Volume 23 — New York Supplement

<p>Chattel Mortgages—Recitals as to Residence—Estoppel.</p> <p>Under Laws 1833, c. 279, providing that every chattel mortgage shall be filed in the city where che mortgagor shall reside at the time of the execution thereof, such filing is essential to the validity of the mortgage; and a recital in the mortgage as to the residence of the mortgagor will not estop a bona fide purchaser of the mortgaged chattels to show that such place was not the residence of the mortgagor.</p>

<p>Appeal from trial term.</p> <p>Action by Henry Recka against the Ocean Steamship Company of Savannah for personal injuries alleged to have been sustained through defendant’s negligence while plaintiff was engaged in his duty as defendant’s servant. From a judgment entered on a verdict of $1,193.98 in plaintiff’s favor, defendant appeals.</p>

<p>Costs—-New Taxation—Modification of Judgment.</p> <p>Code Civil Proc. § 3262, declares that all costs, except interlocutory costs, and those awarded in special proceedings, must be taxed by the clerk. Section 3264 authorizes the court, in its discretion, on application of a party interested, to direct a retaxation of costs at any time. Section 3265 allows the court to review a taxation or retaxation of costs on motion for a new taxation, and gives an order made on such a motion, which allows or disallows any item objected to before the taxing officer, the effect of a new taxation. Held, that whether a new taxation requires the modification of a judgment previously entered cannot be considered unless the record for review shows a motion for such taxation, or that the taxation was directed, or the former taxation set aside.</p>

<p>Appeal from second district court.</p> <p>Summary proceedings by the Manhattan Life Insurance Company, landlord, against Charles A. Gosford, tenant, to recover the possession of land, under Code Civil Proc. § 2231. From a final order in favor of the landlord, the tenant appeals.</p>

<p>1. Estoppel—Fraud—Contract op Sale.</p> <p>One party to a contract is not estopped from asserting that the inducement to enter therein came from fraudulent representations of the other party, though the contract contains a provision expressly to the effect that there have not been any representations whatever made by such other party.</p> <p>2. Sale—Op Business—Concealment.</p> <p>The sale of a business is vitiated by suppression of the books of account, and denial of their existence.</p>

. Action by Paul Zunz against James H. Heroy and another for an accounting for the sales of merchandise consigned by plaintiff to defendants. From a final judgment in favor of plaintiff, defendants appeal.

Action by John C. McQuhae against Samuel Bey to recover for legal services rendered defendant’s wife by plaintiff’s assignor. From a judgment of the general term of the city court (22 N. Y. Supp. 175) reversing a judgment for plaintiff, he appeals.

Action by Jacob B. Tollman against Ferdinand P. Earle to recover the rents of rooms in an apartment house. A judgment was entered on a verdict in favor of plaintiff, and defendant appeals.

Action by Andrew O’Neill against the Third Avenue Railroad Company for damages caused by a collision between plaintiff’s horse and cart and defendant’s street car. There was a judgment for plaintiff, and defendant appeals.

Action by James King against J. William Kaiser, Jr., to recover rents of plaintiff’s real estate collected by defendant. Defendant had been employed by the husband of plaintiff’s grantor to collect the rents before the conveyance to plaintiff, and afterwards accepted the agency from plaintiff to collect the rents of the same premises. There was a judgment for plaintiff, and defendant appeals.

<p>Action by Fannie M. Moses against the Central Park, North & East River Railroad Company. Defendant moves to set aside a verdict in plaintiff’s favor on the ground that it is a quotient verdict.</p>

Action by Rebecca Babbitt against David S. Brown and Delaplaine Brown, doing business as copartners under the firm name of David S. Brown & Co., and George Punchard and George H. Punchard, doing business as copartners under the firm name of George Punchard & Son, to enjoin the alleged infringement of a trade-mark. Defendants obtained judgment. Plaintiff appeals.

Action by John Turney against Henry M. Van Gelder, Charles Van Gelder, and Henry J. Newton, as assignee for the benefit of creditors of Van Gelder Bros., to have the assignment set aside for fraud. From a judgment for defendants, dismissing the complaint, plaintiff appeals.

Petition by the Niagara Falls Hydraulic Power & Manufacturing Company for the change of the proposed route of the Niagara Falls & Lewiston Railroad Company. From the determination of the commissioners appointed under Laws 1890, c. 565, as amended by Laws 1892, c. 676, to examine the proposed route and the alterations proposed by petitioner, the petitioner appeals.

Action by Alpha Roberts against Alanson Derby for the reformation of a written contract, and its enforcement as reformed. From a judgment in plaintiff’s favor, defendant appeals.

Action by Simon Paltrovitch against the Phoenix Insurance Company of Hartford, Conn. From a judgment in favor of the plaintiff, entered February 25, 1892, on the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the court, defendant appeals.

Action by William J. Pell and another against Mary Ann Folger and others. From an interlocutory judgment overruling their separate demurrers to the complaint, defendants Mary Ann Folger and Emily Grant appeal.

Action by Alfred Willoughby and. another against the Fredonia National Bank for false representations. From a judgment entered in plaintiffs’ favor on the report of a referee, defendant appeals.

Action by Louise Meise against John H. Doscher and another. From a judgment entered on an order severing the action, and directing judgment for an amount admitted to be due in the answer, defendants appeal.

Action of ejectment by Josephine F. Glason against Elizabeth S. Baldwin. From a judgment entered on the verdict of a jury directed by the court in favor of plaintiff, defendant appeals.

Action by Patrick J. Murphy against Mary Naughton, individually and as administratrix, for the funeral expenses of her husband. From a judgment sustaining demurrer to plaintiff’s complaint, plaintiff appeals. Modified.

Action by Francis H. Weeks and Henry W. De Forest, as executors of Elizabeth S. Maitland, against Frederick B. Esler, the president of the Electric Power Company, for the amount of two promissory notes which defendant had indorsed and delivered to the United Electric Traction Company, which, in turn, had sold them to Elizabeth S. Maitland.

<p>J. Toet—When Action Lies—Negligent Performance of Contract.</p> <p>Where defendant contracts to dig a ditch for the purpose of draining plaintiff’s land, and so negligently performs the work that, instead of .carrying the water off, the drain collects water, and discharges it on ¡plaintiff’s land, defendant is liable to an action in tort for damages to •the land, sustained by his negligence.</p> <p>2. Measure of Damages—Negligent Performance of Work.</p> <p>Defendant, a highway commissioner, agreed to extend a ditch in a highway so as to carry off surface water from plaintiff’s land, but he did the work so negligently that water was" collected and discharged on the land. He was notified of the defect, but refused to remedy it, and it so remained for several years. The part of the highway in which it was agreed to extend the ditch was not on plaintiff’s land. Held, that the damages caused by defendant's negligence would not be limited to the cost of remedying the defect, since plaintiff, in order to do that work, would have been obliged to enter on the land of another, which he had no right to do, but which defendant vas authorized to do, as commissioner of highways.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Michael H. Haffey against Sarah Lynch for the specific performance of a contract to sell land, or for damages. Judgment was entered, dismissing the complaint, and plaintiff appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Jeanie E. Haddock against George Steel to wind up a firm alleged to consist of plaintiff and defendant. From an order continuing an injunction, pendente lite, restraining defendant from interfering with the firm assets, defendant appeals.</p>

Action by Newton E. Whiteside and others against the Noyac Cottage Association to remove assessments made on lots of plaintiffs by the association as a cloud on their titles, and to enjoin defendant from forfeiting plaintiffs’ rights as members of the association. From a judgment dismissing the complaint and vacating preliminary injunction, and from an order denying a motion to set aside the judgment and. to strike out the words “on the merits,” plaintiffs appeal.

Petition by Hannah M. Stilwell, a devisee under the will of Elizabeth Stilwell, deceased, for distribution of the proceeds of the real estate of such decedent. Frances Dixon, sole heir of said deceased, appeared, and objected to the proceedings.

Action by. Therese Murphy, as administratrix, etc., of Patrick Murphy, deceased, against Frank K'. Hays and William H. Hays, to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of defendants. Judgment was entered for plaintiff on a verdict of $5,000 rendered in her favor, and defendants appeal.

Action by Michael Edésheimer and another against Amos Quackenbush and another for breach of a covenant in a lease.' Judgment was entered dismissing the complaint, and plaintiffs appeal.

Action by John Cahill, as executor of the will of Elizabeth Broderick, deceased, against Joseph H. Brennan and others to obtain the judicial construction of such will and codicils. From the judgment entered, Brennan appeals. Modified.

, of John H. Rainey, deceased, against the New York Central & Hudson River Railroad Company, for the killing of plaintiff’s intestate. From a judgment entered on a verdict of $5,000 in plaintiff’s favor, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Action by William E. Wamsley against H. L. Horton & Company, Limited, a foreign corporation, on contract. Defendant moved to set aside service of summons on the ground that the person served was not an officer of the corporation, and, from an order directing a reference to determine disputed questions of fact arising on such motion, defendant appeals.

Proceeding for an accounting by Emily A. Smith as trustee under the will of Edmund A. Smith, deceased. From an order directing that Edmund D. Murphy, as executor of the will of Elsie S. Murphy, deceased, be made a party to the proceeding, and that Eugene H. Pomeroy be appointed guardian ad litem of the infant Elsie J. Murphy, on said accounting, and be made a party thereto, Emily A. Smith appeals. Edmund D..

<p>Appeal from circuit court, New York county.</p> <p>Action by Arthur J. Connelly against the Manhattan Railway Company for personal injuries. Judgment for plaintiff. Defendant appeals.</p>

Action by Walter Carter, as executor,- etc., of John Spaulding, against the Board of Education of the Presbyterian Church of the United States of America and others; legatees, and Abel Spaulding and others, next of kin, for the construction of the will of plaintiff’s testator. From a judgment holding certain legacies void, some of the defendants, legatees under the will, appeal. Modified.

Action by Jacob 0. Schuyler against Hamilton Busbey and Leslie 0. Bruce for libel. From a judgment for plaintiff, entered on verdict for $2,500, defendants appeal.

Action by Percival Knauth, Friederich Nachod, Alphons Jacobson, and Octavio Knauth, against Adolph Heller and others, to recover $1,994.43, the balance of a loan of $7,000, alleged to have been made by plaintiffs to defendants through their resident agent. From an order denying leave to serve an amended answer, defendants appeal.

Certiorari by the people of the state of New York against Joseph B. Carr, secretary of state, and others, constituting a contracting board, to review the action of defendants in making a contract. Judgment for defendants.

<p>Contributory Negligence—Dismissal of Complaint.</p> <p>Where a complaint for injuries caused by the fall of a ceiling in a house leased to plaintiff by defendant states that plaintiff was aware of the defective condition of the premises, but nevertheless moved into and continued to occupy them until the accident, it is properly dismissed, as showing contributory negligence.</p>

<p>Appeal from special term.</p> <p>Action by Adolph Filer against Tobias Korn. From an order requiring payment of costs on discontinuing the action, plaintiff appeals.</p>

<p>Subetyship—Sale of Business—Assumption of Debts.</p> <p>One who purchases a business, agreeing to assume as part of the consideration the debts of the sellers, becomes not a surety or guarantor as to-such debts, but principal.</p>

Action by Washington Bulldey against Charles H. Moses and others, principals and sureties on a bond given by defendants to discharge a mechanic’s lien. The sureties move, to dismiss the ■complaint on the ground that plaintiff should exhaust his. remedy ■against the principals before proceeding against the sureties. Laws 1885, c. 342, (Mechanic’s Lien Law,) § 24, subd. 6, under which the bond was given, provides as follows:. “Sec. 24.

Summary proceedings to recover possession of land occupied by defendant for the purposes of a quarry. Judgment for plaintiff.

<p>Appeal from justice of the peace.</p> <p>Action by Matthews against Smith’s Express Company for trespass to personal property. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Justices oe the Peace—Time eor Appearance—Adjourned Day.</p> <p>The rule requiring justices of the peace to wait one hour before proceeding to trial, unless the parties sooner appear, applies to an adjourned day as well as to the return day of the summons.</p>

<p>Proceedings for the settlement of the account of the executor of the will of John Hildebrand, deceased.</p>

Exceptions from jury term. Action by Jesse 0. Bennett against John J. Egan and Daniel Hallecy to recover commissions. A verdict was directed for plaintiff, and defendants’ exceptions were ordered to be heard at general term in the first instance. Exceptions sustained.

Action by Henry Steers and another against James H. Laird to recover the sum of $359 and interest as damages for the failure of defendant to complete a contract for the purchase of certain real estate owned by plaintiffs. From a judgment dismissing the complaint, plaintiffs appeal.

Proceedings in mandamus by the people of the state of New York, on the relation of Charles F. Allen, against Thomas E. Murray, as justice of the district court of the city of New York for the eleventh judicial district, to compel him to enter the proper order and issue the proper warrant in summary proceedings for the possession of leased premises. Peremptory mandamus granted.

Action for personal injuries by Clara J. Butler against the Manhattan Railway Company. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Minnie Gerber and others against the Metropolitan Elevated Railroad Company and others to recover damages to easements. From a judgment for plaintiffs, defendants appeal.

Case submitted on agreed statement. Case agreed upon in a controversy by Frederick P. Forster and Henry A. Forster against Richard M. Winfield, submitted without action, pursuant to Code Civil Proc. § 1279.

Action by Mary L. Trippe, as administratrix, etc., against the Provident Fund Society on an insurance policy. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Henry Goldberger and others against the Manhattan Railway Company. Referees were appointed to try the issues, and plaintiffs moved for the removal of one of them. From an order denying the motion, plaintiffs appeal.

Action by Mary Day against the New York Elevated Railroad Company and others to enjoin defendants from maintaining an elevated railway in front of plaintiff’s premises, or to recover the damages to such premises by the maintenance of such road. From a judgment for plaintiff, defendants appeal.

Action by Mary Spencer against the Citizens’ Mutual Life Insurance Association on an insurance policy. From a judgment for plaintiff entered on a verdict, and from an order denying a motion for a new trial, defendant appeals.

Action by Adolpheus E. Kinnear against Robert S. Powell and others to recover damages for breach of a contract authorizing defendants to charter plaintiff’s vessel to shippers at certain rates. From a judgment dismissing the complaint, plaintiff appeals.

Action by Emma Reiner against Robert Owen Jones for rent. From an order made at special term, denying motion for bill of particulars of defendant’s counterclaim, plaintiff appeals. Modified.

<p>Appeal from special term.</p> <p>Action by Andrea B. Pensa against Teresa Pensa. Motion by defendant to compel plaintiff to accept notice of appeal denied. Defendant appeals.</p>

<p>Appeal from special term.</p> <p>Action by Charles S. Hine against the New York Elevated Bail-road Company and others. Motion by defendants to be relieved from certain stipulations. Denied. Defendants appeal.</p>

Action for an admeasurement of dower by Florice Von Ax Halsted against Jacob H. Halsted, James M. Halsted, Cornelia R. Little, Mary M. Halsted, and Anna B. Halsted, heirs of Jacob Halsted, deceased, and against Jacob H. Halsted, James M. Halsted, and Jacob H. Purdy, as executors, etc., of deceased, and the New York Realty Company and Walter Lawrence. Defendants moved for an inspection of certain letters written to plaintiff by decedent, and in her possession.

