Volume 22 — New York Appellate Division Reports

<p>Business corporations — action for unpaid subscriptions to stock—-an incorporator and director is estopped to question the validity of the incorporation — application of payments on original and non-original subscriptions—validity of a special, meeting of the directors and of a resolution passed thereat—proof of an election as director — the filing of a certificate with the Secretary of State as a prerequisite to doing business — compelling payment of subscriptions is not “ doing business”— release of a stockholder from his subscription.</p> <p>In an action brought by a stock corporation against a subscriber who was one of the original incorporators of the company and, as a director of it, for some months, took part in the conduct of its business, to recover an alleged unpaid balance upon two separate subscriptions for shares of stock (one of which was an original subscription made for the purpose of organization), the subscriber is not in a position to question the validity of the organization of the corporation.</p> <p>The failure of the subscriber to pay ten per cent upon the original subscription at the time it was made, does not render it void, as under the Stock Corporation Law (Laws of 1890, chap. 564, § 41) such a payment is not necessary to the validity of an original subscription made for the purpose of organizing the corporation; nor, when it appears that, at the time the second subscription in question was made, a sum of money was paid by him for the purpose of making that subscription valid, and upon information given by his counsel that such payment complied with the law, can the subscriber subsequently claim that he intended that amount to pay his original subscription in full, and that only the balance should be applicable to his second subscription, this balance being insufficient in amount" to make that subscription valid, especially where there is no proof that the corporation assented to such intended application of the money.</p> <p>A resolution passed at a special meeting of the board of directors of a corporation (although its by-laws make no provision for a special meeting), held without objection and not in violation of any by-law, at a proper place, upon notice to all the persons elected as directors, and who have accepted the office, and where all such persons are present, is valid, and its authenticity is sufficiently established when it is found recorded in the minutes of the corporation with the signature of the secretary duly affixed thereto, although the minutes may not be in his handwriting.</p> <p>The mere election of a person as a director of a corporation, where he neither accepts the position nor acts as such, is not sufficient to establish the fact that he is a director.'</p> <p>The procuring of subscriptions to the capital stock of a business corporation, incorporated to buy and sell liquors, and the enforcement of the subscriptions, is not a transaction of ‘ ‘ business ” upon the part of the corporation within the meaning of the statute (Laws of 1890, chap. 567, § 8) requiring the previous filing of a certificate by such a corporation, with the Secretary of State, as a condition precedent to the transaction of any business.</p> <p>Semble, that a subscriber who has sworn to such a certificate, filed with the county clerk alone, and who has also participated in whatever business the corporation did, is estopped from questioning the right of the corporation to pass a resolution calling for the payment of subscriptions to its stock.</p> <p>A subscriber cannot be released from his liability to a corporation upon his subscription to its stock by a promise to that effect made, without consideration, by its president, in the absence of any action, in the premises, upon the part of the corporation itself.</p>

<p>Sale — an agent cannot warrant quality — affect of a failure to retwrn unfit goods — no implied wwrranty of quality attends a sale of goods by a dealer not their manufacturer.</p> <p>Where a contract of sale of merchandise is made through an agent of the seller there is no implied authority on the part of the agent to warrant the quality of the goods sold, unless it shall be made to appear that it was the usual custom for an agent to warrant such goods, or actual authority to do so was given to him. Where the vendor claims that an absolute sale of goods was made, and the vendee that he was given a right to use part of the goods in order to test them, with the privilege of returning the remainder if the goods proved unfit for his purpose, the burden is upon the vendee to show that he inspected the goods and rejected them within a reasonable time; and where it appears that, although he made a complaint that the goods were unfit for his purpose, he never returned any of them, he cannot escape liability for the purchase price.</p> <p>Where the seller is not the manufacturer of the goods, the fact that he knew the purpose for which the goods were purchased is not sufficient to raise an implied warranty of quality.</p>

Appeal by Horace H. Chittenden, assignee of the estate of A. S. Hatch & Company and A. S. Hatch, individually, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York oh the 5th day of April, 1897, confirming the report of a referee, establishing claims against the assigned estate, and granting an extra allowance of costs.

Appeal by the plaintiff, Charles H. Moses, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 3d day of September, 1897, requiring him to furnish a further bill of particulars.

Appeal by the plaintiff, The First Rational Bank of Paterson, R. J., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rew York on the 18th day of February, 1897, upon the decision of the court rendered after a trial at the Rew York Special Term dismissing the complaint.

Appeal by the defendant, Smith M. Weed, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of January, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of January, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Leopold Miller and others, from a jndgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 20th day of February, 1897, upon the verdict of a jury rendered by direction of the court.

<p>Gift inter vivos — necessity of a delivery — when an incomplete gift ca/nnot be construed to be a declaration of trust,</p> <p>A delivery of the subject of a gift inter vivos is absolutely essential to the validity of the gift.</p> <p>The owner of premises, already subject to a first mortgage given by him to a bank, conveyed them to a party whom, With her husband, he required to execute a bond and a mortgage covering the equity of redemption, stating that he had done so by advice of his lawyer and as a mere matter of form, and assuring her, as he repeatedly did others, that it was his intention to give her the house subject only to the first mortgage; and although he handed her the bond and mortgage he did not surrender control over them, but thereafter took and deposited them in a bank, together with the deed, under an arrangement that they were to he delivered only upon his order, where they remained until his death. Held, that the mere form of passing the bond and mortgage to the grantee, at the time of their execution, was not sufficient to establish a completed gift of them to such grantee;</p> <p>That an order signed by the grantor on the day before his death, directing the comptroller of the bank to deliver the papers to the grantee, and stating, “The deed belongs to her,” could not be construed as a delivery of the bond and mortgage to the grantee, or a declaration that they were her property; That, under such circumstances, the court would not sustain the transaction as a declaration of trust, in order to effectuate the intention of the grantor and make valid his imperfect gift.</p>

Appeal by the defendant, The Mail and Express Publishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of February, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of February, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Charles J. Schulze, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of June, 1896, upon the decision of the court rendered after a trial at the New York Special Term. This actión was brought to foreclose a mortgage for $8,500 on premises in the city of New York.

