Volume 23 — New York Appellate Division Reports

Appeal by the defendant, The Haberman Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of April, 1897, denying the defendant’s motion for a new trial made upon the minutes.

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

Appeal by the defendant, John P. Hawkins, from a judgment of the Supreme Court in favor of the plaintiff and the defendants Elias D. Hunter and others, entered in the office of the clerk of the county of Westchester on the 26th day of December, 1896,. upon the verdict of a jury rendered by direction of the court.

Application to the Appellate Division in the first instance for the appointment of a special guardian, or guardian ad litem, to take, perfect and prosecute an appeal from a final decree of the surrogate of Westchester county.

Appeal by the defendant, The Atlantic Avenue Railroad Company of Brooklyn, from a judgment of the Supreme Court in favor ■of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of February, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of February, 1897, denying the defendant’s motion for a new trial made upon the minutes.

<p>Negligence — negligence of a parent — what is not imputable to an infant run over by an electric car — testimony as to speed — charge as to the ringing of a bell—clw/rge as to an alleged unavoidable accident.</p> <p>A witness who is not an expert may testify whether a trolley car was running fast or slow at the time of an accident.</p> <p>Proof, made in an action in which negligence was charged against an electric street railroad, that, after a mother had sent a child, under five years of age, into the street with her brother, who was fifteen years of age, with directions to him to take care of the child, she subsequently left him, without his knowledge, crossed the street to a Candy store, and when on her way back, near a crosswalk and in plain sight of a motorman, was run over by his car while her back was partially towards it, the car, when the child started to cross the street, being 130 feet away from the place of the accident, does not establish, as matter of law, negligence upon the part of the mother imputable to the child, and the question of contributor; negligence is one proper for the jury.</p> <p>Where there is a conflict of evidence .upon the questions as to the ringing of a bell upon the trolley car and as to the speed of the car and the distance it was from the place where the child started to cross the street, the court may properly deny, as too broad, a request to charge made by the defendant, in effect that the negative testimony of witnesses that they did not hear or did not notice whether a bell was rung was not sufficient to show that it was not rung, and that the jury is bound to believe the affirmative testimony of credible witnesses that it was rung; but it is erroneous for it to refuse to charge, when requested by the corporation, “ that if the jury believe that the car of the defendant was running at a moderate and proper rate of speed, and if, at the time that the child first started to cross the tracks, the car was so close to the place where the child was struck and was run over that it was- impossible for the car, under any circumstances, to be stopped before running over the child, that then the verdict should be for the defendant.”</p>

Appeal by the defendant, Edward L. E. Phipps, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Westchester on the 24th day of April, 1897, upon the decision of the' court rendered after a trial at the Westchester Special Term.

<p>Railroads — rate of fare ehm'geable under an irttertraffia arrangement '■— contract not against public policy — measure of damages.</p> <p>The provision of the Railroad Law (Laws of 1890, chap. 565, §§ 101, 103, 105) in substance enacting that, in cities having a population of 800,000 or more,street surface railroad corporations may make an intertraffic contract to carry a passenger for a continuous trip and for a single fare not exceeding five cents, nor exceeding the lawful fare, does not apply to such a contract made in 1895, in a city not shown to have then had such a population, by a corporation organized in 1885, operating a street surface railroad prior to April, 1889, a considerable portion of which was not in 1895 in the city, being the successor of a similar railroad which had been operated for twenty years; and it or its lessee may charge, for a continuous trip, a fare in excess of five cents.</p> <p>An agreement entered into between two companies having connecting railroads that one of them shall make no discrimination in the rate of fare over its road in favor of any other railroad and against the other party to the contract, there being no requirement that the rate of fare, in the absence of any discrimination, should not be as low as the former company may choose to make it, is not in violation of public policy.</p> <p>Although the difficulty of proving the damages resulting from a breach of a contract is no reason why a recovery should be denied, there, must, nevertheless, be reasonable support, in the evidence given and in the inferences to be derived from it, for the amount awarded.</p>

<p>Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of July, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of June, 1897, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover damages for personal injuries, resulting to the plaintiff from the alleged negligence of the defendant..</p>

Appeal by the defendant, The City of Mount Vernon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 29th day of May, ■ 1897, upon the report of a referee.

Appeal by the defendant, Albert G. 0.' Hahn, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 23d day of June, 1897, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 24th day of June, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, William Gordon’, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 20th day of May, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing his complaint upon the merits.

Appeal by the plaintiff, Sarah Shea, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 19th day of March, 1897, upon the dismissal of the complaint directed by the court after a trial at the Kings County Trial Term. The action was brought to recover upon two policies of insurance issued by the defendant upon the life of .the plaintiff’s daughter.

Appeal by the defendants, William. F. Reilly and another, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day of April, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21th day of April, 1897,, denying the defendants’ motion for a new trial made upon the minutes.'

<p> Towns —power to issue highway bonds of a long term and payable in gold—proceeds of tlte sale used in paying interest—payment of the services of the town supervisor —services of an engineer. </p> <p>Under the provisions of the County Law contained in sections 69 and 70 of chapter 686 of the Laws of 1892, as amended by chapter 178 of the Laws of 1896, the board of supervisors of a county may authorize a town, in order to pay the expense of constructing and repairing highways therein, upon the application of the proper town officers and with the consent of the trustees of the village in which the highways are situated, to issue long-term bonds for the payment of the indebtedness thus incurred.</p> <p>Bonds thus issued may run for thirty years with legal interest and be payable in gold, and the supervisors may direct that the interest on the bonds (sold at a premium) be paid out of the proceeds of the sale until the tax provided to pay the same can be collected.</p> <p>A provision by which the supervisor of a town, in Richmond county is given for his services as supervisor a commission upon the proceeds of the bonds so sold ■ is illegal and void. The other provisions of the act are not, however, rendered void'bscause of such provision.</p> <p>In such a matter the town board has not authority to fix the compensation of an engineer.</p>

<p>Appeal by the plaintiff, Esther G-. de St. Laurent, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 30th day of January, 1897, upon the decision of the court rendered after a trial at the Westchester Special Term.</p>

<p>Action by abutting owners against an elevated railroad company—• a temporary receiver of the company appointed in a mortgage, foreclosure suit may be made a party.</p> <p>A temporary receiver appointed in an action brought to foreclose a mortgage given by an elevated railroad company who has ■ been given power to defend all pending actions against the company and to manage the road, may properly be made a party defendant in an action brought before his appointment by abutting property owners against the railroad to recover damages to the property caused by the construction of the road.</p>

Appeal by the plaintiff, The Woodside Water Company, from a judgment of the Supreme Court in favor of the defendant entered in the office of the clerk' of the county of Queens on the 16th day of July, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing its complaint.

