Volume 22 — New York Miscellaneous Reports

<p>Work, labor and materials — To whom the credit was given.</p> <p>Proof, made in an action brought to recover for work, labor and materials, tending to show that the plaintiff had formerly furnished - goods to a hotel association at Long Beach upon the terms that he was to be paid therefor in board at the hotel; that, after he had declined to accept such an arrangement in the future, an employee of the association, who was also a hotel proprietor in New York city, ordered goods for the hotel at Long Beach upon his own credit; that the goods were charged and sent to the defendant personally; that he subsequently made repeated promises, by telegram, ■ that he would pay the debt, and that, finally, when the hotel was about to close for the season, changed his position and claimed that the debt was" that of the hotel association, is sufficient to justify a recovery by the plaintiff against the defendant.</p>

<p>Assault and battery — Dormer conviction of the plaintiff for an assault on the defendant.</p> <p>Where a person brings an action against a police officer to recover damages for an assault and battery alleged to have been committed upon him by the officer, while taking the plaintiff from his, residence, where he had had. a disturbance with his wife, to the station-house, the officer cannot, in his own defense, prove the record of the conviction, in a Police Court, of the plaintiff for an assault made upon him while he was conveying the plaintiff to the station-house on the night in question, as the record of a conviction for a crime is not admissible in a civil action to prove- the fact upon which it was rendered.</p>

<p>Offer and acceptance — Arbitration ás a condition precedent.</p> <p>Where, upon a settlement of a claim against the property of his ■ wife, a husband offers to pay a certain sum and the claimant accepts .it,1 reserving, however, the claim of a third person which is stated to be “ subject to arbitration,” the claimant cannot recover the item of the husband where no arbitration has been had,- nor can he recover at all where the facts tend to show that the arbitration, in view, was to be had, not between the husband and the claimant but between the claimant and the person who had furnished the goods to the house.</p>

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

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

<p>Liability of trustees under section 7, chapter 319, Laws of 1848 — Judgment in action against corporation. - ■</p> <p>Where an' action is brought against trustees of a hospital incorporated under chapter 319 of the Laws of 1848, to enforce their liability under section 7 of said act, for a debt of the corporation, a judgment-roll filed in a former action brought by the plaintiff against the corporation is inadmissible to- prove the existence of the debt as against the trustees, and the burden is upon the plaintiff.to show affirmatively and independently that the trustees authorized the contraction of the debt for which the former judgment was recovered.</p>

<p>. Appeal from an order directing the issue of-a new execution! against the person and directing the surrender of defendant to the sheriff,</p>

<p>Aepeaí from án order granting the defendant’s motion for a bill of particulars.</p>

dismissed as not stating facts sufficient to constitute a cause of action.

-Bills and notes — After proof of fraud, the holder must show that he is a bona fide purchaser.

<p>Condemnation of the fee of a street — Private easements — Measure of damages.</p> <p>Where the owners of land abutting upon a street, shown on the city map of New York, authorized by chapter 115 of the Laws of 1807, and subsequently projected easterly to the exterior street, adopted by the city common council in 1859, have, ' by their conveyances, among each other so dealt with the fee in the street, that, while retaining title to it, they have reciprocally created private easements in it, they become, in the absence of the requisite clear proof of ■ a dedication of the fee in the street to the public use, entitled, upon an absolute condemnation of it by the city, to damages which, while necessarily more than nominal, cannot be the full value, but only such value as it has, subject to the existing private easements.'</p>

Demubbeb to complaint on the ground that it does not state facts sufficient to constitute a cause of action, and that there is a defect of parties defendant.

<p>Motion, upon the minutes, to set aside a verdict, and for a new trial.</p>

<p>Motion made in behalf of David J. Davis, to vacáte and set aside the decision of commissioners made in the above-entitled matter in favor of laying out the proposed highway and awarding damages. The proceeding • was commenced, pursuant to the Highway Law, in the summer of 1896. Albert T. Wilkinson, Julius A. Day and Albert P. Seaton were appointed commissioners. The commissioners personally viewed the premises and took a large amount of evidence. The decision was filed in July, 1897.</p>

<p>1. Constitutionality of chapter 392, Laws 1897, relative to vacating a cancellation of tax sale.</p> <p>Chapter. 892 of the Laws of 1897, amending the Tax Law (Laws of 1896, chap. 908; art. 6, § 141), and authorizing the comptroller to set aside any cancellation of sale made by him or by any of his predecessors in office, is constitutional, as the office of comptroller is a continuing one, and the new incumbent merely takes up its business at the point where his predecessor left it.</p> <p>2. Same — Injunction denied — Remedy at law — Injury not irreparable.</p> <p>A temporary injunction will not be granted, in an action brought to restrain the comptroller from granting an application presented to him to vacate a cancellation of sale, made by one of his predecessors in office, where the acts of the comptroller are not final, but may, if erroneous, be reviewed by a writ of certiorari, nor where the plaintiffs have an adequate remedy at law, nor where it does not appear affirmatively that positive injury to the plaintiffs- will follow if the injunction is refused.</p>

<p>1. Insanity Law — Complaint by a státe hospital to recover against a father for the board of his child, not a minor.</p> <p>A complaint in an action, brought in the name of a state hospital under the provisions of chapter 460 of the Laws of 1897, which merely alleges that a person,' not stated to be a minor, was legally committed in 1893, to an asylum, which in 1895 was transferred to the-state and became the hospital which brought- the action, that the- ' patient is without means, and that the defendant, who is his father, is tfie owner of valuable real estate and other property, and that at the-rate fixed by the state commission in" lunacy, for the care of the-patient, an indebtedness has been contracted upon his part, and demanding judgment against the defendant for that amount, does not: state a cause of action entitling the hospital to recover under any of the provisions of the Insanity Law (Laws of 1896, chap. 545).</p> <p>3. Liability of a relative for the board of a patient.</p> <p>Semble, that, before any relative can be legally charged with any liability for the board of a patient in a state institution, an order must be made establishing the remissness of the relative and directing the confinement of the patient at his charge and expense.</p>

<p>Life insurance — Equity will not relieve from á legal forfeiture — Complaint and demurrer.</p> <p>A complaint which alleges, in substance, that three annual premiums had been paid upon two several policies of life insurance; that thereafter there was a default; that the plaintiff thereupon became by the terms of the policies entitled to paid-up policies of a certain ‘amount, provided the policies were surrendered, duly receipted, ¡within six months of the date of the default; that they were not so surrendered because of the financial trouble and mental distress both of the insured and of the plaintiff, the assignee of the policies, and demanding as relief the issuance of paid-up policies, is demurrable, as equity will ■not relieve an insured person or his assignee from the consequences of a legal forfeiture.</p>

<p>Stock Corporation Law — A stockholder is not personally liable to the attorney of a corporation.</p> <p>■An attorney-at-law employed, but not exclusively, by a corporation, at a salary of $50 per week, and not having his office in any building nor upon any property belonging to the corporation, cannot maintain an action, under the provisions of the Stock Corporation Law (Laws of 1892, chap. 688, § 54), making the stockholders of every stock corporation “personally liable for all debts due'and owing to any of its laborers, servants or employees other than contractors, for services, performed by them for such corporation,’’ as he is neither a laborer, servant, nor employee, within the meaning of the statute, while the-' word “ contractors,” as used in the statute, refers merely to persons, who perform work and furnish materials.</p>

<p>Action for an accounting and for the appointment of a re-' ceiver.</p>

<p>Funeral expenses are a charge against the estate of a decedent — Form of action.</p> <p>The necessary and suitable expenses and services, attendant upon the burial .of a decedent, ordered by his widow, are, in; the 'absence of proof that they were incurred and rendered upon her own credit, a charge against the estate of the ¡decedent alone; and an action for their recovery is properly brought against the executrix in her representative capacity.</p>

<p>, Creditor’s action to subject mortgaged chattels to the satisfaction of plaintiffs’ judgments.</p>

