Volume 25 — New York Supplement

<p>Evidence — Weight and Sufficiency.</p> <p>A witness testified that he employed plaintiff to work for defendant for the same wages as had been paid to a former employe. Plaintiff denied that the witness said anything to him about wages. It was shown that plaintiff’s services were much more responsible and valuable than those of the former employe. Held, that the referee’s finding for plaintiff would not be set aside by an appellate court as against the weight of evidence, notwithstanding some admissions by plaintiff, and the witness’ apparent disinterestedness.</p>

Proceeding for the judicial settlement of the accounts of Charles T. Redfield, as administrator of the estate of Anna Maria Redfield, deceased. From a portion of the decree which adjudicated on the conflicting claims to a distributive share of said estate, Louis Marshall appeals.

<p>1. Summary Proceedings—Jury Trial—Bill oe Particulars.</p> <p>Code Civil Proc. § 2244, relating to pleadings in summary proceedings, provides that at the time when a precept is returnable the person in or claiming possession may file “a written answer, verified in like manner as verified answers in actions in the supreme court, denying generally the allegations, or specifically any material allegations of the petition.” No other answer or pleading by defendant in such proceeding is authorized by statute. Section 2247 provides that defendant may, on tendering or paying the, proper amount of costs, demand a jury trial. Held, that where, in summary proceedings to remove a tenant for nonpayment of rent, defendant filed a verified answer denying all the allegations in the petition, and, alleging generally payment of all rent due, and tendered the proper fees for a jury, and demanded a jury trial, it was error for the justice, on defendant’s refusal to comply with an order requiring him to furnish a bill of particulars of the alleged payments, to refuse defendant a jury trial, and render judgment against him.</p> <p>2. Same—Power oe Justice’s Court to Strike Pleading.</p> <p>A court of limited, qualified, or statutory jurisdiction has no inherent power to strike out or ignore an entire pleading because of failure to comply with an order for a bill of particulars, but is limited to the imposition of the penalty prescribed by Code Civil Proc. § 531, which provides that the party refusing to give such bill of particulars is precluded from giving evidence as to the subject on which it was demanded.</p>

Action by Alanson S. Page and another against Anton G-. Methfessel on an account for goods sold and delivered by plaintiffs to Philip Michel, Agent. lYom a judgment entered on the report of a referee in favor of plaintiffs, defendafit appeals.

Action by Frances T. Brown against Alonzo Blackman, individually and as executor of the will of Lester Blackman, deceased, to establish plaintiff’s title to a certain bond and mortgage in possession of defendant, and for a decree requiring him to deliver the same to her, and account for such sums as he had received thereon. Defendant claimed to hold such bond and mortgage as trustee for benefit of plaintiff, under a trust created by such will.

<p>Appeal from circuit court.</p> <p>Action by Isaac P. Powers against Hiram Knapp. Defendant had judgment, on the verdict of the jury, dismissing the complaint, from which, and an order denying a motion for a new trial on the minutes, plaintiff appeals.</p> <p>The action was brought against defendant as a stockholder of the Winslow & Knapp Lumber Company, organized under Laws 1848, c. 40. Section 10 of that act, and on which the action is based, provides: “All the stockholders of every company incorporated under this act, shall be severally individually liable to the creditors of the company in which they are stockholders, to an amount equal to the amount of stock held by them respectively for ah debts and contracts made by such company, until the whole amount of capital stock fixed and limited by such company shall have been paid in,” etc.</p>

<p>Trespass—Laying Pipe in Street—Injury to Adjoining Lot—Damages.</p> <p>In an action for injuries to plaintiff’s premises, resulting from the leakage of salt water from a pipe laid by defendant, without authority, in the adjacent highway, in which plaintiff owned the fee, the measure of recovery is the damage sustained up to the time of the action, and evidence as to the permanent depreciation in the value of the premises because of the presence of the leaking pipe is inadmissible.</p>

<p>1. Life Insurance—Disposal by Will—Residuary Clause.</p> <p>A policy on the life of testatrix’s husband, payable to her, or, if she be not alive at the time of his death, to her children, passes by a residuary clause of her will; she being childless, and her husband surviving her.</p> <p>2. Same—Sale by Executors.</p> <p>Such policy is, like other personal property bequeathed by the residuary clause, subject to the control and disposition of the executors.</p> <p>8. Same—Character of Sale.</p> <p>To show good title in a purchaser from an executor, there being no question of good faith, it need not be shown positively that the executor assumed to sell the property as executor.</p> <p>4 Same—Transfer by Executors—Consent of Husband.</p> <p>Laws 1873, c., 821, permits a married woman, having no children, to dispose by will, before the death of her husband, of a policy on his life, and provides that the person to whom it is so transferred shall have the same rights in it as the testatrix would have had, had she survived her husband. Laws 1879, c. 248, permits her to transfer it in any maimer, even though she has children, provided her husband consent In writing thereto, and in case of her death permits it to be disposed of by her legal representative, with the written consent of her husband. Held, that where a woman without children, dying before her husband, disposes of a policy on his life by the residuary clause of her will, her executors may transfer the policy without the written consent of her husband.</p> <p>•5. Admission op Evidence—Harmless Ebbob.</p> <p>The admission of improper evidence of a fact is not ground for reversal, where there was other sufficient evidence to establish the fact, and none to disprove it.</p> <p>MERWIN, J., dissenting.</p>

circuit court. Action by John H. Ehrehart against Palmer M. 'Wood. From a judgment on a verdict for plaintiff, and from an order denying a new trial on the minutes, defendant appeals.

Action by William A. Sweet against Henry J. Mowry and others, composing the Syracuse water board, the city of Syracuse, and others, for an injunction. From an order confirming in part, and disallowing in part, the report of the referee appointed, after judgment was rendered in favor of defendants, to ascertain the amount of damages that defendants sustained in consequence of a temporary restraining order, both parties appeal.

<p>Insurance—Condition of Policy—Increase of Hazard.</p> <p>A policy of insurance provided that it should be void “if the hazard be increased by any means within the control or knowledge of the insured.” The property insured was a business block, portions of which were occupied for various purposes, and other portions were vacant. After the policy was issued, the vacant portions were leased for certain manufacturing purposes. Held, that such provision meant an increase of hazard by a use of the building, or otherwise, beyond that existing or contemplated by both parties when the contract was made, and it was a question of fact whether the hazard was so increased.</p>

Action by Theresa Scherff against Theodore Jacobi and Oath-. erine Jacobi to recover a certain sum of money loaned by plaintiff to defendants, with interest. From a judgment dismissing the complaint, entered on the verdict of a jury directed by the court in favor of defendants, plaintiff appeals.

<p>Appeal from circuit court, Chenango county.</p> <p>Action by Jane D. Rogers against Thomas Dwight. From a judgment for defendant, and an order denying a motion for a new trial, plaintiff appeals.</p> <p>Plaintiff alleges that on the 3d of August, 1885, she was the owner of 13 dairy cows, of the value of $325, six yearling heifers, of the value of $90, and two yearling bulls, of the value of $20, and that the defendant on that day seized, carried away, and converted the property to his use. In the defendant’s answer it is alleged that on the 15th of December, 1884, one James O. Hammond owned the cows and personal property described in the complaint, and, to secure an indebtedness to the defendant of about $1,000, “the said James O. Hammond duly sold and assigned the same to this defendant by a chattel mortgage duly executed as security for the payment of the said $1,000, payable on or before April 1, 1886; * * and that on the 17th day of December, 1884, this defendant caused the said chattel mortgage to be duly filed and entered in the town clerk’s office;” and that, after the removal of the mortgagor and his wife to the town of Oxford with the said property, “this defendant caused a copy of said chattel mortgage to be duly filed and entered in the office of the town clerk of the said town of Oxford. That the said chattel mortgage and the said copy, respectively, have since remained on file and duly entered in the said offices of the said town clerks of the said towns respectively.” It is also alleged that thereafter the defendant seized the property under the chattel mortgage; sold the same at public auction; “and that on such sale this defendant became the' purchaser of such property.” It is alleged that the plaintiff recovered a judgment against Hammond, and issued an execution thereon, which was returned wholly unsatisfied, and that the plaintiff commenced supplementary proceedings against Hammond before the county judge of Chenango county, who appointed a referee to examine Hammond as to his property, and take such evidence as might be produced, and the 12th day of June, 1885, was appointed for taking such evidence at Oxford. It is also alleged that the plaintiff knew that defendant’s mortgage was filed in the clerk’s office, and that on or about the 11th day of June, 1885, plaintiff and her attorney “caused a subpoena duces tecum to be issued and served upon this defendant, commanding him, under severe penalties, to bring and produce the said chattel mortgage before the said referee on the said 12th day of June.” It is also alleged that in pursuance of such subpoena the defendant, on the 12th of June, informed the clerk of such subpoena, and obtained permission of him to take and produce said chattel mortgage before the referee “as his agent or deputy.” It is also alleged “that on the 17th day of June, 1885, the said plaintiff and her said agent and attorney procured the sheriff to levy upon the said property by virtue of the said execution, and well knowing that the said James O. Hammond did not own any interest therein.” It is also alleged that the sheriff, on the 81st of July, 1885, at the request of the plaintiff, sold the property mentioned in the complaint, and at the sale the plaintiff assumed and pretended to become the purchaser thereof. Upon the issues framed by the pleadings, the question was presented at the trial whether the plaintiff was the owner of the property, or whether the defendant was the owner thereof, by virtue of his chattel mortgage and the foreclosure thereof and purchase thereunder. A verdict was rendered for the defendant. A motion was made for a new trial- on the minutes, and denied, an opinion being delivered by the trial judge. Judgment was entered for the defendant dismissing the plaintiff’s complaint, and the plaintiff appeals from the judgment and the order denying a motion for a new trial.</p>

Action by Eliza Bird and others against Samuel Pickford and others for a construction of the residuary clauses of the will of William Baltz, deceased. From a judgment in favor of defendants, plaintiffs appeal.

Action by Louisa Hayden against Mary R. Pierce, as executrix of the last will and testament of Eliza W. Brown, deceased. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on a case and exceptions, defendant appeals.

Action by Charles N. Williams, a taxpayer, against Nathaniel -0. Boynton, county clerk of the county of Essex, to enjoin him from ■doing any act for the purpose of submitting to the electors the question of removing the county seat. The complaint was dismissed, and plaintiff appeals.

Action by Delia Keegan against Bussell Sage for breach of marriage promise. Plaintiff moves to strike out a portion of the answer as irrelevant, redundant, and scandalous.

<p>Bail—Discharge of Forfeited Recognizance.</p> <p>Where, after indictment, defendant is discharged, together with his bail in the indictment, a judgment on a forfeited recognizance for the appearance of defendant on his original examination will be vacated.</p>

Action by William Strothers against the New York .Elevated Raikmd Company and the Manhattan Railway Company to restrain the maintenance and operation of defendants’ elevated railway in front of the premises No. 315 East Thirty-Fourth street, New York city, and to recover damages sustained by plaintiff by reason thereof.

Action by Michael Kirchner against Francis J. Schmid to have canceled of record a mortgage alleged to have been procured by the fraud of defendant’s agent, and to be void for want of consideration. Judgment for defendant.

Action by John L. Lindheim against the New York Elevated Railroad Company and the Manhattan Railway Company to restrain the maintenance and operation of defendants’ elevated railway in front of the premises Nos. 317, 319, and 321 East Thirty-Fourth street, New York city, and to recover damages sustained by the plaintiff by reason thereof. From a judgment in favor of plaintiff, defendants appeal.

Action by William J. Coyle against the Metropolitan Life Insurance Company to recover the amount payable on the death of the insured to plaintiff as beneficiary in a policy of insurance made by defendant. There was a judgment for plaintiff, and defendant appeals.°

Action by Azema Robinson, administratrix of Jean Wildner, deceased, against ■the Manhattan Railway Company, to recover damages for the death of plaintiff’s intestate, by reason of the alleged wrongful act of defendant. The court dismissed the complaint at the close of plaintiff’s case, on the ground that plaintiff had not shown that deceased was free from contributory negligence, and there was no evidence that defendant was guilty of negligence. Plaintiff appeals.

Action by Lazarus Straus and others against Wiarren Sage and others to charge defendants, as trustees, with corporate debts. Defendant Sage demurs to the complaint.

Action by Patrick B. McEntyre against Charles A. Tucker to recover the value of the work performed by the plaintiff for the defendant under a contract for the erection and completion of a frame house and stable at Islip, L. I. The referee found that the defendant had waived the requirements in the contract that Freeman should give certificates of the work done, or that said work, or any part, was done to his satisfaction, and reported that the. plaintiff was entitled to a…

Action by Martin Reynolds and Philip F. Donohue against Thomas Patten as owner, and James J. Fleming as contractor, to foreclose a mechanic’s lien claimed by the plaintiffs pursuant to the provisions of the mechanic’s lien law (Laws 1885, c. 342) for the unpaid balance of the purchase price of certain materials sold to the contractor, and alleged to have been used by him in making alterations under a contract with the owner.