Appeal by the defendant, Margaret Hogan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 23d day of July, 1897, upon the decision of the court rendered after ¡a trial at the Westchester Special Term.

Appeal by the defendant, the Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 14th day of May, 1897, upon the- verdict of a jury for $16,875 ; also from an order entered in said clerk’s office on the 14th day of June, 1897, denying the defendant’s motion for a new trial made upon the minutes, and also from an order made at the Kings County Special Term and…

Appeal by-the defendants, Louise Moore Walker and another, from a judgment of the Supreme Oourt in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 23d day of April, 1891,- upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiffs, Elizabeth- Sweeney and another, from a ■judgment- of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 9th day of .March, 189J, upon the decision-of the court rendered! after a trial at the Queens County Special Term dismissing the complaint upon the merits.

Appeal by Henry Kruse, a judgment creditor, from so much of an order of the County- Court of Kings county, entered in the office of the clerk of the county of Kings on the 4th day of October, 1897, as denies his application to restrain the sheriff of Kings county from paying, out of the proceeds received from the sale of lands under a judgment of foreclosure of a mortgage, certain taxes levied and assessed against the premises.

Appeal by the defendant, Sherman Zeluff, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Richmond on the 5th day of Decernber, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, William Irvine, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of May, 1897, granting the defendant’s motion- for a new trial, and deferring, until after such new trial is had-,, the motion made by the plaintiff to punish the defendant and the Nassau Electric Railroad Company for contempt of court.

Appeal by the defendants, John P. Cranford and others, from an order of the Supreme Court, made at the Kings County Trial Term, and entered in the office of the clerk of the county of Kings •on the 21st day of June, 1897, granting the plaintiff’s motion for a new trial made upon the minutes, the court having directed a verdict in favor of the plaintiff for $154.67 damages, but having refused to allow the plaintiff to go to the jury upon all the issues in the action.

Appeal by the defendants, Attilio Pasquini and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 6th day of January, 1897, upon the report of a referee.

<p>Bailroad franchise in the Greater Sew York — it cannot exceed a term of twenty-five years with.renewals.</p> <p>From the date of the passage of the charter of ¡the Greater Hew York (Chap. 878 of the Laws of 1897) the granting of a franchise to operate a street railroad within the territory of the new city for a longer term than twenty-five years, with certain privileges of renewal, is forbidden.</p> <p>The fact that in attempting to grant .such a franchise the common council is exercising a legislative function does not preclude the courts from investigating the legality of the act.</p> <p>If it clearly appears that such action is illegal the fact that an order of injunction pendente lite will prevent the members of the common council from passing a resolution granting such franchise over the mayor’s veto before the expiration of their term of office, is not a reason for refusing to grant the order.</p>

Appeal by the plaintiff, Louis Meyer, as administrator, etc., of Adolphina Meyer, deceased, from a judgment of the Supreme-Court in favor of the plaintiff, entered in the office of the. clerk of the county of Kings on the 22d day of April, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office-on the 1st day of April, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 5th day of June, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of June, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Ann Nicol and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 19th day of April, 1897, upon the report of a referee.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff for $2,850 damages and $279.32 costs, entered in the office of the clerk of the county of Kings on the 21st day of June, 1897, upon the verdict of a jury, and also from an order, bearing date the 17th day of June, 1897, and entered in said clerk’s office, denying the defendant’s motion for a new trial.

Motion by the plaintiff, John P. Morris, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of his complaint by direction of the court, after a trial at the Kings County Trial Term.

' Appeal by the defendant, Henry Corn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of March, 189% upon the verdict of a jm-y, and also from an order entered in said clerk’s office on the 13th day of March, 189% denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Sanford H. Weeks, Jr., as executor, etc., of Joseph Mathews, deceased, from so much of a decree of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s ■ Court on the 26th day of July, 1891, as disallows-his claim upon a promissory note made by the said Joseph Mathews and delivered to him.

Appeal by the plaintiff, The Newtown Creek Towing Company, from, a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 10th day of November, 1896, upon the verdict of a juryrendered by direction of the court.

Appeal by the defendant, the Hamburg-American Packet Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Quéens on the 5th day of May, 1897, upon the verdict of a jury; also from an order entered in said clerk’s office on the 5th day of May, 1897, denying the defendant’s motion for a new trial made upon the minutes; also from an order made upon the coming in of the verdict granting the plaintiff an…

<p>. Appeal "by the plaintiff, The Philadelphia, Reading and New England Railroad Company, from 'an order of the Supreme Court,. made at the Dutchess County Special Term and entered in the office of the clerk of the county of Dutchess on the 17th day of May, 1897, confirming the award of commissioners of appraisal.</p>

Appeal by the defendant, ..George R., Haydock, as executor, etc., of Melicent Stebbins, deceased, from .a judgment of the Supreme . Court in favor of the plaintiff, -entered in the office of the clerk of the county of Westchester on the 3d day of July, 1897, upon the report of’ a referee.