<p>1. Negligence-—Duty of one crossing a railroad — Looking but once — Presence of smoke.</p> <p>Proof that a person, intending to take an accommodation train, which ran upon that one of four tracks which was farthest from him, attempted to cross the tracks at a point beyond the station where crossing was permitted, but where there was neither planking nor flagman; that he looked in both directions only at. a point a few feet from the first track, and when the point of crossing was obscured by the smoke of the accommodation train which was passing on the fourth track; that he then knew that an express train, moving at the rate of thirty-five miles an hour in the same direction as the accommodation train, not stopping at the station, and which ordinarily could have been seen by him at a distance of about a mile, would be due within a. minute upon the third track, and that he went forward ' and was killed by the express train on that track, which was distant only thirty-four feet from the point where he looked in' both directions, indicates that the deceased was guilty of contributory negligence as matter of law.</p> <p>2. Practice on setting aside a general verdict, directed upon a special verdict — Dismissal of complaint.</p> <p>Where a general verdict, directed to be entered upon a special ver-. diet rendered under the provisions of section 1187 of the Code of Civil Procedure, as amended in 1895, and covering both issues of fact arid the amount of damages, is set aside by the trial judge, together with the special verdict, he has power, although he has already once denied a motion made to dismiss the complaint, to reconsider that motion and, upon concluding that in no view of the evidence and findings can the plaintiff recover, tiiay. dismiss the complaint, with costs, as the plaintiff is shown not to be entitled to a new trial of the action.</p>

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

Appeal by plaintiff, a judgment creditor of the defendants, from an affirmance on September 27, 1897, by the General Term of the City Court, of an order of the Special Term, made July 1, 1897, vacating an order for the examination of the respondent George Heather, made June 21, 1897, in proceedings supplementary to execution.

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

<p>Appeal by defendants from an affirmánce by the General.Term of the City Court of a judgment in favor of plaintiff.</p>

<p>Appeal by defendant from an affirmance by the G-eneral Term of the City Court of a judgment in favor of plaintiff.</p>

<p>1. Negotiable instruments — Bona fide holder — Acceptance for accom.7 modation of payee.</p> <p>The defense that a draft was made and accepted without consideration and for the accommodation of the payee is not available, either to the drawer or to the acceptor, as against a bona fide holder for full value and before maturity.</p> <p>2. Same — Admission that a corporation accepted — Estoppel by pleading.</p> <p>Where the acceptor, a corporation, interposes to an action brought upon the draft an answer which expressly admits that it accepted it, thajt statement, under the provisions of section .522 of the Code of Civil Procedure, “ must, for the purposes of the action,, be (taken as true,” and the corporation cannot subsequently avail itself of allegations of the answer, stating that it received no donsideration and that the acceptance was unauthorized, as a means of attacking the validity ■of the acceptance. '</p> <p>Bernstein v. Crow, 20 Mise. Hep. 729, affirmed.</p>

<p>Negotiable instruments—Usurious discount by private banks—Counterclaim by parties accommodated, for illegal interest paid.</p> <p>Where an action is brought by a private’ and individual banker upon a note which he has discounted for the defendants, its maker and indorser, they may successfully interpose a counterclaim based upon allegations and proof that the note was given in part renewal of one for a larger sum which, with its earlier renewals, were discounted by the plaintiff for the defendants’ accommodation at usurious rates, as the plaintiff thereby became liable to them, under the banking laws of the state (Laws, of 1882, chap. 409, §§ 68, 69, re-enacted in 1892 by chap. 689, § 55) for the repayment of twice the amount of the interest paid, with an accompanying penalty of the loss of all interest; nor is this construction affected by the statement, contained in the statutes of 1882 and 1892, that it is intended to place private and individual bankers on an equality “ in the particulars,” referred to in the section, with national banks, as this phrase only means that there shall be a uniform penalty for usury in the' case of state and national banks and of private and individual bankers.</p> <p>Oaponigri v. Altieri, 21 Mise..Rep. 510, affirmed.</p>

<p>Reargument of appeal from an affirmance, by the General Term of the .City Court of Yew York, of a judgment entered upon a verdict in favor of plaintiff.</p>

<p>Chattel mortgages — Subsequent purchasers—.Conversion — Assignment of cause of action.</p> <p>The provisions of the statute relative to chattel mortgages (Laws ' ■ of 1895, chap. 354, - § 1, amending Laws of 1833, chap. 279, § 3), protecting subsequent purchasers in good faith of mortgaged property, where there has been a failure to refile the mortgage, do not protect one who purchases on the day before one year from the date of the first filing, as the word “ subsequent ” means after the date when the, mortgage should have been refiled; and hence the assignee of a mortgagee, who has been refused possession by such a purchaser, may maintain an action against him for a conversion.</p>

<p>District Courts — Answer — Insufficient denial.</p> <p>Where the plaintiff serves a verified written complaint, in an action on contract brought in a District Court of the city of New York, the defendant must serve a verified answer; and where such an answer, interposed to 'one of the causes of action, merely states that the defendant, by his attorneys, “ alleges and respectfully shows ” that certain allegations of the complaint “ are denied,” it is ineffectual for any purpose, and the plaintiff is, in the absence of any amendment being allowed upon the trial, entitled to judgment upon that cause of action. The plaintiff is not bound in such a case to move to make the answer more definite and certain.</p>

Appeal by tbe defendant from a judgment entered upon tbe verdict of a jury in favor of plaintiff for $1,337.75 and costs.

<p>1, Replevin — Conditional sale — Form of judgment for plaintiff.</p> <p>Where a piano is sold upon a condition precedent of full payment, the vendor may maintain replevin against one who purchased it in good faith at an auction sale; and as the vendor is entitled to possession, the judgment must award it to him in the form prescribed by section 730 of the Code, of Civil Procedure (made applicable to District Courts of the city of New York by Laws of 1882, chap. 410, § 1343); and a judgment by which the justice of such a court directs that if the defendant shall pay into the court the amount still due and unpaid upon the piano, together with certain costs, he shall have judgment for its return, without costs, is wholly unauthorized.</p> <p>2. Same — When the verdict need not fix the value of the chattel.</p> <p>There is no statutory provision which requires the verdict, in an action of replevin, to fix the value of the chattel where the verdict awards possession of the chattel to the person to whom it has been delivered by the officer.</p>

<p>1. Bailment for an indefinite term — Termination — notice to bailor.</p> <p>A bailment for storage, for an indefinite time, is terminable at the will of either party; and where the bailee notifies the bailor that he refuses to continue longer as. bailee and gives the bailor an opportunity to obtain the subject of the bailment, the'bailee is released. •</p> <p>2. Same — Waiver of tort in selling the thing stored.</p> <p>Where the bailor brings an action- against the bailee as for goods sold and delivered, he waives the alleged tortious act of the bailee in» selling to another the subject of the bailment, and cannot maintain therefor an action for a conversion.</p> <p>3. Evidence — Parol, tó show that a bill of sale did not include the thing stored.</p> <p>The rule that parol evidence is inadmissible to contradict or vary a written contract applies only to controversies between the immediate parties to the instrument, and does not preclude a bailee from showing, as against the bailor, that a bill of sale, by which he .sold to. a third party . his business at the place of the bailment, “ together with all the goods, chattels,, stock in trade,” etc., did not include the property which he held as bailee.</p> <p>4. Same — Ambiguity.</p> <p>Where the description of property, as contained in a written instrument, is ambiguous, parol evidence is admissible to ascertain the nature and quality of the subject-matter to which the instrument refers.</p>

<p>Conditional sale — Kent for use — Effect óf retaking by vendor.</p> <p>Proof, made in an action brought for a balance of rent alleged to be due by the vendee upon a conditional sale of two bicycles, that the duplicate agreement, executed in each case, states that the vendee had rented the bicycles from the vendor for the term of ten months, “ for the use and depreciation of which ” the vendee agreed to pay $105, within ten months at periods fixed; that, upon a failure to pay, the vendee would return the bicycles of, In the alternative, that the vendor might lawfully take possession of them and that, upon full payment, the vendor would execute to the vended a bill of sale, accompanied by proof ■ that the Vendee had the use of the bicycles for sixteen months, when the vendor, before action brought, retook and accepted them and that it now holds them subject to the statutory, right of the vendee to redeem . from a conditional sale, entitles the vendor to maintain the action.</p>

