Volume 26 — New York Appellate Division Reports

<p>Corporation—guaranty of a lease, executed by a brewing company in consideration of the lessee’s promise to buy beer from the company — the plea of ultra vires cannot be asserted — sealed instrument expressing a consideration.</p> <p>A guaranty of the performance by the lessee of premises to be used as a saloon, of the conditions and covenants contained in the lease, executed by a corporation organized under the General Manufacturing Act (Laws of 1848, chap. 40), for the manufacture of ales and beer, in consideration of the lessee’s promise to buy his beer of the corporation, is not ultra vires.</p> <p>When, moreover, it appears that the lessor delivered possession of the premises to the lessee, in reliance upon such guaranty, the corporation will not be permitted to advance the plea of ultra vires.</p> <p>The fact that such a contract is under seal and expresses a Consideration is sufficient to support it.</p>

Appeal by the defendant, The Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of'the clerk of the county of New York on the 22d day of June, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of June, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Motion by the plaintiff, Mary Paget, and by the defendants, The Union Trust Company and others, for a new trial made upon a ease -containing exceptions, ordered to be heard at the Appellate Division in the first instance, an interlocutory judgment having been entered in the office of the clerk of the county of ¡New York on the 8th day of July, 1897, upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by the defendant, Bridget Dempsey, from a judgment of the Supreme Court in favor of the plaintiff, and of the defendants, John Dempsey and others, entered in the office of the clerk of . the county of New York on the 13th day of April, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s, office on the 7th day of April, 1897,, denying the said defendant’s motion for a new trial made upon the minutes.

<p>Surplus moneys—damages for a breach of contract secured by a subsequent mortgage •— right of the referee to determine such damages—measure of damages.</p> <p>The owner of premises in Sixteenth street in New York city conveyed them to-contractors subject to an existing mortgage and agreed to take an additional mortgage for the remainder of the purchase price, and to make advances for the erection of buildings on the premises, such advances to be secured by mortgages- to be given by the contractors. Two of such mortgages were-given, one on the Sixteenth street property and one on premises owned by the contractors in Twelfth street, the latter being collateral to a bond conditioned . that,, in case the contractors should make good all damages which the grantor might sustain by reason of their failure to perform said building loan agreement or any part thereof as aforesaid, • then the obligation should be void. ■Before the completion of the buildings the contractors failed, and the work was. abandoned, and upon the foreclosure of the purchase-money mortgage On the-Sixteenth street ■ property there still remained an amount due the grantor for advances, the only security for which was the mortgage on the Twelfth street property. - '</p> <p>Upon an appeal from the report of a referee appointed in proceedings to determine' the disposition of the surplus money arising from the sale of the Twelfth street property, upon foreclosure of a prior mortgage thereon, which fund was claimed both by the assignees of the grantor holding the mortgage above mentioned and by the holders of a third and subsequent mortgage on the Twelfth street property, given to secure a debt of the contractors, it' was Held, that the referee in. such a proceeding had power to determine the amount of the damages secured by the mortgage given -to the grantor; .</p> <p>That the rights of the grantor of the Sixteenth street property were fixed when the contractors abandoned their contract,, and that he, having lost everything by way of security except the mortgage on the Twelfth street property, could claim under that mortgage all the ascertained damage directly consequent upon the breach of the condition of the bond to- which it was collateral;</p> <p>That he was entitled to the surplus money arising on the sale of the Twelfth street-property to the extent of the ad vanees.mad'e by him towards the improvement of the Sixteenth street property, secured by the mortgage on the Twelfth street property.</p>

Appeal by the plaintiffs, Leila 0. Henriques and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of - the county of New York on the 3d day of November, 1897, dismissing the coniplaint, and also from an order entered in said clerk’s office on the 7th day of December, 1897, denying the plaintiff’s motion to resettle or vacate the first-mentioned order, and dismissing the complaint upon the merits.'

Appeal by the plaintiffs, Leila O. Henriques and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of November, 1897, striking out certain words of the reply of the plaintiffs to the answer of the defendant Minnie Garson as irrelevant. .

<p> A reply in a partition suit which raises an issue as to who were the heirs of the person who died seized of the premises, is not frivolous. </p> <p>WFere a reply to an answer, interposed' in an action of partition brought by alleged heirs at law of a person who died seized of the premises, raises a question,which cannot be decided upon a mere inspection of the pleadings,' as to who were - the heirs at law of such decedent, judgment should not be granted thereon, as. 1 frivplous. ' •</p>

Appeal by the plaintiff, The Central Trust Company of New York, as substituted trustee of the separate estate of Isabel von Linden, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 10th day of April, 1891, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint.

Appeal by the plaintiff, Kate Cullom, as administratrix, etc., of Hugh Cullom, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 21st day of January, 1897, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term.

Appeal by the plaintiff, John Costello, an infant, by John Costello, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 18th day of May, 1897, upon the dismissal of the complaint by direction of the' court after a trial at the New York Trial Term.

Appeal by the plaintiff, Patrick F. Lyons, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 17th day of March, 1897, upon the report of referees.

Appeal by the defendant, The Third Avenue'Railroad Company, from, a judgment of the Supreme Court in. favor of .the plaintiff, entered in the office of the clerk of the county of New Voi’k on the 10th day of April, 1897, upon the. verdict of a jury, for $1,500, and also from an order entered in said clerk’s office on the 14th day of April, 1897, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the New York Press Company (Limited), from an order of the Supreme Court, made at the New York Special Term bearing'date the 15th day of October, 1897, and entered in the office, of the clerk of the county of New York, striking out portions of the amended answer as irrelevant, redundant • and scandalous. • ■</p>

Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on. the 17th day of- February, 1897, upon the verdict of a jury - rendered by direction of the court, and also from an order entered in said clerk's office on the 23d day of April, 1897, denying the defendant’s motion for a new trial made upon the minutes.

<p>" Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court.in favor of the plaintiff,' entered in the office of the clerk of .the county of New York-on the 17th day of May, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of-. June, 1897, denying the defendant’® motion- for a new trial made; upon the minutes.</p>

Appeal by the defendant, Caroline J. Ernest, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of.November, 1897, as resettled by an order entered in said clerk’s office on the 2d day of December, 1897, requiring the defendant to make the answer more definite and certain, and to strike therefrom irrelevant matter.

<p>Appeal by the plaintiffs,'Edward W. Backus and- another, from •a judgment of the Supreme Court in favor of the defendant bearing date the 30th day of June, 1897, and entered in the .office of the clerk of the county of New York upon the decision of the. court rendered after a trial before the court without a jury at the New York Trial Term.</p> <p>This action was brought to recover the amount of a policy of fire insurance issued by' the defendant, dated November 2, 1892, and having one year to run, upon property owned by the -plaintiffs which was destroyed by fire in September, 1893.</p>

Appeal by the defendant, Tiffany & Co., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of April, 1897, upon the verdict of a jury, and also from ail order entered in said clerk’s office on the 6tli day of April, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The Allentown Rolling Mills, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of December, 1897, denying its motion to refer, the issues in the action.

<p>Appeal by the defendant, Bafala S. Beston, trading under the name of B. S. Beston & Co., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 4th day of February, 1897, as of the 27th day of April, 1896, upon the decision of the court rendered after a trial at the New York Trial Term before the court without a jury.</p>

Appeal by the plaintiff, Henry P. Kirkham, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 21st day of June, 1897, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Motion by the appellant, Sigmund M. Mundt, as administrator de bonis non of Martin M. Mundt, deceased, for leave to go to the Court of Appeals.</p>

Appeal by the defendants, Louis Baxter and others, as executors, etc., of Charles Bauer, deceased, from a judgment of the Supreme Court, entered' in the office of the clerk of the county of New York on the 27th day of January, 1897, upon the decision of the court rendered after a trial at the New York Sjxecial Term;

Appeal by the defendant, The Bronx Gas and Electric Company, from an order of the Supreme Court, made at the New York Special Term on the 30th day of December, 1897, and entered in the office of the clerk of the county of New York, continuing an injunction pendente lité.

Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure. The defendant' is an educational institution devoted particularly to preparing students for the ministry. It received a charter from the Legislature of this State in 1822, which was amended in 1868.

Appeal by the- plaintiff, Henry A. Gouge, from a judgment of the Court of Common Pleas for the city and county of Hew York, entered in the office of the clerk of said court on the 31st day of December, 1895, upon the decision of the court rendered after a trial at an Equity Term of said court, dismissing the complaint upon the merits.

Appeal by the defendant, Augustus T. Gillender, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of February, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2Sth day of January, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Adelbert Kullman, from a judgment of the Supreme Court in.favor of the defendant,, entered in the office -of the clerk of the county of Hew York on the 23d day of July, 1897, upon the decision of the court rendered after a trial at the ' Hew York Special Term dismissing the complaint upon the merits. The action was brought for specific performance of a contract for the purchase of real estate.

Appeal by the petitioners, William J. Hardy and William H.. Kennedy, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 29th day of Hovember, 1897, denying their application for leave to bring an action against the committee of the property of an incompetent person to recover the value of services rendered, expenses incurred, etc.

Appeal by the defendants, Samuel Mosbacher and SigmundITerzfelder, from a judgment of the Supreme Court in favor of the plaintiff, entered ill the office of the clerk of the county of Hew York on the 16th day of April, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of April, 1897, denying the defendants’ motion for a new trial made upon the minutes.

■ Appeal by the plaintiff, Oallman Rousej from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Héw York on the 23d day of Hovember, 1897, directing the defendants to serve a new undertaking in a replevin suit.

Appeal by the defendant, Peter H. McNulty, from a judgment of the Supreme Court in favor of the plaintiff, entered -in the office of the clerk of the county of New York on the 16th day of June, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of July, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, James Ellwood Sanders, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk.of the county of New York on the 31st day of January, 1898, denying his motion for an injunction pendente lite.

<p>Appeal by the, plaintiff, Augustus Sbarboro, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of .New York on the 25th day of January, 1898, upon the decision of the court rendered after a trial at’ the New York Special Term, overruling the plaintiff’s demurrer to the matter contained in the 2d paragraph of the defendants’ answer, on the ground that it is insufficient in law upon the face thereof, and also from an order entered in said clerk’s office on the 24th day of January, 1898, directing the entry of said judgment.</p> <p>This is an action to compel the individual defendants to revoke certain ex parte orders made by them as members of the board of health, which perpetually enjoin the plaintiff from using the rear buildings, Nos. 59 and 61 James street, as a human habitation, without a written permit from the board of health, and which condemns the buildings and requires the plaintiff to remove them. The plaintiff also asks an injunction together with- rental damages sustained by him during the time he is prevented from using the buildings.</p> <p>He avers that he is the tenant of these rear ■ buildings, which are tenement houses; that he has sublet the apartments, and that he and his tenants have been forcibly expelled from and kept out of the premises (pursuant to the defendants’ orders) to his great and continuous damage.</p> <p>He also- avers that the buildings are and always have been entirely fit for human habitation; have always been sanitary and wholesome, and that their occupants have always enjoyed good health. The defendants, in substance, admit the acts charged, and-seek to justify them upon the allegation that the buildings are not tit for human habitation, but, on the contrary, are a nuisance; and that their destruction is essential for the protection of the public health.</p> <p>The individual defendants then allege, as a separate and partial defense to so much of the action'as seeks pecuniary compensation, that their -acts were done in good faith, with ordinary discretion. The entire .paragraph in question reads as follows :</p> <p>“ II. And as a partial defense to so much of the said complaint and of this action as seeks a judgment for damages against them, the defendants Wilson, Fowler, Doty and Roosevelt allege that as to all of the acts alleged in said complaint to have been committed by them, and as to all the acts admitted in this answer to have'been done by them, that the same were done in good faith wtith ordinary discretion and with evidence before them sufficient to -justify their action, and in the due, ordinary and necessary qaerformance of their duty as public officers under and pursuant to the laws in force in the city of New York for the cafe and preservation of the public health and not otherwise.”</p> <p>To this defense the plaintiff demurred upon the ground that it is insufficient in law. The Special Term overruled the demurrer, and held the plea to he good. From the interlocutory judgment to that effect the plaintiff appeals</p>

Certiorari issued out of the Supreme Court, and attested on the 24th day of March, 1897, directed to Theodore Roosevelt and •others, police commissioners, composing the board of police commissioners of the police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings in relation to the dismissal of the relator from the ¡lolice force of the police department of the city…

Submission ol a controversy upon an agreed, statement of facts pursuant to section 1279 of the Code of Civil Procedure. The plaintiff seeks a judgment' against the executrix of former Sheriff Gorman and the sureties upon the latter’s official bond, for the sum of $5,388.88, being moneys received by Mr. Gorman, as sheriff, which he did not account for or pay into the treasury of the city. Two of the sureties, Messrs. McQuade and Plunkett, are alive and are sued individually.

Appeal by the plaintiff, Peter H. Daly, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on- the 28th day of June, 1897, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term,,and also from an order entered in said clerk’s office on the 22d day of September, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Max Freund and another, from a. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of October, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on. the 12th day of October, 1897, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Julius Bernstein and another, from an order’of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16tli day of December, 1897, granting the defendants’ motion to interplead one Aaron Wainess as a defendant in the action, and relieving the defendants from all liability upon paying to the plaintiffs the sum of $88, and interest from August 8, 1897.

Appeal by the defendant, The Beard of Education of the City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day. of January, 1898, granting a peremptory writ of mandamus requiring the defendant to make requisition upon the comptroller for the payment of two bills presented to it by the relator.

Appeal by the plaintiff, Sarah Schick, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county .of Hew York on the 1st day of Hovember, 1897, upon the decision of the court rendered after a trial at the Hew York Special Term sustaining the defendant’s demurrer to the plaintiff’s complaint on the ground that the complaint did not state facts sufficient to constituté a cause of action.

Appeal by the plaintiff, Alexander P. W. Kinnan, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 15th day of October, 1891, upon the decision.of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merits, and also from an order entered in said clerk’s office on the 12th day of October, 1897, upon which said judgment was entered. .

Appeal by the plaintiff, James E. Kelly, from an order of the Supreme Court, made at .the New York Special Term and entered in the office of the clerk of' the county of New York on the 28th day of January, 1898,evacating a warrant of attachment.

Appeal by the plaintiff, John I. Blair, from a judgment of the Supreme Court in favor of the defendants, entered in the office of íhe clerk of the county of ISTew York on the 30th day of June, 1897, upon the dismissal of the complaint bv direction of the court after a- trial at the Hew York Trial Term.

Appeal by the plaintiff, Thomas W. Burford, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Hew York on the 12tli day of March,. 1897, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term, and also from an order entered in said clerk’s office on the 9th day of March, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the relator, George Tyroler, from an order of the Supreme Coui’t, made at the New York Special Term and entered in the office of the clerk of the county of New York on - the 12th day of January, 1898, dismissing a writ of habeas cox’pus and remanding the relator to,the custody-of the warden of the city prison, of the city of New York.