Appeal by the defendant, the-New York Bottling Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 18th day of January, 1897, upon the verdict of -a jury, and also from an order entered in said clerk’s office on the 15th day of February, 1897, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Paul J. Rohling, from a judgment of ••the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 3d day of March, 1897, upon the dismissal of the complaint at the end of the plaintiff’s case directed by the court after a trial at the Kings County Trial Term,</p>

Appeal by the plaintiff, Terrence F. Ferguson, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the1 county of Kings on the 28th day of September, 1897, directing the plaintiff to pay over to John Naumer, the receiver appointed in the action, the sum of $919.37, assets of the firm of T. F. Ferguson & Co., collected by said plaintiff, . and also from an order entered in said clerk’s office on the 7th day of…

Appeal by the defendants, Melancthon Fleet and others, from an ' interlocutory judgment of the County Court of Queens county in favor of the plaintiff and of the defendant, The State of Hew York, entered in the office of the clerk of the county of Queens on the 21st day of December, 1896, upon the- decision of the court rendered after a trial before the- court-without a jury directing a-sale in partition of the premises described in the complaint.

<p>A judgment may be attacked collaterally by an action brought by a defendant not in fact served — evidence as to service.</p> <p>While a party may attack a judgment collaterally by showing, in a subsequent action brought by him in order to set aside the judgment, that he was never served with process in the former action, and is not confined to the remedy by a motion to vacate the judgment, made in the original action, yet where neither he himself, nor a physician alleged to have been attending him while sick at his home, at the time when the service was claimed to have been made upon him at his office, were called to testify upon the question of service, and the process server swore that he personally knew the person served by him to be the defendant in that action, the court was of opinion that the decision of the: trial justice that service was actually made, should not be reversed as against the weight of evidence.</p>

<p> A lienor who has satisfied the lien under an agreement to talce a percentage of payments to become due to a contractor — he has no defense to a mortgage subsequently given on the premises. </p> <p>A lienor who has executed a satisfaction piece of his lien under an agreement that he is to be paid a certain percentage of his claim out of moneys to become due to a contractor who had undertaken to complete certain buildings upon the premises in question, and who never completed his contract, hás no defense to the foreclosure of a mortgage covering the premises, subsequently executed, pursuant to an adjustment made by the creditors of the builders who originally undertook the construction of the buildings, in place of a mortgage given prior to the filing of the lien.</p>

<p> Negligence—collision on a racecourse between a drag and a sulky■—when' the questions of negligence and, contributory negligence are for the jury. </p> <p>In an action brought to recover damages for personal injuries sustained by the plaintiff, who, while rightfully exercising his horse upon a race track of an agricultural society, came into collision with a drag driven by the defendant and was injured, it appeared that when the defendant drove upon the grounds through a gate in the'inclosure, instead of driving directly into the paddock or infield through an opening opposite, he drove upon the track toward a second • entrance, although warned by a person at the gate that by so doing he would endanger the life of a gentleman who was working his horse there;- that the view of the whole track was unobstructed, and that, as he swung his drag around toward the outer edge of the track preparatory to entering the second •opening, the plaintiff, who was 200 feet away and coming up at a racing pace, hallooed to him without effect, the defendant continuing his course, which resulted in the collision complained of.</p> <p>field, that the questions of the negligence and contributory negligence of the parties should be submitted to the jury.</p>

<p> Professional misconduct of an attorney—what facts tendió shoio it. </p> <p>A tenant in common, with her two sisters, of a house and lot worth §1,500, subject to a mortgage for §500, in which house and lot such tenant in common also had an equitable interest of §300 for advances made to her father, the original owner thereof, was advised by an attorney to “ administerate on this home ” and afterwards went to his office and signed a paper, which she supposed related to "administration, but which was really a complaint in an action fora partition of the premises, and, when she afterwards learned that a sale was about to take ' ...place, protested against.it, to which protest the attorney paid no attention.</p> <p>On the sale the house and lot sold for §1,000, of which §500 and interest .was paid on the mortgage, §837.30 was adjudged to the plaintiff’s attorney for costs, and §110 to certain parties defendant, leaving, after payment of referee’s fees and disbursements, about §85 to be divided among the three tenants in common.</p> <p>Held, that the evidence required the submission to the jury of the question whether the attorney had not been guilty of professional misconduct.</p>

Appeal by George Cromwell, the defendant in the first above-entitled proceeding and the plaintiff in the second above-entitled proceeding, from an order of the Supreme Court, made at the West-' Chester Special Term, bearing date the 16th day of December, 1897, and entered in the office of the clerk of the county of Richmond, directing the issuance of a peremptory writ of mandamus commanding the board of canvassers of the county of Richmond to proceed to a recount of the…

Appeal by the plaintiff, John Bauer, from a judgment of the Supreme' Court in favor of the defendant, entered in the office of-the clerk of the county of Kings on the 8th day of July, 1897,' upon the dismissal of the complaint directed by the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 29th day of April, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by Erastus Van Houten from an order of the Surrogate?s Court of Rockland county,' entered in said Surrogate’s Court on the 28th day of June, 1897, denying his motion to vacate an order of said Surrogate’s Court made on the 3d day of February, 1897, punishing him for contempt of court.

Appeal by the defendant, Henry O. Fischér, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of November, 1896, upon-the verdict of'a jury, and also from an order entered in said clerk’s office on the 20th day of November, 1896, denying the defendant’s motion for a new tidal made upon the minutes.

Appeal hy the defendants, William Cody and others, composing .the firm of Cody Brothers, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Kings on the 28th day of June, 1897, upon the verdict of a jury directed by the court, and also from an order entered in said clerk’s office on the 2d day of July, 1897, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Egbert B. Travis, from a judgment .of the Supreme. Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 9th day of June, 1897, upon the verdict of a jury directed by the court.

Appeal by the defendant, Jacob H. Dressner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on or about the 7th day of May, 1897, upon. the verdict of a jury directed by the court.