Appeal by the plaintiff, The London Assurance Corporation, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of March, 1897, upon the report of a referee.

• Appeal by Elie Stacey Charlier and others, from so • much of a decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 29th day of April, 1897, as adjudges that the objections raised by the answers filed in the proceeding be dismissed'as unproven and not sustained, and as adjudges and determines the legal construction of the 3d and 5th paragraphs of said will.

<p>Appeal by the defendant, The Equitable Life Assurance Society of the United States, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of Hew York on the 14th day of May, 1897, directing the service by it of a verified bill of particulars.</p>

Appeal by the defendant, Patrick Grotty, from a judgment of the Oourt of General Sessions of the Peace in and for the city and county of New York, rendered on the 18th day of February, 1897, convicting him of selling liquor on Sunday.

Appeal by the defendants, Olga Felicitas Heinicke and others, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 2d day of April, 1891, upon the report of a referee.

Appeal by the petitioner, the Hay. Foundry and Iron Works, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of July, 1897, denying its motion to punish William J. Purdy for contempt of court.

Appeal by the defendant, Edward L. Carey, from so much of an •order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of June, 1897, as overrules his exceptions filed to the report of a referee, to whom it was referred, to ascertain the liens upon the surplus moneys, and as confirms the said report and •directs the chamberlain of the city of New York to pay to the claimant, J ames E.…

Appeal by the plaintiff, Adolph Segal, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of September, 1897, requiring the plaintiff to give security for costs.

Appeal by the defendant, George Gildersleeve, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of August, 1897, denying the motion of the said defendant to vacate the execution issued by the plaintiff herein, and to punish the plaintiff and his attorney for contempt for issuing the same.

Appeal by the defendant, The Broadway Improvement Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of February, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of February, 1897, denying the defendant’s motion for a new trial made upon the minutes. .

Appeal by the plaintiff, Joseph Raynor, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 15th day of March, 1897, upon 'the dismissal of his complaint directed by the court after a trial at the New York Special Term, and also from an order entered in said clerk’s office on the 15th day of March, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal .by the defendant, William C. Lesster, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 1st day of July, 1897, denying his motion to vacate or modify an order appointing a receiver in this action of the rents of the premises affected thereby, and directing that the receiver pay such rents to the respondent.

<p> Appeal—review by the Appellate Division of a decision " stating concisely the grounds upon which, the issues have been decided.” </p> <p>A judgment entered upon a decision filed pursuant to section 1022 of the Code of Civil Procedure, as amended hy chapter 688 of the Laws of 1894, and hy chapter 946 of the Laws of 1895, ‘ ‘ stating concisely the grounds upon which the issues have been decided,” may be upheld notwithstanding the fact that the grounds specified in the decision are insufficient to warrant it, since the grounds of decision are not tantamount to findings of fact under the former practice; consequently, that the decision rendered is not justified by the grounds specified is not a sufficient reason for the reversal of the judgment. The brief decision is equivalent to the general verdict of a jury, and entitled to the same presumptions in its support; and, where the papers on appeal do not contain the evidence, the Appellate Division will assume that the decision was rendered upon adequate proof of every essential fact alleged in the complaint or petition.</p>

Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of March, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Denis Mullins and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of April, 1897, upon the verdict of a jury, and also from an order, bearing date the 7th day of May, 1897, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the relator, Keppler & Schwarzmann (a corporation), from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of New York on the 8th day of June, 1897, upon an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of June, 1897, quashing a writ of certiorari issued to review the action of the respondents in assessing the…

Appeal by The Hew York Central and Hudson River Railroad Company from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk, of the county of Hew York on the loth day of June, 1897, granting the petitioner’s motion for the appointment of commissioners of estimate and assessment.

Appeal by the plaintiff, Joseph Goodman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of April, 1897, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, Catharine E. Pierce, from so much of an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 2otli day of May, 1897, as stays her proceedings and the proceedings of David J. Lees, as receiver under the judgment in the action, pending an appeal to the Court of Appeals, and as permits the plaintiff to perfect said appeal and stay proceedings upon filing an undertaking for…

Motion by the defendants, Robert W. De Forest and others, for a new trial upon a case containing exceptions, ordered to be heard ■ at the Appellate Division in-the first instance upon the verdict of a jury in favor of the plaintiff, rendered after a trial at the New York Trial Term.

Appeal by Whittlesey D. Searls from an order of the Supreme Court, made at the New York Special Term, bearing date the 28th day of July, 1897, and entered in the office of the clerk of the county of New York, granting the motion of the Lake Street Elevated Railroad Company to punish the appellant for a failure to answer certain questions propounded to him.

Appeal by the defendant, William Rogers alias William Kelly, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York in favor of the plaintiff, rendered on the 22d day of April, 1897, convicting him of the crime of grand larceny in the second degree as a second offense, and also from an order denying his motion for a new trial.

Appeal by the defendant, The II. B. Claflin Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Few York on the 13th day of April, 1897, upon the report of a referee.

Reargument ordered, by the Appellate Division o'f the Supreme Court of an appeal by the plaintiff, John Martin Layman, from :an order of the Supreme Court, made at the New York Circuit and ■entered in the office of the clerk of the county of New York on the 28th day of October, 1895, setting aside the verdict of a jury in favor of the plaintiff for $15,000, and granting a new trial.

Appeal by the plaintiff, Paul Caspers, from a judgment of the-Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of March,, 1897, as amended by an order entered in said clerk’s office on the 5th day of April, 1897, upon a nonsuit granted by the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 7th day of April, 1897, denying the-plaintiff’s motion for…

Appeal by the relator, The Bronx Gas and Electric Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 13th day of October, 1897, quashing a writ of certiorari issued to review the assessment of its real property for the purposes of taxation, and also from an order made at the New York Special Term, bearing date the 5th day of October, 1897, and entered in said clerk’s office, upon which…

Appeal by the defendant, Bobert J. Wright, as commissioner of correction of the city and county of Hew York, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 30th day of August, 1897, adjudging the appellant in contempt for disobeying an order of the Appellate Division of the Supreme Court, requiring him to reinstate the relator Fallon in his office or position of warden of the city…

Certiorari issued out of the Supreme Court and attested respec tively on the 21st and 29th days of April, 1892, directed to Frank Campbell, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings in relation to the cancellation of a tax sale of the southeast quarter of township 24, great tract 1, Macomb’s purchase.

