Volume 26 — New York Miscellaneous Reports

Appeal hy plaintiff from an order made by one of the justices of the Municipal Court of the city of New York, sitting in the borough of Manhattan, fifth district, opening the defendant’s default.

Appeal by the defendant from a judgment of the Municipal Court of, the city of New York, borough of Manhattan, eighth district, in favor of the plaintiff for the sum of $442.90, after a trial had before the court, without a jury. The facts, so far as material, are stated in the opinion.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, rendered in favor of the plaintiff, upon a trial had before the court without a jury. Action upon two promissory notes made and indorsed, as hereafter stated. The opinion states the facts, so far as they are material.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, tenth district, rendered in favor of the plaintiff by the court, without ja jury, for the sum of $125.69 damages, with costs. The nature of the action and the material facts are stated in the opinion.

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

<p>Sale — Insufficient proof of fraud.</p> <p>Where at the time of a purchase, which a firm was specially solicited to make, the members made no representations as to their solvency, fraud in the sale is not sufficiently shown by proof that six weeks later the firm gave a chattel mortgage to the wife of one member and that, upon a demand made for the return of the thing sold, one of the firm said “ that he had a big law library and knew all the law and knew how to get around it ”,</p>

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

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

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, eleventh district, rendered in favor of the defendant Hoefgen, upon a trial had before the court without a jury. At the close of the case, judgment was rendered against the defendant Dealy by his consent. The nature of the action and the material facts are stated in the opinion.

Appeal by the plaintiff from a judgment entered upon the verdict of a jury, and rendered by direction of the justice of the Municipal Court of the city of New Tort, borough of Manhattan, eleventh district. The nature of the action and the material facts are stated in the opinion.

Action by a corporation to have bond and mortgage canceled and requiring defendant to make an accounting of all profits made on account of the transaction.

<p>1. Action by a materialman upon a promise made to the owner for his benefit — His character not changed, by taking security from the owner.</p> <p>A materialman does not lose his rights or character as such because he accepted from an owner of real estate, who was constructing fifteen buildings thereon, bonds and mortgages upon four of them to secure payment; and, upon the insolvency of the owner, the material-man may recover a balance, still due him after the foreclosure of the bonds and mortgages, of a grantee of the premises who received his conveyance in consideration of his agreement with the owner, made subsequent u> the furnishing of the materials, by which he promised “ to pay all claims for materials and labor furnished and" delivered for the erection of fifteen buildings, in course of erection, on land conveyed in pursuance thereof, subject to all mortgages, incumbrances and liens to him by ” the owner, and all notes given by the latter, “ out of the proceeds of said houses and lots ”, the grantee further agreeing to pay all indebtedness due to himself from said owner and then to divide any surplus between himself and said owner.</p> <p>2. Statute of Frauds — Original promises — Adoption by third party.</p> <p>Although the grantee never received any such proceeds of sale, such an agreement amounts to an original promise on his part to pay all claims for materials, and the materialman, after having demanded payment of both grantor and grantee, is to be deemed to have accepted and adopted the promise and may sue the grantee thereon.</p>

<p>Action to set aside an assignment and an agreement. Pacts appear in opinion.</p>

<p>Motion to strike out part of answer.</p>

<p>Certiorari to review an assessment made against the relator of personal property for taxation.</p>

<p>Contempt — Refusal of vendor, remaining in possession of mortgaged premises, to surrender to a receiver of the rents and profits.</p> <p>Upon a sale in November 1898, of premises subject to a mortgage, it was agreed that the vendee should assume the mortgage and, as ¡he could not pay all the purchase price, he agreed, in order to pay the vendor the balance, that the latter might occupy until May 1, 1899, and that he should be credited with rent paid in full to that date. In December 1898, a receiver pendente lite was appointed in an action to foreclose the mortgage and he demanded possession which was refused.</p> <p>Held, that the contract between the vendor and vendee was valid,. that the vendor was entitled to retain possession until May 1, 1899, that the receiver’s lien on the rents did not attach until his appointment, and, that the court would not punish the vendor as for a contempt in refusing to .surrender possession to the receiver.</p>

<p>’Action to recover back money obtained by alleged duress.</p>

<p>Action against sureties on an undertaking given on an appeal to the Court of Appeals.</p>

<p>Negligence — A hubstone on a city sidewalk is not per se a nuisance.</p> <p>The driver oí a truck drove, in daylight, in and out of a yard 'and over a sidewalk in the city of New York, and over a bridge which extended over the gutter from the curb to the street. On one side of the passage-way there was a large pile of stones and on the other side a hubstone, about eighteen inches high, which protected trucks from falling into the gutter. The passage-way was a foot wider than the driver’s truck. In driving out, his front wheel struck the hub-stone, the jolt was supposed to have thrown him from his truck, and he1 was fatally injured by the fall.</p> <p>Held, that the hubstone was not per se a nuisance, thajt its presence was not evidence of an unreasonable u,se of the sidewalk, and that the administratrix of the driver could not recover against the city as for negligence.</p>

<p>Action to recover for professional services as a physician.</p>

<p>Motion to have report of referee in action of “ Doyle v. Mayor,” removed from the files of the court.</p>

<p>Motion to compel plaintiff or its attorneys to accept service of a copy of notice of appeal, and undertaking on appeal, to Court of Appeals.</p>

<p>Motion for an order to stay plaintiff from prosecuting an action against defendant in the Municipal Court of the city of New York, borough of Manhattan, to recover statutory penalties for refusing to furnish electric light.</p>

<p>Objection to the confirmation of a referee’s report in foreclosure.</p>

Motion to set aside and vacate an order for the examination of a third party, to reach personal property in his hands, belonging to the judgment debtor.

<p>Partnership — Bight of continuing partner to pay individual' delbts from firm property.</p> <p>Where a partner retires and relinquishes his interest, the title to the firm property vests in the continuing partner alone 'and he may apply it to his individual debts, but sutih application cannot stand as against firm creditors unless the firm is solvent and there is enough property, exclusive of that withdrawn by the retiring partner, to pay the firm debts.</p>

<p>Mandamus — Not granted to meet an anticipated evil.</p> <p>A person, who merely alleges that ¡he is qualified to and proposes to bid for the meat supply, in 1899, of the department of correction in a city, will not be allowed a writ of mandamus to test the- validity of a restrictive condition, which he alleges will prevent him from bidding, requiring that “ all beef and mutton used by this department to be from animals killed and dressed in New York state ”, as the writ can only be invoked to remedy a wrong, whiejh has been suffered and will not be granted to meet an anticipated evil.</p>

Motion to compel a referee appointed to sell on foreclosure, to-deliver a deed to the purchaser, upon payment of the difference between the amount of the bid and the estimated amount of certain prior incumbrances.

<p>1. Counterclaim — Must be designated as such, to procure judgment on failure to reply.</p> <p>Where, in an action for goods sold the defendant, among other things, sets up several defenses consisting of new matter and these are not designated as counterclaims, the failure of the plaintiffs to reply does not entitle the defendant to judgment, as in the case of a counterclaim to which no reply has been made.</p> <p>S. Equity — A demand for unpaid commissions does not authorize an accounting.</p> <p>An allegation of the defendant, in an action for goods sold, that the plaintiffs engaged him as an agent to sell wines on commission and that certain earned commissions are unpaid, does not entitle him to an accounting in equity, but merely to maintain an action at law to recover the commissions.</p>

The action was for goods sold and deilivered. The answer alleged a sale by sample, and warranty of quality; that the goods delivered were not equal to sample, and did not fulfill this warranty, and that some of them were not delivered within the time stipulated in the contract of purchase, and that defendant had in consequence suffered damage. Further facts appear in the opinion.

<p>Motion for a peremptory mandamus to compel the defendant, as commissioner of buildings, in the city of New York, to approve plans and specifications for a building proposed to be erected by the relator. The facts upon which the controversy arose are set forth in the opinion.</p>

<p>Motion for leave to join William P. Wood as a party plaintiff herein, and why the summons and pleadings should not he amended by inserting his name therein.</p>

<p>1. Public Health Law of 1893 — Defense of “ no funds ” not available to a village in an action for services. i</p> <p>In view of the broad powers given by the Public Health Law (Laws of 1893, chap. 661, §§ 21, 24, 25 and 30) to a village board of health, the defense of “ no funds ” cannot be successfully interposed by the village to an action for services lawfully performed under employment by the board, in the direct discharge of its official duties, and expressly adopted and ratified by the municipality.</p> <p>2. Villages — Services rendered in representing a village before commissioners of the land office.</p> <p>Where the president of a village is duly authorized by its board of trustees to represent it in proceedings before the commissioners of the land office and to do or to cause to be done any acts in protection of the rights of the village, a claim for services, rendered before such commissioners at the request of the president, is an ordinary governmental expense, and is payable from the general fund.</p>

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

<p>Motion by the corporation counsel to reduce the sums allowed to counsel for defendant.</p>

<p>Appeal from a judgment of a Oourt of Special Sessions, convicting the defendant of public intoxication.</p>

<p>Action of foreclosure.</p>

<p>Contract — A “ penalty ” construed as liquidated damages.</p> <p>Under a contract made by a theatrical manager with actors for their services during eleven weeks at $220 per week and which provides a “ penalty ” of $500 for a breach of their engagement or of any condition of the contract, a recovery of the sum last named may be had where the actors violate a stipulation by which they agreed not to perform in any other theatre in the city of New York until their engagement with the manager had been fulfilled, as damages for such a breach are always difficult of ascertainment, and the sum named is not an excessive compensation for the breach.</p>

Appeals by the defendants from affirmance by the General Term of the City Court of New York, of an order for inspection and discovery, an order directing the striking out of defendant’s answers unless the prior order for discovery be complied with in two days, and an order striking out such answers and for judgment. The opinion states the facts so far as they are material.

Appeal by the plaintiff from a judgment of the Municipal Court of the City of ¡New York, borough of Manhattan, ninth district, rendered in his favor against the defendant Parsons only, and dismissing the complaint against the defendant Farrand, upon a trial had before the court without a jury. The nature of the action and the material facts are stated in the opinion. ;

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

Appeal by the defendant from a judgment of the Municipal Court of the City of New York, Borough of Manhattan, first district, rendered in favor of the plaintiff upon a trial had before the court without a jury.

