Volume 21 — New York Supplement

Action by Christina-Anderson against the Manhattan Railway Company for personal injury. From a judgment for plaintiff for $5,401.82 entered on a verdict, and from an order denying a motion to set aside the verdict and for a new trial, defendant appeals. Judgment reversed, unless plaintiff stipulates to reduce it to $2,500, in which case it is affirmed.

Three actions by the .Globe Yarn Mills against William H. Bilbrough and others. An order denying a motion to vacate the attachments was affirmed at general term of the city court of New York, (19 N. Y. Supp. 176.) and defendants appeal. Affirmed.

Summary proceeding by Charles Moritz for the removal of John H. Koenig, a tenant, for the nonpayment of rent. The question in controversy was whether a tender by the tenant was of all the rent due. From an order of a district court in favor of plaintiff, defendant appeals. Affirmed.

<p>Motion for reargument. Denied. For decision on appeal, see 19 N. Y. Supp. 392.</p>

Certiorari by the people of the state of New York ex rel. the Davis-Colby Ore-Roaster Company against Frank Campbell, comptroller of the state of New York, to review the determination of defendant in declining to set aside a tax assessed upon relator’s corporate franchise. Reversed.

Action by Charles E. Bullard and Charles 0. Howe' against Mary C. Harris and another. From the dismissal of a motion for an order to set aside a judgment for costs, plaintiffs appeal. Affirmed.

<p>1. Evidence—Letters and Memoranda. In an action after the death of the insured to determine conflicting claims-to his policy of life insurance, letters written and signed by deceased, or a memorandum made by him, are not admissible by a party claiming under him, if shown not to have been communicated- to the party claiming adversely.</p> <p>2. Insurance—Assignment of Policy to Creditor. Where, a life insurance policy is assigned by the insured to a creditor, “as his interest may appear, ” the burden of proof is on such creditor to show the extent of his interest.</p> <p>3. Same—Interest of Assignee. A life insurance policy provided that the “claims of any creditor as assignee shall not exceed the amount of the actual bona fide indebtedness of the member to him at the time of his death, * * * and this certificate, as to all amounts in excess thereof, shall be void. ” Held,, in an action by the executrix of the insured against a creditor, to whom the policy had been assigned, “ as his interest may appear, ” to obtain the amount thereof in excess of such interest, where-the full amount of the policy has been paid into court'to abide the result of the action, that such provision is not available by defendant to defeat the right of plaintiff to such excess.</p>

Action by Charles G. Doremus against Arieanna M. Doremus, individually and as administratrix, and others, for the partition and sale ■of real property. At the referee’s sale Max Lang purchased one of the pieces of property, and afterwards made a motion before the special term to be relieved from his purchase. From an order denying his .motion he appeals. Affirmed.

Action by the New Central Coal Company against Joseph Cumings, as indorser of a promissory note. From a judgment entered upon a verdict directed by the court, defendant appeals. Affirmed.

Action by Herbert Cecil Felly against William M. Onderdonk, impleaded with others, on a promissory note. Plaintiff had judgment by direction of the court, and defendants appeal. Affirmed. For report on prior appeal, see 15 N. Y. Supp. 915.

Action by Herbert Cecil Pelly against Andrew J. Robinson and another. From a judgment directing a verdict for plaintiff, and from an order denying a motion for a new trial, defendant Robinson appeals. Affirmed.

New York county. Action by Herbert Cecil Pelly against Frances S. Naylor and another, executors, etc., of Henry Naylor, deceased, and another. From a judgment directing a verdict for plaintiff, and from an order denying a motion .for a new trial, defendants Frances S. Naylor and another, executors, etc., appeal. Affirmed.

Philip W. Frederick was convicted before a justice of the peace of Fulton county as a disorderly person. From a judgment of the court of sessions affirming the judgment of conviction, defendant appeals. Reversed. ¿

Action by Marie Schuler against George H. Roberts and N. Park Collin and John J. Gorman, sheriff of the city and county of New York, for trespass committed in entering on plaintiff’s premises and levying execution on her property, under a judgment in favor of the firm of Roberts & Collin, against her husband. From a judgment for plaintiff, entered on a verdict, and an order denying a new trial, defendants Roberts & Collin appeal. Affirmed.

<p>Appeal from circuit court, Essex county.</p> <p>Replevin by Joseph Cook, as surviving administrator of William H. ■Cook, deceased, against Elmer S. Shattuck. Judgment for plaintiff. Defendant appeals. Affirmed.</p>

Action by John E. Harrington against the Franklin Fire- Insurance Company of Philadelphia to recover on a policy issued by defendant to Timothy Cooney, and by him assigned to plaintiff, as mortgagee of the property insured. From a judgment on a verdict directed for defendant, plaintiff appeals. Reversed.

Action by Charles E. Bullard and Charles 0. Howe, as judgment creditors, against Mary C. Harris, impleaded with James H. Kenyon and Ellen M. Kenyon, his wife, to set aside a chattel mortgage executed and delivered by the defendants Kenyon to defendant Harris on the ground that it was given in fraud of creditors. From a judgment for defendants, plaintiffs appeal. Affirmed.

<p>Indictment—Finding—Testimony Given by Defendant. Defendant had been called as a witness before a grand jury, and upon bis testimony and that of others certain persons were indicted for receiving bribes; defendant’s testimony showing that he had paid such persons money for being permitted to keep a gambling house. Several days afterwards the same jury indicted defendant for keeping such gambling house. Held, that this indictment was in violation of Pen. Code, § 79, which provides that in bribery cases the testimony of any offending person against another so offending shall not afterwards be used in any prosecution against the person so testifying.</p>

<p>Petition on relation of the Troy & Lansingburgh Railroad Company against James W. Coffey, John F. Bridgeman, and Charles L. Fuller, as local assessors of the city of Troy, to review an assessment. Reversed.</p>

Action by Stephen L. Constable against Rufus Lefever and Cornelius I. Lefever to recover for work and services. ■ From a judgment for plaintiff, defendants appeal. Affirmed. One of plaintiff’s witnesses was a Knight of Labor, and, in order to show a bias on his part in favor of plaintiff, he was asked on cross-examination, “Have you ever seen Constable [the plaintiff] turn out with the Knights of Labor?” and the question was overruled as being immaterial.

Action by Howe’s Cave Association against Peter Houck to determine the ownership and title of certain buildings standing upon premises leased by plaintiff, and to restrain the defendant from removing the same from said premises. From a judgment for defendant, plaintiff appeals. Affirmed.

Action by Peter Folmsbee against the city of Amsterdam to recover damages for an injury to his premises by reason of a change in the grade of a street. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

- Appeal from special term, Montgomery county. : Action by Elsie S. Morrison, executrix of Alexander C. Morrison, deceased, against Nathan P. Hinman and Thomas H. B. Crane, assignees for the benefit of creditors, and others, to recover the amount of a mortgage which was a lien on property such assignees sold to plaintiff’s assignor, and which he was compelled to pay. From an order of the special term appointing a referee, defendants appeal.' Reversed.

<p>1. New Trial—When Granted—Exceptions. Where no exception is taken during the progress of a trial, or to an order of court directing a verdict for defendant, a motion for a new trial on the minutes, under Code Civil Proc. § 999, should be denied.</p> <p>3. Appeal—Review—New Trial—Denial op Motion. A denial of a motion for a new trial on the minutes cannot be reviewed on appeal, unless an order denying the motion was entered, and an appeal taken from the order.</p> <p>S. Appeal—Affirmance—Lack of Exceptions. Where a verdict is directed for defendant, and there is no exception to this ruling, nor material exception to the rulings upon the trial, and no appeal from an order denying a new trial on the minutes, under Code Civil Proc. § 999, the judgment will be affirmed on appeal.</p>

Application by the Eickemeyer-Field Company and others for a writ of peremptory mandamus to compel Frank .Rice, as secretary of state, to file certain articles of association. From an order denying application for peremptory mandamus, relators appeal. Reversed.

<p>1. Insurance—Condition of Policy against Incumbrances—When Violated. A policy of insurance covering severally a crop of hops for the years 1889 and 1890, which were kept separate in the hop house, provided that the “entire” policy should be void if the property was incumbered. Held, that a mortgage on the crop of 1889 did not invalidate the insurance on the crop of 1890.</p> <p>3. Same—Double Insurance. The condition of an insurance policy against double insurance is not violated by the existence of other insurance when the policy issued, where the agent issuing the same had knowledge of the situation, and within a few days thereafter such other insurance was canceled, pursuant to agreement with such agent.</p>

Action by Dudley S. Bartlett, superintendent of the poor of Montgomery county, against Levi Ackerman, overseer of the poor of the town of Danube, Herkimer county. Defendant had judgment, and plaintiff appeals. Affirmed.

Action by Darius A. Moore and another against William McLaughlin and others to foreclose a mechanic’s lien. From a judgment dismissing the complaint as to defendant McLaughlin, plaintiff appeals. Reversed.

Action by Frank Dilts against Anthony W. Sweet for the specific performance of a contract binding defendant to execute a bond and mortgage to secure the payment of the contract price for labor and material furnished by plaintiff in the erection of a paper mill for defendant. From a judgment in plaintiff’s favor, defendant appeals. Affirmed.

A. Edwin Benedict was convicted of the crime of perjury in the third degree, and sentenced to imprisonment in the state prison at Auburn for the term of six years. He now appeals. Reversed.

Petition to determine the validity of an election to decide whether . ■certain territory should be incorporated as a village to be known as the “Village of Harrisville.” From two orders of the county judge, petitioners appeal. Affirmed.

Action by Mortimer Mansfield against Barbara Raab for breach of contract. Barbara Raab having died, the action was revived against Wilhelmina Raab and William Raab, her executors. From a judgment for plaintiff entered on a verdict, and from an order denying a motion for a new trial, defendants appeal. Affirmed.

Action for partition by Phelira R. Pitcher against James Robertson, William G. Hoople, and others. After the service of process, defendant H'oople purchased the interest of the other parties to the action, and the- court ordered a discontinuance thereof, from which plaintiff appeals. Affirmed.

Action by Henry Nicholas against John E. Mclntire and James Mc-Intire for an alleged breach of promise in failing to give plaintiff work, and a failure to pay him damages for injuries done to a house rented by him, at defendants’ request, to one Armstrong. Judgment for plaintiff. Defendants appeal. Affirmed.

<p>Appeal from special term, Montgomery county.</p> <p>Actions by Charles J. Webb and Harry E. Lincoln against J. Melvin Thomas and William T. Pettengill, copartners under the firm name of Thomas & Pettengill, and William J. Kline, assignee of said firm, and by ¡Simon Rawitser and another against the same defendants, to set aside an assignment for the benefit of creditors on the ground of fraud. From a judgment of the special term in favor of defendants, plaintiffs appeal. Affirmed.</p> <p>The following opinion was delivered at special term by Stover, J.:</p> <p>“This is an action brought to set aside a general assignment for the benefit of creditors upon the ground that it was fraudulent. The plaintiffs are judgment creditors of the assignors. I have examined the testimony and briefs of the parties, and think that the only serious question to be considered by the courtis that raised by the proofs with respect to the claim described in the assignment as in favor of W. T. Pettengill, one of the assignors. That clause in the assignment, is as follows: ‘The said several claims existing on the 15th day of April, 1889, except such as are mentioned in Schedule A. created since that time, and are more particularly set forth in class marked “two” in the schedule to accompany this assignment, and being then in favor of the said firm’s creditors, respectively, as follows.' Then follows a list of creditors, perhaps fifty or more-in number, and in which list the name of AV. T. Pettengill appears. The nature or amount of the indebtedness is not set forth. In the schedule filed by the assignors appears a statement of "the creditors of said firm, with the nature and amount of the indebtedness, and in that list appears the name of W. T. Pettengill. held by David Cady, amount §1,200, and the character of the indebtedness, ‘indorsement.’ The oral testimony given upon the trial shows that the defendant Pettengill indorsed a note for §1,200 for the benefit of the firm, and that the firm received the proceeds and benefit of the note. At the time of the assignment the note was held by the First National Bank, or by David Cady, who was the cashier of said bank; and this was the claim referred to in the assignment and schedules. It is claimed on the part of the plaintiffs that this was a fraudulent preference. I do not think that the evidence establishes such fraudulent character. As has been repeatedly held, fraud must be proven, and the fraudulent intent must have existed at the time of the transaction, although it may be evidenced by the acts of the parties in relation thereto. The burden of establishing such fraud is upon the plaintiff, and the evidence should be clear in order to warrant the court to find that it was fraudulent. In this case the defendant Pettengill stood in the position of surety for the firm. The firm had had the benefit, and in making the assignment it had a right to prefer Mr. Cady, or the First National Bank; and it seems to me that this is all that this transaction accomplished. It is true that W. T. Pettengill is named as a debtor, but this, at most, it seems to me, would raise a presumption of fraud; and when the intent was inquired into, and the whole transaction was made to appear, the fact would appear that he was not the creditor in such a sense that he received an illegal preference by the payment of the debt under the assignment, but indirectly, so far as the firm paid the debt, he, as surety for the firm, received the benefit. I do not understand that the law prohibits such .a transaction. An insolvent copartnership may prefer any creditor within the limit as to the amount prescribed by the statute, so long as the debt is a just debt against the partnership; and, while it is immaterial what form the transaction takes if it be in fact a fraudulent one, and deprives creditors of their just rights in the property, on the other hand, it makes no difference as to the manner in which the preference is exercised if it is free from the intent to defraud creditors, . and the conveyance not in a form prohibited by law. In other words, it is the intent with which the act is done that characterizes it as fraudulent or otherwise. I do not think the proofs in this case would warrant 'a finding that the firm intended at the time the assignment was made to make a fraudulent preference in favor of W. T. Pettengill. As it would have been free from doubt if the debt had been characterized as due to the First National Ban)t, or Mr. Cady, I do not • think that using the name of W. T. Pettengill in describing the debt made the transaction fraudulent, the actual facts appearing. It was upon the plaintiffs to show the fraud, and-I do not think the proofs do this. This case is quite unlike Frazier v. Truax, 37 Hun, 587. In that case a person was named as creditor who had no connection whatever with the debt, and it was sought to explain the preference by proving a paroi trust in favor of a third party. The distinction is quite apparent, for in this case there is no question as to the validity or the amount of the indebtedness.</p> <p>“In regard to the claim of H. Inman & Son, it appeared that the firm had had transactions with both firms, and that the actual indebtedness was to the corporation, the Inman Manufacturing Company. This, too, wás a valid debt, and the evidence shows that the name of Inman & Son was not inserted with any fraudulent purpose.</p> <p>“I think the plaintiffs have failed to sustain the allegations of the complaint. The decree will be in favor of the defendants. ”</p>

Action by James C. Matthews against Marvelle W. Cooper and William Waddell, trustees, and Albert P. Sturtevant and others, to reform chattel mortgages and a trust deed, for an injunction restraining the sale of such mortgaged property, and to enjoin said trustees from carrying on the hotel business, and for the appointment of a receiver pendente lite. Injunction granted, and receiver appointed.

In an action by the state of New York against Theodore W. Myers, as comptroller of the city of New York, for taxes due the state, the court issued a peremptory mandamus ordering defendant to issue sufficient revenue bonds of the city and county of New York, and to negotiate the same, for the purpose of raising taxes due the state from the city and county of New York. Defendant appeals. Affirmed.

Action by Ann Arthur, as administratrix, against the village of Glens Falls, for personal injuries to plaintiff’s intestate. From a judgment of the court dismissing the complaint, plaintiff appeals. Affirmed.

Action by Abel A. Crosby, Charles Reynolds, and Grove Webster, survivors of Artemas Sahler, deceased, against the president, managers, and company of the Delaware & Hudson Canal Company, to recover damages for the alleged wrongful taking arid conversion of a large quantity of lumber. From a judgment for plaintiffs, entered on a verdict, defendants appeal. Affirmed.

Action by Thomas C. Birdsall against George E. Keyes. From an order of the county court refusing a motion to strike out certain costs taxed in favor of plaintiff, defendant appeals. Affirmed.

<p>Í. Mortgages—Absolute Deed. In an action to have a referee’s deed, given at a mortgage foreclosure sale, ■ absolute on its face, declared a mortgage, brought by the mortgagor’s vendee, who purchased subsequent to the sale, the mortgagor’s attorney testified that prior to the mortgage sale he had an arrangement with the mortgagor to bid off the farm m question in his own name, and wait on the mortgagor till he could pay for it, which arrangement was known to defendant, the mortgagor’s sister, who thereupon offered to do the same thing, after which the witness procured the consent of the mortgagor thereto, and the property was bid off in the defendant’s name, she taking security for the amount paid from the mortgagor, who thereafter continued in possession till his conveyance to plaintiff, at which time witness overheard defendant say to plaintiff that she had received her money in full, and had no further claim on the premises; and this statement was corroborated by plaintiff, though denied by defendant. Defendant’s testimony showed that after the mortgage sale, and before the sale to plaintiff, she realized on the securities in her hands an amount equal to the amount advanced on the foreclosure sale. Held, that the facts show the referee’s deed to be in fact a mortgage, and that plaintiff relied on defendant’s statement that she had no claim on the farm at the time he purchased it.</p> <p>3. Same—Application op Payments. Where it did not appear that defendant held any other claim against the mortgagor, on which the amount she received should be applied, the law would apply the same to the satisfaction of the mortgage.</p> <p>3. Same—Estoppel by Representations. Plaintiff having relied on defendant’s statement that she had no claim on the farm at the time of the purchase thereof, she is estopped from setting up any claim therein to the prejudice of plaintiff.</p>

<p>Appeal from Dutchess county court.</p> <p>Action by Albert D. Genung against the New York & New England Railroad Company to recover damages for destroying by fire grass on plaintiff’s land. From a judgment of the county court affirming a judgment of the justice’s court in favor of plaintiff for $100, defendant appeals. Affirmed.</p>

Action by the Excelsior Brick Company against the village of Haverstraw to restrain defendant from entering upon or interfering with certain lands claimed by plaintiff, which defendant alleges were public streets. Defendant had judgment, and plaintiff appeals. . Affirmed. For report on prior appeal, see 16 N. Y. Supp. 681.

Action by Fanny Leopold against the president, managers, and company of the Delaware & Hudson Canal Company, to recover for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

<p>Appeal from circuit court, Clinton county.</p> <p>Action by Matilda A. Powers, an infant, by James Clark, her guardian ad litem, against the village of Champlain, to recover for injuries resulting from a defective sidewalk. From a verdict and judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.</p>

<p>Petition of Alfred Chamavas for naturalization. Denied.</p>

Action by Neal J. Quinn against John Neeson. There was a verdict for defendant, and plaintiff moves for a new trial. Motion granted.

<p>Action by Edward Rafter for damages and injunction against Sarah A. Tagliabue, Amelia E. Arndt, Louise F. Kern, and Rudolph V. Kern, owners of the land on which certain blasting was progressing, and Charles E. Dornbusch, the contractor conducting the work. Defendants were ordered to show cause, and enjoined from excavating or removing soil from the land adjoining plaintiff’s land, or from blasting thereon in any manner that would result in damaging the foundations of buildings on plaintiff’s land. On motion for a continuance of the injunction it was allowed, with modifications.</p>

<p>Appeal—Review—Waiver of Objection. Defendants cannot ask a reversal on the ground that they were not served with notice of trial, if they failed to move to vacate proceedings had before the referee prior to the presentation of their defense.</p>

Action by Charles E. Hovey and another against George Elliott and another. Defendants had judgment, and plaintiffs appeal. Affirmed. Following is substantially the report of Daniel G. Rollins, referee: In June, 1873, there was pending before the mixed commission on British and American claims, then sitting at the city of Washington, in the District of Columbia, a certain claim in behalf of one Augustine R. McDonald.

