Volume 20 — New York Miscellaneous Reports

<p>1. Sale — Partnership.</p> <p>Where the answer to an action for goods sold and delivered denies any knowledge or information sufficient to form a belief as to the allegations</p> <p>of plaintiffs’ partnership, admits a purchase of the goods from plaintiffs and sets up a defense of payment, the plaintiffs need not prove their copartnership, as that fact is immaterial under the admission as to the purchase.</p> <p>2. Payment — Composition.</p> <p>The giving of the debtor’s own checks for the amount of a composition does not amount to a payment of the debt unless they are paid, and upon a failure to meet any of them the creditor becomes reinvested with the original debt and entitled to sue thereon.</p>

' Appeal from a judgment entered on a verdict in favor of the plaintiff and from an order denying a motion for a new trial.

<p>Appeal from order requiring plaintiff to make her complaint more definite and certain.</p>

<p>Agency — Agent not liable where principal was known.</p> <p>A party who knows at the time of making a contract that the person with whom he deals is not the principal, but the agent or manager of another, cannot recover of such person on the contract.</p>

<p>Appeal from order denying motion ■ to postpone the trial of the action on the ground of the absence of a material witness.</p>

<p>1. Contract — Extra work.</p> <p>Plaintiff entered into a subcontract to furnish ail the stonework for a building for a specified sum, in reliance upon a" statement by the contractor that the walls were to be seven'and one-half feet high, but it was subsequently found that they were to be eleven or twelve feet. After the discovery and while the work was in progress, an agent of the owner and the contractor told plaintiff to go ahead and he would be paid for the extra work. Held, that this constituted a new contract for the extra work. *</p> <p>2. Evidence — Denial.</p> <p>Testimony of a witness that he does not remember a certain - conversation is not equivalent to a denial that such conversation .took place.</p> <p>3. Mechanics' lien — Notice. '</p> <p>Failure to serve the notice of l.ien within ten days, after filing does not affect the validity of (the lien.,</p> <p>4. Same — Extra work.</p> <p>Where the basis of a lien by a subcontractor is, a separate contract for extra work made with-the owner, it is immaterial whether any sum was due from the owner to the contractor at the. time'of filing the lien.</p>

<p>Supplementary proceedings — Foreign corporations.</p> <p>The mere fact that the receiver of a foreign corporation has an office in New York city and does its business there is not sufficient, under section 2463 of the Code, to exempt the corporation or its officers from examination in supplementary proceedings.</p>

<p>1. Depositions — Physical examination of plaintiff.</p> <p>Neither the attorney nor any other male person can be present at the physical examination of a female, plaintiff, but there may be present the female physician appointed by the court, a female physician to represent the interest of each of the parties and such other females as the plaintiff may desire.</p> <p>3. Same — Physician should he sworn.</p> <p>The physician appointed by the court is an officer of the court, and should ■ be sworn.</p> <p>3. Same —Further examination.</p> <p>Where an examination has been had, the allowance of a further examination is discretionary with the court.</p>

. Appeal from judgment in favor of the plaintiff, entered upon a verdict, and from order denying motion for a new trial.

<p>1. Trial — Remarks by counsel.</p> <p>A mere statement by plaintiffs counsel in his opening that an appeal from a former trial of this case was taken by the defendant, is not sufficient ground for reversal.</p> <p>8. Evidence — Rebutting.</p> <p>The admission at'the close of the case of evidence contradictory of that of the defendant rests in the discretion of the court.</p> <p>3. Witness — Credibility of assignor. I</p> <p>The bias of an assignor of the claim in suit may he shown. by proof of a remaining or a contingent interest.'</p> <p>4. Same — Examination.. ’</p> <p>Where a witness has testified that a certain bill was made out and mailed to the defendant, the latter has a right to test his memory and show that it was a different bill which was so made out and mailed.</p> <p>5. Evidence — Exhibits.</p> <p>On an issue as to whether certain goods were sold to defendant or only consigned for sale where. the bill rendered contained the words “ Terms net,” the' defendant is entitled1 to the admission of another .hill of goods marked “ Terms- net cash,” where there is evidence that the word'“net” in each meant the same, and that the latter bill was for goods sold and not consigned!</p>

<p>• Appeal from judgment in favor of -the plaintiff, entered upon a verdict, and from order denying motion for a new trial.</p>

An application having been made by the relator for a peremp- . tory writ of mandamus against the defendants, the president and trustees of the village of Wappinger’s Falls, to compel them to recognize the relator as the police justice of the said village, fix his salary and furnish him with a courtroom, hooks, blanks, etc., no issue of fact was raised, and an order for the peremptory writ was granted in the first instance.

<p>Action under the statutes to recover $5,000 for causing decedent’s death.</p>

<p>1. Fire insurance — Mortgage.</p> <p>Where a policy contains no reference to real estate mortgages, but provides that if personal property be or become incumbered by a chattel mortgage the entire policy shall be void, the existence of a mortgage on the real estate at the time of the issuance of the policy and failure to disclose the same do not affect the validity of the policy.</p> <p>2. Same — Ownership.</p> <p>A mortgage upon real estate is to be treated as an incumbrance and not as .a defect in the sole ownership of the assured.</p> <p>3. Same — Lloyd’s policy — Costs.</p> <p>The holder of a Lloyd’s policy is not deprived of his right to costs by the fact that the several liability of each of the underwriters is less than $50. t '</p>

<p>1. Nuisance — Unsanitary buildings.</p> <p>An order of the health department, requiring the tenants of specified premises to vacate the same and prohibiting its further use as- a human habitation without a written permit from the board, is- not final and conclusive, but is open to judicial review, and hence such a determination, when made without notice to the owner of the building, does not constitute a taking of property without due process of law.</p> <p>¡2. Same — Construction of order.</p> <p>Such an order applies only to existing conditions, and upon an abatement of the nuisance it becomes the duty of the board to vacate the order.</p> <p>3. Same — Constitutional law.</p> <p>The scheme provided b, section 659 of the Consolidation Act, as amended by chapter 567, Laws of 1895, for the abatement of the nuisance of unsanitary buildings is not unconstitutional.</p>

<p>Action for specific performance.</p>

<p>Landlord and tenant — Deposit — Liquidated damages.</p> <p>Upon subleasing a theatre from plaintiffs the defendants' made a deposit of two months’- rent upon an agreement by which it was to he applied in payment for the last two months of the term, unless defendants should previously violate the terms of the lease, in which event the deposit should be retained as liquidated damages, and it. was specially stipulated that such sum was to be regarded as “ liquidated damages and not as a penalty.” Defendants having made default in the payment of rent, plaintiffs instituted summary proceedings which resulted in a judgment of, dispossession, and the owner of the building also recovered judgment in similar proceedings against both parties. Held, that plaintiffs were not entitled to recover the rent due at the time of such dispossession; that any • damage resulting from the breach of contract was fixed by the contract and paid by the deposit.</p>

<p>Demurrer to counterclaim set up in the answer.</p>

<p>Master and servant — NegligenceFailure to give warning.</p> <p>Omission of a master to warn a servant of ordinary intelligence of the danger attending the operation of a huzz-saw is not negligence, as such danger is an open and apparent one, of which the servant assumes the risk.</p>

This action is brought by plaintiff, as assignee of one Mary Baumgras, to recover upon an agreement made between her and said defendant, compromising and settling a suit which had been brought by her against it upon its certificate of membership issued to one Charles R. Baumgras, and upon his death payable to said Mary, his wife.

<p>Aotioe for construction of will and accounting.</p>

<p>I. Guaranty — Corporations.</p> <p>• A brewing corporation, organized under the General Manufacturing Companies Act, has no power, express or implied, to guaranty the payment of rent under a lease' to a third person.</p> <p>2. Same — Indemnity.</p> <p>A contract- to repay any sum which the other party may be ■“ called upon to pay ” refers to a legal obligation to pay, and the giving thereof does not estop the maker from setting up the invalidity' of the obligation of the other party.</p> <p>Action upon an agreement to repay sums which, plaintiff might be called upon to pay under its guaranty of payment of rent.</p>

<p>Action to recover damages for the death of Martin M. Mundt) alleged to have been caused by negligence,</p>

<p>1. Assignment, for creditors — Witness — Credibility of.</p> <p>.In an action to set aside an assignment for the benefit of creditors, the testimony of the assignors as to the fact of an alleged- indebtedness, although they were called as witnesses by the plaintiff, may be disregarded and the question determined by'other evidence.</p> <p>2. Same — Existence of indebtedness.</p> <p>The fact that there was no entry in relation to an alleged indebtedness on the firm books, together with the .further fact that such debt did not appear on the schedules or inventory, and that a payment on such alleged debt was made in bills, instead of by check, is sufficient to overcome the testimony of one of the assignors as to the existence of such indebtedness.</p> <p>8. 'Same — Payment in. contemplation of the assignment.</p> <p>Pacts sufficient to show.that payments upon an alleged debt were made in contemplation of an assignment and were intended to defraud- creditors.</p>

<p>Justice’s Court — Jurisdiction — Service.</p> <p>Service of process in a civil action before a justice-of the peace must be made at least six days before the return day, and if the service is less - than six days the court fails to obtain jurisdiction.</p>

Philip Embury was domiciled at West Orange, ETew Jersey, where he died December 11, 1887,' leaving a will admitted to probate by the surrogate of Essex county, ETew Jersey.

<p>Motion for a peremptory mandamus commanding the defendant to reinstate, the relator as special agent in the excise department of the State of New York. ' ■</p>

<p>1. Appeal — Questions reviewable by the Appellate Term. •</p> <p>On appeal from a' judgment of the City Court, the Appellate Term has no power to reverse on the facts, but can only review the exceptions taken and the errors of law presented.</p> <p>2. Savings bank — Negligence in payment to stranger.</p> <p>In an action against a savings bank by a depositor to recover the amount of a deposit which had been paid by the bank to a stranger who had stolen the pass-book, proof that the paying teller who made the payment knew the depositor and that he paid the entire deposit on production of the passbook without making particular inquiry is sufficient to sustain a finding that he did not exercise ordinary care and caution, and that the bank was guilty of negligence.</p> <p>Geitelsohn v. Citizens’ Savings Bank, 19 Mise. Rep.. 422, affirmed.</p>

<p>Appeal by defendant Stewart from affirmance by the City Court, General" Term, of a judgment in favor of plaintiff.</p>

<p>Appeal from affirmance by the General Term of the City Court of Hew York of a judgment entered upon a verdict in favor of the plaintiff.</p>

Appeal by the plaintiff from an affirmance by the General Term of the City Court of a judgment of the Special Term, sustaining the defendant’s demurrer to the complaint on the ground that it does not set forth facts sufficient to constitute a cause of action.