Action by James Henry Parkinson, an infant, by a guardian ad litem, suing as a poor person, against John Scott. Plaintiff, having become satisfied that he has sued the wrong person, moves for leave to discontinue the action without costs.

<p>Actions by Charles H. Smith and others against Warren Sage and against John M. Tate, respectively. Defendants demur to the complaints.</p>

Action by the Hall Steam-Power Company against the Campbell Printing Press & Manufacturing Company. The court directed a verdict in favor of plaintiff, and defendant moves for a new trial on ■the minutes.

Action by Gilbert Murdock, as administrator, and others, against Harriet Robinson and others. From a judgment entered on a decision of the special term after the trial of certain issues of fact by a jury, Clarissa Waterman, Mary Lamb, and Harriet Robinson separately appeal.

Action Tby J. Emmett Wells, as executor of Samuel H. Hindsdell, deceased, against the town of Salina and others, to charge said town for legal services rendered by one Stephens. From a judgment that the defendant the town of Salina pay the said plaintiff the sum of $6,665.96, with interest, besides the costs, and that the board of town audit of said town audit and allow such judgment a,s a demand against the town, defendants appeal.

Exceptions from circuit court, Cayuga county. Action by William H. Crandall against the Lehigh Valley Bail-road to recover for personal injuries. A verdict was directed for defendant, and plaintiff moves for a new trial on a case and exceptions ordered to be heard at general term.

Action by Jonathan I. Slater against Casper J. Drescher to recover for services as an attorney. Verdict for defendant for no cause of action. From an order setting it aside as “against the evidence and the weight of evidence,” and granting a new trial, defendant appeals.

Application by the Buffalo, Bellevue & Lancaster Railroad Company to appoint commissioners to determine the places of crossing the-tracks of the New York, Lake Erie & Western Railroad Company and of the Buffalo, Mew York & Erie Railroad Company, and the compensation therefor. The application was granted, and, from, an order denying defendants’ motion to set the order aside, they appeal.

<p>Contract of Employment—Assumpsit.</p> <p>Where plaintiff contracts to work for defendant for a year at a fixed sum, payable weekly, and by mutual agreement the contract is terminated, it has become executed, and plaintiff can recover a balance due on the weekly payments in assumpsit.</p>

<p>1. Corporations—Certificates of Stock—Validity.</p> <p>Though a by-law prescribes a certain mode of cancellation and disposition of old certificates of stock before the issue of new ones, the corporation may, as regards a purchaser of stock who is under no duty to see the by-law complied with, waive the requirements thereof, and, without canceling the old certificates, issue new ones in their place, which will be valid in the hands of a person taking them in good faith and for value.</p> <p>2. Same—Invalid Certificates—Negligence of Corporation.</p> <p>A corporation is liable to one who in good faith takes in pledge from an employe of the corporation certificates of its stock which were surrendered for the purpose of transfer, but which, not being canceled, as the by-laws required, before the issue of new certificates, we*re taken by the employe from the place in which they were kept.</p> <p>3. Same—Bona Fides of Purchaser.</p> <p>A' person taking in pledge from an employe of a corporation, who has no power in regard to the issuance of stock, certificates of stock therein, apparently genuine, issued to persons having no connection with the corporation except as stockholders, and indorsed in blank by such persons, is not affected with notice that other certificates had been issued in their place; nor is he guilty of contributory negligence in not investigating the pledgor’s title.</p> <p>4. Same.</p> <p>The pledgee’s failure to observe that one of the four certificates so taken in pledge, though indorsed by the person, to whom it was issued, containéd the name of another person as the attorney authorized to make the transfer, was not such negligence as to prevent his recovery as to the other certificates, which were duly indorsed without designating an attorney to make the transfer.</p>

Action by Clara J. Bogart, as administratrix of Hoyt M. Bogart, deceased, against the Delaware, Lackawanna & Western Railroad Company. From a judgment for plaintiff entered on a verdict, and from an order denying defendant’s motion for a new trial, and from an order denying defendant’s motion to set aside the verdict on the ground of irregularity, defendant appeals.

<p>Appeal from special term, Erie county.</p> <p>Action by Katharine Bartow and others against Jonathan Sid-way, Franldin Sidway, and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from circuit court, Erie county.</p> <p>Action by Antonina Kowalewska, as administratrix of the estate of Michael Kowalewska, deceased, against the New York, Lake Erie & Western Railroad Company, to recover for the death of plaintiff’s intestate, caused by defendant’s negligence. From a judgment entered on the verdict of a jury in favor of plaintiff, and from an order denying a motion for a new trial on a case and exceptions, defendant appeals.</p>

Replevin by John J. P. Bead against Charles N. Brayton to recover possession of certain certificates of deposit in his possession under an order of the court of which he is clerk. From an order staying the prosecution of the action until certain interested parties are brought in, plaintiff appeals.

Action by Louis F. French against Frank Aulls for personal injuries sustained through defendant’s alleged negligence. From a judgment for plaintiff, entered on a verdict, and from an order denying a new trial, made on the minutes of the court, defendant appeals.

Action by Richard N. Evans and Anna S. Evans against the Keystone Gas Company. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial made on the minutes of the trial judge, defendant appeals.

<p>Appeal from Erie county court.</p> <p>Action by Charles Lachman against Elmer V. Irish. From a judgment entered on verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.</p> <p>The complaint alleged that the defendant was indebted to the plaintiff, also to Anderson Michael, Richard Leadbitter, James R. Clark, Alexander Carver, Edward Lee, Elijah B. Harriman, William Lansdell, John C. Reinhardt, and Peter A. Nie severally, for work, and that the said persons other than the plaintiff had assigned their claims to him. The plaintiff recovered for his work, also for that of Carver, Lee, Michael, and Harriman, amounting with interest to $75.87 and costs. The defendant, by his answer, put in issue the allegations of the complaint.</p>

Action by Charles F. Ackerson, as supervisor of the town of Somerset, against the board of supervisors of Niagara county, and John J. Arnold, as county treasurer. From a judgment for plaintiff, (18 N. Y. Supp. 219,) defendants appeal.

<p>Appeal from circuit court, Monroe county.</p> <p>Action by the Rochester Distilling Company against Mary M. Devendorf to recover possession of personal property sold by pla'ntiff to defendant’s husband. Stewart L. Devendorf, and by him transferred to defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.</p>

■ Action by Leonard Vogel and another against Valentine F. Whit-more and others to foreclose a mechanic’s lien. From a judgment for plaintiffs, defendant Whitmore and others appeal.

<p>1. Injury to Employe—Contributory Negligence.</p> <p>Plaintiff, a minor, was engaged in running an elevator in a manufacturing building. He left the elevator on the fourth floor for a few minutes, in disobedience of instructions. It being time to quit work, the engineer took the elevator to the first floor. Plaintiff returned to the elevator door on the fourth floor, opened the door, and, without looking, backed in through it, and fell to the first floor. It was light at the time, ■and, if plaintiff had looked, he could have seen that the elevator had been moved. Held, that he was guilty of contributory negligence. -</p> <p>2. Same.</p> <p>The fact that the door did not have automatic fastenings, as provided by law, did not excuse plaintiff, he knowing such fact, and it being his-duty to guard against accidents caused thereby.</p>

<p>Appeal from Erie county court.</p> <p>Action by Sarah E. Wheat against Lillie E. Lord. From a judgment for defendant, plaintiff appeals.</p>

Action by Charles Jones against Crin S. Bacon, as surviving executor of James McKechnie, deceased. There was a verdict in favor of defendant, and plaintiff moves for a new trial, on exceptions taken at circuit and ordered to be heard at general term in the first instance, as provided by Code Civil Proc. § 1000.

Proceedings by the city of Buffalo to acquire lands for park purposes. From an order overruling objections to the appointment •of commissioners to appraise its lands, and appointing such commissioners, the Buffalo, Rochester & Pittsburgh Railroad Company •appeals.

<p>Trusts—Declaration op Trust—Sufficiency op Evidence.</p> <p>In an action by a husband against a wife to establish a trust in favor of the husband and his two children in certain realty vested in the wife, it appeared that the premises were paid for by plaintiff, who was a lawyer, and who directed that the deed be made to his wife. Plaintiff' testified that his wife said to him (he being in poor health at the time) that it would be a good thing, if anything happened to him, for her and the children to have a home, and that the title had better be taken in her name. He assented. Without her knowledge he obtained the deed, and recorded it. Afterwards he gave the deed to his wife, saying: “You keep-that. If anything happens to me, you are to take care of it for yourself and the children;, and as long as I live I will pay the taxes and insurance, so there will be no expenses.” Helé, that the evidence was not sufficient to establish a trust in favor of the husband; and that, as the children were-not parties, their right, if any, could not be determined in the action.</p>

Action by Annie L. McCahUl against Thomas J. McCahill for •separation and alimony. The special term gave judgment for the .plaintiff. Defendant appeals.

Action by Israel Susmon against Grace N. Wyard to recover the possession of certain personal property alleged to belong to the plaintiff, and wrongfully detained by the defendant. The jury rendered a verdict for the plaintiff. From the judgment entered thereon, defendant appeals.

Action by Charles Kinyon and others against Albert Kinyon. From a judgment entered on the findings and decision of the court, plaintiffs appeal.

Action by Thomas O. French against the Western New York & Pennsylvania Railroad Company. From a judgment of the county court affirming the judgment of a justice’s court, defendant appeals.

Action by Mary Menneiley against the Employers’ Liability Assurance Corporation, Limited. Plaintiff moves for judgment on a verdict directed by the court at circuit subject to the opinion of thi general term on a case to be made by her.

Application by the highway commissioners of the town of Niagara to' have flagmen placed at certain crossings. From an order denying a motion to dismiss the petition, the New York Central & Hudson River Railroad Company appeals.

Action by the Auburn Button Company against Philip L. Sylvester, impleaded with E. Delevan Woodruff and J. Herman Wood-ruff, to restrain Sylvester from selling or incumbering certain letters patent issued to the other defendants in 1882, and by them assigned to plaintiff in 1883. From a judgment dismissing the complaint, plaintiff appeals. The improvement covered by the letters patent was useful in the manufacture of buttons from plastic material.

Action by Henry Tanner against the Buffalo Railway Company. From a judgment dismissing the complaint, entered on a verdict, and from an order denying a motion for a new trial, made on the minutes of the court, plaintiff appeals.

Action by Pierre Meisch against the Rochester Electric Railway Company. From a judgment entered on a verdict on the trial of an appeal from the municipal court of Rochester for a new trial, and from an order denying a motion for a new trial on the minutes of the court, defendant appeals.

Action by Betsy A. Vaughn against the Buffalo, Rochester & Pittsburgh Railway Company. From an interlocutory judgment, entered on a decision of the court overruling a demurrer to the complaint, defendant appeals.

<p>1. Limited Partnerships—Renewal—Death of Partner.</p> <p>Under 4 Rev. St. (8th Ed.) p. 2493, (Limited Partnership Act,) § 12,. providing that the death of a partner, “whether general or special, shall be deemed a dissolution of the partnership,” unless it is otherwise provided In the articles, in which event the partnership may be renewed or continued under certain conditions, a limited partnership cannot be continued after the death of a partner unless the articles provide therefor, since a partnership which has been dissolved has no existence which can be continued.</p> <p>2. Same—New Partner.</p> <p>A certificate of renewal which recites the introduction of a new general partner is ineffectual, as the statute (section 12) provides that an alteration in the names of the general partners shall dissolve the partnership.</p> <p>3. Same—Effect of Inoperative Attempt to Renew.</p> <p>An attempted renewal, which is ineffectual because the certificate recites the introduction of a new general partner, cannot create a new limited partnership where the recital of the certificate as to the contribution of the special partner is that the whole amount contributed by him remains in the partnership, as the statute requires the contribution of the special partner to be paid in cash, and this requirement cannot be answered by turning, over property of the value of such contribution.</p> <p>4. Same—Estoppel to Deny Limited Partnership.</p> <p>4 Rev. St. (8th Ed.) p. 2403, (Limited Partnership Act,) § 12, provides that if the business of the concern is carried on after any alteration in the names of the general partners, it shall be deemed a general partnership. Held, that where a certificate of renewal, which is ineffectual because it; recites a change in the names of the general partners, is filed, the partners are not estopped to deny that they constitute a limited partnership, if there is no evidence that any creditor gave credit to the firm as being a limited partnership, or in any way acted on the faith of any representations that it was such.</p>

Action by Anna Brayton, administratrix, against the New York, Lake Erie & Western Railroad Company. From an order denying defendant’s motion to set aside the service of the summons, defendant appeals.

