defendant.

Action by B. William Ennis and another against Henry Hosford and another. Defendants appeal from an order directing them to furnish a bill of particulars of their counter-claim.

Action by Frank Falk against Leonard Beeckman, for the contract price of work done by plaintiff for defendant. Plaintiff appeals from judgment dismissing.his complaint,

<p>Appeal from trial term.</p> <p>In this action by Theodora de Gellert against John F. Poole and others, on a contract for plaintiff’s services as star of the ballet, plaintiff had a verdict and judgment, and defendants appeal.</p>

Action by Abijah Whitney against Eva Saxe for the possession of a piano. The trial herein was had before Justice Hyatt and a jury, on the 12th day of May, 1887, and resulted in a verdict for the defendant, the action being in replevin. An appeal was taken therein to the general term of this court, and the judgment rendered upon the trial was affirmed, with costs.

Action by Marguerite Gessner against Mary B. Smith on promissory note, tried without a jury. Defendant, at her husband’s request, indorsed his note in suit without consideration; whereupon it was delivered (in defendant’s absence) to one Love-joy, who passed it to the plaintiff.

Action on note by Joseph Spedding against Edwin N. Townsend and others. Defendants appeal from judgment for plaintiff, and from order denying motion for new trial.

<p>Sale—Action for Price—Installment Delivery—Counter-Claim;</p> <p>A counter-claim for breach of contract to deliver goods in installments, to be paid for in 30 days after delivery, cannot be maintained by a defendant who made default in payment of the goods delivered. -</p>

This action, brought by George T. Matthews against Thomas McGrath, was commenced on June 2, 1887. The complaint alleges, in substance, that on April 21, 1887, plaintiff sold and delivered, and that defendant purchased, certain goods, viz., teas, of the value of $191.33, which defendant promised to pay; that by the terms of sale defendant promised and was bound to pay and settle therefor in 30 days, viz., before May 21, 1887; and that defendant has not paid for same.

Action by Thomas Downey against the Inman & International Steam-Ship Company for damages for loss of baggage. Defendant appeals from a judgment for plaintiff.

<p>1. Waste—Alteration of Premises—Waiver—Evidence.</p> <p>In an action against a lessee for waste by making alterations in the demised premises, where defendant covenanted to make no alterations without prior written permission, evidence that the alterations were approved, and rent afterwards paid, is admissible to show a waiver of the written permission.</p> <p>2. Same—Title in Plaintiff—Estoppel to Dent.</p> <p>The lease estopped defendant to disprove the relation of landlord and tenant between the parties, whereby title in plaintiff was inferred, and it is immaterial that the complaint did not aver title in plaintiff.</p> <p>3. Appeal—Review—Objections not Raised Below—Jurisdiction of Citt Court—</p> <p>Waste.</p> <p>The objection that the city court of New York could not try an action for waste under the Code will not be considered on appeal, where the point was not raised at the trial.</p> <p>4. Same—Appealable Orders—Allowance of Treble Damases.</p> <p>An order giving treble the damages found by the jury, under Code Civil Proc. N. Y. § 1184, cannot be reviewed, unless specified in the notice of appeal, as provided by section 1301, relating to the review of intermediate orders.</p>

Accounting of trustees under the will of Margaret Willett, deceased. Code-Civil Proc. N. Y. § 2562, provides that, in addition to the sum specified in-the preceding sections, an allowance may be made-to a testamentary trustee, etc., of such sum as the surrogate deems reasonable, for his counsel fees, etc..

<p>Executors and Administrators—Reference to Settle Accounts—Costs.</p> <p>Where a reference was necessitated by the failure of an executor’s attorney to’ explain an account in those respects in which it was afterwards found erroneous by the referee, as requested by a special guardian, and several attendances before-the referee were occasioned by the neglect of the executor or his attorney to heed-the notice of a hearing, and when Anally a summons was obtained from the referee, and served on the executor personally, even then he did not attend until a day-after the one designated, the costs of the proceeding will be taxed against the executor personally.</p>

Motion by Catherine Wood to set aside, as against her, a judgment confessed by her and her husband, Abram Wood, in favor of Henry A. White. From an order denying the motion she appeals.

On motion for new trial. The plaintiff, Levi C. Van Fleet, as executor of the will of SophroniaPettibone, deceased, brought an action against the First national Bank of Hornellsville to recover $500 deposited in that institution June 9,1884, by Mrs. Pettibone. The defendant, Mrs. Lucinda McCarn, claiming this money under and by virtue of a gift causa mortis, an order was made, at the request of the bank, substituting her in its stead.

On motion to dissolve injunction. Action by Julia P. Ashley and Jeannie T. Hard, administratrices of William M. Ashley, deceased, to restrain the defendant, George W. Lamb, from proceeding to collect a judgment in favor of Charles 0. Ashley against said William M. Ashley, assigned to defendant, to cancel and annul the same, and for general relief.

