Volume 210 — New York Reports

The appellants have given a stipulation for judgment absolute upon affirmance, as provided in section 1337 of the Code of Civil Procedure. The nature of the action and the facts, so far as material, are .stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. Gas ranges are inherently personal property. (McRea v. C. Nat. Bank, 66 N. Y. 489; Pfluger v. Carmichael, 54 App. Div. 153; People v. O’Donnell, 202 N. Y. 313; N. Y. Life Ins. Co. v. Allison, 107 Fed. Rep. 179.) These gas ranges did not become a part of the real estate, as there was no such intention.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in directing a verdict for the plaintiff, holding the publication to be libelous per se, and refusing to submit the meaning of the publication to the jury. (Morrison v. Smith, 177 N. Y. 366; Irving v. Irving, 121 App. Div. 258; Hoey v. N. Y. Times Co., 138 App. Div. 149; Hayes v. Ball, 72 N. Y. 418; Garby v. Bennett, 40 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 23, 1913, which reversed an interlocusory judgment of Special Term construing the will of Edmund S. Bailey, deceased. The facts, so far as material, and the questions certified are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff’s vaulis, contiguous to and in front of its premises, constructed pursuant to permits duly issued to it by the city were property, and entitled to the protection of the law the same as any other kind of property. (Deshong v. City of New York, 176 N. Y. 475; Parish v. Baird, 160 N. Y. 302; Matter of B. U. El. R. R. Co., 105 App. Div. 111; Lahr v. Met. El. Ry.

This action was brought to recover the purchase price of one iron plate planer and splitting shear alleged to have been sold and delivered by the plaintiffs to the defendant and for certain freight, cartage and storage charges thereon. The further material facts are stated in the opinion. The court erred in denying the defendant’s motion for a dismissal of the complaint made when the plaintiffs rested and repeated at the close of the evidence.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered February 3, 1912, affirming a judgment in favor of plaintiff entered upon a verdict.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>It was error to submit the question of the plaintiff’s contributory negligence to the jury. (Keller v. Erie Railroad Co., 183 N. Y. 67; Dolfini v. Erie Railroad Co., 178 N. Y. 1; Hudson v. R., W. & O. R. R. Co., 145 N. Y. 408; Fisher v. Central Vermont Ry. Co., 109 App. Div. 449; McSweeney v. Erie Railroad Co., 93 App. Div. 496; McAuliffe v. N. Y. C. & H. R. R. R. Co., 88 App. Div. 356; Westervelt v. N. Y. C. & H. R. R. R. Co., 86 App. Div. 316; Pietraroia v. N. J. & H. R. Ry. & Ferry Co., 131 App. Div. 829; Long v. Union Ry. Co. of N. Y. City, 122 App. Div. 564; McAuliffe v. N. Y. City Ry. Co., 122 App. Div. 633; Gaffney v. N. Y. C. & H. R. R. R. Co., 123 App. Div. 675; Wood v. C. I. & B. R. R. Co., 133 App. Div. 270; Waters v. United Traction Co., 114 App. Div. 275; Bonert v. L. I. R. R. Co., 145 App. Div. 552; Swart v. N. Y. C. & H. R. R. R. Co., 81 App. Div. 402; 177 N. Y. 529.)</p> <p>The plaintiff was not guilty of contributory negligence as matter of law in any view of the facts proven. (Stackus v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 464; Henavie v. N. Y. C. & H. R. R. R. Co., 166 N. Y. 280; Waddell v. N. Y. C. & H. R. R. R. Co., 184 N. Y. 530; Canning v. B., R. & P. Ry. Co., 168 N. Y. 555; Woodworth v. N. Y. C. & H. R. R. R. Co., 55 App. Div. 23; 170 N. Y. 589; Greaney v. Long Island R. R. Co., 101 N. Y. 419; Smith v. N. Y. C. & H. R. R. R. Co., 177 N. Y. 224; Brown v. N. Y. C. & H. R. R. R. Co., 87 App. Div. 206; 179 N. Y. 582; Branch v. N. Y. C. & H. R. R. R. Co., 39 App. Div. 435; 168 N. Y. 663; Turell v. Erie R. R. Co., 49 App. Div. 94.) The question of contributory negligence, being as a general proposition for the jury, is especially so when it is shown the injured party stopped, looked and listened, and exercised care to any reasonable degree — and the absence of contributory negligence may be established by direct proof or by circumstances competent to be shown in connection with such looking and listening. (Chisholm v. State, 141 N. Y. 246; Kettle v. Turl, 162 N. Y. 255; Pitts v. N. Y., L. E. & W. R. R. Co., 79 Hun, 546; 152 N. Y. 623; Henavie v. N. Y. C. & H. R. R. R. Co., 166 N. Y. 280; Branch v. N. Y. C. & H. R. R. R. Co., 39 App. Div. 435; Zwack v. N. Y., L. E. & W. R. R. Co., 160 N. Y. 362; Kettle v. Turl, 162 N. Y. 255; Turell v. Erie Railroad Co., 49 App. Div. 94; Waddell v. N. Y. C. & H. R. R. R. Co., 184 N. Y. 530; Sherry v. N. Y. C. & H. R. R. R. Co., 104 N. Y. 652; Morse v. N. Y. C. & H. R. R. R. Co., 102 App. Div. 495.)</p>

The defendant is a corporation engaged in the business of manufacturing, leasing, licensing, selling, distributing, displaying and circulating photographic films for use in motion picture machines. On January 23, 1909, the steamships Republic and Florida, came into collision at sea. The Republic was equipped with machines for sending and receiving messages by wireless telegraphy and the plaintiff, a British subject, was the operator of said machine.

Plaintiffs, as copartners, under the name and style of Stephen M. Weld & Co., were engaged in the business of cotton brokers in the city of New York and are members of the New York Cotton Exchange.