<p>Conversion — Unlawful interference of lessee — Demand.</p> <p>The acts of a lessee of a button-hole machine, in misusing it, in re- . moving certain of its parts and in attaching them to a machine of his own, show an unlawful assumption of dominion over the machine which makes the lessee liable to an action for its conversion and no prior demand of possession is necessary.</p>

<p>Habeas Corpus proceedings.</p>

Motion by defendant that plaintiffs’ -attorneys be compelled to receive the notice of appearance. The facts are sufficiently stated in the opinion.

<p>Motion to annul uhe election of a trastea</p>

<p>Morion for compulsory reference.</p>

<p>Motion to vacate a warrant of attachment.</p>

This is an action brought by Alexander J. Dodin, as executor of Mansuy P. Dodin, deceased, to have premises, comer ef Fourth street and Avenue O, in the city of New York, charged with the sum of $40,000, loaned by deceased, Mansuy P. Dodin, on said property, and also to have a certain mortgage for $5,000 restored as a lien upon said premises, and to have satisfaction of said $5,000 mortgage decreed to be inoperative, and that plaintiff recover same with interest, and that…

<p>Demurrer to complaint.</p>

<p>This is an action to annul a marriage, between the plaintiff and the defendant, on the ground that the defendant was disqualified from entering into a marriage contract, by reason of1 the fact that she had a husband living at the time she entered into the alleged contract with plaintiff. The other facte are sufficiently stated in the decision.</p>

Plaintiff seeks by this action to foreclose a certain mortgage made by Amelia Thompson, on the 18th day of February, 1897. The further facts are stated in the decision.

<p>Negligence — Of parents attributed to child non sui juris.</p> <p>Where a child aged five years, accompanied only by a younger sister, is run over at night by an ice cart while crossing a street at a point where there was no sidewalk, and there is no proof as to which party was at fault, the negligence of the parents, in allowing a child non sui juris to wander about at night unaccompanied by a person of age and discretion, must be attributed to the child and prevents a recovery by it against the corporation controlling the ice cart.</p>

Aotioh on contract which, defendant pleads, was merged in judgment recovered in a court of competent jurisdiction in Indiana, and which judgment the plaintiff seeks to avoid, on the ground of defendant’s fraud.

<p>Application for a certificate of reasonable doubt. The defendant was indicted for robbery in taking from one Mahon $187 in money and obtaining his promissory notes for $5,000, the offense being charged in the indictment in three counts: First, while armed with a dangerous weapon; second, by the aid of an accomplice, and third, hy an assault and the infliction of grievous bodily harm.</p>

<p>Memos for an. injunction. The material facts are stated in the opinion.</p>

<p>Motion to vacate an attachment.</p>

<p>Greater New York charter — Section 261, requiring presentation to city comptroller of a demand before action brought, applies to a proceeding taken under chapter 469 of 1898.</p> <p>The provisions of the Greater New York charter (Laws of 1897, chap. 378, § 261), declaring that no action or special proceeding shall be brought against the city unless it appears by the complaint or moving papers that at least thirty days have elapsed since the demand, which was the foundation of the action or proceeding, was presented to the city comptroller for adjustment and that he has neglected or refused to adjust or pay the same for thirty days after such presentation, applies to proceedings taken under chapter 469 of the Laws of 1898, an act to protect navigation in certain tide-waters within the state of New York, taken against the city by a supervisor of a town of Queens county and in which he demands an injunction.</p>

This is an appeal from a judgment rendered for defendants, upon the verdict of a jury, by Ward J. C'agwin, a justice of the peace of the city of Rome. In July last plaintiff left his horse and buggy hitched to the fence near a residence in the town of Whites-town. While plaintiff was in the house, defendants, without permission, took the rig and rode home in it. This was Saturday night. Defendants kept the rig until the following Monday morning, when it was sent home.

This is an appeal from a judgment rendered upon the verdict of a jury in favor of defendant before F. L. Hathaway, a justice of the peace of the town of Kirkland.

<p>This is an appeal from a judgment rendered by O. H. Williamson, a justice of the peace of the town of Whitestown, in favor of the plaintiff for $80.15 damages and costs. The action was brought to recover damages for personal injuries received by plaintiff while in the employ of defendants by reason of an alleged defect in dedefendants’ wagon. Defendants were contractors upon the Erie canal, and plaintiff had been in their employ as a shoveler for about three months prior to the accident.</p> <p>Upon the day of the accident, one of defendants’ wagons loaded with stone became stalled near where plaintiff was working. Plaintiff and three others were directed by one Gallagher, who was in charge of the work, to help "the team to start. Plaintiff took hold of the wheel by the spokes and lifted to help1 back the wagon. As the wheel turned plaintiff’s hand was caught between the spokes and socket on the wagon and was injured.</p>

This is a motion pursuant to section 16, chapter 686 of the iws of 1892, and sections 40 and 53 of the General Tax Law fcv/s of 1896, chap. 908), to compel the board of supervisors to rund a tax upon petitioner’s property which is alleged to havpeen illegally assessed by reason of an over-valnation of the property,, and because the assessors failed to meet on grievance day.

<p>' Appeal from a judgment in favor of plaintiff, rendered by the City Court of Rensselaer.</p>

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

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

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

<p>Appeal, from a judgment, in favor of the plaintiff, by the defendant, upon a direction by the court.</p>

<p>Appeal from an order granting defendant’s motion for an order of interpleader.</p>

<p>jTi’ial — After a mistrial, the trial court cannot allow an amendment.</p> <p>' "Where the plaintiff desires to amend on the trial and at his request a juror is withdrawn, a mistrial results, and the trial court has no power thereafter to permit the plaintiff to amend and to set the case down upon a future day calendar. The trial court should merely allow the plaintiff to apply at Special Term for the amendment.</p>

<p>Slander — Verification of answer by the attorney.</p> <p>An answer, to an action for slander, by which the defendant “ on information and belief denies each and every allegation in said complaint ”, when properly verified by the attorney in the form prescribed where his client is not within the county where the attorney resides, is a valid answer and cannot be stricken out as sham and frivolous.</p>

<p>Practice — An amendment of the complaint removes the case from the calendar — Appeal from order refusing to strike off.</p> <p>Service of an amended complaint takes the case from the day and general calendars as the original issues are destroyed; and the subj sequent, service of an answer to the amended- complaint does not waive ( an objection made to the case being on the day calendar, nor prevent .. . the defendant from appealing from an order denying his motion to strike the case .therefrom;</p>

<p>1. Mutual fire insurance companies — Nonassessable policy—Loss after appointment of temporary receiver.</p> <p>A mutual fire insurance company may issue a nonassessable policy for cash and the insured may recover thereon, against a permanent receiver of the company, for a loss which occurred after the appointment of a temporary receiver.</p> <p>8. Same — Measure of damages as against permanent receiver.</p> <p>The measure of damages is the amount, at the date of the appointment of the permanent receiver, of the loss as adjusted, less the interest to the time when the loss became payable under the terms of the policy.</p>

Taxpayers’ action to restrain the collection of taxes for paving Front street, between the rails of the track of the Binghamton Bail-road Company, and two feet in width outside such tracks, and to compel defendant to pay such expense less expense of paving one foot in width between the rails which has been paid.

<p>Liquor Tax Law — A petition, for a resubmission of local option must be filed twenty days before the town meeting.</p> <p>The provisions of section 32 (formerly section 34) of the Town Law (Laws of 1890, chap. 569) apply to a petition of town, electors, who request, under the Liquor Tax Law (Laws of 1896, chap. 112, § 16, subd. 4, as amended by Laws of 1897, chap. 312), a resubmission to the electors at a town meeting of the question of local option, and hence unless the petition is, in accordance with the Town Law, filed with the town clerk at least twenty days before the town meeting, his refusal to print the ballots required for such resubmission is justified and action upon his part will not be compelled by mandamus.</p>

Motion by the defendants to vacate an injunction granted in this action on the 8th day of December, 1898, and for such furthei or other relief as may be just and equitable. The facts appear in the opinion.

Motioit for a peremptory writ of mandamus, to be directed to the board of supervisors of the county of Erie, commanding said board to place the name of Frederick Howard upon the roll of members of said board, and to call the same and permit said Howard to vote and exercise all the rights and privileges of supervisor of the Twenty-fourth ward of the city of Buffalo. The facts are stated in the opinion.

The plaintiff made a contract with a mechanic to repair her vacant house for $210. By his own mistake he went into the vacant house-of the defendant next door and repaired it instead. He discovered his mistake after the work was done. He then informed the defendant. The work was done without the defendant’s knoxvledge. It was all of -an irremovable character like plastering and painting.

<p>This is an action to recover a death benefit.</p> <p>Through its Eelief Department the defendant administers a relief fund established by it for the benefit of its permanent employees. The fund is made up of fixed contributions deducted monthly by the defendant from the wages of employees who are members of such fund. Fixed sums are paid by the defendant to such members when they are disabled by sickness or injuries by accident, and to the relatives or specified beneficiaries of members who die. The members are classified and their contributions and benefits fixed according to their wages. Sidney Johnson was employed by the defendant as captain of a barge. He was employed for no fixed term, but belonged to the permanent service of the defendant. He was paid monthly at the rate of twenty cents the hour. He was a member of the said relief fund. The death benefit in his class was $250. He specified his wife as the beneficiary in his application for membership to the said relief fund. The plaintiff is her assignee. About noon on November 18th, 1896, the said Sidney Johnson went away from his barge which was loading at a dock in Brooklyn. He was somewhat under the influence of liquor. He did not return, and in the evening of that day the mate took the barge laden across to her destination in Harsimus Cove, N. J. The next morning Johnson was seen by his brother-in-law Nelson going toward, the Hamilton ferry in Brooklyn. He said he was going over to Jersey to find his boat. On the morning of November 19th he was seen in Hamilton Avenue, Brooklyn, under the influence of liquor by captain Hubbard of one of the defendant’s tugs. On the morning of November 22nd he was seen in New York city by a lighter watchman employed by the defendant. He was at the cornei\ of West and Cortlandt streets, going in a direction away from the water front. These are the only times (so far as there is any evidence) that he was seen alive after leaving his barge. Up to the time of his disappearance he had been in the employment of the defendant as such barge captain for about ten years, and was of sober and regular habits. He was married and had a room in 660 Henry street, Brooklyn, but his wife was in Sweden in charge of some real property they owned there. On November 28th the defendant mailed to him the following letter: “New York, N. Y. Novr. 28, 1896. To Sidney Johnson, Late Capt. P. R. R. barge Harrisburg, 660 Henry St., Brooklyn, N. Y. I have to inform you that for your recent intoxication while on duty and continued absence from the barge without permission, you have been discharged from the service of this company. If you will call at this office and bring with you your Certificate of Membership in the Belief Department, I will arrange for payment to you of all wages now due you. Yours truly, E. G. Osborn, Master.” This was the only evidence of anything done by the defendant to discharge him. The letter remained unopened until his wife returned from Sweden in the following spring. He had obtained leave of absence from the defendant in the fall of 1895 to go home to Sweden, and upon his return after about five months resumed his old place. On May 6th, 1897, his body was found in the Hudson river at Hoboken. It was decayed beyond recognition, but was identified by the clothing.</p> <p>At the close of the testimony for both sides counsel for the defendant moved the court to direct a verdict for the defendant on the ground that if dead the said Johnson had ceased to be employed by the defendant before his death. At the suggestion of the court it was submitted to the jury to find if Johnson were dead, and if so if he died before November 28th, the date of the said letter of the defendant to him; the court to reserve the said question of his having ceased to be employed, and to direct judgment for the defendant or for the plaintiff on such special verdict. The jury found both questions in the affirmative. Rule 62 of the Relief Department of the defendant, which was read in evidence, is as follows: “ The responsibility of the Relief Department to any member shall end when he ceases to be employed by the Company, excepting for benefits to the payment of which he shall have become previously entitled by reason of accident or sickness occurring while in the service.”</p> <p>Each side now moves the court for judgment on the said special verdict.</p>

