Volume 24 — New York Supplement

Action by John P. Kelly against the mayor, aldermen, and commonalty of the city of New York to recover salary as inspector of masonry. From a judgment entered on the dismissal of the complaint, and from an order denying a motion for a new trial, plaintiff appeals.

<p>Trial—Findings—Weight or Evidence.</p> <p>In ejectment for land held by defendant under a paroi contract of purchase plaintiff testified that the vendor (plaintiff’s assignor) offered the land to defendant for $300, and defendant said he would take it. Defendant denied having a conversation with the vendor at the place named by plaintiff, but he did not deny that he offered $300 for the land. Held, that a finding that no price was agreed on was against the weight of evidence.</p>

Action by Thomas Budd against John J. Allen. From a judgment of the county court affirming a judgment of the justice of the peace of the town of Webster, rendered on the verdict of a jury, in favor of plaintiff, defendant appeals.

Action by Charles M. Tompkins and others against Charles Hunter, the First national Bank of Penn Yan, and another, to have a conveyance by the first to the second named defendant set aside, as in fraud of plaintiffs, and for other relief.

Action by Edward 1C. Fuller and others against Arthur M. Art-man for specific performance. From a judgment entered in Genesee county in favor of plaintiffs, defendant appeals.

<p>Local Actions—Recovery on Town Bonds.</p> <p>An action to recover the amount due on town bonds the -validity of which is denied is not brought to establish a “lien or other interest in real ' property,” within Code Civil Proc. § 982, defining local actions, but is merely an action at law to recover money alleged to be due on a contract, though the trial may involve the question whether the bonds were duly issued, and though a judgment for plaintiff would be chargeable on the real property in the town.</p>

Action by John B. M. Stephens, as receiver of the property of Frank Aldrich and Charles W. Perrine, against Mary J. Perrine, Frank Aldrich, and Charles W. Perrine, to adjudge fraudulent and void a certain chattel mortgage given .by the two last-named defendants to Mary J. Perrine, and to require the latter to account for the value of the property sold by her under the mortgage. From a judgment entered in Monroe county in favor of plaintiff, defendants appeal.

Action by Charles E. Stokes against Henry Weston and others for partition. From an interlocutory judgment entered on a decision of the court, defendants Henry Weston and Porter Weston appeal.

<p>1. Testamentary Powers—Construction.</p> <p>A provision in a will giving at the death of testator’s wife a certain sum “in such manner and form, and to such person or persons, as she, by last will and testament, may direct, limit, and appoint,” does not require the wife to make a direct, absolute gift, but allows her to dispose of the money in trust or otherwise.</p> <p>2. Trusts—Creation—Legal Title.</p> <p>1 Kev. St. p. 728, § 55, declares that express trusts may be created for the following purposes: “(3) To receive the rents and profits of land, and apply'them to the use of any person, during” life, or for a short term. Page 773, § 2, makes the provisions in regard to real estate applicable to personal property. Held, that a devise to trustees, of certain money, to invest same, and pay over the income as provided, creates an express trust, clothing the trustees with the legal title.</p> <p>3. Wills—Partial Invalidity.</p> <p>The fact that a bequest for life, with limitation over, may not be good as to the limitation, does not affect the life estate. Haynes v. Sherman, 22 N. E. I-tep. 938, 117 N. Y. 433, distinguished.</p> <p>4. Testamentary Powers—Suspension op Alienation.</p> <p>1 Rev. St. p. 737, § 128, declaring that the period during which the absolute right of alienation may be suspended by any instrument in execution of a povzer shall be computed, not from the date of such instrument, but from the time of the creation of the power, expressly recognizes the right to suspend, by such instrument, the power of alienation.</p> <p>6. Parties—Waiver op Objection.</p> <p>An objection to parties, unless taken by answer or demurrer, is waived, in an action at law.</p>

Action by Jeanie Mitchell against the Broadway & Seventh Avenue Railway Company for personal injuries caused by defendant’s negligence. Plaintiff, an unmarried woman, 27 years old, was knocked down by one of the horses attached to defendant’s street car, and run over. Her injuries consisted in a multiple fracture of the lower third of both bones of the lower left leg, which resulted in a shortening of the leg and a stiffening of the ankle.

<p>Appeal from special term, New York county.</p> <p>Action by Patrick J. Quinn and John Gault against Spencer Aldrich. From a judgment dismissing the complaint, plaintiffs ap- . peal.</p>

<p>Civil Contempt—Sufficiency of Order.</p> <p>Where an order adjudging defendant guilty of a civil contempt does not describe the acts which constitute the contempt, nor what defendant shall do to purge himself from contempt, nor adjudges that any particular acts were done or omitted which amounted to a contempt, nor that such acts impaired the rights of any party to the action, the order wifi he reversed.</p>

Action by Edward J. Bergin against John J. Deering to dissolve the partnership of Deering, Bergin & Co. From an order granting a motion, made by George ¡N. Veritzan as receiver of said firm, to require the sheriff to deliver up certain property, which, previous to the appointment of the receiver, the sheriff had seized on executions issued on judgments obtained by appellants against said firm, Bartholomew Peck and John Mulholland, judgment creditors of the firm of Deering,…

Proceeding Tby the city of Hew York to acquire the fee to Beach avenue. From an order setting aside the report of the commissioners of estimate and assessment the city appeals.

Action by William S. Carman and another against the Farmers’ Loan & Trust Company to recover money. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals.

Action by Maggie Fox against the mayor, aldermen, and commonalty of the city of New York, and.the city of Brooklyn, for personal injuries received while alighting from a car on which plaintiff was a passenger across the Brooklyn bridge, and caused by defendants’ negligence. From a judgment entered on the verdict of a jury in favor of plaintiff, and from an order denying their motion for a new trial, defendants appeal.

Action by James P. Foster against Morris Mayer to cancel two mortgages. From a judgment dismissing the complaint after trial at special term, plaintiff appeals.

Action by John F. J. Xiques against the Bradstreet Company. From a judgment dismissing the complaint, entered on a verdict directed for defendant, and from an order denying a motion for a new trial, made on the minutes, plaintiff appeals.

Action by Elizabeth Grafton against William T. Brigham and others for rent. From a judgment entered on a verdict directed in favor of defendants, plaintiff appeals.

Action by Caroline Amanda McCready against the Farmers’ Loan & Trust Company, as trustee and guardian of the estate of Francis Marion Whaley, and Francis Marion Whaley, for an accounting. From an order denying a motion of William Whaley, administrator with the will annexed of the estate of Louisine W. Whaley, deceased, to be made a party defendant, said William Whaley appeals.

Action by Roger M. Sherman against Irving Grinnell and others for false imprisonment. From a judgment entered on a verdict directed for defendants, plaintiff appeals.

Action by John Crosby Brown and others against James Gray,. John Stephens, and Henry Mauson, impleaded with others, to enforce certain maritime liens. From orders directing defendants-to deposit with the Central Trust Company of New York all moneys-collected on account of freight, less certain charges for wharfage,, lighterage, and port charges, defendants appeal.

Petition for the revocation of letters of administration with the will annexed on the estate of Samuel Wood, deceased, theretofore issued to Jennie E. Wood. From an order denying the petition, petitioners appeal.

Action by Victoria A. Romaine against George S. Bowdoin and. others. From an order denying defendants’ motion to strike the case from the calendar, defendants appeal.

<p>Proceeding under the Condemnation Act—Appeal—Stay—When Allowed.</p> <p>Code Civil Proc. § 3375, provides for appeals to the general term from judgments and orders in proceedings under the “Condemnation Act,” and that such appeals shall be governed by chapter 12, tit. 4, regulating-appeals to the general term in civil actions, but “the proceedings of plaintiff shall not be stayed upon such an appeal, except by order of the court, upon notice to him.” Melé, that such an appeal from a judgment in favor of one who held the fee to certain property, and against one who held the same under a lease from a former owner, and from an order confirming the award of commissioners assessing defendant’s damages, would not be stayed where defendant tendered no bond for damages resulting from such stay, and where it did not appear that plaintiff was unable to pay all damages assessed.</p>

Action by John B. Manning, mortgagee of certain premises, to restrain Isaac C. Ogden, a chattel mortgagee, from removing certain mortgaged articles from the premises. Prom an order denying a motion for a temporary injunction, plaintiff appeals.

<p>Wills—Undue Influence—Legacy to Attobney.</p> <p>A clause of a will directed that “if for any reason any legacy or legacies left by this my will * * * shall lapse or fail, I give and bequeath the amount thereof absolutely to the persons named as my executors. In the use of the same I am satisfied that they will follow what they believe to be my wishes. I impose upon them, however, no condition, leaving the same to them personally and absolutely, and without any limitation or restriction.” Held, that the facts that one of the executors named drew the will, that he was testatrix’s personal friend, and advised her about her business, and attended to her investments, are insufficient to show undue influence by such executor and legatee, where it also appears that testatrix was a person of strong mind, and frequently refused to follow the advice given in relation to her business.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Michael P. Conboy against Mary Cunningham, Edward Cunningham, (her husband,) Bridget Conboy, Agnes Conboy, .Theresa Conboy, Egbert W. Lansing, the Mechanics’ Savings Bank, James Lester, Ellen Gerdect, Edward Hanlon, Thomas Dowd, Thomas Holihan, Jean Demers, David Saylor, Thomas Hanlon, and John Perry, for the partition of certain land. From an interlocutory judgment ascertaining the respective rights, shares, and interests of the parties to the property in suit, and ordering a sale of such property, defendant Mary Cunningham appeals.</p>

<p>Arrest on Civil Process—Fraud—Vacating Order.</p> <p>An order of arrest was granted on the ground that certain money had been obtained from plaintiff through deceit, and received by defendant in a fiduciary capacity. The affidavit of defendant, on motion to vacate the order, showed that the plaintiff had advanced the money with intent to go into business with defendant, and under a promise by plaintiff to advance a large sum to purchase an interest therein. A letter from plaintiff, some months after the discovery of the alleged fraud, showed continued confidence in the integrity of defendant, and in the success of the business. Melé, that the order was properly vacated.</p>

Action by John A. Smith against the Union Milk Company for breach of contract. Plaintiff obtained an attachment, but on motion of Jesse Durland, a subsequent attaching creditor of defendant, an order was made vacating the same. From such order, plaintiff appeals. ■

Action by Simon Klaber and James Klaber, trading as Klaber & Son, against William Taylor, James Armstrong, and Carlton S. Gilson, executors of John Taylor, deceased. From a judgment for plaintiffs, rendered on a verdict directed by the court, defendants appeal.

Action by John H. Judge, as testamentary trustee under the will of Garrit Furman, against Francis B. O’Connor, individually and as executor of Emiline O’Connor, deceased, to foreclose a mortgage. From a judgment of foreclosure, entered on report' of referee, defendant appeals.

Action by Kate Hall, administratrix of Lyman Hall, deceased', against Franklin Thompson, to foreclose a mortgage. From a judgment entered on the report of a referee in favor of plaintiff, defendant appeals.

Action by Clara M. Jacobie against Henry Mickle, Samuel T. Guilford, and others to foreclose a mortgage. Complaint dismissed. Plaintiff appeals. The defendant Samuel T. Guilford was the only defendant who answered.

Exceptions from circuit court, New York county. Action by Jane McKenzie and Alice J. Jones, executrices of, and trustees under, the will of Alexander McKenzie, deceased, against Loftus D. Hatton, tx> recover rent. A verdict for plaintiffs was directed by the court, and a motion hy defendant for a new trial on exceptions was ordered to be heard at general term in the first instance.

Action by Frederick Booss and others against Henry Mihan. From an order vacating an order theretofore obtained by plaintiffs by default, referring the issues to a referee to hear and determine the same, plaintiffs appeal.

<p>Appeal from special term.</p> <p>Action by George H. Wooster against Horatio Bateman, impleaded, etc. From an order granting a motion for bill of particulars, plaintiff appeals.</p>

Application by Patrick Baker for mandamus to the Coachman’s Unión Benevolent Association of the City of New York to compel respondent to restore relator to membership. From an order denying the application, relator appeals.

Action by James G. Wilson against Bichard Cummings. From a judgment dismissing the complaint on the merits, and from an order denying a motion for a new trial, plaintiff appeals.

Action by Patrick Donovan against Thomas Sheridan and JamesByrne. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.

<p>Injuries to Servant—Contributory Negligence.</p> <p>In an action for personal injuries to a servant, caused by a defective machine, it appeared that the machine was known by all to be defective, and that the foreman ordered the engineer to fix it on the following Sunday. Plaintiff worked on the machine all the Monday following, when it appeared to be in good order. The accident happened on the next day. Plaintiff’s regular occupation at the machine was not a dangerous one, but on the day of the accident he was ordered to take the place of a man who was absent, and while so engaged he was injured. Plaintiff testified that he thought the machine had been repaired. Held, that it was error to dismiss the complaint on the ground of contributory negligence, as plaintiff had a right to assume that the machine had been repaired on Sunday.</p>

Action by George F. Nixon against Aquilino Zuricalday and others. There was a verdict for plaintiff, and defendants move for a new trial on the judge’s minutes.

