Volume 23 — Bedell

The nature of the action and the facts, so far as material, are stated in the opinion. The referee erred in refusing to dismiss the complaint, since the action should have been brought, if at all, against the highway commissioner. (People ex rel. Everett v. Supervisors, 93 N. Y. 397 ; People ex rel.

This appeal is taken pursuant to a certificate or order of said Appellate Division that a question ■ of law is involved which ought to be reviewed by this court. The nature of the action and the facts, so far as material, are stated in the opinion. This action is absolutely barred under the express terms of the policy in suit, and defendant’s motion to dismiss upon that ground should have been granted.

<p>1. New York (City of) — Constitutionality of Acts Transferring to Board of Estimate and Apportionment Power to Grant Franchises. Chapters 629, 630 and 631 of the Laws of 1905, relating to the powers and duties of the board o£ estimate and apportionment and the board of aldermen of the city of New York, and transferring to the board of estimate and apportionment the power to grant franchises, are not unconstitutional because at the time of their passage the board of aider-men constituted the sole authority having control of the streets within the meaning of the Constitution. Assuming- this to be true, which it is not, there is no restriction upon the power of the legislature to take such authority away from one body of local authorities and to transfer it to some other city hoard or department. Such authorities have no vested right to the continuance of any public powers or duties conferred upon them, and what the legislature can confer it can transfer.</p> <p>2. Cumulative Voting in Board. The system of cumulative voting in the hoard of estimate and apportionment, authorized by the charter, does not prevent the legislature from giving to it the power to grant franchises because a minority of the individuals composing the hoard, by a combination of votes, may be able to determine a question before it; since there is no constitutional restriction upon providing for cumulative voting in such boards, it being a question of policy, not power; and under the circumstances attendant upon the organization of Greater New York as a city it would be unjust and unfair to permit each member to vote per capita.</p> <p>3. Home Rule. The statutes not assuming to appoint any one to a local or other office, but simply imposing new and additional duties upon the board of estimate and apportionment which had theretofore been performed by the board of aldermen, the so-called home rule provision of the Constitution (Art. 10, § 2) has no application.</p>

The facts, so far as material, are stated in the opinion. The Civil Service Law confers no power or authority upon the civil service commission to institute or prosecute an investigation against a public officer merely for the purpose of ascertaining and reporting that he has or has not violated an express provision of the Civil Service Law, which in terms is made a criminal offense and subjects him to a criminal prosecution. (People ex rel.

The nature of the action and the facts, so far as material, are stated in the opinion. The method provided by the charter for the collection of taxes and penalties is exclusive of common-law remedies, and the common-law action of debt, therefore, does not lie. (City of Rochester v. Gleichauf. 40 Misc.

<p>1. Corporation—Action by Single Creditor against Single Stockholder in Foreign Corporation. An action at law, by a single creditor of an insolvent Maryland corporation, against a single stockholder/ to enforce the latter’s statutory liability for double the amount of stock at its par value held by him in such corporation, is not maintainable either under the laws of Maryland (Md. L. 1904, chaps. 101, 337), or under the laws of..New York (Section 54, N. Y. Stock Corporation Law, L. 1890, chap. 564, § 57, amd. L. 1892, chap. 688; L. 1901, chap. 354).</p> <p>2. Pleading—Effect op Foreign Law Not Admitted by Demurrer. • Where a complaint contains allegations of foreign law, they aré not admitted by demurrer ; this is but a corollary of the proposition that proof of foreign law by experts though ever so clear and though uncontradicted is not conclusive, since the court must examine and, determine thie law for itself, and a demurrer has no greater effect than uncontradicted proof.</p>