Certiorari issued out of the Supreme Court and attested on the 6th day of May, 1897, directed to S. Alonzo Kellogg, a justice of the Supreme Court of the State of Hew York, commanding him to certify and return to the office of the clerk of the county of Clinton all and singular the proceedings taken before him, under section 3 of chapter 685 of the Laws of 1892, known as the Municipal Law.

Appeal by the defendant, William C. Porter, sheriff of Delaware county, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 13th day of Hay, 1897, upon the verdict of a jury directed by the court, with notice of an intention to bring up for review upon such, appeal an order entered in said clerk’s office on the 13th day of May, 1897, denying the defendant’s motion for a new trial made upon the…

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 14th day of June, 1897, upon the decision of the court, rendered after a trial at the Montgomery Special Term, overruling its demurrer to the plaintiff’s complaint.

Appeal by the plaintiff, James Thompson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 3d day of February, 189Y, upon the dismissal of his complaint directed by the court after a trial at the Saratoga Trial Term.

Appeal by the defendant, Michael Cramer, from a judgment of the County Court of Schuyler county, rendered on the 17th day of March, 1896, affirming a judgment of a Court of Special Sessions convicting the defendant of a misdemeanor in selling strong and spirituous liquors without a license.

<p> Mangle—injury to an employee's hand, passing under a rod, not fastened down, over a table from which the mangle is fed,—duty of the master to wanm the servant. </p> <p>Proof that a brass rod, something over an inch in diameter, extending across the front of a mangle about three-eighths of an inch above the table on which the articles to be ironed were placed, was not fastened down at each end so that it was impossible to get a hand under it (the construction of the machine not contemplating it, and no machines with rods so fastened being in use), does not establish negligence on the part of an employer whose servant’s hand is injured by being forced under the rod.</p> <p>Semble, that the operation of such a machine is so plain and the method of working it so easily acquired that, after working it an hour, the employee would learn all that could be learned about it, and that an omission of the employer to warn the employee of the danger attending its use would not constitute negligence which would render the employer liable for an accident occurring after the employee had operated the machine more or less for two days.</p>

Appeal by S. Augustus Silliman, as assignee, etc., of Henry B. Rims and'H. Miles Rims, from an order of the County Court of Rensselaer county, entered in the office of the clerk of the county of Rensselaer on the 23d day of June, 1897, requiring him to render an account of his proceedings as such assignee.

Appeal by the defendant, the Chenango Valley Savings Bank, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 20th day of April, 1897, upon the decision of the court rendered after a trial at the Broome' Trial Term before the court without a ]’U17-

Appeal by the plaintiff, Mary 0. Hewett, from a judgment of the Supreme Court in favor of the defendant Nicholas Suits, entered in the office of the clerk of the county of Montgomery on the 7th day of March, 1897, upon the decision of the court rendered after a trial at the Montgomery Special Term.

Appeal by the defendant, The Fitchburg Railroad Company, ■ from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 21st day of May, 1897, upon the verdict of a jury, with notice of an intention to bring up for review upon such appeal an order bearing date the 19th day of May, 1897, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, George S. Conant, from a final judgment of the Supreme Court, entered in the office of the clerk of the county of St. Lawrence on the 5th day of April, 1897, upon the decision of the court rendered after a tidal at the St. Lawrence Special Term sustaining the defendants’ demurrer to the plaintiff’s complaint, with notice of an intention to bring up for review upon such appeal an order bearing date the 10th day of October, 1896, and the interlocutory…

Appeal by the plaintiff, William A. Walrath, from an order of the County Court of Montgomery county, entered in the office of the clerk of the county of Montgomery on the 19th day of September, 1896, denying his motion to dismiss an appeal taken to that court from a judgment rendered by a justice of the peace, and also from an order entered in said clerk’s office on the 19th day of September, 1896, allowing the defendant to amend the notices of appeal and undertaking given…

Appeal by the defendant, The Albany Railway, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 19th day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of March, 1897, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 19th day of March, 1897, granting…

Appeal by the defendant, Elizabeth F. Griffin, individually and as executrix, etc., of George Griffin, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Greene on the 5th day of October, 1896, upon the decision of the court rendered after -a trial at the Greene County Trial Term before the court without a jury.

Appeal by the plaintiff, Charles C. Becker, from so much of an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Columbia on the 15th day of July, 1897, upon the decision of the court rendered after a trial at the Greene Special Term, as adjudges that the defendant Elizabeth Becker is entitled to a right of dower in the real estate described in the amended complaint herein.

Appeal by the plaintiff, Joseph Madden, an infant, by Margaret Talbut, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 5th day of August, 1897, upon a nonsuit granted by the court at the close of the testimony, on the ground that the Supreme Court of the State of New York had no jurisdiction of the action.

Appeal by the Norwich Light Company, the defendant in the first ahove-entitled action and the plaintiff in the second above-entitled action, from a judgment of the Supreme Court in favor of the plaintiffs in the first above-entitled action and of the defendants in the second above-entitled action, entered in the office of the clerk of the county of Chenango on the 2d day of November, 1896, upon the report of a referee, and also from an order of the Supreme Court, made at the…

Appeal by the relator, W. M. K. Olcott, as district attorney of the county of New York, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 12th day of June, 1897, denying his application for a writ of peremptory mandamus requiring the defendant, The House of Refuge for Women at Hudson, to receive into its custody and to imprison and coniine one Emeline Walker, a female of twenty-four years…

<p> Transfers by a debtor to Ms creditors in contemplation of an assignment—sustained where the creditors were ignorant of his intention. </p> <p>Where an insolvent debtor, in contemplation Of making a general assignment for the benefit of creditors, transfers the bulk of his property to certain creditors for the purpose of evading the provisions of section 80 of the General Assignment Act (Chap. 466 of the Laws of 1877, as amended by chap. 508 of the Laws of 1887), limiting the amount of preferences which may be contained in an assignment for the benefit of creditors to one-third of the assignor’s estate, a creditor who, although knowing that the debtor was insolvent, has accepted his preferential payment in ignorance of such guilty intent on the part of the assignor, cannot be charged with the amount thus received by him.</p> <p>Landon, J., dissented.</p>

Appeal by the defendants, Edward M. Lowman and others, as executors, etc., of Jacob Lowman, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Chemung on the 20th day of July, 1895, upon the report of a referee, and also from an order made at the Chemung Special Term and entered in said clerk’s office on the 18th day of April, .1895, directing the entry of such judgment.