Appeal by the plaintiffs, John F- Spaulding and others, from a-judgment of the Supreme Court in favor of the defendant, entered in the office of-the clerk of the county of New York on the- 17th day of June, 1896, upon the decision of the court rendered after a' trial at the New York Special Term dismissing the complaint upon the merits, with notice of an intention to bring up for review upon such appeal the decision and order entered in said clerk’s office on the 11th day of…

<p>Appeal by the plaintiffs, Isaac Sommers and others, from portions of, and by the defendants, Leon Gotten tin and others, from the whole of, a final judgment of the Supreme Court, entered in the •office of the clerk of the county of New York on the '3d day of May, 1897, upon the report of a referee, an interlocutory, judgment •entered in said clerk’s office on the 22d day of May, 1895, upon the' report of a referee, and an order entered in said clerk’s office on the 13th day of April,. .1897, overruling exceptions to the report of the -referee appointed under the interlocutory judgment. ■</p>

Appeal by the defendant, Lewis Z. Bach, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of July, 1891, upon the decision of the court rendered after a trial at the New York Special Term in an action brought to foreclose a mechanic’s ilien. • The lien was filed by the plaintiff for work and materials furnished under contract with the defendant Bach, the owner of an apartment ¡house at…

Appeal by the defendant, Richard K. Fox, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of May, 1897, upon the verdict of a jury for $26,000; also from an order entered in said clerk’s office on the 5th day of May, 1897, denying the defendants motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 4th day of May, 1897, granting the…

Appeal by the defendant, David 0. Haynes, doing business under the firm name of D. 0. Haynes & Oo., from an order of the. Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of January, 1898, enjoining him from publishing any newspaper, the name and title of which shall be “New York.

Appeal by the plaintiffs, Frank F. Spencer and another, from a judgment of the Supreme Court in favor of the defendant Henry . Weber, entered in the office of the clerk of the county of Kings on the 15tli day of July, 1897, upon the decision of the -court rendered after a trial at. the.Kings County Special Term dismissing the complaint upon the merits.

Appeal by the defendant, Jacob Kabatchnick, from an order of the Supreme , Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of'November, 1897, modifying a judgment in a suit for separation by reducing the alimony from twenty dollars to ten dollars per weék.

<p>Judgment directing the sale for cash of premises upon which legacies are charged— right of legatees who purchase to have their legacies credited upon the purchase j price.</p> <p>An interlocutory j udgment, entered in an action in which all the persons interested | in an estate were parties, adj udged that certain legacies were specific charges upon the premises in question, and directed that such premises be sold for cash; ¡ that the costs, disbursements^ fees and commissions be deducted, and that the ! balance be distributed as" directed by the final judgment. The premises were ; ■ accordingly sold and were bid in at the sale for four of the legatees. .</p> <p>Held, that, upon an application by all of the interested parties, the Special Term had power to make an order requiring the referee who conducted the sale to file his report of sale to the four legatees, upon the payment to him in cash of a sum sufficient to cover the costs and the expenses of the sale, and to receive as cash the receipts of the four legatees for such portions of their respective legacies as should equal the balance of the purchase price.</p>

Appeal by the relator, J. Carlton Ward, from an order of the Supreme Court, made at the New York Special. Term and entered in the office of the clerk of the county of New York on the 7th day of June, 1897, dismissing an alternative writ of mandamus, with notice of an intention to bring' up for review upon such appeal an order entered in said clerk’s office on the 25th day of May, 1897, granting the defendant costs against the relator.

Appeal by the defendant, Mary H. Thompson, from a judgment of the City Court of Yonkers in favor of the plaintiffs, entered in the office of the clerk of said court on.the 9th day of December, 1896, upon the verdict of a jury, and also from an order bearing ' date the 8th day of January, 189t,, and entered in said clerk’s office, denying said defendant’s motion for a néw trial made upon the minutes. •

Aureal by the defendants, Louis F. Brenneoke and others, from a judgment of the Supreme Court in favor of the plaintiff James Henderson, entered in the office of the clerk of the county of Richmond on the 30th day of October, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of October, 1897, denying the defendants’ motion for- a new trial made upon the minutes.

Appeal by the defendant, Catharine M. Yonder Bosch,. from an order of the Supreme Court, made • at the Westchester Special' Term and entered in the office of the clerk of the county of Westchester on- the -22d day of December, 1897, granting the plaintiff’s. motion to strike the action from the Special Term calendar.

<p>Appeal by William- P. Lyon and Jere M. Lyon, copartners, composing the business firm of Lyon Brothers, from so' much of an order of the Supreme Court, made at the Dutchess County Special ' Term, bearing date the l'8tli day of January, 1896,, and entered in the office of the clerk of the county of Westchester, confirming the report of commissioners of appraisal appointed in condemnation proceedings, as affects the rights, property interests and business of the firm of Lyon Brothers, and also from the report of the said commissioners.</p>

Appeal by the relators, William P. Lyon and another, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 22d day.of November, 1897, dismissing a writ of certiorari issued to review the proceedings of the respondents, the board of assessors of the town of Bedford, Westchester county, N. Y.

<p>Specific performance not decreed where the land is held adversely to the vendor— deed hy an executor under a power of sale of land, held adversely.</p> <p>A vendee cannot be compelled to specifically perform a contract for the purchase of land where, at the time fixed for performance, it is in the actual possession and occupation of persons claiming title and possession adversely to the vendor and those under whom he claims.</p> <p>Qucm'e, whether the provisions of the Real Property Law (Laws of 1896, chap. 547, § 225) making a grant of real property absolutely void, if the property be at the time “ in the actual possession of a person claiming under a title adverse to that of the grantor,” is applicable to a conveyance by an executor acting under a power of sale given by his testator’s will.</p>

<p>Trial — improper comments of the court in the presence of the .jury — cured by the ■ charge — mode of reviewing such comments ^ record relative to the denial of a motion for an adjournment.</p> <p>A statement by the court, made on the defendant’s application for an adjournment of the trial of an action because of the absence of four witnesses, that the cóun- ' sel for .the defendant was “simply trying to fool, to hoodwink the jury, that is all,” is cured, where the court, in its charge, subsequently directs the jury to disregard the whole matter, including its remark “ that it was mere hoodwinking a jury to allude to absent witnesses.”-</p> <p>Where, in the course of a trial, it is evident that the counsel for the defendant is trying to make up a record which will show that his application for an adjournment has been improperly denied, the court may properly direct that the stenographer note on the record that an inquest has once been taken in the action., •</p> <p>Semble, that since the amendments to section 88 of the Code of Civil Procedure, requiring the stenographer to- note remarks and comments of the j udge during the trial, the method of reviewing improper utterances of the trial court in the presence, of the jury is by exception.</p>

Appeal by William I. Halstead from the appraisal and report of Commissioners appointed in this proceeding, filed in the office of the clerk of the county of Westchester on the 31st day of July^ 1895, and also from an order made at ■ the Orange Special ■ Term and entered in the office of the clerk of the county of Westchester on the (Tth day of October, 1895, confirming said report.