Action by Howard A. Haven and another against Samuel G-. Meteer and another. Plaintiffs did not appear on the day set for trial, and on motion of defendants the complaint was dismissed. An order was entered opening the default on condition that plaiutiffs pay costs, and plaintiffs appeal.

Action by Edithe W. Austin against the Long Island Railroad Company to recover damages for the death of plaintiff’s husband. Plaintiff had judgment. Defendant appeals.

Action by Vernon Travis against Edward L. Gallon to recover for work, labor, and services. From a judgment for plaintiff entered on a verdict, and from an order denying a motion for a new trial, defendant appeals.

Proceeding by the New York, New Haven & Hartford Railroad Company, a foreign corporation, to condemn the lands of Henry Welsh and Margaretta Welsh for railroad purposes. From an order appointing commissioners to condemn the land, defendants appeal.

Action by Charles A. Silliman against the Albany & Troy Steamboat Company, Limited, to recover commissions for the sale of a steam ferryboat. From a judgment for plaintiff entered on a verdict, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Action by George Morgan against the New York Central & Hudson River Railroad Company to recover damages for an alleged assault and battery committed by one of defendant’s officers. From a judgment for plaintiff, entered on a verdict, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Action by Eugene Ham against the Newburg, Dutchess & Connecticut Railroad Company to recover damages for injuries to plaintiff’s horse, caused by his falling off a bridge over a stream.used as a cattle guard at a highway crossing. From a judgment for plaintiff, entered on the findings of the court, defendant appeals.

<p>Appeal from circuit court, Orange county.</p> <p>Action by Augustus Knox against the New York, Lake Erie & Western Bailroad Company. Judgment dismissing the complaint. Plaintiff appeals.</p>

Action by William F. Corwith against Lawrence Barry and Sarah Barry, his wife, and Patrick F. Craddock, to foreclose a mortgage. From an order setting aside a sale of the mortgaged premises to James P. Sloane, and directing a resale, the latter appeals.

Action by Anna T. Geyer against Edward L. Snyder and Arthur Hurst, as executors of Samuel Engs, deceased, and others, to set aside a sale of their testator’s estate to themselves, and to annul plaintiff’s release given for her portion of the proceeds of such sale. From a judgment for defendants, plaintiff appeals.

<p>Damages--Assault and Battery.</p> <p>A. verdict for $570 as damages in an action for assault will not be interfered with on appeal, where the evidence establishes an aggravated case, and plaintiff’s injuries are very severe.</p>

<p>Negotiable Instruments—Evidence—Payment.</p> <p>In an action by an administratrix on a note payable to decedent, it appeared that, after the note was given, defendant made payments to,decedent, aggregating more than the amount of the note. When the last payment was made, decedent applied part of it on the note, and gave defendant a receipt acknowledging- such sum, and stating that he had indorsed it on the note. There was evidence that there were previous transactions between them, on which the sums paid could have been applied. Sold, that the finding of the referee that the note was unpaid was supported by the evidence.</p>

<p>Action by Clara E. Boone against the Homestead Loan Association to have a mortgage canceled of record. Judgment for plaintiff.</p>

Action by Eliza Mahaney against the Mutual Reserve Fund Life Association. Plaintiff obtained judgment. Defendant appeals.

<p>Appeal from special term, Onondaga county.</p> <p>Action by Ann E. Barton against Patrick Lynch- and John Moore. Defendants obtained judgment. Plaintiff appeals.</p>

Action by Philip Abraham, as a taxpayer, against Theodore W. Meyers, comptroller of the city of ¡New York, and others, to enjoin the sale of the franchise of the Houston, West Street & I'avonia Ferry Railroad Company. • Plaintiff moves for an injunction pendente lite.

Action by Samuel Abraham against Theodore W. Meyers and others to restrain the sale of the franchise of the Houston, West Street & Pavonia Ferry Railroad Company, on which plaintiff’s property abuts. Plaintiff moves for an injunction pendente lite.

Action by James H. Phelps against William H. Delmore. Plaintiff obtained judgment. Defendant appeals. The action was for the conversion of a quantity of wheat and oats in the straw, raised bj- one Owens upon the farm of plaintiff in the year 1886; also of a half interest in two milk wagons and some other chattels; also of a third interest in a quantity of oats in the straw, raised upon the farm of one' Pierce.

Action by the London & Lancashire Fire Insurance Company against the Borne, Watertown'& Ogdensburgh Railroad Company. From a judgment entered on the verdict of a jury in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the trial judge, defendant appeals.

Action by Georgie Petrie, by G. Harrison Smith, her guardian ad litem, against Frederick Williams and Thomas H. Breen. From a judgment entered on a verdict in favor of plaintiff, and from two orders denying their motions for new trials made separately by defendants, on the minutes of the trial judge, they appeal. Affirmed as to defendant Breen. Reversed as to defendant Williams. .

<p>Criminal Law—Appeal—Presumption—Voluntary Confessions.</p> <p>Where the only question Is whether a defendant has confessed to crime voluntarily or under the influence of fear, and the verdict is “guilty,” it must be assumed that the jury found the confession to have been voluntary.</p>

<p>Case submitted on agreed statement.</p> <p>Submission of a controversy without action by William Buchanan against Noah Tebbetts to obtain a judgment compelling defendant to specifically perform a contract under which he agreed to purchase land of plaintiff. Judgment for plaintiff.</p>

<p>Defective Highway—Action fob Personal Injuries—Evidence.</p> <p>In an action against a town for personal injuries, where there is evidence that at a railroad crossing a large hole in the highway was unguarded, and had existed for a long time, and that plaintiff’s horse became frightened at a car standing on the track, and jumped into the hole, severely injuring plaintiff, a verdict for plaintiff will be affirmed.</p>

• Action by the New York Rubber Company against John Rothery and William Rothery to recover damages for the alleged diversion of the waters of a natural stream. From a judgment for defendants, entered on a verdict, and from an order denying a motion for a new trial, plaintiff appeals.

Action, by Jeremiah Eighmie against Edgar B. Taylor, as administrator. From a judgment for plaintiff, entered on the verdict of a jury, and from an order denying the defendant’s motion for a new trial, made on a case and exceptions, defendant appeals. On December 81, 1872, the defendant’s intestate sold to the plaintiff an interest in certain oil' wells situated in Pennsylvania.

• Appeal from special term, Kings county. Action by John T. Barnard, as temporary administrator of Ann E. Crouse, deceased, against John F. Gantz and others. From an order directing an insertion to be made in the printed case, defendants appeal.

<p>Appeal from Rockland county court.</p> <p>Proceeding by Emily S. Barry against Daniel T. Smith to remove him from possession of lands. Petitioner had judgment, (23 N. Y. Supp. 129,) and defendant appeals.</p>

Action by Henry E. Brundage against Ruth M. McCormick for commission on sale of real estate. Judgment was rendered for plaintiff, and defendant appeals.

<p>1. Sewers—Petition for—Power to Construct.</p> <p>Laws 1889, c. 375, as amended by Laws 1891, c. 316, specifies two methods in which authority may be obtained by a board of village commissioners to construct sewers,—one, by special election, to determine whether sewers shall be constructed according to a general system proposed by the board; and the other as contained in section 8, which provides that whenever a petition for the construction of a sewer, to be paid for by the land specially benefited, is presented, signed by the owners of at least 500 lineal feet of land on any street through which a sewer is projected in the system, the board shall give notice of a time and place when they will hear persons interested for and against the construction of such portion of the system, and if, after hearing, the board shall determine to construct such portion, it shall proceed to enter into contracts therefor. Eelá, that the board cannot, on being asked to construct a sewer in a certain street, go beyond the prayer of the petition, and extend the sewer into other streets.</p> <p>2. Same—Payment of Expenses.</p> <p>Section 10 declaring that the board, in order to provide funds for the expenses authorized by the act, and the construction of such system, may issue certificates of indebtedness, applies only to the construction of the general system, and not to a sewer constructed under section 8, and which, according thereto, must be assessed to the property benefited.</p>

<p>Dower—Land Conveyed before Marriage.</p> <p>A deed, made by a testator to his sons by a former marriage, previous to his marriage with plaintiff, will not be set aside, and she be allowed dower in the land, in the absence of fraud against her.</p>

Action by Philip A. Dauf> against the Yonkers Railroad Company to recover for personal injuries sustained through defendant’s alleged negligence. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Mary F. Daly against the Alexander Smith & Sons Carpet Company for personal injuries. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

Action by Joseph Bafolovitz against the American Tobacco Company. Defendant demurs to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. Demurrer sustained.

Action by Brandt against Radley and others on a bond given under Laws 1885, c. 342, § 24, subd. 6, to discharge a mechanic’s lien. Defendants demur to the complaint.

Proceeding by J. 0. Hampton to compel the general guardian of Bertha Stoehr, a minor, to pay a claim for services rendered, as guardian ad litem, in litigation concerning the minor’s estate.

<p>Proceedings for the judicial settlement of accounts of the trustees under the will of Henry Bull, deceased. The trustees, who were the executors of the will, were directed to hold 40 shares of the stock of the Quassaic Bank, and 5 shares of the stock of the Middletown Bank, for the benefit of testator’s daughter Catherine Ann for life. An assessment having been made on the stock of the last-named bank, which failed after testator’s death, the receiver seeks to compel the trustees to pay the assessment.</p>

Action by the Worthington Company and others against the Pfister Book-Binding Company and others. From a judgment for plaintiffs, defendants appeal.

Certiorari on the relation of William G. Lyons against Nathan Strauss and others, park commissioners of the park department of the city of New York, to review «the judgment of respondents dismissing relator from the police force of said department.

<p>Appeal from special term.</p> <p>Action for an injunction by Peter De Lacy against Albert J. Adams. From an order granting an injunction pending the action, defendant appeals.</p>

<p>Appeal from, municipal court.</p> <p>Action by the city of Buffalo against the New York, Lake Erie & Western Railroad Company for violation of a city ordinance. Plaintiff obtained judgment. Defendant appeals. Modified.</p>

<p>Appeal from municipal court.</p> <p>Action by the city of Buffalo against the New York, Lake Erie & Western Railroad Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.</p>

<p>Appeal from trial term.</p> <p>Action by the Equitable Bank against Peter J. Claassen. Judgment for plaintiff. Defendant appeals. Judgment reduced.</p>

<p>Appeal from trial term.</p> <p>Action by Patrick J. Cassidy and J. Richard Alder against Frederick Aldhous. Judgment for plaintiffs. Defendant appeals.</p>

Action by Moses Tanenbaum and others against Simon Feist to recover for moneys paid, laid out, and expended by plaintiffs for defendant at his request. From a judgment entered on the verdict of a jury directed by the court in favor of defendant, plaintiffs appeal.

<p>Appeal from special term.</p> <p>Action by Washington Seligman against Edmund P. Schmidt. From an order permitting defendant to amend his answer, plaintiff appeals.</p>

<p>Trial—Reference of Counsel to Pleadings.</p> <p>Counsel have the right to refer to the pleadings during a trial.</p>

Action by Otto Kruger and Charles F. Albert against Philip Braender and others to foreclose a mechanic’s lien. From a judgment of the general term of the city court (20 H. Y. tiupp. 991) affirming a judgment of that court at special term in favor of plaintiffs, the defendant Braender appeals.

Action by Katherine N. Smith and G-ridley B. Coburn, copartners under the firm name of K. N. Smith & Co., against Samuel Corn and Henry Corn, for breach of a building contract. Defendants had judgment on the report of a referee, and plaintiffs appeal on exceptions.

Proceedings by Michael Lang against John Everling to recover possession of leased premises. There was a judgment for defendant, and plaintiff appeals.

Action by Bernard J. Campbell against Juan Y. Jimenes and others to recover damages for breach of a contract of employment. Plaintiff had judgment on the verdict of a jury at the trial term of the New York city court, which was affirmed at general term, (23 N. Y. Supp. 312,) and defendants appeal.

Action by Samuel T. Walker against Mary A. Scott. Plaintiff moves to strike out the answer. The action was commenced in the district court in' the city of New York for the ninth judicial district. The pleadings were oral. The complaint was for $162 commissions on the exchange of real estate, and the answer was a general denial and a counterclaim for $100. On-the defendant’s application the case was removed to this court.

<p>Appeal from trial term.</p> <p>Action by Abraham Elfenheim and others against Dorette Von Hafen. Judgment for plaintiffs. Defendant appeals.</p>

<p>Appeal from special term.</p> <p>Action by the New York Architectural Terra Cotta Company against Edward Eden. From a judgment dismissing its complaint, plaintiff appeals.</p>

Action by Reuben A. Britton, Melancthon Burr, Jr., and James K. Boyd against Neil Macdonald and James M. Ashley. From an order granting plaintiffs an examination of defendant Macdonald before trial, that defendant appeals.

Action by John T. Hunt against Alice Kingston and others to foreclose a mortgage. Edward J. McGough moves to confirm the referee’s report in proceedings relative to surplus moneys arising on the sale of mortgaged premises.

Queens county. Application for the admission of the last will of Robert H. Johnston, deceased, to probate. From a judgment, of the surrogate refusing to admit the instrument to probate, Mary E. Theall appeals.

Action by Maria L. Davis, as administratrix of Ira 0. Davis, against the New York, Lake Erie & Western Railroad Company, to recover damages for the death of plaintiff’s intestate, caused by the giving way of a partition in a coal bin in which deceased was employed by defendant. From a judgment for plaintiff, entered on a verdict, and from an order denying a motion for»a new trial, defendant appeals.

Action by Peter B. Weiler, as executor, etc., of Peter T. O’Brien, deceased, and as administrator, etc., of Sarah E. Weiler, deceased, against William S. O’Brien, Peter T. O’Brien, Preelove E. O’Brien, and others, for the construction of the will of Peter T. O’Brien, deceased.

Action by James McCaldin against William A. Parke and others for damages for injuries to vessel. Judgment was rendered for plaintiff, and a motion by defendants on the judge’s minutes for a new trial was denied. Defendants appeal.

Action by George Meurer against Marie Von Kramer for goods sold and delivered. Judgment was rendered for plaintiff before a justice of the peace, and affirmed by the county court, and defendant appeals.

Action by Augustus W. Blazo against William P. Gill to recover a balance alleged to be due on a building contract. From a judgment in favor of plaintiff, defendant appeals.

Action by Levi P. Rose against David Hawley, the city of Yonkers, and others, to recover possession of certain premises. From a judgment for plaintiff entered on a verdict, also from an order granting an extra allowance, and from an order denying a motion for a new trial, defendants appeal.

Action by Arthur M. Rose and William R. Rose against Jacob D. Butler for a breach of a covenant in a lease. From a judgment entered on a verdict for plaintiffs for $765, and from an order denying a new trial, defendant appeals.

<p>Marriage—Estoppel to Dent Valtdttt.</p> <p>Where a woman silently withholds her assent to a formal marriage, but subsequently treats it as a good marriage, she is thereby estopped from asserting that the marriage was not real and binding on her.</p>

<p>Appeal from surrogate’s court, Kings county.</p> <p>Application by Amsdell Bros, and others, general creditors of Honora Callaghan, deceased, for participation in certain surplus funds belonging to the estate. From a decree of the surrogate directing distribution to the heirs, disregarding the debts, applicants appeal.</p>

Action by Allen P. Becker against the National Prohibition Park Company to recover for work done under a contract, and also for extra work. Judgment was entered in favor of plaintiff, and defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by George Moore against the Brooklyn Advertising Company to recover for services performed under a contract. Judgment was entered in favor of plaintiff, and defendant appeals.</p>

Action by Halcyon Skinner against Sophia H. White to recover on a bond executed by defendant to plaintiff. Defendant pleaded payment and counterclaim for goods furnished plaintiff. From a judgment dismissing both the complaint and counterclaim, defendant appeals.

