Volume 21 — New York Miscellaneous Reports

<p>1. Streets — Equal rights of vehicles and cable cars.</p> <p>The rights, at a street crossing; of a cáble-road company and those of the driver of a vehicle are equal and it is not negligence, as a matter of law, that a driver of a wagon attempts to traverse a crossing from the east, while an uptown car is a block distant and a downtown car on the track farthest from him is a half block distant, although he is struck by the downtown ear; as he has a right to rely upon the presumption that the gripman of the downtown car will exercise reasonable care in approaching the crossing.</p> <p>2. Negligence — Complaint — Extent of injuries.</p> <p>Where a complaint alleges that by his injuries the plaintiff was “ made sick, sore and disabled ” a physician may describe any bodily injury which resulted from the accident.</p> <p>3. Same — Opinions — Attending physician. ■</p> <p>A physician may give an' opinion as to whether the condition in which he found an injured person could have resulted from the accident in question.</p> <p>4. Same — Charge — Permanent injuries.</p> <p>The fact that after the court had, in effect, charged' the jury that the plaintiff could not recover for permanent injuries, it added, “ but I, submit the evidence as to his present condition to the jury for what it may be - worth,” does not raise a presumption that the jury, under the charge, gave damages for permanent injuries.</p>

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

<p>Appeal by defendant from affirmance by the City Court, General Term, of an order denying defendant’s motion to resettle case.</p>

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

90, directed by the court. The action was brought under the statute against wagers, bets or stakes or any gaming by lot or chance or upon any unknown or contingent event, and which permits the recovery of money paid or deposited upon wagers or bets thereby prohibited. 1 R. S. 663, §§ 15, 16.

<p>Broker’s' commissions — False representations — Evidence.</p> <p>Where a broker, suing for his commissions upon an exchange of property, is allowed to prove his opinion of the value of the property of the-defendant and also admission's of the defendant that there was no equity in his own property, the defendant, in support of his defense .</p> <p>that the broker falsely misrepresented the value of the property which was to be given him in exchange, should be allowed to show the value of his own property, as proof, that it was valuable, might afford an inference that, when the defendant parted with it, he relied upon the alleged representations made by the broker as to the value of the property which the defendant was to receive in exchange.</p>

50, besides costs. The action was by a surety upon a lease to recover from the lessee the amount of rent paid as surety. The defense was that the plaintiff became surety without any request of defendant or knowledge on the part of the latter. There was also a counterclaim.

<p>Real party in interest — Machine erected by an agent. .</p> <p>A person who agrees to erect for another a gas engine and who guarantees it and its'hotse power for the period of one year is, by virtue of his work, labor, services and guaranty, the real party in interest under the contract, and may bring an action to enforce it; and this, notwithstanding the fact, that he erected the éngine as agent for a foreign company, and that the contract contained a clause that .the engine was to remain the property of that company until it had been paid for in full and that it was not to be sold, mortgaged or removed without its en- ■ tire approval and consent.</p>

Appeal by defendant from an. affirmance by the General Term of the City Court of a judgment of the Trial Term, entered, upon the verdict of a jury in favor of plaintiffs for $.750. ■ The action was- brought to recover $1,793.73, the amount of a judgment in plaintiffs’ favor against the Phoenix Assurance Company of London, which was assigned to defendant, who was the attorney of the plaintiffs in procuring said judgment.

The policy was* dated August 24, 1896, and insured against “ total disability from bodily injury in the sum of $12 per week,” and against “ total disability (confinement to the bed) caused, by sickness in the sum of $6.40 per week.” The plaintiff claimed, for sickness from January 25th to February 21st, 1897.

<p>T. Lease — Monthly tenancy — Evidence.</p> <p>.Where a .person has -been a tenant of the same premises for eleven years, under various landlords, she may prove, as against her present landlord, upon the question- whether she is a tenant by' the year or 'by thé month, receipts given by former landlords and- conversations had with former agents tending to show that her, tenancy was by the month; and where the receipts of the present landlord are general in form, specified no term, and .the rent has month, it is a fair conclusion that a tenancy continued to be paid by the :y by the month still exists:</p> <p>Same —¡-Admissions.</p> <p>A statement made by the agent of the present landlord, at a timé when the tenant asked for á reduction of rent, to the effect that “ if she didn’t like it she could leave ” is evidence by the' year. that the-tenancy was. not one</p> <p>3. Same — Holding over May 1st. ■</p> <p>Where a continuous arrangement for a hiring by the month exists, the fact that the tenant holds over the 1st day of May does not bring the case within our statute, creating a presumption that there shall be a further tenancy for another year, as the statute operates only where no term has been fixed by agreement.</p>

<p>Appeal by defendant Louisa Weiffenbach from a judgment of the justice of the First District Court in favor of plaintiff. The action was originally brought against Sebastian Weiffenbach and Louisa, this appellant, but the complaint was dismissed as to him without objection, he being concededly the agent of Louisa Weiffenbach, his daughter, who was the owner of the property upon the sale of which commission is claimed.</p>

The action was for the recovery of personal property, namely, one walnut bar of the value of $160, alleged to be the property of plaintiff, and to be wrongfully detained by defendant. The answer was a denial, and an allegation of ownership in the defendant. Verdict and judgment for defendant. Plaintiff appeals.

District Court. The action was to recover $130.04 for certain boxes manufactured at defendant’s request and delivered. The defense was breach of contract, refusal to accept the boxes and an agreement by which defendant was to return the boxes and pay $25 for them. Judgment was rendered for the plaintiff for $25 besides costs. The plaintiff appeals.

<p>Aiteal by the plaintiff from a judgment of the justice of the First District Court in favor of defendant.</p>

<p>1. Lease — Failure of landlord to execute — Tenancy by the month.</p> <p>Where a tenant executes a lease of premises, to' run thirteen months and to be subsequently executed by the landlord who lives in a foreign state, and the landlord fails to' execute the lease until five months laten and after the tenant has abandoned the premises, no legal obligation is created by the lease as between the parties and the landlord is only, entitled to recover for the use of the premises from month to month.</p> <p>2. Same — Void parol agreement—Term. *</p> <p>Where a tenant enters under a void parol agreement to occupy for thirteen months and subsequently pays rent monthly, the tenancy created is one from month to month; and where the tenant enters .in August and abandons in January, he nay remove at the end of any month, and the New York statute, relative to the effect to be given tó the fact that a tenant holds over after the 'first day of May in any year, has no application.</p>

Appeal by defendant from a judgment of the justice of the Second District Court, in favor of the plaintiff for $232.18, in an action for stipulated damages under the contracts for supplying electric current for lights and motor to 57 East Houston street., defendant’s premises Ho.

<p>1. Carriers — Delivery upon a notice of the arrival of goods — Negligence.</p> <p>Where a carrier sends to consignees á notice of the arrival of goods, of the amount of the charges upon them, together with a requirement that the goods be removed in twenty-four hours, and there is a further statement in the notice that “ all orders for delivery of goods must give number of car and date- of-freight bill,” the carrier is not justified in delivering the goods to a stranger who in some manner has • become possessed of the notice and presents it to the carrier.</p> <p>53. Same — Course of dealing.</p> <p>The fact that on former occasions the carrier had delivered goods upon such notices to truckmen, usually employed by the consignees, does not establish a course of dealing which justifies the carrier in delivering goods of the consignees to any person, whether authorized or unauthorized to receive them, and who might present to the carrier a notice of arrival.</p> <p>3. Jurisdiction of Appellate Term — Order of District Court denying a motion for a new trial.</p> <p>The jurisdiction of the Appellate Term over appeals from District Courts in the city of New York is purely statutory; reviews are, by chapter 748 of the Laws of 1896, limited solely to cases where a new trial is granted; and the court has no power to hear an appeal from an order denying a motion for a new trial.</p>

<p>1. Sal'es — Change of possession.</p> <p>Where a vendor remains, after a sale, continuously about and in charge of his store and the apparent conditions of occupation are the same, the element of a change Of manual possession, a usual constituent of a bona fide sale, is absent.</p> <p>2. District Courts of Hew York — Jurisdiction — Waiver of amount in excess.</p> <p>A person suing sureties, in a District Court of the city of New York, upon a bond given by third party claimants in- an attachment proceeding, under Code, § 2912, may jwaive a recovery in excess of the jurisdiction of the court and recover up to that amount. '</p>

<p>'Appeal from judgment rendered by Judicial District Court in favor of the p’ the justice of the Tenth aintiff.</p>

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

<p>Contract — Time test of a gas governor.</p> <p>Semble, that a contract providing that a gas governor shall be paid for if it effects a certain saving, payment to be made “ after forty days* fair trial,” coupled with a further provision that the saving shall be “ demonstrated by an actual time test," indicates that no payment isi to . be made until a trial has been had, extending over forty days; and a time test, made twenty-two days after the machine was installed and showing a saving, assented to in writing by the purchaser, does not bind him to pay the purchase price where his- gas bills indicate no saving at the expiration of forty days.</p>

<p>Appeal from judgment rendered by the justice of the Second Judicial District Court upon the verdict of a jury in favor of the defendant.</p>

<p>Carriers — Erroneous delivery — The shipper must mark his goods.</p> <p>The shipper must mark his goods clearly, and a carrier is not responsible for á mistake in delivery vjhich occurs from the failure of -the shipper to mark one of three similar boxes, shipped under a special - contract, in such a manner that the carrier could distinguish that box from the others.</p>

Appeal by the defendant from a judgment for the plaintiff rendered in the District Court in the city of Hew York for the thirteenth judicial district, in an action! tried by the justice without a jury. Action to recover damages arising from the partial destruction of the plaintiff’s bicycle by the defendant’s horse which was attached to a wagon and left unhitched and unattended in the street. ,

