Volume 24 — Bedell

Appeal in each of the above-entitled proceedings from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 12, 1906, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus directing the secretary of state to transmit to the county clerk of each county, and to the board of elections of the city of Mew York, election notices as-provided by section 5 of the Election Law, and that he…

<p>1. Corporations — Personal Liability of Directors for Wasted Funds. Directors of a corporatiou'who fail to administer its affairs honestly and with reasonable prudence, not through excusable neglect, but by actual misfeasance in appropriating corparate funds to their own use, are personally liable to a receiver of the corporation for the damages which their misconduct has occasioned to the corporation.</p> <p>2. Same. The facts examined in an action by the receiver of an insolvent credit insurance company against its directors personally to recover sums alleged to have been wasted by the defendants in the purchase of the worthless stock of another corporation under the control of said company, and held to establish the personal liability of the defendants.</p>

Appeal, by permission, from a judgment entered December 5, 1904, upon an order of the Appellate Division of the Supreme Court, in the first judicial department overruling plaintiffs exceptions ordered to be heard in the first instance by the Appellate Division, denying a motion for a new trial and directing a dismissal of the complaint in conformity with the judgment of the Trial Term.

<p>Negligence — Loss of Income as an Element of Damage. The fact that the plaintiff, in an action to recover damages for personal injuries, had §1.000 invested in his business does not justify the trial judge in refusing to submit to the jury the plaintiff’s alleged loss of earnings or income as an element of the damages and in excluding proof of the reasonable value of his services or what compensation similar services would command,' if he is entitled to a verdict, because there was no evidence to show how much of his income had been derived from liis invested capital and how much from his personal efforts; where it appears that his busi ness involved the investment of capital merely as an incident or vehicle to the performance of services almost if not quite personal in their nature, and the amount of his income was about §3,000 annually; and such ruling constitutes reversible error.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 13, 1905, which affirmed an interlocutory judgment of the court at a Trial Term overruling a demurrer to the complaint.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff by his adjudication in bankruptcy was not divested of title to the claim herein sued upon because no trustee was appointed in the proceeding in whom title vested by virtue of section 70a of the act of 1898. (Matter of Pease, 4 Am. Bank. Reg. 578; McDonnell v. Bauendahl, 4 Hun, 265 ; Matter of Eagle, 5 Am. Bank. Rep. 372; B. Nat. Bank v. Blaker, 6 Am. Bank.

The nature of the action and the facts, so far as material, are stated in the opinion. The decision appealed from gives no effect whatever to the provision of the contract relied upon by defendant, and thus violates the fundamental rule of construction that effect must be given, if possible, to every clause and word of the contract. (Savage v. Howard Ins. Co., 52 N. Y. 502; Springfield F. & M. Ins.

The plaintiff is the owner of some nine thousand acres of land, situated in the southwesterly corner of Franklin county, in this state, of which he has made a park; inclosed by a steel wire fence, stocked with large and small game and, more or. less, laid out in carriage drives.

The nature qf the action and the facts, so far as material, are stated in the opinion. The court below erred in its interpretation as to advances. (1 Jarman on Wills, 532.) The defendant could not rescind the contract at a time when it was itself in the wrong by demanding more money for advances than the cost of the work done. (Wright v. Reusens, 133 N. Y. 298 ; Graf v. Self, 109 N. Y. 369 ; Ellis v. Hoskins, 14 Johns. 363 ; Hatten v. John, 83 Penn.

March, deceased. The facts, so far as material, are stated in the opinion. The phrase contained in the 4th clause of paragraph 5 of the will, “in the event of the death of any of my children before the conveyance and payment to him of the share of my estate herein given to him,” is not to be construed as referring to the physical facts of conveyance and payment, but to the accruing of the right to conveyance and payment as theretofore provided by the 3d clause of paragraph 5.

Appeal, by permission, from an interlocutory judgment entered March 12, 1906, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed a judgment of Special Term sustaining' a demurrer to the complaint and overruled such demurrer.

This action was brought to recover damages for the loss of plaintiff’s baggage, consisting of a trunk containing wearing apparel, which loss it is alleged was caused by the defendant’s negligence. The plaintiff is a resident of Long Island City, and on or about June 20tli, 1900, purchased a ticket from the defendant entitling him to passage on the defendant’s steamship Grosser JGurfilrst from Hoboken, N. J., to Bremerhaven, Germany, to sail on J une 28th following.