<p>Appeal by the relator, Fred 0. Cocheu, from, an order of the Supreme Court, made at the Kings .County Spécial Term and entered in the office of the clerk of the county of Kings on the 1st day of December, 1897, denying his motion for a peremptory writ of mandamus requiring the respondent to take such proceedings as would result in preventing the Sea Beach Railroad Company from maintaining its ■ steam railroad on ■ the same' grade, as the Fort Hamilton parkway, and operating its cars on the same grade. .</p>

<p>Appeal by the defendant, The City of Mount Vernon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 18th day of October, 1897, upon the verdict of a jury, and also from an order bearing date the 9th day of October, 1897, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Negligence — a boy injured while assisting,.contrary to the terms of his employment, in the use of a machine —failure of a foreman to secure loose parts of a machine. — contributory negligence.</p> <p>A boy fifteen years of age was employed about a machine shop under an agree- ' ment between the proprietor of the machine shop and the boy’s father that the-boy was to be employed only in cleaning the shop, running errands and drilling holes, and was not to be placed at work upon any machine without the consent, of his father. While assisting, under the direction of his employer’s foreman, without the consent of his father, in operating a hydraulic pump, he was injured by the fall of some of the parts, which had become.loosened, to the knowledge of the foreman, but which might have been secured by the use of a rope.</p> <p>In an action brought by the boy against the proprietor of the machine shop to-recover for the injuries thus sustained,</p> <p>Held, that the jury were authorized to find that the defendant was guilty of negligence in permitting or directing the plaintiff to work about the machine, and also because of the foreman’s neglect to properly secure the machine and protect the plaintiff;</p> <p>That if there was any question of contributory negligence, it was one- to be decided by the jury.</p>

<p>Negligence—action for personal injuries based upon the fact that the defendant suddenly started its car — the plaintiff cannot change heft' position on the trial — improper refusal to charge.</p> <p>Where the only issue, in an action brought to recover damages for personal injuries resulting to the plaintiff from the alleged negligence of the defendant, an electric railroad corporation, is whether the defendant suddenly started its car after having stopped it in order to permit the plaintiff to alight, the defendant is entitled to have the court charge the jury that, if they believe that the plaintiff stepped from the car while it was in motion, their verdict must be for the defendant; as, although it is not necessarily a negligent act to alight from a moving car, the plaintiff, having taken the position that the accident occurred from the sudden starting Of the car after’it had stopped to enable her to alight, should not be permitted, in order to establish a liability oh the part of the defendant, to shift her claim and to take another, position, of which she had given the defendant no notice.</p>

Appeal by the plaintiff Ebenezer J. Purdy, from a judgment of the Supreme Court in favor of the defendants, entered in the office of' the clerk of the county of Westchester on the 3d day of July, 1897, upon the decision of the court rendered after a trial at the Westchester County Special Term dismissing his complaint upon the merits.

<p>Appeal by the defendant, George 0. Tilyou, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of March, 1897, upon the verdict of a jury.</p>

<p> Conveyance by a husband to his wife in consideration of a loan of moneys which, had been paid by the husband to the wife for services. </p> <p>Semble, that where a husband at a time when he is perfectly solvent agrees to pay his wife a certain sum from week to week for services rendered by her in a business conducted by the husband, the money, when paid to the wife, becomes part of her separate estate, and the loan of it to her husband furnishes a sufficient consideration for conveyances subsequently made in contemplation of insolvency by the husband to the wife.</p>

<p>Order granting counsel fees and alimony at the same rate as the husband had pre* viously agreed to pay the wife.</p> <p>Where an action brought by a wife against her husband for a separation is discontinued upon the execution of a sealed agreement, by the terms of which the husband agrees to pay his wife a fixed sum per week for her maintenance as well as certain counsel fees, and that, upon his default, she may recommence the action for a separation and petition any court of competent jurisdiction for alimony and counsel fees, and the wife, upon the husband’s failure to perform the agreement, begins another action for a separation, an order made therein requiring the husband to pay alimony and counsel fees at substantially the same rate as he had agreed to pay will not be disturbed.</p>

Appeal by the defendant, Lewis Kresner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 14th day of July, 1896,. Upon the decision of the court rendered after a trial at the Kings. County Special Term enjoining him from the use of the trade or business name of “ Cameron’s.”

Appeal by the plaintiffs, Clarence S. McClellan and another,' from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Westchester on the 29th day of July, 1897, granting the defendant’s motion for a bill of particulars.

Appeal by the defendant, John J. Ashley, from a judgment of the Supreme Court in favor of the plaintiff for $214.36, entered in the office of the cleric of the county of Kings on the 16th day of August, 1897, upon an order of the Supreme .Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 10th day of August, 1897, striking out the answer as frivolous and directing the entry of judgment on the pleadings in favor…

<p>. Appeal by the defendant, Michael Donahue, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Orange on the 1st day of June, 1897, upon the decision of the court rendered after a trial at the Orange Special.Term.</p>

Appeal by the defendant, the Edison Electric Illuminating Company of Brooklyn, from a judgment of the Supreme Court' in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 15th day of June, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of July, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Security Trust Company, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 15th day of May, 1897, upon the decision of the court rendered after a trial at the Westchester Special Term.

Appeal by the defendant, The American Belgian Lamp Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of February, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s' office on the 1st day of 'March, 1891, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Edward F.. Milliken and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of June, 1897, upon the verdict of a jury for $4,000, and' also from an order entered in said clerk’s office, on the 12th day of July, 1897, denying the defendants’ motion for a. new trial made upon the minutes. *

Appeal by the defendant, The Cbney Island and Brooklyn Kail: road Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the count-y of Kings on the 1st day of May, 1897, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 3d day of May, 1897, denying the defendant’s motion for a new trial.

Appeal by the defendant, May Louise Kirkman, individually and as administratrix of John Kirkman, deceased, from a final judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 12th day of June, 1897, upon the decision of the court rendered after a trial at' the Kings County Special Term.

Appeal by the plaintiffs, George D. Sweetser and others,, from a judgment of. the Supreme Court in favor of the defendants, entered- ■ in The office of the clerk of the county of Suffolk on the 29th day of December, 1896,'upon the decision of the court rendered after a trial at the Suffolk Special Term dismissing the complaint. The action was' brought to set aside a voluntary assignment for the. benefit' of creditors on the ground that said assignment was fraudulent and void.

Cross-Appeals by the plaintiff,. William Jeremiah, and'by the defendant, Rosina A. Pitcher, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 19th day of July, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Floyd. S. Corbin, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 24th day of August, 1897, modifying an injunction order theretofore granted in the action, and directing the plaintiff to file an undertaking conditioned to pay any indebtedness that may be found due to the defendants in the action, or in any other action or pro-* ceeding in which the same…

Appeal by the plaintiff, William W. Penfield, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 18th day of November, 1897, upon the report of a referee^

Appeal by the defendants, The Coney Island and Brooklyn Railroad Company and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of June, 1897, granting an injunction pendente lite.

Appeal by the plaintiff, the Nason Ice Machine Company, from a judgment of the Supreme Court, in favor of the defendants Sarah-B. Upham and the Yonkers Hygeia Ice Company, entered in the office of the clerk of the county of Westchester on the 14th day of,' December, 1896, upon the decision of the court rendered after a > trial at the Westchester Special Term dismissing the complaint on ' the merits as against the defendants Sarah B. Upham and the-Yonkers Hygeia Ice Company,…

Appeal by the defendants, The H. W. Johns Manufacturing Company and another, from a. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 25th day of January, 1897, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 26th day of January, 1897, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, James Van Tassel, from a judgment of the County Court of Dutchess county, rendered on the 18th day of June, 1897, convicting the defendant of the crime of subornation of perjury, and adjudging that he be imprisoned in the State prison at Sing Sing for the term of' four years.