Proceeding by the Buffalo, Bellevue & Lancaster Railroad Company against the New York, Lake Erie & Western Railroad Company and the Buffalo, Few York & Erie Railroad Company for the appointment of commissioners to determine the point and manner of the intersection of each of defendants’ roads by plaintiff’s road, and the compensation to be made therefor. From an order or interlocutory judgment confirming the report of a referee and appointing commissioners, defendants appeal.

<p>Widening Highway—Review of Awards.</p> <p>The awards of commissioners made on an application to widen a highway will not be disturbed by a court of review unless some error of law is apparent.</p>

Action by Lovina O. Collins against Thomas Robinson to recover a balance alleged to be due plaintiff on the sale of a farm and team of horses to defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying his motion for a new trial, made on the minutes, defendant appeals.

Accounting of Howard Soule, George S. Everts, and others, as executors of Lyman Soule, deceased. From an order of the surrogate opening and modifying a decree of his court previously made, said Everts appeals. For decision denying application to revoke probate of will see 27 N. E. Rep. 852, mem., affirming a judgment of the general term of the supreme court, (11 N. Y. Supp. 949, mem.,) which affirmed the decree of the surrogate’s court, (3 N. Y. Supp. 259.)

Action by William Redner against Benjamin F. Jewett. From an order relieving defendant from, imprisonment by virtue of an execution against his person issued in said action, “or by virtue of any other mandate which has been or may be issued” therein, plaintiff appeals.

Action by Frederick E. Cole against the Rome, Watertown & Ogdensburg Railroad Company. Plaintiff was nonsuited at the Monroe circuit, and moves for a new trial on a case and exceptions directed to be heard in the first instance at general term, as provided by Code Civil Proc. § 1000.

Action by Charles A. Hausauer and others against Sarah Dahlman and others. From an order denying defendants’ motion to vacate an injunction pendente lite, defendants appeal.

Action by Emery Nash, as executor of E. Belle Woodin, deceased, against Sarah H. Springstead. From a judgment of the county court reversing the judgment of a justice of the peace, plaintiff appeals.

Action by the ¡Rochester Distilling Company against Martin C. O’Brien for conversion. A verdict for plaintiff was directed, and defendant moves for a new trial on a case and exceptions ordered to be heard in the first instance at general term, as provided by Code Civil Proc. § 1000.

Action by the Empire State Telephone & Telegraph Company against Frank A. Bickford for an accounting. From an order of reference for a hearing and determination of the issues joined, defendant appeals.

Action by Mary Talbot against Stephen Van Rensselaer Cruger and others for damages for fraud. From a judgment entered on an order dismissing the complaint, plaintiff appeals.

Action by William H. Flandrow against Henry B. Hammond. The complaint was dismissed, and plaintiff moved for a new trial on exceptions ordered to be heard in the first instance at general term, as provided by Code Civil Proc. § 1000.

<p>Wills—Construction—Character of Trust.</p> <p>Testator devised Ms residuary estate in trust to pay one-eighth of the income to each of Ms cMldren, of whom plaintiff was one, during their respective lives, recommending the trustees to keep the estate together, but not absolutely commanding it. In a codicil, after stating his intention to change the will only so far as it concerned plaintiff, he directed that the share which by the will was to go to plaintiff should be appropriated to the education and support of the latter’s children, and in place of the persons named in the will as trustees appointed plaintiff trustee 'of such share, to receive and manage it for the use, education, and support of his children. Held, that plaintiff was trustee of the income merely of the eighth share, and not of the principal thereof.</p>

<p>1. Contract—Validity—Restraint op Trade.</p> <p>Defendant, on entering the employment of plaintiffs, customhouse brokers and forwarding agents, as a solicitor of business, agreed that for 12 months after the termination of their relations he would not engage in a similar business in the same city, or within 50 miles thereof, or interfere with plaintiffs’ customers. Held, that such agreement was not void as being unreasonable and in restraint of trade.</p> <p>2. Same—Consideration.</p> <p>The employment of defendant by plaintiffs was sufficient consideration to support such agreement on his part.</p> <p>3. Same—Injunction to Restrain Breach—Evidence.</p> <p>There was evidence that defendant, on leaving plaintiffs’ employment, took a position with another firm in the same city, engaged in the same business, and that he immediately began to solicit custom from persons who had been accustomed to deal with plaintiffs, some of whom then ceased to do so, though they alleged that they would have ceased to do so even if defendant had not solicited the change. Helé, that there was sufficient evidence of damage to justify an injunction to restrain further breaches by defendant of his agreement with plaintiff.</p>

Action by Mary J. Killoran, as administratrix of the estate of John H. E. Killoran, deceased, against Clinton W. Sweet, to recover damages caused by defendant in permitting a policy of insurance on the life of deceased, which was assigned to defendant, to lapse. From a judgment entered on a verdict directed by the court in favor of defendant, plaintiff appeals.

Action by Frank K. Roberts against the Summit Park Company. A nonsuit was granted at the Erie circuit, and plaintiff moves for mew trial, on case and exceptions ordered to be heard in the first instance at general term, as provided by Code Civil Proc. § 1000.

Proceeding by Annabella Babbage, administratrix, etc., against Edward Webster, administrator, etc., to recover a claim against decedent’s estate. Prom an order of the special term allowing costs, as in an action, to defendant, on confirmation of the report of a referee dismissing the proceeding, plaintiff appeals.

<p>1. Fire Insurance—Cancellation of Policy.</p> <p>A fire insurance company, after issuing a “binding slip” continuing a prior policy in force for a year, subject to “tbe original stipulations." cannot cancel the insurance by a letter informing insured that this will be done unless he consents to a reduction of the amount, when the original policy provides for cancellation only after five days’ notice.</p> <p>2. Same—Acquiescence of Insured.</p> <p>But it insured claims in his notice of loss that defendant is liable only for the reduced amount, tenders a premium on an insurance for that amount, and files proof of loss, and brings an action for that amount only, he will be held to have acquiesced in the termination of the original! contract of insurance.</p> <p>8. Same—Offer to Insure—Acceptance.</p> <p>An insurer is not bound by an offer to insure property which is not accepted within six days, when all parties interested are engaged in business in the city in which the property is situated, and no reason is shown for the delay in acceptance.</p>

'Controversy between Frederick J. Lancaster, as plaintiff, and the Amsterdam Improvement Company, as defendant, submitted without action on an agreed statement of facts.

Separate applications for certiorari by Thomas Hopkins, Charles Palmer, John Kinney, Frederick W. Dexheimer, James A. Reynolds, George H. Danforth, and Samuel Trebilcox to review refusal of the board of commissioners of excise of the town of Claverack to grant licenses to relators to sell intoxicating liquors.

Proceeding by Katherine Williams against George H. Huber and another. On denial of plaintiff’s application for an injunction she made a second application therefor, and from an order declining tó grant a reargument and denying the motion for injunction she appeals.

<p>Corporations—Action by Stockholder—Inherent Equity Jurisdiction.</p> <p>Where it appears that a corporation is insolvent, that the directors refuse to institute proceedings for the equal distribution of its assets, and that there is danger of the assets being absorbed by judgments that will be recovered, so as to render an application to the attorney general useless, equity has inherent power, without regard to the statutory provisions for the dissolution of corporations, to appoint a receiver on the application of a stockholder.</p>

Action by John Egan, material man, against Joseph Laemmle and another, owner and contractor, to establish a lien for the unpaid purchase price of certain lumber furnished and used for alterations and repairs. The district court gave judgment establishing the lien, and directing that it be foreclosed, and the property sold to satisfy the same. The defendant Laemmle, the owner of the premises, appeals.

Action by Maicho Fortunato against Thomas Pattén, the Twelfth Ward Bank of the city of Hew York, the mayor, aldermen, and •commonalty of the city of Hew York, John F. Dawson, and others, to have certain liens and claims against moneys payable to the defendant Dawson únder a contract with the city for regulating a street, and the order of their priority, determined.

<p>Assignment on Contract—Effect.</p> <p>P. purchased hemlock bark growing on M.’s land, and In payment therefor, according to the contract of purchase, conveyed to M. other land, reserving to himself the hemlock bark growing thereon. P. then assigned to S. his contract of purchase, describing it as a contract between M. and P. “for the sale and removal from the lands therein described the hemlock bark thereon.” Held, that by the assignment title passed not only to the bark crowing on M.’s land, but also to that on the land conveyed by P. to M.</p>

Petition by the people of the state of New York, on the relation of the Second Avenue Railroad Company, for a writ of certiorari to review the proceedings of Edward P. Barker and others, as commissioners of taxes and assessments for the city and county of New York, in refusing to consider the indebtedness of relator in assessing its capital stock for taxation. From an order vacating the assessment the commissioners appeal.

Action by Maurice Jacobs against the Water Overflow Preventive Company to recover damages in the sum of |30,000 for an alleged libelous publication issued and circulated by the defendant. From an order denying a motion to compel plaintiff to furnish a bill of particulars of the claims set forth in his complaint, defendant appeals.

Action by the Connecticut Mutual Life Insurance Company against Jacob S. Cornwell, Ann D. Cornwell, Catherine D. Corn-well, and Andrew O. Cornwell, by their guardian ad litem, impleaded with others, to establish a lien in plaintiff’s favor on land on which defendants claim to hold liens. From an interlocutory judgment overruling a demurrer to the complaint, defendants Jacob S. Cornwell, Ann D. Cornwell, Catherine D. Cornwell, and Andrew G-. Cornwell appeal.

<p>Judicial Sale—Relieving Purchaser—Possession op Premises.</p> <p>At the time of a judicial sale the premises were in possession of a tenant, and the purchaser, offered to complete his purchase, but the • referee who made the sale told him that he could not deliver possession. The purchaser could not ascertain, either from the lessors or the tenant, under what terms the tenant held. He then demanded a return of the money paid by him, and purchased other propérty. BeU, that the purchaser could not be compelled to complete his purchase on a surrender of the premises by the tenant two months later, as the purchaser was entitled to immediate possession.</p>

Action by Frederick H. Levey against Victor S. Allien. From a judgment for plaintiff, entered on a verdict directed by the court, and from an order denying a motion for a new trial, made on the judge’s minutes, defendant appeals.

Action by Anthony Van Bergen and another against Ludwig Lehmaier and others to set aside an assignment for the benefit of creditors made by the firm of Lehmaier & Co. From a judgment for plaintiffs, defendants appeal.

Action by Bora Bauscha against James A. Flack, as sheriff of Hew York county, for an illegal seizure of plaintiff’s goods. John L. Brower and Benjamin Farrington, his indemnitors, were substituted. Verdict directed for defendants, and plaintiff appeals.

Action by Peter A. Welch, Andrew M. Sherrill, and Moses E. -Clark, partners as Welch, Holme & Co., against Solomon Seligman, for damages for obtaining goods through false pretenses, and with the preconceived design not to pay for them. From a judgment dismissing the complaint on an order granted at circuit, plaintiffs -appeal.

Action by William Bayard Cutting and another against William E. D. Stokes, impleaded with others, to obtain an injunction restraining defendant Stokes from maintaining openings or windows in a certain party wall erected partly on plaintiffs’ lot and partly on an adjoining lot owned by defendant Stokes, and further enjoining and requiring Stokes to close certain openings and windows cut and maintained by him in said wall.

Action by Charles Smith, Jr., and William Pitt Bobinson against the Seattle, Lake Shore & Eastern Railway Company. From a judgment dismissing the complaint entered on a nonsuit granted at the close of plaintiffs’ case, plaintiffs appeal.

Action by Gustavus Wolfers against John J. Duffield and others to foreclose a mortgage given by defendant Duffield to plaintiff' on premises situate on the corner of Seventy-Eighth street and Second avenue.

<p>1. Building Contract—Delay in Performance-Waiver.</p> <p>The fact that the builder of a house does not terminate a contract with a subcontractor for the latter’s failure to complete his work within the time specified does not prevent the builder from recovering, by way of counterclaim, damages for the delay.</p> <p>3. Same—Excuse for Delay.</p> <p>A builder who has failed to complete, in time, work which was required to be done on his part before the work of a subcontractor could be commenced, cannot complain that the subcontractor failed to complete his work within the time specified in the contract.</p> <p>3. Same—Architect’s Certificate.</p> <p>Final payment of the sum due a subcontractor from a builder for work performed cannot be refused on the ground that the subcontractor had failed to procure an architect’s certificate as to the proper performance of his work, as required by the contract, where the architect has certified that the subcontractor is entitled to a settlement, but without prejudice to any claim the builder might have for time lost or work done in carrying out the terms of the contract.</p>

Action by Emma O. Wooster against the Broadway & Seventh Avenue Railroad Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the trial judge, defendant appeals.

