Volume 25 — New York Appellate Division Reports

Appeal by the defendant, The Town of Salem, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 11th day of May, 1897, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 7th day of May, 1897, denying this defendant’s motion for a new trial made upon the minutes.

Appeal by' the defendant, Laura A. Hodgkins, from a judgment of the County Court of Warren county, entered in the office of the clerk of the county of Warren on the 30th day of June, 1897, reversing a judgment of a justice of the peace.

Appeal by the defendant, Ellen Baker, from a judgment of the County Court of Broome county in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 15th day of July, 1897, affirming the judgment of a justice of the peace, and also from an order entered in said clerk’s office on the 15th day of July, 1897, affirming said judgment of the justice of the peace.

■ Appeal by the defendant Margaret J. Lange from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga, on the 4th day of November, 1897, upon an order made at the Saratoga Special Term and'entered in the office of the clerk of the county of Saratoga on the 21st day of October, 1897, granting a motion of the plaintiff for judgment upon the ground that the defendant’s answer was frivolous, and directing that…

CertioEari issued out of the Supreme Court and attested on the* 23d day of July, 1897, directed to James A. Roberts, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings in assessing .upon the relator a business or franchise tax under chapter 542 of the Laws of 1880, and the acts amendatory and supplemental thereto.

Certiorari issued-out of the Supreme Court and attested on the 8th day of June, 1897, directed to James A. Roberts, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings in assessing upon the relator a franchise tax, under the provisions of chapter 908 of the Laws of 1896, for the year ending October 31, 1896.

Appeal by the defendant, Frank Biggart, as deputy sheriff, from, an order made by the special county judge of Washington county and entered in the office of the clerk of the county of Washington on the 2d day of October, 1897, discharging the relator from the custody of the defendant as deputy sheriff or otherwise, and from further restraint'and imprisonment under and by virtue of an execution issued out of the Supreme Court to the sheriff of Washington county in the action…

Appeal by the plaintiff, The Board of Water Commissioners of the Village of Philmont, New York, from an order of the Supreme Court, made at the Greene Special Term and entered in the office of the clerk of the county of Columbia on the 26th day of June, 1897, sending back to the commissioners appointed ' in condemnation proceedings their report therein, and requiring - them to state whether they found certain things to be facts, and whether in making their award they made…

Appeal by the plaintiff, Frederick Fox, from a judgment of the Supreme Court in favor of tlie defendant, entered in the office of the clerk of the county of Albany on the 1st day of July, 1897,. upon the decision of the court rendered after a trial before the court without a jury at the 'Albany Trial Term.

Appeal by the defendant, the Ne-ha-sa-ne Park Association, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hamilton on the 1st day of December, 1896, upon the decision of the court rendered after a trial at the Fulton Circuit before the court without a jury. The facts are fully stated in Judge Putnam’s dissenting opinion.

Appeal by the defendants, Ann Healey and others, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the comity of Rensselaer on the 17th day of August, 1897, upon thé decision of the court rendered after a trial at the Rensselaer Special Term.

Appeal by the defendants, John M. Newton and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 22d day of July, 1897, upon the report of a referee setting aside and declaring void ¿ertain conveyances and transfers made by the defendants John M. Newton and Horace B. Newton, copartners, doing business under the firm name of Newton & Co.j to the defendant Mary T. Clark, because made with the…

Appeal by the plaintiff, Henry H. Lyman, as State Excise Commissioner of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 4th day of October, 1897, upon the decision of the court rendered after a tidal at the Saratoga Special Term dismissing the complaint upon the merits.

Appeal by the defendant, Edmund O’Connor, as assignee, etc., of' Erastus Ross, from a final judgment of the Supreme Court in favor of the plaintiff, entered in -the office of the clerk of the county of Broome on the 16th day of September, 1896, upon the decision óf the court rendered after a trial at the Broome Special Term directing the foreclosure of a mortgage given by Erastus Ross to the Merchants’ Bank of Binghamton.

Appeal by the defendant, the Kingston Water Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Ulster'on the 7th day of January, 1897, upon the decision of the court rendered after a trial at the Ulster Trial Term, certain questions having been submitted to the jury who rendered a verdict thereon in favor of the plaintiffs, and also from an order entered in said clerk’s office, denying the defendant’s…

Certiorari issued out of the Supreme Court and attested on the 17th day of July, 1897, directed to- James A. Roberts, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings in assessing a tax against the relator, a domestic corporation, upon its franchise, together with a penalty, the basis of the assessment being the amount of its capital stock employed within this…

<p>Certiorari issued out of the Supreme- Court and attested on the 24th day of August, 1897, directed to O. E. Gillespie, as justice of the peace of the town of Luzerne, Warren county, N. Y., commanding him to certify and return to the office of the clerk of the county of Warren all and singular his proceedings in regard to an order, made by him in an ex parte proceeding, directing that a certain dog, the property of the relator, be immediately killed.'</p> <p>The relator was the owner of a dog called “ Czar,” of the value, as alleged by him, of $500, which he kept in the town of Luzerne, Warren county. He had always paid in said town on the said dog an annual tax as required by statute.</p> <p>On August 16, 1897, one Conkling made a complaint in writing to the defendant, a justice of the peace of the town of Luzerne, pursuant to sections 125 and 126 of the County Law (Chap. 686, Laws of 1892), that the dog was dangerous and had attacked several persons and teams peaceably traveling on the highway in said town. The justice took the affidavit of Conkling and of four other persons respecting the truth of the complaint, and thereupon, without notice to the relator of the proceeding, or to any person supposed to be harboring the dog, and without the owner or any one in his behalf having any opportunity to be heard, made an order that the owner of the dog, or the person in possession of the same, kill the dog immediately. under penalty of the law, as by statute in such cases provided.</p> <p>Section 125 provides that “ tlie owner or possessor of any dog who shall refuse or neglect to kill him within forty-eight hours after having received such order shall forfeit the sum of two dollars and fifty cents, and the further sum of one dollar and twenty-five cents for every forty-eight hours thereafter,, until such dog is killed.”</p>