<p>Will—Provision for Support of Testator's Widow—■ Right of Her Executor to Maintain Action for Construction of Sucii Will —Invalid Disposition of Portion of Fund Provided Therein for Widow’s Support, After Her Death—Residuary Legatee Entitled to Such Portion, The third clause of a holograpic will provided that the testator’s wife should have, “the use” of a specified sum, “and for her own comfort and support she may use the whole principal sum * * * and what is left at her death * * * shall he equally divided between my adopted daughter * * * if she is living, if she has children to go to them, if not to go to my nearest a kin on my side;” by a subsequent clause he gave to the widow an additional sum “on the same conditions * * * that is the use * * *; ” the only other specific legatee was his adopted daughter; he gave to his only son, “after all of the above bequests are paid, all the balance of my real and personal property.” The son and the widow were appointed administrators with the will annexed; they as such assigned and delivered to her certain securities and cash to the amount of her legacies, which she took individually and not as administratrix, accepting the securities in full satisfaction of such legacies; thereafter she executed a will containing some minor bequests and bequeathing the reMdue to her brothers; upon her death, leaving the adopted daughter and son surviving, a considerable portion of the fund bequeathed and assigned to her remained unexpended. In an action brought by her executor against all the parties interested for a judicial settlement of his accounts and for a construction of her testator’s will, Held, 1. That the widow took the fund as trustee for the remaindermen ; that by the assignment of the securities the administrators were discharged from all liability and divested of all power concerning them; that her executor having in his hands the balance of the fund, acquired the right to bring the action and to obtain the direction of the court as to its proper disposition. 2. That by the third clause of the will, the testator gave to his adopted daughter upon the death of the widow one-half of the remainder of the fund therein given to her for her use; as to the other half the clause was void for uncertainty; although the whole will indicated an intent to give it to the son, the faiiure of the testator to name him as its recipient was fatal, and the court is powerless to supply the omission; it was, therefore, undisposed of by the will and fell into the residuary estate; that the son nevertheless was entitled to it by virtue of the clause creating him the sole residuary legatee.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The Supreme Court has no jurisdiction of the'subject-matter of this action. (White v. Schloerb, 178 U. S. 542; Matter of Rockford, 10 Am. Bank. Reg. 628; Matter of Kellogg, 7 Am. Bank. Reg. 623; Matter of A. S. D. Co., 10 Am. Bank.

The facts, so far as material, are stated in the opinion. The courts have no power to review the determination of the state civil service commission in approving the classification of relator in the competitive class. (Chittenden v. Wurster, 14 App. Div. 483; 152 N. Y. 345 ; Matter of Guden, 171 N. Y. 529 ; People ex rel. Fonda v. Morton, 148 N. Y. 156; People ex rel. Kennedy v. Brady, 166 N. Y. 44; People ex rel.

The facts, so far as material, are stated in the opinion. The court had full power to review the action of the civil service commission in this proceeding. (Matter of Keiner, 148 N. Y. 219; People ex rel. Sweet v. Lyman, 157 N. Y. 368; People ex rel. Mesick v. Scannell, 63 App. Div. 246 ; Matter of Shaughnessy v. Fornes, 73 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 12, 1906, which affirmed an order of the Mew York County Surrogate’s Court assessing a transfer tax upon the real property of Joseph Stiekney, deceased, passing to his widow as devisee.</p>

Tliis action was brought to recover a balance of $208.45 alleged to be due from the defendant upon a contract to construct a drain and for extra work in connection therewith. The defendant by his answer admitted performance of the contract by the plaintiff, but denied that the balance unpaid amounted to the sum claimed. He alleged that it was but $51.35 and that he duly tendered that amount to the plaintiff before the commencement of the action.

The nature of the action and the facts, so far as material, are stated in the opinion. Where two papers are executed as duplicate wills neither can he admitted to probate without conclusive affirmative proof that it is in every respect a duplicate of the other. (Crossman v. Crossman, 95 N. Y. 149 ; Delafield v. Parish, 25 N. Y. 29; Matter of Burtis, 43 Misc.

The following facts, among others, were agreed upon: “That on or about the 16th day of January, 1884, one Michael Reidy was duly appointed watchman in the repair shops of the Fire Department of the Mayor, Aldermen and Commonalty of the City of Hew York, and up to the 23rd day of August, 1888, performed the duties of such position and received as compensation therefor the sum of $2.50 per day. “ On the said 23rd day of August, 1888, the said Reidy was appointed a Clerk at a…

The plaintiff, as assignee for the benefit of creditors, is not a purchaser for value of the stock, and cannot, therefore, defeat the equity and set-off of the defendant against the dividends sued for. (Curtis v. Leavitt, 15 N. Y. 195 ; Van Heusen v. Radcliffe, 17 N. Y. 580; Griffin v. Marquardt, 17 N. Y. 58 ; Welch v. Polley, 177 N. Y. 117; Richards v. La Tourette, 119 N. Y. 54; Lindsay v. Jackson, 2 Paige, 281; Holbrook v. A. F. Ins.