Action by Edward A. Ridley and others against the Manhattan Railway Company and the Metropolitan Elevated Railway Company for damages caused by the erection and maintenance of their tracks. From an order opening a default against plaintiffs, defendants appeal.

At chambers. Application of William J. Pollard for an order compelling the county clerk of Seneca county to print his name on the official ballots.

Action by Lucia Cohen against Abraham Cohen for divorce. From an order reversing the taxation of costs by the clerk, who disallowed the item contained in plaintiff’s bill of costs of $30 for trial of an issue of fact, and $15 for proceedings after notice and before trial, and allowing such items, defendant appeals.

Action by the Mercantile Safe-Deposit Company against Charles L. Dimon, as administrator of the estate of Stephen C. Dimon, deceased, and Martha Keery, to require defendants to interplead as to certain property in defendants’ possession, and for an injunction.

Action by the Edison General Electric Company against John F. Zebley, impleaded with the Eastern Electric Company, on a promissory note. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals.

Action by Evelyn McConnell against William Bostelmann. The complaint was dismissed, and plaintiff moved for a new trial on exceptions ordered to be heard in the first instance at the general term, as provided by Code Civil Proc. § 1000.

Certiorari by Louis L. Lorillard to review the action of Edward P. Barker and others, commissioners of taxes and assessments of ■the city of New York, in assessing the personal property of relator for taxation for the year 1891 in the sum of $100,000. From ■an order setting aside the assessment, and awarding costs against •defendants personally, defendants appeal.

Certiorari by the Thurber-Whyland Company to review an assessment for taxation made by Edward P. Barker and others, commissioners of taxes and assessments of the city of New York. From •an order dismissing the writ, relator appeals.

Action by Thomas Haddock against Henry A. Root for the price of machines alleged to have been manufactured by plaintiff at defendant’s instance and request. From a judgment, entered on a verdict in plaintiff’s favor, defendant appeals.

Proceedings by the Metropolitan Elevated Railway Company to condemn certain easements appurtenant to real estate known as 694 Sixth avenue, (corner of Sixth avenue and Fortieth street,) in New York city. From an award of the commissioners, and from the order confirming the award, Hyman Israel, one of the abutting landowners, appeals.

• Action by the New York News Publishing Company against the National Steamship Company, Limited, to recover a balance alleged to be due plaintiff on a contract of advertising with defendant. From a judgment entered on a verdict in plaintiff’s favor, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Action by Engelbert Hardt and others against Emanuel Schwab, Terese Schwab, and others to' set aside a general assignment made by defendant Emanuel Schwab to defendant Herman Frohman, and certain judgments confessed by Emanuel Schwab in favor of Terese Schwab, Joseph Lilianthal, and others, as fraudulent and void as against plaintiffs, creditors of Emanuel Schwab.

Action by Edward S. Stokes against William E. D. Stokes for libel. From an order denying a motion for a bill of particulars, defendant appeals. The complaint alleges three separate causes of action for three several alleged libels, for which plaintiff demands $250,000 damages.

<p>Appeal from circuit court, New York county.</p> <p>Action by Henry Neil, against Fords, Howard & Hulbert, a corporation, for libel. From a judgment entered on a verdict in favor of plaintiff for $500, and from an order denying a motion for a new tidal made on the minutes, defendant appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Ellen Callahan against Michael O’Brien, John Graddy, Mary Leahy, Margaret Neville, Catherine Burns, Ellen O’Brien, John O’Brien, Anne Murphy, Margaret Jameson, and John Jackson, with others, impleaded, for partition. From an interlocutory judgment, defendant Michael O’Brien appeals.</p> <p>June 8, 1869, Catherine Callahan, a citizen of the United States, and a resident of the state of New York, acquired by purchase and grant the absolute fee of No. 18 Perry street. The deed to her is duly recorded in the office of the register of the city and county of New York in Book No. 1119 of Deeds, at page 159. November 15, 1869, William Callahan, a citizen of the United States, and a resident of the state of New York, acquired by purchase and grant the absolute fee of No. 58 Greenwich avenue. The deed to him is duly recorded in said register’s office in Book No. 1123 of Deeds, at page 330. At the date of this deed said William Callahan and Catherine Callahan were husband and wife. February 27, 1873, William Callahan died intestate, and seised in fee of said lot, leaving him surviving William T. Callahan, his son and only heir, who was a citizen of the United States, and a resident of the state of New York, and Catherine Callahan, his widow. March 26, 1888, said William T. Callahan died intestate, seised in fee of No. 58 Greenwich avenue, and leaving Catherine Callahan, his mother, his sole heir, who then became seised in fee of said lot. March 1,1890, said Catherine. Callahan died intestate, and seised in fee of said two pieces of real estate. She left her surviving no ancestors nor descendants, but left the following collateral relatives: Ellen Callahan, a sister; John Graddy, a nephew, the only surviving child and heir of John Graddy, a deceased brother of Catherine; Anne Murphy and Margaret Jameson, nieces, the only surviving children of Anne Morrissey, a deceased sister of Catherine Callahan; John Jackson, the only surviving child and heir of Ellen Jackson, a deceased daughter of said Anne Morrissey, he being a grandnephew of the intestate, and a grandson of Anne Morrissey; Michael O’Brien, Mary Leahy, Margaret Neville, Catherine Bums, Ellen O’Brien, and John O’Brien, nephews and nieces, the only surviving children and heirs of Margaret O’Brien, a deceased sister of Catherine Callahan. The plaintiff, Michael O’Brien, and John Jackson are resident citizens of the United States, but all of the other litigants and their husbands and wives are citizens of the United Kingdom of Great Britain and Ireland, residing in Ireland, of which kingdom their parents and grandparents were citizens and residents. The special term held that the following persons were entitled to inherit the two pieces of realty as heirs at law of Catherine Callahan, deceased, in the following proportions: Ellen Callahan, six twenty-fourths; John Graddy, six twenty-fourths; Anne Murphy, Margaret Jameson, and John Jackson, two twenty-fourths each; Michael O’Brien, Mary Leahy, Margaret Neville, Catherine Burns, Ellen O’Brien, and John O’Brien, one twenty-fourth each.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by Joseph K. Murray, as trustee for mortgage bondholders of the steamship Cleopatra, against the Great Western Insurance Company, on a marine policy of insurance. From a judgment entered on a verdict in plaintiff’s favor, and from an order denying a motion for a new trial, made on the minutes, defendant appeals..</p>

Action by the New York Breweries Company, Limited, and Daniel B. Sickles, as sheriff of the city and county of New York, against Edward P. Nichols, William H. Douglas, Thomas M. Freeman, Benjamin F. Pendleton, Benjamin F. Carver, and Wilford Y. Nichols,, to recover $5,000 for preventing the sheriff from taking posssesion of goods levied on. Plaintiff company moved for leave to discontinue the action, without costs.

Action by Louis Bauer 'against Thomas C. Platt, James S. Thurs-ton, and others to enforce defendants’ liability as directors of the American Loan & Trust Company. From an interlocutory judgment sustaining defendants’ demurrer to the complaint, plaintiff appeals.

Application by Jessie C. McBride for mandamus to Thomas E. Murray, a justice of the district court of the city of New York. From an order denying the application, petitioner appeals.

Action by Henry F. Walker against the Anglo-American Mort-gage & Trust Company, Albert C. Burnham, Lysander W. Tulleys, and James N. Brown to rescind a contract of purchase and sale - of stock, and for damages. From a judgment dismissing the complaint, plaintiff appeals. This action was brought to rescind a purchase of 50 shares of stock issued '■ by the defendant corporation, and to recover from the defendants the amount paid therefor.

Action by William Klernan, individually, and as executor of the last will and testament of James Kiernan, deceased, and Esther Kiernan, against the Agricultural Insurance Company of Water-town, N. Y., to reform an insurance policy, and for a .judgment thereon. From a judgment for defendant, on dismissal of the complaint, plaintiffs appeal.

<p>Master and Servant—Dangerous Premises—Contributory Negligence.</p> <p>In an action for the death of a servant, caused by ice falling from the roof of one of defendant’s buildings and crushing the roof of a lower building in which deceased was at work, it appeared that deceased had been previously injured in a similar accident, but at that time the roof of the lower building was flat, and had since been replaced by a gabled roof, which, though insufficient under the circumstances, was sufficient to sustain any ordinary weight, and was not apparently weak. Two witnesses testified that deceased hadfc expressed fear as to the strength of the new roof. Held, that the question whether deceased was negligent in remaining in the building was for the jury.</p>

<p>$. Municipal Corporations—Negligence—Icy Sidewalks.</p> <p>A city is not liable for injuries to a traveler from falling on an icy sidewalk, where the severity of the weather, and the sudden and frequent changes, rendered it practically impossible to remove the ice.</p> <p>3. Same—Contributory Negligence.</p> <p>A traveler who falls on an icy sidewalk cannot hold the city liable, where she knew the condition of the walk, and there was sufficient space for passage which was free from ice.</p>

Action by the Chase National Bank of the City of New York against B. C. Faurot. From a judgment for plaintiff entered on a verdict, and from an order denying motion for new trial, defendant appeals.

<p>Action by Frank D. Cheever against the Pittsburgh, Shenango & Lake Erie Railroad Company on promissory notes. Motion for judgment on a case and exceptions to be heard at general term. Judgment for defendant.</p>

<p>Judgment—Opening Default.</p> <p>A judgment by default having been entered, defendant moved to open the default, and for a stay until final determination of an equitable action by defendant against plaintiff, involving the same matters as defendant had set up in his answer. The default was opened, and a preliminary stay was granted, and afterwards vacated. Judgment by default was again entered against defendant, and another preliminary stay was granted, and the default was opened. In the mean time the equitable action had been tried, but no decision rendered. A third default was suffered, and a stay was again granted, but before any further proceedings could be had the complaint in the equitable action was dismissed. Eeld, that a refusal to open the third default would not be disturbed on appeal.</p>

Action by Sarah Cohen against John J. Gorman, as sheriff, etc. From an order denying a motion by defendant’s indemnitors to open a default against defendant and to substitute them as defendants, said indemnitors appeal.

Action by William P. Eoome and others against Frederick C. Jennings and others. From an order denying a motion for leave to amend the complaint, plaintiffs appeal.

<p>Case on Appeal— Reference to Inquire and Report.</p> <p>On appeal in a cause in which a reference to inquire and report had been ordered, a formal case and exceptions showing the proceedings before the referee are not necessary to protect appellant’s rights, and an order striking out such case is proper.</p>

<p>Appeal from special term.</p> <p>Action by George W. White against Robert Stafford and others.From an order denying a motion to continue an injunction pendente lite, plaintiff appeals.</p>

<p>1. Appeal—Exceptions—Omission oe Pacts Necessary to Recovery.</p> <p>If the referee’s report omits the finding of every fact alleged in the complaint and essential to plaintiff’s recovery, exceptions to the conclusions of law raise no question for review on appeal.</p> <p>2. Same—Negative Findings oe Pact.</p> <p>In an action to establish a subcontractor’s lien, brought against the contractor and the owner of the building, the latter being sued both as owner and as guarantor, a finding, contrary to the evidence, that the owner was not liable as guarantor, is harmless error in the absence of findings of the facts required to establish the liability of the contractor as principal.</p> <p>8. Reference—Findings—Nonexistence op Facts.</p> <p>A finding by a referee that the alleged facts on which plaintiff’s claim is based do not exist, is not a finding of fact, within Code Civil Proe. § 993, which provides that a finding of fact without any evidence tending to sustain it is reviewable as a question of law.</p>

Action by Oscar Compton against Henry E. Bowns on an account for balance of commissions on sales of cargoes of coal for defendant. The last debit item of the account was dated August 18, 1881. Subsequently payments were made by defendant on the account, the last payment being made June 7, 1882. The action was begun June 7, 1888. Judgment for plaintiff was given on the verdict of the jury. From a judgment of the general term of the city court (22 27.

<p>Action by the American Surety Company against George A. McDermott on a bond.</p>

Action by Lena Spitz against the Mutual Benefit Life Association of America to recover the mortuary sum payable to her pursuant to the terms of her husband’s membership in the defendant association. The court directed the dismissal of the complaint after both parties had concluded the introduction of evidence. Plaintiff appeals. The deceased’s application for membership was made March 12, 1889.

Action by James Cunningham against Andrew T. Doyle to foreclose a mechanic’s lien upon premises in West Ninety-Fifth street and Amsterdam avenue, New York city. There was a judgment in favor of plaintiff, and defendant appeals.