Appeal by Carsten Henry Offerman, and others, legatees and ■devisees under the last will and testament of Henry Offerman, •deceased, from a decree of the Surrogate’s Court of Kings county, ■entered in said Surrogate’s Court on the 2.6th day of November, 1897, affirming a supplemental decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 10th day .of November, 1897, confirming the report of an appraiser .appointed to fix the taxable…

Appeal by the plaintiff, John Henry Rolker, from an order of ■ the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of November, 1897, vacating an order of. arrest in an action for libel. •

<p>Negligence—liability of the owner of a building being erected by independent contractors—proof as to an agent’s act—presumption of liability on the part of. those doing the work — burden of proof.</p> <p>A corporation, owning a lot, entered into a contract for the erection of a building thereon, by the terms of which one Downey agreed to “ take entire charge of all the work, * * * to make all contracts for the various departments of work required, * * * to see that the contracts entered into are honestly and faithfully kept,” to he “responsible for all loss or damage from accidents during the construction of the building,” and to take all proper precautions for the avoidance of such accidents. Through Downey the corporation thereafter made a contract, containing similar covenants of indemnity, with sub-contractors named Weber for the mason work arid scaffolding, and with a large number of other contractors for all the other work upon the building.</p> <p>Before the building had reached completion, and while more .than 250 workmen employed by various contractors were working about the building, and while the scaffolding was still up on two stories, a truck driver, while unloading his truck in front of the building, was struck and injured by a brick, which fell from the building in a slanting direction, hut from what part or from what cause was unknown.</p> <p>In an action brought by the truck driver against the owner of the building and against Downey and the Webers to recover for the injury thus sustained,</p> <p>Held, that, by the terms of his contract with the corporation, Downey became, not its agent but an independent contractor, and that some proof of negligence on his part, in the character of an agent of the corporation, was necessary to support an action against the corporation;</p> <p>That the relation sustained to the .corporation by the Webers, by virtue of their contract with it, executed by the corporation itself, was that of independent contractors;</p> <p>That neither Downey nor the Webers could be held liable for the injuries in question under the covenants contained in their contracts' with the corporation, which were merely contracts of indemnity to the corporation alone, and gave no right of action to any one to recover for a claim for which the corporation was not liable;</p> <p>That as the defendants Downey or the Webers were in charge of the building or were doing work thereon, they were required to show, under the circumstances of the case, that no act of themselves or of their servants caused the accident.</p> <p>What evidence was insufficient to enable the court to say, as a matter of law, that Downey and the Webers had relieved themselves from the presumption of negligence, considered.</p>

Appeal by the defendant, Margaret Hickey, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 31st day of August, 189Y, denying her- motion to vacate a judgment of foreclosure and sale.

<p>Appeal by the relator, James-Benedict, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 31st day of July, 189Y, dismissing and quashing a writ of certiorari and also from the judgment entered upon said order.</p>

<p>Appeal by the defendant, the New York Condensed Milk Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 1st day of July, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of June, 1897, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Motion to change the place of trial—sufficiency of affidavits stating that the moving party ‘ ‘ expects ” to prove certain facts.</p> <p>Wherever on a motion for a change of venue it appears by an inspection of the moving papers that there is a reasonable ground for the expectation of the moving id arty that he will be able to prove by the witnesses the facts therein stated, that is, that the witnesses must necessarily know the facts, the court, in the exercise of its discretion, may fairly conclude that the statement of such expectation is the equivalent of a positive statement of ability, even where the moving party states only what he expects to prove, not what he can prove, by the witnesses named, and the affidavits of the witnesses themselves are not produced on the motion.</p>

<p>Mortgage—possession thereof by the mortgagee is evidence that it is not paid — effect of a surrender of it to one of the mortgagors by the widow of the mortgagee before qualifying as his administratrix.</p> <p>The possession of a bond and mortgage by the mortgagee constitutes evidence that they are valid and unpaid.</p> <p>The defense of the payment of a bond and mortgage held at the time of his death by an intestate, who left a widow and minor child, is not sustained by proof that his widow, before qualifying as administratrix, surrendered the securities to one of the mortgagors upon his representation that they were paid.</p>

<p>Appeal "by the defendant, J. H. Barker & Oo., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 4th day of May, 1897, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 3d day of May, 1897, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, David Johnson and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of May, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of May, 1897, denying the defendants’ motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the 27th day of September, 1897, directed to Cornelius A. Hart and Charles W. Alexander, police commissioners of Richmond county, commanding them to certify and return to the office of the clerk of the county of Richmond all and singular their proceedings concerning the dismissal of the relator from the police force of said county upon the ground that said relator had been guilty of dis_ respect towards his superior…

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of February, 1897, upon the verdict of a jury for $9,000, and also from an order entered in said cleric’s office on the loth day of March, 1897, denying the' defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Charles F. Smillie and another, as executors and trustees under the last will and testament of James Smillie, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 19th day of August, 1897, upon the-decision of the court, rendered after a trial at the Dutchess County Special Term, overruling the demurrer to the complaint interposed by said…

Appeal by the defendants, Alexander E. Morrison and another, from an order of the County Court of Orange county, entered in the office of the clerk of the county of Orange on the 12th day of November, 1897, denying the defendants’ motion for a review of the taxation of the costs taxed in favor of the plaintiff.

Appeal by the defendant, Catherine Murray, from an order of the City Court of Yofficers, entered in the office of the clerk of said court on the 13th day of October, 1897, adjudging the defendant guilty of contempt of court in violating an injunction order issued in proceedings supplementary to execution.

<p>Appeal by the defendant, the Press Publishing Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 9th day of December, 1891, denying the defendant’s motion for an order of interpleader. "</p> <p>This action was brought to recover the amount of a reward offered hy the defendant for information leading to the arrest and conviction of parties engaged in the theft from it of subscription and newsdealers’ proofs, to which reward the plaintiff’s assignor, John Cook, ■claimed to be entitled.</p>

Appeal by the defendant, Susan A. Latourette, from an order of the Supreme Court, made at thé Kings County Special Term and entered in the office of the clerk of the county of Richmond on the 27th day of November, 1897, denying the defendant’s motion for the confirmation of a report of sale and the entry of final judgment.

