Volume 24 — New York Appellate Division Reports

Motion by the defendants, Charles C. IVIacy and another, for a new trial made upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiff rendered by direction of the court after a trial at the Hew York Trial Term.

<p>Eminent domain — discretion as to the particular portion of lands specifically described, in a statute, which are to be taken for a public use—buildings constructed after the passage of the act and before the discretion is exercised — measure of damages.</p> <p>Where a statute, authorizing the taking of certain pieces of land, described in the statute by metes and bounds, for public parks in New York city (Laws of 1894, chap. 746), gives to commissioners to he appointed discretion to take so much thereof as they “ shall deem advisable to he acquired,” no particular portion of the land described in the act can be said to he taken for public use until the commissioners have finally acted upon it in the manner prescribed by the statute.-</p> <p>The owner of land described in the act, who, in the interval between its passage and the final determination of the commissioners as to what lands shall be taken, has in good faith erected a building thereon, is entitled to recover compensation for such building as of the time when it was decided by the commissioners that his land should he taken.</p> <p>Nor is this right afiected by the fact that the statute merely authorizes compensation to be made for buildings built upon the land prior to the passage of the act.</p>

<p>Perjury — opinion of the trial justice in the court in which the perjury is alleged to hate been committed, that the accused had been guilty of perjury —contradiction of the accused upon collateral issues.</p> <p>A conviction for perjury, alleged to have been committed by the accused while testifying as a witness in an action for a divorce between other persons, cannot be sustained where it appears that, upon the trial of the indictment, the court admitted a statement that the accused was guilty of perjury, made by the justice who tried the divorce case, at the time he committed the accused for that crime.</p> <p>Where the accused, upon his cross-examination by the prosecution, denies that he knew a certain woman and states that he never had anything to do with any divorce matters for her, it is erroneous to allow the prosecution to call the woman as a witness and prove by her that such statement is false.</p>

Appeal by the defendant, Walter Damrosch, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 22d day of October, 1897, denying the defendant’s motion for a commission to take testimony outside of the State of Hew York.

Appeal by the relator, James Golden, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the comity of New York on the 20th day of January, 1896, denying the relator’s motion for a peremptory writ of mandamus.

Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19tli day of December, 1895,.upon the verdict of a jury rendered by direction of the court.

Appeal by the plaintiff, Henry E. Reiser, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 10th day of June, 189J, upon the dismissal of his complaint by direction of the court after a trial at the Hew York Trial Term. The action was brought to recover damages for personal injuries resulting to the plaintiff from the alleged negligence of the defendant.

Appeal by the plaintiffs in each of the above-entitled actions from a judgment of the Appellate Term of the Supreme Court, rendered on the 27th day of May, 1897, and entered in the office of the cleric of the county of Hew York affirming a judgment of the General Term of the City Court of the city of Hew York, entered in the office of the clerk of the City Court of Hew York on the 17th day of December, 1896, which affirmed a judgment of the Trial Term of said City Court,…

<p>Appeal by the defendant, Alva S. Walker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of July, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of July, 1897, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>This action was brought to recover damages for personal injuries caused by the defendant’s alleged negligence. The defendant was the owner of a hotel in the city of New York known as the Hotel Beresford, into which a Buffalo firm was putting a refrigerating plant. The plaintiff’s employer, one Craig, a carpenter, sent him to the building upon the day in question in order to do certain work in and about the elevator shaft of the hotel, which work was incident to the putting in of the refrigerating plant. He made an arrangement with the defendant’s elevator man whereby he was permitted to get upon the top of the elevator, and the latter notified him when he was about to move it up or down. The elevator man neglected to so notify him upon one occasion, and the sudden starting of the elevator caused the injuries for which the plain tiff sought to recover. A verdict was rendered in favor of the plaintiff, but, upon appeal to the Appellate Division, the judgment entered thereon was reversed and a new trial ordered. (See 14 App. Div. 303.) On the second trial the plaintiff recovered a verdict for the sum of $2,500, and from the judgment entered thereon, and from-the order denying the defendant’s motion for a new trial, this appeal is taken.</p>

Appeal by the plaintiff, John S. Mabon, as receiver of The Ongley Electric Company, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Uew York on the 28th day of May, 1897, upon the decision of the court, rendered after a trial .at the Uew York Special Term, sustaining the defendant’s demurrer to the complaint on the grounds that the court had no jurisdiction of the subject of the action, and…

Appeal by the plaintiff, John S. Habón, as receiver of The Ongley Electric Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of June, 1897, denying the plaintiff’s motion to resettle an order entered in said clerk’s office on the 1st day of June, 1897, and also from the order entered in said clerk’s office on the 1st day of June, 1897, vacating the service of the…

Appeal by John Shady from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of October, 1897, revoking and canceling a liquor tax certificate issued to the said John Shady.

Appeal by the plaintiff, William W. Averell, and by the defendants, Amzi Barber and others, from a final judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 13tli day of July, 1896, upon the report of a referee, with notice of an intention to bring up for review upon such appeal various intermediate orders.

Appeal by the plaintiff, Heloise H. Fretliey, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 10th day of February, 1897, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint, and also from an order entered in said clerk’s office on the 10th day of February, 1897, upon which said judgment was entered.

Appeal by the defendant, The Bowery Bank of New York, from a judgment of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York nunc pro tuna as of the 28th day of April, 1897, reversing a judgment of the General Term of the City Court of the city of New York, entered in the office of the clerk of the City Court of New York on the 18th day of December, 1896, which latter judgment affirmed a judgment of the Special Term of the…

Appeal by the defendant, Pelham St. George Bissell, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of ¡New York on the 21st day of April, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of May, 1897, denying the defenidant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Edward H. Ball, individually and as assignee of E. B. Cuthbert & Co., from an order of the Supreme Court, made at the blew York Special Term and entered in the office of the clerk of the county of blew York on the 6th day of October, 1897, restraining the defendant, as assignee of E. B. Cuthbert & Co., from disposing of the property of the assigned estate to the extent of $4,212.50, during the pendency of an action brought by plaintiff to recover…

Appeal by the plaintiff, George M. Curtis, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 22d day of June, 1891, upon the decision of the court, rendered after a trial at the Hew York Special Term, sustaining the defendant’s demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and also from an order entered in said…

Appeal by the defendants, William, Berri and others, constituting “The Trustees of the New York and Brooklyn Bridge,” from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of November, 1897, continuing, during the pend-ency of the action, an order restraining the construction of surface railroad tracks on the New York city terminus of the New York and Brooklyn Bridge.