<p>Taxation op Costs—Amendment op Answer.</p> <p>Where defendant, on a trial before a referee, after plaintiff has rested, and some evidence has been introduced for the defense, is allowed to amend her answer nunc pro tune, and set up a new defense', on payment of all taxable costs of the motion, and thereupon the complaint is dismissed with costs to defendant, the clerk, in taxing such costs, should not include the amount paid plaintiff at the time of the amendment.</p>

<p>Laying Out Highway—Deviating from Petition.</p> <p>Where a petition for a highway calls for a change of course at a certain point, tile fact that the highway is run eight rods heyond such point before changing the course will not vitiate the proceedings, as the commissioners are not hound to follow with precision the route specified in the petition.</p>

Action by Leonora S. Gray against William T. Baker and another for libel. From an order of the special term vacating an order obtained by defendants for the examination of plaintiff before answer, under Code Civil Proc. § 873, defendants appeal.

<p>Appeal from court oí sessions, Westchester county.</p> <p>Clara M. Underhill and William J. Underhill were convicted on an indictment for nuisance, in obstructing a public highway, and appeal.</p>

Exceptions from circuit court, Richmond county. Action by Henry D. Leslie, receiver of the Casey Machine & Supply Company, against Henry M. Goodhue, to recover damages for failure of defendant to complete his bid for property sold at receiver’s sale. There was a judgment dismissing the complaint, and a motion by plaintiff for a new trial on exceptions was directed to be heard in the first instance at general term.

Action by John Bohleber against August Waelden and Charles Schmidt for an accounting, and cancellation of certain assignments of a life insurance policy on plaintiff’s life. From a judgment for defendants, plaintiff appeals.

Action by Frederick W. Helmke against Henry I. Stetler. Judgment for plaintiff, from which, and an order denying a new trial, defendant appeals.

Application by the board of health of the city of Yonkers to punish John Copcutt for contempt. From an order of the special term adjudging defendant guilty, and punishing him therefor, he appeals.

Action by Frederick W. Helmke against Henry I. Stetler. Judgment for plaintiff, after which defendant moved for a new trial because of newly-discovered evidence. The motion was denied. Defendant therefore appeals.

Action by Ellen Wilbur against Daniel Dwyer for injuries resulting from the intoxication of her husband, to whom defendant had sold liquor. There was a judgment for plaintiff, and defendant appeals.

Action by Jesse V. Palmer and another against Charles H. Angel and another. Prom a judgment for plaintiffs, entered on the report of a referee, defendants appeal.

Action by Thomas Cochran and William M. Flahnagan, trustees, against' the Anglo-American Dry Dock & Warehouse Company, to foreclose a mortgage given by defendant to secure certain bonds, in' which William F. Buckley, Ira N. Stanley, and Richard Gurney, stockholders of defendant, were permitted to intervene, and defend as to the amount due.

Action for partition by John Gr. Fay and Katherine O. Fay against William Gr. Fay, Henry A. Fay, and Elizabeth Fay. From a judgment vacating the referee’s report of sale, defendants appeal.

Action for partition by John G. F$y and Katheriné C. Fay against William G. Fay, Henry A. Fay, and Elizabeth Fay. From an order denying defendants’ motion to overrule plaintiffs’ exceptions to referee’s report of resale,, and for judgment thereon, defendants appeal.

Action by Rachel Woolsey against the trustees of the village of Ellenville. From a judgment entered on a verdict in favor of plaintiff, defendants appeal.

<p>Appeal from special term.</p> <p>Action by Joseph G-. Benton against Benjamin W. Winner and Charles A. Draper. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.</p>

Action by Julius V. Burgevin against the Hew York Central & Hudson River Railroad Company for loss of baggage. There was a judgment for plaintiff, and defendant appeals.

Action by Abram Schemerhorn, as commissioner of highways of the town of Wilton, in the county of Saratoga, against the Mt. Mc-Gregor Railroad Company and Frank Jones, as receiver thereof, to compel restoration of a highway. There was a judgment for defendants, dismissing the complaint, and plaintiff appeals.

Mandamus on the relation of Thomas P. McG-rath against the board of supervisors of the county of Westchester. From an order for a peremptory writ directing defendant to recognize relator as a member, it appeals.

Action by Jennie L. Meek, as administratrix of Thomas R. Meek, deceased, against the New York Central & Hudson River Railroad Company, for the death of plaintiffs intestate, a brakeman in defendant’s employ, who, while uncoupling a car, caught his foot in the spring of a frog, and was run over. Judgment for plaintiff. Defendant appeals.

Action by Edward Boom against William Reed. A judgment of the Albany city court in favor of defendant was reversed on the facts by the county court, and defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by George Mark against the village of West Troy. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from circuit court, Montgomery county.</p> <p>Action by Barrant W. Felthousen against the city of Amsterdam. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Byron H. Sykes against Abram Temple. There was a. judgment for plaintiff, and defendant appeals.</p>

Action by John H. Van Vechten against John McKone for conversion of some hay claimed by plaintiff under a chattel mortgage. Judgment for plaintiff. Defendant appeals.

Final accounting by De Witt Gardner, as executor of the last will and testament of Mary D. Tyler, deceased. From the decree of the surrogate, Fanny Eice and another appeal.

Action by Hattie Krauss, administratrix of Joseph Krauss, deceased, against the Wallkill Valley Railroad Company, to recover damages for the wrongful killing of decedent. From a judgment for plaintiff, defendant appeals.

Action originally brought by Frederick A. Lewis and Maria A. Lewis against Virginia M. Drake and Julia E. Drake, as the heirs, legatees, devisees, and representatives of Patrick H. Drake and Jane E. Drake, his wife. Defendant Virginia M. Drake died before the trial. During the trial, Frederick A. Lewis died, and the action was continued in the name of Maria A. Lewis, as sole plaintiff. From a judgment for defendant, plaintiff appeals.

Action by George D. Clark against William Hooper, as executor of the last will and testament of John Woodward, deceased, to recover the penalty provided by section 2928, Code Civil Proc., for the wrongful delivery of personal property in an action in replevin. From a judgment dismissing the complaint, plaintiff appeals.

Action by Ephraim Bond against the New York Central & Hud- ° son River Railroad Company for personal injuries. Plaintiff was traveling on foot along a street towards a certain crossing of defendant, while one William Struing was traveling in a wagon. One of defendant’s trains collided with the wagon, throwing the wagon box over and upon plaintiff, causing his injuries. The court directed a verdict for defendant. Plaintiff appeals.

<p>Exceptions from circuit court, New York county.</p> <p>Action by Marie T. Upington against Michael A. Corrigan and others. Plaintiff moves for a new trial on exceptions ordered to be heard in the first instance at the general term, a verdict having been directed for defendants at circuit.</p>

<p>1. Convicts—Suspension op Civil Rights—Devise on Condition.</p> <p>Though Pen. Code, § 707, provides that the civil rights of a person sentenced to the state prison for a term less than life are suspended, a convict may accept a devise of an estate on condition.</p> <p>2. Wills—Nature op Devise—Estate on Condition.</p> <p>A devise of a house and lot to a son “on condition” that he furnish firewood and board to his sister and mother, is not a covenant or personal charge on the devisee, but is an estate on a condition subsequent.</p>

Application by the city of Yonkers for a writ of mandamus to compel the New York Central & Hudson River Railroad Company to take a street in such city over defendant’s tracks. From a judgment denying the application, relator appeals.

Action by Mary Ann Burke, as administratrix, against the Syracuse, Binghamton & Mew York Railroad Company. From a judgment entered on a nonsuit, plaintiff appeals. The action was brought to recover damages for an alleged negligent killing of plaintiffs intestate, who was an engineer in defendant’s employ, on the 3d day of November, 1890. Rock Out is a station some three miles south of ■Syracuse, on defendant’s single-track road running from Syracuse to Binghamton.

Action by Samuel T. Guilford against Clara M. Jacóbie, impleaded with another, to foreclose a mortgage. From an order that a prior mortgage of the impleaded defendant be paid out of the first proceeds of sale, plaintiff appeals.

<p>Appeal from circuit court, Albany county.</p> <p>Ejectment by Maria Ten Eyck and another against Catharine A. Witbeck and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>Mortgages—Foreclosure after Judgment for Debt Secured.</p> <p>Defendant and her husband executed a mortgage of the husband’s land to secure the payment of part of the price of a stock of goods bought by a firm of which the husband was a member. Thereafter the firm confessed judgment for a named sum, which, as recited in the judgment, and as appeared from the evidence, was the balance due on the purchase of the goods. The mortgage whs subsequently foreclosed, and the land bid in by plaintiff's attorney in the name of. defendant, under an agreement that she would give a mortgage thereon to secure the in- ... debteclness of the firm arising from the purchase of. the goods, which mortgage was accordingly given by her, not for the sum at which the property was bid off, but for the' amount of the old mortgage. Held that, an execution having issued on the judgment by confession, and not having been returned, an action to foreclose the mortgage by the wife was not maintainable; Code Civil Proc. § 1630, providing that, where final judgment for plaintiff has been rendered in an action to recover any part of a mortgage debt, an action shall not be commenced to foreclose the mortgage unless an execution has been returned wholly or partly unsatisfied.</p>

<p>Appeal from special term, Clinton county.</p> <p>Action by Rufus Heaton against Theodore M. Leonard. From a judgment for plaintiff, defendant appeals.</p>

<p>Summons—Substituted Service.</p> <p>Code Civil Proc. §§ 435, 436, authorizing a substituted service of summons in certain cases, to be made by leaving a copy of the summons and of the order directing the substituted service at defendant’s residence, do not allow a direction for service at a place other than defendant’s residence.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Henry A. Gildersleeve, as trustee, against G. Harry Lester. From an order vacating the appointment of a receiver, plaintiff appeals.</p>

<p>Certiorari by Henrietta Fisk to review proceedings of the board of education in dismissing relator as a principal in a public school.</p>

Action by Henry C. Miner against Augustin Daly. From a judgment dismissing the complaint on the merits, entered on the decision of the court, plaintiff appeals.

Action by Daniel McCampbell against the Cunard Steamship Company, Limited, to recover for personal injuries sustained through defendant’s alleged negligence. There was judgment for defendant, and plaintiff appeals. Plaintiff, a longshoreman,- was employed by defendant steamship company to assist in unloading cargoes from defendant’s ship.

Action by Nicholas Sauerborn, as administrator of Kate M. Sauerborn, deceased, against the New York Central & Hudson-River Railroad Company, for causing the death of plaintiff’s intestate. (From a judgment in favor of plaintiff for $4,178.71, damages and costs, and from an order denying a motion for a new trial, made on the minutes of the judge, defendant appeals.

<p>-Attachment—Affidavit—Stating Cause of Action.</p> <p>An affidavit to obtain an attachment is insufficient as failing to show a cause of action where it merely states that “plaintiffs have from time to time * * * shipped merchandise to the defendant, and advanced money to him, and there is an account current between them,” on which account a certain sum was due.</p>

<p>Amendment oe Complaint—Action against Stockholder.</p> <p>Where a complaint seeks to charge defendant, as a stockholder in a manufacturing corporation, because of failure to file a certificate that the whole of the capital stock was paid in, as required by Laws 1848, c. 40, §§ 10, 11, it is error to permit an amendment seeking to enforce defendant’s liability under section 14 of the same act, referring to the purchase of property, and the issue of stock therefor.</p>

<p>1. Bringing in New Parties—When Proper.</p> <p>In an action to set aside an assignment of securities made by plaintiffs tp one S. to secure a note, on the ground of usury, and to enjoin the sale of the securities, the son of S., bearing the same name, was by mistake made defendant, and was served with an injunction restraining the collection or transfer of the securities. Held, that it was proper to grant an order permitting plaintiffs to amend the summons and complaint by bringing in the representatives of the father, who had died before suit brought, and continuing the injunction as against them.</p> <p>2. Same—Continuing Injunction—Requiring New Bond.</p> <p>It was error for the special term to order that the plaintiffs’ undertaking, on which the injunction was granted, as against the original defendant, should stand as security for the new defendants as well.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by Charles Myers, administrator of Charles Myers, deceased, against the mayor, aldermen, and commonalty of the city of New York, to recover compensation for services of plaintiff’s intestate as inspector of regulating and grading streets. From a judgment entered on a verdict directed for plaintiff, defendants.appeal.</p> <p>The plaintiff’s intestate served in the United States navy from 1857 to March 15, 1864, ulieu he was honorably discharged. In October, 1886, he was employed by the department of public works as an inspector of regulating and grading the streets of tile city, at the rate of three dollars per day, and continued to act in that capacity until April 6, 1889, when he was suspended by the commissioner of public works, by a communication of which the following is a copy: “You are hereby suspended from the position of inspector of grading, &e., in this department, without pay, from this date.” He received his pay to April 6, 1889, and afterwards, from time to time, reported to the department that he was ready and willing to discharge the duties of the place, until July 11, 1889, when he sent to the department a formal resignation of the position. Between April 6 and July 11, 1889, another person discharged the duties which the intestate had previously discharged, and on the same work, and it appears that during this time the decedent was not employed by the department; that he sought other work, and was unable to find employment. Between these dates there were 78 working days, the wages for which amounted to $234, to recover which, with interest, this action was brought, and for which sum a verdict was directed, and on which a judgment was entered. This action has been twice tried. On the first trial, in March, 1891, the complaint was dismissed, and a judgment entered, which was reversed by this court in May, 1892. 18 N. Y. Supp. 904. In June following, Myers died, and afterwards letters of administration were duly issued on bis estate to the present plaintiff, in whose name this action was duly revived and continued. On the second trial the evidence taken on the first was read, no other or additional evidence being received or offered.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by Carroll Whitaker against Hernán L. White and George W. Bartholomew. From a judgment for plaintiff, entered on a verdict, defendants appeal.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Georgianna Bigelow against William H. Davol and others to foreclose a mortgage. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Pledgor and Pledgee—Rights oe Third Party.</p> <p>Tüe U. company guarantied to plaintiff trust company the bonds of the J. company, agreeing at the time not to mortgage its own property until said bonds were paid. The instrument of guaranty also recited the deposit with defendant trust company of 30,000 shares of stock of the C. company as security for the performance of the guaranty, and defendant indorsed on the guaranty a statement that it had received such stock. Thereafter the J. company defaulted on its bonds, and, the U. company refusing to pay them, plaintiff demanded of defendant the stock deposited with it. Meld, that it was no defense to this demand that, prior to the malting of said guaranty, the U. company had hypothecated to defendant its interest in 60,000 shares of stock of the C. company, including the 30,000 shares above mentioned, to secure future advances to be made, and that defendant had made large advances to the U. company, relying on its agreement not to make any mortgage, and that subsequently the U. company, without defendant’s consent, mortgaged all its property to plaintiff, which accepted it.</p> <p>2. Same—Notice oe Claim.</p> <p>If defendant, the trustee of plaintiff, so far as this stock was concerned, desired to set up an interest therein so as to restrict the dealings between plaintiff and the U. company, the owner of the stock, it was its duty to give notice of such interest to plaintiff.</p>

Action by George E. Cornwall against Joseph Sachs and another to restrain defendants from selling the electrical duplicate box. fire-alarm system, and for other relief. From an injunction pendente lite restraining Joseph Sachs from disposing of certain patents, and from removing certain papers, Sachs appeals. Modified.

