Volume 20 — New York Appellate Division Reports

Certiorari issued out of the Supreme Court, and attested the 13th day of April, 1897, directed to Jacob O. Austin and others, composing the election board of the town of Minisink, commanding them to certify and return to the clerk of the county of Orange all and singular their proceedings had in conducting the annual town meeting held in the town of Minisink, in the county of Orange, on the 2d day of March, 1897.

Appeal by the defendant, Alice McMahon, from an interlocutory judgment of the County Court of Kings county in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 25th day of May, 1897, upon the decision of the court, rendered after a trial before the court without a jury, overruling her demurrer to the complaint.

Appeal by the defendant, Eugene V. N. Bissell, from a judgment of the Supreme Court in favor of the plaintiffs, entered ■ in the office of the clerk of the county of Kings on the 11th day of February, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of February, 1897, denying the defendant’s motion for a new trial made upon the minutes.

<p>Demurrer to a return to an alternative writ of mandamus — the sufficiency of the writ is put in issue thereby — application for restoration to full membership in a trades union, which does not state that the relator has been expelled ■— denial, in a return, of knowledge or information.</p> <p>An alternative writ of mandamus has the character of a complaint in an action; it must state the facts which constitute the cause of .the grievance of the relator, and is subject to a demurrer when no sufficient cause appears.</p> <p>A demurrer to a return to a' writ puts in issue the sufficiency of the writ itself. Where the proof in support of such a writ, procured by a member of a trades union, alleges, in substance, that the union has refused to accept his dues because he has failed to pay a fine imposed upon him, and for the same reason has declared a “■ strike ” against him by which he lost work; that a committee of the international union, Of which he is a member, has, as he • has been informed, decided adversely to him, upon his application for his restoration to his rights in the local union, and there is no statement of the effect which this latter determination may have, nor any allegation that he has been expelled from or has ceased to be a member of the local union, there are no' facts stated . sufficient to justify the issue of an alternative writ of mandamus requiring the local union to reinstate the relator to complete membership, or to show cause to the contrary.</p> <p>A return made to an alternative writ of mandamus, which denies any knowledge or information sufficient to form a belief as to the matters set forth in the writ, puts such matters in issue.</p>

<p>Village bonds — when expenditures are “ ex.tram'dinary.”</p> <p>On June 12, 1897, village bonds, when authorized by a vote of the electors of a village, for “ extraordinary expenditures ” of the village, mentioned in section 4 of title 4 of chapter 291 of the Laws of 1870, as amended by chapter 131 of the Laws of 1884 and in chapter 879 of the Laws of 1895, might be issued, for, any village purpose, where the amount of the expenditure was in excess of the-limit of amount (§500) imposed, by' section 3 of title 4 of chapter 291 of the Laws of 1870, as amended by chapter 400 of the Laws of 1893, upon the village trustees in making “ Ordinary expenditures.”</p>

Appeal by the defendant, Edward Y. Loew, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 4th day of December, 1896, upon the verdict of a jury, and also from an order bearing date the 30th day of November, 1896, and entered in said clerk’s office, denying the defendant's motion for a new trial made upon the minutes.

Appeal by the defendant, William Kelly, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 14th day of November, 1896, upon the decision 'of the court rendered after a trial at the Queens •County Special Term.

Appeal by the defendant, the John Hancock Mutual Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the- office of the clerk of the county of Orange on the-17th day ,of April, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

Motion by the relator to punish the respondents for contempt of court for failing to comply with the provisions of a peremptory writ of mandamus issued by the Appellate Division of the second department.

<p>Motion by the petitioner,. Frederick Snyder, to vacate and set aside orders of the Appellate Division in the second department,, entered in the office of the clerk of the county of Kings on the 17th day of June, 1896, and on the 1st day of March, 1897, appointing commissioners to estimate the damages caused by the opening-of Bay Twenty-Third street and by the closing of De Bruyn’s lane..</p>

<p>Street’railroads — 'a consent of a common council that a street railroad, may maintain a certain rate of speed,, is subject to change — police power.</p> <p>A stipulation, contained in the consent of the common council of a city to the construction of a street railroad operated by electricity, that the rate of speed should in no' instance exceed ten miles per hour, is not available to the railroad company as a contract giving it the right thereafter to operate its cars at that speed.</p> <p>The provisions of the Railroad Act (Laws of 1890, chap. 565, §98), that the proper local authorities “may make such reasonable regulations and ordinances as to the rate of speed (or) mode of use of''tracks * * * as the interests or convenience of the public may require,” grant to a common council a continuous power to control the speed of street cars, and one common council cannot bargain away the rights of its successors to exercise such power.</p> <p>Semble, that the rate of speed of cars in streets and highways cannot be made the subject of contract either by the Legislature or by the common council of a city, as the matter is within the police power of fhe State, and the Legislature cannot divest itself of such power.</p>

<p>Deed — inconsistent statement in a description —• a practical location for eighteen yearrs will govern.</p> <p>Where a dispute arises between the owners of adjoining premises, claiming under deeds from a common grantor, as to the location of the division line, the description of which, in the older deed, presents inconsistencies which cannot be reconciled, the acts .and declarations of the parties are competent upon- the question as to the proper construction to be given to the conveyance, and the court may properly adopt a division line which has, for a -period of eighteen years subsequent to the first conveyance, been marked by a retaining wall maintained by the owners between their lots.</p>

Appeal by the defendants, Charles W. Hayes and others, as trustees of the village of Rockville Centre, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12th day of June, 1897, granting a peremptory writ of mandamus.. •

Appeal by the plaintiff, Samuel T. Shaw, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 1st day of February, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of January, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 9th day of December, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of December, 1896, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Joseph L. Proseus, as executor, etc., of Esther Proseus, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 13th day of February, 1897, upon the decision of the court, rendered after a trial at the Westchester Special Term, before the court without a iury, the parties having waived a jury trial.

Appeal by the defendants, Charles H. Morgan and others, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the otli day of May, 1897, directing the issuance of a peremptory writ of mandamus commanding the defendant inspectors to count for the relator certain votes for the office of .trustee of the village of New Rochelle on two ballots which were voted at the village election held…

Appeal by the defendant, Isabella M. Burton, from a judgment ■of the Supreme Court in favor of the plaintiff, entered in the office •of the clerk of the county of Westchester on the 12th day of January, 1897, u]dou the decision of the court rendered after a trial at the Westchester Special Term. The action was brought by thé plaintiff, the sheriff of Westchester county, to recover his fees for levying the attachments referred to in the opinion.

Appeal by the plaintiffs, Henry May and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 16th day of June, 1897, upon the decision of the court rendered after a trial at the Queens County Special Term dismissing their complaint upon the merits.