Action by Augustus Levey, as assignee of Clarence Levey, against the New York Central & Hudson River Railroad Company, for breach of contract. From a judgment entered on a verdict in favor of plaintiff, defendant appeals.

Action by Orrando P. Dexter against William Dana Dustin and. others. From an order granting defendants’ motion to strike from the judgment roll the original answer, and the order directing an amended answer to be received and treated as the answer in the case, plaintiff appeals.

Action by Henry W. Sage, Dean Sage, and W. H. Sage against D. G. Burton on an account. Judgment dismissing the complaint. Plaintiffs appeal. The plaintiff's are copartners under the firm name of H. W. Sage & Co. The plaintiff's have had business dealings with the defendant for a number of years. For upwards of 20 years prior to the year 1890, one Joseph B. Abbott was in the employ of plaintiffs. Abbott was authorized to sell and make collections for plaintiffs.

Action by Peter J. Smith against John Hack. From an order denying a motion to change the place of trial from Columbia county to Albany county, defendant appeals.

Action by Thomas Butler against the Manhattan Railway Company for loss of the services of his wife, resulting from the alleged negligence of defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>1. Execution—Time op Issuance—Ejectment.</p> <p>An execution on a judgment of re-entry in ejectment may be issued by leave of court even after 20 years from the rendition thereof.</p> <p>2. Same—Motion fob Leave—Service.</p> <p>Under Code Civil Proc. § 1378, a motion for leave to issue execution on a judgment of re-entry in. ejectment need only be served on the defendant in the action.</p> <p>3. Ejectment—Title to Maintain. ■</p> <p>Where, in ejectment for nonpayment of rent, judgment is obtained against the party in possession, plaintiff in ejectment can defend his. title and possession so acquired against one claiming title under the lessee, though he was not a party to the ejectment suit.</p> <p>A Landlord.and Tenant—Attornment in Ejectment.</p> <p>Where judgment in ejectment is obtained in a durable lease, and possession given to the plaintiff, a written attornment made by the defendant in the action and the person in possession is valid.</p> <p>5. Same—Extinguishment of Lease. -</p> <p>Where plaintiff in ejectment against a tenant under a durable lease for nonpayment of rent is put in possession under execution, his title becomes absolute alter six months.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Dennis Maloney against Samuel Nelson and-, others to foreclose a mortgage. From a judgment of foreclosure, defendant Nelson appeals.</p>

Action by Edward C. James against James H. Work. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion to set aside the verdict and for new trial on the minutes, defendant appeals.

<p>Injunction—Several Claimants op Fund —Restraining Separate Actions.</p> <p>Plaintiff, having loaned money on certain bales of goods, was notified by defendants that some of the bales had been pledged or sold to them each defendant claiming different bales bearing distinctive marks. Plain tiff and some of defendants agreed that the bales claimed by each of them should be sold by plaintiff, and the proceeds of the sale of specific bales should be held subject to the' same claims as the bales themselves. One party to this agreement then sued for the net proceeds of the bales claimed by it, whereupon plaintiff sought to restrain the prosecution of such suit, and of any suit by any of defendants, and praying that all the claims be adjusted in one suit, on the ground that plaintiff could not well defend separate suits, and that, after paying the balance in its hands to one claimant, it would be without defense to actions by the others. Held that, as each defendant claimed only the proceeds of specific bales, or the bales themselves, and no one claimed the whole fund, plaintiff was not entitled to an injunction.</p>

Action by Cornelia E. Kane, as executrix of the last will and testament of William H. Kane, deceased, against Robert Lenox Belknap, to recover certain money received by defendant from plaintiff’s testator, and which defendant claimed he had invested under a power of attorney from deceased. From a judgment entered on the verdict of a jury, directed by the court, in favor of defendant, plaintiff appeals.

Action by Jacob A. Zimmermann and Joseph J. Zimmermann ;against Christian Jourgensen on a building contract. From a judgment dismissing the complaint on the merits, and in favor of defendant on a counterclaim, plaintiffs appeal.

Exceptions from circuit court, New York county. Action by Giles E. Leach and another against Charles F. Linde on a foreign judgment. The court directed a verdict for plaintiffs, that defendant’s exceptions be heard in the first instance at general term, and that judgment be suspended in the mean time.

<p>Pleading—Demurrer to Answer—When Proper.</p> <p>Where an answer denies material allegations of the complaint, and also alleges a defense which arose subsequent to the commencement of the action, plaintiff cannot attack the sufficiency of the new matter alleged by defendant by a demurrer to the entire answer as not setting up a defense.</p>

Action by Emma Keller, Flora Linder, and Frank Linder against Henry Feldman to set aside a deed of certain real estate, and recover the purchase money, on the ground of fraud. From a judgment for plaintiffs, defendant appeals.

Action by Sarah L. Myers and another against Thomas Bolton and others for partition of land. From an order denying plaintiffs’ motion for payment into court of the proceeds -of a sale of the land, plaintiffs appeal.

Action by Abram Freligh against the directors of the village of Saugerties to recover damages for personal injuries and injury to property, caused by defendant’s negligence. From a judgment entered on the verdict of a jury in favor of plaintiff, defendant appeals.

<p>1. Assignment for Benefit of Creditors—By Partner.</p> <p>An assignment for the benefit of creditors, executed by a member of a firm, and setting forth in the acknowledgment that he was authorized by bis partner to sign, will be held to have been authorized, in the absence of evidence to the contrary.</p> <p>2. Same—Property Included.</p> <p>As against an assignment of partnership property for the benefit of creditors, property in the possession .of, and used by, the firm, cannot be claimed to have been the individual property of a member of a firm, by one to whom such member subsequently assigned it.</p> <p>3. Replevin—Wrongful Detention.</p> <p>In an action for personal property, an injunction was granted, restraining defendant from disposing of the property. Thereafter, plaintiff assigned his interest in the property to one who, with knowledge of the facts, and while the injunction was in force, demanded the property of defendant. Meld, that his refusal to give up the property did not consti-tute a wrongful detention, authorizing an action of replevin, even if he-had no title to the property.</p> <p>4. Reference—Decision on Demurrer.</p> <p>The decision of a special term of the supreme court on a demurrer, being unreversed, is binding on a referee in the case.</p>

Action of trespass by Abraham Veeder against Abram Eelyea. From a judgment dismissing the complaint on the merits, with $172.44 costs, entered on a verdict in favor of defendant, and from an order denying a motion to set aside the verdict, and for a new trial, made on the minutes, plaintiff appeals.

Case submitted on agreed statement. Submission of controversy by the people of the state of New York and the superintendent of insurance as plaintiffs, and the Reliance Marine Insurance Company, Limited, as defendant, on agreed statement of facts.

<p>Water Courses—Pollution—Reasonableness oe Use.</p> <p>In an action against a factory owner for polluting a stream it is a material question whether defendant’s use of such stream was reasonable.</p>

<p>1. Note—Immoral Consideration.</p> <p>A note given to a woman with whom the maker had sustained illicit relations, and hy whom he had had a son, not given for the purpose of continuing the relations, is not bad, as given for an immoral purpose.</p> <p>2. Perjury—Evidence—Weight.</p> <p>On a trial for perjury in making an affidavit of defense, the uncorroborated evidence of the notary as to the making of the affidavit is sufficient to establish such fact.</p> <p>3. Same—Corroboration.</p> <p>On a trial for perjury in denying the making of a note, evidence by the payee that the word “date” was written by defendant is sufficiently corroborated by the testimony of experts that it was written by the same person who signed it, admittedly the defendant.</p> <p>4. Criminal Law—Jurisdiction—Civil Action Pending.</p> <p>The fact that a civil action is pending on a note does not deprive the court of jurisdiction to try the maker for perjury in swearing that he did not make it.</p> <p>6. Perjury—Sentence—Ex post Facto.</p> <p>Laws 1892, c. 662, amending Pen. Code, § 106, whereby the penalty for perjury under the former act, of “imprisonment for not less than two years nor more than ten years,” is changed to “a term not exceeding ten years,” is not ex post facto as to perjury committed prior to its enactment, as it reduces the penalty therefor.</p> <p>6. Criminal Law—Conduct of Trial.</p> <p>Where a notary, a witness for defendant, admits on cross-examination that he had made a false certificate, the fact that at the close of his testimony the judge orders him committed for the offense does not improperly prejudice defendant.</p> <p>7. Privileged Communications—Letters to Wife.</p> <p>Letters written by a wife to a husband, and given by him to his mistress, and produced by her on his trial for perjury, are not privileged.</p>

Action by William F. Smith against John T. Ijams, Phoebe Adele ijams, and Lydia E. Sears, as executor and executrices of the last will and testament of Phoebe Smith, deceased. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendants appeal.

Certiorari, on the relation of the Postal Telegraph Cable Company, to review the determination of Frank Campbell, comptroller, in refusing to revise or readjust a tax settled against relat- or under Laws 1880, c. 542, and acts amendatory thereof and supplemental thereto.

Certiorari, on the relation of the United Lines Telegraph Company, tlie French Atlantic Cable Company, and the Commercial Cable Company, to review the determination of Frank Campbell, state comptroller, in refusing to revise or readjust a tax settled against relators under Laws 1880, c. 542, and acts amendatory thereof and supplemental thereto.

Action by Almira Trumpbour against John Trumpbour, Jr., and others for partition. There was judgment for partition, and pursuant to a will a trust fund was declared, which was directed to be deposited with the New Yórk Life Insurance & Trust Company, subject to the order of the court. Afterwards the petitioner in partition and others asked an order for the distribution of the fund. From an order granting such distribution, the trust company appeals.

Action by Robert Rutter and others against the Germicide Company of New York. From an order directing defendant to produce its books of account and other books containing entries relating to the transaction of its business at its place of business for the inspection of plaintiffs’ accountant, defendant appeals.

Action by Aaron R. Stevens and others against the Union Trust Company of ¡New York and others. From an order denying a motion of the Central ¡National Bank and other defendants to strike out from the judgment a provision enjoining them from proceeding with a sale of the Lebanon Springs Railroad under a decree of the circuit court of the United States, the moving parties appeal.

Petition by Emma L. Collins, as general guardian of Emma L. Collins, an infant, against William Collins, as the -surviving executor of John G-. Collins, deceased, for an accounting. The matter was referred. From a decree confirming the referee’s report, petitioner appeals.

Petition by Bridget Collins against the village of Saratoga •Springs for the appointment of commissioners to appraise the damages to petitioner’s property by the change of grade in a street. From an order vacating an order granting the petition, petitioner appeals.

Application of Elizabeth. Nolan, administratrix of the estate of William Nolan, deceased, to take and perpetuate the testimony of Joseph Payette. From an order vacating the order granting the application, applicant appeals.

Action by Alexander T. Compton against The Chelsea, a corporation, to recover possession of a suite of rooms or an apartment in an apartment house, in which there was a judgment for defendant. 13 R. Y. Supp. 722, affirmed by 28 R. E. Rep. 662.

Action by David J. Johnston against John Garside, as mayor, William J. Dickey, and Michael J. Daley, to restrain defendants from acting as members of the board of fire commissioners of the city of Cohoes. From an order granting plaintiff’s motion to dismiss the action without costs, defendants appeal. The affidavit filed in support of plaintiff’s motion is as follows: “Charles B\ Doyle, being duly sworn, says: First. That C. H. Sturges is plaintiff’s attorney. Second.

Action by the Bucyrus Steam Shovel & Dredge Company against Siegmund T. Meyer and Arthur L. Meyer, composing the firm of Siegmund T. Meyer & Son, impleaded with James A. Simmons, on a promissory note. Defendants Meyer were indorsers, and defendant Simmons was the maker, of the note sued on. From a judgment entered on a verdict directed by the court against the indorsers, and from an order denying a motion for a new trial, said indorsers appeal.

Action from circuit court, Albany county. Three actions by Ella D. Sand, Charles Shafer, and Edward Shafer, respectively, against Henrietta Church and Joseph Drum. From a judgment in favor of defendants' in each case, plaintiffs appeal.

<p>Appeal from special term, Saratoga county.</p> <p>Action by Ann E. Smith against Michael J. Varley, Sarah McKinstry, Jeremiah McKinstry, and Mark T. Ferris. From a judgment in favor of plaintiff, defendant Ferris appeals.</p>

Action by James Brand and others against Ernst Lipman and others to determine the rights and equities of the parties to a fund in the hands of the sheriff under attachment, and for the appointment of a receiver. Samuel W. Milbank was appointed receiver, and the sheriff ordered to pay the fund over to him. From so much of the order as allowed the sheriff to deduct and retain from the fund his fees and poundage, the receiver and certain of the defendants appeal.