<p>Action by the Staten Island Rapid Transit Company against the mayor, aldermen, and commonalty of the city of New York, to construe a lease.</p>

At chambers. On motion to punish for contempt. Action by the Prince Manufacturing Company against Prince’s Metallic Paint Company to restrain the infringement of a trade-mark. A preliminary injunction was granted against the use of the name of “Prince” for the paint sold by defendant, and against the use of the trade-mark.

<p>Corporations—Actions—Service of Summons.</p> <p>Under Code Civil Proc. N. Y. § 481, providing that personal service of a summons on a domestic corporation shall be by delivering a copy to the president or other head of the corporation, its secretary or clerk, cashier or treasurer, or a director or managing agent, service on an assistant treasurer, holding none of the enumerated positions, is irregular and void.</p>

At chambers. On motion for an order to produce papers. Bache McB. Whitlock, an attorney and counselor at law, was examined upon commission issued by the high court of justice of England, queen’s bench division, as a witness in an action brought in said court by Charles G. Franeklyn against John Walter and GeorgeE. Wright.

<p>Railboad Companies—Action to Vacate Charter—Leave to Sue.</p> <p>Where a railroad company purchases at foreclosure sale the property and franchises of another company, whose road-bed is not finished, reorganizes under Laws N. Y. 1874, c. 430, which provide that such reorganization “ shall become and be vested with * * * all the rights, privileges, and franchises” belonging to the corporation owning the property so sold, “and shall be subject to all the provisions, duties, and liabilities imposed by the general railroad act and its amendments, except so far as * * * inconsistent herewith, and with the last-named rights, privileges, or franchises, ” and fails to complete the railroad within the time limited by the general railroad act and amendments, under which the corporation owning the property was organized, the attorney general will be allowed to bring an action to vacate its charter, under Code Civil Proc. N. Y. § 1798 et seq.</p>

Action by Charles Kerr against the West Shore Railroad Company to compel defendant to restore a road and water-course, the usefulness of which is alleged to be impaired by its embankment and bridge.

Action by the village of Little Valley against Daniel P. Ayres and others, trustees of the village, to recover $150, alleged to have been misappropriated by defendants from the village highway fund. The action was tried by the court without a jury.

F Daly, Judge. Action by Simon Shultz against the Third Avenue Eailroad Company to recover for personal injuries. Defendant appeals from a judgment for plaintiff, and from order denying motion to set aside verdict and grant a new trial.

Bookstaver, Judge. Action by Michael Winters against the mayor, aldermen, and commonalty of the city of Hew York. In August, 1883, three brick houses were being erected on the south side of Eighty-Sixth street in the city of Hew York. Gessler was the builder, and Wise contractor. The plaintiff had carted brick to these buildings, and on August 18, 1883, went to the office therein to get his usual receipt of delivery.

Motion to continue pendente lite an injunction restraining the defendants the mayor, the comptroller, and the commissioner of public works, individually or as a board, constituting the gas commission, under the provisions of Laws 1882, c. 410, § 69, from executing any contracts for furnishing the city of Hew York with electric lights with certain named electric light companies, under an award made by defendants pursuant to bids for the contract.

In this action of Richard G. Buford against the Mew York Iron Mine.and others an order authorizing personal service without the state was made, which contained no direction as to publication. An order to show cause why it should not be set aside was made, but,this order did not fix any time for its service, and a preliminary objection was made on that ground.

Action by Abbie C. Fitch against the Mayor, etc., of New York and the South Ferry Railway Company, for personal injuries. Plaintiff had judgment, and the city appealed.

Motion of George F. Gilman for satisfaction of judgment on remittitur from court of appeals in the case of Lawrence J. Callanan and James A. Kemp against GeorgeF. Gilman, it being a bill for injunction. See 14 ZST. E. Rep.. 264. Motion denied, and defendant appeals.

At chambers. Motion in ejectment by John Townshend and others against Edward Frommer and others, to strike out the fourteenth paragraph of the, answer.

<p>On application for a reference to settle objections to the intermediate account of the administratrix of Simon H. Siesel, deceased.</p>

F. Daly, Judge. Action by Morris Wolf against Anna Maria Schmidt to recover the deposit paid by plaintiff on a contract for the purchase of a house and lot from defendant; plaintiff contending that defendant’s title was defective. From a judgment for plaintiff, defendant appeals. Code Civil Proc.

<p>Appeal from trial term.</p> <p>Action by Caroline Schmidtkunst, administratrix of Paul Schmidtkunst, ■deceased, for a personal injury received by the decedent while in the employ of defendants, Emanuel S. Sutro and Bernhard Hewmark. ■ The complaint alleged that the injury was caused by defendants negligently allowing a stepladder in their factory to become unsafe and insecure, and dangerous, out of order, faulty, and dangerous to life and limb. From an order denying their motion to make the allegation more definite and certain, defendants appeal. Argued before Larremóre, C. J., and Van Hoesen, J.</p>

Daly, Judge. Action by John J. Finney against Peter W. Gallaudetand Henry Fitch, Jr., as copartners, doing business under the firm name of P. W. Gallandet & Co., to recover an alleged balance due on account. Judgment for plaintiff, and defendants appeal. At folio 141, (referred to in the opinion,) the defendant Henry Fitch, Jr., being sworn as a witness, was asked in regard to a conversation held with one Wykes, defendants’ confidential clerk.