<p>Verdict—'Grounds for setting it aside.</p> <p>A verdict should not be set aside except where the court can fairly say that the jury were led away from a proper consideration of the evidence by bias, prejudice, or passio: some of the proof the weight which it in, or that they failed to' give obviously deserved.</p>

<p>Appeal by defendants from o der made by Third District Court.</p>

<p>Motion by defendant for reargument of appeal from District Court, judgment.</p>

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

<p>1. Deceit — Elements.</p> <p>An action for deceit is not maintainable unless the elements of representation, falsity, scienter, deception and injury are present.</p> <p>2. Same — Representations must be made — Insolvency of vendee.</p> <p>Where vendors sell goods to a third person solely Upon the faith of a guaranty signed in a name which represents a firm and also a corporation, both of which are insolvent at the time, and the vendors make no investigations about, and receive no communications as to, ■ the solvency of either, they cannot, upon the failure of the vendee to pay, hold a person who had a controlling interest both in the firm and in the corporation, for deceit, merely because, although he never made any representations whatever to the vendors, he failed, at the time when he executed the guaranty, to disclose to them his own insolvency and that of his firm.</p>

<p>1. Accord and satisfaction.</p> <p>Where an owner of real estate sends to a contractor a statement of Ms account with a check and a letter stating: .“ Enclosed I send you a final -statement and check for balance due you. ICindly send receipt in full,” the acceptance of the money by the contractor is an accord and satisfaction of the accqunt as. stated; but the contractor is not thereby precluded from recovering for extra work, of which the owner subsequently asks and receives from the contractor a statement showing the items. .</p> <p>&. Contract — Waiver.</p> <p>. A provision, relative to the performance of extra work, contained in a building contract and inserted therein for the benefit of the owner, may be waived by him.</p>

<p>'Appeal by defendant from judgment of the Sixth District Court.</p>

<p>Sales — Caveat emptor — Value of the use of a bicycle.</p> <p>Where a person takes a bicycle under an agreement, which may be regarded either as a lease or as a conditional sale, but by the terms of which he is bound to keep the machine in repair, and no warranty is given nor any representations made, at the time of delivery as to- its condition, and there is no proof of fraud, the doctrine of caveat emptor applies-and the owners of the machine are entitled to" recover the agreed value of its use, either as for unpaid rent or as for unpaid purchase money. '</p>

<p>1. Interest — Payment of principal bars interest.</p> <p>Interest, not payable by the terms of a contract, is recoverable only . as a damage -for the detention of the principal;, and ordinarily, in the case of such a contract, payment of the principal'bars an action for ' the interest. " ; '</p> <p>■2. Same—Exception -— Payment “ on account.”</p> <p>-. Where, however, the drawee makes a payment “on account’-’ upon a draft, payable without interest and only upon the completion of a building, and the draft is not then surrendered by. the holder, but is retained by her as an evidence- of debt, the court .will infer that it was the intention of the parties that interest should be payable, and the holder may recover-interest from the date when-the drawee was first' notified that the building was completed, by a letter in- which the ■ secretary of the drawee acknowledged the receipt of a claim made upon it by the holder for the payment of the draft.</p>

<p>1. Sales — Rescission — Failure of title of vendor.</p> <p>Where the title-of the vendor of personal property fails, the vendee may rescind and recover his advances, or he may abandon the property". . to the true owner, taking upon himself the onus of proving title in such owner. .</p> <p>■ ¡2. Same — False representations.</p> <p>Where the vendor of personal property has been guilty .of fraudulent representations, the doctrine of caveat emptor does not apply.</p> <p>3. Bills and notes—Recoupment by maker available to indorsers jointly sued.</p> <p>Where an action is brought upon a promissory note against both its maker and its indorsers, a successful recoupment by the maker enures to the benefit of the indorsers. . '</p>

<p>1. Life insurance — Breach. — Negligence of insured in not reading . policy.</p> <p>Where a life insurance policy provides that the company assumes no . obligation unless at the date of the issue of the policy- the insured is alive and in sound health, and he, in an answer to a written application' for the policy, which was thereby made a warranty, falsely states that he is in sound health and has never been sick or under treatment in any dispensary, hospital or asylum, the policy is void; and the fact that the insured had trouble with his eyes and could not see well and . that he did not know what answers had been inserted in the application is not material where the policy provides that the 'persons who •< prepare the application are to be regarded as the agents of the insured; that the insurer is not to be responsible for the preparation of the - application, or anything contained therein or omitted therefrom, and . where it appears that. the insured was not illiterate and that there was np fraud or mistake committed by the agents of, the company.</p> <p>53.- Same — Belief in truth of a warranty immaterial.</p> <p>- Where a warranty is made part of a contract, it is not material that - the party making the warranty believes in its entire truth, for, "if the warranty is false in fact, the contract is void.</p>

<p>Motion for resettlement of order.</p>

<p>Summary proceedings — Reversal of final order and restitution.</p> <p>Where a final order, in summary proceedings, awarding the pos» session of the premises to the landlord, is reversed upon appeal for a jurisdictional defect, in that the petition was hot founded upon the proper statutory notice, the order for reversal should provide for the restitution of the tenant, to the end-that the parties may he placed In statu quo.</p>

Action against defendants, as receivers of the Murray Hill Bank, to recover the amount of a deposit made with said bank, by one of ifs customers, the day before it suspended -business by 'order of the state banking department.

<p>Action to test the constitutionality of certain portions of the act creating the city of Watervliet. (Chap. 905,-Laws 1896.)</p>

Application to vacate an order of examination granted under - chapter 383, Laws 1897, an act designed to prevent monopolies in articles or commodities of common use.

<p>1, Execution — When a levy does not become dormant.</p> <p>A levy on execution duly made by a sheriff cannot become dormant, to the injury of the judgment creditor, unless the latter, or his attorney, has instructed the sheriff not to proceed with the collection of the execution; and a remark made by the plaintiff’s attorney, after the sheriff has informed him that a levy had been made and that the debtor would probably “ fix it up all right,” to the effect that it was “ all right, and that he did not want the matter pressed too hard, if the levy was secure,” cannot be construed as an instruction to the sheriff not to proceed.</p> <p>S3. Same — Eights of sheriff as against receiver.</p> <p>The fact that a sheriff, after levy upon the property of a corporation, allows a receiver of the corporation, subsequently appointed, to take and hold possession of the property, does not affect the lien of executions already levied and these should be paid from the fund in the order of their priority.</p> <p>3. Same — Levy on personal property — When lien attaches.</p> <p>A levy upon personal property is not absolutely necessary as, under the provisions of-the Code of Civil Procedure (§§ 1405, 1406), personal property is bound from the time when the execution is delivered to the sheriff.</p>

<p>• Action in equity to compel the sale of personal property and a division of the proceeds.</p>

<p>1. Accident insurance — Total disability.</p> <p>Where a policy o£ accident insurance provides that an injury upon which a'recovery may be had must be one which shall immediately and “ wholly ” disable the insured from transacting any and every kind of business pertaining to his occupation, and the insurer has, .by a printed manual, defined “ total disability ” as existing when a member is deprived, by accidental injury, of the power to perform substantially all the duties of the occupation under which he is insured, proof that, after the accident, the insured could not walk without crutches for eight or ten. months, could not engage in manual labor for more than, a year, and-could not for a year perform other customary labor, is sufficient to show that he was wholly disabled, notwithstanding the fact that, after a period of about two months, he attended daily at his store and that he kept certain books that were brought to him for that purpose during all the time that he was confined to his house.</p> <p>28. Same — Employment as a profession — Bicycle riding for pleasure.</p> <p>Stipulations as to accident insurance which provide that, in case the insured should be injured while engaged temporarily or otherwise in any occupation or exposure classified as more hazardous than that specified in the certificate, the indemnity shall be at the rate only of the more hazardous occupation, and which also provide that members of the higher classification accidentally injured while engaged in polo, base-ball games or “ bicycling ” shall receive only the indemnity provided for such games, does not prevent a recovery by a person who is injured, while riding a bicycle for pleasure, from recovering the full rate of indemnity provided for by the contract, as the provisions • of the policy must be taken to refer only to a person who is a professional bicyclist.</p> <p>3. Same — Void agreement for arbitration.</p> <p>A stipulation that, in the event of a disagreement between the insurer and the insured as to the liability of the insurer for an accident, such liability and its amount shall be determined by arbitration and that no suit shall be brought except to enforce the award, unless the insurer, after being requested in writing to do so, refuses to arbitrate, is not enforcible, as it constitutes an attempt to oust the court of jurisdiction "of the whole subject-matter.</p> <p>4. Same — Waiver of agreement to arbitrate.</p> <p>Where it appears, from the pleadings in an action, that the insured denies any liability, the denial amounts to a waiver of a condition of the policy which requires the insured to submit his claim to arbitratibn.</p>

This is á proceeding instituted by Alice B. Smith (formerly Alice B. Campbell) to compel an accounting’ by the executors of the last will and testament of Mary A. H. Campbell, deceased.

Action to recover treble damages under chapter 755 of the Laws of 1894. A jury trial was waived by the parties and the case submitted upon the following agreed state of facts: Cornelius T. Archer, Daniel Buckley and Thomas Clark, all reside in the town of Porter, county of Niagara, and state of New York.