Rearghment of ah appeal by the plaintiffs, Morris Arnold and Milton S. Arnold, -comprising the firm of M. Arnold & Co., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of March, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the llth day of March, 1896, denying the plaintiffs’ motion for a new trial made upon the minutes.

<p>Appeal by John W. Balluffi from an order of the County Court of Westchester county, made at a Special Term thereof, entered in the office of the clerk of the county of Westchester on the 9th day of July, 1897.</p> <p>Appeal by C. Wesley Tompkins from portions of the aforesaid order, whereby the court refused to count certain ballots for the said appellant.</p>

<p>Appeal by the defendant, The Brooklyn, Queens County and Suburban Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of February, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of February, 1897, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover damages resulting from the death 'of the plaintiff’s intestate, which was. caused by the alleged negligence' of the defendant. •</p>

Certiorari issued out of the Supreme Court and attested on the 18th day of May, 1897, directed to the board of trustees of the village of Haverstraw, directing it to certify and return to the office of the clerk of the county of Rockland all and singular its proceedings in regard to the relator’s cl aim for compensation as a member of the hoard of health of said village for the year ending May 1, 1896.

Appeal by Michael T. Kilahy and others, claimants, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Westchester on the 24th day of December, 1895, confirming the report of commissioners of aj>praisal.

Appeal by the • defendant, Louis Baust, from an order of the Oounty Court of Westchester county, entered in the office of the clerk of the county of Westchester on the 20th day of November, 1897, denying his motion to am.end the printed case on appeal.

Appeal by the defendant, Robert L. Davis, from a judgment of the Supreme Court-in favor of the plaintiff, entered in the office of the cleric of the county of Queens on the 14th day of April, 1897, upon the verdict of a jury, with notice of an intention to bring up for review upon such appeal an order bearing date the 13th day of April, 1897, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes,

Appeal by the defendants, Charles W. Vincent and another, as executors, etc., of George T. Boss, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 28th day of June, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of July, 1897, denying the defendants’ motion for a new trial made upon the minutes.

Cross-appeals by the plaintiff, Edward A. Rollins, and by the defendant, Everett Barnes, from an order of the Supreme Court, made at the Kings County Special Term bearing date the 26th day of November,-1897, and entered in the office of the clerk of the county of Richmond, directing a retaxation of costs “ by allowing to plaintiff his statutory costs up to the time of the receipt by him of the offer to allow judgment against defendant, together with one-half of the statutory…

Appeal by the defendant, The Village of New Brighton, from a judgment of the Suj)reme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Richmond on the 19th day of June, 1891, upon the decision of . the court rendered after a trial at the Kings County Special Term adjudging a crematory maintained by the defendant to be a private nuisance as against the plaintiffs as it has been heretofore conducted, and enjoining the operation thereof as…

Appeal by the plaintiff, Catherine Rich, as administratrix, etc., of Thomas Adlum, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 29th day of March, 1897, upon the dismissal of the complaint directed by the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office as of March 23, 1.897, denying the plaintiff’s motion for a new trial.

<p>Appeal by the defendant, George Watkins, from a judgment of the County Court of Rockland county, entered in the office of the clerk of the county of Kings upon the verdict of a jury convicting him of the crime of arson in the third degree, upon which the defendant was sentenced to be imprisoned in the State prison at Sing Sing at hard labor for the term of two years.</p>

Appeal by the defendant, Henry W. Royal, from a judgment of the County Court of Kings county, rendered on the 22d day of May, ■1897, and entered in the office of the clerk of the county of Kings, affirming a judgment of a police justice of the city of Brooklyn, convicting the defendant of the violation of an ordinance of said city, and imposing the penalty prescribed thereby, and also from an order of the County Court of Kings county, entered in the office of the clerk of…

Appeal by the defendant, Margaret M. Conroy, from a judgment of the Supreme Court in favor of the defendant Mary Ann Cecelia Bowe, entered in the office of the clerk of the county of Kings on the 2d day of April, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term, except from so much of said judgment as dismisses the complaint of Margaret Coyne.

Appeal by the defendant, Wells, Fargo and Company’s Express, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of April, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of April, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Edward Barry, from a judgment of the Supreme Court in favor of. the defendants, entered in the office of the clerk of the county of Rew York on the 21st day of June, 1897, upon the dismissal of the complaint by direction of the court after a trial at the Rew York Trial Term.

Appeal by the defendant, John P. Wenninger, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of June, 1897, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term.

<p>■ Appeal by the defendant, The German Savings Bank in the city of New York, by permission, from a judgment of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of July, 1897, affirming a judgment of the General Term of the City Court of New York which affirmed a judgment of the City Court of New York entered upon-a verdict rendered by direction of the court.</p>

Appeal by the Broadway Insurance Company from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of May, 1897, denying its motion for an order discontinuing the above-entitled proceedings and vacating an order to show cause granted on the 12th day of November, 1896.

<p>Notice to the pledgor required of a. sale of the pledge—when the knowledge of an attorney cannot he imputed to his clients.</p> <p>The rule requiring a pledgee to give the pledgor notice before selling the pledge is not complied with where the only notice given consists of a newspaper clipping, mailed to the pledgor by the pledgee’s attorney, in which auctioneers give public notice that, at their regular sale of securities held on a day stated, they will sell, “for account of whom it may concern,” a long list of stocks and other securities, including those pledged, which are described merely as “53 shrs. United States Printing Co.,” the notice being marked with lead p.encil or ink marks opposite the item in question.</p> <p>The fact that the attorney for the pledgee was also the attorney for the purchasers of the pledge at the auction sale, in a prior proceeding in which the pledge was attached in the hands of the. pledgee for a debt due to such purchasers, does not operate to charge such purchasers with the knowledge of the attorney as to the circumstances under which the sale was made, where there is no evidence that the attorney had any communication with them in reference to their becoming purchasers at, or acted as their attorney in any way in connection with, the sale.</p>

Appeal by the defendants, George W. Bunce, individually and as executor, etc., of Elizabeth 1VI. Bunce, deceased, and another, from portions of a judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants,, entered in the office of the ‘ clerk of the county of New York as of the 17th day of April, 1897, upon the decision of the court rendered after a trial at the1. New York Special Term.