Appeal by the defendant, Amelia Gorman, as sole executrix, etc., of John J. Gorman, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of January, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30tli day of January, 1897, denying the defendant’s motion for a new trial made upon the minutes.

<p>Libel — imputation of poverty and squalor amounting to defamation—-the complaint should set out the aUeged defamatory matter.</p> <p>The imputation or poverty, squalor and wretchedness may be so expressed in a writing as to excite ridicule and thus to amount to defamation which will sustain an action of libel.</p> <p>The complaint in an action for libel, while it need not set forth the extraneous facts which show the application of the libelous matter to the plaintiff, must contain the alleged libelous matter itself; a reference to it and a statement of what the plaintiff infers from parts of it which are not set forth in the complaint, either in the words used by the writer or in general tenor and effect, are not sufficient.</p>

Appeal by the plaintiffs, Felix Herzfeld and others, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 17th day of June, 1897, denying the plaintiffs’ motion for leave to enter judgment upon a stipulation.

Appeal by the plaintiffs, Felix Herzfeld and others, from an order of the Supreme Court, made at the New York Trial Term bearing date the 1st day of October, 1897, and entered in the office of the clerk of the county of New York denying the plaintiffs’ motion to place the above-entitled case on the preferred calendar of said court.

Appeal by Russell Bradford, the plaintiff in the first above-entitled action, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of November, 1897, staying a sale under the judgment of foreclosure in the action.

Appeal by the plaintiff, John Crowley, as administrator of Timothy Crowley, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of February, 1897, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendants, Charles II. Steinway and others, as executors, etc., of William Steinway, deceased, and others, from aiinal judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of April, 1897, upon the decision of the court rendered after a trial at the New York Special Term, and also from an interlocutory judgment in favor of the plaintiff, entered in said clerk’s office on the 27th…

Appeal by Sigmund M. Mundt, as administrator de bonis non of Martin M. Mundt, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of April, 1897, upon the dismissal of the coinplaint upon the merits by direction of the court after a trial at the New York Trial Term ; also from an order entered in said clerk’s office on the 5th day of April, 1897, denying the plaintiff’s motion…

Appeal by William G-. Hamilton and others, claimants, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of March, 1897, confirming the report of commissioners appointed in a proceeding to acquire title to land for school purposes.

Appeal by the plaintiff, Albert R. Ledoux, from portions of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 13th day of March, 1897, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Walter I. Kelso, as receiver of The Monarch Cigarette Company, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 26th day of May, 1897, upon the report of a referee, as awards nominal damages to plaintiff and costs to defendant.

Appeal by the plaintiffs, Dora Otten and Henry H. Otten, as executors and trustees under the will of Henry Otten, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of October, 1897, denying the plaintiffs’ motion to compel the defendant to accept service of a supplemental complaint.

<p>Appeal by the plaintiff, Richard D. Harris, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of October, 1897, denying the plaintiff’s motion for leave to serve a supplemental complaint.</p> <p>This action was brought to determine the claims of the defendants to a fund held by the plaintiff, being the amount paid to him on a mortgage which he held as trustee for the defendants. Subsequently the conflicting claims were adjusted by a stipulation entered into between all the parties, which recited that it was “ by way of compromise and settlement of this action,” whereby the claims of the several defendants were liquidated and fixed at divers specific sums, “ and that upon the respective payments being made by the plaintiff herein, the action be discontinued.” Thereafter the plaintiff paid one of the claimants in full, and to the respondents, Elliott’s executors and Riggs & Co., he paid the sum of $5,000, leaving a balance due under the stipulation of $3,077.98. The defendants applied for an order requiring the plaintiff to pay the balance. In opposition to such motion, the plaintiff asserted certain claims against the defendants for professional services rendered them, which he insisted should be set off against such balance. This motion of the defendants was denied on the ground that such a summary application could not be made on a stipulation which would involve the consequence of a punishment for contempt if the order was not complied with. (Harris V. Elliott, 19 App. Div. 60.) The plaintiff then asked for leave to serve a supplemental complaint, setting up the stipulation and the payments made under it, and the set-offs or counterclaims which he claims to have against the defendants for professional services, which leave was denied, and from the order denying the same this appeal is taken.</p>

Certiorari issued out of the Supreme Court and attested on the 28th day of October, 1897, directed to Daniel Lord and others, commissioners, etc., commanding them to certify and return to the office of the clerk of the county of Hew York all and singular their proceedings in regard to an award made to the claimants by the said respondents as commissioners of the Change of Grade Damage Commission. Chapter 537 of the Laws of 1893 provides : “Section 1.

Appeal by the plaintiff, Henrietta T. Blatchford, from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 22d day of November, 1897, as sets aside an order for the examination of the defendant, Willis S. Paine.

Appeal by the defendant, the International Navigation Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of October, 1897, denying the defendant’s motion to compel the plaintiff to serve a bill of particulars. The action was brought to recover damages for the killing of the plaintiff’s intestate by an explosion on board the steamship St. Paul.

<p>Mechanic’s lien filed by a sub-contractor — counterclaim for the expense of remaning stone placed by the sub-contractor on city land.</p> <p>In an action to foreclose a mechanic’s lien, filed hy a sub-contractor, a counterclaim, to the effect that the sub-contractor dumped rock near thé contractor’s work on land owned by the city of Hew York, with which the principal contract was made, which stone the engineer insisted that the contractor should, and which he did, remove before the engineer would give him a certificate — there being no proof of the contractor’s obligation to remove this rock from the city’s land — cannot be sustained.</p>

Appeal by the defendants, Adrian T. Hegeman and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of September, 1897, overruling the answers of the defendants as frivolous.

Appeal by the defendants, David Hyerle, individually and as executor, etc., of Pirineas Burgess, deceased, and others, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of September, 1897, as continues an injunction pendente lite and appoints a receiver.