Action by James S. Manning, as surviving partner of the firm, of A 0. Manning & Co., against James W. Lyon, to recover the price of an engine, and to hold defendant liable as indorser of a certain note transferred by him to plaintiff. From a judgment entered on the verdict of a jury directed by the court in favor of defendant, plaintiff appeals.

Action by Addison Loucks and George K. Daley, administrators of Christina Loucks, deceased, against Lewis L. Johnson, Charity A. Sheffer, and John J. Johnson, interpleaded as defendants by the Albany Savings Bank, the original defendant. From a judgment for plaintiffs, defendants appeal.

Action by Charlotte E. Patten against the United Life Insurance Association. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Robert H. Weems against Michael Shaughnessy and1 another. There was a judgment for plaintiff, on a verdict directed by the court, for the full amount of the note and interest,, and defendants appeal.

Application of Thomas F. Eyan, as receiver of C. A. Wyatt & Co., for reference of disputed claims. From an order of the special term confirming the report of the referee disallowing the claim of Eawitzer & Bros., said claimants appeal.

Application of Thomas F. Ryan, as receiver of C. A. Wyatt & Co., for reference of disputed claims. Rawitzer & Bro., whose claims were disallowed, moved for a new trial. From the provision of an order imposing terms on the granting of the motion they appeal.

Action by John Thurfjell against Frank S. Witherbee, Walter O Witherbee, George D. Sherman, and George R. Sherman. From an order denying defendants’ motion, made pursuant to Code Civil Proc. § 269, to remove the action from the court of common pleas into this court, and change the place of trial from the city and county of Hew York to the county of Essex, defendants appeal.

Action by Jacob Lawson against the Terminal Warehouse Company to recover certain bales of bagging. On motion of defendant, an order of interpleader was entered, substituting the Central National Bank as defendant. From this order the bank appeals.

Application by Susan A. Sherman for revocation of the appointment of Jesse O. Conde as guardian of Benjamin F. Sherman. Application denied. Petitioner appeals.

Action by Adaline Matson, William A. Matson, Julia A. Mat-son, Rpbert Matson, Charles Matson, and Adaline Brooksby against Louise J. Abbey, administratrix with the will annexed of Austin Matson, deceased, to recover certain money assigned to plaintiffs by devisees of such will. From a judgment for plaintiffs, defendant appeals.

Action by Joseph Wood against John A. Munson. From a judgment of the county court reversing a judgment for plaintiff, rendered in a justice’s court, he appeals.

<p>Action on Foreign Judgment—Defenses—Fraud.</p> <p>In an action in New York on a judgment obtained in Massachusetts, defendant can show that he had a valid defense which he set up in the original suit, and that the judgment was obtained by the fraud of plaintiff, who induced him to abandon the further defense on assurance that he would discontinue the action.</p>

Action by Robert K. Dow against the Iowa Central Railroad Company and others. From a judgment of special term dismissing the complaint, plaintiff appeals.

Action by the mayor, aldermen, and commonalty of the city of New York against John Brady and another. There was a judgment for plaintiff on a verdict directed by the court, and defendants appeal.

Action by Jeremie Scripture against Fannie E. Scripture for divorce. Judgment and decree for plaintiff by default. From an order denying motion to open default, defendant appeals.

Action by James A. Van Schaick against Edgar O. Van Burén, Paul O. Van Burén, and T. Franklin Silvey on a promissory note, in which defendants pleaded an agreement by plaintiff to take a note of defendant Edgar O. Van Burén, secured by mortgage, on the maturing of the note in suit. From a judgment entered on the report of a referee in favor of plaintiff, defendants appeal.

Action by Shepard Knapp, as substituted trustee of the estate devised to Lewis 0.

Action by Leonora Aldis against George Stewart for breach of promise of marriage. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>'Corporations—Appointment of Temporary Receiver—Effect.</p> <p>An order appointing a temporary receiver in proceedings for the voluntary dissolution of a corporation does not disable the corporation from moving to vacate an attachment theretofore granted against its property.</p>

<p>Appeal from special term.</p> <p>Action by Charles B. Hibbard against the Commercial Alliance Life Insurance Company. From an order granting a motion for reference, defendant appeals.</p>

<p>1. Principal and Agent—Fraud on Agent—Liability to Principal.</p> <p>Where an agent fraudulently induces his principal to convey land In exchange for other land, of less value than represented, the agent is liable for the damages thus sustained.</p> <p>3. Same—Compensation op Agent—Recovering Back apter Payment.</p> <p>Where the commissions for the sale of property, are paid in ignorance of fraud on the part of the agent, in consequence of which he was not entitled to receive such commissions, the amount so paid may be recovered.</p>

Action by Anna Walsh against Andrew J. Walsh for divorce. From an order directing defendant to pay alimony pending the action, he appeals.

<p>1. Champertous Deed—Adverse Possession op Land.</p> <p>A deed givn by a person out of possession is void for champerty against one who for eight years prior to its execution had been in possession adverse to the grantor.</p> <p>2. Deed—Construction—Fraud.</p> <p>One C., having the legal title to land, gave for a valuable consideration a deed to the same, purporting to be executed by his grantors, but. which was in fact signed by third persons. Held), that the grantee acquired no legal title.</p>

Action by Eugene Gardner against Edward Christian, George Baker, and George W. Vedder for the conversion of certain personal property. The action was commenced in justice’s court, and taken, on appeal by defendants, to the county court. From a judgment for defendants, plaintiff appeals.

Action by Isaac Kilmer against Peter Messling, impleaded with Joseph Acker, on an account, commenced in a justice’s court, and taken, on appeal by defendant Messling, to the county court. From a judgment reversing the judgment of the justice, plaintiff appeals. The action was brought to recover the sum of $40, alleged by plaintiff to be due him for services performed for defendants as partners. There was no service on, or appearance by, defendant Acker.

<p>1. Ejectment—New Trial—Stare Decisis.</p> <p>Where a decision in ejectment has not been reversed, on a second trial' under the statute, unless the essential facts have been changed, the first decision must be regarded as stare decisis.</p> <p>2. Same—Adverse Possession.</p> <p>Where plaintiff in ejectment introduces evidence tending to show adverse possession of the land described in the complaint, he is entitled to go to the jury, though the land involved is not embraced in the description in his deed. ■</p>

Action originally brought by Robert W. Milbank against Morgan Jones. Plaintiff died pending the action, and it was revived and continued in the name of Antoinette L. Milbank, in- ■ dividually and as administratrix, and from such order defendant appealed. Pending the appeal the action was tried, and a judgment was rendered in favor of plaintiff. Plaintiff now moves to dismiss the appeal.

<p>Appeal from trial term.</p> <p>Action by Frederick G. Ernst against the Brown Hoisting & Conveying Company to recover for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes of the court, defendant appeals.</p>

<p>Bailment—Liability op Bailee.</p> <p>Where a horse is let on a contract providing that, on a day’s notice,, he should he returned in the same condition as when received, compliance ■ with the condition is excused by death of the horse without fault of the • bailee.</p>

<p>Appeal from municipal court.</p> <p>Action by Anna Bensler against William H. Locke for goods sold and delivered. Judgment for defendant.</p>

Action by Warner E. Sprague against William B. Cochran to .foreclose a mortgage. After the commencement of this action an application was made by defendant to bring plaintiff into an .action brought by defendant against Antoinette Appley and others, and the motion was granted.

<p>Appeal from judgment on report of referee.</p> <p>Ejectment by Betsey E. McClellan against Lucy Jane Zwingli. Judgment for defendant. Plaintiff appeals.</p>

<p>Appeal from circuit court, Saratoga county.</p> <p>Action by Daniel H. Deyoe against William Ewen and others. From a judgment of nonsuit, plaintiff appeals.</p>

<p>Appeal from circuit court, Saratoga county.</p> <p>Action by Daniel H. Deyoe against Herbert J. Woodworth and others. From a judgment of nonsuit, plaintiff appeals.</p>

Proceedings for divorce by Hattie E. Bucki against Charles E. Bucki, for cruelty and abandonment. From an order granting alimony and counsel fees, defendant appeals.

<p>Chattel Mortgages—Record—Antecedent Creditors.</p> <p>Laws 1833, c. • 279, § 1, which provides that a mortgage of chattels, not accompanied by an immediate delivery, and an actual and continued change of possession, shall be absolutely void, “as against creditors of the mortgagor,” unless filed in the proper office, applies to creditors at large who become such after the execution of the mortgage, as well as to those whose debts existed before that time. 21 N. Y. Supp. 32, reversed. Karst v. Gane, 32 N. E. Rep. 1073, 136 N. Y. 316, followed.</p>

Action by Frederick A. Card against Mary M. Meincke and another. Motion by defendants to dismiss after plaintiff rested, which was granted, and judgment ordered to be entered in favor of defendants and against plaintiff, with costs. The clerk entered judgment dismissing plaintiff’s complaint “on the merits.” Motion by plaintiff to correct the- judgment denied, and plaintiff appeals.

<p>Appeal from special term, Clinton comity.</p> <p>Action by the attorney general in the name of the people of the-state of New York to dissolve the Grand Lodge of the Empire Order of Mutual Aid of the State of New York. From an order permitting George H. Nickelson, Lucy M. Nickelson, Cora E. Moses, and Bertha Baade, to intervene, and appointing a referee to take-proof of their claim, the attorney general appeals.</p>

Action by John A. Snell, Alanson Snell, and Lewis D. Snell, partners under the firm name and style of John A. Snell & Sons, against James Rogers, E. F. Fauquier, and George A. Taylor, partners under the firm name and style of Rogers, Fauquier & Taylor. Judgment for plaintiffs. Defendants appeal.

Action by George 2sT. Cottrell, as supervisor of the town of Poeaienkill, against the Marshall Infirmary in the City of Troy, for damages caused by defendant's dam washing away. From a judgment for plaintiff for $1,949.55 damages and costs, entered on a verdict -of a jury, and from an order denying a motion for a new trial, defendant appeals.

<p>1. Insurance—Conditions op Policy—Change op Title.</p> <p>Where the assured enters into an executory contract for the sale of the insured premises, and immediately informs the insurance agent as to such contract, and requests him to make the necessary indorsement to prevent a forfeiture of the policy, a mistake of the agent in making the indorsement will not avoid the policy.</p> <p>3. Same-Executory Contract op Sale.</p> <p>An executory contract for the sale of insured premises, followed by delivery of possession to the purchasers, is a “change of title” within a condition of the policy that it shall be void in case of such change, “unless otherwise provided by agreement indorsed” on it.</p> <p>3. Same—Failure to Operate Mill.</p> <p>Where the operation of a sawmill is temporarily suspended by reason of the illness of the sawyer, it does not “cease to be operated,” within a condition of a fire insurance policy that it shall be void if the mill “cease to be operated more than 10 consecutive days.”</p>

<p>Negligence—Evidence—Defective Machinery.</p> <p>In an action against a railroad company to recover for the death of a fireman by the explosion of his engine, it appeared that, about a week before the accident, the water in the boiler .had been lowered so that the crown sheet was not covered. The engine was afterwards examined and tested to the maximum pressure of about 145 pounds, but no defect was discovered, and it was continued in use. The explosion occurred while the -engine was running without a train, under a pressure of 116 pounds. Held insufficient to go to the jury on the question of defendant’s negligence.</p>

Action by Charles N. Sherman against Walter G-. Rogers, for slander. From- a judgment entered on a verdict in favor of plaintiff for $600 and costs, defendant appeals. The words charged in the complaint are: “You are a thief. You are a damn thief. You have stole a wagon from me.

Action by the board of education, etc., of Waterford, against the First national Bank of Richfield Springs, John D. Henderson, (receiver of the firm and individual property of John Brown and Charles Brown,) Alexander G-. Cunningham, and others. From a judgment for defendant Cunningham on the findings of the circuit court, plaintiff and defendant bank and others appeal.

Mandamus on the relation of Orville Crouse to compel the board of supervisors of Fulton county to pay a judgment against the town of Johnstown in said county. From an order denying the application, relator appeals.

Action by Peter Soderman against the Troy Steel & Iron Company for personal injuries. Judgment in favor of plaintiff entered on a verdict for $1,000. Defendant appeals. The action was prosecuted for alleged negligence of the defendant in furnishing an alleged defective car, upon which the plaintiff was employed to work, in transporting slag from defendant’s steel works to a dump on defendant’s ground, where such slag was deposited!

Action by Louisa Freeman, administratrix of George Freeman, deceased, against the Glens Falls Paper-Mill Company, for the death of plaintiff’s intestate. From a judgment for defendant, plaintiff appeals.

Exceptions from circuit court, New York county. Action by the Bank of New York, National Banking Association, against the American Dock & Trust Company, for damages for issuing a spurious warehouse receipt. Judgment for defendant. Plaintiff moves for new trial on exceptions ordered to be heard in the first instance at general term.

Suit for partition by Mary Duffy (Mary Ann McGahy, substituted as plaintiff) against Catherine Duffy (John McArdle, individually and as administrator of Catherine Duffy, deceased, substituted as defendant) and others.