Appeal by the relator, William Canning, from an order of the Supreme Court, made at the Kings County Special Term and . entered in the office of the clerk of the county of Queens on the 20th day of November, 1897, as resettled by aii order entered in said clerk’s office on the 30th day of November, 1897, denying the - relator’s application for a writ of peremptory mandamus.

<p>Action, by one as receiver of a judgment debtor, under a void appointment—a supplemental complaint setting up a valid appointment as receiver after the action was commenced is ineffective —effect of an acceptance of the terms under which the supplemental complaint was allowed — dismissal on the merits improper — nonsuit.</p> <p>A party assuming to have been appointed receiver in proceedings supplementary > to execution before the issue of an execution against the property of the judgment debtor, whose appointment is, therefore, invalid, should not be. permitted, in an action brought by him to set aside as void, under section 473 of the Penal Code, an assignment made by the judgment debtor of his claim, against a village, to a trustee of the village; to- set up, by an amended, or supplemental complaint, the recovery, after the action was begun, of a second judgment against the debtor, the issue of an execution and bis appointment as receiver in supple- - mentaiy proceedings instituted1 thereon.</p> <p>The cause of action thus alleged is a new one which did not accrue before the commencement of the action, and is not available to-the plaintiff therein; and the fact- that no appeal was taken from the' order which allowed the amended or supplemental complaint to be served on terms, and that such terms were accepted, does .not prevent the application, of the rule..</p> <p>It is, however, erroneous-for 'the court, in such a case, to dismiss the complaint ’ upon the merits. -</p> <p>The dismissal of the complaint in such an action by the court, without having made any. decision or findings, is equivalent to the granting of a. nonsuit.</p>

Appeal by the plaintiff, Belle C. Schenok, from an interlocutory judgment' of- the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 29th day of September, 1897, sustaining the defendants’ separate demurrers .to-the complaint.

Appeal by the defendants, George Tyroler and another, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 17th day of November, 1897, continuing an injunction pendente lite, and also from an order entered in said clerk’s office on the 24th day of November, 1897, resettling said first-mentioned order.

Appeal by The Village of New Rochelle and others from an order of the Supreme Court, .made at the Westchester Special Term and entered'in the office of the clerk of the county of Westchester on the 3d day of July, 1897, appointing commissioners, under the provisions of chapter 286 of the Laws of 1897, to improve highways within this State.

Appeal by Jacob P. Solomon from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 8tli day of December, 1897, and entered in the office of the clerk of the county of Kings denying the appellant’s motion to vacate an order obtained by the respondent for the appellant’s examination before the bringing of the action. ■ ;

Appeal by the defendant, John Crowley, from, a judgment of the County Court of Rockland county in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 8th day of April, 1897, which affirmed an order of filiation against the defendant, made by two justices of the peace of the town of Orangetown, Rockland county, adjudging the defendant to be the' father of a bastard child.

Appeal by the defendants, Edward J. Campbell and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 25th day of January, 1897, upon the decision of the court rendered after a trial at the Queens County Special Term.

<p>Appeal- by William E. Mowbray, a claimant, from a final order or decree of -the Supreme Court, made at the Rew York- Special Term and entered in the' office of the clerk of the- county of Rew York oh the íltli day of June, 1891, overruling, his exceptions to the report- of a referee and confirming said report, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 3d day of June, 1897, overruling the exceptions of said claimant and confirming the referee’s report.</p>

Appeal by tbe defendant, Marc Nussberger, from an order of the Supreme Court,, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of December, 1897, permitting the plaintiff to prosecute the action as a poor person.

<p>Appeal by the defendant, James Mooney, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th .day of January, 1897, as amended by an order entered in said clerk’s office on the 3d day of June, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of June, 1897, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Alfonso Garofalo, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of November, 1897, denying the defendant’s motion to vacate a warrant of attachment. This action was brought to recover damages for the breach of an alleged warranty contained in a contract for the sale of paste.

Appeal by the defendants, John W. Kjelgaard and others, froto an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 7th day of December, 1897, continuing an injunction pendente lite, with notice of an intention to bring up for review upon such appeal am order entered in said clerk’s office on the 16th day of December, 1897, denying their motion for a resettlement of the first-mentioned order.

Appeal by the defendants, Clarence Cary and others, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of- the clerk of the county of Mew York on the 13th day of December, 1897, vacating an order requiring the plaintiff to give security for costs.

Appeal by the plaintiff, Morris Steinliardt, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 10th day of July, 1897, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint.

Appeal by the plaintiff, Benjamin Weeks, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the .clerk of the county of New York on the 6tli day of May, 1897, upon the decision of the court rendered after a trial at the New York Special Term overruling the plaintiff’s demurrer to certain counterclaims contained in the answer and awarding the defendant affirmative judgment thereon; also, from an-order entered in said clerk’s office on the…

<p>Mnal accounting of executors—commissions allowed by a decree are not affected by a lach of funds nor by a failure to retain money to pay them — time of execution of a power of sale for purposes of distribution — commissions on proceeds — conveyance by beneficiaries in confirmation of that of executors — commissions on moneys retained for taxes, ete.</p> <p>A decree, made, under section 2742 of the Code of Civil Procedure, upon the judicial settlement of the accounts of executors is conclusive as to the amount of commissions allowed the executors for services rendered, although there may not he at the time before the court sufficient property to provide for the immediate payment of the commissions; nor is the failure of the executors to-retain sufficient moneys equivalent to a gift by them of their commissions.</p> <p>A testator, by his will, gave and bequeathed all his residuary -estate to Ms executors “ in trust, to convert the same into money at such time as in their discretion may seem most advantageous,” and directed them to pay certain annuities out of the income, and, after the death of his wife,- to “ divide, distribute and pay over ” all the residue of such estate to certain designated persons, the testator in the same clause providing, “and I hereby give and bequeath said residuary estate accordingly,” and further directing the executors in the meantime “to apply all surplus or undisposed of income, rents and profits ” that might come-into their bands prior to the time provided for such distribution in a manner-specified, and, by a subsequent clause, he gave such executors full power to-sell, mortgage or lease the real estate at such times as they might deem proper.</p> <p>Held, -that the power of sale thus vested in the executors was unqualified as to-time and did not cease upon the death of the widow, but authorized them to-sell the realty thereafter for the purposes of distribution and to receive commissions on the proceeds of such sale.</p> <p>Where a sale is made by the executor's, a conveyance made on the same day by . the beneficiaries under the will of the same realty thus sold by the-executors, in which conveyance the premises are stated to he the same as those-sold by the executors, “ which sale aud conveyance is hereby intended to he in all things confirmed -by. the parties hereto of the first part,” does not show that the sale was not made by the executors nor deprive them of commissions upon the property sold.</p> <p>Executors required, by the terms of the will, to distribute a trust fund created: thereby, upon the death of the testator’s widow, should, in the absence of evidence that they have unreasonably delayed the sale of the realty constituting part of it, be allowed commissions oh funds of the estate retained and disbursed by them in the payment of taxes and other expenses incurred while the realty thus remained unsold.</p>