<p>Appeal—Review—Weight oe Evidence. Where a disputed question of fact is properly submitted to the jury by the trial judge, and there is evidence which, if believed by them, is sufficient to support their finding, the appellate court will not interfere.</p>

Appeal-from surrogate’s court, Saratoga county. . Petition by Michael Finn, as guardian for Ellen Donlon, widow of Patrick Donlon, deceased, and for John Donlon and Michael Donlon, children of Patrick Donlon, to open the decree for the probate of decedent’s will. The petition was granted, and William Donlon, the executor of decedent’s will, appeals. Affirmed.

Action b.y Mahala L. Getman against the mayor, aldermen, and commonalty of the city of New York for injuries alleged to have been caused by falling on the sidewalk on 106th street, in that city. From an order denying a motion to change the place of trial from the county of Saratoga to the city and county of, New York, defendants appeal. Reversed.

Lawrence county court. Action by Walter R. Hyman against' the Central Vermont Railroad Company to recover for the loss of baggage delivered to defendant. The case was originally brought in justice’s court, where plaintiff had a judgment. From a judgment of the county court reversing the justice’s judgment, plaintiff appeals. Reversed.

Action by Sebastian Gilzinger against the Saugerties Water Company to restrain defendant from interfering with a water course running through plaintiff’s premises, and for damages. From a judgment entered on the findings of the court approving the verdict of a jury in plaintiff’s favor, and from the order of the court denying defendant’s motion to set aside the verdict and for a new trial, defendant appeals. Affirmed.

Action by Richard D. Robens against William L. Hillman, Morgan W. Hillman, and Charles R. Barrett to recover the possession of land, and to enjoin defendants from in any wise interfering with or removing from the pond on the premises the fish therein, known as “German Carp.” There was a judgment in plaintiff’s favor. From that portion of the judgment granting the injunction as prayed for, defendant Barrett alone appeals. Reversed.

<p>Appeal from special term, Clinton county.</p> <p>Action by Samuel T. Barnes against Edward Ryan. Judgment for ■defendant. Plaintiff appeals. Reversed.</p>

Lawrence county. Action by John H. Sheehan, surviving partner, etc., against Orson J. Hutchins and Daniel W. Fleetham, as copartners, for the balance of a bill of goods sold and delivered by plaintiff to defendants. From a judgment in plaintiff’s favor, entered on the verdict of a jury, and from an order denying a new trial on the minutes of the judge, defendant Fleetham appeals. Reversed. For former report, see 12 N. Y. Supp. 158.

• Application by the St. Lawrence & Adirondack Railroad Company to acquire real estate of Julia S. De Camp and others. From an order authorizing the railroad company to continue in possession of the land in question, Julia De Camp and others appeal. Affirmed. For former report, see 18 N. Y. Supp. 945.

Action by Ira W. Perry against Thomas Perry and others. From a judgment dismissing his complaint, plaintiff appeals. Affirmed. On the 16th day of February, 1891, Ellenor Perry died in the city of Utica, at her residence, 57 Lansing street, leaving, her surviving, children and grandchildren, who are parties to this action.

Nicholas N. Betsinger was convicted of the crime of abduction. He-appeals from the judgment and from an order denying his motion for a. new trial.

Action by Jennie R. Sherman against the village of Oneonta for personal injuries sustained by reason of a defective street. There was a verdict of $1,500 in plaintiff’s favor, and defendant’s motion for a new trial, made on a case and exceptions, was denied. From the judgment entered on the verdict, and from the order denying the motion for a new trial, defendant .appeals. Affirmed.

Action by Charles H. Fort, as assignee of John Benoit, for the benefit of creditors, against James Milligan, for money due. A judgment rendered by a justice of the peace in favor of plaintiff was affirmed by the ■county court, and defendant appeals. Affirmed.

Action by the city of Gloversville against the Johnstown, Gloversville & Kingsboro Horse Railroad Company and another to restrain defendant from laying its tracks along the side of South Main street in the city of Gloversville. From an order continuing an injunction pendente lite restraining defendant from so doing, defendant railroad company appeals. Affirmed.

Action by the city of Schenectady against the Trustees of Union College to recover an assessment for the paving of Union street, in said city. From a judgment in plaintiff’s, favor, defendant appeals. Affirmed. The contract between the city and the Barber Asphalt Company, under which the pavement was laid, contained the following clause: “(10th).

Thomas S. Vaughn and Nancy L. Vaughn each presented a claim to Mary M. Strong, administratrix of the estate of Thomas J. Strong, deceased, for money had and received by the decedent in his lifetime. Each claim was rejected by the administratrix, and a reference was had under the statute. There was á judgment for plaintiff on each claim on the report of the referee, which was confirmed by the special term. From an order allowing costs against defendant, she appeals. Reversed.

<p>1 Assignment op Building Contract—Rights op Assignee. An assignment of a building contract by the contractors to material men furnishing lumber to be used in the erection of the building, as security for the price, vests in the assignees merely an equitable interest, operating on the indebtedness as it arises from time to time; and the assignees can recover from the owner only the balance due on the contract after deducting all payments made by him to mechanics and other material men for labor and material furnished in the construction of the house.</p> <p>2. Same—Action by Assignee—Opinion Evidence. In an action on the contract by the assignees against the owner, a question requiring one of the contractors to state the amount outstanding for lumber and material used in the house for which the owner is liable should be excluded, as it requires the witness to state his conclusion as to the legal question of the owner’s liability, and also to determine the facts out of which such legal question arises.</p>

Action by James M. Petrie against the New York Central & Hudson River Railroad Company for personal injuries. There, was a verdict of $1,850 in plaintiff’s favor. From a judgment entered on the verdict, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Reversed.

Action by James T. Outterson, as administrator, etc., of Andrew Outterson,- Sr., against Frank Dilts and others, to restore two mortgages to record, and to have the discharge thereof canceled. The case was tried by the court without a jury, and from a judgment in plaintiff’s favor, defendant Dilts appeals. Reversed. February 5, 1888, Andrew Outterson. Sr., died intestate. On the Uth of April, 1888,_Andrew Outterson.

Action by Carrie Wilsey against Peter Callanan for an injunction prohibiting defendant from throwing stones- oh plaintiff’s premises by blasting, and for damages caused thereby. From an order denying a motion to dissolve an injunction issued pendente lite, defendant appeals. Affirmed.

<p>Appeal from court of sessions, Saratoga county.</p> <p>Caleb W. Mitchell was convicted of keeping a gambling house, and appeals. Reversed.</p>

Action by John H. Post and Mary E. Post, his wife, against David 'Gharlesworth and others, for the partition of real estate, in which judgment was rendered against plaintiffs for costs.

<p>Nonsuit—Failure of Proof. Where there was some evidence that a fence built by an adjoining owner •along a highway encroached on the highway further than an old fence which had been there 20 years, and suit was brought for the maintenance of a nuisance on account of injury to stock, the question whether such fence did in fact encroach on the highway should have been submitted to the jury; and this, notwithstanding any irregularity in laying out the highway, since it would still, by user and adoption, have been a highway up to the location of the old fence. ' ■</p>

<p>1. Chattel Mortgage—Delay in Filing—Notice. In an action by a mortgagee of personal property against a purchaser at sheriff’s sale, for the conversion of the property, it appeared that the mortgage was executed after the mortgagor incurred the debt for which the judgment was rendered, and was filed before execution was issued thereon, and that prior to the sale defendant had actual notice of the mortgage. Held, that plaintiff was entitled to recover, though there was unreasonable delay in filing the mortgage.</p> <p>2. Same—Conversion—Measure or Damages. In such case plaintiff had not taken possession, and the mortgage debt was not due, at-the time of the sale, but after the sale he took possession of the property under a clause authorizing him to do so, and to sell the same and retain the amount of the mortgage, with interest, expenses, and charges, and pay the surplus to the mortgagor. The amount of the mortgage was $275, and the value of the property $418. IJelil, that the measure of plaintiff’s damages was the amount of his debt, and not the value of the property.</p>

Action by Edwin Augustus Witham and by George H. Kendall, respectively, against William Claiborne Thomas and James W. Monk for malicious prosecution. Judgment for delendants in each case, and plaint,ffs appeal. Affirmed. Plaintiff Kendall owned a country place adjoining one belonging to defend1ant Thomas’ mother-in-law, Mrs. Von Hoffman, which was occupied by Thomas- and wife in the absence of the owner.

Action by Charles D. Henshaw against the Pond’s Extract Company for personal injuries. From a judgment for defendant, plaintiff appeals. Affirmed. Plaintiff was employed by defendant to work at a cutting machine with revolving knives, which was moved by an engine in an adjoining building.

Action by James B. Horton against William H. S. Wood for personal services. From a judgment for plaintiff entered on a verdict, and from an order denying a motion to set aside the verdict and for a new trial, defendant appeals. Affirmed. Plaintiff was employed as a book canvasser by George S. Plummer, who was then in charge of the subscription book department of defendant’s publishing house, and who died before the trial of the case.

<p>1. Appeal—Review—Weight op Evidence. On questions of fact the appellate court will not reverse unless the evidence in favor of appellant greatly preponderates.</p> <p>2. Action fob Convebsion—Findings—Habmless Ebbob. In an action for the wrongful appropriation of money, where plaintiff alleged facts constituting a conversion, without expressly so characterizing it, the refusal of the referee to "find that the complaint alleged a cause of action in tort, and not in contract, if erroneous, was not prejudicial, as a complaint alleging a conversion necessarily alleges a cause of action in tort.</p> <p>8. Same. In such a case, where the referee found that defendant was guilty of conversion, it was harmless error to refuse to find that, “in order to maintain the action in its present form, it must affirmatively appear that defendant, has been guilty of conversion. ”</p> <p>4. Same. Where, in an action for conversion, the complaint alleged'and the evidence showed that defendant received plaintiff’s money as his agent, to deposit it in bank in plaintiff’s name, and he wrongly deposited it on his own account, and subsequently "drew it out, though it was not alleged in express terms that defendant acted in a fiduciary capacity, it was not error for the referee to decline to find that defendant was in no way so acting. Mayham, P. J., dissenting.</p> <p>5. Same—Evidence—Admissibility. In an action for conversion of pension money received by plaintiff, and given by him to defendant to deposit, the overruling of an objection to a question asked of plaintiff if he made an application for a pension on account of his son being killed in the army was harmless error.</p> <p>6. Same—Necessity op Pbevious Demand. In such a case no demand by plaintiff is necessary before the commencement of the action.</p> <p>7. Same—Evidence—Statement op Conclusion. Defendant, instead of depositing the money to plaintiff’s credit, deposited it to his own account, and subsequently drew it out of bank. Plaintiff was asked if he consented to such withdrawal of the money by defendant, to which plaintiff answered in the negative. Held, that the question was properly allowed to be answered, as calling for a fact. Mayham, P. J., dissenting.</p> <p>8. Same—Evidence—Showing a Negative. In such a case, as the want of consent could only be proved in the way allowed by the referee, plaintiff was properly allowed to show a negative.</p> <p>9. Stipulations—Evidence—Statement op Account. Where it is admitted in a stipulation appended to a statement of account that the latter is “correct, and a true copy of the books kept by” a certain bank, and it stipulated that the statement may be read “as original evidence, and as equal evidence with the books,” it is not necessary, before reading the statement, to lay a foundation by proving the authenticity and correctness of the books of which it purports to be a copy. Mayham, P. J., dissenting.</p>

Action by Austin P. Gibbins and Veronica P. Gibbins, his wife, against James P. Campbell, James L. Lowry, as sole acting executor of Austin Gibbins, deceased, and Mary E. Gibbins, to cancel and restore a certain mortgage executed by Austin P. to Mary E. Gibbins, and by the latter assigned to defendant Campbell. From a judgment in favor of plaintiffs, defendants Campbell and Gibbins appeal. Affirmed.

Lawrence county. Action for personal injuries by Emma Kelly against the New York Central & Hudson River Railroad Company. After answer an order was made granting defendant’s motion for an examination of plaintiff as a witness before trial, and from an order denying her motion to vacate said -order plaintiff appeals. Affirmed.

<p>Motion for reargument. Denied. For decision on appeal, see 19 N. Y. Supp. 143.</p>

\ Appeal from circuit court, Orange county. Action by Ad die V. Tuthill against the United Life Insurance Association upon a policy of insurance. From a judgment entered on a verdict in favor of plaintiff for $3,000, and from an order denying a motion for a new trial on the minutes of the court, defendant appeals. Affirmed.

<p>Appeal from special term, Dutchess county.</p> <p>Action by Harriet S. Rumsey, Harriet M. Rumsey, Julia Rumsey, and Elizabeth Rumsey against the New York & New England Railroad Company. From an order awarding costs to .defendant, plaintiffs appeal. Affirmed.</p>

<p>Appeal from special term, Dutchess county.</p> <p>Action by Walter Farrington, as executor of Catharine C. McIntosh, deceased, against the Farmers’ Loan & Trust Company. Plaintiff obtained judgment. Defendant appeals. Affirmed.</p>

Action by Thomas C. Arnow and others, against Walter Charles,- John D. Ferguson, and others, for trespass on land. Defendants obtained judgment. For former report, see 8 N. Y. Supp. 715. .

Action by Michael Brennan against Patrick Brennan for the specific performance of án oral contract to convey land. From a judgment of the special term in favor of plaintiff, defendant appeals. Affirmed.

Case submitted on agreed statement. Action by Summerfield McLean against Francois J. G. Ladd to enforce specific performance of a contract to purchase land. Case submitted on agreed facts. Judgment for plaintiff.

Action by Henry C. Ditmas against Berend Baas, individually, and as executor of Wilhelm Bouthrup, deceased, to obtain possession of an unrecorded deed to said Bouthrup from Catharine E. Cropsey and her husband.

Action by Theodore Maurer against Armand Wolff and Jules Wolff to recover for money paid by plaintiff to defendants ■ for a horse which plaintiff bought from them and afterwards returned. Plaintiff obtained judgment. Defendants appeal. Affirmed.

Action by Richard Gibbs against the Dutchess County Mutual Insurance Company on a fire insurance policy. From an order denying a motion for a new trial, and-from a judgment for plaintiff entered on a verdict, defendant appeals. Affirmed.

Action by Henry A. Coster and Mary L. Coster, his wife, against Julia De Lancey Coster and Cornelia F. Coster, for partition of two parcels of land, of which each of said parties, except Mary L. Coster, owned an undivided one-third interest. One parcel contained 31 acres, and the other 8 acres. The referee found that, while each parcel could be sold to advantage as a whole, no one part of either could be advantageously sold if a division of the land was made.

Action by Ferdinand R. Minrath against the Teachers’ Land & Improvement Company, William H. Van Cott, Jr., and Louis Proudfoot to foreclose a mortgage given to the plaintiff by defendant Van Cott. After the cause had been noticed for trial, the Teachers’ Land & Improvement Company, which had bought the mortgaged property, served an amended answer alleging usury. Plaintiff obtained judgment. The-Teachers’ Land & Improvement Company appeals. Affirmed.

■ Action by the Roosevelt Hospital against the New York Elevated Railroad Company and the Manhattan Railway Company to restrain defendants from operating an elevated railroad in front of plaintiff’s premises, 36 Bowery, in New York city, until the damages ‘to the premises have been paid. From the judgment granting the injunction, defendants appeal. Affirmed.

Action by the Roosevelt Hospital against the Hew York Elevated Railroad Company and the Manhattan Railway Company to restrain defendants from operating their road in front of plaintiff’s premises on Pearl street, in Hew York city, until damages to .said premises, resulting from such road, have been paid. From the judgment granting the injunction, defendants appeal. Affirmed.

Action by Sylvester McChesney against the Panama Railroad Company for personal injuries. From an order granting a motion for a new trial, made on the minutes of the judge after a nonsuit, defendant appeals. Affirmed. For former report, see 16 N. Y. Supp. 381. The action was prosecuted to recover for personal injuries suffered by the plaintiff while in the employ of the defendant, alleged to have been caused by its negligence.

Final accounting by Edward J. Maxwell, as assignee, etc., of John Reddish. The assignee appeals from that part of the judgment and de-cree charging him with certain alleged assets, for which he failed to charge himself in his account, and also from a refusal of said court to allow such assignee certain claims made by him for allowances and counsel fees, •costs, and disbursements claimed to have been incurred by him in the prosecution of his trust.

Action by Annie I. Dawson, as trustee of Burrett S. Dawson, George Dawson, and Charles Dawson, against John D. Parsons, Nancy M. Dawson, and Caroline E. Ten Eyck, as executrix of Philip Ten Eyck, deceased. Plaintiffs obtained an injunction and the appointment of a receiver. Defendant Parsons appeals. Affirmed.

Action by Andrew A. Davis against the town of Rochester for injuries to plaintiff’s horse, sustained in falling through a defective bridge on defendant’s highway. The action was originally brought in justice’s court, where plaintiff recovered a verdict for $75. From the judgment rendered therein, defendant appealed to the county court, which affirmed the judgment of the justice’s court. Defendant again appeals. Reversed.

Action by Helen E. Porter and Albert V. Porter against Jabez M. Lyle and George W. Lyle to recover, on eight separate causes of action, certain moneys claimed to have been paid defendants through mistake or-fraud. From an order denying defendants’ motion to change the-place-.pf..trial, for the convenience of - witnesses, from Ulster county to Kings county, defendants appeal. Reversed. The plaiht-iff'Hel'en E. Porter resides in Ulster county.

Action by Charles I. Blalceslee against Samuel T. Fisher and Michael H. Farren to foreclose a lien for lumber furnished defendant Farren, and used by him in constructing a house for defendant Fisher. From a. judgment entered on a referee’s report in favor of defendant Fisher, dismissing the complaint as to such defendant, plaintiff appeals. Reversed.

<p>1. Diversion of Water Course—Right of Action. One who digs a ditch, which diverts water from a stream, to the damage of the owner of a pond fed by such stream, is liable for the loss occasioned ' thereby, even after he has ceased to work on the ditch, since the effect of the wrongful act is continuous.</p> <p>3. Same—Municipal Corporations. The fact that such ditch was dug on land belonging to a city under a contract with the city does not release the person digging it from liability, since a city has no right to authorize the diversion of a water course.</p> <p>3. Same—Measure of Damages. The measure of damages in such case is the difference in value of the pond caused by the diminution of the water up to the time when the action was begun.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Thomas H. Robbins against Edwin Beers, Rufus Ressigue, and Spencer Aldrich. Defendants obtained judgment. Plaintiff appeals. Affirmed.</p>

Action by James O’Neill against John Nolan to foreclose a mortgage. Plaintiff obtained judgment. Defendant appeals. Affirmed. The mortgage in suit was given September 11, 1889, to secure a-debt of $500. Defendant paid $50 on account, October'll, 1889, and $50 more on November 14,-1889. On April 22, 1890, the defendant was adjudged a lunatic.

Action by William F. Lawrence and another against Frederick L. Pease. Plaintiffs had judgment, and in proceedings supplementary to-execution James M. Hunt, trustee under the will of Rosena Pease, deceased, in whose hands was money belonging to defendant as legatee, was ordered to pay the judgment' from such money, from which, and an order denying a motion to vacate the same, defendant appeals. Affirmed.

Action by James H. Watson and James H. Pittinger to enforce a mechanic’s lien against Gardner T. Cone and Jacob V. Smith for material furnished the latter in the erection of a house for defendant Cone. Smith did not appear. Judgment was rendered at special term in favor of Cone. Plaintiffs appeal. Affirmed.

<p>Review on Appeal. ' ' A judgment based on conflicting evidence will not be reversed where only-questions of fact are involved.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Dency J. Young and others, executors of Noah W. Young, deceased, against Hallock F. Luce. Judgment for defendant. Plaintiffs appeal.' Affirmed.</p>

Action by Abram P. Zoller against Dayton S. Kellogg for breach of contract. At the trial before a referee plaintiff was permitted' to amend the complaint by demanding specific performance of the contract. From a judgment in plaintiff’s favor entered on the referee’s report, defendant appeals. Reversed.