<p>Appeal by the plaintiff, Mary A. Felts, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 23d day of March, 1897, upon the decision of the court rendered after a trial at the Monroe Special Term dismissing her complaint, with costs, upon the ground that it did not state facts sufficient to constitute a cause of action.</p>

<p>Debtor and creditor — a bona fid e'creditor “secured" to the- exclusion of other®—a single instrument of transfer “ securing” two creditors, one fraudulent, the, other not, sustained as to the latter — delay in the furnishing of the consideration of the-transfer.</p> <p>A debtor has a right to transfer his property to one creditor to the exclusion of his other creditors; provided the transfer is made in good faith and upon a reasonably adequate consideration in the amount of "the debt.thus paid; but:"the adequacy of the consideration is not material and will hot.protect the transfer-where the intent of the transfer is to hinder, delay and defraud the-'-debtor’s creditors.</p> <p>A transfer by a debtor to his wife will be closely scrutinized, and the fact that she , subsequently employed her husband as. her agent in the business formerly transacted by him, is competent upon the question of fraud, ■ ■</p> <p>A creditor wbO'Confessediy held a valid claim against his debtor, knowing that his debtor was- in embarrassed circumstances, and that his means of paying the debt rested largely in the plant and’property which he owned, with a view to obtaining satisfaction of his debt, acting according to usual business impulses in such cases, treated with his debtor and) finally reached a conclusion that he - would take one-half, the plant and property, offered in liquidation of the indebtedness t.o him, of his debtor, who assigned the other half to his wife, asserting,' that she was a just creditor to the extent of its value.</p> <p>Held, that such transfer to the creditor was valid as against other creditors of the common debtor, although the latter was not in fact indebted to his wife, and that the transfer was void, as against his creditors, to the extent of the half transferred to her.</p> <p>Semble, that it was not necessary that the creditor should believe that his debtor was indebted to his wife provided that the creditor’s purpose was to obtain satisfaction of his own claim.</p> <p>The fact that the creditor did not at the time of the transfer, pursuant to the agreement made with his debtor, surrender to him all the evidences of his debt, consisting of notes, some of which had been discounted, and against all of which the creditor had agreed to protect the debtor, is not material, where it appears that the creditor carried out his agreement within a reasonable time.</p>

<p>Appeal, by the plaintiff, Thomas E. Lawrence, from a judgment of the -Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 13th day of January, 1897,.upon the decision of the-court rendered after a trial at the Erie Trial Term before the court without.a jury.</p> <p>Action upon a Lloyds insurance policy hearing the name of twenty-five underwriters, executed by C. Hagen, as. attorney in fact,.for the twenty-four underwriters, and by himself as one of the twenty-live.</p> <p>The policy provided, among other things, viz.: “No action shall be brought to enforce the provisions of this policy, except against the attorney, and representing all, of the underwriters, and each of the underwriters hereby agrees to abide the result of any suit so brought as fixing his individual responsibility hereunder. Judgment entered in such an action shall be satisfied out of the Unexpended premiums in the hands of the underwriters. If such premiums shall be insufficient, then out of the deposit made by the several underwriters, as hereinbefore expressed and limited; but in no case shall the judgment bind the property of the said attorney to a greater extent than his liability as an individual underwriter.”</p> <p>A loss occurred and was adjusted and apportioned, and proofs of loss were furnished to the company “ and the proportionate liability of each underwriter is the sum of $83.46.”</p> <p>The court found as a fact, viz.: “ That no suit has been brought against Hagen as attorney.</p> <p>“ That each underwriter has been separately sued on this policy, and twenty-five actions are now pending, including- one against said Hagen, as one of said Underwriters.” The cause of action was duly assigned to the plaintiff.</p> <p>The court found as conclusions of law, viz.: “ I find and decide that before any action can'be maintained against the underwriters, individually, tó recover upon said policy and to assert any liability against them as individuals, their attorney in fact must first be sued, as stipulated in said policy.</p> <p>“ 2. That the clauses in said policy, hereinbefore recited, requiring actions for the enforcement of said policy to be commenced primarily against the said attorney, C. Hagen, are valid, and compose part of the contract between the underwriters and the assured.”</p> <p>Upon such conclusions of law the complaint was dismissed, .with costs.</p> <p>The trial judge, in an opinion, correctly stated the facts and elaborately discussed the questions of law.</p>

<p>A ftidgment for the plaintiff in an action of conversion — when it is reversed, with costs, upon an appeal, the defendant is entitled to an execution against the person of the plaintiff.</p> <p>A complaint in an action which alleges that, after the defendant had assigned to, and agreed to collect for, the plaintiff a sum due the defendant from a corporation, he wrongfully collected it and converted it to his own use, states a cause of action justifying an order of arrest under subdivision 2 of section 2895 of the Code of Civil Procedure, and the issue of an execution against the person of the defendant upon any judgment recovered therein; and where such a judgment in .favor of the plaintiff is reversed upon an appeal, with costs, the defendant is entitled to issue upon the judgment.for costs an execution against the person of the plaintiff.</p>

Appeal by the plaintiff, John F. Dorthy, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 3d day of January, 1896, upon the decision of the court rendered after a trial at the Monroe Special Term. The court found as conclusions of law, viz.: “1.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of thp Supreme Court in favor of the plaintiff for $2,600, entered in the office of the-clerk of the county of Onondaga on the 20th day of October, 1896,.' upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of October, 1896, denying the defendant’s motion for a new trial made upon the minutes. ■The action was brought to recover for…

Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure. The question related to the title and ownership of certain lands situated in the city of Buffalo and particularly described in the submission papers.

Appeal by the defendant, Henry M. Huntington, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tates on the 17th day of March, 1897, for $1,462.84, besides costs, upon the report of a referee. This action was brought to recover money alleged to be due the plaintiff from the defendant upon a promissory note and for money loaned and for money had and received.

Appeal by the defendant, Farmers’ Mutual Insurance Company of Orleans and Niagara Counties, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk oí the county of Niagara on the 11th day of November, 1896, upon the decision of the court rendered after a trial at the Niagara Trial Term before the court without a jury.