. Appeal by the defendant, Emily A. Smith, as sole executrix, etc., of Edmund A. Smith, deceased, from a judgment of the Supreme Court in favor of- the- plaintiff,, entered in the office of the clerk of the county of Hew York on the 16th day of July, 1897, upon the report of a referee, and also from an order entered in said clerk’s office on the 16th day of July, 1897, granting the plaintiff an extra allowance.

Appeal by the defendant, the Union Railway Company of New York city, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2-2d day of January, 1897, upon the verdict óf a jury, and also from an order entered in said clerk’s office on the 20th day .of January, 1897, denying the defendant’s, motion for a new trial made upon the minutes. ,

Appeal by Annie Giese from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 5th day of Hovember, 1897, granting an injunction restraining the said Annie Giese from trafficking in liquors upon certain premises until she shall have paid the liquor tax assessed thereon and obtained a liquor tax certificate in pursuance of law.

<p>Appeal by the defendant, George M. Irwin, from an order of the Appellate Term of the Supreme Court, entered in the office of tlie clerk of the county of New York on the 30th day of July, 1897, affirming a judgment of the General Term of the City Court which affirmed a judgment of the City Court.</p>

<p>Motion by the plaintiff, Arcangelo Capasso, for a new trial made upon a case containing exceptions, ordered to be heard at the Appel- ■ late Division in the first instance, upon the dismissal of the complaint by direction of the court after a trial at the ¡New York Trial Term. .</p>

Appeal by the plaintiff, John Dickman Brown, individually and as administrator, etc., of Caroline L., Brown, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 5th day of August, 1897, upon the decision of the court rendered after a trial at the Hew York Special Term dismissing the complaint upon the merits.

<p>Deed — repugnancy between the granting and the habendum clauses—dower in the widow of one to whom a fee is granted, limited to a life estate by the habendum clause — a reversion takes place when there is a limitation over to issue who never come into being.</p> <p>The owner of premises conveyed them to his son in 1855 by a deed, the granting clause of which conveyed ‘ ‘ the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and also, all the estate * * * of the said party of the first part of, in or to the above-described premises,” the habendum clause providing that after May 1, 1861 (up to which time, by the terms ■of the deed, the grantor was to stand seized of the premises to his own use and benefit), the grantee was to have and to hold such premises “for and during the residue * "x" * of his natural life, with remainder from and immediately after his decease to his lawful issue ” who might survive him. The deed was not delivered during the lifetime of the grantor, but, in accordance with the direction, contained in his will,’was delivered by his executors to the son upon his attaining the age of twenty-three years, and was duly recorded on May 20,. 1861.</p> <p>The son died intestate without issue, and his widow claimed dower in the premises. • •</p> <p>Held, that the deed created a life estate in the grantee, with a contingent remainder over to his issue, and that, failing such issue, the estate reverted to the grantor or his heirs;</p> <p>That such contingent remainder was not rendered invalid by the fact that neither at nor after the time of the grant was there in existence any issue of the-grantee in whom such remainder could vest;</p> <p>That in the present case it was evident that it was the clear intention of the testator to give his son only a life estate, and that the son’s widow was not entitled to a' dower interest in the land granted.</p> <p>It seems, that where there is a plain and open repugnancy between the granting and habendum clauses of a deed, and nothing, else to be considered, the estate given by the former will not be cut down by the latter.</p>

Appeal by the defendants, Frank L. Froment and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the .clerk of the county of Few York on the 12th day of October, 1897, upon the decision of the court, rendered after a trial at the Few York Special Term, overruling the defendants’ demurrers to the amended complaint, and also from an order entered in said clerk’s office on the 12th day of October, 1897, directing…

Appeal by the plaintiff, Nathaniel IT. Woodman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day •of December, 1896, upon the dismissal of the complaint by direct tion of the court after a trial at the New York Trial Term, The action was brought to recover damages for an alleged libel ■contained in a letter said to have been written by the defendant.

Appeal by the defendant, J. Allen Townsend, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York ón the 3d day of July, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of July, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Leo E. Muller and another,. as trustees of the estate of Anna Muller, deceased, from an order of the Surrogate’s Court of the county of JSTew York, entered in said Surrogate’s Court on ' the 10th day of July, 1897, granting the petition of Marc J. E.' Muller for the part payment of income due him under the trust created for his benefit in and by the will of said testatrix.

Appeal by the defendant, Ellen Collins, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the ■. clerk of the county of Hew York on the 8th day of September, 1897, upon the decision of the court rendered after a trial at. the Hew York Special Term. '

Appeal by the defendant, The .¿Etna Fire Insurance Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Onondaga on the 3d day of December, 1896, upon the report of a referee, for $2,765.84 damages, besides costs. Exceptions were filed to the referee’s report.

Appeal by the plaintiff, .David L. Van Alstyne, from an order of the Supreme Court, made at the .Ontario Trial Term and entered in the office of the clerk of the county of Ontario on the 26th day of June, 1897, granting the defendant’s motion for a new trial made-upon the minutes.. The action was brought to recover damages for :an alleged libel.. The jury rendered a verdict in favor of the plaintiff for $1,500.