Action by the United States Trust Company, as substituted trustee under the will of Gilbert W. Bowne, deceased, against Philip V. R. Stanton, wife, and others to foreclose a mortgage, made by defendants. From a judgment for defendants, plaintiff appeals. Reversed. For former reports, see 8 N. Y. Supp. 756; 19 N. Y. Supp. 986.

Action for personal injuries by William A. Hansee against the Brooklyn Elevated Railroad Company. Plaintiff had judgment, from which, and an order denying a motion for a new trial, defendant appeals. Affirmed.

Application by the St. Nicholas Avenue & Cross Town Railroad Company for a peremptory writ of mandamus to compel Hugh J. Grant, as mayor of the city of New York, to designate two newspapers of the city in which- might be published notice of the time, place; and terms of sale of a street-railway franchise for operating a road over a route adopted by the board of aldermen of the city. From an order denying the application, relator appeals. Affirmed.

Proceeding by the trustees of the New York & Brooklyn Bridge to acquire title to lands held by William Irving Clark and others, trustees-under the will of R. S. Clark, deceased, and others. From an order-vacating an award of the commissioners the defendants appeal. Reversed.

Action by John M. Haskell against the Northern Adirondack Railroad Company for the destruction of plaintiff’s fruit trees, shrubbery, and bees by a fire alleged to have been set by one of defendant’s locomotives. There was a verdict in plaintiff’s favor of $272; and from the judgment entered thereon, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>.Equity—Rescission—Mental Capacity—Question bob Juey, In an action to set aside an instrument revoking the appointment of plaintiff as beneficiary under a life insurance policy, and appointing defendant instead, on the ground of deceased’s mental incapacity to make the same, where the attending physician testified against her capacity, and two old acquaintances testified that deceased was unable at the time to recognize them, the question of capacity was for the jury, and it was error to direct a verdict for defendant.</p>

Charles Irving was appointed receiver of the Orient Mutual Insurance Company. Upon his final accounting he was allowed, as a Reasonable extra sum $1,685.69 over and above the 5 per cent., amounting to $1,-173.56, on the amount of $23,480.37 received and paid, and to be paid, out by him. , The attorney general appeals. Modified.

Action by Charles H. Hyde, as administrator of John H. Hyde, deceased, brought originally against the Manhattan Savings Institution, to recover money therein deposited by Maria Van Vleck, deceased, “ in trust for John H. Hyde,” plaintiff’s intestate.

' . Action by John Craig against Maria Linden, sued as Maria Craig. On a reference the complaint was dismissed without costs, and from an order, recommitting to the referee his report, for the purpose of hearing argument of counsel on the question of costs,'plaintiff appeals. Reversed.

<p>Cancellation oe Contract—Fraud and Duress. In an action to set aside a note and mortgage on the ground of fraud and threats, the evidence showed that plaintiff, who was unable either to read or write, and who could but imperfectly speak English, was induced by defendants, acting for a bank, to execute a note and mortgage, which papers were neither read nor explained to her, on the assurance that it was necessary for her to sign them to prevent her son-in-law, who had forged notes on the bank, from going to prison, and the further representation that the papers were mere'“sham” papers, which would be returned to her in a few days. Held, that the court properly refused to dismiss the complaint Sistare v. Heck scher, (Sup.) 18 Ñ. Y. Supp. 475, followed.</p>

Action by Balthasar Runt against Frank 0. Herring and others to recover for personal injuries arising from defendants’ negligence. Judgment for defendants. Plaintiff appeals. Reversed.

<p>1. Evidence—Parol—Ambiguity in Written Instrument. Where a written instrument authorizes an agent to sell defendant’s land, “subject to mortgages aggregating $44,000,” “for the sum of $45,750, ” paroi evidence is admissible to explain any ambiguity as to the price, and to show that defendant’s intention was not to realize $45,750 cash, but that the total consideration was $45,750, $44,000 of which was in mortgages already on the property.</p> <p>2. Appeal prom Decision on Demurrer—Necessity op Written Findings. An appeal from a final judgment overruling a demurrer to the complaint will be dismissed where, so far as the appeal book shows, no decision in writing of the issues of law raised by the demurrer "has been filed, as required by Code Civil Proc. § 1010. Village of Palmyra v. Wynkoop, 6 N. Y. Supp. 62, 53 Hun, 82, followed.</p>

<p>1. Master and Servant—Action for Personal Injuries—Fellow Servant. In an action by an employe against his employer for personal injuries, caused by defendant’s negligence, it appeared that plaintiff was engaged in filling tubs with coal in the hold of a boat, which were hoisted by an engine in defendant's coal yard; that while being hoisted, one of the tubs suddenly fell, and injured plaintiff; that defendant had directed his engineer to “break in” his stableman sohe could run the engine; that the latter was running the engine under the immediate supervision of the engineer at the time of the-accident; and that the tub fell because of some wrong movement of a lever-on the engine. Held, that a motion to dismiss was properly overruled.</p> <p>t$. Same—Negligence of Employee. In such case it cannot be claimed that the injury was caused by a fellow servant, since defendant directed his engineer to “break in” his stableman, thus authorizing the latter to operate the engine.</p> <p>3. Same—Instructions. Where in such case the court instructed the jury that in order to find defendant negligent they must find that the engineer was careless, and that he was “at the time” acting for defendant, and the jury find for plaintiff, it is thereby determined by them that the act of the engineer in attempting to instruct the stableman at the time he did was not the independent act of the engineer, for which defendant would not be liable.</p> <p>■4. Same—Province of Jury. In such case the question of defendant’s negligence was properly submitted to the jury.</p>

Action by Mary Weiss, as administratrix of Henry Weiss, deceased, against Walter B. Tennant, treasurer of the Journeymen Stone Cutters’ Association, to recovér for the furneral expenses of the decedent. From a judgment for defendant, plaintiff appeals. Reversed.

Action by John Green against Lucius W. Young. Plaintiff recovered a judgment against defendant, and caused his arrest under an execution against the person. Having been discharged by direction of plaintiff, defendant now moves for an order to restrain plaintiff from issuing a second execution against the person. Motion granted.

<p>1. Sale—Rescission—Proof of Fraud. In an action to rescind a sale and to recover the goods on the ground that the sale was procured by means of a fraudulent statement, defendants claimed that the statement was not delivered to plaintiffs or intended for them as a basis of credit, and testified that the statement was delivered to the bank of which plaintiff B. was vice president, for the purpose of inducing the bank to discount certain notes for defendants. It also appeared that the statement was delivered to the bank on the day it discounted the notes, and was continually in its possession thereafter. Plaintiff B. testified that the statement was handed to him in his office after the notes were discounted by the bank, but on the same day, and was intended, not as a statement for the bank, but for his firm, and that subsequently he delivered the statement to the bank, which retained it until demanded by him prior to the commencement of this action. Reid, that a verdict sustaining plaintiff’s version of the transaction would not be disturbed.</p> <p>2. Same—Delivery of Goods. A portion of the goods was ordered before the statement was given, hut was not delivered until afterwards. The orders were not for goods existing in specie, but they were to be manufactured. Reid, that the extension of credit was not completed at the time of taking the orders, and hence if, in delivering the goods, reliance was placed on ¡£ fraudulent representation, the contract could be rescinded.</p> <p>3. Same—Contemporaneous Fraud. In order to prove contemporaneous fraud it need not be shown that representations on which others relied were made at the same time that plaintiffs were defrauded, but it is sufficient if the transactions of the others were contemporaneous with plaintiffs’, though the representations on which they re- «, lied were made several months before.</p> <p>4. Same—Instructions. ■ Defendant banks had obtained judgments against the purchaser, and had caused executions to be levied on the property in suit. In the action to avoid the sale of the goods by plaintiffs to defendants the court charged that “this action is virtually a contest between the plaintiffs and the two banks as to who should have the goods or their value. ” Reid, that this statement should not have been made, but that, when considered in the light of the clear and explicit charge as to the issue of fraud presented for the consideration of the jury, it could not have prejudiced defendants, and therefore the error was not fatal.</p>

Exceptions from circuit court, Kings county. Action by James McCaldin against William A. Parke and another to recover for injuries to plaintiff’s boat, caused by defendants’ negligence. There was a judgment for defendants, and plaintiff excepts. Reversed.

Petition by George H. Bush for a writ of peremptory mandamus against Henry E. McKenzie and others and Robert H. Fairbrother and others, composing the board of election inspectors of districts Hos. 1 and 2 of the town of Esopus, Ulster county, commanding said inspectors to reconvene and attach to their statement of canvass, or to the certified copies thereof, certain marked ballots, with the statement, as required by law, that the counting of said ballots was objected to.

Action by Austin P. Gibbins and Veronica P. Gibbins, his wife, against James P. Campbell, James L. Lowry, as sole acting executor of Austin Gibbins, deceased, and Mary E. Gibbins, for the cancellation of a mortgage. From an order denying a motion by said Lowry for permission to come in and serve an answer after the cause had been tried, he appeals. Affirmed.

<p>Appeal from special term, New York county.</p> <p>Action by the Metropolitan Savings Bank against the New York Elevated Railway Company and the Manhattan Railway Company. Plaintiff obtained judgment. Defendants appeal. Affirmed.</p>

Action by John Nelson against Laura Nelson and others for the partition of real property. From an order changing the place of trial, plaintiff appeals. Affirmed.

Action by Mary Montieth, as administratrix of Edward Montieth, deceased, against John Finkbeiner, to recover damages for the death of plaintiff’s intestate, her husband, caused by falling down a flight of stairs in a tenement owned by- defendant. On the trial a verdict for ,$2,000 was rendered for plaintiff, and from the judgment- entered thereon, and from an order denying a new trial, defendant appeals. Affirmed.

Action by Susie McGuinness against the town of Westchester for injuries caused by a defective street. From a verdict and judgment for plaintiff, and an order denying its motion for a new trial upon the minutes, defendant appeals. Affirmed.

Action by Adolfo Hegewisch, as receiver of the property of the United States Rolling Stock Company, against John S. Silver, upon a note indorsed by defendant. At the trial the complaint was dismissed. From an order granting a new trial, on the minutes of the judge, defendant appeals. Reversed.

<p>Appeal from circuit court, Kings county.</p> <p>Action by Henry H. Snow against Joseph Pulitzer. From a judgment entered on a verdict of the jury in favor of plaintiff, defendant appeals. Affirmed.</p>

<p>1. Appeal—Rulings on Evidence—Harmless Error. The admission of evidence, theretofore excluded, cures whatever error there may have been in the former ruling.</p> <p>2. Trial—Limiting Number op Witnesses. A court has power to limit the number of witnesses each party may examine as to any question of opinion.</p>

Certiorari by the people, on the relation of William A. Toohey and another, against Stephen I. Webb and others, constituting the board of supervisors of the county of Orange, commanding them to certify and return certain proceedings had before them. From an order made at special term, denying relators’ motion for further and more specific return, they appeal, both parties submitting the certiorari and return to be decided on the merits. Order affirmed. Writ dismissed.

<p>-Arrest in Civil Action—Election or Remedies. Where a party is sued in the courts of another state for a debt fraudulently contracted, and an attachment procured by plaintiffs is vacated, and judgment for plaintiffs is taken on the contract for goods sold, no order of arrest can be granted in an action on the original fraud in New York; since after judgment such order is only allowable when the original cause of action was such as to authorize the order, and the second action is brought on the foreign judgment, and since plaintiffs, having elected to take judgment on the contract, are not at liberty to make an arrest on it, or on the fraud which entered into the contract.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Elizabeth Alsop against the Southold Savings Bank and Mary J. Parr, administratrix. Judgment for plaintiff. Defendants appeal. Reversed.</p>

Action by George W. Martin and others against Samuel 0. Freed. Defendant was arrested for procuring goods by fraudulently representing his ability to pay therefor. From an order denying a motion to vacate the order of arrest, he appeals. Affirmed. Defendant was a resident of Lynnfield, Pa.,'and was president and business manager of the Arctic King Refrigerator Company, at Royesford, that state.

<p>Exceptions from circuit court, Kings county.</p> <p>Action by John McDonough against Peter H. Walsh for personal injuries. At the close of plaintiff’s case, defendant moved for a nonsuit, which was granted, and plaintiff excepted. The cause comes before the-general term on an order directing that the exceptions be heard there in the first instance. Exceptions overruled.</p> <p>Plaintiff was working for defendant in the hold of a steamship, aiding to unload a cargo of pig iron, which was being hoisted through the hatchways in buckets, by steam power. The duty of plaintiff was to. help fill the buckets and attach them to the fall, after which he gave the signal, and the steam power was applied on deck, and the bucket hoisted to a point above the combings of the top hatch. At this point a Burton fall was attached to the bucket, with the intention of pulling it - sideways, so as to swing it over the side of the ship and dump it on the dock. One bucket stopped just below the combings of the hatch, and there the-Burton fall was hooked to it. Power was then applied to both the main fall and the B.urton fall, but the power applied to the main fall failed to move it, and that applied to the Burton fall pulled sideways on the load, and, dashing the bucket against the side of the hatchway, overturned it, and spilled its contents through the hatch.way into the hold. Plaintiff was standing under the wings of the ship, about 12 feet from the hatchway, in the hold, and some pieces of the iron bounded from the casing of the shaft and struck him on the foot, necessitating the amputation of two of his toes.</p> <p>Plaintiff alleged in his complaint that the rope or main fall was not properly fastened to the hoisting machinery, but was left loose, so that it could not be-properly held in its place when the buckets were hoisted, and that a fellow servant, whose duty it was to attend the gangway and assist in discharging such buckets, was wholly incompetent for the performance of such work, all of which was well known to defendant.</p> <p>Plaintiff’s-evidence showed that he had worked as longshoreman for 12 years, and was fajniliar with the danger accompanying the loading and unloading of vessels: that six or seven buckets had been dumped into the hold on the same morning, and in the same way as the one which caused the injury; that the gangway man was competent, and that the method of hoisting the iron was the one-commonly used for such purposes.</p>

Action by Joseph Hubert against Sarah E. Bedell for personal injuries. Judgment for plaintiff. From an order denying a motion for a new trial, defendant appeals. Affirmed. ■ Plaintiff was invited into defendant’s yard by the manager of her premises to look at some grass he was to have for the cutting. He went through the front gate, and walked to and past the house into the back yard, where the grass was, and where defendant’s manager was waiting for him.

Exceptions from circuit court, Kings county. Action by Sumner A. Mason against Emma J. Mason, his wife, to recover damage for the conversion by her of his property. The complaint was dismissed, and plaintiff’s exceptions were directed to be heard at the general term in the first instance. Exceptions sustained.

Action by William N. Dickinson against James H. Hart to recover damages for an alleged breach of a contract by which defendant was to furnish plaintiff a show case and shelving to conduct a stationery business in defendant’s jewelry store, and receive as payment therefor a portion of the profits.

Action by John D. Ferguson against Thomas C. Arnow and others, to recover damages for false arrest and imprisonment, or for what is claimed was malicious prosecution. Defendants were the owners of certain land. The highway commissioners, by plaintiff and others, entered on defendants’ premises for the purpose of widening the street, claiming that the fence dividing defendants’ property from the street, as it then existed, was an encroachment upon the highway.

Action by Mary S. Martin and another, (executrices,) against George Hillen, for the conversion of bonds alleged to be the property of plaintiffs’ decedent. From a judgment for plaintiffs, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by William Sutton against the New York, Lake Erie & Western Railroad Company to recover damages for injuries sustained while repairing a car in defendant’s yard. From a judgment for plaintiff, defendant appeals. Affirmed.

Action by the W. J. Johnston Company,,Limited, against Walter T. Hunt and the Electric Age Publishing Company to restrain defendant Hunt from continuing in the service of the publishing company as an advertising solicitor. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

- Action by James Talcott against the Wabash Railroad Co. for the de-struction of baggage. From a judgment entered on a verdict directed by the court in plaintiff’s favor, and from an order denying its motion -for a new trial, defendant appeals'. Reversed.

Action by George V. Brower, as receiver of the Ridgewood Ice Company, against William A. Husted and Brooklyn Trust Company, as trustee for the holders of certain bonds, impleaded with Joseph D. Baucus and Alfred J. Voyer, and Ridgewood Ice Company and James R. Downer, as trustee for certain creditors, to set aside three mortgages made by the Ridgewood Ice Company,—one to the Brooklyn Trust Company, for $140,000, to secure a series of 140 bonds of $1,000 each; one to William…

<p>Appeal from circuit court, Rockland county.</p> <p>Action by Owen Feeney against the Minisceongo Towing Company. From a judgment dismissing plaintiff’s complaint, plaintiff appeals. Reversed.</p>

Action by Cornelius McLean against George H. McLean and others for the partition of real property. From a judgment for defendants, plaintiff appeals. Affirmed.

• • Action by the village of Jamaica against the Long Island Railroad Company. From an order at special term, denying plaintiff’s motion for an order requiring defendant to make Brenton avenue a new public highway across defendant’s track at grade, and for an injunction to prevent defendant from taking said highway across its track by means of a bridge, plaintiff appeals. Affirmed.

<p>Appeal from special term, Kings county.</p> <p>Action for divorce by Edward Everett' against Georgie Lillian Morrison, sometimes called Georgie Lillian-Everett. A. decree-of divorce was-granted by default, and defendant moved' to open the decree, and from, an order opening the decree, plaintiff appeals. Reversed.</p>

Proceeding by Mary S. Van Slooten against Charles H. Wheeler, as executor of the will of Harry E. Dodge, to establish against testator’s estate a claim of $20,000. Claim disallowed, and claimant appeals. Reversed. For decision on former appeal, see 15 N. Y. Supp. 591.

Proceeding by Mary Van Slooten against Charles H. Wheeler to establish against testator’s estate a claim for a diamond ring. Claim disallowed, and claimant appeals. Reversed. For decision on former appeal, see 15 N. Y. Supp. 591.

Action on notes by Louise Meise against John H. Doscher and John Doe. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal. Reversed.

<p>Appeal from judgment on report of a referee..</p> <p>Action by Horace J. Allen against George C. Clark. From a judgment entered for plaintiff on the report of a referee, defendant appeals. Affirmed.</p>

Action by the Dueber Watch-Case Manufacturing Company against James H. Noyes and others to recover $500,000 damages for causing a boycott of the goods manufactured by plaintiff. Defendant Keystone Watch-Case Company moves for a bill of particulars. Motion granted in part. For decision on appeal by defendant Keystone Watch-Case Manufacturing Company from so much of the order as denied the motion, see 21 N. Y. Supp. 342.

Action by the Dueber Watch-Case Manufacturing Company against the Keystone Watch-Case Company and others for damages for an alleged boycott and conspiracy. Defendant Keystone Watch-Case Company moved for a bill of particulars, and its motion was granted in part and denied in part. - From so much of the order as denied the motion said defendant appeals. Affirmed. For decision at special term, see 21 N. Y. Supp. 311.

Application by Richard Dixon and Matilda Lamb Dixon for final judicial settlement of their accounts as executors, etc., of Thomas Lamb, deceased, and for. leave to resign and be discharged as trustees under the will. From a decree of the surrogate charging the executors with the expense of negotiating a bond and mortgage and of a special accounting, they appeal. Affirmed. For decision admitting will to.probate, see 5 N. Y. Supp. 565.

<p>Adverse Possession—Color op Title. ■ Plaintiff and his grantors occupied the premises in question continuously since 1862, under operative conveyances; the several owners having erected buildings and other improvements under claim of title. The records show a deed conveying the premises to one G. in 1854, who died leaving no infant heirs. Held, that plaintiff's title is good, under Code Civil Proe. § 369, providing that adverse possession for 20 years, under claim of title founded on a written instrument, gives good title.</p>

Ejectment by Henry Helmke against the New Jersey & New York,, Railroad Company for a strip of land through plaintiff’s tract used by defendant as a right of way, and which was the subject of an agreement to convey, executed by plaintiff to defendant’s predecessor in, interest, the Hackensack & New York Extension Railroad Company.