Motion on the minutes to set aside a verdict of $15,000 for the plaintiff in an action for personal injuries. The defendant keeps a large department store. A corridor runs through the building, and at each end of it people come in from the street. At regular intervals along one side'of it is a rise of four marble steps up to aisles • or lanes which run thence across a large store floor. Merchandise is displayed and sold on each side of the aisles.

Action to construe a will, and for specific performance, each being stated as a separate cause of action, and no objection having been taken to their being united. Motion to dismiss the complaint as to each cause of action separately, made at the opening of the trial. The amended complaint for the first cause states as follows: Christina Bungart died April 5th, 1898, leaving a last will which has been admitted to probate in Kings county on October 12th, 1898.

<p>Application for final judgment.</p>

<p>Motion for an order to deliver certain bonds to the plaintiff sheriff, or to enjoin defendant trust company from disposing of-the same pending this litigation.</p>

<p>1. Greater New York charter — Does not affect the method of assessments for benefits in street openings begun under the Consolidation Act — Interest.</p> <p>In view of the provisions of the Greater New York charter (Laws of 1897, chap. 378, § 1614) continuing all proceedings instituted under the Consolidation Act (Laws of 1882, chap. 410) under the laws then existing, unless otherwise specially provided, the owners of property, taken in a street-opening proceeding by which the city of New York acquired title on September 16, 1896, are entitled to have both their benefits and burdens determined by the Consolidation Act, and neither should be assessed by the Greater New York charter, which enacts a different method of assessment for benefit. In such a case an assessment for benefit should not bear interest.</p> <p>2. Street openings — Area of assessment.</p> <p>The area of the assessment for a street opening is within the discretion of the commissioners, unless some fundamental mistake appears.</p>

<p>Motion by one defendant to strike out affirmative allegations and prayers for relief from the answer of a codefendant.</p>

<p>Trusts — Revocation o£ savings bank book trust — Mental competency of aged donor.</p> <p>A trust, created by a savings bank depositor with her own money, and consisting merely in a designation of the beneficiary on the face of a bank book, is revocable, and her final designation in the matter, when accompanied by the delivery by her of the bank book to the final beneficiary, must govern the disposition of the fund after her death. Where a woman, aged eighty-two, understands the nature of her act in transferring her bank account and is understood by bank officials, the fact that she was officially declared incompetent, as of a date two years later, does not show her incompetency at the date of the transfer.</p>

<p>Motion by defendant that the amended answer stand as the answer in the ease. Pacts appear in the opinion.</p>

Taxpayer’s action to restrain certain public officers of the city of ¡New York from the commission of alleged illegal acts, which, if committed, it is claimed would be a waste of the property of said city.

<p>Supplementary proceedings — No property for a receiver to take.</p> <p>A motion for a receiver in supplementary proceedings should! be denied where no property of the judgment debtor has been discovered except some uncertain contingent fees in untried actions.</p>

Action by the plaintiff company, trustee, for an accounting, and for directions as to the application of a trust fund, the interest of which was paid to James Moffet, now deceased, during his lifetime.

<p>Demubbebs to amended answers of defendants in actions brought upon promissory notes.</p>

Action against defendant, to restrain the threatened ejectment of plaintiff from premises leased to him by said defendant.

Motion to cancel and discharge of record a judgment entered in March, 1868, and upon which an execution against the person of defendant had been issued.

Action to recover a sum of money which plaintiff alleges is due him under an agreement in writing entered into with the board of sewer commissioners of the village of Wiiliamsbridge.

<p>Devise — Division where there is a contingent devise to a class.</p> <p>The will of a testator devised certain premises by the following clause: “ I give and bequeath to my daughter Sarah Eliza Wilklow all (the described premises) to have and to hold the same forever, if the said Sarah Eliza dies with living issue, but if she dies without living issue, then from and immediately after her decease I give and bequeath the same to my children to share and share equally and alike ”. Sarah Eliza died without living issue.</p> <p>Held, that there was a contingent devise to a class, and that only those children of the testator who were living at the time of the death of Sarah Eliza were entitled to participate in her share. That a devisee of a child, who died after the testator but before Sarah Eliza, took nothing.</p>

<p>Justices’ Courts — Complaint on judgment must state jurisdictional facts.</p> <p>A complaint, in an action brought in a justice’s court upon a judgment, which merely states “ that judgment was duly rendered ” etc., without stating the facts which conferred jurisdiction, fails to state a cause of action.</p> <p>Section 532 of the Code of Civil Procedure, declaring that, in pleading a judgment, “it is not necessary to state the facts conferring jurisdiction ” does not apply to justices’ courts.</p>

<p>Application for the revocation of a liquor tax certificate.</p>

<p>Motion to change place of trial.</p>

<p>1. Corporations — Business — Assessment of stock unauthorized when full-paid.</p> <p>Where a corporation organized under the Business Corporation Law (Laws of 1890, chap. 567) issues to a person, in payment for his lands, certificates of its stock bearing on their face the words “ Shares $100 each. Full-paid and nonassessable beyond $10 per annum ”, the corporation cannot subsequently assess the shares as the statute does not authorize an assessment; and the acceptance of the shares, with the clause in them “ nonassessable beyond $10 per annum ”, does not amount to an assent upon the part of the owner and holder to an assessment which is not .authorized by law.</p> <p>2. Same — Ex post facto by-law.</p> <p>A by-law authorizing the imposition, upon each share, of dues to the extent of $10 per year, passed after the owner acquired his stock, affords no authority for an assessment thereof and is as to the owner eas post facto and unauthorized.</p> <p>3. Same — Effect of subsequently executed receipt for stock.</p> <p>The fact that, after the by-law was passed, the holder signed a receipt dated as of the time of his transfer of his lands in which it was stated that he held the stock “ pursuant to the by-law of the Sullivan County Club (the corporation in question) as to dues and transfers ” does not authorize an assessment of the stock.</p> <p>4. Corporations — All the stock must be subscribed in order to assess.</p> <p>Even in the case of corporations whose stock is legally subject to assessment, it is necessary, in order to charge an individual subscriber with an assessment, to prove affirmatively that the whole capital stock has been subscribed, or that some subscriber has waived his right to insist upon the performance of this condition precedent.</p>

<p>Action by plaintiff as receiver of the Equitable Mutual Eire Insurance Corporation of New York, to recover an assessment levied by the plaintiff as such receiver upon a capital stock note of $400, made by the defendant on the organization of the corporation.</p>

<p>1. Lloyds’ insurance — Demurrer to complaint for misjoinder of causes of action — Waiver.</p> <p>A complaint upon a Lloyds’ policy of insurance alleging that the defendants “ severally agreed to pay, respectively, their proportionate portion or share of any loss by fire to the property thereby insured, not exceeding in the aggregate the said sum of $5,000 aforesaid”; that there was other insurance; that the amount of loss was adjusted, fixed and apportioned, and asking judgment against the defendants “ in the sum of $125.23 each, being their proportionate part of said loss ” does not show on its face that the liability of the various defendants was for the entire amount, but shows the contrary, and hence the defense of a misjoinder of causes of action is waived by a failure to demur to the complaint.</p> <p>2. Same —When the underwriters may be sued.</p> <p>The requirement of such a policy, that suit thereon should be brought only against the attorneys in fact, should not be enforced in a case where suit was stipulated to be brought within one year of the loss, where the attorneys in fact had changed three times, apparently to avoid liability, where it was difficult to decide which set of underwriters was liable, and where the funds to meet losses were exhausted.</p>

<p>Reargument of a motion compelling a referee to affix revenue stamps to a deed.</p>

<p>Application by a stockholder for an order vacating a certain judgment obtained against said corporation, and recalling and setting aside certain executions issued thereunder.</p> <p>The facts are fully stated in the opinion.</p>

<p>Motion by a trustee for bondholders, directing the receiver of corporation above named to turn over to it all the property covered by and provided for in the mortgage.</p> <p>Facts appear in opinion.</p>

<p>Application by relators for a writ of mandamus.</p> <p>Facts are stated in opinion.</p>

<p>Benefit societies — Expulsion.</p> <p>The expulsion from a benefit society of a member is illegal where he did not have due notice to appear and opportunity to be heard, in the manner provided by the constitution of the society.</p>

<p>Action for divorce.</p>

<p>Demübbeb to complaint.</p>

<p>Remainder — Vesting — “ Heirs.”</p> <p>The will of a testator gave his wife the use of all his property during life and after her death directed, in the case of each of his two daughters, that his executors should pay them one-half of the income during life, “And after her death (meaning the death of either daughter) I order the said half of my estate to be equally divided among her heirs as they shall attain the age of twenty-one years each, if any shall be minors at the time of her death”. He further directed that “ If either of my children * * * should die before their heirs shall have attained tile age of twenty-one years, I order said heirs to receive their proportion of the income to which their mother was entitled while living, in half-yearly payments ”, The widow of the testator is dead and the only child of one daughter died before her mother, a minor, intestate and unmarried.</p> <p>Held, that the interests in remainder of the grandchildren vested at the death of the testator; that the mother of the deceased grandchild inherited its half and that this must be distributed according to the terms of the will of the mother, since deceased.</p> <p>That the word “ heirs ” was clearly used in the sense of children or descendants only.</p>

Action was begun in a Justice’s Court, before M. A. Martin, Esq., justice of the peace in and for the town of Malone, for the replevin of certain animals found by appellant doing damage upon his property. The complaint, although containing some inconsistencies, may perhaps be considered in the absence of objections thereto as sufficient for the purposes intended.