Action by August Albertz against Semon Bache,, Solomon B. Ulmann, Siegmund J. Bache, and Joe S. Ulmann. From a judgment entered on a verdict, and from an order denying a motion made on the minutes for a new trial, plaintiff appeals.

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

Action before a justice of the peace by John P. Felts and another against Lester Clapper. From a judgment of the county court affirming a judgment for plaintiffs, defendant appeals.

<p>Railroad Companies—Accident at Crossing—Question por Jury.</p> <p>In an action against a railroad company for Injuries received at a crossing, it appeared that the crossing gates had been disabled for three months, though on the day of the accident they had been lowered and raised again. Plaintiff testified that he had used the crossing almost daily during January and February preceding the accident in April, and had always seen the gates down when trains were passing; and when he reached a point on the road 180 feet from the crossing, and saw the gates were up, he always drove on. On the day of the accident he saw the gates were up, and drove on, and, though he “looked or listened,” did not see or hear the train. A passenger in plaintiff’s wagon saw the train approaching when they were on the road, and also when he got out near the crossing, but did not tell plaintiff. There was evidence that the whistle was blown at the usual whistling point, and the bell was rung from that time until after the collision. Held, that the question of defendant’s negligence and plaintiff’s contributory negligence was for the jury, and their verdict would not be disturbed on appeal</p>

Application by the people of the state of New York on the relation of the Durant Land Improvement Company for a writ of mandamus to compel John Jeroloman, as justice of the district court in the city of New York for the eighth judicial district, to proceed with a cause pending before said court. From an order granting a peremptory writ of mandamus, respondent appeals.

<p>1. Elevated Railroads—Injuries to Abutters—Evidence.</p> <p>In an action for damages caused by the construction of an elevated railroad In the street in front of plaintiffs’ premises, where it is shown by plaintiffs that some of the rooms in the building had become vacant after the road was built, evidence as to the amount of rent asked for such rooms is competent in behalf of defendants as bearing on the cause of the vacancy.</p> <p>2. Same—Conclusions op Witness.</p> <p>Testimony of an occupant of part of the premises as to whether the con- ' struction and operation of the road interfered with his business is not objectionable as calling for a conclusion, where the witness had already testified as to the physical effects of the road, and that his rent had steadily risen until it had almost doubled.</p> <p>3. Same—Opinion Evidence.</p> <p>Testimony of witnesses examined as experts in regard to value, as to whether the elevated railroad rendered the premises more accessible than they would otherwise be, was properly excluded.</p> <p>4. Same—Value op Easements.</p> <p>The easements taken by the construction and operation of the railroad . have only a nominal value apart from any damages to the land resulting from the taking.</p> <p>5. Same—Action por Damases—Parties.</p> <p>The fact that the will of plaintiffs’ ancestor gives the executors a power of sale of the land does not require them to be made parties to the action.</p>

Action by Charles G. Stevens and another against Marietta R. Stevens, impleaded with others. From an order denying plaintiffs’ motion to continue an injunction, they appeal.

<p>1. Vacating Judgment—Mistake.</p> <p>A judgment will not be set aside on the ground that defendant made no defense to the action, believing that it was brought on notes which she after-wards found had been paid, when it appears that there was an actual, subsisting indebtedness, on which the judgment was properly recovered.</p> <p>2. Action for Monet Loaned—Pleading and Proof.</p> <p>In an action for money loaned, an allegation that the loan was made on or about August 12th is sustained by proof that it was made in June, and that a note was then given for it, which matured August 10th.</p>

Action by Phelim O’Neill and others against James J. Breese and others for an injunction. The lot known as “No. 130 West Twenty-Third street” belongs to one Goldberg. It is 25 feet in width and 100 feet deep. There is erected thereon a four-story brick building, running from the front to a depth of 48 feet. It is known as the “main building.” Connected therewith, and extending back to almost the entire depth of the lot, is an extension, consisting of one story and basement.

<p>1. Attachment—Nonresidence—Temporary Absence.</p> <p>Where a resident of New York city stores his household furniture, and departs from the state with his family, and remains- out of the state about a year, an attachment against his property is properly granted on the ground that he is “not a resident of the state,” (Code Civil Proc. § 636,) though he had not acquired a residence elsewhere, and though he intended to return to New York with his family a few months later.</p> <p>8, Same—Domicile.</p> <p>Code Civil Proc. § 636, authorizing an attachment where defendant is “not a resident of the state,” applies to a person actually living out of the state, though his legal domicile may be in the state.</p>

Action by Algernon O. Thayer against George H. Humphreys and Montford P. Sayce, individually and as partners, and others. From an order denying the motion of Humphreys and Sayce for vacation of an order for their examination, they appeal.

Action by the Union Square Bank of the City of New York against Theodor Reichmann, J. Harvey Bostwick, and Charles Rieclc, to recover $2,500 and interest on a promissory note alleged to have been made by defendants, composing the firm of Bostwick, Rieck & Co. From an order denying a motion to vacate a warrant of attachment, defendant Reichmann appeals.

Application by the mayor, etc., of the city of New York to acquire property in New York city between Thirty-Third street and Thirty-Fourth street, alleged to be necessary to be taken for the improvement of the water front. From an order appointing commissioners, Edmund Coffin, Jr., and Smiten V. Tripp, landowners, appeal.

Action by Julius H. Oaryl against Francis X. Stafford and others to foreclose a mortgage. There was a judgment of foreclosure and sale of the mortgaged premises. From an order overruling. exceptions to, and confirming, the referee’s report, defendant Stafford appeals; the referee, Nelson J. Waterbury, Jr., appearing personally as respondent. Modified.

Action by Franklin D. Newton against Gertrude E. Lee and others for the price of goods sold. A demurrer to a part of the answer was overruled, and plaintiff appeals.

<p>1. Contract of Sale—Payment.</p> <p>Plaintiff’s decedent offered to furnish stone to defendant at certain, prices. Subsequently a contract was made, including two of the several kinds mentioned in the bid, but omitting the others. Decedent charged higher prices for the stone so omitted than those named in the bid, and on an entirely different basis. Defendant complained of the prices, but gave no intimation that he considered them fixed by agreement. He also testified that no prices had been fixed on the stone except as to the two kinds mentioned in the contract The stone furnished was of unusual dimensions, and unusually difficult to quarry. Held, that the prices stated in the bid for such stone were not binding.</p> <p>S. Same—Reasonable Value—Evidence.</p> <p>Although not binding, they should, however, be adopted as the fair and reasonable value of stone coming precisely within the bid, but as to stone not coming within the bid the prices named in the bills rendered should be adopted.</p>

Action by the Kings County Bank against John Courtney, sheriff, and William E. Dodge and others, judgment creditors, to determine the rights of parties to funds in the hands of the sheriff. Judgment was rendered in favor of defendants the Tremont National Bank of Boston and Thomas Wildes, and the plaintiff and the defendants Phelps, Dodge & Co. appeal.

Application of the St. Lawrence & Adirondack Bailroad Company to condemn land of Julia L. De Camp and others. The reports of the commissioner awarding damages are not objected to. 'The landowners move to confirm the report, and ask for an additional allowance.

Action by John Bowe, as county treasurer of the county of Albany, against Charles M. Jenkins, to collect a tax on personalty assessed against defendant as a resident of Albany. Judgment' for plaintiff. Defendant appeals. The defendant resided in the city of Albany from 1850 to 1886, and was assessed for personal taxes up to 1882.

<p>Appeal from judgment on report of referee.</p> <p>Action by James Spears against Eben Willis to dissolve a partnership, and for an accounting, and, as an incident to the principal relief sought, to compel the assignment of a half interest in a patent. There was a judgment for plaintiff, and defendant appeals.</p>

Action by Sells E. Woodhull against the mayor, aldermen, and commonalty of the city of New York and the city of Brooklyn for personal injuries received on the passenger railway across the Brooklyn bridge. Judgment for plaintiff. Defendants appeal.

Action by Thomas M. Hart against the mayor, aldermen, and commonalty of the city of New York. From an order granting plaintiff’s attorney leave to proceed with the action for his own benefit, defendants appeal.

Exceptions from circuit court, New York county. Action by Henri Schorestene against Adrian Iselin for breach of an alleged contract. Complaint dismissed, and motion for new trial made on exceptions directed to be heard in the first instance at general term.

<p>Negligence—Evidence—Nonsuit.</p> <p>In an action for personal injuries to plaintiff, caused by the falling of an elevator about which he was working, it appeared that about 10 months before the accident a piece of the machinery connected with the elevator had dropped out, but ihat the elevator had been in daily use without mishap from that time until the accident. It further appeared that at times the elevator would get out of the grooves or guides, and plaintiff testified that up to the time of the accident the elevator had never been repaired to his knowledge. The accident was caused by the breaking of a clamp to which the ropes holding the elevator were attached, and the reason of the break was left unexplained by the evidence. Eeld, that plaintiff was properly nonsuited.</p>

<p>1. Deed—Exception—Construction.</p> <p>Under a grant by the city of New York of “all that certain water lot, vacant land, and soil under water,” described by metes and bounds, excepting so much as formed part of a street and certain avenues, “for the uses and purposes of public streets, avenues, and highways,” the fee to the parts excepted remains in the city, though never used for the purposes mentioned.</p> <p>2. City Council—Invalid Grant—Estoppel.</p> <p>Tlie fact that a city council, without complying with the law, attempted to grant a water right on condition that the grantee build a pier, will not estop the city from maintaining an action of ejectment to recover the land with the pier.</p>

<p>1. Specific Performance—Title of Vendor—Sale by Administrator.</p> <p>Administrators filed a petition for leave to sell decedent’s land for the purpose of paying his debts, alleging that he left no lawful issue, widow, father, mother, brothers, sisters, or descendants of them, heirs surviving, and “that his heirs at law are first cousins, and heirs tof deceased first cousins,” whose names were given in a list. These persons were collateral relatives of decedent’s father, and no mention was made of collateral relatives of his mother. There was testimony that the persons named in the petition were the only heirs, or descendants of heirs. Held, in a suit for specific performance of a contract to convey, made by one claiming title under a sale ordered pursuant to such petition, that the title was such that the purchaser should have accepted, notwithstanding the failure of the petition for the sale to allege that the mother of decedent left no collateral heirs, the purchaser offering no evidence that there were such heirs.</p> <p>2. Same—Rights of Vendee.</p> <p>A purchaser of land, having refused to perform his contract on the ground that the title is bad, and, in a suit for specific performance, having failed to show that the vendor’s title is defective, is not entitled either to recover back the amount paid by him on the contract, or to specific performance.</p>

Action originally brought by John H. Hyde against the Manhattan Savings Institution to recover money therein deposited by Maria Van Vleck, deceased, “in trust for” plaintiff. George H. Kitchen and David T. Corde, named as executors in the will of said Maria Van Vleck, instituted interpleader proceedings, the result of which was that they were substituted as defendants in place of the savings institution, and it was directed to hold the money subject to the order of the court.

<p>1. Attachment—Levy on Pledged Goods.</p> <p>An attachment of the pledgor’s interest in merchandise pledged is sufficiently levied by serving on the pledgee certified copies of the attachment, and notices showing the property attached. Warner v. Bank, 22 N. E. Rep. 172, 115 N. Y. 251, followed.</p> <p>2. Pleading—Failure to Number Causes of Action—Objections Waived.</p> <p>Where a complaint states more than one cause of action, and the statement of facts constituting each is not separate, and numbered, as required by Code Civil Proc. § 483, if the objection appears on the face of the complaint, it must be taken by demurrer; if it does not so appear, it must be taken by answer; otherwise, it will be waived.</p> <p>3. Conflict of Laws—Insolvency—Preferfnces.</p> <p>In a joint action by the sheriff and attaching creditors to recover property attached, it appeared that a Massachusetts corporation, being indebted to a firm, of which its president was a member, for goods which it had consigned to defendants E. & Co., in New York, authorized its president to protect his firm against the goods sold. The president, in •contemplation of the insolvency of the corporation, transferred the goods with E. & Co. to his firm, by charging such goods to the firm on the books •of the corporation, and crediting it on the firm’s books, and the corporation canceled its charge to E. & Co., who were notified thereof. Held¡ that, in the absence of fraud, such transfer was effectual to vest the title in the firm, since the laws of New York, prohibiting the transfer of corporation assets to give preference to a creditor in anticipation of insolvency, did not exist under the common law, and there is no presumption, in absence of proof to the contrary, that the Massachusetts law is the same as the New York law.</p>

<p>Appeal from court of oyer and terminer, New York county. Leonardo Larubia was convicted of murder in the second degree, and appeals.</p>

<p>Case submitted on agreed statement.</p> <p>Submission, without action, of a controversy between Daniel Daly and Mendel W. Greenberg to construe a will, and to determine whether Greenberg should accept and pay for certain land agreed to be purchased by him. Judgment for Daly.</p>

Action by Katherine Palmer against George Jones and others to obtain a cancellation of a mortgage and notes executed by plaintiff in defendants’ favor. Prom a judgment directing delivery by defendants to plaintiff of the mortgage and notes, defendants appeal.

<p>1. Bill of Paeticulaes—When Reqtjieed.</p> <p>In an action by a sales agent of defendants for failure to deliver goods on orders transmitted by plaintiff, and alleged to have been accepted by defendants, there was annexed to the complaint a schedule of the orders, their numbers, and the amount of goods covered by each order, with the value thereof. Helé, that plaintiff was properly required to furnish a bill of particulars giving the names and addresses of the persons to whom he made the alleged sales.</p> <p>2. Same.</p> <p>In an action against foreign manufacturers, by a person claiming to have an exclusive contract with them for the sale in this country of their goods, he alleged acceptance and delivery of orders by defendants to other persons in violation of such contract, and a subsequent agreement between the parties by which plaintiff was to forbear to sue for damages for such breach of contract, in consideration of payment by defendants to him of a certain percentage of the total goods previously shipped. Held, that plaintiff should not be required to furnish the names of the persons other than plaintiff to whom defendants sold and delivered goods, as that was information equally accessible to defendants.</p> <p>8. Same.</p> <p>In an action on an agreement by which defendants bound themselves to pay a certain sum to plaintiff in consideration of his forbearance to prosecute a claim against them for shortages in packages and rolls of paper purchased at different times of defendants by plaintiff, and for defects in the quality of the goods so sold, it was proper to refuse defendants’ demand for a,bill of particulars of the numbers of the orders in which there were shortages and defects, the amount of the shortages, and the nature of "the defects.</p>

Action by William Baumgarten against William Gr. Hichols and others. From interlocutory judgment sustaining demurrers of defendants William S. Hichols and the corporation of Herter Bros, to the amended complaint, plaintiff appeals.