This action was brought by the plaintiff, Charles James Phalen, to enforce specific performance of formal marriage articles entered into in the city of Paris, France, on August 7th, 1873, in contemplation of the plaintiff’s marriage to Julia de Zakrevsky, the daughter of a Russian nobleman. The parties to such articles were the plaintiff, his father and mother, his intended bride and her father.

<p>New York City— Gas Companies—United States Circuit Court Injunction Restraining the Enforcement of Eighty Cent Gas Act (L. 1906, Ch. 135) No Bar to Action in State Court by Consumer Restraining Gas Company from Cutting Off Gas—Principle of Comity Not Applicable. An injunction issued by the Circuit Court of the United States in a suit by the Consolidated Gas Company of the city of New York to determine the constitutionality of chapter 135 of the Laws of 1906 fixing the maximum price of gas in that city at eighty cents per 1,000 feet, alleged to he invalid as in contravention, of the 14th amendment of the United States Constitution and of section 10 of article 1 thereof, and to restrain the enforcement of the provisions of the statute, does not prevent the maintenance of an action in the Supreme Court of this State by a consumer not a party to the former suit, to restrain the gas company from cutting off the gas from his premises for failure to pay the rate authorized before the enactment of the statute, where, although the injunction of the United States court permitted such rate to be charged, the difference to be paid into court to await the determination of the controversy, it contained no provision requiring a consumer to pay the former rate or to refrain from defending any action to recover that amount or from maintaining any action to prevent the company from enforcing payment by cutting off gas from his premises; an injunction order in such action granting the relief sought is not in conflict ■with that issued by the United States court, and there is nothing in the principle of comity prohibiting the state court from entertaining jurisdiction to the extent of granting it.</p>

Cooley, deceased. The facts, so far as material, are stated in the opinion. Under section 220, subdivision 2, of the Tax Law, so much of the interest of the decedent in the Boston and Albany railroad as derives its value from franchises and properties owned and operated in another state by virtue of the charter granted by another sovereignty is not “ property within the state ” and is not within the scope of the act.

<p>1. Utica (City of) — Assessment for Sewer —When Erroneous under Statutes Creating Board of Assessors in and for City of Utica. Where a sewer which provides adequate drainage for the premises situated upon the west side of a street in the city of Utica was built many years ago and the entire cost thereof was assessed solely upon the property upon that side of the street because it conferred no benefit upon the premises on the east side of the street, which is consider, ably lower and cannot drain into such sewer, it is erroneous in making the assessment for a sewer subsequently built upon and for the benefit of the east side of the street to assess the property owners on the west side of the street at the same rate per foot as those on the east side, where the statute (L. 1897, ch. 738, as amd. by L. 1898, ch. 215 and L. 1901, ch. 384, § 11, sub. 2) creating a board of assessors in and for the city of Utica and defining its powers, directs the board to assess the expense of sewer construction “ upon the lands benefited by the local improvement in proportion to such benefit; ” since the assessment ignores the radical difterence in the benefit conferred upon the west side property," which was already supplied with an adequate sewer paid for solely .out of an assessment on the west side, and the benefit conferred upon the east side property which was wholly without any .sewer until the present improvement.</p> <p>2. Same — Certiorari to Review Assessment — When Pacts Alleged in Petition Therefor Must Be Deemed to Be Admitted by Return. Where the petition of owners of property, upon the west side of such street, for a writ of certiorari to review such assessment, alleges the facts above stated and the return of the assessors thereto alleges that the new sewer “as laid is a benefit to the property owners equally upon both sides of the street,” but is silent as to material allegations of facts contained in the petition, the presumption is that the oflicers making the return intended to admit these allegations. It must, therefore, be deemed admitted that the first sewer at the time when the second sewer was constructed furnished adequate drainage to the property of the relators and that they did not need any additional sewer facilities for the drainage of their premises.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. a It being conceded by the plaintiff in his own testimony that he did not attempt to get any work after liis discharge, he cannot recover damages for such discharge. (Shannon v. Comstock, 21 Wend. 462; Huntington v. O. & L. C. R. R. Co., 33 How. Pr. 419; Howard v. Daly, 61 N. Y. 370; Polk v. Daly, 14 Abb. Pr. 160; Ruland v. W. W. Co., 52 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 19, 1906, which dismissed an appeal from an order of Special Term granting a motion for a peremptory writ of mandamus to compel the defendants to designate certain newspapers in which to publish election notices pursuant to section 10 of the Election Law.