<p>Boor Law of 1896 — Loss of settlement by a year’s continuous residence in another town.</p> <p>Under section 57 of the Poor Law (Laws of 1896, chap. 225, as amended by Laws of 1897, chap. 203, § 1), a poor person who has gained a settlement in a town loses the same by a continuous residence in another town for one year, whether during that year he was self-supporting, or whether he was aided in part by the town of his former settlement.</p>

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

<p>1. Attachment — Action against sureties on bond to release property, given under Code Civil Procedure, § 2912.</p> <p>Where the alleged owner of attached property gives a bond under section 2912 of the Code of Civil Procedure to release it, he must, in an action brought upon the bond by the attaching creditor, show affirmatively that he was the general owner of the goods at the date of the attachment or he and the sureties are liable.</p> <p>2. Same — Liability of sureties for actual value of property.</p> <p>In such an action the actual liability of the sureties is measured by the actual value of the property and the attaching creditor is not concluded by a statement of value contained in the marshal’s return to the attachment.</p> <p>8. Same — They cannot attack the levy.</p> <p>Where the defendants have given a bond to release the goods from an attachment, they cannot question the validity of the levy.</p>

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

<p>This is an appeal by the plaintiffs from an order of the General Term of the City Court, and the judgment entered thereon reversing a judgment in favor of the plaintiffs upon the verdict of a jury, and dismissing plaintiff’s complaint upon the merits, with costs.</p>

<p>Appeal from a judgment entered upon an order of the General Term of the City Court affirming a judgment entered upon the verdict of a jury and also affirming an. order denying defendant’s motion for a new trial under section 999 of the Code of Civil Procedure. - .</p>

<p>Appeal by the defendant from an order of the General Term of the City Court affirming an order of the Special Term of the same court denying defendant’s motion to vacate and set aside a bill of costs taxed by the clerk in favor of the plaintiff at $141.55, and ordering the same to stand as a correctly taxed bill.</p>

Appear by defendant from a judgment and order of the General Term of the City Court of Mew York, affirming a judgment entered upon a verdict in favor of plaintiff for $1,000, and on order denying a motion for a new trial.

<p>1. Attachment — Affidavit as to amount due over all counterclaims.</p> <p>An attachment affidavit is sufficient under section 636 of the Code of Civil Procedure where the plaintiff states that the “ defendants are justly indebted to him in the sum of 8511.31 over all set-offs or counterclaims that the said defendants might have against this plaintiff to his knowledge ”.</p> <p>Ü. Same — Fraudulent disposition of property — Alternative statement.</p> <p>Where affidavits sufficiently show a fraudulent disposition of property, the Appellate Term will not vacate an attachment merely because the moving affidavit contains the alternative statement that the defendants “ have assigned, disposed of * * * or are about to assign, dispose of * * * property”.</p>

<p>This is an appeal from a judgment of the General Term of the City Court of the city of New York, affirming a judgment of the Special Term, sustaining a demurrer to defendants’ counterclaims.</p>

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

<p>Appeal by the plaintiff from a judgment dismissing the complaint of the plaintiff, with costs rendered in the Municipal Court, fifth district, New York city.</p> <p>The action was brought to recover damages for injuries alleged • to have been received through the negligence of the defendants.</p>

Appeal by the plaintiff from a judgment rendered in the Municipal Court, second district, in favor of the defendant, dismissing the complaint of the plaintiff at the close of a trial by the court without a jury.

<p>Appeal from a judgment in favor of plaintiff entered, in the Third Municipal Court, borough of Manhattan, for the sum of $235.68 damages and costs after trial by the court.</p>

40. The action was brought to recover for six months’ rent of an office in the Cable building in New York city, claimed by the plaintiffs to have been leased to the defendant at a monthly rental of $62.50. The material facts appear in the opinion.

<p>Appellate Term — Has no jurisdiction over annexed territory in the borough of The Bronx.</p> <p>The Appellate Term has no jurisdiction of an appeal from a judgment of the Municipal Court of the first district of the borought of The Bronx, as the territory in question, although annexed to the city and county of New York, remains, for judicial purposes, within the jurisdiction of the second judicial district and department.</p>

<p>Conversion — When the title to chattels passes.</p> <p>Plumbers who have agreed to furnish and put up bathtubs in a building, do not lose their title to them as against a mortgagee and the party in control, of the premises, where the plumbers store the tubs, in a room of the building, while they are still in the eases in which they were packed and delivered and have not examined the tubs nor delivered them to the owner of the building up to the time when the mortgagee took possession and converted them, by distributing them to the several rooms and there affixing them.</p>

<p>1. Lloyds insurance — Misjoinder of parties must be pleaded.</p> <p>A defense of a misjoinder of parties, which depends upon a special condition in the contract of insurance, is waived unless it is pleaded in the answer.</p> <p>2. Same — Authority to attorneys-in-fact to appeal.</p> <p>A power of attorney to attorneys-in-fact for underwriters under a Lloyds’ policy of insurance authorizing them “ to acknowledge or contest any claim * * * to defend, compromise or settle any suit” brought upon the policy, is broad enough to authorize the attorneys-in-fact to appeal from a judgment rendered against them for a loss.</p> <p>3. Same — Stipulations which are conditions precedent to a right to collect costs from one underwriter.</p> <p>Where a Lloyds’ policy of insurance stipulates that suit must be brought against the attorney-in-fact and that a judgment entered in such an action must he satisfied out of unexpended premiums or, if these are insufficient, then out of the deposit of the underwriters, before their individual liability shall he enforceable, an insured person cannot enforce, against an individual underwriter, costs awarded on an appeal, taken by the attorneys-in-fact from a judgment rendered against them in his favor, where he fails to show' that he ever issued an execution on his judgment for costs, or that he has made any attempt to have the unexpended premiums or deposit applied in payment, or that such premiums or deposit do not exist or aro insufficient.</p>

<p>•Lease — A mere mortgagee of the term is not liable for the rent — Involuntary receipt of key.</p> <p>A corporation which has taken a mortgage of a term, as security merely, but which has never taken possession of the premises, is not liable to the landlord for the rent; and the rule is not changed by the fact that the keys of the premises had been sent to the corporation, not upon its solicitation, and that the landlord would not accept them from it.</p>

Motion to dismiss an appeal from an order of the Municipal .Court of the city of New York, borough of Manhattan, for the second district, denying a motion to transfer this cause.

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

<p>Appeal from an order of the Municipal Court of the city of New York, borough of Manhattan, second district, opening a judgment entered by consent.</p>

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

<p>Pleading — Hew matter must be separated from denials — numbering and separating defenses.</p> <p>As a demurrer will not lie to a denial, a defendant cannot join with denials new matter alleged as a defense, for such a course would nullify the right of the plaintiff to demur, under section 494 of the Code of Civil Procedure, to a defense of new matter as insufficient in law on its face. ■ (</p> <p>The Code requirement that defenses must be separately stated and numbered is not satisfied by simply numbering the separate paragraphs of the answer.</p>

<p>Motion for au extra allowance. The facts sufficiently appear in the opinion.</p>

The lease was in writing of an entire business building for a term of five years and contained the following covenant by the lessor: “That should the owner of the lot in the rear of the demised premises build upon his land now vacant and shut off the light and ventilation to the rear of the demised premises, then the party of the first part hereby agrees to put a skylight ventilator on the roof of the demised premises in addition toi a glass floor on the second floor…

<p>■Motion by plaintiff for preference on calendar.</p>

<p>Motion for retaxation of costs.</p>

<p>Motion to confirm a receiver’s account.</p>

<p>1. Vendor and purchaser — Transfer tax, not paid by devisee of mortgaged premises, is a lien.</p> <p>A purchaser will not in 1898 be compelled to take title to premises sold in foreclosure where it appears that in 1893, when the owner of the premises died, they were subject to the mortgage foreclosed and that the devisee of the premises, not a relative of the decedent owner, had never paid the transfer tax imposed upon the succession by chapter 399 of the Laws of 1892.</p> <p>2. Same — Extent of the lien of the transfer tax in such case.</p> <p>The transfer tax cannot affect the rights of a prior mortgagee and is to be regarded in such a case as imposed only on the equity of redemption; ..but where the entire title is sold on foreclosure, there remains an undischarged liability to the State, for the unpaid transfer tax, which renders the title unmerchantable.</p>

Motion by defendants to vacate an order allowing plaintiff Jones to be made a party or to resettle and modify said order so that all of the plaintiffs shall appear by the attorneys for the original plaintiff Manning.