<p>Lunatics—Damages—Real Estate.</p> <p>Damages recovered for injury to the fee of a lunatic’s real estate are to be treated as real estate whore he dies without recovering his competency.</p>

Action by Gerard Beekman and J.'W. Beekman, trustees of the-est-ate of J. W. Beekman, deceased, against Susan Van Dolsen, as executrix of A. Van Dolsen, deceased. From a judgment entered in favor of defendant for the balance of a counterclaim over and' above the amount recovered by plaintiffs, and also from an order denying plaintiffs’ motion for new trial, and also from order granting the defendant an extra allowance, plaintiffs appeal.

Action by Charles A. Smith, as ancillary administrator of Caroline Smith, against the Second National Bank of New York, to recover a bond, and to enjoin its sale. From a judgment dismissing the complaint, plaintiff appeals.

Action by Dirck Dode against the Manhattan Railway Company and the Hew York Elevated Railroad Company to restrain the operation and maintenance of defendants’ elevated railroad in front of plaintiff’s property known as “Ho. 549 Third Avenue,” and for rental damages. From an order granting plaintiff an extra allowance of $56, and from an order denying defendants’ motion to resettle the order granting the extra allowance, defendants appeal.

<p>Appeal from special term, Hew York county.</p> <p>Action by H. Van Rensselaer Kennedy against Mifflin Kennedy, Frederick P. Olcott, Joseph Wharton, Henry Budge, Frederic Cromwell, J. Kennedy Tod, Alfred S. Heidelbach, Eric P. Swenson, and the Central Trust Company of Hew York. From an order denying a motion to continue a preliminary injunction, provided defendants execute an undertaking in the sum of $10,000 as security for the payment of such damages as plaintiff may sustain, plaintiff appeals.</p>

Action by Kate M. Brennan against William Ellis for personal Injuries. From a judgment entered on a verdict-in favor of defendant for $158.51 costs, and also from an order denying a motion for a new trial on the judge’s minutes, plaintiff appeals.

on report of reféree. Action by George F. Vietor, Oarl Vietor, Thomas Achelis, Jr., and John Achelis against Moritz Bauer and Oacilie Bauer on a promissory note. From á judgment dismissing the complaint, plaintiffs appeal.

Action by the Wakefield Rattan Company against Shepard Tap-pan to recover possession of goods seized by defendant as sheriff of Rensselaer county. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes,- defendant appeals.

Action in the name of the people, originally brought on the relation of Maria L. Collins against Charles Donohue, impleaded with another. Relator having died, John Collins was substituted in her place. 19 N. Y. Supp. 36. From a judgment in favor of plaintiff, entered on a trial by the court without a jury, defendant Donohue appeals.

Action by Alonzo C. Monson, as executor of, and trustee under, the last will and testament of David Dunham Withers, deceased, in his lifetime, and at the time of his death, sole executor of, and trustee under, the last will and testament of Reuben Withers, deceased, against the New York Security & Trust Company and others.

Action by John Flood against Henry Van Wormer, as . commissioner of highways of the town of Rotterdam, to restrain the removal of plaintiff’s house as an encroachment on the highway. Judgment for plaintiff. Defendant appeals.

<p>Appeal from justice court</p> <p>Action by John Conley against John Schiller to recover on a lease. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from superintendent of the poor.</p> <p>The town of Hector was adjudged liable for the support of Nunzio Zebedio and Julian Depowel, paupers, and appeals.</p>

Action by Otto J. Frickel against Alice Frickel for an absolute divorce, on the ground of adultery. Defendant moves for alimony and counsel fees pending the action.

Action by Prosper Monnet and Louis Monnet against Henry Merz. An extra allowance was granted to plaintiffs, and they now move for a further allowance on the ground that additional labor has been imposed on them by numerous appeals taken in the case.

<p>Contempt—Failure to Pat Deficiency on Resale under Mortgage.</p> <p>An order directing a purchaser at a mortgage foreclosure sale to pay the deficiency arising on a resale made in consequence of his default is not within Code Civil Proc. § 14, subd. 3, which declares that a person may be punished, as for a contempt, “for the nonpayment of a sum of money ordered or adjudged by the court to be paid, in a case where, by law, execution cannot be awarded for the collection of such sum,” since an execution may be issued against such purchaser under section 779, providing that where costs, “or any other sum of money, directed by an order to be paid, are not paid, * * * an execution against the personal property, only, of the party required to pay the same, may be issued.”</p>

<p>Costs—Extra Allowance.</p> <p>An extra allowance cannot be granted to a party in whose favor no costs are taxable. Couch v. Millard, 41 Hun, 212, followed.</p>

Action by Henry L. Pfeifer against the Buffalo Railway Company. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial made. on the minutes, defendant appeals.

Action by the Port Jervis Waterworks Company against the village of Port Jervis. From a judgment in favor of plaintiff for $1,644, with $194.23 costs, defendant appeals.

Action by Sarah M. Quibell against Peter C. Bust and others to cancel a conveyance, of land. From a judgment overruling the general demurrer of John A. Morris, that defendant appeals.

Action for libel by Elizabeth Heyler against the New York News Publishing Company. Plaintiff had judgment on the verdict of a jury, from which, and an order denying a motion for a new trial on the minutes, defendant appeals.

Application by Charlotte Ewer for writs of habeas corpus and certiorari. From orders dismissing the writs, (19 N. Y. Supp. 933,) said Ewer appeals.

Action by Agnes Mickee, as administratrix of the estate of Charles Mickee, deceased, against the Walter A. Wood Mowing & Reaping Machine Company, to recover damages for the death of plaintiff’s intestate, caused by defendant’s negligence. From a judgment of nonsuit, plaintiff appeals.

Proceeding by Christian D. Bernsee, one of the executors named in the will of his mother, Adeline D. Bernsee, deceased, for probate of the will. Objections were filed-by Adeline O’Donohue, a daughter of testatrix, and by Rufus O. Gatlin, special guardian for John B. Gatlin, a grandson. The will was admitted to probate by a decree entéred April 18, 1891. On appeal this decree was reversed, (17 N. Y. Supp. 669,) and issues were framed and ordered to be tried at circuit.

Application by Sophia A. Daniels for the appointment of a temporary guardian of the person of Jennie R. Willett, an infant, under the age of 14 years. Petitioner was appointed guardian, and Martha S. Willett and Edward S. Willett appeal.

Action by Philip H. Moore and Philip J. Ackert, as executors ■of the will of Barbara G. Rikert, deceased, against the Hanover Fire Insurance Company of the city of New York, and Maggie P. C. Smith, to recover on a policy of fire insurance. The policy was issued by defendant insurance company to defendant Smith to the amount of $2,000; loss, if any, payable to plaintiffs’ testatrix, as mortgagee of the insured premises.

Action by Jane Ann Hulse, administratrix of the estate of Oharles Hulse, deceased, against the Hew York, Ontario & Western Bailroad Company, to recover damages for the death of plaintiff’s intestate, caused by defendant’s negligence. From a judgment of nonsuit, plaintiff appeals.

Certiorari by William P. Douglas to review the action of David L. Van Nostrand, as supervisor, Frederick H. Whiting, as town clerk, and Henry O. Ditmis, Oliver Crooks, and James M. Higgins, as assessors, of the town of Flushing, in assessing relator’s land at $60,000. The assessment was sustained, and relator appeals..

Action by Henry W. Sage, Dean Sage, and William H. Sage against Andrew E. Culver, Allan C. Washington, and the Prospect Park & Coney Island Railroad Company, for a discovery of the affairs of the company, an accounting, and to enjoin defendants Culver and Washington from diverting the property of the company to their individual benefit.

Action by James P. Memann against George B. Collyer to recover for professional services rendered by plaintiff as an attornev. From a, judgment in favor of plaintiff, defendant appeals.

Action by Elizabeth Byrnes against the New York, Lake Erie & Western Railroad Company for the death of plaintiff’s husband. From a judgment dismissing the complaint at the close of the testimony, and for $725.30 costs of the action, plaintiff appeals.

Action by John R. Drake against the New York Iron Mine, William L. Wetmore, and Matthew H. Maynard, as assignee in bankruptcy of said Wetmore. From an order staying proceedings until the costs of a former action should be paid, plaintiff appeals.-

<p>False Pretenses—Offer to Sell Counterfeit Monet—Indictment.</p> <p>An indictment under Pen. Code, § 527, malting it a felony to aid or abet a scheme to defraud by means of circulars offering for sale paper money, or to inform any one where it can be obtained, is sufficient if it alleges that defendant, by means of a circular, offered one G. paper money, or what pretended to be such; that thereby C. was induced to come to Poughkeepsie, to buy oí defendant money or pretended money, and that defendant showed O. a good government bill, and offered to take O. to one who would sell him bills like it, which he called “goods,” greatly below their face value. Pratt, J., dissenting, on the ground that the indictment did not allege that the acts charged were with intent to defraud, or that the money to be sold was “counterfeit.”</p>

Action by Hugo Weil against Charles A. Hill, and by Embree Hill against the same defendant. Judgment was rendered in each •action for plaintiff. From an order denying a motion by said Weil to set aside the judgment obtained by said Embree HUI, said Weil appeals.

Action by Susan Cassidy against the city of Poughkeepsie for injuries resulting from a defective cover to a sewer basin in the ■street. From a judgment for plaintiff, defendant appeals.

<p>Appeal from special term, Westchester county.</p> <p>Action by William W. Taylor against Franklin B. Bernard and others to foreclose a mortgage. From a judgment for defendants, plaintiff appeals.</p>

Action originally brought by Charles H. Greenleaf and James S. Butler against the Brooklyn, Flatbush & Coney Island Railway Company and Charles W. Kitchen, to recover possession of land on Coney island, in the town of Gravesend. Charles H. Green-leaf died pending the action, and Elizabeth Greenleaf, his sole executrix, legatee, and devisee, was substituted in his stead. From a judgment dismissing the complaint on the merits, with costs, plaintiffs appeal.

.Proceeding for the judicial settlement of the account of Henry E. Nesmith, as sole surviving trustee under the will of James Nesmith, deceased. From the decree, Sarah F. Nesmith and others, beneficiaries under the will, appeal.

Action by the Mutual Life Insurance Company of New York against Annie Voorhis and others to have certain land declared subject to the lien of a mortgage, and for incidental relief. From a judgment for defendants, plaintiff appeals.

Action by Alice Nearing against Frank Van Fleet for breach of promise of marriage. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Proceeding for writ of mandamus by the people of the state of New York, on the relation of Winfield S. Overton, to compel the board of trustees of the. village of Whitestone to call a special election to fill a vacancy in such board. From an order granting a peremptory writ of mandamus, the board of trustees appeals.

■ Action by Ellen M. Cowhill, as administratrix of the estate of John W. Cowhill, deceased, against Perceval Roberts, for the death of plaintiff’s intestate, caused by defendant’s negligence. From a judgment for defendant, and from an order denying her motion for a new trial, plaintiff appeals.

. Action by Josephine Whitlatch against the Fidelity & Casualty Company of New York on a policy of accident insurance. From a judgment for plaintiff for part of her claim, and from an order denying a new trial, she appeals.

Action hy Thomas F. Oakes against Edward De Lancey to recover money paid for certain land conveyed by defendant to plaintiff, on the ground that defendant had no title thereto at the time he conveyed: From a judgment for defendant, plaintiff appeals.

Application by Ann Elizabeth Hecht for the appointment of a successor trustee under the last will of Henry Schneider, deceased. From a decree of the surrogate appointing the Nassau Trust Company successor trustee, and directing an accounting, Elizabeth Miller, Henry Minck, and Nicholas A. Steminermann, as executrix and executors of the will of Frederick Miller, deceased, and Elizabeth Miller, individually and as administratrix with the will of Henry Schneider annexed, appeal.

Action by Abel Crook against George É. Hamlin, Charles Stewart Somerville, and Gustav G. Lansing, impleaded with the Traders* & Travelers’ Accident Company of New York. From an order denying a motion to vacate a judgment for plaintiff entered on a decision of a judge after trial without a jury, defendants appeal.

Action by Henry L. Bealtes against the Phoenix Insurance Company of Hartford, on a lightning clause on a policy of fire insurance. Prom a judgment for plaintiff, defendant appeals. The condition in the policy of insurance on which suit was brought was as follows: “Lightning.

Action by Charles Greite against Charles Hendricks and another to restrain defendant Hendricks from carrying on a saloon business. From a judgment for plaintiff, defendant Hendricks appeals.

Action by Charles Gfreite against Charles Hendricks and another to restrain defendant Hendricks from carrying on a saloon business. During the pendency of the action, and before the entry of judgment against him, Hendricks sold the business. Plaintiff moved for the entry of an order adjudging Hendricks guilty of contempt. Motion granted. Hendricks appeals.

Exceptions from trial term. Action by William D. Slacer against the Field Engineering Company for personal injuries. A nonsuit was granted. Plaintiff moves for a new trial on case and exceptions ordered to be heard at the general term in the first instance.