Appeal by the plaintiffs, Hannah Frank and others, as trustees of Hadassah Lodge, No. 8, U. O. T. S., of the city of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 31st day of August, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint upon the merits, and adjudging that' a bond and mortgage be delivered up and…

<p>Appeal by the plaintiff, John Meenagh, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 16th day of November, 1896, upon the verdict of a jury of no cause of action, with notice of an intention to bring up for review upon such appeal an order denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiffs, William H. Allee and others, as executors and trustees, etc., of Joseph B. Allee, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 11th day of February, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint.

<p>..Negligence^ injury to a.steveclore from catching his hand in'the rope of a steam ' .. ... . ■ winch.</p> <p>Injuries sustained by a stevedore, of several years experience in his occupation, from catching his band in the sling or rope of á steam winch so that liis hand was drawn into the pulley at the end of the crane and was crushed, considered by the court, under the evidence, not to have been caused through any neglect of liis employer, but by the carelessness of a fellow-servant or by his own . 'negligence. - ■ ' '</p>

<p>. -Place of trial— it will, not bts.changed frorn-QueensCounty fa New York cov/nty for tlie convenience of witnesses — changed for the reason that the cause of action arose, ■ ■ and that both parties reside, in Neio York. ... ..</p> <p>57hgre, on a' motion to change the pláoe of trial.'of an action .from the county of Queens to the county, of. New York, made on the ground that themonvenience of witnesses and the ends of justice will be promoted by the change, it appears from the defendants affidavit that the cause of action arose in the city of New York, in which county both the plaintiff and'defendant reside) the motion wili : be granted for -the- reasons last stated, although' no) demand for a-change, ■ ás a matter of right,, has been made under section 986 of the..Code of Civil Procedure. ■ . ,</p> <p>¿emite, that the place of the trial of an action will not he changed from the county bf Queens to that of New York upon.the ground'of. the convenience of witnesses. • ' ...</p>

<p>Appeal by Charles W. Carpenter, as purchaser in foreclosure, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of West-' ■Chester on the 27th day of November, 1897, confirming the report ■of a referee, and requiring the said appellant to complete his purchase of the premises sold under foreclosure in the action.</p> <p>The 2d article contained in the will of Gilbert B. Hart, deceased, referred to in the opinion, i.s as follows :</p> <p>“ Second. I authorize and empower my executors, at their discretion, to convert into money my personal'property, except such parts ■of it as are- hereinafter' bequeathed,, and I authorize and empower them, at their discretion, to sell and convert all my real estate, and</p> <p>1 direct them to divide the net proceeds of both real and personal •estate into three equal and separate portions or funds, and to invest the same on good security, and to keep them as separate and distinct funds or portions, with power to collect arid reirivest the same-, from tithe to time, as may be expedient or necessary, and to hold and dispose of said three funds in trust as follows: ” Then follow directions us to the disposition of .the said three funds.</p>

Appeal by the plaintiff,■ Deborah L. Mangam,' from 'a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 29th day of May, 1897, upon the verdict of a jury ; and also from an order bearing date the 19th day of May, 1897, ¡and entered in said clerk’s office, denying the plaintiff’s- motion for a new trial made upon the minutes.

Appeal by the defendant, Livingston Sickles, from, a judgment, of the County Court of Kings county in favor of the plaintiff, rendered on the 15th day of Hovember, 1897, upon the verdict of a. jury convicting the defendant of the crime of robbery in the first degree.. ...