Appeal by the defendants, Emilie F. Wallace and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 24th day of September, 1897, directing a reference of the issues in the action.

Appeal by the defendant, The Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of. the county of New York on the 20th day of May, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of May, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Ewen McIntyre, as testamentary trustee, etc., of Thomas 0. Chalmers, M. D., deceased, from portions of a decree of the Surrogate’s Court of the county of Mew York, entered in said Surrogate’s Court on the 12th day of May, 1897, settling the accounts of said trustee.

<p>Reformation of a contract—what must he shown to authorize it — consideration for a contract.</p> <p>A written agreement will not be reformed so that it may agree with a prior verbal one unless, through a mistake of the draftsman or otherwise, it does not correctly express the real intention of the parties, or unless its execution was procured by the fraud or misrepresentations of the other party to it. It cannot be reformed because of mere inadvertence on the part of one of the parties to it in failing to observe the presence therein of one of its provisions.</p> <p>In an action brought by an electric storage company to recover a balance of a deposit made with the defendant, a trust company, the proof tended to show that a written agreement executed by all the parties to the action correctly stated a prior verbal agreement made between them and an electric company, by the terms of which, in view of the fact that the trust company could not lawfully guarantee to the electric company, as desired by it, the performance of a contract of the electric storage company, its licensee, the trust company agreed that it would lend money to a traction company, which the traction company should use as a guaranty fund to protect the electric company; that the president of the traction company should, to create such fund, deposit with the trust company certain collateral to secure the note of the traction company, which was to he discounted by the trust company.</p> <p>It was further provided that any balance of the fund or deposit not needed for the performance of the contract should be paid by the trust company to the storage company.</p> <p>Held, that although the presence of this latter provision in the contract was npt noticed by the officials of the trust company, there was, in the absence of any proof of fraud or misrepresentation, no ground for a judgment purporting to reform the contract into one of simple guaranty, and relieving the trust company from the effect of this provision and the duty of paying over this balance to the storage company;</p> <p>That the fact that the defendant received a net profit of two per cent on the amount of the note or debt of the traction company, the difference between the interest reserved on the note and the interest payable under its certificate of deposit, as well as §50,000 worth of the stock of the traction company, afforded a sufficient consideration for its promises, and entitled the storage company to recover upon the promise made to it, notwithstanding the fact that the traction company had failed to pay its obligation and its stock was probably worthless.</p> <p>O’Brien, J., dissented.</p>

Appeal by Yoah W. Pike and others from portions of a decree of the Surrogate’s Court of the county of Yew York bearing date the 2d day of June, 189Y, and entered in said Surrogate’s Court, accepting the resignation , of the trustee and settling his accounts.

Appeal by the defendant, Andrew J. Kerwin, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 6th day of April, 1897, upon the verdict of a jury, and also from, an order entered in said clerk’s office on the 6th day of April, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the relator, John Mullen, a veteran of the late civil war, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9tli day of October, 1897, denying his motion for a. peremptory writ of mandamus.

Appeal by Edward Wanty, as assignee, etc., of Devlin & Co., a corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of October, 1897, directing the said assignee to pay to the respondents the sum of $1,604.15,. rent of premises occupied by the assignee after the assignment. '

Appeal by the petitioners in the above-entitled proceeding and Commodore P. Yedder, the receiver of the defendant,, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of September, 1897, modifying an injunction order entered in said clerk’s office on the 17th day of June, 1897, dissolving the defendant corporation so as to permit the continuance of an action against such…

Motion by the plaintiff, the First National Bank of Salamanca, for a new' trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the defendant Abijah Weston, rendered by direction of the court after a trial at the Cattaraugus Trial Term on the 23d day of February, 1897.

Appeal by the defendant, William H. Huffman, from a judgment of conviction of the County Court of Allegany county, entered in the office of the clerk of the county of Allegany on the 18th day of December, 1896, convicting him of the crime of violating the Excise Law, and also from an order entered in said clerk’s office on the 18th day of December, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Motion by the plaintiff, Anna H. Messmer, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon a nonsuit granted by the court after a trial at the Monroe Trial Term on the 6th day of January, 1897.

Appeal by Louisa Williams, an alleged incompetent person, from an order of the Onondaga County Court, entered in the office of the clerk of the county of Onondaga on the 12th day of April, 1897, denying her motion for a new trial and confirming the findings of a jury upon the execution of a commission in proceedings de lunático inquirendo, with notice of an intention to bring up for review upon such appeal the rulings of the commissioner on the trial and the exceptions taken…