<p>1. Landlord and Tenant—Rent—When Liability Attaches.</p> <p>Where there is attached to a lease a memorandum signed by the parties providing for certain alterations in the premises, and that possession shall be given by a certain time, or sooner, if the alterations are completed, but silent as to when they are to be completed, the lessee is liable for rent after the time fixed for delivery of possession, though the alterations are not complete, and though he then tenders the first month’s rent, demanding possession, and is refused.</p> <p>2. Evidence—Parol, to Effect Writings.</p> <p>There being no ambiguity in the lease, paroi evidence of an arrangement, made about the time the lease was executed, as to when the alterations should be completed, is properly excluded.</p>

<p>Sale—By Sample—Action eor Price—Retention by Purchaser.</p> <p>Where goods are sold by sample without .any representation as to their condition, and are accepted and retained by the purchaser, the facts that they are not properly packed, and that the brands on the cases have been effaced, constitute no-defense to an action for the price; the defects complained of being patent on first inspection.</p>

<p>Contracts—Building Contracts—Liability of Architect.</p> <p>The architect of a house designed to be heated by steam is liable for the inadequacy of the chimney for the steam-heating system, and it is no excuse that he relied on the representations of the contractor for the steam-heating, as to the requisite dimensions of the chimney.</p>

<p>Appeal from city court, general term.</p> <p>Action by Casilaer F. Hartnett against Samuel B. Adler upon a promissory mote. Defendant appeals. For statement of facts, see 1 N. Y. Supp. 321.</p>

The complaint in this action by Iris C. Ryder against W. H. M. Sistare and! others alleged that defendants were copartners doing business as stock-brokers,, and plaintiff entered into an agreement with them by which they promised,in consideration of a specified commission, “to buy and sell for the account-of the plaintiff, upon her order and direction so to do, any of the stocks which are bought and sold in the Hew York Stock Exchange;” that between certain! dates plaintiff…

<p>Assignment—What Amounts to—Evidence.</p> <p>A paper purporting to be an assignment of a judgment for costs by a part)' to Ms attorney cannot have that effect where it is unacknowledged, and unsupported by any proof of the signature, delivery, or time of execution, or by proof that anything was due the attorney.</p>

Action by Charles E. Bonwell against John T. Howes in the city court to recover commissions as a real-estate broker. Judgment for plaintiff, which, •on appeal was affirmed by the general term, (1 N. Y. Supp. 435.) Defendant .again appeals.

Action by Harris Rosenthal for wrongful attachment, originally brought against Hugh J. Grant, sheriff, for whom was substituted, under Code Civil Proc. § 1421, the indemnitors, B. Miner Payne, George C. Chase, William M-Brown, Frederick P. Eppens, Leonard B. Smith, Frederick Wiemann, John F. Pupke, and Thomas Reid. Default was entered against the defendants-on June 18, 1888.

Bookstaver, Judge. Action by Carlos C. Buck against the Manhattan Railway Company, for injuries received through defendant’s alleged negligence. At the conclusion •of plaintiff’s evidence the court dismissed his complaint, and he appeals.

Action by Mary Enders, administratrix of her deceased husband, to recover •of the Lake Shore & Michigan Southern Railroad Company for the death of decedent, alleged to have been caused by defendant’s negligence. There was -a verdict and judgment for plaintiff, and defendant appeals.

Action by Augusta Ottenot, executrix, etc., against the Hew York, Lackawanna & Western Bailway Company, for damages to the property of plaintiff’s testator caused by the construction of an embankment which obstructed the way to the property. There was a judgment for plaintiff, and defendant appealed.

<p>Appeal from trial term; Titus, Judge.</p> <p>On motion for rehearing.</p>

Action for an accounting by Elizabeth A. L. Hyatt against Jacob Mark and others for royalties due plaintiff on thesale'of illuminating work. Judgment for a portion of plaintiff’s claim, and both plaintiff and defendants appeal.

Ehrlich, Judge. Action by John G. Uhler against William W. Ryer. There was a demurrer to the complaint, upon which an order was made, allowing plaintiff six days to serve an amended complaint. No judgment either final or interlocutory was afterwards entered. Defendant appeals.

Pitshice, Judge. Action by Howard Ives against Leopold Lindau and Michael Jacobs, on two promissory notes made by Lindau, and indorsed by Jacobs. After verdict for plaintiff, the defendant Jacobs having applied for a new trial on the minutes, the court of its own motion made an order setting aside the verdict and granting a new trial, provided that within 40 days the complaint be amended as to the defendant Jacobs, and, if not so amended, it be dismissed as to him.