Appeal by the defendant, John ¡B. Ireland, from a judgment of the Supreme Court in favor of the plaintiff in.the first above-entitled action, entered in.the office of the clerk of the county of Kings on the 29th day of October, 1896, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 28th day of October, 1896; denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, The New York Suburban Water Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the. county of Westchester on the 23d day of September, 1897, upon the decision of the court rendered after a trial at the Westchester Special Term.</p> <p>■ The New York and Mount Vernon Water Company was organized in January, 1886, pursuant to 'the provisions of chapter 40 of the Laws of 1848. Prior to this time, and in 1873, the Mount Vernon Water Company had been incorporated with a capital of $25,000. The two above-named companies came into existence for the purpose of supplying the village of Mount Vernon with water. The first named of these companies, upon its organization, purchased the stock of the other company, paying therefor its full par value. Thereupon the village, through constituted authority, granted to the New York and Mount Vernon Water Company and to its successors and assigns the exclusive privilege of constructing, maintaining and operating its waterworks in said village for a period of twenty' years. The terms and conditions of this ordinance were accepted by the company, and the same became operative for the purpose contemplated. On March 20, 1886, three shares of stock of the company were issued, evidenced by certificates 1,2 and 3, to F. Hopkinson Smith, George H. Holt and G. D. L’Huffier respectively. On the same-day the same company, through its president,. F. Hopkinson Smith, entered into a construction contract with Inman Bros., a copartnership composed of William F. and George B. Inman. By the terms of this agreement the Inmans were to acquire all land, water rights and privileges necessary for the construction, maintenance and supply of the waterworks, and to transfer the same to the company; also to acquire, at their own cost and expense, permanent rights of way in and through all private property adjacent to the village, for running, repairing and maintaining pipes, machínery, reservoir plant, etc., of the company ; also to furnish all labor and material required to lay the pipes, construct the mains and place hydrants and appurtenances in compliance with the ordinance of the village, and in accordance with certain plans and specifications of the company. The company agreed to pay for such construction $199,700 of its capital stock, being its entire issue of capital stock, less the three shaTes issued as heretofore stated ; also $125,000 in the first mortgage twenty-year bonds of the company, or such amount of bonds as should be determined upon by Smith, Holt and George B. Inman, the exact amount to represent a fair compensation for the work done under the contract, including a contractor’s profit of fifteen per cent; these sums to be in full payment of the cost of construction, excepting land for a permanent structure, mentioned in the 1st section of the contract, and the damages, if any, sustained by adjacent property, unless otherwise mutually agreed. These bonds were to be a part of a series of 200 of $1,000 each, with interest coupons attached, and were to be secured by a mortgage' upon the property of the company. The stock was to be delivered, upon the execution of the agreement, and the bonds as the work progressed and as determined by the trustees of the company. Upon the execution of the contract the company delivered to Inman Bros, certificate No. 4 for 1,997 shares of stock. On the- same day Inman Bros, entered into a contract with the firm of Taintor & Holt, bankers, composed of Giles E. Taintor, George IT. Holt and G. D. L’Huilier, for a sale of the stock and bonds secured by virtue of their contract with the company. By the terms of this agreement, Inman Bros, were to sell $101,000 of the capital stock,- being 1,010 shares, and $125,000 of the first mortgage bonds for $112,500, the same being the equivalent of $900 for each bond and the stock. The stock was to be delivered at once and the bonds as received from the company. Taintor & Holt agreed to pay the purchase price as the work progressed, not to exceed sixty per cent in value of the work performed and materials furnished, and only upon the certificate of Smith that the work and materials were furnished in accordance with the contract between the company and Inman Bros.; the remainder to be paid to Smith upon the completion of the work in pursuance of the contract, and the acceptance of the work by the village authorities as provided in the ordinance. Inman Bros, completed their contract on the 16th day of August, 1886, and Taintor & Holt paid the money as agreed. Thereafter the works were operated by the water company. Inman Bros, surrendered the first certificate issued to them and transferred a part of the remaining shares held by them. Among the shares, 430 were -transferred to Moses R. Grow, represented by certificate No. 5.. Grow subsequently surrendered this certificate and procured certificates numbered from 26 to 33 inclusive, each certificate representing ten shares of stock. The last certificate he transferred to Henry IIuss on the 26th of June, 1886, in payment for services rendered to Crow and Inman Bros, in procuring water rights, abstracts of title and other information, during the "construction of the works. On the llt-h day of January, 1887, IIuss surrendered this certificate, and procured certificate No. 41 for ten shares, to .be issued to him which he thereafter and" on September 8, 1896, transferred to the plaintiff in this action, together with all rights and interests which in anywise accrued to him by reason of such ownership.</p> <p>In pursuance of its contract with Inman Bros., the water company made and executed a mortgage on the 1st day of May, 1886, to the Central Trust Company of New York to secure its bonds to the amount of $200,000,. payable in twenty years, with interest. The consent of the stockholders of the water company to the execution of this mortgage Was duly given, and among such consenting stockholders was Grow. In July, 1887, the water company executed a second mortgage to the same mortgagee to secure the payment of an additional $100,000 of bonds. This mortgage had the consent of all -the stockholders of the water. company,</p> <p>' including Henry IIuss, who then held ten shares. On the 1st of August, 1889, the water company, needing more money, executed a third mortgage to the same mortgagee to secure the payment of $200,000 of its bonds. This mortgage became a second lien upon the property, as the bonds secured by the second mortgage were exchanged for the bonds secured by the third, and the second mortgage was satisfied and discharged of record. The third mortgage was assented to by stockholders representing 1,905 shares out of 2,000. ' On March 26, 1891, a majority of the stockholders of the water company determined to increase its capital stock and extend its'operations. Acting under the advice of counsel a new company was incorporated under the name of the New York City Surburban Water Company, with a capital stock of $1,500,000, divided into 15,000. shares of $100 each. This company was created for the purpose of consolidating with the New York and Mount Yernon Water Company, and in reality of merging the latter into the former. After the incorporation of the Suburban Company, and on the 22d day of April, 1891, it executed a mortgage to secure an issue of $1,500,000 of bonds. This mortgage was assented to by all of its stockholders. At this. time, however, hut ten shares of stock had been issued, which the consenting parties held. The-recital in the assent of the stockholders is that they own and hold, the ■ entire capital stock thereof according to the provisions and. intent of chapter 163 of the Laws of 1878. On the twenty-eighth day of April following an agreement was made and entered into by and between the trustees of the two last-named companies for the consolidation of the two into one. This agreement provided, interalia, that the name of the new company should be the New York City Suburban Water Company; that its object should be to supply-water to the village of Mount Yernon; that the new corporation, should succeed to and be held liable to pay all the debts and liabilities, of the consolidated corporations, and in particular that the mortgage-of the New York City Suburban Water Company, executed to the Atlantic Trust Company, as trustee, should be an obligation of the consolidated company as to the entire issue of bonds, the same as though such mortgage had been issued after consolidation; that the bonds should be held by the trustee or be disposed of by it for -the benefit of the .consolidated company. -Shares of stock of the consolidated company, equaling the capital stock of the New York and Mount Yernon Water Company, and the ten shares of stock issued by the Suburban Company, were to be issued in lieu thereof and exchanged therefor. The remainder of the stock was to rejnaim, unissued at the time of consolidation, or, if issued, it was to be. represented by its par value in the treasury of the consolidated company. It was further agreed that any stockholder not consenting to consolidation should not be prejudiced by the valuation fixed by the agreement, but should have all the rights to a cash valuation of' his stock or otherwise, as allowed by law.</p> <p>After the execution of this contract a meeting of the stockholders of the New York and Mount Vernon Water Company was called fbr the 8th day of June, 1891, to determine whether consolidation should take place, pursuant to the terms of the written agreement, a copy of which was sent with the notice calling the meeting. A copy of this notice and agreement was received by Huss. _On the 6th day of June,. 1891, Huss and one Cameron, stockholders of the New York and Mount Vernon Water Company, began an action in the Supreme Court to restrain the proposed consolidation upon the ground that the same was illegal, and procured an injunction restraining the said companies from proceeding further in the matter. This action brought in as parties defendant the New York, and Mount Vernon Water Company, the trustees of said company, the Mount Vernon Water Company and the New York City Suburban Water Company. A motion was made at a Special Term to dissolve the injunction, which was denied. Thereupon an appeal was taken to the General Term, where the order denying the.motion was reversed, and the injunction was dissolved. From this order the plaintiffs appealed to the Court of Appeals, where the same was affirmed. While the appeal to the Court of Appeals was pending a stipulation was entered into by the parties, to the effect that if the order was affirmed upon its merits the complaint should be dismissed upon the merits, and the judgment should recite that the Mount Vernon Water Company did not seek to and would not consolidate with the other defendants or either of them. Upon the affirmance of the order . 'a judgment was entered August 12,1892, pursuant to this stipulation, whereby it was adjudged that the complaint of the plaintiffs be dismissed upon the merits, and that the plaintiffs were not entitled to the preliminary injunction. Pending this action, and pursuant to the notice hereinbefore referred to, the stockholders of the New York and Mount Vernon Water Company, holding 1,855 shares of ‘stock, voted in favor of consolidation, and the holders of the' stock then issued of the New York City Suburban Water Company in like manner voted in favor of consolidation. A large majority of the stock of the New York and Mount Vernon Water Company voting for consolidation was in the name of Smith, but in fact it was owned by Coffin & Stanton, a firm of bankers who controlled the enterprise. On the 10th day of June, 1892, the required certificate was executed and filed, and the two companies became consolidated. The holders of the 1,855 shares of stock of the New York and Mount Vernon Water Company subsequently exchanged such stock for the stock of the consolidated company. Huss did not exchange his stock, nor within the twenty days given -him by statute (Laws of 1890, chap. 567, § 14) object to the consolidation or demand payment for his stock. After the consolidation the new company assumed control of the property of both companies and conducted the business for which it was incorporated. Of the $1,500,000 of bonds, authorized and secured by the mortgage to the Atlantic Trust Company, $400,000 were to be used in retirement of the-bonds of the New York and Mount Vernon Water Company and $900,000 for extending and improving the plant. This provision was inserted in the mortgage. Thereafter bonds, amounting in the aggregate to $195,000, were issued and exchanged for the bonds of the New York and Mount Vernon Water Company, secured by its third mortgage to the Central Trust Company of New York, leaving five bonds of $1,000 each outstanding and secured by this mortgage. All of the bonds were issued by the Atlantic Trust Company in comjiliance with the essential requirements of the mortgage. Four hundred and ninety-five thousand dollars of the bonds appear to have been issued before consolidation of the corporations was effected, but after the agreement of consolidation was executed, and the remainder after consolidation. The whole amount issued was $1,270,000. They were all issued upon the order of the president of the New York City Suburban Water Company and delivered to Coffin & Stanton. What disposition was made of the bonds by Coffin & Stanton, aside from those used to retire the bonds of the New York and Mount Vernon Water Company, and to improve and extend its works, does not clearly appear. At the time of the failure of the firm of Coffin & Stanton they were the holders of $650,000 of the bonds which were hypothecated as collateral security for money owing to the firm. The •remainder of the bonds are held by various persons, corporations and banks in the United States and England. When Coffin & Stanton failed Newman Erb,was appointed receiver of the estate and entered upon his duties. Default having been made in payment of interest upon the bonds Erb, in pursuance of a provision contained In the mortgage, requested the Atlantic Trust Company to foreclose the same. Thereupon a foreclosure action was instituted, and in the usual course was carried to a judgment of. foreclosure and sale. Pending this foreclosure the holders of bonds, in an amount exceeding $1,000,000, deposited the same .with the Atlantic Trust Company,, and a committee of such bondholders was appointed, who executed and delivered a trust agreement providing for the protection of the rights of the bondholders and the reorganization of the company. By the terms of the judgment of foreclosure and sale the .bonds and overdue coupons were authorized to be received in payment of the purchase.price of the property as equivalent to so much of the purchase money as would be distributable and payable thereon. Acting under the trust agreement and the authority of the judgment the property was bid in by Newman Erb and Charles Bard, a committee representing the committee created by the trust agree- ■ ment, for $50,000; thereafter, in pursuance of the same authority, Erb and Bard and their associates incorporated themselves under the name of the New York Suburban Water Company. The certificate of incorporation provided,. inter alia, that there should be paid upon the bonds to be issued by the new "company two and One-half per cent per annum for the first, five years, and an additional two and one-lialf per cent, or so much as should be earned, and at the end of five years interest at the full rate of five per cent per annum; that the bondholders should receive of the securities of the new company for each $1,000 bond a new first mortgage bond, par value of $800, and ten shares of full-paid common stock, $1,000 ; that as negotiations were then pending for a "sale of the property, and in the event that a sale was not effected during the period the bondholders were compelled to suffer an abatement of a part of the interest upon the new bonds, the stock was to be held in trust and deposited with the Atlantic Trust Company for ■a"period not to exceed five years, and certificates of beneficial interests were to be issued to the bondholders in lieu thereof, the stock so held to be used to elect the board of directors from among the bondholders, the trust created to • leave the committee with power to dispose of the entire stock, subject to the approval of the owners of three-fourths in amount of the certificates of beneficial interest. After the company was organized it took possession of the property, carried on the business, and on June 10, 1895, executed to the Atlantic Trust Company, as trustee, a mortgage upon its property to secure $1,500,000' of its "bonds pursuant to the provisions of the agreement of reorganization. Of these bonds $1,010,500 have been issued to the holders of the bonds of the New York City Suburban Water Company, who deposited their bonds under the agreement; $130,000 have been issued for cash and $39,500 have been delivered to the president of the company for its. use. These bonds are now held by various parties and are widely scattered. The property purchased at the foreclosure has been conveyed to the new corporation. The original incorporators of the New York City Suburban Water Company were all employees of Coffin & Stanton, as clerks or otherwise, except Gleason, who was the counsel for the firm, and conducted the proceedings resulting in the incorporation of this company and the consolidation, as hereinabove stated. Ludwig, the president of the first Suburban Company signed all of the bonds, and made requisition of bonds in the aggregate of $495,000, which were delivered to Coffin & Stanton before consolidation was effected. The president of the consolidated company was Clarence D. Turney, the manager of Coffin <fc Stanton, and it was upon his requisition that the remainder of the bonds issued were received from the trust company and delivered to the firm of Coffin & Stanton. The plan of consolidation originated with Coffin & Stanton, and was carried out at their instigation. They used some of the stock and bonds for their private purposes and as a reinforcement of security for loans, but how many went in this direction the record does not disclose. Newman Erb occupied for a time an office with Coffin & Stanton, and did some business for them. By his declarations it appeared that he was more or less familiar with the operations of Coffin & Stanton, and to some extent with their operations in connection with the water companies.</p> <p>In the action of foreclosure and sale by the Atlantic Trust Company Turney filed an answer, in which he admitted the allegations of the complaint, and upon this admission the subsequent appli-. cations to the court were made. Upwards of a year after the foreclosure and sale of the mortgaged property, Huss assigned his interest to the plaintiff, as hereinbefore stated, and thereafter the plaintiff brought this action.</p> <p>The complaint demands as relief that the New York Suburban Water Company be adjudged to hold the property in trust for the discharge of valid liens of the New York and Mount Yernon Water Company to be ascertained; that it be adjudged that the mortgage or deed of trust, is not a valid lien upon the property, or any of it; that the judgment of foreclosure and sale and the reorganization proceedings be vacated and set aside ; that the proceedings of com solidation are. null and void, and that the property of the New York and Mount Yernon Water Company was not affected thereby; that the stock held by the receiver of the New York City Suburban Water Company and the bonds issued'to Coffin & Stanton, or any substituted stock or bonds, are null and void, and for- such further relief - as may be just. Upon the complaint and the proof the court rendered a judgment, adjudging,, among other things, that the plaintiff is entitled to recover his proportionate share of the proceeds of the property of the defendant the New York and Mount Yernon Water Company as upon its dissolution on June 17, 1892; and it directs that the property as described be sold, subject only to the lien of the first mortgage for $200,000, and of the second mortgage for $5,000 ; and that the property be free of any lien by virtue of the mortgage executed by the New York' City Suburban Water Company, or the judgment of foreclosure obtained by the Atlantic Trust Company thereunder, or of the mortgage executed by the reorganized company; that none of the parties to this action are entitled to share in the proceeds of the sale, except the plaintiff; that the property be sold at public auction for cash, subject only to the aforesaid liens; that the referee named pay to the plaintiff ten one hundred an.d forty-fifths of the net proceeds of the sale and costs of the action, and that he hold the balance for further .disposition as shall be provided upon the foot of the judgment; that the plaintiff have leave to bring in the owners of 135 shares of the capital stock of thé defendant the New York and Mount Yer-non Water Company, not owned or held by parties to this action, that their interest and share in the proceeds may be determined.</p>