The facts, so far as material, are stated in the opinion. The Special Term erred in determining the questions at issue between the attorney and client without trial, reference or other judicial investigation. (Code Civ.

This action was brought by a stockholder to compel his corporation to issue to him at par such a proportion of an increase made in its capital stock as the number of shares held by him before such increase bore to the number of all the shares originally issued, and in case such additional shares could not be delivered to him for his damages in the premises.

This action was brought to recover damages for injuries sustained by the plaintiff in a collision with one of defendant’s trains at what is known as the 84th street station of that branch of its railroad which runs southerly from the city of Brooklyn to Dimer Park. The 84th street station is in the Bath Beach section of the city of Brooklyn. The accident happened shortly before 11 o’clock on the morning of November 22, 1.901.

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in admitting the opinion evidence of plaintiff’s alleged expert, Southard. (Dougherty v. Milliken, 163 N. Y. 527; Harley v. B. C. Mfg. Co., 142 N. Y. 31; Bookman v. Masterson, 83 App. Div. 4; Schutz v. U. Ry. Co., 181 N. Y. 33 ; Winters v. Naughton, 91 App. Div. 80; Schneider v. R. R. Co., 133 N. Y. 583; Cramer v. Slade, 66 App. Div. 59; Kelpy v. Triest, 73 App.

The nature of the action and the facts, so far as material, are stated in the opinion. It ivas a question for the jury whether the gas which overcame the deceased and caused him to fall into the hopper came from the defects existing in the furnace. (McHugh v. M. Ry. Co., 179 N. Y. 378; Nelson v. City of New York, 101 App. Div. 18 ; Eastland v. Clark, 165 N. Y. 420; Welle v. Celluloid Co., 175 N. Y. 401; Kiras v. N. C. Co., 59 App.

The nature of the action and the facts, so far as material, are stated in the opinion. In the execution of his client’s order for the purchase or sale of stock a broker is an agent. (26 Am. & Eng.

The nature of the action and the facts, so far as material, are stated in the opinion. There was an implied warranty by the plaintiff that the machine was fit for the special purpose for which it was designed.

<p>• 1. Trusts—When Testamentary Trust Void as to Creditors of Cestui Que Trust. A testamentary trust to pay to the husband of testatrix all of the income and such part of the principal of the estate as might be necessary for bis support and maintenance, and whenever he should “desire to engage in any business or enterprise” to pay him, upon notice, “ the whole or any part of such principal,” is void as to creditors, and a judgment obtained against him after the death of testatrix is an enforceable lien against- real estate covered by the attempted trust.</p> <p>2. Same—When Judgment Creditors May Maintain Action to Charge Property Held Under Trust — Receiver in Supplementary Proceedings Not Necessary Party Plaintiff. Judgment creditors of such cestui que trust are proper parties plaintiff in an action in equity to have the attempted trust adjudged void and the land covered by the trust charged with the payment of their judgment, and may maintain such action, notwithstanding a receiver has been appointed in proceedings supplementary to the return of an unsatisfied execution, issued upon their judgment, since the appointment of the receiver did not transfer the lien of the plaintiffs’ judgment to him. He took the land subject to their lien. They still owned it and had a right to enforce it. They had a cause of action for that purpose which was exclusively their own, and in which he had no interest. They did not assign their judgment to him by procuring his appointment, nor did they thereby assign their lien to him, or estop themselves from enforcing it.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. There is an entire absence of evidence of negligence on the part of the Niagara Falls Park and River Railroad Company, for which the defendant was liable. (Craighead v. B. C. R. R. Co., 123 N. Y. 391; Murphy v. N. A. R. R. Co., 6 Misc. Rep. 298; 149 N. Y. 609 ; Moody v. S. S. Ry. Co., 182 Mass. 158; Woodroffe v. R. C. H. & N. Ry. Co., 201 Penn.

The nature of the action and the facts, so far as material, are stated in the opinion. The certificates are valid obligations for then-face value. (Harriman on Contracts [2d ed.], § 259 ; Topliff v. Topliff., 122 U. S. 121; Wadsworth v. Tradesman Co., 132 N. Y. 540 ; First Nat.