Ejectment by Dennis Moxley against the New Jersey & New York Railroad Company for a strip of land through plaintiff’s tract, used by •defendant as a right of way, and which was the subject of an agreement to convey, executed by plaintiff’s predecessor, one James Westervelt, to defendant’s predecessor in interest, the Hackensack & New York Extension Railroad Company.

Action by Mary Clemans against Supreme Assembly Royal Society of Good Fellows to recover on a life insurance policy taken out by Patrick . Durnan in defendant’s society. There was a judgment for plaintiff, and an order denying a new trial, and defendant appeals. Affirmed. For former reports, see 16 N. Y. Supp. 378, reversed by 30 N. E.. Rep. 496.

Action by John T. Barnard, as temporary administrator of Ann E. Crouse, against John F. Gantz, Susan E. Hall, individually, and'as executrix and trustee of the last will and testament of Washington A. Hall, deceased, William H. Clark, as trustee under the last will and testament of Washington A. Hall, deceased, Clinton W. Starkey, Joseph W. Gantz, and George H. Gantz.

Proceeding for probate of the will of Henry Gagan, deceased. From the decree of the surrogate admitting the will, Henry Gagan, Jr., ana other heirs appeal. Affirmed. The will is dated January 25. 1892. One of the witnesses to its execution, Howard Thornton, is an attorney at law, and he prepared the will. He is also named as one of the executors. The testator died February 21, 1892, and proceedings for the probate of the will were commenced April 14, 1892.

Petition for the removal from office of Esek C.- Carpenter, a justice -of the peace of the town of Highland, Orange county. Petition -granted.

<p>1. Accident at Railroad Crossing—Care of Plaintiff. In an action for injuries sustained at defendant railroad company’s crossing, it appeared that when plaintiff approached the track, a train passed, and plaintiff sat in the wagon, facing the track. After it had passed, plaintiff attempted to cross the track, and was struck by another train. The flagman at the crossing testified that the train by which plaintiff was injured was 90 feet from the crossing when hesawit, and another witness, who heard the bell ringing-on the engine, testified that the train was 100 feet from the crossing when the bell was rung. Held, that the jury could infer that plaintiff took the proper precautions to look and listen before attempting to cross the track.</p> <p>3. Same—Photograph in Evidence. Defendant cannot object to the admission of a photograph of the crossing in evidence on the. ground that the jury were enabled thereby to learn that since the accident in question defendant had erected gates at the crossing.</p>

Orange county. Action by Annie J. Parshall against the New York, Lake Erie & Western Railroad Company to recover damages.for the death of plaintiff's intestate, her husband, alleged to have been caused by the negligence of defendant. On the trial a verdict for $5,000 was rendered in favor of plaintiff, and from the judgment entered thereon defendant appeals. Affirmed,

Action by Erwin Strickland against Richard L. Leggett. From a judgment in favor of plaintiff, entered on a verdict directed at circuit, and from an order denying defendant’s motion for a new trial, defendant appeals. Affirmed.

Action by William H. Haskell against John A. Queen and others for the partition of real estate. From a judgment entered on dismissal of the complaint, plaintiff appeals. Affirmed.

Action by Martin R. Cook and Jacques A. Bernheimer against George Berrott and Benjamin Schuster for a debt originally owing to plaintiffs from one George Berliner, and alleged to have been assumed by defendants. From a judgment entered on a verdict directed in plaintiffs’ favor, defendants appeal. Affirmed. The action is founded on a written instrument entered into between George Berliner and defendants.

Action by James R. Hay against Thomas C. Platt, as president of the United States Express Company, to recover a broker’s commission on the sale of certain property belonging to defendant. From a judgment for plaintiff, defendant appeals. Reversed.

<p>Lease—Bawdyhouse—Evidence. In an action for rent reserved in a lease, the evidence showed that before and since the execution of the lease the premises were occupied as a house of: ill fame by persons who were not parties to the lease; that the lessor knew that fact, "and collected his rent from them. Before executing the lease, the lessor had agreed to give a lease to the persons in possession. Seld, that the evidence justified the finding that the lease was made with the intent that the premises should be used for purposes of prostitution. Van Brunt, P. J., dissenting.</p>

Action by Catherine O’Callaghan against John J. Barrett and Thomas O’Callaghan, Jr., to foreclose a mortgage. Plaintiff obtained judgment. Defendants appeal. Affirmed.

■ Action by Herman Gernau, as administrator of Edward Gernau, deceased, against the Oceanic Steam Navigation Company, for damages for causing the death of said Edward Gernau. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Action by the people of the State of New York against the New York City Central Underground Railway Company and others for a judgment dissaving defendant corporation. From an interlocutory judgment sustaining defendants’ demurrers to the complaint, the people appeal. Reversed. For former reports, see 15 N. Y. Supp. 225, 245.

Action by James Dougherty against Leander Stone for work and materials expended on a house of Louis M. Mowbray, on defendant’s paroi promise to pay therefor. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Reversed.

Action by Lillian M. Smith against Charles Lawrence, Sarah J. Smith, and others for partition. An interlocutory judgment was rendered, adjudging the title to be as claimed by plaintiff. Defendant Sarah J. Smith then moved for a new trial at general term. Judgment affirmed'.

<p>Criminal Law—Preliminary Hearing—Private Counsel. Code Crim. Proc. § 203, allows a magistrate to exclude from preliminary hearing every person except the clerk, “the prosecutor and his counsel,” attorney general, district attorney, defendant and his counsel, and the officer having defendant in charge. The duty of the district attorney, as defined in 1 Rev. St. p. 383, § 89, is to attend the courts of oyer and terminer and jail delivery and general sessions, “and to conduct all prosecutions for crime * "x" * in such courts. ” His assistants may also, under Laws 1872, c. 587, § 2, attend all criminal courts, and assist in conducting prosecutions therein. Held, that the district attorney was not bound to attend preliminary hearings, and that in his absence, or that of his assistants, private counsel might appear for the prosecutor.</p>

Exceptions from circuit court, New York county. Action by Angel K. Jorgensen against Flavius S. Squires, Herbert W. Squires, and the mitiisters, elders, and deacons of the Reformed Protestant Low Dutch Church of Harlem, in the Ninth ward of the city of New York, to recover damages for personal injuries sustained by falling into a cellar or vault under the sidewalk in front of defendants’ premises, in which there was a verdict for plaintiff.

<p>1. Lateral Support—Protection op "Wall—Bight op Leaseholder. The owner of a leasehold has such an interest in the premises as entitles, him to maintain an action for damages against one violating Laws 1882, c. 410. (Consolidation Act,) § 474, which provides that any person excavating to a depth of more than 10 feet shall protect his neighbor's wall.</p> <p>2. Same—License to Support Wall. Under Laws 1882, c. 410, (Consolidation Act,) § 474, providing that, where an excavation on any land is to be made to the depth óf more than 10 feet below the curb, and'there shall be any wall on adjoining land and standing near the boundary, the person making such excavation, “if afforded the necessary license to enter on the adjoining land, and not otherwise, ” shall preserve such wall from injury, the adjoining owner is only required to grant such license to enter his premises when requested.</p> <p>8. Same—Action por Damages—Instruction. In an action for damages resulting from a violation of such section the court properly refused to instruct that, “if there were any defects in plaintiff's building before defendant began to build, and that while defendant was endeavoring to support this building these defects became enlarged, and defendant was not guilty of negligence, plaintiff cannot recover.”</p>

<p>Appeal from court of general sessions, New York county.</p> <p>Herman W. Miller was convicted of an assault, and appeals. Affirmed.</p>

<p>1. Specific Performance—Purchase of Chose in Action. A contract for the purchase of a mortgage will not be specifically enforced where it is not shown that the claim is doubtful, the debtor irresponsible, or the mortgage security insufficient.</p> <p>2. Equity Practice—Retaining Case for Legal Relief. Where a plaintiff, suing for specific performance, fails to make out a case entitling him to equitable relief, he has no right to have the case tried as an action at law for damages, especially where, before the trial, the defendant’s motion for a jury trial has been refused.</p>

<p>1. Sale—Wabbanty. Defendant brokers agreed to sell plaintiffs Panama hides from the Newport, at pier 43. In an action to recover damages for defects in the hides, there was no evidence that the hides delivered were not Panama hides from the ship and pier called for, or that defendants were guilty of any fraud, but it was alleged that the hides could not be converted into merchantable leather, for which purpose they were purchased, on account of hidden defects, which could only be discovered on subjecting them to the tanning process. Held, that plaintiffs could not recover.</p> <p>2. Same—Evidence—Pleading. An expert could not testify that the word “hides” was used in the_contract with a more restricted meaning than the word “skins, ” it being admitted that the articles delivered under the contract were skins, and no custom or usage having been pleaded in the complaint.</p>

<p>Appeal from special term, New York county.</p> <p>Action by the National Broadway Bank of the city of New York against Henry F. Hitch, impleaded, etc., to recover on a partnership promissory note. Judgment was entered against defendant’s partners, and, from the order vacating such judgment, defendant appeals. Reversed.</p> <p>For former report, see 13 N. Y. Supp. 526.</p>

<p>1. Pleading—Demurrer—Misjoinder of Defendants. The demurrer of , a codefendant, on the ground that¡ as to him, the complaint does not state a cause of action, should be overruled as frivolous. Barnes v. Blake, 13 N. V. Supp. 77, 59 Hun, 371.</p> <p>i. Same—Insufficient Answer—Motion to Strike out. In an action for the partition of land, where husbands of certain tenants in common are made defendants, their answers setting up a misjoinder of parties as tv them, and the pendency of a prior action for partition including the same parties with the exception of themselves, cannot be stricken.out as frivolous.</p>

Action by John I. Goodrich against John Gillies and the mayor, etc., of the city of New York, to foreclose an alleged lien upon moneys in the hands of the comptroller of the city of New York, due from said city to the defendant Gillies, upon a contract between him and the city to build a pier and bulkhead at the foot of Rivington street, East river.

Action by Joseph Benjamin Dimmick, trustee of the last will of Joseph Benjamin, deceased, against C. Godfrey Patterson and others for the construction of the will of said Joseph Benjamin, deceased. From the judgment of the special term, defendant Patterson alone appeals. Affirmed. .Defendant C. Godfrey Patterson claims an interest in the estate by virtue of an assignment from Joseph R. Benjamin, a son of the testator, of a portion of the estate vested in him by the will.

Action by Ernest De Bavier, Oscar R. Meyer, and Ernst Grund against Hugo Funke. From a judgment for plaintiffs; entered on a verdict, and from an order denying a motion for a new trial, defendant appeals. Affirmed. Plaintiffs’ Exhibits A, B, C, D, E, F, G, and H, referred to in the opinion, are as follows: “Exhibit A. “Dated College Point, L. I.,-July 25, 1888. “To Bavier, Meyer & Co., 482 Broome: Will take fifteen bales October, December, four twenty-five.

Action by Edwin W. Butler against Garrett D. Clark, individually, and as administrator, etc., of Sarah Clark, deceased, Edwin Clark, Jessie Fremont Clark, and James A. Flack, as sheriff of the city and county of New York, for the reformation of a sheriff’s deed executed by Hugh J. Grant, and for other relief. From a judgment in plaintiff’s favor, defendants appeal. Affirmed.

Action by Charles M. Washburn against George F. Corlis for conversion of horses sold by defendant to plaintiff. There was a verdict in plaintiff’s favor, and defendant appeals. Reversed.

Aption by William B. Millard and others against Francis H. Adams- and William Kirkland, in which plaintiffs sought to charge defendant Adams as a partner with her codefendant. The complaint was dismissed at the close of plaintiffs’ case, and plaintiffs appeal. Reversed..

<p>Conspiracy—Evidence to Negative. In an action against a constable and an attaching creditor for conspiracy to ruin plaintiff’s business by seizing and selling his property under the attachment, it is error to exclude evidence that plaintiff suffered judgment by default in the action wherein the attachment was granted, and that the property was sold under that judgment, as such evidence tends to negative the-conspiracy.</p>

<p>Master and Servant—Instructing Servant as to Dangerous Work. A 15-year old girl was employed in defendants’ laundry to feed an ironing machine run by steam, which consisted of a system of small rollers covered with muslin coming in contact with a large, heated, iron cylinder. After be- ' ing thus engaged for two weeks, she was instructed by defendants’ foreman to smooth out the wrinkles in thp muslin-covered rollers, and he showed her how, by pressing his finger over a roller while ih motion at its ordinary speed. Held, that defendants were liable for an injury to the girl’s hand, which stuck to the roller, owing to a combination of starch, heat, and dampness, and which was drawn in upon the hot cylinder, as it was the foreman’s duty to warn the girl against the danger.</p>

■ Action by James F. Mulvaney against the Brooklyn City Railroad Company for personal injuries, sustained while in its employ. From a judgment entered on a verdict in plaintiff’s favor, and from an order denying its motion for a new trial, defendant appeals. Affirmed.

Action by James B., Guild against John Huwer on a contract for the sale and delivery of certain goods to plaintiff. From a judgment for plaintiff, defendant appeals. Affirmed.

Action by Daniel W. Moore against the New York Central & Hudson River Railroad Company for personal injuries, resulting from defendant’s negligence. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for new trial, defendant appeals. Affirmed.

Action by Theodore W. McKnight, a real-estate broker, against Reuel H. Thayer, to recover commissions for the sale of land. There was a verdict for plaintiff, and defendant moves for a new trial. Denied.

Action by Bridget Keenan, as administratrix, and Willard W. Saperstone, as administrator, of John Keenan, deceased, against the New York, Lake Erie & Western Railroad Company, for personal injuries resulting in the death of decedent. From a judgment entered on a verdict for plaintiffs, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Action by Andrew J. Toomey against the Delaware, Lackawanna & Western Railroad Company to recover damages for causing plaintiff’s ■arrest, on the ground that he was attempting to ride on defendant’s road without paying his fare. From an order denying his motion for a new trial, and from a judgment entered on a verdict in his favor for ■nominal damages, plaintiff appeals. Affirmed.

Action by A. Irving Griggs against Sarah R. Guinn for an injunction. A temporary injunction having been granted and afterwards dissolved, defendant procured the appointment of a referee to determine her damages, and motion is now made to confirm his report. Report modified.

Action by Alexander 0. Lassen against Albert Aronson, president of the New York Concert Company, a stock corporation, for the penalty prescribed by Laws 1890, c. 564, § 29, which requires a stock corporation to keep certain books open for the inspection of stockholders and creditors, and provides that any officer or agent who shall neglect or refuse to exhibit the same, or to allow them to be inspected, shall forfeit to the party injured a penalty of $50 for every such…

Action by William H. Camp against Nicholas Mehrhoff and others. From a judgment in favor of plaintiff, entered on the report of a referee, three of the defendants, James J. Treanor, Frank P. Treanor, and the Yale Safe & Iron Company, appeal. Affirmed.

Action by Frank Goff, by guardian, etc., against Frederick Akers for personal injuries caused by the negligence of defendant’s driver in backing a truck across a sidewalk along which plaintiff was passing. From a judgment entered on a verdict in plaintiff’s favor, and from an order denying a new trial, defendant appeals. Affirmed.

Action by Louise Volker against the Metropolitan Life Insurance Company on two policies of insurance on the life of plaintiff’s husband. From a judgment in plaintiff’s favor, defendant appeals. Reversed.

<p>1. Tort of Servant—Liability of Master—Punitive Damages. For the willful tort of. a servant a master is not answerable in punitive ■ damages, unless he authorize or ratify the tort, or be guilty of misconduct in the employment or retention of the servant.</p> <p>2. Same—Intent of Wrongdoer. Punitive damages, being imposed as a punishment for the willful or reckless misconduct of a wrongdoer, cannot be inflicted regardless of his intent, whether good or bad.</p> <p>8. Same—Assault by Servant of Corporation. It is error, therefore, to charge that a corporation master is responsible in, punitive damages for an inexcusable assault and battery by its servant, when the evidence authorizes the inference that the servant acted from an innocent motive, and in the supposed discharge of his duty.</p> <p>4 Instructions—Qualifying Legal Proposition. When a proposition of law is true only with a qualification or limitation, it is error to charge it absolutely and unconditionally, if the evidence calls for the application of the qualification or limitation.</p> <p>5. Tort op Servant—Ratification by Master. It is error, therefore, to charge that a corporation master is liable in punitive damages for the willful tort of its servant, in the absence of evidence that the ■ master authorized or ratified the tort, or was guilty of misconduct in the employment or retention of the servant.</p> <p>6. Same —Retaining Servant. The mere retention of a servant after his willful tort, without proof of • knowledge of the tortious quality of the act on the part of the master, is insufficient to authorize an inference of a ratification of the tort.</p> <p>7. Same. A carrier corporation is not liable in punitive damages for an assault and ■ battery by its servants on a passenger, unless the corporation authorize or ■ ratify the tort, or wrongfully employ or retain the servant.</p> <p>8. Instructions—Weight of'Evidence. When the evidence as to a fact is conflicting, it is error so to charge as to give the jury to understand that they may find the fact on the testimony of -' the plaintiff's witnesses alone.</p> <p>(Syllabus by the Court.)</p>

<p>1. Pleading—Yariance—Sale and Delivery of Goods. Under a complaint alleging the sale and delivery of goods, when the allegation is explicitly denied in the answer, it is error to admit evidence of work and labor done in producing the articles alleged to have been sold.</p> <p>'3. Same—Statute of Frauds—Instructions. In such case it is error to instruct the jury that, “if the goods were not in existence at the time of the purchase, but had to be manufactured, then this case does not come within the statute of frauds. ”</p> <p>$. Same—Objections to Evidence—Sufficiency. Where, in such case, defendant objects to evidence in support of an action for work and labor, on the grounds that “it is irrelevant, incompetent, and immaterial, ” and that “the action is brought for goods sold and delivered, and proof of manufacturing is improper, ” and at the conclusion of plaintiff’s case moves for a dismissal on the ground that there is no proof of delivery sufficient to satisfy the requirements of the statute of frauds, the objections are sufficient to present the question of the admissibility of the evidence, though a “variance ” between the pleadings and proof is not claimed in terms.</p> <p>4. Same—Issue not Raised by Pleadings—Objection on Appeal. Where the answer in an action for goods sold and delivered is a specific denial only, but on the trial plaintiff treats the issue of the statute of frauds as in litigation, and asks the court to give an instruction thereon, he cannot claim on appeal that it was not in the case.</p> <p>5. Same—Statute of Frauds. In an action for the sale and delivery of “fifty gross needlebooks, ” it appeared that the needles, and the envelopes in which they were to be delivered, were in stock at plaintiff’s store at the time of the alleged order therefor, and that nothing remained to be done but print on the envelopes the name and location of defendant’s business establishment. Held, that the contract of sale was within the statute of frauds.</p> <p>•6. Same—Acceptance of Goods—Evidence. In such case it appeared that defendant receipted for the case of needles as “in good order,” and said, “It is all right;” that the needles were not in fact delivered to defendant, but were left on the sidewalk; that he never saw them; that he refused to receive them, and returned them to plaintiff’s • place of business. Held, that the proof of acceptance was insufficient to authorize a submission of the issue to the jury.</p>

<p>Appeal from trial term.</p> <p>Action by the Bradley Fertilizer Company against the South Publishing Company for goods sold and delivered. There was a judgment in plaintiff’s favor, and defendant appeals. Affirmed.</p> <p>For former reports, see' 14 N. Y. Supp. 917, reversed by 17 N. Y. Supp. 587.</p>

<p>Action by William C. Allison against Harvey N. Loomis and others.</p>

<p>Action by Flora M. Cronk against Asel Wilcox.</p>

<p>Action by James J. Dunham against Ezra P. Allen.</p>

<p>Action by Duane Pickert against Richard D. Bunkey.</p>

<p>Action by Isaac Altman and another, administrators, etc., against Gabriel Wile and others.</p>

<p>Action by John Hyatt against the New York, Lake Erie & Western Railroad Company.</p>

<p>Action by Betsey Whitman, as administratrix, etc., against Matthew T. Foley and others.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by Jacob Schmidberger against John Bloner and George Bloner. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.</p>

At chambers. Action by Alice N. Burt and others against the Lima & Honeoye Falls Railroad Company to enjoin defendant from constructing its road along a highway. Defendant moves to dissolve an injunction granted at chambers. Motion denied.'