<p>Appeal from final order made by the justice of the Eighth Judicial District Court, upon a proceeding instituted in behalf of the tenant for redemption of the lease and repossession of the premises, after final order in favor of the landlord, and execution of warrant dispossessing the tenant in summary proceedings.</p>

<p>Appeal from judgment rendered by the justice of the'Seventh Judicial District Court in favor of the plaintiffs in an action for replevin.</p>

<p>1. New trial for newly-discovered evidence — Powers of Appellate Term on appeal from a District Court — Evidence receivable upon appeal.</p> <p>The Appellate Term of the Supreme Court cannot grant a new trial upon the ground of newly-discovered evidence where the appeal is taken from the judgment of a District Court of the city of New York; •nor can evidence be received upon appeal for the purpose of reversing a judgment, as it is only admissible where it tends to sustain the judgment.</p> <p>2. Same — Powers of a justice of a District Court.</p> <p>Semble, that a justice of a District Court of the city of New York has no power, after judgment rendered upon litigated issues, to grant a new trial upon the ground of newly-discovered evidence, as his jurisdiction extends only to a motion made upon the grounds specified in section 999 of the Code of Civil Procedure (Laws of 1896, chap. 748).</p>

<p>Contraet — Consideration.</p> <p>A sufficient-consideration for an executed agreement, made by the driver of an express wagon, that his employers might deduct from his wages the value of a package which he negligently lost from their wagon, and for which they were obliged to pay the consignor, exists in. the fact that the deduction was agreed to be made in installments, at periods convenient to the driver, and in the further fact that, had he refused to make good the loss, he might have lost his employment.</p>

<p>District Courts — Demand, of an account, on joining issue — Record should show that the account was ordered to be exhibited or stated.</p> <p>Proper practice, under section 2942 of the Code of Civil Procedure, made applicable to District Courts in the city of New York (Laws of 1882, chap. 410, § 1347), and giving the court power, upon the request of either party, at the joining of issue, to require the adverse party “ to exhibit his account or demand or to state the nature thereof, as far ás it is in his power so to do, at that or another specified time,” and providing, that, in ‘case of default, the party may be precluded from . ' giving evidence of parts not exhibited nor stated, requires some formal 'determination and direction by the court in the matter, the terms of which should be entered upon the record; and where the record, in an action for goods sold and delivered, shows no action by the court which requires the plaintiff to exhibit his account or to state its nature, an objection made, upon the part of the defendant, to evidence of the ■ plaintiff as to the nature of the goods sold, based upon the statement of the defendant’s counsel that, although he had demanded a bin of' particulars, none had been furnished, cannot prevail upon an appeal.</p>

<p>Motioh by plaintiff to open affirmative judgment by default.</p>

<p>Action upon certificate of a benefit society.</p>

Proceedings under section 463 of the Penal Code, requiring defendants- to give a bond that they will not for one year violate section 458 of the Penal Oode.

<p>1. Marriage — Annulment of — False statement of a woman, that she was capable of bearing' children.</p> <p>Where a woman, interrogated by her husband before marriage upon the subject, states that she is physically and mentally capable of being a wife, while the fact is that, some years before, she had submitted to a surgical operation which made her thereafter incapable of conception or of having children, her suppression of "the truth amounts to a fraud which justifies the court in. annulling the marriage under the provisions of section 1743 of the Code of ■ Civil Procedure.</p> <p>2. Same — Barrenness after marriage.</p> <p>Semble, that a marriage should not be annulled merely because the wife is barren.</p>

<p>Action to recover proceeds of sale of consigned goods. Answer, counterclaim for' commissions on goods returned to consignors.</p>

<p>Action for construction of will. The facte appear, in the opinion.</p>

<p>Return to writ of habeas corpus.</p> <p>The relator was arrested for an assault in the third degree, and upon his .arraignment before the magistrate demanded a trial by</p> <p>j™y-</p> <p>The justice drew a jury and gave the venire to a deputy sheriff to serve. . ,</p> <p>The counsel for the relator objected to the jurisdiction of the court, and the legality of the jury, and the authority of. the justice after conviction to inflict any punishment for the offense.</p>

<p>Eeturn to a writ of habeas corpus petitioning for the discharge of the relator from custody.</p>

Summaby proceedings to remove tenant on the ground that he holds over without permission of the landlord after expiration of his term.

<p>1. Municipal corporations — Mortgagees of lands taken for a street opening are entitled to notice of the proceedings.</p> <p>Where the charter of a city provides that, where lands are to be taken for a street opening, compensation shall be made to owners and also to persons having an interest in the property proposed to be taken, mortgagees of such lands are entitled to notice of the proceedings.</p> <p>8. Same — Insufficient provisions for notice to and the .hearing of parties interested in a street opening.</p> <p>Where the charter provides for no notice to any one, except such as might be derived from the publication and subsequent service, upon owners or persons having an interest, of a "copy of a resolution of the common council declaring that it intends to take certain lands and to apply at a time and place named for the appointment of commissioners; where it requires no notice to be given that an owner or party in interest can appear at any time or place and be heard ; where it provides for no notice of the proceedings before the commissioners or any opportunity to be heard; where no notice is required to be given of their report and there is no clear definition of the right of a claimant thereunder, the appointment of commissioners would violate the rule that private property cannot be taken for public use except upon just compensation and under due process of law.</p>

By the title of the action,, and by allegations in the complaint, the plaintiff professes to sue in behalf of himself as a stockholder of a named, business corporation, and of all other stockholders and all creditors of the said corporation. The defendants were the directors of the said corporation. .

<p>Action to restrain the use of a trade-marlc. It was owned by the firm of Blossom, Hayne & Co., of which the plaintiff was a member, and used in their business. ■ They made a general assignment under the statute for the benefit of creditors in March, 1883. One of the creditors in behalf.of himself and all other creditors brought in 1889 the usual suit for an accounting and distribution, and to have the assignee charged for losses, etc. The assignee thereafter died, and his administrator was substituted as defendant. Eo successor to the assignee was appointed. The suit went to judgment in December, 1897, and distribution was made thereunder. The assets were insufficient to pay the creditors in full. v Pending such suit the said administrator conveyed the said trade-mark to the plaintiff’s wife without consideration by a written instrument, dated October 19, 1896. This was done without any direction or subsequent approval of the court. After the said 'general, assignment the plaintiff immediately continued to carry on the same kind of business, as the said firm, with the word agent after^ his name a part of the time, all the while using the trade-mark in such business as apparent owner thereof, up to June 30, 1894, when he went into partnership with the defendant to carry on the same kind- of business. By the written.articles of copartnership he transferred all the assets and rights of his business to the new firm. It was dissolved on June 21,' 1897, and on the same day after the dissolution the plaintiff’s wife assigned the said trade-mark to him,, and he claims thereby' to be the sole owner thereof.</p>

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

<p>Partition—-A bequest which permits the life tenant to use the principal —A remainderman allowed his payment of the funeral expenses of the life tenant.</p> <p>Where the will of a testator bequeaths to his wife all his real and personal property during life and directs that if, at her' death,anything should be left after all her just debts are paid,” the. same should be divided equally between his three children, the bequest authorizes the wife to use the principal, if the income-proves insufficient for her support, and,' therefore, a child who has paid the funeral expenses of her mother, is entitled to be allowed, in an action brought to partition the real estate of the testator, the amount of this payment, as it -may be deemed to represent one of the “ just debts ” of the life tenant.</p>

<p>Pleading — Amendment —• Substitution of its receiver for a company — Inadvertence.</p> <p>The court has power, under Code of Civil Procedure, section 723, to • amend the summons and complaint in an action, begun in the name ' of a company, by substituting its receiver, in whom the cause of action was vested 'when the action was begun, as the substitution .does ixot bring in a different party and as a mistake, caused by mere inadvertence, should be remedied.</p>

This action is brought by plaintiff to recover upon two policies of insurance issued by the defendant upon the life of the. deceased. The only defense urged upon the trial by the defendant was that it has already paid the amount of one policy to an administrator of the deceased appointed in the state of Connecticut, and is defendant in a suit brought- by him to recover the amount of the other policy. The facts in detail sufficiently appear in the opinion.