Appeal by the defendant, Metropolitan Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff,entered in the office of the clerk of the county of Cayuga on the 15th day of May, 1896, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 28th day of May, 1896, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, John Pitass, from a 'judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 23d day of November, 1896, on the verdict of a jury, and. also from an order entered in said clerk’s office on the 23d< day of November, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>This action was brought on'to trial on the 13th day of October, 1896, at a Trial Term held by Hr. Justice Lewis, and after a trial of five days in length the case was committed to the jury and a verdict of $3,500 in favor of the plaintiff was returned.</p>

<p> Claims against the estates of decedents should he closely scrutinised. </p> <p>The evidence in support of a claim made against the estate of a decedent should be closely scrutinized.</p> <p>A claim based upon an alleged loan claimed to have been made by a sister to her deceased brother, rejected, where there was.no written evidence to sustain the claim, and there was proof tending to show that the loan was, in fact, an advance made by her to her father, in conjunction with a similar ad vanee made to him by her brother, in order to enable the father to procure the satisfaction of a mortgage which he had given.</p>

<p>Appeal “by the defendant, Buffalo General .Electric Company, from an order of' the Supreme Court, made at the Erie Trial Term and entered- in the office of the clerk of the county of Erie on the 2d day of April,. 1897, denying its motion for a new trial made upon the minutes after the jury had rendered a verdict in favor of the plaintiff upon a trial at the Erie Trial Term. -</p>

<p>Arson — a priest, by Ms servants, burning a parochial school building to get the insurance — evidence as to his relations with his servants ■— his insolvency — a telegram sent to a servant on the day before the fire — the accused 'should account for his whereabouts —• res gestee of tlie flight of an accomplice — acts of insurance agents applied to for insurance — admissions of accused that he could not get property insured in his own name — demand after a loss that moneys be paid to the trustees of his church and not to the bishop — letter of his bishop charging the _ priest with “public drunkenness” — motive for arson — charge as to the failure of the accused to testify.</p> <p>Where a prosecution for the crime of arson is conducted upon the theory that the defendant, the pastor and treasurer of a church at Charlotte, near Rochester, and a member of its board of trustees (consisting, besides himself, of two-lay members, the vicar-general and the bishop of the diocese), who had been threatened by the bishop with immediate removal from his charge, procured a parochial school building, where a school was conducted by three sisters, under his supervision, to.be burned by his two servants, John Cronin and Nora Cronin, in order to get the insurance money and thereby secure the payment of a balance of salary due him as pastor and pay his debts, proof is admissible that his relations with the servants in question were confidential; that he had caused' real estate to be conveyed to them without receiving any consideration therefor, and in some cases without their knowledge; that he was insolvent in the month when the fire took place, and that executions were then oustanding against him, and that his relations with the sisters at the school had become somewhat strained and disturbed.</p> <p>After the People have proved that the defendant, having arranged for an entertainment to be given in the school building upon the night of the fire, left his-home for Troy on the morning of the day before the fire occurred, they may show that he, only a few hours later, prepared upon the train, and sent from Syracuse to Nora Cronin, a telegram in the following words: “TellMr. Ellis I was called away suddenly; return if possible to-night. Have Johnnie close all doors and lights out after entertainment; many tramps now in Charlotte; use-your own best judgment."</p> <p>Semble, that where, in such a case, it is in the power of an accused person to-account for his whereabouts, the fact that he fails to do so is strong presumptive evidence against him.</p> <p>In such a case the People may properly give the following evidence:</p> <p>Where proof has been made that watchers of the parochial school building upon the night of the fire saw John Cronin come out of the defendant’s residence and go in -the direction of the school building, and thereafter saw a blaze in it, and a man rush out of the. building, who, being pursued, ran into the defendant’s house, where Mora Cronin was found standing in the dining-room door with a lamp in hfer hand, which, upon the appearance of the officer, she blew out, thus enabling the man to escape temporarily (notwithstanding which act the officer was enabled to identify the man as John Cronin), the People may show, as a part of the res gestee of the flight of John Cronin, that Hora Cronin was dressed in ordinary clothes, and that her hair was done up in the same manner as if she had been at work, although the fire occurred about two o’clock in the morning.</p> <p>.An examination of John Cronin as to his whereabouts on the night of the fire is . admissible. .</p> <p>The bookkeeper of an insurance agent may testify that he hesitated, in the absence of his principal, .to issue, within a week of the fire, the additional policies which the defendant requested upon the parochial building, for the reason that he knew that the company would not carry any insurance in the name of the defendant, but that he thought that perhaps the agent would write the policies in another shape.</p> <p>The agent himself may testify that two days before the fire occurred he notified the defendant that his company would cancel the policies which it had issued, and that it would not insure any property in Charlotte, “especially on Father Fitzgerald’s (defendant’s) property;’’ and aimortgagee of the property of thedefendant'may testify to a statement of the defendant, in substance, that he could not get his property insured in his own name, and that'he would have it transferred to some one else in order to effect the insurance, mentioning in this connection. Hora Cronin. . " •</p> <p>The People may also show that the defendant, in demanding .payment to himself of the insurance moneys, stated, in effect, that the trustees of the church would ' do anything he told them to do; that the money must be paid to the trustees; that if the company settled with the bishop or any one else he would hold it responsible, and that he was willing to sacrifice-a little on the policies if a prompt settlement-were made; and may further show by the lay trustees of the church that the latter had nb part in obtaining the insurance in question, and that it was procured solely by the defendant; and by the bishop, in charge of the ■diocese, having the power to remove priests, a conversation which he had with, the defendant a few hours after the bishop had written him a letter complaining of his “repeated and public drunkenness,” and threatening him with removal . from his charge, in which the bishop, after the priest had said that he wished to deny the charge, replied that the priest need not bring witnesses ‘ ‘ because his own appearance testified it (the charge); was true;” and, upon the bishop’s being .asked whether there was any personal liability of the pastor, so far as the sis.ters conducting the parochial school were concerned, he may testify that ‘' there was in this case; if. he failed to carry on the parish and raise the necessary money, I should remove him and put some one in the parish. There was no personal liability on his part, so far as the sisters were concerned, outside of the revenues of the church.”</p> <p>'The letter thus written by the bishop, ' when taken in connection with oral, testimony of the bishop as to a conversation with the defendant covering the. substance thereof, and with proof of the insolvency of the pastor, is admissible upon the question of motive, as it tends to show that an imminent crisis had arisen in the affairs of the pastor, involving, among other things, a need of money upon his part for the payment of his back salary and debts; and it may be inferred that, in burning the parochial school building, he was attempting to realize upon the insurance policies thereon, to the end that, when these moneys came into the hands of the trustees of the church, persons whom the pastor alleged that he was able to control, he could, as he might under the rules of the church, apply the moneys to the payment of the sum which he claimed the church owed him..</p> <p>Instructions by the court to a jury, relative to section 895 of the Code of Criminal Procedure, to the effect that the defendant’s failure to testify as a witness on his own behalf should not create any presumption against him, and' that the jury were not to assume that he would deny or admit any of the evidence, but must consider the evidence unaffected by the fact that the defendant did not. take the witness stand, is a sufficient charge on the subject.</p>

<p>Negligence — testimony of a physician as to the perma.nency of injuries and their probable effect ■— contradicting a witness by proof of his own statements.</p> <p>A physician, who examined an injured person and has testified that in his opinion she was suffering from spinal irritation, may give his judgment as to whether the difficulty will prove permanent, and what effect upon the system it will have, and may describe the probable effect, such as “nausea and vomiting, and also disturbed action of the heart, faintness, and affected the pulse, make it weak, perhaps irregular, produce pallor of the skin,” etc. Such evidence is not mere conjecture, but expresses the deliberate judgment of a man of science, based upon actual observation or experience, as to results' and ■conditions which might naturally and ordinarily be anticipated.</p> <p>Where a witness has testified upon a subject which is material to the issue, it is competent to prove prior declarations made by him which were inconsistent with and contradictory of his testimony given upon the trial, even though the impeaching evidence may incidentally have some bearing upon the main question. ■</p> <p>Green, J., dissented.</p>

Appeal by the defendant, Genesee Valley Blue Stone Company, ■ from a judgment of the Municipal Court of the city of Buffalo in ■favor of the plaintiff, for $233.59 damages and costs, entered in the office of the clerk of said court on the 23d day of November, 1896, upon the decision of the court rendered after a trial.