Appeal by the defendants from an affirmance by the General-Term of the City Court of an order of the Special Term, denying their motion to vacate the attachments issued against the property of the defendants. ¡

<p>1. Master and servant — Negligence.</p> <p>Notwithstanding a provision in a policy of plate-glass insurance that the assured should, whenever necessary, at his own expense remove any woodwork, gas fixtures or other obstruction to. the replacing of glass, the acts of servants or -a contractor employed by the insurer to replace glass in removing a gas pipe, when its removal was unnecessary, are performed' in the course of their employment and the contractor is liable for damages caused thereby.</p> <p>S2. Insurance — Notice to assured to remove obstructions.</p> <p>Where a policy of plate glass insurance requires the assured, whenever necessary, at his own expense, to remove- any woodwork, gas fixtures or other obstructions to the replacing of glass, it is the duty of the insurer or its .contractor to notify the assured of the fact- of such obstruction unless he has knowledge of such fact, and if they proceed to rémove it without such notice, they become liable for - want of proper care in so doing.</p> <p>8. Master and servant Liability for servant’s acts.</p> <p>I Where the act of a servant was not wanton or willful, but was done \ in the exercise of his judgment, or for his convenience in performing \ the duty upon which he was engaged, the master is liable althoug’h his T instructions were' disregarded;</p>

<p>J. Master and servant — Negligence.</p> <p>- A master is liable for the act of bis servants in placing an obstruction on a temporary sidewalk bridge which may be dangerous to travelers, and in such case notice to him is immaterial.</p> <p>2. Negligence — Dangerous obstacles.</p> <p>It is undoubtedly negligent to leave a plank with a nail protruding from it upon a temporary bridge or sidewalk used by foot passengers.</p> <p>3. Same — Contributory.</p> <p>It cannot be said, as matter of law, that a, foot passenger is bound to observe a wire nail protruding from a plank at his feet, nor that it was negligent, to walk close to the side of a temporary bridge where the plank lay.</p>

Appeal by the defendant Haines from a judgment of the justice of the Eighth District Court in favor of the plaintiff for $177.30, besides costs, in an action for printing and stationer’s supplies furnished by the plaintiff’s assignor, Edward Y. Brokaw, to the Honing & Industrial Exchange of Hew York.

<p>Appeal from a judgment rendered in favor of the plaintiff, by the justice of the First Judicial District Court, in an action brought for the foreclosure of a mechanic’s lien under chapter 342 of the Laws of 1885.</p>

<p>Building contracts — Construction — Extra work.</p> <p>Where 'a building contract requires the wo-rlr to be done to the satis- ■ faction of the architect and the specifications provide that the building laws shall be. considered part of the contract and all iron work, be tested by the department of buildings, a requirement by the architect</p> <p>■ that a different kind of girder should be substituted for one found to be too light to pass inspection by the building department does not constitute an independent contract or entitle the contractor to extra compensation. . « '</p>

<p>Negligence — Injury to elevator "by tenant.</p> <p>• Evidence that the elevator in a building "was injured in its working gear, by being allowed to descend without regulating its speed by use of the check rope, while being used for the delivery of coal to the 'tenant of the upper floor and that at the time of the breaking some one on that floor inquired if anyone was hurt, is sufficient to call upon such tenant for an explanation of the occurrence, and in the absence . thereof to sustain an inference of his negligence.</p>

<p>1. Lease — Assignee of term.</p> <p>A person who continues in possession Of premises and pays rent after the lessee has ceased to occupy them is presumptively an assignee of the term and liable under the covenants of the lease;</p> <p>Z. Appeal — Questions not raised below.</p> <p>A defendant who based his defense on the trial on the ground that he was not liable in any form of action, cannot claim on appeal that the action should have been- brought on a lease and not for use and occupation.</p>

<p>Appeal from a judgment of tlie Sixth Judicial District Court, entered upon a verdict in favor of the plaintiff.</p>

<p>1. Fish — Laws of 1895, chapter 974, section 191.</p> <p>Section 191 of chapter 974, Laws of 1895, making the possession of clams less .than one inch in thickness a misdemeanor, does not apply to shellfish coming from other states.</p> <p>2. Statutes — Construction of.</p> <p>The words of a statute are to be construed with reference to the subject-matter of the enactment and to the object sought to be attained, and the consideration of the whole act may expand or restrain the terms of a particular clause.</p>

<p>Hew trial — Improper evidence tending to create prejudice.</p> <p>Where the direct tendency of the exhibition of an injured foot was to arouse the prejudices and inflame the passions of the jury against the defendant, such exhibition requires a new trial upon a verdict' against the defendant.</p>

<p>Motion to strike out answer as frivolous and for judgment.</p>

Actioa to compel the defendants as water commissioners of the city of Albany, to grant to the plaintiff permission to tap, or make connection with the main or distributing water pipe in John street, in said city, for the use of the premises Bo. 42 John street; and for damages against defendants or the city of Albany, by reason of defendant’s refusal to grant such permit..

<p>Motkxns by defendant for judgment on the reply.</p>

<p>•Motion in behalf of the Oneida County Bank, as the holder by virtue of certain judgments- and executions of liens.upon certain property'of the defendant subsequent to that of the attachment issued in behalf of plaintiff in the above-entitled action, to- vacate said attachment. The motion is made upon the papers upon which the warrant .was issued, and the ground relied upon is that said • papers do not sufficiently show an intent upon the part of the defendant to assign, dispose of and secrete its property with intent to.defraud its creditors, that being the ground upon which the warrant was issued.' •</p>

<p>Action to foreclose mortgage.</p>

<p>Reference — Compulsory.</p> <p>Where an action is brought upon-a promissory note, the consideration for which is founded upon transactions embracing numerous items, and the answer denies such consideration or sets up a counterclaim to a larger amount consisting of numerous items, the case involves the examination of a long account and is compulsorily referable.</p>

<p>Appeal from order of filiation.</p>

<p>1. Indictment — Forgery — Deceit.</p> <p>Indictments for forgery by an attorney in altering an order of the court, and for deceit in using such forged order to' deceive the court and a party to an action, are not for the same offense or for the same matter, and the indictment for forgery is not superseded bv the indict- ■ mént for deceit.</p> <p>3. Deceit — Damage need not he shown in criminal proceeding.</p> <p>In a prosecution for deceit under section 148 of the Penal Code, resultant damage .need not he averred in the indictment nor proved on the trial.</p> <p>3. Same — What constitutes.</p> <p>Where a person uses means which are deceitful or which tend to deceive the court or another person, such as lying or producing false papers, he is guilty of deceit.</p> <p>4, Same — Indictment. •</p> <p>An indictment for deceit under section 148 of the Penal Code which follows the language of the statute and then states facts which, if true, are deceitful and fraudulent, is sufficient.</p>

<p>Appeal from judgment in favor of the plaintiff.</p>

<p>Pleading — Services — Admission.</p> <p>An answer which denies that the labor and services sued for were reasonably worth the sum claimed or that defendant promised or agreed to pay said sum does not admit the quantity of the work alleged in the complaint.</p>

<p>Appeal from a judgment in favor of the plaintiff entered upon a verdict.</p>

<p>Pleading — Negotiable paper.</p> <p>The complaint in an action upon a promissory note is not rendered insufficient by the omission of an allegation as to the time or place of payment, as the absence of such averment raises the presumption that no time of payment was specified' in the note and in such a case it was payable immediately and payment could be demanded at any time and" place where the maker could be found.</p>

<p>Appeal by defendants from order striking out their answer as frivolous.</p>

<p>Appeal from a judgment in favor of the plaintiff, and from order denying motion for a new trial on the ground of newly-discovered evidence.</p>

The plaintiff, who was twenty years of age, left, his seat in a car of one of defendant’s trains, which was running at a high rate of speed, and went out .on the platform, intending to alight at the next station, and was thrown from the car platform hy the’ momentum of the train.

<p>1. Associations — Action to determine possession of funds.</p> <p>The right to the possession of the funds, books and papers of a voluntary unincorporated association is such a right and interest in property as to justify the parties interested in seeking the interposition and aid of a court in determining a controversy as to their ownership. j</p> <p>2. Same — Meetings.</p> <p>Where an association has no rules, constitution or by-laws, an usage or custom in relation to meetings is entitled to consideration in determining questions relating thereto.</p> <p>3. Same — Quorum. '</p> <p>Where there is no rule providing the number that should constitute a quorum, the members who attend in accordance with the usual custom constitute a quorum and are entitled to transact any business which fairly comes within the purpose for which the association was formed, although less than a majority of all the members.</p> <p>4. Same — Effect of withdrawal of president.</p> <p>The withdrawal of the president and several members upon a disagreement in the association does not carry the association with them or prevent the remainder of the association from continuing to do business. • l</p> <p>5. Same — Motions.</p> <p>A "vice-president may put a motion, although the president is in the chair, where the latter has refused to put it.</p> <p>6. Same — Removal of president.</p> <p>Where there, is no rule or regulation fixing the tenure of office of the president and she was not elected for any definite term, she may be removed at any time, and without notice or opportunity to be heard. - ■</p> <p>7. Same — Election of officers.</p> <p>The decision of an unincorporated association upon the question of an election to office is a matter peculiarly and exclusively to be determined by the association and is final.</p> <p>8. Conversion — Evidence.</p> <p>In an action for conversion, in which no equitable defense is interposed, evidence as to the disposition of the.property after the commencement of the action is inadmissible.</p> <p>9. Associations — Conversion.</p> <p>A voluntary unincorporated association was formed by ladies in Sullivan county for the purpose of erecting a monument to the soldiers of that county, of which Mrs. N. was elected president. No term of office was fixed nor were any rules for the government of the association adopted. The meetings were adjourned to specified dates, of which notice was published in the newspapers, but no notices were served on the members, who attended as they chose. After several meetings had been had a motion to incorporate was adopted against the wish of the president, whereupon she and seven ■ other members withdrew from the meeting and subsequently held special meetings at-the president’s house, but attended no more meetings with the other members, which were continued in the usual ' manner by regular adjournments. After the president, secretary and treasurer had failed to appear at several meetings they were removed from office and others elected in their places, and upon demand made for the books, papers and funds of the association the former secretary and treasurer refused to turn them oyer, she having resigned and turned them- over to another person elected by the N. faction to fill her place. Held, that the withdrawal of Mrs. N. and her adherents from the meetings did not carry the association with them or render their meetings the regular ones; that those who attended the meetings regularly adjourned constituted the association and were entitled to the possession of the books, papers and funds, .and that the fact that the former treasurer had -expended the fund in the erection of a soldiers’ monument subsequent to the commencement of an action for conversion was.no defense to such action.</p>

<p>1. Municipal corporations — Obstruction in street.</p> <p>A newsstand erected under an elevated railroad structure by virtue of a municipal license granted in pursuance of subdivision 3 of section 86 of the Consolidation Act, as amended by chapter 718, Laws of 1896, is not an illegal obstruction in the highway so far as it affects the public interest.</p> <p>2. Mandamus — Will not lie solely for benefit of third persons.</p> <p>A relator cannot maintain a proceeding for a mandamus solely for the benefit of others. I</p>

<p>1. Injunction — Forcible entry and detainer.</p> <p>An injunction will not be granted to restrain the prosecution of forcible entry and' detainer proceedings in a District Court, where there is a perfect defense within the jurisdiction of that court..</p> <p>2. Forcible entry and detainer — Defense.</p> <p>Invalidity of the petitioner’s title is no defense to proceedings for forcible entry and detainer.</p> <p>3. Injunction — Sufficiency of complaint.</p> <p>Injunctions granted under section 603 of the Code cannot be continued for a cause not apparent in the papers upon which they were obtained nor alleged by the court as the occasion of its allowance.</p> <p>4. Forcible entry and detainer — Insufficiency of petition.</p> <p>An inadequate description of the interest of the petitioner is available to the respondent in the District Court.</p>