Appeal by the defendant, Addie B. Bell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 8th day of October, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27tli day of ¡November, 1896, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Joseph Palmer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 30th day of December, 1896, upon the verdict of a jury for $2,440.50, and also from an order entered in said clerk’s office on the 28th day of December, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The plaintiff in his complaint alleged that he was the owner and holder of thirty-nine shares of the capital stock of the M. S. Robinson Musee Company, a corporation engaged in the theatrical business in the cities of Buffalo and Rochester, incorporated under the laws of the State; and “was also at that time, and thereafter continued to be, individually liable as an indorser or surety upon various promissory notes or other obligations of said Musee Company in the sum of over §5,000;” that the company was conducting two theatres, one in the city of Buffalo and one in the city of Rochester; that the one in the city of Buffalo was destroyed by fire in the early part of December, 1893, “ and left, as the only theater conducted by said company, the said Rochester house; that during said month of December, 1893, and the month of January, 1894, the said defendant was constantly urging various other parties interested in said company, that said Rochester house should be sold, and assured the plaintiff and others interested therein that he could effect a sale thereof; that, in order to sell said Rochester house, which was the only and sole remaining asset and business of said Musee Theater Company, it was necessary that all of the stockholders of and interested in said company should consent to the sale thereof; that in or about the said month of January, 1894, the said defendant stated to the plaintiff that he, the said defendant, had secured the consent of all the remaining stockholders, except the plaintiff, for a sale of said Rochester house, and that, in order to make the sale as he desired and thereby pay in full the debts of said theater company connected with the management and operation of said Rochester house, it was necessary' to obtain the consent of the plaintiff thereto; that plaintiff thereupon, as he had at divers times before, advised said defendant that he, the said plaintiff, would under no circumstances consent to the sale of said Rochester house at the proposed price unless the plaintiff were paid the sum of §2,150.00, which amount of the plaintiff’s money had gone into said company, and had been used for the payment of debts and expenses of said theater, and to represent and secure the payment of which the said above-mentioned stock had been issued to the plaintiff; that defendant thereupon stated to plaintiff that he, the said defendant, was anxious to make the proposed sale of said Rochester house, and that it was necessary to obtain plaintiff’s consent as a stockholder thereto, and said defendant agreed that if he, the said plaintiff, would sign the written consent to such sale, that he, the said defendant, would personally pay to the plaintiff, immediately upon the consummation of the sale of said Rochester house, the said sum of §2,150.00, and that a sale was then being negotiated with a Mr. Moore of Detroit, Michigan; that the plaintiff thereupon consented to and did sign said consent for the sale of said premises by said defendant, upon the faith of said defendant’s agreement to pay said sum of $2,150.00 to the plaintiff as aforesaid, which said written consent was thereupon delivered by the plaintiff to the defendant, and said defendant did immediately thereafter make a sale of said Rochester house, and received the purchase price thereof; that plaintiff thereafter demanded of the said defendant the payment of said sum of $2,150.00, and the said defendant has refused, and still refuses, to pay the same or any part thereof.”</p> <p>The answer of the defendant contains several denials; and it alleges “ that said plaintiff knew that it was necessary for all of the stockholders interested in said company to consent to a sale thereof prior to the time that said plaintiff signed said consent.” The answer further “ alleges that the agreement referred to in the complaint, if made at all, was made without consideration, and the same, not being in writing, was void by the Statute of Frauds of the State of Hew York.”</p>

<p> negligence of one asked to see if a train is wppn'oaching—when attributable to the party making the request. </p> <p>A party who, when approaching railroad tracks in a wagon, asks a person on foot to go on the tracks and see if he can see any train, thereby makes such person his agent and the negligence of such agent will be attributed to him.</p> <p>Ward, J., dissented.</p>

Appeal by the defendant, The Buffalo, Rochester and Pittsburgh Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Cattaraugus on the 3d day of May, 1897, upon the verdict of a jury for $507, and also from an order entered in said clerk’s office on the 10th day of May, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Stephen Coursey, from a judgment of the County Court of Ontario county in favor of the defendant, entered in the office of the clerk of the county of Ontario on the 6th day of May, 1897, upon the decision of the court reversing the judgment rendered by a justice of the peace in favor of the plaintiff.

Appeal by the defendants, The Lehigh Valley Railway Company and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 23d day of February, 1897, upon the decision cf the court rendered after a trial at the Erie Special Term overruling their demurrer to the plaintiff’s complaint.

Appeal by the defendant, Charles L. Sherrill, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Erie on the 19th day of November, 1896, upon the decision of the court rendered after a trial at the Erie Special Term. The defendant Sherrill and his wife executed a bond and mortgage to the plaintiff (respondent)'on the 1st day of November, 1894, to secure the payment of §50,000.

<p>Libel — reading to the jury from a report of the case on a former trial — measure of damages.</p> <p>Where the complaint in an action for libel contains no allegations of special damage or of malice, and it appears upon the trial that the publication, which was admitted, had resulted from the error of a reporter, which was corrected in the next issue of the newspaper of the defendant, it is erroneous for the court to permit the counsel for the plaintiff to read to the jury, as a part of his summing up, an extract from a former published opinion”relating to the case, which tended to induce the jury to believe that the plaintiff had, as matter of law, a right to recover substantial, as distinguished from nominal, damages.</p>

<p>Form of a, judgment in ejectment in 1852—when the uncorroborated, testimony of the party served is insufficient to justify setting aside a proof of service — purchase of a hostile title by one, a former tenant in common —presumption as to payment of taxes.</p> <p>A judgment rendered by default, in 1853, in an action of ejectment, upon a complaint alleging that the plaintiff was the owner of the fee and entitled to the possession of certain premises, specifically describing them, which merely adjudges that the plaintiff “recover and have possession of the lands described in the complaint in this action, and that the defendants surrender and deliver up the possession thereof,” and does not declare that the defendants have no title thereto, conforms to the statutory requirements which then existed.</p> <p>Semble, that it is the better practice, under the Code oí Civil Procedure, to describe in the judgment, in an action of ejectment, the land and the interest therein recovered.</p> <p>Proof of personal service of the summons and complaint in an action of ejectment, which has been a matter of record for more than forty years, will not be set aside upon the uncorroborated testimony of the person served, particularly where he admits that he has for many years known of the judgment rendered in the action and of mesne conveyances made under it, and has made no attempt to have the judgment set aside.</p> <p>The purchase, after judgment in ejectment, from the plaintiff in that action, by one heir of an intestate who was in his lifetime seized of the premises, where the title of such purchaser was cut off by that judgment, of a part of the premises, cannot be taken advantage of by other heirs of said intestate, claiming to have been at one time tenants in common with such purchaser.</p> <p>Semble, that the presumption is that taxes are paid by persons against whom they are assessed.</p>

<p>Negligence —permitting a telegraph pole to stand dangerously nem' a railroad track, by which a fireman was struck while looking back to a car ha/oing a hot journal — previous acquaintance with the locus in quo — violation of a rule as to the fireman’s place on the engine.</p> <p>Where a fireman, on an engine of a railroad company, was killed, while looking out of the side of the engine for the purpose of ascertaining whether a journal on a car was smoking, by his head coming in contact with a telegraph pole of a telegraph company, which, although forty-nine inches from the track, measured on the ground, was, because of its leaning over, only about four inches from the side of the locomotive upon which the deceased stood, at a point at the height of his head, there being unoccupied land upon which the pole might have been set, twelve or thirteen feet away from the track, the question whether the railroad company was negligent in permitting the telegraph pole to stand in the position in which it did should be submitted to the jury.</p> <p>This is so although the deceased had previously passed the pole on many occasions, and notwithstanding the fact that the fireman’s proper place on the engine, under the rules of the railroad company, was on the left side and not on the right side of the engine, where he wTas injured.</p>

<p> Common ca/n'ier—it may exclude an intoxicated passenger from its railroad can'. </p> <p>A railroad company has a right to refuse to allow a person, who is not in possession of a ticket, and who is so far intoxicated as to he helpless and almost unconscious, to enter its passenger car.</p>

Appeal by the defendant, John F. Kinney, sherifi of Niagara county, from an order of the Supreme Court, made- at the Erie Special Term and entered in the office of the cleric of the county of Niagara on the 7th day of May, 1897, upon the return to a writ of habeas corpus, directing that the relator be discharged from imprisonment on the 23d day of July, 1897. Further facts are stated in the dissenting opinion.