Appeal by the defendant, Mary F. 0. Smith, from a judgment of the Supreme Court in favor of' the plaintiff, entered in the office of the cleric of the county of New York on the '11th day of February, 1891, upon the report of a- referee in an action brought to foreclose a mechanic’s lien.

<p> Negligence—inviting a passenger to descend, in the dark, from a moving train. </p> <p>In an action brought to recover damages for personal injuries resulting to the-plaintiff because of the alleged negligence of the defendant, a railroad company, it appeared that as one of - the defendant’s trains upon which the plaintiff was a passenger, w;as drawing into the station at Jersey City, the con ductor called out, “All out; Jersey City; last stop," and that after the conductor had thrown open the vestibule door, the plaintiff, in full view of the-conductor, descended the steps of the car, which was still in motion, although the plaintiff was unaware of that fact, the movement of the train being- perfectly smooth, and it being dark at the time, the only light being that at the-top of the car steps, and that, as he reached the ground, he was thrown down and run over.</p> <p>Held, that it was error to nonsuit the plaintiff, as upon the evidence the questions, whether the conductor should have informed the plaintiff that the train was-moving, and whether the plaintiff was guilty of contributory negligence should have been submitted to the jury.</p>

Appeal by the defendant, The New Jersey Steamboat Company, ■from a judgment of the Supreme Court in favor , of the plaintiff, ■entered in the office of the clerk of the county of New York on the 10th day of March, 1897, upon the verdict of a jury, and also from •so much of an order entered in said clerk’s office oh the 10th day of March, 1897, as denies the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Anthony Yan Arsdale Winans, from a judgment of the' Supreme Court in favor of the plaintiff, entered 'in the office of the cleric of the county of New York on the 27th day of July, 1897, upon the decision of the court rendered after a trial at the New York Special Term.</p>

<p>Appeal by the' defendants, John Jeroloman and another, from an -order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of November, 1897, granting the plaintiff’s motion ior a continuance pendente lite of a preliminary injunction.</p>

Appeal by the defendant, The Mayor,, Aldermen and Commonalty of the City of Hew York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office' of the clerk of the county of Hew York on the 4th day of August, 1897, upon the decision of the court rendered after a trial at the Hew York Special Term overruling the defendant’s demurrer to the complaint.

Appeal by the plaintiff, Warren Delano, Jr., from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Mew York on the 13th day of July, 1897, upon the decision of the court rendered after a trial at the Mew York Special Term, overruling the plaintiff’s demurrer to so much of. the amended answer as sets up a counterclaim.

Appeal by the defendant, George H. B. Mitchell, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 12th day of May, 1897, upon the decision of the court rendered, after a trial at the Hew York Special Term overruling the defendant’s deinurrer-to the complaint.

Appeal by the defendant, Maurice Gloster, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the; 6th day of April, 1897, upon the decision of the-court rendered after a trial at the Hew York Special Term.

Appeal by the plaintiff, Frederick Berenbroick, from a judgment of the Supreme Court in favor of the defendant, St. Luke’s Hospital in the city of New York, entered in the office of the clerk of the county of New York on the- 5th day of April, 1897, upon the decision of the court rendered after a trial at the New York Special Term dismissing the plaintiff’s complaint upon the merits.

' Appeal by the defendants, Frederick J. Syme and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of May, 1897, upon .the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, The Methodist Protestant Church of the Tillage of Williamsburgh, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of September, 1897, directing a reference of the issues in the action.

Appeal by the plaintiff, Emeline Lee, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 21st day of June, 1897, upon the decision of the cdurt rendered after a trial at the New York Special Term overruling the plaintiff’s demurrer to the second defense contained in the defendant’s amended answer.

Appeal by the defendants, George Gildersleeve and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 1st day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of March, 1897, denying the defendants’ motion for a new trial.

Appeal by the defendant, Joseph Fleisehman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 18th day of March, 1897, upon the decision of the court' rendered after a trial at the Hew York Special Term.

Appeal by the defendant, Joshua Piza, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Yew York on the 9th day of June, 1897, upon the decision of the court rendered after a trial at the Yew York Special Term overruling the said defendant’s demurrer to the complaint.

<p> Infancy—flic consideration of a mortgage given by an infant, expended on the land: —false representations as to age—restitution not compelled. </p> <p>A mortgage given by an infant upon premises owned by him is voidable at his election, even though the mortgagee has accepted it and advanced the money upon the faith of false and fraudulent representations made by the infant, as well as by his father, that he was of age.</p> <p>Where the moneys have been expended in filling in the mortgaged premises and in the payment of interest and insurance premiums which were charges thereon,, restitution cannot be compelled.</p>