Motions to vacate orders of arrest granted in the actions of Lippman Tannenbaum and otliers against Henry Reich, and Simon Frankel against the same defendant, founded on promissory notes. The motions were denied, and defendant appeals.

The complaint in this action, by Alfred H. Thorp against John M. Philbin, averred that defendant, by lease, hired of Andrew S. Thorp, plaintiff’s assignor, certain premises for a year from and after May 1, 1886, at a yearly rent of $1,800, payable monthly in advance; and that thereafter, about April 28, 1887, the landlord notified defendant that if he continued in possession of the premises after May 1,1887, (the day when said existing lease terminated,) the rent of said…

Action by Aaron B. Walp and others against Bobert J. Boyd. Plaintiffs recovered judgment for $47.46, and costs. Defendant appeals from the order affirming the taxation of plaintiffs’ bill of costs. Code Civil Proc.

The plaintiff, Louis Muller, on August 12,1887, left a gold watch with the defendant, Michael By an, a watch-maker, for repairs. About the 20th of that month he called for it, and the watch could not be found. On the 27th, the plaintiff again called, and the defendant told him the watch had, by mistake, been given to some other person. The plaintiff thereupon brought this action in trover to recover the value of the lost watch.

Oil exceptions from trial term. Action by J. Emery Stark against Charles McClosky for the price of goods sold and delivered. After verdict for plaintiff, defendant moves for a new7 trial on exceptions which were ordered to be heard in the first instance at the general term.

Action by Helen S. Donaldson against William Heidlinger for the recovery of one month’s rent, guarantied by defendant. Plaintiff appeals from judgment entered upon dismissal of the complaint on the trial.

On January 14, 1887, one of the horse cars (commonly called a “bob-tail”) of the defendant, the Dry-Dock, East Broadway & Battery Bailroad Company, started on its trip up town. It was road-worthy and in good condition when it started. At the junction of Chatham and Pearl streets, a drunken man attempted to get in the ear at the usual place of entrance, which is the rear end.

On motion for new trial. Action by Charles T. Root and others against Louis Zaller and others for the price of certain advertisements inserted under the following order signed by defendants: “Insert an advertisement in the American Exporter, to occupy the space of one-twelfth page, for twelve times; for which we will pay you sixty-seven 50-100 dollars.

<p>Petition by the widow of Charles A. Keep to revoke the probate of decedent’s will.</p>

<p>1. Executors and Administrators—Accounting—Attorney’s Fees.</p> <p>An administrator, who pays an attorney for his services in an action against the estate more than such services are worth, is chargeable with the excess.</p> <p>2. Same—Services to Administrator Individually—Report of Referee.</p> <p>Where services are rendered to the administrator individually and as administrator, and they cannot be separated without difficulty, the report of the referee not being plainly against the weight of the evidence, or without evidence to support it, reducing the amount claimed as a credit therefor, will, be confirmed.</p> <p>3. Same—Failure to Invest Funds—Interest—Personal Liability.</p> <p>The administrator having withdrawn, without legal advice, a sum of money belonging to the estate from a trust company, for fear it might be attached, and kept it idle for about a year, is chargeable with interest thereon.</p>

This was an action brought by Alfred G. Meyers and others against William L. Scott, William H. Barnum, and others, for equitable relief. The defendants Scott and Barnum demurred to the complaint, and from an interlocutory judgment sustaining their demurrers plaintiffs appeal.

This was an action by Mary G. Barril against the Calendar Insulating & Water-Proofing Company to recover for services performed by her assignor as-president of the company There was a verdict for plaintiff, but the court, set it aside, and ordered a new trial. Plaintiff appeals.

Patrick McGuire, a roundsman of the police force of the city of New York, • applied to the special term for a mandamus against Thomas Byrnes and others, constituting the examining board of the municipal civil service of the city of New York, to certify his name to the commissioners of police for appointment as sergeant of police, in preference to any other person not an honorably discharged soldier of the late war. The writ being refused, he appeals.

<p>Appeal from judgment on report of referee.</p>

Action by Adolph Sternfeld and others against the Park Fire Insurance ■Company. Judgment for plaintiffs on the verdict of a jury, and motion for a new trial overruled. Defendant appeals.

<p>Insurance—Actions on Policies—New Trial—Newly-Discovered Evidence.</p> <p>In an action on an insurance policy on a stock of goods the jury returned a verdict for the full amount of the policy. One of the items forming the basis of the calculation of the value of the goods, as stated in the proofs of loss, was the amount of goods returned by the insured to a certain person. No evidence was given on. the trial, except a general statement. After the trial the invoice of the goods was. discovered, in which the prices were stated to be about one-half less than in me proofs of loss. The same invoice was offered in evidence in an action on another policy on the same goods, and the jury found the value of the goods lost to be less than three-fifths of the amount stated in the proofs. Held, that a new trial should, have "been granted for newly-discovered evidence.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by Adolph Sternfeld and others against the Williamsburg_ City Fire Insurance Company on an insurance policy. From a judgment on the verdict of a jury, and an order denying a motion upon the minutes for a new trial, and from an order denying a motion for a new trial on the ground of newly-discovered evidence, defendant appeals.</p>

Action for partition by Theodore Rich and another against James V. Rich .■and others. Defendants appeal from an order charging them with the rental value of the portion of the premises occupied by them.