<p>Annulment op Mabbiage—Fbaud.</p> <p>Where plaintiff is induced to marry defendant, with whom he had maintained illicit relations, by her false representation that she was pregnant by him, the marriage, though never consummated by cohabitation, will not be annulled because of such fraud, as the fraud was the result of plaintiff’s immoral act.</p>

Action by Elmira A. Fulton against the Metropolitan Life Insurance Company for money paid defendant by plaintiff on a policy thereafter mutually abandoned as void. From a judgment of the general term of the. city court (21 N. Y. Supp. 470) affirming a judgment for plaintiff entered on a verdict, defendant appeals.

In the matter of the final accounting of Frederick E. Barnes, as assignee of Zenos S. Crooker. From an order charging the assignee with interest at 6 per cent, per annum on moneys of the estate remaining in his hands, and with the taxable • costs in an action to set aside the assignment, the assignee appeals.

Action to enforce a mechanic’s lien by Cornelius Beecher against John Schuback, owner, and Barron & Barron, contractors. Archibald Culbert and John L. Culbert, and other subcontractors holding mechanics’ liens, were made parties defendant From the decree for plaintiff and defendants Culbert, defendant Schuback and others appeal.

Action by William F. Howe and Abraham H. Hummel against Isabella Schweinberg, administratrix of the estate of Philip Schweinberg, deceased, on a special agreement for compensation for professional services. A judgment for plaintiffs by direction of the court was affirmed at the general term of the city court, (21 N. Y. Supp. 469,) and defendant appeals.

Application of tlie Broadway & Seventh Avenue Railroad Company for condemnation of the leasehold estate and property of the Acker, Merrall & Condit Company. From an order appointing commissioners to appraise the property sought to be taken, the Acker, Merrall & Condit Company appeals.

<p>1. Partnership—Agreement.</p> <p>Under a partnership agreement, providing that letters patent owned by the individual members should remain their individual property, but that the firm might use the improvements which were the subject of the patents on meeting all the expenses which might be incurred “in maintaining title to such patents,” a member is not entitled to credit for the amount paid by him for a patent, for the assignment of which to himself he had a contract at the time the partnership was formed.</p> <p>2. Same.</p> <p>A partnership agreement provided that defendant should draw $2,500 salary, and should be allowed 3 per cent, of the gross receipts of "the business, and that plaintiff should draw $1,200 salary. Subsequently a substantial part of the business was transferred to a corporation of which they were stockholders, and it was agreed between them that, if defendant should be elected president of the corporation, at a certain salary, plaintiff should be released from liability by reason of the provision in the partnership articles allowing defendant the 3 per cent. Helé, that defendant was still entitled to his salary of $2,500.</p> <p>3. Same—Accounting.</p> <p>On a partnership accounting, where one partner has drawn more than the other, he should not be charged and the other credited with the full amount of such difference, but only with half thereof.</p> <p>4. Costs—Extra Allowance.</p> <p>On an acounting between partners, an extra allowance to plaintiff of $2,000 will be set aside as exorbitant where the amount found due him was less than $9,000.</p>

<p>1. Parties—Action on Life Policy.</p> <p>Under Code Civil Proc. § 449, requiring every action to be prosecuted in the name of the real party in interest, except that trustees of an express trust, and certain others, may sue without joining the beneficiary, and defining a trustee of an express trust as a person with whom or in whose name a contract is made for the benefit of another, one who has insured his life for the benefit of another may bring an action on the policy without joining the beneficiary.</p> <p>3. Life Insurance—Conditions of Policy.</p> <p>Under the condition of a ten-payment life policy, that, after two or more of the premiums have been paid, the policy becomes a paid-up non-forfeiture policy for as many tenths of the face of the policy as there have been premiums paid, requiring no further payments of premiums, subject to no assessments, but entitled to its apportionment of the surplus accumulations in the ratio of its contributions thereto, on the insured ceasing to make payments there is no occasion for the issue of a new policy for the proportional amount.</p> <p>3. Same.</p> <p>Under the provision that the policy would be entitled to its pro rata of the surplus earnings, this would not be due until the death of insured.</p> <p>4. Same—Agreement to Issue New Policy.</p> <p>An agreement by the company, after insured has paid several premiums, to state an account of the ratio of the policy’s contribution to the surplus accumulation of the company, and issue a paid-up policy for the amount of such ratio, is without consideration.</p>

Application by the New York Hotel & Restaurant Company for a mandamus to the commissioners of taxes and assessments of the city and county of New York. From an order refusing the writ, relator appeals.

Action by Theodore Moss against Eugene Tompkins. From a judgment entered on a verdict allowing plaintiff six cents damages, and awarding costs to defendant, plaintiff appeals.

<p>GuARAimr—Departure from Terms—Ratification.</p> <p>Defendant wrote plaintiff to deliver certain goods to H., and that he would be responsible for the same, and similar orders. Held, that he was not responsible for goods delivered on order of H., in the absence of a ratification of the departure from the terms of the guaranty, with full knowledge thereof.</p>

<p>Defective Bridges—Accident—Contributory Negligence.</p> <p>Deceased was found at the foot of an abutment of a bridge which had no railing, which he had crossed every day for many years, and from which he had fallen in the dark. Belch that, in the absence of proof that he was free from contributory negligence, there could be no recovery for his death.</p>

Action by Ebenezer Holmes against George Jones, treasurer of the New York Times, for libel. After the commencement of the action, George Jones died, and it was continued, by order of the court, against Gilbert E. Jones, treasurer of the New York Times. There was a verdict in favor of plaintiff for $3,500. From an order setting aside the verdict as excessive, and granting a new trial, unless plaintiff would stipulate to reduce the amount to $2,000, plaintiff appeals.

. Motion by David S. Van Wagonen to revoke the probate of the will of William Van Wagonen, deceased. From an order denying the motion, movant appeals.

Action by William H. Townsend against Albert Stewart to recover for an assault and battery. From a judgment for plaintiff, and an order denying a motion for a néw trial, made on the minutes of the judge, defendant appeals.

<p>Consolidation of Corporations—Rights of Bondholders.</p> <p>Act 1869, authorizing the consolidation of railroad companies, provides-that the old corporation shall continue in existence to preserve the rights, of creditors. Laws 1880, c. 73, authorizes the Ogdensburgh & Lake Champlain Railroad Company to issue bonds, and provides that holders of such, bonds shall have the right to vote “in the election of directors of said company.” Plaintiffs were holders of bonds issued under said act, called “income mortgage bonds.” The interest was payable yearly out of the-net earnings, if sufficient, and, if there were no net earnings, then no interest was payable; the amount of such net earnings to be determined' by the board of directors. The mortgage securing the bonds was given, subject to the right of the company to retain the free and uncontrolled use, enjoyment, possession, and management of the premises, rights, and property thereby granted. Held, that plaintiffs were not entitled to an injunction against the consolidation of the company with another company having a connecting line of railroad, on the ground that it would deprive-them of their right to vote for directors, and that it would be impossible to determine the net earnings of the old company, as there could still bean annual election of directors of the old corporation, the contract expressed in the bonds and mortgage not contemplating that their powers, should always remain the same, and since the consolidation, being on a basis of valuation of the properties of the two companies, would not interfere with the determination of the net earnings of the old company.. Herrick, J., dissenting.</p>

Action by James Fitzgerald against the Burden Benevolent As. sociation of the City of Troy to recover disability benefits alleged to be due plaintiff as a member of defendant association. From a judgment of the county court affirming a judgment of the justice’s court in favor of plaintiff, defendant appeals.

<p>Claim against Decedent’s Estate—Findings—Review on Appeal.</p> <p>On the trial of a claim against a decedent’s estate, claimant requested a finding “that an agreement was entered into and executed between decedent and claimant whereby claimant was to provide and furnish a home, board and lodge'decedent during her lifetime, and, in consideration of the same, claimant is to have the property'left by decedent at her death,” but the surrogate refused to so find. Helé, on appeal on a case, containing none of the evidence, but only the findings and refusals to find, that the decree against claimant was supported by the findings, though from some of them it appeared that decedent contemplated making some disposition of her property in favor of claimant.</p>

<p>Libel—Words Actionable per Se.</p> <p>A publication concerning a person is actionable, without alleging special damages, if it tends to diminish the person’s respectability, and expose him to disgrace, ridicule, and obloquy, though it does not charge him with the commission of a crime.</p>

Application by Henry Bradley for a writ of certiorari to review the proceedings of the board of supervisiors of Essex county, whereby said board assumed to pass upon the election and qualification of relator to the office of supervisor of the town of Minerva, in said' county.

<p>■Injury to Servant—Negligence oe Fellow Servant.</p> <p>Where the place in which a servant is put to work is rendered unsale by the negligent piling of rolls of cloth and failure to remove them after the person in charge of the floor has been told of the likelihood of their falling, and the servant remains in the employment on being assured by such person that there is no danger, or that the danger will be re-, moved, the master is liable for injuries done by their falling.</p>

Action by Louise F. Mars, administratrix of John H. Mars, deceased, against the Albany Savings Bank, to recover a deposit. From' an order denying a motion for the substitution of parties defendant, defendant appeals.

Certiorari on the relation oí the Edison Electric ffiuminating Company of New York to review the decision of Edward Wemple, comptroller of the state of New York, denying an application of relator for revision of a tax. Writ quashed.

Action by Christopher A. Johnson, as administrator of Christopher Johnson, deceased, against John P. Friedhoff, for defendant’s failure to complete a purchase of property sold to him by intestate at public aution. From a judgment dismissing the complaint, plaintiff appeals.

Action by William P. Eoome and others against Frederick 0. Jennings and another to recover $7,500. Defendants’ demurrer to the complaint was overruled, and judgment was entered for six cents damages for plaintiffs, and the costs were awarded to defendants. Plaintiffs appeal.

Action by Mary A. Wardlaw, as administratrix of James R. Ward-law, deceased, against the mayor, aldermen, and commonalty of the city of New York, to recover $5,700, with interest, for the salary of deceased as “assistant engineer” during the interim between his suspension and discharge. Plaintiff recovered judgment for $6,821, which was affirmed at general term, and reversed by the court of appeals. See 19 N. Y. Supp. 6; 33 N. E. Rep. 140.

Action by Cecelia B. O’Reilly against Joseph Block, Louis Drautz, and Peter Zech. From a judgment in favor of plaintiff, defendants appeal. Plaintiff now moves to substitute Barbara Drautz as administratrix of the goods, chattels, and credits of Louis Drautz, deceased, as defendant and appellant in his place and stead, and to dismiss the appeal to this court. Motion to substitute defendant granted.

Action by Cyrus Cole and Charles E. Cole, comprising the firm of Cyrus Cole & Co., against Lowery and others, sureties on the bond of John C. Nobis, assignee for benefit of creditors of Charles Nobis. Complaint dismissed. Defendant Lowery moved to retax costs.

Action by the Bradley Fertilizer Company against the South Publishing Company. From a judgment of the general term of the city court (21 H. Y. Supp. 472) affirming a judgment of the trial term in favor of plaintiff, entered on the verdict of a jury, defendant appeals.

Action by John W. Dibble against Jeremiah W. Dimick to recover a balance alleged to be due plaintiff for services rendered defendant in the sale of goods on commission. From a judgment entered on the report of a referee in favor of plaintiff, defendant appeals.

Actions by Harry W. Hiscox against the New Yorker Staats Zeitung and against Oswald Ottendorfer for libel. An order was made consolidating the two actions. Defendants thereupon made an offer of judgment, with costs, which was accepted by plaintiff, and the costs taxed. Both parties now move for a re-taxation of the costs.

Action by Anna Leonard against the Germania Fire Insurance Company of Few York on a fire insurance policy. Complaint dismissed, and plaintiff moves for a new trial.

<p>1. Conversion of Mortgaged Property—Assignment of Action.</p> <p>An assignment by a chattel mortgagee of a right of action for conversion of tile mortgaged chattels conveys his interest in the mortgage.</p> <p>'2. Same—Election of Action.</p> <p>An assignment of a cause of action for the conversion of property constitutes an election to rely on such action, instead of an action to recover the property.</p> <p>■3. Same—Demand.</p> <p>A demand for property in defendant’s warehouse, of one lawfully in charge of the same, is sufficient to support conversion against defendant</p> <p>4. Chattel Mortgage—Lien—Priority against Warehouseman.</p> <p>Where mortgaged goods are placed in a warehouse without the mortgágee’s consent the warehouseman’s lien is subordinate to that of the mortgagee. ,</p>

Action by the Mann’s Boudoir Car Company against the Gilbert Car Manufacturing Company to recover an amount alleged to be due plaintiff on contract. From a judgment entered in plaintiff’s favor, defendant appeals.

Action by Albert G-. Howe against Edward M. Oldham for an assault and battery. From a judgment for plaintiff, entered on. a verdict, defendant appeals.

<p>Appeal from circuit court, Orange county.</p> <p>Action by Albert G. Howe against Edward M. Oldham for-malicious prosecution. From a judgment for plaintiff, entered on a verdict, defendant appeals.</p>

Orla W. Parker was convicted in the court of special sessions of assault and battery, and from a judgment of the court of sessions affirming the judgment of conviction he appeals.

Action by Luther L. Dean and others against William J. Benn and another for damages for maintaining a dam at a certain height, and also asking that the dam be lowered. From a judgment for defendants, plaintiffs appeal.

Action by Bebecca Van Etten against John E. Van Etten for rent. From a judgment reversing the judgment of a justice of the peace for plaintiff, plaintiff appeals.

Lawrence county. Action by William T. Hart and others against the Ogdensburg & Lake Champlain Railroad Company and the Central Vermont Railroad Company to restrain defendants from the performance of an agreement of merger and consolidation. From an order granting an inspection of books and papers, defendants appeal.

Action by Charles Bundschu and another against Barabas Simon •and others to set aside a chattel mortgage and an alleged preference in an assignment by one of defendants for the benefit of his creditors. Before trial, plaintiffs petitioned for an order requiring the books of defendant Simon to be deposited with a referee for inspection. The preliminary order was granted, and, defendants not -having so deposited the books, plaintiffs now move to make the order absolute..

Action by Ambrose J. Agate against Caroline E. House individually and as executrix of the estate of Ann Eliza Agate, deceased. The action was originally brought against decedent alone, to establish a trust in favor of plaintiff in certain realty held by defendant, and for an accounting of the rents and profits of the property.