Action by De Youngs, a corporation, against Solomon Jung to restrain defendant from using the name of “The Youngs” or 'Youngs” in connection with his business, on the ground that it was an infringement of plaintiff’s trade name. Plaintiff moves for an injunction pendente lite.

Edward Edwards was on the 6th of October, 1893, 'indicted for the crime of bigamy. It is alleged in the indictment that in the year 1881, at Liverpool, England, he was married to one Clara Wilkins, and that on the 30th day of August, 1893, at New Hartford, Oneida county, he was married to one Mary Jane Williams, while the said Clara Wilkins was still alive.

<p>1. Criminal Law—Arrest op Judgment.</p> <p>Under Code Crim. Proc. §§ 331, 467, a motion in arrest of judgment can be granted only when the court has not jurisdiction of the subject-matter, or the facts stated in the indictment do not constitute a crime.</p> <p>2. Same—Tbial—Separation of Jury.</p> <p>A jury in a murder case, not having agreed on their verdict at the adjournment of the court, were, by order of the court, taken to an hotel for dinner, under the charge of the sworn officers of the court. At no time were they allowed to separate. After dinner, while at the hotel, and after having agreed on their verdict, one of the jurors fainted, and became unconscious, and was removed by the jurors and the officers to a room in the hotel, where he remained until he had recovered. He was attended in the room by a physician. An officer of the court remained with him all the time. The other jurors were together in a room in the hotel until the sick juror recovered, when, together, they returned to the court room, and rendered their verdict. While the juror was sick several jurors left the main body to go to the room of the sick juror, to inquire as to his health, but always in the company of an officer. Meld, that there was no such separation of the jury as to require a new trial under Code Grim. Proc. § 465, subd. 3, allowing one when the jury have separated without leave of court, after retiring to deliberate on their verdict.</p> <p>8. Same—Mental Incapacity of Juror.</p> <p>After a jury in a criminal case had retired to deliberate on their verdict, and had agreed upon it, and were waiting the return of the court, one of the jurors fainted, and remained unconscious, and to an extent delirious, for some hours. On his recovery the jury returned to the court, and were about to render their verdict, when the judge, in view of the circumstances, suggested that they again retire for deliberation. They returned shortly, and rendered a verdict of guilty. On a motion to set aside the verdict because of mental incapacity of the sick juror, several physicians testified that from the statements of the circumstances the juror appeared to have had an epileptic fit, rendering him incapacitated to exercise, his judgment for several hours before and after the attack. Other physicians, who made a personal examination of the juror some time after the attack, testified that in their opinion the juror suffered from nervous exhaustion only, not affecting his judgment. It appeared that after the discharge of the jury he returned to active business; that he was a man of good general health, and had had four fainting attacks in his life, all apparently the result of exposure of different kinds. Meld, that the verdict would not be set aside</p>

<p>Mechanics’ Liens—Foreclosure—Architect’s Certificate.</p> <p>When a building contract stipulates that the architect’s certificate shall be conclusive evidence of the builder's right to final judgment, and the certificate is produced, and not impeached, there is no reason to deny foreclosure of the lien.</p>

<p>Appeal from trial term.</p> <p>Action by Smith A. Brooker and James A. Lahey against John Filkins for moneys collected and converted. There was a judgment in favor of defendant, and plaintiffs appeal.</p>

Action by the Rochester Distilling Company against Stewart L. Devendorf for false representations in the purchase of goods. There was a judgment of nonsuit, and plaintiff moves for a new trial on exceptions ordered to be heard in the first instance at the general term.

Action by J. De Witt Butts against the J. O. Mackay Company to recover damages for injury to the goods of plaintiff’s tenants caused by the leaking of a tank which defendant, as plaintiff’s contractor, had caused to he erected on plaintiff’s building, the claim for which damages was assigned to plaintiff by such tenants. From a judgment in favor of plaintiff, defendant appeals.

Action by Henry S. Anderson against Edward T. Dickinson for commissions alleged to be dne the plaintiff nnder a written contract. From a judgment in plaintiff’s favor, defendant appeals.

Maria L. Mills, Simon G-. Miner, Amelia E. Heath, and others, next of kin of Asher W. Miner, deceased, contested the probate of the will of said deceased, in which proponents, Kate M. Wellman, Myra E. Corbin, and Ella Lockwood, were the residuary legatees. From a decree admitting the will to probate, and construing the residuary clause of the will as passing the entire residue of the estate to proponents, the contestants appeal.

<p>Appeal from circuit court, New York county.</p> <p>Action by Sarah E. Mellen against William C. Banning, individually, and as sole surviving executor of the last will and testament of Abner Mellen, deceased, Maria L. Kendall, Helen J. Banning, Abner M. Wilcox, and Winifred Wilcox. From an order of the circuit, dated October 30, 1890, denying defendants’ motion made on the minutes for a new trial; from an order of the special term, dated December 23, 1891, denying defendants’ motion to vacate said order denying the motion for a new trial; from an order of the special term, dated December 23, 1891, denying defendants^ motion to set aside the general verdict and special findings of the jury; from an interlocutory judgment entered November 26, 1891, on the verdict and findings of the court; and also from the.final judgment entered April 7, 1892, on the report of the referee,—defendants appeal.</p> <p>This action was begun November 30, 1888, to partition the land which Abner Mellen owned at the date of his death. He died May 27, 1887, seised in fee of three pieces of land,—one known as No. 204 Fifth avenue; one as No. 6 Mulberry street; and the other being a piece 71 feet and 3 inches wide by 92 feet in length, situated on the south side of Bast Seventeenth street, and known as Nos. 516, 518, and 520. He left, him surviving, Helen M. Mellen, widow, Abner Mellen, jr., son, Maria L. Kendall, daughter, Helen J. Banning, daughter, and Abner M. Wilcox, grandson, the son of a deceased daughter, .as next of kin and heirs at law. He left a will, which contains, among others, the following clauses:</p> <p>“Fifth. All the real estate of which I shall die seised and possessed, or to which I shall be entitled, at the time of my decease, I give and devise and bequeath mita my wife, Helen M. Mellen, and my three children, Abner Mellen,. Jr., "Maria L. Kendall, and Helen J. Banning, share and share alike, to them, their heirs and assigns, forever.”</p> <p>“Eighth. I hereby give full power and authority to my said executrix and executors, or whichever of them shall qualify, and the survivors and survivor of them, for the purposes of a division or distribution, or for any other purpose that they, in their best judgment, may think proper, to grant, alien, sell, and convey, either at public or private sale, all or any real estate owned by me, or to which I shall be entitled, or in which I shall have any interest, at the time of my decease, and to apply the proceeds of each sale or sales in conformity to the provisions of this, my last will and testament.”</p> <p>June 15, 1887, the will was probated, and letters thereon were issued to. Helen M. Mellen, Abner Mellen, Jr., and William O. Banning, the persons nominated as executors by the testator, who entered upon the execution of the trust. September 28, 1888, Helen M. Mellen died intestate, leaving said Abner Mellen, Jr., Helen J. Banning, and Maria L. Kendall, her children, and Abner M. Wilcox, a grandson, the child of a deceased daughter, her next of kin and heirs. On the death of the widow, each of the three children became entitled to an undivided five-sixteenths, and the grandson to an undivided one-sixteenth, of the realty of which Abner Mellen, Sr., died seised. October 15, 1888, letters of administration were granted on the estate of Helen M. Mellen to Abner Mellen and William 0. Banning. November 3,1888, Abner Mellen, Jr., conveyed his five-sixteenths to Lawrence E. Ellis, who on the same day conveyed the same interest to Sarah E. Mellen, the wife of Abner Mellen, Jr. Both deeds were duly recorded, November 28, 1888. When this action was begun, Abner Mellen, Jr., Helen J. Banning, William 0. Banning, her husband, Maria L. Kendall, Abner M. Wilcox, and Winifred Wilcox, his wife, were made defendants. William 0. Banning was not at first joined in his representative capacity. The complaint set forth the title as herein-before stated, and demanded a judgment that the premises be partitioned, or, in case they could not be without injury to the interests of the owners, that they be sold, and that a receiver be appointed to collect the rents during the pendency of the action. Abner M. Mellen never appeared in the action. The other defendants answered jointly. They admitted that Abner Mellen, the plain tiff’s husband, by the devise of his father and by descent from his mother, acquired five-sixteenths of the premises, but deified that the plaintiff was the owner of five-sixteenths of the premises, and alleged that she had no interest in them, except her right of dower as the widow of Abner Mellen. The defendants alleged in their answer that when Abner Mellen executed the conveyance of his interest he was indebted to his father’s estate in the sum of $130,116.67, to Maria L. Kendall in the sum of $7,896.35, and to his said two sisters and Abner M. Wilcox, for rents collected from the tenants of said premises, in more than $18,000. It is also alleged that Abner Mellen was required to account in the surrogate’s court as the representative of the estate of his father and mother, and that by the decree of that court he was directed to pay Maria L. Kendall $11,707.36; Helen J. Banning, the sum of $11,707.36; to William O. Banning and Abner Mellen, as administrators of the estate of Helen M. Mellen, the sum of $17,561.05; and that it was further adjudged that he was indebted to his father, at the date of his death, in the sum of $77,000; and that July 20, 1889, judgments were entered on the decree of the surrogate in favor of Maria L. Kendall, Helen J. Banning, and William G. Banning and Abner Mellen, as administrators, for the sums aforesaid; and that executions were issued upon these judgments and returned wholly unsatisfied. It is also alleged that Abner M. Wilcox recovered a judgment October 18,1889, against Abner Mellen, for $351.53, and that an execution was afterwards issued and returned wholly unsatisfied; and that Maria L. Kendall assigned her claim against Abner Mellen for $7,896.35 to Banning, Bissell & Co., who, December 16,1889, recovered a judgment thereon for $8,939.36. It is alleged that the conveyances from Abner Mellen to Lawrence E. Ellis, and from him to the plaintiff, were made with intent to hinder, delay, and defraud the creditors of said Abner Mellen, and especially to defraud Maria L. Kendall, Helen J. Banning, and Abner M. Wilcox, and that said conveyances were void as against them. April 24, 1889, Abner Mellen made a general assignment for the benefit of creditors, without preferences, to Gordon McKay, who accepted the trust and entered upon its execution. March 6, 1890, Abner Mellen died intestate, leaving, him surviving, Sarah E. Mellen, widow, Gordon McKay Mellen, son, Stanley Mellen, son, Evelyn Mellen, daughter, his only heirs and next of kin, and on the 14th day of April, 1890, letters of administration were granted on his estate to his widow, Sarah E. Mellen; but this action has not been revived and continued against his representative, and neither his assignee nor heirs have been brought in as parties. On the 6th of August, 1890, an order was made at special term directing that the summons and complaint, and all the papers in the action, be amended by inserting, after the name William 0. Banning, the words, “individually, and as sole surviving executor of the last will and testament of Abner Mellen, deceased,’’ and that a copy of the summons and complaint so amended be served on him, and that he be made a party defendant in his representative capacity. This was done, and he appeared and answered, setting up the defenses interposed in the joint answer before served, and also that on the 17th of April, 1890 he executed the power of sale contained in the eighth clause of the will of Abner Mellen, and sold all of the lands devised by him.</p>

<p>Injunction—When Maintained—Obstructing View from'Premises.</p> <p>The owner of premises assessed for the benefits accruing thereto by the opening of a street, which consist of additional light, air, and access, cannot maintain an action for the removal of bay windows from a building thereafter erected on an adjacent lot, because such windows extend into the street, and obstruct the view from his premises, where it does not appear that there is any serious interference with such light, air, or access.</p>

Action by William S. Keiley, as receiver of the Industrial Manufacturing Company, against the Mechanics’ and Traders’ Bank, to set aside a chattel mortgage and bill of sale. From final judgment for plaintiff entered on the report of a referee, and from an order overruling exceptions to the referee’s report, defendant appeals.

Action by Theodore Conkling and Eugene Conkling against Lizzie H. Zerega on contract. From a judgment entered on a verdict directed for plaintiffs, defendant appeals.

Action by John Pondir against the New York, Lake Erie & Western Railroad Company, the Buffalo, Bradford & Pittsburgh Rail-' road Company, and Hugh J. Jewett, as receiver of the Erie Railway Company, to set aside, as void, a lease and a mortgage, and for an accounting. Prom a judgment dismissing the complaint on the merits, plaintiff appeals.

Action by Charles A. Clegg, against the Hew York Hewspaper Union, the Chicago Hewspaper Union, the Aikens Hewspaper Union, (known as the Cincinnati Hewspaper Union,) the Southern Hews-paper Union, the St. Paul Hewspaper Union, Andrew J. Aikens, William E. Cramer, and John F. Cramer, for damages for breach of contract.