<p>- ecific performance — Promise to issue paid-up life insurance policy for one lapsed — Loss of lapsed policy — Duty to tender release.</p> <p>A twenty-year endowment policy provided that after three years and upon a surrender of the policy, a paid-up policy for the aggregate premiums paid would be issued by the insurer at any time within six months of a lapse caused by the nonpayment of the premium. After such a lapse the plaintiff demanded a paid-up policy, but had lost his om He alleged that he had offered the insurer a bond of indemnity. On demurrer to the complaint, Held, that in order to have compelled the issue of a paid-up policy the plaintiff should have tendered a release under the old policy and that he could not, upon a mere averment of a tender of a bond of indemnity, procure specific performance of the insurer’s alleged promise that it would issue1 a paid-up policy provided the old policy was surrendered within a reasonable time.</p>

<p>1. Vendor and purchaser — Defense of remedy at law must be pleaded in equity.</p> <p>In an action in equity, the defense that the plaintiff has an adequate remedy at law is waived unless pleaded.</p> <p>2. Same — Foreclosure — Jurisdiction of the person of the owner of the equity — Ex parte order correcting name.</p> <p>Where the owner of the equity of redemption is sued in an action of foreclosure by a wrong Christian name, no jurisdiction of the person is acquired, and where no correct supplemental summons has ever been issued, the defect is not cured .by an em parte order, granted after her default, directing that the summons and all other papers be amended by substituting her true Christian name.</p> <p>3. Same — False recitals of jurisdiction in a judgment.</p> <p>Recitals in a judgment cannot sustain it, even in the case of a collateral attack, where the record clearly discloses that the recitals are not true, and that jurisdiction of the person has never been acquired.</p> <p>4. Same — Waiver of failure to acquire jurisdiction of the person — Estoppel.</p> <p>Where the owner of the equity of redemption, after having been duly cited by her correct Christian name in subsequent surplus money proceedings taken in the action, appears therein by an attorney and consents that the surplus be paid over to her own subsequent mortgagee of the premises, her action in the matter waives any prior irregularity or jurisdictional defect and estops her from questioning the validity of the judgment under which the surplus arose, and this although no Us pendens, correctly describing her, was ever filed in the action.</p> <p>5. Same — Irregular judgment not subject to collateral1 attack.</p> <p>A judgment, entered upon the foreclosure of a mortgage for one installment of interest, which directs that the whole premises be sold subject to the whole mortgage debt and interest from a day named, contravenes the provisions of sections 1636 and 1637 of the Code of Civil Procedure, but is irregular merely; and, when not attacked within a year by the party prejudiced, cannot be made the subject of a collateral attack.</p>

<p>1. Deed — Presumption of delivery.</p> <p>Where a grant in presentí has, under its attestation clause and after the usual words, “ Sealed and delivered in presence of ”, the signature of the justice of the peace who took the acknowledgment, a presumption arises that the deed was delivered to the grantee.</p> <p>8. Same — Omission, in 1858, of private 'acknowledgment by wife.</p> <p>A deed to a husband from his wife, acknowledged by her in 1858 in a form containing no reference to the fact that she was a married woman, is acknowledged sufficiently to make the deed an effective conveyance.</p> <p>3. Same — Direct conveyance, in 1858, by wife to husband.</p> <p>Where real property, consisting of a home and shipyard, has come to a wife by gift from her husband, equity will sustain her subsequent, direct conveyance of it to him by a deed dated in the year 1858.</p> <p>4. Same — Intent to defraud creditors not presumed after forty years.</p> <p>After the lapse of forty years, an intent to defraud creditors will not be imputed to a husband, since deceased, in having gratuitously conveyed his home and shipyard to his wife, since deceased, through a third party, where it appears that the period was one of great financial panic, that the debts of the husband were, small, that they were paid within a month, and that he had retained a ship of some value.</p>

<p>Action for breach, of warranty in the sale of a horse — Damages to person and property recoverable.</p> <p>In an action on contract to recover damages for a breach of warranty in the sale of a horse, although no fraud or deceit are alleged by the plaintiff, he may recover damages to his person and property which resulted from the horse’s running away, as such damages must have been in the minds of both parties as likely to occur if the warranty, that the horse was kind and gentle, proved untrue.</p>

<p>Trade-mark — Exclusive right to use “ valet ” as designating the renovation of clothes.</p> <p>The use of the foreign word “ valet ”, as a designation for the business of collecting and renovating worn clothing, is new and peculiar and a person, earliest entitled to so use in a city the name “The Brooklyn Valet”, may restrain a city competitor in the same business from using the words “ My Valet ” in his trade and on his signs.</p>

<p>Motion for a new trial upon the judge’s minutes, made on beIhalf of the plaintiff, after a direction of a verdict for the defendant.</p>

<p>Bills and notes — Recovery against the indorser of a time note, held as security for an old debt and fraudulently diverted — “ Reasonable diligence ” in protesting.</p> <p>The holder of a time note, taken merely as collateral security for an antecedent debt, may enforce it against an indorser, in fraud of whose rights it has been diverted from the purpose for which it was made; the old rule having been changed by the Negotiable Instruments Law (Laws of 1897, chap. 612, § 51) declaring that “An antecedent or pre-existing debt constitutes value; and is deemed such whether the instrument is payable on demand or at a future time.”</p> <p>The new statutory rule includes negotiable instruments which have been given as collateral security merely.</p> <p>The “ reasonable diligence ”, required by statute to be exercised in sending notice of dishonor to art indorser, exacts only such action as would suggest itself to a man of ordinary prudence and intelligence; and where the circumstances attending the protest are such that different inferences might be drawn therefrom, the question of “ reasonable diligence ” becomes one of fact.</p>

<p>Continuance oí action — Terms — Laches.</p> <p>Where the executors of a deceased plaintiff delayed two years in moving to continue the action and in the meantime some oí the defendant’s witnesses had died, the court granted the motion on payment by the executors of all costs to date as well as costé of the motion and also required the executors to stipulate that they would try the case when it was reached.</p>

<p>Motion for judgment on demurrer.</p>

<p>Costs — Term fees accruing before an amendment of the complaint are not taxable.</p> <p>An amendment to a complaint destroys the issne and the prevailing party cannot, in the first department, tax monthly term fees for those months, before the amendment was made, when the case was 1 on the calendar and was not disposed of.</p>

<p>Absolute divorce — Matters which need not be stated in an order committing a husband for not paying alimony — Code Civ. Fro., §§ 1773, 1773.</p> <p>Neither section 1772 nor 1773 of the Code of Civil Procedure requires an order, committing a husband for contempt in disobeying an order that he pay alimony pending his action for absolute divorce, to state whether the husband has any real or personal property or that payment cannot be enforced by the sequestration of such property, and therefore a motion to set aside the order as irregular in failing so to state must be denied.</p>

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

Motion by the plaintiff at Special Term for leave to serve a certain proposed amended complaint. The facts, so far as they are material, are stated in the opinion.

Motion by the plaintiffs at Special Term for au order directing the clerk of the court to tax their costs and disbursements and overruling the objections of the defendant to the taxation thereof which were sustained by the clerk and duly excepted to by the plaintiffs. The facts of the case, so far as they are material, are stated in the opinion.

Motion at Special Term by the defendant for an order vacating and setting aside the judgment herein in favor of the plaintiff, dismissing the defendant’s counterclaim, entered in the clerk’s office of the county of New York on the 7th day of February, 1899. The facts of the case are stated in the opinion.

Motion at Special Term by the defendant Samuel White for an order vacating the service upon him of the summons and complaint herein. The facts of the case, so far as they are material, are stated in the opinion.

<p>Foreclosure — Remedies of junior mortgagee where a sale has been postponed for six years and the debt decreased.</p> <p>Where a judgment in foreclosure, entered by default in 1893 and subsequently assigned to third parties but never enforced by a sale, has in the meantime been reduced in amount by about one-third, the court will not, at the instance of the executors of a deceased junior mortgagee, who had been made a party, permit them to intervene and order a sale for the amount still unpaid as, in view of the fact that the executors have a right to redeem or to foreclose their junior mortgage, such a course is unnecessary and would be too onerous for the owner of the equity of redemption and for the assignees of the judgment.</p> <p>The executors will, howeier, be allowed to intervene in the action in so far as may be necessary to entitle them to notice of sale and of all subsequent proceedings.</p>

<p>1. Mandamus — Permissible against a city for a contract liability.</p> <p>A contract liability may be enforced against a municipal corporation by mandamus, but the writ is not a matter of strict right and should not be issued where facts are presented, in opposition, which suggest a probability or even a strong possibility that the city might be able to interpose, in an action, a successful defense to the whole or any part of the claim.</p> <p>3. Same — Rule as to opposing papers.</p> <p>Upon an application for such a writ, all allegations of fact contained in the opposing papers and sufficiently made, must be assumed to be true.</p> <p>3. Same — Insufficient opposing affidavit of city comptroller.</p> <p>The bare statement, made under oath, by a city comptroller that he verily believes the fact to be that a final certificate as to the performance of a city contract by its contractor is “ false, fraudulent and untrue will not justify a denial of the writ. '</p> <p>4. Same — Insufficient opposing certificates of city engineers</p> <p>Certificates of city engineers, which, while attacking the quality of a contractor’s paving materials and the manner in which they were laid and to some extent attacking the kind of materials used, still do not charge actual fraud on the part of any official who granted the certificate of the performance of the contract and which do not allege that the work called for was not performed or that it was not of the general character required, and which do not question the total amount of materials as allowed for in the final certificate, can afford no basis for refusing the contractor a writ of mandamus to compel payment.</p>

<p>Benefit societies — Personal liability of a director who votes for an illegal transfer of funds — Parties.</p> <p>A director of a Family Fund Society who, in contravention of the provisions of its constitution, votes for the transfer to a mortuary fund, out of which general expenses were payable, of a safety fund which was to be held in trust for the benefit of “ persistent members ”, becomes personally liable in tort to one, of many such members similarly situated, whose rights in the safety fund were lost because of the illegal transfer. The other directors, who were also guilty of the misfeasance, need not be made defendants as all are severally liable and no one can enforce contribution against another.</p>

<p>Demurrer to the complaint.</p>

<p>1. Mandamus — A municipal body must be first put in default.</p> <p>A mandamus will not be issued against a common council upon the ground that it has failed and refused to perform a duty of which performance is sought, unless the body has already been put in default by a proper demand for the precise relief sought.</p> <p>2. Civil Service Law — The veteran highest on the list is entitled to certification and appointment.</p> <p>The provisions of chapter 410 of the Laws of 1884, as amended ,by chapter 29 of the Laws of 1886, permitting a civil service board, in the case of a competitive examination for merit, to report the names of three veterans as eligible to appointment. to office and authorizing the appointment of any one of the three, conflict with section 9 of article 5 of the Constitution of 1894, as, although section 9 prefers veterans without regard to their standing on the list, the principle of competition still controls as between them and the veteran, rated highest of all veterans on the list after competition, is alone entitled to be reported as eligible and is alone entitled to appointment.</p> <p>3. Same — A fitness examination is absolutely requisite to an appointment.</p> <p>The provisions of said section 9 of article 5 of the Constifution absolutely require a competitive fitness examination to be made in all cases and the rules of the State Civil Service Board, in effect dispensing with such an examination and declaring “ that the rating given after an examination for merit only shall be multiplied by two and the result of such multiplication shall .be the rating for merit and fitness ”, violate the Constitution.</p> <p>4. Same — Mandamus refused to the highest veteran on a list improperly compiled.</p> <p>A veteran wdiose name is highest of all veterans on a list made up by a city civil service board upon this principle of doubling the ratings for merit, but who has in fact never been examined for fitness by any authority, has no status, and cannot compel the common' council to request the city civil service board to certify him to it as the person eligible to appointment to a city office.</p>

The petitioners are citizens of the county of Lewis wherein said Pilchen is conducting a traffic in liquors under a certificate issued to him by the county treasurer of said county. The application to have the certificate canceled is based mainly upon the ground that the building wherein the traffic is being carried on is within the prohibited distance of another building used as a schoolhouse.