<p>1. Labceny—Sufficiency of Evidence.</p> <p>On a trial for larceny it appeared that in answer to an advertisement by defendant for a manager of his business “who can loan or invest $600 to $800; money secured,” complainant accepted the position, and delivered to defendant $600, for which defendant gave a chattel mortgage; that complainant soon stopped working for defendant, and the money was not repaid. As to whether the money was a loan to defendant or a deposit as security for the faithful discharge by complainant of his duties the evidence was conflicting, but defendant admitted that he had obtained money of two other employes, as he did of complainant, and had never paid them; that he had no tiñe to the property mortgaged, and did not agree to pay interest on the money. Held, that the evidence justified a conviction under Pen. Code, § 528, providing that “a person who, with intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or any other person, takes from the possession of the true owner * * * any money, * * * is guilty of larceny.”</p> <p>2. Same—Vabiance.</p> <p>An indictment charged that defendant, “with force and arms, [describing the properly,] the goods, chattels, and property of [complainant] then and there being found, then and there feloniously did steal, take, and carry away.” The evidence showed that, in answer to an advertisement by defendant for a manager of his business, complainant accepted the position, and deposited $600 with defendant as security for the faithful discharge of his duties, the money to be returned on the termination of the employment; that soon thereafter complainant stopped working for defendant, and the latter refused to return the money deposited. Held, that there was no variance, as, under the indictment and evidence, larceny, as defined by Pen. Code, § 528, was charged and proven.</p> <p>B. Same—Evidence.</p> <p>On a charge of the larceny of money deposited with defendant by his employe, where it appears that defendant gave a mortgage to secure repayment, evidence that defendant had no title to the property mortgaged is competent as tending to show the intent of defendant in obtaining the money.</p> <p>4. Same.</p> <p>In such case, as bearing on his credibility, it was proper to show on cross-examination of defendant that he had so obtained money from other employes, and had not repaid them.</p> <p>5. Grand Larceny—Indictment.</p> <p>An indictment for larceny, which charges defendant with taking $300 in United States treasury notes, and also “divers other” bank notes of the value of $300, charges the taking of $600, which constitutes grand larceny.</p>

Action by William Braunsdorf and others against John H. Braunsdorf and others (1) to set aside, as void, deeds executed by defendant John H. Braunsdorf, as sole surviving executor of' the will of Julius E. Braunsdorf, deceased, to himself and to his. brothers and sisters, heirs of testator, in friendly partition; and (2) to procure partition of the land attempted to be conveyed by such deeds. Judgment for plaintiffs.

<p>1 Wills—Specific Legacy—What Constitutes.</p> <p>A testator left his widow, who was made an executrix of the will, the sum of $50,000, “which may be invested in bank stock * * * and 'in bonds.” Held, that the legacy was not specific, and hence she was not entitled to dividends on the stock or bonds from the testator’s death to the time of the payment of the legacy.</p> <p>2. Executors and Administrators—Accounting—Interest on Legacy.</p> <p>The executrix will not be allowed credit, in an accounting, for interest on such legacy, where a receipt given by her on payment of the legacy shows that she received the $50,000 in full payment of the legacy, since such paper is an admission that she was only entitled to the amount of the legacy.</p> <p>3. Wills—Construction—Interest on Legacy.</p> <p>The will provided that the legacy, together with a devise of all of the property, real and personal, occupied as a home, and used in connection therewith, should be in full satisfaction of her dower rights in the estate. It further provided for the payment of the legacy as soon after payment of testator’s debts and general expenses as convenient to the executors. BclcS that the legacy was not payable until the widow elected to take it, and until such election the legacy could not draw interest.</p> <p>4. Executors and Administrators—Executors’ Pees.</p> <p>Nor should the widow be allowed fees as executrix where it appears that some 15 years before the accounting the executors and executrix attempted to settle their accounts themselves, and in pursuance to such arrangement she gave a receipt for her fees as executrix.</p> <p>5. Same—Parties—Decree.</p> <p>An executrix who makes the residuary legatees parties to an accounting has no interest in the decree, as far as it settles or affects the rights of such legatees, and cannot complain of the rulings of the surrogate in regard thereto.</p> <p>6. Same—Attorneys’ Pees.</p> <p>The executrix should be allowed, in an accounting, the amount of her attorneys' fees in such proceedings. ■</p>

Application by Peter Tiernan, a justice of the peace of the town of Middletown, Richmond county, for a peremptory writ of mandamus to compel Nathaniel Marsh and others, as the board of supervisors of Richmond county, to audit and pay relator’s bill for $414.15 for his services as such justice in felony cases for 1892. From an order granting the writ, defendants appeal.

<p>Police Inspectors—Seniority.</p> <p>A police inspector whose appointment precedes the appointment of another inspector by a few minutes is entitled to seniority, though the other may have been several hours earlier in taking the oath of office.</p>

<p>1. Wills—Construction—Trust Estate.</p> <p>Testator gave to his wife the use of $50,000 during life, and gave several annuities and legacies, without setting apart any specific property for the purpose. He then appointed certain persons executors and trustees. Held, that the will created a trust, so that the court had jurisdiction to construe the will on the filing of a bill for that purpose.</p> <p>2. Same—Suspending Power op Alienation.</p> <p>Testator gave certain property to his wife for life, with remainder to two grandchildren for life,—one-half to each,— and provided that if either of the latter should have lawful issue his share should become absolute; that if one died without lawful issue his share should go to the other, having such issue; and that if both died without lawful issue the property should go into the residue of the estate. Held that, as testator’s wife died before he did, the grandchildren took as first life tenants, and there was no room for the contention that the power of alienation was suspended for more than two lives in being.</p> <p>3. Same—Legacy to Wipe.</p> <p>Testator gave to his wife, “during her natural life, my homestead farm, on which I now reside; also, my house and lots in the city of New York; * * * also, all my personal property; also, the sum of $50,000.” Held. that the wife took a life interest, merely, in the personal property and the $50,000.</p> <p>4. Same.</p> <p>The term “personal property,” as there used, applied only to personal effects, such as household furniture, bric-a-broc, and the like.</p> <p>5. Same—Description op Legatees.</p> <p>A will named as legatees “The General Bible Society,” “Foreign Protestant Missionary Society,” and “The Protestant Home Missionary -Society,” which names, it appeared, were not borne by any societies or organizations. Held, that the institutions intended by testator were the “New York Bible Society,” “The Board of Foreign Missions of the Presbyterian Church,” and the “Board of Home Missions of the Presbyterian Church,” which were carried on under the auspices of the denomination to which testator belonged, and to all of which he had been a regular subscriber during his life.</p> <p>6. Same—Legacies—When Charge on Land.</p> <p>Where it appears that the testator supposed that his personalty was sufficient to pay all the legacies provided in his will, a clause bequeathing “all the rest and residue of the real and personal estate” is not sufficient to charge the real estate with any portion of the general legacies.</p> <p>7. Same—Rights op Legatees —Priorities.</p> <p>Where legacies are to be paid in any event, if the personalty permits, they are entitled to priority in payment over a legacy which is to be set aside by the trustee from any surplus that may be in his possession.</p>

Action by Bertha Bauth against the New York Elevated Bail-road Company and another to restrain defendants from maintaining and operating an elevated railroad in front of plaintiff’s premises. Defendants move to amend the judgment.

<p>1. Building Contract—Abandonment by Contractors—When Justified.</p> <p>A building contract provided that the contractors should furnish all materials, and complete the building by a specified day, on failure of which they should forfeit to the owner $10 for each day’s delay, and that during the progress of construction the owner might require alterations, for which a reasonable valuation should be added to or deducted from the contract price. Held, that the contractors were not justified in abandoning the contract after the date fixed for completing the building, on account of disputes respecting the kind of work being done, and materials used, and the alterations required, and because the owner refused to release them from liability on the forfeiture Clause, though the latter was in error as to her claims.</p> <p>2. Same—Completion by Owner—Lien of Subcontractors.</p> <p>Such contract provided that the contractors should be paid in three equal installments, as the work progressed, the last payment becoming due on completion of the building; that in case they at any time refused or neglected to supply sufficient workmen or materials the owner might provide them, after three days’ written notice to them to finish the work; and that the expense of completing the building by the owner should be deducted from the contract price. Held, that where the owner, after payment to the contractors of the second installment, and abandonment of the contract by them, completed the building at an expense in excess of the amount of the unpaid installment, subcontractors were not entitled to foreclose a mechanic’s lien, filed two months after such abandonment, for materials furnished and labor done, though the contractors did work and furnished materials after payment to them of such second installment.</p> <p>3. Same—Materials Furnished Contractors after Abandonment.</p> <p>Nor are subcontractors entitled to recover against the owner for materials furnished such contractors, on their orders and credit, after they abandoned the contract, and which were used by the owner in completing the building, since the title to such materials was in the contractors, and no personal liability on the part of the owner to the subcontractors was thereby created.</p> <p>4. Same—Notice of Lien.</p> <p>Where the notice of the subcontractors’ lien does not cover labor to be performed or material to be furnished, they are not entitled to a lien for labor and materials furnished after filing the lien.</p> <p>5. Same—Agreement to Pay Subcontractors—Statute of Frauds.</p> <p>An oral promise by the owner to pay subcontractors made while the latter are working for the contractors, on condition that they will release their lien, which they do, imposes no legal liability on the part of the owner to such subcontractors, since such agreement is a promise to answer for the debt of another, and within the statute of frauds.</p> <p>6. Same—Labor and Materials Furnished Owner by Subcontractors.</p> <p>Where such subcontractors furnished materials to, or performed labor for, the owner, after she began the completion of the building, they are entitled to a personal judgment against her therefor.</p> <p>7. Sam:e—Damages for Failure to Complete Building—Counterclaim.</p> <p>Under the forfeiture clause of such contract the owner is entitled to recover against the contractors, on a counterclaim, $10 per day for such time only as elapsed between the day provided for the completion of the building and the date on which it could have been completed, with diligence, after the owner undertook to finish it.</p>

Action by Emma T. Green, administratrix of the estate of William Roworth, deceased, against Joseph G. Roworth and others, to set aside a conveyance of both real and personal property on the ground of fraud. Plaintiff had judgment on a trial by the court without a jury, and defendants now move at general term for a new trial on exceptions, as provided by Code Civil Proc. § 1001.

Action by William Gauld against Julius Lipman and William Cohen to recover in implied assumpsit for money had and received by defendants to plaintiff’s use. From a judgment of the general term of the city court (21 2sT. Y. Supp. 464) affirming a judgment entered on the verdict of a jury in favor of plaintiff, defendants appeal.

Action by Bernard S. Clark against Frank Tryon and others on a promissory note, on which defendant Tryon was indorser. From a judgment of the general term of the city court (21 37. Y. Supp. 1075) reversing a judgment for plaintiff entered on a verdict, plaintiff appeals.

Action by Charles A. Hoehmann, by Ernest Hoehmann, guardian ad litem, against the Moss Engraving Company. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals

Action by Moritz Berkowitz and another against Ignatz Brown to enforce the specific performance of a contract for the sale and exchange of certain real estate by plaintiffs to defendant Judgment for defendant.

Action for personal injuries by Lena Schmidt, an infant, by Frank Schmidt, her guardian, against Valentine Cook and John J. Radley. The injuries resulted from the falling of a flagstone which was leaning against the fence in the back yard of defendants’ premises, occupied by plaintiff’s father and others as a tenement house. Plaintiff was playing about the stone when it fell.

Certiorari by Lucy D. Kittredge and others to review the proceedings of the assessors of the village of Peekskill in placing certain property on the assessment roll. Property ordered stricken from the roll.

<p>Mortgages—Foreclosure—Decree within Prayer oe Complaint.</p> <p>In a foreclosure action, the mortgagors, and the persons to whom they had conveyed the equity of redemption before the action was brought, were made parties, but the owners of the equity did not appear. The complaint demanded a sale according to law, and that the mortgagors, and persons claiming under them; subsequent to the commencement of the action, might be barred, but it did not ask relief against all the defendants. Held, that the judgment of foreclosure was properly against the owners of the equity of redemption, as well as against the mortgagors; 3 Rev. St. (6th Ed.) p. 199, § 102, (Code Civil Proc. § 1632,) providing that the deed given to the purchaser at a foreclosure sale shall be an entire bar “against all parties to the suit.’’</p>

<p>1. Form of Action—Legal or Equitable.</p> <p>A complaint alleged that, as part of the consideration of the sale of a business by plaintiff to defendant, it was agreed that defendant should pay plaintiff 05,500 when the profits of the business should increase $15,000; that the business had increased such amount, but that plaintiff did not know when the increase was reached, and had been unable to obtain from defendant an account of the same, and that the amount provided in the agreement had not been paid to plaintiff. Held, that the complaint stated only a cause of action for damages for breach of an express contract, and did not entitle plaintiff to equitable relief.</p> <p>2. Appeal—From Judgment on Pleadings.</p> <p>To entitle a party to a review by the general term of the superior court of New York of a judgment rendered on the pleadings, no exceptions, requests, or findings are necessary.</p> <p>3. Pleading—Objections not Raised by Answer.</p> <p>Where a complaint demands an accounting without showing that plain: tiff is entitled thereto, defendant, in order to raise the objection on the trial, is not required to deny in his answer the right to such accounting.</p>

Action by Diederick Knabe and others against Alexander Levelle to restrain defendant from excavating under an alleyway, and for damages. Judgment for plaintiffs.

Action by Morris Levy against Samuel Bros, and others for an injunction. A temporary writ was issued, and plaihtiff now moves-to continue the same pendente lite.

Action on a promissory note by Henry J. Bornstein against Mordecai S. Kauffman. A judgment for plaintiff, entered on a verdict by direction of the court, was affirmed at the general term of the city court, (22 S. Y. Supp. 693,) and defendant appeals.

Action by Frank Moss, executor of the will of Maltby G. Lane, deceased, against Jacob F. Witteman and another, to recover rent, and damages for a breach of covenants in the lease. Plaintiff had judgment on the verdict of a jury, and defendants appeal.

<p>1. Replevin—Who may Maintain.</p> <p>Where goods of one in the possession of another are taken on attachment, the right of the owner to the possession of the goods as against that other is such a right to reduce into possession, under section 1690 of the Code, as will sustain replevin against the sheriff.</p> <p>2. Same—Goons Delivered with Option to Buy.</p> <p>Goods delivered to one for examination, with an option to buy, may be retaken by the owner before exercise of the option by the proposed buyer. 8. Same—Seizure before Exercise of Option.</p> <p>A seizure by the sheriff before such exercise of option subjects him to an action of replevin at suit of title owner of the goods.</p> <p>Bookstaver, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

Action by Eliza Jane Moore against the New York Elevated Railroad Company and the Manhattan Railway Company to recover damages for alleged injury to the rental value of plaintiff’s premises, known as “371 Greenwich Street,” caused by the maintenance and operation of defendants’ elevated railroad. Judgment for defendants, entered on a verdict in their favor. Plaintiff appeals.

Action by Myer Hecht against Edward Brandus on a contract of employment. From a judgment of the general term of the city court (21N. Y. Supp. 1034) affirming a judgment entered on a verdict for plaintiff, rendered by direction of the court on the conclusion of a trial by a jury, and from an order denying a motion for a new trial, defendant appeals.

Action by Ferdinand W. Geiler against Frederick M. Littlefield and others to set aside a conveyance on the ground that it was made in fraud of creditors. From a judgment dismissing the complaint on the merits at the close of plaintiff’s case, plaintiff appeals.

Action by Lawrence Anselment against John Daniell and another to recover damages for injuries sustained by plaintiff through the negligent driving of a wagon by defendants’ servant. From a judgment dismissing his complaint, plaintiff appeals.

Action by Charles G-. S. Beed against Henry C. Zimmerman to recover a balance due on account for money loaned. A judgment for plaintiff entered on the report of a referee was affirmed at general term of the city court, (20 N. Y. Supp. 665,) and defendant appeals.

<p>1. Action by Nonresident against Foreign Corporation—Jurisdiction.</p> <p>Code Civil Proc. § 1780, provides that an action cannot be maintained by a nonresident against a foreign corporation, unless the cause of action arises within the state, or it is sought to recover damages for breach of a contract made within the state, etc. Held), that a nonresident could not sue a foreign corporation in New York to recover for the use of a team hired without the state, though it was used within the state. 20 N. Y. Supp. 891, affirmed.</p> <p>2. Review on Appeal—Objections not Raised Below.</p> <p>An objection to an answer cannot be raised for the first time on appeal.</p> <p>S. Jurisdiction—How Conferred.</p> <p>Jurisdiction cannot be conferred by the consent or admissions of a defendant, where the evidence shows that the court has no jurisdiction of the subject-matter.</p>

Action by David S. Paige against Nathan A. Chedsey and Francis B. Chedsey for money had and received. Defendants set up a counterclaim for services as attorneys. From a judgment of the general term of the city court (20 N. Y. Supp. 898) affirming a judgment for defendants entered on a verdict, plaintiff appeals.