Action by I. Osgood Carleton and another against Lombard, Ayres & Company, a corporation, for an alleged breach of contract to deliver plaintiffs a specified quantity and quality of petroleum. From a judgment entered on a verdict directed for plaintiffs, defendant appeals.

Action by William B. Roe against Alexander W. Hume and Asa A. Spear to set aside an assignment for (lie benefit of creditors made by the defendant Hume individually, and as surviving member of the firm of A. W. & T. Hume. From a judgment for plaintiff, •defendants appeal.

Action by Dora Wheeler against the Oceanic Steam Navigation Company, Limited, to recover the full value of a case of portraits delivered to defendant by her for transportation from Liverpool to New York, and not accounted for. From a judgment for $66 on a verdict directed for plaintiff, she appeals.

Action by Leo Stim against Hans Hemken and others for an accounting. From an interlocutory judgment directing defendants to account, but limiting the period which it should cover, plaintiff appeals.

Action by Randolph F. Purdy against Agnes Lynch, executrix of James Lynch, and Charles E. Miller, executor of John E. Develin, impleaded with Jeremiah Quinlan and others, for an accounting. From a judgment for plaintiff for a designated sum, and directing the conveyance of certain land, defendants AgnesLynchandCharles E. Miller appeal.

Action by Carlos D. Siegert, Alfredo C. Siegert, and Luis B. C. Siegert, trading as Dr. J. G-. B. Siegert & Hijos, against Cornelius W. Abbott and Cornelius F. Abbott, trading as C. W. Abbott & Co., for injunction. From a judgment restraining defendants^ from using the words “Angostura Bitters” or “Angostura” as descriptive of bitters made by them, defendant Cornelius F. Abbott appeals. The court found that in the year 1824 Dr. Johannes G-.

Action by James J. Belden, an owner of 50 of the bonds of the Columbus, Hocking Valley & Toledo Railway Company, against Stevenson Burke and others, to compel the Columbus, Hocking Valley & Toledo Railway Company to make the security for the bonds what that company in the mortgage trust deed covenanted (expressly for the benefit of the successive holders of the bonds) that it should be, and to charge this obligation of the railway company upon the defendants Burke and…

Action by Margaret B. Green, as executrix of the last will and testament of Phoebe Abbey, deceased, against Emma S. Reynolds. From a judgment in favor of plaintiff, defendant appeals.

Action by Alvin P. Chapin against Henry C. Overin and Anthony Markert to recover damages alleged to have been sustained by plaintiff by the negligence of defendant’s servant in running against him with a coach and team of horses on Broadway, in the city of New York. The answer admitted that plaintiff received some slight injuries to his person on the occasion referred to, and put in issue all the other allegations of the complaint.

Action by Charles C. Cleveland against the town of Pittsford. Plaintiff moves for a new trial on exceptions ordered to be heard at the general term in the first instance, after a nonsuit at the Monroe circuit.

<p>Appeal from surrogate’s court, Cayuga county.</p> <p>Proceeding for the probate of an instrument purporting to be the last will and testament of Stephen Y. G-root, deceased. From, a decree admitting the paper to probate, Helen M. Tallman appeals.</p>

Action by Helen L. Maxwell, as administratrix with the will annexed of Joshua Maxwell, deceased, against Octavius O. 'Cattle. From an order denying a motion for a new trial on the minutes, and from an order denying a motion for a reference of the issues, defendant appeals.

Action by Daniel P. Smith against the Buffalo, Rochester & Pittsburgh Railroad Company for personal injuries sustained while in defendant’s employ. From a judgment in plaintiff’s favor, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Action by Henry J. Negus against Louis W. Pecker and Thomas Haney for the alleged occupation by defendants of plaintiff’s land with a party wall. A verdict was rendered at the Cattaraugus circuit in defendants’ favor by direction of the court, subject to the opinion of the general term, and defendants now move for judgment on the verdict.

Action by Ransom H. Miller against Thomas J. Reynolds and wife to rescind a sale of real estate. From a judgment dismissing the complaint, plaintiff appeals.

Action by George F. Victor and others against David Levy and others to set aside as fraudulent certain judgments and transfers-of account. From a final judgment confirming a referee’s report in favor of plaintiffs, and from an interlocutory judgment by which the referee was appointed, defendants appeal.

<p>1. Contracts—Agreement not to Partition—Consideration.</p> <p>An agreement between the heirs and administrators of intestate providing for the management of the estate for a certain number of years by the administrators, one of them to receive a certain commission for his services as attorney, contained a covenant that there should be no partition, of the real estate during the continuance of the agreement. Bold, that the agreement not to partition had sufficient consideration to support it.</p> <p>2. Same—Validity.</p> <p>Such agreement, while in force, constitutes a legal defense to an action-' for partition.</p>

Action by Edgar L. Ridgway, as temporary administrator of William L. Muller, deceased, against Charles P., Bacon, Lewis M. Smith, William Fiske, and Douglas Boardman, as executor of Jennie McGraw Fiske, deceased, to enforce a lien on a fund in defendant Boardman’s hands. Defendant Bacon demurred to the complaint on the grounds that it did not state facts sufficient to constitute a cause of action, and that causes of action were improperly united.

Action by Lucius J. Phelps and Samuel K. Dingle against the Gamewell Fire-Alarm Telegraph Company for a balance alleged to be due on a contract between the parties. From a judgment in plaintiffs’ favor, and from an order denying a motion for a new trial, defendant appeals.

Action by Winston Jones, as assignee of the Bank of Mobile, against the Merchants’ National Bank of the city of New York and the Bank of Mobile, for the recovery of mortgage bonds, and money due on open account. From judgment and certain orders entered for defendant Merchants’ National Bank, plaintiff appeals.

Action by Albert Baer against Charles W. Bonynge for damages for breach of a contract to procure a lease of certain premises for plaintiff. The complaint was dismissed at the close of plaintiff’s evidence, and he moved for a new trial on a case containing exceptions ordered to be heard at the general term in the first instance.

Action by Samuel Bernstein, by Ephraim Bernstein, his guardian ad litem, against the Dry Dock, East Broadway & Battery Railroad Company, for personal injuries. From a judgment in plaintiff’s favor, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Action by Thomas H. TJnckles against Romulus R. Colgate and others for an accounting. Prom a judgment dismissing the complaint, entered on an order sustaining a demurrer thereto, plaintiff appeals.

<p>1. Ejectment—Defenses—Lien.</p> <p>In ejectment by the owners of the legal title, defendant, who alleges that she is the equitable owner, cannot prevent recovery by merely proving that she has a lien against the property.</p> <p>2. Resulting Trust—Payment of Purchase Price.</p> <p>Under 1 Rev. St. p. 728, § 52, which provides for resulting trusts where the alienee named in the conveyance shall have taken the same in his name, without the knowledge or consent of the person paying the purchase money, the whole consideration must be furnished by the person claiming the benefit of a resulting trust, or at least her contribution must be some definite part of the purchase price, as one-half or one-third; and one who furnishes the alienee with money not forming an aliquot part of the purchase price, with the understanding that her name is to be inserted in the deed, cannot set up a resulting trust in the entire tract because her name was omitted from the deed without her knowledge or consent.</p> <p>8. Same.</p> <p>The mere fact that a husband took a deed in his own name, after inducing his wife to advance part of the purchase money on the faith of his oral agreement to take the deed in her name, will not establish a resulting trust in her favor as to the entire tract, where it appears that the husband’s contribution to the purchase price greatly exceeded the wife’s, that the parties dealt at arm’s length with each other, and that the wife waited for several years after discovering the omission of her name from the deed, and until after her husband’s death, before asserting her claim.</p> <p>4. Trial by Court—Request for Findings.</p> <p>In a trial by the court, a request for a finding is properly denied where a portion of it is not supported by the evidence.</p>

„ Action by Luther Kountze and others against Edward 8. T. Kennedy, executor of the will of John P. Kennedy, deceased, to recover damages for fraud and deceit alleged to have been practiced by decedent, whereby plaintiffs were induced to make certain injurious investments. From a judgment dismissing the complaint, ■entered in New York county on the report of Hon. Grover Cleveland, referee, plaintiffs appeal.

Action by Alfred Johnson against the Steam-Gauge & Lantern Company for personal injuries. There was a verdict in plaintiff’s favor, and defendant moved for a new trial on exceptions ordered to be heard at the general term in the first instance.

Action by John S. Keyes and another against Barbara Ellensohn and Anna Kristof, by Samuel D. Sewards, her guardian ad litem. There was judgment for plaintiffs, and from an order setting aside, as to defendant Anna Kristof, the judgment against her, plaintiffs appeal.

Appeal, from surrogate’s court, New York county. Petition by George McGrath and Charles N. Johnston, sureties on the bond of James Brown as former general guardian of Elizabeth Sandison, an infant, to open a decree settling the account of such guardian. From an order denying the petition, petitioners appeal.

Proceeding to appraise the estate of George W. Cullum for taxation under the legacy tax. From an order assessing the tax on a legacy to the United States, the government appeals.

Proceeding under an assignment for the benefit of creditors made by Wiltse & Fromer to Michael Lackey, Jr. Guilford Hasbrouck, Forsyth & Wilson, Van Deusen Bros., and George W. Terks & Co., creditors of the assignor, ask for an accounting from the assignee, and the assignee asks for an amendment of a decree of distribution theretofore made, and for a redistribution.

Action by A. W. Boynton against the Keeseville Electric Light & Power Company. Summons was returned April 30, 1892, as served by delivering a copy to, and leaving it with, “George F. Morse, the managing agent of said company.” Defendant appeared specially by H. T. Hewitt for the purpose of objecting to the jurisdiction of the court on the ground that the summons had not been legally served. Hie objection was overruled, whereupon an answer was filed and a trial was had.

<p>Appeal from special term.</p> <p>Action by Robert Lorzing against William Eisenberg and others. From a judgment by default, defendants appeal</p>

<p>-Jtjrobs—-Competency.</p> <p>In an action for injuries caused by defendant’s negligence, it is proper to excuse a juror who says that there would have to be strong evidence to induce him to find for plaintiff in a negligence case, and that he had been defendant in litigations of that character.</p>

Action by Lena Millie against the Manhattan Railway Company to recover damages for personal injuries caused by falling down the stairway of defendant’s elevated railroad station. Defendant moves to dismiss the complaint on plaintiff’s evidence.

Action by Louis Kaufman against Samuel Bloch to recover for moneys alleged to have been had and received to plaintiff’s use.' There was a- judgment in favor of plaintiff, and defendant appeals.

Action by Henry Mensing against Charles Z. Bimoaum to recover damages for defendant’s alleged breach of a contract of employment with plaintiff’s assignor. There was a judgment in favor of defendant, and plaintiff appeals.

Action by Samuel Eubenstein against Abraham Kahn to recover the sum agreed to he paid on the sale and transfer of an excise license with the approval of the hoard of excise. There was a judgment in favor of plaintiff, and defendant appeals.

Action by Henry Siefke against Herman Siefke, Jr., to recover for money alleged to have been loaned to defendant. There was a judgment in favor of defendant, and plaintiff appeals.

Action by Lester Jacobs against John Day and others to recover purchase money paid by plaintiff’s assignor on the sale of merchand'ise by sample, the sale having been rescinded by the buyer-on the ground that the bulk delivered failed to correspond to the sample shown at the time of the sale. There was a judgment in. favor of plaintiff, and defendants appeal.

Action by James Stanley against Richard Pollard to enjoin defendant from violating a written contract with plaintiff. From that portion of an order modifying a temporary injunction, plaintiff appeals.

Application by Gordon to compel Easines, as receiver of the Canal Street Bank, to pay over the proceeds of certain notes collected by the bank.

<p>Divorce—Alimony—Bigamous Marriage.</p> <p>A bigamous marriage being void ab initia, the second wife cannot maintain an action for a judicial separation, and she is not entitled to alimony and counsel fees in an action brought for that purpose.</p>

Action by Adam Hermann against William E. Passmore and others to compel the performance of a paroi contract made between the parties. From a judgment dismissing the complaint, plaintiff appeals. The action was brought to compel the performance of a paroi contract made by the defendants William E. and May E. Passmore with the plaintiff.

Certiorari by the Press Publishing Company to review the action of James J. Martin and others, constituting the board of police commissioners of New York city, in designating certain newspapers in which lists of candidates for election were to be published.