<p>Appeal by the plaintiff, Frederick M. Crossett, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 1st day of July, 1897, upon the decision of the court rendered after a trial at the New York Special Term sustaining the defendant’s demurrer to the complaint.</p> <p>The complaint alleges that on the 7th of January, 1897, the plaintiff’s assignors telegraphed the defendant, trading under the name of Carleton & Moffatt, as follows :</p> <p>“ Carleton & Moffatt, New York:</p> <p>“At what price can you supply C. F. I. (meaning cost, freight and insurance) June, July delivery, one million standard Calcutta wheat bags. Terms, notes payable 1st day of November, 1st day of December, interest to begin 1st day of July.</p> <p>“ E. L. G. STEELE & COMPANY.”</p> <p>That in reply thereto the defendant telegraphed the said assignors as follows:</p> <p>“ E. L. G. Steele & Co., San Francisco:.</p> <p>“ Calcutta offers subject to immediate reply one million centals (meaning Calcutta wheat bags, size 36x22, weighing 12 ounces) March, April shipment steamer three and 92/100 cents net cost and freight. Must have a confirmed bankers’ credit on London four months’ sight, subject to reply by five p. m. here to-day, Thursday.</p> <p>“ CARLETON MOFFATT.”</p> <p>And that on the same day the plaintiff’s assignors accepted said offer by replying as follows :</p> <p>“ Carleton & Mofeatt, 132 Front street, New York:</p> <p>“ We accept for our account one million standard Calcutta grain bags, size twenty-two by thirty-six, weight twelve ounces as per yotir telegram of to-day. Wire us confirming this and naming.your correspondent in Calcutta and instruct us regarding credit.</p> <p>“E. L. G. STEELE & CO.”</p> <p>The complaint further alleges that said telegram of acceptance was received by the defendant before five $>. m.' on said 7th- day of January, 1897, and that said E. L. G. Steele & Co., the plaintiff’s assignors, were prepared to give- such banker’s credit as the defendant should require; that the said firm of Steele & Go. were and have been willing to carry out the terms of said contract; and that on January 8, 1897, the defendant declined to fulfill said contract and declined all liability on account of the offer made by him on the previous day.</p> <p>On the 12th day of -March, 1897, Steele & Go. assigned their claim for a valuable consideration to the plaintiff, who is the sole exclusive owner and holder of said claim. The defendant demurred to the complaint on the ground that it does not state facts sufficiént to constitute a cause of action. The demurrer was sustained, and from the interlocutory judgment thereafter entered this appeal is taken.</p>

<p>Appeal by the defendant, Arthur B. Bisley, from' an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New fork on the 6th day of October, 1897, granting the plaintiffs’ motion to punish the defendant, Arthur B. Bisley, for contempt of court.</p>

<p>JSailroad — action by d railroad corporation to restrain the filing of maps indicating the opening of streets through its station grounds—leave to serve a supplemental complaint setting -up subsequent prroceedings to open the streets.</p> <p>In an action brought by a railroad corporation against municipal authorities to restrain the filing of maps showing streets, as indicated thereby, across its station grounds, and to prevent such indicated streets being opened, the plaintiff should be granted leave to serve a supplemental complaint, setting up proceedings for the opening of the streets (alleged in the original complaint as intended or threatened) as in fact taken by the municipality after the filing of the maps, especially where such supplemental complaint will set at rest a question as to the scope of the action. '</p> <p>The effect of serving such a supplemental complaint will not be to introduce a new cause of action.</p>

<p>Appeal by the defendant, The Schlicht Heat, Light and Power Company, from a judgment of the Supreme Court in favor oij, the plaintiff, entered in the office of the clerk of the county of Hew York on the 16th day of April, 1891, upon, the verdict of a jury, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon, the minutes.</p>

<p>Habeas corpus for (he release of a child committed to a house of mei'cy— (raverse to the return,, when demurrable.</p> <p>The return to a writ of habeas corpus issued to a house of mercy for the purpose of testing the legality of the imprisonment by it of the relator’s daughter, alleged that the relator’s daughter was confined by virtue of a mandate issued by a magistrate, under chapter 410- of the Laws of 1883, as amended by chapter 353 of the Laws of 1886. This mandate, a copy of which was annexed to the return, recited that the relator’s daughter was arraigned upon the complaint of the relator, and that it appeared to the satisfaction of the magistrate, by competent testimony, and by the confession of the relator’s daughter, that she (the relator’s daughter) was fourteen years of age, and was in danger of becoming morally depraved, and that it was for her welfare that she be placed in a reformatory, and so adjudged.</p> <p>A traverse was filed to the return, alleging that the relator was not sworn or examined before the magistrate for the purpose of procuring the commitment of her daughter; that her daughter was never in danger of becoming morally depraved; that the relator appeared before the magistrate only to procure the release of her daughter, and there signed a paper handed to her by an agent of the Society for the Prevention of Cruelty to Children, which she was unable to read, and which was not read to her, but was represented to her to be a discharge.</p> <p>Held, that the traverse was demurrable in that it neither disputed any fact upon which the jurisdiction of the magistrate was predicated, nor alleged extrinsic facts tending to show a want of jurisdiction on his part to render the judgment;</p> <p>That the examination of the relator or her daughter before the magistrate was unnecessary, and that the confession of the daughter was sufficient to establish the charge.</p>

<p>Sheriff— the Supreme Court cannot, upon his application, tax his fees on executions issued out of the City Court of New York —' application of Code Civ. Proa. § 8287.</p> <p>The Supreme Court has no jurisdiction-, upon the application of a sheriff, -to make an order assuming to tax the fees to which the sheriff is entitled for levying an execution issued, out of the City Court of New York.</p> <p>The power, to tax sheriff’s fees conferred on the Supreme Court by section 8287 of the Code of Civil Procedure cau be exercised only upon the written demand of the person liable to pay the fees.</p>

<p>'Appeal hy the plaintiff, Francis S. Peeke,.from so much of ¡an interlocutory judgment of tire Supreme Court,'entered in the office of" the clerk of the county of New York on the 14th day of July,. 1897, upon the decision of the court rendered after a trial at the New York Special Term, as overrules the plaintiff’s demurrer to a counterclaim set up in the answer.</p>

Appeal by the plaintiff, Julius Scharmann, from an interlocutory .judgment of the Supreme Court in favor of the defendant, Frederick Schoell,- entered in the office of the clerk of the county of Flew York on the 28th day of May, 1897, upon the decision of. the court rendered after a trial at the FTew York Special Term sustaining the said defendant’s demurrer to the complaint on the ground of a defect of parties defendant, with notice of an intention to bring up for review…

<p>Appeal hy the petitioners, Augustus Olason and another, from an order of the Surrogate’s Court of Hew York county, entered •in said Surrogate’s Court on the 9th day of September, 1897, denying their motion for an accounting. .</p>

Appeal by the plaintiff, the New York City and Westchester Railway Company, from an order of the Supreme Court, made at the New York Special Term and' entered in the office of the clerk of the county of New York on the 1st day of October, 1897, denying the plaintiff’s motion for an injunction.

