Volume 22 — New York Supplement

<p>Appeal from judgment on report of referee.</p> <p>Proceedings by William H. Beard and others for passing and allowing their accounts as executors and trustees under the last will and testament of William Beard, deceased. From certain portions of a judgment entered on the report of a referee, they appeal.</p>

, Appeal from trial term, New York count}'-. Action by Charles E. Hart, by his guardian ad litem, against the Delaware, Lackawanna & Western Railway Company, for personal injuries. From a judgment for plaintiff entered on a verdict of a jury, and from an order denying its motion for a new trial, defendant appeals.

Action by Byron C. Ketcham, as executor of Abram F. Ketcham, against Spencer G. Ketcham and others, impleaded with Esther E. Ketch-am Redman and others, for the construction of a will. From the judgment, defendants Esther E. Ketcham Redman and others appeal.

Action by the Cincinnati National Bank, a second mortgagee, against Myron H. Tilden, Jr., Thomas Brown, as administrator, and others, to foreclose a second mortgage; and action by Thomas Brown, as administrator, against Myron H. Tilden, and others, to foreclose the first mortgage.

Action by William F. Lawrence and another against Edward-L’Estrange Phipps to recover the amount of two orders accepted by defendant. From a verdict for plaintiffs, directed by the court, defendant appeals.

Action by William T. Reynolds and others against William S. Horton. From an order vacating an attachment on motion of Charles A. Van Dusen, a junior attaching creditor, plaintiffs appeal.

Proceeding to settle the accounts of Sarah N. Worthington and others, executors and trustees under the will of Harry T. Worthington. From an order of the surrogate denying a motion to open and amend a decree settling the account of the executors and trustees, John A. Bryan, one of the executors, appeals. Affirmed. .

Action by Joshua C. Sanders against James L. Parshall to remove a cloud from the title of plaintiff’s land. From an order dismissing the complaint, plaintiff appeals. Reversed.

Action by George Gerbig against the New York, Lake Erie & Western Railroad Company for personal injuries caused by defendant’s negligence. From a judgment for plaintiff, and from an order denying its motion for a new trial, made on the minutes, defendant appeals. Reversed.

Case submitted on agreed statement. Action by Wilbur H. Weston against the City of Newburgh, Charles J. Lawson, mayor, and the common council of the city of Newburgh, to compel defendants, by writ of mandamus, to perform a contract for the purchase by said city of certain premises owned by plaintiff, and submitted on an agreed statement of facts. Judgment for plaintiff.

<p>Appeal from special term, Queens county.</p> <p>Action by Benjamin Wright against David Miller and others. From a judgment dismissing the complaint, plaintiff appeals.</p>

Action by Arthur M. Dodge and others against Henry A. Ockerhausen to recover on two promissory notes for $500 and $519, respectively, given by defendant to plaintiffs in renewal of a certain other note, for $1-019. The note for $1,019 had been given by defendant to Keely & Son for work done by them on á building. Keely & Son, being indebted to plaintiffs in this amount for lumber used in defendant’s buildings, indorsed the note to plaintiffs.

Certiorari by Flavius J. Allen against C. J. Badgley and others, tax assessors of the town of Poughkeepsie, to review an assessment. Judgment reducing the assessment, from which the assessors appeal.

Proceedings to open Rogers avenue in the town of Flatbush. The commissioners made a report awarding compensation for the land taken, and assessing the property liable therefor, and move for its confirmation.

Two actions—one by Henry H. Skinner and Sarah H. Skinner, administrators of Herbert W. Skinner, deceased, and the other by the same plaintiffs, as administrators of Charles B. Skinner, deceased—against the Prospect Park & Coney Island Railroad Company, to recover for the alleged negligent killing of plaintiffs’ decedents by defendant. From a judgment in favor of plaintiffs, and from an order denying a new trial in each case, defendant appeals.

Actions by Jacob Bisson and others against the West Shore Railroad Company and others, and by the same' plaintiffs against Chauncey M. Depew and others, for partition. From the final judgments in the respective actions, and also from amended interlocutory judgments, defendants appeal. Affirmed.

<p>Appeal from special term, Dutchess county.</p> <p>Action by Charles M. Rowley against Thomas J. Swift. A demurrer to the complaint was overruled. Defendant appeals.</p>

Action by Charles Beardsley against George H. Cook on an accepted order. From a judgment entered on a trial before a judge without a jury, defendant appeals. Defendant was the owner of certain buildings in process of construction by Davis & Fay, contractors.

<p>Appeal—Weicht op Evidence—Decision op Reperee.</p> <p>A referee’s decisión based on conflicting evidence will not be disturbed on appeal.</p>

Action by Mary B. Bancroft against the city of Newburgh for personal injuries resulting from a fall on a defective sidewalk. From a judgment entered on a verdict by a jury, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Appi nl from circuit court, Kings county. Actit n by William Harrigan against the city of Brooklyn to recover for peuonal injuries alleged to have been caused by defendant’s negligence. Defendant had judgment by direction, from which, and an order denying a new trial, plaintiff appeals.

<p>1. Wills—Construction—Perpetuities.</p> <p>A provision in a will giving to testator’s wife all the property of which he might die seised “until my youngest child'may become the age of majority” is a valid bequest, the suspension of the power of alienation being only during the minority of the youngest child.</p> <p>2. Same—When Legacy is Payable.</p> <p>By the second clause testator directed his executors, “at the time when any of my child or children shall marry, to give to such child or children the sum of $5,000.” Held, that it was not the testator’s intention that a child who married should not have the $5,000 until, the youngest became of age, when the estate was to be divided, because in such case nothing would be given by this section but what they would have obtained without it, and also because it appears that the oldest daughter was 17 years old at the time of his death, and, if the youngest had lived to his majority, she would get nothing until she was 38 years old.</p> <p>3. Same—Bequest in Lieu op Dower.</p> <p>In the same clause it was provided that on the coming of age of the youngest child the property was to be divided equally among his children, “except one thiid of the entire estate shall be given to my wife as her right of dower. ” The fourth clause provided: “But in case my wife shall remarry, I direct that my executors hereinafter named shall give unto my wife, as her interest, and for the support of my children, the sum of $1,800 a year, and the possession of the premises she now occupies, rent free.” Held, that this provision for the widow in case of remarriage was not intended to be for life in lieu of dower, but only duringthe minority of the youngest child, and at the end of the minority the estate should be wholly divided, the widow taking one third the same as if she had not married.</p>

Action by Ludwig Herbst against the Vacuum Oil Company. An order setting aside a verdict for plaintiff was affirmed “with costs of the appeal to abide the event,” (15 1ST. Y. Supp. 938,) and on the second trial plaintiff again had a verdict. The clerk taxed the costs of the appeal in favor of plaintiff, and from an order denying a motion for a re-taxation, defendant appeals.

Proceedings for settlement of the accounts of William Lang, executor of Eliza Stringer, deceased. From so much of the judgment as refused to compel restitution of property delivered by the executor to a residuary legatee, the executor appeals.

Action by Oliver W. Barnes against James Seligman and others, executors, to compel the specific performance of a contract to deliver railroad stock. A motion to compel plaintiff to give security for costs was denied, and defendants appeal. Plaintiff had previously brought an action at law for damages for breach of the same contract on which the present action is based, and obtained two judgments therein for costs, and executions issued thereon were returned unsatisfied.

Action by Michael R. Dinan against William Coneys and Hannah Coneys to recover real estate. From a judgment for plaintiff for a recovery of the land, and for defendant, against plaintiff, for the amount of a legacy chargeable on the land, plaintiff appeals.

<p>Appeal from circuit court, Orange county.</p> <p>Action by Thomas O’Malley against the New York, Lake Erie & Western Railroad Company to recover for personal injuries received through defendant’s alleged negligence. From a judgment in favor of plaintiff, and an order denying a new trial, defendant appeals.</p>

Action by Gottlob Gunther against Rudolph Mayer and others to foreclose a mortgage. From the sale under the foreclosure of this mortgage there was left a surplus. The Holland Trust Company, the holder of a second mortgage, claimed a lien on this surplus by virtue of its mortgage. From an order confirming a report of the referee, which report declared the second mortgage to be void, the Holland Trust Company appeals.

Action by Louis Rapps and Louis Zwickel against Henry Gotleib and Bettie Stem for the cancellation of a bond and mortgage held by defendants against plaintiffs. From a judgment directing a surrender of such bond and mortgage to plaintiffs, and a cancellation thereof, defendant. Stern appeals.

<p>Appeal from special term, Kings county. '</p> <p>Action by Howard S. Jones against Robert L. Moores and others to foreclose a mechanic's lien. From a judgment for plaintiff, defendants appeal.</p>

Action by John Donovan against Thomas E. Wheeler and others to set aside a deed given by plaintiff to defendant, which plaintiff, as alleged, never intended should operate as a grant. Judgment for plaintiff. Defendants appeal.

<p>Appeal from court of sessions, Kings county.</p> <p>Joseph Rosenberg was convicted of unlawfully carrying on the business of fat rendering, and appeals.</p>

Action by James Donovan against the Long Island Railroad Company to recover for personal injuries sustained through the alleged negligence of defendant. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Harmon IT. Nathan, for himself and all other stockholders of the Pictet Artificial Ice Company, Limited, against Robert White-hill and others, directors, and the Pictet Artificial Ice Company, Limited. From an order denying a motion to vacate an order obtained by-plaintiff, requiring defendant Whitehill to appear for examination for the purpose of enabling plaintiff to frame his complaint, defendant Whitehill appeals.</p>

<p>Affidavit in Attachment—Statement of Claim.</p> <p>Where in plaintiff’s affidavit for attachment the only statement of facts-constituting his claim was as “set forth in the complaint in this action,” which was referred to and made part of the affidavit, and the complaint was»on information and belief, with no statement as to the sources of plaintiff’s knowledge or grounds of belief, plaintiff was not entitled to an attachment; the rule under Code Civil Proc. §§ 635, 636, relating to attachments, requiring plaintiff’s affidavit to show positively sufficient facts to establish a cause of action, and to specify the grounds of his claim. Haebler v. Bernharth, 23 y. E. Rep. 167,115 N. Y. 459, distinguished.</p>

Action by Daniel Hunt, executor, etc., of Harrison Hunt, deceased, against Ellen Gleason and others, for the foreclosure of a mortgage. From a judgment dismissing the complaint, and directing that the morfl gage be satisfied, plaintiff appeals.

Action by the Dueber Watch Case Manufacturing Company against the American Waltham Watch Company and others. The following memorandum was filed January 3, 1893, by LAWRENCE, J., at special term: From an order granting a motion of the American Waltham Watch Company and the Elgin National Watch Company, requiring plaintiff to furnish a further bill of particulars of its claim, plaintiff appeals. Reversed.

Petition by Charles Cottier and Jean G. C. Cottier, at special term, for an order to show cause why an order substituting Mary C. Stein-, heauser as assignee of Charles Magnus, in the place and stead of her husband, Henry W. Steinheauser, should not be vacated and set aside. The order was granted, and Mary C. Steinheauser removed from her position as assignee. ' She therefore appeals.

Action by the Eaves Costume Company against Thomas H. Pratt. From an order denying his motion to vacate an attachment against his property, issued on the 'ground of his nonresidence, under Code Civil Proc. § 636, suhd. 2, defendant appeals.

Action by George Campbell and William Achnach against Robert F. Sloane and William Bell for an accounting and an injunction. From a judgment in favor of plaintiffs, defendant Sloane appeals. Reversed.

Action by Riley V. Miller and Elisha M. Moore against Thomas D. Jones, Mary E. Jones, and the Jones Positive Nut Lock Company, impleaded, etc., to set aside certain transfers of a patent. From a judgment granting the relief and denying a motion to vacate and set aside the judgment, defendants appeal.

Franklin M. Severance was indicted under Pen. Code, § 602, for having made a false entry in a “tickler,” a book of accounts kept by the bank, while cashier of the Farmers’ Bank of Fayetteville, with intent to defraud the bank, and was convicted. From a judgment of conviction, and from an order denying a motion for a new trial, he appeals. Defendant was indicted by a grand jury in the Onondaga oyer and terminer on the 21st day of January, 1891.

In proceedings for the final settlement of the accounts of Nancy Bronson, widow, and Alexander McAuley, administrators of the estate of George C. Bronson, deceased, Nancy Bronson presented a personal claim against the estate, which consisted of two items, one for rent, and the other for an insurance draft for $1,188, or the proceeds thereof, issued by the Aetna Insurance Company of Hartford, payable to the order of said Nancy Bronson, and which was deposited by decedent, in…

Action by Charles Spencer, as administrator of the estate of Robert J. Spencer, deceased, against the New York Central & Hudson River Railroad Company, to recover for the alleged negligent killing of his intestate by defendant. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals. Reversed.

Action by Frederick C. Friess, an infant, by John Friess, his guardian ad litem, against the New York Central & Hudson River Railroad Company, to recover damages for personal injuries sustained through defendant’s alleged negligence. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.

Application by the board of public works of the city of Watertown to take lands for the extension of Clay street. From an order confirming the report of the board to extend the street, Sterling A. Willard and others appeal.

Ladew and Joseph H. Ladew. Defendants appeal from an order refusing to compel the plaintiff to state the facts constituting the frauds alleged in his complaint.

Action by Emil Alfred Cornuel, Alexis Ludwig, A. Bullot, and E. Jacobs against Otto C. Heinze.

Action by Anna Frances Travers against Herbert L. Satterlee, executor of the last will and testament of Reverdy J. Travers, deceased, impleaded with Maria L. Travers and others, to determine the validity of a will. From an order directing that plaintiff be allowed to inspect a letter mentioned in said will, which she alleged to be in the possession of defendant Satterlee, he appeals.

<p>Appeal from court of general sessions, New York county.</p> <p>Eugene A. Pinckney was convicted of grand larceny in the second degree, and he appeals.</p>

Action by the American National Bank of Providence, R. I., against William R. Grace to recover damages for fraud and deceit. From an order granting a motion to make the complaint more definite and certain, plaintiff appeals.

Action by Edward 0. James against James Henry Work. From an order denying a motion for resettlement of the amended case on appeal, defendant appeals. Affirmed in part and reversed in part.

Action by Alfred A. Liscomb against Sarah K. Agate, as executrix, William Allen Butler and William Allen Butler, Jr., as executors, of the will of Frederick K. Agate, deceased, to recover for services as agent, for money expended, and damages for wrongful discharge. There was a judgment in favor of defendants, and plaintiff appeals.

Application by the Metropolitan Elevated Railway Company to condemn certain real estate in the city of New York. From an order granting a motion by the property owners to confirm the report of the commissioners awarding the damages for the appropriation of Parcel No. 7, forming a part of the premises known as “Nos. 31 and 33 Vesey Street,” in said city, the railway company appeals.