<p>Action to set aside a transfer of property made by the firm of Blumenthal & Go.</p>

<p>1. Contract — Consideration.</p> <p>The performance of that which the party was under a previous valid legal obligation to do is not a sufficient consideration for a new contract. J</p> <p>2. Railroads'— Mileage books — Consideration for contract as to use.</p> <p>The act of 1895 (chapter 1027) having made it the duty of certain railroad corporations to issue mileage books when requested and to accept them for transportation, the issuance of such a book is not a sufficient consideration to support a contract with the company as j to the manner of its use.</p>

<p>Action to foreclose a mortgage upon real estate.</p>

<p>■ Motion to punish the attorney for the defendant for contempt. A stated Special Term of the Supreme Court for the "trial of issues is held, in Westchester county each Saturday. Each term is appointed to begin and end on the same day. The attorney for the plaintiff obtained an order to show cause why leave should not be had to amend the complaint, containing a stay of all proceedings meanwhile. Notwithstanding such' stay, the attorney for the defendant moved the cause for trial on the following Saturday, at which term it had been noticed for trial in Westchester county.</p>

<p>1. Malicious prosecution — Corporation not liable for malicious testimony of clerk.</p> <p>A corporation is not chargeable with malice of its clerks in testifying in a criminal proceeding, such testimony not being within the scope of their employment.</p> <p>2. Same — Exemplary damages.</p> <p>A corporation is not liable in exemplary damages for the willful or malicious acts- of its agents unless such acts were previously authorized or subsequently ratified by it.</p> <p>3. Same — Ratification.</p> <p>To warrant an inference of ratification there must be proof that the principal or his proper representative had knowledge of the agent’s malice, or that circumstances existed which warranted an inference that he believed the agent to have been guilty of a malicious act.</p> <p>4. Trial — Charge — Exemplary damages'.</p> <p>In instructing á jury the rule of exemplary damages should be stated with its restrictions and limitations,. and the question should not be left' wholly to the discretion of the jury.</p>

<p>1. Partnership — Good will of business.</p> <p>While the firm name belongs to surviving partners, the good will is property in which the representatives of a deceased partner participate.</p> <p>"3. Same — Provision in articles as to purchase of interest.</p> <p>A provision in articles of copartnership that the value of the interest of a deceased partner shall be ascertained and paid will prevent the survivors from continuing the business without purchasing such interest, and gives to the interest of the deceased in the good will a substantial value.</p>

<p>Partition — Postponement of división in devise.</p> <p>A will devised land to testator’s children upon the death of his ' wife, but provided, that it should not be divided among them no til the youngest child-should come of age. Held, that- the postponement of a division by the. will-would prevent a partition of the real estate . until the' time appointed thereby. -. , , - -</p>

<p>Motion to quash, indictments.</p>

<p>1. Jurisdiction — Effect of general appearance upon motion to set aside service.</p> <p>Defendant, a joint-stock association, was sued by its name and service was made upon its general agent or manager. Its attorneys served a general notice of appearance and also appeared specially for the purpose of moving to set aside the summons. Held, that the defendant having appeared generally, the court thereby acquired jurisdiction, and a motion to set aside the service and cancel the summons should not be granted.</p> <p>2. Pleading — Amendment — Parties..</p> <p>The failure to add the name of the president or treasurer to the name of an association defendant may be corrected by amendment.</p>

<p>Application for writ" of mandamus.</p>

<p>Case — Settlement.</p> <p>A case on appeal will not be settled by the trial judge where it does not comply with rule 34, requiring the evidence to be stated in narrative form, with a formal statement of the rulings excepted to.</p>

<p>Appeal from order overruling demurrer to the complaint.</p>

<p>, 1. Sale — Beturn of goods —-Remedy of vendor.</p> <p>Where vendees return a portion of the goods to the vendor, the latter may sell the same for their account and hold,' them liable for the difference between the contract price and the amount realized bn the resale, provided súch sale wás fair and conducted so as to secure most ' nearly a full and fair value for the goods.'</p> <p>2. Verdict — Form of.</p> <p>The jury may properly return a verdict in favor of “ the plaintiff for the full amount' claimed,” and in- such casé the court may add to the</p>

<p>Appeal by the plaintiff from a judgment in his favor.</p>

In about the year 1876, one Mrs. Jaecker, the plaintiff’s mother, deposited the sum of $300 with her friend Mrs. Muller, .who was the defendant’s mother, to be kept safely for her two infant children, Annie Jaecker and Albert J aecker, and to be paid to them when they became twenty-one years of age.

<p>Appeal - from an order granting plaintiff leave to serve an amended summons and .complaint.</p>

<p>Appeal from' judgment in favor of the plaintiff.</p>

Motion to punish one of the official stenographers in New York for contempt in refusing to hand over a copy.of his minutes unless paid therefor twenty cents a folio. The stenographer had been ordered by both sides to deliver said minutes daily during the progress of the trial.

Action to foreclose a mortgage. It was given by the infant defendant, Nina E. James, hy her special guardian, in a proceeding in the Kings County Court for the exchange of the said infant’s real estate for other real estate.

<p>Motioet to vacate an injunction.</p>

<p>Demurrer to complaint.</p>

<p>Infants — Fraud does not estop from repudiating contract.</p> <p>An infant is not estopped from asserting the defense-of infancy in an action upon a contract made by him by the fact that such contract was1 procured by fraud.</p>

<p>Action for partition.</p>

<p>Action for construction of a -will.</p>

Action to recover money on deposit in the Albany Savings Bank in the naine of Frances E. Oon'ant, the plaintiffs claiming .that they are the owners of the deposit by a gift omisa mortis from • Frances E. .Gonant.

<p>Action for a partnership accounting.</p>

Demubeek by plaintiff to the second defense pleaded in thei answer of the defendant above named, on the ground that it is insufficient in law npon the face thereof.

Petition for the removal of a testamentary trustee on the ground that he had made leases .and sold timber and failed to sell. real estate, contrary to his powers and to the terms- of the trust. The trustee interposed a demurrer on the ground that.the petitioners should have moved at the foot of a former decree, granted by the same court in 1880, which ordered the trustee to sell the property.

<p>Motion to confirm report of commissioners appointed in" proceedings to lay out a highway.</p>

Motion by the plaintiff on the trial justice’s minutes to set aside the verdict and for a new trial. . 'The nature of the action and the material facts are stated in the opinion.

<p>Appeal from affirmance by the General Term of the City Court, of New York of an order denying a motion by the defendant for an examination of the plaintiff before trial.</p>

<p>Appeal by defendants from order.of the.General Term of the City Court, reversing an order made at Special Term.</p>

<p>Appeal from affirmance by the General Term of the City Court of Hew York of an order denying the defendants’ motion that service of the summons be set aside.</p>

<p>Appeal from affirmance by-the General Term of the City Court óf Hew Tork of a judgment entered upon the verdict of a jury in favor of the defendant.</p>

Appeal by defendant from an affirmance by the General Term of the City Court of an order made by the Special Term thereof in proceedings supplementary to execution.

<p>1. Negligence — Contributory — Crossing railroad tracks.</p> <p>A person about to cross a railroad track is not called upon to look in both directions before reaching the tracks, if the situation created by the railroad, company renders it impossible for him to see anything until he is upon them.</p> <p>2. Same.</p> <p>A driver of a wagon when placed in a situation in which his first view of the tracks comes only when he is upon them is not required, at his peril, to keep his horses clear of the second track until satisfied that there is no train approaching upon either.</p> <p>3. Same.</p> <p>Plaintiff undertook to drive across defendant’s tracks at a street crossing where there were four tracks, the first being used to store cars, which prevented a view of the other tracks. He drove upon the second, or north-bound track, when he looked to the south, and as his horses were upon the south-bound track, looked to the north, arid discovered a train so nearly upon him that he had only time to swing his horses off the track, when the train struck his front wheel. Held, that he could not be held guilty of contributory negligence as matter of law.</p> <p>4. Same — Railroads.</p> <p>Proof that the view of the tracks was obstructed and that no warning was given at a crossing, either by the train or a flagman, is sufficient to require the submission of the question of the negligence of the railroad company to the jury.</p> <p>Haupt v. N. Y. C. & H. R. R. R. Go., 18 Mise. 594, reversed.</p>

<p>1. Appeal — Waiver of objection.</p> <p>An objection that.no demand for the return of the goods in question had been made is waived unless taken on the trial, and cannot be raised for the first time on appeal.</p> <p>8. Same — Excessive .recovery — Exception.</p> <p>The Appellate Term cannot grant relief against an excessive recovery, where there is no exception presenting the question in legal form.</p> <p>3. Trial — Refusals to charge.</p> <p>It is not error to refuse to charge a positive statement of fact as to which the evidence is conflicting, or which the evidence is not sufficient to support.</p>

<p>Appeal from affirmance by the General Term of the Oity Court of New York of a final judgment in favor of the plaintiff upon demurrer to a separate defense contained in the answer of the defendant.</p>

<p>Appeal, from affirmance by the City Court, General Term, of a judgment in favor of plaintiff.</p>

Appeals from affirmance by the General Term of the City Oóurt of Hew York of the several judgments entered in the above-entitled actions, upon the decision of the court sitting- at Trial Term without a jury, in favor of the defendants. for the dismissal of the complaints upon the merits. .

<p>1. Limitation — Payment — Existence of firm.</p> <p>In an action upon a firm note one of the defendants set up the defense of the statute of limitations and testified that the partnership had been dissolved more than six years before. No notice to the plaintiff of such dissolution was shown, and there was proof that subsequent to the date of such alleged dissolution the firm made a payment upon the note. Held, sufficient to support an inference that all the partners assented to such act or that the firm was in existence at that time.</p> <p>2. Trial — Motion to dismiss.</p> <p>A denial of a motion to dismiss the complaint is not erroneous because it involved the submission to the jury of an untenable ground for a recovery, where a good cause of action is made out by other evidence.</p> <p>3. Agency — Payments.</p> <p>Evidence sufficient to show authority in a bookkeeper of a firm to make a payment on a firm debt after dissolution of the firm so as to take the claim out of the statute of limitations.</p> <p>4. Evidence — Letters oí agent.</p> <p>Letters of an agent sentwith payments upon the account in suit are admissible in.evidence as against his principal.</p>

<p>Appeal by defendant from affirmance by the City Court, General Term, of a judgment in favor of plaintiff.</p>

Appeal by defendants from an affirmance by the City Court of New York of a judgment in favor of plaintiff entered upon the verdict of a jury. The action was to recover a penalty of $50 and damages amounting to $513.22 from the defendant corporation and Jarvis 0. Howard, its treasurer, under the Stock Corporation Law (Laws of 1892, chap. 688, § 29), for refusal to allow plaintiff, a stockholder in said corporatioh, to inspect its books and make extracts therefrom.