Appeal by the defendants, John J. Cain and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 4th day of May, 1897, upon the decision of the court rendered after a trial at the Saratoga Trial Term before the court without a jury.

Appeal by the plaintiff, Gertrude Harper, as administratrix, etc., of John F. Harper, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 1st day of March, 1897, upon a nonsuit granted by the court after a trial at the Broome Trial Term, and also from an order entered in said clerk’s office on the 16th day of February, 1897, denying the plaintiff’s motion for a new trial made upon the…

Appeal by the plaintiff, J. S. Glen Edwards, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Montgomery on the 24th day of May, 1897, upon the report of a referee.

Certiorari issued out of the Supreme Court and attested on the 7th day of June, 1897, directed to James A. Roberts, Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and' singular his proceedings in assessing upon the relator a business or franchise tax under chapter 542 of the Laws of 1880, and the acts amendatory thereof and supplemental thereto, and the license tax or fee under .chapter 240 of…

Appeal by Theodore E. Hancock, Attorney-General of the State of New York, from orders of the Supreme Court, made at Chambers and respectively entered, in the office of the clerk of the county of Albany, on the 14th day of July, 1897, the 23d day of July, 1897, •and the 18th day of August, 1897, vacating and setting aside an order made for the examination of certain witnesses under the provisions of chapter 383 of the Laws of 1897.

<p>Appeal by the plaintiff, Bradford B. Wilcox, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Madison on the 7th day of February, 1895, upon the decision of the court rendered after a trial at the Madison Circuit before the court without a jury.</p>

<p>Appeal by the plaintiff, John J. Sheldon, as administrator, etc., of Mary E. Sheldon, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Clinton on the 5th day of February, 1897, upon the verdict of a jury, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on 'the 8th day of April, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.</p> <p>The action was commenced on the 9th of May, 1893, and is based upon an instrument, of which the following is a copy:</p> <p>“ $300.</p> <p>“ Rec’d of Mrs. M. M. Sheldon three hundred dollars on deposit.</p> <p>“R. HEATON.</p> <p>“ Rouses Point, Aug. 20, 1864.”</p>

<p>Appeal oy the defendants, John Stotenbur and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Schuyler on the 19th day of November, 1896, upon the report of a referee.</p>

<p>A taxpayer’s action to restrain payment of a claim, — loan to an overseer of the poor—proof insufficient to sustain it — waiver of the defense of the Statute of Limitations by a town board.</p> <p>An application for a writ of mandamus, made in 1895, to compel the payment of a claim arising upon two notes given in 1886 by the supervisor of a town, one of them pursuant to a resolution of the town board, to secure the payment of moneys advanced to the supervisor for the purpose of paying poor orders of said town, and upon which no payments had been made except by the supervisor in question without authority from the town, was denied by the Special Term. The Appellate Division affirmed the decision upon the ground that the claim was unauthorized in its origin, was barred by the Statute of Limitations, and was not above suspicion as to its merits, and that a rescission by the board of town auditors of an alleged audit of the claim was effectual.</p> <p>Pending an appeal to the Court of Appeals the claim was again presented to the ' board of town auditors and it was verbally stated on behalf of the claimant that if the claim was allowed the appeal would be withdrawn. The board allowed the claim, the order for its payment being signed by three of the board, two of whom were interested in the transaction.</p> <p>Held, that a suit would lie by a taxpayer of the town to restrain payment of the order, especially as it did not appear that the town was equitably liable for the amount of the notes ;</p> <p>That the payment made by the supervisor out of his individual funds did not affect the town.</p> <p>Qucere, whether a town board has the right to waive the bar of the Statute of Limitations.</p>

<p>Order of reversal of a judgment for the plaintiff awarding costs to abide the event— the plaintiff succeeding on the second trial may tax costs of the first trial and of the appeal.</p> <p>Where a judgment for the plaintiff, in an action at law, is reversed and a new trial is granted, with costs “ to abide the event,” and the plaintiff again succeeds upon a second trial, he is entitled to tax the costs of the first trial and also those of the appeal.</p>

<p> Negligence—woman killed at a street crossing by an electric car—duty to look again, after a car has passed on the nearest tracks and after she lecmes the street curb, before crossing the further tracks. </p> <p>In an action brought against a street electric railway corporation to recover damages for the death of a woman who, while attempting to pass over a crossing on a street, through which the defendant’s tracks ran easterly and westerly, after dark during a severe storm of wind and rain, which made it impossible even with the aid of an electric light to see the width of the street, was struck and killed by an east-bound car having its headlight burning, the question whether the woman, after stopping at the curbstone until a west-bound car on the track nearest her had passed, was negligent in immediately venturing upon the further track, while holding her umbrella raised in a westerly direction, without looking again to see whether a car was approaching from the west upon that track, is one of fact for the jury; and it is erroneous for the court to charge that if, when she looked from the curbstone, she saw no car coming on the further track she would have a right to cross immediately in the rear of the west-bound car without looking again.</p>

Appeal by Martha Bell Scott and another, as executors, etc., of Caroline S. Knickerbocker, deceased, from an order of the Surrogate’s Court of the county of Saratoga, entered in said Surrogate’s Court on the 19th day of July, 1897, directing them to render an account of their proceedings as such executors.