<p>Fraud — purchase of stock through fraudulent representations —when vendor liable though he took no part in negotiations.</p> <p>A vendor who, having the power to repudiate a transaction, fraudulently negotiated by another, adopts, carries through and receives the benefit of the fraud, is hable in damages therefor, since in adopting and retaining a share of the product of the fraud, he fdopts the agency and methods which brought it to a consummation.</p>

Smith, deceased, and directed the entry of a modified decree. The facts, so far as material, are stated in the opinion. Notwithstanding the statement in the order appealed from that the reversal was based upon the facts as well as upon the law, this court will determine whether the evidence presents a material question of fact; and if not, the appeal will be entertained.

<p>Warranty — contract — effect of express warranty that refrigerating plant, after completion, shall have designated capacity and efficiency — action for balance due for construction of plant — counterclaim for breach of warranty.</p> <p>■ In an action to recover an unpaid balance of the contract price for the construction by the plaintiff of a refrigerating plant in an apartment house, the defendant interposed a counterclaim based upon the failure of the plant to fulfill a specific guaranty, or pxpress warranty, contained in the contract, that the plant, after completion in accordance with the specifications and requirements, should have a prescribed capacity and efficiency. The consulting engineer, authorized so to do by the contract, had given to plaintiff a final certificate that the contract had been entirely completed and all defects corrected. Upon the trial the defendants offered evidence tending to show that the plant, at a time subsequent to the engineer’s certificate, did not operate with the stipulated efficiency, and that there was a breach of the warranty in that respect. The ' evidence was objected to by plaintiff, upon the ground that the final certificate was a conclusive determination that the contract had been completely performed and settled every question in dispute. The objection was sustained and the evidence excluded. Held, error; that while the certificate was conclusive proof, in the absence of evidence of corruption, fraud or palpable mistake appearing upon its face, that the contract was completely performed, yet the right of the owner to recover damages for the breach of the express warranty survives the delivery and acceptance of the completed plant, and that the defendants were entitled to prove a breach of the warranty and the consequent damages therefrom.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 19, 1912, affirming a judgment in favor of plaintiff entered upon a verdict.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The trial court erred in refusing to charge the jury as requested by defendant’s counsel. (King v. Ford, 121 App. Div. 404.)</p> <p>The court did not err in refusing to charge defendant’s request. (Devanney v. Degnon Const. Co., 76 App. Div. 62; 178 N.Y. 620; Martin v. Walker, 122 App. Div. 280.)</p>

- The nature of the action and the facts, so far as material, are stated in the opinion. The failure to give signals at this point was not a breach of duty on the part of the engineer and did not constitute negligence on his part. (Harty v. Central R. R. of N. J., 42 N. Y. 468; Vandewater v. N. Y. & N. E. R. R. Co., 135 N. Y. 583; Hintze v. N. Y. C. & H. R. R. R. Co., 140 App. Div. 852; Connell v. N. Y. C. & H. R. R. R. Co., 144 App.

The plaintiff, a resident of Rhinecliff, an unincorporated village in the town of Rhinebeck, returned from a day’s visit to Poughkeepsie about nine o’clock in the evening on the 19th day of April, 1910. At that time rain was falling and the night was quite dark. She proceeded from the depot towards her home up Main street to .the junction of Charles street with Main street.

The nature of the action and the facts, so far as material, are stated in the opinion. The action was properly brought in the name of the plaintiff as executrix. (Dunphy v. Callahan, 126 App. Div. 11, 13; 194 N. Y. 587; Lakin v. Button, 132 App. Div. 557; Buckland v. Gallup, 105 N. Y. 453; Van Buren v. First Nat. Bank, 53 App. Div. 80, 83; Bingham v. Marine Nat. Bank, 41 Hun, 377; 112 N. Y. 661; Speiss v. Mitchelson, 2 App. Div. 226; Gross v. Gross, 26 Misc.

Appeal in each of the ahove-entitled actions from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 8, 1911, affirming a judgment in favor of plaintiff entered upon the report of a referee. The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The contract differs from that of the ordinary employment of servants, as this court has heretofore announced. It was not necessary for plaintiff to show affirmatively that it made any effort to secure another advertiser, and defendant failed to prove facts which mitigate the damages. (Ry. A. Co. v. S. R. C. Co., 83 App.

Term. This is an action to construe a deed granting an easement and to enforce certain covenants relating to the easement. In and prior to the year 1872, the Phoenix Mills was seized in fee and possessed of certain lands on the Seneca river in the village of Seneca Falls. There was erected on such lands a flouring mill operated by water drawn from the river. The land to the east of the mill property and lower down the river was also owned by the Phoenix Mills.