Appeal, by permission, from an order of the Appellate Division of the Supremo Court in the first judicial department, entered December 1, 1905, which reversed an interlocutory judgment of Special Term overruling a demurrer to the complaint and sustaining such demurrer. ■ The Appellate Division held that the complaint stated facts sufficient to constitute a cause of action, but that the discharged receiver of the D. G. Yuengling Brewing Company was a necessary party either as…

Mount, deceased, to probate as adjudged certain trusts created thereby to be valid and refused to determine the validity of other trusts created by the residuary clause of such will. This trust is void as suspending the absolute ownership of the personalty for a period not measured by any one life or any two lives in being at the death of the testatrix.

The nature of the action and the facts, so far as rpaterial, are stated in the opinion. The mortgage was unauthorized and is void for usury. (Roberts v. Cronk, 94 App. Div. 175 ; State v. Chambers, 93 N. C. 600 ; C. M. B. & B. Society v. Wyatt, 59 Atl. Rep. 553 ; Bank v. Alvord, 31 N. Y. 473 ; Douglas v. Kavanaugh, 90 Fed.

<p>1. Tax Law—Villages — When Village Not a Separate Tax District Within Definition of Tax Law. A village, incorporated under the Village Law (L. 1897, ch. 414), whose board of assessors has no power to assess property for state or county taxes, is not a tax district within the definition thereof contained in the Tax Law (L. 1896, ch. 908, § 2, subd. 1).</p> <p>2. Same — When Farming Land Within Village Limits Is Assessable for Village Taxes Although Remainder of Farm upon Which Owners Reside Is Outside of the Village—When Not Exempt Under Section 10 of Tax Law. Where part of a single farm, occupied and cultivated according 'to the usual course of husbandry in the neighborhood, is situated within the limits of a village, incorporated under the Village Law fL. 1897, ch. 414), the remainder of the farm,'upon which the owners reside, being outside the boundaries of the village in the township surrounding it, an assessment for village purposes upon the land situated within the limits of the village is not illegal, unauthorized and void under section 10 of the Tax Law, as in force at the time of the assessment (L. 1896, ch. 908, § 10, as amd. by L. 1898, ch. 537, and L. 1902, ch. 200), which provided that, “If a farm or lot is divided by a lino between two or more tax districts and the owner resides thereon, it shall be assessed to him in the district in which he resides,” since such village is not a tax district and such farm cannot truly be said to be divided by a line between two or more tax districts within the operation and scope of the Tax Law.</p> <p>3. Appeal—Certiorari to Review Assessment—When Objections to Assessment Cannot be Considered in Court of Appeals. Objections to the validity of an assessment not specified and presented to the board of assessors on grievance day cannot be considered by the Court of Appeals upon an appeal from an order of the Appellate Division affirming a judgment of. the Special Term vacating an assessment in a certiorari proceeding under the Tax Law.</p>

The plaintiff entered into a contract with the defendant’s testator in his lifetime by which the plaintiff agreed to per- form certain mason and carpenter work in the erection, alteration and extension of certain buildings on Broadway, in the city of New York. The contract lias been performed and the contract price fully paid. This action is brought to recover for certain alleged extra work consisting of : 1.