York county. Action by the Hecla Consolidated Gold Mining Company against William L. O’Neill to compel defendant to execute an assignment to plaintiff of three mining claims held by him under a trust deed. From a final judgment entered on sustaining a demurrer to the answer, defendant appeals.

<p>1. Party Walls—Construction of Contract—Injunction.</p> <p>Plaintiff and defendant entered into a written agreement, which, after reciting that the parties were the respective owners of adjoining city lots, and that defendant was about to erect a five-story building on his lot, provided that defendant might build one half of one wall of such building on plaintiff’s lot, plaintiff to pay for part of the cost of such wall, and to have the right to use it as a party wall. The agreement contained no restriction as to the height of defendant’s building. Held, that plaintiff could not enjoin defendant from increasing the height of his building to six stories, provided such increase could be made without detriment to the strength of the wall or to the property of plaintiff.</p> <p>3. Same—Parol Evidence to Modify Writing. ,</p> <p>Such agreement not being ambiguous, evidence as to the intention of the parties in making it is inadmissible in an action to enforce it.</p>

Action by Joseph Keit against David Wyman and Frederick Keller. From a judgment entered on a verdict, and from an order denying a motion for a new trial, made on the minutes, defendant Wyman appeals.

Action by Oscar Miersch against Felix C. Bivin for rent. From a judgment for plaintiff, entered on a verdict directed by the court, defendant appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Leo Goldmark against the Metropolitan Opera-House Company. From an order denying a motion to suppress a deposition, defendant appeals.</p>

<p>At chambers. Proceeding to strike from the registry list of voters of the third district of the town of Highlands the names of persons residing on the West Point military reservation.</p>

Action by William W. Weston and others against Pamelia W. Turner and Alexander S. Turner. From an interlocutory judgment entered on an order overruling a demurrer to the complaint, defendant Pamelia. W. Turner appeals. Affirmed.

Action by Isaac H. Bailey, as assignee of the estate and effects of Daniel Drew, a bankrupt, against Daniel Drew Chamberlain, Emma W. Chamberlain, the Farmers’ Loan & Trust Company, as trustee, and William H. Drew, individually, and as executor of the last will and testament of Daniel Drew, deceased. An interlocutory decree was entered, and also a final decree, from which both parties appeal. Affirmed.

Action by John W. Boughton and Lorenzo Terwilliger against Millard F. Smith for materials and labor furnished by plaintiffs to defendant. Plaintiffs obtained judgment. Defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by Marsden J. Perry against the Council Bluffs City Waterworks Company on a promissory note. Plaintiff obtained judgment. Defendant appeals.</p>

Action by Cornelius W. H. Biting against Charles W. Dayton. From an order denying leave to amend the complaint, plaintiff appeals. Reversed. February 25,1885, the plaintiff, a builder, entered into a contract with the defendant, the owner of five houses, to repair them, according to plans and specifications, for $9,726, on or before April 20, 1885. The work was not in fact completed until May 15, 18ti5.

Action by William M. Tebo against Henry Gregory Jordan, Morton Stimpson Crehore, and Charles Daniel Jordan upon a charter party. From a judgment dismissing the complaint, with costs, entered on a directed verdict, plaintiff appeals.

<p>Appeal from court of general sessions, New York county.</p> <p>John P. Kir wan was convicted of assault in the second degree, and appeals. .</p>

At chambers. Claim by Thomas J. Shea against Charles E. Cornish and Lewis M. Cornish, as executors of the estate of Charles L. Cornish, deceased. Defendants moved to confirm the report of a referee, and plaintiff moved to set aside the report, and to refer the case to a new referee. Motion to confirm overruled, and motion to set aside granted, and report sent to the same referee for amendment.

Action by Moritz Silberstein, as administrator of Arthur Silberstein, deceased, against the William Wicke Company, to recover for the pecuniary injuries resulting to the next of kin of decedent from his death. There was a verdict for plaintiff for nominal damages only, and plaintiff moves for a new trial.

Action by Moritz Silberstein, as administrator of Arthur Silberstein-,. deceased, against the William Wicke Company, for the negligent killing of decedent. There was a verdict for plaintiff for nominal damages-only, and the clerk taxed in his favor a full bill of costs. Defendant appeals from the taxation. Affirmed. For decision on motion for new trial, see 22 N. Y. Supp. 170.

Action by Andres W. Ketcham and others against Isidor Cohn and Henry Newman for damages for trespass. From a judgment entered on a verdict for plaintiffs, and from an order denying a motion to set aside the verdict, and for a new trial, defendants appeal.

Action by William B. Taylor and others against Thomas E. Satterthwaite and another to recover money. Defendants move that George B. Bead be substituted in their place as defendant, under Code Civil Proc. § 820. From an order denying the motion for interpleader, defendants appeal.

Action by Carrie Guran Davis against Simon Davis to annul the marriage of plaintiff to defendant. Judgment for plaintiff. In a suit in Massachusetts by this defendant against a former wife, proceeding on a constructive service of process by publication, he obtained a decree of divorce for desertion. That decree is challenged as a nullity, for want of personal service and of an appearance by the defendant therein.

Action by Peter Balen against Emma L. Jacquelin and Charles H. Jacquelin, her husband, Sarah E. Youmans and Daniel D. Youmans, her husband, Emma J. Balen, and Anna Maria Balen, for partition. From an interlocutory judgment overruling defendant Emma L. Jacquelin’s demurrer to the complaint, (‘20 N. Y. Supp. 657,) she appeals.

Judicial settlement of the account of Blizur V. Foote and Jane A. Stokes, as surviving executors of Henry S. Valentine, deceased. Sarah N. Valentine and others, heirs of George W. Valentine, a deceased executor of, and residuary legatee under, the will, contested the final account of the surviving executors.

<p>Appeal from special term, Schuyler county.</p> <p>Action by Derastus Swarthout and others against William F. Ranier for removal of a cloud on plaintiffs’ title to land, and for other relief.. Judgment dismissing the complaint. Plaintiffs appeal.</p> <p>The judgment recites that, upon the case coming on for trial, an order was “then and there made upon the pleadings, dismissing the plaintiffs’ complaint, with costs to the defendant. ” The appeal book contains no findings made by the trial court. The case states that when the cause was reached, and moved for trial, “the defendant’s attorney then and there moved to dismiss the complaint and the action upon the pleadings, and thereupon the said court dismissed the complaint of the plaintiffs, and the action, with costs to the defendant; and plaintiffs’ counsel then and there duly excepted. ” In the complaint it is alleged, viz.: That Darius Swarthout died in the town of Tyrone, Schuyler county, on the 1st day of October, 1886, leaving his last will and testament, (a copy of it is set out;) that the will was probated on the 26th of October, 1886, and letters testamentary issued to Doughty, the executor, and the testator left, him surviving, his widow, Ann E. Swarthout, but left no children or descendants, and left no father, him surviving; that he left Johanna Swarthout, his mother, (who has since died,) and Derastus Swarthout, and the other plaintiffs, “his brothers and sisters, and only heirs at law;” that the testator, at the time of his decease, was the owner in fee, and died seised, of the lands described in the complaint, consisting of about 81 acres. It also alleged that “under and by virtue of the said will the said Ann B. Swarthout took a life estate in the real and personal property of which the said Darius Swarthout, deceased, died seised, to have and to hold the same, for her comfort and support, if she needed the same, during her natural life, and which was all the estate or interest which she had or took in and to said estate, or any part thereof, and that she had no other or different estate or interest in the same.” Also that she, under and by virtue of the will, took and received ail of the personal property of which the said Darius Swarthout died seised, amounting in all to the sum of $1,200; that she had the sole use, profits, and enjoyment of all the lands and premises aforesaid “for and during her natural life;” that in the month of April, 1890, she intermarried with the defendant, and was his wife until the 29th day of September, 1891, at which time she departed this life at Penn Yan, leaving her husband, the defendant, her surviving. Also “that at the decease of the said Ann E. Ranier the said lands and premises herein described remained intact, and had not, nor had any part thereof, been used and disposed of for the comfort and support of the said Ann E. Ranier, formerly Ann E. Swarthout, under the provisions of said will, and that the same, upon her decease, descended to” Johanna Swarthout, the mother, during her life, and the reversion to the plaintiffs, in fee, as the heirs at law of said Darius Swarthout, deceased. Also alleges that “on the 1st day of October, 1891, the defendant herein caused to be recorded in the records in the Schuyler county clerk’s office, at Watkins. N. Y„ in Book SO of Mortgages, at page 139, a certain written instrument, purporting to be an indenture of mortgage, and which purported to be executed and acknowledged by the said Ann E. Ranier, formerly Ann E. Swarthout, to the defendant, and purporting to secure to the defendant the payment of the sum of three thousand dollars, and interest thereon, and purporting to cover and bind the said lands and premises hereinbefore described for such payment, and dated on the 1st day of July, 1890, a copy of which said instrument” is set out. Also alleges: “And these plaintiffs further allege that the said Ann E. Ranier bad no right, power, or authority to execute, acknowledge, or deliver to the defendant, or any other person, the said instrument, marked ‘ B,’ for the purpose of binding and charging the fee in remainder of said lands and premises, and that said instrument, purporting to be executed by her, was and is, as these plaintiffs are informed and believe, wholly without consideration, illegal, and void, as against these plaintiffs, and their several interests in said lands and premises. ” Also alleges “that the said defendant claims and insists that said instrument is a good, valid, and subsisting lien and mortgage upon the whole of said lands and premises, and upon the interests of these plaintiffs therein, and that the defendant intends to insist upon the collection and payment of the same out of the said lands and premises. ” Also alleges that before the commencement of this action the plaintiffs “requested and demanded of said defendant that he execute and acknowledge” a satisfaction of said mortgage, which he refused to do. Also “that said instrument is and still remains upon the records of Bch.uyler county, and is and creates an apparent lien and incumbrance, to the amount of §3,000 and interest, upon said lands and premises, and the interests of these plaintiffs therein, and is a cloud upon their interests and title thereto. ” The complaint contains a suitable prayer for relief. The testator’s will bears date the 17th day of August, 1878, and contains the following language: “First: My will and desire is that all my just and lawful debts and funeral expenses be paid. Second. I will, devise, and bequeath to my wife, Ann Elizabeth Swarthout, all of my property, both real and personal, household goods of whatever name or nature, promissory notes, notes, bonds, mortgages, bank bills, &c.; to have and to hold, for her comfort and support, all of the above-named property, if she needs the same, during her natural lifetime, if she should outlive me. Third. My will and desire is that after the death of wife, Ann Elizabeth Swarthout, I will, devise, and bequeath to the Wayne Village Baptist Church one thousand dollars, to be put out at interest, and the annual interest is to go toward the supporting a minister to preach for the said church, if there is enough of my property left at the death of my wife. Fourth. I herebj’’ appoint my friend, William H. Doughty, as my only executor and trustee to this, my last will and testament, hereby revoking all former wills made by me. ” The answer of the defendant “alleges that on the 9th day of July, 1890, the said Ann E. Swarthout, then Ann E. Ranier, executed, acknowledged, sealed, and delivered to this defendant her bond, in the penal sum of §6,000, conditioned for the payment of §3,000 to this defendant, his representatives or assigns, five years from July 1, 1890, with interest at six per cent, per annum, payable semiannually, and in and by said bond she charged her separate estate, with the payment thereof, and acknowledged that such indebtedness was contracted for the benefit of such estate; and, for the purpose of securing the payment of such bond, she, Ann E. Ranier, executed, acknowledged, and delivered to this defendant, on the said 9th day of July, 1890, a mortgage, which is the same mortgage referred to in the complaint. ” The answer also “denies that said Ann B. Ranier had no right, power, or authority to execute, acknowledge, or deliver to this defendant the said mortgage for the purpose of binding and charging the fee in remainder of said lands and premises described therein, and he denies that said instrument was or is without consideration, or illegal or void, as against the plaintiffs. ” No opinion is produced from the special term.</p>

Exceptions from circuit court, New York county. Action by Augustus Kountze against Fannie Ida Helmuth to recover damages for breach of a written contract to convey certain real estate. Subsequent to the trial, plaintiff died, and the action was revived in the name of Herman Kountze, Luther Kountze, and Charles Kountze, as his executors.

Action by John Peirce against John B. Devlin, the mayor and commonalty of the city of New York, Henry C. Hart, the Mt. Morris Bank, Edmond Huerstel, Alexander Pollock, Sadie Ulman, William H. Bostelman, and Mathew Baird, for an accounting, and to determine the validity and priority of certain assignments of a fund due defendant Devlin on contracts with the city of New York, executed to plaintiff and the defendants other than Devlin and the city.

Action by Sarah Maria Judd against Mary E. Burrell, Fanny Hodgins, Matilda Gaze, John Judd, and George W. Cobb, as executor of the last will and testament of Emily E. Butler, deceased, which will was dated nine years before testator’s death. From a judgment rendered in favor of defendants, dismissing the complaint, plaintiff appeals.

Action by James V. S. Woolley against Marie Friedlander for money alleged to be due him on a contract for the sale of land to defendant. From a judgment entered after a dismissal of the complaint on the opening of counsel, plaintiff appeals.

Action by William J. Pollock against Richard M. Hooley and others for the specific performance of a contract to exchange real estate. From a judgment in defendants’ favor, plaintiff appeals.

<p>1. Burglary—Intent to Steal—Evidence.</p> <p>On a prosecution for burglary it appeared that defendant, during the daytime, entered the hall door of an apartment house, which had been locked, and that he went out immediately on being discovered. Held, that the jury were justified in finding that such entry was with intent to steal, where it further appeared that about a week later he again went to the house, and attempted to deliver to the woman, who alone occupied it during the daytime, a decoy letter, to induce her to leave the house, and that on "his arrest a day or two later a key was found in his possession which fitted the hall door.</p> <p>2. Same—Indictment—Occupant op Apartment House.</p> <p>The indictment properly charged the burglary to have been of the dwelling house of the woman who alone occupied the apartment house during the daytime, and who had locked the hall door for her protection.</p> <p>3. Same—Breaking Hall Door.</p> <p>Pen. Code, § 503, which provides that each separate and distinct apartment of a building so constructed as to be occupied by different tenants shall be considered a separate building, does not render defective an indictment which charges the breaking in of the hall door of an apartment house as a burglary against the occupant of one of such apartments, all the others being vacant.</p>

Action by Augustus N. Lindsley against Henry W. Van Cortlandt and others to set aside a bill of sale and certain judicial proceedings on the ground of fraud against creditors. From a judgment in favor of plaintiff, defendants appeal.

Action by Andrew W. Hunk against the city of Watertown for damages sustained from the flooding of his premises by sewage. There was a verdict of $250 in plaintiff’s favor. From the judgment entered thereon, and from an order denying defendant’s motion for a new trial, made on the judge’s minutes, defendant appeals.

Case submitted on agreed statement. Controversy between Marion L. Carroll and Anne L. Langdon- on the one part,, and the New York Life Insurance & Trust Company on the other part, submitted, without action, on an agreed statement, under Code Civil Proc. § 1279.