Action by James R. Wright against Guillaume A. Reusens and others to foreclose a mechanic’s lien. From an order awarding Silas J. Owens, plaintitf’s attorney, for his services, a lien on the fund arising from the foreclosure, Frank Dane and others, mechanics and material men, who had also been made defendants, appeal. Reversed. For former reports, see 15 N. Y. Supp. 504, 590.

Action by Ruth A. Johnstone against Eugene F. O’Conner to have it adjudged that defendant bought certain land as trustee, and for an accounting. From an order overruling his demurrer to the complaint, defendant appeals. Affirmed.

Action by Abbot L. Dow, as trustee under the last will and testament of Cornelia L. Dow, deceased, against Margaret H. Dow, Cornelia H. Dow, and Caroline Dow, brought in 1876, to obtain an annual allowance from the income of the estate for the support of the defendants, infants. In 1891 proceedings were had for the settlement of plaintiff’s accounts, and on appeal by plaintiff from the decree therein the same was reversed. 18 N. Y. Supp. 222.

<p>1. Eminent Domain—Pleading—Petition. In a petition by a railroad company to condemn land, the statement that the owner of the land demands an unreasonable price is a sufficient allegation that the parties have been unable to agree upon a price.</p> <p>2. Same—Condemnation by Railroad op Noncontiguous Property. -Laws 1881, c. 649, amending the general railroad act by limiting the right to condemn land for its earth and gravel to lands that are “ contiguous to such railroad, and reasonably accessible to the place where the same are to be used, ” does not limit the right of railroads to condemn land for other purposes.</p> <p>8. Constitutional Law—Impairment op Contract—Railroad Companies. The tunnel act of 1859 provided for the appointment of commissioners to make a contract with the Long Island Railroad Company for ceasing to use steam power on a certain avenue. Such a contract was made, and the company received the consideration therefor, which was raised by taxing the abutting property. Held, that said contract did not prevent the legislature from authorizing the company, by the act of April 28, 1876, c. 187, to resume the use of steam on said avenue.</p>

Action by John R. Drake against the New York Iron Mine, William L. Wetmore, and Mathew H. Maynard, as assignee in bankruptcy of said Wetmore. From an interlocutory judgment overruling plaintiff’s demurrer to the fourth defense in the several answers of Wetmore and Maynard, plaintiff appeals. Affirmed. The fourth, defense referred to is as follows, being the same in both the several answers: “First.

Action by Felix Campbell against Olivia B. P. Stokes and Caroline P. Stokes to recover the balance due on contract of sale. From a judgment for the defendants on a demurrer to the counterclaim in the answer, plaintiff appeals. Affirmed.

Action by Lorenz Reich against the Colwell Lead Company to recover damages for a breach of contract. From a judgment for plaintiff, entered upon report of referee, defendant appeals. Reversed.

Action by Leon Blum, Hyam Blum, and Sylvain Blum, comprising the firm of Leon & H. Blum, against Herman Munzesheimer for goods sold and delivered. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiffs appeal. Reversed.

Action by Emilie Riendeau against Henry A. Vieu as executor of Andrew Leonard, otherwise known .as Eustache Riendeau, deceased. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Action by Charles W. Buchholz against the New York, Lake Erie & Western Railroad Company for a mandatory injunction to compel defendant to restore a grade street crossing, and to recover damages alleged to have been sustained by the discontinuance of such crossing. From a judgment for defendant, plaintiff appeals. Affirmed.

Action by Benjamin B. Strong, against Gerardus. R. Sheffield and: Louisa, A. Sheffield; From a judgment for plaintiff entered, on a. verdict and an order denying a' motion for. a new trial on the minutes; defendant Louisa A. Sheffield appeals. Reversed.

Action by Jirah I. Foote and Mary E. Bradford, as executor and executrix of and trustees under the last will and testament of Horatio N. Otis, deceased, and also as testamentary guardians of Lucy F. Otis, (now Lucy F. Bruggerhof,) and also as testamentary guardians of Bessie M. Otis, (now Bessie M. Covell,) and also as testamentary guardians oi Ray F. Otis, against Lucy F. Bruggerhof, Lucy F. Bruggerhof as administratrix of the goods, chattels, and credits of Bradford Otis,…

Proceedings by the district attorney of the county of New York, prosecuted for the collection of collateral inheritance taxes on certain bequests made by Catharine L. Wolfe, deceased, to the Metropolitan Museum of Art, in the city of New York, and the Rectors, Warden, and Vestrymen of Grace Church, in said city. From an order of the surrogate’s court confirming an assessment of the tax on such bequests (15 N. Y. Supp. 539) said museum and said church appeal. Affirmed.

Proceedings b)r the district attorney of the county of New York, prosecuted for the collection of collateral inheritance taxes on certain bequests made by Catharine L. Wolfe, deceased, to the Metropolitan Museum of Art, in the city of New York, and the Rectors, Wardens, and Vestrymen of Grace Church, in said city.

, • Action by Franklin D. Locke and others, as executors of the last will and testament of Jonathan Scoville, against the Farmers’ Loan & Trust Company and another, as trustees, and others, to determine the validity of a certain trust attempted to be created by the testator, by an-instrument in form a declaration of trust, and as to the effect and validity of the will of the testator in relation to such attempted trust, and property affected thereby.

Action by Henry W. Gray against George T. Green for a final adjustment and accounting of partnership affairs, and for a judicial dissolution. From a judgment in favor of plaintiff, defendant appeals. Affirmed. For former reports, see 26 N. B. Rep. 253, and 6 N. Y. Supp. 451.

<p>1. Temporary Receiver of Foreign Corporation—Appointment. A motion to vacate an order appointing a temporary receiver of a foreign corporation on the ground that no valid service had been made on the corporation, and that the court was without jurisdiction, will be denied where it appears that no officer of the corporation was within the state, and that the corporation had failed to designate a person on whom service might be made, as authorized by Code Civil Proc. § 432, subd. 2, and the affidavit of service shows the motion papers to have been served, as provided by subdivision 3 of the above section, on the corporation’s managing agent, naming him as such; and it is not necessary for affiant to state how he knows such person to be the managing agent. 20 N.„ Y. Supp. 275, affirmed.</p> <p>3. Same. Failure of the affidavit of service to show that the person served is the managing agent of the corporation does not affect the jurisdiction of the court to appoint the receiver, and such defect in the affidavit of service is cured where the affidavits used to resist a motion to vacate the appointment of the receiver clearly show the person served to have been in fact the managing agent.</p>

Action by the People’s Bank of Bast Orange against Charles H. Fancher, as assignee, the Irving National Bank, Charles F. Ma-ttlage, •Charles Burkhalter, and John H. Burkhalter, to declare void an ássignment to defendant Fancher for benefit of creditors, on the ground of unlawful preferences. Also 17 like actions by the Pacific Bank of New York and other creditors against the same defendants. Plaintiffs moved for an injunction and the appointment of a receiver. Granted.

<p>Action by Luther S. Hildreth against Charles Burkhalter and others. Plaintiff moves for an injunction and receiver. Granted.</p>

Action by Nannie L. Vaughn against Mary M. Strong, administratrix. From a judgment for plaintiff, defendant appeals. Reversed. For decision on appeal from order allowing costs, see 21 N. Y. Supp. 154. For former reports, see 4 N. Y. Supp. 686, 689, 12 N. Y. Supp. 251.

Action by Jerry McCue against the National Starch Manufacturing Company to recover damages for injuries received while in defendant’s employ. From a judgment entered on a verdict for $3,000 in favor of plaintiff, defendant appeals. Affirmed.

Action by Warren S. Sillcocks against Peter W. Gallaudet, Henry Fitch, Jr., and C. Elliott Minor, assignee for the benefit of the creditors of Gallaudet & Fitch, to recover stock deposited by plaintiff with defendants Gallaudet & Fitch, and other stock purchased by said defendants for plaintiff. From the judgment entered on the report of a referee, both parties appeal. Reversed.

Action by the city of Philadelphia against the Postal Telegraph Cable Company and the Bankers’ & Merchants’ Telegraph Company to recover annual license fees imposed on each telegraph pole and mile of wire belonging to defendants within the limits of the city of Philadelphia. Judgment for plaintiff. Defendants appeal. Affirmed. 0

Action by the Pittsfield National Bank against William H. Bayne and others to set aside an assignment for the benefit of creditors. From an order adjudging defendant Tailer guilty of contempt, defendant appeals. Reversed. For former reports, see 14 N. Y. Supp. 557; 19 N. Y. Supp. 937.

<p>1. Partition under Will—Agreement by Devisees—Construction. Testator’s devisees, before apportioning his land under the will, which directed it to be divided in equal parts, and each part selected by lot, signed an agreement that whereas, on the part entitled “lot 2” there is a family burial ground, “whoever shall draw said lot of land, and shall hereafter sell that, the said burying ground shall be reserved in the deed to the purchaser” for the purpose of burying the dead. Held, that the title to the land embraced in the burying ground went with lot 2 to the devisee who took such lot.</p> <p>2. Reservation in Deed—Construction. Where such devisee subsequently conveyed lot 2 by particular description, the deed “saving, excepting, and reserving unto the heirs” of testator “and to their and each of their heirs * * * the family burying ground, ” describing the same, the fee of the burial ground passes to the grantee, subject to the easement created in favor of the heirs.</p>

Action by Julius F. Ohesebrough against Daniel D. Conover. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed. For decision on appeal from order denying a motion to set aside the verdict, see 21 N. Y. Supp. 568. For former reports, see 13 N. Y. Supp. 374; 18 N. Y. Supp. 934.

Action by Julius F. Chesebrough against Daniel D. Conover. From an order denying a motion to set aside a verdict in favor of plaintiff, defendant appeals. Affirmed. For decision on appeal from judgment and order denying a motion for a new trial, see 21 N. Y. Supp. 566.

Application by the Board of Rapid Transit Railroad Commissioners for the fixing of their compensation for laying out the proposed railway under Broadway and continuing streets. Compensation fixed at $5,000.

<p>Criminal Law—Appeal—Dismissal—Want oe Prosecution. Where a defendant, in default in a criminal case, in prosecuting an appeal, asks that the appeal be retained until the next term, stipulating that if he is not then ready it may be dismissed, an excuse at that time that he had been unable, with due diligence, to procure the stenographer’s notes in time to comply with the stipulation will not suffice to prevent a dismissal.</p>

. Application of Grove M. Harwood and Oliver P. Buel to require Isaac M. Taylor to pay to them the costs awarded to them in the action in the supreme court of George L.- Strong against Oscar H. La Grange, Grove M. Harwood, and Oliver P. Buel, impleaded with others.

Action by Beverhout Thompson against Annie Stanley, as administratrix of David A. Stanley, deceased, and the Harris & Deu Faucet Plug & Bung Company, to recover the proceeds of the property of the last-named defendant, alleged to have been converted by said- David A. ■Stanley while president of the corporation. A demurrer to the complaint by defendant Stanley was overruled, (20 N. Y. Supp. 317,) with leave to defendant to answer.

At chambers. Proceeding on the petition of Timothy F. Neville for an order to compel the bureau of vital statistics of a department of the city government of New York to permit petitioner to inspect the records •of deaths kept therein. Order granted. The petition for the order was as follows; “Your petitioner respectfully shows that he is a citizen and taxpayer of the city of New York. That he has also been for over twenty years a counselor of the supreme court.

Petition by James Matteson for leave to issue- execution on a judgment against the real property of Ira L. Gates, deceased. There was a decree entered March 9, 1892, directing the issue of such an execution, (18 N. Y. Supp. 873,) from which Hiram Putnam, the holder of a mortgage on the property, appeals. Affirmed.

Action by George F. Wellman against the Sun Printing & Publishing Association to recover damages for an alleged libel published by defendant. From an order of the special term sustaining a demurrer to the complaint, and a judgment thereon dismissing it, plaintiff appeals. Affirmed.

<p>1. Appeal—Judgments by Default. A judgment of the general term of the city court affirming a judgment by default is not re viewable by the court of common pleas.</p> <p>2. Same—Substantial Rights—Refusal to Open Default. An order of the general term of the city court which affirms an order refusing to open a default is not an order affecting a substantial right, so as to be appealable to the court of common pleas.</p> <p>3. Same—Discretionary Orders. Discretionary orders of the city court are not reviewable by the court of common pleas, except, perhaps, when they exhibit an abuse of discretion.</p> <p>(Syllabus by the Court.;</p>

<p>1. Sham Pleadings—Striking Out Denials—When Permitted. A denial of a material allegation of the complaint, whether general or specific, may not he stricken out as sham.</p> <p>2.. Same. An averment of lack of knowledge or information sufficient to form a belief as to such allegation, is such a denial as prevents striking out the answer as sham. 20 N. Y. Supp. 893, reversed.</p> <p>(Syllabus by the Court.)</p>

Action by Isaac Cohen against Mones Salet for the conversion of the proceeds of a quantity of clothing consigned to defendant for sale. Judgment for plaintiff, but, because of the inadequacy of the amount, heapVlpolQ Rp\TpVC!P/l

<p>1. Costs—Taxation by Clerk. Code Civil Proo. § 3251, providing that motion costs shall be a sum fixed by the court or judge, not exceeding $10, does not prevent the clerk from taxing usual costs on an appeal from an order made on a motion, which' are the same as motion costs, where the court has merely allowed costs, without specifying the amount.</p> <p>2. Same—Disbursements. The clerk may tax disbursements, also, though the allowance be only of costs, since, under Code Civil Proc. § 3256, disbursements follow the allowance of costs.</p> <p>3. Same. ' Although, under Code Civil Proc. § 3251, only disbursements for printing can be allowed on a motion, there is no such restriction on an appeal from an order.</p>

<p>Appeal from city court, general term.</p> <p>Action by George T. Meishlan against Adam J. Englehardt and William H. Markgraf. From a judgment of the general term of the city court (20 N. Y. Supp. 900) affirming a judgment on a verdict, and from an order affirming an order denying a new trial, defendants appeal. Affirmed.</p>

Action by Christian Hopf against the United States Baking Company. A verdict for plaintiff was set aside, and a new trial granted, and plaintiff now moves for leave to amend his complaint. Motion granted on conditions.

Application by Amelia E. Reynolds, under Laws 1890, c. 393, for the appointment of commissioners to appraise the damages to her property caused by the opening of Elmwood avenue, in the city of Buffalo. The city moves for a stay of the proceedings. Motion denied.

Application by Amelia E. .Reynolds for a writ of mandamus to compel the common council of the city of Buffalo to audit and adjust the damages to her property by the opening of Elmwood avenue. The damages were appraised by commissioners appointed under Laws 1890, c. 393, authorizing the city of Buffalo to audit and adjust relator’s claim, and their report was confirmed by the court. Afterwards, by Laws 1891, c. 42, the act of 1890 was repealed.

Action by Samuel Korminsky, Henry Korminsky, and Benjamin Korminsky against Jacob Korminsky to compel specific performance of an agreement to devise land. From a judgment in favor of plaintiffs, defendant appeals. Affirmed. . Abraham Korminsky, the father of the parties to this action, died in March, 3891, leaving, him surviving, as his heirs at law, the parties to this action and Rachel Lubin, Anna Baron, and Mary Harris.

Action by Joseph R. Brown and others against Fannie I. Helmuth for brokerage commissions. From a judgment entered on a verdict for-plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>Injunction—Contract—Public Policy. Injunction will lie to restrain the violation of a contract to manufacture for plaintiS. and for no one else, an article of furniture made according to a special and unique design furnished by the plaintiff, since such a contract is not against public policy, and there is no adequate remedy at law.</p>

Action by Louis P. De Bautte and others against Herman A. Curiel and others for money lent. From a judgment entered on a verdict of a. jury in favor of plaintiffs, and from an order denying a motion for a. new trial, defendants appeal. Affirmed.

<p>Pbactice—Inspection op Documents. In an action against three defendants upon a contract not alleged in the complaint to be in writing, one of the defendants filed an affidavit stating that the agreement was in writing, and was signed by his codefendants, hut not by himself. Held, that said defendant was not entitled to an order for the inspection of the contract, since no need for such inspection was shown.</p>

Action by Peter De Lacy against Alfred F. Walcott, the Rapid Transit & Bridge Construction Company, and others, to compel the delivery to plaintiff of $100,000 of the capital stock of said company, and the repayment of $9,500. A demurrer to the complaint, as not stating facts sufficient to constitute a cause of action, was overruled, and the defendants appeal. Reversed. For former report, see 13 N. Y. Supp. 800.

Action by Margaret Cotton against Christina Burkelman to enforce specific performance of a contract for the sale of land. From a judgment dismissing the complaint, with costs, plaintiff appeals. Reversed.

Certiorari by Michael Gf. Minchen against Charles F. MacLean and others, composing the board of police commissioners of New York city, to review their action in dismissing relator from the force. Judgment of police board affirmed. For former report, see 19 N. Y. Supp. 548.

Action by George H. Stonebridge, Jr., receiver-of the New York Book Company, against- George F. Perkins, and others, to set aside a transfer of personal property made by the book company to defendants, as in fraud of the company’s creditors. From an interlocutory judgment setting aside the conveyance and ordering an accounting, defendants appeal. Affirmed.

Action by William H. Scott, as executor, etc., against the Metropolitan Elevated Railway Company and others, for injury done to premises No. 36 Murray street by the maintenance and operation of defendants’ elevated railroad. From a judgment entered on a verdict inplaintiff’s favor, and from an order denying a motion for a new trial, defendants appeal. Affirmed.

■ Appeal from jury term. Action by Alpheus W. Montgomery against James M. Waterbury and another to recover the reasonable value of a license to use two patented processes for the manufacture of ropes. From a judgment entered on the verdict of a jury in plaintiff’s favor, and from an order denying defendants’ motion for a new trial, defendants appeal. Affirmed.

Action by Augustus C. Pohl against Charles E. Pontier and others. Plaintiff had judgment, from which, and an order denying a new trial, ■defendants appeal. Affirmed.

Action by Benjamin F. Gerding against John B. Haskin and Abraham-B. Tappen to recover brokerage. From a judgment for plaintiff, entered on a verdict, and from an order denying a motion for a new trial,, defendants appeal. Affirmed.

Action by Diederich H. Wersebe against the Broadway & Seventh Avenue Railroad Company. From a judgment entered on a verdict in plaintiff’s favor, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Exceptions from jury term. Action by Antonio Jaquinto, by his guardian, against the Broadway & Seventh Avenue Railroad Company, for personal injuries. Plaintiff moves for a new, trial, after the dismissal of his complaint by the trial term, where the trial judge ordered the exceptions to be heard in the-first instance at the general term. Exceptions overruled, and new trial denied.

Action by Ada Evoy against the Expressmen’s Aid Society to recover on a certificate of insurance issued to plaintiff’s husband. From ■an order amending the summons by inserting as defendants, in place of the Expressmen’s Aid Society, the names of the persons composing a voluntary association doing business under the name of the'“Express-men’s Aid Society,” defendant appeals. Affirmed.

■ Appeal from special term, New York county. Action by Reuben I. Radney against Garry M. Hutchinson for the recovery of money. Defendant moves for a change of venue. The motion was overruled, and defendant appeals. Reversed.

Lease submitted on agreed statement. Controversy between Sophia D. Taylor and the Empire State Savings Bank of Buffalo to determine the liability of the latter to pay certain deposits. The matter was submitted without action, under Code Civil Proc. § 1279.