<p> An express trusts-a convey anee by the remainderman to the life beneficiary does-not terminate it. </p> <p>The trust created by a devise of land to a; trustee to receive the rents and profits of tire same and pay said rents and profits over to or for the benefit of Wilson D. Oviatt for and during the term of his natural life, and at his death to sell . said premises and convert the same into money and pay the same over to Percy D. Oviatt at the time he shall' arrive at the age of twenty-one years, or authorizing said trustee to convey said premises to him at his discretion, as to . which will be the best for said Percy, is not terminated .by a conveyance by Percy D. Oviatt on his arrival at the age of twenty-one. years to Wilson D. Oviatt of all his interest in the premises and a release by Wilson í). Oyiatt to the trustee.</p> <p>The validity of chapter 452 of the Laws of 1893 and chapter 547 of the Laws of 1896, section 83, so far as they assume to furnish a means by which a beneficiary can alienate his trust interest and thus terminate the trust without the consent of the trustee, considered.</p>

. Appeal by the plaintiff, Patrick Cunningham, from a judgment of the Supreme Court in favor.of -the defendant, entered in. the office of the clerk of the county of Onondaga on the 17th day of .February, 1897, upon the dismissal of his complaint by direction of 'the court after a trial at the Onondaga Trial Term. The plaintiff was a teamster in the employ .and pay of one John W. Gee.

Appeal by the plaintiff, Benjamin F. Hazleton, from. a. judgment of the Supreme Court in favor of the defendants, entered in -the office, of the clerk'of the county of Cattaraugus on the 10th day of July,, 1896,. upon the decision of the court, rendered aftpr a trial at. the Cattaraugus Special.Term, dismissing li-is complaint upon the merits.

Appeal by the defendant, The Greenwich Insurance Company of the city of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 30th day of March, 1896, .upon the verdict- of a jury, and also from an order entered in said clerk’s office on the 22d day of January, 1897, denying the defendant’s motion for a new .trial made upon the minutes.

Appeal by the plaintiff, A. H. Andrews & Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Onondaga on the 2d day of February, 1897, upon the decision of the court rendered after a trial at the Onondaga Trial Term, specific questions of fact having been submitted to the jury, who rendered a verdict in favor of the defendant. •

Appeal by Lucius Bradley, the plaintiff in the first above-entitled action and a judgment creditor of the defendant in each of the above-entitled actions, from an order of the Snjireme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Cayuga on the 19th day of February, 1897, denying his motion to vacate a confession of judgment made by the defendant, Adelbert 0. Glass, in favor of John L. Shultz and Carrie E. Wells.

Appeal by the plaintiff, Bernard F. Martin, from a judgment of the County Court of Monroe county in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 11th day of November, 1896, which affirmed upon appeal a judgment of the Municipal Court of the city of Rochester, vacating a warrant of attachment and a summons issued in the above-entitled action.

Appeal by the defendants, Elgene L. Read and. another, from a judgment of the Supreme Court in favor'of the plaintiff, entered in the office of the clerk of the county of Erie on the 3d day of February, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the loth day of April, 1896, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Charles Lupean, from a judgment of the County Court of Chautauqua county .'in favor of the defendant, entered in. the office of the clerk of the county of Chautauqua on the 10th day of July, 1896, upon a nonsuit granted by the court, and also from an order entered in said clerk’s office on the 25th day of January, 1897, denying the defendant’s motion for a new trial made upon a case containing exceptions.

Appeal by the defendants, George A. Lee and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 24th day of March, 1896, upon the verdict of a jury for $1,282.47, and also from an order entered in said clerk’s office on the 2d day of April, 1896, denying the defendant’s. motion for a new trial made upon the minutes.

Appeal by the defendants, John Coyne and another, from, a final judgment of the Supreme Court in favor of the plaintiff, entered in the. office of the clerk of the county of Oneida on the 23d day of March, T897, upon the decision of the court, rendered after a trial at the Oneida Special Term, overruling their demurrer to the plaintiff’s complaint, with notice of an intention to bring up for review an interlocutory judgment entered in said- clerk’s office on. the.23d day of…

Appeal, by the plaintiff, Daniel H, Evans, from a.judgment of the -Supreme Court in favor of the defendant for $100, entered in. the office of -the clerk of the, county of Onondaga on the 15th day of January, 1896, upon the report of a referee.

Appeal by the defendant, Beaman Catto, from a judgment of the Supreme Court in favor of the 'plaintiffs, entered in the office of the clerk of the county of Monroe on the 3d day of August, 1896, upon the decision of the court rendered after a trial at the Monroe Special Term.. This action was brought to foreclose a bond and mortgage executed by James E. Briggs to his son, William-II. Briggs, dated the 28th of October, 1892.

Appeal by the defendants, George P. Worden and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 29th day of July, 1896, upon the report of a referee, which judgment set aside a conveyance of real estate in favor of the plaintiff as a creditor of the defendants.

Appeal by the plaintiff, Anna Hodecker, from an interlocutory judgment of the Supreme Court in favor of the. defendant, entered in the office of the clerk of the county of Monroe on the ítli day of August, 1896, upon the decision of the court rendered after a trial at the Monroe Special Term sustaining the defendant’s demurrer to her complaint.

Appeal by the plaintiff, John,A. Lighthall, from a judgment- of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 19th day of October, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14tli day of October, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Catharine A. Peters,' from a judgment •of the Supreme Court in favor of the plaintiff, entered in the office of the .clerk of the county of Onondaga for $4,674.21 on the 19th •day of November, 1896, upon the verdict of a jury, and also from, an order entered in said clerk’s office on the 23d day of October, 1896, denying, the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Mutual Reserve Fund Life Association, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 10th day <5f September, 1896, upon the decision of the court, rendered after a trial at the Oneida Special Term, overruling the defendant’s demurrer to the plaintiff’s- complaint, and also from the order directing the entry of such judgment entered in said clerk’s office…