<p>Appeal by Helen C. McClain, as administratrix, etc., of Anna L. Knapp, deceased, from a judgment of the Ulster County Court, entered in the office of the clerk of the county of Ulster on the 22d day of October, 1896, upon the decision of the court upon the final judicial settlement of the accounts of Alonzo Reed, as committee of the person and estate of Anna L. Knapp, a deceased lunatic.</p>

<p>Agreement by a bondholding committee to buy in a railroad under foreclosure and convey it is not void as stifling competition at the sale — novation sustained by a-consideration valid, when given, but which subsequently fails, and by laches.</p> <p>A contract of August 18, 1875, by the terms of which a committee, representing' practically all the holders of the bonds of an insolvent railroad company, agrees to foreclose the mortgage securing the bonds, buy in the property and convey it to a large operator in coal or to a company to be organized by him, he agreeing to pay the bondholders fifty per cent of their holdings by first mortgage bonds of the new road, and covenanting to secure it sufficient coal freight to pay the interest upon and to form a sinking fund for the payment of the new bonds, is a lawful attempt upon the part of the bondholders to protect their own interest, and cannot, in the absence of any complaint by the stockholders, be condemned as an agreement intended to stifle competition at the foreclosure sale.</p> <p>The coal operator in such case, after forming the new railroad corporation, assigned the contract to it, and it, by a vote of its directors, duly assumed all his liabilities thereunder, including that of paying in its first mortgage bonds for the property foreclosed, except as to the procuring of the contract for freight tonnage, which the coal operator agreed to procure. He subsequently resigned his existing directorship in the new corporation and became the contractor for ■ the construction of its road on anew line, other than (as it had been agreed in the contract of August 13, 1875) upon the property of the insolvent company which it had contracted to purchase.</p> <p>Béki, that the president of and a bondholder in the road foreclosed, a member of the bondholders’ committee, and also the president and a director in the new corporation, who had assented to and voted for the latter’s assumption of the liabilities of the coal operator under the agreement of August 13, 1875, but bad voted against the change of line of the new corporation, could not, after having been defeated in an action brought by him to compel the new corporation, upon tender of a deed of the property foreclosed, to pay him therefor by its first mortgage bonds, for the reason, as declared by the court, that he had violated his duty to the new corporation when he voted to make it assume the obligations of the coal operator to himself, change his position and claim that the new corporation was not bound by the contract of August 13, 1875, and enforce an action against the coal operator for damages alleged to have resulted from its breach;</p> <p>That the coal operator, having fulfilled his promise to the new corporation to furnish it coal traffic sufficient for the payment of the interest upon its first mortgage bonds and for a sinking fund, a valid novation was made out, and .the new corporation must be deemed to have been substituted as the party liable under the contract of August 13, 1875, and the coal operator to have been relieved upon a consideration (the procuring of the coal tonnage contracts) which, although it subsequently failed as to the plaintiff, was valid when the latter accepted it, and that, in view of the long-continued assumption of the validity of the release by the plaintiff, whereby the coal operator had been induced, as contractor for the construction of the new road, to make large expenditures and contracts which he would not otherwise have made, the plaintiff was estopped from claiming that the original contract should be reinstated.</p>

Appeal by the defendants, Benjamin J. Slade and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, and of the defendants Mabel Sheldon and others, entered in the office of the clerk of the county of Saratoga on the 13th day of August, 1896, upon the decision of the court rendered after atrial at the Saratoga Special Term in a partition action.

Appeal by the defendants, Mary L. Payne and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 13th day of March, 1897, upon- the decision of the court rendered after a trial at the Chemung Special Term in an action brought for the foreclosure of a mortgage.

Appeal by the defendant, John Hall, from a judgment of the Supreme Court in favor of the plaintiff, dated the 9th day of January, 1897, and entered in the office of the clerk of the county of Saratoga upon the report of a referee. On the 6th day of September, 1893, the defendant made his promissory note, payable six months after date, to the order of the First Rational Bank of Kansas City, Missouri, for $8,000 at six per cent interest.

Appeal by the defendants, the National Transit Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Allegany on the 9th day of January, 1896, upon the decision of the court rendered after a trial at the Allegany Trial Term before the court without a jury. This appeal was transferred from the fourth department to the third department.

Certiorari issued out of the Supreme Court, and attested on the 29th day of March, 1897, directed to John Bush and others, as justices of the peace of the town of Chateaugay, and Willard S. Alvord, town clerk of the town of Chateaugay, commanding them to certify and return to the office of the clerk of the county of Franklin all and singular their proceedings in conducting the town meeting in that town in March, 1897.

<p>Motion to confirm the report of commissioners appointed by this court to determine whether the Staten Island Midland railroad ought to be constructed on South street in the village of New Brighton, Richmond county, and on a roadway from South street to the ferry at St. George.</p> <p>Objection to the confirmation of the commissioners’ report is made by the Staten Island Rapid Transit Railroad Company, the Rapid Transit Ferry Company and by the Staten Island Electric Railroad Company. These several companies will be briefly designated as the “ Midland road,” “ steam road,” “ ferry company ” and the “ electric road ” respectively.</p>

<p>Taxation — a corporation paying a State tax and also a tax to a city from which the State tax has not been deducted—order that the city refund it.</p> <p>Where a domestic corporation which is, under chapter 543 of the Laws of 1880, exempt from taxation upon its capital stock and personal property, except as provided in that act, and which has, during a period of several years, paid directly to the State the State tax imposed hy such act, pays also, during that period, taxes levied upon its personal property by a city, in ignorance of the fact that any amount for State purposes was included therein, and that it had not had the benefit of the statutory exemption in its favor, the latter payment cannot be considered to have been voluntary; and under the provisions of section 16 of the County Law (Laws of 1893, chap. 686), permitting the board of supervisors of a county to “correct any manifest clerical or other error in any assessment,” and requiring it, upon the order of the County Court, to refund “to any person the amount collected from him of any tax illegally or improperly assessed or levied,” the corporation may, in special proceedings instituted by it, obtain an order requiring the city to refund the amount of such taxes thus unjustly collected within the period of the six years prescribed by the Statute of Limitations.</p>

<p>Appeal by the plaintiff, Charles H. Slianley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 22d day of May, 1897, upon the. decision of the court rendered after a trial at the Westchester Special Term dismissing the complaint upon the merits.</p>

