Volume 25 — New York Miscellaneous Reports

<p>1. Absolute divorce — Service of notice of motion, to vacate judgment, properly made on her attorney.</p> <p>A notice of a motion, to vacate as fraudulent a judgment of absolute divorce obtained by a wife from her husband, may properly be served on her attorney of record; and where it is shown that she appeared on the motion by counsel and also procured a postponement, she cannot, in a subsequent action brought by her to procure an absolute divorce from a man whom she had subsequently attempted to marry, attack the validity of the order vacating the former judgment, and particularly in a case where she now claims rights under that judgment.</p> <p>2. Same —Jurisdiction not acquired by foreign court.</p> <p>Where the wife is a resident of the state of New York, and does not in any manner appear in an action for a divorce brought by her husband in a foreign state, where he then resided, its courts acquire no jurisdiction of her by a substituted service upon her by mail of a petition and order in the action, nor by personal service of these papers upon her at her residence in this state.</p> <p>3. Same — Exception to the rule that a wife’s domicile follows her husband’s.</p> <p>The invalidity of the foreign divorce, sought by the husband, is not cured by the rule that the domicile of a wife follows that of her husband, as an exception arises where, his conduct has been such as to entitle her to an absolute or limited divorce; and where the proof is that, upon learning of his infidelity, she came into the state of New York, soon after began here an action for an absolute divorce and procured a decree, the exception governs and the rule does not.</p>

Motion to make the first five subdivisions of the complaint more definite and certain, and to strike out all of the complaint after that as not irrelevant and redundant.

<p>Attorney and client —■ Conditional compensation — Costs and extra, allowance are a part of the “ amount recovered”.</p> <p>Where an attorney agrees, with his client that, in ease of success in the action, he is to pe paid 30 per cent, of the “ amount recovered ” and nothing if he fails “ to collect damages ”, costs and an extra allowance are a part of the “ amount recovered ”, and the attorney is. entitled to retain one-third of the damages and only one-third of the costs and extra allowance.</p>

<p>-Bills and notes — An answer, denying that notes were made and delivered for value, cannot be struck out as sham.</p> <p>An answer of the maker, which denies the allegation of the complaint of the payee that the notes in suit were made and delivered for value, raises the issue of a want of consideration sufficiently to admit proof thereof, and hence a" motion, made upon affidavits, to strike out the answer as sham must be denied as, although defences may be struck out as sham, denials cannot be.</p>

<p>¡Railroads — Liability to abutting owner for use of Park avenue (New York city) viaduct and of temporary illegal structure.</p> <p>Railroads which never interfered with the plan, and which participated only subordinately in the work, of the State Commission which exclusively controlled the construction of an elevated railroad viaduct in Park avenue in the city of New York, are not liable to an abutting owner because of its construction, and the only liability of the railroads rests upon their use of the completed viaduct and of a temporary structure, built between the lawful bounds of the railroad and the curb line of the avenue, which diminished the lawful light, air and access of and to the premises of the abutting owner.</p>

<p>Pleading — Denials, of a writ of mandamus, raising the inference that a material fact has been suppressed — Demurrer.</p> <p>Although the presumption of the continuance of a fact and shown to exist is a principle applicable to pleadings in ordinary cases, it is not applicable where a writ of alternative mandamus, granted to compel a clerk of the Municipal -Court of the city of New York to issue a transcript and execution upon a judgment alleged to have been .duly entered and docketed in his office, affirmatively alleges that the judgment has not been satisfied, released, or appealed from, and is no longer stayed. A failure of the writ to allege further, that the judgment continues in existence or is in full force and effect, makes the writ demurrable, as the relator, by rebutting facts which might affect his record, invites the presumption that he has, or may have, suppressed the fact that the judgment has been set aside.</p>

<p>Actions to reform policies of fire insurance for alleged mutual mistake.</p>

Action to restrain defendants alleged infringement of plaintiff’s trade-mark “ Old Grow,” as adopted for labels placed upon whiskey prepared by it, or for an injunction restraining an alleged unfair trade competition through defendants’ use of a label similar to plaintiff’s label.

Action for mandatory injunction to require removal by defendants of earth placed by them without authority upon plaintiff’s lots, and for damages.

<p>Motion for an order confirming the referee’s report, and directing payment ont of the surplus moneys of the claim of Warner B. Matteson.</p>

This was the usual abutting action against the elevated rail-Toad for damages to fee and rental values and for an injunction. The premises consist of a house and lot twenty-two feet wide and sixty feet deep on the east side of Sixth avenue, between Forty-eighth street and Forty-ninth street.

Submission to the court on an agreed state of facts in the form of a motion, directing defendant to pay a lien claimed by plaintiff.

Application under the statute preferring the wages of employees, operatives and laborers of insolvent corporations for a preference.

<p>Motion to vacate temporary injunction.</p>

This was an application by the School Board of the Borough of Brooklyn for a peremptory writ of mandamus against the Board of Education of the City of Hew York to require it to apportion the general school fund of the said city upon the ratio prescribed by section 1065 of the charter of the new City of New York.

<p>Application for a certificate of reasonable doubt under a conviction of grand larceny as a second offense.</p>

<p>This was an application for a peremptory writ of mandamus to compel the county clerk of Queens County to receive and file as of October 14th, 1898, the certificate of nomination.of the petitioner by the Democratic party as candidate for senator in the second district.</p>

<p>Elections —Voters of the county of Nassau cannot vote, in 1898, for Queens county officials, and the names of the latter should not be on the ballots. ,</p> <p>The provisions of section 4 of chapter 588 of the Laws of 1898, declaring that all of the county officers of the new county of Nassau, created by that act, shall be elected at the general election of 1898, sufficiently indicate that the legislature did not intend that the electors of the county of Nassau should then vote for Queens county officials, and an application, by writ of mandamus, to require the county clerk of Queens county not to put the candidates for surrogate of that county on the ballots.which are to be used in the territory of the county of Nassau, should be granted.</p>

<p>This was a motion by creditors of the defendant to set aside the judgment by confession herein. The written statement under section 1274 of the Code of Civil Procedure upon which the judgment was entered was as follows, viz.: “ The defendant has from time to time borrowed of the plaintiff money and there is now due and to become due to this plaintiff from the defendant aforesaid the sum of Forty-two hundred dollars ($4200) for cash borrowed and interest thereon for which plaintiff holds two promissory notes of this defendant copies of which are hereunto set forth viz.: ” two promissory notes by the defendant to the plaintiff, one for $2,600 dated April 1st, 1897, and the other for $1,600 dated April 1st, 1898, each payable in one year, being then set out. The statement was verified May 14th, 1898.</p>

This is a motion that the plaintiff file security for costs, being an infant, brought on upon the usual order requiring security to be filed, or to show cause, with a stay of all other proceedings on the part of the plaintiff meanwhile. In opposition the plaintiff presents an order allowing her to continue the action in forma pauperis, obtained ex parte since the said order to file security or show cause was granted.

<p>Visitation by State Board of Charities — A corporation, in part, a subordinate governmental agency, protecting children, and, in part, a charitable institution, is subject to visitation only as to the latter branch.</p> <p>A corporation, organized under chapter 130 of the Laws of 1875, which, in addition to taking legal measures to prevent cruelty to children and to enforce the laws in regard to them, also feeds, clothes and temporarily assists them, as well as destitute families, and furnishes them with medical aid, doing this latter work from funds sup-c plied in part by public moneys, is, as to this latter work or branch of its duties, to be deemed a “ charitable ” institution, and, therefore, as to that branch, is subject to visitation by the [State Board of Charities, under the provisions of section 11 of article VIII of the Constitution of 1894 and those of sections 2 and 9 of chapter 546 of the Laws of 1896.</p> <p>The corporation is, as to its other functions of preventing cruelty etc., to be regarded as a subordinate governmental agency and the State Board of Charities has no jurisdiction over that branch of its duties.</p> <p>All charitable institutions, whether they receive aid from the public authorities or not, are subject to the visitation and inspection by the State Board of Charities.</p>

<p>Action to foreclose a mortgage.</p>

<p>Action to establish trust in property, in possession of defendant, for plaintiffs benefit, and for an accounting.</p>

<p>Negligence — Of parents imputed, to infant child.</p> <p>The negligence of parents who permit a child, three and one-half years old, to play unattended in a street on Sunday night, when the street is unusually dark because its stores are closed, must be imputed to the child and precludes her from recovering damages from a corporation whose passing street car injured her.</p>

<p>(Action for injunction — Innocent diversion of a plant to the manufacture of a soap, not made by a secret process, and in which plaintiff had no right or trade-mark — Construction of contract.</p> <p>In an action for an injunction, it appeared that the trade-mark and proprietary right to a white cochin cocoanut oil soap, known as Coal Oil Johnny Soap, was in Maross Jenkins and that any one could manufacture soap for him provided he knew how to do it, as no secret process was involved. One Grant, who had special skill m compounding the soap, agreed with the plaintiff’s assignors to erect a soap plant for white cochin cocoanut oil soap, “ the same kind of soap now being supplied Maross Jenkins and known as Coal Oil Johnny Soap ”, also to surrender all his rights in all processes and formulae, and not to sell any plants for that particular manufacture during a term of twenty years. The next year he erected for the defendants’ assignors, a similar plant, ostensibly for green soaps, but which would make any .soap manufactured by the “ cold water process ”, and the defendants manufactured a white cochin cocoa-nut oil soap, under the name of •Coal Oil Johnny Soap.</p> <p>Held, that Grant’s contract did not prevent him from erecting, as he had done, a plant for the manufacture of soap in general, and that, in the absence of proof of knowledge in the defendants of the rights which Grant had sold to the assignors of the plaintiff, the mere fact that the defendants had diverted the plant to the manufacture of Coal •Oil Johnny Soap did not impose any liability upon them.</p> <p>That the further fact that Grant had furnished to the defendants’ assignors an operator who, in a lawful way, had learned how to manufacture Coal Oil Johnny Soap, gave the plaintiff no right to an Injunction against the manufacturing defendants, and that their remedy, if any, was against Grant.</p>

<p>Appeal by defendant from a judgment by default, rendered in a Justice’s Court.</p>

<p>Election Law — Independent nominations on the state ticket must be made by a single certificate — Destroyed certificate from a missing county — Signatures obtained after last day to file.</p> <p>The provisions of the Election Law, relative to independent nominations on the State ticket of the State of New York (Laws of 1896, chap. 909, §§ 57, 59), contemplate only a single certificate of such nomination which must be subscribed and verified by at least fifty electors in each county of the State, counting Fulton and Hamilton as one; and where such a certificate, presented to the Secretary of State for filing at 11 o’clock, p. m., upon the last day permissible by statute, contains no signatures, or less than fifty signatures, properly verified, from one of the counties, the Secretary of State has no power to file the certificate, and the court will grant no relief.</p> <p>The court has no power to order filed, nunc pro tunc, a certificate from the missing county, stated to have been wrongfully destroyed before it reached the office of the Secretary of State, of which no duplicate is furnished, and as to which a person merely makes an affidavit that other persons named told the affiant that the destroyed certificate was all right and complied with the law, as it is necessary for the Secretary of State alone to determine, in the first instance, whether such a certificate is valid.</p> <p>A new instrument, containing signatures procured in the missing county after the last day for filing, cannot be lawfully received by the Secretary of State.</p>

Action to enjoin the defendant, the Adirondack Railway Company from talcing or continuing condemnation proceedings to procure a right of way for a railway across what is known as township 15, which is wholly within the Adirondack park, and is part of the forest preserve.