<p>1. Negotiable Instruments Law — Demand Notes, Bearing Interest—When Question, Whether Presented Within “Reasonable Time,” One of Law. Under the Negotiable Instruments Law (L. 1897, ch. 613), which, in effect, abrogates the former distinction between notes or bills, payable on demand and bearing interest, and those payable on demand merely, and provides, by section 131, that where the instrument “ is payable on demand, presentment must be made within a reasonable time after its issue, except that in case of a bill of exchange presentment for payment will be sufficient if made within a reasonable time after the last negotiation thereof,” and, by section 4, that “ in determining what is a reasonable time, or an unreasonable time, regard is to be'had to the nature of the instrument, the usage of trade, or business (if any) with respect to such instruments and the facts of the particular case,” the question whether a note or bill was presented within a “reasonable time” after its issue is, where the facts are ascertained and not in dispute, a question of law for the court, although the question, if the facts are unsettled and the testimony conflicting, might be a mixed one of law and fact, which the jury should decide, under the instructions of the court as to the law.</p> <p>2. Same—Pacts Reviewed and Decision That Note Was Not Presented Within “Reasonable Time” Approved. Where it appears from the undisputed facts in an action brought upon a note payable upon demand, with interest, that the indorsement was without consideration and for the maker’s accommodation; that its payment was secured by the deposit of certain securities; that notwithstanding that, some two years after the making of the note the plaintiff had complained to the indorser of its non-payment and twice, a year later, had written that the maker was in default as to the interest, no steps were taken to charge the indorser, by presentment of the note for payment and by protest for nonpayment, until more than three and a half years had elapsed, and until after the indorser had died intestate and an administratrix of his estate had been appointed, the question whether the note was presented within a reasonable time is a question of law do be determined upon such facts, and a decision that “ said note was not presented within a reasonable time after it was issued and that said plaintiff did not demand the payment thereof, or give notice of the dishonor thereof, within a reasonable time,” is correct.</p> <p>3. Pleading — Defense That Note Was Not Presented Within “Reasonable Time” Need Not Be Specially Pleaded by an Indorser. The defense that a demand note, bearing interest, was'not presented within a reasonable time after its issue need not be specially pleaded by an indorser; the burden is on the holder of a note, when seeking to charge an indorser, to prove due and timely presentment and the giving of notice to the indorser of its dishonor, since the obligation of the indorser is conditional upon all the steps having been taken by the holder which the statute has prescribed as to presentment and as to notice of non-payment.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 23, 1906, which affirmed an interlocutory judgment of Special Term sustaining demurrers to the complaint. The following question was certified, “ Does the third amended oomplaint state facts sufficient to constitute a cause of action ? ” The nature of the action and the facts, so far as material, are stated in the opinion.

, In May, 1899, John P. Worsted was appointed a bath attendant in the borough of Manhattan, Hew York, at ah annual salary of $900, upon the certification of his name to the appointing officer as at the head of the eligible list of bath attendants. In July, 1900, he was transferred as a bath attendant from the borough of Manhattan to the borough of Brooklyn.

The facts, so far as material, are stated in the opinion. The statute is intended to prevent the employer from coercing his employee not to join or to quit a lawful labor organization, and the legislature has power to declare such action an offense.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 26,1904, affirming a judgment in favor of defendants entered upon a verdict and an order denying a motion for a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The trial judge erred in excluding certain entries made by Robert Bonner, concededly in his handwriting, in diaries kept by him, all referring to plaintiff, which were offered in evidence by plaintiff as-types of many other similar entries contained therein, made from time to time, during almost the entire period of the contract alleged in the complaint. (Starkie on Ev. 467, 468; 1 Greenl. on Ev. [13th ed.] § 120; Platner v. Plainer, 78 N. Y. 99 ; 1 Greenl. on Ev. [16th ed.] § 108; Stephen’s Dig. [Beers’ ed.] art. 3, pp. 14, 17, 18; Stirling v. Buckingham, 46 Conn. 464; Hurlburt v. Hurlburt, 128 N. Y. 420; Ostrander v. Snyder, 75 Hun, 378; Polhamus v. Moser, 7 Rob. 489; Murphy v. Boker, 3 Rob. 1; Scholey v. Mumford, 64 N. Y. 521; Rumsey v. Cook, 9 Hun, 129; Hates v. Ball, 72 N. Y. 418.) The trial judge erred in charging the jury that, in order to find a verdict for the plaintiff, they must be satisfied that he has established his claim by clear, convincing and conclusive proof, instead of charging the true rule, as to the degree of proof required in civil actions at law, triable by a court and a jury, viz., that, to determine the existence of any act or question in issue in favor of the party upon whom the burden of proof rests, or to find a verdict for the plaintiff, they need only be satisfied that such fact, question or the plaintiff’s case has been established by a fair preponderance of evidence. (White v. Benjamin, 138 N. Y. 623; Rosenstein v. Fox, 50 N. Y. 354; A. C. S. Bank v. McCarty, 149 N. Y. 71; Wilson v. Parshall, 129 N. Y. 223; Shakespeare v. Markham, 10 Hun, 311; Gall v. Gall, 29 Abb. [N. C.] 19 ; Hamlin v. Stevens, 177 N. Y. 39; Winne v. Winne, 166 N. Y. 263; Pom. on Spec. Perf. §§ 145, 159; Stanton v. Miller, 58 N. Y. 192; Mahaney v. Carr, 175 N. Y. 461.)</p> <p>The court correctly charged the jury that, in order to find a verdict for the plaintiff, they must be satisfied that he has established his claim by “ clear, convincing and conclusive proof.” (Rosseau v. Rouss, 180 N. Y. 116; Lucas v. Boss, 110 App. Div. 220 ; Ide v. Brown, 178 N. Y. 26; Garrison v. Akin, 2 Barb. 25 ; M. C. Works v. Schad, 38 Hun, 71; Williams v. C. R. R. Co., 93 App. Div. 587; Prater v. Frazier, 11 Ark. 219; Vaughn v. Hann, 6 B. Mon. 338 ; Haven v. Markstrum, 67 Wis. 193.) The extracts from the diaries of Robert Bonner offered in evidence on behalf of the plaintiff were properly excluded. (Ward v. Hasbrouck, 1 69 N. Y. 420; Matter of Gallagher, 153 N. Y. 368; Waldele v. N. Y. C. & H. R. R. R. Co., 95 N. Y. 274; Tilson v. Terwilliger, 56 N. Y. 273 ; Moore v. Meacham, 10 N. Y. 207; Matter of Taylor, 9 Paige, 610; Davis v. Gallagher, 124 N. Y. 487; Simons v. Steele, 82 App. Div. 202; Laidlaw v. Sage, 158 N. Y. 94; Johnson v. N. Y. C. & H. R. R. R. Co., 173 N. Y. 83.)</p>