<p>Motion for a peremptory writ of mandamus, to issue to John Boyd Thacher, as mayor of the city of Albany, and James Rooney, as chamberlain of the city of Albany, commanding the said John Boyd Thacher, as mayor, to audit, and the said James Rooney, as chamberlain, to pay the claim of the petitioner for services as a bridge tender at the Lawrence street bridge in the city of Albany, ET. T.</p> <p>The Lawrence street bridge, over Erie canal, in the city of Albany, was constructed pursuant to chapter 88 of the Laws of 1879, which provided for the erection of the bridge, and that the same should be operated subject to the control of the state superintendent of public works and at the expense of the city of Albany.</p> <p>In April, 1897, the state superintendent appointed the petitioner as a bridge tender at the Lawrence street bridge in the city of Albany for the season of 1897, at a salary of $2.25 per day. He served during April and May, and then presented a voucher in the same manner as the vouchers had been prepared and presented since the erection of the bridge, to the mayor for audit, and the mayor refused to audit the same, on the ground that the petitioner had not passed a civil service examination, and that the city had the right to- fix the compensation for such services.. - - -</p>

<p>Demurrer to indictment.</p>

<p>libel — Charge of elopement — Hew trial for adulterous intercourse discovered. x ,</p> <p>Where the trial of an action of libel, in charging a married woman with elopement has, because of the public retraction of the charge by the’ defendants, the proprietors of a newspaper, taken the form of .an assessment of damages merely and the trial court> ini its .charge, has commented upon the chastity and high character of the plaintiff, it is to be assumed that these considerations influenced the amount of the verdict; and the defendants should be. granted a new trial,, upon the ground of newly-discovered evidence, where their’ affidavits tend to show, by witnesses found after the trial, that, although the charge of elopement was falsei the plaintiff had, at the very time in question, been carrying on an adulterous intercourse with the very person with whom it was charged in the libel that she had eloped.</p>

<p>Eminent domain — Elm street widening, New York city.</p> <p>A consideration .of the various ¿statutory provisions applicable to the exercise of the power of eminent domain by the city of New York, from chapter 86 of the Laws of 1813 to and including the Consolidation Act and chapter. 660 of the Laws of 1893, taken in con-' neetion with chapter 641 of the Laws of 1897, relative to the Elm street widening, leads to the conclusion that this legislation, as a whole, provides a sure method of compensation to the owner of the property, taken in that improvement and widening from the momem. when the title vests in the city, and that any election to recede, reserved to the city in the matter, must be exercised by it before its title vests, and consequently the legislation in question is not amendable to the objections that it is unconstitutional in that it takes property “ without due process of law ” and private property “ for public use without compensation,” and that the appointment of the commissioners of estimate and appraisal is unconstitutional.</p>

<p>Beal party in interest — Lease executed by an agent — When an answer is not sham.</p> <p>The general rule is that an action must be brought in the name of the real party in interest, and where a lease is made “ between John L. Melcher, of New York city, as attorney and agent of the owners of the premises hereinafter described, party of the first part, lessor,” and the lessee and is executed by the party of the first part in the form “ John L. Melcher, Agt. and Atty.,” it is not to be presumed that he is the real party in interest, and hence an answer which denies the allegations of leasing, and which alleges affirmatively that the plaintiff is not the real party in interest but merely an attorney or agent for the real parties, L. S. Melcher and Mary Paget, cannot be stricken out either as frivolous or as sham.</p>

<p>Motion for an injunction.</p>

<p>1. Attachment — Affidavit — Supplemented by verification of complaint.</p> <p>■Where an affidavit, made "to procure an attachment in favor of a ■ corporation, describes the affiant as its vice-president, and he therein states that he derives his knowledge and information in the matter from the possession of a written instrument upon which the action is brought, from an examination of the books of the corporation and from' conversations with its employees, the affidavit will be' deemed sufficient, although it contains no direct statement that the affiant is vice-president, where the defect -is remedied by the verification attached to the complaint in the action, used upon -the application for the attachment.</p> <p>S. Amendment — Error in venue of an affidavit. .</p> <p>The court has power to amend the verification of a complaint, verified in the city and county of New York, by supplying, after the granting of an attachment, the words “ City and County.”</p>

<p>1. Executory sale. — "Warranty survives acceptance. ;</p> <p>Where there is a warranty", in an executory contract for the sale of goods, the vendee may retain the goods and also rely upon the. terms of the- warranty.</p> <p>2. Attachment — Affidavit — Supplemented by allegations of the complaint.</p> <p>The requirements of section 636 of the Code of Civil Procedure that,- in order to procure an attachment, the plaintiff must show by affidavit that he is entitled to recover the sum stated therein, over and above all "counterclaims known to him, may be regarded as satisfied in a case where, although there is no such specific statement, accompanied by facts from which a conclusion - could' be reached, the complaint of the vendee, who rejected the goods but subsequently sold part of them for account of the vendor, contains a detailed statement of the amount of the payments made by him, the amount realized upon the sale which the vendee made, and then states that this computation left a “ difference of $379.55; ” but thd court, in the interest of justice, will cause the attachment to be amended and modified so as to reduce the sum for which it issued to $379.55. " .</p>

amend answer after judgment absolute in favor of plaintiff, directed by the Appellate Division. Action for specific performance.

<p>Where a final judgment vacates a temporary injunction, the plaintiff cannot procure a stay, pending its appeal.</p> <p>•Where a final judgment, rendered in an 'action brought to restrain a trustee from foreclosing, a mortgage, vacates a. preliminary in- • junction and- denies the plaintiff any right to an injunction, the plaintiff cannot, pending" its appeal from the judgment, procure a . v stay “ of all proceedings so as- to prevent the foreclosure of the mortgage,” as the dismissal of the complaint is res adjudicata and the preliminary injunction, provisional in its character,, is- dissolved by and merged in the final judgment and cannot be revived in any manner whatever. -</p>

<p>Attorney’s services—When a claim is referable as involving a long account.</p> <p>An attorney, employed under a single retainer, and who has brought an action for services as upon - á quantum meruit, cannot obtain a, compulsory reference of his action by splitting his charges into numerous items; but where it appears that the services have extended "over a period of five- years, that they involve at least seven separate, special proceedings as well as an action, and include charges for the. drawing and preparing of contracts, and that the. items are quite numerous, a case is presented where a compulsory reference may properly be ordered, upon the ground that the trial of the issue will require the examination of a long account.</p>

<p>Motion to vacate an order of arrest in an action for libel.</p>

<p>Application for an extra,"allowance,.in an action upon a-clai against a decedent’s‘estate, payment of which was unreasonabl resisted by the executor thereof. ' 1</p>

<p>1. Conditional sale — Default of vendee — Damages for detention.</p> <p>The owner of a sewing machine sold with a condition precedent of payment, is not entitled-to maintain an action of replevin, where she is in default as to payments required; nor can she recover damages for the unlawful detention of the machine, where she .has not proved any damages, but merely the value of the machine.</p> <p>8. Agency — Disclosed principal should be sued.</p> <p>An action cannot be maintained against an agent where he discloses his principal and where all dealings between the parties are conducted with knowledge that the agent is acting solely for the principal.</p>

<p>Exceptions to report of referee construing a trust deed and will.</p>

<p>Action for breach of a covenant against incumbrances.</p>

<p>Action of ejectment.</p>

<p>Agtion against insurance agents for disobedience of orders to camcel a policy.</p>

<p>Action to restrain trespassers.</p>

<p>Motion' for final accounting.</p>

<p>Action to recover the value of certain machinery.</p>

<p>Action to recover the amount of certain deposits claimed to have been made with the defendant.</p>

In supplementary proceedings upon a judgment in favor of Edward Van Hess,' against A. Edward Woodruff, the examination of the debtor disclosed that he had ample assets to pay the judgment, and had at the time of his examination in cash the sum of $1,000. Thereupon, in February, 1897, upon application to Mr. Justice Beekman, at Special Term, an order was made requiring him to pay the sum of $700i to satisfy the judgment and the supplemental costs.

This is an action brought by the executor of the last will and testament of JoLq. Augustus Pell, deceased, to determine whether the distribution of his personal property is to be governed by the law of Prance, or of Hew York, and whether the italicized portion of the following paragraph of his will is valid: “ Fourth.

Motion to punish for contempt a purchaser of real estate at foreclosure sale, who refused to complete her purchase after service of order, requiring her to do so.

<p>Motions to punish defendant for contempt and for an injunction restraining the use of the-ñame “ Baroness Blanc.”</p>

. Taxpayer’s Action under section 1925,. Code of Civil Procedure, to restrain the county treasurer of Steuben county from paying to the towns named herein certain sums of money to reimburse said towns for moneys advanced for the construction and repair of bridge's.

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

Action to recover-'for personal'injuries sustained, by the plaintiff, an employee, through the negligence of the defendant, his employer.. _

<p>Appeal by defendants from affirmance by the City Court, General Term, of a final judgment directed at Special Term on an issue of law.</p>

<p>Appeal from" an affirmance by the General Term of the City Court of New York, of a judgment for the plaintiffs, which was rendered at Trial Term, in their favor.</p> <p>Action to recover the agreed purchase price upon a sale of merchandise to the defendants as copartners.</p>

Ahpeal from an affirmance by the General Term of the City Court of Rew York, of a judgment for the defendant, entered upon the dismissal of the complaint át a Trial Term of the same court. Action by a passenger upon the defendant’s railroad for personal injuries alleged to have been sustained by a fall off the front platform of the car, caused by a sudden jerk in bringing the train to a standstill.