<p>Appeal by the defendant, John S. A. Lambley, from a judgment -of the Supreme Court in favor of the plaintiff, entered in the office ■of the clerk of the county of Onondaga for $250 damages and costs ■on the 1st day of May, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of May, 1896, denying the■ defendant’s motion for a new trial made upon" •the minutes.</p> <p>The plaintiff brings this action to recover ■ damages for certain ■defamatory words alleged to have been spoken to and concerning' him by the defendant.</p> <p>The undisputed facts of the case, so far as it is necessary to detail them, are as follows:</p> <p>The defendant, at the time the alleged slanderous words were uttered, was manager for the firm of D. McCarty & Co., which firm carried on ■ a large wholesale and retail department store in the city of Syracuse, and employed some 300 persons in the conduct of its business. The plaintiff, a young man twenty-two years of age, had charge of the bundle counter in this store, his duty being to receive from and deliver to the proper persons bundles of goods or other property placed in Iris charge.</p> <p>Some time prior to July 10, 1895, one John J. Colwell, who was also in the employ of McCarty & Co., having charge of the hat, hosiery and furnishing department, took a straw hat from the hat counter. This hat was six and seven-eighths inches in size, of a jieculiar shape and color, and the only one of that size, shape. and color remaining in stock. He inclosed the hat in a paper bag, wrote his name upon the hag and sent it to the plaintiff’s bundle counter to be retained there until called for.</p> <p>' On the tenth of July, George J. Barnard, a salesman in the store, sent a boy to the plaintiff’s bundle counter for the hat. The boy did not return, but the plaintiff came to Barnard and Colwell with a book in his hand and had a conversation with them, after which he returned with a straw hat of the same size and color as the one delivered to him by Colwell. The hat was somewhat worn and soiled and the plaintiff admitted having worn it the night previous and also that morning. He delivered this hat to Colwell, and it was thereupon charged up to the plaintiff.</p> <p>The evidence, of both Colwell and Barnard is that the plaintiff .admitted having taken the hat, and they both swore that they had seen him wearing it at different times. The plaintiff, however, denied having made the admissions to these persons which they tes.tified to, and said that .he found that some one had taken his hat and left this one in its place; that he thereupon appropriated the one left and wore it that night and the next morning, and^that these were the only occasions of his wearing the hat.</p> <p>But, without going further into the controverted evidence, it is only necessary to add that it is conceded that Colwell and Barnard reported the matter to the defendant and informed him that the plaintiff had admitted to them that he had stolen the hat. The defendant thereupon sent for the plaintiff,' and in the presence and hearing of several other persons, charged him with theft, and dismissed him from service.</p> <p>A day'or two thereafter one James K. Mara, who was then á student in the law office of the attorneys of record for the plaintiff, went with the plaintiff to the store of .McCarty & Co., and there had an interview with the defendant. Mara testified that he went at the instance of one of the plaintiff’s attorneys; that he requested the' defendant to allow the plaintiff to make an explanation, which request was ■ refused, and that. the defendant reiterated the charge that the plaintiff had stolen the hat.</p> <p>Such further facts, as are deemed important will oe referred to later on.</p>

<p>Appeal by Betsey Sully Chick from so much of an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 22d day of March, 1897, confirming the report of the commissioners in this proceeding, as denies her application for an extra allowance' for costs on the ground that there was no authority or power vested'in the court for the granting of such allowance.</p> <p>This proceeding was instituted by the grade crossing commissioners of the city of Buffalo under the ¡irovisions of chapter 345 of the Laws of 1888 to condemn a parcel of land owned by the defendants for the purpose of widening one of the streets of the city. The proceeding appeared to have been in all respects properly conducted, and, upon the motion at Special Term to confirm the award of damages, an application was made by the.defendant Chick for an additional allowance of costs. The application was denied,-and from the order denying the same this appeal is brought,</p>

<p>Vive insurance — where the adjuster of the company denies all liability, the insured need not furnish proofs of loss ■—• estoppel.</p> <p>The declaration of an agent, appointed by an insurance company to adjust a loss occurring under a New York standard policy of fire insurance, made to the insured, to the effect that the company was not liable at all in the matter because of the invalidity of a vacancy permit, the premises having been unoccupied at the time of the fire, excuses the insured from furnishing the proofs of loss required to be furnished by the policy.</p> <p>In such a case the company is estopped from setting up, as a defense to an action upon the policy by the insured, provisions of the policy requiring that none of its conditions shall be waived except by a written agreement indorsed thereon or added thereto.</p>

<p>Appeal by the plaintiff, George E. Parish, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the.county of Genesee on the 8th day of Seyffember, 1896, dismissing the plaintiff’s complaint upon the merits, with costs, after a trial at a Trial Term in Genesee county, before the court, a jury trial having been waived.</p> <p>On the 25th day of February, 1888, one Elisha H. Parish executed and delivered to the defendant a lease or grant of certain agricultural lands, which, by its terms, runs during the natural life of the lessor or grantor, and of his wife, reserving an annual rent of $300, payable quarterly during his lifetime, and at his death to his widow during her natural life. The grantor died in 1889, leaving a last will and testament by which he devised said lands to the plaintiff. The wife of the grantor was still living at the time of the trial of this action. In April, 1896, ■ the plaintiff commenced an action for the recovery of the possession of said lands, based upon the ground that said lease or grant was made in contravention of the provisions of section 13, article 1 of the Constitution, and was, therefore, null and void. “Ho lease or grant- of agricultural land, for a longer period than twelve - years, hereafter made, in which shall be reserved any rent or service of- any kind, shall be valid.”</p>

Appeal by the plaintiff, Joseph Weber, from a judgment of the Supreme Court in favor of the defendant, dismissing the plaintiff’s complaint upon the merits, entered in the office of the clerk of the county of Erie on the 16th day of April, 1896, upon the verdict of a jury rendered on a trial at a Trial Term in Erie county by direction of the court..

<p>Appeal by the defendant, Leopold Malzacher, from an order of the County Court of Monroe county, entered in the office' of the clerk of the county of Monroe on the 29th day of March, 1897, disallowing and canceling of record defendant’s costs and disbursements herein as taxed by the clerk of Monroe county.</p>

<p>Appeal by the defendants, Sabina 0. Martin and others, from a judgment of. the Supreme. Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 17th day of August, 1896, upon the decision of the court rendered after a' trial at the Monroe Special Term setting aside as. fraudulent a bill of sale executed by Richard Curran in the name of Curran & Goler, December 9, 1895, and a chattel mortgage executed by Frances T. Goler in the name of Curran & Goler, December 10, 1895.</p>

Appeal by the defendant, John F. Dorthy, from a judgment of the Supreme Court in favor of the plaintiff, rendered at the Monroe Trial Term on the 7th day of November, 1896, convicting Mm of the crime of grand larceny in the second degree, and from an order denying his motion for a new trial made upon the minutes; also from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk'of the county of Monroe, on the 6th day of April,…

Appeal by the defendant, Colin McLean, from a judgment'of the Supreme Court in favor, of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of January, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of February, 1897, amending said judgment, and also from an order entered in said clerk’s office on the 1st day of March, 1897, denying the defendant’s motion for a new trial made…

Appeal by the plaintiff, Henry A. Richardson, from an order of the Supreme Court, made at the New York. Special Term and entered in the office of the clerk of the county of New York on the 4th day of June, 1897, granting the defendant’s motion to open a default and to plead in the action, with costs of the motion to abide the event.