On reargument. A judgment of the general term of the city court affirming a judgment in favor of plaintiff (21 ST. Y. Supp. 1136) having been reversed on appeal, (22 2>í; Y. Supp. 1130,) a reargument was granted on plaintiffs’ motion, (22 ¡N. Y. Supp. 1133.)

Action by Denis P. McCarthy against Patrick Gallagher. From a judgment of the general term of the city court (23 1ST. Y. Supp. 313) affirming a judgment entered for plaintiff on direction of a verdict at trial term, defendant appeals.

Two actions, one by Winthrop Otis Sargent against the Sargent Granite Company to recover for services performed by plaintiff as an officer of defendant, and for moneys advanced; the other by Frank T. Sargent against the same defendant to recover for services performed by plaintiff for defendant without the scope of his official duty as an officer of defendant. A demurrer was tiled to an answer setting up two distinct defenses. Demurrer to the first defense sustained.

Action by John B. Devlin, as administrator of Charles Devlin, deceased, against the mayor, aldermen, and commonalty of the city of New York; and Thomas Hope individually, and as administrator of A. S. Hope, deceased; Samuel Donaldson; Martin Thatcher, as trustee of Tilly B. Pratt, deceased; and Charles F. Blish, as administrator of Charles D. Blish, deceased,—to recover for work performed under a contract with the city for cleaning the streets thereof, and for a breach of…

Action by the East River Electric Company of New York against the Durant Land Improvement Company to enjoin defendant from commencing or prosecuting summary proceedings for the eviction of plaintiff from certain premises leased to its assignor by defendant’s assignors, and for damages for failure to perform the covenants of such lease.

Action by David W. Gregg against William Boyd to recover tile value of wheat alleged to have been converted by defendant. From a judgment entered upon a nonsuit, plaintiff appeals.

Action by Jacob Guilfoos against the New York Central & Hudson River Railroad Company for injuries to plaintiff’s mare. From a judgment of the county court affirming a judgment of a justice’s court for plaintiff, defendant appeals.

<p>Action by Leslie M. Saunders and Alexander Saunders against ¡New York Central & Hudson River Railroad Company to restrain defendant from operating its railroad over a parcel of land formerly under the waters of the Hudson river, and to compel the removal of its tracks therefrom. Judgment for plaintiffs.</p> <p>In 1846 the Hudson River Railroad Company was incorporated, and authorized to build and operate a railroad from New York city to Albany along the easterly shore of the Hudson river, and to cross the bays or waters of the river with their tracks. At that time, Ethan Elagg was the owner of the shore and upland now owned by the plaintiff, and in front thereof was one of the bays crossed by the railroad. In 1847, Elagg, by his deed, conveyed to the railroad company his rights in a parcel of land 70 feet wide, on which the railroad tracks were laid, reserving to himself all the right in the river which he had, save within the parcel sought to be conveyed, and which parcel of land was all under the water of the river, and had never been granted by the state to Flagg. In the deed the railroad company covenanted to construct a way for Flagg and his grantees across the railroad to any wharf, whenever built. The railroad being built, there was left a strip of land about 100 feet wide between the shore and the parcel conveyed to the railroad. This strip of land was bare mud at low tide, but was, at high tide, covered with water, which came from the river through a culvert under the railroad ■embankment, through which culvert only a small rowboat could pass, and such a boat only at half tide. In 1853, Flagg- having sold the shore, his ■grantees of the shore pulled down the bluffs on the shore, and filled in the ■strip from the shore to the railroad embankment, wholly excluding the water •of the river. From I860 to 1883 the filled-in land was an open passage, and a thoroughfare for all persons and teams choosing to pass. In 1868 the Hudson River Railroad Company filed a map, and thereby laid claim to the strip •of filled-in land in question, for an addition to its accommodation, but took no steps to make other title thereto until 1873, when the commissioners of the land office of the state of New York, in the name of the people of the •state, granted to the New York Central & Hudson River Railroad Company, successor of the Hudson River Railroad Company, a patent of land on each side of the railroad, 98 miles in length, between New York city and East Albany, of varying widths,—-of 150 feet, 100 feet, and 80 feet in width at different points,—and all thereof formerly, add most thereof still, under the waters of tin- river, and including the strip of land in question, filled in by Flagg’s grantees. In 1883 the defendant laid one switch track on the filled-in land in question, and in 1888 laid another switch track thereon, which switch tracks, and the standing and moving of cars thereon, are obstructions to plaintiffs’ claimed right to cross from the original upland and shore of Flagg, now owned by them, to the navigable waters of the Hudson river. The plaintiffs have not, nor had their grantors, any grant from the state of the filled-in 'land in question, but as the owners of the original upland to old high-water mark, and as the owners, by patent from the state, of lands west of the railroad out to the pier head line established by law.</p>

Action by William A Grainger against Thomas A. Smyth and others. From an order denying a motion to confirm the report of a referee appointed to ascertain the damages sustained by defendants by reason of a temporary injunction issued in the action, defendants appeal.

<p>Appeal from special term, Monroe county.</p> <p>Action by Theresa Bice against Thomas H. Groves. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Appeal from court of sessions, Erie county.</p> <p>Philip Mago was convicted of maintaining a ferry without authority of law, and appeals.</p>

<p>Bohemian Oats Note—Fraud—Evidence.</p> <p>In an action on a “Bohemian Oats” note the defense was that it had been obtained by the fraudulent representation that the company from which the, oats were purchased was worth $100,000, and that defendant relied on a bond given him by the company, agreeing to sell for him the following year a sufficient quantity of oats to enable him to realize $100 more than the amount of the note. Held, that annual reports filed by the company in the office of the secretary of state of Michigan, showing that the company’s assets amounted to only $10,000, were admissible in evidence as bearing on the question of fraud in procuring the note, and it was prejudicial error to exclude them. 20 N. X. Supp. 582, reversed.</p>

<p>Appeal from special term, Erie county.</p> <p>Action by John J. P. Read against Louis Knell, impleaded, etc. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Appeal from court of sessions, Wyoming county.</p> <p>Benjamin F. Jewett was convicted in a court of special sessions of the town of Genesee Falls of the crime of assault in the third degree, and from a judgment of the court of sessions, affirming the judgment of conviction, defendant appeals.</p>

Proceeding for the drainage of certain swamp lands in the town of Penfield, in Monroe county. From an order denying a motion' to set aside the majority report of the commissioners, and to remove them, tm. the grounds of misconduct, Mas, and improper relations with the petitioners’ attorneys, the moving party appeals.

Action by Samuel K. Nester against Thomas C. Craig, impleaded, etc. From a judgment dismissing the complaint, entered on the direction of a nonsuit, and from an order denying a motion for a new trial on the minutes, plaintiff appeals.

<p>1. Intoxicating Liquors—Validity op License—De Facto Commissioners.</p> <p>A person claiming the right to sell intoxicating liquors under a license duly issued by the excise commissioners of the town in which he resides need only show that such commissioners were officers de facto.</p> <p>2. Same—De Facto Commissioners—Who are.</p> <p>An excise commissioner, who acts as such for two years,—one yeár under appointment by the town board, and one under election,—and who is recognized as such by the other members of the board, is a commissioner de facto.</p>

<p>Appeal from Justice Court—Discretion of County Court.</p> <p>Code Civil Proc. § 3064, provides that if an appeal is taken from a justice’s judgment by a defendant who failed to appear, and he “shows, by affidavit or otherwise, that manifest injustice has been done, and renders a satisfactory excuse for his default, the appellate court may, in its discretion, set aside the judgment,” and direct a new trial before the same or another justice of the county. Heldi, that the action of the county court on appeal in such case is not reviewable on appeal to the general term of the supreme court.</p>

Action on the relation of Joshua Bradshaw against Charles Bidelman to determine defendant’s right to the office of excise commissioner. There was a trial by the court, a jury having been waived. The court found that defendant was not elected, and that consequently relator, who was the incumbent during the preceding term, held over, and was entitled to act as commissioner of excise. Defendant appeals.

<p>Appeal from circuit court, Monroe county.</p> <p>Action by Annie Reinhardt against Frank Fritzsche and others. From a judgment dismissing the action on the pleadings, plaintiff appeals.</p>

<p>Action by Posthumous Child—Intoxicating Liquoks—Civil Damage Act.</p> <p>Laws 1873, c. 646, (Civil Damage Act,) providing that every “child” who shall be injured in means of support in consequence of the intoxication of any person 'may sue, etc., gives to a child bom after its father’s death, resulting from intoxication, the right to sue therefor.</p>

Exceptions from circuit court, Cayuga county. Action by Frank M. Hunting against Ferdinand S. M. Blun. Defendant moves for a new- trial on a case and exceptions ordered to be heard in the first instance at general term, after verdict at circuit for plaintiff, rendered by direction of the court.

Action by Eliza W. White and Caroline White against Edward M. Benjamin and Anna Byron B.enjamin, his wife, and Cyrus V. Kean, assignee for benefit of creditors of Edward M. Benjamin, to set aside as fraudulent (1) the assignment, (2) a judgment in favor of Benjamin’s wife, and (3) certain conveyances to the latter from her husband. Judgment for plaintiffs.

<p>1. JUDGMENT BY DEFAULT—SETTING ASIDE ON APPEAL FROM JUSTICE’S COURT.</p> <p>Code Civil Proc. § 3064, provides that if an appeal from a judgment of a justice of the peace is taken by a defendant “who failed to appear before the justice, * * * and he shows by affidavit or otherwise that manifest injustice has been done, and renders a satisfactory excuse for his default, the appellate court may, in its discretion, set aside the judgment appealed from.” Held, that a judgment will not be set aside where the moving affidavit does not show what the defense is to plaintiff’s claim, or that there is any defense at all.</p> <p>2. Parol Evidence—Contradictory Records—Return of Justice.</p> <p>A recital in the return on appeal from a justice’s court that the “parties stipulated to adjourn this matter to July second,” cannot be contradicted by extrinsic evidence, the return being a record, and therefore conclusive.</p> <p>3. Appeal from Justice’s Court—Correcting Return.</p> <p>If the return on appeal from a justice’s court is incorrect, insufficient, or indefinite, the remedy of the party aggrieved is by motion to correct the return, and he cannot attack the return on the hearing of the appeal.</p>

<p>Appeal from city court, general term.</p> <p>Action by Morris A. Myers against Annie Cohn for commissions on purchase of real estate. Judgment was rendered for plaintiff at a trial term of the city court, and affirmed by the general term of such court, and defendant appeals.</p>

<p>Appeal from trial term.</p> <p>Action by the New York & New Haven Automatic Sprinkler Company against James F. Andrews to recover the contract price of certain work, and also for extra work and services. From a judgment dismissing the complaint, and from an order denying a motion for a new trial, plaintiff appeals.</p>

Action by Walter L. S. Langerman against George Harrison McAdam and Graham McAdam on a contract and for an accounting, in which plaintiff moved for an order requiring defendant George Harrison McAdam to show cause why he should not be punished for contempt for failure to appear in obedience to an order of the court and summons duly issued before a referee, and submit to examination before trial. Motion granted, and continued for final order.

Action by Simon Levy against Caroline Buff for broker’s commission on sale of real estate. From a judgment of the general term of the city court (22 jST. Y. Supp. 744) affirming a judgment for plaintiff, defendant appeals.

Action by Myer Hecht against Edwárd Brandus to recover money alleged to be due plaintiff under a written contract. From a judgment of the general term of the city court (21 N. Y. Supp. 1034) affirming a' judgment entered on a verdict directed by the court in favor of plaintiff, and an order denying a motion for a new trial, defendant appeals.

Action by Ernest H. Bird against James Everard to 'recover the value of an overcoat lost or stolen from plaintiff’s room while a guest at defendant’s bathing establishment. Judgment was rendered in favor of plaintiff, and defendant appeals.

Action by Joseph Greenburg against Mary A. Early, individually and as executrix of John Early, deceased, and others. From a judgment dismissing his complaint, plaintiff appeals.

Action by Ferdinand Mayer against the Temple Beth El for damages for being deprived of a pew in the building owned by defendant. On demurrer to the complaint.

Action by Ella Hilleary against the Skookum Boot Hair-Grower Company to recover for services performed for defendant under a contract. From a judgment for plaintiff, defendant appeals.

Action by Arthur J. Bobbins and Frank W. Bobbins against Simon Arendt, Julius Lipman, and Moses Kind, impleaded with John W. Hutton, to foreclose a mechanic’s lien. From a judgment of the general term of the city court (20 N. Y. Supp. 992) affirming a judgment of the special term in favor of plaintiffs, defendants appeal.

Action by the 'fire department of the city of Hew York against John Gilmour to recover a penalty for an alleged violation of a regulation to prevent the spreading of fire. Plaintiff had judgment, and defendant appeals.

<p>Appeal from seventh district court.</p> <p>Action by Meyer Foster and others against Edmund T. Oldham. From a judgment in plaintiff’s favor, defendant appeals.</p>

Action by Eva Brumfield against the Pettier & Stymus Manufacturing Company to recover for services in letting defendant’s property. From a judgment of the general term of the city court (20 N. Y. Supp. 615) affirming a judgment on a verdict for plaintiff, defendant appeals.

Action by Marshall Barber and another against Albert Gray. A judgment of the general term of the city court in favor of plaintiffs (23 H. Y. Supp. 313) was affirmed without opinion, (23 H. Y. Supp. 1156,) and defendant (appellant) moves for a reargument.

Action by Edward Kelly against Josiah Partridge to recover two months’ rent alleged to be due on certain premises. The judgment on a verdict for defendant was affirmed at the general term of the city court, and plaintiff appeals.

<p>1. Supplementary Proceedings — Delivery op Property — Notice op Motion.</p> <p>In supplementary proceedings, notice need not be given of a motion to compel the debtor to deliver certain property to the sheriff, as Code Civil Proc. § 2447, provides that such an order may be made by the judge before whom the proceeding is pending, “upon such notice * * * as he deems just, or without notice.”</p> <p>2. Same—Interest op Debtor.</p> <p>In supplementary proceedings the debtor testified that he leased in his own name, and occupied, a farm; that there were on the place certain farm products, which had been harvested during the second summer of his tenancy; and that he had never assigned the lease, or given -any mortgage or bill of sale of any property on the farm. Held, that such evidence sufficiently showed that the farm products in question were the property of the debtor, so as to authorize an order requiting the debtor to deliver the same to the sheriff.</p> <p>8. Same—Property Subject to Order.</p> <p>Code Civil Proe. § 2447, providing that the court, in supplementary proceedings, may order the judgment debtor, who has “in his possession, or under his control, money or other personal property belonging to him," to deliver the same to the sheriff, unless a receiver has been appointed, applies to any tangible personal property. Dickinson v. Onderdonk, 18 Hun, 479, distinguished.</p> <p>4. Same—Transportation of Property.</p> <p>In supplementary process the judgment debtor cannot be compelled, by an order for the delivery of personal property, to transport it to the sheriff or receiver to whom the order requires it to be delivered.</p>

Action by William L. Heermance against Edward O. Bridgman. From a judgment entered on a verdict in favor of plaintiff and from an order denying a motion for a new trial, defendant appeals.