<p>Carriers — Jurisdiction under Code, section 1780 — Both parties nonresidents — Conversion by a demand of excessive express charges. .</p> <p>Proof that the agent of the plaintiff, a nonresident, shipped plants from Lenox, Mass., to Orange, N.' J., by Adams Express Company as the initial carrier, and by the defendant, a foreign corporation, as a connecting carrier from the city of New York;, that when the defendant tendered the plants to the plaintiff at Orange, N. J., it -demanded excessive charge for its service, which he refused to pay, taken in- connection with absence of any proof as to whether the waybill, containing the excessive charges, was made out in this state, affords no right of action as for a conversion to the plaintiff under . any of the provisions of section 1780 of the Code, of Civil Procedure, as it cannot be said that the contract of carriage, so far as it concerned the defendant, was made within this state, nor that the • property alleged to have been converted .was situated within this state at .the time the contract was made, nor that the cause of . action arose within this state.</p>

<p>Bills and notes — Indorser to secure forbearance — Consideration — Parol proof of forbearance.</p> <p>■ Where a complaint alleges that a promissory note was taken in payment of a pre-existing debt of the maker, and was indorsed in order to induce the holder to' extend the credit of the maker, the ■indorser cannot predicate a defense upon, the fact that, as the note was payable on demand,1 there was no forbearance of the pre-existing debt and consequently no consideration, as the court will presume that the holder intended to forbear for a reasonable time; and he would also be entitled to show by parol that he agreed to forbear for a definite period.</p>

Appeal by plaintiff from an affirmance by the General Term of the City Court of a judgment of the trial court in favor of defendants, entered upon the dismissal of the complaint in an action tried by the court and a jury.

<p>Partnership — Declarations of partners in their own interest not competent on the issue • of partnership.</p> <p>Where the main issue in an action, brought to recover for certain advertising alleged to have been done for a firm, is whether the de-. pendants, who were brothers, were partners^ and certain acts and admissions of the brother defending the action have been proved, he is not entitled to corroborate his denial of the partnership by offering witnesses to show that they were familiar with the business, had dealt with him and with his brother and had no knowledge of the existence of the alleged partnership; nor can he prove his own or his brother’s declarations to a commercial agency and to other parties as to the partnership; nor can he show, by an accountant who had examined the books of the brother defending, that he was carrying on an independent wholesale business; nor can the attorney of the brother, not defending, testify as to whether that brother was a partner; all the testimony in question coming within the rule that the declarations of partners, made in their own interest, are not admissible to character- • ize their partnership.</p>

Appeal by defendants from an affirmance by the General Term of the City Court of a judgment in plaintiff’s favor, entered upon tiie decision of a judge without a jury, in an action to foreclose a mechanic’s lien upon premises 503 to 507 West Fiftieth street.

Appeal by the defendant from a judgment of the justice of the Eirst District Court, in favor of plaintiff, for $60 damages and costs, for labor in constructing two magneto bells or generators.

<p>Beal estate broker — Eight to commissions.</p> <p>A real estate broker is not entitled to commissions unless he is the procuring cause of the sale, and where it appears that his agency was terminated before the purchaser was introduced to the owner by another broker, the original broker cannot recover.</p>

Appeal by defendant from a judgment of the justice of the Fourth District Court, in favor of plaintiff, for $250, besides costs, in an action to recover under a contract for making 4,600 lanyards. The defense was 'denial óf performance, with counterclaims. fon. breach of contract and for goods sold. ■

Appeal by the plaintiff from, an order of the justice of the Fifth District Court, vacating a judgment which had been entered by default in plaintiff’s favor, and awarding judgment against her, and in favor of defendant,. Franz Baier, for $30 fees of the referee before whom the witnesses were examined, and their deposition taken for use upon the defendants’ motion to vacate; the judgment.

<p>Appeal from final order in summary proceedings made by the justice of the First Judicial District Court, in favor of the petitioners after verdict of a jury.</p>

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

Appeal by defendant from judgment of the justice of the Second Judicial District Court, in favor of the plaintiff, for rent of certain premises known as loft “ B,” in Ros. 46 and 48 Broad street, Rew York, for the months of March and April, 1897, at $480 per annum, payable monthly in advance.

<p>Summary proceedings — Tenant excusing his default — Code, section 8064.</p> <p>Where a tenant fails to appear upon the return day of a precept issued In summary proceedings, offers no excuse beyond- a statement that the* clerk of his attorney reached the court half an hour late, furnishes to the appellate court no copy of. Ms alleged proposed answer and merely states in an affidavit, designed to open the. default, that he is not indebted to the landlord, it does not appear within the meaning of section 3064 of the Code of Civil Procedure “ that manifest injustice has been done, and (that the defendant) renders a satisfactory excuse for his default,” and hence he is without remedy.</p>

<p>L,¡Referee — Bight;-to feeoyer fees—.When failure to .deliver -report,-isV ,. immaterial. ......... yl</p> <p>A referee appointed in an-action,may ,recover compensation-for his.r . services without proving an express promise to pay, and; the -factr or that’top did - not, deliver or; file .his report within-sixty .¡days, fitom,-the, ¡time, when the- cause was finally submitted to him, is not material; where there, is no proof or ..suggestion,that,either party had, because, b, of such failure of the referee to- file, or deliver'his report, elected to - ./-terminate the. reference.. . -, /,</p> <p>2.' District Courts', bf New York city^Extra'-costs — When: a,-“trial’?) has been had. b</p> <p>- Where the defendant appears by an attorney in an action-'brought in a District Court of the city of New York,-and the 'attorney- cross! examines the plaintiff with a view to defeat his recovery, a “trial” has been had- and the justice has power -in his discretion to allow: : '-'the plaintiff $5 extra -'costs under the amendment made by' chapter 750 of the- Laws of 1894, to the Consolidation- Act (chap. 410, Laws of-b 1882).</p>

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

<p>l-if iFire insurance M-Insnrer "entitled ¡tofán,árMtrHtipn-^iDefensé.-i'Jf</p> <p>tioi'.’-A Gondiíiohueo'ntMñedOiii a policy-of-fire insúrance;iproyiding'forr,a'ii). '?qr.¿bbitratipn'¡;ánd;rthe; :determinatipm",of Rthie 'lo'ss f-byrappraisers-; -chosenuRÍÍorfcSadti side, T-ywftiL :péwer in tiiem":to select *an. -tm’pirer-in¡theMyent; jroioffiabdaspüte,. .iis::valifl,<;ánd. -ifi? at.-."be itt<fe(glr^ocg^Us*;.,yB"Sb,b$rd3|9r o i-insured,í it may 'be-inyoked -asba, defense- by-; thá'icompany^.whetihér, * i-: nr: not its jóbservaiíce.i'sf .a--condition, precedent.-¡tp: ;theí ;c6iusértof -áction .í1;-of'dthei9nsure'díi In -.>?-T:??f- E ?.<;■:■■■•; .ti íb-7 r-E ¡yí/'o-'-i ?..!>r-y «trf.t</p> <p>Sy 'Sámé —;&vbÍááncé'Yf -atí-arbitratióñ' by'tiré:insüred¡ ■' No =-s</p> <p>'Whébe-tbe- insurer ' is- not" in default,! it is" eút-ittéd'' tb!i’ea'sónablfe : 11 -efforts upon 'the -part" -of' the mSuredr'l‘obliing "to- the ’ áccbmpüihm’eSí of the appraisement,- :¿hd where it appeái’s'that the' ápprálséf' of -tbe ' instirer inadéi but á slight " attempt to- meet the " appraiser bf-the ,.i f .. ..... I. .- . - . J ,.,.r.v ^.1. insured, the failure apaounts to-a'defense to the"insurer.- ■■■ •</p> <p>3. Same — Insurer may insist on arbitration, although it pleads fraud.</p> <p>The fact that the answer of the insurer denies liability under the policy because of the fraud of the insured, does not amount" to a • waiver by the insurer of the right secured to it by the policy to have an appraisal or arbitration of the loss.</p> <p>4. Same — Eight to have the fact of a "total loss established by arbitration. ' ~</p> <p>Although as a general rule an appraisal is not necessary where it is conceded that the insured goods have been totally destroyed, yet where the words of a policy cover, a case where there is a dispute as to whether or not the loss was total, the insurer is entitled to have that question determined by arbitration.</p>

<p>. Appear by plaintiff from judgment of the .Fifth Judicial District ..Qourt.</p>

This is an action to have certain portions of the will of one Dioclesian Alvord construed and to have it thereby determined, first, whether a certain piece of real estate known as the “ Townsend property ” conveyed to' plaintiff as trustee for the defendant Elizabeth K. Sherwood, is properly held by him as such trustee, or whether said Sherwood is so the legal and equitable owner of said'premises that the same should be conveyed by him to her, and, secondly, whether…

Motioh by defendants to quash and dismiss writ of certiorari upon the return thereof upon the ground that the petition upon which it was based and issued did not contain allegations sufficient to give the court jurisdiction.

Oebtiobabi to review assessment. - The assessors of the town of Highlands, in Orange county, prepared and filed their roll for 1897, on which they assessed every soldier, wife and widow of soldier, owning property within their town on the same ratio as other persons. ■ ' On grievance day the relator .filed the statements required by chapter 347, Laws of 1897, of those who claimed exemption, and each one of them gave testimony showing that their homes were, bought, some with…

This is a review under the Election Law of the decision of the-board of police commissioners in the city of Yew York, that the-independent certificates nominating Seth Low for mayor, and other-candidates, is valid.

<p>Taxpayer’s action — Fraudulent city contract — Betrayal of official trust.</p> <p>■Where the complaint in an action, brought by taxpayers of a city to set asidd a contract made. between the city arid a water company, alleges that the city board of water commissioners, of which . the mayor was a member, has entered into a contract with a water company, of which the mayor is the principal owner, to supply the.city with water, although the city has a water plant of its own; that it is ■ designed by the new -contract to rival and injure the plant of the city; that the mayor and the water commissioners have designedly impaired the existing supply of water arising from the city plant; that the contract was made without the consent of the common council, necessary thereto; that the city is required to pay $80,000 a year to the company; that the charter forbids any city official from being interested, directly or indirectly, in a city contract,' and ' where a denial of the mayor -is confined to an affidavit in which he merely states that he “ ceased to have any interest in said cofnpany ” six months .before he entered upon- his present term as mayor, but fails to allege that he has sold his stock in the company, a case of a betrayal of the public interests is presented which justifies the court in making permanent a temporary injunction granted in the first instance. -</p>

Tras was an application for a writ of mandamus to compel the board of elections of the city of Brooklyn to receive the certificate of nomination of coroners for the borough of Brooklyn.