Certiorari by Frederick S. Heiser, as executor, etc., of Christina E. Smith, deceased, against Edward Gilon and others, as the board of assessors of the city of New York, and Theodore W. Meyers, comptroller of said city, to review an award made by the board as to the damages sustained by relator’s estate by change of grade of Eighth avenue. From an order modifying the writ of certiorari, relator appeals.

Action by Carroll Whitaker against Herman L. White and others, stock brokers, for a balance alleged to be due plaintiff from a sale of certain stock. The answer admitted the sale in question, but alleged that plaintiff was indebted to defendants by reason of having authorized and directed the purchase of other stock, the sale of which resulted in a loss. The action was twice tried, and resulted in a verdict in plaintiff’s favor each time.

Action by Andrew G. Washbon and another against Nancy Cope and others to compel defendant Nancy Cope to give security for certain legacies received by her under the will of her father, Andrew G. Washbon, or to submit to the appointment of a receiver for such legacies. From a judgment dismissing the complaint, plaintiffs appeal. Andrew G. Washbon died March 1,1867. leaving a last will and testament bearing date the 31st day of January, 1865.

Case submitted on agreed statement. Controversy between Henry W. Johnson and Edward G. Williams, submitted on an agreed statement under Code Civil Proc. § 1279, to ascertain -whether plaintiff’s title to certain premises, which he had contracted to convey to defendant, is or is not defective.

<p>Abatement—Death of Plaintiff before Judgment.</p> <p>In an action for the recovery of dower, a memorandum handed down by the judge, but not signed by him, directing how the dower interest should be calculated, the amount of costs to which plaintiff is entitled, and the manner of payment, is simply an indication to the parties as to how the judgment should be framed, and is not itself a final judgment, which prevents the action from abating by plaintiff’s death before the embodiment of such memorandum in an order for judgment.</p>

Action by David H. Carroll against John Pettit for commissions as a real-estate broker. From a judgment entered on a verdict in plaintiff’s favor, and from an order denying a motion for a new trial, defendant appeals.

Action by John R. Phillips, as receiver of the National Bank of Sumpter, S. C., against the Mercantile National Bank of the City of New York, to recover an alleged balance due plaintiff on its deposit account with defendant, and also a dividend paid defendant under an alleged mistake of fact by the receiver. From a judgment dismissing the complaint, plaintiff appeals.

Action by William H. Thomas and Percy Thomas, copartners, etc., against Henry A. Dickinson and David I. Johnson, copartners, etc., for fraudulent representations as to solvency, in reliance on which plaintiffs sold defendants a lot of goods. From a judgment dismissing the complaint, plaintiffs appeal.

Action by Frederic N. Blanc against Elizabeth L. Blanc. From an order permitting a supplemental answer, plaintiff appeals. This action, for a divorce on the ground of adultery, was begun May 3, 1893, by the service of a summons and complaint.

<p>Appeal from court of oyer and terminer, New York county.</p> <p>Daniel Kennedy was convicted of manslaughter in the first degree, and appeals.</p>

Petition for mandamus by the Standard Gaslight Company against Thomas F. Gilroy, commissioner of public works, to compel respondent to grant relator a permit for opening certain streets in the city of New York for the purpose of laying gas mains and conductors therein. From an order denying the writ, relator appeals.

<p>Private Nuisance—Manner of Conducting Business—Injunction.</p> <p>Evidence that the manner in which defendant conducted his business in one part of a building resulted in continuous vibrations, jarring, and noises inconvenient to plaintiffs, located in another part of the building, and to their customers, and that this could be avoided by changing the location of defendant’s dynamo and machinery to other portions of the premises held by him, authorizes an injunction against the use of the machinery in such manner as a private nuisance, without proof of damage to plaintiffs, or negligence on the part of defendant.</p>

Action by Georgianna F. Webster against Lemuel B. Clark, who died before entry of judgment, and Mary J. Clark, his executrix, was substituted in his place. From a final judgment for plaintiff, entéred on an interlocutory judgment, and on the report of a referee, defendant appeals.

<p>1. Powers—Appointment by Will—Construction.</p> <p>Testator declared that at the death of a daughter there should be held in trust certain property “for such child or children of my said daughter, or his, her, or their descendant or descendants, ” as the daughter should by will appoint. His language, in case of the daughter’s failure to appoint, was that, if the daughter should “leave living at the time of her death any child or children, or any descendant or descendants of any child or children of hers who may have died in her lifetime, ” then the property was to remain-in trust for every such child. Held, that the power of appointment was not limited by use of the word “descendants” to those whose parents were dead, but included the children of living children as well.</p> <p>2. Same—Execution—Perpetuities.</p> <p>The daughter, in pursuance of such power, appointed half the income of the property to be paid by trustees to her son, and the other half to her daughter, during their respective lives. On the death of the son half the-principal was to go to the children of the son living at the son’s death. Both-son and daughter were in being at the death of the original testator, the-grantor of the power. Held, that there was no violation of the rule in regard to perpetuities.</p> <p>3. Same.</p> <p>The provision declaring that the property was to be held in trust for such-children or their descendants, and in such proportions, and for such estates in fee or for a life, and with “such limitations and conditions” as testator’s, daughter might appoint, did not show an intention to limit the period during which the vesting of the title might be suspended to the life of the daughter, but allowed the daughter to appoint to any and all descendants of such-children, whether in being at the time of her death or not.</p> <p>4. Same.</p> <p>The daughter was not obliged to appoint an estate to every child, but might exclude any she chose, or appoint a limited estate to one and an estate in fee to another, the same as the testator might have done.</p> <p>5. Same—Selection of Trustees.</p> <p>Whether the daughter had the right to select trustees other than those named in the original will, to carry out the power, was a matter of no consequence, as a power will always be executed, so far as warranted, and anything im excess merely disregarded.</p>

•Petition of Sarah A. S til well for probate of the will of Alfred Bedlow, deceased. From a decree admitting it to probate, the widow and children of deceased appeal.

<p>Appeal from court of general sessions, New York county.</p> <p>John Hartley was convicted of assault in the second degree, and appeals.</p>

Action by William 0. Hart against Augustus Bernau for balance due on an open account. From an order vacating a warrant of attachment, plaintiff appeals.

Application by the Metropolitan Elevated Railway Company to condemn certain real estate in the city of New York. From an order confirming the report of commissioners appraising, at six cents, the damages. to parcel No. 54, being 729, 731, 733, and 735 Sixth avenue, Julian B. Hart, John I. Hart, and Mary H. Dessau, as trustees under the will of Benjamin I. Hart, deceased, appeal.

Action by Theresa C. Graham against John Graham for the cancellation of an antenuptial agreement between the parties. From a judgment dismissing the complaint, plaintiff appeals. In March, 1890, Theresa Cassidy and John Graham became acquainted; in June of the same year, they became engaged; and July 5, 1890, they intermarried, she being a spinster aged 42 years, and he a widower aged 61 years, with children.

<p>Defective Streets—Contributory Negligence.</p> <p>A 12 year old boy, who, instead of walking along a city street, as he might have done, climbs an embankment about four feet high, thrown'up in the street by the city while excavating for a sewer, and who could have seen a barrier erected by the city along the sewer trench if he had looked, is guilty of contributory negligence, as matter of law; and, in an action for injuries sustained by him in slipping from the embankment into the trench below, the trial court properly dismissed the complaint without submitting the case to the jury.</p>

Action for injunction by Frank B. Reynolds and others against James F. Everett and others. From a judgment dismissing the complaint, plaintiffs appeal.

Proceeding for the. voluntary dissolution of the David Jones Company. All persons interested in the corporation were ordered to show cause why the corporation should not be dissolved. This order was afterwards set aside, and from the order setting aside the order two of the trustees of the company appeal.

Action by the Syracuse Solar Salt Company against the Rome, Watertown & Ogdensburg Railroad Company to enjoin defendant from maintaining and operating its road in Marsh street, on which plaintiff’s property abuts, and for damages for its past maintenance and operation. From a judgment dismissing the complaint on the merits, with costs, plaintiff appeals.

Arbitration between Charles F. Beach, Jr., and Simon Sterne in respect of a claim by Beach against Sterne for an accounting of professional fees. From a judgment entered on an order of the special term confirming an award in favor of Sterne, Beach appeals. May 27,1892, the parties entered into an arbitration, pursuant to title 8 of chapter 17 of the Code of Civil Procedure. The arbitrator took the evidence, and heard the arguments offered in behalf of the litigan ts.

Action by Arthur S. Grout against John B. Cottrell to recover damages for malicious prosecution. From a judgment entered on a verdict in favor of plaintiff for $700, and from an order denying a motion fora new trial, on the case and exceptions, defendant appeals.

Action by Edward J. Davis against Warren G. Willis to recover the value of certain hay alleged to have been converted by defendant. From a judgment for plaintiff, defendant appeals. In the notice of appeal, dated March 10, 1892, from the judgment entered on the 4th of March, 1892, it is stated: “And appellant intends to bring up for review upon such appeal the order herein, dated the 29tli day of October, 1891. ” No such order is found in the appeal book.

Proceedings by the Saratoga Gas & Electric Light Company to require Byron J. Town, receiver of taxes, to pay over to it certain moneys. The moneys having been paid under an order of the court, the board of street commissioners of Saratoga Springs applied for a writ of mandamus to compel repayment, and, from an order refusing to grant the writ, they appealed. Respondents moved to dismiss the appeal.

<p>1. Injuries to Switchman—Proof of Negligence.</p> <p>Plaintiff’s intestate, a switchman in defendant railroad company’s employ, was run over and killed by an engine in defendant’s freight yard after operating the switch to allow some cars to pass. He went from his switch onto the track on which the engine which ran over him was following the cars which he had switched. The engine was moving at the rate of about three or four miles per hour, and intestate was apparently trying to cross in front of it. He was heard by the engineer to call out, and the engineer immediately stopped his engine, and found him under the tender. Held, insufficient to warrant a finding that the injury was occasioned solely by defendant’s negligence.</p> <p>2. Same—Contributory Negligence.</p> <p>It further appearing that plaintiff’s intestate had been in defendant’s employ for many years, and was thoroughly conversant with the dangers incident to his occupation, a finding that he was free from negligence is not supported by the facts.</p> <p>8. Same—Declarations.</p> <p>Evidence that plaintiff’s intestate, when taken from under the engine, asked “how he got there, ” was properly excluded, as being a declaration of intestate, sought to be given in favor of plaintiff.</p>

<p>Tenancy Subject to Power on Sale—Incumbrance by Tenant.</p> <p>Under a devise of land for life, the will giving the executor discretionary power of sale of all real estate, the life tenancy is subject to the power of sale, so that the devisee can incumber the land by an agreement as to building thereon only so long as the power of sale is not exercised by the executor, and it makes no difference that the devisee and executor are the same person.</p>

Action by Stevens Voisin against the Commercial Mutual Insurance Company to recover on a policy of marine insurance. From a judgment dismissing the complaint after trial, plaintiff appeals.

<p>1. Sale—Liability of Purchaser—Notice of Rejection.</p> <p>A purchaser of goods under an executory contract of sale without warranty is liable for the full price if he receives and sells the goods after having an opportunity to examine them, even though they are not merchantable.</p> <p>2. Same—Reasonable Time.</p> <p>A delay of five days on the part of the purchaser of perishable fruit before-notifying the seller that the fruit is'not merchantable prevents the notice from operating as a rejection of the fruit, since such notice must be given within a reasonable time.</p>

Action by George N. Manchester and others against Thomas C. Van Brunt, impleaded with E. 0. Butcher, on a promissory note. From a judgment of the general term affirming a judgment for plaintiffs, defendant appeals.

Action by William H. Jackson and others against Lorenz Reich. From a judgment for plaintiffs, and an order denying a new trial, defendant appeals.

Summary proceeding by John Hoffman against James Van Allen, his tenant, to dispossess defendant for holding over. From an order in favor of petitioner, defendant appeals.

Action by Thomas Bowe against Cornelius C. Ellis for the price of a chattel sold defendant. From a judgment for plaintiff, defendant appeals.

. Two actions by Thomas D. Hurst against Trow’s Printing & Bookbinding Company, John W. Lovell, and Edward Lange. From a judgment for plaintiff in each action, entered on a verdict directed by the cSurt, and from orders denying motions for a new trial, defendants appeal.

Action by Henry A. Capel and another against Jeremiah C. Lyons and another to recover damages for an unauthorized entry on plaintiffs’ premises. From a judgment of the general term of the city court affirming a judgment for plaintiffs, and from the affirmance of an order denying a motion for a further bill of particulars, defendants appeal.

Action by Patrick Lahey against the Central Park, North & East River Railroad Company for personal injuries. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Thomas Flynn against the Central Railroad Company of New Jersey for personal injuries. From a judgment for plaintiff, and-from an order denying a motion for a new trial, defendant appeals.

Action by Florice von Ax Halsted against Jacob H. Halsted and others for admeasurement of dower. From an order denying a motion for an additional bill of particulars, defendants appeal.

Action by Horace B. Fry against the Manhattan Trust Company and others. From an order denying a motion to disallow certain direct interrogatories proposed by plaintiff' to be attached to a commission to take testimony in another state, defendants appeal.

Action by Frederick Marx and another against Eugene A. Gross and others. From an order affirming the taxation of costs, plaintiffs appeal.

Action by Jacob F. Miller, as executor of Hannah S. Brick, deceased, against Robert Campbell, to set aside certain assignments of life insurance policies. From a judgment for plaintiff entered on findings and conclusions of the trial judge, defendant appeals.

Action by E. Stanton Riker against Timothy Mahoney and Horatio Watson to recover for services rendered defendants. From a judgment for plaintiff, and an order denying a motion for a new trial, defendants appeal.

Action by John F. Halsted against the Manhattan Railway Company. From a judgment entered on a verdict for defendant, and from an order denying a motion for a new trial, plaintiff appeals.

Action by John Beyer against George F. Victor and another. From a judgment entered at the trial term on an order dismissing the complaint, plaintiff appeals.

Action by Frederick Marx and another against Eugene A. Gross and others. From a judgment entered upon the report of a referee, defendants appeal.

<p>Appeal from special term.</p> <p>Action by Edward Corrigan against the Coney Island Jockey Club. A demurrer to the complaint was overruled,- and defendant appeals.</p>

Action by Montgomery Queen against George H. Bell and another. From a judgment dismissing the complaint, entered on findings of fact, etc., made by the judge, plaintiff appeals.

Action by Montgomery Queen against George H. Bell and another. From an order denying plaintiff’s motion for a new trial made on an affidavit and on the case as settled, plaintiff appeals.

Action by Harris Finkelstein, as administrator of Goldie Finkelstein, deceased, against Charles Crave and another, to recover for the death of his intestate, alleged to have been caused by defendants’ negligence. There was judgment for plaintiff, and defendants appeal.