<p>Counterclaim—Contingent Liability.</p> <p>In an action on a note given for work done by plaintiffs, the answer alleged that, by reason of plaintiffs’ negligence, one O. was injured, and that defendant was liable for the injury; that the note sued on was given on condition that plaintiffs should satisfy O.’s claim for damages; that they have not done so; and that, in consequence thereof, defendant was damaged in a certain sum. The answer did not allege that defendant had paid O.’s claim. Held, that it did not state a counterclaim.</p>

Action by Allen O. Dalzell against the Fahys Watch-Case Company to recover one-half of the net profits said to have been realized by defendant from the manufacture and sale of crowns for stem-winding watches. From an order denying plaintiff’s motion for discovery and inspection of defendant’s books, plaintiff appeals.

■ Appeal from special term. Action by Ferdinand A. Straus against John Henry Vogt. From an order denying a motion to vacate an attachment against defendant’s property, defendant appeals.

Action by George H. Wooster against Horatio Bateman and William J. Brewster, impleaded with another. From an order denying a motion for leave to serve an amended complaint, plaintiff appeals.

Action by the Wilson Manufacturing Company against Schwind and others to charge defendants, as directors of the United States Supply Company, Limited, with the debts of their company. Defendants demur to the complaint.

Action by Florence E. M. Jayne against Benaiah (3. Jayne for a judicial separation on the ground of abandonment. Defendant denied the abandonment, and set up a counterclaim for an absolute divorce on the ground of plaintiff’s adultery. Judgment for defend-, ant

Action by Miles E. Griffiths against the New Jersey & New York Railroad Company for personal injuries caused by the falling of a joist in a building to assist in constructing which plaintiff was employed by defendant. The complaint was dismissed on the trial, and plaintiff moves for a new trial on the minutes of the judge.

Application by Mary H. Lester for a writ of mandamus to compel Osborne Macdaniel, collector of assessments and clerk of arrears of the city of New York, to accept the amount of an assessment on property of relator for widening Sixth street, to enforce which assessment the property had been sold.

<p>Action by Samuel Leshinsky against Rose Leshinsky for a divorce on the ground of the nullity of the marriage. Judgment for defendant.</p>

<p>"Wills—Effect of Void Codicil.</p> <p>Testator bequeathed his persotaalty to his daughter, and his land, which was of equal value, to his soú for life, remainder to his son’s children. After the son’s death, testator made a codicil to his will, reciting the devise, and, “instead thereof,” devising the land to his son’s children for life, remainder over, but not in terms revoking the previous devise. The codicil was void, because it violated the statute against perpetuities. Held, that the codicil did not revoke the devise in the will.</p>

Action by Heman A. Hibbard against John H. Randolph for the conversion of four cows. Judgment was rendered in plaintiff's favor, but from an order directing a new taxation of costs, and from an order setting off a judgment for costs in defendant’s favor against plaintiff’s judgment, plaintiff appeals. Defendant failed to answer in time, but served an answer about November 2, 1892, and at the same time served an offer of judgment in due form, in amount of $75 and costs.

. Action by Julius Imgard and another, administrators of the estate of Albert Imgard, deceased, against Walter B. Duffy, to recover on certain promissory notes indorsed by defendant. From an order denying his motion for a change of the place of trial from New York county to the county of Monroe, defendant appeals.

Action by Elizabeth Mercer against William Stuart Mercer for a divorce. From an order denying a motion to punish defendant for contempt in failing to comply with an order directing him to pay plaintiff money for counsel fees, plaintiff appeals.

<p>1. Reference—Long Account.</p> <p>In an action against a customhouse broker for the difference between the. amount of money received by him from plaintiffs to pay duties on their goods, and the amount paid by him, where the answer admits the receipt, of all the items alleged, except one, and the only issue in the case-is. as to the amount of compensation defendant was to receive, a compulsory reference, on the ground that the examination of a long account -will be necessary, is properly refused.</p> <p>2. Same—Counterclaim.</p> <p>Defendant does not waive his right to a jury trial on the issues presented by the complaint and answer, and entitle plaintiff to a compulsory reference, by setting up a counterclaim in addition to his defense.</p>

Certiorari by Alexander Kidd and others to review the action of the commissioners of excise of the town of Montgomery, Orange county, in refusing to grant applications for licenses to sell intoxicating liquors in said town.

<p>Appeal from special term, New York county.</p> <p>Action by Joseph A. Young against Elbert A. Fowler and others. From an order denying a motion to vacate an attachment, defendant Fowler appeals.</p>

Claim by John Looram against the estate of Patrick J. Keenan, deceased. From an order directing Esther Keenan, the administratrix, to pay said claim, the administratrix appeals.

Action by Mary A. Hann, against, Weeks W. Culver and Benjamin Wright. From a judgment dismissing the complaint on the merits, with costs, after a trial before the court, plaintiff appeals.

Reference of a claim of Ludwig Baumann against the estate of Joseph B. Adamson, deceased, of which Elizabeth Moseley was administratrix. From a judgment entered by order of the court in favor of the plaintiff on the report of the referee, and from an order confirming the same, the administratrix appeals.

Action by Raphael Lewisohn and Leon Lewisohn against William A. Clevenger for conversion. From a judgment entered on a verdict for plaintiffs, and an order denying a motion for a new trial on the minutes, defendant appeals.

Action by John H. Hillier against Ellen Golden and William Hastings to enjoin the foreclosure of a mortgage, and to cancel such mortgage and a bond secured thereby.

<p>Appeal from special term, New York county.</p> <p>Action by Beverhout Thompson against Annie Stanley, as administratrix of David A. Stanley, deceased, and the Harris & Dew Faucet, Plug & Bung Company. From a judgment dismissing the complaint, plaintiff appeals.</p>

Action by John King McLanahan against Jordan L. Mott, Malcolm Graham, and the North River Bridge Company for injunction. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.

<p>1. Evidence—Declarations—Res Gestae.</p> <p>Statements as to the happening of an accident by the person injured after he had been carried to a drug store, one or two blocks from the place of the accident, made in answer to questions asked by a policeman, are not part of the res gestae.</p> <p>2. Same—Statements in Presence of Defendant’s Agent.</p> <p>In an action for injuries alleged to have been caused by the negligence of defendant’s servant, statements as to the happening of the accident, made by the person injured, are not admissible in evidence, unless they are a part of the res gestae, though they were made in the presence of defendant’s servant.</p>

Action by Adolph. M. Bendheim against James B. Morrow to recover the amount paid by him on a contract for the purchase of certain real estate owned by defendant, on the ground that the latter failed and refused to remove the lien of a certain mortgage on such real estate. From a judgment for plaintiff, defendant appeals.

Action by Richard Fitzpatrick against William D. Tweddle, as executor of and trustee under the will of Thomas B. Tweddle, deceased, to recover damages for the loss of certain personal .property caused by defendant’s negligence. There was a judgment dismissing the complaint, and plaintiff moves for a new trial on a case containing exceptions ordered to be heard at general term in the first instance.

<p>Appeal from judgment on report of referee.</p> <p>Action by Oliver W. Barnes against Francis C. O’Reilly and Joseph U. Crawford. From a judgment for plaintiff, defendants appeal.</p>

Action by William H. Clark against Charles T. Poor to establish a will. From a final and an interlocutory judgment sustaining a demurrer to an answer, and awarding the relief demanded in the-complaint, defendant appeals.

<p>Legacy Tax—Contingent Bequests.</p> <p>Where property is left by will to a trustee for the benefit of certain persons during life, with remainder to the survivors of certain other persons, during the life estates the remainder-men are not liable to pay on their contingent interest the collateral inheritance tax imposed by Laws 1885, c. 483.</p>

Action by Eugene Smith, as executor oí Richard Patrick, deceased, against Frederika Rentz. From an order granting a retrial of reference, and from a judgment entered on second report of referee for plaintiff, defendant appeals.

Petition, of David E. Austen, as receiver of taxes, to enforce the payment of the tax imposed against the Hudson River Telephone Company. From an order imposing a fine on the company for nonpayment of the tax, it appeals.

<p>1. Horse Railroad—Action for Personal Injuries—Instruction.</p> <p>In an action by an infant against a street-railroad company for personal injuries, plaintiff gave evidence that he got on defendant’s up-town car, offered to pay his fare, and the conductor put him off, so that he fell under a down-town car, and was injured. Defendant gave evidence that plaintiff ran in front of the horses of the down-town car, and was knocked down by them, and injured, before the up-town car reached the place of the accident. Held, that an instruction that if plaintiff was a trespasser, and got off as best he could on being notified, he could not recover; but even if he were a trespasser, if he was in a dangerous position, and the conductor threw him off, defendant was liable,—did not present the issue litigated on the trial, and was erroneous.</p> <p>2. Same.</p> <p>In such case, defendant asked the court to charge that if plaintiff was not on either car, but was running across the street, and ran into the horses of the down-town car, or into the car, he cannot recover. Held, that it was error for the court to reply that “I refuse so to charge. There is no evidence before the jury that would show that he was not on one car or the other.”</p>

Action by Ephraim Drucker against the Metropolitan Elevated Railway Company and another for damages for the diminished rental value of property caused by defendants’ operation of an elevated railroad in the street, and to restrain its future operation. From a judgment for plaintiffs, defendants appeal.

. Appeal from surrogate’s court, New York county. Petition by the American Surety Company of New York for distribution to a number of claimants of the surplus money arising from the foreclosure of mortgages on real estate of Sarah Lawrence Hazard, deceased. From the decree entered, petitioner appeals.

<p>Conversion—Subrogation to Right to Sue for.</p> <p>A wife executed a mortgage on her separate estate to secure a loan to her husband, to be made three months later. To insure the making oC this loan, the mortgagee accepted a draft drawn on it by the husband, and the draft was deposited with defendant, with the understanding that it should not leave his possession or be put in circulation, but should be returned to the mortgagee at the expiration of the three months, when it should pay the husband the amount agreed to be loaned. Held, that the negotiation of the draft by defendant while in his custody to an innocent holder for value, and the appropriation of the proceeds by defendant to his own use, was a conversion of the draft; and that, the mortgagee having subsequently been compelled to pay the draft to the holder, and having foreclosed its mortgage on the wife’s land to reimburse itself, the wife was subrogated to its right to sue defendant for the conversion.</p>

<p>Trustees—Compensation.</p> <p>The commissions of trustees, as respects the income of the trust estate for several years, are governed by the law existing at the time of settlement of their accounts, and not by the law in force at the end of each of such years, at which time they had the right to deduct their commissions before paying over such income. Savage v. Sherman, 87 N. Y. 283, followed.</p>

Action by Sabina Rosenberg against Samuel C. Boehm, Gustave S. Boehm, and Max S. Boehm, constituting the firm of S. C. Boehm & Co., Jacob H. Heller and Louis Rabinovic, constituting the firm of Heller & Rabinovic, and John J. Gorman, sheriff of the city and county of Hew York, to set aside a judgment entered in favor of S. 0. Boehm & Co. in an action brought by them against Heller & Rabinovic. Judgment for defendants.

Application by Frances M. Peaslee for the revocation of the probate of the will of Martha K. Peaslee, deceased. From an order denying the application, petitioner appeals.

<p>Appeal from court of general sessions, New York county..</p> <p>Sarah,C. Leland was convicted of larceny in the second degree, and appeals.</p>

Action by Melvin Stephens against Robert Louis Humphryes and others to foreclose a mortgage. From an order directing Edward H. Potter, a purchaser at the foreclosure sale, to complete his purchase, he appeals. For former reports, see 10 N. Y. Supp. 455, 753; 14 N. Y. Supp. 910, appeal dismissed 32 N. E. Rep. 046; 19 N. Y. Supp. 25, affirmed 31N. E. Rep. 625 ; 20 N. Y. Supp. 812.

Action by the John Church Company against George H. Clarke.Defendant pleaded a counterclaim for an amount larger than that sued for, and obtained an affirmative judgment. Plaintiff moves for new trial.

Action by Henry Harbeck against Sarah K. Pupin and others, as executors of Frederick K. Agate, deceased. From a judgment entered on a verdict for plaintiff, and from an order dgnying a motion for a new trial, defendants appeal.

Action by William K. Laidlaw, Jr., against Bussell Sage, for personal injuries. The complaint was dismissed at the trial, and plaintiff appeals.

Action by Hyman Schnitzer against Morris Willner. Plaintiff (respondent) moves to dismiss an appeal from an order of the general term of the city court for failure to give an undertaking.

<p>Action by Henry Piepgras against Walter D. Edmunds and John Hunter, Jr. Defendants demur to the complaint.</p>

Action by Thomas F. Burke, administrator of the estate of Joanna Burke, deceased, against the New York Central & Hudson River Railroad Company, to recover for the death of decedent. From a judgment entered on a verdict for plaintiff, and an order denying its motion for a new trial, defendant appeals.