Appeal by the plaintiff, David Saperstone, from an order of the Supreme Court,, made at the Monroe Trial Term and entered in-the office of the clerk of the county of Monroe on the 2d day of April, 1897, denying the plaintiff’s motion for a new- trial made upon the minutes. ' The action was brought to recover1 damages for injuries to the plaintiff’s person and horse and wagon, caused by the alleged negligence of the defendant. ■ On the 17th of July, 1895, the plaintiff…

<p>Agreement to take back at any time stock subscribed for — the decision of a referee, upon conflicting evidence, must stand — measure of damages—the Statute of fflwuds must be pleaded.</p> <p>The decision of a referee, upon the question whether the defendant, the president of a corporation, agreed at any time, upon request of the plaintiffs, to take back certain shares of the stock of the corporation for which he had induced them, to subscribe, when the evidence in respect thereto, is sharply conflicting and is sufficient to sustain the decision, will not be disturbed on appeal.</p> <p>In such a case the plaintiffs are entitled to interest on the amount paid by them for the stock from the date when they demanded that their stock should be taken back.</p> <p>The Statute of Frauds is not available as a defense unless it is pleaded.</p>

<p>Justice’s judgment—-when the Gounty Gourt may determine as to the existence of an. alleged error in fact upon affidavits — the discretion of the Gounty .Gourt as to-costs is not reviewable by the Appellate Division.</p> <p>The existence of an alleged error in fact in a judgment rendered hy a justice of’ the peace upon the defendant’s default, consisting in the fact that the copy of' the summons served upon.the defendant misstated the return day, may, where-such error was not within the knowledge of the justice, lie determined by "the-. County Court upon affidavits presented upon an appeal to it by the defendant.</p> <p>. The exercise of its discretion by the County Court, as to costs upon the reversal of a judgment of a justice of the peace, for an error in fact not affecting the merits (Code Civ. Proc. § 3066, subd. 2), is not reviewable by the Appellate Division.</p>

Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.. “ The parties to a question in difference ” have agreed upon a case “ containing a statement of the facts upon which the controversy depends.” The case is accompanied with affidavits to the effect that the controversy is real and that the submission is made in good faith for the purpose of determining the rights of the parties, and that it has been filed…

<p>Appeal by the plaintiff, Mary Jane Comby, from an order of the Supreme Court, made at the Wayne Trial Term and entered in the ■office of the clerk of the county of Wayne on the 16th day of November, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.</p> <p>The action was brought to .recover damages resulting from injuries alleged to have been sustained at the highway crossing of the defendant’s road at Savannah, N. Y., on May' 15, 1895, at about seven-forty-five p. m. At the close of the plaintiff’s evidence the defendant moved for a nonsuit on two grounds:</p> <p>“ (1) That she has failed to show negligence on the part of the defendant.</p> <p>“ (2) That she has failed to show that she herself was free from negligence contributing to this accident.”</p> <p>The plaintiff asked to have both questions submitted to the jury. Her requests were denied and an exception was taken, and the motion for a nonsuit was granted. A motion was made for a new trial on the minutes and denied, and the plaintiff appeals from the order denying the motion for a new trial.</p>

Appeal by the defendant, The Rome, W atertown and Ogdensburg Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 17th day of April, 1896, upon the verdict of a jury for $5,000; also from an order entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 3d day of April, 1896,…

Appeal by the plaintiffs, Charles Davis and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Niagara on the 5th day of April, 1897, upon the decision of the court rendered after a trial at the Erie Special Term dismissing the complaint.

Appeal by the defendant, The Buffalo Traction Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on. the 15th day of March, 1897, upon the decision of the court rendered after a trial at the Erie Special Term overruling the said defendant’s demurrer to the amended ' complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action, and also…

Appeal by the relator, Leonard S. Spire, from an'order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 15th day of September, 1897, denying the relator’s motion for a peremptory writ of .mandamus allowing the relator “to inspect the enrollment.books of the Republicans of Erie County, * * * and to make such transcripts therefrom as he might be advised.”

Appeal by the plaintiff, Sarah E. J'errells, from an order of the .

<p>Appeal by the plaintiff, Addie L. Wiley, from, a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 16th day of December, 1896, upon the verdict of a jury, and also from an order entered in said clérk’s office on the 31st day of December, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover damages for personal injuries resulting from the alleged negligence of the defendants in permitting one of the. rails of the Syracuse Street Railroad Company in Alvord street, where the plaintiff claimed that she fell and was injured, to remain in an unsafe condition, by allowing the rail at that point to exist at a dangerous elevation above the surface of the street, thereby making it dangerous for the use of the traveling-public. The answer was a general denial of negligence on the part of the defendants, and an allegation that the plaintiff’s injuries were caused by reason of her own fault, carelessness and negligence.</p>

<p> Issue as to whether a wife or her husband agreed to pay for afa/rni—cleela/rations of the husband as to his inability to pay for it are inadmissible. </p> <p>Where the principal issue in an action is whether the plaintiff, as vendor, sold a farm to the defendant or to her husband, not a party to the action, his declarations, not made in the presence of the defendant nor assented to by her, seating, in substance, that he was dependent upon his salary, and found it impossible to live upon it, and that he was financially unable to pay for the farm, are inadmissible.</p>

Appeal by the defendant, The Guaranty Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 22d day of April, 1897, upon- the verdict of a jury, for $12,500, and also from an order entered in said clerk’s office on the 8th day of September, .1897, denying the defendant’s motion for a new trial made upon a case containing exceptions.

Appeal by the defendant, Jesse Morehouse, from a judgment of the County Court of Seneca county, entered in the office of the cleric of the county of Seneca on the 10th day of August, 1897, upon the decision of the court rendered after a trial at a Special Term of said court affirming the judgment of a justice of the peace.

Appeal by the defendant, Oneida county, from a judgment of the Supreme Court in favor of the' plaintiff, entered in the office of the clerk of the county of Oneida on the 10th day of September, 1897, upon the decision of the court rendered after a trial at the ■Oneida Special Term.

■ Appeal by the defendant, The Consolidated Fruit Jar Company,, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 9th day of August, 1897, upon the decision of the court, rendered after a trial at the Monroe Special Term, overruling the defendant’s demurrer to the complaint on the sole ground that it. does not state facts sufficient to constitute a cause of action.

Motion by the plaintiff, Mary B. Wells, as administratrix, etc., of George H. Wells, deceased, for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court upon a trial at the Monroe'Trial Term.