<p>1. Construction of Will—Extent of Property Devised:</p> <p>Testator owned two adjoining farms,—one known as the “W. Farm,” and containing about 170 acres; the other known as the “H. Farm,” and containing about 143 acres. Testator devised to defendant his farm “containing about 140 acres, with the appurtenances thereunto belonging, being the farm on which said [defendant] now resides, ” while to plaintiff,,he, devised his farm “containing about 174J acres of land, called the ‘W. Farm,’ on which farm said [plaintiff] now resides.” At the time of testator’s “death plaintiff occupied the W. farm, and defendant the H. farm. About 87 acres of the W. farm were occupied by defendant in connection with the H. farm, but such occupation was upon the understanding and agreement that said 37-acre tract should continue to be regarded as part of the W. farm. Held, that said 37-acre tract passed by the will to plaintiff.</p> <p>3. Ejectment—Damases—Limitations.</p> <p>Under Code Civil Proc. § 1531, which provides that a successful plaintiff in ejectment is entitled to recoveras damages “the value of the use and occupation of the real property recovered for a termnot exceeding six years, ” the measure of damages is only the value of six years’ use, together with interest thereon from the date of the commencement of the action, even though several years elapse between the commencement of the action and the time of the trial.</p>

Exceptions from circuit court, New York county. Action by the United States Vinegar Company against John Schlegel to recover an unpaid balance of a subscription to plaintiff’s capital stock. On the trial plaintiff introduced in evidence a certificate of incorporation of the United States Vinegar Company, by the secretary of state, of the state of Illinois, with the seal of the state attached.

Exceptions from circuit court, New York county. Action by the United States Vinegar Company, a foreign corporation, against Henry Spamer, to recover subscription to stock. Defendant moves to set aside the verdict for plaintiff by direction of the court, and to dismiss the complaint, on exceptions ordered to be heard in the first instance at general term. Exceptions overruled, and judgment for plaintiff.

Action by the Globe Sewer-Pipe Company against Ira L. Otis and William L. Gorsline to recover the amount of subscriptions by defendants to plaintiff’s capital stock. From a judgment entered on the verdict of a jury in favor of defendants, by direction of the court, and from an order denying its motion for a new trial, plaintiff appeals.

Action by Jackson Montgomery, as sole overseer of the poor of the town of Spencer, on the relation of Seymour Seeley and another,… Held: the board granted the defendant a license authorizing him, for one year from that time, to sell strong, spirituous liquors in quantities less than five gallons at a time, which license was in the usual form, and signed by Robert Fisher and John Shepard, who voted for the same; that the only ballots cast for Horace A. Hugg were those…

Action by Wallace S. Hathaway and another against Jere L. Jenks. From a judgment entered on a verdict for defendant, and from an order denying their motion for a new trial, plaintiffs appeal. The action is in trespass. It was commenced in justice’s court, and came into this court on a plea of title.

Motion by Lorenzo Boon and another that Daniel McGucken and others be punished for contempt. An order was accordingly made on the 17th day of September, 1892, adjudging defendants guilty, and fining them $200 apiece and $15 costs each, and requiring the fines to be paid to the clerk of Oneida county, and the costs and disbursements to be paid to plaintiffs. Defendants appeal. Reversed.

Action by Leocadie A. V. Cassagne against James M. Marvin and John Tayler Hall, as trustees of the United States Hotel, of Sara-toga Springs.

Proceeding to extend South Market street in the village of Johns-town through the lands of Mortimer Wade and others. An order was entered appointing commissioners to assess damages. The landowners appeal.

Action by the Troy Manufacturing Company and others against the Star Knitting Company on a bond to recover a penalty of $5,000 as liquidated damages for nonperformance of its conditions relating to the payment of wages to its employes and assisting other corporations in the event of strikes, etc. Plaintiffs were nonsuited, and they appeal.

<p>Appeal from circuit court.</p> <p>Action by Charles Bouck against Charles H. Wolston. Defendant obtained judgment. Plaintiff appeals.</p>

Action by James Walsh, infant, by Sarah Walsh, his guardian ad litem, against the Fitchburg Railroad Company, to recover damages against the defendant for leaving a turntable exposed on its premises, in the city of Troy, whereby the plaintiff, a child of the age of five years and nine months, who was riding thereon, was severely injured. Plaintiff was nonsuited, and he appeals.

Action by Robbins M. Witherbee against Charles R. Paris, as administrator of Augustus Hale, deceased, for money loaned the master of a boat belonging to the estate of said decedent. From a judgment entered on the report of a referee dismissing the complaint on the merits, plaintiff appeals.

Action by Eliza Babcock, administratrix of the estate of Fred Bennett, deceased, against the Fitchburg Railroad Company, for negligently causing the death of- deceased. There was judgment for plaintiff, and defendant appeals.

Petition by Smith for the appointment of commissioners of appraisal to assess the damages to petitioner’s property on account of the change of grade of a street on which such property abuts, in the village of White Plains. From a judgment dismissing his petition, Smith appeals.

<p>Action by William Moore against Maria Moore for divorce. Plaintiff applies for leave to discontinue the action.</p>

Action by Henry M. Potter, as assignee of Anthony W. Dimock, against the United States National Bank, Logan C. Murray, Evan G. Sherman, and John J. McCook.

Action by Almira M. Dana, as administrator, etc., of Herbert Dana, deceased, against the Crown Point Iron Company, for the death of plaintiff’s intestate. From a judgment dismissing the complaint, plaintiff appeals.

P. J. Marsh applied to redeem certain land from tax sale. His application was denied, and he sued out a writ of certiorari to review the decision of the comptroller.

Lawrence county. Action by John Barth, as general assignee of the Wilkin Manufacturing Company, a Wisconsin corporation, against the Canton Lumber Company, for goods sold and delivered by plaintiff’s assignor to the defendant.

<p>Railroad Companies—Accidents at Crossings—Evidence—Ringing of Bell.</p> <p>On the part of defendant, three witnesses, all in its service, testified affirmatively that defendant’s engineer rang the bell on approaching the crossing. The only evidence opposed to this was the testimony of several witnesses that they did not hear the bell, and it was not shown that their attention was directed to the matter at the time. Held, that the evidence did not justify a finding that the bell was not rung.</p>

John J. O’Melia was convicted, under Pen. Code, § 322, of keeping a disorderly house, and appeals. Pen.

Louisa S. Adams, having presented to Anthony N. Brady, administrator of James N. Brady,- deceased, a claim against the estate, and the same having been rejected, a referee was agreed upon, as provided by statute, and a trial had before him. The report of the referee was set aside by the court, the referee discharged, a new trial granted, and a new referee appointed, and the administrator appeals.

Action by Fred C. Laidley, as assignee of Martin T. Lally, in trust for the benefit of his creditors, against J'aniés' Rogers, E. F. Foúquier, and George A. Taylor, to recover $3,7'54 from defendants' for the work-of Martin T. Lally in constructing a section of the St. Lawrence & Adirondack Railroad.

Action by Marvin Lane, as administrator of Sarah A. Lane, deceased, against the town of Hancock, to recover damages for the death of plaintiff’s intestate by the overturning on a public road of a sleigh in which deceased was riding. There was a judgment for plaintiff entered on a verdict. From the judgment, and from an order denying a motion for a new trial, defendant appeals^ For appeal from an order denying defendant’s motion for a change of venue, see 9 Ñ. Y. Supp. '97.

Action by Peter J. Flinn against the New York Central & Hudson River Railroad Company. From a judgment entered on a verdict in favor of plaintiff for $1,641 damages and $378.49 costs, and from an order denying a motion on the minutes to set aside the verdict as excessive and against the law and evidence, defendant appeals.

<p>Appeal from Washington county court.</p> <p>Action by Charles W. Austin, as overseer of the poor of the town of Cambridge, Washington county, N. Y., against Sarah A. Carswell, to recover the penalties fixed by law for violations of the excise law in selling liquors without license. The action was originally brought before John L. Pratt, a justice of the peace, before whom judgment was rendered against defendant for $200 and costs, and defendant appealed therefrom for a new trial to the county court. From a judgment for costs entered in the county court..Against plaintiff on a verdict of no cause of action, plaintiff' appeals.</p> <p>On the trial in the county court ■ defendant was allowed to testify, over plaintiff’s objection, that she had" been previously indicted and fined $100 after she had been refused a license by the excise board.</p>

Action by Daniel J. Gorman against Patrick J. McArdle to recover damages, alleged to have been sustained through failure of defendant to furnish a fire escape as required by statute. From a judgment in favor of plaintiff, defendant appeals.

<p>Slander—Criminal Charge—Evidence op Truth—Reasonable Doubt.</p> <p>Defendant is not required, in an action for slander in charging plaintiff with theft, to prove the truth of the charge beyond a reasonable doubt, but by a preponderance only.</p>

Action commenced in a justice’s court by Cordelia Hartwell against Halleck Young. From the judgment of the justice an appeal was taken to the county court, where the cause was referred. From a judgment for plaintiff on the renort of the referee, defendant appeals.

<p>1. Streets—Dedication—Conveyances According to Map.</p> <p>Though the owner of land in a village has it surveyed, and staked off into lots and streets, and makes a map of the same by which lots are sold from time to time, during a period of 10 years, bounded by the streets as shown by such map, such acts are not so unmistakable in their purpose, and decisive in their character, as to constitute a dedication of the streets indicated on such map to the public use.</p> <p>2. Same—Acceptance.</p> <p>Though the acts of the owner of the land indicate a willingness and intent at the time of the survey to dedicate the streets marked off and shown on. the map to the public, there is no dedication, in the absence of an acceptance of the same by such village.</p> <p>8. Same—Acceptance after Death of Owner.</p> <p>The death of the owner is a revocation of any proffered dedication of such streets, and an acceptance thereafter by the village gives it no right therein.</p>

Action by Emily Wagner against Thomas J. Daly to restrain defendant from the use of a certain cigar label, which it is alleged plaintiff had adopted as a trade-mark. Defendant had judgment, and plaintiff appeals.

Writ of certiorari brought by the people of the state of New York, on the relation of the Hamilton Park Company, for the purpose of reviewing the action of Edward Wemple, late comptroller of the state of New York, in canceling three several tax sales, and the certificates and deeds issued and made in pursuance thereof, under which the relator claims title to a large tract of land in township 36, in Hamilton county.

Action by Walter J. Eaton against Ephraim D. Waldron and George E. Waldron. From a judgment in favor of plaintiff for the sum of $533.68, damages and costs, defendants appeal.

<p>Action by George McChesney against the city of Syracuse, William Crabtree, and others to foreclose a mechanic’s lien. Judgment for defendants.</p>

Action by Caroline Greenberg against the city of Kingston for personal injuries sustained by plaintiff by being precipitated with a horse and wagon into an excavation on Second avenue, a street in the city of Kingston, N. Y., on the 4th day of October, 1890, in the nighttime. There was a verdict in plaintiff’s favor of $100, and, from the judgment rendered thereon, defendant appeals. Edgar B. Newkirk formerly owned lands at North Rondout, now in city of Kingston.

Action by Charles W. Little against A. Bleecker Banks. From a judgment on a verdict in favor of plaintiff on the direction of the court, and from an order denying a motion for a new trial on the minutes of the trial judge, defendant appeals.

Action by Ida 0. Winner against George H. Lathrop to recover damages for malpractice in reducing a fracture of plaintiff’s arm. From a judgment entered on the verdict of a jury in favor of plaintiff, and from an order denying his motion for a new trial, made on the minutes, defendant appeals.

Action by Frank H. Kittle against Israel Huntley to recover for services and materials furnished as an undertaker in the burial of one Roxanna Duel, defendant’s testator. Decedent’s estate, which came into the hands of defendant as executor, amounted to about $800. From a judgment for plaintiff entered on a report of a referee, defendant appeals.

Action by Mary Carey, as administratrix, and Augustus Stumpfel, as administrator, of the goods, chattels, and credits of Frank Carey, deceased, against James J. Browne, to recover damages for the value of an oil painting entitled the “Birth of Venus,” alleged to belong to Frank Carey at the time of his death, April 2, 1890, and wrongfully converted by defendant about January 20, 1892.

<p>1. Substitution of Parties—Waiver of Objections.</p> <p>Where the court has, on petition, allowed one to be made plaintiff as to her individual interest, and as administratrix of the former plaintiff, defendant,, not having appealed or demanded a supplementary complaint, cannot on the trial object that plaintiff’s individual interest could not be properly introduced into the case, or that there was no proof of her interest, or that she-was administratrix.</p> <p>2. Appeal—Mandate and Proceedings Below.</p> <p>The point having been considered in the opinion of the supreme court on a former trial, that there was a variance between the evidence and complaint, and that defendant had had no notice to prepare for trial on the issue made-by the evidence, and the judgment for defendant having been reversed by the court of appeals, it will be deemed to have held the point not valid.</p>

Action by Fanny M. Peaslee against Edward H. Peaslee individually and Hiram Hitchcock as executor of the last will and testament of Edmund B. Peaslee, deceased, and against both of said defendants as executors of Martha K. Peaslee, deceased. From an order striking out a part of the answer, defendants appeal.

Ejectment by John Hennessey against Bertha Volkening and others. After verdict in plaintiff’s favor, defendants moved for a new-trial on the minutes.

Action by Elizabeth H. Culliford against Montgomery Gadd. From a judgment for plaintiff, defendant appealed to the general term, where the judgment was affirmed. 17 N. Y. Supp. 457; 18 FT. Y. Supp. 208. He thereupon appealed to the court of appeals, and gave an undertaking with sureties.

At chambers. Action by Anna Beyer, an infant, by Elizabeth Beyer, her guardian ad litem, against Thomas B. Clark, for personal injuries. Plaintiff moved for leave to sue in forma pauperis. Motion denied.

Exceptions from trial term. Trover by Augustus H. Vanderpoel, as substituted assignee, against John J. Gorman, sheriff. There was judgment dismissing the complaint, and plaintiff moved for a new trial on exceptions to be heard at the general term. Exceptions overruled. Judgment for defendant.

Action by Eugene Staubsandt and Bobert F. Staubsandt against William F. Lennon and David Conover to foreclose a mechanic’s lien. From a judgment of foreclosure entered on the report of a referee,, defendant William F. Lennon appeals.

Action by Frederick Siefke against Henry Siefke. From a judgment entered on a verdict in favor of defendant, and from an order denying a new trial, plaintiff appeals.

Action by Adolph G-lucltman and another against Herman Kleiman to recover the possession of personal property. There was judgment for defendant, and plaintiffs appeal.

Action by Rachel Ranger against John G. Bacon and Claude V. Fuller on express covenants in a sealed lease to pay rent. There was judgment for plaintiff, and' defendants appeal.