<p>Release—Construction. Defendant was liable as surety on an indebtedness of the estate of hi a wife to plaintiff, which was evidenced by three notes. Defendant claimed that the notes had been released under an agreement by which the parties settled several notes in dispute; but this release contained the provision that it did not embrace the claim of plaintiff against defendant as executor of his deceased wife, or that against defendant as guarantor of such claim, and defendant admitted in his testimony that it was understood that the release should not include claims arising out of the estate of his wife. Held, that the evidence was sufficient that the notes were not settled by the release.</p>

Action by Caroline Eichberg and others against Daniel H. Wickham, and others to set aside a general assignment. Plaintiffs move to substitute a new receiver and referee in place of those appointed by the decree-in the action. Motion granted as to the receiver turd denied as to the referee.

<p>Appeal from special term, Monroe county.</p> <p>Action by Michael Doyle and another against John F. Unglish and another to recover for moneys loaned. From a judgment for defendants, plaintiffs appeal. Affirmed.</p>

Action by George Miller against the Rochester Vulcanite Paving Company. From a judgment of the county court affirming a judgment of the municipal court of Rochester entered for plaintiff, defendant appeals. A.ffirmed.

Action by Joseph Kress against the East Side Savings Bank for the recovery of money. From a judgment entered on the verdict for plaintiff in the county court, on appeal from the municipal court, and from an order of the county court denying a motion for a new trial on the minutes, defendant appeals. • Affirmed.

Action by Alice L. Monroe against George H. Monroe to set aside a decree of divorce. From an interlocutory judgment sustaining plaintiff’s demurrer, defendant appeals. Affirmed.

.Appeal from circuit court, Monroe county. Action by Ida C. Kurz against Henry Fish and another. .From ,a .judgment on a verdict'for plaintiff, defendant Fish appeals. Affirmed. For former report, see 11 N. Y. Supp. 209. •

Action by Jacob Koons and others against Andrew N. Martin. From •a judgment for plaintiff entered on the decision of the county judge sitting without a jury, defendant appeals. Reversed.

Mandamus on the relation of George A. Benton, district attorney of Monroe county, to compel the court of sessions of said county to impose sentence on one John Attridge, on his plea of guilty to an indictment for grand larceny in the second degree. From a final order directing the writ to issue, (19 N. Y. Supp. 508,) defendant appeals. Affirmed.

Action by William Selover against Absalom Lockwood and others. From an interlocutory judgment overruling, as frivolous, a demurrer to the complaint, and directing judgment to be entered for plaintiff, defendants appeal. Reversed.

Exceptions from circuit court, Genesee county. Action by John D. Forward against the Continental Insurance Company. Motion by defendant for a new trial on exceptions taken at atrial at circuit, at which a verdict was rendered for plaintiff for $1,950-on a policy of fire insurance issued by defendant to plaintiff in the sum. of $2,300. Motion denied.

<p>Corporation—Formation op New: Company—Right to Stock. An agreement made by several corporations provided for the formation of a new corporation, which was to have all the property of the old ones, and was to,pay for the same in stock, which was to be allotted to such corporations. Held that, as the old corporations were thus practically dissolved, the stockholders thereof might, notwithstanding the absence of any contract relation between them and the new corporation, move directly to compel delivery of the stock to them.</p>

<p>Appeal from special term, New York county.</p> <p>■ Action by the South Publishing Company against the Fire Association of Philadelphia. From an order setting aside the service of a summons, plaintiff appeals. Reversed.</p>

<p>Appeal from special term, New York county.</p> <p>Four actions, as follows: Helena Metzger against the Metropolitan Elevated Railway Company, Hannah E. Boardman against the Metropolitan Elevated Railway Company, Edmund J. Curry against the Metropolitan Elevated Railway Company, and Edmund J. Curry against the New York Elevated Railroad Company. From judgments for plaintiff in each case, entered on orders striking out the answers as frivolous, defendants appeal. Reversed.</p>

<p>Appeal from special term, New York county.</p> <p>Application for the discharge by writ of habeas corpus of Valentine Muller, imprisoned for civil contempt. From an order granting the discharge, Balthazar Schmidt appeals. Reversed.</p>

Action by Charles P. Hemenway and others against Morris F. Knudson and others. From an order settling interrogatories and cross interrogatories to be annexed to certain commissions, defendants appeal. RsvGrssd •

Action by Henry W. Peabody, .Charles D. Barry and Frederick W. Lincoln, Jr., against Emilio Cortada and Ramon Cortada, comprising the firm of Emilio Cortada & Co. From an order of compulsory reference at special term, on the ground that the action involves the examination of a long account, defendant appeals. Reversed. For former report, see 18 N. Y. Supp. 622.

Action by Orrin R. Adams against the New York, Lake Erie & Western Railroad Company. Plaintiff, having been nonsuited, moves for a new trial on a case and exceptions taken at the circuit, and ordered to-be heard at the general term in the first instance. Motion denied. Judgment for defendant.

Action for the recovery of money by Josephine Moschell against Francis Boor. There was a judgment for plaintiff, and an order appointing a receiver for defendant’s property, and from the order he appeals. Dismissed.

Action by Joseph Donnelly against John Donnelly and others to partition real estate! From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

- Action by C. Elliott Minor, as assignee for the benefit of the creditors of the firm of Gallaudet & Co., against Cornelia A. Beveridge, to recover for losses on the sale of stock. This is a motion for a new trial, on exceptions to the dismissal of the complaint, ordered to be heard in the first instance at the general term. Exceptions overruled, and judgment for defendant.

Action by Henry Hughes against the New York Elevated Railroad Company and the Manhattan Railway Company. From a judgment for plaintiff entered on decision of a' referee, defendants appeal. Affirmed.

Action by Lou M. Bronson against the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company to recover damages for injuries sustained through the alleged negligence of defendant. From a judgment entered on a verdict for $11,000 in favor of plaintiff, and from an order denying its motion for a new trial, defendant appeals. Affirméd on condition that plaintiff stipulates within 10 days to reduce the judgment to $5,000, otherwise reversed.

Action by Henry G. Keasbey and Richard V. Mattison, partners,, under the firm name of Keasbey & Mattison, to enjoin the Brooklyn, Chemical Works and others from preparing and selling any article in, imitation of plaintiff’s preparation by the name of “Bromo-Caffeine” or “Bromide-Caffeine.” From an order granting a perpetual injunction,, defendants appeal. Reversed. For appeal from order denying preliminary injunction, see 16 N. Y. Supp. 318.

Action by George P. U'pington against John Keenan for the recovery of money. There was a verdict for plaintiff. From an order denying a motion for a new trial on the ground df newly-discovered evidence, defendant appeals. Reversed.

Proceeding on relation of the United States Trust company of New York, as committee of the estate of Charles A. Langlois, a lunatic, against Edward P. Barker and others, commissioners of taxes, to review an assessment.

Action by the Kokomo Strawboard Company against Horace Inman and Harry A. Inman, in which plaintiff recovered judgment. Part of the judgment was paid, and execution was issued for the remainder, but for too small an amount, owing to the failure of a clerk in the office •of plaintiff’s attorney to include accrued interest. Plaintiffs thereupon moved for an order amending the execution so as to include interest, and directing return to the sheriff of the execution.

Replevin by La Societe Anonyme de 1’Union des. Papeteries against Samuel M. Marks and Jules Meyer. Defendants had judgment, from which, and an order denying a motion for a new trial, plaintiff appeals. Reversed.

<p>Appeal from special term, New York county.</p> <p>Action by Edward F. Beddall against the British & Foreign Marine Insurance Company, Limited. Defendant had judgment, and plaintiff appeals. * Affirmed.</p>

Action by Joseph Thomson, Peter M. Wilson, and Reuben W. Ross,, as executors of the last will and testament of Reuben Ross, late of the-cit)7 of New York, deceased, Charles É. Larned and Joseph Thomson, against Samuel E. Fairfield, Annie F. Darragh, Isabella F. Darragh,. Edward, A. Darragh, Eugene Fishel, as receiver of all the property of the said Annie F. Darragh, the Irving National Bank of the City of New York, and John R. Ferrier.

Action by Meyer Jonasson against Edward E. Eames and others, ■composing the firm of H. B. Claflin & Co., Albert Blumenthal and others, composing the firm of Blumenthal Bros. & Co., and Nora Boynton. From a judgment dismissing the complaint, plaintiff appeals. Affirmed. The action is in replevin, brought by the plaintiff to recover cloaks alleged in the complaint to be of the value of $4,700.

Action by Catherine A. Pope against Samuel A. Briggs, as assignee for benefit of creditors of Thomas J. Pope and James E. Pope, partners-in business under the firm name of Thomas J. Pope & Bro., and others, for an accounting by the assignee, and for payment of plaintiff’s proportionate share of the assigned estate. When the action was commenced the assignors, partners, were both living, and were made defendants.

Action by Mary Reid against the mayor, aldermen, and .commonalty of the city of New York, and the city of Brooklyn, to recover for injuries sustained in alighting from a car on the New York and Brooklyn bridge. Judgment for plaintiff, from which, and an order denying a new trial, defendants appeal. Cause stricken from calendar.

Action by Robert Talbert against James Storum, administrator, etc., of William Storum, deceased, impleaded as defendant in place of the original defendant, the Mutual Reserve Fund Life Association, to recover the amount of a policy of insurance. From an order denying his motion for a bill of particulars, defendant appeals.. Affirmed.

Action by Adam J. Stephen, an infant, by Frank M. Stephen, guardian ad litem, against James B. Stevens and another, for personal injuries sustained while in defendants’ employ. From a judgment entered on a nonsuit at the circuit, plaintiff appeals. Affirmed.

Action for partition by Edward C. Walker, Jr., against Susanna Porter and another. From a portion of an order of the special term modifying the taxation of costs made by the county clerk of Genesee county, and refusing to make other modifications thereof, plaintiff appeals.

<p>Petition to disbar George G. Titus, an attorney. Judgment of disbarment.</p>

<p>Case submitted on agreed statement.</p> <p>Submission of a controversy between the superintendent of the poor of the county of Cattaraugus and the superintendent of the poor of the county of Erie on an agreed statement. Judgment ordered for plaintiff on the submission.</p>

<p>Appeal from special term, Niagara county. "</p> <p>Action by Mary Nielson against Alice Lafflin to set aside a deed. From a judgment in plaintiff’s favor, defendant appeals. Affirmed.</p>

Action by William P. Calvin against the United States Mutual Accident Association of the City of New York on a policy of accident insurance issued by defendant. From a judgment entered on a verdict directed in plaintiff’s favor, and from an order denying defendant’s motion for a new trial, made on the minutes of the court, defendant appeals. Affirmed.

Action by Moses K. Glines against the Supreme Sitting of the' Order of the Iron Hall. Motion by Israel Epstein for an order directing defendant’s receiver to pay a judgment, which was denied. Epstein appeals. Affirmed. For order denying motion to vacate an order appointing a receiver, see 20 N. Y. Supp. 275, affirmed by 21 N. Y. Supp. 543.

Action by Edith Mason Faxon against John Oscar Ball and others to set aside as fraudulent a general assignment made for the benefit of creditors. From an order denying his application for a bill of particulars, defendant Ball appeals. Affirmed.

Action by Albert' U. Todd and another against James Gamble and others. From a judgment entered on a verdict for plaintiffs, and from an order denying a motion for a new trial made on the minutes, defendants appeal. Reversed. This action was brought to recover damages for defendants’ failure to receive and pay for silicate of soda, tobe manufactured and delivered under an executory . contract.

Austin J. Camp was convicted of the crime of kidnapping under . Pen. Code, § 211. He appeals from the judgment of conviction, and from an order denying his motion for a new trial. Reversed.

Action by the Continental Trust Company of the City of New York, as receiver, etc., against Sarah T. Wetmore, individually and as executrix, et al., for an injunction to restrain defendant from disposing of certain stocks constituting a trust estate, and also to restrain her from paying over to the beneficiaries the income to accrue from such stock. From an order granting the injunction, defendants appeal. Reversed.

Action by the National Bank of Commerce in New York against tkeWhiteman Pulp & Paper Company, Alonzo J. Whiteman, and Rebecca E. Whiteman on a promissory note, in which the property of Rebecca-E. Whiteman is attached. Webster B. Van Nuys, claiming to be a-subsequent lienor, made a motion to vacate the attachment. From an. order denying the motion, he appeals. Affirmed.

<p>Appeal from circuit court.</p> <p>Action by Mission of the Virgin against one Cronin. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

Action by William H. Walker against the American Central Insurance-Company, St. Louis, on a policy of fire insurance. From a judgment entered on a verdict in plaintiff’s favor, and from an order denying defendant’s motion for a new trial, made on the minutes of the court, defendant appeals. Affirmed.

Action by Maria H. Lugar, Clara V. Le Gendre, and William C. Le Gendre against Fannie J Byrnes, Rudolph F. Rabe, and George H. ■Goodridge, executors of, and trustees under, the will of Maria Mulock, deceased, to set aside a conveyance from deceased, on the ground of ■undue influence. Judgment was entered on the report of a referee dismissing the complaint, and plaintiffs move to vacate the same, and refer the cause back to the referee for findings of fact. Motion denied.

Proceedings before the surrogate to fix the collateral inheritance tax in the estate of Amelia G. Ullman, deceased. From an order declaring void certain provisions of the will, and fixing the tax accordingly, William B. Hooper, Joseph Hooper, and Samuel Hooper, three of the heirs at law of deceased, appeal. Reversed.

. Action by the Wilcox & Gibbs Sewing Machine Company against Jehiel W. Himes to recover a royalty for the use of certain machines. From an order denying his motion to change the place of trial, defendant appeals. Affirmed.

Action of replevin by Leo C. Jakobi and another against John J. Gorman, sheriff, to recover property levied on by defendant. The property was claimed by one Scheick and others, who moved to be substituted as defendants. Order of the general term of the city court, (21 N. Y. Supp. 466,) affirming an order at special term allowing the substitution. Plaintiffs appeal. Affirmed.

Proceedings by thé Durant Land Improvement Company against the Thomsori-Houston Electric Company to recover real property. From a judgment of the district court dismissing the proceedings, plaintiff appeals. Reversed. In an action by .respondent for apportionment of rent the appellant counterclaimed, and recovered judgment for the rent, for the nonpayment of which this proceeding is instituted! The judgment antedated the demand for rent in this proceeding.

<p>Appeal from trial term.</p> <p>Action by Georgine C. Wolters against Louis Schultz for breach of promise of marriage. Judgment for plaintiff. Defendant appeals. Reversed.</p>

<p>Injury to Servant—Bisks Assumed. In an action to recover for the death of plaintiff’s intestate, who was killed by being thrown from a defectively constructed truck, it appeared that he had been in defendants’ employ as a truck driver for 10 years; that the defects in the truck in question were visible, and known to him; that he knew that a fellow servant had been thrown therefrom while driving; and that, without complaint or objection, plaintiff’s intestate undertook to drive it. Held, that he had assumed the risks incident to driving the truck, and that no action would lie against defendants for his death.</p>

Action by D. Stryker Voorhees against the Kings County Elevated Railroad Company for personal injuries caused by defendant’s negligence. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

<p>Appeal from special term.</p> <p>Action by James Brady against Henry E. Valentine. Judgment for-plaintiff. Defendant appeals. Affirmed.</p>

<p>New Trial—Absence on Witnesses—Surprise. A new trial will not be allowed a party on the ground of surprise for the-absence of witnesses from the trial, where their absence was known at the: time, and such party took no steps to compel attendance, though he had plenty of time to do so, and elected to take his chances before the jury without their testimony.</p>

Action by Philip Engelhardt and another against .the city of Brooklyn to recover the amount of a certain award made on land taken for a public use by defendant, and for taxes paid on said land by plaintiffs. A judgment for the amount of the award was rendered in favor of plaintiffs, and defendant appeals. Affirmed.

Action by William Elze, by his guardian, against Edward Baumann,, for personal injuries. Judgment was entered dismissing the complaint upon the direction of the trial judge. Plaintiff appeals. Reversed.

Action by Alexander P. W. Kinnan, as executor of Joseph W. Burn-ham, deceased, against the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railroad Company, to compel the issuance of certain stock certificates. Plaintiff obtained judgment. Defendant appeals. Affirmed.

Action by Emma. Hayes and another against Leonard R. Kerr and others to have certain deeds declared fraudulent and void, and for a partition of the premises. From an order denying plaintiffs’ motion to strike the cause from the equity calendar and remand, it to the jury calendar, plaintiffs appeal. Affirmed.

Action by Sarah. A. Carson against Simon Dessau and others. The complaint was dismissed at the trial, and both parties apply for a pro forma affirmance of the judgment to expedite an appeal to the court of appeals. Application denied. For former report, see 13 N. Y. Supp. 232.

<p>1. Reference—Report. In an action by a wife against her husband for a separation, an order of reference directing the referee “to determine whether any, and, if so, what, alimony and counsel fee ought to be awarded ” to plaintiff, and “to report the facts found and his opinion thereon, ” is merely to aid the conscience of the court, the sole power of the referee being to take testimony on the subject, and report it to the court, with his opinion thereon; and therefore defendant is not entitled to a report in his favor, because, after all of plaintiff's testimony has been given, and part of his, he has taken plaintiff’s default on her failure to appear at an adjourned day of the reference.</p> <p>2. Same. Nor in such case does a report in plaintiff’s favor stand confirmed for failure of defendant to file exceptions within eight days after notice of the filing of the report, under rule 30 of the general rules of practice, providing that in such an event the report shall become absolute, and stand confirmed in references other than for the trial of the issues in an action, since the rule does not apply to references made for the purpose of aiding the conscience of the court in determining questions pending before it.</p> <p>3. Husband and Wife—Action for Separation—Alimony. In an action by a wife against her husband for a separation, defendant should not be relieved from the payment of alimony and counsel fees pendente lite, on the ground of his inability to pay the same, unless he shows such inability by convincing proof.</p>

<p>Appeal from special term.</p> <p>Proceedings in mandamus by the people of the state of New York, on the relation of Charles F. Allen, against Thomas E. Murray, as justice of the district court of the city of New York for the eleventh judicial district, to compel him' to enter the proper order and issue the proper warrant in summary proceedings for the possession of leased premises. From an order granting the writ, defendant appeals. Affirmed.</p>

Petition by Celestia Wallington and Jane Arwine, next of kin and heirs at law of Joshua Rapplee, deceased, to revoke the probate of decedent’s will. From a decree revoking the probate, George Rapplee, one of the executors, Erastus Rapplee, and others, infants, by J. F. Parkhurst, special guardian, appeal. Reversed.

Action by Francis C. Lathi-op against Orator F. Woodward to recover balance due plaintiff from defendant. From a judgment entered on the report of a referee, defendant appeals. Affirmed.

Action by the Manufacturers’ & Traders’ Bank against the C. W. F. Dare Company, C. W. F. Dare, and Abram Folk for the recovery of money. An injunction was issued restraining defendants from disposing of certain property, which injunction was vacated by order, and the action dismissed as to Abram Folk. An order, was made to take proof and report as to damages sustained by defendant Folk by reason of the injunction.

Appeal by Sarah E. Mellen, as administratrix of Abner Mellen, Jr., ¡accountant, from a decree of the surrogate upon the judicial settlement ■of Abner Mellen, Jr.’s, accounts as one of the executors of the will of Abner Mellen, deceased. Affirmed. For reports of other litigation involving this estate, see 9 N. Y. Supp. 929; 16 N. Y. Supp. 3 91, 887; 17 N. Y. Supp. 866; 18 N. Y. Supp. 515, 937, mem.; 19 N. Y. Supp. 1001.

Ap¡ieal from special term, New York county. Action by Mary S. Douglas against Frederick H. Smith, assignee, for an accounting. George W. Hill and Hotchkiss & Co. move to be joined as parties plaintiff. From that portion of an order granting the motion, defendant appeals. Reversed. On February 26, 1889, Benjamin Harris made a general assignment for the benefit of creditors to Frederick H. Smith, who accepted the trust.