<p>Supplementary proceedings — May be taken for motion costs.</p> <p>Costs, awarded by the Appellate Division in an order or judgment, may, after execution returned unsatisfied, properly be made the basis of supplementary proceedings and of the appointment of a receiver of the property of the defendants and debtors, as sections 779 and 2432 (as amended in 1896) of the Code of Civil Procedure are clearly designed to provide a remedy for the collection of motion costs in the same manner as judgments for damages, the enforcement thereof being limited, apparently, to the personal property of the persons required to pay.</p>

This is a motion to make a temporary injunction permanent. The defendant is a judgment creditor of Henry Funk, and the other defendant is a city marshal who has levied upon the stock in trade in the plaintiff’s place of business under an execution issued upon such judgment against Henry Funk, and also taken possession of and locked up her said place, and stopped her business.

<p>The petitioner applied for registration and was registered by mistake in the 15th election district of the 20th ward of the borough of Brooklyn, whereas he should have been registered in the 14th district. The time for registration having expired, he applied to this court under section 31 of the Election Law for an order requiring the inspectors of the said 14th district to meet and register him.</p>

<p>Motion for taxation of referee’s fees in an action for foreclosure.</p>

Action by a judgment creditor to set aside a judgment and that the order appointing a receiver of an insolvent corporation be vacated, and for an accounting by the receiver and creditor company for the property of said insolvent corporation which came into their possession.

This is an appeal from a judgment rendered by a justice of the peace in favor of the above-named plaintiff and against the defendant of $31.76 damages, together with costs upon the following state of facts: Prior to 1875, a company commenced the erection of a grist-mill in one of the towns of this county. To obtain water to propel the machinery in the mill, a race was dug through the premises belonging to the company and across a much-traveled public highway.

<p>Action of partition, tried before Hon. Charles F. Brown, who is no longer a Justice of this court. The decision, consisting of formal findings of fact and conclusions of law, was made and filed on November 27th, 1895, but judgment has never been entered. It is therein decided that there be an actual partition. This is a motion to open the case and take testimony with a view to a new decision that the property be sold.</p>

<p>Attachment — Affidavit that an amount is due “ over and above all counterclaims”.</p> <p>The requirement of section 636 of the Code of Civil Procedure that an affidavit for an attachment must “ show that the plaintiff is entitled to recover a sum stated therein, over and above all counterclaims known to him ”, is not satisfied by an allegation that he is entitled to recover “ as damages for breach of a contract other than a contract to marry the sum of $408 over and above all counterclaims known to the plaintiff ”, as this is a mere statement of a legal conclusion, giving no facts from which the conclusion may be drawn and not directly alleging that no counterclaims exist.</p>

<p>Condemnation Law — Owners not appearing not entitled to further notice — Laches.</p> <p>Property owners who, although personally served with a petition and notice in proceedings taken under the Condemnation Law of the Code of Civil Procedure oy an elevated railroad to condemn street easements, never appeared in the proceedings, are not entitled to notice of any subsequent proceedings. Their motion, made in 1898, to vacate a report containing awards, filed in 1898 and confirmed without opposition in 1896, must be denied upon the ground of laches, and especially where their awards were the same in amount as those made in other contested cases in this same locality.</p>

On March. 5, 1897, William E. Parsons, as owner of one-sixth, joined with the other owners of the remaining five-sixths, in an agreement to convey to one Walker, the fee of premises Eo. 8 Barclay street, this city. Walker, the vendee, transferred his rights under the contract to Joseph Meeks. The owners of the five-sixths performed their part of the contract by conveying their title to Meeks, the assignee of the vendee.

<p>Proceedings for the discharge of a prisoner upon writs of habeas corpus or certiorari.</p>

<p>1. Undertaking on appeal — Purpose of reciting the judgment.</p> <p>It is not the office of an undertaking to show the nature and scope of an appeal, and the only object of describing, in it, the judgment is to enable the judgment to be identified as the subject of the instrument.</p> <p>2. Same — Form on appeal to the Court of Appeals.</p> <p>Undertakings, upon an appeal to the Court of Appeals, which recite that 887.36 are costs of appeal and by which a surety company further undertakes to pay the sum recovered or directed to be paid by the judgment, sufficiently identify the judgment and show that, by executing the undertakings the parties intended to and did obtain a stay of proceedings, and the surety company is liable thereon.</p>

<p>Proceedings under chapter 909, section 111 of Laws of 1896, to set aside and vacate certain orders heretofore granted.</p>

<p>Appeal from a judgment of the General Term of the City Court of the city of New York, affirming a judgment rendered in that court in favor of the respondent upon the verdict of a jury.</p>

<p>Appeal from a judgment and older of the General Term of the City Court, in favor of the plaintiff, affirming a judgment of the Trial Term, entered on the verdict of a jury.</p>

Appeal by the defendant from a judgment of the General Term of the City Court of ¡New York, affirming a judgment entered in plaintiff’s favor upon a verdict directed by the court at Trial Term. The nature of the action and the material facts are stated in the opinion.

<p>Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, borough of Manhattan, seventh district.</p>

<p>Appeal from a judgment in favor of the plaintiff rendered in the Municipal Court of the city of ¡New York, borough of Manhattan, fourth district.</p>

<p>Negligence — Care of valuables by proprietor of a five-cent bathing-house — Contributory negligence.</p> <p>The proprietor of a five-cent bathing-house, having a bathing tank used in common by all customers and under the general supervision of a manager who was patrolling the place, is not liable to a regular weekly bather, who placed his clothes as usual upon a bench in the bathing-room, for the loss of jewelry and m’oney which he left in his clothes while he was taking a bath, it appearing that the proprietor had fully performed such duties towards his customers as he had undertaken to perform.</p> <p>The failure of the bather to deposit his valuables with the proprietor, as he might have done and had before done, constitutes contributory negligence upon his part.</p>

<p>Witness — Hostility — Proof by him that his adversary caused his arrest.</p> <p>A material witness for the plaintiff may, upon cross-examination, be asked whether the defendant had not-caused his arrest and arraignment in a Police Court for larceny, as the evidence is admissible in order to show hostility; but it must be strictly limited by the court to that issue, to the end that the jury may not infer that the evidence is competent in impeachment of the general character of the witness.</p>

<p>Appeal from a judgment of the Seventh Municipal Court, borough of Manhattan, in favor of the defendants.</p>

<p>Appeal from a judgment of the Tenth Municipal Court, borough of Manhattan, in favor of the plaintiff.</p>

<p>Appeal from a judgment of the First Municipal Court, borough of Manhattan, in favor of the plaintiffs.</p>

<p>Common carriers — What damages flow naturally from the failure of an expressman to deliver a trunk to a foreign steamer.</p> <p>A commercial traveler, dependent for his living entirely upon selling goods outside of the United States, who, because of the failure of an expressman to deliver one of his trunks to the Barbadoes steamer, at New York city, before it sailed, leaves the steamer at Sandy Hook, hires a tug in order to return to New York, telegraphs to Barbadoes in reference to his other trunks which had gone on, pays board for sixteen days, while waiting for the departure of the next Barbadoes steamer, and is then compelled to buy a new passage ticket, can recover of the expressman only the price of the new ticket, as the other items of damage cannot reasonably be supposed to have been within the contemplation of the parties, when they contracted, as naturally following a violation of the contract.</p>

<p>Appeal from a judgment of the First Municipal Court, borough of Manhattan, in favor of the plaintiff.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, eighth district, in favor of the plaintiff, entered upon the verdict of a jury. The nature of the action and the material facts are stated in the opinion.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, entered in favor of the plaintiff upon the verdict of a jury. Action to recover damages claimed to have been sustained by the plaintiff in consequence of defendant’s alleged negligence. The pleadings are in writing. The answer contains a general denial and alleges the contributory negligence of plaintiff.

Appeal by the defendant from a judgment of the Municipal Court of the city of ¡New York, borough of Manhattan, first distriet, rendered in favor of the plaintiff for $205.22, by the court, without a jury. The opinion states the nature of the action and the material facts.

<p>Lands under water — Commissioners of the land office may disregard conditions, for a grant in New York city, proposed by its board of docks—Laws 1897, ch. 378, § 86.</p> <p>The duty, devolved by the charter of the Greater New York (Laws of 1897, chap. 378, § 8G), upon its board of docks, of examining an application made to the commissioners of the state land office for a patent of land under water within said city, of determining whether the proposed grant conflicts with the rights of the city or otherwise injures public interests, and of reporting the conclusions of the board to such commissioners, is a duty which is merely advisory and the conclusions of the board do not bind the commissioners; and hence the latter, whose action in the matter is judicial, cannot, at the instance of the city, be compelled, by mandamus, to insert, in a grant as made, conditions fixed by the board of docks, reported to the commissioners, but rejected by them, and which differ from those expressed in the grant.</p>

This action is brought for the purpose of obtaining a cancellation of two tax deeds held by the defendant, which the plaintiff claims are void and clouds upon his title.

Petition by William Bridge, a citizen, for an order revoking and cancelling the liquor tax certificate, issued to George Mohrmann, by the deputy commissioner of excise of the borough of Brooklyn, city of ¡New York, on the ground that material statements in the application of the holder thereof were false, and that he was not entitled to receive and is not entitled to hold such certifi■cate.

Prior to consolidation, and until January 31, 1898, relator had held a clerkship in the clerk’s office of the Justice’s Court of the second district of the city of Brooklyn, which clerkship was called “ assistant clerk,” and was referred to in the certificate of appointment, and in the proceedings of the common council as “ assistant clerk ” and “ additional clerk.” For further facts, see opinion.

The respondent opposed on the ground that it appeared from the motion papers that on April 26, 1898, Palevski was convicted of the offense of selling liquor on Sunday. For further facts, see opinion.

Motion by defendant to open judgments entered on offers by the corporation counsel in compromise of claims against the city of Hew York.

Action by receiver of the New York Novelty Oompapny for an accounting by defendants Schwab of property of the corporation alleged to have been delivered to them, in contravention of section 48 of the Stock Corporation Law.