<p>Appeal from eighth district court.</p> <p>Action by William Wilson, Jr., against the Wyandance Springs Improvement Company to recover for goods sold and delivered to defendant at the instance of its agent. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from seventh district court.</p> <p>Action by Sigmund Fuld against Abraham Kahn. From a judgment for plaintiff, defendant appeals.</p>

Action by Julius Kugelman against David Levy and others, to compel defendants to reimburse plaintiff for money paid for storage and insurance charges on a quantity of tobacco after sale thereof by him to defendants, delivery of which was postponed until payment of the purchase price. From a judgment for plaintiff, defendants appeal.

Action by J. Walter Merritt against Jacob Corties, as sole qualifying executor of and trustee under the will of Elizabeth L. Merritt, deceased, Charles A. Macy, Jr., Josephine C. Merritt, Clemtine Cornelia Merritt, Isaac Walter Merritt, and Elizabeth L. Merritt, to compel the executor and trustee to pay a certain sum held in trust for plaintiff under the will.

Action by Franklin P. Roberge against Maria N. Winne and Elizabeth Cavannah for the specific performance of a paroi agreement to execute to plaintiff a mortgage on certain real estate. Plaintiff had judgment, and defendants appeal.

Application by Roswell W. Keene for mandamus to compel the board of supervisors of Queens county and the board of supervisors of Kings county to provide for the erection of a bridge over a stream which forms the dividing line between such counties. From a judgment and order sustaining a demurrer to the petition and alternative writ, relator appeals.

Action by the Port Richmond & Prohibition Park Electric Railroad Company to enjoin the Staten Island Rapid Transit Railroad Company from preventing plaintiff from crossing defendant’s track. From a judgment dismissing the complaint on the merits, plaintiff appeals.

Exceptions from trial term. Actions Tby Charles J. Close against Charles P. Brady to enforce individual liability on defendant’s part as a stockholder of the American Bit & Brace Company. Finding for defendant. Motion for a new trial on exceptions ordered to be heard in the first instance at the general term.

Action by Elizabeth A. Lydecker against Henry M. Valentine for breach of a contract. From a judgment entered on a verdict for plaintiff, for $201, and from an order denying a motion fór a new trial, defendant appeals.

<p>Record on Appeal—Sufficiency—Res Judicata.</p> <p>A judgment rendered for defendant, on the ground that plaintiff had' already recovered on the same cause of action, will be reversed when no record of any such prior judgment appears in the return of the trial justice, and the return does not show that any such record was offered in evidence, or that any concession of the recovery of such judgment was-made in behalf of plaintiff".</p>

<p>Appeal from eighth district court.</p> <p>Action by the Patterson Gas Governor Company against Saul Glenby. From a judgment for plaintiff, defendant appeals.</p>

Petition by Hattie L. Hoyt to open a decree settling the accounts of the executors of Isaac Hoyt, deceased. From a decree modifying and affirming the former decree said petitioner appeals.

<p>Appeal from circuit court, Rockland county.</p> <p>Action by Julia Morris against John Morris, S. Marie Morris, and Marie S. Crowe to set aside a deed. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from special term, Dutchess county.</p> <p>Action by Augustus Van Keuren and Egbert M. Haines against William Starr Miller. From a judgment for plaintiffs, defendant appeals.</p>

Action by Helena Baas against James Pain, Henry J. Pain, and John Doe for personal injuries received from a display of fire works made by “James Pain & Sons, London, England, represented by Henry J. Pain.” The action was commenced by service of summons and a complaint on Henry J. Pain. The complaint alleged that a copartnership existed between defendants, which was denied in the answer.

Exceptions from circuit court, Suffolk county. Action by the trustees of the freeholders and commonalty of the town of East Hampton against Jeremiah H. Vail and George M. Vail to recover certain land. There was a verdict for defendants, and plaintiffs’ exceptions were ordered to be heard in the first instance at general term.

<p>Appeal from circuit court, Kings county.</p> <p>Action by John G. Murphy against James F. Carey and James F. Gillen. Verdict was directed for plaintiff, and defendants appeal.</p>

Application by James L. Truslow and Gilbert Potter, as surviving executors and trustees under the will of Gilbert Potter, deceased, to settle their account, etc. From a decree construing the will, Gilbert Potter appeals.

Action by Florence K. Hann against William D. Carter and Kate B. Carter, his wife. . Kate B. Carter was not summoned, and the action proceeded against William D. Carter alone. From an order denying a motion to vacate an attachment, defendant William D. Carter appeals.

Action by Henry S. Pound against Revilo H. Molyneaux to recover the penalty for using, or having in his possession, without the consent of plaintiff, a milk can, the property of plaintiff, stamped with his name, in violation of Laws 1887, c. 401, § 4, as amended by Laws 1890, c. 25. Judgment for defendant. Plaintiff appeals.

Action by Mariam J. Quinby against the Hew York Life Insurance Company on a policy of insurance. From a judgment for defendant dismissing the complaint, and from an order denying a motion for a new trial, plaintiff appeals.

Action by Adele M. A. Hatfield against James W. Malcolm and another to foreclose a mortgage. Judgment of foreclosure. From an order denying a motion of the Hew Amsterdam Real-Estate Association to vacate the judgment, said association appeals.

Action by Henry Berau against Daniel O’Connell for an accounting of partnership property alleged to have been misappropriated. From a judgment entered on findings for defendant, plaintiff apjPGctls

<p>Specific Performance—Transfer of Stock.</p> <p>Defendant agreed to deliver to plaintiff stock in a corporation to be organized, pursuant to an agreement between him and the owner of a patent, for the operation of the invention, by which agreement defendant was to organize the company, and was to receive certain stock for so doing, provided he complied with certain conditions as to the organization, which he failed to do, by reason of his inability to obtain capital. Meld, that defendant’s agreement with plaintiffs could not be enforced as to stock in another company, organized by another person by agreement with the owner of the patent after defendant’s failure, in which company defendant, by a new arrangement, acquired a certain interest.</p>

Action by John Raven against William R. Smith for services performed under a contract, and for breach of the contract. From a judgment in favor of plaintiff, defendant appeals.

<p>Appeal from Westchester county court.</p> <p>Action by John Raven against William R. Smith to enforce a mechanic’s lien. From a judgment in favor of plaintiff, defendant appeals.</p>

Action by Francis E. Walbridge and others against the J. Dewing Publishing Company. Defendant moved for a postponement three days before the trial, on the ground of the absence of a witness, who, according to defendant’s affidavit, had formerly, been in defendant’s employ, but had a year before gone into the employ of a person in another state. From a judgment for plaintiffs, and from several orders, one of which denied the postponement, defendant appeals.

Action by Charles Erickson against the Twenty-Third Street Bailway Company for personal injuries. Plaintiff had judgment, from which, and an order denying a motion for a new trial on the minutes, defendant appeals.

Action by Mary Featherson against the president, directors, and company of the Newburgh & Cochecton Turnpike Company for personal injuries caused by an obstruction which defendants negligently permitted to be and remain on such road. From an order sustaining a demurrer to so much of the answer as set up a former adjudication as a separate defense, defendants appeal.

' Action by Matilda Ackerman, administratrix, etc., of John K.. Ackerman, deceased, against Mary A. Herrick. From an order granting defendant’s motion to change the place of trial from. Orange to Ulster county, plaintiff appeals.

Exceptions from circuit court, Kings county. Action by James O’Shaughnessy against the Morning Journal Association. The court granted defendant’s motion to dismiss, and ordered that plaintiff’s exceptions be heard in the first instance at general term.

<p>Appeal from special term, Suffolk county.</p> <p>Action by William E. T. Smith and others against Lydia S. Fioyd to quiet title to land. From an interlocutory judgment overruling her demurrer to the complaint, defendant appeals.</p>

<p>Contract—Breach of—What Constitutes.</p> <p>Plaintiff agreed to furnish defendants, for a specified term, two ice bridges at its wharves from which to sell ice; and defendants agreed to furnish ice to be thus sold during such term. The contract provided that plaintiff should receive a certain per cent, of the gross receipts from the .sales; that, if either of the bridges should become uncovered, plaintiff should transfer thereto ice from the other bridge, and receive therefor 50 cents per ton; that, “in case both of such bridges are out of ice at one time,” they should be supplied from plaintiff's bridges, “in the manner aforesaid.” Held, that a failure by defendants to furnish ice for the bridges w'as a breach of the contract, entitling plaintiff to the 50 cents per ton for covering the bridges during the remainder of the term.</p>

<p>Appeal—Review—Conflicting Evidence.</p> <p>A verdict for plaintiff will not be disturbed on appeal where the evidence is conflicting.</p>

Action by Harriet M. Palmer against John W. Palmer to establish a right of way in plaintiff over defendant’s farm, and to enjoin defendant from interfering with her in the exercise of that right. Judgment for defendant. Plaintiff appeals.

<p>Appeal from circuit court, Westchester county.</p> <p>Action by Charles O. Olmstead against the town of Pound Ridge to recover damages for injuries to plaintiff’s horse, caused by defendant’s negligence in failing to keep a bridge in repair. Prom a judgment dismissing the complaint, plaintiff. appeals.</p> <p>On the argument, plaintiff contended that the statute referred to in the opinion is in conflict with article 8, § 3, of the constitution of New York, which provides that all corporations shall have the right to sue, “and shall be subject to be sued, in fill courts, in like cases as natural persons,” and with section 1, art. 14, of the constitution of the United States, which declares that no state shall deny to any person within its jurisdiction the equal protection of the laws. He also contended that the limitation of such statute is unreasonably short, and therefore void.</p>

Action by James McNeil, as administrator of the estate of Arthur McNeil, deceased, against the New York, Lake Erie & Western Railroad Company, to recover damages for the death of plaintiff’s intestate, caused by defendant’s negligence while he was in its employ as a brakeman, in which position he had been engaged more than a year. From a judgment dismissing the complaint, plaintiff appeals.

Action by Isabella Horton against William Barnes and William Wainwright to recover damages for personal injuries sustained while lawfully using a certain apparatus kept by defendants for the amusement of the public, known as a “Razzie Dazzle,” and caused by defendants’ negligence. From an order denying their motion to set aside an order for the examination of defendant Wainwright before trial, defendants appeal.

Action by Anna Megrue against the United Life Insurance Association, sued as United Life & Accident Insurance Company, on a life insurance policy issued on the life of Conduce G-. Megrue, plaintiff’s husband. From a judgment entered on the verdict of a jury in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Action by Dennis Crown, an infant, by Patrick Crown, Ms guardian ad litem, against John C. Orr, Henry Steers, Charles K Sparks, Richard S. Orr, and Michael McDonnell, to recover damages for personal injuries caused by defendants’ negligence while plaintiff was in their employ in a planing mill. From a judgment entered on the verdict of a jury in favor of plaintiff, and from an order denying their motion for a new trial, defendants appeal.

Action by Mary Thorn against Oliver T. Beard. Judgment for defendant for costs. Prom the denial of defendant’s motion that Peter B. Hayt, to whom the claim sued on had been assigned as collateral security, should be ordered to pay the costs, defendant appeals.

Toy against Alexander U. Mayer, as a commissioner of the superior court of Baltimore city, Md. From an order granting the same, defendant appeals.

Petition by Benjamin Tuthill for the judicial settlement of the account of Mary O. Rogers, administratrix of the estate of Guy O. Goss, deceased, and that the administratrix be required to pay a judgment which petitioner had recovered against decedent. From the decree entered, petitioner appeals.

Action by the board of health of the city of Yonkers against John Oopcutt to enjoin the maintenance of a dam and to recover certain penalties. Judgment for plaintiff. Defendant appeals.

Certiorari by the people of the state of New York on the relation of John Copcutt to review the action of the board of health of the city of Yonkers in enacting an ordinance declaring certain mill ponds owned by relator in sucli city to be public nuisances, and directing the issuance of a warrant authorizing the proper officer to remove and abate the same.

Action for libel by Louise M. Galligan against Lewis H. Homthal. From an order denying defendant’s motion for a change of venue, on condition that plaintiff strike out the third count of her complaint, both parties appeal.

Actions by Marcus Hirshfield against Maria Ludwig, Josiah. •Sullivan, John H. Foley, and others. From an order in each action confirming the report of a referee, and directing the distribution of surplus moneys arising on a sale in foreclosure, defendant Foley appeals. One action was brought to foreclose a first mortgage given by the defendant Ludwig to the plaintiff Hirshfield upon lot No. 22, on Colvin street, in the city of Rochester, and resulted in a surplus of 8575.15.

Action by Luther Shute against Frederick W. Jones for damages from a collision on a highway. Judgment for defendant. Plaintiff moves for a new trial on newly-discovered evidence.

Two actions, one by James O’Mell against the Brooklyn Heights Railroad Company to recover damages for injuries to a horse caused by defendant’s negligence, and another by Edward O’Mell against the same defendant for personal injuries caused by defendant’s-negligence, both the result of the same accident, and tried together.