<p>Appeal in each of the above-entitled actions from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 2, 1911, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>William H. Aymar has a valid lien on sixty shares of the Brooklyn Factory and Power Company, Limited, stock and on fifty shares of the Brooklyn Chair Company stock as security for the unpaid portion of his loan, and was entitled to keep possession of the same until his loan was paid. (Yates Co. Nat. Bank v. Baldwin, 43 Hun, 136; Hays v. Riddle, 1 Sandf. 248; Clark v. Costello, 79 Hun, 588; White v. Platt, 5 Den. 269; . Jones on Pledges & Coll. Security [2d ed.] §§44, 45; Casey v. Cavaroc, 96 U. S. 467; Comcl. Pub. Co. v. Buckwith, 167 N. Y. 329; Matter of Kellogg, 112 Fed. Rep. 52; Cahn v. Ford, 42 La. Ann. 965; Fairbanks v. Sargent, 117 N.Y. 320; Cooper v. Roy, 47Ill. 53.) The return of the stocks to Aymar was supported by a valuable consideration, and was not voluntary, and Aymar’s equity is superior to that of the plaintiff. (Stanley v. Union Bank, 115 N. Y. 122; Manchester v. Tibbits, 121 N. Y. 219; Delaney v. Valentine, 154 N. Y. 692; Tompkins v. Hunter, 149 N. Y. 117; Dodge v. McKechnie, 156 N. Y. 514; Code Civ. Pro. § 1405; Obermeyer v. Jung, 51 App. Div. 247; Lehrenkrauss v. Maires, 199 N. Y. 240; Dodge v. McKechnie, 156 N. Y. 514; Davis v. Schwartz, 155 U. S. 631; Shotwell v. Dixon, 163 N. Y. 43.) Ho knowledge of the existence of the plaintiff’s claim has been brought home to Aymar, and he cannot be held to have had any knowledge of the alleged fraudulent acts of the Cowperthwaits. (F. Nat. Bank v. Nat. Broadway Bank, 156 N. Y. 459; R. & C. T. R. Co. v. Paviour, 164 N. Y. 281; Ludington v. M. Nat. Bank, 102 App. Div. 251; 182 N. Y. 522; Squire v. Ordemann, 194 N. Y. 395; Cohnfield v. Tanenbaum, 176 N. Y. 126; Suarez v. De Montigny, 1 App. Div. 494; Kirsch v. Tozier, 143 N. Y. 390; Wilson v. M. E. R. Co., 120 N. Y. 145; Cowing v. Altman, 71 N. Y. 442; Swan v. Produce Bank, 24 Hun, 277.) Aymar cannot be made chargeable with constructive notice of the alleged fraudulent intent of Frank H. Cowperthwait. (Sterns v. Gage, 79 N. Y. 102; Parker v. Connor, 93 N. Y. 118; Jacobs v. Morrison, 136 N. Y. 101; Wilson v. Marion, 147 N. Y. 589.) Even if the evidence should be held sufficient to show that the assignment by Frank H. Cowperthwait to Frederick S. Cowperthwait was fraudulent, it should be held that as between the plaintiff and the defendant Aymar the assignment was not fraudulent, and that, therefore, the plaintiff ought not to recover as against the defendant Aymar. (Lehrenkrauss v. Maires, 199 N. Y. 240; Shotwell v. Dixon, 163 N. Y. 43; Tompkins v. Hunter, 149 N. Y. 117.)</p> <p>The defendant Aymar surrendered and lost his lien upon the stocks returned by him to Frank H. Cowperthwait. (Casey v. Cavaroc, 96 U. S. 467; Black v. Bogert, 65 N. Y. 601; McFarland v. Wheeler, 26 Wend. 466; Walker v. Staples, 5 Allen, 34; Kimbel v. Hildreth, 8 Allen, 167; Thompson v. Dolliver, 132 Mass. 103; Kellogg v. Thomson, 142 Mass. 76; Moors v. Reading, 167 Mass. 322; Wolcott v. Keith, 22 N. H. 196; Cooley v. Minnesota Trans. Co., 53 Minn. 327.) The defendant Aymar took the new “ trustee ” stocks with notice of the fraud of the Cowperthwaits rendering void' the title of the “ trustee ” thereto, and has no lien thereon. (First Nat. Bank v. Nat. Broadway Bank, 156 N. Y. 459; Gaston v. Am. Exch. Nat. Bank, 29 N. J. Eq. 98; Ludington v. Mercantile Nat. Bank, 102 App. Div. 251; 182 N. Y. 522; Ward v. City Trust Co., 192 N. Y. 61; Kirsch v. Tozier, 143 N. Y. 390; Suarez v. De Montigny, 1 App. Div. 494; 153 N. Y. 678; Gerard v. McCormick, 130 N. Y. 261; Budd v. Monroe, 18 Hun, 316; Swan v. Produce Bank, 24 Hun, 277; Whits v. Price, 39 Hun, 394; 108 N. Y. 661; Shaw v. Spencer, 100 Mass. 382.) The defendant Aymar was an actual participator in the fraud of the Cowperthwaits. (V. Nat. Bank v. Newton, 25 App. Div. 62; Simons v. Goldback, 56 Hun, 204; 123 N. Y. 637; Metcalf v. Moses, 161 N. Y. 587; Galle v. Tode, 148 N. Y. 270; Starin v. Kelly, 88 N. Y. 418; Flynn v. E. L. Ins. Co., 78 N. Y. 568; Kirby v. Tallmadge, 160 U. S. 379.) The defendant Aymar cannot retain the “ trustee ” stocks as against the judgment creditors and the plaintiff herein. (Davis v. Leopold, 87 N. Y. 620; Hardt v. Schwab, 72 Hun, 109; 150 N. Y. 579; Levy v. Hamilton, 68 App. Div. 277; Baldwin v. Short, 125 N. Y. 553.)</p>

<p>Perjury—Trial—Unwarranted statements of district attorney in summing UP.</p> <p>On the trial of a patrolman of the police force of New York city for perjury, the district attorney referred, in summing up, to the many similar pending cases, to an alleged and so-called police “ system” which was behind the defendant, and which for years had been thwarting judges, juries and district attorneys, to the fact that our institutions were on trial and that the question must be decided whether the police or the law should rule, which were not proper in determining simply whether the defendant had committed perjury, and which if not counteracted might have tended to prejudice the jury. No exception was taken by defendant. The court in charging the jury expressly directed them to disregard all irrelevant considerations which had been injected into the, case and to confine their attention to the single and simple issue whether the defendant had committed perjury. Held, that there was no reversible error.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Defendant, by admitting that he was a citizen of the empire of Germany, subject to its laws and the jurisdiction of its courts, was bound by the judgment sued on in this action. (Shepard v. Wright, 113 N. Y. 582; Hunt v. Hunt, 72 N. Y. 2, 17.) The court of the'foreign country did not acquire jurisdiction. (Shepard v. Wright, 113 N. Y. 582.)