<p>Statute of Frauds—Contract'not to be Performed within a Year.</p> <p>A verbal lease of real estate for a year to commence in future is not void, under the statute of frauds. Young v. Dake, 5 N. Y. 403, and Taggard v. Roosevelt, 2 E. D. Smith, 100, followed.</p>

Action by Louise Carlson against Maria Louisa Winterson on a promissory note. A judgment entered on a verdict in favor of plaintiff was affirmed by the general term of the city court, (20 N. Y. Supp. 897,) and defendant appeals.

Action by John H. Sweetser and others against William L. Cameron for damages for breach of contract. A judgment entered on a verdict in favor of plaintiff, and an order denying a motion for a new trial, were affirmed by the general term of the city court, and defendant appeals.

Action by the Dry Dock, East Broadway & Battery Railroad Company against the North & East River Railway Company to recover money due on a lease. A judgment was entered on a verdict directed by the court in favor of plaintiff, and defendant appeals.

Action by Louis M. Howland against De Witt C. Bates and Wells H. Bates on a note executed by defendants to their own order, and indorsed in blank. From a judgment of the general term of the city court (20 27. Y. Supp. 373) affirming judgment on a verdict directed by the court, and an order denying a new trial, defendants appeal.

<p>1. Security on Appeal—Court op Common Pleas—Amendment op Statute.</p> <p>Code Civil Proc. § 1341, (Laws 1876, c. 431,) provides that security must be given on an appeal to the supreme court Section 3192 provides that section 1341 shall apply to appeals from the New York city court to the court of common ipleas. Laws 1890, c.' 450, § 7, amends section 1341 so as to dispense, with security on appeal to the supreme court. Held, that such amendment did not dispense with the requirement of security on appeals from the New York city court to the common pleas, since section 3192 adopted section 1341 as it was originally enacted.</p> <p>2. Appealable Orders.</p> <p>Where an appellant fails to give the security required by section 1341, the appeal is ineffectual, and an order dismissing it is unnecessary, and therefore such order is not appealable.</p>

Action for personal injuries by Antonio G-uliano against John H. Whitenack. From an order allowing defendant to file a sumfiemental answer, plaintiff appeals.

Action by Caroline E. Wheeler against the New York Central & Hudson River Railroad Company for the destruction of plaintiff’s buildings by fire alleged to have been set by one of defendant’s locomotives. From a judgment dismissing the complaint, plaintiff apappeals.

<p>Vicious Animals—Liability of Owner.</p> <p>In an action for personal injuries inflicted by a vicious bull, the evidence showed that plaintiff’s employer had taken defendant’s farm to work on shares. The contract provided that defendant should leave some cows and a bull on the farm. The bull was not leased to plaintiff’s employer, but was in his possession as bailee. The bull became dangerous, and defendant was notified of the fact, but he refused to have the animal shut up, and declined to take care of it. Held, that defendant was liable as owner of the bull. • Atwater v. Lowe, 39 Hun, 150, and Van Slyck v. Snell, 6 Lans. 302, distinguished.</p>

Action by Sallie Straus against David Straus for separation from bed and board of defendant. There was judgment for plaintiff for separation and for counsel fees, and defendant appeals.

Action by Lemon Thompson against John O. Poor and Charles C. Poor for breach of a written contract, wherein defendants agreed to peel a specified number of cords of hemlock bark from trees standing on plaintiff’s land. From a judgment in plaintiff’s favor, defendants appeal.

Ejectment by John Peter Eisenlord against David H. Clum, John L. Eisenlord and others. The court directed a verdict for defendants, and from a judgment entered thereon plaintiff appeals.

Charles F. Peck and Elbert Rogers were indicted for the willful destruction and removal of public documents. From a judgment sustaining a demurrer to the indictment, the people appeal.

Action by William E. Marks against the Monroe County Permanent Savings & Loan Association to compel defendant associatian, in which plaintiff is a stockholder, to increase a dividend. •Judgment for defendant.

Action by Simon Doctor against William A. Darling to recover damages for an alleged breach of covenant contained in a deed of certain real estate made by the defendant to plaintiff’s assignor, one Rebecca Childs. From a judgment entered on a verdict directed in favor of plaintiff, except as to the amount of damages, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Action by George Washington against the Staten Island Rapid Transit Railroad Company to recover damages to plaintiff’s boat while discharging a cargo at defendant’s dock. Plaintiff had judgment, from which, and an order denying a new trial, defendant appeals.

Final accounting of the State Trust Company, as trustee of the estate of Augustus M. Halsted and Avery D. Putnam. From so much of an order as refused costs on the accounting, and interest on costs awarded to the attorneys in an action brought to remove an insolvent assignee, S. F. Cowdrey, F. H. Cowdrey, H. Cowdrey, and L. L. Van Allen appeal.

Application of the Manhattan Railway Company relative to acquiring title to certain real property of John L. Stroub, in the city and county of New York. From an order entered on February 27, 1893, appointing commissioners of appraisal to ascertain the compensation to be made to said Stroub, he appeals.

Application of the board of street opening and improvement of the city of New York, ior and on behalf of the mayor, aldermen, and commonalty of the city of New York, relative to East 167th street,- although not yet named by proper authority, from the westerly side of Prospect avenue to Westchester avenue, in the Twenty-Third ward of the city of New York.

Action by Etoile de Loraz against Fanny Davenport McDoweE to recover damages for breach of a contract of employment. From a judgment in favor of plaintiff, entered on a verdict directed by the court, and from an order denying her motion for a new trial, defendant appeals.

Action by Francis Higgins, as receiver of the North River Bank, against Neil O’Donnell and Hugh O’Donnell, impleaded with another, on negotiable notes. There was judgment for plaintiff on a verdict directed by the court, and defendants appeal.

<p>Appeal from circuit court, Hew York county.</p> <p>Action by Evelyn M. Trost against Charles J. Hinman on a nonnegotiable note. There was judgment dismissing the complaint, and plaintiff appeals.</p>

Action by William B. Dayton against William A. Parke and Edmund W. McClave to recover freight and demurrage. The court directed judgment for plaintiff for the full amount of freight claimed, and for six cents demurrage. From that part of the judgment awarding six cents for demurrage, plaintiff appeals. Reversed.

Action by John J. Russell, as administrator with the will annexed of Mary A. Russell, deceased, against Laura S. McCall, as executrix of the last will and testament of James McCall, deceased, and Schamu M. Moschowitz, Herman Moschowitz, and Schamu M. Moschowitz, as receiver of the property and effects of Moschowitz Bros. Plaintiff obtained judgment. Defendant McCall appeals.

Action by Mary Reid against the mayor, aldermen, and commonalty of the city of New York and the city of Brooklyn to recover damages for personal injuries sustained in alighting from a car on the New York and Brooklyn bridge. From a judgment in favor of plaintiff entered on a verdict for $3,000, and an order denying a new trial on the minutes, defendants appeal.

Action by William G. Bates, Mary Bates, and George B. Bates, against the United Life Insurance Association upon a policy of insurance upon the life of Levi M. Bates. From an order directing judgment on the pleadings, and from the judgment entered pursuant to such order, defendant appeals.

Action, by William S. O’Brien, executor, and Frelove E. O’Brien, executrix, of the last will and testament of Peter T. O’Brien, late of the city of New York, deceased, against the Citizens’ Savings Bank of the City of New York, and Peter B. Weiler, an executor of the last will and testament of Peter T. O’Brien, late of the city of New York, deceased, to recover money deposited by said decedent in said bank, Before the trial an order was entered by which Peter R. Weiler, as…

Petition for mandamus, brought by the people, on the relation of George L. Davenport, against Frank Rice, as secretary of state, to compel the defendant to file in his office, in the city of Albany, the certificate of incorporation of the Universal Thrift Company of New York, executed October 22, 1892. The writ was refused, and the relator appeals.

Exceptions from circuit court, New York county. Action originally brought by Egbert H. Grandin, as receiver in supplementary proceedings of the property of William 0.

<p>1. Manslaughter—Evidence.</p> <p>In a trial for murder, the evidence for defendant showed that he and deceased occupied rooms, in the same building; that deceased came to defendant’s room, and struck him; that defendant pursued deceased into the latter’s room, where deceased turned, and threatened to strike defendant with a spittoon, whereupon defendant, without warning deceased, or attempting to avoid him, drew a pistol and shot him dead. Held, that the evidence justified a verdict of guilty of manslaughter in the first degree, under Pen. Code, § 189, which defines “manslaughter in the first degree” as homicide committed “in the heat of passion, but in a cruel or an unusual maimer, or by means of a dangerous weapon.”</p> <p>2. Same—Cross-Examination of Defendant.</p> <p>Where, in a trial for murder, defendant attempts to show that the homicide occurred in a quarrel caused by deceased’s insulting a woman whom defendant claimed to beohis wife, though no marriage ceremony had then been performed between them, it is proper, on cross-examination of defendant, to question him as to his relations with the woman before she became his wife.</p> <p>3. Same—Photographs as Evidence.</p> <p>Where defendant, on being shown a photograph of the deceased, aud being asked if it was a just picture of the man he met at the place of the homicide, answers, “That somewhat resembles him,” an objection to the introduction of the photograph in evidence on the ground that it is incompetent, immaterial, and irrelevant is too general to be available.</p> <p>4. Same—Instructions—Intent.</p> <p>It is proper to instruct the jury that “a man is presumed to intend or design what his act is liable to perform. If a person fires a pistol into the body of another, from that fact alone the jury may find the intent. You must find the intent,—the design to kill,—but it is not necessary that a person killing another should announce beforehand he does intend to kill. In order for you to find that intent, you must be satisfied from all the surrounding circumstances. The act itself, the way it has been committed, the weapon that is used, furnish the design or intent to kill, to find murder in the second degree.”</p> <p>5. Criminal Law—Evidence—Cross-Examination.</p> <p>It is competent to ask a witness who testifies for defendant, and who was an eyewitness of the homicide, as to her intimacy with defendant’s wife, and as to her habit of using opium, since those matters tend to affect her credibility.</p> <p>6. Same—Collateral Fact—Harmless Error.</p> <p>The statements of such witness, on cross-examination, as to her use of opium, being in regard to a collateral fact, cannot be contradicted by other witnesses; but, where defendant’s guilt is clearly proved, the admission of such contradictory evidence is not prejudicial error, under Grim. Code § 542, which requires judgment to be given on appeal “without regard to technical errors, or to exceptions which do not affect the substantial rights of the parties.”</p>

Action by the Mercantile Hational Bank of the City of Hew York against the Corn Exchange Bank. Defendant appeals from an order extending indefinitely the time for serving the complaint.

Action by Charles H. Richardson against Emil Hartmann to recover damages for a wrongful discharge from plaintiff’s employment. From a judgment entered on a verdict in favor of plaintiff, defendant appeals.

Action by Martha E. Clark against Frederick K. Clark to set aside a certain conveyance from plaintiff to defendant, and to enjoin defendant from asserting rights under such conveyance. Judgment for plaintiff. From orders denying motions to vacate the judgment, to resettle prior orders, and to change the date in the caption of the decree, defendant appeals.

Action by John H. Ming and Charles K. Wells against Austin Cor-bin to recover the balance due on certain bonds sold by plaintiffs to defendant. Plaintiffs obtained judgment. Defendant appeals. This action was brought to recover the balance due on the purchase price ■of .certain bonds of the par value of $5,300, issued by the county of Lewis ■& Clarke, in the territory of Montana, and sold in 1872 by the plaintiffs to the ■defendant at about 82 per cent.

<p>Appeal from special term, New York county.</p> <p>Action by Henry Eugene Alexander against Joseph A. Donohoe, Eugene Kelly, Mark Brumagim, John J. McEwen, John A. Stewart, John M. Brumagim, the Mariposa Land & Mining Company of California, the Mariposa Land & Mining Company of New York, the Mariposa Company, and the Farmers’ Loan & Trust Company, to set aside a contract and fraudulent conveyance. From a judgment of dismissal, plaintiff appeals.</p>

Exceptions from circuit court, New York county. Action by Edwin C. Donnell against the mayor, aldermen, and commonalty of the city of New York to recover a sum alleged to be due for services. The complaint was dismissed, and plaintiff’s motion for a new trial on exceptions was ordered to be heard at the general term in the first instance.

Application by Thomas C. O’Sullivan for a peremptory writ of mandamus to compel the New York Law School and George Chase, as dean thereof, to grant relator a diploma. From an order of the special term granting the writ as prayed, defendants appealed.

Action by Andrew Morris against the Eighth Avenue Railroad; Company to recover damages for personal injuries received by being run over by defendant’s car. From a judgment for plaintiff, entered on a verdict, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Indictment of James Connor-for burglary, larceny, and receiving stolen property. Defendant was convicted of receiving stolen' property. and he appeals.

<p>Pleading and Proof—Former Action Pending.</p> <p>A plea of another action pending is not sustained by proof of the existence of another action begun on the same day as the one in which the plea is filed, since the law does not regard fractions of a day</p>

Action by the McElwee Manufacturing Company against Benjamin A. Trowbridge on two promissory notes indorsed to plaintiff by Don A. Gaylord & Co. From a judgment entered on a verdict in favor of plaintiff, defendant appeals. Defendant’s answer set up two defenses. The first consisted of denials of plaintiff’s allegations, the second was as follows: “And for second, separate, and distinct defense herein defendant shows:.

Action by David M. Koehler, surviving partner of D. M. Koehler & Son, against Thomas Olsen, to apply equitable assets of defendant in satisfaction of plaintiff’s judgment against him. A motion for the continuance of an injunction and the appointment of a receiver pendente lite was denied, and plaintiff appeals.

Action by William S. Williams against Robert Lindblom, impleaded with Nelson Van Kirk and others, for an accounting between plaintiff and defendants as partners. Plaintiff had judgment against defendants Lindblom and Miller, and Lindblom appeals.

Action by George Lewis Prentiss, as general guardian,, etc., against John S. Weatherly and Ellen Bowden, executors, etc., to recover on an administrator’s bond. From a judgment in favor of plaintiff, entered on a verdict directed by the court, and from an order denying a motion for a new trial made on the minutes, defend- , ants appeal.

Action by Emily A Emerson against Jesse M. Emerson for separation from bed and board on the ground of desertion. From that part of the judgment separating the parties which awards plaintiff $150 per month alimony, she appeals.

Action by Louis Lindheim and others against the Manhattan Railway Company, the Metropolitan Elevated Railway Company, and John L. Lindheim and others, trustees, etc., for damages to plaintiffs’ land from the operation of the defendants’ railroad in the street in front thereof. From a judgment in plaintiffs’ favor, and from an order denying motion for new trial, the defendant railway companies appeal.

Indictment of Jacob Hatter for keeping a disorderly house, to which defendant demurred. Demurrer overruled.

<p>Appeal from, special term.</p> <p>Trover by Spiros Condouris against the Imperial Turkish Tobacco & Cigarette Company. From an order vacating a warrant of attachment, plaintiff appeals.</p>

Action by Charles Kunurier against the Christopher & East Tenth Street Railroad Company. Plaintiff made a motion for resettlement of an order dated February 6, 1893, reversing a judgment for plaintiff entered on a verdict, and an order denying defendant’s motion for a new trial on the minutes. Granted in part, and denied in part.