<p>Demübbeb to counterclaims. The opinion states the facts.</p>

<p>Life insurance — Complaint — Allegations as to demand, proof and performance .</p> <p>Allegations of the complaint of a wife, suing upon a policy issued for her benefit upon the life of her husband, “ that thereafter satisfactory proofs of the death of - the said Henry D. Ohlsen were delivered by the plaintiff herein to the defendant herein (the insurer) and payment of said sum of $5,000 was demanded and refused by the defendant ” and “ that up to and at the time of the death of the said Henry D. Ohlsen all obligations and conditions forming the consideration for which the defendant issued said policy, and made said contract and agreement, were fully performed on the part of the plaintiff herein,” sufficiently state that the plaintiff demanded payment, that “ satisfactory ” proofs of death were received by the insurer as required by the terms of the policy, and that all conditions precedent to a recovery had been fully performed on the part of the plaintiff and also on that of the insured.</p>

<p>Demubbeb to complaint. The facts are stated in the opinion.</p>

<p>Fraud—Complaint—One who has been induced by fraud to cash a draft, need not delay suit until the draft is due.</p> <p>A cause of action, which alleges that the defendant induced the plaintiff to cash certain drafts by false representations as to his own solvency as drawer, is not demurrable upon the ground that the action was brought before the drafts were due and that they may be paid when presented, as the cause of action is not upon the drafts, and the allegations are sufficient to establish fraud.</p>

<p>Statute of frauds — Original promises — Consideration — The debt may still subsist against the original debtor.</p> <p>A complaint, of the assignee of one Heismeyer against the firm of Edson Brothers, alleged that, in consideration of the transfer of the book accounts and other assets of the firm of Heismeyer & Edson and of said Heismeyer joining in such transfer, the firm of Edson Brothers agreed with Heismeyer to release his firm from a debt to them of 82,348.93, which that firm was then unable to pay, and that Edson Brothers also agreed to pay him 8647.28 due him from them; and for this latter sum the assignee sued. Edson Brothers answered that the promise was not in writing and was void under the Statute of Frauds.</p> <p>Held that, by the acceptance of the transfer in consideration of their promise to pay Heismeyer, Edson Brothers had made the debt their own and were liable as upon an original promise.</p> <p>That the contention that there could be no recovery, since Heismeyer was a member of the firm of Heismeyer & Edson and, therefore, individually liable, if it was unable to pay Edson Brothers, there being in that event no consideration for the promise, could not be maintained, as the allegation of the complaint was merely that Heismeyer & Edson were “ then ” unable to pay and that the court would presume that, by the transfer, money to pay the debts of Heismeyer & Edson could be realized.</p> <p>That it was immaterial that the debt still subsisted against the original debtor.</p>

<p>Motion to modify a decree. For the facts, see the opinion.</p>

<p>Attorney and client — Attorney must show the fairness and necessity of his charges</p> <p>The court will not allow an attorney to retain moneys of his client, for what seem to be excessive charges, where the only evidence of their fairness is his own opinion that they were fair; he should be required to produce legal experts upon the question of value and as to the necessity of the services.</p>

<p>Libel — Defenses — Proof of intent may mitigate vindictive, but not compensatory damages.</p> <p>The first defense to an action of libel, for publishing a news item, denied certain specific material allegations; the second and separate defense alleged that the defendant received the item through a reputable agency called the Associated Press; that a competent man of that agency prepared the item; that the information upon which he prepared it came to him in the usual course of business, and that no complaint had been made nor had any correction, retraction or explanation been demanded; the third separate defense reiterated, in mitigation of damages, the first and second defenses. The item was published without any inquiry by, or knowledge upon the part of, the defendant.</p> <p>Held, that, as the complaint indicated that the pleader intended the second separate defense to be a defense to the whole action; that detense was bad as the motive and intent of the writer or publisher could not mitigate compensatory damages.</p> <p>That the third defense, although not so styled, characterized itself as a partial defense, and, as tending to disprove malice, was good in mitigation of vindictive damages.</p>

<p>Demubbeb to complaint for misjoinder of causes of action.</p>

<p>Demurrer to complaint.</p>

<p>Action to recover money stipulated to be paid as rent.</p>

<p>Application for an order directing the temporary administrator to make a payment to defray certain expenses of a commissioner appointed to take testimony of subscribing witness to a will upon a contest thereof, also ordering the payment of attorney’s fees.</p> <p>Facts are contained in decision.</p>

<p>Contingent remainder — Futurity annexed to the gift — “ Children ” do not include their descendente.</p> <p>Upon the question of the construction of the residuary clause of a will, it appeared that a testator, whose immediate family consisted of a son, a wife, and an invalid daughter who died after her mother, devised his residuary estate to trustees to apply the rents, issues and profits to the use of his wife and daughter “ during' their lives and the life of the survivor of them, and, on the death of the survivor of them, I give and devise to, and direct my said trustees to divide and distribute the same to and among the then living children of my said brothers, Henry, William and Ira Bushnell, equally share and share alike.” By a prior clause of his will he had directed that, upon the failure of grandchildren, the trustees of other property, held in trust for the lives of his wife and daughter, should divide the proceeds equally among the children of his said brothers “ living at that time; that is, at the time of the death of the survivor of my said wife and daughter.”</p> <p>Held, that the property covered by the residuary clause did not vest, either in interest or possession, in the children of his brothers,, at the time of the death of his widow, nor until the subsequent death of his daughter; that only such grandnephews and grandnieces could take as were living at the latter time; that they took as a class determinable only at that time; and that their children were excluded.</p>

<p>1. Lien law of 1897 — Mechanic’s lien — A lien may be discharged by a bond instead of an undertaking — Estoppel of sureties.</p> <p>As the words “ bond ” and “ undertaking ” are used interchangeably in subdivision 4 of section 18 of chapter 418 of the Laws of 1897, sureties who, under said subdivision, have executed a bond because of which the court has discharged a valid mechanic’s lien, are estopped from insisting, upon the lienor’s attempting to enforce the bond, that it is void because it is not in the form of an undertaking.</p> <p>3. Same — When a personal judgment against sureties need not be expressly demanded.</p> <p>Where the demand of relief, in the complaint of an action to foreclose a mechanic’s lien, shows that, the lien having been discharged pendente lite by the giving of a bond, the plaintiff desires judgment according to the law of the case and there is a demand for general relief, sureties, who- have been heard by the court upon the question of a personal judgment against them, cannot thereafter take anything by insisting that the complaint contains no express demand for such a personal judgment.</p> <p>3. Same — Personal judgment against sureties, where there can be no foreclosure because of a bond given.</p> <p>The former rule that, although a mechanic’s lien has not been and cannot be foreclosed, sureties upon a bond, given to discharge the lien,may be made parties to the action of foreclosure, and that the decision therein may determine that, but for the filing of the bond, the lienor might have foreclosed, and that hence he is entitled to a personal judgment against the sureties, has not been changed by the Lien Law. chapter 418 of the Laws of 1897.</p>

Proceeding by the plaintiff’s attorney to vacate the satisfaction of a judgment in favor of the plaintiff and against the defendant, entered in the county of Delaware, in order that his lien for compensation may be enforced.

<p>Application under section 2606 to compel the executrix of a deceased administrator to account.</p>

<p>1. Building contract — General trade usage as to measuring brick in place.</p> <p>Where a building contract for laying brick merely provides, in substance, that the contractor is to lay the brick and furnish mortar and scaffolding for the sum of $5.25 a thousand, and there is no specification of the size or kind of brick, evidence of a general usage in the trade that one cubic foot of solid wall of masonry should be regarded as twenty-two and one-half brick, and that one-half of the openings, such as the doors and windows, should be included in making the measurement, is admissible.</p> <p>2. Same — Expert testimony as to cost of taking down and rebuilding walls.</p> <p>A roofing and cornice-maker is not competent to testify, as an expert, to the cost of taking down the walls of a building and rebuilding them.</p> <p>3. Mechanic’s lien law — Consent of owner.</p> <p>Within the Mechanics’ Lien Law, the “ consent ” of an owner, to an improvement upon her premises, may be inferred where she was present when her husband made the contract, was almost constantly present during the work, and where the money to pay for it was raised by a mortgage upon her premises.</p>

<p>Common carriers—Complaint — Failure to prove that a carrier neither delivered nor returned goods.</p> <p>Where consignors fail to prove the allegations of their complaint that a carrier agreed safely to transport to Fort Scott, Kansas, or to return as direction might be given, certain goods shipped, and that it neglected to deliver or to return the goods, no recovery for their value can be had upon proof of an independent agreement of the parties, executed eight days later, by the terms of which the carrier, as agent of the consignors, agreed, upon indemnity, to use all available means to stop the goods in transit and return them to the consignors, no negligence of the carrier in this regard being shown.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Statute of frauds — It must be pleaded.</p> <p>A guarantor cannot insist that his guaranty of the debt of another is void, because not subscribed by himself in the manner required by the Statute of Frauds, unless he pleads the statute.</p>

<p>Appeal from a judgment in favor of plaintiffs, entered upon a verdict.</p>

<p>Appeal from a judgment in favor of plaintiff, entered upon a verdict. ‘ ,</p>

<p>1. Executors and administrators—Complaint for goods sold deemed tha of an executrix as an individual.</p> <p>Where a complaint by an executrix, for goods sold after the death of her intestate, shows a cause of action in her individual capacity only, the descriptive words “ as executrix ”, contained in the etitle of the action, may be rejected and the action be deemed her individual action.</p> <p>2. Same — Counterclaims.</p> <p>Counterclaims, arising out of causes of action which accrued before the death of a testator, cannot be offset against goods sold after his death by his executrix.</p>

<p>Appeal from a judgment in favor of plaintiffs, entered upon a verdict.</p>

<p>Services — Discharge—Yearly hiring.</p> <p>In an action by an officer of a corporation, styled its superintendent, who alleged that he was hired as such for one year from May 1, 1894 at a stated annual salary, payable monthly, the defense was that he was only hired until the annual corporate election on January 28 1895 and that he was not then reappointed. It appeared that later and on January 29th. his resignation was requested and further that he was paid his salary up to February 1st, without any intimation that he was not still employed by the corporation.</p> <p>Held, that the hiring was by the year, that he had never been duly and legally discharged, and that hence he was entitled to recover his salary from February 1 to May 1 1895.</p>

<p>Services — Notice of intention to discharge and of discharge.</p> <p>Where a contract for the services of an actor provides for its cancellation by either party on two weeks’ written notice, evidence that the actor received on November 25th, at Atlanta verbal notice that “ you quit us in Norfolk ” and that when he reached Norfolk he was given a ticket and a check for New York, that this was done “ either on Saturday night or Sunday morning, December 7th,” and that he was paid up to that date, does not, as matter of law, establish a sufficient notice of an intention to discharge, or of a discharge, and that question should be submitted to the jury.</p>