Case submitted on agreed statement. Controversy between George F. Perkins and others and David 0. Batterson, as receiver, submitted without action under Code, § 1279. Judgment for plaintiffs.

Charles H. Laurence was convicted of grand larceny in the first degree, and he appeals. Reversed.

Action by Hannah Prentice, as administratrix of Thomas Prentice, deceased, against the village of Wellsville, for the death of plaintiff’s intestate, (caused by defendant’s negligence. There was a judgment of nonsuit, and a motion by plaintiff for a new trial on a case and exceptions was ordered to be heard in the first instance at the general term. Motion denied.

Action by Solon S. Laing, president of the Bank of Cattaraugus, against Alonzo B. Rush, impleaded, etc., on a promissory note indorsed by defendant. There was a verdict for plaintiff, and from an order denying his motion for a new trial on the ground of newly-discovered evidence, defendant appeals. Affirmed.

William Halter sued John Shaffer on an open account in a justice’s-court, and from a judgment in favor of plaintiff defendant appealed to-the county court. From a judgment of the county court reversing the judgment of the justice’s court, plaintiff appeals. Affirmed.

Action by Susan Ehlein against Samuel H. Bray ton for damages for malpractice. From an order granting leave to plaintiff to amend her complaint, defendant appeals. Modified.

<p>Appeal from circuit court, Niagara county.</p> <p>Action by John D.' Chamberlain against Joseph Dumville and others. From an order granting a compulsory reference, defendants appeal. Reversed.</p>

<p>Appeal from judgment on report of referee.</p> <p>Ejectment by David E. Burrows against Henry Webster. From a judgment for plaintiff, defendant appeals. Reversed.</p>

Action by Sophronia King against the New York, Lake Erie & Western Railroad Company to recover damages for personal injuries sustained through the alleged negligence of defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying its motion for a new trial, defendant appeals. Affirmed.

Mary Henning presented a claim against the estate of Catherine Barbara Nestel, and from orders denying a motion to set aside the report of the referee allowing such claim, and for a new trial, and from the judgment subsequently, entered on the report of the referee, Libbie Miller, executor of Catherine Nestel, appeals. Reversed.

Action by the Northeastern Permanent Savings & Loan Association against Hiram L. Barker, George W. Duncan, and others, for the foreclosure of a mortgage. From the decree of foreclosure, defendants Duncan and others appeal. Affirmed.

Action by William H. Ordway against the village of Canisteo for damages for causing the overflow of plaintiffs land. From a judgment for plaintiff, defendant appeals. Affirmed.

Action in a justice’s court by .Joanna Lane against Peter A. Young and others for rent. From a judgment of the county court reversing a judgment of the justice dismissing the complaint, defendants appeal. Reversed.

Action by Eleanor D. Gaylord, administratrix of Anna C. Bradburn, against Nelson Beardsley. From an order denying defendant’s motion for leave to renew, and, if granted to renew, his motion to amend his answer, defendant appeals. Reversed.

Action by Charles A. Phillips and another against George L. Mason and others to recover money paid for stock. From a judgment on a verdict directed by the court in favor of plaintiffs, defendants appeal. Affirmed.

Action by Jacob Koehler against the Rochester & Lake Ontario Railroad Company to recover for personal injuries sustained in a collision. From a judgment entered 'on a verdict in favor of plaintiff for $12,500, and from an order denying a new trial on the minutes of the court, defendant appealed. Reversed.

Action by John J. Zimmele against American Plaster Board Company, 'Eastern Plaster Board Company, George W. Sessions, and Albert T. ■Otto. From an order granting judgment in favor of plaintiff on the ground that a demurrer to the complaint on the ground that the latter does not state facts sufficient to constitute a cause of action was frivolous, ■defendants appeal. Affirmed.

Action by Francena B. Partridge against Dore Lyon for an injunction to restrain defendant from tearing down a party wall owned jointly by the parties. From an order making permanent the temporary injunction, defendant appeals. Affirmed.

Exceptions from circuit court, Cattaraugus county. Action by Frank S. Oaks against the Cattaraugus Water Company on a written contract for services. There was a judgment of nonsuit, and a motion for a new trial on exceptions ordered to be heard in the first instance at the general term. Motion denied.

Certiorari by the Oak Hill Cemetery Association against Luther A. Pratt and others to review an assessment. ■ From an order directing a retaxation of costs, defendants appealed. Reversed.

■ Action by William Roades against Elias T. Larson for assault and ' battery. From a judgment entered on a verdict for plaintiff, and from an order denying a new trial, plaintiff appeals. Reversed.

Attachment suit by Eugene McEntee, Jr., executor, etc., against William B. Aris and George S. Morley. From an order setting aside And vacating the warrant of attachment,' plaintiff appeals. Affirmed.

Carson J. Sheldon, Charles J. Ferrin, SheldpnN. Cook, and Edward S. Brown were convicted of conspiracy. From the judgment of conviction, and from an order denying their motion for a new trial, defendants appeal. Affirmed.

Action by Gustav Daniel against the New York News Publishing Company to recover damages for libel. From a judgment entered on the verdict of jury in favor of plaintiff for SI,380.20, and from an order denying its motion for a new trial, defendant appeals. Affirmed.

Action by Theresa Wellenhoffer, as administratrix of the estate of Thomas Wellenhoffer, deceased, against the New York, Lake Erie & Western Railroad Company, to recover for the alleged negligent killing of her intestate. From a judgment for plaintiff, and an order overruling a new trial, defendant appeals. Reversed.

Actibn by John M. Dunn against Thomas J. Whalen and Bridget Whalen to set aside a conveyance of land in the city of Rochester made by defendant Thomas to his mother, on the ground that it was executed in fraud of creditors. From a judgment entered on a decision of the trial judge, dismissing the complaint, plaintiff appeals. Affirmed.

<p>Appeal from judgment on report of referee.</p> <p>Action by William T. Long against William Long. From a judgment for plaintiff entered on the report of a referee, defendant appeals. Reversed.</p>

Action by Henry McLean against the Standard Oil Company of In- ■ diana to recover for personal injuries. From a judgment entered on an order directing a nonsuit and dismissal of the complaint, plaintiff app6d>ls« J^0Y0j*gg(Jt

Action by the Penn Mutual Life Insurance Company against Edwin C. Bradley, Harvey H. Bartholomew, and Nelson S. Williams, to recover for money had and received. From a judgment in favor of plaintiff, defendant Bradley appeals. Affirmed. For former report, see 14 N. Y. Supp. 948.

Action by Ira M. Ackley, as executor, etc., of Ira W. Ackley, deceased, against John Ackley, to recover the value of a span of horses. From a judgment entered on the report of referee, dismissing his complaint, and charging costs against him personally, plaintiff appeals. Affirmed.

<p>1. Reformation of Contracts—Mutual Mistake—Evidence. Defendant sold the standing timber on 100 acres of land to plaintiff by a contract, plain, easily understood, and with no ambiguity in the description of the land, and thereafter entered on the land, and cut and carried away a number of trees. Held, in an action for the value of’ the trees carried away, where defendant claimed that more land was included in the contract than was intended, and that by the real agreement between the parties the trees cut were not within the contract, that the presumption is in favor of the correctness of the contract, to overcome which defendant must establish her contention by satisfactory evidence, not only that there was a mistake on her part, but that the mistake was mutual.</p> <p>Same—Parties. Where plaintiff’s brother, by an arrangement with plaintiff, was to have an interest in any profits which might accrue out of the purchase and sale of the timber, but plaintiff was the owner thereof, plaintiff was the only one entitled to maintain the action.</p>

Action by Irving Payne against Abram T. Kerr and others. From a judgment entered for plaintiff in the county court on the report of a referee, defendants appeal. Reversed.

Action by Mary 0. Warren, as executrix, and George H. Warren and Lloyd Warren, as executors, of George Henry Warren, deceased, against William C. Banning, individually, and sole surviving executor of the last will and testament of Abner Mellen, deceased. From a judgment for $38,055.92 damages, and costs, entered on the decision at special term, defendant appeals. Affirmed.

Action by Henry R. East against the Cayuga Lake Ice Line for breach of contract to deliver ice. Judgment of nonsuit, from which, and an order denying a new' trial, plaintiff appeals.. Reversed.

Action for an accounting by Andrew J. Applebee and Eugene P', Whitcomb, as executors of the last will and testament of Joseph Duke,, deceased, against William Duke, surviving partner of testator, impleaded with Emily Duke, Hanford Duke, and Myron Duke, devisees. From an order granting defendants Hanford Duke and Myron Duke an inspection of the books and papers of William Duke, William Duke appeals. Affirmed.

Action by Robert Gale against the Mutual Aid & Accident Association. From a judgment of the county court dismissing the complaint, and from an order denying a motion for a new trial on the minutes, plaintiff appeals. Reversed.

Action by Almira Rowland, against Daniel Sprauls for injury to mortgage security. From an order denying a motion for a new trial upon a case and exceptions, defendant appeals. Affirmed.

<p>Appeal from Cattaraugus county court.</p> <p>Action by Edwin Smith, executor of Eliza A. Evans, deceased, to foreclose a mortgage given by Mary A. Chase and others. Judgment for plaintiff. Defendants appeal. Affirmed.</p>

Action by the Birdsall Company against Stephen B. Ayres for a balance due on a contract to place a steam-heating apparatus in defendant’s building. From a judgment in plaintiff’s favor, entered on the report of a referee, defendant appeals. Affirmed. The referee’s opinion is as follows: “The facts in this action are few in number and simple in character.

Action by Clarence L. Dunn, as administrator, against Cornelius R. Parsons, on a promissory note. From a judgment dismissing the complaint, entered on a verdict, and from an order denying his motion for a new trial made on the minutes, plaintiff appeals. Affirmed.

Case submitted on agreed statement. Submission, without action, of a controversy between Mary L. O’Flyn, who is styled plaintiff, and George A. Powers, executor and trustee under the last will and testament of Sarah Macomber, deceased, Seaman L. Pettit, George Powers, William Powers, Thomas Powers, Georgianna Keep, and Robert D. Macomber, defendants. Judgment for defendant George A. Powers.

<p>Appeal from trial term.</p> <p>Action by Elizabeth Buckel against Anna Suss for enticing away plaintiff’s husband. From a judgment dismissing the complaint, and from an order denying plaintiff’s motion for a new trial, plaintiff appeals.. Affirmed.</p>

At chambers. Application by Isidor Lewkowitz for a mandamus to ■compel Frank T. Fitzgerald, as register of the city of New York, to accept a satisfaction of a mortgage. Writ granted. Isidor Lewkowitz and wife made a mortgage, dated December 6, 1887, on two pieces of property, known as “Nos. 272 and 290 Grand Street, New York City,” to Joseph B. Hoyt, to secure the sum of $10,000. which mortgage was recorded in Liber 2241 of Mortgages, p. 70.

<p>Appeal from trial term.</p> <p>Action by Robert W. Wilson and another against Herman Boasberg. From a judgment for plaintiff, rendered on the verdict, defendant appeals. Affirmed.</p>

<p>Accident at Railroad Crossings—Contributory Negligence. In an action for the death of plaintiff’s intestate, who was run over by a locomotive while attempting to cross defendant’s tracks at a city street crossing, there was evidence that the locomotive was running backward at great speed, at an early hour in the morning, when it was quite dark, without a light on its rear end, or without giving any signal of its approach; that deceased and a companion approached the crossing on foot, passed two tracks in safety, but deceased was struck while on the third track, and killed; and that, before entering on and before crossing each track, observations were made by them, but they saw and heard nothing of the locomotive. There was a conflict as to the distance objects could be seen, ranging from 3 to 200 feet. Held, that due care by the deceased was a question of fact, and was properly submitted to the jury.</p>

Action by Frank B. Martin against the New York Central & Hudson River Railroad Company, Judgment of nonsuit, after which plaintiff moved for a new trial on exceptions directed to be heard in the first instance at the general term. Motion denied, and judgment directed for defendant.

<p>Pleading—Bill op Particulars. A complaint averred the delivery of pianos between certain dates, to the value of $65,000, to defendant, and that only $43,000 had been paid thereon. Plaintiff later served a bill of particulars showing the balance due, but which failed to show the pianos delivered between the dates named, and their prices, nor did it show the dates and the amounts of the payments made. Held, that defendant was entitled to an order requiring plaintiff to give the dates of delivery of all pianos furnished during the time named, and also the several payments made on account, with the dates thereof.</p>

<p>Arrest in Civil Action—When Ordered. A complaint stated that defendant, by false representations, procured a contract for the sale of plaintiff’s pianos, and that defendant received, under the contract, large values, and converted the same to his own use. An order of arrest was granted on an affidavit, but nothing appeared as to whether notice was given previous to granting the order. Held, that the order should be affirmed.</p>

Action by Sophia Preston against Philip Groben to set aside a deed for fraud. From a judgment dismissing her complaint, plaintiff appealed. Affirmed.

Action by Margaret Mills, executrix of the will of Eliza Martin, deceased, against M. Dwight Munger and Albert H. Wheeler. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendants appeal. Affirmed.

Action by William E. Anderson and others, executors of the last will and testament of Crittenden H. C. Anderson, deceased, substituted as plaintiffs in place of testator, against the Dundee State Bank, to recover the amount of a draft issued by defendant, and discounted by decedent. Defendant had judgment, and from an order denying a motion for a new trial on the minutes, (20 N. Y. Supp. 511,) plaintiffs appeal. Reversed.

<p>Appeal from city court, general term.</p> <p>Action by John H. Wright against James A. Deering, executor of James Deering, deceased. From a judgment affirming a judgment for plaintiff, defendant appeals. Affirmed.</p>

Action by Joseph Naylor against Frank McSwegan. Defendant had judgment, from which, and an order denying a new trial, plaintiff appeals. Reversed.

Petition for the probate of a will of Henry M. Loewenstine by Sanford D. Schwarzenberg, the executor named therein. Objections to the probate of the will were duly filed on behalf of Rosa M. Loewenstine, the widow of testator. By an order of the surrogate the proceedings were transferred to the court of common pleas for the city and county of New York.

<p>Appeal from trial term.</p> <p>Action by James Ridgway against William R. Grace, Horace J. Moody, and Charles R. Flint. Defendants had judgment, and plaintiff appeals. Affirmed.</p>

<p>Appeal from city court, general term.</p> <p>. Action by Henry Morgenthau and others against Elizabeth H. Walker to recover commissions for the sale of real estate. From a judgment affirming a judgment dismissing the complaint, plaintiffs appeal. Reversed.</p> <p>For former report, see 20 N. Y. Supp. 991, mem.</p>

Action by William P. Roome and others against Frederick 0. Jennings and another. Plaintiffs had judgment, which was affirmed by the city court at general term, (20 N. Y. Supp. 614,) and defendants appeal. Reversed. For report on vacating attachment, see 19 N. Y. Supp. 825.

Assumpsit by Oscar Compton against Norman T. M. Melliss. Plain-Jiff had judgment, which was affirmed by the city court at general term, .(19 N. Y. Supp. 691,) and defendant appeals. Affirmed.

Action by Charles Rummer against the Christopher & Tenth Street Railroad Company, to recover damages resulting from an alleged assault ■ on plaintiff by a driver of defendant’s car. Plaintiff had judgment,, from which, and an order denying a new trial, defendant appeals. Re-versed. For decision on former appeal, see 20 N. Y. Supp. 116. ■ .

Action by James D. Hallen against William G. Jones, principal, and Josephine S. Jones and Frederick W. Klein, sureties, on an undertaking given on an order' of arrest. Plaintiff had judgment, which was affirmed by the city court at general term, (20 N. Y. Supp. 659,) and defendants appeal. Reversed.

Action by the Cochran Cotton-Seed Oil Company against Theodore Haebler and another to recover the purchase price of 50 barrels cottonseed oil manufactured in South Carolina, and sold “for October delivery in New York city.” The defense was no due delivery. Judgment ■ of the general term of the city court (20 N. Y. Supp. 371) affirming a judgment for plaintiff on a verdict directed by the court. Defendants appeal. Affirmed.

<p>Appeal from city court, general term.</p> <p>Action by William L. Flagler against Julius Lipman for balance due on an account from one William C. Schmidt, which balance defendant was alleged to have agreed to pay. From a judgment of the general term of the city court, affirming the judgment of the special tetm in plaintiff’s favor, and an order denying motion for a new trial, defendant appeals. Affirmed.</p>

Action by the State Bank of Rock Valley against Wallace 0. Andrews to recover the amount of an indebtedness due plaintiff by the American Loan & Trust Company, of which defendant was a director. From a judgment of the general term of the city court (18 N. Y. Supp. 167) affirming a judgment for plaintiff entered on the decision of a demurrer to the complaint, defendant appeals. Affirmed.

Action by George Merritt against Thomas F. Goodrich to recover the amount of an indebtedness due the plaintiff by the American Loan & Trust Company, of which defendant was a director. From a judgment of the general term of the city court of New York affirming a judgment for plaintiff entered on the verdict of the jury by direction of the court, defendant appeals. Affirmed.

Replevin by Frederick Haas against Pietro Altieri to try title to a check. Plaintiff had judgment, which was affirmed by the city court at general term, (19 N. Y. Supp. 687,) and defendant appeals. Affirmed.

Action by David H. Carroll against Charles Tucker and others to recover commissions for the sale of certain land for defendants. From a, judgment of the general term of the city court affirming a judgment entered on a verdict in favor of plaintiff, defendants appeal. Reversed.

Action by Frank J. Tinkham against John M. Knox, Jr., as executor of the estate of William S. Livingston, deceased, to recover commissions for letting certain premises. From a judgment of the general term of the city court (18 N. Y. Supp. 433) affirming a judgment entered on a verdict, plaintiff appeals. Affirmed.

Action by David H. Carroll against Ann T. O’Shea to recover broker’s commissions for the sale of real estate. From a judgment of the general term of the city court (19 N. Y. Supp. 374) affirming a judgment for plaintiff, entered on the verdict of a jury, defendant appeals. Affirmed.

Action by James J. Mooney against the Trow Directory, Printing & Bookbinding Company to recover damages for an injury to a horse, alleged to have been caused by the negligence of defendant’s servant. From a judgment for plaintiff, defendant appeals. Affirmed.

<p>1. Sam—Fraud op Seller. A contract for the sale of an engine is rendered voidable by the seller’s fraudulent representation that the engine had been approved by a specified person; and, in an action by the seller for the purchaser’s breach of contract in refusing to accept the engine, the exclusion of the purchaser’s evidence as to the misrepresentation is error, where the fraud has been properly pleaded.</p> <p>Z. Same—Breach by Purchaser—Damages—Opinion Evidence. In an action for the purchaser’s breach of contract in refusing to complete the sale, it is error for the court to ask the seller how much he had suffered by the refusal, as such question calls for the conclusion of the witness on a matter the court should determine for itself, after all the facts in the case have been given.</p>

Proceeding for the probate of the will of John Gannon, deceased. The surrogate sent the issues to the court of common pleas to be tried by the court and a jury, where there was a verdict for the contestants. From an order denying a motion for a new trial, proponents appeal. Affirmed.

Action by Maicho Fortunato against the mayor, aldermen, and commonalty of the city of New -York and others to foreclose a municipal mechanic’s lien. From an order opening a judgment recovered against the mayor, etc., to permit the mayor, etc., to oppose a motion which allowed defendant Dawson to amend his answer, defendants Dawson and the Twelfth Ward Bank appeal. Affirmed.

Action by Oscar Compton against John D. Heissenbuttel and others, charterers of plaintiff's canal boat, to recover for a breach of contract to pay wharfage. Plaintiff had judgment, which was affirmed by the city court at general term, (20 N. Y. Supp. 402,) and defendants appeal. Reversed. For former reports, see 13 N. Y. Supp. 594; 16 N. Y. Supp. 524; 18 N. Y. Supp. 952, mem.