<p>Partition — when a judgment in, binds tmborn persons, beneficiaries under the will {adjudged to be invalid) of the original owner.</p> <p>The will of a testator, executed in 1867, by which he devised his entire estate to his widow for life, and after her death devised life estates in three separate parcels of land, a life estate in one parcel to each of his three sons, with remainder in each case to the children of the son, should he leave any, and, if not, to the other sons or the survivor of them, was, in an action for partition, brought by one of the sons, adjudged to be void by reason of the testator’s mental incapacity, and the title to the lands was adjudged to be in the three sons as tenants in common, subject to the widow’s dower, and the lands were decreed to be sold, the proceeds, after deducting the dower interest of the widow, to be divided among the three sons. Upon the entry of this judgment the sons executed a warranty deed of the entire premises to the widow.</p> <p>In an action subsequently brought by the children of one of the sons, the plaintiff in the partition suit, who were born after the above occurrences, to establish their title to the parcel of land devised by the will to their father for life, with remainder to his children, if any, either under the will of 1867 or under a previous will executed in 1866, having the same provisions as the will of 1867, which in terms was revoked by the will of 1867, it was</p> <p>Held, that the fact that the guardian ad litem of certain infant defendants in the partition suit, children of one of the uncles of the present plaintiffs (who could not, under the wills, have any interest in the land in question in this action), was appointed by a justice of the Supreme Court and not by the Supreme Court itself, and that he gave no bond, was immaterial, as the judgment in the partition suit would be effective as to those who were parties to it (the parties other than the infants being the only parties interested in the particular land here in question), even if the infants had not been made parties at all; moreover, that a judgment against infants in an action relating to real estate is not rendered void, but voidable only, by reason of the fact that a guardian ad litem, was not appointed;</p> <p>That the executrix was not a necessary party, in her representative capacity, to the partition suit, as she had, in her capacity as executrix, no title to the real estate in question;</p> <p>That the judgment in the partition suit was not void because it did not protect the rights of the unborn grandchildren of the testator, as the statute (2 E. S. 326, § 55) did not contemplate that a judgment in partition should provide for the protection of unknown or unborn persons adjudged to have no interests in the land partitioned;</p> <p>That the plaintiffs in the present action, not being born until after judgment was rendered in the partition suit, were represented by their father, the plaintiff in the partition suit;</p> <p>That the father of the plaintiffs in the present action having entered a judgment in the partition suit, in which it was adjudged that his father, the testator, was incapable, by reason of unsoundness of mind, to make the will of 1867, and “for upwards of two years next preceding the execution thereof had been continuously, without any lucid interval, of unsound mind, and was, during all the time aforesaid, entirely devoid of all testamentary and devising capacity, and incapable by reason thereof of making a valid will or devise," and that the real estate of which he died seized descended to his three sons, subject to the right of dower of his widow; and all the parties, including the guardian ad litem, having assented to the entry of such judgment, and having thereby waived an amendment to the complaint under which the will of 1866 might have been alleged to be invalid, they, and all persons represented by or claiming under them, were estopped from claiming adversely to the provisions of such judgment.</p> <p>The effect of the judgment in the partition suit, as a judgment in rent, was not considered.</p>

Appeal by the plaintiffs, John P. Myers and another, as executors, etc., of David S. Ingalls, deceased, from a judgment of the Supreme Court in favor of the defendants, Bradley P. Wheeler and Hattie L. Wheeler, entered in the office of the clerk of the county of Erie on the 19th day of February, 1897, upon the decision of the court rendered after a trial at the Erie Special Term, canceling of record a mortgage on real estate because it was usurious, with notice of an…

Motion by the defendant, Charles A. Widener, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a. jury rendered by direction of the court after a trial at the Monroe Trial Term.

<p>Appeal by the plaintiff:, the Geneva and Waterloo Railway Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Seneca on the 26th day of February, 1897, dismissing the proceeding, with costs, upon the report of a referee which separately stated the facts found and the conclusions of law. •</p> <p>This proceeding was begun January 18, 1895, to have determined the mode in which the plaintiff’s street railroad should cross the defendant’s steam railroad in the town of Waterloo, New York, ■and the amount of compensation to be made therefor, pursuant to section 12 of chapter 565 of the Laws of 1890 (the Eailroad Law), which provides that, in case the line of an existing railroad is intersected by the line of a new railroad, and the two corporations are unable to agree on the mode of crossing or on the amount of compensation to be made therefor, the mode of crossing and the compensation therefor shall be determined by commissioners appointed by the court.</p> <p>The plaintiff was incorporated March 18, 1893, under the Eailroad Law, for the purpose of constructing and operating a street surface railway seven miles in length from a point in North street, in the village of Geneva, thence easterly in said street to the east bounds of that village, thence easterly along the highway in the town of Waterloo to the west end of Main street in the village of Waterloo, thence easterly along said street in said village to a point known as Fox’s crossing. The length of the line in either of the villages, or the length of the line in the town of Waterloo, does not appear. It is alleged in the petition, and proved on the trial, that the corporations are unable to agree as to the mode of crossing or as to the compensation which shall be paid by the plaintiff to the • defendant for the right to cross.</p> <p>The defendant answered and alleged, among other things, that the plaintiff had not obtained the consents of the owners of the property abutting on the street or highway or the consent of the local authorities having the control of that portion of the street or highway on which the plaintiff proposed to construct and operate its railroad, as provided by section 18 of article 3 of the Constitution of this State, and by section 91 of the Eailroad Law, as amended by chapter 723 of the Laws of 1894.</p> <p>This allegation in the answer presents the only questions raised on this appeal., By an order entered January 30,1895, the issues joined by the petition and answer were referred to a referee to hear and determine, who found as a fact that the plaintiff, prior to the beginning of this proceeding, had not obtained the requisite consents of the owners of property bounded on that part of the public road through which the plaintiff’s street railroad is proposed to be built, or the consent of the local authorities having control of that portion of the road; and as a conclusion of law that such consents by the property owners and by the local authorities were conditions precedent to the right of the plaintiff to maintain this proceeding. Upon this report a judgment was entered February 26, 1897, dismissing the proceeding, with costs, from which the plaintiff appeals.</p>