<p>Appeal from an affirmance by the General Term of the City Court of an order of the Special Term, denying the motion of George L. Montague, the receiver of the plaintiff, to he substituted as plaintiff in this action.</p>

Appeal by defendants from an affirmance by the City Court of a judgment of the Trial Term in favor of plaintiff, entered upon the verdict of a jury for $200 damages, in an action for the conversion of a steam pump.

<p>Appeal by the plaintiff from a reversal by the General Term of the City Court of an order of the Special Term adjudging guilty of contempt John G. Schwartz, surety upon bail, for alleged misconduct in swearing to his sufficiency as such surety. Appeal also by plaintiff from an order of the General Term denying a motion for a reargument of the appeal from the said order of the Special Term.</p>

Appeal by the defendant from an affirmance by the General Term of the City Court of a judgment in plaintiff’s favor, entered upon the verdict of a jury for $800 damages and costs. The action was for negligence in running over the infant plaintiff with a horse and wagon alleged to belong to the defendant and to be driven by one of its employees. ■ The defense was a general denial.

<p>Appeal by the defendant from a judgment of the justice of the Thirteenth District Court in favor of the plaintiff for $51.50 damages, besides costs.</p>

<p>Appeal by plaintiffs from a judgment of the justice of the Eirst District Court in favor of defendant.</p>

<p>Payment — Duress.</p> <p>Pending an action of foreclosure tlie mortgagor procured a third person to loan the money and take an assignment of the mortgage as security. The mortgagee refused to make the assignment unless she was paid not only the principal of the mortgage with interest and costs, but also a certain sum for a policy of title insurance which her husband had lent to the mortgagor, which sum the latter paid under protest. Held, that there was no duress of person or property, and that the payment was, therefore, voluntary and could not be recovered.</p>

Motion by appellant for restitution of .$240, received by respondent upon a judgment in this action rendered by the justice of the Fourth District Court on September 24, 1894, in favor of the respondent against the appellant, who was interpleaded in the said court in place of the United States Grand Lodge of the Independent Order of the Sons of Benjamin.

<p>Appeal by defendant from a judgment of the justice of the Seventh District Court in favor of plaintiff for $62.50, besides costs in an action for the rent for the month of December, 1896, of ¡in apartment on the first floor "of premises 111 East Eighty-seventh street. The action was upon a lease for one year commencing October 1, 1896, at. the yearly rent of $750, payable monthly in advance.</p>

<p>. Appeal by the plaintiff from a judgment of the justice of the Eighth District Court in favor of defendant. .The action was for money collected in 1881, and the defense was the'Statute of Limitations.</p>

Appeal by the defendants from a judgment of the justice of the Eirst District Court in favor of plaintiff for $119.54 damages and costs in an action for goods sold and delivered. Defense, general denial and tender of $9.30.

Appeal, by defendant from a judgment of the justice of the Ninth District Court in favor of the plaintiff for $35 damages) besides costs. The action was to recover the value of an overcoat intrusted to the care of a waiter in a restaurant by a guest. The restaurant was part of the property and business of the Harlem Casino Company, of which the defendant was temporary receiver under an appointment by the Supreme Court.

<p>Damages — Personal injuries.</p> <p>Where one of the bones in plaintiff’s foot was broken by reason of the negligent act of defendant’s truckman, and he was kept from his work for eighteen days, entailing a loss of wages of $36 to $38, a verdict of $150 is not excessive.</p>

<p>Appeal from judgment rendered by the justice of the Eleventh Judicial District Court in favor of the plaintiff.</p> <p>Action for goods sold and delivered.</p>

<p>Appeal from final order in summary proceedings, made by the justice of the Sixth Judicial District Court in favor of the landlord.</p>

<p>Appeal from order made -by the justice of the Second Judicial District Court, granting a new trial upon return of a verdict, in favor of the plaintiff, upon the ground that such verdict was against the weight of evidence. (</p>

<p>Estoppel — Representations in petition in summary proceedings.</p> <p>Representations as to tenancy in a petition in summary proceedings do not estop the landlord in a subsequent action against another party for rent of the premises for the same period, where it is shown that he stated the facts correctly to the clerk of the court, who filled in the wrong name in the petition, and the landlord signed the same believing it to have been correctly drawn.</p>

<p>Appeal by plaintiff from order made by justice of Eighth District Court opening default, etc. - .</p>

<p>Salo — Guaranty against loss — Does not prevent action for purchase price.</p> <p>A contract for the sale of goods provided for payment of the purchase price at certain intervals of time, and further contained a provision that in case .the vendee had not received as much from the resale of the goods at the end of two years as he had paid therefor the vendor would take back the goods and give his check for the difference. Held, that these provisions were independent of each other; that the vendee could not postpone the time of payment to the ultimate date of return of the goods and that the vendor could maintain an action for breach of the agreement to pay at the time stated notwithstanding the condition for return.</p>

<p>Appeal from order, made by the justice of the Tenth Judicial District Gourt, setting aside the verdict of a jury and granting a new trial upon the ground that the verdict “ was against the weight of evidence and the law.”</p>

<p>Appeal by plaintiff from judgment of the First District Court.</p>

<p>Railroads — Negligence — Fences.</p> <p>In an action to recover damages for the killing of cows at a railroad crossing, it is error for the court to charge that a railroad passing through a district in the nature of a village is under an implied duty to construct a sufficient obstruction across highways or roads, and to refuse to charge that the posting of flagmen, the placing of gates or other obstructions on the highway at railroad crossings, or the giving of special and personal notice, was not required by law, and that the omission thereof did not charge the company with negligence.</p>

<p>1. Payment — Assigned claim.</p> <p>A payment made by a debtor to his creditor after notice of an assignment of the claim does not operate to discharge the indebtedness.</p> <p>S. Samo — Ratification.</p> <p>An acceptance by the assignee of additional security from the assignor and an agreement not. to sue him for tort is not a ratification of such a payment, where it is not shown that he had any knowledge of such payment at that time.</p>

<p>1. District Courts — Short summons — Corporations.</p> <p>- The statutory provisions requiring a short summons or attachment against nonresidents in District Courts apply to nonresident corporations.</p> <p>3. Appeal — Default.</p> <p>Notwithstanding the power possessed by District Courts to open defaults and vacate judgments, an appeal lies to the appellate term from a judgment by default where there was no personal service of process.</p> <p>3. Attachment — Affidavit — Jurisdiction.</p> <p>An affidavit for an attachment against a foreign corporation which states that the plaintiff resides in another state, but does not state that the cause of action arose in this state or that the contract sued on was made therein, is insufficient to confer jurisdiction on the court.</p>

<p>Motion by plaintiff-respondent to dismiss appeal for failure, to procure the filing of the justice’s return. .</p>

<p>Actiob for construction of will.'</p>

<p>1. Corporations — Debenture bonds.</p> <p>The issue of debenture bonds to be subscribed for by stockholders and paid for in part by the surrender of stock is invalid as not complying with sections 23 and 42 of the Stock Corporation Law, which require the issue of bonds for money, labor or property.</p> <p>2. Same — Seduction of stock.</p> <p>Where the stockholders have taken valid action for the reduction of the capital stock, and the directors subsequently make provision for the issue of debenture bonds payable in part by stock, the court will interfere with such reduction of stock only so far as is an incident to or Connected with the proposed issue of the bonds.</p> <p>3. Same — Damages.</p> <p>In an action to procure an injunction against a proposed issue of bonds, damages cannot be awarded on the presumption that some of the bonds have been issued.</p> <p>4. Pleading — Supplemental pleadings.</p> <p>In order to review and have relief for or against action taken during the pendency of the suit, application must be made and leave had to serve supplemental pleadings presenting the question.</p>

<p>Action to recover the balance alleged to be due upon a bond.</p>

<p>1. Chattel mortgage —■ Failure to refile — May be availed of by receiver of corporation mortgagor.</p> <p>In a proceeding to foreclose a chattel mortgage made by a corporation a receiver of the company, appointed in proceedings for its voluntary dissolution, may interpose the defense of failure to refile the mortgage within thirty days next preceding the expiration of a year from the first filing, although the mortgage was not fraudulent in fact or intent.</p> <p>2. Same.</p> <p>The receiver appointed in such a proceeding represents the creditors of the corporation, and it is not necessary that they should be judgment creditors to enable him to present such defense.</p> <p>3. Same — Possession of mortgagee.</p> <p>The nature of the possession of a mortgagee under a chattel mortgage which renders refiling thereof unnecessary must be an actual and continued change of possession which is open and public.</p>

<p>Gaming — Contract for future deliveries of stock — Place of contract.</p> <p>Where a banker located in Pennsylvania issues circulars inviting contracts with reference to contracts for future delivery of stocks or grain, which is accepted by letter written in this state which is accompanied' by check or money, the. contract is one made in this state and is subject to the statute of this state against gaming.</p>

<p>Appeal from order striking out portions of the answer as re¡dundant and irrelevant.</p>

Appeal-from a judgment entered upon a verdict in favor of the plaintiff and against the defendant and from an order denying the motion of the'defendant, for a new trial.

<p>Appeal from order denying defendant’s motion for interpleader.</p>

<p>Appeal from an order denying a motion to vacate an order of arrest upon the papers on which it was granted.</p>

<p>Appeal from judgment dismissing the complaint.</p>

<p>1. Parties — Sale.</p> <p>An action upon a contract for- the sale and erection of a gas engine and fixtures may he maintained by the party in whose name it was made and who furnished the articles, notwithstanding a provision in the contract by which the engine was to remain the property of another until paid for in full.</p> <p>2. (Same — Trustee of express trust.</p> <p>In such a case the plaintiff is, at least, - a trustee of an express trust, . and entitled to maintain the action as such.</p>

.Appeal from judgment in favor of the plaintiff, entered by direction of the court, and from an order denying a motion for a new trial. '

<p>Appeal from order denying motion to dismiss proceedings, supplementary to execution.</p>

Appeal by defendant from a judgment for plaintiff entered upon verdict directed by the court and from order denying motion for a new trial.

<p>Appeal from judgment in favor of plaintiff entered upon a verdict, and from order denying a motion for a new trial.</p>

<p>1. 'Assignment — Variance.</p> <p>The complaint in an action for rent alleged that the landlord had assigned the claim and demand for rent to the plaintiff prior to the commencement of the action. On the trial a writing was produced by ■which said landlord authorized and directed the plaintiff to ask, demand, sue for and receive and collect from defendant and another any rent that may be due from the premises occupied by them or either of them,, and assigned and transferred to him any interest he. "might have in said rent. Held, that said instrument complied fully with the one described in the complaint and was properly admitted in evidence. ■ i</p> <p>2. Dismissal of complaint — Grounds for.</p> <p>A motion to dismiss the complaint “ on the usual grounds.” is too indefinite; there are no such grounds for the dismissal of complaints.</p>

<p>Appeal from order vacating-order for examination of plaintiff before trial' and for inspection and discovery of books.</p>

<p>Appeal from order overruling a demurrer, from an interlocutory judgment entered thereon, and from the final judgment.</p>

<p>1. Trade unions — Liability for malicious procuring of discharge from employment.</p> <p>A labor association which maliciously procures the discharge of a person from employment, is liable to such person for the damages thereby sustained by him.</p> <p>8. Same — Duties of treasurer.</p> <p>Where the constitution and by-laws of the association prescribe the precise manner in which the treasurer may be called upon to surrender his books for examination, he cannot be required, by a majority vote of the members present at a meeting, to submit his books in a different manner or to other persons than those named in the constitution and by-laws. _ •</p> <p>3. Same — Damages.</p> <p>In an action against a labor organization for maliciously procuring the discharge of the plaintiff, a recovery may be had for such time as was lost to him by the acts of the defendant, and he is not obliged to seek employment in other localities.</p> <p>4. Appeal — Verdict.</p> <p>Where no motion to dismiss or for the direction of a verdict in his favor was made by the defendant on the trial, he is precluded from asserting on appeal that there is no evidence to sustain the verdict.</p>

<p>Appeal from a judgment entered on the verdict of a jury in favor of the plaintiff and against the defendant, and from an order denying the defendant’s motion for a new trial.</p>

Re argument upon an appeal from an order directing a retaxation of a bill of costs with liberty to both of the parties to present such proof of value to the clerk as they might deem proper on the retaxation of the said bill of costs.