The facts, so far as material, are stated in the opinion. Material error to the serious prejudice of the defendant was committed by the learned court in excluding testimony sought to be introduced in behalf of the defendant of the market value of the tract of land involved in this action in March, 1910, the time of the transaction between complainant and defendant. (Latimer v. Burrows, 163 N. Y. 8; Griffin v. R. R. Co., 101 N. Y. 354; Clarke v. Ford, 121 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The title in question is unmarketable. A hostile claim by Matthew Tighe of an interest in the property is not an impossible or negligible contingency. The court should not shift the burden of an unmarketable title from plaintiff to defendant.

The facts, so far as material, are stated in the opinion. The trial court erred in taking the case away from the jury. (Koehler v. Adler, 78 N. Y. 287; Shultes v. Sickles, 147 N. Y. 704; Classon v. Baldwin, 152 N. Y. 204; Bendheim v. Herter, 40 App. Div. 462; German-Am. Bank v. Cunningham, 97 App. Div. 244; Kinner v. Whipple, 128 App. Div. 736; Kantrowitz v. Levin, 14 Misc. Rep. 563; Gorman v. Williams, 26 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. The findings of fact do not warrant the conclusion of law that the plaintiff’s land had been dedicated and accepted as a public street. (Holdane v. Cold Spring, 21 N. Y. 474; N. Y. C. & H. R. R. R. Co. v. Ossining, 141 App.

The nature of the action and the facts, so far as material, are stated in the opinion.

■Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 27, 1912, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term, a jury having been waived.

<p>Murder — intoxication of defendant at time of crime — evidence thereof should be considered by jury upon questions of intent, deliberation and premeditation — fair trial should not be denied on chance of executive clemency.</p> <p>1. A disinterested witness is not, necessarily, entitled to any more credit than an interested witness. The whole subject of the interest of a witness and its effect upon his testimony is for the jury.</p> <p>2. Section 1220 of the Penal Law (Oons. Laws, ch. 40) provides: “Whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act." This permits any, not simply total, intoxication to be considered on the question of intent, and it is for the jury to determine the extent of the intoxication and whether it had the effect to prevent the necessary intent, deliberation and premeditation, and an erroneous charge in that respect may be reviewed although no exception was taken. (Code Grim. Pro. § 542.)</p> <p>3. In pronouncing sentence, the learned trial justice said: “Yet, from the circumstances in this case I am led to the conclusion that it may be a case for executive clemency. * * * The verdict of the jury was entirely proper, but there are circumstances in the case that may call for executive clemency, in the event that the conviction is affirmed." Held, that it is the defendant’s right to have the degree of his crime fairly determined by a jury and that right should not be denied him on the chance of executive clemency.</p>

<p>(1.) Murder—Disinterested Witness not Necessarily Entitled to any More Credit than Interested Witness.</p> <p>A disinterested witness is not, necessarily, entitled to any more credit than an interested witness. The whole subject of the inter>est of a witness and its effect upon his testimony is for the jury.</p> <p>(2.) Same—Intoxication of Defendant at Time of Crime—Evidence Thereof Should be Considered by Jury upon Questions of Intent, Deliberation and Premeditation.</p> <p>Section 1220 of the Penal Law (Cons. Laws, ch. 40) provides: “ Whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act.” This permits any, not simply total, intoxication to be considered on the question of intent, and it is for the jury to determine the extent of the intoxication and whether it had the effect to prevent the necessary intent, deliberation and premeditation, and an erroneous charge in that respect may be reviewed although no exception was taken. (Code Crim. Pro. § 542.)</p> <p>¡(3.) Same—Erroneous Charge as to Executive Clemency.</p> <p>In pronouncing sentence, the learned trial justice said: “ Yet, from the circumstances in this case I am led to the conclusion that it may be a case for executive clemency. * * * The verdict of</p> <p>the jury was entirely proper, but there are circumstances in the case that may call for executive clemency, in the event that the com viction is affirmed.” Held, that it is the defendant’s right to have the degree of his crime fairly determined by a jury and that right should not be denied him on the chance of executive clemency.</p>

This action was brought to recover for personal injuries alleged to have been sustained by plaintiff while in the employ of the defendant through his negligence. The facts, so far as material, are stated in the opinion.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 18, 1913, which affirmed a judgment of the Otsego County Court rendered upon a verdict convicting the defendant of the crime of grand larceny in the first degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