Action by Mary A. Foster against James Easton and others, executors, to recover a certain sum of money alleged to have been received by their testator in trust for plaintiff. Judgment was entered for defendants, from which, and from an order denying a motion for a new trial on the ground of surprise, plaintiff appeals.

Action to construe the will of Sarah Bunce, deceased. The special term entered judgment denying the American Colonization Society the right to recover a portion of the estate of testatrix, and that society appeals. The facts requisite to an understanding of the case are as follows: Sarah Bunce died in 1851, leaving a will dated July 16, 1833, and a codicil thereto dated October 18, 1849.

Action for money due by William H. M. Sanger against James M. Seymour .and others, partners as Seymour, Baker & Co. From a judgment entered upon the verdict of a jury for plaintiff, and from an order denying motion for new trial, defendants appeal.

<p>Master and Servant—Dangerous Machinery—Duty to Warn Servant.</p> <p>Where the servant is of such tender years as not to fully appreciate the dangerous character of the machinery which he is put to operate, it is the duty of the - master to admonish and instruct him; and where tho evidence is conflicting as to ■ the fact of such instruction, a verdict for plaintiS wifi, not be disturbed.1</p>

Action by John Nightengale and another against Moses L. Eiseman and' another for the sum of $663, the price of 17 pieces of goods. The order for the-purchase of the merchandise from plaintiffs was in writing, signed by the-agent of defendants, and, so far as material to this appeal, was as follows: “January 4, 1886. ' “Eiseman & Co., Grand St., City, “Order No. 11. Ship by Ex. Bill Mach. Delivery.

Action by Rosa S. Stodder against the Hew York, Lake Erie & Western Railroad Company for damages for personal injuries. From a judgment entered on the verdict of a jury in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

This was an action brought by John B. Caswell and William M. Massey, to restrain the defendants, Rowland N. Hazard and John C. Hazard, from using the name of Caswell in their firm name or business designation. Trial-to the court, and judgment for plaintiffs, from which defendants appeal.

Action by Isaac Wolf, by Iris guardian, against the Houston, West Street & Pavonia Ferry Railroad Company, for personal injuries. From a judgment dismissing the complaint, plaintiff appeals.

<p>Trover and Conversion—When Lies—Contract—Performance.</p> <p>Where plaintiff loans to defendant an article to be used by the latter until the delivery of another, which plaintiff has contracted to sell to defendant, plaintiff has no right of action for the article loaned until delivery or tender of the one sold.</p>

<p>Appeal from special term, Hew York county; Lawrence, Justice.</p> <p>Order denying defendant’s motion to compel plaintiff to file security for costs. Defendant appeals.</p>

Defendant, Jeannette M. Thurber, appeals from an order reviving this action in favor of Amelia T. Boyle, the administratrix of the plaintiff, James J. Boyle, who was a judgment creditor of the American Opera Company, Limited.

Case submitted on agreed statement. Action by Margaret Porter against Michael Carolin, executor. The cause was submitted under an agreed statement of facts, under Code Civil Proc. H. Y. § 1279.

This was an action brought by John F. Carr against John C. Bislier, to enforce a statutory liability. Verdict and judgment for plaintiff, and defendant appeals.

<p>Case submitted on agreed statement.</p>

This action was brought by Constance B. Price against Walter J. Price and others to recover her dower as the widow of Walter W. Price, deceased, in certain real estate, and among the parcels was lot and house No. 4 Van Nest place, in the city of New York. This had been conveyed to one Josephine Little, and at the time the action was commenced, June 7, 1880, she was in possession of this lot and house, claiming to be the owner.

<p>Execution—Levy and Lien—Postponement.</p> <p>An execution will not be postponed to an attachment, afterwards levied, on the affidavit of the officer levying the execution that it was intended merely to protect the debtors, where the proceedings prior to execution indicate a bona fide intention to collect the debt, and the affidavits of plaintifE in execution and of one of the debtors and their counsel, deny collusion, and show that the officer was urged to proceed, but declined to do so, and adjourned the sale from time to time, against the remonstrance of the execution creditor.</p>

<p>Appeal from special term, Hew York county</p> <p>Action by Anna E. Rudd and others against Margaret E. Beardsley. From a judgment dismissing the complaint on the merits, plaintiffs appeal.</p>

This was an action by Adam Geyer against Henry D. Brewster and others, on three promissory notes. There was a judgment for defendants, and plaintiff appeals.