Appeal by the plaintiff, The Harrisburg Pipe Bending Company (Limited), from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of November, 1897, vacating and setting aside an order of arrest .

Appeal by the defendant, Taylor & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day .of April, 1897,, upon the verdict of a jury for $500; also from an order entered in said clerk’s office on the 12th day of April, 1897, denying the defendant’s motion to dismiss the complaint, and also from an order-entered in said clerk’s office on the 15th day of April, 1897,' denying the…

Appeal by the plaintiff, John T. Rowland, from a judgment of. the Supreme Court in favor of the defendant, entered - in the office of the clerk of the county of Queens on the 26th day of November, 1897, upon the decision of the court rendered after a trial at the Queens County ¡Special Term dismissing the complaint.

Appeal by the defendants, James I. Waldron and others, assessors of the town of Oyster Bay, from a final order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 5th day of January, 1898, upon a writ of certiorari reducing the assessment of the relator’s real property in the town of Oyster Bay, Queens county, for the year 1897, from $330,000 to $200,000.

Appeal by the defendant, Annie M. Steuerwald, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 29th day of January, 1898, modifying the report of a referee in surplus-money proceedings, and directing a distribution of the surplus moneys in this action.

Appeal by the plaintiff, Leopold Pfeffer, as administrator, etc., of George B. Pfeffer, deceased, from a judgment.of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 28th day of January, 1897, upon the dismissal of the complaint by direction; of the court after a trial before the court and a jury.

Appeal by the defendant,. The Brooklyn Heights Railroad Company, from an order of the Supreme, Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of February, 1898, denying the defendant’s .motion for the issue of a commission to take the testimony of Dr. Peter A. E. Boetzkes in the above-entitled action.

Appeal by the plaintiffs, Thomas Devoy and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Dutchess on the 4th day of May, 1897, upon an order made at the Dutchess Trial Term dismissing the complaint.