<p>Case — Resettlement denied.</p> <p>Where the assignment of a cause of action is conceded, the record will not be amended to show a mere argument of counsel indicating the possible interest of an adverse witness who has testified to nothing more than the fact of the execution of the assignment and who has given such testimony without objection.</p>

<p>Appeal from an order of the Special Term compelling plaintiff to accept notice of appeal to the Appellate Term.</p>

<p>Appeal from a judgment in favor of plaintiff entered on a verdict.</p>

<p>Services — A discharge is equal to a required two weeks’ written notice of cancellation.</p> <p>Under a contract for theatrical services providing for its cancellation by either party on two weeks’ written notice, the employer, may discharge the employee at any time on the payment or tender of two weeks’ salary, as, for the purpose of fixing the recovery of the employee, a discharge is equivalent to a written notice.</p>

<p>1. Submission to arbitration—Powers of attorney.</p> <p>The submission to arbitration of a controversy, which is not an action, is not within the scope of the authority of an attorney and that authority must be shown in order to bind 'the client by the award made.</p> <p>3. Sales—Collateral warranty surviving acceptance.</p> <p>A guarantee, accompanying a sale of stone, that it should not weigh more than 160 pounds per cubic foot and that it should be properly scabbled, amounts to a collateral warranty which survives an acceptance of the stone.</p> <p>3. City Court of New York city — Reduction of a judgment exceeding the jurisdiction.</p> <p>The City Court of the city of New York has control over its own judgments and may reduce a judgment, which, by an error, has been entered for a greater sum than its jurisdiction permits.</p>

<p>Appeal from an order made at Special Term denying a motion made by the defendants to vacate and set aside a judgment entered in the action in favor of the plaintiffs against the defendants for the sum of $163.50.</p>

<p>Appeal from an order of the Special Term, fixing the amount, of the undertaking to be given by the defendant and discharging, the warrant issued herein.</p>

<p>Contract — Liquidated damages —When not a penalty.</p> <p>A stipulation, .in a contract between a theatre manager and certain actors, providing “And it is further contracted by and between the said several parties to this instrument, that said parties of the second part (the actors) shall not break this engagement or violate any of the conditions of this agreement under a penalty of five hundred dollars, and the said parties of the second part hereby confess judgment in said amount should they violate the aforesaid conditions ” is, in view of the uncertainty attendant upon determining the manager’s loss should the actors play at a rival theatre, to be deemed a provision for liquidated damages and is not to be treated as a penalty, and hence the manager may enforce the stipulation upon a breach of its conditions.</p>

<p>Appeal from a judgment dismissing the complaint of the plaintiffs, after a trial.</p>

<p>Appeal from a judgment entered upon a verdict in favor of the plaintiffs directed by the court.</p>

<p>Application for a writ of mandamus.</p>

<p>Action for an injunction.</p>

<p>Appeal from a judgment of the Municipal Court of the city of Few York, borough of Brooklyn.</p> <p>The action was brought to recover the aggregate of several installments alleged to be due and unpaid by the terms of a written instrument, executed by the defendant, described as a lease in the complaint, but which was claimed by defendant to be a conditional bill of sale, whereby the defendant received possession of a bicycle the title to which was to remain in the plaintiff until the full payment of the installments of rent, when the bicycle was to be sold to plaintiff for a consideration equal to the whole amount of rent paid.</p>

The judgment vacated by the order appealed from was entered upon the defendant’s failure to appear. The action was for the value of a bicycle which had been delivered to the defendant by plaintiff under an installment lease (or conditional bill of sale), defendant having failed to complete his payments, and having also failed to deliver possession of the bicycle upon plaintiff’s demand.

<p>Crimes — Commitment of children under sixteen to House of Refuge in New York city — Notice to parents of examination of child.</p> <p>The provisions of subdivision 5 of section 291 of the Penal Code, as amended by chapter 31 of the Laws of 1886, apply to the House of Refuge for the Reformation of Juvenile Delinquents in the city of New York, and where a commitment to that institution of a child under sixteen years, charged with a misdemeanor, does not show that any notice was given to the parent or that the parent was present at the examination before the magistrate, the statutory provisions as to notice have not been obeyed, the magistrate has no jurisdiction, and the child must be discharged from the institution.</p>

<p>Motion upon exceptions to referee’s report and to confirm same.</p>

<p>District attorney — Bight to examine all depositions and informations, relative to violations of the Election Law, in the possession of a city magistrate, whether or not they have been acted upon by him — Mandamus •• ■</p> <p>A magistrate of the city of New York cannot lawfully refuse the request of the district attorney of the county for an examination, by himself or any of his designated assistants, of all pending depositions and informations, for violations of the Election Law, which have been laid before and have been lodged with the magistrate, upon which he may or may not have acted by issuing a warrant, and which have not been returned by him to any 'court of higher jurisdiction, .and also for an inspection and examination of the record of any warrants issued by him on such informations!; and the right of the district attorney in the matter will be enforced by a writ of peremptory mandamus.</p>

<p>Motion to strike the cause from the calendar.</p>

<p>Motion to vacate a subpoena issued by a commissioner to take the deposition of a witness residing in this state, in an action pending in a foreign state.</p>

<p>Motion for a new trial.</p>

<p>Action of foreclosure. Motion to confirm report of referee appointed to compute amount due.</p>

Petition by John Sherry, as a citizen, to revoke the liquor tax certificate granted by him as county treasurer of Suffolk county, upon the ground that there were two owners of dwellings within 200 feet of the place for which certificate was applied for. One owner executed consent, lessee and'agent executed consent for other dwelling.

<p>1. Conditional sale — Construction of contract as to default in payment — Replevin.</p> <p>In a contract for the conditional sale of a cash register providing that the vendees shall pay “ Three hundred and twenty-five dollars ($325.00), in U. S. Gold Coin or its equivalent; viz., Twenty-five dollars cash on delivery, and notes, $25 each, for the balance, payable monthly ”, the words “ or its equivalent ” refer to “ U. S. Gold Coin ” and not to the time of payment; and hence vendees, who have paid twenty-five dollars cash on delivery and who have given the vendo» notes for the balance, but who have not paid these notes (which the vendor offered to return) are to be deemed in default, and the vendor may replevy the cash register from a transferee of the vendee under a clause of the contract providing “ that the title of said cash register shall not pass until the same is paid for in full ”.</p> <p>3. Same — Election of remedies.</p> <p>An action, brought by the vendor to recover a balance of the purchase price, considered by the court not to amount to an election, the vendor not being advised as to all the facts.</p>

Appeals from decisions of Smith Rice, Esq., superintendent of the poor of Onondaga county, in the above cases, in which he determined that the poor persons in each case have a settlement in the city of Syracuse, and are not charges upon the county of Onondaga. The facts in these cases are in many respects similar, and the' principles involved in the determination of one apply to such an extent in the determination of the other that they may properly be considered together.

C. Rising, Esq., justice of the peace, in the town of Savannah, June 25, 1897, in favor of the defendant and against the plaintiff for $5, and costs.

<p>1. Street railroads — Bight of abutting owner to restrain unlawful maintenance and operation.</p> <p>An abutting owner may maintain an equitable action to restrain a corporation, organized under the Railroad Law, from unlawfully maintaining and operating, along the avenue, a double-track street railroad by means of electric power and the overhead trolley system, and "the plaintiff is not called upon to prove that the probable, speculative, or actual benefits of the unauthorized structure will not offset the apparent disadvantage or injury, however small.</p> <p>2. Railroad Law — Consent of local authorities, for a route not located, is of no effect.</p> <p>Where a street railroad corporation, proceeding under ’ the Railroad Law, has hot, either by its articles of association or by formal and valid extension proceedings, located a route upon an avenue, it has no capacity to receive the consent of the local authorities as to such avenue or to exercise its franchise thereon.</p>

<p>Officer — An increase of duties will not increase his stated annual salary.</p> <p>A city court officer, drawing a stated annual salary, can recover nothing additional from the city because, after the chief clerk of the City Court, who had no power to employ deputies, has detailed him to assist in writing the general minutes, he during nine years continued writing in the minute-book, got out papers, and did clerical work corresponding to that of a recording clerk, there being no evidence that he ever asked for an increase of salary, or that any agreement was ever made to pay him for extra work, or that the board of supervisors ever fixed his salary as a clerk.</p>

<p>1. Submission to arbitration at common law — Arbitrators need not be sworn. ' ’ j</p> <p>Arbitrators, acting under a common law submission to arbitration, need not be sworn.</p> <p>2. Same — Waiver oí irregularities.</p> <p>Advantage cannot be taken of alleged irregularities, occuring during proceeding's taken under such a submission, where they were first complained of more than six weeks after the proofs had been made and the matter submitted for final decision.</p>

<p>Action by assignee pf advertising agency to recover upon a contract for advertising the defendants’ wares.</p>

<p>Pboceeding-s upon the judicial settlement of the accounts of an executor.</p>

<p>Appeal by defendants from judgment entered upon a direction -in favor of plaintiff.</p>

<p>Negligence — Failure of the master to comply with the Factory Act of 1892.</p> <p>Defendant maintained in his factory two cog-wheels projecting into a stairway and at one time, protected by a wooden box, through which, however, a hole had been worn by the action of the wheels, and this hole had existed for three weeks; plaintiff, an employee of defendant’s, while passing the wheels, of the existence of which he had no knowledge, in the discharge of his duties, was injured, because the fingers of his left hand, which were about on a level with the hole in the box, came in contact with the cogs and were smashed. Held, under the provisions of Laws of 1892, chap. 673, § 8, that defendant, having failed to properly guard the wheels, was prima facie negligent, and that it was his duty to guard all cogs, belting, etc.</p>

<p>Practice — Settlement of case.</p> <p>A party has a right to have the case on appeal show the actual facts and the trial judge should refuse to settle the proposed case unless the official stenographic minutes are submitted to him.</p>

<p>Appeal from a judgment entered on a verdict rendered by a jury in favor of plaintiff and from an order denying defendant’s motion for a new trial made on the minutes.</p>

<p>Appeal from judgment, entered on a verdict, rendered by a jury, and from order denying motion for a new trial made on the minutes.</p>

<p>Appeal from, an order, granting defendant’s application “ for an open commission ” to- take the testimony of witnesses at Boston.</p>

<p>Action to recover a chattel — Failure to particularly describe the chattels to be replevied.</p> <p>An affidavit in replevin which describes the goods as: Eleven cotton linings, 610 1-4 yds,; 9 cotton linings, 459 yds.; 3 6-4 woolen cloth, 201 4-8 yds., is not a description of the chattels, sufficient within the provisions of section 1695 of the Code of Civil Procedure, to enable a sheriff to determine upon what he is required to replevy, and the writ and requisition should be set aside.</p>