Appeal, from judgment in favor of the plaintiff, entered upon a verdict, and from order- denying a motion for a new trial.

<p>Appeal from judgment in favor of the plaintiff,, entered upon a verdict.</p>

Action to recover damages claimed to have been sustained by plaintiff as the result of the unauthorized entry by defendant, who was a justice of the peace, of two judgments against her.

Action is-brought to recover the sum of $500 as an installment of a legacy for the payment of which to plaintiff it is claimed the defendants have become personally charged in connection with the devise to them of certain real estate.

This action is brought for the purpose of having it, amongst other things, adjudged in substance that the plaintiff is the grantee and owner of certain water rights and powers produced by the Black river at Dexter, in Jefferson county, and that its rights are prior and superior to those- belonging to the defendants, respectively; that said defendants, Or some of them, are drawing more water or exercising greater rights, as against the plaintiff than they are entitled to and…

<p>Motion for a nonsuit. The opinion states the facts.</p>

The two above-entitled actions were respectively brought by the owners of certain dogs within the corporate limits of the city of Albany who ask in their complaints that chapter- 448 of the Laws-of 1896 he adjudged unconstitutional and void and that the defendant, its officers and agents, be restrained from destroying the'plaintiffs’ dogs.

■ Action by the vendee of real estate against the vendor for specific performance, or, in the alternative,, to recover the amount paid to apply on the purchase and for dámages. ■

Action for an injunction to restrain the continuance of a nuisance, viz., the use of a cremator, erected and used by the defendant, an incorporated village, within the village^ for the burning of the garbage^ night soil, dead animal bodies and offal, collected in the village. The plaintiffs owned and lived in residences situated about 1,000 feet from the cremator.

This is an action of ejectment. The plaintiff, thirteen years of age, is the son and only heir of the defendant and his deceased wife. The house and lot in question was the property of the said wife before the defendant married her. She was a resident of the state of Oonnecticut, and he of the state of Hew York.

<p>•.Action to cancel certain stocks and bonds, and for an accounting. The opinion states the facts.</p>

<p>Action by creditors to have certain, transfers adjudged fraudulent and void.</p>

Action brought to foreclose a mortgage. The defense is that the property covered thereby was purchased by the above-named defendant with pension money, and is, therefore, exempt.

<p>Action to set aside the conveyance of real estate, on the ground that it was made to defraud creditors</p>

<p>1. Bills and notes — Equities against a past due note.</p> <p>The assignee of the payee of a past due promissory note takes it subject to all equities which existed between the original pallies.</p> <p>2. Same — Same — Counterclaim — Discontinuance of a former a.ction.</p> <p>■ Where it appears that the payee of such a note procured an attachment in an action brought upon it in a foreign state, and subsequently, in consideration of a bill of sale of the maker’s personalty and of a bond and mortgage upon his realty, agreed to discontinue that action and to expend $300 in improving the real estate, with a view to enabling the maker in the future to save something out of the property, and in order to facilitate its renting, and that this agreement was carried out and an order made which recited the discontinuance of the action, and directed the sheriff to deliver the personalty to the payee, but that, subsequently, the payee, in violation of its agreement, proceeded with its attachment suit, caused the entire property to be sold by the sheriff, with a resultant great loss to the maker, he may interpose the breach of contract upon the part of the payee and the consequent damages, as a counterclaim to an action brought by an assignee of the payee of the. note</p> <p>3. Same — Same — Consideration.</p> <p>The fact that the agreement to abandon the attachment action was not in writing is not material, as the minds of the parties had met and as the agreement to do so was founded upon a good consideration in that the payee obtained immediate possession of the personalty and obtained a release of the dower right of the wife of the maker in the realty.</p> <p>4. Same — Measure of the maker’s damages.</p> <p>The measure of the damages of the maker is the difference between the actual value of the property sold and that which it realized at the sale made by the sheriff.</p>

<p>Action to recover damages for negligence of defendants’ servants.</p>

<p>Mechanic’s Lien Law — Consolidation of actions.</p> <p>The provisions of the Mechanic’s Lien Law, contained in section 18 of chapter 342 of the Laws of 1885, authorizing the court to consolidate two or more actions, are not broader than those of section 817 of the Code of Civil Procedure, and where a motion is made to consolidate an action brought to foreclose a mechanic’s lien and which ■has been tried in part, with one in which the issues have just been joined, the motion comes too late.</p>

<p>1. Interrogatories — Practice on settlement.</p> <p>The General Rules of Practice contain no directions concerning the settlement of interrogatories, and for that reason they must be settled in accordance with the practice which was in force at the time when the Code of Civil Procedure went into operation.</p> <p>2. Same — Objections when taken.</p> <p>Under the provisions of Code, § 892, either party must be allowed to insert in the commission any questions pertinent to the issue which he proposes, and, under the provisions of section 911, an objection to the competency or credibility of the witness, or to the relevancy or substantial competency of a question put to him, or of an answer given by him, may be made as if the witness was then personally examined and without being noted upon the deposition; and it follows that all other objections except those specified must be taken at the time when the interrogatories are settled.</p> <p>3. Same — Form of order of resettlement.</p> <p>Form of an order resettling an order settling interrogatories.</p>

<p>Motion to compel defendants’ attorney to accept exceptions to report of referee and notice of appeal.</p>

<p>This was a suit to have it adjudged that the defendant held the several parcels of real estate described in the complaint in trust for the plaintiff, and to require her to conv.ey the same to him, or his nominee. The defendant is the daughter of the plaintiff. He was a real estate dealer. His wife having become insane, he stated to the defendant that if he took title to real property in his own name he could not convey a full title thereto, as his wife could not join in the conveyance, and release her dower, and he requested the defendant to allow him to take title in her name to all real estate he should buy, she to convey it upon his request as he should find purchasers. She agreed to this, and the several parcels in question were conveyed to her by third parties at the request of her father, he paying the consideration. The trust was not expressed in writing. Title was so taken subject to a mortgage in -the case of one parcel, and the defendant raised money by a mortgage on the other parcels at the time of the conveyance to pay part of the purchase money. The plaintiff afterwards paid the interest and principal of said mortgages, and had them satisfied. Afterwards, the defendant refused to convey the property at the plaintiff’s request.</p>

This is an action by a taxpayer to restrain the supervisor and town clerk of the town of ETewtown, in Queens county, from issuing 620 town bonds of the par value of $1,000 each. It is alleged that it would be an illegal official act to issue such bonds, for the reason that the issuing thereof was never authorized by a vote of the electors of the town at a town meeting as required by the statute.

<p>Motion to set aside the appointment of a receiver in supplementary proceedings.</p>

<p>1. Commissioners to take private property — Appointment.</p> <p>Where three commissioners have been appointed by a court of record, pursuant to article I of section 7 of the Constitution of this state, for the purpose of making compensation for private property which has been taken for a public use, and there is nothing to show 'that the action of the court in appointing the commissioners was not independent and untrammeled, beyond a statement contained in an affidavit that the deponent is informed and believes that the justice who appointed the commissioners had received and entertained, without the knowledge or consent of any of the property owners or their counsel, a suggestion by the corporation counsel of the city of New York of the names of two commissioners whose appointment is sought to be set aside, that the justice appointed these commissioners in compliance with the suggestions of the corporation counsel, the court is not justified in presuming that a justice of the Supreme Court failed to act in accordance "with the Constitution of the state.</p> <p>3. Samé — Matters not disqualifying.</p> <p>A person is not disqualified for appointment as sucli a commissioner, merely because be has been a city appointee and is at present at times employed by the city, nor is it a disqualification that one of the commissioners was interested in procuring the.passage of the act (chap. 59, Laws of 1897) under which the commission. was appointed.</p>

<p>1. Wrongfully procuring one’s discharge from employment — Slanderous words.</p> <p>The complaint in an action alleged that the plaintiff solicited employment from a life insurance company and was thereupon required to furnish security for his good conduct, through a guarantee company; that the guarantee company requiring information as to his habits and character, the plaintiff referred that company to the defendant for information; that in the meantime the insurance company had employed him provisionally; that the defendant, replying to inquiries of the guarantee company, conspired with a third person to injure the plaintiff and deprive him of employment, and falsely and maliciously made to the guarantee company statements concerning the plaintiff, “ accusing him of bad and vicious habits,” and which statements, if true, would render him unfit to occupy any position of responsibility. The plaintiff alleged that because of these statements the guarantee company refused to give the bond, and the insurance company dismissed him from his provisional employment, to his great loss and damage and to the great loss and damage of his reputation and character. Held, that, if the complaint was to be regarded as one in slander, it was demurrable in failing to set out the words which were supposed to constitute the slander.</p> <p>2. Same — Proximate cause.</p> <p>That, if the complaint proceeded upon the principle that an action would lie against the defendant because he maliciously procured the discharge of the plaintiff, it did not appear that the plaintiff had sustained damage by the wrongful act of the defendant, for, inasmuch as_ the insurance company refused the plaintiff employment because he did not give the bond, and as the guarantee company did not furnish the bond because of the defamatory statements of the defendant, there intervened, between the wrong done by the defendant and the damage received by the plaintiff, the voluntary act of the guarantee company, which act was the proximate cause of the plaintiff’s loss of employment.</p> <p>3. Slanderous words must appear.</p> <p>That, assuming, however, that there was a sufficient connection between the defendant’s statement to the guarantee company and the - plaintiff’s discharge by the insurance company, it was not legally apparent that his statement justified the guarantee company in declining to give the security, and that the plaintiff, therefore, should have set out the words spoken by the defendant, to the end that the court might determine whether the refusal of the guarantee company to give the bond was the result of its own caprice, or was the legitimate effect of the statements of the defendant.</p> <p>4. Allegation of conspiracy.</p> <p>That the complaint was not strengthened nor reinforced by the allegation of conspiracy.</p> <p>5. One referring another to a third person for information as to character.</p> <p>Quaere as to the effect upon the cause of action, of the fact that the defendant did. not volunteer to the guarantee company his opinion of the plaintiff, but was authorized, and invited by the plaintiff, to communicate that opinion to the company.</p>

Action to recover back moneys paid upon a contract for the sale óf real property and for damages represented by the plaintiff’s actual expenditures for examining the title, upon the ground that the title offered was imperfect and so properly refused by the plaintiff.