The facts, so far as material, are stated in the opinion. Under the allegations of the complaint ejectment will lie to recover the uplands and the boat house and dock as appurtenant thereto, even if the boat house and dock are wholly below low-water mark.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June SO, 1913, which affirmed a judgment rendered at a Trial Term for the county of New York upon a verdict convicting the defendant of the crime of grand larceny in the first degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in its instructions as to the law applicable to this case. (Bierman v. City Mills Co., 151 N. Y. 482; Waeber v. Talbot, 167 N. Y. 48.) The court erred in its instructions as to the measure of damages for breach of warranty, and as to the evidence necessary to prove damages.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 16, 1913, affirming an order of the New York County Surrogate’s Court which modified a prior order assessing a transfer tax upon the estate of Catharine A. De Peyster, deceased, by exempting therefrom a legacy to the New York Historical Society.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The New York Historical Society, as its name implies, was organized exclusively for historical purposes, and such legacy, therefore, is not exempt from taxation under section 221 of the Transfer Tax Act. (Matter of Moses, 138 App. Div. 525; Matter of Mayer, 209 N. Y. 386; Matter of Francis, 189 N. Y. 554; 121 App. Div. 129; Matter of Watson, 171 N. Y. 256.)</p> <p>To determine whether a corporation is an educational corporation within the meaning of that term in the Transfer Tax Act, the court may consider evidence showing the character of the work carried on by the corporation, pursuant to its charter. (Matter of Moses, 138 App. Div. 525; Matter of Field, 71 Misc. Rep. 396; Matter of Arnot, 145 App. Div. 708; 203 N. Y. 627.) The New York Historical Society is exempt from taxa' tion as an “educational corporation” within the meaning of the Transfer Tax Law, notwithstanding historical corporations, carried on exclusively as such, are only partially exempt from taxation. (Matter of Mergentime, 129 App. Div. 367; 195 N. Y. 572; Matter of Moses, 138 App. Div. 525; Matter of Arnot, 145 App. Div. 708; 203 N. Y. 627; Matter of Field, 71 Misc. Rep. 396; Matter of Historical Society, 13 Mont. 205; Essex v. Brooks, 164 Mass. 79; People ex rel. Trustees v. Metzger, 98 App. Div. 237; 181 N. Y. 511; Webster v. Wright Co., 24 L. R. A. [N. S.] 1205; Cumberland Lodge v. Mayor, etc., 154 S. W. Rep. 1141.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The mistake found by the court was one of law, which equity will not relieve. (Greene v. Smith, 160 N. Y. 533; W. U. Tel. Co. v. Shepard, 49 App. Div. 345; Trotter v. Brevoort, 60 App. Div. 562; Sibert v. McAvoy, 15 Ill. 106; Atherton v. Roche, 192 Ill. 252; Tilton v. Fairmount Lodge, 244Ill. 617; Curtis v. Albee, 167 N. Y. 360; Hindley v. Manhattan Ry.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 4, 1912, affirming a judgment in favor of plaintiff entered upon a verdict.</p> <p>In June, 1899, the defendant, a casualty insurance company, issued to the plaintiff its policy of insurance whereby it agreed, in consideration of the stipulated premium, to indemnify the plaintiff “against loss from common law or statutory liability for damages on account of bodily injuries ” suffered by any of his employees. The limit of its - liability for an accident to any one employee was fixed at $1,500. During the term of the policy, one of the plaintiff’s employees, a young man named Loughlin, under the age of twenty-one, was injured. He and his father commenced actions against the plaintiff to recover damages on account of the accident. While these actions were pending, the plaintiff received an offer from the attorneys for the Loughlins stating that they would settle the actions for $1,500. This the plaintiff- communicated to the defendant, and requested and urged its permission to settle upon that basis. The defendant refused the request upon the ground that the sum named was excessive. It elected to defend the actions, as it had the right to do under the provisions of the policy, and the actions proceeded to trial, the defendant taking control of the defense thereof. They resulted in judgments against the plaintiff here aggregating over $6,000.</p> <p>After all this had transpired, and the plaintiff had been thus mulcted in damages exceeding by $1,500 the amount for which he was insured, the defendant wrote to the plaintiff stating that it did not consider an appeal would be advantageous, that it would not prosecute an appeal, but “ holds itself ready to comply with the terms of its contract with you in case you should satisfy the judgment rendered against you.” It further signified its willingness to permit the plaintiff to substitute his own. attorney to prosecute an appeal. To this letter the plaintiff replied, in substance, that inasmuch as the defendant had refused the offer to compromise the Loughlin suits for $1,500, and through its conduct had inflicted a much greater liability upon him, he would hold the defendant liable for the full amount.</p> <p>Thereafter the plaintiff, through his own attorney, appealed from the main Loughlin judgment to the Appellate Division of the Supreme Court, where it was unanimously affirmed. He procured leave to appeal to this court, and here the judgment was reversed for errors committed upon the trial and a new trial was ordered. {Loughlin v. Brassil, 187 N. Y. 128.) No new trial was had, however, and the Loughlin actions were subse quently dismissed for want of prosecution.</p> <p>This action was then commenced to recover from the defendant the expense to which the plaintiff had been subjected in prosecuting the appeal from the Loughlin judgment, including his attorney’s fees amounting, as claimed by the plaintiff, to $2,611. He recovered a judgment of $2,211. On appeal by the defendant from that judgment to the Appellate Division there was an affirmance. The defendant has now appealed to this court.</p> <p>The policy first insured the plaintiff “ against loss from common law or statutory liability for damages ” to his employees. It then contained certain clauses called “special agreements,” among which was a limitation of $1,500 for any accident to an employee. The other “special agreements” have no bearing upon this controversy. Attached to the policy and printed on the reverse side thereof were a number of so-called “ conditions precedent.” Among these conditions were the following:</p> <p>“2. If * * * any suit is brought against the Assured to enforce a claim for damages on account of an accident covered by this policy, immediate notice thereof shall be given to the Company, and the Company will defend against such proceeding, in the name and on behalf of the Assured, or settle the same at its own cost, unless it shall elect to pay the Assured the indemnity provided for.</p> <p>“3. The Assured shall not settle any claim, except at his own cost, nor incur any expense, nor interfere in any negotiation or settlement or in any legal proceeding without the consent of the Company previously obtained in writing. * * *</p> <p>‘ ‘ 8. No action shall lie against the Company as respects any loss under this Policy unless it shall be brought by the Assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment after trial of the issue. No such action shall lie unless brought within the period within which a claimant might sue the Assured for damages unless at the expiry of such period there is such an action pending against the Assured, in which case an action may be brought against the Company by the Assured within thirty days after final judgment has been rendered and satisfied as above. In no case except that of minors shall any action lie against the Company after the expiration of six years from the date of the given injuries or death. The Company does not prejudice by this clause any defenses to such action which it may be entitled to make under this policy. ”</p> <p>It is settled in this'state that, under a policy such as the one sued on in this action, it is optional with the company, whether on the one hand it will undertake the defense of an action for damages against assured brought by an employee claiming to have been accidentally injured under the circumstances specified in the indemnity clause of the policy, or settle such action, or pay the indemnity to the assured, or whether, on the other hand, it will wholly ignore the action; and, if it takes the latter course, it will not be liable to reimburse .the assured for the expenses incurred by him in a successful defense of the action. (Cornell v. Travelers’ Insurance Co., 175 N. Y. 239; Nesson v. U. S. Casualty Co., 201 Mass. 71; H. L. & P. Co. v. Maryland Casualty Co., 69 S. E. Rep. 234.) The defendant company in the case at bar cannot be held for the expense of the appeals because of having defended, or participated in the defense of, the action against assured in the trial court. (Matter of Garver, 176 N. Y. 386; Dunn v. U. A. Paving Co., 175 N. Y. 214; Creem v. Fidelity & Casualty Co., 206 N. Y. 733; Mills v. Parkhurst, 126 N. Y. 89; Henry v. Herrington, 193 N. Y. 218; Organ v. Stewart, 60 N. Y. 413; Andrews v. AEtna L. Ins. Co., 92 N. Y. 596; Precht v. Howard, 187 N. Y. 136; Lawrence v. G. A. Assur. Corp., 124 App. Div. 545; 192 N. Y. 568; Draper v. O. C. Fire Relief Assn., 190 N. Y. 12.) Assuming that the company was bound, either by the policy, or by entering upon the defense, to “defend” the actions brought against assured, it by no means follows that it was bound to prosecute appeals from adverse judgments. (Kalmanowitz v. Kalmanowitz, 108 App. Div. 296; Davis v. Soloman, 25 Misc. Rep. 695; Egan v. Rooney, 38 How. Pr. 121.)</p> <p>The defendant company having made their election to defend Brassil were required to defend him to the end and violated the covenant in their policy in that respect when they threw him over after the judgment had been obtained against him at Trial Term. (Kilpatrick v. G. L. Ins. Co., 183 N.Y. 163.)</p>