<p>Motion to vacate an order requiring the plaintiff to file security for costs in proceedings supplementary to execution.</p>

<p>Writ of certiorari to review the refusal of the treasurer of the county of Monroe to issue a liquor tax certificate.</p>

<p>1. 'Separation —Verbal outrage by words of husband.-</p> <p>Judgment, in an action of separation, may be granted in favor of a wife upon the ground of “ cruel and inhuman treatment,” where the husband has been guilty of continuous verbal outrage, consisting, among other things, in denouncing her as a “ cur,” a “ worm ” and a “ devil,” whom he -consigned to “ hell,” and where it also appears that he maliciously impugned her conjugal fidelity.</p> <p>2. Same,— Counterclaim — Abandonment caused by cruelty of husband.</p> <p>The fact that a wife has abandoned her husband is not a counterclaim available to him, where it appears that her abandonment was caused by his misconduct. -</p>

<p>1, Referee — Power to compel a general1 assignee to file an account.</p> <p>Where an interlocutory judgment appoints a referee to take and state the account of an assignee for the benefit of creditors, the assignment having been set aside and the purpose being to ascertain the amount of the estate in his hands, the referee possessing, in effect,- the general powers of a master in chancery, has power, by virtue of his office, and although ■ the interlocutory judgment fails to direct the account to be filed, to order the assignee to file an account, showing its items;.and he may preclude proof of any other items not stated, unless a reasonable excuse is made for their omission.</p> <p>8. Contempt.</p> <p>• If the referee has not power to punish the assignee for contempt in disobeying his order, the court has concurrent jurisdiction and may inflict the proper punishment.</p>

<p>Proceeding to revoke and cancel a liquor tax certificate issued by the treasurer of Lewis county.</p>

<p>1. Trustee and. beneficiary — Burden of proof.</p> <p>In a transaction between a trustee and a cestui que trust, the former must show that the transaction was fair, and that the cestui que trust entered into it intelligently.</p> <p>2. Same — When the beneficiary may rescind.</p> <p>Proof that, upon a settlement made under an agreement between a trustee, a life tenant,' eighty years of age, and rambling in his mental operations, and a remainderman, by the terms of which the trustee was' authorized to hold a fund, realized from the sale of the premises, and pay the income to the life tenant, the trustee, a man in need of ready money; paid to the life tenant, with assurances as to its value, a bond and mortgage given to the trustee upon other property which he had formerly owned, coupled with proof that the mortgagor was insolvent, and that the mortgage was an insufficient security, entitles the life tenant to have the transaction rescinded; and this, although he, after finding out that the property was. an insufficient security, and after notifying the. trustee that he would hold him for any deficiency, foreclosed the mortgage, purchased at the sale at a' price less than one-half of the face value of the mortgage and re-i covered a judgment against the mortgagor for the deficiency.</p> <p>3. Rescission — Tender — Restoration by the judgment.</p> <p>In an'action for rescission an offer to restore is not absolutely necessary and the judgment may provide for restoration.</p>

<p>Trespass on street — Wrongdoers cannot raise the question whether the street has ever been accepted by the public)</p> <p>Where a corporation brings an action to restrain the defendants from excavating for building stone in an alleged street, running in front of the premises of the corporation and absolutely necessary for access, and shows an undoubted right of way over the same, irrespective of the fact whether the way has ever been accepted as a street by the public,- the defendants showing no right or title in themselves cannot raise the question whether the locus in quo is a public- or private way; and, failing to show any right in themselves to excavate, will be required to restore the way to its former condition;</p>

<p>Appeals from determinations of the secretary of state, relative to filing certificates of nominations of independent candidates.</p>

<p>This is an application to compel the' board, of election. of the city of Brooklyn to receive and file a certificate signed by 500 electors nominating for the office of alderman. The Election Law (§ 57), prescribing for independent nominations by certificate, omits boroughs and aldermanic and council districts in Greater Mew York.</p>

<p>Motion to strike cause from the calendar.</p>

<p>Practice — Amended complaint requires new note of issue and notice of trial.</p> <p>Ah amendment to a complaint, brought to recover damages alleged to have resulted from personal injuries, consisting in an increase' of the amount- of damages from $5,000 to $10,000, is material, and requires the filing of a new note of issue, and the service of a new notice of trial; and, where these acts have not been done, the case should not be permitted to remain upon the calendar, except by consent or as a condition of granting some favor or concession to the other side, e. g\, that the plaintiff withdraw his amended complaint and go to trial on the original pleadings, in which event the motion to strike the cáse from the calendar should be denied; ■</p>

<p>Motion to strike cause from calendar.</p>

<p>Motion to strike cause from the calendar.</p>

<p>Partnership — Cause of action separable from firm accounts.</p> <p>A provision, in partnership articles, that the plaintiff might withdraw from the partnership upon five months’ written notice and should then receive a return “ from the partnership ” of the capital contributed, does not, notwithstanding the withdrawal of another of the partners with the consent of the defendant, relieve him from the promise, and,. as a cause of action separable from the partnership accounts, the plaintiff is entitled to enforce the covenant to the extent of the sum which he contributed ■ to the firm.</p>

This is an appeal from a judgment rendered by a justice of the peace of the town of Eorestport, for the possession of a cow, for $6.50 damages for. the detention thereof and $10.25 costs. The action was in replevin.

40 costs against defendant. On the 10th day of October, 1896, plaintiff purchased a house known as the “ Pierce House ” from defendant, the house to be removed from the premises. The agreed price of the house was $25, and plaintiff paid defendant on account $12 and took her receipt therefor.

This is an appeal from, a judgment rendered by the justice of the peace of the town of Boonville, hi. Y., upon the verdict of a jury for $25.25 damages and costs. ;

Appeal by the plaintiff from an affirmance by the General Term of the City Court of a judgment in favor of defendants, entered upon the verdict of a jury.

Appeal by defendant from an affirmance by the General Term of the City Court of a judgment of its Trial Term in favor of plaintiff, entered upon the .verdict of. a jury directed by the court. Action upon coupons of the defendant corporation in the following form: i $35.. December 1, 1895. $35. The Central Park, Eorth & East River Railroad Co. will pay thirty-five dollars to bearer at the city of Eew York for six months interest, on bond Eo. 994. L. T.Griffiths, Treasurer.'

' Appeal by defendant Sam Kellar from affirmance by the General Term of the City Court of an order denying the said defendant’s-motion to vacate an order of arrest issued against him, in an action to recover the sum of $666.68 for the conversion of moneys intrusted to the defendant by John W. Treat, of Hannibal, Missouri,, to use as margins for the purchase and sale of stocks or grain.. The plaintiff sues as assignee of the said John W. Treat.

Appeal by defendant from an affirmance by the City Court, •General Term, of a judgment in favor of plaintiffs, entered upon the verdict of a jury in an action for goods sold and delivered.

Appeal by the defendant from an affirmance by the General Term of the City Court of a judgment for $431.14, entered upon a verdict of a jury in favor of the plaintiff.

<p>1. Uegligence — Failure of coservant to perform, a detail of the work.</p> <p>Where the master furnishes his employee a suitable appliance for loading a vessel, consisting of a deck skid or bridge, in'temporary use, in good order, and having ring-holes on' either side through which lanyards to hold it might be fastened, and where he also provides plenty of rope suitable for that purpose, he" is not liable to a stevedore ■injured, while necessarily passing from the dock to the vessel, by the slipping of the skid which had not been properly secured with ropes by the gangwayman, a coemployee present at the time of the accident and whose duty it was1 to secure the skid; as the fastening of such a skid is a mere detail of the Work, is performable by the employees, and the failure of a coemployee to do his duty in this respect is a . risk which the employee assumes when he accepts the employment.</p> <p>2. Appellate Term — May review a denial of a nonsuit.</p> <p>The appellate powers of the Appellate Term, in respect to appeals from the General Term of the Oity Court, are similar to those .of the-Court of Appeals, upon appeals to it; and while the Appellate Term" ■■ cannot .reverse a judgment as against the weight of evidence, it may review an exception, taken to a denial of a nonsuit, with .a view, of ascertaining whether there is sufficient evidence to support the verdict, and this because such an exception presents a question of law.</p>

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

Appeal by James J. Fitzgerald, claimant of fund, from affirmance by the General Term of the City Court of an order made at Special Term conffiming, report of referee and directing distribution.

<p>Appeal by plaintiff from order of tbe General Term of the City Court, affirming order made at' Special Term.</p>

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

Malicious prosecution — Charge of larceny — Want of probable cause — Liability of a corporation for acts of its manager. ' Proof that the manager of a department of an insurance company discharged a collecting agent at a time when some salary was due . him; that the agent then told the manager that he had collected a small sum of money and that he wished to account for it and receive the balance of the salary due him; that the manager told him to “ get out; ” that the…

Appeal by the tenant from a final order of the justice of the Eleventh District Court in favor of the landlord, awarding a final order* in summary proceedings to dispossess the tenant from a restaurant in Carnagie Music Hall.

Appeal by the defendant from a judgment of the Second Judicial District Court in favor of the plaintiff for the sum of $163.80,-besides costs, in an action to recover upon two causes of action. The recovery by plaintiff was upon the second cause of action only, which was upon a special contract for examining the title of the premises and insuring such title.