Appeal frotn an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 13, 1905, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term and granting a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. As no part of the purchase money remains unpaid the plaintiffs are not entitled to a vendor’s lieu.

<p>1. Evidence — Presumption of Undue Influence Arising From Meretricious Relations One of Fact. Tlie presumption tlmt a woman living in meretricious relations with a man has by the exercise of undue influence obtained money from bim is a presumption of fact not of law; it leaves the trial court at liberty to And undue influence from the fact of such relation, but does not compel it to do so, especially in a case where the presumption is overcome by testimony,</p> <p>2. Immoral Consideration Not Recoverable. Where illicit sexual intercourse is the consideration for the payment of money and the money has been paid the courts will not aid the donor to recover it.</p>

<p>False Imprisonment — Erroneous Refusal to Charge as to Liability for Arrest. Where it appears in an action to recover damages for false imprisonment that the person making the arrest was a special patrolman appointed by the police board of the city of New York, at the mpiest of the defendant, under section 308 of the charter (L. 1897, cli. 378), which provided that such patrolman should “possess all the powers and discharge all the duties of the police force applicable to regular patrolmen,” but that he should be paid by the party upon whose application he is appointed, and the trial court expressly charges that the acts of (lie officer in connection with the arrest of the plaintiff were performed in his capacity as a police officer, it is reversible error to refuse to charge that the defendant was not liable therefor, since the latter was liable only for the acts of the officer, committed by him as its employee.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Subdivision 1 of section 1913 of the Code of Civil Procedure could not operate retroactively, and, therefore, did not affect judgments of extinct courts of record. (Ely v. Holton, 15 N. Y. 595; Matter of Prime, 136 N. Y. 347; Matter of Warde, 154 N. Y. 342.) Section 1913 relates only to the remedy, and, therefore, applies to all actions brought after September 1, 1896.

The nature of the action, and the facts,' so far- as material, are stated in the opinion. The builder, plaintiff’s assignor, did not substantially perform his contract, and build the house according to the plans and specifications. (Smith v. Brady, 17 N. Y. 173 ; Nolan v. Whitney, 88. N. Y. 648; Crouch v. Gutman, 131 N. Y. 45; Spence v. Ham, 27 App.

Appeal by permission, from an order of the Appellate Division of the Supreme Court in the first judicial depart-meat, entered July 12, 1906, which reversed an interlocutory judgment of Special Term overruling plaintiff’s demurrer to the second separate defense of the answer, sustaining defendants’ demurrer to the second cause of action stated in the complaint and dismissing the complaint. The following questions were certified : “ 1.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 5, 1906, affirming- a indgment in favor of plaintiff entered upon the report of a reteree.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>There has been no taking or appropriation of the culm heap or the coal contained in it. (Parsons v. Parker, 159 N. Y. 16; Shaw v. Wallace, 25 N. J. L. 455; Marvin v. B. I. M. Co., 55 N. Y. 538.)</p> <p>The asportation of the culm across the Lackawanna river was an election to accept it under the contract. We do not claim that the mere mining of the culm constituted an election to accept it, as the defendant seeks to assume. (Knatchbull v. Hallet, L. R. [13 Ch. Div.] 696; I. & T. Bank v. Peters, 123 N. Y. 272; Matter of Holmes, 37 App. Div. 15; 159 N. Y. 532; Blair v. Hill, 50 App. Div. 33; 165 N. Y. 672.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in not admitting in evidence the letter from plaintiff to defendant. (Sperry v. Miller, 16 N. Y. 407; Lake v. Tyson, 6 N. Y. 461; Strong v. Slicer, 35 Vt. 40; Webster v. Sibley, 72 Mich. 630.)

The nature of the action and the facts, so far as material, are stated in the opinion. The certificate constitutes a guaranty. (P. E. of T. Co., 31 Nat. Corp. Rep. 369; McClure v. C. T. Co., 165 N. Y. 108; Motan v. McLarty, 75 N. Y. 25 ; Bunnell v. Stern, 122 N. Y. 544; McS. Co. v. Padian, 142 N. Y. 207; Imperial Co. v. Jewett, 169 N. Y. 143 ; Industrial Co. v. Todd, 180 N. Y. 215 ; Rage v. Krekey, 137 N. Y. 307; Miles v. Roberts, 76 Fed.