<p>Life insurance — False representations — Estoppel.</p> <p>Where the insured falsely states, in her application for insurance, that her life is not insured in the company of the insurer, and this misstatement is subsequently brought to the attention of the insurer, and both' policies are delivered to it for the purpose of having indorsed upon the second policy the fact of the existence of the first, and the insurer retains both policies in its possession for some time and continues to receive the payment of premiums upon the second policy until the insured dies, the insurer is estopped, by its receipt of premiums after full knowledge of the alleged misstatement, from subsequently resisting the payment of a death claim arising under the second policy, upon the ground of such misstatement.</p>

<p>False representations — Dissuading purchaser from examination — Reckless statements.</p> <p>Where a • party sues to recover money paid as advance rent of a tenement-house, upon a statement of the owner, that it is producing as rent a specific monthly sum, and he dissuades the plaintiff from-examining the premises, by speaking of his own honesty and good faith, and by statements that, “Every time, you do not find what-I say, your money will be returned,” and the statements as to the rental prove to be false, the plaintiff may maintain an action against the owner for fraud in the representations made by him, and it will not constitute a defense to the owner that his statements were merely recidess and not made with intent to deceive, nor is the plaintiff to be deemed negligent because he relied upon the statements of the owner, arid did not hiinself make a personal examination of the premises and of the amount- of their rental.</p>

<p>1. Sale — Refusal to accept goods — Burden of proof.</p> <p>Where a vendor brings an action to recover damages sustained by the refusal, of the- vendee to accept delivery of certain carloads of flour, under an entitre contract of sale, and the vendee does not seek any affirmative recovery, it is erroneous for the court to charge the jury that, to entitle the vendee to recover, he is bound to show,- by proof satisfactory to the jury, that the allegations-of the answer in respect to the terms of the contract and to the reasons for refusing to take the carloads of flour, are true, as the effect is to place upon the vendee the burden of proof in disproving the essential allegations of the complaint as to the terms of the contract and as to its breach. " '</p> <p>2. Same — Complaint.</p> <p>Where the complaint in such an action sets forth the- contract, alleges the plaintiff’s readiness and ability to perform, and the defendant’s re- - fusal to accept, and this is coupled with á general allegation of damage, the complaint is sufficient, although it does not show specifically in what particular manner damages have accrued, nor what particular ■ remedy the plaintiff is seeking to enforce.</p>

<p>Appeal by the defendant from a judgment of the City Court of New York, at General Term, which affirmed a judgment for the plaintiffs rendered at Trial Term upon a verdict in their favor.</p> <p>Action to recover upon an-oral agreement whereby the defendant undertook to accept return of part of a number of electric lamps installed at the plaintiffs’ place of business at their request, and to refund an equal proportion of the aggregate price paid.</p>

<p>Appeal bv defendant from affirmance by the City Court, General lerm, of a judgment in favor of plaintiff.</p>

<p>Appeal by defendant from affirmance by'the City Court, General Term, of a judgment in. favor of plaintiffs.</p>

<p>1. Mechanic’s lien — Subcontractor.</p> <p>A subcontractor cannot recover anything upon a mechanic’s lien filed, by him, where there is nothing due from the owner to the contractor; and in such an action the owner has a right to prove what it cost him to complete work which should have been done by the contractor.</p> <p>2. Same — Consent of owner.</p> <p>The mere fact that an owner stands by and sees a subcontractor at work does not render his property liable to the subcontractor irrespective of the amount due from the owner to the contractor, and in order that a liability to the subcontractor shall be create»’, there must be some affirmative act upon the part of the owner evidencing some new obligation to the subcontractor, independent of the original contract.</p> <p>3. Same — When a subcontractor is put upon inquiry.</p> <p>Where a subcontractor knows that the contractor is not the owner of the premises upon which the work is done, the subcontractor is put upon inquiry to ascertain the rights of the contractor.</p> <p>4. Same — Personal liability of owner.</p> <p>A subcontractor may maintain an action against the owner for work done, where the owner has agreed to be personally liable, but there must be clear evidence of the fact that the owner made such a contract.</p> <p>5. Judgment not supported by any evidence.</p> <p>Where a judgment is not supported by any evidence, exceptions filed present a question of law which may be reviewed upon appeal.</p> <p>La Pasta v. Weil, 20 Mise. Hep. 10, reversed.</p>

Appeal by defendant from judgment of the General Term of the City Court overruling the defendant’s exceptions and directing judgment on verdict in favor of the plaintiffs.

<p>1. Bills and notes — Consideration.</p> <p>A negotiable instrument imports a consideration.</p> <p>2. Receipt.</p> <p>. A receipt is subject to explanation.</p> <p>3. Hotice of protest to drawee waived.</p> <p>An action may be maintained by an assignee of the payee of a draft ' ' against its drawer, where, although no proof is made that the drawee has been duly charged, the payee testifies that he asked the maker to pay the draft after it was protested and that the maker said he would “ fix it up ” with the payee.</p>

Appeal by the defendant from an affirmance by. the General ■Term of the City Court of a judgment in favor of the plaintiff entered upon the verdict óf a jury for $300 damages. The action was brought to recover for personal injuries sustained by the plaintiff, while visiting a tenant of the defendant who lived in his apartment-house Ho. 334 East Sixty-sixth street.

Appeal by the defendant from an affirmance by the General Term of the Oity Court of a judgment in favor of the plaintiff for $888.37, entered upon a verdict directed by the court.

Appeal by the defendant from an affirmance by the General Term of the City Court of a judgment entered upon the verdict of a jury in favor of the plaintiff for $1,097.02.

<p>Appeal from a judgment of the Twelfth District Court dismissing the plaintiff’s complaint.</p>

<p>1. Auctioneers — Sale of worthless articles — False representations.</p> <p>When auctioneers sell at their auction-rooms three lots of goods represented to be respectively, mucilage, Turkish cigarettes, and a lot of sheeting, bags, burlaps and wrapping paper, and the fluid sold as mucilage, and contained in bottles, turns out to be colored water, and the Turkish cigarettes prove to be sweepings of Virginia tobacco-, and the other lot • of goods represented as burlaps, etc., prove to consist of scraps and fragments piled up and covered with sheeting in such a manner as to deceive intending purchasers and to prevent them from examining the goods, the vendee notwithstanding the fact that the goods were sold “ as are ” and that full opportunity was given bidders to examine them, is entitled to recover of the auctioneers damages which he has sustained by their false representations.</p> <p>2. Same.</p> <p>Such a recovery may be supported not only upon the ground of deception, but also because the Vendee has not received articles merely of an inferior quality, but he has received articles of a different nature from those which were made by the auctioneers the subject of sale and articles which have proved to be entirely unmerchantable.</p> <p>3. Same — Reckless misstatements.</p> <p>Persons will be liable for making false representations even in a case where they do not, of their own knowledge, know that the representations are false, as, if they affirm as a fact that which they. cannot anfl do not know to be a fact, their liability is the same as if they affirmed as a fact something which they knew was false.</p> <p>4. Same — Damages — Cartage.</p> <p>Where a person buys at a public auction goods' which are wholly uni merchantable, he may recover of his fraudulent vendors the expense which he incurred in carting away the unmerchantable goods.</p>

<p>1. Common carriers — Stipulations against their own negligence.</p> <p>However broad or general may be the language of a contract which does not specifically and in express terms release a. carrier from the consequences of its own negligence, it will not effect such release, if the general words may operate Without including such negligence.</p> <p>2. Same — Goods improperly packed.</p> <p>Where, however, a person ships a demijohn of whisky, packed in an ordinary champagne case, an unusual method for the packing of a demijohn, and there is nothing to indicate to a carrier the unusual nature of the contents of the champagne case, and the receipt of .the carrier, among other things, stipulates that all articles of glass will be taken at the risk of the shipper who agrees that the carrier shall not be" held responsible for breakage or otherwise, nor for damage to goods not properly packed, the question whether the demijohn was properly packed is one of fact, and where it is resolved unfavorably to the shipper, the carrier is not liable to him for a breakage which occurred in the transit.</p>

<p>Motion by the respondent Bair to dismiss the appeal for failure of the appellant to deposit the costs awarded in' the order setting-aside a judgment, from which order plaintiff has appealed.</p>

Appeal by the plaintiff from a judgment of the justice of the Tenth District Court in favor of the plaintiff for $12.50, allowing • a counterclaim of defendant.

<p>Appeal by the defendant from a judgment of the justice of the Eighth District Court, in favor of the plaintiff for $20, besides costs.</p>

Appeal by tenant from final order made on default of a verified answer by the Sixth District Court in summary proceedings under the statute for nonpayment of rent, and from an order denying a motion thereafter - made to open such default and to permit the tenant to come in and defend.

<p>Landlord and tenant—Holding over — notice of increased rent — Service.</p> <p>The plaintiff’s assignor, John F. Dowd, and the defendant made a contract whereby the defendant was to exchange certain lots for the house of Dowd. Pending a search of the title and on September 14th, Dowd allowed the defendant to occupy his house until September 30th on the payment of the nominal rent of $1, but, as the time for closing the exchange was adjourned, Dowd again rented the house to the defendant until October 15th, for $1. On the last named date the contract was not closed, and Dowd served a notice on the wife of the defendant, that the tenancy had expired, and that, if the defendant remained on the premises thereafter, the rent would be $27.50 a month.</p> <p>The defendant did not receive this notice until October 16th, and three days later abandoned the premises. Held, that the assignor of Dowd could not recover one month’s rent from October 15th to November 15th, on the theory that the defendant had held over until October 19th. That as the notice relative to .-increased rent did not reach the - defendant until' October 16th, one day after a new term at a rent of $1 might be said to have .commenced, the notice came too late to effect an increase in the rent,- and further, that the notice was insufficient because it was not served upon the defendant personally, but was served upon his wife.</p>

<p>Appear by defendant from judgment of First District Court.</p>

<p>1. Warehousemen — Degree of care.</p> <p>Storage warehousemen are bound to take the same degree of care of property committed to their charge which prudent persons usually take of their own property, and they are liable only for ordinary neglect.</p> <p>2. Same — Loss of goods — Burden of proof.</p> <p>Where a customer proves that her property was in good condition when it reached the possession of the warehousemen, and that when returned to her it was damaged in a manner and to an extent that would have been impossible if the property had been properly cared . for, the customer had made out a prima facie ease, and it then becomes the duty of the warehousemen to show that the injury did not happen in consequence of their failure to use all the care and diligence which a prudent person would exercise- in relation to his own property.</p> <p>3. Same— Cost of repairs.</p> <p>Where property which has been stored has been damaged and subsequently repaired, proof of the cost of repairs, standing alone, may be objectionable; but where it is followed by the evidence, of the . repairer, showing that the charges made for repairs were reasonable, there is legal proof of the damage.</p>