The facts, so far as material, are stated in the opinion. The act is unconstitutional because it is in violation of article 3, section 20, of the Constitution of the State of Flew York. (People ex rel.

The facts, so far as material, are stated in the opinion. To the extent that Johanna B. Widmayer imposed conditions on the devise to Addie Woodhouse, her exercise of the power was void. (Alexander v. Alexander, 2 Ves. 640; Sadler v. Pratt, 6 Simon, 632; Townsend v. Townsend, 27 Misc. Rep. 268; Austin v. Oakes, 117 N. Y. 577; Shannon v. Pichel, 2 N. Y. S. R. 160; Hillen v. Iselin, 144 N. Y. 365; Stuyvesant v. Neil, 67 How.

The facts, so far as material, are stated in the opinion. The judgment having been entered by agreement, and not as directed by the trial court, is not appealable. (Peterson v. Swan, 119 N. Y. 662; Finch v. Carpenter, 29 Hun, 268; Dawson v. Parsons, 74 Hun, 221; Bolles v. Cantor, 6 App. Div. 365 ; Brown v. Brown, 64 App.

This action was commenced on the 22nd of July, 1901, by an abutting owner on the west side of Sixth avenue in the city of Hew York, to recover damages from the defendants, as the owners and operators of an elevated railroad in said avenue, for an unlawful interference with his easements of light, air and access, and also to restrain the defendants from further maintaining or operating said road.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendants have acquired a prescriptive title to so much of the easements appurtenant to plaintiffs’ lot as has been subject to their adverse user during the prescriptive period.

The facts, so far as material, are stated in the opinion. The reversal of the judgment in favor of plaintiffs, upon the second cause of action, was error. Plaintiffs are entitled to recover with interest the proceeds of their check for $5,000 paid to the treasurer of Delaware county. (Sims v. Trust Co., 103 N. Y. 472; Gerard v. McCormick, 130 N. Y. 261; Cohnfield v. Tanenbaum, 176 N. Y. 126 ; Bank of New York v. A. D. & T. Co., 143 N. Y. 559; Casey v. Pilkington, 83 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 9, 1906, which dismissed an appeal from an order of Special Term denying a.motion to confirm a partial report of the commissioners of estimate in the above-entitled proceeding. The facts, so far as material, and the question certified are stated in the opinion.

Aiteal from a judgment of the Appellate -Division of the Supreme Court in the first judicial department, entered January 29, 1906, affirming a nominal judgment in favor of plaintiff entered upon the report of a referee. The nature of the action and the facts, so far as material, are stated in. the opinion.

The action is brought for equitable relief, and judgment is demanded that the defendant be perpetually enjoined and restrained from So- maintaining and using the bridge over the East river from the borough of Manhattan to the borough of Brooklyn, New York, as to cause and allow or permit water, splinters or debris or matter of any kind to fall upon plaintiffs’ real property except on the condition that it purchase and pay for plaintiffs’ property, or if the parties cannot…

This action w'as brought to compel the reinstatement as valid liens of two mortgages executed by the defendant Michel, which were procured to be satisfied of record by means of forged and fraudulent satisfaction pieces, executed by and at the instance of the defendant Carl Coenen, and to foreclose such mortgages.