The plaintiff brings this action to recover damages for an alleged libelous 'publication in the Sim,■ a - newspaper published in the city of New York by the defendant. The complaint alleges that the plaintiff is a domestic corporation, engaged in the Collection and distribution of news items, and the publication of a magazine.

The nature of the action and the facts, so far as material, are stated in the opinion. The defect complained of was so slight and so unimportant in character that it was not negligence for the defendant not to have discovered it and if discovered not to have repaired it. (Beltz v. City of Yonkers, 148 N. Y. 67; Corson v. City of New York, 78 App. Div. 481; Getzoff v. City of New York, 51 App. Div. 450; Whalen v. C. G. Co., 151 N. Y. 70; McInerney v. City of Elmira, 11 App.

judicial department, entered December 2, 1905, in favor of plaintiffs upon the submission of a controversy under section 1279 of the Code of Civil Procedure. The nature of the controversy and the facts, so far as materia], are stated in the opinion. The provisions of the original lease, as to the covenants of renewal to be contained in the second lease, are plain and unambiguous and do not necessitate a construction thereof -by the court.

The nature of the action and the facts, so far as material, are stated in the opinion. The doctrine of election does not ajjply to the facts of this case, because it appears that Andrew Moll, at the time of the execution of the will in question, had a then present interest of his own in the premises, to which, under our law, his attempted devise thereof must be held to apply. (Havens v. Sackett, 15 N. Y. 369 ; Beal v. Miller, 1 Hun, 390; 2 Story’s Eq.

11, 1905, which affirmed a judgment of Special Term canceling of record a mechanic’s lien. The facts, so far as material, are stated in the opinion. The notice of lien in question contained a sufficient compliance with subdivision 4, section 9 of the Lien Law. (Gilmore v. Colcord, 183 N. Y. 342.) The statute should be construed literally.

The nature of the action and the facts, so far as material are stated in the opinion. The justice acting as a Court of Special Sessions had in the first instance exclusive jurisdiction to hear, try and determine the complaint charging that in the town of Mayñeld, íhilton county, N. Y., the plaintiff had been guilty of cruelty to animals. (Code Cr.

County Surrogate’s Court assessing a transfer tax upon the estate of Leonard J. Gordon, deceased. The facts, so far as material, are stated in the opinion. The debt, payable in money by the Equitable Life Assurance Society, a resident debtor, to the non-resident decedent, is taxable under the Transfer Tax Law, as the state’s jurisdiction over the debtor gives jurisdiction for the purposes of taxation.