Appeal by the petitioners, Frederick 0. Beach, and another, from an order of the Supreme Court, made at the Hew York Special Term, bearing date the 22d day of July, 1897, and entered in the office of the clerk of the county of Hew York, denying their application for a commission to inquire as to the competency of Harriet E. Beach to manage herself or her affairs.

Application by the plaintiff,'Francis Higgins, as receiver of the North River Bank in the city of New York, for judgment upon the verdict of a jury in favor of the plaintiff directed by the court subject to the opinion of the Appellate Division, after a trial at the New York Trial Term on the 9th daiy of June, 1897,

Appeal by the defendant, F. Cordelia Farley, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of July, 1897, upon the decision of the court rendered after a trial at the New York Special Term overruling the said defendant’s demurrer to the complaint, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 11th…

Appeal by the plaintiff, William M. Hoes, as public administrator, and as administrator de bonis non of the goods, etc., of Carl Bark, deceased, from a judgment of the Supreme Cou-rt in favor of the defend ant,, entered in the office of the clerk of the' county of New York on the 30th day of June, 1897, upon the dismissal of the complaint directed by the court after-a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 30th day of…

Appeal by the plaintiff, Frederick W. Cole, from a judgment of the Supreme Court in favor of the defendant, entered in the office -of the clerk of the county of New York-on the 6th day of July, 1897, upon the decision of the court rendered after a trial at the New York Trial Term before the court without a jury;

Appeal by the defendant, The Dry Dock, East Broadway and Battery Railroad Company, from a judgment of th¿ Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of June, 1897, upon the verdict of a jury, and also from an order bearing date the 26th day of March, 1897, as amended by an order entered in said clerk’s office on the 17th day of June, 1897, denying the defendant’s motion for a new trial made upon the…

Appeal by the defendants, John F. Buck and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of May, 1897, upon the decision of the court rendered after a trial at tlfe New York Special Term overruling the defendants’ demurrer to the complaint, and also from an order entered in said clerk’s office on the 22d day of May, 1897, overruling the said demurrer, and…

<p>Will — direction for the support of a niece of the testator—■enforcement thereof.</p> <p>Where a wife, required by her husband’s will to provide for the support of his: niece, persistently refuses tó do so until an action, brought by the niece to 1 enforce such obligation, is brought to trial, the action of the wife, then finally taken in execution of such duty, will not be considered by the court to be a fair exercise of the discretionary power given to the wife in thé premises.</p> <p>What temporary change of the residence of the niece from the family of the -testator to that of her grandmother does not indicate a changed relation between her and the testator or affect the provision of the will in her favor, and what is a proper allowance to be made, as-indicated by other provisions of the will, considered.</p>

<p>Sapid transit in New York city — confirmation of the report of the Supreme 'Court commissioners — the question of city indebtedness.</p> <p>In view of the imperious necessity of improved means of rapid! transit in the city of New York, and the popular decision that it should he secured even though its accomplishment might demand a pledge of the city’s credit in its support, the Appellate Division considered that it should confirm the- report of the Supreme Court commissioners appointed to devise a plan therefor, the cost of the execution of which was established with reasonable accuracy, although such action on its part would seriously cripple the city in its power to carry on . other contemplated improvements except by means of money raised by direct taxation-—the Appellate Division not determining upon this application the question arising under section 10 of article 8 -of the State Constitution whether the total cost of the building of the proposed rapid transit road was to be deemed as incurred1 by the city at the time of making the contract, and was to be added to the indebtedness of the city of New York then existing (whether funded or contingent), increased by the indebtedness, to be assumed on January 1, 1898, of the adjacent cities and counties constituting part of the municipality embraced within the hew charter taking effect at that date.</p> <p>Nor did it decide whether various city bonds, which might be finally paid by means of assessment receipts or in other ways, might be excluded from con- ■ sideration in determining the amount of the city debt.</p> <p>iNURAHAMj J., dissented.</p> <p>It further considered that, inasmuch as the constructing contractor was required to equip- the road, the contract initiating, the work should also provide for its completion and final operation, and in view of its magnitude and the importance to the city of its prompt execution and the advances to be made by the city during the progress of the work, a bond in the sum of §15,000,000 for the faithful performance of its conditions should be required.'</p> <p>Semble, that if it should be finally decided that the limit of indebtedness imposed by the Constitution upon the city was exceeded by any contract which the commissioners might make, no liability would be imposed upon the city thereby.</p>

Appeal, -by the defendant, Abraham L. Fromme, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s officé on the 6th day of April, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the Merchants’ .National. Bank of the city of New York from an .order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of June, 1897, denying its motion for leave to complete a levy against the property of the Columbia Spinning Company.

Appeal by the defendants, Edwin W. Adams and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Yew York on the 2d day of June, 1897, upon the decision of the court rendered after a trial at the Yew York Trial Term before the court without a jury, aiid also from an order entered in said clerk’s office on the 8th day of June, 1897, denying the defendants’ motion for a new trial made upon the minutes. ■

Certiorari issued out of the Supreme Court and attested on the 3d day of August, 1896, directed to Theodore Roosevelt and others,, police commissioners, composing the board of' police commissioners of the police department of the city of New York, commanding them to certify and return to the office of ihe clerk of the county of New York all and singular their proceedings in relation to the dismissal of the relator from the police force of the city of New York.