This was an action brought by Adam Geyer against Henry D. Brewster, Anson P. Becker, George Lawrence, and Newton N. Lawrence, on two notes made by Brewster & Becker, and indorsed by Lawrence Bros. Co. On report of the referee, judgment was entered dismissing the complaint as to all the defendants except Brewster & Becker. Plaintiff appeals.

<p>Negotiable Instruments—Actions—Presumption in Pavor op Holder.</p> <p>Upon the production in court of a negotiable note sued on, properly indorsed, the presumption arises, not only that plaintiff is the holder, but also that he became</p> <p>. the holder before maturity, and for full value.</p>

<p>Appeal from special term, New York county.</p>

<p>1. Divorce—Evidence—Accomplice.</p> <p>In an action for divorce on the ground of adultery by the wife, the uncorroborated testimony of an alleged accomplice, who is shown to have threatened her with exposure if she did not pay him money, and who, though entertaining resentment against her after a disagreement, is stated to have returned letters written to him by her, is entitled to little weight, and a finding that a visit made by him at her home was on her invitation cannot be sustained by his evidence alone.</p> <p>2. Same—Proof op Adultery.</p> <p>Evidence that one with whom no adultery is attempted to be shown was discov ered on one occasion in the room of defendant when she was sick, using language, and guilty of conduct, improper, but not amounting to criminal intimacy, is not admissible.</p> <p>3. Same.</p> <p>Evidence that defendant after attiring herself to leave her summer hotel, and while the carriage was waiting, was talking with witness in the hall, when her alleged paramour appeared, and she went into his room, and remained 5 or 10 minutes, ■ leaving witness standing in the hall, after which she came out, bade witness goodbye, and went away, is not sufficient to sustain a finding of adultery, though the alleged paramour, whose general testimony appears incredible, testifies that adultery then occurred.</p> <p>4. Same—Costs.</p> <p>Where there is reason to believe that both parties to a divorce suit have, through the aid of detectives employed for that purpose, obtained false testimony, no costs will be allowed.</p>

This is an appeal by the plaintiff in Beadleston v. Beadleston, ante, 809, from an order assigning as a residence for Emma A. Beadleston, the daughter of the parties, the hotel in which her mother was a resident for the summer.

<p>Appeal from special term, New York county.</p> <p>Action by Henry Welsh against John Taylor. From a judgment dismissing the complaint, plaintiff appeals.</p>

O’Brien, Justice. In this action by Sarah Y. Smith, a legatee of Cornelia M. Stewart, deceased, against Henry Hilton, individually and as executor, etc., to have set aside, as fraudulent, certain conveyances from Mrs. Stewart to Hilton, and for an accounting, in which action others are joined defendants, as persons interested, the defendant Hilton moved to strike out certain portions of the answers of his co-defendants, and, among others, the parts of the following…

<p>1. Injunction—Order—Recital of Grounds.</p> <p>An order granting an injunction, and stating, in the language of Code Civil Proc. N. Y. § 603, that it appears from the complaint that the plaintiffs demand and are entitled to a judgment restraining the commission or continuance of an act, the commission or continuance of which, during the pendency of the action, would produce injury to the plaintiffs, does not recite the grounds for the order, as required by section 610.</p> <p>2. Executors and Administrators—Action for Account—Injunction.</p> <p>An injunction restraining alleged creditors from requiring executors to account before the surrogate will not be granted, where the complaint does not show any action of the surrogate detrimental to the executors, nor that he has unjustly refused to hear objections to the claims presented.</p>

<p>Appeal from circuit court, New York county; Lawrence, Justice.</p> <p>Action by Solomon Sayles against James Jourdan for meats sold and delivered. Defendant is receiver of the Brooklyn, Flatbush & Coney Island Railway Company, but the action was brought against him individually. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from circuit court, Hew York county.</p> <p>Action by Julia A. Young against Southrick E. Hebberd. From a judgment entered on the verdict of a jury, and from an order denying a motion for new trial, defendant appeals.</p>

<p>Appeal from special term, Hew York county; Lawrence, Justice.</p> <p>Action by Morris Rubens and others, creditors of S. H. Smith & Co., against Percy 0. Drake, substituted assignee for the benefit of creditors of said firm, for an accounting and distribution. From a judgment entered on the report of a referee awarding the sum of $851.92 to Henry H. Crapo, executor of Abner H. Davis, deceased, the Ninth National Bank of the city of New York appeals.</p>

Action by Anthony R. Haicas against Leon Leony for dissolution of a partnership and an accounting. From an order denying motion of defendant to appoint a referee, and granting motion of plaintiff to set aside interlocutory judgment, defendant appeals.

Ejectment for the possession of certain premises in Twentieth street, Hew York city, which, in 1883, were owned by one John B. Fowler. He conveyed them to his only child, Mary B. Henry, taking back a life-lease. Mrs. Henry died, in 1885, leaving a will, under which defendants claim. Plaintiffs claim as the heirs of John B. Fowler, the sole heir at law of Mrs. Henry, whom lie survived eight months.