<p>Appeal by defendant from judgment of the Fifth District Court.</p>

<p>1. Services — Breach — Evidence in avoidance — Adjournment.</p> <p>Where the contention of the plaintiff is that his assignor placed jewelry in the hands of a dentist as security for the payment to him of $150 for dental services to be rendered and that the dentist subsequently réfused to perform any unless he was also paid $75 in cash, the testimony of a witness for the defendant that the assignor had admitted to him that the defendant had done nothing to her • teeth against her will and that she gave the jewelry voluntarily, is-immaterial, and the absence of the witness is not a sufficient ground for an adjournment.</p> <p>2. Practice — Reviewing terms of an order opening a default.</p> <p>-■ Where the defendant’s default is opened, by an order, upon terms by which he considers himself aggrieved, he must, in order to procure a review of the terms, appeal from the order, as his appeal from the judgment, after having failed to comply with the terms, is ineffectual for such a review.</p>

<p>Appeal by defendant from judgment of the Eleventh District Court.</p>

<p>1. Agency — Authority — Declarations of agent.</p> <p>An assumed agent cannot establish his authority, and bind his principal by his own statements that he is such agent.</p> <p>2. Saíne — Ratification.</p> <p>The fact that the defendant was the nominal owner of horses, which the plaintiff shod, does not .entitle the latter to recover for his service^ where there is no proof that the defendant knew of the performance of the services nor any proof that the services benefited him.</p> <p>3. Offer of settlement.</p> <p>An offer of settlement cannot be proved.</p>

<p>1. Principal and agent — Dealings of. the creditor with the agent which discharge the principal — Payment, conditional as between creditor and agent.</p> <p>Where a creditor of the principal accepts the notes of the agent and gives to the agent an absolute receipt for the claim, indorsed upon a statement of account rendered by the agent to his principal, and the latter, upon this basis, settles with the agent, the principal is discharged as to the creditor, although the payment was conditional as between the agent and the creditor.</p> <p>2. Same — Implied powers of agent. '</p> <p>An agent has no implied authority to promise, of his own motion, that his notes, given to the creditor for the principalis debt, will he paid at maturity by the principal who has never indorsed them..</p> <p>3. Same — Fraudulent scheme of agent to. defraud principal and creditor— Knowledge of principal. |</p> <p>Semble, that a principal is not chargeable with knowledge of a secret fraudulent scheme, upon the part of his agent, in procuring á creditor of the principal to sign a receipt by means of which the agent may defraud both the creditor and the principal.</p>

<p>Motion for new taxation.</p>

<p>1. Long Island City — Constitutional limit of indebtedness — Revenue bonds, issued under Laws 1886, chap. 366, are a permanent debt and are not deductible under Constitution 1894, art. 8, § 10.</p> <p>Revenue bonds of Long Island City, issued under chapter 366, Laws of 1886, as amended, payable by statute in ten years, sold in each year for the amount of the arrears of taxes of the preceding year and . purchasable by the city treasurer out of such arrears, when collected, they being created, in effect, a sinking fund to pay the principal and interest of the bonds, are not, for the purpose of determining the constitutional limit of the indebtedness of the city, deductible, within the provisions of article 8, section 10 of the Constitution of 1894, as “ certificates of indebtedness or revenue bonds issued in anticipation of the collection of taxes for amounts actually contained, or to be contained in the taxes for the year when Such certificates or revenue bonds are issued and payable out of such taxes,” as such bonds are, in fact, a part of. the permanent debt of the city.</p> <p>2. Same — Test of constitutionality of revenue bonds.</p> <p>The test whether such bonds are valid, within the constitutional provisions as to the limit of a city debt, is whether they were valid when they were issued.</p> <p>3. Same — Power of city treasurer to sell such bonds when a part of city “ special sinking fund.” ' "</p> <p>The treasurer of Long Island City has authority to sell its revenue bonds, purchased, of the city out of arrears of taxes paid in and forming a part of the city “ special sinking fund,” created by chapter 782 of the Laws of 1895, as the statutory, provision in the latter act permitting the city treasurer temporarily to invest any portion of that fund, not required to pay past revenue bonds issued under chapter 866 ■ of the Laws of '1884, as amended; “ in the purchase of any other bonds of the . city,” carries with it a right to the treasurer to sell such bonds temporarily purchased of the city.</p>

<p>Election Law —When a certificate of nomination by the secretary of state should not state that a candidate has been nominated to fill a vacancy, alleged to exist.</p> <p>The court will not compel the secretary of state to certify to a board of elections that an independent nominee for justice of the Supreme Court in the Second Judicial District (an office alleged to be vacant because it was filled at the general election held November 3,/ 1896, in alleged violation of the Constitution of 1894, article 6, section 4, “ less than three months after the vacancy ” occurred by the death of the incumbent on August 3, 1896), was nominated, by the certificates, in the words “to fill va'cancy in place of Calvin E. Pratt, deceased,” as, where more than one justice is to be elected, nominees for the office cannot tie classified, and where a vacancy arises the justice is always elected for a full term; and, therefore, where the secretary of state certifies that the independent nominee has been nominated for the office, he is put upon an equality with all the other nominees and has been given all the rights, before the electors, to which he is entitled.</p>

Application by a citizen for the revocation of a liquor tax certificate, pursuant to section 28 of the Liquor Tax Law, on the ground that it was falsely stated in the application that the owners of two-thirds of the dwellings, within 200 feet, had consented.

<p>Motion for a surgical examination of the person of defendant in. an action for the annulment of marriage on the ground of physical disability.</p>

Action of ejectment. Commissioners appointed by regular town meeting, and empowered to lease the common lands of the town, leased the land in question to- the defendant. It is claimed that such delegation of power was beyond the power of a town meeting, and that, therefore, the lease is void.

<p>Appeal from a judgment in favor of defendants, entered upon a verdict and from an order denying a motion for a new trial.</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>Consolidation of actions, before answer, upon an affidavit of defendant — Code Civil Procedure, § 817. _</p> <p>. Where the plaintiff brings- two separate actions upon contract to recover a total sum of 8705, the court may, before answer, under Code of Civil Procedure, section 817, upon an affidavit of the defendant, stating that its defense is a counterclaim for damages arising out of one of the causes of action, amounting to 8800, and going to the whole of the plaintiff’s demand, consolidate both actions, "with a view to prevent unnecessary litigation.</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>1. Appeal — Variance as to the ground of recovery upon a sale.</p> <p>Where the plaintiff alleges an absolute sale of personal property, demands judgment for a balance due thereon and makes proof which follows the complaint, he cannot, upon appeal, abandon that position and seek to recover for an installment, as under a conditional sale of the same property, alleged to have become due before the property was destroyed by fire.</p> <p>8. A loss of personal property, by fire, falls upon the holder of the legal title.</p> <p>Where no special agreement relative to the matter exists and where none is alleged or proved, a loss .of personal property, occasioned by fire, attends upon the title to the property and not upon its possession.</p>

<p>Appeal from a judgment dismissing complaint upon 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 defendant, entered upon a verdict, and from an order denying a motion for a-new trial.</p>

<p>Attorney and client — When the client is bound by an agreement with his attorney. ' i</p> <p>A client is bound by an agreement, made by him with his attorney, where it appears that the agreement was fair, that the client was fully informed of all the material facts and that he acted upon them with understanding.</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>

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

<p>Appeal — When the defendant has conceded below that there is a question of fact.</p> <p>Where the defendant fails to move for a nonsuit or to ask for the direction of a verdict in her favor, she concedes that there is a question of fact and cannot, upon appeal, be heard to say that there is no evidence to support the verdict.</p>

Appeal by defendant from an order made at Special Term setting aside a sale of certain property under a judgment foreclosing certain, mechanics’ liens against real property.

<p>Appeal from an order directing a retaxation of. costs.</p>

<p>1. Bills and notes — Acceptance — Fraud not shown.</p> <p>A drawee who accepts a draft must pay it at maturity unless his acceptance was procured by fraud and that defense is not made out by proof that the person, who presented the draft for acceptance, said that the ship, containing the goods against which the draft was drawn, was in sight, when, in fact, the goods had already arrived and were in a public storehouse, from which they could have been obtained upon payment" of the legal charges.</p> <p>2. Sale — Rescission — Laches.</p> <p>Where the acceptor retains, for many months, invoices of the goods and other documents which represent them, he cannot thereafter rescind, and his liability upon a draft, drawn against the goods, becomes complete.</p>

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

<p>Appeal from an order vacating an order of reference in supplementary proceedings.</p>

<p>Warranty — When it survives acceptance — Counterclaim.</p> <p>A warranty, made by a vendor corporation, that stone to be shipped to a vendee should be of the best quality, in first-class. condition, thoroughly “ scabbled ” and that it should not weigh more than, 160 pounds to the cubic foot, is one which survives an acceptance of the stone and entitles the vendee to interpose, in an action brought by the vendor for the value, a counterclaim arising out of the damages sustained by the vendee from the breach of the warranty.</p>

<p>Security for costs — Action revived in favor of plaintiff’s administrator — Code Civil Procedure, § 3271.</p> <p>The provisions of Code of Civil Procedure, section 3271, "that, in an action brought by or against an executor or administrator, in his representative capacity, the court may, in its discretion, require the plaintiff to give security for costs, have no application to an action commenced by a person since deceased, thereafter revived by order, and continued in favor of her administrator.</p>

<p>Answer — When one, alleging that the plaintiff is not the real party iti interest, is insufficient.</p> <p>An answer which merely alleges “ that plaintiff was- not the real or proper party in interest ” is insufficient to raise that issue, as the facts which support the contention must be alleged by the defendant.</p>