Motion to set aside final judgment, entered in favor of defendant upon an interlocutory judgment sustaining its demurrer to plaintiff’s complaint, and for a stáy of proceedings on and Under said interlocutory judgment until after the' determination of .an appeal from the same to .the Court-of Appeals.

<p>Summary proceedings — The City Court of Albany has no jurisdiction to try an equitable title asserted by the landlord.</p> <p>A judge of the City Court of Albany, a court of limited jurisdiction, has no power, in summary proceedings, to pass upon anything except the legal title of the landlord; and the admission of evidence tending to show that a deed from the landlord to the occupant; and under which she claimed possession, was not delivered as an absolute conveyance, but that the landlord verbally reserved the use and occupation during life, is erroneous, as the provisions of Code of Civil Procedure, section 2224, permit the tenant alone to interpose an equitable defense in summary proceedings..</p>

Application to punish the judgment debtor, John P. Mástin, for an alleged contempt in refusing to appear before a referee and submit to an examination in supplementary proceedings.

The facts are simple. Prior to 1891 Michael Augustine had resided in and obtained a settlement in the town of Onondaga and received aid from that town. In July, 1891, the poor person removed, to the city of Syracuse, where he .has since resided, and has continued to be a public charge upon the town of Onondaga until September, 1897.

Action to recover on a policy of fire insurance. Motion on the minutes to set aside a verdict for plaintiff and for a new trial.

Trial of an issue of law in an action upon a promissory note. The complaint alleges the note to have been dated, and' made and delivered by the defendant to the plaintiff, at St. Louis, Mo., and by its terms to be payable to the order of the plaintiff one year after date at a named bank in the City of New York, with interest at the rate of six per cent, until maturity, and after maturity at the rate of eight per cent.

. This is' an action to restrain the elevated railroad company de- ■ fendant from maintaining its structure and operating its railroad along the street on which the real property of the plaintiff Jacobson abuts, unless it pay the damage done thereby to such property, the amount of which the court is asked to ascertain and fix herein. The complaint alleges that the plaintiffs own the property.

Agtioh by a judgment creditor to set aside a transfer of property by his debtor as fraudulent and void against creditors. It is by a trust instrument which transfers the business- and all of the assets of the debtor therein, to trustees to hold the same, run the business for an indefinite time, and out of - the profits pay in full such of the creditors as shall come in and agree to such arrangement, and thereupon' to transfer back to the debtor.

<p>. 1. Foreclosure — Equities as between assignees — Bona fide purchasers.</p> <p>Where the legal owner of premises, subject to two mortgages, authorizes an attorney to raise money for their payment and the owner thereafter gives a lender, for that purpose, a purchase-money mort- ■ gage and the attorney pays the existing mortgages, but, instead of having them satisfied, takes assignments of them to himself which he temporarily withholds from record, his bona fide assignees for - value and without notice, other than such as might be derived from the fact that 'the consideration named in the assignments to him was one dollar, are to be protected in equity against purchasers from him of the purchase-money mortgage, which, upon its payment by him, he had procured to be assigned to himself; and this although he had assured such purchasers that the purchase-money mortgage was a first lien and although the records, at the time of the purchase, did not show the fact to be otherwise.</p> <p>8. Same — Fraud of agent of legal owner.</p> <p>It is to be considered, upon such a state of facts, that the legal owner of the property has, by his acts, enabled the attorney to gain the possession and apparent ownership of the first mortgages, and hence bona fide purchasers of them from him are • to be protected, even though his purpose in procuring the assignments to be made to himself was fraudulent. •</p> <p>3. Same—Latent equities subsequently created —Estoppel.</p> <p>The representations of the attorney, made to the purchasers of' the purchase-money mortgage and stating that it was:a first lien do not estop his bona fide assignees, as bona fide purchasers of a valid security cannot be charged with latent equities which have been ' created - after the inception of the instrument.</p> <p>4. Sainé — Bona fide purchasers — ÜTotice.</p> <p>Assignees of mortgages are not put upon inquiry by a nominal consideration expressed in prior assignments of the mortgages, where inquiry would not have disclosed an alleged priority.</p>

<p>" Action for partition.</p>

<p>Mew York city — Powers, under the new charter, of a commissioner of deeds in a county other than New York.</p> <p>. A person appointed under the charter of the city of New York (Laws of 189.7, chap. 378, § 58) by its board of aldermen as a commissioner of deeds of said city and who, within the statutory period prescribed, took, subscribed and filed his oath in the office of the city clerk of said city and who, thereafter, filed a certificate of his' appointment in the office of the clerk of the county- of Kings and there took, subscribed and filed in its county clerk’s office the oath required by law, is qualified to take oaths, affirmations, proofs and acknowledgments in any of the boroughs of the city of New York and the registrar- of Kings county may be compelled by mandamus to accept his certificate to the satisfaction of a mortgage.</p>

<p>Application for peremptory writ of mandamus to reinstate-relator as fire marshal in the fire department of the city of Rew York, in the borough of Brooklyn.</p> <p>The facts appear in the opinion.</p>

<p>Petition for order revoking liquor tax certificate. •</p>

<p>Motion to vacate an order requiring plaintiff to file security for costs.</p>

<p>Divorce — A divorced mother permitted access to her infant child.</p> <p>Where a child, aged, three years, is intentionally kept by its father and custodian from all knowledge of, or intercourse with, its mother who has been divorced for her adultery, the court will, where the judgment in the action for divorce provides for such an application, permit the mother to- see the child four times a year, in the presence of a referee, if that course is deemed necessary by the parties.</p>

Appeal by defendant from an affirmance by the General Term of the City Court of an order denying defendant’s motion to vacate an order of arrest. :

Appeal by defendant from an affirmance by the General Term of the Oity Court, of a judgment entered upon the verdict of a jury ■ in favor of plaintiff for $203, besides costs.

<p>New York city — Sheath-piling not required by law in sewerage excavations — Negligence — Erroneous charge.</p> <p>The provisions of the Consolidation Act (Laws of 1882, chap. 410, § 473, as amended by Laws of 1885, chap. 456, Laws of 1887, chap. 566, and Laws of 1892, chap. 275), relative to placing, sheath-piling in excavations in public streets ’of the city iof New York,' do not relate to excavations for sewerage connections, as they are, by the same statute, placed under the exclusive control of the common council; and hence where' an employe of a contractor with the city to connect a public sewer with adjoining' property brings an action against the contractor to recover damages for injuries sustained by the fact that the banks of' an excavation caved in, it is erroneous for the court to charge the jury that a person violating an’express statute is a wrongdoer and as such is negligent in the' eye of the.law, and that the mere omission to comply with the statute is prima facie evidence of negligence, as such a charge ignores the material questions whether sheath-piling was, under the circumstances, necessary, whether the danger was not obvious and whether the plaintiff himself did not create the very danger of which he now compains.</p> <p>Hayes v. Fay, 21 Misc. Hep. 538, reversed.</p>

Appeal by tbe plaintiff from an affirmance, by the General Term of the City Court of New York, of a judgment rendered upon a verdict in her favor upon the second cause of action alleged, after dismissal of the complaint as to the first cause of action. Also appeal from affirmance of order denying plaintiff’s ■ ' motion.-for a retaxation of costs in,the court below.

<p>1. Goods sold — A machine to be repaired by the vendor after sale — Kesale — Waiver.</p> <p>Proof, 'in1 .an action brought to -recover ¡the price of a machine, that it was not in good repair and was purchased by the vendee upon the terms that it should be paid for in thirty days after it had been put in perfect order at the expense of the vendor, that it had been then tried' by the vendee and had proved satisfactory, accompanied by proof that, after making very slight repairs, the vendee, within a week of the purchase, sold it to a third person, entitles the vendor to recover the price, as the vendee has accepted the benefit of the purchase, and, by the resale, has waived its right to have the vendor repair the machine.</p> <p>8. Evidence — Declarations in one’s own favor.</p> <p>The letters of a party are not admissible to support its version of a verbal agreement.</p>

Appeal by defendant from a judgment of the justice of the First District Court in favor of plaintiff for $61.66 damages and costs. ' :■

Appeal by defendant from a judgment of the justice of the Eirst District Court in favor of plaintiff for $166 damages and costs, rendered September 13, 1897.