Action by Joseph H. Gray, Jr., against the Jourhal of Finance Publishing Company, to recover damages for breach of a contract for the publication of a citation in probate proceedings. From a judgment entered on an order dismissing the complaint, plaintiff appeals. Reversed.

Action of claim and delivery for a sewing machine by the Domestic Sewing Machine Company against Margaret Barry. From a judgment in defendant’s favor, plaintiff appeals. Reversed.

<p>Appeal from tenth district court.</p> <p>Action by William McMahon against James Hodge, Elmer Schoonmaker, and others, to foreclose a mechanic’s lien. From a judgment in plaintiff’s favor, defendant Hodge appeals. Reversed.</p>

Action by the Cream City Furniture Company against Albert C. Squier and others to foreclose a mechanic’s lien. From a judgment for defendants, plaintiff appeals. Affirmed.

Action by Morris B. Baer and Morris B. Bronner, composing the firm of Morris B. Baer & Co., against Henry C. F. Koch. From a judgment for plaintiffs, entered on a verdict, and from an order denying defendant’s motion for a new trial on the minutes, defendant appeals. Affirmed.

<p>1. Order on Fund—Equitable Assignment. D. sold a store to J., receiving a note in part payment, but, before the note matured, J. sold the store, and refused to pay the note, alleging want of consideration. Under an agreement between the purchaser, D., and J., the purchaser placed a sum of money in the hands of P., to be paid to J. on a specified date, if no claims were made against the store; D. at the same time giving the purchaser notice of his claim against such fund. Meld, that an-order by J. on P. to pay a part of this fund to a third person, made before the date specified for the payment of such fund to J., and without the consent of the other parties interested in the fund, did not operate as an equitable assignment to such person, and vested no title thereto in him.</p> <p>2. Lien of Execution—Chose in Action. A claim by such person that he had a first lien on the fund, by virtue of a prior execution, cannot be sustained where there was nothing to show that the fund was.in bills, coins, or checks, or that it could be identified and levied upon by the sheriff.</p>

Action by George Reynolds against the Manhattan Athletic Club to recover for an alleged breach of contract. From a judgment for .plaintiff, defendant appeals. Reversed.

In the action of Henry Hyman against Anna Hauff and others for the foreclosure of a mortgage, James Rogers and others filed claims to the surplus fund. Reference was had to try the claims, and determine their priority; and, from the judgment on report of the referee, James Rogers appeals. Affirmed.

Action by Allen R, Pharo and others against Beadleston & Woerz for defendants’ breach of contract to accept and pay for a quantity of thermometers manufactured by plaintiffs, at defendants’ instance, for use as an advertising medium in the latter’s brewing business. Defendants claimed, by way of defense, that they were induced to make the contract by alleged material misrepresentations of plaintiffs’ agent.

Action by Annie Haines against Denman Thompson and George W. Ryer to recover damages for breach of a contract for the employment of plaintiff as an actress by her alleged wrongful discharge. From a judgment of the general term of the city of New York affirming a judgment for plaintiff entered on a verdict, and affirming an order refusing a new trial, (20 N. Y. Supp. 184,) defendants appeal. Reversed.

Action by Catharine A. Peters against Sidney H. Stuart, as administrator of Sarah A. Peck, deceased. From an order of the general term of the city court (20 N. Y. Supp. 661) affirming a judgment entered on a verdict of a jury in favor of plaintiff, and from an order denying defendant’s motion for a new trial, defendant appeals. Reversed.

Action by Jennie Fisher against Robert P. Monroe and others to recover damages for an alleged wrongful breach of contract. From an order of the general term of the city court affirming a judgment entered upon a verdict in favor of plaintiff, (20 N. Y. Supp. 664,) defendants appeal. Reversed.

<p>Appeal from trial term.</p> <p>Action by Samuel H. Willard against Holmes, Booth & Haydens, a corporation, to recover damages for malicious prosecution of an action charging plaintiff with having, while treasurer and manager of defendant, wrongfully used its name for the indorsement of the promissory note of another corporation, and for causing his property to be attached in such action. From a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial on the several grounds specified in Code Civil Proc. § 999, defendant appeals. Affirmed.</p>

Two actions by William F. Meeks and others against Lewis Simon for conversion. From a judgment in each case for plaintiffs, defendant appeals. Reversed.

<p>1. Action against Infant—Replevin. Replevin for goods detained in violation of the terms of a contract of conditional sale, being an action of tort, is maintainable against an infant.</p> <p>3. Conditional Sale—Failure to Make Payments. Where a conditional sale of an article to an infant provides that in case of default payments made should be treated as payment for the use of the article for the time it had been had, the payments cannot be recovered back by the infant on default being made.</p>

Action by John W. Young against Sophia Young and another to compel defendant Sophia Young to account for a fund in her hands, the income of which was payable to her for life, with remainder to plaintiff and the other defendant, and also praying for the appointment of a receiver for such fund. From a judgment in favor of defendant Sophia Young, plaintiff appeals. Affirmed. For former reports, see 18 N. Y. Supp. 116, (reversed by 30 N. E. Rep. 1012;) 19 N. Y. Supp. 1015.

Replevin by Jacob Klee and others against Hugh J. Grant, as sheriff, etc. From a judgment of the general term of the city court (17 N. Y. Supp. 845) entered on the dismissal of the complaint, plaintiffs appeal. Affirmed. The goods were seized by defendant as sheriff, under a writ of attachment against the property of Maier Rothschild, a retail dealer, who had ordered the goods from plaintiffs, who are wholesale dealers.

Action by Charles G. F. Wahle, as executor, against Samuel McMillan. From an order of the general term of the city court (20 N. Y. Supp. 372) affirming an order of the special term for examination of defendant before trial, defendant appeals. Affirmed.

Action by Howard A. Sperry against Theodore Heilman and others on an undertaking given to secure an order of arrest pursuant to the provisions of Code Civil Proc. § 559.

Exceptions from trial term. Action by Georgie French against Jacob Vix and others for injuries to plaintiff’s premises caused by blasting on the adjoining premises in excavating for a building, for the erection of which defendants were contractors and subcontractors. There was a verdict in plaintiff’s favor, and the court directed the exceptions of defendants Vix, who were .the contractors, to be heard in the first instance at the general term.

Action for malicious prosecution on a charge of larceny by P. Clayton Stevens against the Metropolitan Life Insurance Company. Plaintiff had judgment, from which, and an order denying a new trial, defendant appeals. Affirmed.

■ Action by Newton Squire against Peter H. McDonald and others to recover on an undertaking given to obtain an order of arrest, pursuant to the provisions of Code Civil Proc. § 559. From a judgment for plaintiff, entered upon a verdict directed by the court, defendants appeal. Affirmed.

Action by Newton Squire against Benjamin B. Senia and others to recov'er on an undertaking given to obtain an order of arrest pursuant to the provisions of Code Civil Proc. § 559. From a judgment for plaintiff, entered on a verdict directed by the court, defendants appeal. Affirmed.

Action by Alexander Wehle against Benno Lóewy for the recovery of money. From an order striking out a pbrtion of the answer as irrelevant, immaterial, and scandalous, defendant appeals. .Affirmed.

<p>1. Guaranty—Consideration. Where defendant guarantied the payment of a lumber bill made out and presented by plaintiffs to him for approval before delivery of the lumber to a contractor, who used the same in the erection of a house for the guarantor’s son, the delivery of the lumber was sufficient consideration for the guaranty.</p> <p>2. Same—Conditions. The guaranty stated: “I approve of the above bill, amountingto $460, and agree to see it paid, according to the terms of payment agreed to in the building contract. ” The building contract provided l’or payment in three installments, the last one when the building was completed. Held, that defendant was liable on the guaranty, though the contractor absconded after the payment of the second installment, and nothing was due him on the completion of the building by the owner, since the contract only fixed the time of payment of the guaranty.</p>

<p>1. Specific Performance—When Refused—Change of Conditions. Plaintiff company in 1882 owned a horse railroad from F. ferry to C. depot, whence it carried passengers by a steam railroad to a pleasure resort. Defendant owned a horse railroad from the ferry to the resort, which ran within five blocks of C. depot, and passengers were accustomed to walk the five blocks, and change to plaintiff’s steam line. The companies then agreed that defendant should use plaintiff’s tracks to C. depot, so that its passengers might avoid the five blocks’ walk, and that defendant should run its cars between the ferry and the depot, by plaintiff’s schedules, the intention being to increase the traffic both of the steam railroad and defendant’s line as far as C. depot. Plaintiff afterwards sold its horse road to another company, by which defendant was materially obstructed in the use of the terminals atC. depot, and its earnings decreased, owing to inability to run cars with its previous regularity. Held that, as the conditions were by its own act so materially changed, plaintiff was not entitled to specific performance of the agreement. Brown, J., dissenting.</p> <p>2. Same—Steam as Motive Power—What Includes—Electricity. , There was a provision in the agreement that if defendant at any time used or permitted “steam as a motive power” on its line from near C. station to the resort the contract could be rescinded by either party. Held that, steam being at the time of the agreement the only recognized motive power for rapid transit, any rapid transit was referred to, and that electricity generated by steam was within the meaning of the condition. Brown, J., dissenting.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Jacob Schwartz and Anton Welzel against John Wood. From a judgment for plaintiffs, entered on the report of a referee, defendant appeals. Reversed.</p>

<p>Foreign Insurance Company—Service of Summons. Where a superintendent of a foreign insurance company, in pursuance of' a power of attorney executed to him, admits due service of a summons sent, to him, such service is valid, and sufficient to bind the company.</p>

Action by Tom L. Johnson and another against the Atlantic Avenue-Railroad Company of Brooklyn for breach of contract. From an order-denying a reference, defendánt appeals. Reversed.

Action for libel by John P. Adams against Henry A. Morgan, as president of the New York Times. From an order directing a special jury to be struck for the trial of the action, plaintiff appeals. Reversed.

Action by the First National Bank of Sing Sing against Charles W. Nickerson and Ella F. Nickerson, his wife; P. William Nickerson and Amelia Nickerson, his wife; the Tarry town National Bank; the Third National Bank of the City of New York; the Bowery Bank of the City of New York; and Henry Slingerland, Caleb B. Knevals, and Elihu B. Frost, assignees for the benefit of the creditors of Charles W. Nicker-son and P. William Nickerson.

Action by James Talcott against Peter Thomas and John Thomas to set aside an assignment.' From an interlocutory judgment on the findings and decision of the court, and from a final judgment entered on the report of a referee appointed by the interlocutory judgment to take an accounting, defendants appeal. Affirmed.

Action on a note by Edgar D. Mather against Emeline D. Martin. From a judgment dismissing his complaint, entered on the verdict of a jury, and from an order denying his motion for a new trial on the minutes of the court, and also from an order denying a motion for a new trial on the ground of newly-discovered evidence, plaintiff appeals. Reversed.

<p>Replevin—Proof of Damases. Under a writ of replevin sued out against defendant, a keeper was placed in charge of the stock and fixtures of defendant’s saloon, and remained in charge thereof for five days, at the end of which time the sheriff was notified that a third person held a chattel mortgage on the property, and withdrew the keeper. Defendant’s wife testified that the keeper did not take away any of thq property, and that she continued to sell the stock without any interruption from him. Held, that.such facts were insufficient to support a finding that the property was not returned to defendant, or to show that he sustained any damage by reason of such detention.</p>

<p>Appeal from a judgment on report of referee.</p> <p>Action by Martha Taylor against Henry D. Kirkover. Plaintiff had judgment, and defendant appeals. Reversed.</p>

Three actions by Charles J. Close against Edward W. Potter, Pascal P. Beals, and William J. Millring, respectively, to enforce defendants’ liability as stockholders’ of the American Bit Brace Company. Defendants demurred to the complaints. Demurrers overruled.

Action by Henrietta L. Roemer against James A. Striker for personal injuries caused by defendant’s negligence. From a judgment for defendant, plaintiff appeals. Affirmed.

Action by John Douglass against Henry J. Meyer. Defendent moves for vacation of an order requiring him to submit to examination as a witness before trial. Denied. For decision of the general- term modifying and affirming the order, see 20 N. Y. Supp. 435.

Action by James W. Gerard against Frank H. Cowperthwait to recover damages for a breach of contract. From an order denying a motion for a new trial, made after a verdict directed for plaintiff by the court, defendant appeals. Affirmed.

Action by Antonio G. Pucci against Charles T. Barney to recover a balance due for services performed by him under a contract with defendant. From a judgment of the general term of the city court (20 N. Y. Supp. 375) affirming a judgment entered on the verdict of a jury in favor of plaintiff, and affirming an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by Frank Lugar against Joe A. Swayze for work done in papering and decorating a flat in which defendant, a married woman, resided with her husband, and for cleaning carpets, and removing and packing furniture. From a judgment of the general term of the city court affirming a judgment entered on a nonsuit and affirming an order denying a new trial, plaintiff appeals. Affirmed.

Alexander Meakim, Joseph Koch, and Edward T. Fitzpatrick, excise ■commissioners of the city of New York, were indicted for a breach of duty. Pending proceedings on the indictment the law alleged to have ■been violated was repealed, and defendants demurred to the indictment. Demurrer sustained. For former report, see 15 N. Y. Supp. 917.

Petition by Samuel T. Sherwood and others, trustees of the Third Methodist Episcopal Church in the city of Brooklyn, an incorporated religious society, for dissolution. The petition was opposed by Daniel I. Salt and William Jones, and from an order granting the dissolution they appeal. Affirmed.

<p>Appeal from special term.</p> <p>Partition by William Larder against Elihu Granger and others. From an order granting a reference, plaintiff appeals. Reversed.</p>

Action by Maurice Kelly against the Pelham Hod Elevating Company for personal injuries. From a judgment of nonsuit, entered on the trial, plaintiff appeals. Reversed.

<p>Execution Sale—Judgment Declared Void—Rights op Purchaser. The title of a grantee at sheriff’s sale, on a judgment subsequently declared-void on appeal, falls with the judgment.</p>

Action by Eva W. Simmons against the Central New England & Western Railroad Company to recover damages for the killing of plaintiff’s cattle at a farm crossing. Judgment for plaintiff, from which, and an order denying a new trial, defendant appeals. Affirmed.

Action by Alfred B. Phillips against the Citizens’ Gaslight Company of Brooklyn to recover for services rendered defendant in procuring the adjustment of a loss caused by fire. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action for an injunction by the village of Pelham Manor against the New Rochelle Water Company. Judgment dismissing the complaint, on account of. which plaintiff appeals. Affirmed.

Action by Barclay Haviland against Martha T. Willetts and Thomas T. Tabor, administrators with the will annexed of Isaac E. Haviland, deceased, and others, to set aside a.release executed by plaintiff, to defendants. From an interlocutory judgment of the circuit court in favor of plaintiff, and an order refusing to set aside the judgment, defendants appeal. Affirmed.

Action of partition by Katharine C. Ferris against Mary C. D. Fisher and others. From an interlocutory judgment for plaintiff, defendants appeal. Affirmed. For decision in former action, see 19 N. Y. Supp. 139.

Action by William H. Miller, Nathan H. Van Winkle, and Edgar L. Miller against Edward Benjamin and Alfred Benjamin. From a judgment for plaintiffs, rendered on a verdict of a jury, and from an order denying a motion for a new trial on the minutes, defendants appeal. Affirmed.

Action by John R. Drake against the New York Iron Mine, William L. Wetmore, and Matthew H. Maynard, as assignees in bankruptcy of said William L. Wetmore. From an interlocutory judgment sustaining a demurrer to the second defense, setting up the statute of limitations, defendants appeal. Affirmed. For decision on appeal by plaintiff from that part of the interlocutory judgment which overruled the demurrer to the fourth defense, see 21 N. Y. Supp. 491.

Action by Elizabeth O’Rourke against John De Graw and another for selling liquor to one Patrick O’Rourke, plaintiff’s husband, which caused intoxication alleged to have resulted in his death. Charles Piatt was made a defendant, as the owner of the premises where the intoxicating liquor was sold. From a judgment for plaintiff, defendant Piatt appeals. Reversed.

Summary proceedings by Frederick M. Lotterle against John Murphy. From an order and judgment affirming a final order of a justice of the peace in favor of plaintiff, defendant appeals. Affirmed.

Proceeding by George N. Adams and Peter T. Barlow, executors of the will of Alice T. Barlow, deceased, against Stephen H. Olin and Peter T. Barlow, executors of the will of Samuel L. M. Barlow, deceased, for an accounting. From a judgment of the.special term affirming the report of the referee in favor of plaintiffs, defendants appeal. Affirmed. For former reports see 16 N. Y. Supp. 133, and 18 N. Y. Supp. 899.

Application by Anna M. Tienken to compel Anna Seebeck, sole surviving executrix and trustee of John H. Seebeck, deceased, to pay over to applicant, individually, or as executrix of Henry M. Tienken, deceased, surplus income which the said Henry M. Tienken would have been entitled to if living. For former appeals, see 17 N. Y. Supp. 676.

<p>Action by Viola Pierce against George Pierce.</p>

Nelson, deceased. Charles Nelson, a brother and heir at law of testator, interposed a contest. After a decree of the surrogate admitting the will to probate had been affirmed at general term of the supreme court on appeal, (16 N. Y. Supp. 690,) John Nelson, another brother of testator, petitioned the surrogate to vacate the decree. The petition was denied, and petitioner appeals. Affirmed.

Proceeding for the probate of the will of Augustus Nelson, deceased, by which testator’s entire property was given to one Rosalinda Nelson, who was not related to him. The will was admitted to probate, and testator’s two sisters and a nephew, who were his next of kin, appeal. Affirmed.

Action by Josiali J. White, a bondholder of the Chattaroi Railway Company, against George C. Wood and others, as purchasing and reorganizing trustees. Judgment was rendered for defendants at special term. Plaintiff appeals. Affirmed.

Action by Maria Lydecker against Samuel Gilchrist. The complaint was dismissed in the county court of Rockland county, and an appeal taken to the general term, where the case was placed on the May calendar.

<p>Appeal from judgment on report of referee.</p> <p>Action by Chauncey H. Skidmore against the Anchor Brewing Company. From a judgment for plaintiff entered on the report of a referee, defendant appeals. Affirmed.</p>

Action by Max Bertuch against Michael Sweeny and John Brown to recover damages for fraud. From an order denying a motion to vacate an order of arrest, defendant Sweeny appeals. Affirmed.

Action by Porter Holden against Daniel Staring and others for false imprisonment and malicious prosecution. Judgment for plaintiff, from which, and an order denying a new trial, defendants appeal. Reversed.

<p>Motion by plaintiff (appellant) for a reargument.</p> <p>For decision, on appeal, see 19 N. Y. Supp. 1018, mem.</p>

<p>Appeal from city court, general term.</p> <p>Action by Emily Cordice Marvin against James H. Marvin and others.</p>

<p>Action by the people of the state of New York against James Hassan and Joseph Einnerty.</p>

<p>Appeal from fifth district court.</p> <p>Action by Francis Eckenroth and others against Henry H. Vought for goods sold and delivered. From a judgment in plaintiffs' favor, defendant appeals. Affirmed.</p>

<p>Appeal from special term.</p> <p>Action by Arthur Fuller and others against Charles Wise and others.</p>

<p>Appeal from special term.</p> <p>Action by David Moss and another against the Manhattan Railway Company and another. See 17 N. Y. Supp. 686.</p>

<p>Action by Frank M. Gillett and another against William I. Whiting.</p>

<p>Appeal from special term.</p> <p>Action by George A. Vroom against Charles Wise and others.</p>

<p>Action by John Townshend against Daniel Dull.</p>

<p>Action by Haufman Henschel against the Harlem Reporter Company and others.</p>

<p>Action by Ebenezer T. Baker against D. Edgar Codding and Osmond H. Atwood.</p> <p>For former report, see 18 N. Y. Supp. 159.</p>