Appeal by the defendant, Bridget Slater, from a judgment of the' County Court of Erie county in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 27th day of April, 1897, upon the decision of the court rendered after a trial at an Equity Term of said court adjudging that the plaintiff has a mechanic’s lien on the premises of the appellant and directing its foreclosure.

<p>Appeal by the relator, The 27ew York Central and Hudson River Railroad Company,"from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the cleric of the county of Herkimer on the 16th day of October, 1897, superseding and quashing a writ of certiorari.</p>

<p>Charter of Buffalo — specifications for city work must be exhibited for five days — effect of a contract providing for the removal of earth, where the proposals do not specify earth — when the payment of an assessment is not voluntary.</p> <p>The provisions of the charter of the city of Buffalo (Laws of 1870, chap. 519, tit. 9; § 19; 1891, chap. 105, § 408), to the effect that, before the city shall enter into a contract for the doing of any work at a price' exceeding §500, a notice shall be published in five successive numbers of the official paper, inviting sealed proposals for doing the work pursuant to plans and specifications to be specified in the notice, contemplate that the plans and specifications shall be on exhibition at least five days, and the exhibition of them during only three week days vitiates a subsequent assessment made for the cost of such work.</p> <p>In such a case, where it is not stated either in the resolution of the common council authorizing the work to be done, or in the notice of intention to do the work, or in the advertised proposals, that any earth is to be rem'oved, and the contract provides for the removal of earth at an expense exceeding §500, an assessment based thereon is void.</p> <p>Where a city charter provides -that an assessment shall be a lien for five years, ■ and that the lands assessed may be sold to enforce it, a payment, made after the assessment roll is in the hands of the city treasurer for collection, without knowledge or notice of defects, in the procedure by' which the assessment was levied, is not voluntary.</p>

Appeal by the defendant, The New York, Ontario and Western Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 18tli day of January, 1897, upon the verdict .of a jury for $15,000, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Mary Rice, by. Edward Devine, her guardian ad litem, from a judgment of the County Court of Onomdaga county, entered in the office of the clerk of the county of Onondaga on the 17th day of April, 1897, affirming a judgment of the Municipal Court of Syracuse which dismissed the complaint, with costs.

Appeal' by the defendant, Thomas W. Newcomb, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 22d day of December, 1896, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 11th day of January, 1897, denying the defendant’s motion for a new trial made upon the minutes.

■ Appeal by the defendant, Ellen H. McCntclieon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orleans on the 10th day of Jiine, 1891, upon the decision of the court rendered after a trial before-the court, without a jury, at the Orleans Trial Term.

<p>Motion by the plaintiff, the First Rational Bank of Friendship, Rew York, for a new trial upon a case containing exceptions, ordered to. be heard at the Appellate Division in the first instance upon the verdict of a jury rendered by direction of the court after a trial at' the Cattaraugus Trial Term.</p> <p>This action is upon a promissory note of '$3,000, bearing date. March 1, 1887, signed by G-eorgé Yan Campen &■ Sons, and payable to the order of George Yan Campen two months afterdate. The note bears the-indorsement of the payee and also of “Weston Brothers,” a firm which consisted of the defendants in this action, and as thus indorsed it was, before its maturity, discounted by the plaintiff and a draft, on Rew York for a part of the proceeds, thereof was delivered to the payee, George Van Campen, and the balance of such ¡proceeds was placed to his credit upon the books of the bank.</p> <p>When this note matured it was renewed by another note for a like amount and executed by the same parties. This renewal note was in turn also renewed at its maturity, and in this manner the original note was renewed from time to time until December 31, 1892, when the last renewal note was given, which ran for the period of one year from its date. When the original note ivas.renewed it was canceled and surrendered to the makers and a new note was substituted in its place upon the plaintiff’s discount book. Thereafter George Van Campen died and the subsequent renewals were made payable to and were indorsed by his administrator, J. K. Van Campen, but with this exception the renewals were executed by the same parties as the original note.</p> <p>The indorsement of the name of Weston Brothers was made by William W. Weston, one of the firm, without the knowledge or consent of his copartners and as an accommodation' to the payee. The defendant Abijah Weston, who was the responsible member of the firm, although he had no knowledge that his brother had indorsed this particular note, was informed that he was indorsing similar paper in the firm name and to a large amount. He frequently found fault with his brother for thus using the firm name and insisted that he must cease doing so, but as his directions in this regard were not followed the firm was dissolved by mutual consent on the 5th day of January, 1892.</p> <p>When the last renewal note ’ was presented to the bank its president, Mr. Miner, who is now dead, was informed by the payee, J. K. Van Campen, that the firm of Weston Brothers had been dissolved; buthe was also informed that the note offered in renewal was indorsed by the firm prior to its dissolution.</p> <p>Upon these facts, together with some others to which allusion will be made in the opinion which follows, both parties moved for the direction of a verdict at the close of the proofs. ■ The defendants’ motion was granted and the plaintiff’s exceptions were ordered to this court in the first instance.</p>

<p>Appeal by the defendant, The Metropolitan Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 1st day of June, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of May, 1897, denying the defendant’s motion for a new trial made upon the-minutes.</p>

Appeal by the plaintiff, Elizabeth H. Allyn, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 25th day of March, 1896. upon the verdict of a jury rendered by direction of the court.