<p>Appeal by the- plaintiff from a judgment of the justice of the Sixth District Court in favor of the defendant.</p>

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

<p>1. Bar — Another action pending — When another cause of action» - need not be pleaded by the defendant.</p> <p>Where the plaintiffs bring an action for the conversion of the proceeds of a single consignment of cigarettes alleged to have been intrusted to the defendant for sale on commission, the defense of another action pending is not made out by proof of another action,' pending in the 'City Court of New York, a court of record, brought by the defendant against the plaintiffs, in which he seeks to recover commissions as their agent during 'a term of five years upon various sales made by him, as the rule is that, where the first action is commenced! in a court of record, the defendant need not usually interpose, as a-counterclaim, a cause of action which he may have against the plaintiff, but may bring an independent action therefor.</p> <p>S. Evidence — Admissions of an agent, in custody upon a. criminal! charge — Proof.</p> <p>Admissions made by an agent, although in the custody of a detective-officer on a charge of misappropriating the proceeds of sales - of his» principal’s goods, when .not induced by threats, promises or deception, are competent against the agent and may be proved by the testimony-of the officer to whom they were made.</p>

<p>Goods sold—'An offer must be accepted.</p> <p>Where a vendee alleges that certain of a lot of skirts delivered to him were not those. selected' by his agent, but offers to buy those Which are satisfactory to him, and this offer is declined by the vendor, to whom the goods are subsequently returned, he cannot subsequently ' recover for those which the vendee offered to take, as an offer, not . accepted, is not binding upon either party to a contract. .</p>

<p>Fixtures — Landlord and tenant — Conversion. '</p> <p>Such articles as a glass cabinet partition, brass chandeliers and a Showcase, placed in ;a store by a tenant, are fixtures which may be bought and sold by his successors, and one who'buys them from the last tenant of the store, ejected by summary proceedings, may maintain an action for conversion against the landlord -upon his locking up the premises and preventing the purchaser of the fixtures from removing them.-</p>

<p>Contract dependent on the satisfaction of ax pupil—Capricious dis- • satisfaction.</p> <p>Where a person, maintaining a school for instruction in the millinery art, specially contracts with a pupil that, if she is not satisfied with the teaching, materials and in .every respect, he will refund the fee which she pays, he. constitutes .the pupil the sole arbiter of her own satisfaction-and must return the fee if she is not satisfied in every respect; and, if it be assumed that the dissatisfaction must not be merely capricious, the finding of a justice of a District Court of the city of New York in favor of the pupil, resolves that question in favor of the assignee of the cause of action of the pupil.</p>

<p>(Negligence— Collision on the road — Presumption of negligence from i the speed of a horse.</p> <p>Where the proof made in .an action brought to recover damages resulting from a collision caused by the alleged negligence of the defendant tends to show that he, at the time of the collision with the wagon of the plaintiff, was driving a spirited horse attached to a light wagon, and was speeding his horse with another horse also drawing a light .wagon, there is a presumption that his horse was not under proper control; and hence, a judgment, rendered upon con- . flicting evidence, in favor of the plaintiff will not be disturbed.</p>

<p>District Courts — Power to open default after failure to set aside service of the summons — Terms.</p> <p>Under the Consolidation Act (Laws 1882, chap. 410, '§■ 1367, as amended by Laws of 1896, chap. 748), a justice of a District Court of the city of New York has power, after the reversal of an order vacating a judgment for .an alleged failure to serve the defendant with the summons, to open the default and allow him to plead; but where it appears that’ his motion to vacate the judgment- subjected the plaintiff to costs which have been taxed and entered, the payment of these costs should be made a condition of opening the default.</p>

<p>Negligence — Law of the road — Collision.</p> <p>Where two vehicles are approaching each other on streets which meet at a right angle, neither has the right of way; but where one driver signals to the other that he will continue his present course, he has a right, in the absence of any indications to the contrary, to expect that his signal will he obeyed, and where á failure to obey results from the presence of a concealed load which prevents the driver signalled from properly controlling his team, a verdict against his employer will be sustained.</p>

<p>Bills and notes — Consideration — Storage certificates for, whiskey deliverable in the future — Interested witness.</p> <p>A note, given in consideration of the delivery to the maker of certain certificates which state that a quantity of whiskey is kept by the payee on storage, subject to the order of the maker, upon the payment of the purchase price,, a government tax and certain charges; has a sufficient consideration; and the unsupported testimony of the maker, that the maturity of the note was to be deferred until he demanded possession of the whiskey,, need not be accepted by the court as he is ■ an interested party.</p>

<p>Appeal from a judgment rendered by the justice of the First Judicial District Court in- favor of the defendants, in an action for the conversion of personal property.</p>

<p>Appeal from a judgment rendered by the justice of the Minth Judicial District Court in favor of the defendant, in an action brought for the return of money paid under an alleged mistake.</p>

. Appead from a judgment rendered by the justice of the Eighth Judicial District Court in favor of the plaintiff. Action brought for death benefits by widow of member of benefit association.

<p>Brokers — Commissions — Waiver of limitation of order of sale of houses — Attempt to defraud broker.</p> <p>Where an owner, who has contracted with a real estate broker to sell her houses in a particular order, subsequently, by her husband and agent, agrees, that if the broker sells any one of the houses to a particular purchaser with whom he had been negotiating, -he shall have commissions, the original limitation as to the order of sale must be deemed to have been waived; and proof that the broker subsequently sold one of the houses to the purcháser in question, although the title, in order to defraud the broker of his commissions, was taken in the name of a third person, entitles the broker to recover commissions of the owner.</p>

<p>■ Motion by defendant for leave to enter judgment with costs.</p>

<p>Motion to set aside service of summons in an action of foreclosure.</p>

<p>Motion for an additional allowance under the provisions of section 3253 of the Code of Civil Procedure.</p>

Action to cancel and annul a certificate and survey made by a highway commissioner and also to cancel and annul the record, thereof in the town clerk’s office and restraining the defendants from taking further action in the premises.'

<p>Election Law — A recount of ballots, cast at a town meeting upon the question of selling liquor, may be compelled. — Insufficient alternative writ of mandamus —^ Effect of petition and affidavits.</p> <p>The court has power, under the Election Law (Laws of 1899, chap. 909, §§ 111, 113, 114), to .require', by mandamus, a recount of ballots rejected at an election, had at a town meeting, where there was a special vote under the Liquor Tax Law (Laws of 1890, chap. 112, § 11, Subds.. 1,16) to determine whether liquor should be sold in the town; but where an alternative writ, issued ex parte, contains no . allegations as to whether a proper legal return was made,. or whether if made, it contains a statement that the ballots sought to be counted . were declared void, or whether the ballots in question were, in fact, declared void and were so indorsed, or whether the inspectors failed to count, any protested ballots,' the writ is insufficient to justify the issue of a peremptory writ; nor can resort be had to the petition or affidavits in order to sustain it. ' •</p>

On the 29th day of June, 1896, in an action brought in the Supreme Court, the plaintiff in this' action obtained a judgment against the defendants John A. Dix- and Edward Thomson, Jr., which determined certain property rights and awarded costs to the plaintiff, in the sum of $1,805.34.

<p>Action to determine the rights of, the respective parties tO] this action in and to the water powers upon the Black river, in the village of Black River, Jefferson county, N. Y., and to obtain an injunction restraining the defendant, Jefferson Paper Company, ■ 'from using water in excess of the amount to which it is entitled.</p>

<p>Action of foreclosure.</p>

Motion on the petitidh of Isaac S. West, as committee of the person and property of Asa K. West, to open the default of Asa K. West in not appearing and pleading in .the above-entitled • action, and to authorize Isaac S. West' as such committee to appear and plead on his behalf.