<p>Principal and agent — Receipt of collecting agency stating, on its back, that clients were not guaranteed against loss from the dishonesty of an attorney.</p> <p>Upon or after receiving from plaintiff a claim for collection, the defendant gave to < plaintiff a receipt upon the back of which was printed, “ We do not, however, guarantee clients against loss arising from the dishonesty of an attorney.” Plaintiff had no knowledge that the paper was other than a mere receipt and there was no positive proof that the receipt was ever actually in his hands. The defendant’s attorney collected the claim and defaulted.</p> <p>Held, that, as matter of law, the receipt did not constitute a contract and that it was a question of fact for the jury to decide whether or not the receipt, upon the facts, was a part of the contract and exonerated the defendant.</p>

<p>Appeal from an order vacating an attachment.</p>

<p>Appeal from a judgment in favor of plaintiff, entered upon a verdict, and from an order denying a motion for a new trial.</p>

<p>Corporations — A secretary has no power, as such, to transfer notes belonging to the corporation — Agency.</p> <p>In an action on notes owned by a corporation, it appeared that after payment of the notes was demanded and refused, the secretary of the company delivered the notes to the plaintiff without indorsement or consideration, and that he had no specific authority from the corporation to do so.</p> <p>Held, that the plaintiff was not the real party in interest nor was he a trustee of an express trust and that he could not maintain an* action on the notes. That, to enable an agent to maintain an action in his own name, there must be something more than the mere powers of a naked agent</p>

<p>Appeal from a judgment in favor of plaintiff entered upon a verdict.</p>

<p>Supplementary proceedings — Contempt excused.</p> <p>Where a judgment debtor who has paid $247 on the judgment after the recovery of a judgment for $332, appears on the return of an order for her examination in supplementary proceedings and is examined and also appears on two subsequent adjournments and pays $10 on the judgment, but fails to appear on the third adjournment, and upon the return of an order to show cause why she should not be held in contempt appears in person, makes oral excuse and is further examined, the court may in its discretion excuse the contempt and refuse to punish the debtor. %</p>

<p>Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial.</p>

<p>1. Jurors—When the overruling of a challenge for cause presents no error.</p> <p>A juror was challenged for cause and, the challenge having been overruled, was peremptorily challenged, but the party challenging had not exhausted his peremptory challenges when the jury was sworn.</p> <p>Held, that the exception to the overruling of the challenge presented no error.</p> <p>2. Negligence — Opinion of physician as to the permanence of pain.</p> <p>A physician was asked: “ Can you tell us with reasonable certainty, basing your answer upon your experience as a physician and surgeon, and after the personal examination made by you of this plaintiff, whether having suffered from a sprained ankle, such as has been described by him, he would be apt to suffer such pains and sensations as testified to by him ”, and also the question, “ Can you tell us with reasonable certainty, how long he is apt to have these pains,” and answered them, against the objection of the defendant, by saying “ He may have them during his lifetime.” Held, that the answer was too speculative and indefinite, and that the refusal of the court to exclude it was reversible error.</p>

<p>Appear from an order granted at Special Term.</p>

<p>Partnership — Estoppel.</p> <p>An incoming partner is liable on his promise to workmen, formerly employed by his partner, that if they will go on with their work he will pay them for services rendered thereafter.</p>

This is an application for a writ of mandamus against John Gilfoyle, as commissioner of buildings of the City of New York for the borough of Brooklyn, to compel him to> approve the plans filed in his office by the petitioner for a building to be erected upon 4th place in the said borough, on the space inside of the sidewalk which is designated as court yard in the statutes under which the said street was laid out and opened in 1853.

<p>1. Estoppel.</p> <p>Notice to a receiver of an insolvent corporation of an ownership of property claimed by the company is not notice to the purchaser of such property at the receiver’s subsequent sale and where the party giving notice attends the sale and makes no claim of title, he is estopped from afterwards claiming sole ownership.</p> <p>2. Injunction — Unfair competition in proprietary articles, in which both parties have equal rights.</p> <p>The owner of a right to manufacture certain proprietary articles, sold his right to plaintiff’s assignor and afterwards transferred the same rights to a corporation, formed under his name. The corporation became insolvent and the receiver sold the same rights to the defendant. Plaintiff’s assignor gave notice of his ownership to the receiver only, attended the sale, made there no claim of title, and subsequently sold his rights to the plaintiff. Held, that the knowledge of the original owner as to his own sale to plaintiff’s assignor could not be imputed to the corporation; that by the original owner’s transfer a right to manufacture the articles passed to the corporation, and by the receiver’s sale to the defendant; that this was not a sole right; that by the transfer to plaintiff from her assignor, a right to manufacture the articles passed to her, and that she was entitled to an injunction restraining the defendants from making, selling, and claiming to make and sell, the articles as “ sole proprietor ”,</p>

<p>1. Joint guaranty—Sureties estopped from questioning a deviation from the terms of the principal contract.</p> <p>A corporation entered into a bond whereby it agreed that if the plaintiff “ at the execution and delivery thereof ” should pay to it $25,000, the corporation would repay the same on a certain date. The defendants guaranteed the performance of the covenants of the bond. Plaintiff paid $18,000 to the corporation on the execution of the bond, paid, on the corporation’s request, $3,000 to one of its creditors, retained $4,000, subject to the corporation’s draft, and paid the same on its draft a few days afterwards. Defendant guarantors were directors of the corporation and, at a meeting of its board of directors, assented to the payment of $3,000 to the creditor. Held, that, the company having defaulted in performance, the defendant guarantors were liable, while, assuming that the payment to the creditor was a deviation, the defendants having assented to the payment as directors, were concluded from defending on that ground.</p> <p>8. Same — The death of a joint guarantor discharges his estate.</p> <p>Where, pending an action on a joint guaranty, a guarantor who is not liable except by virtue of the joint obligation dies, his estate is discharged from all liability at law or in equity and the survivors only are liable.</p>

This is an application by the above-named Thomas D. Watkins, under section 114 of the Election Law, for a writ of peremptory mandamus to compel the board of canvassers of Oneida county to recount certain ballots claimed to have been cast in said county which were counted although objected to; and certain other ballots which were returned as defective and not counted.

<p>This is an action of replevin and this motion is made by defendant for an order “ vacating and setting aside * * * the affidavit, requisition and all proceedings * * * upon the ground that said affidavit contains no evidence to justify the issuing of said requisition or to confer jurisdiction,” etc.</p>

<p>Bank and customer — Discount of drafts upon bills of lading — Effect of bank rule that, in collecting, it is only the customer’s agent — Waiver.</p> <p>After a bank had, upon bills of lading, discounted drafts drawn by its customer upon his vendee in another city, the vendee refused payment of the drafts upon their presentation to him with the bills of lading, but he afterwards sold the property consigned to him and retained the proceeds. Creditors of the vendor attached the proceeds and, upon an interpleader, they were paid into court.</p> <p>Held, that, as the bank had discounted the drafts and had passed their avails to the vendor’s credit, it was entitled to recover from the proceeds in court the amount of the drafts.</p> <p>That a rule adopted by the bank that, in receiving checks or drafts on deposit or for collection, it was to act only as the agent of the depositor and was to be responsible only for the failure and insolvency of its own collecting agents, was a rule which applied only as between the bank and its customers, that the bank might waive the rule, and that, as against the attaching creditors, the rule did not constitute the bank a mere agent of the vendor.</p>

<p>Costs —Where a referee to hear and. determine does not award costs, the Special Term cannot award any.</p> <p>Where an action to foreclose a mortgage is referred to a referee “ to hear and determine the same according to the rules and practice of this court ”, and the referee refuses to allow or to disallow costs, the court at Special Term is bound by the referee’s decision and cannot award any costs.</p>

AhPiiCATioir under section 2621 of the Code of Civil Procedure, for the probate of a will alleged to have been made by decedent, and which, it is claimed by the proponent, was in existence at testator’s death and has since disappeared.

<p>Pboceedibgs by a general guardian to punish an executor for contempt.</p>

Ajppeal by the comptroller of the city of blew York from an order entered upon, the report of ah appraiser appointed under the Transfer Tax Act.

<p>Transfer tax — Proceeds of the gratuity fund of the New York Produce Exchange are not taxable.</p> <p>Proceeds, realized from the gratuity fund of the New York Produce Exchange and payable only to the beneficiaries of a deceased member, form no part of the assets of his estate, and are not taxable, as they do not pass by will or by statute, but under the contract.</p>

<p>Religious societies — Test of the validity of a bequest to a foreign society. '</p> <p>The ability of the legatee, under the laws of the state where it exists or is domiciled, to take and administer a bequest for the purposes for which it was given, determines the legality of the bequest; and a direct bequest to a Connecticut religious society to be held by it in trust to invest the same and apply the income thereof to the glory of God and in furtherance of the religious and charitable work of said society, is valid under the laws of Connecticut</p>

<p>Appeal by the defendant from the affirmance by the General Term of the City Court of Hew York of a judgment in favor of the plaintiff, entered upon the verdict of the jury. The material facts are stated in the opinion.</p>

<p>Usury — Burden of proof — Uotice or knowledge of principal.</p> <p>Defendants who allege, as a defense to a note, that it is tainted with usury, must establish that fact affirmatively by a preponderance of evidence.</p> <p>Proof that the agent of the plaintiff, who carried out the transaction in question, exacted for himself an usurious commission, does not establish usury where there is no proof that the plaintiff either authorized, or knew of, or received any part of, the exaction, or that he was in any manner affected with notice of his agent’s unlawful act.</p>

<p>Appeal from a judgment of the First Municipal Court, borough uf Manhattan.</p>

<p>Action by broker to recover insurance premiums paid by Mm — Beal party in interest — Voluntary payment — Payment after suit begun. ¡ i</p> <p>In an action by a broker to recover for “ insurance premiums ” on policies on the premises of the defendant, a married woman, alleged to have been placed through her husband and which premiums were alleged to be due to the plaintiff and unpaid, it appeared that the broker was apparently acting for his principals, the companies, that the defendant had sought to repudiate the policies and denied that she ever authorized her husband to procure them from the broker; that neither she nor her husband ever requested him to pay the premiums; that the companies had never assigned to him the title to them, and that he paid them after action begun. Held, that he could not recover.</p> <p>That regarding the action as one to recover the premiums, they -must be considered as still remaining the property of the companies; while, if the action were to be deemed one for money paid, it could not be maintained as, in the absence of a request to pay, the payment must be regarded as voluntary, and in addition" was not made until after the action had been commenced.</p>

<p>Sales — Implied warranty that manufactured goods are free from latent defects. ■</p> <p>A manufacturer, selling his own goods, impliedly warrants them free from latent defects of manufacture; but the existence of such defects in melting pots, manufactured for use in glass furnaces, is not shown by proof of the single fact that the pots melted under a heat which much exceeded the minimum temperature to which they were expected in the trade to be subjected and which might have equalled the maximum temperature to which such pots were ever subjected in such a process, the witnesses as to the temperature applied not appearing to have any accurate knowledge of its intensity.</p>