<p>1. Manslaughter—Evidence—Question for Jury.</p> <p>On a trial lor manslaughter, a witness who lived in the same house and on the same floor with defendant and deceased, his wife, testified that she heard defendant enter his room at 8 o’clock in the evening. Defendant cursed his wife, and witness then heard a heavy fall, deceased crying out to defendant not to strike her. There was another, heavy fall, and deceased screamed, and said she was dying. Defendant called her a vile name, and told her to “die right there;” and deceased called for her child, after which everything was quiet. Three other persons living in the house testified to the same facts. Defendant testified that his wife was drunk when he reached home, and fell off a chair shortly after he arrived; that she afterwards attacked" him, and he slapped her; that she went into an adjoining room, and he afterwards went in, and laid her on a bed, and went out; that on his return he went to bed, and during the night she fell out of the bed; that he put her in bed again, and thought no more about it; that in the morning she was dead. There was also evidence that deceased was not drunk on the evening-of the alleged homicide. Bold sufficient evidence of defendant’s guilt to be submitted to the jury. "</p> <p>2. Same—Instructions.</p> <p>The sister of deceased testified that she charged defendant with killing deceased, and he denied it; that she told him that his four year old child told her that he had knocked deceased down, and had thrown her on a bed. In referring to such testimony the court said: “Now, that child was a child of tender years, and a child whose testimony could not be produced in this court, * * * but her ‘testimony’ is in this case in the form of a conversation had with this defendant. You are not entitled to give it all the weight * * * that you would give to it if it were testified to by a person of mature years, but it is something that you can consider in the case, and give it the weight that you think it is entitled to.” " Eeld, that the court’s reference to the child’s statement as “testimony” was not prejudicial error, since the jury knew that the child had not been examined, and were not likely to be misled by such mistake.</p> <p>8. Same—Character.</p> <p>A charge that “it is not because a man’s character is good that jurors are entitled to say that he did not commit the act,” though erroneous,' was error without prejudice, where two specific requests to charge as to the weight to be attached to character, and the benefit to be derived from evidence of good character, were granted in the very language of the requests.</p>

Action by Charles P. Hemenway and another against Morris F. Knudson and others. From portions of an order granting an order to take depositions, plaintiffs appeal.

<p>Appeal from special term, New York county.</p> <p>Action by Louis F. Martin and others against Eliza Jane Adams and others. Judgment for defendants was entered on the report of a referee, and plaintiffs appealed. Pending the appeal, plaintiffs moved for a resettlement of the case, so that it might contain the referee’s certificate that the case embraced all the evidence, and from an order permitting defendants to add any testimony that might be necessary to enable the referee to certify that the case contained all the evidence, defendants appeal.</p>

Action by William Campbell against Joseph Hughes and Job W. Harris, impleaded with James H. Temple, for an accounting. Plaintiff’s plea of the statute of limitations interposed to the counterclaim of defendants Hughes and Harris was sustained, and said defendants Hughes and Harris appeal.

Action by Baptist M. Corner and others against Alexander Mackey to recover on an account stated. From a judgment for plaintiffs, entered on the report of a referee, defendant appeals.

Action by the Arrow Steamship Company against James Gordon Bennett for libel. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals.

Action by Frederick P. Forster against Elizabeth Moore and others to foreclose a mortgage. From an order denying the motion of defendant Elizabeth Moore to compel the temporary receiver to pay over to her rents collected by him, she appeals.

Application by Robert Taggart for a peremptory writ of mandamus to compel Theodore W. Myers, as comptroller of the city of New York, to pay the relator a balance due on an award. Denied. Relator appeals.

Action by Joseph Bafolovitz against the American Tobacco Company for breach of a contract. From a judgment entered on an order sustaining a demurrer to the complaint, (23 H. Y. Supp. 274,) plaintiff appeals.

<p>Tenants in Common—Duty to Cotenants.</p> <p>B. and K. became tenants in common of a lot subject to a mortgage, each taking a half interest. Afterwards B. agreed with the administratrix of K. to purchase K.'s interest as soon as a decree of sale could be obtained from the surrogate’s court. This sale was not made, but the lot was sold under foreclosure of the mortgage, and was purchased by B., who gave the administratrix a mortgage for the amount that he had agreed to pay her for a deed, which was shown to be a fair price. Some of K.’s children were of age at the time of the foreclosure sale. Held, that the sale to B. would not be set aside 12 years afterwards, in an action by the heirs of K. against the heirs of B., who had died in the mean time.</p>

Action by Giles E. Leach and Philemon H. Andrews against Charles F. Linde, on a foreign judgment. From an order denying a motion to vacate an order of arrest, defendant appeals.

Action by Joseph S. Bryce against the Louisville, New Albany & Chicago Railway Company, as guarantor of the bonds of the Richmond, Nicholasville, Irvine & Beattyville Railroad Company. From an interlocutory judgment overruling the defendant’s demurrer to the complaint, defendant appeals.

Action by David H. Houghtaling against the Louisville, New Albany & Chicago Railway Company on a guaranty by defendant of the bonds of the Richmond, Nieholasville, Irvine & Beattyville Railroad Company. From a judgment overruling a demurrer to the complaint, defendant appeals.

Action by Jennie B. Woolley against William Buhler, Jr., to recover commissions alleged to have been earned by one Milton T. Woolley, plaintiff’s assignor, in effecting an exchange of property for defendant. There was a judgment in favor of plaintiff, and defendant appeals.

Matthew T. Dailey was convicted of an assault in the third de■gree, consisting in the arrest and imprisonment of complainant -without a cause, by defendant, who was a police officer. Defendant appeals.

Action by Charles Trotcky, an infant, by Samuel M. Trotcky, his guardian ad litem, against the Forty-Second Street & Grand Street Ferry Railroad Company, for personal injuries. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Action by Daniel B. Halstead and George Gildersleeve, as executors of Calib D. Gildersleeve, deceased, against Henry S. Ives, George H. Stayner, and Thomas C. Doremus on a promissory note. A verdict was directed for defendant, and plaintiffs’ motion to set it aside, and for a new trial on a case containing exceptions, was ordered to be heard at the general term in the first instance.

<p>Appeal from special term, New York county.</p> <p>Action by David M. Koehler against Joseph Hughes, impleaded with Henry Hughes. From a judgment dismissing the complaint on the merits, plaintiff appeals.</p>

<p>School Elections—Women’s Right to Vote—Constitutional Law.</p> <p>In providing for the election of school commissioners, under Const, art. 10, § 2, declaring that officers whose offices are created by law after the adoption of the constitution “shall be elected by the people or appointed, as the legislature may direct,” the legislature has no power to allow women to vote, as Const art. 2, § 1, restricts the right to vote to certain classes of male citizens.</p>

Action by the Mercantile National Bank of the City of New York against the Corn Exchange Bank to recover money alleged to have-been paid to defendant under mistake. From an order denying defendant’s motion to direct plaintiff to reply to the answer, defendant appeals.

Action by William H. Tebo against Henry Gregory Jordan and others for services rendered by plaintiff’s tug in towing defendants’ vessels. From a judgment in plaintiff’s favor, and from an order denying a motion for a new trial made on the minutes, defendants appeal.

<p>Appeal from court of general sessions, New York county.</p> <p>Charles W. Gardiner was convicted of an attempt to commit the crime of extortion, and appeals.</p>

Petition by the Broadway & Seventh Avenue Railroad Company for the condemnation of the leasehold estate and property of the Acker, Merrall & Condit Company in a specified lot of land.

Action by Ella D. George against Josephine E. Carpenter, Henry A. Boot, and Frederick H. Hatzel, as executors of Franklin E. James, deceased. The complaint was dismissed on the merits, and plaintiff appeals. This action is for the recovery from the representatives of a deceased special partner of a debt due from his firm to the plaintiff.

Action by Felice Tocci to restrain the mayor, aldermen, and commonalty of the city of New York, and Theodore W. Myers, as comptroller of said city, from paying certain moneys to the New York & Harlem Railroad Company and the New York Central & Hudson River Railroad Company, under Laws 1892, c. 339. From an order denying a motion for an injunction pendente lite, plaintiff appeals.

Petition by Jennie-Isaacs and another for a writ of habeas corpus to the warden of the district prisons. From an order dismissing the writ, relators appeal.

Action by Thomas Sheffield against Edward Early and others to foreclose a mechanic’s lien. From a judgment for plaintiff, defendant Early appeals. This action is for the foreclosure of a mechanic’s lien. John J. Astor is the owner of the premises at the southwest corner of Thirteenth street and Tenth avenue, which were leased by him to Edward Early for 20 years from May 1, 1888, and the lessee entered into possession.

Action by Willard Parker and another, as executors of Willard Parker, deceased, against Benjamin F. Butler, as trustee under the will of said Willard Parker, deceased, for a construction of certain portions of the will. Judgment for defendant.

Action by William F. Howe and A. H. Hummel against Elsworth L. Striker, individually and as trustee under the will of Joseph M. L. Striker, to set aside, as in fraud of creditors, a deed made by defendant individually to himself as trustee under said will.

<p>Master and Servant — Duty of Shipowner — Fellow Servants —Master and Seaman.</p> <p>A vessel owner, who has furnished a reasonably safe vessel, adequate appliances, and competent employes, is not liable for causing the death of a seaman who fell through a door which the master of the vessel had neglected to close or guard, as the master of the vessel and the seaman were fellow servants. 22 N. X. Supp. 749, affirmed.</p>

<p>Trial—Unsupported Finding.</p> <p>In a suit for commissions promised, the answer denying generally, , plaintiff testified that defendants promised him one-fourth of their commissions if they procured a loan of $25,000 on certain realty, the application being placed by plaintiff with defendants for a third person; that said amount was loaned, and the amount earned by defendants was $125, out of which plaintiff should get $31.25. One of defendants testified that ive never agreed to pay plaintiff any part of his commission on the loan. Held, that a judgment for plaintiff for $20 and $3.50 costs was not secundum allegata et probata.</p>

<p>Action by Charles A. Breck against Frederick A. Ringler. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Action by Frederick A. Card against Mary H. Meincke and another. From a judgment dismissing complaint, plaintiff appeals.</p>

<p>Action by Daniel E. Donovan against Margaret Clark. From order denying motion to vacate attachment, defendant appeals.</p>

<p>Claim of Silas J. Owens against a fund arising on foreclosure of a mechanic’s lien.</p>

<p>Action by George Alden. receiver, against Edward K. Clark and John I> Grange.</p>

<p>Action by Helen C. Beardslee and Guy R. Beardslee against Henry A. Dolge.</p>

<p>Action by Charles McCarthy against the Thousand Island Park Association.</p>

<p>Prosecution against Thomas Ryan.</p>

<p>Action by Bridget O’Hara and others, executors, against the Dutchess County Mutual Insurance Company.</p>

<p>Action by John Savelle against James easier.</p>

<p>Action by Abigail Depuy against Jane Cook.</p>

<p>Action by Celinda A. Fulton against George Macnoe.</p>

<p>Action by Richard Gibson against Henry J. Gibson and others.</p>

<p>Action by Henry Dale and others against Frank T. Gilbert, as sheriff, etc.</p>

<p>Action by Jonas Garter against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Frank Saumby, an infant, by guardian, against the city of Bochester.</p>

<p>Action by Anna Byan against Frank L. Smith.</p>

<p>Action by Thomas M. Rowlette against Roger Foster and others.</p>

<p>Action by Edward S. Steinam against George H. Bell.</p>

Motion by plaintiffs (respondents) for leave to appeal to the court of appeals. Granted. For decision on appeal to the common pleas, see 23 N. Y. Supp. 1019.

<p>Action by Bernard Campbell against Juan Y. Jimenes and others.</p>

Action by George W. Blood against George W. Smith and others. From an order setting aside dismissal of complaint, and ordering a new trial, defendants appeal.

<p>Motion for reargument" or leave to go to court of appeals. Denied. For decision on appeal to the court of common pleas, see 23 N. Y. Supp. 1027.</p>

<p>Action by John Livingston and others against Percy N. Lawrence. From a judgment entered on a verdict directed in favor of plaintiffs, defendant appeals.</p>

<p>Action by Henry J. Fisher against Gertrude Boecher.</p>

<p>Action by Frank Raubicheck against William J. Snedecor.</p>

<p>Action by Edward B. Spaulding against the Wright Universal Electric Company. From a judgment entered on a verdict in favor of plaintiff, defendant appeals.</p>

<p>Action by William F. Howe and Abraham H. Hummell against Edward J. Woolsey.</p>

<p>Action by Balthazar Dornbach and others against John Hahn.</p>

<p>Motion for reargument. Denied.</p>

<p>Appeal from -special term.</p> <p>Action by Thomas White against the city of Brooklyn.</p>

<p>Action by John Scanlon against the H. B. Claflin Company.</p>