Appeal by the plaintiff, Marie Lowenthal, as executrix, etc., of Herman Lowenthal, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of May, 1897, granting the defendant’s motion for a discovery and inspection of the plaintiff’s books.

Appeal by the plaintiff, Leo Oppenheim, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of January, 1897, directing the return of certain personal property to the sheriff of the county of New York, from whose possession it was taken by the plaintiff.

Appeal by the defendant, Warner Miller, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of June, 1897, vacating an order for the examination of the plaintiff before trial.

Appeal by the plaintiff, Michael Rosa, an infant, by Lncietta Rosa, his guardian ad litem, from an order of the Supreme Court, made at the New York. Special Term, and entered in the office of the clerk of the county of New York on the 30th day of June, 1897, vacating an exparte order allowing the plaintiff to sue as a poor person, staying the plaintiff’s proceedings until the payment of costs previously adjudged against him, and requiring him to furnish security for costs.

<p>Appeal by the plaintiff, Francis W. Seagrist, Jr., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of New York on the 15th day of April, 1.897, upon the dismissal of his complaint by direction of the court after a trial.at the New York Trial Term, and also from an order entered in said clerk’s office on the 15th day of April, 1897, granting an additional allowance of costs in the.sum of $1,000.</p>

Appeal by the plaintiff, James Reynolds, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 15th day •of February, 1897, setting aside the verdict of a jury in favor of the plaintiff and ordering a new trial.

Appeal by the relators, John Canavan and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the '10th day of Hay, 1897, denying their motion for a peremptory writ of mandamus requiring the respondent to grant them a permit to cross the sidewalk of the east side of Edgecomb avenue with carts and trucks for the purpose of tilling in the property at such place.

Appeal by the plaintiff, Julius Bowman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of' the county of New York on the 5th day of March, 1897, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendants, The Roman Catholic Orphan Asylum in the city of Albany and others, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 20th day of March, 1895, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Eminent domain — reference in a statute to a map — attaching additional sheets to-a map after it has been .filed —1892, chap. 114.</p> <p>Where a statute definitely refers to a map by its date and the date of its filing in a public office, the fact that the statute incorrectly designates the commissioners by whom the map was made is of no importance.</p> <p>Where two sheets,, purporting to'contain corrections of clerical errors in a map, are inserted in it, after filing and without the authority, of, and unsigned by, the commissioners by whom the map was made, the new sheets are not a part of the map.</p>

Appeal by the defendant, Isaac Zucker, from a judgment of the Supreme Court in favor of the plaintiff, rendered on the 29th day of December, 1896, convicting him of the crime of arson in the first degree. •

<p>Action for the breach of a promise to loan money repayable on demand, when maintainable — measure of damages.</p> <p>The general rule is that an action cannot be maintained for the breach of a contract to loan money repayable on demand; but where a brewing company agrees, for a valuable consideration, with a'saloon keeper, whose fixtures and license are already subject to a valid existing chattel mortgage held by a rival . company, that, if he will thereafter sell its beer, it will satisfy the existing chattel mortgage, advance him an additional sum and take as security a chattel mortgage for all the moneys thus to be paid and advanced by it, and after paying such additional sum it receives from the saloon-keeper a chattel mortgage for the amount of the money advanced, and also for the amount of the existing ■ mortgage, hut thereafter fails- to satisfy the existing chattel mortgage, as a result of which such existing mortgage is subsequently foreclosed for the reason that the saloon keeper is unable, because of the existence of the chattel mortgage thus given to the first-mentioned brewing company, to raise any money to pay the first mortgage, the saloon keeper may maintain an action against such brewing company for damages resulting from the breach of its promise.</p> <p>In such a case the measure of damages is the difference between the value of the property and the amount of the liens upon it; and, in view of the fact that the chattel mortgage given to the rival brewing company contained a stipulation that, if a sale should be had under it, the charges incurred in its foreclosure should be deducted from the proceeds, he is also entitled to recover the expenses of the foreclosure.</p>

<p>Certiorari issued out of, the Court of Common Pleas for the ■city and county- -of New York, and attested the 14th day of February, 1895, directed to James J. Martin and others, commissioners, composing the board of police of the police department of "the city of New York, commanding them to certify and return to "the clerk of the Court of- Common Pleas for the city and county " -of New York all and singular their proceedings in relation to the -dismissal of- the relator from the police department of the city of New York.</p>

<p>Appeal by the Franklin Trust Company, as executor, etc., of Wilhelmine Dorothea Schott, and others, from an order of the Surrogate’s Court of the county of Hew York, entered in the office of ¡said' Surrogate’s Court, on the 10th day of June, 189.7, denying their ■ motion to vacate an order theretofore made and to dismiss the .proceeding.</p>

<p>Appeal by the defendants, The New York Elevated Railroad Company-and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the. office of the clerk of the county of New York on the 5th day of August, 1896, upon the decision of the court rendered after a trial at the New York Special Term, with notice of an intention to bring up for review an order of the Superior Court of the city of New York, entered in the office of the clerk of said court on the 26th day of November, 1895, continuing the. action and substituting parties plaintiff.</p>

Appeal by the plaintiff, Daniel M. Ransdell, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of June, 1897, denying his motion to vacate a judgment and open a default taken against him on the cause being called for trial at the New York Special Term.

Appeal by the plaintiff, Mary H, Myer, individually and as trustee, etc., of Clark L. Sharpsteen, deceased, and as general guardian of Mary Helena Sharpsteen, an infant, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 26th day of March, 1897, overruling exceptions theretofore filed to the report of a referee and confirming said report, and also from a judgment entered upon said…

Appeal by the plaintiff, William J. Rand, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of January, 1891, upon the decision of the court rendered after a trial at the New York Trial Term dismissing his complaint upon the merits, the action having been tried by the court without a jury upon an agreed statement of facts.

Appeal by the plaintiff, Frances J. Noble, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of April, 1897, denying her' motion to modify a decree of divorce in her favor theretofore granted in the action.

<p>Negligence —failure of the master to ham a machine oiled, resulting in its becoming' unmanageable and cutting off an employee’s fingers.</p> <p>Proof that if a press was not properly oiled, its clutch, designed to allow the press to make one operation by a pressure of the foot, would “break or throw it out" and " allow the press to keep going right on around without any effect of' the treadle at all,” coupled with testimony that the press required oiling twice-a day, that the master had not appointed any one to see that the machinery was in a safe condition and' that an employee lost part of her fingers because the die of the press, which had been oiled only three times in two weeks, instead of stopping when she removed her foot from the treadle, kept plunging and cut off her fingers before she could withdraw them, is sufficient to make-the question of the liability of the master to the employee a proper one for the-consideration of the jury.</p>

Appeal by Henry Winthrop Gray, as-receiver of Levy Brothers- & Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the. county of Hew York on the 24th day of February, 1897, sustaining' exceptions to the report of a referee on the accounting of the receiver.