In this action by E. IC. Powers, executor, etc., of Hollis L. Powers, deceased, against E. W. Savin and E. W. Vanderhoff, and John Wheeler, assignee for benefit of creditors of O. M. Bogart & Co., the controversy is as to the disposition of a fund alleged to have arisen out of the sale by Savin & Vanderhoff of the stock of plaintiff’s testator pledged to them, with other stock by O. M. Bogart & Co. The referee allowed Savin & Vanderhoff to retain a portion of the fund, and…

Action by H. L. Judd & Co., a manufacturing corporation, against Hath an Cushing, as owner in fee of a building in the city of Brooklyn, of a portion of which it was lessee, for $107,036.82 damages (in excess of insurance) sustained by the fall of the building and by a Are which resulted, which plaintiff alleged was caused by defendant’s negligent and wrongful act.

<p>Appeal from special term, Hew York county; George C. Barrett, Justice.</p> <p>In this action by Arthur Dyett, survivor of A. B. L. Horton, against James M. and Allen L. Seymour and James A. Baker, an order for defendants’ examination before trial was granted, and they appeal. For opinion on appeal from order for the production of books, etc., see post, 842.</p>

Barrett, Justice. Defendants appeal from an order for the production of their books for inspection. For a further statement,-and for the opinion on appeal from an order for defendants’ examination before trial, see ante, 841.

<p>1. Costs—Secueity eor—When Required—Discretion op Trial Court.</p> <p>Under Code Civil Proc. N. Y. § 3268, giving a defendant the right to require security for costs where the plaintiff is a non-resident, the court has no discretion, but is bound to grant the application, when made with diligence.</p> <p>2. Same—Property op Non-Resident in the State.</p> <p>The fact that a non-resident plaintiff has sufficient property in the state to satisfy a judgment for costs cannot affect defendant’s right to security.</p> <p>3. Same—Order—Notice.</p> <p>Under section 3272, providing that, where security for costs is required to be given, the court or a judge thereof, “upon due proof, by affidavit, of the facts, must make the order, ” the order may be made without notice.</p>

<p>1. Trusts—Liability of Trustee—Investments.</p> <p>A testator bequeathed to executors certain sums, to be invested in trust for his children within the discretion of the executors. Among his assets were certain mortgages and hank stock, which were afterwards set apart by the trustees to each of the trust funds. Afterwards actions were begun to foreclose the mortgages for non-payment of interest, and the property was bought in by the trustees. A prior mortgage on the premises was assumed by the trustees, and a new mortgage executed by them. Held, that, although the original investment was injudicious, this was the act of testator, and the conduct of the trustees in retaining the investments and foreclosing the mortgage and purchasing the property was not so unreasonable as to make them personally liable for the losses arising from depreciation, and that the trustees should be credited with the expense of foreclosure and taxes and expenses paid on the mortgaged property.</p> <p>2. Same—Ratification by Cestui que Trust.</p> <p>A testator bequeathed to executors certain sums, to be invested, within their discretion, in trust for his children, and afterwards the trustees set aside to each fund certain mortgages and bank stock, the assets of the estate, which afterwards depreciated, and losses occurred. When the division took place the respondent cestvA que trust was a child, and on her marriage she assumed charge of the mortgaged property set apart to-her, and which had been bought in by trustees at foreclosure. Held, that what she said or did during her minority would not estop her from demanding an accounting, and, as it did not appear that she had full knowledge of all the facts when taking charge of the property, she would not be estopped from asserting any right in regard thereto.</p> <p>3. Same—Accounting—Evidence—Sufficiency.</p> <p>On an accounting by a trustee, the referee held that certain checks produced, and proved by the trustee to have been paid by him to his cestui que trust, were given, not in payment on account of the trust fund, but as rent of certain real estate which cestui que trust owned, and for which the trustee collected the rent. The evidence showed that personal checks were given bythe trustee to the cestui que írosíwhen there was a balance of rent in her favor, and that his payments kept a little behind the net receipts for rent. Oest/wi que trust testified that the checks were for the rent, and were intended to he on account of it; and the trustee’s denial of these statements was evasive, and he made no attempt to show in what way he had accounted for the rents. Held, that the evidence sustained referee’s holding, and that his disallowance of the amount was proper.</p> <p>4. Same—Taxes.</p> <p>When money for the payment of taxes on trust property is accessible, either from the estate, or could have been obtained on its credit, the interest upon the unpaid taxes, and imposed as a penalty, should he charged to the trustees.</p> <p>5. Same—Interest.</p> <p>On an accounting by a tru stee, when the chief complaint is that he had held assets that were not as valuable as supposed, but which were purchased and held by the testator, and nothing is shown charging the trustee with gross dereliction of duty, or that he used the trust funds in his own business, or made any gain or profit therefrom, he should not be charged with interest, with annual rests.</p>

<p>Appeal from special term, Hew York county.</p> <p>Action by Catherine Fink against Cornelia F. Berg, a devisee of Henry Pfenning, for $1,000 loaned the testator. Judgment for plaintiff, and defendant appeals.</p>

Action on contract by Hermann Goetze, Ernst Popert, and Axel Thomsen, doing business in Hamburg, Germany, under the Arm name of Goetze & Popert, against John Dunphy. There was a verdict for plaintiffs, on which judgment was entered, and defendant appeals.