<p>Broker’s commissions — A party cannot strike out Ms own evidence.</p> <p>Where a broker sues for commissions alleged to have been earned by procuring the defendant a loan upon his property, a motion, made by the defendant at the close of the case, to strike out all evidence of transactions had between the plaintiff and the lender, upon the ground that it is not connected with the defendant, is properly denied, where it appears that the motion, if granted, will strike out, not only testimony elicited by the plaintiff, but also other testimony adduced by the defendant himself.</p>

<p>1. Railroad — Action for a penalty for excessive fare-</p> <p>The provisions of article 2 of section 39 of the General Railroad Act, providing that any railroad corporation which' shall ask or receive more than the lawful rate of fare, unless such overcharge is made through inadvertence or mistake not amounting to gross negligence, shall forfeit $50, to be recovered with the excess so received in an action by the party paying the same, are penal in their nature and are not to be extended to cases which were not within the legislative intent or the evil intended to be remedied.</p> <p>S. Same — Mistake of conductor.</p> <p>Evidence that after a person had paid his fare in a cable car, the conductor told him at a certain point that he must get out and take ' the next car as the one he was in did not go any further; that, .after he had boarded the next car, its conductor, notwithstanding the fact that the plaintiff told him he had already paid his fare upon the ¡first car, insisted that he must pay again; that .thereupon the plaintiff left that car, took the following car, and paid his fare upon it without objection, is insufficient to justify the plaintiff in maintaining an action to recover the penalty imposed by the General Railroad Act for a charge made in excess of the legal fare, as it cannot be said that the corporation deliberately asked or received more than the lawful rate of fare; the action of the conductor of the second car bringing the.action within the exception of the statute.contained in the words “ unless such overcharge was' made through inadvertence or mistake not amounting to gross negligence.”</p>

<p>Appeal from judgment -rendered.by the justice of the Ninth Judicial District Court in favor of the plaintiffs.</p>

<p>Appeal by tenant from final order made in summary proceedings by the Second District Court.</p>

<p>Appeal by tenant, from final order made- in summary proceedings by the Minth District Court. .</p>

<p>Motion by defendant to set aside taxation of costs.</p>

<p>Bills and notes:— Equities after maturity.</p> <p>Where a person takes a promissory note after maturity, the note is subject to all the defenses which exist between the original parties to it.</p>

<p>Appeal from judgment rendered by the justice of the First Judicial District ■ Court in favor of the plaintiff.</p> <p>Action for negligent injury to personal property.</p>

<p>District-Courts of New York — Appeal from an order denying á motion for a new trial. v .</p> <p>Chapter 748 .of the Laws of 1896, amending the. Consolidation Act, as amended by chapter 750 of the Laws of 1894, and relating to District Courts in the city of New York, authorizes an appeal from an order granting a new trial, but does not authorize an appeal from . an order denying a motion for a new trial, and, a motion made to dismiss an appeal of the latter character must be granted.</p>

<p>Appeals by tenant from final orders in summary proceedings made by the Sixth District Court.</p>

<p>Motion to determine as to liens and preferences under a general assignment.</p>

Application to punish the judgment debtor for a claimed violation of the usual injunction contained in an order in supplementary proceedings. The judgment debtor after the service of the order transferred property; but before the service of the motion papers in this application and after the transfer or cotemporaneously therewith the judgment debtor obtained from the owner of the judgment to whom the judgment creditor had assigned it a satisfaction of the judgment.

<p>Appeal by defendant from judgment on verdict for plaintiff, and order denying new trial.</p>

Appeal by defendant from order made at Trial Term, allowing plaintiff to withdraw a juror and denying defendant’s motion to dismiss, and from order of Special Term granting plaintiff’s motion for leave to amend complaint:

<p>This is an appeal from a judgment entered upon-the decision of the court, upon a trial .without a jury.</p>

This is an appeal from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial.

<p>Demurrer to the complaint in an action for limited divorce on the ground that it sets up more than one cause of action, viz., a cause of action for divorce and one for fraud and deceit.</p> <p>The complaint is as follows:</p> <p>The plaintiff for her amended complaint herein respectfully alleges:</p> <p>I. That the parties to this action intermarried more than twenty years ago in the city of Borne, in the state of Hew York, under the lites of the Boman Catholic Church, and after such marriage removed and have resided in the city of Bochester, in said county, -and are now actual inhabitants of the said state and still husband ■and wife; that the law of said church forbids absolute divorce between married persons, and plaintiff is a devout Catholic.</p> <p>II. And the plaintiff further alleges that at the said city since -said marriage the defendant has treated her in a cruel and inhuman manner, and since about the year 1890, has there been addicted periodically to the excessive use of intoxicants and in his fits of •drunkenness or while under the influence of alcoholic stimulant, has repeatedly committed acts of cruelty and violence upon plaintiff, and in particular as follows: That at said city of Rochester, defendant, without cause or provocation, sometime in the latter half of November, 1896, on a day wh'ch she is now unable exactly to specify, spat into plaintiff’s face while she was walking upon the public, highway and. about her business; that defendant’s entire course of conduct towards plaintiff in said city, with rare intervals, has been for a long period uniformly cruel, abusive and brutal, he •being constantly in the habit of applying abusive epithets to her, •of threatening her with violence and of striking and attempting to ■strike her.</p> <p>. III. And .the plaintiff further alleges that for the past six years the defendant, did wrongfully and willfully conspire and plan to ■abandon plaintiff and Wrongfully and willfully abandoned plaintiff, and has, since November 28, 1896, refused to return to her, and expelled her from and denied to her his residence, and still refuses and neglects to live and cohabit with her and to provide and maintain her; though at said last-mentioned date she caused a certain writing to be personally served upon defendant, in which she expressly desired. and required of him, in substance, to live and cohabit with her as his wife and to- admit her to his domicile; and also to take back any .and everything he ever gave her, which she then and there unconditionally offered to return and tendered to him, all of which he refused to do and has since continuously- persisted in refusing to do, as well as to support and maintain her in a manner suitable to his means and station in life; that, although plaintiff has always conducted herself towards defendant as a faithful and obedient wife, the defendant disregarded his duties as a husband and has been willfully absent from and deserted the plaintiff within six years past without any cause or justification therefor; and, as she is informed and believes, now has his household managed by a young single woman named Emma Strieker, wholly apart from plaintiff, in pursuance of his said intention as aforesaid,. and said conspiracy as aforesaid to wholly and willfully abandon plaintiff, and to willfully desert her contrary to section 1162 of the Code of Civil Procedure, under the provisions of which law and no other she expressly limits, intends and brings her action in the foregoing premises; that this course of treatment and conduct has caused plaintiff great pain, humiliation and distress of mind and injured her in her fair fame' and good name among people and through the community; that the defendant in further pursuance of said conspiracy and of his said course of cruel and inhuman treatment and willful abandonment and desertion as aforesaid of plaintiff, falsely and unlawfully pretends to sustain the married relation to said woman Strieker as aforesaid, and has falsely permitted, countenanced, aided and abetted, and falsely permits, aids, abets and countenances the said woman as aforesaid in said city and to all persons, falsely and unlawfully personate plaintiff, and in such assumed character as aforesaid, to falsely pretend that she, said Strieker, is the wife of defendant, knowing the same to be false, all to plaintiff’s great distress of mind, pain and humiliation and to the injury of her good name and fair fame in the community; and all without her connivance, privity, procurement or consent; that the defendant does all of said acts as aforesaid and knowingly allows said Strieker as aforesaid to do the same with the express intention of making his said abandonment as aforesaid of plaintiff irreconcilably permanent, and proof of all of said acts will be given in this behalf at the trial hereof.</p> <p>IV. That defendant owns real and other estate to the amount of over $60,000 as plaintiff is informed and believes; that during said marriage plaintiff gave and also allowed to defendant the use of large sums of her own money, being her personal and separate estate; that as part of defendant’s said plan and conspiracy as aforesaid to abandon plaintiff at said city of Rochester some time prior to the. commencement of this action on a day which plaintiff is now raable exactly to specify, the defendant in order to obtain and secure from plaintiff a release of her dower in his said real estate, having falsely represented or caused, to be represented to her in substance and effect that the whole of his estate and property of every name and nature did not in value exceed $40,000, and defendant then and there well knowing that said representation was wholly false, did fraudulently cause and induce the plaintiff to release her dower rights to his said fealty upon the express agreement that he did and would then and there split into two equal parts (meaning divide equally) for her every dollar which he had in the world, meaning thereby all of his said property, both real and personal, in consideration, among other things, that plaintiff would release her right of dower in and to defendant’s said realty; that at said time defendant was worth over $60,000 in real and other property, yet plaintiff did not have the means or information to establish the last fact nor did she know the same; but on the contrary.she relied-on defendant and defendant’s said false representations as aforesaid and believed the last to be true in all things, whereby said defendant wrongfully and fraudulently succeeded in defrauding this plaintiff by causing and inducing her as aforesaid, to release her said right of dower in defendant’s real estate and property as aforesaid, which she did., and parted with for defendant’s sole benefit, among other things valuable considerations, for less than the amount of one-half of defendant’s said property as aforesaid, by a sum exceeding $25,000, to which extent and even more the said fraud of defendant as aforesaid prejudiced and injured her in her property rights' as the lawful wife of defendant in and concerning defendant’s said property as aforesaid; that the plaintiff then and there did, fulfilled and in all things- performed her part of said agreement fairly, faith? fully and honestly, and defendant obtained and received all the benefit of said performance; but the defendant wholly omitted and neglected and has since neglected and omitted and still omits and neglects wholly to fulfill and perform his part of said agreement and the same never was" performed by him to her, all to her great pain, injury and humiliation and the prejudice of her said dower rights as the lawful wife as aforesaid .of defendant; that said agreement was in writing executed by the parties to this action; that plaintiff fears defendant will dispose of said real estate pending this suit or hereafter to the irreparable loss or prejudice of her said dower and other marital rights as aforesaid therein, and leave the country without making any provision for her support and maintenance as hereinafter prayed.</p> <p>Wherefore, the. plaintiff demands judgment- for a separation from the bed and board of defendant, and that a reasonable provision for the support and maintenance of the plaintiff, suitable to her husband’s means and station, be made out of the property of defendant; also that defendant be restrained from conveying away said real estate under said agreement in writing more particularly mentioned and specified in part IV hereinbefore, to defeat plaintiff’s said dower interest and marital rights therein, with costs.</p>

This action was originally brought to restrain defendant from constructing two additional stories upon a building which he had leased to plaintiff for business piirposes and from interfering with plaintiff’s business, signs, etc., by the construction of said new ■stories.

<p>Villages — Void award to landowner — Estoppel. 4</p> <p>The provisions of the general act relative to villages (Laws 1870, chap. 291) directing that, in a street opening, an award may be made to a landowner, upon the verdict of six jurymen are absolutely void, and the fact that such a proceeding was" instituted and conducted by the ■trustees of a village does not estop it from pleading'the invalidity in an action brought by a landowner to recover his award from the village.</p>

Action by a taxpayer to enjoin the trustees of the village of Jamaica, Queens county, from putting in the tax levy and collecting a sum to pay the interest and principal of bonds issued to pay for land taken for a park for the village. The proposition to purchase and issue the bonds was submitted to a vote of the electors of the village generally at a special election called for the purpose by the trustees, and was carried by a majority of twenty-eight.