<p>Hire insurance — condition against a chattel mortgage — a waiver must he indorsed upon the policy —promise of the agent to do so, not a waiver—floating policy— insurance severable, where animals insured, are classified and a valuation affixed to each, class — the policy suspended during a breach of a condition.</p> <p>A policy of fire insurance covering horses, oxen, young cattle and sheep, and fixing a limit of value beyond which the insurer, in the event of a loss, should not be liable for any one animal of each class, provided that, unless otherwise provided by an agreement indorsed upon or added to the policy, it should be void if the subject of insurance should be or become incumbered by a chattel mortgage, and that no officer, agent or representative of the insurer should have power to waive such provision or condition of the policy, unless such waiver was written upon or attached to the policy, and that no privilege or permission affecting the insurance should exist or be claimed by the insured, unless so written or attached. The insured gave a chattel mortgage upon the insured property, and subsequently gave a second chattel mortgage for the purpose of discharging the prior mortgage. After the giving of the second mortgage the insured notified the local agent of the insurer, who had the power to act for the insurer in all matters concerning the policy, of the existence of the chattel mortgage, and requested him “tosee to the policy,” and to “ have it all right,” but the agent, although promising to attend to the matter, never made the required indorsement upon the policy, which was at all times in the possession of the insured.</p> <p>Held, that the proof was insufficient to establish a waiver of the breach of the condition, or to estop the insurance company from insisting upon the forfeiture of the policy;</p> <p>That the policy was a floating one, and covered not only such animals as were on the premises at the date of the policy, but also such new stock as the insured might purchase to replace old stock;</p> <p>That the effect of giving the first chattel mortgage was merely to suspend the insurer’s liability under the policy, and that upon the extinction of the first mortgage the liability revived;</p> <p>That the risk was severable, and that, consequently, the insured was entitled to recover the value of such of the destroyed animals as were not included in the second chattel mortgage.</p>

<p>Appeal by the defendant, John A. Seely, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 24th day of Juné, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of July, 1897, denying the defendant’s motion for a new trial.</p>

Appeal by the defendant, William C. Otterson, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of May, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of May, 1897, denying the defendant’s motion for a new trial.

Appeal by the defendant, John M. Hitchings, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Queens on the 15th day of April, 1897, upon the report of a referee.

<p>Slander—order of arrest— the cause of action must not only be stated, but be shown to exist ■— what is sufficient proof that a cause of action exists —proof that the slander was of the plaintiff in his business —proof of one of several causes of action for slander will sustain the arrest—a slander not set forth in hnsc verba.</p> <p>The rule that where the right to an order of arrest depends upon the nature of the action, the affidavits used to procure the order must not only state what the cause of action is, but muse also show that it exists, is sufficiently complied with where both the verified complaint in an action for slander and the affidavit of the plaintiff each positively allege the utterance of the defamatory language set out in the first cause of action, in hcea verba, in the presence of divers persons, and this statement is corroborated by an affidavit of a third person; in such a case a motion, made to vacate the order of arrest, based solely upon the papers upon which the order was granted, is property denied.</p> <p>A complaint in an action for slander which alleges that the plaintiff was president of a corporation, and that the defendant, with intent to damage the plaintiff in his good name, said that the plaintiff had cheated an employee of the corporation, is sufficient, within the liberal system of pleading authorized by sections 481 and 535 of the Code of Civil Procedure, to show that the charge was made against the plaintiff, as an officer of the corporation, while dealing with one of its employees.</p> <p>Where the complaint in an action for slander sets up several causes of action based upon several distinct slanders, an order of arrest may properly he granted although the existence of but one of the causes of action is sufficiently shown by affidavit.</p> <p>Semble, that the question whether a complaint, in an action of slander not demurred to, should allege the defamatory words in hcee verba, cannot be raised upon a motion to vacate1 an order of arrest granted in the action.</p>

<p>Appeal by the defendant, The City of Brooklyn, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 17th day of June, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of June, 1897, denying the defendant’s motion for a new trial.</p>

Appeal by the defendant, the North American Brewing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of April, 1897, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 8th day of April, 1897, denying the defendant’s motion for a new trial.

Appeal by the defendants, Charles H. Sommers and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of' the clerk of the county of W estchester on the 6th day of May, 1897, upon the decision of the court rendered after a trial at the Westchester Special Term declaring null and void an assignment from the defendant Challes H. Sommers to the defendant Mary A. Berrian, and setting the same aside so far as the plaintiff is concerned,…

Appeal by the defendant, the Nassau Electric Railroad Company, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the-county of Kings on the 26th day of January, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of February, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Cross-appeals by Thomas Rogers and another, as trustees of Jason Rogers, deceased, and others, from a decree of the Surrogate’s Court of the county of Westchester, entered in said surrogate’s office on the 16tli day of March, 1897, judicially settling the accounts of the said trustees; also an appeal by Mary J. Westerfield and another from a Dortion of said decree.

Appeal by the defendant, Frank R. Beardsley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 20th day of April, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of April, 1897, denying the defendant’s motion for a new trial made upon the minutes.

<p>Decree of divorce in favor of a second wife—it does not establish the validity of the second marriage in an action between children of the second and a child of the first mamage — its effeot as a judgment in rem.</p> <p>In an action for the partition of real estate it appeared that the deceased owner thereof had in 1863 married a woman in England, who did not die until December 10, 1883; that he had removed to New Jersey in 1867, where an alleged second wife in 1888 began proceedings for, and, in 1890, obtained an absolute divorce from him by a decree which recited, without fixing a date, the fact of his second marriage, which was the only proof of that fact.</p> <p>Held, that the decree and its recital did not estop the sole child of the first marriage from attacking the validity of the alleged second marriage and the legitimacy of the offspring of the parties to it.</p> <p>'The scope and effect of, and parties bound by, a decree of divorce, considered as a judgment in rem, discussed.</p>

Appeal by the defendant, The City of Yonkers, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 3d day of July, 1897, upon the decision of the court rendered after a trial at the Westchester Special Term.