Application by subsequent judgment creditor to set aside a judgment for $80.38 and costs confessed by above-named defendant to above-named plaintiff, upon the ground that the statement of facts in said confession out of which the purported indebtedness arose is insufficient. Said statement is as follows: “ The following is a concise statement of the facts out of which the debt arose constituting the said liability.

<p>Demurrer to answer in an action for negligence.</p>

<p>1. Fraudulent conveyances — Hot set aside, although unusual and between relatives.</p> <p>Courts will carefully scrutinize the business transactions of near relatives where these are claimed to have .been in fraud of creditors, but although unusual and even suspicious, the transactions will not be set aside as fraudulent where they are attested by uncontradicted and unimpeached evidence.</p> <p>2. Deed — Delivery to third party — Acceptance of grantee presumed.</p> <p>The absolute and unreserved delivery to a third person of a deed passes the estate of the grantor to the grantee as of the date of the delivery; and the acceptance and assent of the grantee, when not shown, may be presumed from the fact that the conveyance was beneficial to her.</p>

<p>Corporations — Excessive salaries to directors, voted by themselves.</p> <p>Directors of a corporation have no right to vote themselves salaries as a mere incident to their offices. They may, however, become employees of the corporation and receive compensation therefor but as, in voting it, they stand as trustees dealing with themselves in respect to their trust, their action may be questioned by stockholders and be reviewed by the latter in equity.</p>

<p>Judgment creditors’ action — Parties defendant, necessary to a complete determination.</p> <p>Where, after judgment creditors have brought an action to set aside transfers made by one defendant, their judgment debtor, to another, the transferror dies and appoints his transferee his administratrix, she should be made a party defendant in her representative</p> <p>capacity, as her presence in that capacity is necessary to a complete determination of the controversy, within the meaning of section 4o2 of the Code of Civil Procedure.</p>

<p>Examination, of party before trial — Facts showing the testimony to be material must be shown.</p> <p>Facts and circumstances showing the testimony of a party to be material and necessary must be shown by affidavit in order to justify his examination before trial, and it is not enough for the moving party merely to allege that the testimony is material and necessary.</p>

<p>Costs — They belong to the attorney and cannot be made the subject of a set-off between the parties.</p> <p>Costs belong to the attorney, and his claim to them is superior to the right of a defeated plaintiff to set off a claim, which he has against the defendant, against costs awarded to the latter against him.</p>

<p>Demubbeb to complaint.</p>

<p>Demurrer to counterclaim.</p>

The parties to this action are copartners, engaged in a certain theatrical enterprise, and suit is brought by the plaintiff for an injunction restraining the defendants, his copartners, from interfering with the property and assets of the said copartnership; for the appointment of a receiver of the partnership property, and for an accounting and dissolution of the partnership.

<p>Action of replevin by a pledgee converted into one for an accounting under an equitable lien on after-acquired property — Adjudication as to goods sold in replevin — Parties — Waiver of nonjoinder — Parties necessary to a complete determination.</p> <p>The owners of foreign goods, which were then stored in bond and were awaiting the payment of duties only but were still covered by a bill of lading running to and then held by others, agreed, in form, to pledge them to a bank for a loan and to hold the goods thereafter for the bank as upon a redelivery in trust. The owners subsequently obtained the goods by paying the duties and then made a general assignment. The bank took a part of the goods from the general assignee by replevin and sold them, but was finally defeated in the action because the owners had not possession of the goods when they pledged them. By an amendment the action was converted into the present equitable action and herein judgment was asked for an accounting for the proceeds of any goods covered toy the equitable lien which had not come into the plaintiff’s hands, although they had been received by the assignee, since deceased, or his executors, and also for the declaration of an equitable lien on the goods sold in replevin. '</p> <p>Held, that the action, as one for an accounting, could be maintained upon the principle that, where there was an agreement to give as security property not at the time in the ownership of the contracting party, a lien attached in equity to the property when it was subsequently acquired. That, as the goods taken in replevin and sold by the bank were taken solely by the giving of a bond in that action under the statute and not because of the merits of the case, the bank was entitled to a present adjudication establishing its lien upon those goods precisely as if they had never been taken in replevin and sold.</p> <p>That the objection, that one R., a member of the firm of the pledgors and a party to the general assignment, had not been made a party to the action was waived because it had not been taken by demurrer or answer.</p> <p>That, as the sole question was whether the bank had a right to possession as against the general assignee or his personal representatives, it could not be said that R.’s presence was necessary to a complete determination of the action as, after his execution of the general assignment, he had remaining only a right to make the assignee account and that this right was not impaired by the present decision.</p>

This action is brought to have declared invalid two -local assessments made by defendant against plaintiffs and to recover the sum of $624.82, paid thereon by plaintiffs.

This application is made to revoke defendant’s license upon the ground that her application contained false statements in reference to the number of buildings used as dwellings within the prescribed distance of her saloon and that consents of a sufficient number of owners of dwellings Were not obtained: The defendant stated that there were three buildings used for dwellings within the distance named by the statute and filed the consents for two thereof.

Motion to show cause why an order should not he granted restraining the corporation above named from reducing its capital stock and holding an election of directors, until the hearing before the referee shall be had and his report made, and for a stay in the meantime.

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

<p>Application for a writ of certiorari to review the action, of the board of trustees of the village of Port Jervis.</p>

<p>Libel — Publication as to a hotelkeeper — A demurrer does not admit innuendoes of the complaint.</p> <p>It is not libelous for a newspaper to publish of a hotelkeeper that a variety troupe were guests at his hotel, that they had no money to pay for board and lodging, that he refused to furnish these without pay, that a little daughter of one of the performers, who had no money, was refused food in the dining-room although she cried piteously for it, and that the hotelkeeper detained the baggage of some of the performers for their bills. .</p> <p>A demurrer to a complaint in libel does not admit the innuendoes, nor can the latter enlarge or extend the meaning of unambiguous language.</p>

<p>1. Liquor Tax Law — A bond not to violate the statute, “ or any act amendatory thereof,” is valid,</p> <p>A bond which, in the terms of the statute (Laws of 1896, chap. 112), binds an applicant for a liquor tax certificate not to violate any of the provisions of the Liquor Tax Law, and, in addition, “ or any act amendatory thereof or supplementary thereto ” is to be deemed to refer only to such amendments as were in force when the bond was executed, and in this view sureties who signed it with knowledge of its contents cannot, after it has been accepted as a valid security, attack its validity upon the ground that it is more burdensome to them than the statute requires.</p> <p>it. Same — Maintenance of a nickel-slot machine is a breach of the bond.</p> <p>. A saloonkeeper who maintains a nickel-slot machine for public use is guilty of a violation of the condition of his bond that he will not suffer or permit any gambling to be done in the place where he is authorized to traffic in liquor.</p>

<p>Action by plaintiff as assignee of William E. Bonynge to recover fees as stenographer.</p>

<p>Motions for injunctions pendente lite. Pacts are stated in opinion.</p>

<p>liquor Tax law — Certificate revoked for material false statement — Intent immaterial.</p> <p>A liquor tax certificate must be revoked where the falsity of the statement of the applicant, that he was the only person interested or to be interested in the business, is shown by his own testimony in subsequent supplementary proceedings, and the court cannot.go into the question whether or not his testimony was intentionally false and given to deceive the excise authorities.</p>

Action by a minority stockholder to enjoin the stockholders from voting to accept an offer for the purchase of two certain mining claims owned by above-named corporation, to enjoin the Central Trust Company from voting by proxy or otherwise on stock registered in its name, and to enjoin the said corporation from carrying out any directions of a stockholders’ meeting for a sale of said claims, otherwise than at public auction.

Proceedings under the Liquor Tax Law, restraining the respondent from trafficking in liquor contrary to the provisions of said law.

<p>Inspection — Granted the insured of their own depositions taken hy the insurer, which now charges fraud.</p> <p>Where fire insurers resist a recovery upon the ground of fraud and ' overvaluation, the court will grant the insured an inspection of very voluminous, depositions, regarding the circumstances of the fire and the amount of the loss, to which the insured theretofore submitted at the instance of the insurers as required by the terms of the policies, and the fact that the depositions contain the statements of the insured themselves, made upon their own knowledge and from their own books of account, is not a sufficient reason for refusing an inspection where it appears that the insured have no copies of the depositions.</p>

<p>Appeal from a judgment in favor of defendants dismissing the complaint herein and from an order denying a motion for a new trial.</p>

<p>Action against foreign corporation — Complaint need not state the plaintiff to be resident of the state — Demurrer.</p> <p>A complaint against a foreign corporation as indorser of a note is not made demurrable by a failure to allege that the plaintiff is a resident of the state of New York, nor by a failure to state where the contract of indorsement was made, or by a failure to allege the legal nature or status of the maker, against which no recovery is sought.</p>

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

This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff and against the defendant, and from an order denying a motion for a new trial.

<p>Appeal from a judgment in favor of plaintiff.</p> <p>Action on an undertaking in replevin given by the plaintiff.</p>

<p>1. Action against bank stockholders to enforce individual liability — Permanent receiver alone may sell — Retroactive effect of chap. 441 of Laws of 1897.</p> <p>The amendment to the Banking Law (Laws of 1896, chap. 6S9, g 52), made by chapter 441 of the Laws of 1897, excluding creditors and authorizing (unless they shall upon request refuse so to do) only the permanent receiver or receivers of a dissolved corporation to bring actions or proceedings to enforce the individual liability of stockholders imposed by said section 52, merely restores an appropriate remedy which had existed down to the enactment of the Banking Law; the amendment applies to permanent receivers of a bank who were appointed when it was dissolved in 1896, and, although given retroactive force, is not unconstitutional as to the stockholders as it cannot be said to enlarge their liability.</p> <p>2. Same — Complaint — Inference that the stockholders were such until dissolution.</p> <p>An allegation of the complaint in such an action that the defendant stockholders were such within two years before the commencement of the action will, on demurrer, be deemed sufficient to afford an inference that they were such at the time when the bank was dissolved, or at some prior time, and within two years of the commencement of the action.</p> <p>3. Same — Receiver may sue before the exact deficiency has been ascertained.</p> <p>Where such a complaint shows the assets of the bank to be insufficient to pay the debts, the plaintiff-receivers need not wait to sue until the assets have been converted into money and the deficiency thereby definitely ascertained; but the court will protect the stockholders from paying too much and will return them pro rata any unnecessary surplus which has been exacted.</p>

<p>Dismissal of complaint for want of prosecution — Taches of a defendant who has set up a counterclaim.</p> <p>Where the defendant has interposed a counterclaim and has demanded thereon affirmative relief in an action triable by a jury, his motion, made under section 822 of the Code of Civil Procedure and Rule 36 of the General Rules of Practice, to dismiss the complaint for the plaintiffs’ conceded unreasonable delay in prosecution, will be denied where the defendant himself has never tried to bring the case to trial, as he also is an actor in the case and should make at least a reasonable effort to try it</p> <p>Semble, that upon such a motion the defendant could obtain no relief under his counterclaim.</p>

Motion to confirm the report of the referee appointed to ascertain the interests of the parties, in an action of partition.