Action by Samuel Corn and another against Joseph Rosenthal for rent. There was judgment for defendant, and plaintiffs appeal

Action by James Cunningham against Elias T. Hatch, Annie L. Hatch, and others to foreclose a mechanic’s lien. A motion to pun-, ish defendant Annie L. Hatch for contempt for refusing to return certain moneys to the custody of the county clerk was denied, and plaintiff appeals. On the 1st day of April, 1889, a mechanic’s lien was filed by the plaintiff against the property of the defendants.

Action by George W. Van Allen against the New York Elevated Railroad Company and the Manhattan Railway Company to recover damages caused by the construction and operation of defendants’' elevated railroad in front of the plaintiff’s premises, No. 242 East Thirty-Fourth street, and for an injunction to restrain the further maintenance and operation of the said road.

Action by the Yew York Real-Estate & Building Improvement Company against Thornton Y. Motley on a lease. There was a verdict for defendant. Judgment thereon was affirmed at the general term of the city court, and plaintiff appeals. Action on a lease under seal for rent of rooms in a building, accruing after a fire which did not destroy the premises, but rendered them wholly untenantable during the period of repair.

Petition by John A. Stafford, general guardian of Edward Mahon, an infant* for leave to lease certain real estate of the infant. Prom an order confirming the report of a referee Edward J. Gonoude, an uncle of the infant, appeals.

<p>Appeal- from jury term.</p> <p>Action by James Butterworth against James Clarkson and James Allen for personal injuries. From an order of the trial court dismissing the complaint, plaintiff appeals.</p>

Action by Henry P. Finlay and another against Placido de Castroverde for the conversion of personal property received by defendant as plaintiffs’ agent. Plaintiffs obtained an order for defendant’s arrest, and from an order denying defendant’s motion to vacate it he appeals.

Action originally brought by Maria L. Collins against James A. Jewell. Plaintiff having died, one John Collins applied for leave to continue the action in his name, as executor. Prom an order that the .motion be granted on condition that within 10 days the applicant pay into court $250, to be applied to the payment of costs, or, at his election, file an undertaking to pay on demand the defendant his costs, not exceeding $250, the applicant appeals.

Action by Hector M. Hitcbings against the St. Louis, New Orleans & Ocean Canal & Transportation Company, impleaded with John Satterlee, James A. Simmons, and Peter J. Claassen, on a promissory note. From a judgment entered on the verdict of a jury in favor of plaintiff, and from an order denying its motion for a new trial, made on the minutes, the transportation company appeals.

Action by Harriet A. Francisco to restrain Charles A. Smith from carrying on the bakery business in the village of Little Falls. From a judgment for defendant, entered on an order dismissing the complaint, plaintiff appeals.

Action by Hermann Bolte against August Fichtner, executor, etc., of Herman Schwannecke, deceased, to recover for professional services rendered deceased as an attorney, and for commissions in procuring a purchaser for a boarding-house business kept by deceased. From a judgment entered on a referee’s report, and from orders denying plaintiff’s motions for a new trial and to set aside the referee’s report, plaintiff appeals.

Exceptions from circuit court, New York county. Action by Charles Banks against the New York Club to recover for moneys loaned to defendant. A motion to dismiss the complaint was sustained, and plaintiff’s motion for a new trial on exceptions was directed to be heard in the first instance at the general term.

Action by Lena Finelite against Alexander Finelite to substitute plaintiff as grantee in a certain deed, in place of defendant. There was a judgment for defendant. From an order denying a motion for a new trial on the ground of newly-discovered evidence, plaintiff appeals.

Action by Johanna Moskovitz and Joseph Moskovitz, as administrators, etc., against Charles Lighte and William Lighte, for the death of plaintiffs’ intestate, a four year old child. From a judgment entered on a verdict in plaintiffs’ favor, and from an order denying a motion for a new trial, defendants appeal.

Action Tby Mary J. Odell against the Metropolitan Elevated Railroad Company and others for damages, and for an injunction. From a judgment in favor of plaintiff, defendants appeal.

<p>Appeal from, trial term.</p> <p>Action by Henry W. Homiston against the Long Island Railroad Company for an assault committed on plaintiff while a passenger on defendant’s train, and for his forcible ejection therefrom, by defendant’s servants. From a judgment entered on a verdict in plaintiff’s favor, and from an order denying defendant’s motion for a new trial, defendant appeals.</p>

<p>Appeal from trial term.</p> <p>Action by Jette Grunberg, as administratrix, etc., against Hugh. J. Grant, as sheriff, for excessive levy and abuse of process of attachment. From a judgment on a verdict in favor of plaintiff, and an order denying a new trial, defendant appeals.</p>

Action by Susan Geoghegan, as administratrix of John M. Geoghegan, deceased, against the Atlas Steamship Company, for causing the death of deceased. From a judgment entered on a verdict in favor of plaintiff, and an order denying a new trial, defendant appeals. For appeal from order denying a motion for a commission to take-depositions, see 10 1ST. Y. Supp. 121.

Action by Eobert V. Johnson against John S. Grotty and another. From a judgment affirming a judgment entered for plaintiff on report of a referee, defendants appeal.

Action by Mary Monell against Margaret K. Douglass to recover damages for an alleged breach of covenant against incumbrances contained in a deed. From a judgment of the general term of the city court affirming a judgment entered on the verdict of a jury in favor of plaintiff, defendant appeals.

Action by the Central Gas & Electric Fixture Company against August Kohn on a written guaranty. From a judgment of the general term of the city court, (20 ¡N. Y. Supp. 884,) affirming a judgment entered on a verdict for plaintiff by direction of the court, and from an order of affirmance of said general term on which its judgment was entered, defendant appeals. Appeal from order of affirmance dismissed.

Action by John D. Brassington against Frederick Bohrs (impleaded with Charles Bylin) on a promissory note executed by Bohrs to Bylin, and by the latter transferred to plaintiff. From a judgment of the general term, (20 1ST. Y. Supp. 659, 990,) affirming a judgment sustaining a demurrer to part of the answer, denying a motion to vacate said judgment, and affirming an order striking out defendant’s answer as sham, the latter appeals. Affirmed.

Action by ¡Nicholas Peters, John Peters, and.Peter Peters against Stephen Peters to recover certain money received by defendant from the commissioners of charities, who found the same on the person of his mother when committed to the City Asylum for the Insane on Blackwell’s island. From a judgment entered on the verdict of a jury in favor of plaintiffs, and from an order denying his motion for a new trial, defendant appeals.

<p>Appeal from trial term.</p> <p>Action by John Turton against the Hew York Recorder Company. From a judgment in favor of the plaintiff, entered on the verdict of a jury on June 17, 1892, for $5,000 damages, defendant appeals.</p>

<p>1. Costs—Extra Allowance—Basis.</p> <p>An action to enjoin an elevated railroad company from operating its road in front of plaintiff’s premises, and for such sum as may be found due plaintiff on an accounting for the depreciation of his property, was decided in defendant’s favor on the ground that plaintiff’s property had not depreciated in value. Held, that an allegation in the complaint that plaintiff’s premises had depreciated $75,000, made simply as the basis for injunctive relief, but not claimed as damages, cannot serve as the basis on which to calculate an extra allowance to the costs of 5 per cent, on the amount claimed in the complaint,</p> <p>3. Same.</p> <p>A judgment for $8,000 in plaintiff’s favor as past damages caused by the construction and operation of the road cannot serve as the basis of an extra allowance of 5 per cent, where such judgment was subsequently reversed on the ground that plaintiff had suffered merely nominal damages.</p>

Action by William M. Sayer, Jr., and others, against William Kirchhof and others. There was a judgment in defendants’ favor at the trial term of the city court, and plaintiffs appealed to the general term. From an order of the general term of the city court dismissing the appeal for plaintiffs’ failure to prosecute it with sufficient diligence, plaintiffs appeal.

<p>Bail—Judgment on Vacated Recognizance—Forfeiture.</p> <p>An application to vacate a judgment on a forfeited recognizance cannot be granted unless it is shown that the expense of the recapture of the principal and the costs of the proceedings to enforce the forfeiture have been paid, as required by Laws 1882, c. 410, § 1482. People v. Lasher, (Com. PI. N. Y.) 11 N. Y. Supp. 711, followed.</p>

Action by Conrad Kniering and another against William F. Lennon on a plumber’s bill. Plaintiffs’ demurrer to one of several counterclaims was sustained. The clerk taxed plaintiffs’ costs at $20, and plaintiffs appealed to the special term. From an order confirming the clerk’s taxation, plaintiffs appeal.

Action by William J. Logan and another against the Berkshire Apartment Association to recover for a tank made and delivered by plaintiffs to defendant under a special contract. From a judgment of the general term of the city court (20 K. Y. Supp. 309) affirming a judgment of the trial term entered on a verdict in plaintiffs’ favor, defendant appeals.

Action by Thomas Kirk and another, administrators of Margaret Kirk, deceased, against Bridget McCusker, to recover certain assets alleged to belong to the estate of deceased. There was judgment for defendant, and plaintiffs appeal.

<p>Appeal from special term.</p> <p>Action by Cornelia T. Terry against Katherine T. Moore, impleaded with another, to compel the execution of a renewal lease of premises No. 453 West Twenty-Third street, in the city of New York, in accordance with the decision of arbitrators chosen to ascertain and determine the rent for the renewal term. There was an interlocutory judgment overruling a demurrer to the complaint, from which, and an order directing the entry of such judgment, the defendant Katherine T. Moore appeals.</p> <p>The leasehold estate was created February 1, 1846, by lease for 20 years and 3 months from this date, executed by Clement C. Moore to- William Terry, with provision for three renewals thereof, and, at the option of the lessor, for a fourth;' each renewal term to be 21 years. The first renewal was by lease dated October 5, 1866, expiring May 1, 1887, when the plaintiff had succeeded to the rights of the original lessee, and the defendant Katherine to the rights of the lessor. At the expiration of that term, arbitrators were appointed to fix the rent for the second renewal term, pursuant to the following covenant in the lease then expiring: “And it is hereby mutually agreed by and between the parties to these presents that, at the end and expiration of the said term hereby granted, the said party of the first part, his successors or assigns, shall and will, at such the end and expiration of the said term, grant unto the said party of the second part, his executors, administrators, or assigns, at his or their expense, a new lease of the said lot of ground for a further term of twenty-one years thence next ensuing, at such reasonable annual rent, to be paid half-yearly, as shall then have been agreed upon by "the parties, or otherwise settled and ascertained, as is hereinafter provided, but not less than the rent reserved by these presents.” “And, in order to ascertain the amount of rent which ought to be reserved and made payable on any such new lease of the said hereby demised premises as is above mentioned, the amount of such rent shall be ascertained and determined as follows, that is to say: The said party of the first part, his successors or assigns, shall nominate one fit and impartial person, and the said party of the second part, his executors, administrators, or assigns, shall nominate one other fit and impartial person, which persons so nominated shall themselves, respectively, be owners in fee simple of one or more lots in the immediate neighborhood in which the said hereby demised premises are situate, to determine what would be a reasonable yearly rent for the • said lot of land during the then next ensuing term of twenty-one years, which nominations shall be made and signified by each party to the other at least one month before the expiration of the then current term; and, in default of such nomination being made by either party for the space of fifteen days after the time above limited for the malting of the same, the person" who shall have been so nominated by the other party shall appoint and associate with himself one other fit and impartial person qualified as above mentioned, for the purposes aforesaid, and, if the two persons to be so nominated or appointed shall differ in judgment as to either of the said subjects, they shall appoint a fit and impartial person qualified in like manner to be associated with them for such purposes, if they can agree on such person; or, if they cannot agree, then each of them shall nominate two fit and impartial persons qualified in like manner, and from the names of the four persons so nominated that of one shall be drawn by ballot who shall be associated for the purposes aforesaid with the two persons so nominated or appointed; and the decision of any two of the three persons so to be chosen, whether as to the value of the said house or as to the amount of such rent, shall in all cases be final and conclusive. And in every case of renewal the rent to be reserved during the further term to be thereby granted, if not settled by mutual agreement, shall be ascertained upon the principle and in the manner following, that is to say: The said lot of ground shall be considered as vacant and "unimproved, and, as such, its then full and fair value on a sale thereof in fee simple by private contract shall be estimated by the appraisers, and four per cent, on such estimated value of the said lot shall be the annual rent to be reserved in the new lease during the further term to.be thereby granted, except for the second and third terms, the annual rent for which, if not agreed upon by the parties, shall be five per cent, on the estimated value of the said lot, to be reserved in the new leases for the said second and third terms. And it is further agreed that the persons to be so chosen to ascertain the value of such, and to determine on the said rent for the next ensuing term, shall in all cases be sworn to act therein faithfully and impartially; and their award or decision shall be made in writing and by duplicate, one part thereof to be delivered to the party of the first part, his successors or assigns, and the other to the party of the second part, his executors, administrators, or assigns.” A majority of the arbitrators, after due hearing upon all the evidence and arguments of counsel of the parties, decided and awarded $20.8 to be a fair and reasonable ground rent for the premises. The complaint avers that the amount has never been excepted to, and that plaintiff demanded the renewal lease, and that, “in pretended compliance therewith, said counsel for the defendants did furnish to counsel for plaintiff a proposed form of renewal lease, which omitted important covenants which were contained in Exhibits A and B, which covenants plaintiff, by her counsel, claimed should be left in the renewal lease, and also the defendants demanded from the plaintiff the sum of twelve dollars for preparing the same, although it was the duty of the defendants to prepare the same at their cost; that thereupon said proposed lease was, returned to the counsel for defendants, and such defects pointed out to him; that since last communication plaintiff has received a reply thereto, in which defendants decline to give any lease whatever, except at a different and much larger rent than as fixed by the arbitrators.” The defendant Katherine T. Moore demurs to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action.</p>

Action by Adeline' H. Terry against William T. Moore to have a renewal lease taken by plaintiff as lessee set aside, etc. There was an interlocutory judgment overruling a demurrer to the complaint, from which, and an order directing the entry of such judgment, defendant appeals. The complaint shows that the plaintiff was entitled in the year 1887 to a renewal for 21 years of the lease of the lot No. 255 West Twenty-Third street, in the city of New York.