<p>Taxation of a corporation —a deduction of ten per cent of its capital stock depends on its surplus equalling that sum—failure to prone the source of a surplus — an objection not taken before the assessors is not available at Special Term.</p> <p>Under the Tax Law (Laws of 1896, chap. 908, §§ 12, 81) a corporation is entitled to á deduction'of ten per cent of the amount of its capital stock only when its surplus profits or reserve fund, as returned for taxation, equal ten per cent of its capital stock.</p> <p>Assuming that a corporation is not concluded by a statement, made in its return to city assessors, that it -has no surplus profits or reserve fund, still it is not entitled to a deduction upon the ground that its surplus exceeds ten per cent of .its capital stock, where it appears that the alleged surplus may have resulted from an, enhancement of the value of its franchise, which is exempt from taxa- . tion. If such surplus proceeds from savings or accumulations from its business, that fact should be affirmatively shown by it.</p> <p>An objection that a corporation was assessed in the wrong ward, which was not taken before the assessors, is properly disregarded by the Special Term upon the hearing under a Writ of certiorari issued to review the assessment.</p>

Appeal by the defendant, The Travelers’ Life and Accident Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of December, 1897, upon the verdict of a. jury for $851.25, and also from an order entered in said clerk’s office on the 16th day of December, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by The Mercantile Trust Company from an order of the. Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 5th day of January, 1898, granting the petition of Delia Sherwood for an order directing The Mercantile Trust Company to pay to the county treasurer of Putnam county certain funds on trust in said trust company.

Appeal by the defendant, Paid E. Ames, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the .office of the clerk of the county of Kings on the 15th day of October, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term, sustaining the plaintiff’s demurrer to a counterclaim set up in the answer of the defendant, Paul K. Ames.

<p>Appeal by Thomas G. Price, a purchaser at a foreclosure sale, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Westchester on the 19th day of January, 1898, requiring.him to accept the title to premises sold under foreclosure in the action, and to complete his purchase;</p>

<p> Negligence—a woman injured ata railroad crossing—pi'ocf which requires the submission to the jury of the question of contributory negligence. </p> <p>In an action brought against a railroad company to recover damages for personal injuries sustained by the plaintiff at a railroad crossing op a village street where gates, which had been in use for a long time, were frozen and out of order, the plaintiff testified: “Before I got to the track I looked up the track and down around the curve. That was before I got to the track. I should think I was then five or ten feet from the track. I did not see any .train coming in either direction. I did not. hear any bell or whistle blown. I did not see any flagman. * * * Then, after I started on, my attention was directed straight ahead, and the last I remember I was struck by this engine. * * * I had known these gates there at the crossing for years. ^ * I know what it means when the gates are up. I understand .that that is a signal for me to cross if I so desire. When they are down I understand- that that is the signal for me to stay back. This day that I was struck there was no flagman upon the crossing. * * * Before I crossed that crossing that day I listened for bell or whistle. I didn’t hear any bell rung or whistle blown.”</p> <p>Held, that the trial court erred in directing a verdict in favor of the defendant.</p>

' Appeal by the plaintiff, The People of the State of New York, from an order of the Supreme Court, entered in the office of the clerk of the county of Dutchess on the 18th day of December, 1897, directing the sheriff of the county of Dutchess to discharge the defendant from his custody.

<p>■ Appeal by the plaintiff, James H. Moran, as receiver, from a judgment of the Supreme Court in favor of the defendant, Sarah C. Abbott, entered iti the office of the clerk of the county of Westchester on the 10th day of June, 1897, upon the verdict of a jury rendered by direction of the court.</p> <p>. The plaintiff, as receiver of the Mathnshek Piano Manufacturing Company, brought an action in replevin to recover possession from the defendants of a certain piano purchased by the defendant,. Sarah C. Abbott, from one James Pearce, doing business under the name of. the Pearce Music Company, and as such company acting as the agent of the Mathushek Piano Manufacturing Company at the time . of. the purchase of said piano.</p>

Appeal by the plaintiff, Victor Koechl, from an order-of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 10th day of February, 1898, denying the plaintiff’s motion to continue an injunction pendente lite.

<p> Salaried health officer—when not entitled to charge for services rendered to smallpox patients. </p> <p>The health officer óf a municipality, whose hoard of health was given power by statute (Laws of 1892, chap. 182, §§ 220, 221) to prescribe regulations for vaccination; to prevent persons infected with contagious diseases from entering the city; to provide for-the removal to a hospital or pest.house of all persons suffering from, or who had been exposed to, contagious diseases, and to pre-scribe the duties of its health officer, personally attended a smallpox patient although authorized -by the board of health, of which he was a member, to employ a special physician for that purpose, and also attended a similar patient of whom he was directed by the board to take charge.</p> <p>Held; that he was not entitled to compensation, in excess of his salary, for such services on the ground that they were in addition to his official duties and were extra hazardous.</p> <p>That such duties were within the scope of the duties devolved upon him by his employment, and in direct relation to the obligations growing out of the position which he held. '</p>

Appeal by the defendant, Louis E. Payn, as Superintendent of Insurance, from a final order of the Supreme Oour-t, made at the Suffolk Special Term and entered in the office of the clerk of the county of Suffolk on the 4th day of October, 1897, confirming the report of a referee and directing that a peremptory mandamus issue.

Appeal by the plaintiffs, Harry B,. Elliott and another, from a judgment of the-Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 29th day of June, 1897, upon the verdict of a jury rendered by direction of the court..

Appeal by the defendant, George Hiller, from a judgment of 'the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of- Kings, on the 11th day of July, 1897, affirming the judgment of a justice of the peace, and also from an order entered in said clerk’s office on the 10th day of July, 1897, affirming the judgment of said justice .of the peace.

Certiorari- issued out of the .Supreme Court and attested on the 26th day of June, 1891, directed to John T. Grady and others, constituting the board of police commissioners of Long Island City, commanding them to certify and return to the office of the clerk of the county of Queens all and singular their proceedings in regard to the dismissal of the relator from the police force of Long Island City.

Appeal by the plaintiff, Charles Lundbeck, from a judgment of the Supreme Court ini favor of the defendant, entered in the office of the clerk of the county of' Kings on the 10th day of December, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of January, 1897, denying the. plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Brooklyn Heights- Railroad Company, from a judgment- of the County- Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of October, 1897, upon the verdict of a jury for $1,300; and also from an order entered in said clerk’s office on the 27th day of October, 1897, denying' the defendant’s- motion for a new trial made upon -the minutes. .

Appeal by the plaintiff, .George H. McLean, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Dutchess on the 26th day of December, 1895, upon, the decision of the court rendered after a trial before the court without a jury dismissing the complaint.

<p>Appeal by the defendant, Eberhard Faber, from an order of the 'Supreme Court, macje at the New York Special Term and entered' in the office of the clerk of the county of New York on the 26th day of January, 1898, denying his motion for leave to serve an amended answer.</p>

Appeal by the plaintiff, D. Buchner & Co., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of February, 1898, resettling an order entered in said clerk’s office on the 10th day of January, 1898, which granted the defendant’s motion to substitute in his place one indemnitor and the executors of the estates of two deceased indemnitors, and also from the refusal of the court to…

Aepeal by the defendant, David J. Lees, receiver, etc,, from an order of the Supreme Oourt, made at the New York Special Term and entered in the office of the clerk of the county oí New York on the 2d day of December, 1897, denying his motion to vacate and set aside a requisition in replevin on the ground of the insufficiency of the affidavit in relation to the description of the property sought to be replévined. ' •

<p>Appeal-by the defendant, Alfred! de Cordova, from'a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of .the county of Hew York on the 6th day of July, 189J, upon the decision of the court rendered after a trial at the Hew York Special Term.</p>

<p>Appeal — to authorize a review of a decision made under Oode Civ. Proe. § 1033, an exception must be filed.</p> <p>Unless an exception is filed to a decision, made under section 1033 óf the Oode of -, Civil Procedure, the Appellate Division cannot, on an appeal from the j udgment entered on such decision, review ahy question of fact.</p> <p>Note.—The rest of the cases of this term, will he found in the next volume, 27 App. Div.— [Rep.</p>