Appeal by the plaintiff, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 19th day of March, 1897, upon a non-suit granted by the court at the close of the evidence after a trial at the Onondaga Trial Term, and also from an order entered in said clerk’s office on the 25th day of March, 1897, denying the plaintiff’s motion for a new trial…

Appeal by the defendant, Robert M. Benedict, from a final order of the Supreme Court, made at the Monroe Special Term and entered in the office of the cleric of the county of Ontario on the 30th day of January, 1891, confirming the report of commissioners appointed in condemnation proceedings awarding $350 for an easement taken, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 30th day of January, 1891,…

<p>Appeal by the defendant, Amos Jackson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 13th day of March, 189G, upon the verdict of a jury, and also from an order bearing date the 6th day of March, 1896, and entered in said clerk’s office, denying the defendant’s motion for a new trial,made upon the minutes.</p> <p>This action was begun May 11, 1893, to recover $1,636.44, the contract price, at $20 per 1,000, for 81,822 feet of ash and hickory lumber, which the plaintiff alleges its assignor, the firm of Martin & Harris was induced to sell June 13, 1889, and deliver to the defendant June 14, 17 and 18, 1889, upon his false and fraudulent representations in respect to the quality and value of cultivators taken in exchange, and also to recover $37.53 paid for freight, $50 paid for painting and $30 paid for storage on the cultivators.</p> <p>Judgment is demanded for $1,753.97, the amount of the four sums above mentioned. The defendant interposed an answer in which he denied the allegations of fraud and also denied that the plaintiff or its assignor had necessarily expended $117.53 for freight, painting and storage of the cultivators, and alleged that he had shipped to Martin & Barns all cultivators called for by them. It is further alleged in the answer, as a defense and also as a counterclaim, that Martin & Barra delivered only 65,822 feet of lumber, which was not of the quality falsely represented by them, but of an inferior quality, and worth only $13 per 1,000, or $855.68. The defendant demands in his prayer for relief that the complaint be dismissed, with costs, but does not demand an affirmative judgment for damages on account of his alleged counterclaim. The plaintiff served a reply denying all the allegations of the alleged counterclaim. The issues so joined were brought to trial before a jury. The court instructed the jury that in case they found the issues of fact in favor of the plaintiff, it was entitled to .recover the contract price for the lumber and the sum paid by plaintiff for freight on the cultivators, with interest on these sums from the date of the shipment of the lumber, amounting in the aggregate to $3,336.81, for which sum the jury returned a verdict for the plaintiff.</p> <p>This action arose out of a written contract, of which the following is a copy:</p> <p>“Cleveland, O., June 13, 1889.</p> <p>“ Memorandum of agreement made this day-between Martin and Barris, of Cleveland, Ohio, and The Jordan Agricultural Works, of Jordan, NT. Y.</p> <p>“ Said Martin and Barris agree to deliver to said The Jordan Agricultural Works on cars in Cleveland fifty thousand (50,000) feet or more of 1 in., 1£ in., ltz- in., 2 in., 2J in., 3 and 4 in. Common cmd Cull white ash and hickory plank, and do further agree to receive from said The Jordan Agricultural Works in payment thereof their Brooks cultivators with No. 3 attachment, at discount from price list of 50 and 25 per cent.</p> <p>“Said Jordan Agricultural Works agree to pay said Martin and Barris in exchange trade as above noted for the ash and hickory lumber at the rate of twenty dollars ($20) per thousand feet.</p> <p>“MARTIN & BARRIS.</p> <p>“ W. B. Martin.</p> <p>i “AMOS JACKSON,</p> <p>“ Prop'r Jordan Agril. Works.</p> <p>“Pr. D. Evans.”</p> <p>When the contract was entered into, and for a short time afterwards, Martin & Barris, a firm, was engaged in dealing in lumber at Cleveland, O., which firm shortly afterwards was incorporated under the laws of Ohio, under the name of the Martin-Barris Company, which corporation succeeded to the interests of the firm in the contract. The defendant, at the date of the contract, was and since has been engaged in manufacturing agricultural implements at Jordan, New York, under the name of Jordan Agricultural Works.</p> <p>The lumber, the price of which this action is brought to recover, was delivered to the defendant June 14, 17 and 18,1889, at Cleveland, O. It was agreed on the trial that the defendant had delivered to Martin & Barris, the vendors of the lumber, 52 cultivators at the agreed price of $18.19 each, total, $945.88. The 52 cultivators were delivered in June, 1889, and no more cultivators were ordered by Martin & Barris or by the jdaintiff. Shortly after the defendant received the lumber he sold and delivered it to various persons in carload lots, as shipped at Cleveland, 0. September 20, 1889, the defendant wrote the plaintiff that claims had been made by the persons to whom he sold the lumber that the quantity delivered was considerably less than the quantity called for by the bills of lading. Se2>tember 25, 1889, the 2fiaintiff replied to this letter, saying that the lumber billed was delivered to the defendant’s agent at Cleveland, O., who acce2>ted it, which must end the matter of the claim for shortage. In the same letter the plaintiff stated that the cultivators received were not new machines, but old ones, of different patterns, and wholly unlike the model, and demanded that the defendant remit by draft $604.06, the difference between the contract 2)rice of the lumber and the contract price of the cultivators received. No fault was found by either party to the contract as to the other’s 2>erformance of it prior to these letters. October 4, 1889, the defendant replied to the plaintiff’s letter of September 25, 1889, expressed suiqn’ise, and stated that he had cultivators ready for delivery awaiting an order to ship them. October 14,1889, the ydaintiff replied to defendant’s letter of October 4, 1889, and reiterated the demand for $604.06. Nothing further was done by the 23arties until October 30, 1890, when the plaintiff wrote the defendanc, stating that several cultivators were due, that those received were worthless, and asked if the defendant could furnish cultivators as per sample shown and according to representations. November 4, 1890, the defendant replied that he had cultivators on hand to complete the contract, and that he had been sued for shortage on lumber. AjDril 27, 1892, the plaintiff wrote the defendant, stating that the cultivators received were valueless, and notified him that they were held subject to his order, and that they would be returned upon receiving shipping directions, and also demanded the payment of $2,012.79, the value of the lumber fraudulently obtained, besides interest and expenses.</p>