Appeal by the plaintiff, John G. Cosgray, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 15th day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of March, 1897, denying the plaintiff’s motion for a new trial.

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

Appeal by the defendant, Abbott Augustus Low, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the.county of Dings on the 4th day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of March, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Annie Pfluger, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day- of February, 1897, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 26th day of February, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, John Clark and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15tli day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of March, 1897, denying the defendants’ motion for a new trial.

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

Appeal by the defendant, Edward Everett, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of August, 1897, denying the motion of the defendant (who had appeared specially) to set aside an order for the publication of the summons in the action, and also from an order entered in said clerk’s office on the 30th day of August, 1897, denying the defendant’s motion for an…

Appeal by the plaintiff, The William H. Frank Brewing Company, from so much of an .order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 5tli day of June, 1897, as' grants the defendant’s motion to strike out portions of the plaintiff’s reply as irrelevant, redundant and as new matter inconsistent with the complaint.

<p>'Consents to the construction of a street raibroacl — a corner lot situated opposite the outer curve of the proposed route must be counted—whether a railroad must obtain sufficient consents for an entire route before it commences to construct any part of it.</p> <p>In estimating whether a street railroad corporation has obtained the consents of the property owners along the route of its proposed road, required by the Constitution and the Railroad Law, the consent of the owner of a comer lot situated opposite a corner around which and at the intersection of two streets through which it is proposed that the railway shall run, and opposite the outer curve of the road, is to be counted.</p> <p>Quaere, whether a railroad, describing in its articles of incorporation several proposed routes, can commence the construction of any one of them until it has obtained the necessary consents for that entire route.</p>

Appeal by the defendant, Daniel J. Creem, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of March, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Katie Abbe, from a judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of the county.of Kings on the 11th day of June, 1897, upon the dismissal of the complaint directed by the court after a trial before the court and a jury.

Appeal by the plaintiff, Alonzo E. De Baun, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 10t-h day of July, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint upon the merits.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from an order and judgment of the County Court of Kings county, entered in the office of the clerk of the county of Kings on the 2d and 3d days of July, 1897, respectively, affirming a judgment of a justice of the peace. This action was brought to recover damages for the loss of a dog belonging to the plaintiff, which was run over and killed by one of the defendant’s cars.

Appeal by the defendant, the Hall Signal Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 24th day of April, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of April, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Ann O’Farrell, as administratrix, etc., of Patrick O’Farrell, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Dutchess on the 24th day of April, 1897, upon the dismissal of the complaint directed after a trial at the Dutchess County Trial Term.

Appeal by the defendant in each of the four above-entitled actions, the Brooklyn Elevated Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff in each of them, entered in the office of the clerk of the county of Kings on the 2d day of April, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term.

App'eal by the defendant, Rudolph Federall, from a judgment of the County Court of Richmond county in favor of the plaintiff, entered in the office of the cleric of the county of Richmond on the 20th day of April, 1897, affirming a judgment of a justice of the peace.- The action was brought to recover the value of certain paint alleged to have been sold and delivered to the defendant by the plaintiff.

Appeal by the plaintiff, Ann Turnbull, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 29th day of December, 1896, upon the decision of the court rendered after a trial at the Westchester Special Term dismissing the complaint upon the merits.

Appeal by the plaintiffs, Edward Borke and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 9th day of April, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint upon the merits.

Appeal by the defendant, Patrick Flanagan, from a judgment of the County Court of Westchester county, rendered on the 21st day of June, 1897, convicting the defendant of the crime of robbery in the first degree, and also from an order denying the defendant’s motion for a new trial.

Appeal by the plaintiff, Johanna Barnes, as administratrix, etc., of William Barnes, deceased, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 12th day of August, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term sustaining the defendant’s demurrer to the complaint.

Appeal by the plaintiff, the David Stevenson Brewing Company, from a judgment of the Supreme Court in favor of the defendant, the Eastern Brewing Company, entered in the office of the clerk of the county of Kings on the 21st day of April, 189(5, upon the decision of the court rendered after a trial at the Kings County Special Term, except from so much of said judgment as directs that the plaintiff recover of the defendants Blaney the sum of $3,030.46.

Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of March, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Edward Moore and another, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Dutchess as of the 28th day of April, 1897, upon the decision of the court rendered after a trial at the Dutchess County Special Term, with notice of an intention to bring up for review upon such appeal an intermediate order entered in said clerk’s office on the 3d day of June,…

<p> Payments made by a mortgagor to an attorney in possession of the bond and moi'tgage, and acting under the direction of an agent of the mortgagee. </p> <p>Payments of’ monthly installments and interest due upon a purchase-money mortgage made, to the knowledge of the mortgagee, by the mortgagor to an attorney who had charge of the sale out of which the mortgage arose, retained possession of the bond and mortgage, and was authorized by the father amPgeneral manager of the mortgagee to receive the payments, are to be credited to the mortgagor.</p>

Appeal by the defendant, Robert Burrowes, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the. clerk of the county of Queens on the 24th day of December, 1895, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an order entered in said cleric’s office on the 18th day of September, 1893, referring the ■action.

Appeal by the defendant, Charles Katz, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 3d day of June, 189Y, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of June, 1891, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, James K. O. Sherwood, as receiver of The Philadelphia, Reading and New England Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 29th day of April, 1897, upon the decision of the court rendered after a trial before the court without a jury.

Appeal by the plaintiff, Henry Lamb, as administrator, etc., of Mary Lamb, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the bounty of Kings on the 16th day of February, 1897, upon the dismissal of the complaint directed by the court after a trial at the Kings County Trial Term, and also from an order entered in said •clerk’s office on the 25th day of February, 1897, denying the plaintiff’s motion for a new…

Appeal by the plaintiff, Richard Howell, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the cleric of the county of Kings on the 22d day of March, 1897, setting aside the verdict of a jury and granting the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Christopher Johannes and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 22d day of May, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, The Exempt Firemen Association of Long Island City, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 28th day of June, 1891, upon the decision of the court rendered after a trial at the Queens County Special Term.

Appeal by the defendant, Jennie E. Musgrave, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 29th day of June, 1897, upon the report of a referee.