Appeal by the petitioners, Henry T. Carey, as trustee, etc., of George He Peyster, and others, from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 14th day of July, 1896, as confirms the report of a referee, and overrules the exception filed to said report by said appellants, being the heirs of Nicholas He Peyster, and denies the motion made on behalf of said appellants that…

Appeal by the petitioners, Edwin V. Welch and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of May, 1897, vacating an order entered in said clerk’s office on the 29th day of March, 1897, appointing George F. Elliott as trustee of the estate created by the deed of Virginia L. Welch, under date of October 20, 1884, in the place of Henry A. Bassford, deceased.

<p>Trusts—appointment of a new trustee of an express trust — notice to remainder-men— rights of remaindermen not within the State.</p> <p>Upon the death of the sole trustee of an express trust the court has power, under section 91 of the Real Property Law (Chap. 547, Laws of 1896), to appoint a sue-, cessor upon notice to the actual beneficiary and also to the remaindermen; and if any of the latter, having an interest, are without the jurisdiction of the court and cannot be served with notice, they may apply to the court for protection.</p>

<p>Appeal by the defendant, James M. Veader, as executor, etc., of William H. Buxton, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 26th day of June, 1896, upon the decision of the court rendered after a trial at. the Hew York Special Term.</p>

Appeal by the defendants, Philip Hake and others, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of February, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office' on the 25th day of February, 1897, denying the' defendants’ motion for a new trial made upon the' minutes.

Appeal by the-defendant, Anton Majewski, from a judgment of. the Supreme Court in favor of the. plaintiff for $370.39, entered in the office of -the clerk of the county of Hew York on the 26th day June, 1896, upon the verdict of a jury, and also from an order, bearing.date the 24th day-of June,. 1896, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon thd- minutes.

Submission of a controversy upon an agreed statement of facts pursuant to section 1219 of the Code of Civil Procedure. The defendant insured the title of the plaintiff to certain premises in Hew York. Subsequently plaintiff’s title was rejected upon an examination for a loan for which application had been made to the Harlem Savings Bank.

<p> Petit larceny—good diameter of the accused—conviction reversed as against the weight of evidence. </p> <p>A woman of good character, after making some ■ purchases at a store, picked up a cotton umbrella, worth ninety-eight cents, belonging to the storekeeper, and with it and her purchases left the store. On reaching the door she said to her sister, who accompanied her, “See; this is not my umbrella,” and at that moment was arrested on a charge of stealing the umbrella by a detective, who testified that she saw her take and remove the tag from the umbrella and slip the umbrella under her' cape, in which statement, however, the detective was not corroborated. The accused at'once admitted the taking of the umbrella, stating that it was taken through inadvertence in place of her own silk umbrella. '</p> <p>Held, that a conviction based upon such evidence should be reversed under section 527 of the Code of Criminal Procedure, making it the duty of the appellate court to order a new trial when it is satisfied that the verdict is against the weight of evidence or against law, or that justice requires a new trial, “ whether any exception shall be taken or not in the court below.”</p>

Appeal by the defendants, Frederick Klingman and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of December, 1896, upon the decision of the court rendered after a trial at the New York Special Term in an action brought to foreclose a mechanic’s lien.

Appeal by the relator, George Steinson, from an order of the Supreme Court, made at the Few York Special Term and entered in the office of the clerk of the county of New York on the 21st day of September, 1896, denying his application for a peremptory, writ of mandamus to reinstate him as a teacher in the public schools of the city of New York.

<p>Appeal by the defendants, Jeannette Loppin and others, infants, by their guardian ad litem, William D. Rice, J‘r., from so much of an interlocutory judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 12th day of April,. 1897, upon the decision of the court, rendered after a trial at the New York Special Term, as adjudges, in an action brought for the. partition of certain real estate, that their share is charged with -certain debts of their testator, Alexander Loppin, deceased.</p>

Appeal by the defendant, William-H. Law, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 30th d^y of January, 1897, upon the verdict of a jury rendered by direction of the court,- ■and also from an order entered in said clerk’s office on the 16th day of February, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Motion by the defendant, Wayland Trask, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate . Division in the first instance upon the verdict of a jury in favor of the plaintiff rendered by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiff, Anthony H. Lawatsch, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ulster on the 10th day of Februarv, 1896, upon the dismissal of his complaint directed by the court after a trial before the court and a jury.

Appeal by the defendants, The President, etc., of the Delaware and Hudson Canal Company and Dell Brown, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 12th day of Novemher, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Merton L. Beach, from so much of an order of the Supreme Court,, made at the Madison Special Term and entered in the office of the cleric of the county of Madison on the 4th day of May, 1897, as imposes certain terms as a condition of permitting him to intervene in the action.

Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.

Appeal.by the relator, James D. Walsh, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 23d day of March, -1897, denying his application for a peremptory writ of mandamus directing the board of supervisors to assemble, consider, audit and allow the relator’s claim..

Appeal by the plaintiff, The People of the- State of New York, from, a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 23d day of February, 1897, upon the decision of the court sustaining the defendant’s demurrer to the indictment.

Appeal by the defendant, Marcus T. Hun, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Albany on the 1st day of July, 1897, upon the decision of the court rendered after a trial at the Albany Special Term overruling the defendant’s demurrer to the plaintiffs’ complaint.

Appeal by the defendants, Selah W. Hallenbeck and another, from a judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants, entered in the office of the clerk of the county, of Fulton on the 37th day of May, 1897, upon the decision of the court rendered at the Fulton Special Term.

Appeal by the plaintiff, Jed H. Griffin, from an order of the Franklin County Court, made at a term of the County Court of Franklin county, and entered in the office of the clerk of the county of Franklin on the 6th day of July, 1897, denying the plaintiff’s motion for an order that the justice before whom the case was tried make and file an amended return herein, in which he specify whether or not the petition was verified prior to the issuing of the precept.

Certiorari issued out of the Supreme Court and attested on the ■ 8th day of June, 18)97, directed to James A. Roberts, as .Comptroller of the State of Newj York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular bis ' proceedings in regard to the taxation, of the relator..

Appeal by the defendant, Residore Noel, from a judgment of the County Court of Clinton county, entered in the office of the clerk of the county of Clinton on the 8th day of February, 1897, affirming a judgment of a justice of the peace.