Appeal by tlie defendant, the Utica Telephone Company, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Oneida on the 30th day of August, 1897, denying a motion to vacate an injunction which restrained the defendant from setting telephone poles and establishing a telephone line in the streets of the city of Utica. The action is an equitable one and was commenced in August, 1897.

<p>Life insurance—pa/roi proof that an application when signed mentioned another beneficiary than the one written therein at the time of the trial—warranty as to sound health— a charge as to what constituted a breach thereof.</p> <p>A plaintiff in an action upon a policy of life insurance, who alleges in her com.plaint that she- is the beneficiary named in the application therefor, is entitled, when the application produced upon the trial from the possession of the defendant specifies the insured’s estate as the beneficiary, to prove, without amending her complaint, that when the application was signed by the insured the plaintiff’s name was inserted as that of the beneficiary.</p> <p>Such evidence does not constitute an attempt to prove by paroi the contents of a written instrument, but is simply an attempt to show what the instrument really was.</p> <p>In an action upon a policy of life insurance, by the terms of which the insured warrants that he was in sound health at the time of malting the application for the insurance, it is erroneous for the court to limit the effect of the absolute warranty by charging the jury that, in order to constitute a breach of the warranty, the insured must have been “of unsound health, and to such an extent that he must have realized it.”</p>

Appeal by the owner and claimant, Benjamin M. Baker, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 29th day of December, 1896, confirming the report of commissioners in proceedings for the condemnation of certain lands sought to be acquired by the city of Rochester for j>ark purposes, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s…

Appeal by the defendant, The Western Assurance Company of the City of Toronto, Canada, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 19th day of April, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of February, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John A. Reynolds, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 24th day of November, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21th day of November, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Fred W. Herring, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 28th day of December, 1897, upon the verdict of a jury for $784.66, and also from an order bearing date the 27th day of January, 1897, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the contestants, Elizabeth M. Stewart and others, from a decree of the Surrogate’s Court of the county of Monroe, entered in said Surrogate’s Court on the 3d day of March, 1897, admitting to probate the alleged last will and testament of Elizabeth Jane Abercrombie, deceased.

Appeal by the defendant, the Grand Lodge of the Ancient Order of United Workmen of the State of New York from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the lath day of March, 1897, upon the decision of the court rendered after a trial at the Onondaga Trial Term before the court without a jury.

Appeal by the plaintiff, George Hyland, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 3d day of March, 1897, upon the decision of the court rendered after a trial at the Monroe Trial Term before the court without a jury, dismissing the plaintiff’s complaint upon the ground that the action was barred by the Statute of Limitations.

Appeal' by the defendant, The County of Monroe, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 28th day of December, 1896, upon the decision of the court rendered after a trial at the Monroe Special Term.

Appeal by the defendant, Union Free School District No. 1 of the town of Canton, New York, from a judgment of the Supreme Court in favor of plaintiffs for $1,383.62, damages and costs, entered in the office of the clerk of the county of Onondaga on the 11th day of May, 1896, -upon the report of a referee.

Appeal by the plaintiff, Victoria A. Green, from a judgment of the County Court of Steuben county in favor of the defendant, entered in the office of the clerk of the county of Steuben on the 3d day of July, 1897, reversing a judgment in favor of the plaintiff rendered by a justice of the peace.

Appeal by the plaintiff, Reuben L. Smith, from' so much of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 21st day of January, 1897, upon the decision of the court rendered after a trial at the Erie Special Term, as adjudges that certain lands situate in the town of Tonawanda, Erie county, described in the complaint in the action, vested in Martha J. Smith, deceased, absolutely as against the…

Motion by the defendant, John Wood, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury rendered by direction of the court after a trial at the Steuben Trial Term.

Appeal by the defendants, Millard F. Gambee and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Seneca on the 21st day of May, 1895, upon the decision of the court rendered after a trial at the Seneca Special Term setting aside a deed made by Joseph B. Gambee, deceased, to the appellant Millard F. Gambee, upon the ground that the execution thereof was procured through fraud and undue influence…

<p>Practice—a motion for a new trial upon the ground of newly-discovered evidence after the verdict has been set aside as excessive, condemned — a motion for a new tried on all the grounds specified in. section 999 of the Code of Civil Procedure may be directed to be heard on a case and exceptions at Special Term.</p> <p>Pending an appeal by the plaintiff from an order setting aside as excessive a verdict in liis favor, the defendant cannot, for the purpose of availing itself of the discovery that the principal witness for the plaintiff committed perjury on the trial of the action, and of thus avoiding any possibility of the Appellate Division restoring the verdict, either in whole or in part, procure an order vacating the order setting aside the verdict and permitting the defendant to make a motion for a new trial on a case and exceptions upon all the grounds specified in section 999 of the Code of Civil Procedure, and also, and at the same time, upon the ground of newly-discovered evidence.</p> <p>Whether the trial justice will hear a motion for a new trial made under section 999 of the Code of Civil Procedure upon the minutes at the term at which the case was tried is discretionary with him; he may properly direct the motion for a new trial to be heard at Special Term upon a case and exceptions.</p>

Appeal by the defendant, George A. Corson, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 7th day of October, 1896, upon the verdict of a jury for $384.97, and also from an order entered in said clerk’s office on the 15th day of October, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Buffalo Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 2d day of January, 1897, for §132.72 damages and costs, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of January, 1897, denying the defendant’s motion-for a new trial made upon the minutes.