<p>Appeal from a judgment of the Fourth .Municipal Court, borough of Manhattan, in favor of the defendant.</p>

<p>Appeal by defendant from a judgment, entered in its favor, in the First Municipal Court, borough of Manhattan.</p>

<p>Appeal from a judgment of the Tenth Municipal Court, borough of Manhattan, in plaintiff’s favor.</p>

<p>Ajppeal from, a judgment of the Eleventh Municipal Court, borough of Manhattan, in favor of the defendant.</p>

<p>Appeal from a judgment of the Second Municipal Court, borough of the Bronx, in favor of the plaintiff.</p>

<p>Appeal from a judgment of the Eleventh Municipal Court, borough of Manhattan, in favor of the defendant.</p>

<p>Conditional sale — Title — Bona fide purchaser.</p> <p>Under a conditional sale, with a condition precedent of payment, no title passes until payment has been made, and the vendee can confer no title upon his assignees unless they are dona fide purchasers, entitled to the protection of the Lien Law (Laws of 1897, chap. 418, § 112).</p>

<p>Appeal from a judgment of the Second Municipal Court, borough of Manhattan, in favor of the plaintiff.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Rew York, borough of Manhattan, first district, rendered in favor of the defendant upon a trial had before the court without a jury. The nature of the action and the material facts are stated in the opinion.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of the plaintiff by the justice thereof, without a jury. Action to recover broker’s commissions. The pleadings were oral, and the answer was a general denial. The material facts are stated in the opinion.

Appear by the defendant from a judgment of the Municipal Court, borough of Manhattan, third district, in favor of the plaintiff, rendered hy the court, after a trial had without a jury. The nature of the action and the facts, so far as they are material, are stated in the opinion.

<p>Appeal by the plaintiffs from a judgment of the Municipal Court of the city of Yew York, borough of Manhattan, fifth district, in favor of the defendant, for the sum of $10 costs, after a trial had before the court, without a jury. The nature of the action and the material facts are stated in the opinion.</p>

Appeal by the defendant from a judgment of the Municipal Court of the borough of Manhattan, sixth district, rendered in favor of the plaintiff upon a trial had before the court, without a jury. The nature of the action and the facts, so far as they are material, are stated in the opinion.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, eighth district, rendered in favor of the plaintiff upon a trial had before the court, without a jury. Action brought to recover $200 for services rendered pursuant to the agreement, hereinafter set forth. The pleadings were oral, and answer a general denial. The material facts are stated in the opinion.

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, rendered in favor of the plaintiff upon a trial had before the court, without a jury.</p> <p>The facts, so far as material, are stated in the opinion.</p>

Appeal by the plaintiff from a judgment of the Municipal Court, borough of Manhattan, for the seventh district, rendered in favor of the defendants, by the justice thereof, without a jury. The nature of the action and the material facts are stated in the opinion.

<p>Master and servant — Although the master has overlooked prior breaches of duty, he may discharge, having in view the whole course of conduct of the servant.</p> <p>In an action for a wrongful discharge where there was evidence that, although on the day prior to his discharge the plaintiff had neglected his work, the defendants did not then discharge him nor until a subsequent act of neglect on the next day, the court, at the request of the plaintiff, charged that “ if a contract of employment has been violated by an employee and the employer, with knowledge of such violation, retains him in his employ, that then the violation is not ground for a subsequent discharge ”.</p> <p>Held, that the charge was erroneous, the rule being that, where-violations of duty continue up to the time of discharge, the master-may overlook breaches, hoping for reformation, but, if disappointed, and the servant continues unfaithful, the master may act, in view off the whole course of conduct of the servant, in determining whether the contract of employment should be terminated.</p>

<p>AlPpeal from a judgment of the Ninth Municipal Court, borough of Manhattan, in favor of the plaintiff.</p>

Aureal by the defendants Louis London and Albert London, from a judgment of the General Term of the City Court of New York, affirming a judgment entered in plaintiff’s favor upon the verdict of a jury. Action on a promissory note alleged to have been made by the defendants Charles London and Lazarus London, and indorsed by the appellants. The latter alone defended and their answer was a general denial. The facts, so far as they are material, are stated in the opinion.

<p>Application under the Veterans’ Act for a peremptory writ of mandamus.</p>

This is a proceeding to review the acts of the assessor of the city of Kingston in placing upon the tax roll of said city an assessment against the Cornell Steamboat Company for personal property of $250,000.

<p>1. Taxpayer’s action, under chapter 301 of the Laws of 1892 — Duty of the mayor of Brooklyn in auditing claims — Failure to show his collusion in a. scheme to defraud the city — Demurrer to complaint.</p> <p>The charter of the city of Brooklyn (Laws of 1888, chap. 583), does not require of the mayor an “ examination of inquiry as to the true justice, correctness or legality of a bill, claim or account,” which has been duly audited, and where the complaint of a taxpayer, drawn under chapter 301 of the Laws of 1892 and directed, against an ex-mayor among others, does not show that he in any manner colluded in a scheme, by which a large city contract, awardable by public competition, was split up into small contracts which might be let privately « and not necessarily to the lowest bidder, nor that he knew, or had any reason to know, that the bills audited under the small contracts were fraudulent or exorbitant, a demurrer to the complaint upon the ground that it does not state facts sufficient for a cause of action, must be sustained.</p> <p>2. Demurrer — Inconsistency of grounds not fatal.</p> <p>The inconsistency of the several grounds for a demurrer is not a legal objection thereto where the points of law, relied upon to sustain each ground, are not inconsistent with each other.</p>

Defendants are stockholders o-f the Traders’ Bank of Tacoma, a hanking corporation organized and carrying on business in the State of Washington.

<p>Undue influence — An elderly woman controlled by a husband and wife with whom she boarded.</p> <p>Where the proof, in regard to an assignment made by an elderly woman, in a feeble condition, of practically all her property to the wife of the man with whom she boarded, and to the exclusion of her next of kin, is that the husband had the instrument prepared and that the wife helped the assignor to sign her name and that, when ten days later and four days before her death, a disinterested notary, who was brought to her to 'have her re-execute the instrument, asked her “ For the consideration of $1, do you want to assign these mortgages to Mrs. Cuddy (the assignee) ? ” she shook her head, and moaned, and gave no answer, and the notary thereupon declined to take the acknowledgment, the presumption of undue influence is 'not rebutted, and the assignment is void.</p>

<p>Brokers — Fraud on customer — Disaffirmance — Ratification and estoppel. -;</p> <p>Where, after showing a house to a client, a real estate broker fraudulently procures the owner to transfer it on the same day to the brother-in-law of the broker, from whom the client is subsequently induced by the broker to buy it at an advanced price, the client giving back a mortgage for a part of the purchase price to the brother-in-law, neither the latter nor his assignee can enforce the mortgage against the client.</p> <p>The rule is the same although the client did not, upon discovering the fraud, immediately disaffirm; nor does the payment, after discovery of the fraud, of one installment to the colluding brother-in-law estop the client from resisting any recovery as to the balance.</p>

Action fly a trustee- in a separation agreement to enforce the specific performance of a stipulation fly the husband to secure the payment of an annual allowance to his.wife. The opinion states the case,

<p>Action for a separation.</p>

Action to set aside .an agreement dissolving the partnership of Ormiston & Dorsett and the transfer by the latter to the defendants of certain property and the assets of the said copartnership, made pursuant to the dissolution agreement, on the ground of duress and fraud.

<p>Legacy — Conditional on pairing testator’s debts —Effect of failure! to pay.</p> <p>Where a testator beqeueaths his shares in a brewing company to his-brother and executor provided he pays all the testator’s debts and, failing this, to the testator’s wife, the neglect or failure of the brother to pay the debts entitles the wife to the shares, but, where the executor has not accounted nor advertised for creditors and they exist, the wife-must secure the executor against the claims of the creditors.</p>

<p>This is an action to set aside a transfer made by one Harriet White, plaintiff’s testatrix, of sixteen shares of bank stock to the defendant Sullivan. It is based upon the general claims that the donor was not in mental condition to make the transfer and that the defendant exercised undue influence and persuasion.</p>

This is an application for a writ of certiorari to review the action of the common council of the city of Kingston, confirming a special assessment made pursuant to the provisions of the consolidated charter of that city (Chap. 747, Laws of 1896), upon the ground that the city officers have not conducted their proceedings in accordance with the statute,, in that they have erroneously included in the assessment items not properly chargeable against the property affected by…

<p>Guardian and ward — Change of ward’s domicile as affecting appointment of guardian.</p> <p>Where the widowed mother and guardian of the person of her minor child moves into another state, resides, remarries, and dies there, and the stepfather is there and thereafter appointed guardian of the child, its domicile will be deemed to have been changed to the foreign state and a subsequent application for the appointment of a guardian in the state of New York will be denied, and particularly where the stepfather is not shown to be an improper person to serve as guardian. Even if he be such, application for his removal should be made to the foreign court which appointed him.</p>

Application of an executor for commissions upon the income disposed of hy certain paragraphs of the twenty-second clause of the will of the deceased, which are as follows: “ 1st. That my said executor and trustee set apart the sum of five thousand dollars ($5,000) and invest the same for the benefit of Hugh McK.

<p>Proceedings upon judicial settlement of the accounts of executors.</p>

Appeal by the overseer of poor of the town of Salamanaca from a decision of the superintendent of poor of the county of Cattaraugus, which determined that the poor person- is not a charge upon the county of Cattaraugus, but that she is a charge upon the town of Salamanca.

This is an appeal from a final order in summary proceedings granted by F. A. Wbittemore, a justice of the peace for the town of Vienna, on the 15th day of August, 1898, dispossessing defendant of property known as the Sylvan Beach Hotel at Sylvan Beach, N. Y., for nonpayment of rent.

<p>Trades unions—Boycott of a newspaper—Liability of all conspirators"— Injunction.</p> <p>Where, upon the refusal of newspaper proprietor, employing both nonunion and union men, to pay the prices and abide for one year by the rules of the “ United Printing Trades ”, 'a typographical union, which has ordered its men to abandon work, subsequently induces other labor organizations to join in the grievance and movement, and with them boycotts the newspapers published by the proprietors, instructs all organized labor not to buy the newspapers nor to patronize any firms who advertise in them, sends threatening resolutions and circulars among the advertisers of these newspapers, posts in public places and in shop windows placards calling attention to the boycott ”, and inaugurates a labor journal, containing libelous and false charges to carry it on, the court will enjoin such acts, threatened to be continued, as they are unlawful; and, where a common purpose appears on the part of all the defendants, the injunction must run against all.</p> <p>The injunction will issue although no actual violence is shown and although some of the acts might properly be made the subject of an indictment.</p>

This action was brought to recover the price of some hay sold by plaintiff to defendant. There were various questions litigated upon the trial in regard to the value of the hay and the amount due therefor, but the important question of law which arose on the trial and which is the basis of this motion relates to an alleged tender made by defendant to plaintiff.