<p>Liquor Tax Law—the exemption does not apply to a “place" within 200 feet of a church 'or school, where liquor was sold therein on Mwrch 28, 1896, and the traffic was thereafter abandoned.</p> <p>The exception contained in subdivision 2 of section 24 of the Liquor Tax Law (Laws of 1896, chap. 112, as amended by Laws of 1897, chap. 812), providing that the prohibition therein imposed upon traffic in liquors within 200 feet of a building used exclusively as a church or school, shall not apply to a place in which on March 23,1896, “such traffic in liquors was actually, lawfully carried on,” is not applicable to premises within 200 feet of a church in which the traffic in liquor, although carried on therein on March 23, 1896, was thereafter discontinued for a period of two months, at the end of which time a new tenant of the premises undertook to resume the traffic.</p>

<p>Appeal by the defendants, Edwin A. Kalbfleisch and others, assessors of the city of Rochester, Monroe county, N. Y., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 29th day of March, 1897, upon the decision of the court, rendered after a trial at the Monroe Special Term, reducing the assessment of the relator’s property on the assessment rolls of said city for the year 1896; and also from an order entered in said clerk’s, office on the 29th day of March, 1897, upon which said judgment was entered.</p> <p>This proceeding was instituted under the provisions of chapter 908 of the Laws of 1896, which authorize any person assessed upon any assessment roll, claiming to be aggrieved by any assessment for property thereon, to present to the Supreme Court a duly verified petition, specifying the grounds of the alleged 'illegality; or, if erroneous by reason of overvaluation, stating the extent of such overvaluation; or, if unequal in that the assessment has been made at a higher proportionate valuation than the assessment of other property on the same roll by the same officers, the extent of such inequality, and also stating that he is or will "be injured thereby and, upon the presentation of such petition, to obtain a writ of cer- ' tiorari to the end that a review of the assessment may be had.</p> <p>The relator’s property, which he claims has been improperly assessed, is situate upon the northwest .corner of West Main and State streets, in the city of Rochester, and is known as “ Powers’ Block.” This property was assessed by the defendants upon the assessment rolls for the year 1896 at the sum of $1,035,000, hut this was reduced to $1,000,000 upon grievance day, the relator having then appeared and insisted that the assessment should not exceed $800,000. Subsequently this proceeding was commenced, and upon the return of the writ issue was joined and a reference ordered to take proofs upon the several matters at issue and report the same to the court. An extended hearing was thereafter had before the referee, who, by the further order of the court, was directed to supplement his report with findings of fact and conclusions- of law.</p> <p>In obedience to this last direction the referee thereupon made his report, in and by which he found that the defendants, as such assessors, had overvalued and assessed the property in question on the assessment rolls for general city taxes for the year 1896 to the extent of $175,000, and that such assessment should be reduced from. $1,000,000 .to- $825,000. Such report was thereafter confirmed, and, from the order of confirmation, as well as from the judgment entered thereon, this appeal is brought.</p>

<p>Action based upon libelous statements relative to a member of the Legislature, made to a representative of the Associated Press— its effect as a violation of the Penal Oode, § 254»—punitive damages.</p> <p>A complaint which, in substance, alleges that on a day named the defendant falsely and maliciously spolce and published concerning the plaintiff to the manager at Albany of the Associated Press, including in its membership a large number of daily newspapers, the reporter of the New York World being present, the false and defamatory words, “I know that an indictment has. been found against Schoepflin (meaning this plaintiff) by the grand jury in connection with Campbell’s ice bill, from the best authority in the world; I would gamble on it,” the defendant meaning and declaring thereby that he knew that the grand jury of Albany county had indicted the plaintiff, then a. member of the Legislature, for corrupt and criminal conduct in connection with' a bill introduced by another member named John H. Campbell, and that “thereby defendant caused” the said false and defamatory statement to be published on the following day in most of the daily newspapers of the State,, including the. New York World, states a good cause of action within section 254a of the Penal Code, providing that “ any person who willfully States, delivers or transmits, by any means whatever, to any manager, editor," publisher, reporter or other employee of a publisher 'Of any newspaper, magazine, publication, periodical or serial, any statement concerning any person or corporation, which, if published therein would be a libel, is guilty of a misdemeanor,” as the defendant is thereby charged with the commission of an unlawful act from which the plaintiff claims to have suffered damages.</p> <p>A charge of such a nature made against one holding a public office is libelous in a high degree and entitles the plaintiff to punitive as well as compensatory damages, and in such a case a verdict for §6,500 is not excessive.</p> <p>Follett, J., dissented.</p>

<p>Motion by the petitioner, The Buffalo Traction Company, to confirm the report of commissioners heretofore appointed by this court, which certifies that said railroad ought to be constructed and operated in East and West Utica street in the city of Buffalo.</p>

Appeal by the defendant, Thomas J. Moran, from a judgment of the Comity Court of Cattaraugus county, entered in the office of the clerk of the county of Cattaraugus on the 22d day of December, 1897, affirming a judgment of a justice of the peace.

Appeal by the plaintiff, Margaret Ulrich, as administratrix, etc., of John Ulrich, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the-county of Monroe on the 15th day of October, 1894, upon the dismissal of the complaint by direction of the court after a trial at the Monroe Circuit, and also from an order entered in said clerk’s ■ office on the 9th day of October, 1894, denying the plaintiff’s motion for a new…

Appeal by the plaintiff, Ida A. Rankert, frtim a.judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Wayne on the 10th day of October, 1896, upon a dismissal of the complaint directed by the court after a trial at the Wayne Trial Term, and also from an order entered in said clerk’s office on the 9th day of November, 1896, denying the plaintiff’s motion for a new trial made upon the minutes. [No order denying the motion…

<p>Railroad — compensation of the president for services outside of his duties as president*</p> <p>A railroad corporation which,, while not actively operating its road because of leases made thereof, still maintains its organization, may, by its board of directors, lawfully agree, by conversations and statements at meetings of the board and by acquiescence therein, although no written resolution to that effect is adopted, to compensate its president for services rendered on behalf of the ' corporation, when such services are found by a jury to have been outside of his official duties as its president and as one of its directors.</p>

<p>Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 27th day of April, 1897, upon the verdict of a jury for fifty dollars rendered by direction of the coiirt, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.</p> <p>This action was brought to recover a penalty of fifty dollars under chapter 1027 of the Laws of 1895, being “ An act in relation to the issue of mileage books by railroad corporations.”</p>

Appeal by the plaintiff, Winfield S. Spink, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of. the county of Genesee on the 10th. day of June, 1897, upon the dismissal of the complaint by direction of the court after a trial at the Genesee Trial Term, and also from an.order entered in said clerk’s office on the 8th. day of June, 189.7, upon which.said judgment was entered. .

Appeal by Omar A. Jenlcs, a party to the surplus-money proceedings and a claimant to the fund for the distribution of which the same was instituted, from an order of' the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 19th day of August, 1891, directing the distribution of the surplus’ remaining after the foreclosure sale in the above-entitled action. The surplus money amounted to $624.16.