<p>Action for the construction of the last will and testament of Sarah H, Coats, . , ■ ■ .</p>

<p>Motion to change the place of the trial of the action from the county of Ulster to that of Kings.</p>

Motion by petitioners to confirm the- report of commissioners appointed to determine-the necessity of laying out a proposed highway and to assess the damages, -

<p>Appeal from a judgment of the Justice’s Court.</p>

70 costs in favor of the defendant. This action was brought to recover the premium on an insurance policy. The answer was a denial- and payment. It appeared, or was assumed upon the trial below; that the plaintiff was the agent in Syracuse for The Germania Fire Insurance Company, of Pitts-burg, Pennsylvania.

<p>Undertaking — Construction in favor of a surety — Estoppel.</p> <p>An undertaking given on an appeal for a new trial in the County Court, which binds the sureties, in a certain penalty, to ipay the “ amount ” of a judgment and interest recovered by the party successful in Justice’s Court, “ or so much thereof as may remain unsatisfied in case said appeal shall be dismissed, or if judgment ¡shall be rendered against ” the appellant “ and execution issued thereon shall be returned wholly or partly unsatisfied,” cannot be construed to make a surety liable to pay any more than the judgment and interest; nor can the fact that the respondent treated the undertaking as a stay, when it was insufficient for that purpose, entitle him, upon his recovery of a much larger sum upon the new trial in the County Court, to hold the surety for more than the judgment and interest.</p>

Action brought upon an undertaking made and executed by the defendants, for and on behalf of John A. Dix and Edward Thomson, Jr., and conditioned for the payment of any and all damages and loss sustained by the plaintiff on account of the suspension of an injunction, which restrained said Dix and Thomson from floating certain logs upon a stream or river belonging to the plaintiff. ■ This action was tried before the court and a jury, and the jury rendered a verdict for $500…

<p>¡Receipt — Omission of stenographer’s fees —• Relief.</p> <p>Where attorneys stipulate that stenographer’s fees shall be a part of the referee’s fees and shall be paid by the party taking up the report, a mistake by which the attorney prevailing gave a receipt in full and discontinued the action, without entry of judgment, upon payment of an amount which did not, to the knowledge of the attorney opposed, include the stenographer’s fees, may properly be corrected, the receipt and discontinuance be set aside and the parties prevailing be allowed to enter judgment for the stenographer’s fees.</p>

Action in. equity brought to determine the rights of the parties to this action, to a certain piece of land fifteen feet square, situate-in the village of Clayton, Jefferson county, New York.

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

<p>Motion for a new trial upon the.ground of newly-discovered evidence.</p>

<p>Partition — Equities — Answers alleging payment oí advances.</p> <p>Where the plaintiff,- after making the allegations usual in an action to partition lands, formerly of a decedent, asks as equitable relief that he be first paid out of the proceeds moneys which he individually paid to perfect the title of the decedent, his father, the defendants may properly interpose answers! which, in substance, allege that the moneys claimed to have been paid by the plaintiff were in fact moneys of his father’s estate or, in the alternative, that, soon after the plaintiff made his alleged payment, he'received from his father’s estate moneys belonging to it sufficient to reimburse him.</p>

<p>Cebtiobabi to review an assessment of personal property for taxation. .</p>

Mqtion by a judgment debtor to vacate an order in supplementary • proceedings for the examination before a referee of a third person. • '

<p>Appeal from a judgment of a Justice’s Court in favor of plaintiff.</p>

<p>Brokers — Commissions.</p> <p>Brokers who have been the procuring qause of a sale of real estate are entitled to commissions.</p>

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

<p>Common carriers — Money of a passenger not necessary for travel.</p> <p>A common carrier is not liable to a sleeping-car passenger, from Detroit to New York, for the loss of $1,250, of which he had retained custody, and which he intended, upon subsequently reaching the city of Boston, to deposit in a bank, as such a large sum of money cannot be regarded as necessary or reasonable expenses of the trip.</p>

<p>Appeal from an order granted at Special Term.</p>

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

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

<p>1. Motion to dismiss the complaint.</p> <p>An exception, to the denial of a motion to dismiss, the complaint, is untenable, if the facts supplied by the .'evidence,' given after the plaintiff rested, and after the motion to dismiss was made, sufficiently support the action.</p> <p>2. Partnership — Notice of change — Parties.</p> <p>Where a vendee gives, vendors, with whom he has had prior business ■ transactions, no notice, either directly or inferentially by a change in the form of his checks and business cards, that he has taken a partner, the vendee remains solely liable for goods sold, and cannot Insist that his partner is a necessary party to an action for their price.</p>

<p>Partnership — Partners cannot sue each other at law — Fraud.</p> <p>A firm cannot maintain an action against one, who is a partner in its drug department, to recover damages which may result to the firm from the purchase by ithe defendant from a third party of a single consignment of orange peel for delivery to a customer, a company which subsequently denied the order; and as a partner has authority to purchase, an order for his; arrest, based upon the ground of fraud and false and fraudulent representations, must be vacated.</p>

<p>1. Goods sold — Construction of contract — Evidence.</p> <p>Where the only issue, in an action brought to recover the purchase price of a shed upon a pier, is whether the vendee, in reselling to the vendors, at a price fixed and as junk, certain trusses 'of. the shed, also included the timbers which were attached to- the iron trusses and which the vendors took, it is erroneous for the court to preclude the vendor from showing the value of the iron as junk, as such proof would tend to show what materials were' intended by the parties to be sold for the price fixed.</p> <p>2. Practice — ¡Bight to close.</p> <p>Where the allegations of the complaint are admitted by the answer and the defense rests upon a counterclaim, the defendant is entitled to make the closing argument to the jury, and a denial of the privilege affects a substantial right.</p>

• Appeal from a judgment entered upon an order dismissing the plaintiff’s complaint as against this defendant-respondent at the conclusion of a trial before the court and a jury.

<p>Appeal from an order made at ‘Special Term adjudging the demurrers interposed by the defendants to be frivolous, and directing judgment for the plaintiff thereon.</p>

<p>Principal and agent — Power of attorney to make notes.</p> <p>Where a principal gives her agent a broad power of attorney to give negotiable paper in her name, she is liable upon a note which the attorney' made in her name to himself as payee, and -which he, so far as appeared, not for his own benefit, subsequently indorsed and delivered to the holder in consideration of his delivery of securities to the agent, 'upon which the latter received money.</p>

<p>Torts — Lease of an unsafe bicycle.</p> <p>Lessors who deliver to a lessee a bicycle, which is made of poor materials, and is in a condition unsáfe for use, are liable, irrespective of the question of an express warranty, to the lessee for- injuries which • he sustained, by its sudden collapse, while being put to ordinary use by him, about three months after he had taken possession of it under a lease continuing for nine months. •</p>

<p>1. Brokers — Commissions.</p> <p>Where a person employs real estate brokers to dispose of real property he is liable to them, upon their performance, whether the title to the property is in his name, or in that of his wife.</p> <p>3. Same — A broker may, by consent, act for both sides.</p> <p>A real estate broker may, by consent, act for and receive commissions from both parties to an exchange of real properties.</p>

<p>City Court of New York.— Substituted service of the summons — Affidavits.</p> <p>, The provisions of the Code of Civil Procedure, § 436, relative to the substituted service of the summons, apply to the City Court of the' city of New York, and where affidavits, submitted upon such an appli, cation, show that the defendant cannot, after diligent effort, be found at her alleged residence in that'city, and that no information as to her whereabouts can be obtained, an order for substituted service is properly granted. '</p>

<p>Appeal from- a judgment in. favor of plaintiff, entered on the report of a referee, who was appointed to hear and determine- the issues.</p>

<p>Action by prior lienor upon a bond of contractors, discharging the lien — Appeal by the owner in an action by the contractors, where the prior lien was established — Construction of bond.</p> <p>A common-law action may be maintained by a prior lienor against the sureties upon a bond given by contractors and conditioned to pay any judgment which the lienor may recover against the property, affected by the lien, upon a foreclosure of it; but where the owner of the property duly appeals from a judgment, rendered in an action brought against him by the contractors and, among other things, establishing the prior lienor’s lien at a definite sum, the appeal makes premature an action brought by the lienor upon the bond while the appeal -'s pending, as the judgment which the bond was intended to secure must be deemed to have been only a judgment which was absolutely final.</p>

'Appeal from a judgment entered oh the verdict of a jury and from an order denying a motion for a new trial, made on the judge’s minutes.