<p>Partition — Costs — Where it cannot be said that “ a defense has been interposed.”</p> <p>A demand of relief by one defendant in partition against another, but one which in no manner tends to defeat the plaintiff’s claim, does not present a case “ where a defense has been interposed ” within the meaning of section 3253 of the Code of Civil Procedure as amended in 1898, and hence, although a large amount of real property be involved in the action, the aggregate allowances cannot exceed $200.</p>

Action in equity to restrain the further prosecution of the ejectment action, and to establish plaintiff’s equitable' title.

<p>Public nuisance — Consent of city to iron doors in a sidewalk — Failure to maintain action — Remedy by action for negligence.</p> <p>An action for maintaining a public nuisance cannot be supported against the owners of a hotel upon proof that, on a rainy day, the plaintiff, who was familiar with the situation, slipped and fell, to his personal injury, on sheet iron doors making apparently, a part of the sidewalk, but really within the stoop line, and which covered cellars of the hotel, it appearing that, although the doors had not been renovated and had been'worn smooth - for many years, no complaint had ever been made against them, nor had the city authorities ever given the owners notice to remove them. The consent of such authorities may be inferred from many years of use.</p> <p>Semble, that the remedy of the plaintiff, if any, was by an action against the owners for their negligence in maintaining the doors in an unsafe condition.</p>

Reargument of an appeal by the plaintiff from a judgment of the General Term of the City Court of New York, affirming a judgment entered in the defendant’s favor upon the verdict of a jury. The decision on the former hearing is reported in 23 Misc. Rep. 336. The opinion sufficiently states the facts so far as they are material.

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

<p>Motion made on behalf of the tenant to dismiss an appeal taken by the landlord from a final order of the Municipal Court, borough of The Bronx, first district, in favor of the tenant.</p>

<p>Aureal from a final order of the Municipal Court, first district, borough of The Bronx, in favor of the tenant,</p>

<p>Appeal from an order of the General Term of the City Court of the city of New York, reversing a judgment in favor of the plaintiff and directing a new trial.</p>

<p>Action upon orders on a fund — Failure of complaint to allege conditions precedent.</p> <p>Where the owner of a building accepts orders drawn upon him by his contractor and made payable to the contractor out of his first payment “ When the second tier of beams is set ”, a complaint against the owner by third parties, who sold the contractor lumber on the faith of the orders, is insufficient on its face where it merely alleges that the second tier of beams was set and that the debt for lumber ip unpaid, and fails to allege that the second tier was set by the contractor, or pursuant to his contract, and nowhere alleges that the first payment ever became due to him.</p>

<p>Appeal from a judgment of the General Term of the City Court, reversing a judgment entered upon a verdict for plaintiffs directed by the court at Trial Term, and dismissing the complaint.</p>

<p>Services — Presumption against extra compensation to bookkeeper.</p> <p>There is a legal presumption that the stipulated salary of a bookkeeper is the measure of his compensation for all the work which he does by the direction of his employers, acting through the individual members of the firm, and this, although he is required to examine the separate books of one partner.</p>

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

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

<p>Action on attachment bond given by third party claimant to plaintiffs — Measure of damages.</p> <p>In an action on a bond, given to the plaintiffs in an attachment action by a third party who claimed to own the property attached, the amount of the judgment for the plaintiffs in the attachment action is not a proper measure of damages, as section 2913 of the Code of Civil Procedure limits the recovery to the value of the property attached, with interest, and that value must be shown by proof independent of said judgment.</p>

<p>Sale of manufactured article — Implied warranty that it will fit the use.</p> <p>Where deealcomania transfers, manufactured to order and designed to transfer words and figuréis from paper to wood or leather, cannot be successfully used for that purpose by experienced workmen and it does not appear that they can ever be so used successfully, the manufacturer cannot recover their value as upon such an executory sale the manufacturer impliedly warrants that the thing to be manufactured shall be reasonably fit for the purpose to which it is to be applied.</p>

Appeal by the plaintiff from a judgment in favor of the defendants rendered in the Municipal Court, fourth district, borough of Manhattan.

<p>Conversion — Duty of a depositary, with, notice, to recognize the actual rather than the nominal depositor.</p> <p>In actions for the conversion of deposits, it appeared that the plaintiffs desired to make certain deposits as security for their honesty while they should be employed by a publishing corporation; that the treasurer of the defendant corporation refused to accept the deposits but said that the plaintiffs might hand them over to the publishing corporation and that the latter corporation might depolsit these sums in the open account between the defendant and the publishing corporation, and it further appeared that the defendant subsequently parted with the deposits on the order of the publishing corporation.</p> <p>Held, that the defendant was liable, as the rule applied that when . the debt created by a deposit belongs to the principal instead of the agent, who made it in his own name, a depositary, having notice of the facts, must recognize the actual rather than the nominal depositor.</p>

Appeal by defendants from a judgment of the Municipal Court,. second district, New York city, rendered in favor of plaintiff, it. being stipulated that the action against Bernard M. Ewing and others shall abide the result of the action against The H. B. Claflin Company.

<p>Appeal from a judgment of the Municipal Court, eighth district, rendered in favor of the plaintiff and against the defendant.</p>

<p>Municipal Court of the city of New York — A nonresident, suing by long summons, need give no security for costs.</p> <p>SemMe, that a nonresident of the city of New York may bring an action in its Municipal Court by what is commonly known as a long summons and, when suing thus, need file no undertaking for costs.</p>

Appeal by defendants from a judgment rendered in the Municipal Court, fifth district, in favor of Tischler, petitioner, in a summary proceeding for alleged forcible entry and detainer.

<p>Appeal by plaintiff from a judgment of the Municipal Court, first district, Kew York city, rendered in favor of the defendant.</p>

<p>Contract — Unilateral agreement — Consideration.</p> <p>The mere written promise of a brewer that he would credit a beer bottler, who could not sell the brewer’s beer to certain customers of the bottler as cheaply as the brewer could, with a certain sum for every box of beer which the brewer sold to said customers, accompanied by an agreement of the parties that no beer was to be sold to outsiders at a price less than that at which the bottler had already agreed to sell, cannot be enforced against the brewer as the agreement merely requires the bottler to continue not to sell and there is therefore no act or forbearance upon his part which could furnish a consideration to the brewer for his execution or performance of the agreement.</p>

<p>Appeal by defendant from a judgment of the Municipal Court, eighth district, New York city, rendered in favor of plaintiff for the sum of $76.02 damages and costs.</p>

Appeal by the defendant from a judgment entered in favor of the plaintiff in the Municipal Court, fourth district, New York city.

<p>Apfeal by the defendant from a judgment of the Municipal Court, second district, New York city, in favor of plaintiff.</p>

<p>Appeal by defendants from a judgment, in favor of the plaintiff, of the Municipal Court, eleventh district, New York city.</p>

<p>Uegligence — Contributory negligence of a driver in failing to look about.</p> <p>Before getting into a wagon having a top with closed sides and which was facing north, the owner saw a cable car, distant about half a block, approaching rapidly from the south on the track nearest him. He entered the wagon and without looking further turned about to go south, and when his horse and front wheel were clear of the track he saw the car again, but it struck his hind wheel and he and his wagon were injured.</p> <p>Held, that he was guilty of negligence in not looking about and around properly and could not recover damages of the corporation which operated the car.</p>

Appeals from judgments in favor of the plaintiff rendered in the Municipal Court of the city of Mew York, borough of Manhattan, for the first district.

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

<p>Summary proceedings — Forcible entry involves intimidation or violence.</p> <p>A summary proceeding to remove a person for forcible entry is not maintainable upon proof that the defendant, claiming rights in the petitioner’s basement, employed a carpenter to remove a partition which prevented access thereto, and that while the work was going on. the petitioner appeared, remonstrated and then left voluntarily; there-being no evidence of threats,- intimidation or actual violence upon the part of the defendant or his agents.</p>

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

<p>Consideration — Compromise of disputed claim — Bars defenses to the-original claim.</p> <p>In an action based on alleged negligence, it appeared that the defendants, by blasting on their own premises, had injured the adjoining premises of the plaintiff. The latter employed a contractor to make repairs, and after the defendants had paid a part of his charges they objected to them as exorbitant, but entered into an agreement by which they promised to satisfy any judgment which the contractor might recover against the plaintiff provided they were allowed to defend. They failed to do so and the contractor recovered a judgment against the plaintiff.</p> <p>Held, that as there was a l)ona fide dispute between the parties the ■defendants’ agreement was based on a valid consideration and that ■the plaintiff was entitled to recover in this action so much as the contractor had recovered of it.</p> <p>That the compromise agreepnent also barred any defense to the •original claim, including the question whether the defendants had been negligent in blasting in the manner they had.</p>

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

<p>Action for rent — Where there is an outstanding lease, occupation creates a liability.</p> <p>Unless a surrender or new letting of the demised premises is shown, the tenant is alone liable for the rent and the fact that his wife offered to pay rent for her occupation, after he left, does not make her liable to the landlord for use and occupation.</p>

<p>Sales — Acceptance by use with knowledge of a defect.</p> <p>Where a purchaser discovers immediately that a tank which has been furnished to him leaks, and declines the manufacturer’s prompt offer to repair it for the reason that repairs would interrupt the purchaser’s business, his further use of the tank during a period of eight months without objection amounts to such an acceptance of it as makes him liable for the price.</p>

<p>Appeal from a judgment based upon the verdict of a jury, rendered in the Municipal Court of the city of Mew York, borough of Manhattan, for the sixth district.</p>

Aupé at. from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Mew York, borough of Manhattan, for the fifth district.