<p>Pleading — Striking out irrelevant and redundant matter — Buie in equity.</p> <p>It is not a matter of right to have irrelevant and redundant allegations stricken from a complaint and, in equity especially, the plaintiff should be allowed great latitude in setting forth, in good faith, whatever he deems important to his cause of action.</p>

<p>Application for a writ of mandamus.</p>

<p>Motion to compel the defendant to accept notice of trial.</p>

This action is brought by plaintiffs to perpetually restrain defendant from interfering with the use of its street railway tracks, trolly wires and electric power by plaintiffs and their successors between the junction of Burnet avenue, Lock and James streets and Railroad street in Syracuse. The defendant’s answer denying the right to so use said tracks, etc., raises various questions. The facts sufficiently appear in the opinion.

<p>1. Evidence — Code Civ. Pro., § 82,9 — A party canno't testify to usury taken by a deceased mortgagee.</p> <p>Upon the foreclosure, after the death of the mortgagee, by the executor of his assignee of a mortgage given by a husband and wife to secure the original mortgagee as indorser of certain notes, the wife, who was a maker of the notes, a mortgagor, and who took part in the transaction by which, as alleged, the mortgagee exacted usury at the inception of the notes, is incompetent to testify to, the usury, as she is a party and is interested in the event.</p> <p>2. Remainder — Not defeated by the exercise of power of sale and mortgage by an executor — Innocent mortgagee not liable for an executor’s disposition of the proceeds of his mortgage.</p> <p>A testatrix devised a life estate in lands to her husband with remainder to her infant child and also appointed her husband executor with full power “ to buy, sell and convey and lease and mortgage real estate at his will and pleasure without bail.”</p> <p>Held, that the power of sale was to be exercised for the benefit of the infant and that he took a remainder wbich was not subject to be defeated by such exercise.</p> <p>That a mortgage, given by the executor to retire another mortgage held by another mortgagee on the premises belonging in remainder to the infant, was valid.</p> <p>That, even if the mortgage was executed in violation of the power, the mortgagee would not be responsible for the proceeds unless he knew or or was put on inquiry as to the violation.</p>

<p>Liquor Tax Law — Illegal sale on a piazza which was possibly on state land. 1</p> <p>Where a person authorized to traffic. “ in liquors in quantities less than five wine gallons, no part of which shall be drunk on the premises where sold or in any outbuilding, yard or booth or garden appertaining thereto or connected therewith ”, sells liquor in his building adjoining the towpath of the canal and permits the purchaser to drink it on a piazza fronting on the canal,' and formed by the projection of the upper story of his building over the lower one, and which piazza was the usual approach to his store and bar, the statute is violated; and the fact, that the piazza may be on state lands and has been used by the state authorities as a place to deposit tools temporarily, is not a defense, where the state has taken no steps to remove the piazza.</p>

Action by plaintiff as judgment creditor of the above-named defendant Martin Devoy to set aside a purported deed from Mm to the other defendants upon the grounds: 1. That there was never any sufficient delivery of it. 2. That it was fraudulently kept from record to enable the grantor to maintain a fictitious credit.

<p>Action for the specific performance of a contract for the sale of land.</p>

<p>Corporations — Power of a hospital to take a smaller sum than would endow a bed under its rules.</p> <p>A clause in a will provided “ I give and bequeath to the New York Hospital now located on West Fifteenth street, in the city of New York, the sum of five hundred ($500) dollars to be used to endow a bed ha said institution in perpetuity”. The by-laws and ordinances of the hospital provided for the endowment of beds and gave the donor certain rights in regard to them, provided, however, that the amount contributed should not be less than 5,000.</p> <p>Held, that it was not to be presumed that the testatrix had the‘bylaws in mind and that, although her gift was only the sum of $500, the legatee had a right to take it and to apply it pro tanto to the maintenance of a bed.</p>

Application under section 16 of the County Law, chapter 686, Laws of 1892, for an order directing the supervisors of Rockland county to refund to petitioner taxes paid by him for the years 1892, 1893, 1894, 1895, 1896 and 1897.

<p>Appeal from decision and order of county superintendent of the poor of Schuyler county, that McCutcheon is a charge npon town of Oayuta.</p>

<p>1. Order of arrest — Examination of affidavits wliere cause of action and arrest are identical</p> <p>Notwithstanding the fact that the cause of arrest is identical with the cause of action, it is now necessary, on a motion to vacate an order of arrest, for the court to examine the affidavits and to vacate or uphold the order as the fair preponderance of proof requires.</p> <p>8. Same —Proof of liability as partner or principal.</p> <p>Evidence deemed sufficient to show that a defendant had held himself out as a partner of his employer or as a principal, and not -as a mere clerk.</p>

<p>Application to vacate a warrant of 'attachment. The material facts appear in the opinion.</p>

<p>1. Practice — Authority to sue for a foreign corporation — Its existence not in issue, nor the power of its president to direct suit.</p> <p>Upon a motion by a defendant to compel the plaintiff’s attorneys to produce their authority for bringing an action for their client, a foreign corporation, and to disclose the addresses and residences of certain individual plaintiffs, and to make the latter give security, if nonresidents, the court will not go into the question whether the foreign corporation has forfeited its charter, and, if such a contention is available, it must be raised by answer; nor upon such a motion will the court pass upon the question whether the president and trustee for the stockholders has authority to authorize an action by the corporation.</p> <p>8. Same — Insufficient description of a party’s residence.</p> <p>A description of the residence of an individual plaintiff, as being in the “ city, county and state of New York ”, is too vague.</p>

<p>1. Bill of particulars — Denied where no answer has been served.</p> <p>Where no answer has been served, a motion by the defendant for a bill of particulars is premature; unless it is made apparent that it is necessary to enable him to frame his answer; but the application may be renewed after issue joined.</p> <p>2. Services — Inconsistent complaint made more definite and certain.</p> <p>A complaint, for services alleged to be worth a certain sum, and to have been rendered “ in and about the promoting and sale ” of certain real estate, which, after alleging that the plaintiff has performed all the conditions upon his part, states that the defendant prevented him from completing the negotiations to his damage in a sum named, must be made more definite and certain. It should show the precise agreement, and also whether the plaintiff intends to claim performance and the earning of an agreed compensation, or whether he merely asks damages because he was prevented from full performance. - ■</p>

The action was ¡to recover a press alleged to have been obtained by the defendant from the plaintiff’s assignor by false and fraudulent representations ‘as to defendant’s solvency. Upon the trial, at plaintiff’s request, it was charged that it was not incumbent upon plaintiff to show actual intent to deceive. • A motion for a new trial was entertained, and upon its determination the following was handed down:

<p>PlAnraEF sought to recover damages for a breach of a contract of sale of merchandise to be manufactured. It appeared that plaintiff was a foreign corporation and that the goods, the subject of sale, were to be manufactured at defendant’s mills in Fall River, Mass. The sale was through bought-and-sold notes, a broker representing both. It was conceded that plaintiff had not complied with the statutory provisions regarding foreign corporations, referred to in the memorandum. The complaint was dismissed for the failure to prove compliance with the statute, and a motion entered for a new trial.</p>

This action is brought to compel the defendant Williams to pay about $10,000 and interest, to the defendant W. A. Matteson as receiver of the Kirkland Iron Go., on the ground that the company paid that sum to Williams, as its president and treasurer, in the payment of his individual claims in contemplation of insolvency, thus giving him an illegal preference over the plaintiff’s assignor, Prof. Theodore W. Dwight, who was also a creditor of the company.

Motion by one of the defendants, Josephine Noble, for an order to set aside the plaintiff’s judgment on the ground that the justice before whom the action was tried is related, within the sixth degree, to another defendant, Abbie Matthews.

<p>1. Habeas corpus — Custody of child — It must be produced in court.</p> <p>The court will not consider the issue, whether a father who has been found guilty of adultery is a fit person to have the custody of his child until the child is produced before the court.</p> <p>8. Same — Removal of child from the state.</p> <p>Where a citizen and resident of the state of New York removes a child from the state in order to avoid the jurisdiction of the court in the matter of the custody of the child, the court, when it can obtain jurisdiction of the child’s custodian, will by order compel the latter to produce the child in court on a day named and will then determine the question of custody. If necessary, the order will be enforced by attachment.</p>

<p>Action for the construction of a will.</p>

The Fire Department of the Village of Richmond Hill was incorporated under the statute applicable to incorporated villages in 1896. Held: and a chief and assistants, other than those then in office, were selected; the council organized, elected a secretary in place of Mr. Davies, and a demand was made on him to turn over the books and property of the corporation, in his hands. He refused, claiming no valid elections had been held.

<p>1. Trial —' Concession that there is a question of fact.</p> <p>Where at the close of the case the defendant fails to move either for a dismissal of the complaint or for the direction of a verdict in its favor, it concedes that there is a question of fact for the jury.</p> <p>2. Same — Exception to denial of a new trial.</p> <p>A mere exception on the trial to the denial of a motion for a new trial, not accompanied by any order entered upon the decision, is ineffectual for any purpose.</p> <p>3. Evidence — Bad character of a party.</p> <p>The bad character of a party cannot be established by the testimony of other witnesses to isolated instances of misconduct. A witness who has no knowledge, derived by himself from association with the people in the community in which a party has resided, as to what the party’s reputation for truth and veracity was, is incompetent to testify thereto, nor can he testify to what two other persons, whom he mentioned, told him that such reputation was.</p>

<p>Appeal from a judgment of the General Term of the City Court, affirming a judgment of the Trial Term, rendered on the verdict of a jury, in favor of defendant.</p>

<p>Appeal from a judgment of the General Term of the City Court, affirming a judgment of the Trial .Term, entered on the verdict of a jury, in favor of the plaintiff.</p>

<p>Reabgdment of an appeal from an order of the General Term of the City Court, affirming an order of the Special Term, opening defendant’s default.</p>

Appeal by the plaintiff from an affirmance by the General Term of the City Court of New York of a judgment rendered by the court, without a jury, in an action to foreclose a mechanic’s lien. The opinion states the material facts.

Appeal by the defendant from an. affirmance, by the General Term of the City Court of New York, of a judgment entered upon the direction of a verdict in favor of the plaintiff at Trial Term. The nature of the action and the material facts are stated in the opinion.

Appeal by the defendant from the affirmance by the General Term of the City Court of Hew York of a judgment in favor of the plaintiff, entered upon the verdict of a jury. The nature of the action and the material facts are stated in the opinion.