<p>Security for costs from one authorized by statute to sue — Notice of such a motion.</p> <p>., Where an application is made, under the Code of Civil Procedure,' § 3271, to compel a person expressly authorized by statute to sue,- e. g., an infant, to give security for costs, the motion must be made to the court, on notice, and an order made ex;parte is irregular.</p>

Appeal by the defendant fróm a judgment entered upon the. verdict of a jury, and from'an order denying its motion for a new trial, made on the judge’s minutes.

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

<p>Practice — Case on appeal — Resettlement.</p> <p>The Special Term of the City Court of the city of New York may-direct a trial justice to resettle a case on appeal, if he deems it proper to do so, but it cannot direct him to resettle it in a manner specified in. the order of resettlement.</p>

<p>Appeal from an order vacating an attachment.</p>

Action brought to recover amount claimed to have been paid bv the plaintiff for a liquor tax certificate, in excess of the amount required by law.

<p>Mortgages — Validity of mortgages,, given, by a life tenant, who had a right to use the principal of an estate.</p> <p>A bequest, by which a testator leaves his entire estate to his wife “ for the support of herself and my children while she lives and remains unmarried, and at her death to leave the residue' to niy (his) children as she deems proper”, gives her, during her widowhood, a life estate, with power' to use the principal, and hence-mortgages, given by her during that period, are a valid lien upon the real "estate of the testator.</p>

Action to declare illegal, permits granted by Louis F. Haffen, commissioner of street improvements of the Twenty-third and Twenty-fourth wards, in the city of New York, to the Union Railway Company. ' '

<p>■ Action for the construction of a will. . '</p>

Justification of sureties upon an undertaking given under the Consolidation Act (Laws of 1882, chap. 410, § 1836, as amended by' Laws of 1895, chap. 605), to discharge a mechanic’s lien, filed on ¡November 17, 1897, in the office of the comptroller of the city of Hew York, against moneys due and to grow due the defendant Gallagher for work done on the male and female almshouses on Blackwell’s Island.

<p>1. Indemnitors — Inconsistent parol agreement that an indemnitor shall not be liable — An attorney as an indemnitor.</p> <p>An indemnitor of a corporation, which, upon the faith of an agreement of indemnity, became surety upon an undertaking given upon appeal from a judgment, cannot, in an action subsequently brought upon the agreement, be permitted to show by parol an alleged contemporaneous agreement, by the terms of which his execution of the ■ indemnity agreement was to be purely formal, while the corporation was to look for actual indemnity solely to a coindemnitor; nor does the fact.that the indemnitor was an attorney-at-law affect his liability.</p> <p>2. Same — Extension of time.</p> <p>An extension of time, given by the party indemnified, to a surety • will not discharge a cosurety where he has not been in any manner prejudiced by the extension.</p> <p>3. Same — Application of payments.</p> <p>Application of payments in favor and against indemnitors.</p>

This is an action by the administrators of Mary A. Ferris, deceased, against her son, Eugene Ferris, Jr., for an accounting. The said Mary A. Ferris-died intestate in January, 1897. Her husband, Eugene Ferris, died in April, 1887. They resided in Brooklyn. Five children, two of them sons (the defendant being one of them), survived the said parents. A son of a deceased son also survived them. The daughters were all married.

Motion to strike out allegations pleaded as a defence. The complaint alleges the breach of a contract by the defendant to sell and deliver to the plaintiff certain specified merchandise, and prays for damages.

Action for the construction of a will and for partition. Title comes through the will of James P. Miller, of whom the parties are the children and widow. It was executed September 18th, 1884, and he died in 1895. The' third clause is as follows: “As my wife Jane G-.

<p>Action for damages foi breach of a contract of service by a discharge. Motión for a further bill of particulars.</p>

<p>Appeal from Appellate Term to Appellate Division — Leave — Newly-designated Appellate Term;</p> <p>The provisions of the Constitutipn of 1894 (art. 6, § 5),' and of the Code of Civil Procedure, § 1344, are applicable to the Appellate Term of the Supreme Court, and an application to it, for leave to appeal to the- Appellate Division, is properly made at the next term after the decision was rendered, dnd this although, because of a new designation of justices, its members did.not render the decision sought to be reviewed:</p>

Motion to set aside service of ■ summons and complaint on incompetent defendants, because action was commenced without permission of court.

<p>Action of foreclosure.</p>

Action by assignee of lessor on tenant’s covenant to pay rent. Defense, that premises were rendered untenable by fire and not put in tenantable condition at the time called for by the lease.

<p>Malicious prosecution —Want of probable cause—Status of plaintiff’s husband, whether servant or tenant.</p> <p>Where the proof,, in an action for malicious prosecution, tends to show that the assault for which the defendant- caused the plaintiff’s arrest consisted, as she alleges, in her resistance to his entrance upon premises of which she and her' husband claimed to be bis tenants, and the testimony upon that question shows that the defendant had deducted from the wages of the husband, who was also in his service, moneys for rent, and had, in two affidavits used in judicial proceedings, stated, in one case, .that he had rented the premises to both husband and wife and, in the other case, that he had rented them to the husband, the question whether the husband was servant or tenant is properly left to the jury.</p>

<p>Domestic assignment by insolvent foreign corporation — Conflict of laws — Estoppel.</p> <p>Where a corporation, incorporated in a foreign state, where an in- . solvent corporation is forbidden to make any assignment of its property, carries on business and subsequently makes a general assignment in the state of New York, containing no preferences other than those to employees, a creditor, resident in this state, and which is also the depositary of the funds of the general assignee, is, after the making of a final decree to which it was a party, and under which, it would receive a distributive share, estopped from bringing an action, in order to levy by attachment upon the funds of the general assignee, upon the theory that the assignment in this state is void because it conflicts with the laws of the foreign state relative to assignments by insolvent corporations.</p>

<p>1. negligence — Collision in á street—Contributory negligence by leaving a buggy unattended in the street, contrary to an ordinance.</p> <p>Where it appears, upon the trial of an action, to recover damages for injuries alleged to have been caused by the running away of the defendant’s team, left unattended in a city street, and its collision with the buggy of the plaintiff, that, contrary to a municipal ordinance forbidding, under a penalty, “any detached vehicle to remain in any public street,” the buggy of the plaintiff had, before the collision, stood in such a street for more than four hours, a justice of the. Municipal Court of the city of Syracuse may properly find as a fact- that the plaintiff has been guilty of such contributory negligence as precludes his recovery.</p> <p>3. Same — A horse left unattended in a street — Bes ipsa loquitur.</p> <p>The fact, that a horse, left unattended by the defendant in a public street, ran. away, calls for. .explanation, and, when unexplained, would have called for a reversal of the judgment in his favor, had the plaintiff been free from contributory negligence.</p>

■ Application pursuant to section 12 of the Municipal -Law; to compel the county treasurer of Oneida county to apply so. much of the taxes received by him and his predecessors collected on the assessed valuation of the Dtica, Chenango & Susquehanna Valley R. R. Co. and its successor, the D-, L. & W. R. R. Co., in the town of Bridgewater, as shall be.necessary to take up certain bonds, issued by -said town to aid in the construction of said railroad, and in the purchase of…

<p>Application for a peremptory writ of mandamus requiring the board of supervisors of Cayuga county to assemble and audit the relators’ bills for services as eápert witnesses for the People on a trial for murder.</p>

<p>Demurbeb to complaint on the ground that it fails to state facta sufficient to constitute a cause of action.</p>

Motion at Special Term, to compel purchasers to take title to property sold under a final order in a special proceeding taken under section 85 of the Real Property Law, for leave to mortgage or sell a trust estate.