Application by the surviving members of the late firm of Kehr, Kellner & Co. for a peremptory writ of mandamus to compel the mayor, etc., of the city of New York, to audit a claim for furniture supplied by the firm to the fire department of defendant city.

<p>Appeal from jury term.</p> <p>Action by Alexander Filippini against Charles M. Stead. From a judgment entered on a verdict directed in favor of defendant, plaintiff appeals.</p>

<p>Appeal from jury term.</p> <p>Action by Esther Jacobs against Harry B. Sire for breach of marriage promise. From a judgment entered on a verdict in favor of plaintiff, and an order denying a motion for a new trial, defendant appeals.</p>

Action by the Allison Bros. Company, a domestic corporation, against Oscar W. Allison. From a judgment entered March 22, 1892, in favor of plaintiff, for the relief demanded in the complaint, defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by Frank Griffin against Barbara Griffin for divorce on the ground of adultery. From a judgment in favor of plaintiff, defendant appeals.</p>

Action by Walter Allen against David Eogers. From a judgment entered on the 20th day of June, 1890, and from an order denying a motion for a new trial on a case and exceptions, defendant appeals.

Exceptions from circuit court, Erie county. Action by Silas G. Torrance against the Third National Bank. Plaintiff moves for a new trial on exceptions taken at circuit in May, 1892, and directed to be heard at general term in the first instance.

Action by Alexander McAndrew against the Lake Shore & Michigan Southern Railway Company. From an order dated June 13, 1892, denying a motion for leave to serve a supplemental answer to the complaint, defendant appeals.

Action by Frederick Gordas against James Morrison, James Col-well, and Edward M. Page. From an order denying a motion made on behalf of defendants to change the place of trial from Ontario to Albany county, defendants appeal.

Action by Charles Potter, Jr., and others, against the Traders’ national Bank of Rochester. From a judgment entered January 7, 1893, on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals.

Action by Andrew F. Sheldon against Anna G. Mirick and another, administrators of Nelson R. Mirick, deceased. From a judgment entered in Wayne county, September 13, 1892, on the report of a referee, and from an order of the special term awarding costs to plaintiff, defendants appeal.

Action by Francis A. Baker against Benjamin M. Baker, Johanna S. Wood individually and as administratrix, and William O. 0. Wood, impleaded with others. From an order made on the petition and motion of defendant Benjamin M. Baker for a reference to determine claims to surplus moneys, defendants Wood appeal.

Action by John W. Banker against William E. Knibloe on a promissory note. From an order granting plaintiff’s motion for a new trial on the minutes, after a verdict for defendant by direction of the court at circuit,' defendant appeals.

Charles D. Marshall and Julia A. Sherman, as executors of the will of R. J. Sherman, deceased, and Martha R. Sherman, presented to Hudson Ansley, as assignee for the benefit of creditors of William G. Hevenor, a claim for rent alleged to. be due under a lease made by claimants to the assignor. The assignee rejected the claim, w'hereupon it was referred. The referee disallowed it, and, from an order of the county court confirming the report of the referee, claimants appeal.

<p>Appeal from Wayne county court.</p> <p>Summary proceedings by George W. Bennett against John Taylor. From a judgment of the county court entered January 9, 1892, reversing a judgment of the justice of the peace, together with a notice of an intention to bring up for review an order made by the same court dated January 9, 1892, denying a motion to correct the return, and for a reargument of the case, plaintiff appeals.</p>

<p>Larceny—Evidence.</p> <p>On an indictment for larceny it appeared that defendant, representing himself as the agent of a foreign corporation, signed a contract for the purchase by such corporation of the property and franchises of a street-railroad company, to be transferred and delivered on payment of the price. Afterwards defendant obtained possession of two street cars from the seller, by representing that he wished to have them changed into electric cars, and that he would return them as soon as the change was made. He then sold the cars, and appropriated the proceeds to his' own use. Held, that the evidence was sufficient to sustain a conviction.</p>

<p>Local Actions—Establishing Lien on Land.</p> <p>An action to set aside for fraud the assignment of a judgment by plaintiff to a grantee of the land of the judgment' debtor, and to reinstate the lien of the judgment on such land, is within Code Civil Proc. § 982, providing that an action to recover a judgment establishing, determining, or affecting an established right, title, lien, or other interest in real property, must be tried in the county in which the subject of the action is situated.</p>

Action by Albert A. Brock against Joseph A. Aspenleiter. From a judgment of the county court affirming a judgment of the municipal court of the city of Rochester in favor of defendant, plaintiff appeals.

Exceptions from circuit court, Monroe county. Action by Hora Crowe, as administratrix of the goods, chattels, and credits of Michael Crowe, deceased, against the New York Central & Hudson River Railroad Company. Plaintiff moves for a new trial on exceptions ordered to be heard at the general term in the first instance after a nonsuit at circuit.

Action by William 0. Fitch against the Volker & Felthousen Manufacturing Company. From an order referring the action to a referee to hear, try, and determine, defendant appeals.

Application of Benjamin O. Miller, a judgment creditor, for the ■ payment of his claim against the estate of John Morton, deceased. From a decree dismissing the petition, petitioner appeals.

•Exceptions from circuit court, Monroe county. Action by Sidney B. Boby against Arthur G. Tates. Defendant moves for a new trial on exceptions directed to be heard at the general term in the first instance, after verdict directed for plaintiff at circuit.

<p>Vendos and Pubchaser—Building Restrictions.</p> <p>Tn an action to enjoin defendant from building on a lot owned by him within 15 feet of the street, it appeared that plaintiff’s vendor had divided a tract of land into lots, and placed them in the hands of an agent to sell. Plaintiff and others bought some of'the lots, subject to a restriction expressed in the deed that no building should be erected within 15 feet of the street, and the agent represented to them that all the lots would be sold subject thereto. Afterwards defendant bought a lot without any restriction. Defendant testified that he knew of the restriction on the other lots, but did not know of any on his lot; that he inquired of the grantor and of the grantor’s attorney, and had the title examined, and was informed by all that the lot was not subject to any restriction. The grantor testified that, after putting the lots in the agent’s hands, but before any were sold, he withdrew defendant’s lot and three others, stating that they were reserved for business purposes, and that it was generally known that no restrictions were to be placed on the four lots so reserved. Helé, that the evidence was not sufficient to charge defendant with knowledge that plaintiff was induced to purchase by the representations of the agent that all the lots would be sold subject to the same restrictions.'</p>

Case certified from superior court of Buffalo. Action by Joseph P. Toms against the Buffalo Creek Bailroad Company. From a judgment recovered in a superior court of Buffalo on the verdict of a jury in favor of plaintiff, and from an order made by that court, denying a motion for a new trial on the court’s minutes, defendant appealed. Two of the judges of that court being disqualified to hear the appeal, it was certified into this court.

Action by Laura B. McGuire against Bichard D. Richards. From a judgment for plaintiff, entered on the 21st day of December, 1892, and from an order denying a motion for a new trial,'made on the judge’s minutes, defendant appeals.

<p>Counterclaim—Action for Slander.</p> <p>In an action for slander in calling plaintiff a thief defendant allegadas a counterclaim that at the time the slanderous words were alleged to have been spoken plaintiff was tailing wood from defendant’s premises, knowing it to be defendant’s wood; that defendant ordered him to desist, whereupon he maliciously charged defendant with being a thief, and with stealing plaintiff’s wood; and that the cause of action in favor of defendant arose out of the same transaction set forth in the complaint as the foundation of plaintiff’s cause of action, and occurred at the same time and place, and in the same conversation. Held, that such-counterclaim did not arise out of the transaction set forth in the complaint as the foundation of plaintiff’s claim, and was not connected with the subject of plaintiff’s action, within Code Civil Proc. § 501, defining counterclaims.</p>

Exceptions from circuit court. Action by George S. Ewart against the Bank of Monroe. Defendant moves for a new trial on exceptions ordered to be heard at the general term in the first instance, after a verdict directed in favor of plaintiff.

<p>1. Wills—Revoking Probate—Parties to Probate Proceedings.</p> <p>Under Code Civil Proc. §§ 2647, 2648, providing that a person interested in the estate of a decedent may present a petition to have the probate of decedent’s will of personalty set aside within one year after the decree of probate is recorded, the right to proceed on such petition is not affected by the fact that petitioner was a party to the probate proceedings, and filed objections, but did not appear to substantiate them at the hearing.</p> <p>2. Same—Persons Interested in Estate.</p> <p>Code Civil Proc. § 2647, authorizing “a person interested in the estate” of a decedent to present a petition to set aside probate of decedent’s will of personalty, includes the next of kin of testator, though they are not legatees.</p> <p>3. Same—Petition—Averment on Interest.</p> <p>A petition in such case, which contains no averment of petitioner’s interest in the estate, except that he is an “heir at law,” is insufficient, since he may be an heir at law, and yet not entitled to share in the personalty, to which alone section 2647 applies; but the defect is cured by a stipulation that petitioner is one of the next of kin of testator.</p> <p>4 Limitations—Commencing Special Proceeding—Serving Citation.</p> <p>Code Civil Proc. § 2517, provides that “the presentation of a petition Is deemed the commencement of a special proceeding,” within the statute of limitations, “but, in order to entitle the petitioner to the benefit of this section, a citation issued upon the presentation of the petition must within 60 days thereafter be served.” Held, that the citation is required to be served within 60 days after it is issued, and not within 60 days after the petition is presented. In re Bonnett’s Will, (Surr.) 9 N. Y. Supp. 459, disapproved.</p> <p>5. Surrogates’ Courts—Supplemental Citation.</p> <p>Under Code Civil Proc. § 2481, authorizing surrogates to issue supplemental citations, such citations need not be marked “Supplemental.”</p>

<p>Appeal from special term, Erie county.</p> <p>Action by the Atlas Furniture Company against George P. Freeman and John W. Chesebro. From an order denying defendants’ motion to vacate an attachment, defendants appeal.</p>

<p>1. Trusts—Perpetuities—Partially Executed Contract.</p> <p>Defendant and her six brothers and sisters agreed with each other to hold, for the joint use of all, certain property owned by them in common; that on the death of each the share of the one dying should vest in the survivors until the entire estate should be vested in the last survivor, and that on the death of such last survivor it should pass to plaintiff. The brothers and sisters all died,, having observed their agreement. H'eldt that, though the agreement, so far as it was unexecuted,- might be void under the statute of perpetuities, (1 Rev. St. p. 723, § 15,) defendant could not repudiate it on that ground as to the shares of her brothers and sisters which she had acquired under the agreement.</p> <p>3. Statute op Frauds—Part Performance.</p> <p>The transfer to defendant of the shares of her brothers and sisters who had died was such part performance as took the case out of the statute of frauds, (2 Rev. St. p. 134, § 6,) requiring agreements relating to land to be in writing.</p> <p>8. Action—Who may Sue—Party in Interest.</p> <p>The shares of the estate acquired by defendant from her brothers and sisters being held by her under an agreement that it should pass on her death to plaintiff, by descent or devise, plaintiff was the owner of the reversion, and as such could sue to set aside a conveyance of the property by defendant to a third person.</p>

Action by William H. Huffman against William Beever, Frederica Beever, and William O. Lewis. From an order sending back a referee’s report with directions to make further findings, and to prescribe the form of judgment to be entered against defendant William Beever, said defendant appeals.

Two actions: One by Catharine Faure and others, as heirs and next of kin of Catharine H. Radcliffe, against the American Society for the Prevention of Cruelty to Animals, to recover money paid over to defendant under an alleged void devise in Radcliffe’s will; and the other by the same plaintiffs against Edwin Bergh, Jr., and another, as executors of Radcliffe’s will, to recover moneys of the estate alleged to have been collected and converted to their own use by defendant.

Action by Christian F. Schrammb against Edward S. Farrow, impleaded, etc. The complaint was dismissed for want of prosecution, and judgment directed for defendant Farrow.

<p>Action by Herman Gemau, administrator, etc., against the Oceanic Steam Navigation Company, Limited. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Action by Edgar S. Pierson against Norman L. Munro. The complaint was dismissed, and plaintiff appeals.</p>

Action by Jeremiah P. Robinson, Isaac R. Robinson, Harriet W. R. Leech, and Elizabeth De Witt Leonard, individually, and as executors, executrices, and trustees of Jeremiah P. Robinson, deceased, and of Elizabeth Robinson, deceased, against William H. Beard and others, as executors and trustees or Francis D. Beard, deceased, to compel defeudants to specifically perform certain covenants contained in a lease made by William Beard to Jeremiah P. Robinson and another. .

<p>Appeal from circuit court, Queens county.</p> <p>Action by Roger M. Sherman against Herbert L. Satterlee for money had and received.</p>

Action by David M. Torrey against Francis A. Waters and others. On application of plaintiff, an order was granted for the arrest of defendant Waters, and a subsequent order vacated the order of arrest.

Action by Aaron R. Stevens and others against the Central National Bank of Boston and others. Judgment for plaintiffs. From an order denying defendants’ motion to strike out a provision of the judgment which perpetually enjoins them from proceeding with a sale of the Lebanon Springs Railroad, under a decree of the United States circuit court, they appeal.

<p>Appeal from judgment on report of referee.</p> <p>Action by Michael Murphy against Hugh Graham, as executor of William Carroll, deceased, for services rendered deceased.</p>

<p>Action by Jennie L. Baldwin against Silas H. Walker and others.</p>

<p>Action by Alexander Grant and others against the Syracuse Door & Blind Company and others.</p>

<p>Action by William Duffus against Christoph Schwinger and others.</p>

<p>Action by Horace Parks, as surviving administrator of X Lee Tinker, deceased, against Clarence Andrews, individually, and as administrator of Josiah Andrews, deceased, and others.</p>

<p>Action by Henry B. Sewell against Aaron M. Lathrop.</p>

<p>Action by Melissa Squires against Oliver P. Hurd.</p>

<p>Action by Henry Morganthau and others against Elizabeth H. Walker to recover commissions for the sale of real estate.</p>

<p>Action by George W. Van Allen against the Manhattan Elevated Railroad Company.</p>

Action by Julia Pfeifer, as administratrix of the estate of Philip Pfeifer, •deceased, against Minnie Ahlering, for the conversion of personal property and for money had and received.

<p>Action by James E. Ehrlich against Samuel Adams and others. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Action by the Oceanic Steam Navigation Company, Limited, against the Compañía Transatlántica Española.</p>

<p>Action by Thomas O. Hague against Sarah B. Cone on a note.</p>

<p>Action by William R. Tobin against the Manhattan Savings Institution.</p>

<p>Appeal from special term, Kings county.</p> <p>Two actions, one by Henry H. Isham, as trustee, against Augustus T. Post, on whose death the action was revived against Mary E. Post as his administratrix, and the other by Mary E. Post, as administratrix, against Henry H. Isham and others. In the first action (Isham v. Post) judgment was entered in favor of plaintiff, and in the second action (Post v. Isham) the complaint was dismissed. In each case Mary E. Post appeals.</p>