The controversy arose over the title to land on Jefferson avenue in the borough of Brooklyn through the claim of the defendant that he was not obliged to perform his contract of purchase because the title was not marketable.

Denison, deceased. The facts, so far as material, are stated in the opinion. The whole of the residuary clause of the will is void because it attempts to create a perpetual trust, and because it suspends the absolute power of alienation of real estate and the absolute ownership of personal property for more than two lives in being at the death of the testator, and until there shall be a complete failure of descendants to testator’s brother and to testator’s sister.

This action was commenced on the 23d of June, 1903, to restrain the foreclosure of a mortgage by advertisement under the statute. The mortgage, collateral to a bond of even date, was given by,Alonzo House to Cynthia Gilbert on the 13th of October, 1870, to secure the payment of a debt which he owed her, then amounting to the sum of $400, within four years from date.

<p>1. ReUmgencb! —- Master and Servant — Injury to Servant by Üalb op Soappodd — When Charge Not Erroneous. Wlierc, upon the trial of an action to recover for injuries caused by the breaking of a scaffold, the material of which was defective, upon which the plaintiff was standing while at work, the court charged that, “ Now, about the only question outside of the plaintiff’s own negligence is, was the defendant negligent in furnishing and supplying the plaintiff with a scaffold which was unsafe and improper and unsuitable, and did not afford protection to life or limb ? The defendants are absolutely commanded by the statute to supply workmen with this sort of apparatus; it is their duty to do it. They have no excuses to offer, and there are none which they can invoke,” the use of the words “ they have no excuses to offer and there are none which they can invoke” docs not furnish sufficient grounds for reversal, where, under a fair construction thereof with the context, such words did not refer to tire duty and liability of the defendants under the statute, hut meant that no excuse had been offered in the evidence by the defendants and that consequently there was none which they could then invoke before the jury.</p> <p>2. Same — When Rbpusal to Charge as Requested Is Not Erroneous. A refusal to charge, as requested, “that if the master directed the plaintiff to construct it (the scaffold) the master would not he responsible” is not erroneous where it does not appear from the evidence whether the failure to discover that the planks, from which the scaffold was constructed, were defective, ivas the fault of the plaintiff, if ordered to construct the scaffold, or whether it was the negligence of the defendant in furnishing planks which, unknown to the plaintiff, were defective and unsafe.</p>

On July 23, 1902, JohnH. Wallace made his last will by which he bequeathed to his wife the sum of $10,000 in pui’suance of an ante-nuptial agreement between the parties, to certain other legatees sums outright aggregating $32,000, provided for annuities to seven persons during their respectively lives and gave the remainder of his estate to Washington and Jefferson College, located at Washington, in the state of Penn-j sylvania.

The nature of the action and the facts, so far as material, are stated in the opinion. By the mutual request for the direction of a verdict and by plaintiff’s failure to ask to go to a jury the trial court was clothed with full power to decide the facts. All facts and inferences necessary to support the findings of the trial court, which it fairly derived from the proof, must be deemed established in defendant’s favor.

In no event was the plaintiff entitled to recover anything in this action more than the reasonable value of his services rendered to the defendant Nathan in the suit he instituted -for Nathan against the Brooklyn Heights Railroad Company, which was settled. (Rogers v. P. Inst. of Bklyn., 87 App. Div. 81; Yuengling v. Betz, 58 App. Div. 8; Matter of Mitchell, 57 App. Div. 22; Badger v. Majer, 2 Misc.

903, which dismissed an appeal from an order of the court at a Trial Term adjudging the appellant herein guilty of criminal contempt, and affirmed an order of Special Term, denying a motion to vacate and set aside said order.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 19, 1905, which reversed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial, and granted a new trial in an action to recover for the alleged negligent killing of plaintiff’s intestate.</p>

' ' Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 9, 1905, modifying, and affirming as modified, a judgment of Special Term in an action to compel the specific performance of a contract for the sale of certain real property.

<p>Motion for re-argument. (See 184 N. Y. 36.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 9, 1906, which affirmed an order of Special Term restoring the above-entitled case to the Special Term calendar.

<p>Motion to amend remittitur. (See 185 N. Y. 568.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 14, 1906, which affirmed an order of' the New York County Surrogate’s Court directing the appellant herein to file his account as executor of Solomon W. Ashheim, deceased. The following questions were certified: “First.