Action by the Central National Bank of Troy against the Ft, Ann Woolen Company and John M. Barnett, commenced by attachment. The Glens Falls National Bank, a subsequent attaching creditor, moves to vacate and set aside plaintiff’s attachment,

Action by Richard Gronin and others against W. M. Tebo to recover damages for breach of a certain contract. From a judgment entered on a verdict directed by the court in favor of plaintiffs, and from an order denying his motion for a new trial on the minutes, defendant appeals.

Action by Leslie M. Saunders and Alexander Saunders against the Yew York Central & Hudson River Railroad Company to restrain defendant from operating its railroad over a strip of land formerly under the waters of the Hudson river, and to compel the removal of the railroad tracks therefrom. From a judgment for plaintiffs, (23 Y. Y. Supp. 927,) defendant appeals.

<p>1. Specific Performance—Title—Judgment—Presumption.</p> <p>Specific performance will be decreed of a contract to purchase land, the vendor’s title to which depends on the decree of a court of general jurisdiction in a suit in which defense was made by guardians ad litem appointed by the court on petition for the infant defendants, assuming the jurisdiction of the court depended on the service of a subpoena on the infants, though the record was entirely silent as to whether a subpoena, which was issued, was served on them; it being necessary that the presumption that the court would not have proceeded, had there been no such service, should be overcome by positive evidence.</p> <p>2. Same—Evidence to Rebut Presumption.</p> <p>This presumption is not overcome by the fact that in proceedings subsequent to the decree, leading up to the execution of the decree of sale, it was stipulated for the purposes of the motion to make the purchasers at the sale take the title that the infant defendants had not been served with the subpoena, as it cannot be presumed that it was made because it could not be proved that such service was made.</p> <p>8. Federal Courts—Practice—Infants—Guardian ad Litem.</p> <p>Congress and the federal courts haying failed, up to 1868, to prescribe the maimer in which infant defendants in equity suits in a federal court should be subjected to the jurisdiction of the court, and equity rule 90, then in force, having provided that, where the rules of the federal courts did not apply, the practice of the circuit court should be regulated by the practice in the English chancery court, a guardian ad litem for infant defendants could be appointed by the court without personal service on the infants, on an appearance being entered by a solicitor for such defendants, followed by a petition by their mother for such appointment, this being proper practice in the English chancery court.</p>

Action by Mary Ann Eecor against Charles Blackburn and others for partition. There was a decree for partition, and the land was sold to Levi Blumenon. From an order compelling Levi Blumenon to complete his purchase, he appeals.

Action by George W. Stephens, as receiver of the McCall Publishing Company, a foreign corporation, against Arthur H. Page and Joseph H. Ringot, to recover the assets of such company, for the purpose of applying the same on an execution in favor of Walter Logan. Logan procured an order for the examination of such corporation in proceedings supplementary to execution, and, at the close of such examination, plaintiff was appointed receiver.

Action by Henrietta E. Schwarting against Alfred Bisland for goods sold and delivered, and for money loaned, to defendant, through the medium of his wife, as his agent, by Charles W. Schwarting, plaintiff’s assignor. Plaintiff claimed on the trial that the wife stated, in connection with the requests for money, that it was wanted for the purpose of paying for certain specified family necessaries. Defendant claimed that the wife used the money for luxuries.

<p>Action for Misrepresentations—Sufficiency of Evidence.</p> <p>In an action to recover for misrepresentations by defendant as to his competency to teach photo-engraving, whereby defendant was induced to pay him for instruction in advance, plaintiff testified that defendant was incompetent, and a witness for plaintiff testified that defendant, while in his employ, had spoiled some plates, but it appeared that this witness discharged defendant because he was unable to work rapidly. Defendant and other witnesses testified to defendant’s competency. Held, that plaintiff’s burden of proving false representations was not sustained.</p>

<p>Appeal from second district court.</p> <p>Action by Francis O. Boyd and another against Louis A. Fumonte. From ,a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from ninth district court.</p> <p>Action by Solomon M. Grouse against Elias Wolf for the purchase money of a truck. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from tenth district court.</p> <p>Action by Jeremiah Enright against James M. Seymour for money paid at defendant’s request. From a judgment for plaintiff, defendant appeals.</p>

<p>Action by Failing against the city of Syracuse.</p>

Action by the health department of the city of Hew York against Howard D. Hamm to recover the penalty of $10 per day provided for by section 665 of the consolidation act, (Laws 1882, c. 410,) and incurred by defendant for having erected a building in violation of the plans and specifications as approved by the health department in the city of Hew York, pursuant to authority conferred by the act, (section 660 et seq.) From a judgment for plaintiff, defendant, appeals.

<p>Appeal from eighth district court.</p> <p>Action by Isabella B. Lynes against William Hickey. Prom a. judgment for plaintiff, defendant appeals.</p>

<p>Appeal from fourth district court.</p> <p>Action by Leo Owiter against the Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Action on Partnership Agreement—Who mat Sue—Creditors.</p> <p>A provision in a copartnership agreement that the sum owing by one of the copartners for merchandise contributed by him to the copartnership shall be paid by the firm will be construed as made for the benefit of the persons to whom such sum is due, and they may sue the firm on such agreement.</p> <p>2. Same—Parol Evidence.</p> <p>In an action on a provision in a written copartnership agreement that the firm should pay the sum owing by one of the members for goods contributed by him to the firm, evidence that there was an oral understanding that such assumption of debts by the firm should apply only to a claim other than the one sued on is inadmissible.</p>

Action by William Jacklin against the Rational Life Association of Hartford, Conn., to recover the amount of an insurance policy issued by defendant upon the life of Venie Jacklin, daughter of plaintiff, payable to plaintiff.

Action by Adrian Iselin against John H. Starin to restrain defendant from using a certain ferry dock on plaintiff’s premises and a certain road over the latter, in which defendant filed an equitable counterclaim, asking that obstructions placed on such road be removed. From a judgment for plaintiff, defendant appealed.

Application by the people of the state of New York on the relation of John J. Griffin for a peremptory writ of mandamus to compel Austin Lathrop, superintendent of state prisons, and William R Brown, agent and warden of Sing Sing prison, to reinstate relator as guard or keeper of Sing Sing prison, from which office he was removed by such agent and warden. From an order denying the writ, relator appeals.

■ Mandamus proceeding by the people of the state of New York, on the relation of Alice Sanders, to compel Hugh J. Grant, as mayor of the city of New York, to give his consent, under chapter 309 of the Laws of 1892, to the appearance of Zelda Sanders, relator’s daughter, aged 11 years, in a certain theatrical entertainment in which such child is .desired to sing and dance. From -an order denying her application for a peremptory writ, on order to show cause, relator appeals.

Application by Benjamin D. Stevens for writs of habeas corpus and certiorari. From an order dismissing the writs on demurrers to the returns of the warden and police magistrate, and remanding the applicant to the custody of the warden, the applicant appeals.

Action by Horace W. Garland and another against Cortlandt S.- Van Bensselaer and the Commonwealth Security & Improvement Company. From a judgment for plaintiffs against defendant Van Bensselaer, entered on an order overruling his demurrer to the complaint, on the ground that it showed no cause of action as against him, he appeals.

Action by Horace W. Garland and another against Cortlandt S. Van Rensselaer and another. From an order denying a motion to vacate a judgment entered on an order overruling a demurrer of Van Rensselaer to the complaint, he appeals.

Action by the First National Bank of Oxford against Charles L. Turner, agent for Julia A. Turner, and Julia A. Turner and others. Defendant Julia A. Turner demurs to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action against her.

<p>Appeal from surrogate’s court, Westchester county.</p> <p>Petition for the judicial settlement of the account of Henry B. Bolton and Thomas Bolton, as executors of Ann Bolton, deceased. From a decree settling the account; Mary A. Littlewood and Sarah L. Myers, devisees and legatees under the will of said deceased, appeal.</p> <p>The sale of certain machinery by the executors was attacked as unfair, and as being made for an inadequate price, and it was shown that two years before, in a proceeding by the city to acquire title to the land on which the machinery was situated, the executors had shown that , all the machinery, including that belonging to the estate, and that erected by the lessees after the destruction o£ part of the machinery by fire, was worth $90,000, while that belonging to the estate alone was worth $50,000. At the time of the sale by the executors the land belonged to the city, and the purchaser of the machinery was required to move the same immediately.</p>

'Action by the Charles S. Higgins Company against the Higgins Soap Company to enjoin defendant from manufacturing or selling soap under the name of the Higgins Soap Company. Judgment for defendant. Plaintiff appeals.

<p>1. Costs—Motion fob New Tbial—Discbetion of Coubt.</p> <p>Costs on a motion for a new trial are in the discretion of the court, (Code Civil Proc. § 3230,) and cannot be taxed by the party who finally succeeds in the action as part of his recovery.</p> <p>2. Same—To Abide Event of New Tbial.</p> <p>Where a verdict in favor of plaintiff for $3,300 is set aside, and a new trial granted, “with costs to defendants to abide the event,” and on the new trial plaintiff recovers $400, he is not entitled to tax the costs of the motion for a new trial</p>

Action by John Fiero against the Yew York Central & Hudson River Railroad Company for injuries received by plaintiff while in defendant’s employ as a conductor. From a judgment for plaintiff, and an order denying defendant’s motion on the minutes for a new trial, defendant appeals.

Action by Theodore H. Silkman to enjoin the board of water commissioners of the city of Yonkers from cutting off the supply of water furnished by defendant to plaintiff’s premises, for failure of plaintiff to pay a water rent, and to recover certain amounts paid by plaintiff. Judgment for defendant. Plaintiff appeals.

Action by Wilmot E. Knapp, as receiver of Walter E. Colegrove, against Jacob D. Sweet and Paul Colson. There was a verdict for defendants, and plaintiff moves for a new trial on a case and exceptions.

<p>1. Review on Appeal—Adhering to Theory of Case.</p> <p>In an action against a boarding bouse keeper for the loss of apparel belonging to a boarder, and stolen from his room during his absence, where it appears from the justice’s return and the proceedings on the trial that the complaint, which was oral, was founded on a charge of negligence on defendant’s part, and that theory was acquiesced in by both parties, plaintiff cannot have a judgment in his favor affirmed on appeal on the ground that the evidence showed a conversion by defendant, she having taken possession of his room during his temporary absence.</p> <p>2. Boarding House Keeper—Liability—Loss of Goods.</p> <p>A boarding house keeper is liable for the loss of goods belonging to a boarder only if he has omitted to exercise ordinary care to prevent it.</p> <p>3. Same—Degree of Care.</p> <p>A boarding house keeper is under no obligation to keep a boarder’s room locked in his absence.</p> <p>4. Same.</p> <p>The failure of a boarding house keeper to rid her house of a boarder who had twice failed to securely close the front door after entering late at night does not show a want of ordinary care to protect her patrons’ effects.</p>

<p>Breach op Contract—Special Damages.</p> <p>Where plaintiff contracts with defendant railroad company to deliver to plaintiff’s employe, on the same day, a ticket for transportation to a distant city, and tells the ticket agent that it is necessary that the employe start at once in order to fulfill an engagement in such city, defendant is put on inquiry as to the special circumstances of the con,met, and therefore, on a failure to deliver the ticket, is liable for the excess of wages which the employe would have earned for plaintiff under a contract with persons in the distant city.</p>

<p>1. Res Judicata—Record of Former Judgment—Sufficiency.</p> <p>In an action to recover the value of work performed by plaintiff’s assignor on certain articles of clothing, defendant introduced in evidence the judgment roll of an action of claim and delivery for the articles, wherein defendant was plaintiff and plaintiff’s assignor defendant, but which in terms only purported to be a “judgment for the plaintiff” named therein, “and $22.50 costs,” without stating that it was against the defendant therein, or that he either appeared or was served with summons. EeM, that this was insufficient to sustain a defense of former adjudication or a counterclaim for the amount of such costs.</p> <p>2. Justice of District Court—Powers.</p> <p>A justice of the district court of New York city may enter judgment on a verdict which he has previously assumed to set aside, since such justice has no authority to set aside a verdict</p>

<p>Í. SuPPLEMBNTABY PeOCEBDINGS—AFFIDAVIT.</p> <p>Where the affidavit ou a motion to set aside an order for the examination of affiant as a judgment debtor in supplementary proceedings states that the judgment debtor is an agent for an insurance company having an office in the city of New York, and that he has desk and chair room in such office, it sufficiently shows that he has a place for the transaction of business in person in the county, within the meaning of Code Civil Proc. § 2158.</p> <p>2. Same—Date of Issuing Execution.</p> <p>The fact that the moving affidavit wrongly states the date of issuing the execution is not a jurisdictional defect.</p>

Action by Clarence N. Boyd against Mary M. Stewart, as owner, and others, to foreclose a mechanic’s' lien. Afterwards, similar actions against the same defendants were brought,—one by John Sheehy, in the same court, (city court of New York,) and the other by Henry Iden, in the supreme court. Defendant, Mary M. Stewart, moves to consolidate with the first action the two actions subsequently brought.