<p>1. Election Law — Rival county conventions of the same factions — Regularity.</p> <p>Where it appears, from affidavits presented upon a contest relative to the validity of certificates of county nominations filed with a county clerk and naming, for the same county offices, rival candidates of hostile factions -of the same political party, that one faction caused a large number of armed policemen, specially appointed at its instance, to be present at the county convention; that one, not a delegate, secretly procured of the court an ex parte injunction order directed to the chairman of the county committee, the perstin by long usage entitled to call the convention to order; that this injunction was served upon him in the convention hall; that, while he was .examining it with a view to determining its effect (it, in fact, not precluding him from calling the convention to order), the person procuring the in-' junction called the convention to order against the protest of a majority of the delegates present and, before all were assembled, declared carried a motion to appoint a chairman of -his faction; that, when the regular chairman of the county committee called the convention to order a few minutes later, he was, without right, ordered, by the leaders of the rival faction, to be arrested by the special policemen, notwithstanding which he, with a majority of the duly elected delegates, proceeded, in the same convention hall, regularly to nominate a ticket for county officers, the nominations so made by the latter convention are to Be deemed legal, while the acts of the opposing action are to be condemned as irregular and unfair.</p> <p>2. Same — One delegate may cast the vote of all the delegates of his town.</p> <p>A party usage, under which one delegate from a town casts, in a county convention, the votes of all the other assenting delegates of the town, is not improper.</p> <p>3. Same — When a primary is unfairly conducted.</p> <p>A primary cannot be deemed a fair expression of the choice of the voters of a town, where it appears that it was held in a hall largely occupied by the adherents of one faction; that the hall would not hold more than one-half of the voters in attendance upon the primary and desiring to vote thereat; that the proceedings,' resulting in the choice of delegates to a county convention, were conducted and terminated in a period of from five to ten minutes, and that a ballot, demanded, was refused by the chairman of the primary, who had been elected in the interests of the faction which was in practical occupation of the hall. ' .</p>

<p>Demurrer to complaint in an action to foreclose a mortgage.</p>

<p>Action íot conversion.</p>

<p>Motion to strike cause from calendar.</p>

<p>Proceedings to Sell decedent’s real estate for the payment of his debts. .</p>

order compelling the hoard of supervisors of ■Rensselaer county to refund certain moneys paid by petitioner for taxes alleged to have been illegally assessed and collected upon property owned by petitioner purchased with pension moneys.

<p>Action to compel specific performance of the alternative covenants of a contract.</p>

<p>Action to nullify a reorganization agreement and all proceedings thereunder.</p>

<p>New York city— City is not liable for the negligence of the driver of an ash cart. . .</p> <p>The duty imposed by the Consolidation Act (Laws 1882, chap. 410, § 704) upon the commissioner of street cleaning of removing ashes from the streets, is not a governmental duty, imposed primarily upon the city of New York, but is a duty purely statutory, and hence the driver of an empty ash cart, passing through a city street, cannot be said to be engaged in the performance of a governmental duty and the city is not liable to a person injured through his negligence..</p>

<p>. Action to recover for services under employment by the park, department.</p>

Action to recover damages for personal injuries received by falling on a sidewalk of the municipality, by reason of the negligence of the defendant. The complaint was dismissed for reasons which appear, below, -and the plaintiff moves on the minutes for a new trial.

<p>Action to determine title to a public office. The opinion states the facts.</p>

Appeal by the defendant from an affirmance by the General Term of the City Court of a judgment in favor of the plaintiff for $405.-96, damages and costs.

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

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

Statute of Frauds — Original promises — Consideration of guaranty. .

<p>Appeal by defendants from affirmance by the General Term of the City Oourt of a judgment in favor- of' plaintiff.</p>

<p>1. Guaranty — Proof that it covered sales to persons not specifically mentioned.</p> <p>Where vendors bring an action upon an instrument, guaranteeing to them the payment of all goods purchased by B. C. Young & Co. up to the sum of $1,000, they are entitled to prove that sales, made ■ by them to the firm of Young & Bruns, were intended by the parties to be included; and, to this end, they may show that, in an interview had about the time of, but before the guaranty was given, both Yoting and Bruns stated to the vendors that they were going into business under the name of B. C. Young & Co., and that thereupon, one of the guarantors instructed one of the vendors to write out a guaranty, and said that he and the other guarantor would sign it for whatever amount was necessary to protect the account of the said vendees with the vendors.</p> <p>3. Same — Extension of credit — Rebutting evidence.</p> <p>Where one of the vendees has testified, but not from personal knowledge, so far as appears from his testimony taken by commission, that the credit was, subsequently to the execution of the guaranty, extended by a verbal agreement made between the partner of the witness and one of the vendors, that vendor may testify that he had a certain conversation with one or the other of the vendees, and that nothing was said then about giving them further time.</p> <p>3. Same — Res gestae.</p> <p>Statements of Young and Bruns, made to the vendors not more than two weeks before the guaranty was given, and while it was an express contemplation, to the effect that Young and Bruns were to constitute the firm of B. C. Young & Co., are competent as a part of the res gestae, although made out of the presence of the guarantors.</p> <p>4. Same — Admissions of vendee made subsequent to the transaction, when competent, against guarantors.</p> <p>While admissions of a vendee, made after the whole transaction under the guaranty has been concluded, are not competent against guarantors, a statement of the vendee, Young, made to one of the vendors that the firm of B. C. Young & Go., consisted of himself and Bruns, is admissible in order to contradict a statement, contained in the deposition of Young, to the effect that Bruns was not a member of the firm.</p> <p>5. Same — Declarations of vendees that they owe the vendors.</p> <p>The rule, that declarations of vendees that they are indebted to the vendors, when not supported by original evidence of the fact, are im admissible against guarantors, cannot be made available Where the . guarantors, without objection made, permit the vendors to give in evidence an account rendered by them to the vendees, and admitted by one of the vendees to be true.</p>

<p>1. Beal estate, broker — Béfusa-1" oí his principal to complete— Changes made in the contract at the request of the principal.</p> <p>r Where-the employer of a broker, after having' demanded various "changes in "the contract of the sale' of a house proposed to be made to "him, and after these changes have been, at the instance of the broker, assented to by the seller, "finally refuses to execute the contract upon the ground that the state of his wife’s health renders housekeeping inexpedient, the broker must be deemed to have performed, upon his part, so far as he has been allowed to perform,. and' is entitled to recover upon the original contract of employment; and the changes made in the contract, at the request of the buyer, are not to be deemed to have been assented to by the broker with any idea of prejudicing his own rights under the original contract, but merely in order to effectuate an amicable conclusion of the matter.</p> <p>8. Same — Evidence — Letter of principal to seller — Secondary evidence of contents.</p> <p>In the absence- of the production of the original, testimony as to the " contents of a letter, written by the buyer to the seller relative to the refusal of the buyer to complete the contract of sale, is not competent against the broker in an action brought by him for his commissions, as the letter is not essential to his case; and it cannot be proved by secondary evidence where it appears that it is not in his possession, and where it does not appear that the buyer could not ¡have compelled its production by means of a subpoena duces tecum.</p>

<p>Practice on appeals'to the Appellate Term — Necessity of proper exceptions to raise the questions whether the verdict is supported or the damages excessive. •</p> <p>Where a judgment of the City Court of New York, affirmed by its General Term, is taken by appeal to the Appellate Term of the Supreme Court, the rules which govern further procedure are similar to those which control an appeal to the Court of Appeals from a judgment of the Supreme Court, and, in the absence of proper procedure in the courts below and of proper exceptions appearing upon the record, the Appellate Term cannot consider the question whether the verdict was supported by the weight of evidence, nor whether the recovery was excessive.</p>

<p>An order, refusing to strike irrelevant matter froín á pleading, is not appealable to the Appellate Térm.</p> <p>As the granting of an order, striking irrelevant of redundant matter from a pleading, rests in the discretion, of the court (Code Civ. Pro., § 545), á denial of such a motion does not involve the merits nor affect a substantial right, and consequently is not appealable, under Code Civ. Pro., § 1391, from the City Court Of New York to the Appellate Term of the Supreme Court.</p>

. Appeals by the defendant, Walter D. Haws, from a judgment in each of the above-entitled actions in. favor of the plaintiffs, the recovery by the plaintiff Dooner being for $256.82, damages and costs; and in favor of the plaintiff Curry for $132-79, damages and costs. '

Appeals by the' defendants, other than the defendants Allen and Ohatterton, from a judgment in each of the above-entitled actions in favor of the plaintiffs herein; the plaintiff Connell having recovered $242.99 damages and costs, and the plaintiff Murtha having recovered $249.69 damages and costs. The defendant Allen was not served, and .did not appear in the action; and the defendant Ohatterton permitted' judgment to be taken against him for the. amount, of the claim.

■ Appeal by the defendant from a judgment of the justice of the Third District Court in favor of the plaintiff for sixty-one dollars and eighty-five cents ($61,85) damages, besides costs.

<p>Appeal by plaintiff from a judgment of the justice of the Tenth . ¡District Court dismissing the complaint.</p>

Appeal by the defendant from a judgment of the justice.of the Sixth District Court in favor of the plaintiffs for $176.57, besides costs. 1

Appeal by defendant from a judgment of the justice of the Third District Court in favor of plaintiff, entered upon the verdict of a jury.