In the year 1849 the owners of the land lying in the two blocks bounded by Broadway, Twenty-sixth street, Sixth avenue and Twenty-fourth street, in the city of New York, entered into an agreement for the purpose of making the property a desirable location for residences and buildings of the first class.

<p>Negligence —barbed wire fence — whether it is or is not negligence to erect such fence is a question of fact — effect of statute relating to such fences.</p> <p>1. Although the statute (Town Law [Cons. Laws, ch. 62], § 369) forbids the use of barbed wire in the construction of a division fence, except in the manner therein prescribed, without the written consent of the owner of the adjoining property, and provides that the person building a fence as therein authorized without such consent shall be liable for all damages that may be ocear stoned thereby, yet a barbed wire fence is not a nuisance as a matter of law. Whether it is or is not negligence to erect and maintain one is a question of fact, and the statute is to be considered in determining that question.</p> <p>2. The owner of a farm adjoining and surrounding a schoolhouse lot erected a fence on the division line between his land and the lot by setting posts on such line, on which he fastened, about four feet from the ground, a barbed wire, with barbs about six inches apart. The next day, and while the fence was incompleted, a child eleven years of age, who was not aware that the wire had been fastened to the posts, ran from the door of the schoolhouse toward the fence, looking over her shoulder and calling to a schoolmate, and while so running her neck came in contact therewith and was lacerated thereby. Upon the trial of the action to recover for the injuries the court dismissed the complaint. Held, error; that the questions of the negligence of the defendant and that of the contributory negligence of the plaintiff were for the jury.</p>

38). The nature of the action and the facts, so far as material, are stated in the opinion. It was error for the court to allow the lien for items consisting of coal. (Cincinnati R. R. Co. v. Shera, 36 Ind. App. 315; Mossburg v. United Oil & Gas Co., 87 N. E. Rep. 992; McAuliffe v. Jorgenson, 107 Wis. 132; Stewart-Shute Lumber Co. v. Mo.

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in permitting the plaintiff to prove by a witness over defendant’s objection and exception that the defendant was insured in a casualty company against this accident and in denying defendant’s motion to withdraw a juror because thereof. (Simpson v. Foundation Co., 201 N. Y. 479; Akin v. Lee, 206 N. Y. 20; Tinchwell v. Ketchman, 78 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. The payment of the said sum of $850 to the defendant in this action during said proceeding was not a tender or payment into court. (People ex rel. Terwilliger v. Chamberlain, 140 App.

The facts,, so far as material, are stated in the opinions. The principle that every man accused of crime is entitled to a fair trial was grossly violated by the trial justice. (People v. Patrick, 182 N. Y. 187.) The remarks of the district attorney in his opening address to the jury were extremely prejudicial. (Tucker v. Henniker, 41 N. H. 317; People v. Fielding, 158 N. Y. 548; Stone v. State, 22 Tex. Cr.

Appeal by each of the above-named appellants, from a judgment of the Supreme Court, rendered November 26, 1912, at an extraordinary Trial Term for the county of New York upon a verdict convicting the defendants of the crime of murder in the first degree. The facts, so far as material, are stated in the opinion.

Frank Z. Wilcox was expelled from the Royal Arcanum on the 15th of March, 1906. On appeal to the supreme council the order of expulsion was affirmed. Thereupon he commenced mandamus proceedings to compel reinstatement to membership, but died during the pendency of the proceedings.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 29, 1912, affirming a judgment of the Municipal Court of the city of New York in favor of plaintiff in an action to recover a penalty for violation of section 41 of the Agricultural Law. The facts, so far as material, are stated in the opinion.

This action was brought to recover the value of certain goods delivered to defendant, a common carrier, and alleged to have been destroyed through its negligence. Defendant pleaded a special contract limiting its liability. The further material facts are-stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The direction of the Appellate Division that the several awards and the allowance to counsel be paid by the comptroller “with interest thereon as provided by law,” was res adjudicata. (De Peyster v. Mali, 92 N. Y. 262; Matter of Dept. of Parks, 73 N. Y. 560; Matter of Belmont St., 128 App.