<p>Appeal from judgment on report of referee.</p> <p>Action by Valentine E. H. Cook against the Hew York Elevated Railroad Company and others to restrain the operation of a branch of the elevated railroad running in front of plaintiff’s premises Ho. 339 East Thirty-Fourth street, between Second and Third avenues, in the city of Hew York, and for damages. The judgment entered on the report of a referee granted an injunction, to become operative in 90 days unless defendants paid the plaintiffs $1,500, at which sum the damage to the fee value of the premises was fixed. Damages for loss of rentals from September. 28, 1888, to February, 1892, amounting to $676, together with interest, were also allowed. Defendants appeal.</p>

Action Tby Herman Kahn against the Hew York Elevated Railroad Company and another. Prom a judgment in favor of plaintiff, defendants appeal. The action was to restrain the operation and maintenance of a branch of the elevated railroad running in front of plaintiff’s premises, Ho. 306 East Thirty-Fourth street, between First and Second avenues, in the city of Hew York, and for damages.

Action by Rosanna Mooney against the New York Elevated Railroad Company and another. From a judgment in favor of plaintiff, defendants appeal. Reversed. The action was to restrain the operation and maintenance of a branch of the elevated railroad running in front of plaintiff’s premises, No. 310 East Thirty-Fourth street, between First and Second avenues, in the city of New York, and for damages.

Case submitted on agreed statement. Submission, without action, of a controversy between John E. Hiles and William R. Fisher and Maria J. Fisher. Judgment for plaintiff. The defendants are, and for the past 30 years and up-wards have been, husband and wife.

Exceptions from circuit court, Erie county. Action by Joseph Hutchinson against the Supreme Tent of the Knights of the Maccabees of the World. Defendant moves for a new trial on exceptions taken at circuit, and ordered to be heard in the first instance at the general term.

<p>Appeal from special term, Erie county.</p> <p>Action by Daniel McIntosh against Michael Battel, Catherine Battel, and Maria McElroy. From a judgment dismissing the complaint, plaintiff appeals.</p>

Action by Ludwig Herbst against the Vacuum Oil Company. Judgment for plaintiff, from which, and an order denying a new trial, defendant appeals.

Exceptions from circuit court, Allegany county. Action by Patrick J. Sutley, as assistant to the dairy commissioner, in the name of the people, against Edward Hodnett, to recover a penalty. Plaintiff moves for a new trial on exceptions ordered to be heard in the general term in the first instance, the entry of the judgment being in the mean time suspended.

Action by Elizabeth Ziegler against Henry Ziegler to recover money. An attachment was granted on the ground that defendant had disposed of or secreted property with intent to defraud creditors. Defendant moved to vacate the attachment, which was denied. He therefore appeals.

Action by Bichard R. Gibson against Henrietta J. Gibson, impleaded with others. From an order striking out, as scandalous, irrelevant, and redundant, certain allegations in the complaint, plaintiff appeals.

<p>1. Specific Performance—Conveyance to Third Person.</p> <p>A decree for specific performance of a contract to convey land will not be disturbed on appeal on the ground that performance was impossible because defendant had conveyed thq| land to a third person, where that fact is not alleged in the pleadings, and the only evidence of it given on the trial was a statement, on cross-examinaiton, by plaintiff’s witness that he put plaintiff’s contract on record after he “had learned that H. [defendant] had sold Ms property to another person.”</p> <p>2. Same—Performance by Plaintiff.</p> <p>Where plaintiff agrees to pay defendant a specified amount for property, a certain sum to bo paid in cash, and the balance by assuming a mortgage represented by defendant to equal the balance of the purchase money, and it afterwards appears that a greater sum is due on the mortgage, a tender by plaintiff of the difference between the amount of the purchase money and the amount actually due on the mortgage is a sufficient compliance with the contract by plaintiff' to entitle him to specific performance.</p> <p>3. Same—Tender of Deed.</p> <p>Where defendant in an action for specific performance of a contract to convey land to plaintiff agreed, at Ms own cost, to execute and deliver the deed, the fact that plaintiff tendered a deed for execution wMch was not in accordance with the contract does not excuse performance by defendant, as it was his duty to prepare the deed.</p>

Two actions by Augustus F. Purdy against Hezekiah C. Bennett for the possession of land. Judgment was rendered in plaintiff’s favor in both actions by agreement of parties. William M. Smith afterwards presented his petition praying to have their judgments opened, and that he be permitted to interpose a defense in each action, and be made a party defendant therein. From an order made in each case granting the prayers of the petitions, plaintiff appeals.

Application by the Cross-Town Street-Railway Company of Buffalo, H. Y., for the appointment of three commissioners to determine whether its railroad should be built in certain portions of Prospect avenue in the city of Buffalo.

- Action by Henry A. Bernhard against the Rochester Railway Company. Plaintiff had judgment on a verdict, from which, and an order denying a motion for a new trial, made on the minutes, defendant appeals.

- Action by Ella J. Van Koughnet against Louis Dennie for money loaned and services performed by plaintiff, originally brought in justice’s court. Judgment was rendered in plaintiff’s favor, and defendant appealed to the county court on questions of law. From á judgment affirming the justice’s judgment, defendant agáin appeals.

<p>Conspiracy—Labor Organizations—Preventing Employment.</p> <p>An agreement between a labor organization and an association of manufacturers that no manufacturer belonging to the association shall employ any person who is not a member of the labor organization, or retain for a longer time than four weeks any employe who refuses to join the labor organization, is a conspiracy.</p>

Action by Henry G-. Newh.aU against - Christopher A. Wyatt for the dissolution of a partnership existing between them under the firm name of O. A. Wyatt & Co., and for an accounting, a receiver of the property, rights, and good will, and, after payment of the debts, for a distribution. James E. Clark filed a claim amounting to $33,824.49 against the firm.

Action by Lizzie Wilson against Maria Heath, as executrix of the last will and testament of Orin Heath, deceased, on a written contract alleged to have been executed by deceased. There was a verdict for defendant, and, from an order granting a new trial on the ground of newly-discovered evidence, defendant appeals. The plaintiff is the daughter of one Robert Hannan.

Action by Clare A. Benedict against Milton T. Richardson. From an order suppressing the deposition of one Emma C. Benedict, the wife of plaintiff, purporting to have been taken in Chicago, 111., on commission, defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by Reuben Doty and another against Alexander Smith on an open account. From a judgment entered in defendant’s favor, plaintiffs appeal.</p>

Action by Theodore E. Bramble against Elston Hunt and others for professional services as an attorney and counselor at law. From a judgment in plaintiff’s favor, defendants appeal.

Action by Lizzie Briel against the city of Buffalo for personal injuries caused by an obstruction in one of defendant’s streets. From a judgment entered on a verdict in plaintiff’s favor and from an order denying defendant’s motion for a new trial, defendant appeals. The motion for a new trial was made on affidavits and on the minutes of the court. No notice of motion for a new trial upon the minutes was made at the term at which the action was tried.

Action by Louis J.- Shelmire against the Williams & Clark Fertilizer Company for salary alleged to be owing plaintiff under a written contract with defendant. The action was originally brought in the municipal court for the city of Rochester, where there was a judgment in defendant’s favor. On appeal to the county court, there was a verdict in plaintiff’s favor.

Action by Judson H. Clark against Eosanna Norman, Sarah Ann Westfall, and others for contribution to a debt owed by defendants’ testator and plaintiff, which the latter was obliged to pay. There was judgment dismissing the complaint, and plaintiff appeals.

Action by James Baldwin agáinst Isaac June and Lucretia C. June. From a judgment entered on a decision of the special term, plaintiff appeals.

Action by George Lowenthal against Maria Elizabeth Lowenthal for divorce. Defendant asked for temporary alimony, and the request was granted upon condition that she consent to an immediate trial before the court or a referee. Defendant appeals.

Action by Mary Ann Noonan, as administratrix of William Noonan, Jr., deceased, against the New York, Lake Erie & Western Railroad Company. Plaintiff appeals from an order staying proceedings until payment of the costs and disbursements of a former action between the same parties.

<p>1. Review on Appeal—Referee’s Report.</p> <p>In review of a judgment rendered on a referee’s report, the conclusions of law in the report may, in support of the judgment, be treated .as findings of fact.</p> <p>3. Gift Inter Vivos—Evidence.</p> <p>A mortgagee handed the mortgage note to the mortgagor, who was the stepmother of his granddaughter, telling her to do what she pleased with it, that it was hers. Held, that there was a valid gift of the note to the mortgagor.</p> <p>3. Same—Belease—Intent.</p> <p>Such gift extinguished the mortgage, even though the mortgagor did not so understand the transaction, since her understanding of it does not affect the intent of the mortgagee.</p>

Petition by'Mark Duntz, for and on behalf of Nellie Victory, for a writ of habeas corpus to inquire into the cause of her detention and imprisonment in the house of refuge for women. From an order dismissing the writ, and remanding the prisoner, relator appeals.

Attachment by Edwin Butterworth. and others against Enos Boutilier and another. From an order denying a motion to set aside the attachment, made on the papers used to obtain the attachment only, defendants appeal.

Action by Michael Kavanagh against Amzi L. Barber for damages caused by a nuisance created by defendant From a judgment entered on a nonsuit directed at the circuit, plaintiff appeals.

Action by Moses D. Tennant, administrator, etc., of William H. Renouard, deceased, against Eugene Dudley, for the amount received by defendant on a policy issued on the life of plaintiff’s testator. From a judgment entered on a verdict in plaintiff’s favor, and from an order denying defendant’s motion for a new trial, made on the judge’s minutes, defendant appeals.

Action by Esther C. Townsend and Willard Brown, assignee of the administrator of the estate of Maria Leach, deceased, against Joshua Rackham and others, to establish a trust in certain real estate. From a judgment dismissing the complaint on the merits, plaintiffs .appeal.

Proceedings for habeas corpus brought by the people, upon the relation of Lillie Stewart, against James A. Paschal and Josia M. Paschal, to obtain custody of Mabel Stewart, relator’s daughter. Judgment was rendered awarding to relator the custody of the child. Defendants appeal.

Action by John Charlton and another against Cora I. Scoville and Charles H. Scoville to foreclose a mechanic's lien. From a judgment entered on a decision of the court, and from an order permitting an amendment of the answer, both parties appeal.

Action by Harriet M: Taiman against John F. Dorthy and another for money had and received. From- an order directing him to furnish plaintiff with a bill of particulars, defendant Dorthy appeals.

<p>Appeal from municipal court of Eochester.</p> <p>Action by Henry J. Bowden against James C. Fargo, as president of the Merchants’ Dispatch Transportation Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Action by Henry J. Bowden against James O. Fargo, as president of the Merchants’ Dispatch Transportation Company..</p>

Action by the Auburn Button Company against Philip L. Sylvester, impleaded, etc. There was judgment at special term for defendant, and plaintiff appealed. Defendant moves to dismiss the appeal.

Exceptions from circuit court, Erie county. Action by John M. Bedford against Durfee A. Sherman, Stephan F. Sherman, and Henry L. Fish, Jr., to recover the amount due on certain promissory notes of Sherman Bros. & Company, Limited, a corporation, of which defendants were directors. There was a verdict for plaintiff by direction of the court, and a motion by defendants for a new trial on exceptions was ordered to be heard at general term in the first instance.

Action by Beverhout Thompson against Annie Stanley, as administratrix of David A. Stanley, deceased, and the Harris & Dew Faucet Plug & Bung Company, to recover the proceeds of the property of defendant corporation, alleged to have been misappropriated by said David A. Stanley, deceased, while president thereof.

Action by Isaac J. Squire against Silas S. Cartwright and others, as president and trustees of the village of Roxbury, to enjoin… Held: and the resolution defeated. On the 15th August, 3890, the board of trustees unanimously passed a resolution to make a contract with the water company for the rental of 11 additional hydrants for the term of three years; 10 of them at an annual rental of $15 each, and the other free for the first year, and the next two years at the…

<p>1. Costs on Motion for Alimony—Fees of Referee and Stenographer.</p> <p>An order confirming the report of a referee appointed to hear a motion for alimony and counsel fees in an action for divorce allowed a monthly sum as alimony, and a certain sum for expense in conducting the action, “together with such sum as shall be taxed by the clerk of this court as costs and disbursements.” Held, that the order was too indefinite to constitute a specific delegation of,power to the clerk to tax referee’s or stenographer’s fees.</p> <p>2. Same—Allowance oe Disbursements.</p> <p>s Code Civil Proc. § 3251, provides for costs of certain specified motions, (not including motions’ for alimony and counsel fees,) and that, on any other motion, the court or judge may allow costs, not exceeding $10, besides necessary disbursements for printing and referee’s fees. Held, that the clerk cannot tax disbursements on the granting of a motion for alimony and counsel fees, unless the order specifically directs him to do so.</p>

Action by Catherine Tuomey against Maria Moore, Richard J. Tallón, and the O’Reilly, Shelly & Fogarty Company for an injury sustained from the negligence of the servants of defendant company in the use of a cellar entrance adjacent to a street, and the street in front thereof, while engaged in delivering merchandise to defendant Tallón, the tenant of the building, which was owned by defendant Moore.

Action by Margaret Hannon, administratrix of Julia Barrett, deceased, against Jeremiah Sheehan, surviving administrator of Hannah Sheehan, deceased, originally brought against the Emigrant Industrial Savings Bank to recover the money due on account standing in the name of “Hannah Sheehan, or sister, Julia Barrett.” The fund being claimed by the administratrix of Hannah Sheehan, she was substituted in place of the bank as defendant.

Action by Rosa E. Rainsford against Thomas J. Temple. From an order of the general term of the city court (21 H. Y. Supp. 1039) affirming an order of the special term adjudging defendant guilty of contempt in disobeying the injunction contained in an order for his examination in supplementary proceedings, he appeals.

Action by Mary Barker Fareira against Roderick H. Smith for money alleged to have been loaned by plaintiff to defendant. The defenses were a general denial, and that the loan was not made to defendant, but to a third person, through defendant as the medium.

<p>Appeal from city court, general term.</p> <p>Action by Albert de Cernea against Bussell B. Cornell and Theodore H. Ward to recover damages for defendants’ refusal to perform a contract, in writing, for the sale and delivery of paper; the alleged damages being the difference between the agreed price, and the amount paid by the vendee, in open market, for paper of like quantity and quality. From a judgment of the general term of the city court, (20 3ST. Y. Supp. 895,) which affirmed a judgment for plaintiff entered upon a verdict directed by the trial court, defendants appeal.</p>

<p>Appeal from special term.</p> <p>Action by Elvira Purdy against the Manhattan Elevated Railway Company and the Metropolitan Elevated Railway Company for an injunction. From a judgment for defendants, plaintiff appeals.</p>

Action by Henry W. T. Steinway against William Steinway and Steinway & Sons to compel William Stein way to pay the corporation Steinway & Sons certain profits arising from transactions including a sale by him to the corporation. From an order denying motion requiring a reply to new matter set up in the answer, defendants appeal.

Action by Julia Marion against Charles Farnan, as executor, for services rendered to defendant’s testatrix in her lifetime. From a judgment entered on a nonsuit, plaintiff appeals.

Action by Sarah V. Denise, as assignee of Henry H. Brown, against Albert L. Swett, for royalties accruing under a license to manufacture a patented article granted by Brown. Prom a judgment in plaintiff’s favor entered on the report of a referee, defendant appeals.