<p>Evidence — Account stated as á declaration against interest — Letterpress copy admissible.</p> <p>Where an attorney and his client have entered into an account stated which shows a balance due the attorney, the client may, upon the trial of an action brought by an assignee of the attorney in order to recover the value of the services of the latter in defending an action which was expressly excluded from the account stated, be asked, upon cross-examination, whether she had not. received a certain paper (the account stated) from the attorney, and whether the paper shown her was not a letter-press copy of it; and, upon her admission that it is ' such, the letter-press copy is admissible in evidence as a declaration made against her own interests, and this although the original account stated is not produced.</p>

<p>Negligence — Failure of master to instruct a young employee in the use of a machine.</p> <p>Proof, that after a girl aged fifteen, and employed in a handkerchief factory to get boxes and- mark them with a stamp, had worked there two or three weeks, the forewoman, who had charge of the factory and control of the girl, directed her, without giving her any instructions in the matter, to feed handkerehiéfs to an ironing machine, and that, while performing this duty, her right hand was caught between two rollers and was severely injured, establishes a prima facie case of négligence upon the part of the owners of the factory, as the master has failed in his duty to instruct so young an employee in the use of such a machine and to warn her against its dangers.</p>

<p>lease — Bight to remove 'fixtures — Provisions of a written agreement as to improvements.</p> <p>Where a_ lessee covenants that he will, at the expiration of his term, surrender the premises in as good a state and condition as reasonable use and wear thereof will permit, and that all improvements and alterations made by him on the premises shall be and become the prop- ' erty of the lessor “ without claim for compensation therefor,” he is not justified in removing, at the end of his term, improvements made in sheds, constituting a part of the. property, by which they wore converted into stables through-the introduction of stalls or partitions affixed by screws, cleats and slides,' as such a removal violates the express condition of the lease; the general rule, relative to the right of a tenant to .remove fixtures at the end of the term, having no application to' a case where there is a written agreement governing such removal. i</p>

<p>Appeal by defendant from judgment of the Second District. Court. ‘</p>

<p>Appeal by 'defendant' from judgment- of the Tenth District Ooúrt. ’ • - . ’ - -</p>

<p>1. Attorneys — Breach of contract.</p> <p>Where an attorney agrees to collect a claim, and proposes absolutely to net his clients fifty per cent, cash, the question whether his acceptance, for collection of other claims, and his docket of judgments recovered upon those claims, before his docket,of the judgment of his clients, an act which exhausted a fund in the hands of a receiver of the property of the judgment debtor, appointed at the instance of the attorney, is a breach of his contract of employment, is one proper for the consideration of a jury impaneled in an action brought by the clients to recover of the attorney a balance alleged to be still due them from him on the claim.</p> <p>2. Same — Agreement with receiver.</p> <p>Quaere, whether an agreement, made between a receiver in supplementary proceedings and the attorney who procured his appointment, to the effect that the attorney should receive for his services one-half of whatever sum might be collected of the judgment debtor, can be*supported? „ " _</p> <p>.3. Witness — Credibility.</p> <p>The interest of a party to an action is a circumstance which may . be considered by a jury in determining his credibility.</p>

<p>Appeal from judgment rendered by the justice of the' First Judicial District Court in favor of the -plaintiff.</p>

<p>Appeal from judgment rendered by the justice of the Seventh Judicial District Court in favor of the plaintiff.</p> <p>Action for personal injuries.</p>

<p>Negligence — Collision in a street — Duty of driver of street car.</p> <p>Proof that, after the carriage of a physician, who was calling professionally .at a house, had been twice driven away by its eoacjhman at the request of drivers of street cars because the space between the car track and the curb was so narrow, the physician came out of -the house -and saw'a car approaching from the rear, but at that time some distance away; that after he had.taken his seat in his carriage, and before he had actually started it, there was a slight movement of the carriage causing it to collide with the street car at a point about at the middle of the car, does not show that the physician was negligent; and the driver of the car must be deemed to have violated his duty in driving upon a carriage, thus situated, without giving any warning of his approach.</p> <p>Appeal from judgment rendered by the justice- of the Fifth Judicial District Court in favor of the plaintiff.</p> <p>Action for negligence.</p>

<p>1. "A "stableman’s'lien attaches only’ to the animal and does not cover ' a wagon and harness — Lien of warehouseman.' ' ■</p> <p>- ' The'lien, given'-to a stableman by statute (Laws 1880,-chap. 145; Laws' 1892, chap. 91), justifies him' in 'detaining the animal only and'does not extend to a harness and wagon which came into his care at the same time with the-animal; nor can he successfully resist a lawful demand, made for the possession of the wagon and harness, by invoking the provisions of chapter 526 of the Laws Of 1885, declaring a lien to exist in favor of a warehouseman, as. the provisions of that statute apply only to a person who is exclusively engaged in the business of storage.</p> <p>B. Conversion — Demand by assignee, when excused.</p> <p>Where the owner of personal property has duly demanded it and . possession has been refused, it is not necessary, to the prosecution of an action brought by an assignee of the claim, that he should make a further demand. ¡</p> <p>3. Failure to file a chattel mortgage' not available to a general creditor of. the mortgagor. I</p> <p>The provisions of the statute (Laws of 1895, chap. 354), declaring that a failure properly to refile a chattel mortgage, shall render it void as against the creditors of the mortgagor, cannot be invoked by a mere general creditor of the mortgagor whose claim has not been reduced to the form of a judgment, or which is not evidenced by some legal process, nor by one who does not hold the property by virtue of a lien under which he has a right to .sell it.</p>

<p>Appeal from judgment rendered by the justice in favor of the defendants Spearing, upon their counterclaim in an action,, brought .by the" plaintiff in the First Judicial District Court, for the fore-J-closure of a mechanic’s lien.</p>

<p>■Motion by defendant to set aside taxation of costs.and judgment entered in favor of the plaintiff on such taxation. ■</p>

<p>Action to set aside an assignment for the alleged benefit of creditors.</p>

Demxtbbeb to complaint. Action by plaintiff to recover of defendant, one of the stockholders of the Wendler Machine Company, a domestic corporation, upon notes of said company given the plaintiff for the purchase price of coal used by the corporation, on the ground that the defendant wás a stockholder and the owner and holder of ten.shares* amounting to $1,000 par value, the certificate thereof having been duly executed and delivered to him without payment, and on the ground…

<p>Demurrer to answer.</p>

<p>Counterclaim — Fraud — Récíssíon — Restoration.</p> <p>"A counterclaim, interposed to an action" brought to recover a balance alleged to be due on a purchase of a part of the stock of a publishing company, Which, in substance, alleges that -the plaintiff represented •" to the defendant, who was the president óf the company, that a combination of stockholders had been formed to depose' him, and that, inréliance On- this statement, which was false, he bought the stock in: question, paid for in part, lit order to keep the control, Is good on' ‘ .demurrer; and as the counterclaim is to be deemed as proceeding upon k rescission, restoration, before action brought, is not k condition- \ precedent., •</p>

<p>DemhbBeb to counterclaim.</p>

Motion upon order to show cause why an undertaking on appeal given by the above-named defendant railway company herein, together with the certificate of Hon. W. E.' Scripture annexed thereto, and the notice of filing thereof annexed “ should not be in all things vacated and set aside and removed from the files in the Herkimer county clerk’s office, with such other and further relief in the premises as to the court shall seem proper.”

<p>Verdict — When justice of Appellate Division may receive.</p> <p>, The provisions of .section 2 of article 6 of the Constitution of 1894, declaring that “ no justice of the Appellate Division shall*exercise any of the powers of a justice of the Supreme Court other than those of a justice out of court, and those pertaining to the Appellate Division or to the hearing and decision of motions submitted by consent of counsel,” do not invalidate the action of a justice of the Appellate Division in receiving a verdict, at the request of a trial justice, who has disposed of all other business, and with the consent of the counsel in the case; nor is the validity of an order for a new trial, in the usual form, thereafter made by consent of counsel and providing that the motion should be heard by the justice who had held the term, in any manner affected.</p>

<p>Action to set aside a deed on the ground that it was given with intent to hinder, delay or defraud creditors.</p>

<p>Motion for an injunction.</p>

<p>Application for writ of certiorari.</p>

<p>1. Trusts — Beneficiary as trustee.</p> <p>A testamentary provision that upon the death of one of two trustees, the surviving trustee, who is also the sole beneficiary, shall continue to act as trustee for his own benefit, with power to sell and mortgage the real estate, does not invalidate the trust.</p> <p>3. Trustee — Duties of.</p> <p>■-Where it is evident that the survivor occupies a position where his duties as trustee may conflict with his interests as beneficiary, Held, (1) that it is improper for the trustee to act without judicial instructions; and (2), that it is the duty of the court to assume control of his actions, and to determine whether due occasion exists for permitting the trustee to mortgage or sell the real estate.</p> <p>3. Trusts — Merger of interests.</p> <p>Semble, that if it is the clear intention of the testatrix to create an active trust, and to preserve the corpus, of the fund intact until the termination of the trust term, there will be no merger of the equitable in the legal estate because of the appointment of the beneficiary as trustee.</p>

<p>Action against a corporation. The opinion states the case.</p>

<p>Action to foreclose mortgage. The opinion states the case.</p>

Action by the administrator of one of next of kin to recover property as to which testator is claimed to have died intestate.

<p>Action against guarantor of notes to be discounted for a corporation in which defendant was stockholder.</p>

<p>Action to recover moneys expended in advertising defendants’ steamboat business.</p>

Action by a mother to annul the marriage of her minor daughter ' on the ground of fraud. The action was tried before Roger Foster, ■ as referee; his opinion states the facts of the case. Upon his report ■ Judge Truax granted a decree of annulment, and directed the record to be sealed on November 16, 1897.

<p>Action in equity for the cancellation of certain municipal bonds.</p>

<p>Appeal by plaintiff from a justice’s judgment" entered upon-a verdict of a jury. ' "</p>

<p>Application for leave to appeal.</p>

<p>Appeal from1 judgment rendered by the justice of the Seventh Judicial District Court in favor of the plaintiff.</p>

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

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

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

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

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

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

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

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

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