The defendant, on or about March 24, 1910, issued to the plaintiff a policy of employers’ liability insurance, whereby the defendant agreed to indemnify the plaintiff for twelve months thereafter from loss or liability arising from accident or injury to any of the plaintiff’s employees up to a fixed amount.

The nature of the action and the facts, so far as material, are stated in the opinion. The sureties were unnecessary parties to the action brought to determine the validity of the lien and the amount due. (Ringle v. Matthieson, 10 App. Div. 274; Miller v. McKeon, 15 App. Div. 133; Pierce v. Wilson, 118 App. Div. 662; Mertz v. Press, 99 App. Div. 443; Sullivan v. Goodwin, 30 App. Div. 194; McDonald v. Mayor, etc., 42 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. The action could not be maintained because defendant at the time it was commenced had possession under a tax deed which had become conclusive and is no longer open to question by any former owner of the property. (Cone v. Lauer, 131 App. Div. 193; Shea v. Campbell, 11 Misc. Rep. 222; Meigs v. Roberts, 162 N. Y. 278; Matter of McIntyre, 124 App. Div. 66; Kelly v. Austin, 132 App.

court at a Trial Term, a jury having been waived. The nature of the action and the facts, so far as material, are stated in the opinion. The undertaking is a binding and obligatory agreement.

<p>Carriers—negligence — when railroad company, which contracted to transport a loaded freight car from one point to another, not liable for injury to employee of consignee caused by improper loading of car.</p> <p>Where a railroad company contracted with a consignor to transport a carload of hay from one place on its railroad to a consignee at another point, but did not load the car, which was loaded and closed by the shipper, or have anything to do with it, except to receive and seal the ear, after it was loaded and closed, and then take it to its destination and deliver it to the consignee, who assumed the work of unloading, the duty of the company was merely one of transportation, and when it had delivered the car at its destination its duty was ended. The company is not liable, therefore, to an employee of the consignee who was injured by bales of hay which fell upon him while opening the ear door, because such bales had been improperly and negligently loaded in the car. (Ford v. L. 8. &M. 8. R. R. Co., 124N.Y. 493, distinguished.)</p>

<p>School trustees — contest over title to office of school trustee between candidates claiming to be elected at same school district meeting — court of equity will not entertain jurisdiction of such controversy — appeal from meeting should be taken to commissioner of education.</p> <p>1. Title to office can be finally decided only in proceedings at law as quo warranto, mandamus or prohibition, and a court of equity will not entertain jurisdiction over contests for public office.</p> <p>2. This rule applied to a contest over the title to the office of school trustee when both claimants rested upon an election alleged to be regular and valid, and held, that it was not a case for an injunction.</p> <p>3. The public interests in such case require the contending parties to adopt the remedy provided by section 360 (now 880) of the Education Law (Cons. Laws, ch. 16; amd. L. 1910, ch. 140), which confers upon the commissioner of education power to review “ any decision made by any school district meeting.”</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 27, 1913, which dismissed an appeal from an order of Special Term denying a motion to confirm the report of commissioners in condemnation proceedings and remitting the subject-matter to new commissioners to hear de novo.

The facts, so far as material, are stated in the opinion. There is no duty in the premises enjoined upon Mr. Craven by “charter, or statute, or law.” (People ex rel. Coppers v. Trustees, 21 Hun, 184; Spelling on Injunctions [2d ed.], § 1379; People ex rel. Ready v. Mayor, etc., 144 N. Y. 63; People ex rel. Cranford Co., v. Willcox, 153 App.

The facts, so far as material, are stated in the opinion. The lower court erred in holding that petitioner was entitled to simple interest only on the principal of the award, for by the express provision of section 990 of the charter, where title is vested in the city before an award is made, interest runs on the entire amount awarded, both principal and interest, from the date of the report; and if section 1001, making the right to interest dependent upon a demand, applies,…

The facts, so far as material, are stated in the opinion. Delator’s contention that the sale of the property for $912,023.41, as matter of law established in all courts and -places that that is the value of the parcels 1 and 2 of the bankrupt Tarrytown company’s property, cannot be sustained.

defendant, the City of Mount Vernon, upon the ground that it does not state facts sufficient to constitute a cause of action and dismissed the complaint as against the said city. The nature of the action and the facts, so far as material, are stated in the opinion. The complaint states facts sufficient to constitute a cause of action against the respondent, the City of Mount Vernon. (Code Civ.

The nature of the action and the facts, so far as material, are stated in the opinion. The admission of the letters of plaintiff and his attorney to the defendant and its attorney and officers characterizing the improvements made by the defendant, was reversible error, as these are merely self-serving declarations.

The facts, so far as material, are stated in the opinion. The subpoena duces tecum, in the case, is a violation of the United States Constitution and likewise of the Civil Eights Law of the state of New York.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 9, 1913, which sustained a writ of certiorari and reversed a determination of the state public service commission for the first district fixing the maximum rate for gas to be charged by the relator in the 30th ward of the borough of Brooklyn.