<p>Livery Stable Keepers—Lien—Enforcement.</p> <p>Where the owner of a horse, in the keeping of plaintiff, a livery stable keeper, obtained possession thereof by fraud, without paying plaintiff’s charges, plaintiff may recover possession of the horse, though he has not given the notice mentioned in Laws 1892, c. 91, which provides that one who keeps an animal under an agreement with the owner may detain it until his charges are paid: “provided, however, that notice in writing shall first be given to such owner * * * of the amount of such charges and the intention to detain such animals until such charges shall be paid.”</p>

Action by Kichard W. Peck against George Dickey and August Zuber to recover possession of certain chattels. Defendants demurred to the complaint, on the grounds (1) that it did not state a cause of action; (2) that the court did not have jurisdiction of the subject-matter of the action; and (3) that the court did not have jurisdiction of the persons of defendants.

Application by Caroline A. Day for a writ of habeas corpus against Oswald G. Day, her husband, to obtain the custody of their infant child. The writ' was issued, and the case comes before the court on the return thereto.

Action by James N. Wells and William J. Wells, individually and as executors of the will of James N. Wells, deceased, against Kate Wells and others, for construction of the will of said James-N. Wells, deceased.

Action by John Mason against Hayden W. Wheeler and others to rescind a contract of sale of certain watch cases and movements, on the ground of fraud.

Action by Eleanor F. Bishop against Mabel C. K. T. Bishop. A dispute having arisen between plaintiff and her attorney, the matter was referred. The referee decided the dispute against the attorney, and now moves to compel him to pay the referee’s fees.

Action by the Dr. Jaeger’s Sanitary Woolen System Company against George Le Boutillier, trading under the name of Le Boutillier Bros., for an accounting, and injunction.

<p>Two actions by Benton McConnell, as assignee of C. B. Keogh & Co., against William H. Muldoon and others, to foreclose two mortgages given by defendant Muldoon to secure two notes for $2,646.50 each, made by him to C. B. Keogh & Co., and, as incidental relief, to cancel certain prior mortgages by said Muldoon of the same premises, or to postpone the same to plaintiff’s mortgages.</p>

Action by Frederick Mead against the New York Elevated Railroad Company and the Manhattan Railway 'Company to enjoin the operation of defendants’ road in the street on which plaintiff’s lot abuts, whereby plaintiff was deprived of his easements in such street.

<p>Action by James H. Bodgers and others against Ferdinand P. Earle for rescission of certain contracts, and for other relief. Plaintiff moves to continue an injunction granted pendente lite.</p>

<p>Action by Anna Forman against Frank Willis Forman to annul the marriage contract existing between the parties.</p>

Action by Rebecca Isear against Maurice J. Burstein to compel defendant to remove a wall of his house, No. 182 Henry street, alleged to encroach on defendant’s lot, known as No. 184, in the same street, or for damages.

<p>Action by Caroline Ahlberg against Magnus Ahlberg for separation and alimony.</p>

<p>1. Divorce—Alimony pendente "Lite.</p> <p>Where defendant, in an action for divorce on the ground of adultery, denies the charge on oath, she will be granted alimony and counsel fees, though it appears by plaintiff’s affidavits that she is guilty of the charge.</p> <p>2. Same—Poverty op Husband.</p> <p>In an action by a husband for a, divorce on the ground of adultery, which defendant denies on oath, the poverty of the husband is not a defense to an application for alimony pendente lite.</p>

Action by James Murray and others against John C. Barth and others to foreclose a mechanic’s lien. The owner of the property moves to cancel a lis pendens, notice of which was theretofore filed.

<p>Action by Ziehen against David J. Smith and John J. Smith to recover money paid by plaintiff on a contract for the purchase of land. There was a verdict for plaintiff, and defendants move for a new trial.</p>

Action by Charles H. Gyllenhammer against the Home Benefit Society of Hew York to recover $5,000 upon a certificate in the defendant society. After a verdict in favor of plaintiff for the face of the certificate, defendant moves, under stipulation, that its actual value may be established according to law.

<p>Action by George Bliss, as executor, against Charles B. Fosdick, individually and as executor, and others.</p>

Action by Catherine Tobin against James B. Sykes and another for libel. From a judgment entered on a verdict for plaintiff, and from an order denying a motion on the minutes for a new trial, defendants appeal. The article published did not name the plaintiff, but she claimed that in fact it referred to her. It was as follows: “A miserable, drunken brute of a mother on Utica street sends her children for beer daily, and cruelly beats them.

<p>Appeal from circuit court, Otsego county.</p> <p>Action by Barnet Hill against James Bartholomew for trespass on certain real estate. From a judgment for defendant, plaintiff appeals.</p> <p>The action, was first brought in justice’s court. A plea of title was put in, and the action then was brought in the supreme court. In the complaint it is alleged that the defendant at various times during the months of May and June, 1888, wrongfully went upon the lands and premises of the plaintiff, and wrongfully and willfully opened the gates and fences of plaintiff on piamtiirs premises, ana wrongrully and willfully left tne gates and fences open, and thereby exposed plaintiff’s crops, and caused plaintiff’s cattle to go out, and that in consequence thereof the plaintiff was put to great trouble and expense in looking after his cattle and in shutting his gates. In the answer it is, among other things, alleged that the defendant had a right of way across the plaintiff’s premises, and that all he did was in the exercise of this right, and that he had a right to have the gate open, and all other entries are denied.</p>

Ejectment by H. D. Blakeslee against Isaiah Sincepaugh. From a judgment rendered on a verdict for defendant, and from an order denying a motion for a new trial upon a case and exceptions, plaintiff appeals. The action is in ejectment for 19.41 acres of land.

Action by William S. McMillian against Frederick C. Lauer and others to enjoin defendants from erecting a bridge pier in a mill race appurtenant to plaintiff’s mill, in which defendants moved to dissolve the injunction.

Action by William E. Dorwin and another against James B. Westbrook for a balance due for work, labor, and materials. From a judgment on a verdict for plaintiffs, and from an order denying a motion for a new trial on the minutes, defendant appeals.

<p>Conveyance by Corporation—Setting Aside by Honassenting Stockholders.</p> <p>Where a paper manufacturing company, by authority of the directors, and of all the stockholders but one, sells and conveys, in good faith and for full value, its water privileges in an outlet of a certain lake to a city which apparently has the right to obtain title to such privileges by condemnation proceedings, such conveyance will not be set aside, at the instance of such nonconsenting stockholder, on the ground that the board of directors had no power to execute it, or authorize its execution.</p>

Action by the Hew York Central & Hudson River Railroad Company against Paul S. Maine, as supervisor of the town of Fenner, and the board of supervisors of Madison county, to enjoin further proceedings in the matter of the submission to the general term of a certain action between defendants, and from presenting any amended or other submission which does not contain a statement of certain facts. From a judgment for plaintiff, defendants separately appeal.

Action by William Dale against the city of Syracuse for personal injuries caused by a defective cross walk on a certain street in such city. From a judgment entered on the verdict of a jury in favor of plaintiff, and from an order denying its motion for a new trial, made on the minutes, defendant appeals.

Action by William Georgeson against Frederick H. Ebeling,, treasurer of the Empire Mutual Union of Syracuse, for salary as manager of said union. James S. Caffrey, having been elected treasurer, was substituted as defendant. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from special term, Delaware county.</p> <p>Mandamus on the relation of R. A. Fraser to compel the board of auditors of the town of Hamden to audit and allow relator’s claim. From an order directing the issuance of the writ1 said board appeals.</p>

Action by George Merris against Charles Hunt for damages for breach of warranty in the sale of a horse, commenced before a justice of the peace, and taken on appeal by defendant to the county court. From a judgment reversing the judgment of the justice, plaintiff appeals.

Action by Mary A. Tinker against the New York, Ontario & Western Railroad Company for personal injuries. From a judgment dismissing, the complaint on a nonsuit directed by the court, plaintiff appeals.

Action by Nellie E. Yale against William E. Curtiss. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial made on a case and exceptions, defendant appeals.

<p>Appeal from circuit court, Onondaga county.</p> <p>Action by Betsey Revoir against Florence A. Barton and Anna L. Barton to foreclose a mortgage on certain real estate. From a judgment for plaintiff, defendants appeal.</p> <p>The action is for the foreclosure of a mortgage dated October 20, 1890, given by the defendants to the plaintiff to secure the payment of the sum of $4,250, payable $1,000 one year from date thereof, and $1,000 each and every year thereafter, until the principal was fully paid, with interest from January 1, 1891, payable annually, on all sums remaining unpaid. It also contained a provision that if any payment remained in arrear for 90 days the whole principal should become due, at the option of the mortgagee. There was a bond accompanying the mortgage. The judgment appealed from, is the ordinary judgment of foreclosure and sale.</p>

<p>Appeal from circuit court, Cortland county.</p> <p>Action by Joanna Fealy against John Bull to recover the amount of a check drawn by defendant on a certain bank, payable to the order of Patrick McCarthy, and indorsed by the latter to plaintiff. From a judgment entered on the verdict of a jury in favor of plaintiff, and from an order denying his motion for a new trial, made on a case and exceptions, and the judgment entered thereon, defendant appeals.</p> <p>"In the answer it is alleged that the consideration of the check was property that belonged to William W. Hare, sold to defendant by the agent of Hare, and that Hare is the owner, and lawfully entitled to the check and its proceeds, and that defendant has paid Hare; that plaintiff is not the owner of the check, and that she received it with full knowledge that McCarthy was not the owner, and had no right to it, or its proceeds.</p>

<p>1. Acknowledgment of Instruments—Presumptions.</p> <p>The acknowledgment of an instrument raises a presumption of its due execution.</p> <p>3. Same—Impeachment of Certificate.</p> <p>On an issue as to the execution of an instrument, the officer who certified the acknowledgment testified that, as he remembered, he took it at his office, and it appeared from his testimony that he was not certain that the person who acknowledged the instrument was the grantor therein. The signature was not in the latter’s handwriting, and it appeared almost certain that when the acknowledgment was taken such grantor was too ill to leave the house, and there was some evidence that she was unable to execute the papers at her home. There was, however, evidence that on that date the grantor acknowledged another writing before the same officer, and her physician testified that she was then able to execute papers. Held, that a finding by a referee that the paper was duly acknowledged was supported by the evidence.</p> <p>3. Referee’s Report—Direction for Judgmf.nt.</p> <p>In a referee’s report, a statement that the plaintiff “is entitled” to the usual judgment for foreclosure is sufficient to support such judgment.</p>

Action by Thomas D. Penfield against John L. Sage, surviving partner of Ghauncey S. Sage, deceased, for the conversion of certain logs. From the judgment entered on the report of a referee, awarding plaintiff $36.85 damages, and allowing defendant as offset $150.04 costs, leaving judgment in favor of defendant for $121.19, plaintiff appeals.

Action by the National Commercial Bank of Albany against Charlotte C. Gray and others to restrain interference by defendants with window spaces cut by plaintiff in a wall between their properties. From a judgment for defendants, plaintiff appeals.

<p>1. Highways—Occupation by Telephone Poles—Additional Burdens.</p> <p>The construction of a telephone line by erecting poles and stringing wires thereon in a country highway constitutes an additional burden on the fee of adjacent lands extending to its center, not contemplated in the original dedication, for which the owner is entitled to compensation.</p> <p>2. Power op Referee—Striking out Testimony.</p> <p>A referee, after a case has been submitted to him for decision, has no right to strike out testimony, unless such right is specially reserved.</p> <p>Merwin, J., dissenting.</p>

Action by Alexander Reichert against John Backenstross for damages for flooding plaintiff’s land. From a judgment of the county court affirming a justice’s judgment for plaintiff, defendant appeals.

Action by Lucretia M. Whitaker against Almon T. Burrows. From a judgment for plaintiff entered in Delaware county, defendant appeals. The action was commenced about August 11, 1888.

Action by John G. Durr against the village of Green Island for personal injuries. From a judgment dismissing the complaint, plaintiff appeals.

<p>Street Railways — Lease op Road—Liability for Negligence of Lessee.</p> <p>Where a street-railway company, organized under general laws, leases its road to an individual without legislative authority, it remains liable to a passenger for injuries caused by the negligence of the lessee.</p>

Action by John A. Gordon against Abram Becker and others. From a judgment for plaintiff, affirming the judgment of a justice, defendants appeal.