<p>Proceedings to determine the compensation of a referee in an action of dower. ,</p>

Action by a trustee for a final judicial settlement of Ms accounts, and for directions as to the distribution of the trust fund.

Pbooebdiiígs supplementary to execution for the examination of the judgment debtor and other parties who are alleged to hold property in their hands belonging fo said judgment debtor.

<p>Partition'—Reply of alleged heirs attacking a will, established as against them — Final judgment on demurrer.</p> <p>Where it appears from the pleadings in an action, brought by alleged heirs at law to partition lands formerly of a testatrix and also attacking her will, that the plaintiffs are her sisters, that she left an only son, whose will has been judicially established by a judgment in an action to which the plaintiffs were parties, and that his will made no provision for them, a reply interposed by them, which attacks his will and also alleges that the judgment establishing it was fraudulent and void, is a mere statement of a legal conclusion; and as the ■ plaintiffs show no right to maintain the action as heirs-at-law of the testatrix, the defendants are entitled to final judgment.</p>

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

<p>Motion to set aside a judgment.</p>

<p>Actions to set aside judgments and executions obtained against a corporation.</p>

<p>• Action to set aside fraudulent transfers of real and personal property and confessions of judgments made by partners.</p>

<p>Libel of a .tradesman — Compensatory and punitive damages.</p> <p>The printing and circulation by a person of a circular relative to his brother, who was conducting hear by a business similar to his own, stating, among other things, “that an. unscrupulous grocer .of the same name in the immediate vicinity or neighborhood advertises ‘ Davey’s teas and coffees,’ with a view to deceive the public, and may sell an inferior article,” is libelous per sc, and entitles the person libelled to compensatory and punitive damages.</p>

<p>Motion for a new trial.</p>

<p>1. Assignment for benefit of creditors — Compromise of claims — Liability for rent.-</p> <p>An assignee for -the .benefit of creditors cannot compromise a demand against the estate of the assignor; and hence where he has, against the protest of the assignor, although under the authority of an ex parte order, secured the cancellation of a lease, under which the assignor was tenant, by the payment of a sum of money to the lessor, the payment must be disallowed upon his accounting.</p> <p>Semble, that the lessor could prove the rent due up to the time of distribution and come in for his share of the. assets, but whether he. could claim the whole rent reserved by the lease for the entire term, quaere.</p> <p>2. Same — Counsel fees.</p> <p>The charges of ian assignee for legal expenses should appear in his account, and be presented under oath, in the same manner as all other expenses of the trust.</p>

<p>Corporations — A receiver is not bound to complete its contracts — Bights of special and general creditors.</p> <p>The receiver of an insolvent corporation is not bound to complete its contracts; but if he does so, without objection from any party in interest, the cost of completion is properly chargeable to special creditors who have an assignment of, or a lien upon, the proceeds of the contract; and the cost, together with a proportionate share of the expenses of the trust, should be deducted from the proceeds before the balance is paid over by him, instead of deducting it from rne general funds of the trust.</p> <p>The cost of the completion of the contract would, in any event, b.e the measure of damages for the nonperformance by the corporation of its contract and the special creditors can prove that cost as a claim against the general fund and share pro rata' with other creditors.</p>

Action to have it declared that the defendant holds certain property impressed with a trust, and to require him to transfer the . same to a trustee to be appointed by the court.

In the action first above mentioned, the plaintiff obtained an order of arrest against the defendant, who gave the required bail and was discharged from custody.

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

<p>Appeal from a judgment of the General Term of the City Court, affirming a judgment of the Trial Term in favor of the plaintiff, for personal injuries resulting from the negligence of the defendant.</p>

<p>1. Contempt — Failure to obey order to deliver property to receiver.</p> <p>The failure of a judgment debtor to deliver in accordance with an order of the City Court of the city of New York, a certain ring to a receiver of his property, appointed in supplementary proceedings, and his delivery, instead thereof of another ring of little value, constitutes him guilty of a civil contempt (Code of Civil Procedure*' § 14, subd. 3, § 3343, subd. 2) punishable by a fine and the costs of the motion.</p> <p>8. Same — Form of order of punishment.</p> <p>The fact that the defendant has, by its terms, been given an opportunity to comply with the order before a commitment shall issue, does not affect the validity of the order.</p> <p>3. Appeals to the Appellate Term — Weight of evidence not considered.</p> <p>The Appellate Term cannot, on appeals from the .City Court of the city of New York, consider the weight of evidence.</p>

Appeal by the defendant from a judgment of the General Term of the City Court of Hew York, affirming a judgment entered upon the verdict of a jury. The opinion states the nature of the action and the material facts.

<p>Apbeal from judgment of the Eighth Judicial District Court.</p>

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

<p>District Courts of Mew York city — Fees of experts are not. taxable.</p> <p>The fees of witnesses, upon a trial had in a District Court of New York city, are fixed exclusively by the Consolidation Act (Laws of 1882,-chap. 410, § 1370) and, as the statute allows nothing for the services of experts, they cannot be taxed as disbursements.</p>

<p>Appeal from a judgment of the Sixth Judicial District Court $n favor of plaintiff.</p>

<p>Appeal from a judgment of the Seventh Judicial District Court.</p>

Appeal by the defendant from a judgment of the District Court in the city of New York for the eighth judicial district, rendered upon a trial before the justieé thereof without a jury. The nature of the action and the material facts are stated in the opinion. ^ ,,

Appeal by the plaintiff from a judgment of the District Court .in the city of Hew York-for the first judicial district, rendered in favor of the defendants by the- justice thereof, without a jury. The nature of the action and the material facts are. stated -in the opinion. - • >

Appeal by the plaintiff from a judgment of the District Court in the city of New York for the ninth judicial district, rendered • by the justice thereof, without a jury. The nature of the action and the material facts are stated in the opinion.

<p>Appeal by the defendants from a judgment of fhé District Court in the city of New York for the eleventh judicial district, rendered by tire justice thereof, without a jury. ,</p> <p>The nature of the aetion and the material facts are stated in the opinion.</p>

Appeal by the tenant from a final order, in summary proceedings to recover the possession of real property for nonpayment of rent, made by the justice of the District Court in the city of Hew York for the sixth judicial district, in favor of the landlord, upon a trial had without a jury. The material facts are stated in the opinion.

<p>Motion for a reargument of an appeal from a final order in summary proceedings.</p>

<p>■ Appeal from a judgment of the Fifth Judicial District Court.</p>

<p>Motion for the settlement and entry of an order directing the affirmance upon an appeal taken to the General Term of the Court of Common Pleas of a judgment of the 'Sixth Judicial District Court in favor, of defendant.</p>

<p>Foreign corporation as surety — Presumption of solvency.</p> <p>A foreign corporation, duly authorized to become surety upon bonds, which has submitted to the examination prescribed by statute (Laws of 1893, chap. 720, as amended by Laws of 1895, chap. 178), which has been found solvent and is shown to be so by a subsequent statement duly filed by it with a county clerk, will be presumed to continue solvent and must, in- the absence of proof of facts which overcome that presumption, be accepted as a surety upon bonds given to discharge a lien.</p>

This action is brought to obtain a construction- of certain provisions of the last will and testament, and codicil thereto-, of Willard Ives, deceased, and for instructions to the executor. Smith & Smith, for plaintiff.' ¡ 1

<p>Appeal from an order of the Special Term, 'opening a default.</p>

Appeal by Louis S. Firetag and Abraham Firetag from SO' much of an order granting a motion made by them for leave to intervene as parties defendant, as requires them to furnish security for costs.

<p>Appeal from an order vacating an attachment.</p>

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

Appeal by Louis S. Firetag and Abraham Firetag from so1 much of an order granting a motion made by them for leave to intervene as parties defendant, as requires them to furnish security for costs. .;

<p>Appeal from an order vacating an attachment.</p>

<p>Appeal, from an order resettling a case on appeal.,</p>