<p>Appeal from, a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 9, 1912, affirming a judgment in favor of plaintiffs entered upon a verdict.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>In view of the provisions of the contracts and the course and conduct of the parties in attempting to carry them out, it must be held that there was an accord and satisfaction of the matters in difference between them. (Palmcrton v. Huxford, 4 Den. 166; People ex rel. MacDonough v. Buffato State Asylum, 96 N. Y. 640; Nassoiy v. Tomlinson, 148 N. Y. 326; Lestienne v. Ernest, 5 App. Div. 373; Dunn v. Whalen, 120 App. Div. 729.) All conversations had by the parties prior to the execution of the contract are deemed to be merged in the written contract and the written contract alone expresses the agreement of the parties. (Thomas v. Scott, 127 N. Y. 133; Trustees of Southampton v. Jessup, 173 N. Y. 84; Uiehlein v. Matthews, 172 N. Y. 154; Tripp v. Smith, 50 App. Div. 499; 168 N. Y. 165; Stowell v. Greenwich Ins. Co., 163 N. Y. 298; Brantingham v. Huff, 174 N. Y. 53; Dady v. O’Rourke, 172 N. Y. 448.) Where a written contract is complete on its face and clear and unambiguous in its terms, oral evidence is not admissible to vary or contradict the writing. (House v. Walch, 144 N. Y. 418; Losing v. Cushman, 195 N. Y. 386; Lese v. Lamprecht, 196 N. Y. 32; Hail v. Beston, 26 App. Div. 105; Sherman v. Pedrick, 35 App. Div. 15; Van Derhoff v. Hartman, 63 App. Div. 419; Doolittle v. Fitchett, 35 Misc. Rep. 529; Van Hagan v. Van Rensselaer; 18 Johns. 420; Dent v. N. A. S. S. Co., 49 N. Y. 391; Campbell v. Jimenes, Y Misc. Rep. 77; Kinney v. McBride & Co., 88 App. Div. 92; Norton v. Woodruff, 2 N. Y. 153.) The testimony of the plaintiff’s witnesses, in which they were allowed to testify to instructions they received from the superintendent of public works, as to how they should do the work, as evidence of a proper interpretation of the contract, was clearly illegal, (Russell v. H. R. R. Co., 17 N. Y. 134; Nat. Ulster Co. Bank v. Madden, 114 N.Y. 280; People v. McLoughlin, 150 N. Y. 365.)</p> <p>The ruling of the court, admitting the testimony of plaintiffs’ witnesses regarding the conversations between the board of public works and the superintendent of public works and the city engineer and some of the bidders, which took place prior to the filing of the bids and which explained the uncertainty and ambiguity in the specifications and assured the bidders that the board of public works would not require the bidders to grub out the stumps above high-water mark, but would only require them to saw off the stumps and trees close to the ground, was not error. (Petrie v. Trustees of Hamilton College, 158 N. Y. 458; Chapin v. Dobson, 78 N. Y. 74; Middleworth v. Ordway, 191 N. Y. 404; Murdock v. Gould, 193 N. Y. 369; Beattie v. N. Y. L. I. Const. Co., 196 N. Y. 346; Thomas v. Scott, 127 N. Y. 133; Bird v. Beckwith, 45 App. Div. 124; Streppone v. Lemon, 143 N. Y. 626; G. I. W. S. Co. v. Trojan Laundry Co., 126 App. Div. 584; Studwell v. Brush Co., 126 App. Div. 818.) The acceptance by the plaintiffs of the city checks in payment of what is called the final estimates upon these contracts was not an accord and satisfaction. (Harby v. Henes, 45 Misc. Rep. 366; McDonald v. Potter, 57 Misc. Rep. 206; Raugh v. Wolf, 110 N. Y. Supp. 923; Dineen v. Gen. Accident Co., 110 N. Y. Supp. 344; Schermerhorn v. Gardinier, 46 Misc. Rep. 280; Stratton v. Hunt Sullivan Co., 100 N. Y. Supp. 846; Shaver v. Armstrong, 52 Misc. Rep. 626; Smith v. Mayor, etc., of N. Y., 4 N. Y. Leg. Obs. 423.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 20, 1914, which modified and affirmed as modified an order of Special Term granting a motion to set aside a satisfaction of a judgment and to permit execution to issue on the judgment.

The defendant operates a fertilizer factory on Barren Island.. The .plant consists of a large building known as the “mill building,” and attached to three sides thereof were so-called sheds. One of these sheds, on the east side, was seventy-five feet wide east and west, and three hundred and fifty feet long north and south.

The nature of the action and the facts, so far as material, are stated in the opinion. There is absolutely no evidence in this case to prove that the money was not transmitted ‘to the Bank of Rome.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 10, 1913, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and granting a new trial in an action upon a contract of guaranty.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judical department, entered January 27, 1912, modifying and affirming as modified a judgment of Special Term in an action for an accounting.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 27, 1911, which reversed an order of the Kings County Court striking out as frivolous the answer of defendant in an action to foreclose a mortgage on real property.

Hutchings upon the submission of a controversy, under section 1279 of the Code of Civil Procedure, relating to the title to certain premises formerly owned by Ebenezer J. Hutchings, deceased, and disposed of under the first clause of his will.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in' the first judicial department, entered December 30, 1911, affirming a -judgment in favor of defendant entered upon the report of a referee in an action for divorce.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 24, 1913, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court at Special Term and granting a new trial in an action to establish title in certain lands.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 14, 1913, which reversed an order of Special Term overruling a demurrer to the counterclaim contained in the answer of defendants, appellants, and sustained such demurrer in an action of replevin.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 8,1911, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and granting a new trial in an action to compel specific performance of an alleged contract for the sale of real property or recovery of the deposit paid and expenses.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered September 18,- 1913, affirming a judgment in favor of defendant entered upon a decision of the court at a Trial Term without a jury in an action to determine in whom rested title to the office of supervisor of the town of Lake Pleasant.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 29, 1911, reversing a judgment in favor of defendant entered upon a verdict directed by the court in an action to recover commissions alleged to be due plaintiff under a certain written agreement.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 17, 1912, in favor of defendant upon the submission of a controversy under section 1279 of the Code of Civil Procedure as to the liability of the defendant for the value of merchandise destroyed by fire while in its possession as a common carrier.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 15, 1912, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to enforce a mechanic’s lien.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 29, 1911, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action to recover for an alleged breach of contract.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 8, 1912, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action to recover for an alleged breach of contract of employment.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered August 6, 1912, affirming a judgment in favor of defendants entered upon a verdict in an action to recover upon certain promissory notes.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered September 20, 1912, affirming a judgment in favor of plaintiff entered upon a verdict in an action by plaintiff to recover his share of the rentals derived from certain premises of which he and the defendant ’were owners as tenants in common.</p>