The nature of the action and the facts, so far, as material, are stated in the opinion. The referee comm lifted reversible error in rejecting competent evidence, showing that the respondent had ample money of the maker of the note on deposit to pay the note in suit.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff cannot maintain this action, as there is a failure to prove that he is an allottee. (L. 1849, ch. 420, §§ 7-10; L. 1863, ch. 90, §§ 16, 17.) Chapter 296 of the Laws of 1902 is unconstitutional. (Lemont v. Cheshire, 65 N. Y. 30; Jarvis v. Lynch, 157 N. Y. 445; Onondaga Nation v. Thacher, 53 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 21, 1905, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The Appellate Division erred in holding that, assuming that the coupons were not presented, the mere nonpayment of the coupons during the six months constituted a default. (Matter of Young, L. R. [31 Ch. Div.] 174; H. V. R. R. Co., v. O'Connor, 95 App. Div. 6; McClelland v. N. S. Ry. Co., 110 N. Y. 469; P. M. Co. v. Evans, 84 Va. 717; Davis v. N. Y. C. Co., 41 Hun, 492; A. T. Co. v. G. W. Co., 72 App. Div. 539; Albert v. G. I. Co., L. R. [3 Q. B.] 123 ; U. T. Co. v. S. L., etc., Co., 5 Dill. 22; De Groot v. McCotter, 19 N. J. Eq. 531 ; Cole v. Hines, 81 Md. 476.) Even if plaintiff had presented his coupons he could not now be heard to claim a default, because he is estopped from so doing and he has waived any such claim. (French v. Row, 77 Hun, 380 ; Levey v. U. P. Works, 34 N. Y. 900; 124 N. Y. 664 ; Broderick v. Smith, 26 Barb. 539; Ferris v. Ferris, 28 Barb. 29 ; Dwight v. Webster, 32 Barb. 47; Trenor v. Le Count, 84 Hun, 426 ; Weber v. Huerstel, 11 Misc. Rep. 214; Olmstead v. Wehle, 18 Wkly. Dig. 486; Hause v. Eisenlord, 17 Wkly. Dig. 203; Hunt v. Keech, 3 Abb. Pr. 204.)</p> <p>Clear and uncontradicted evidence sustains the findings of the trial court. (M. Bank v. Elderkin, 25 N. Y. 178; F. Nat. Bank v. Crittenden, 2 T. & C. 118 ; Bank of Syracuse v. Hollister, 17 N. Y. 46 ; Nichols v. Goldsmith, 7 Wend. 160; Bank of U. S. v. Corneal, 2 Pet. 543; Gillett v. Averill, 5 Den. 85; Bailey v. Porter, 12 M, & W, 44; 1 Daniel on Neg. Inst. [4th ed.] §§ 656, 657; Townsend v. Bell, 167 N. Y. 462; Dickerson v. Wason, 47 N. Y. 439 ; N. B. & D. Bank v. Hubbell, 117 N. Y. 384.) The court, properly refused to find that Arnot waived performance by defendant of its promise to pay tlie interest on July 1, 1904, or that he waived the default arising from defendant’s failure to pay as promised and is estopped from taking advantage of such default. (Le Gendre v. S. U. & N. Ins. Co., 183 N. Y. 392; Sweet v. Henry, 175 N. Y. 268; S. B. I. Co. v. Merrill, 108 Cal. 490; Ripley v. Ins. Co., 30 N. Y. 136, 164; Crandall v. Morton, 24 App. Div. 547; Armstrong v. A. Ins. Co., 130 N. Y. 560; Decker v. Sexton, 19 Misc. Rep. 59 ; Sullivan v. P. Ins. Co., 172 N. Y. 482; Libby v. Haley, 91 Me. 331; Shaw v. Spencer, 100 Mass. 382.) The plaintiff’s right to institute and prosecute this action to a judgment of foreclosure and sale was clear and beyond doubt. (Malcolm v. Allen, 49 N. Y. 448; Bennett v. Stevenson, 53 N. Y. 508 ; Ferris v. Ferris, 28 Barb. 29; Reubens v. Prindle, 44 Barb. 336 ; Jones on Mortgages, §§ 76, 1180, 1181, 1182; Hale, Receiver, v. Gouverneur, 4 Edw. Ch. 207; Crane v. Ward, Clarke’s Ch. 393 ; Rosche v. Kosmrowski, 61 App. Div. 23; Curran v. Houston, 201 Ill. 442; O’Connor v. Shipman, 48 How. Pr. 126; Valentine v. Van Wagner, 37 Barb. 60.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 9, 19Ó6, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint in an action for libel. The following question was certified: “ Does the complaint state facts sufficient to constitute a cause of action 1 ”

<p>New York City—Police Department. Tlie limitation on the time to commence a proceeding contained in section 302 of the charter of the city of New York (L, 1901, ch. 466) does not apply to a proceeding to restore to active duty a member of the police force who has been retired on account of alleged physical incapacity.</p>

Pitney and James M. Halsted to he discharged as trustees under .the will of Catharine C. Halsted, deceased, settling their accounts and appointing a new trustee.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 7, 1906, which annulled a determination' of the common council of the city of Troy designating official newspapers in said city, and directed the said common council to meet and designate official newspapers according to law.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered August 21, 1905, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial in an action to recover on a policy of life insurance.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 10,1905, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term without a jury and granting a new trial in an action to recover money deposited on a contract for the sale of real property on the ground of the unmarketability of.the title.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 4, 1905, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action for the foreclosure of a mechanic’s lien.</p>

the Supreme Court in the fourth judicial department, entered November 22, 1905, which reversed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial and granted a new trial in an action to recover for the death of plaintiff’s intestate alleged to have been caused through defendant’s negligence.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 22,, 1905, which reversed a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and an order denying a motion for a new trial and granted a new trial in an action to recover a balance alleged to be due to plaintiff for. certain stock purchased for defendant’s account.</p>