Appeal by the defendant, Helen M. Gridley, from so much of an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Jefferson on the 28th day of August, 1897, as denies- a motion made by the defendant to correct a prior order in the action except upon conditions.

Appeal by the defendants, Sabina C. Martin and others, from a. judgment of the Supreme Court in favor of the plaintiff, entered in ■ the office of the cleric of the county of Monroe on the 20th day of August,. 1897, upon the decision of the court rendered after a trial at the Monroe Special Term.

<p>Appeal by the defendants, Don 0. Bishop, as administrator, etc,, of Harriet A. Bishop, deceased, and Joseph Gr. White, from a judgment of the Supreme Court in favor of the plaintiff, entered- in the office of the clerk of the county of Oswego on the 15th day of April, 1897," upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of April, 1897, denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Wczi'ehous&man-—burden qf proof that goods were destroyed by fire through his negligence— evidence of his negligence.</p> <p>In an action brought to- recover the value of goods- owned by the plaintiff, which were destroyed by fire while in the freight house of the defendant, a railroad corporation, which was liable for the' goods as a warehouseman, the plaintiff must prove that the fire resulted from the defendant’s negligence.</p> <p>Evidence given in such an action to the effect that a stove in an office situated in the freight house had, for a considerable length of time before the fire, been out of repair to such an extent that live coals had fallen- from it on several occasions; that on one occasion the office -was discovered to-be on fire from that cause; that the defendant’s agent had been notified of the dangerous condition of the stove, and that the fire in question originated in this office, and in close proximity to the stove, requires the submission to the jur.y of the question of the-.defendant’s negligence.</p>

<p>Appeal by the defendants, John J. L. Friederich and others, from an order of the Supreme Court, made at the Monroe Trial Term and entered in the office of the clerk of the county of Monroe-on the Tth day of December,. 1896, denying their motion for a new trial made-upon the minutes.</p> <p>. The action was- brought to recover damages for personal injuries alleged to have been caused by the negligence of the defendants, The jury rendered a verdict in favor of the plaintiff for $4,100.</p> <p>The accident was the result of the fall -of a portion of a' buildiug which the defendants Friederich had contracted to construct;; tíre defendant Seitz was the person to whom they had sublet the carpen- • ter work upon the building.</p>

<p>Negligence-—a passenger thrown from a chair in a dining ear, while rounding a curve — doctrine of res ipsa loquitur.</p> <p>Evidence that, while a railroad train was running over a road on which there were several curves, at an average rate of speed not usually considered dangerous in passing the sharpest of them, a passenger seated at a table in the dining car upon a chair not fastened to the floor, but such as had for years been used in dining cars with safety, was thrown forward against the table and was then tipped backward out of her. chair upon the floor and injured in consequence of a sudden lurch given by the train in rounding one of the curves, which did not, however, prevent other passengers from keeping their seats or throw off light articles resting upon the table, does not, in an action brought against the railroad corporation by the passenger to recover for the injury thus sustained, warrant a submission to the jury of the question of the defendant’s negligence nor render the maxim res ipsa loquitur available to the plaintiff.</p>

<p>Motion by the defendants, Arthur E. Hedstrom and others, for a new trial made upon a case containing exceptions, ordered to be heard at the Appellate Division in'the first instance, upon the verdict of a jury in favor of the plaintiff, rendered by direction of the court after a trial at the Erie Trial Term.</p>

Appeal by the defendants, Henry Duerk and others, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Erie on the 8th day of February, 1898,. upon the report of a referee.

Appeal by the plaintiff, David L. Einstein, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 2d day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of March, 1897 (as amended by an order entered in said clerk’s office on the 5th day of March, 1897), denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Walter H. Warren and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the lltli day of November, 1897, granting the plaintiff leave to serve an amended complaint.

Appeal by the plaintiff, Lizzie Gallagher, as administratrix, etc., of Michael Gallagher, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Mew York on the 25th day of March, 1897, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 24th day of March, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Motion by the defendant, The Mayor, Aldermen and Commonalty of the City of Hew York, for a new trial made upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the verdict of a jury in favor of the plaintiff rendered by direction of the'court after a trial at the Hew York Trial Term.</p>

Certiorari issued out of the Supreme Court and attested on the 31st day of August, 1896, directed to Theodore Roosevelt and others, composing the board of police commissioners of the police department of the city of New York, commanding them to certify and return to the office .of the clerk of the county of New York all and singular their proceedings in regard to the dismissal of the relator from the police force.

Motion by the defendants, Ella R. Downs and another, for the reargument of an appeal taken by the plaintiff, Russell Bradford, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the' county of New York on the '9th day of November, 1897, staying a sale under the judgment of foreclosure in the action. (Reported in 24 App. Div. 97.)

Appeal by the defendant, Walter K. Freeman, from a judgment rendered against him in the Criminal Term of the Supreme Court on the 3d day of February,. 1897, convicting him of the crime of rape in the second degree and denying his motions in arrest of judgment and for a new trial.

Appeal by. the plaintiff, Abbie E. Snelling, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 31st day of July, ' 1897, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 30th day of July, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Abbie E. Snelling, from an order of the Supreme Court, made at the Wew York Trial Term and entered in the office of the clerk of the county of Wew York on the 3d day of August, 1897, denying the plaintiff’s motion for the resettlement of an order entered in said clerk?s office on the 30th day of July,. 1897, which denied the plaintiff’s motion for a new trial made upon the minutes.

Motion by the plaintiff, James W. Johnson, for a new trial made upon a case containing exceptions,' ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term. This is an action to recover the sum of $1,000 which the plaintiff paid to the defendant under an agreement for the purchase of certain personal property.

Appeal by the defendant, The Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of May, 1897, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 5th day of May, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Arthur A. Hodges, from so much óf a judgment of the Supreme 'Court, entered in the office -of the clerk of the county of Hew York on the 21st day of June, 1897, upon the decision of the court rendered after a trial at the Hew York f . Special Term, as dismisses the complaint as against the said Leopold Friedheim.

<p>Appeal by Jacob J. Brush from a decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 19th day of May, 1897, revoking the letters of administration of the goods, chattels and credits of Joseph 0. Brush, ■deceased, issued to the appellant.</p>