Action by M. Y. B. Smith and others, judgment creditors of James White, against James White, Charles Wise, and others, to set aside an assignment for benefit of creditors by White to Wise. Judgment for plaintiffs, and defendants appeal.

Mortgage foreclosure by Harrison R. Johnston against Thomas F. Donvan and others. A contract was made for the sale of the premises in question by Charles A. Johnston to Donvan. Charles A. Johnston conveyed to John H. Carnes, who executed a deed to Donvan in performance of the contract, and took the mortgage in suit. The mortgage was assigned to Charles A. Johnston, who assigned it to plaintiff. Judgment for defendants, and plaintiff appeals.

Action by Alplieus M. Hinman against Robert T. Pierce and Lorin Palmer, doing business in the city of Hew York under the firm name of Robert T. Pierce & Co., for an accounting. The answer alleged certain counter-claims, and moved for an order requiring plaintiff, as a non-resident, to furnish security for costs.

Lawrence, Justice. This was an action by John S. Miller, Henry W. Leman, and Benjamin P. Chase against Charles H. Perry, to recover damages for the failure of defendant to deliver certain shares of mining stocks. This appeal is from an order denying defendant’s application to have plaintiffs’ undertaking in attachment-increased.

<p>Appeal from special term, New York county; George P. Andrews, Justice.</p> <p>This is an appeal by defendant from an order denying its motion to vacate-an attachment procured by the plaintiff, Almira Lee. The affidavits, exhibits, etc., referred to in the last paragraph of the opinion, are here omitted on account of their great length.</p>

Action by George D. Smith against M. Edwin Servís. From an order granting defendant’s motion to change the place of trial from Yew York county to Monroe county plaintiff appeals.

<p>Appeal from special term, New York county; Lawrence, Justice.</p> <p>From an order granting plaintiff’s motion for bill of particulars, (1 N. Y. Supp. 222,) defendants appeal.</p>

Eansobi,. Surrogate. Application by Henry B. Marshall and Clarence B. Conger, executors of Frederic P. Marshall, deceased, to reduce the compensation of a special guardian appointed to attend the settlement of their accounts. The application was-denied, and the executors appeal.

<p>Appeal from circuit court, New York county.</p> <p>Action for the price of goods.sold. Defendant appeals from a judgment •entered on a verdict directed by the court in favor of plaintiff.</p>

<p>Appeal from special term, New York county; George P. Andrews, Justice.</p> <p>Action by the New England Mutual Life Insurance Company against Jonathan Odell, Daniel II. Mills, William A. Odell, and Hannah S. Brick, to compel defendants Jonathan and William A. Odell and Daniel II. Mills to interjplead with defendant Hannah S. Brick as to their right to a certain policy of life insurance payable to the latter, tendering the amount of the policy, and -.seeking to enjoin the former defendants from prosecuting an action for dividends claimed by them to be due on the policy. Injunction granted, and defendants Jonathan and William A. Odell and Daniel H. Mills appeal.</p>

Appeal by Adam Emmerich, defendant, from an order reviving the action,, and substituting the petitioner, Thomas J. Clute, as plaintiff, in the place- and stead of.Isabella B. Clute, deceased. . The action was brought to recover' ■possession of real property, and for its use, and damages. Judgment was-obtained by plaintiff against defendant, May 6, 1881, for the recovery of possession, and for $2,561.73 for rents, and costs. On December 27, 1882, Mrs..

S. Ransom, Surrogate. This is an appeal by Jane Oakes, executrix of the will of Winifred Austin, deceased, from an order of the surrogate directing the payment to the respond-ent, Leonidas S. Osborn, of the sum of $500, in anticipation of the payment-to him of certain legacies under the will of decedent.

Action by G-irand Poster against Matthias H. Schneider, the Pelham Hod-Elevating Company, Margarethe Clemens, William Wilkenning, James H. Lee, Franklin Lee, Nelson Holland, Charles S. Kendall, impleaded with others, to foreclose a mortgage.

Petition by Stephen R. Gray, executor of Esra L. Pasco, deceased, for con•struction of said decedent’s will, and directions as to payment of debts, legacies, etc. The first clause of the will was as follows: “I give, devise, and bequeath to my wife, Barbara A. Pasco, all my real and personal property, to have and to hold as long as she may live, subject to the following terníá and restrictions: I do hereby authorize and empower my said wife to sell all or any of my real…