<p>Livery-stable keeper’s lien — Abandonment — Waiver.</p> <p>Semble, that the lien of a livery-stable keeper for the hoard of a horse and storage of a wagon is abandoned where he allows a new owner, who to his knowledge has received them upon an exchange, to use them and himself puts them in the possession of the new owner.</p> <p>Semble, that a livery-stable keeper’s lien against the new owner is waived where the former accepts from the latter the personal credit of a third party in the form of a promissory note.</p>

<p>Contract — Creditor entitled to payment in trade cannot exact a money equivalent.</p> <p>Where livery-stable keepers mutually agree that any balance o£ indebtedness, resulting from the reciprocal use of their carriages and. horses, shall be paid in livery hire by the party found a debtor, the creditor cannot compel the debtor to pay any money even though, because the creditor has retired from business, payment in trade will be of no value to him.</p>

<p>Summary proceedings — Venue in the city of New York.</p> <p>A summary proceeding to dispossess a tenant must, in the city of New York, he tried in the Municipal Court of the district in which the property or a part thereof is located, or in an adjoining district, and a justice of said court sitting in any other district is without jurisdiction.</p>

<p>Action to set aside an assessment and to recover back moneys paid thereon.</p>

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

<p>Appeal by the defendant from a judgment rendered in favor of the plaintiffs in the Municipal Court, tenth district, borough of Manhattan, for the sum of $45.87.</p> <p>The action was brought for work, labor and services done and performed and for money expended for and on behalf of the defendant in searching the title to certain real estate, under the terms of special contract, by the terms of which the defendant agreed to pay the sum of $25 and actual disbursements, f The material facts appear in the opinion.</p>

<p>Appeal from a judgment in favor of plaintiff against the defendant for the sum of $238.17, rendered in the Municipal Court ■of the eighth district, Bew York city.</p>

<p>Appeal from a judgment dismissing the complaint of the plaintiff in the Second District Municipal Court of the city of New York.</p> <p>The pleadings in the court below were oral, the plaintiff complaining for services performed and materials furnished by a female other than a domestic.</p> <p>The answer was “ Tender $10.64, $2 costs, and 26 cents interest.”</p>

<p>Appeal from a judgment in favor of plaintiff entered in the Municipal Court, third district, for the sum of $150.17, after trial by the court without a jury.</p>

<p>Appeal from a judgment in favor of the plaintiff and against the defendant in the Municipal Court of the city of New York, second district, for the sum of $153.75 damages, and $17.50 costs.</p> <p>The action was brought to recover for the making of fifteen galvanized boilers at an agreed price of $10.25 each, and delivered to defendant.</p> <p>The answer admits that the plaintiff did sell the boilers to the defendant, but alleges that they were defective, not according to the order given, could not be used for the purpose for which they were ordered, and claims damages in the sum of $500.</p>

<p>Appeal from a judgment of defendant dismissing the complaint of the plaintiffs, rendered in the Municipal Court, eighth district, borough of Manhattan.</p> <p>The material facts appear in the opinion.</p>

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

<p>Appead by plaintiff from judgment of the Municipal Court, eighth district, ¡New York city, dismissing the complaint.</p>

Appeal by defendant from a judgment of the Municipal Court, ninth district, New York city, awarding plaintiff $150 damages, with costs, for injuries to property delivered to defendant for transportation.

<p>Appeal by plaintiff from a judgment of the Municipal Court, fifth district, New York city, dismissing the complaint.</p> <p>This action was brought to recover damages for injury to an overcoat of the plaintiff, resulting from a bite of a horse belonging to the defendant.</p>

<p>Appeal by defendants from a judgment of the Municipal Court, second district, New York city, in favor of plaintiff, for the sum of $59 and costs.</p> <p>This action was brought to recover freight on a cargo of coal shipped by defendants oh a boat belonging to the plaintiff, from South Amboy, H. J., to the borough of Brooklyn, this city, at the alleged rate of sixteen cents per ton, less advances for towing and trimming. Th'te defendants denied that such was the rate agreed upon, contending that the agreement for carriage was at the rate of $3.50 per day.</p>

<p>Appeal from a judgment of the Municipal Court, eighth district, entered upon the verdict of a jury as for personal injuries suffered by the plaintiff while a passenger of, and through the negligence of the defendant.</p>

Appeal by the defendant from a judgment of the Municipal Court, seventh district, Eew York city, in favor of the plaintiff, in which judgment it is stated that the defendant is liable to arrest and imprisonment on execution.

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

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

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

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

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

<p>Appeal from a final order rendered in dispossess proceedings against the appellant in the Municipal Court of the city of New York, borough of Manhattan, sixth district.</p>

<p>Appeal from a judgment of the Municipal Court, second district, borough of the Bronx, dismissing a petition made in a summary proceeding under the Statute for Forcible Entry and Detainer.</p>

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

<p>Appeal by the plaintiff from an order of the General Term of. the City Court of New York, affirming an order for an open commission granted at the instance of the defendant.</p> <p>The opinion states the material facts.</p>

<p>Appeal from a judgment in favor of defendant for costs, rendered in the Municipal Court, Finth District, borough of Manhattan.</p>

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

<p>Appeal from a judgment in favor of the plaintiff and against the defendant, rendered in the Municipal Court, sixth district, borough of Manhattan. ' — ■</p>

<p>Appeal from a judgment rendered in favor of the defendant and against the plaintiff, in the Municipal Court, first district, borough of Manhattan. ' .....</p>

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the fourth district, borough of Manhattan, in favor of defendant.</p>

<p>Appeal from a judgment rendered against the plaintiff and in favor of defendants, for costs in the Municipal Court, first district, borough of Manhattan.</p>

<p>Appeal from a judgment of the Municipal Court of the second district, dismissing the complaint of the plaintiff, without costs.</p>

<p>Appeal from an order granted the landlord in summary proceedings taken to obtain possession of certain premises in the city of New York.</p>

<p>Appeal from a judgment rendered in the Municipal Court, fourth district, borough of Manhattan, in favor of the plaintiffs and against the defendants.</p>

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

<p>Appeal from a judgment of the Municipal Court, second district, borough of Manhattan, in favor of the plaintiff and against the defendant for the sum of $132.47.</p>

<p>Appeal by the defendant from a judgment of the Hinth District Municipal Court, borough of Manhattan, in favor of the plaintiff.</p>

<p>Appeal from an order of the General Term of the City Court, affirming an order of the Special Term of the City Court making one Alexander McKeown a party defendant in this action.</p>

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

<p>Appeal from a judgment rendered in favor of the plaintiff and against the defendants by the justice of the second district of the borough of Richmond, sitting in the first district of the borough of Manhattan.</p>

<p>Appeal from a judgment of the General Term of the City Court affirming a judgment entered upon a verdict directed at Trial ,Term.</p>

Appears from judgments of the General Term of the City Court affirming the judgments entered in actions Nos. 2, 3 and 4, by stipulation, upon a verdict directed in action No. 2 by the justice at Trial Term in favor of the plaintiff, upon the evidence in action No. 2.

<p>Appeal by the petitioner, from an order of the Municipal Court, seventh district, Mew York city, dismissing the proceedings herein.</p>

<p>Appeal by defendant from a judgment of the Municipal Court, tenth district, New York city, rendered in favor of the plaintiff, for the sum of $14:5, damages and costs.</p>

<p>Appeal by the plaintiff from a judgment recovered by the defendant in the Municipal Court, first district, New York city.</p>

<p>Appeal by the tenant from the judgment entered against him, upon the verdict of a jury, in proceedings brought to dispossess him for nonpayment of rent, for the month of June, 1898, of the premises known as No. 434 Eighth avenue, in the city of New York.</p>

<p>Appeal by defendant from a judgment of the late District Court, tenth judicial district, New York city (now the Municipal Court, second district, borough of The Bronx)^, entered in favor of the plaintiff upon the verdict of a jury.</p>

<p>Appeal by the plaintiff from an order of the General Term of the City Court of the city of New York, reversing an order of the Special Term, denying a motion made by subsequent judgment creditors to vacate the attachment theretofore granted herein.</p>

Appeal by the defendant from a judgment entered upon an inquest taken in the Municipal Court, first district, Eew York city, on the 19th day of January, 1899, and from an order entered in the same court on the 28th day of January, 1899, granting motion of defendant to open its default upon certain conditions.

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

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

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

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

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

<p>Appeal from a judgment of the. Sixth Municipal Court, bor•ough of Manhattan, in favor of the defendant, dismissing the •complaint, with costs.</p>

<p>Appeal from a judgment of the Municipal Court, fifth judicial district.</p>

<p>Appeal from a judgment of the Municipal Court, fifth judicial district.</p>

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

<p>Appeal from an order of the Special Term denying a motion to open a default.</p>

<p>Appeal from an order of the Special Term denying plaintiff’s motion to strike out the amended answer as sham, and for other relief.</p>

<p>Appeal from an order of the Special Term denying the plaintiff’s motion for a bill of particulars of the defendants’ counterclaim.</p>

<p>Appeal from a judgment entered on a verdict directed by the court.</p>

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

<p>Appeax from a judgment in favor of defendant and from an order on motion for a new trial.</p>

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

<p>Appeal from an order requiring a bill of particulars.</p>

<p>Appeal from an order denying motion to sue as a poor persdn.</p>

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

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

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

<p>Appeal from an order overruling a demurrer to the answer and. from an interlocutory judgment entered thereon.</p>

<p>Appeal from an order made at Special Term on December 8, 1898, vacating a replevin writ on the ground that the property mentioned therein was not particularly described therein as required by the Code.</p>

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

<p>Appeal from a judgment entered upon a verdict rendered by a jury in plaintiff’s favor.</p>

Appeal by one of two defendants from an order of this court, remanding an action to the Third Municipal Court, after an order of removal has been made by said Municipal Court.

<p>Appeal from an order of Special Term striking out an answer as sham and frivolous.</p>

<p>Appeal from judgment in replevin and from order denying defendants’ motion for a new trial.</p>

<p>Appeal from a judgment dismissing a complaint, and from an order denying a motion for a new trial.</p>

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

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

<p>Appeal from an order in supplementary proceedings.</p>

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