Action by Margaret Eagan against the city of Rochester for personal injuries caused by a defective sidewalk, in which there was a judgment for plaintiff. From an order directing the clerk of the court to allow plaintiff’s bill of costs and disbursements, defendant appeals.

<p>Appeal from circuit court, Allegany county.</p> <p>Action by Charles R. Frace against the Few York, Lake Erie & Western Railroad Company to recover damages for the burning of plaintiff’s barn and hotel through the alleged negligence of defendant. From a judgment in favor of plaintiff, entered On a verdict, and from an order' denying its motion for a new trial, made on the minutes of the court, defendant appeals.</p>

Certiorari on the relation of James Low and others to review the proceedings of the common council and other officers of the city of Niagara Falls in ordering, levying, and collecting the general city tax for 1892. Writ quashed.

<p>Appeal from judgment on report of referee.</p> <p>Action by Sylvester J. Ingalls against Prin Ingersoll, impleaded. From a judgment in favor of plaintiff, defendant, Ingersoll, appeals.</p>

Application by the Lima & Honeoye Falls Railway Company for authority to construct and operate its road upon and along a street in the village of Honeoye Falls. The application was opposed by the board of trustees of the village, and denied, and, from an order awarding them costs as of an action, petitioner appeals.

Proceedings for the judicial settlement of the accounts of Frank D. Cook, administrator with the will annexed of James Loomis, deceased. A final decree was made, and a legacy paid in accord.ance therewith. Afterwards Charles W. Fuller, claiming to be the assignee of the legatee, filed a petition to open and amend the decree, and from an order denying the petition he appeals.

Action by John V. Carr against Timothy Sullivan and another. From a judgment for defendants on a counterclaim and for costs, entered on a verdict directed by the court, and from an order denying a motion for a new trial, plaintiff appeals.

Action by Marie H. Weld, a married woman, against the New York, Lake Erie & Western Railroad Company, for personal injuries. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Ernest St. George Lough and Robert H. Burrows-against A. Emilus Outerbridge, Adolphus J. Outerbridge, and the-Quebec Steamship Company to restrain defendants from charging plaintiffs higher rates for carrying goods than were charged to-other shippers. From a judgment for defendants, dismissing the complaint, plaintiffs appeal.

Petition by Charles Lang to compel Charlotte Schumacher, executrix, etc., of Conrad Schumacher, deceased, who was the executor of the last will and testament of Frederick Ledrich, deceased, to account for the proceedings of Conrad Schumacher as such executor. From a decree dismissing the petition, the petitioner appeals.

Action by Dudley H. Beadle against Henry A. Monroe to recover rent. From a judgment of the county court, reversing a judgment in defendant’s favor in a justice’s court, defendant appeals.

Action to foreclose a mortgage by Samuel H. Morgan, as executor of Priscilla Freeborn, deceased, against Helen Hills and others. Judgment for plaintiff, from which defendants appeal.

Action by Henry F. Dehn against Marcus A. Mandeville and others to recover for an alleged false imprisonment of plaintiff by defendants. From an order denying defendant Mandeville’s motion for an order requiring plaintiff’s attorney to receive an unverified answer to the complaint, he appeals.

Action by Henry J. Negus against Louis W. Becker and Thomas Maney to recover for damages to plaintiff’s building, caused by the falling of the party wall. From a judgment for plaintiff, entered on the verdict of a jury, defendants appeal.

Application by the Buffalo, Rochester & Pittsburg Railway Company for certiorari to review the decision of Hanford Duguid and others, assessors of the town of Pavilion. From an order dismissing the writ, relator appeals.

Action by Paulina Colburn against Adam Marsh and others for an injunction. From a judgment dismissing the complaint, entered on the report of a referee, plaintiff appeals.

<p>Appeal from judgment on report' of referee.</p> <p>Action by James Danihie against John Hyatt. From judgment in favor of defendant, plaintiff appeals.</p>

Action by Edward A. Milliman against George Huntington, impleaded with Jacob Bold, for the specific performance of a contract made by defendant Bold. Judgment was entered in favor of plaintiff, and defendant Huntington appeals.

Case submitted on agreed statement. Controversy between Mary Ann Campbell and William Morgan, submitted on an agreed statement of facts pursuant to section 1279, Code Civil Proc. Judgment for Mrs. Campbell.

Action by Eliza J. Lord against Charles W. Lord to recover a sum of money alleged to be due on a contract of separation entered into between the parties, husband and wife, and a trustee. From an interlocutory judgment overruling defendant’s demurrer to the complaint, defendant appeals.

Action by Charles O. Waite against the F. J. Kaldenberg Company for $1,955.88, alleged to be due plaintiff under a contract by which he became defendant’s agent for the sale of its manufactured articles. The answer admitted an indebtedness of $869.82, and 'an order was entered that plaintiff have judgment for that sum, that the action be severed, and that plaintiff have leave to continue the action as to the remainder. Plaintiff accordingly elected to continue.

Action by David McClure, as receiver of the Life Union, against Louis P. Levy, to recover funds of plaintiff converted by defendant. On complaint and affidavits the special term made an order ordering defendant’s arrest, and, from an order denying a motion to vacate such order, defendant appeals.

Action by Stella Stafford against the Morning Journal Association for libel. From a judgment on a verdict in plaintiff’s favor, and from an order denying a motion for a new trial, defendant appeals.

Action by William H. Weaver against William W. Haviland, individually and as administrator, etc., of Phoebe Haviland, deceased, to recover certain funds, and to set aside a conveyance of real estate transferred to defendant by the deceased in her lifetime, in alleged fraud of her creditors. From a judgment in plaintiff’s favor, defendant appeals.

Action by Edgar L. Ridgway, as temporary administrator of the estate of William L. Muller, against Charles P. Bacon, impleaded with others. From an order of the special term overruling a demurrer to the complaint, and an interlocutory judgment thereon, defendant Bacon appeals. Cause stricken from calendar.

Action by the Kings County Elevated Railway Company against Eliza J. Cocks and another to restrain defendants from excavating in the street under plaintiff’s railroad. Defendants demur to the complaint.

Action by John L. Gross against William L. Moore, administrator with the will annexed of Harriet Gross, deceased, and others, to declare the residuary clause of the will invalid, and for distribution of the residuary estate to plaintiff and others as testatrix’s next of kin. There was a decree in accordance with the complaint, and the defendant administrator moves for a new trial on exceptions.

Proceedings by the board of street opening an£L improvement of the city of New- York for the opening of 127th street, from the Boulevard to Manhattan street. An award having been made for land taken for the street, James Baird petitioned for an order of reference to determine his title thereto, and for an order allowing him to offset the same against the assessment of benefits made against him. The referee found against petitioner, and his report was confirmed.

Action by. George E. Glines, as receiver of the Supreme Sitting of the Order of the Iron Hall, against the Binghamton Trust Com-pony, as receiver of the Supreme Sitting of the Order of the Iron Hall, impleaded, and others, for an injunction restraining defendants from interfering with plaintiff as temporary receiver. From an order granting a temporary injunction, defendant the Binghamton Trust Company appeals.

Petition of the people, on the relation of Frank Daniels, for a writ of mandamus directed to George Crawford, an alleged officer of the Enterprise Mining Company, commanding him to exbibit to relator the transfer book and list of stockholders of such corporation, in which relator is a stockholder. From an order refusing an alternative writ of mandamus, relator appeals.

Action by Henry A. Gildersleeve, as trustee of the Nepera Park Land Company, against G. H. Lester and Huberta S. Brown individually and as trustees of the Nepera Park Land Company. From a judgment for plaintiff, defendants appeal.

Action by Henry A. G-ildersleeve, as trustee of the Hepera Park Land Company against Gr. H. Lester and Hubert S. Brown individually and as trustees of the Hepera Park Land Company. From an order adjudging defendant Lester guilty of contempt in disobeying the judgment in favor of plaintiff, said Lester appeals.

Action by Andrew V. Jova against the Southern Improvement Company to recover for breach of contract. There was judgment dismissing the complaint, and plaintiff appeals.

Action by Fred Williams against Thomas J. Montgomery, Bernard Lande, John B. Powell, and the State Trust Company to enjoin defendants from delivering to any person, other than the Central Trust Company, certain stock of the Hydraulic Brake Company issued to defendants Montgomery, Lande, and Powell, and by them deposited with the State Trust Company. From an order denying a motion for an injunction pendente lite, and dissolving a preliminary injunction, plaintiff appeals.

Action by Francisco Boca and Arthur Henriques against the Corn Exchange Bank and Anna D. Byrne, as temporary administratrix of Daniel Byrne, deceased, to enjoin such bank from paying out, and such administratrix from collecting, certain money deposited in the bank to the credit of deceased, and for'an order directing the payment of such money to plaintiffs. From a judgment for plaintiffs, the administratrix appeals.

Action by James H. Sullivan against the mayor, aldermen, and ■commonalty of the city of Yew York. The original attorney for the plaintiff was John H. Strahan, who died pending the suit, having previously made an assignment to Ella S. Webster. An order was made in the cause directing said Ella S. Webster to deliver to the substituted attorney for the plaintiff certain papers, on which she claimed a lien for professional services rendered by said Strahan. She appeals.

Petition by the people of the state of New York, on the relation of the Edison Electric Illuminating Company of New York, against Edward P. Barker, Thomas L. Feitner, and Edward L. Parris, as commissioners of taxes and assessments for the city and county of New York, for a writ of certiorari to review a tax assessment. The writ was dismissed, and the relator appeals.

Action by William Palen against Adelaide E. Bushnell and others. Plaintiff obtained judgment. Defendants appeal from an order appointing a receiver in proceedings supplementary to execution.

Action by William T. G. Weymouth against the Broadway & Seventh Avenue Railroad Company for personal injuries sustained in being thrown from the front platform of defendant’s car, on wMch plaintiff was riding as a passenger, and run over. From a judgment for plaintiff, entered on a verdict, defendant appeals.

Action by John J. Hopper against Conrad Muller, Jr., Anna Hauff, Victor P. P. Erslev, and Edwin S. Updike, Sr., on a bond. From an order overruling as frivolous a demurrer to the complaint, defendants Erslev and Updike appeal.

<p>1. Scandalous Matter in Affidavit—Striking Out</p> <p>Where an affidavit in support of an application for mandamus against a justice contains matter reflecting on the official integrity of respondent, such matter will be stricken out by the court of its own motion as scandalous.</p> <p>2. Same—Costs Where Court Acts on Its Own Motion.</p> <p>Where the court, ■ of its own motion, strikes matter out of an affidavit filed in a proceeding before the court, no costs will be allowed.</p>

Action by John D. Brassington against Frederick Rohrs and others on a promissory note. The judgment and two orders were affirmed on appeal by defendants, (22 H. Y. Supp. 761,) and plaintiff asks the allowance of the costs of three appeals.

Action on a policy of life insurance by Helen Sweezey, individually, and as administratrix of the estate of William H. Sweezey, deceased, against the Prudential Life Insurance Company of America. Plaintiff had judgment on the verdict of a jury, from which, -and an order denying a motion for a new trial on the minutes, defendant appeals.

Action by Frederick P. Forster against Charles E. Moore, Elizabeth Moore, and others to foreclose a mortgage. From an order denying the motion of defendants Moore, directing service of summons on them by publication, and from an order denying a motion to vacate an order appointing a temporary receiver of the property of defendant Elizabeth Moore, defendants Moore appeal.

Action by Daniel McCarty against the Altonwood Stock Farm, Samuel Webber Parker, and Charles W. Parker on a written contract for the payment of money, in which there was a judgment against defendants by default for $11,350. From so much of an order as imposes terms for opening such default, defendants appeal.

Action by Alfred Hopcraft against Henry Lachman and another for breach of an oral contract by which plaintiff was to manufacture 500 ornamental signs for defendants at $4.50 apiece. From a judgment entered on a verdict in plaintiff’s favor for $1,000, and from an order denying defendants’ motion for a new trial, defendants appeal.

Case submitted on agreed statement. Agreed case submitted by Teresa Coughlin against James Fay, as executor, and Catharine Keenan, as executrix, of the last will and testament of Owen Keenan, deceased, Catharine Keenan, individually, and as general guardian of Thomas Keenan, and James Fay, as general guardian of James Francis Fay, to obtain a construction of the will of said Owen Keenan.

Action by Esék Page and others against Albertus Larrowe, and five other cases, for conversion. A judgment of the justice of the peace in favor of plaintiffs was reversed by the county court, and plaintiffs appeal.

<p>Appeal from special term, Erie county.</p> <p>Action by Rudolph Hoffeld against Jacob Zeuzius. There was .a judgment for plaintiff, from which defendant appeals.</p>

<p>Motion for reargument. Denied.</p> <p>For decision on appeal, see 21 N. Y. Supp. 509.</p>

Action by Sarah Lazarus and others, executors, against the Metropolitan Elevated Railway Company and the Manhattan Elevated Railway Company to enjoin defendants from maintaining their road in front of plaintiffs’ premises, and for damages.

Petition of James Blewitt that he be adjudged sane. From an order denying the petition, petitioner appeals. Affirmed. For former report, see 16 N. Y. Supp. 305; 18 N. Y. Supp. 607.

Certiorari by the Edison Electric Light Company against Frank Campbell, ■comptroller of the state of New York, to review respondent’s decision in declining to set aside taxes assessed on the relator, under the corporation tax laws for the year ending November 1, 1891.

<p>Action by Joseph H. Davis against George W. Bogart.</p>

<p>Action by Edward J. Hingstone and others against Ezra B. Knapp and others.</p>

<p>Action by Daniel Perry against Ira W. Perry.</p>

<p>Action by Charles G. Thompson and others against Susan Y. Thompson and . others.</p>

<p>Action by Eugene J. Wildrick against John Moore and others.</p>

<p>Action by Anna Grosser against the city of Rochester and another.</p>

<p>Action by Edward W. Hankins against the New York, Lake Brie & Western Railroad Company.</p>

<p>Action by Anna E. Lick against the town of Moravia.</p>

<p>Action by George Boll, administrator, etc., against the Steam-Gauge & Lantern Company.</p>

Action by Herbert H. Charles against William W. Prentice, brought before a justice of the peace, and appealed by defendant for a new trial to the county court.

<p>Proceeding for the probate of the last will and testament of Samuel Wilcox, deceased.</p>

<p>Action by Siegfried L. Zareck against the American Biscuit'& Manufacturing Company and others.</p>

<p>Appeal from district court.</p> <p>Action by Moses M. McKee and another against James Rogers to recover commissions as brokers. “ ■</p>

<p>Action by Frederick Haas against Pietro Altiero.</p>

<p>Appeal from city court, general term.</p>

<p>Action by the Thomas Roberts Stevenson Company against Spencer Aldrich and others.</p>

<p>Action by Bernard Katz and another against Catharine Atfield, as administratrix.</p>