Appeals from judgments rendered in favor of the plaintiffs in each of the above actions in the Municipal Court of the city of New York, borough of Manhattan, fourth district.

<p>1. lease — An assignee is liable only for such, breaches as occur during his term.</p> <p>An assignee of a lease, who has not assumed its covenants, to pay taxes and water rates, is only liable to the landlord upon such breaches as occur while the assignee is the owner of the term. Such liability is predicated upon privity of estate, and is of the same nature in the case of a covenant to pay taxes and water rents as in the case of a covenant to pay rent.</p> <p>2. Same — Right of assignor to recover of assignee, taxes and water rates paid by the landlord, although primarily chargeable to the assignor — Interest on water rates.</p> <p>.If the original lessee pays to his lessor, taxes and water rents which the lessor has paid, because the assignee in possession improperly failed to do so, the original lessee may, without an assignment from the lessor of his claim therefor, recover the same of the assignee.</p> <p>Taxes are not payable until they are confirmed.</p> <p>SemUe, that where Croton water rates have become due and payable in the city of New York, while an assignee of ia lease is in possession, the landlord, or an assignor who has repaid the landlord their amount, may recover of the assignee the whole amount of the water rates with interest from the time when the assignor paid their amount to the landlord, although the assignee assigned the lease two months later. ,</p>

<p>1. Trial — Exception to a refusal to dismiss tire complaint on plaintiff's case.</p> <p>An exception to the denial of a motion to dismiss the complaint, made at the close of the plaintiff’s case, is of no avail where the defendant, at the close of her own case, failed to renew the motion or to ask the direction of a verdict in her favor.</p> <p>2. Appellate Term — Will not review the denial of a motion for a new trial in a New York Municipal Court.</p> <p>An order of the Municipal Court of the city of New York denying a motion for a new trial, made under section 999 of the Code of Civil Procedure, is not reviewable by the Appellate Term, as such a review by it is permissible only where a new trial is granted.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Eew York, borough of Manhattan, first district.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Rew York, borough of Manhattan, tenth district.</p>

<p>Appeal from a final order in summary proceedings made in the Municipal Court of the city of Mew York, borough of Manhattan, eighth district.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Hew York, borough of Manhattan, first district.</p>

Aureal from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, borough of Manhattan, first district. !

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, borough of Manhattan, first district.</p>

<p>Warehousemen — Negligence — When the bailor must make out more than a prima facie case of negligence.</p> <p>Proof of a contract of storage, of the receipt by a warehouseman of the goods and of injury to them by moisture, makes out a prima facie case of negligence; but where the warehouseman accounts upon the trial for the damage in a manner which permits an inference that he has not been negligent, the bailor must resume his proofs and re-assume the burden of establishing by affirmative evidence that, the warehouseman has been negligent.</p>

<p>.Appeal from a judgment of the Seventh Municipal Oourt, borough of Manhattan, rendered on the verdict of a jury, in favor of plaintiffs.</p>

<p>Services — Illegal contract that a woman shall serve liquors — Illegality shown under a general denial alone.</p> <p>A contract that a woman, not a member of her employer’s family, should serve wines and liquors to customers on the premises is illegal under the Liquor Tax Law as amended (Laws of 1897, chap. 312, § 31, subd. f); and the defense of illegality, although not pleaded specifically, may be raised under a general denial.</p>

<p>Appeal from a judgment of the Eleventh Municipal Court, borough of Manhattan, in favor of the plaintiff.</p>

<p>3. Lease — Surrender and acceptance.</p> <p>A stranger cannot accept for the landlord a surrender of leased premises.</p> <p>g. Same — Effect on rent payable in advance.</p> <p>A surrender and acceptance does not affect the right of the landlord to recover rent payable In advance, which accrued before the surrender was accepted.</p>

<p>Appeals by both parties from a judgment of the First Municipal Court, borough of Manhattan, in favor of the plaintiff.</p>

<p>Appeal from a judgment of the Second Municipal Court, borough of Manhattan, in favor of the defendant.</p>

<p>1. "Verdict — Wb.en it should not be directed.</p> <p>Where there is an issue of fact, the court is not authorized to direct a verdict for the defendant unless the testimony he offers is so certain and convincing that no reasonable mind could come to any but one conclusion.</p> <p>2. Evidence — Testimony not balanced by one witness on each: side.</p> <p>The testimony in a case is not necessarily balanced because one witness swears one way and one another way; and ordinarily unless there is some great discrepancy, between the testimony and established facts, which necessarily shows that one or the other witness is mistaken or is nor telling the truth, the question must be decided precisely as though there was more than one witness on each side.</p>

<p>Benefit societies — Consent to a change in the beneficiary — Failure to perform conditions precedent.</p> <p>Where the constitution of a benefit association provides that a member may designate, as beneficiary, one not a relative upon giving good and sufficient reasons for such designation and also upon the consent of the association, the latter condition is a proper requirement.</p> <p>Where the member upon the death of his wife, the original beneficiary, applies for a change of designation without giving any reasons therefor, and the application is not acted upon by the association before his death, the association cannot be said to have prevented performance nor to have arbitrarily denied the member’s rights.</p> <p>Where the member dies without having made a valid designation, the provisions of the constitution of the association, that the death benefit shall pass to his personal representatives, control and exclude the person ineffectually attempted to be designated as beneficiary by the member.</p>

Appear by the tenant from a final order in summary proceedings made by one of the justices of the Municipal Court of the city of New York, while sitting in the borough of Manhattan, eleventh district, in favor of the landlord, upon the pleadings. The material facts are stated in the opinion.

<p>Appeal from a judgment rendered in favor of the plaintiffs in the Municipal Court of the city of New York, borough of Manhattan, tenth district.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, borough of Manhattan, eleventh district.</p>

<p>Arreal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, rendered in favor of defendant.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Eew York, borough of Manhattan, second district.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, borough of The Bronx, second district.</p>

<p>Appeal from a judgment of the First Municipal Court, borougn of Manhattan.</p>

<p>Appeal from Municipal Court of the city of Eew York, borough of Manhattan, fourth district.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, borough of Manhattan, fourth district.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Eew York, borough of Manhattan, fifth district, rendered in his favor against the defendant upon a trial had before the court without a jury.

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Eew York, borough of Manhattan, first district.</p>

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, rendered in her favor against the defendants upon a trial had before the court without a jury.</p> <p>Action for work, labor and services performed as a female-employee other than a domestic.</p> <p>The pleadings were oral, and the answer was a general denial and alleged a breach of contract.</p> <p>By consent of the defendants’ attorney the justice gave plaintiff a judgment for the full amount claimed, but refused to allow the extra costs provided by section 1424 of the Consolidation Act and sections 3131 and 3222 of the Code of Civil Procedure, or to insert in the judgment a provision that an execution against the person may issue pursuant to section 3221 of the Code of Civil Procedure. The plaintiff then brought on this appeal.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of ISTew York, borough of The Bronx, second district.</p>

<p>Appeal from an order of the General Term of the City Court, affirming an order of the Special Term denying a motion of the defendant to resettle the case on appeal.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, borough of Manhattan, third district.</p>

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of Eew York, borough of Manhattan, seventh district, rendered in favor of the plaintiff by the court, without a jury.</p> <p>The action was originally brought to recover $233.33 for the defendant’s alleged use and occupation of the premises known as Eos. 509, 511 and 513 Water street, and Eos. 70, 72, 74 and 76 Eutgers street in the borough of Manhattan, from the 2d day of September, 1897, to and including October 11, 1897; but, upon the trial, the complaint was amended to conform to the proof, by setting up a cause of action on a contract of hiring.</p> <p>The pleadings were oral and the answer a general denial.</p> <p>The material facts are stated in the opinion.</p>

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of Rew York, borough of Manhattan, first district, rendered upon a trial had before the court without a jury.</p>

<p>Appeal from a judgment of the Fourth Municipal Court, borough of Manhattan, in favor of defendant.</p>

<p>Appeal from a judgment of the General Term of the Oity Court, affirming a judgment of the Trial Term, in favor of plaintiffs.</p>

<p>Appeal by the defendant from a judgment for $80, rendered in the Municipal Court of the city of New York, borough of Manhattan, ninth district, upon a trial had before the court without a jury.</p> <p>The nature of the action and the material facts are stated in the opinion.</p>

<p>Appeal from a judgment in favor of the plaintiffs rendered in the Municipal Court of the city of Eew York, borough of Manhattan, tenth district.</p>

<p>Appeal from a judgment of the Fourth Mimicipal Court in favor of the defendant.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Hew York, borough of Manhattan, first district.</p>

<p>Appeal from a judgment rendered inj favor of the plaintiff in the Municipal Court of the city of New York, borough of Manhattan, eighth district.</p>

<p>Appeal by the petitioner from a final order in summary proceedings dismissing the petition of the petitioner, made by the justice of the Municipal Court in the city of New York, borough of Manhattan, tenth district, upon a trial had without jury.</p> <p>These proceedings were instituted to regain the possession of a certain lot situated oh the! west side of the Boulevard, 25 feet 7 inches west of West Einety-first street, in said borough, claimed to have been forcibly entered upon by the defendant, and who, it is further claimed, forcibly held the same.</p>

<p>Appeal from a judgment rendered in favor, of the defendant in the Municipal Court of the city of Eew York, borough of Manhattan, eighth district.</p>

<p>Ajpbeal by the defendant from a “ decision ” of the justice of the Municipal Court of the city of New York, borough of Manhattan, fourth district. The exact phraseology of the notice of appeal is hereinafter set forth.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Hew York, borough of Manhattan, first district.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Hew York, borough of Manhattan,, first district</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, borough of Manhattan, ninth district.</p>

<p>Appeal from a judgment of the Municipal Court of the city of Rew York, borough of Manhattan, first district, dismissing the complaint.</p>

<p>Appeal from a judgment of the Fourth Municipal Court, borough of Manhattan, in favor of the plaintiff.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of Rew York, borough of Manhattan, fourth district.</p>

<p>Appeal by the plaintiffs from a judgment in their favor,-entered on the verdict of a jury, and from an order denying a motion to set aside the verdict, and for a new trial.</p>

<p>Appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial.</p>

<p>Appeal from an order eompelling plaintiff to accept notice of appeal to the Appellate Term.</p>

<p>Appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial.</p>

The appeal from the judgments in actions Eos. 2, 3 and 4 involve the same questions discussed in the opinion rendered in action Eo. 1. ! [

<p>Appeal from a judgment and order dismissing complaint.</p>

<p>Appeal from an order granted at Special Term.</p>

<p>Appeal from judgment of dismissal of plaintiff’s complaint.</p>

<p>Appeal from order making one Alexander McKeown party defendant herein in place of the defendant “ The Bank for Savings.”</p>