<p>Taxation —■ a foreign corporation is taxable upon credits and bills receivable representing goods sold in the State of New York.</p> <p>Under chapter 37 of the Laws of 1855, enacting that non-resident corporations shall be assessed and taxed on all sums invested in any manner in business in the State of New York the same as if they were residents of this State, such a corporation is taxable upon credits and bills receivable due to the corporation for merchandise sold by it, in the course of the transaction of its business in the State, of New York.</p> <p>Ingraham, J., dissented.</p>

Appeal by the relator, the Henry McShane Manufacturing Company of Baltimore- City, from a judgment of the Sirpreme Court, in favor of the defendants, entered in the office of the clerk of the comity of Hew York on the 10th day of March, 1897, upon an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the. clerk of the county of Hew York on the 10th day of March, 1897, dismissing a. writ of certiorari issued to review the proceedings of…

Appeal by the relator; the Hawley Box and Lumber Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of. Hew York on the 10th day of March, 1897, upon an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 10th day of March, 1897, dismissing a writ of certiorari granted to review the proceedings of the defendants.

Certiorari issued out of the Supreme Court and attested on the 13th day of April, 1897, directed to Theodore Roosevelt and others, composing the board of police commissionei's of the police department of the city of Yew York, commanding them to certify and return to the office of-the clerk of the county of Yew York all and singular their proceedings- relating to the dismissal of the relator ■ froip the police-force of the city of Yew York.

<p>Appeal by the defendants, Howard T. Alexander and others,, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the day of October, 1897, denying their motion to strike the cause from the Special Term calendar,</p>

Appeal by the defendant, Kate M. Foster, from, a- judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk, of the county of New York on the 11th day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office ón the 12th day of March, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Jacob New, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of-April, 1897, upon the verdict of a jury; also from an order enteredin said clerk’s office on the 1st day of April, 1897, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 1st day of April, 1897, awarding the plaintiff…

<p>Appeal by Max Scheuer and Ralph Scheuer, as executors, etc., of Simon Scheuer, deceased, from an order of the Surrogate’s Court of Hew York county, entered in said Surrogate’s Court on the 13th day of August, 1897, directing an execution or executions to be issued against the said Max Scheuer and Ralph Scheuer, as executors of Simon Scheuer, deceased. ■ • •</p>

<p>Official misconduct of a director of a corporation ■— it invoices a corrupt intent.</p> <p>The official misconduct which, within the meaning of that phrase as used in section 1781 of the Code of Civil Procedure, will support an action brought thereunder to .charge the directors of "a corporation with that offense, must exceed misfeasance and amount to actual malfeasance in office.</p> <p>The mere misconception of his rights, and impropriety and unlawfulness of action, - by a director of a corporation afford no ground for convicting him of malfeasance in office, which necessarily involves a corrupt intent.</p>

<p>Appeal by the defendant, John J. Downing, from an order of the Supreme Court, made at the New York Special Term, bearing date the 18th day of October, 1897, and entered in the office of the clerk of the county of New York, awarding the plaintiff alimony and counsel fees.</p>

Appeal by the plaintiff, The New York Ice Company, from a. judgment of'the Supreme Court in favor of the defendants, entered, in the office of the clerk of the county of New York on the 18th day of March, 1897, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, the Hew England Water Works Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 11th day of Hovember, 1897, denying the plaintiff’s motion- for leave to serve a supplemental complaint.

<p>Bill of particulars—breach of a covenant to maintain a first-class theatre and, to keep it in repair — what specifications required.</p> <p>The lessors of a theatre, connected with a hotel managed by them, sued the lessee of the theatre, who had covenanted to maintain upon the premises a strictly first-class theatre, and to produce only such attractions as might properly be played in such a theatre, and, further, that the lessee should use all proper care and precaution for the preservation and protection of the personal property in the theatre, and that he should keep it and the theatre itself in repair at his own cost, alleging a breach of each of such covenants and consequent damages.</p> <p>On an application by the defendant, the lessee, for a bill of particulars, it was held that the plaintiffs should specify the play or plays which they intended to question by proof on the trial and the date of each production; the dates at which the lessors claimed that the theatre was closed in violation of the covenant ; the amount in -which the patronage of the hotel had been decreased; the amount lost through the diminution of guests; to what pecuniary extent the hotel business had suffered ; the amount claimed for the loss of its reputation and good will; how much the value of the plaintiffs’ interest therein had been impaired; and the particulars of the charge of failure to preserve the personal property and keep it and the theatre in repair.</p>

<p>Certiorari issued oiit of the Supreme Court and attested on the 15fch day of April, 1896, directed to Theodore Roosevelt and others, commissioners composing the board of police of the police department of the city of Hew York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings in regard to the dismissal of the relator from the police force of the city of New York.'</p>

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

Appeal by the plaintiff, William H. T. Hughes, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 26th day of March, 1897, upon the report of a referee dismissing his complaint upon the merits. . . The action was upon an account alleged to have been stated, between the plaintiff’s assignors, Mellor & Fenton, of Liverpool, and the defendant,, who was a merchant doing business in Texas.

Appeal by the defendant, Hugh J. Grant, as receiver of the St. Nicholas Bank of New York, from a judgment of the Supreme Court in favor-of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of October, 1897, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 14th day of October, 1897, denying the defendant’s motion for a new. trial made upon the minutes. .

<p>Appeal by the defendants, Charles B. Webster and others, from an interlocutory judgment of the Supreme Oourt in favor of the plaintiffs, entered in the office of the clerk of the county of ¡New York on the 27th day of March, 1897, upon the decision of the court rendered after a trial at the ¡New York Special Term.</p> <p>The action was brought to restrain the defendants from using upon their goods a label claimed to be an imitation of that used by the plaintiffs, and for an accounting by the defendants of the profits realized by them upon goods bearing the alleged imitation of the plaintiffs’ label.</p>

Appeal by the defendant,' Charles H. Bliss, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19 th day of October, 1897, adjudging him guilty of contempt of court.

Appeal by the plaintiff, Thomas Weiss, from an order of the . Supreme Court, made at the Hew York Special Term ¡and entered , in the-office of the-clerk of the county of Hew York'on the 15th day of Hovember, 1891, denying the plaintiff’s motion for an injunctionlite. ¡