Appeal by the defendant, The Norwood Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 5th day of January, 1897, upon the report óf a referee, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 15th day of April, 1895, granting a temporary injunction; also, an order entered in said clerk’s office on the 23d…

Appeal by the plaintiff, Joel A. Hamilton, from an order of the Supreme Court, made at the Chemung Special Term and entered in the office of the clerk of the county of Tioga on the 5th day of April, 1897, granting the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Richard H. Van Alstyne and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 15tli day of February, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Jay S. Corbin, from an order of the Supreme Court, made at the Schenectady Special Term and entered in the office of the clerk of the county of St. Lawrence on the 16th day of April, 1897, directing a reference of the issues in the action. The action is brought by the plaintiff for professional services alleged to have been rendered from and including the year 1885, to and including the year 1895.

Appeal by the plaintiff, Josephine True, as administratrix, etc., of Charles R. True, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Tompkins on the 6tli day of April, 1897, upon a nonsuit granted by the court after a trial at the Tompkins Trial Term, and also from an order entered in said clerk’s office on the 22d day of March, 1897, granting the defendant’s motion for a nonsuit.

Appeal by the defendant, Edwin A. Weed, from a judgment of' the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 11th day of August, 1897, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office-on the 6th day of February, 1897, directing a reference of the issues-in the action.

<p>Appeal by the defendant, William W. Wheeler, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Franklin on the 11th day of February, 1897, upon the decision of the court, rendered after a trial at the Franklin Trial Term before the court without a jury,, adjudging the plaintiffs to be the owners of the lands therein described, and that the patents of the defendant are a cloud upon the plaintiffs’ title thereto.</p>

Appeal by the defendant, Theodore F. Wood, as treasurer of the United States Express Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 19th day of April, 1897, upon the verdict. of a jury, and also from an order entered in said clerk’s office on the 19th day of April, 1897, denying the defendant’s motion for a new trial.

Appeal by Mary T. Clark, the plaintiff in each of the above-entitled actions, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 20th day of October, 1897, staying proceedings in each of the above-entitled actions.

Appeal by the defendants, John King and another, as receivers, etc., of the New York, Lake Erie and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, ■entered in the office of the clerk of the county of Sullivan on the '28th day of December, 1896, upon the verdict of a jury for $250, .and also from an order entered in said clerk’s office on the 12th day ■of January, 189Y, denying the defendants’ motion for a new trial made upon the…

<p>Appeal by the plaintiff, Henry L. Wheeler, as surviving administrator of Gilderoy Lord, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of St. Lawrence on the 4th day of December, 1896 upon the report of a referee.</p>

Appeal by the defendant, Fred W. Burnham, from an order of the County Court of St. Lawrence county, entered in the office of the clerk of the county of St. Lawrence on the 18th day of October, 1897, dismissing the appeal of the defendant from the judgment of the Court of Special Sessions held in and for the village of Gouverneur, convicting the defendant of petit larceny, and- thereupon imposing sentence upon him.

Appeal by the defendant, Rufus E. Belding, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 24th day of March, 1897, upon the report of a referee. , The action was brought to recover against the appellant as indorser upon a promissory note for $500, dated September 2,1893, and payable with interest two years from date.

<p>Judgement affirmed, with costs. — Appeal from judgment entered after trial at Special Term.</p>

Judgment affirmed, with costs.— Appeal from a judgment entered upon the decision of the court dismissing the plaintiff's complaint upon the merits.

<p>Judgment affirmed, with costs.—Appeal from judgment dismissing complaint at Trial Term.—</p>

Judgment affirmed, with costs.—Appeal from a judgment in favor of plaintiff, entered upon a decision of the court after a trial at Term.—

Judgment reversed, without costs, and judgment ordered for plaintiff as directed in opinion. —Appeal from judgment entered upon report of a referee.—

<p>•Judgment affirmed, with costs.—Appeal from judgment entered upon report of a referee.—</p>

Judgment reversed, and judgment ordered for plaintiff as directed in opinion, without costs of appeal.—Appeal from judgment entered of a referee.—

Proceedings annulled and relator reinstated, with fifty dollars costs and disbursements.— Writ of certiorari to review the action of the respondents, the board of police of the city of New York, in dismissing the relator from the police force.—

<p>Proceedings annulled and relator reinstated, with costs.— Certiorari to review dismissal of relator from the police force.—</p>

Judgment affirmed, with costs. — Appeal by defendants from final judgment in favor bf plaintiffs, entered by direction of the court on confirmation of the referee’s report pursuant to the order made by the Appellate Division.-

Judgment and order affirmed, with costs.— Appeal from judgment entered on verdict and from order denying motion for new trial.—

Order reversed, with ten dollars costs and disbursements, and matter remitted to the court below for rehearing.—Appeal from order denying the' petitioner’s application to require the reeiver to his etc.

Judgment and order against the defendant Isabella Ross reversed and new trial granted, costs to abide the event; judgment and order against the defendant Roderick Ross revérsed and new trial granted, costs to abide the event, unless the plaintiff within twenty days stipulates to reduce the recovery of damages to $125, in which case the judgment as modified and order are affirmed, without costs to either party.— Appeal from judgment in favor of plain biff, and from order…

Judgment and order affirmed, with costs.—Appeal from a judgment entered upon the verdict of a jury, and from an order denying defendant’s motion for a new trial.-

Judgment affirmed, with costs.—Appeal from a judgment entered upon the decision of the court, dis missing plaintiff’s complaint upon the merits.—

Judgment of County Court reversed, and that of the justice modified, by striking therefrom the direction that the complaint be dismissed on the merits, and as modified, affirmed, without costs in the County Court or of this appeal.—Appeal from a judgment of the County Court, reversing a judgment of a justice of the peace in favor of the defendant.—

Orders affirmed, with ten dollars costs on one appeal and disbursements on both.—Appeal from an order denying the defendants’ motion to vacate and set aside an order requiring the defendant Friend C. Haight to appear and submit to an examination before trial.—

<p>Judgment modified as per memorandum, and as so modified, affirmed, without costs to either party.</p>