<p>Appeal by plaintiff from judgment on werdict for defendant and order denying new trial.</p>

<p>Interest coupons as negotiable instruments — Indemnity on loss.</p> <p>Interest coupons of railroad bonds, payable tó the bearer at a specified-time and place, are negotiable instruments; and where they, with a negotiable bond to which they are attached,, are lost before maturity, the owner is entitled, upon giving indemnity, as required by section 1917 of the Code of Civil Procedure, to payment of them, from the obligor, and the fact that the mortgage, under which the bonds in question were issued, provides that the semi-annual interest on' the bonds shall be paid “ on the presentation and delivery of the coupons or interest warrants thereto attached,” does not affect the right of the holder to payment, upon giving indemnity.</p>

<p>Sills and notes — Diversion as to payee availably to accommodation maker..</p> <p>An accommodation maker of a note stands as surety for the person for whose accommodation the note was made. And where the maker of an accommodation note delivers it to the payee to have it discounted ■ for the benefit of the payee, and the payee delivers it to another for the same purpose, and the person thus receiving the note delivers it to his own creditor in nominal payment of an antecedent debt, there is, as to the payee, a diversion of the note which is available as a defense to the accommodation maker, standing as surety for the payee accommodated.</p>

<p>Failure of bailees to repair properly — Rejection by bailor.</p> <p>Where bailees agree to refit a sealskin saeque and to trim it with sable fur to be furnished by them, and perform .the work in such a manner - that the sacque, when completed. Is too small for the owner, she may refuse to accept it and is entitled to damages to the extent of its value and this although the bailees make proof that the sacque, in its existing condition, is worth as much as it was when it was orginally delivered to them by the owner.</p>

<p>Note taken by attorney in order to sue upon it — Parol evidence.</p> <p>Where an attorney sues as assignee, under a written instrument, of the indorsee of the payee of a note, made by the' defendant, the latter is entitled to make proof of a defense interposed by her, under section 73 of the Code of Civil Procedure, that the attorney, in violation of that section, bought or was interested in buying the note, with the intent and for the purpose of bringing an action upon it, as the defense, if proved, would compel a verdict for the defendant,</p>

<p>Promise for benefit of third person — Consideration — Insurance payable to the widow of the promisee.</p> <p>Semble, that allegations contained in a complaint made by a widow, to the effect that the brother of her deceased husband induced him to ■ become a member of a benefit society and to name the brother as his beneficiary, upon an express oral promise by the brother that he would, upon the death of the husband, pay the plaintiff, his widow, a fixed sum from the proceeds of the insurance, do not constitute a good cause of action enforcible by the widow against the brother, both because no sufficient legal obligation existed between the promisee, the husband, and the wife, not a party to the agreement, and also because the husband was under no legal or equitable obligation to insure his life for his wife’s benefit.</p>

<p>Appear by plaintiff from interlocutory judgment sustaining demurrer to the complaint.</p>

<p>Warehouseman — Unauthorized delivery to a stranger — Conversion.</p> <p>A warehouseman who holds the trunk of a person on storage, and delivers it to a third person without sufficient authority from the owner, is guilty of a conversion.</p>

<p>Payment.</p> <p>A payment must be made to the party entitled thereto.' And Where It appears that a person, after having ordered printing to be done by one who subsequently abandoned the work, had it finished by another person, who was a printer; and, subsequently, instead of paying the printer, paid his former partner a sum which was only about half the value of - the work, and, after taking a receipt from him, compelled the former partner to give this sum to the person who had abandoned the work after having performed a part of it, the facts do not constitute any proof of payment to the printer which can constitute a defense to an action brought by his assignee to recover for the value of the work.</p>

<p>Appeal, by defendant from judgment on verdict for plaintiff, and order denying new trial.</p>

<p>Appeal from a judgment- in favor of the plaintiff entered upon the verdict of a jury.</p>

<p>■ Practice — Amendment of complaint.</p> <p>Where a proposed amendment to the complaint does not change the nature of the cause of action, the court has power to allow the amendment to be made upon the trial, or it may, in its discretion, permit the plaintiff to withdraw a juror and apply.at Special Term for leave to amend the complaint.</p>

<p>Appeal by plaintiff from interlocutory judgment overruling his demurrer to defendant’s counterclaim.</p>

Arpeal from a judgment .in favor of plaintiff entered upon a verdict and from an order denying motion for a new trial upon the judge’s minutes.

<p>Amendment of answer — Terms after the plaintiff has succeeded on appeal.</p> <p>Where, after the complaint in an action has been dismissed upon the trial, and the judgment has been reversed upon appeal, with costs to the plaintiff as appellant, the defendant move's to amend his answer, the amendment may be granted, but only upon condition that the defendant pay the plaintiff the costs awarded on appeal, and $10 costs of the motion. . ;;</p>

<p>Appeal from an order confirming a referee’s report in supplementary proceedings.</p>

<p>'Appeal from a judgment in favor of plaintiff entered upon a verdict and from order denying a motion for a new trial.</p>

<p>Appeal from a judgment in favor of defendant entered by direction of the court.</p>

<p>1. Continuing guaranty of sales.</p> <p>An instrument which states that “ we hereby guarantee to Messrs. Eichhold .& Miller, the payments of all goods purchased by Messrs. B. C. Young & Co., of St. Louis-, Mo., to the extent of one thousand ($1,000) dollars,” is a continuing- guaranty to the extent named.</p> <p>2i Same — Proof'of sales — Admissions of vendees.</p> <p>The parties indemnified must, as against their- indemnitors, prove that the sales guaranteed were actually made, and this cannot be shown by declarations and admissions of the- parties to whom the goods were sold, made áfter the sales had taken place, not a part of the res gestae, nor brought home to the indemnitors.</p> <p>3. Same — Burden of proof.</p> <p>The burden of proof in a case never changes, and is upon the defendant only where he tenders an affirmative issue.</p>

<p>Jurisdiction. — Carrier — Contract made and conversion occurring without the state.</p> <p>A nonresident cannot, under section 1780 of the Code of Civil Procedure, maintain an action against a foreign carrier, to recover for goods shipped under a through contract from Lenox, Mass., to South Orange, N. J., taken from Lenox by a connecting carrier to Jersey City, N. J., and thence by the foreign carrier to South Orange, N. J., where the conversion complained of occurred, as the contract was made and the cause of action arose without the state.</p>

<p>Appeal from á judgment of foreclosure of a. mechanic’s lien.</p>

<p>Payment — Evidence — Direction of verdict for the plaintiff — Exception.</p> <p>Where an action for goods sold is defended upon the ground of pay- ' ment, and also separately upon the ground of payment by the notes of third parties, and the defendant, although by order precluded from giving evidence in regard to the defense of payment by the notes of third parties, because of his failure to comply with a bill of particulars" ordered in regard to that defense, gives some evidence- of payment, it is erroneous for the court to order a verdict in favor of the plaintiff; and where an exception is taken to the direction of the court, there must be a new trial in order that the jury may pass upon the question whether the defendant gave any sufficient. evidence of payment under his first defense.</p>

<p>Bills and notes—Uo recourse to a subsequent indorser — Consideration. Prior indorsers of notes have no recourse against a subsequent indorser; and where the subsequent indorser gives his note to the prior indorsers upon their taking up notes indorsed, in the first instance, by them and subsequently negotiated by him to a third person, there is no consideration for the note given by the second indorser to the prior indorsers, as they have merely performed their duty in paying the notes upon which they were liable as first indorsers.</p>

<p>Appeal from an order declaring the defendant guilty of contempt. . ,</p>

<p>Testimony of a party not discredited by interest.</p> <p>The interest of the plaintiff, in a controversy, will not prevent his recovery upon his contention, notwithstanding the fact that no persons were present at the time of the agreement, except the plaintiff and the defendant.</p>

<p>Appeal from a judgment in favor of defendants.</p>

<p>Complaint — Defective verification.</p> <p>Where the verification of a complaint is clearly defective, the defendant may disregard the verification and serve an unverified answer.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment in favor of plaintiff, entered upon a verdict.</p>

<p>Services — Hiring for an indefinite term".</p> <p>A contract under which an attorney is to receive from a corporation ■ compensation to be paid to him monthly, at.the rate of $1,200 per year, is not a general hiring by the year, but is a hiring for an indefinite term, and is determinable at will by either party.</p>

<p>Appeal from a judgment in favor of plaintiff, entered upon a verdict.</p>

<p>.Appeal by plaintiff from judgment of the Eotirth District Court.</p>

<p>Appeal from judgment rendered by the justice of the Sixth Judicial District Court, in favor of the defendant.</p>

<p>Appeal by plaintiff from judgment of the Thirteenth District Court-.</p>

<p>Appeal from a. judgment in favor of plaintiff, entered upon a verdict and from an order denying a motion for a new trial.</p>

<p>Appeal from a judgment in favor of plaintiffs, entered upon a verdict.</p>

<p>Appeal from a judgment in favor of plaintiff, entered upon a verdict, and from order denying a motion for a new trial.</p>

<p>Appeal, from judgment in favor of plaintiff.</p>

<p>Appeal-from a judgment-in favor of'plaintiff, and from order denying á-motion for a new trial. - ' '•' : '.</p>

<p>Appeal from a judgment in favor of- plaintiff, entered upon a verdict, and from an order denying a motion for a new- trial.</p>

<p>Appeal from a judgment in" favor of plaintiff and from order denying motion for a new trial. '</p>

<p>Appeal from a judgment in favor of plaintiff, entered upon a verdict. •</p>

<p>. Appeal from a judgment in favor of plaintiff, entered upon a verdict.</p>

<p>Appeal from a judgment in favor of plaintiffs, entered upon a verdict, and from order denying a motion for a new trial-.</p>

<p>Appeal from, an order denying motion to vacate order in supplementary proceedings.</p>

<p>- .Appeal from, a judgment in favor of plaintiffs,, entered upon, a verdict. .... . ... ...</p>

<p>Appeal from a judgment in favor of plaintiffs, entered upon a verdict, and from order denying motion for a new trial.</p>

<p>Appeal from a judgment in faVor of plaintiff.</p>

<p>Appeal from a judgment of foreclosure of a mechanic’s lien.</p>

<p>Appeal from order granting appellants leave to interpose an additional defense.</p>

<p>Apbeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment in favor of plaintiff and from order denying motion for a new trial.</p>

<p>Appeal from order denying motion to punish judgment debtor for contempt.</p>

<p>Appeal from a judgment in favor of plaintiff, entered upon the verdict of a jury.</p>

<p>Appeal from an order denying motion to vacate an order of arrest. •</p>

<p>Appeal from a judgment in favor of plaintiff, entered upon a verdict.</p>

<p>Appeal from a judgment in favor of plaintiff, entered, upon a verdict.</p>

<p>Appeal from an order directing plaintiff to furnish a hill off particulars.</p>

<p>Appeal from‘a judgment in favor of plaintiffs, entered upon a verdict.</p>

<p>Appeal from a judgment in favor of plaintiffs, entered upon a verdict.</p>

<p>Appeal from a judgment in favor of plaintiff, entered upon a verdict.</p>

<p>■Appeal from an order denying motion to vacate service of the summons.</p>