<p>1. Municipal Corporations—Excise Commissioners.</p> <p>Laws 1879, c. 145, § 2, provided that the commissioners o£ excise in cities should hold their office for three years, and until others should be appointed in their place. Laws 1892, c. 401, § 2, approved April 30, 1892, repealing that act, provided that the term of office of every commiS' sioner of excise then in office should be the term for which he was elected or appointed, and the term of every commissioner appointed before the end of the term of the mayor then in office should be for the term then provided by law. Section 5 of this chapter provided that a commissioner's term of office should expire with the term of the mayor who appointed him. Section 45 provided that the repeal of a law by that act should not affect rights already accrued under the repealed act. Held, that persons appointed by the mayor April 4, 1892, such appointment to taire effect May 1st, would hold office for three years, irrespective of the fact that they qualified under a subsequent appointment made by the same mayor in July, and that others were appointed to fill such office by the succeeding mayor at the beginning of the next year.</p> <p>2. Same.</p> <p>The supervisor of a city ward is not ineligible to appointment as a commissioner of excise.</p>

<p>Contract—Nudum Pactum.</p> <p>Where a purchaser of land assumes the payment of a mortgage given thereon by his vendor to a third person, a subsequent bond and mortgage given by the purchaser to the vendor to save the latter harmless from all liability on the mortgage assumed is without consideration, and void. Putnam, J., dissenting. *</p>

Action by Cassia A. Jones against Richard E. Jones for a divorce. Defendant had judgment, and plaintiff moved to vacate and set aside the same. From an order denying the motion, plaintiff appeals.

Action by Mamie Haar against the Industrial Benefit Association. From a judgment for defendant, plaintiff appeals. Nonsuit granted at the Oneida circuit, and judgment entered for the defendant. Action upon a certificate of insurance issued by the defendant, payable to the plaintiff, named therein as the beneficiary.

Application by Charles H. Armatage for a peremptory mandamus to issue to James H. Manning, mayor of the city of Albany, requiring him to cause to be published the list of inspectors and poll clerks selected and appointed by the board of election commissioners of the city of Albany. A peremptory writ was granted at special term, and respondent appeals.

To the petition of Bussell B. Biddlecom for probate of the will of Simon Folts, deceased, Lavina Whaley and others instituted a contest, and from a part of the decree for petitioner contestants appeal.

Action by Burr Mattice against Henry Wilcox to recover damages for libel. From a judgment entered on the verdict of a jury in favor of plaintiff, and from an order denying Ms motion for a new trial, made on a case and exceptions, defendant appeals.

<p>Appeal from circuit court, Schuyler county.</p> <p>Action by E. Darwin Hills against Charles W. White, sheriff, for the wrongful seizure of goods. From a judgment for plaintiff, and an order refusing a motion for a new trial on a case made, defendant appeals.</p>

Action by Frederick W. Puff, as administrator of Wiliam H. Erway, deceased, against the Lehigh Valley Railroad Company, for negligently killing decedent at a highway crossing. From a judgment for plaintiff, defendant appeals.

Action by Lorinda Wilson, administratrix of William Wilson, against the Hudson Biver Water-Power & Paper Company, to recover damages for killing plaintiff’s intestate. From a judgment entered on an order dismissing the complaint, plaintiff appeals.

<p>Appeal from Sullivan county court.</p> <p>Action before a justice of the peace by Dennison I. Dodge against Aaron Eckert for the price of goods sold and delivered. Judgment for plaintiff. Defendant appealed to the county court. Judgment for plaintiff. Defendant appeals.</p>

Action .by Joseph E. West against the city of Utica and Thomas Wheeler, mayor, and others, for an injunction. Prom a judgment fox-plaintiff, defendants appeal. The judgment was entered in Onondaga county on the 12th of December, 1892, and amended by an order entered the 7th of January, 1893, upon a decision made at special term.

Action by Alfred Higgins against Jacob Crouse to rescind a sale of corporate stock, and to recover the price thereof. From a a judgment for plaintiff, defendant appeals. When the plaintiff rested, the defendant moved for a nonsuit upon several grounds, which was denied in the f oho wing language: “I think this case should go to the court of appeals. I will deny the motion.” The defendant took an exception.

Action by Harry Evans against Frank W. Conklin and another, commenced in a justice’s court, to recover rent alleged to be due by virtue of a lease. A judgment for plaintiff was affirmed on appeal to the county court, and defendants appeal.

Action by Simon Schriver against the village of Johnstown for damages for maintaining a nuisance, and for an injunction thereof. From a judgment entered on the report of a referee awarding dam-ages, and granting the injunction, defendant appeals.

<p>Appeal from circuit court, Oneida county.</p> <p>Action by Mary Ann Thuringer against the New York Central & Hudson River Railroad Company for negligence. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.</p> <p>The complaint alleges: “The said defendant wrongfully and unlawfully and negligently permitted and allowed water to flow and escape from-the water pipe, tank, and its locomotives, * * * and from the premises of defendant, on the sidewalk of said James street, in the city of Rome, the same being á public street, and wrongfully and unlawfully and negligently permitted the same to remain and to continue to flow and escape onto said sidewalk until a large accumulation of said water on said sidewalk froze, and became icy and slippery, and dangerous to the-public and people traveling on said walk and street, and wrongfully and negligently neglected to remove said tank and accumulation of ice caused' as aforesaid, after it had knowledge that it was dangerous; * * * and the-said plaintiff, on or about January 10, 1892, while walking on said sidewalk, without any cause or fault of hers, slipped and fell, thereby seriously and permanently injuring her, and making her sick and sore, and unable to attend to her business.” The answer denied the complaint, and alleged the injury in the complaint “was the result of the carelessness, negligence, and want of proper caution on the part of the plaintiff, and not otherwise.”</p>

Action by John W. Collis, administrator, ■ against the Hew York Central & Hudson River Railroad Company, for the death of plaintiffs intestate. From a judgment entered on a verdict for defendant, plaintiff appeals.

Action by Thomas Kingsford against George A. Butler in justice’s court. Judgment by default was entered, and affirmed on appeal to the county court. Defendant appeals.

Action by Samuel J. Haight and John W. Clark against Dennis G-. Littlefield and- the Littlefield Stove Company to enjoin the obstruction of a right of way, and for damages for said obstruction. From a judgment for plaintiffs, defendants appeal.

<p>Appeal from circuit court, Cortland county.</p> <p>Action by Ellen I. Ballard, as executrix of William P. Ballard, deceased, against the Hitchcock Manufacturing Company, for the death of her testator. From a judgment for plaintiff, and from an order denying a motion for a new trial made on a case and exceptions, defendant appeals.</p> <p>On the 30th of May, 1887, William P. Ballard died, leaving a last will and testament, which was proved in Cortland county, and letters testamentary issued to the plaintiff. The defendant is a domestic corporation carrying on business in the village of Cortland, owning two large buildings “full of machinery, viz. punches, shears, trip hammers, saws, planers, shapers, Sanders, and mortice machines. That for the purpose of creating the power to run such machinery, and the steam to heat said two buildings, defendant had in said two buildings three tubular boilers and three engines, one of which boilers was known as the ‘Big Boiler,’ and the other two as the ‘Old Boilers.’ ” Plaintiff’s complaint alleges that her testator, on the 30th of May, 1887, “was in the employment of the" defendant, tending a mason by the name of Franklin H. Scott, who was laying up a brick-wall partition immediately in front of, and near by, said big boiler, and between the boiler room and the adjoining building. That plaintiff’s testator was employed by defendant to perform services in a part of the said wooden building remote from the place where said big boiler was situated. * * * He commenced upon the performance of said work unwarned by defendant of the defective condition of said boiler.” It is also alleged “that for want of due care and attention to its duties towards its employes, * * * and while the plaintiff’s testator was in the employ of defendant, and in said employment was working within a few feet of said boiler, in the capacity as aforesaid, and without any contributory negligence or fault of plaintiff’s testator, the boiler known as the ‘Big Boiler,’ by reason of said unsafeness, said defectiveness, of said neglect of defendant, * * * exploded, * * * and plaintiff’s testator received severe and mortal injuries therefrom,” and in consequence of said injuries died on the 30th of May, 1887. The answer of the defendant denies that the injuries were received by plaintiff’s testator through the carelessness, negligence, or improper conduct of the defendant, etc.</p>

Action by Thomas O’Brien against David K. McCarthy and another, as executors, etc., of James A. O’Hara, deceased, impleaded with William O. Fiske and others. The action was to foreclose a mechanic’s lien against Fiske, From that part of the judgment which adjudges that of the sum of $3,000, paid by James O’Hara in his lifetime to the plaintiff, $1,500 was properly applied by plaintiff upon a contract between him and the defendant Fiske, defendants appeal.

Frank B. Brown was convicted of abduction, and appeals. Defendant was jointly indicted with Arthur Nunn and Nellie Nunn, charged with the crime of abduction.

Action by Michael McCormick, administrator of the estate of Thomas McManus, deceased, against James Sullivan, for money had and received. From a judgment dismissing the complaint on the merits, with costs against the estate of decedent, plaintiff appeals.

<p>Appeal—Review—Süeeiciency oe Evidence.</p> <p>A referee’s finding as to the conditions on which a deed was to be delivered by a depositary in escrow, which is supported by the testimony of the grantee and the depositary, and by circumstances and a letter of the ' grantor, will not be disturbed, though contrary to the testimony of the grantor and another witness.</p>

Action by William H. Buchanan and others against Albert Ash-down to recover a strip of land lying adjacent to a disputed line. The defense relied upon is that a grantor through whom the plain-' tiffs claim was estopped from asserting his title, and that the line was fixed by a practical location of it. . From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial on a case and exceptions, defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by Jacob Jamer against Emma E. Jacobs and Charles H. Jacobs. From a judgment for defendants, entered in Kings county, plaintiff appeals.</p>

Action by George W. Draper against Horace S. Draper and Mary, his wife, for an accounting and for other relief. From a judgment in favor of plaintiff, defendants appeal. On March 12, 1879, the plaintiff conveyed certain premises to his brother, the defendant Horace S. Draper, by a deed, absolute- on its face, and for the expressed consideration of $500.

Action by Emily Locke against Hiram B. Locke for a judicial separation. Plaintiff had decree, with an allowance of alimony. Defendant having made default in the payment of alimony, plaintiff moved for leave to issue execution on the decree. From an order denying the motion, and allowing defendant to set off against the decree a judgment held by him against plaintiff, plaintiff appeals.

Action by Edward H. Foley and John Costello against the Farragut Fire Insurance Company on a fire insurance policy. From a judgment entered on the verdict of a jury directed by the court in favor of plaintiffs, defendant appeals.

Action by Frank B. Reynolds and others against John A. Webster and others to foreclose a mortgage executed by one Covell to secure future advances, in which defendant Webster set up a prior mortgage given by Covell to secure the unpaid purchase money of the same premises, but which was not recorded until after plaintiffs recorded theirs. From a judgment for plaintiffs as to all sums advanced by them without notice of the prior mortgage, defendants appeal.

Action by Mary Reynolds against the City Rational Bank of Watertown and others to set aside, as void, a conveyance by plaintiff to her husband, or, in the event that such relief is denied, to enforce in her favor a vendor’s lien for the unpaid purchase price of the premises conveyed. From a judgment for défendants, plaintiff appeals.

Action by Luther J. Burditt against the Hew York Central & Hudson River Railroad Company. Judgment for plaintiff. Defendant appeals. The plaintiff owned to the center of Teall avenue, in the city of Syracuse.

Action by Emil Krakowski against the North New York Co-operative Building & Loan Association to recover, on withdrawal by plaintiff from defendant, the amount paid on shares issued to him, less all fines and a ratable proportion of losses, pursuant to the provision of the alleged articles- of association of defendant. From a judgment for plaintiff, defendant appeals.

<p>Action by Felix St. Anna Govin and others against Luciana Govin de Miranda and others.</p>

Action by Blizur V. Foote against the Metropolitan Elevated Railway Company and another to enjoin the operation of defendants’ road in front of plaintiff’s premises, and for past damages. From a judgment for plaintiff, granting an injunction and directing mesne damages to be assessed by referees, defendants appeal:

<p>Action by Robert B. Atterbury and Henry Atterbury against Martin Rourke.</p>

<p>Appeal from circuit court. Westchester county.</p> <p>Action by Philip Goldberg against the New York Central & Hudson River Railroad Company.</p>

Action by John Farley and Emma Farley against the city of Amsterdam to recover damages alleged to have been sustained by the plaintiff by reason of the grading of Cornell street, in said city, whereby it was claimed that the adjoining property of plaintiffs had been injured.

<p>Action by Mary J. Bowman against Isaac Knowlton.</p>

<p>Action by William T. Hart and others against the Ogdensburg & Lake Champlain Railroad Company.</p>

<p>Action by William Cooley against Gideon Lobdell.</p>

<p>Action by the First National Bank of Watkins, N. Y., against 0. Park Smith.</p>

<p>Action by Charles Livingston against Clarence Phelps.</p>

<p>Indictment against Samuel P. Hill for murder in the second degree.</p>

Action by George F. Nixon against Aquilino Zuricalday and others. From a, judgment entered on a verdict given by direction of the trial judge, and from an. order denying a motion for a new trial, defendants appeal.

Action by John V. Sweeney against Ellen Redmond for compensation for services as a physician and surgeon. From a judgment for defendant, plaintiff-op-peals.

<p>Action by Joshua Davis against Mary Davis for divorce.</p>