Appeal by the defendant, Monroe B. Washburn, individually and. as receiver of the property of the firm of Smith Hanfield, from an order óf the Supreme Court, made at the Warren Special Term and entered in the office of the cleric Of the county of St. Lawrence on the 14th day of ¡June, 1897, denying his motion to resettle the findings and open the judgment entered in the action:

.Certiorari issued out of the Supreme Court and attested on the . 25th day of May, 1897, directed to James A. Roberts, as Comptrol-. ler of the State of Hew York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular-his proceedings in relation to imposing a tax, under chapter 542 of the Laws of 1880,. and' the acts amendatory thereof, upon the capital stock of the relator, a corporation organized Under the. laws of the…

Appeal by the plaintiff in each of the above-entitled actions, and also by the guardian ad litem of the infant defendants in each of the above-entitled actions, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Madison on the 13th day of May, 1897, as amended by an order made at the Oneida Special Term and entered in the office of the clerk of the county of Madison on the 29th clay of May, 1897,…

Appeal by the plaintiff, Jessie D. Plummer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the 18th day of January, 1897, upon the dismissal of the complaint directed by the court after a trial before the court without a jury.

■Appeal .by the defendant, Orville P. Dimon, as administrator, etc., of Elijah Eager, deceased, from a judgment of the Supreme Court in favor of the .plaintiff, entered in the office óf the clerk of the county of Chemung on- the 9th day of July, 1897, upon the report of a referee. This was a statutory reference of a claim for services alleged to have been rendered by the plaintiff to the defendant’s intestate while in the latter’s employ.

Appeal by the defendant, William II. Plumb, from a judgment of the County Court of Franklin county, entered in the office of the clerk of the county of Franklin on the 23d day of November, 1896, upon the verdict of a jury, and also from an order denying the defendant’s motion for a new trial made upon the minutes.

<p>Confession of judgment -4- insufficient statement of the cause of the indebtedness — an a/mendment not allowed as against another creditor'.</p> <p>A judgment by confession, in which the statement of the indebtednesses to the effect that the debt and' liability were justly due to- the plaintiff, being'“for a balance due "for goods,, wares and merchandise sold and delivered to me, Fred' 0. Greene, by plaintiff, William W., Blackmer, and remaining unpaid and unsecured,” does not comply with the requirements of section 1274 of the Code of Civil Procedure, and will be set aside on the application, of another creditor of the common debtor.</p> <p>As against such other creditor, an amendment of the statement will not be allowed.</p>

Appeal by the defendants, Charles E. Twombley and others, each individually and ás a member of the board of trustees of the-village of Jamaica, and collectively as the board of trustees of the village of Jamaica, Queens county, and Alfred.

<p>Contempt of court—where a railroad fails to obey a judgment requiring it either to remove an obstruction or to condemn land ■— appeal.</p> <p>In an action brought against a railroad company by the owner of premises (access to and the enjoyment of which it had injured by the construction of its road) the court adj udged that the railroad was guilty of erecting an obstruction to the plaintiff’s premises, awarded judgment for §500 damages and directed the removal of the obstruction unless the defendant should pay §2,000 within sixty days, or should in this time construct a proper crossing over or under its road, and institute condemnation proceedings to acquire the land in question. The railroad took no appeal from this judgment, paid the' §500, and constructed the crossing, but failed to remove the obstruction or institute condemnation proceedings.</p> <p>Held, that the railroad was guilty of a contempt of court and could not dispute the validity of the former mandate of the court, upon an appeal from an order imposing a fine entered in subsequent proceedings for contempt taken by the owner of the premises.</p>

Appeal by the defendant, Kate T. Woolsey, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 9th day of October, 1896,. upon the verdict of a jury, and also from an order entered in said clerk’s office on the 80th day of October, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the; defendants, Moses Iialfon and Marcus Nalion, from an interlocutory judgment of the Supreme Court in favor of the ¡plaintiffs, entered in the office of the clerk of the county of Kings on the 15th day of March, 1891, upon the decision of the .court rendered after a trial at the Kings County Special Term overruling their demurrer to the complaint.

Appeal by the plaintiff, Herbert Noble, as assignee, etc., of Sum-wait & Jones, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 25th day of May, 1897, upon the report of a referee.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the County Court of Kings county in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 23d day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of April, 1897, denying the defendant’s motion for a new trial made upon the minutes. ■

Appeal by the defendant, Josiah J. White, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day of June, 1897* upon the decision of the court rendered after á trial at the Kings County Special Term.

Appeal by the defendants, John Welz and Charles Zerweck, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of March, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term. ' The complaint in this action asked as relief that the plaintiff be adjudged to be entitled to the rebate upon the liquor tax license certificate Which is referred to in the…

<p> Measure of liability of attorneys representing a mortgage to be a first lien, which proves not to be so. </p> <p>Attorneys who represent to their client that a mortgage which they have obtained for him is a first lien upon certain premises, are liable to the client for the sum he is obliged to pay in order to remove other and prior incumbrances (subsequently found to exist) which the attorneys failed to discover.</p> <p>The attorneys’ liability is not limited simply to a possible difference in ultimate value to he determined by the amount which the client may succeed in collecting on a foreclosure of his mortgage.</p>

Appeal by the defendant, the London Assurance Corporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of January, 1897, upon the decision of the court rendered afteia trial at the Kings County Special Term.

Appeal by the defendant, The Singer Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, ■entered iu the office of the clerk of the county of Kings on the 20th day of January, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of January, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, George L. Davidson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the loth day of February, 1897, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 20th day of February, 1897, denying the defendant’s motion for a new trial.

Appeal by the defendants, Catharine Colville and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of March, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal hy the defendants, The Mutual Brewing Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 16th day of July, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term. The action was commenced June 21, 1893, and has been already reported in 91 Hun, 220.

Appeal by the defendant, The Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintifi, ■ entered in the office of the clerk of the county of Queens on the lO.th day of February, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of March, ■1897, denying the defendant’s motion for a new trial.

Appeal by the defendant, The Brooklyn Elevated Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of December, 1896, upon the decision of the court rendered after a trial at the-Kings County Special Term.

Appeal by the plaintiff, Thomas McKeon, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 23d day of January, 1897, upon the verdict of a jury, and also from an order, bearing date the 29th day of October, 1896, and entered in .said clerk’s office, denying- the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Albert L. Johnson and James M. Edwards, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office o£ the clerk of the county of Kings on the 12th day of March, 1897, upon the verdict, of a jury, and also from an order entered in said clerk’s office on the 15th day of March, 1897, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, The Goulds Manufacturing Company, from a judgment of 'the Supreme Court in favor of the defendants,, entered in the office of the clerk of the county of Kings ou the 2d day of December, 1896,.upon the verdict of a jury, and'also from an order entered in said clerk’s office on the 11-th day of December,; 1896, denying the plaintiff’s motion for a new trial made, upon the minutes.

. - • Appeal by the plain tiff, Adolph H. Lazare, from a judgment of .the Supreme Court iff favor of the defendants, entered in the office of the clerk of the coiun.ty of New York on the 29th day of November, 1895, upon the verdict of'a jury directed by the court: •' ( This appeal-.was transferred from the. first department to.-the. second department. !'-