Appeal by the defendant, Charles W. H. Cárter, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Oneida on the 16th day of March, 1897, upon the decision of the court rendered after a trial at the Oneida Special Term after certain issues of fact had been submitted to a jury who rendered a verdict in favor of the plaintiffs; also from an order entered in said clerk’s office on the 16th day of March, 1897,…

Appeal by the plaintiff, George W. Browne, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 15th day of September, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, George L. Rose, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Niagara on the 30th day of September, 1896, upon tlie verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of November, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John Conway, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 1st day of June, 1897, dissolving a temporary injunction theretofore granted in the action.

Appeal by the defendant, Sarah A. Oottrell, as executrix, etc., of Hammond A. Cottrell, deceased, from a judgment of the Monroe County Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 6th day of February, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Rochester Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 20th day of May, 1897, upon the verdict of a jury, and also from an order bearing date the 19th day of May, 1897, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Edward Smith, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 25th day of March, 1897, upon the verdict of a jury.

Appeal by the contestant, Susan E. Hadcox, from a decree of the Surrogate’s Court of the county of Oneida, entered in said Surrogate’s Court on the 12th day of December, 1895, upon the decision of the court admitting to probate the alleged will of James A. Carey, deceased.

Appeal by the plaintiff, Arthur S. Hamilton, from so much of an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 13th day of September, 1891, as directs the plaintiff to furnish a bill of particulars setting forth “ the circumstances, letters, conversations or other methods of information by which it is claimed that the defendant The United States Voting Machine Company had knowledge of any…

Appeal by the defendant, Philip Moston, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Warren on the 22d day of June, 1897, upon the vepdict of a jury. This action is upon a promissory note signed by Robert and J ames Whitaker and by the defendant, Philip Moston, dated November 17,1885, payable two months after date, with interest.

Appeal by tlie defendants, John 0. Miller and others, in the first above-entitled action from a judgment of tlie Supreme Court in favor of the plaintiff, entered in tlie office of the clerk of the county of Montgomery on the 24tli day of March, 1897, upon tlie decision of the court rendered after a trial at the Montgomery Special Term; also an appeal by the defendants, John C. Miller and another, in tlie second above-entitled action from tlie said judgment, with notice of an…

Appeal by the plaintiff, Matthew Bannon, from a judgment of the County Court of Saratoga county, entered in the office of the clerk of the county of Saratoga on the 20th day of May, 1897, reversing a judgment in favor of the plaintiff rendered by a justice of the peace. The complaint in this action is for a balance due for services rendered under a contract of hiring, claimed to have been made April 1, 1893.

Appeal by the defendant, August Talker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 22d day of March, 1897, upon the decision of the court rendered after a trial at the Broome Special Term. On or about September 13,1894, the plaintiff acquired by written assignment from L. M. Woodworth, a bond and mortgage executed by one James E. Johnson to him to secure $2,200.

Appeal by the relator, Michael Broderick, from a final order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 16th day of Sejitember, 1897, confirming the report of a referee and dismissing an alternative writ of mandamus.

Appeal by the defendants, David 0. Robinson and, another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 18tli day of June, 1897, upon the report of a referee in an action for the foreclosure of a mortgage executed by the appellants to the plaintiff on the 24tli day of October, 1889, which by its terms became due on the 24tli day of October, 1890.

Certiorari issued out of the Supreme Court and attested on the 12th day of November, 189 Y, directed to The Board of Town Auditors of the Town of Queensbury, Warren County, New York, and the individual members of said board, commanding them to certify and return to the office of the clerk of the county of Warren all and singular their proceedings in auditing the account of the relator as supervisor of such town.

Appeal by the defendant, Andrew Douglas, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 11th day of August, 1897, upon the report of a referee. The plaintiff brought this action to obtain an injunction restraining the defendant from maintaining a planing mill, and operating machinery therein, in a building upon his premises adjoining the plaintiff’s, alleging the same to be a nuisance.

Appeal by the defendants, Solomon D. Burger and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 1st day of December, 1896, upon the decision of the court rendered after a trial before the court and a jury at the Ulster Trial Term.

Appeal by the defendants, Charles S. Allen and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 24th day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of March, 1897, as amended by an order entered in said clerk’s office on the 3d day of April, 1897, denying the defendants’ motion for a new trial made upon the minutes,…

Appeal by the plaintiff, Eva Borst, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schoharie on the 18th day of February, 1897, upon the dismissal of the complaint by direction of the court after a trial at the Schoharie Trial Term.

Appeal by the plaintiff, James Johnson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of .the cleric of the county of Rensselaer on the 10th day of June, 1897, upon the dismissal of the complaint by direction of the court after a trial at the Rensselaer Trial Term, and also from an order bearing date the 19th day of May, 1897 and entered in said clerk’s office denying the plaintiff’s motion for a new trial.

Appeal by Alfred W. Shull from an order of the County Ctiurt of Fulton county, entered in the office of the clerk of the county of Fulton on the 15th day of December, 1897, restraining the sheriff of Fulton county from selling certain real property under an execution issued upon a judgment in favor of the appellant, and setting aside the levy of execution upon the ground that the property levied upon was exempt from levy and sale upon execution, having been purchased with…

Appeal by the plaintiff, Elsebra Duesler, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the 21st day of July, 1897, upon the decision of the court rendered after a trial before the court without a jury at the Fulton Trial Term.

Appeal by the defendant, Jerome W. Ecker, from a judgment of the County Court of Albany county, entered in the office of the clerk of the county of Albany on the 28th day of June, 1897, affirming a judgment of a justice of the peace, with notice of an intention to bring up for review upon such appeal an order bearing date the 24th day of June, 1897, upon which said judgment wag entered.

Appeal by the defendant, The Glens Falls, Sandy Hill and Fort Edward Street Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 18th day of May, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of June, 1897, denying the defendant’s motion for a new trial.

Appeal by the plaintiff, Lena Garrett, from an order of the County Court of Albany county, entered in the office of the clerk of the county of Albany on the 13th day of September, 1897, putting the case over the term.