Volume 26 — New York Supplement

<p>Appeal from fourth district court.</p> <p>Action by Barney Cohen against Edward Hirsch for the price of goods sold and delivered. Judgment for defendant. Plaintiff appeals.</p>

<p>Adpeal—Conflicting Evidence.</p> <p>Findings of fact on conflicting evidence will not be disturbed on appeal.</p>

Motion by plaintiff (respondent) for leave to appeal to the court of appeals. For decision on appeal to the court of common pleas, see 23 N. Y. Supp. 675.

Action by Lewis Gold against Mary E. Serrell for real-estate commissions. From a judgment (21 N. Y. Supp. 1078) affirming a judgment for plaintiff entered on report of a referee, defendant appeals.

Action by Caleb T. Ames and another- against John McNaEy to recover commissions on the sale of realty. From a judgment dismissing the complaint, plaintiffs appeal.

Action by Patrick H. 'Curran against Nathan Weiss and others to recover damages for the negligence of defendants, or their servants, which resulted in the overflow of a water basin, and injury to a stock of merchandise belonging to plaintiff’s assignor; the latter being at the time the tenant and occupant of the lower, and defendants the tenants and occupants of the upper, portion of the same building. From a judgment for plaintiff, defendants appeal.

Action by Michael Quinn against John Fish to recover for personal injuries sustained while in defendant’s employment. There. was judgment dismissing the complaint, and plaintiff appeals.

Action by Frederick Hackett against the Equitable Gaslight Company of New York to recover for personal injuries alleged to have resulted from the negligence of defendant’s servants. From a judgment entered on a verdict for plaintiff, and an order denying a new trial, defendant appeals.

Action by Schuyler L. Mackie against Thomas D. Egan to recover the price of goods sold. From a judgment affirming a judgment entered on a verdict for plaintiff, defendant appeals.

Action by William B. Tobin against the Manhattan Savings Institution to recover moneys deposited by plaintiff with defendant savings bank, which defendant claimed to have paid on a draft or withdrawal slip purporting to have been signed by plaintiff, but the signature to which plaintiff alleged was a forgery.

<p>Appeal from first district court. ■</p> <p>Action by Charleo F. Mattlage against David Lewi to recover money paid under mistake. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal—To Court op Appeals—Motion por Leave.</p> <p>The court of common pleas has no jurisdiction to entertain a motion for leave to appeal to the court of appeals in a case appealed from the city court where, before notice of the motion, the remittitur from the common pleas was filed in the city court, an order entered making the judgment of the common pleas the judgment of the city court, and the cause set for trial.</p>

<p>Master and Servant—Fellow Servants—What Are.</p> <p>The foreman of a gang engaged in constructing arches for a building ordered plaintiff to go on an arch from which the support had recently been removed. The arch gave way under plaintiff’s weight, and he was injured. Held that, as to such act, the foreman was the fellow servant, of plaintiff. Louglilin v. State, 11 N. B. 371, 105 N. Y. 159, followed.</p>

<p>1. Negotiable Instruments—Interpretation.</p> <p>A joint “or” several liability is a joint “and” several liability.</p> <p>2. Parties—Misjoinder as a Defense.</p> <p>In an action on a joint, or several liability, • misjoinder of parties defend ■ ant is no defense, but judgment goes against a defendant upon his several liability.</p> <p>3. Pleadings.</p> <p>Denial of a legal conclusion is nugatory.</p> <p>4. Accord and Satisfaction—What Constitutes.</p> <p>Acceptance of an indorsed promissory note of the debtor In payment and satisfaction of his existing indebtedness .for goods sold is a valid accord and satisfaction, and so merges and extinguishes the original debt.</p> <p>6. Corporations—Liabilities of Trustees.</p> <p>In an action against trustees under the act of 1875, a judgment against, the corporation is not requisite.</p> <p>6. Same—Several Judgment—Effect of.</p> <p>A judgment against one trustee upon his several liability does not discharge or affect the liability of another trustee.</p> <p>7. Negotiable Instruments — Recovery against Indorser — Effect of on Maker.</p> <p>A judgment against the indorser does not discharge or affect the liability of the maker of a note.</p> <p>& Pleadings—Demurrer to Answer—What Questions Raised.</p> <p>The role that upon demurrer to the answer the complaint is open to-question exposes the complaint to challenge only for want of jurisdiction or cause of action, but not to the objection of a defect of parties.</p> <p>9. Same—Complaint—Defects Cured by Answer.</p> <p>A defect for which the complaint would be condemned on demurrer is supplied and repaired by allegation of the requisite fact in the answer.</p> <p>(Syllabus by the Court.)</p>

Action by Richard Deeves against the Metropolitan Realty Company of the city of New York to foreclose a mechanic’s lien on real-estate. From an order denying a motion to settle issues for trial-by jury, and an order of reference, defendant appeals.

Action oh a promissory note by the Mechanics’ & Traders’ Bank against Frederic Livingston and another. From a judgment (23 27. Y. Supp. 814) affirming a judgment entered on a verdict for plaintiff, defendants appeal.

Action by Louis A. Jackson against the Fiew York Post-Graduate Medical School and Hospital to recover damages for alleged wrongful discharge of plaintiff from defendant’s service. From a judgment (23 FT. Y. Supp. 119) affirming a judgment entered on a verdict for plaintiff, defendant appeals.

<p>Divorce—Abandonment and Failure to Support.</p> <p>An agreement between a husband and wife, by which the wife is to live apart from her husband, in consideration of his promise to pay an annual sum for her support, is revocable at the pleasure of either party, because it is against public policy; and therefore, where the wife’s offer to return to her husband is refused by him, and he does not provide for her support, she is entitled to a separation, with alimony, on the ground of abandonment and nonsupport.</p>

<p>Appeal from fourth district court.</p> <p>Separate actions by Ernest Schmieder and by Franz Wagner, respectively, against Herbert M. Kingsley and others for wages. From a judgment for plaintiff in each case, defendants appeal.</p>

Action by Louis Eunge against Otto Esan, president of the Kranken Unterstuetzungs Verein Hanover, for sick benefits in said, society. From a judgment of the district court, rendered on a trial before a justice thereof without a in favor of tiff appeals.

<p>Appeal from first district court.</p> <p>Action by Simon Pregenzer against Henry G-. Burleigh and others for damages for demurrage. From a judgment for plaintiff by. the district court on trial before the justice without a jury, defendants appeal.</p>

Action by Emma T. Green, administratrix, against Joseph G. Boworth and others. An order of reference was made, and defendant’s motion for a new trial of the application therefor was. dismissed. Defendants now move to vacate the order of dismissal, and to hear the motion for a new trial on the merits.

<p>1. Action—Promise for Benefit of Third Person.</p> <p>A promise by one person for the benefit of another will sustain an action by that other; and this, although the debt which the one promised to pay be not then in existence, and although, at the time of the promise, the beneficiary be not identified, and although the person claiming the benefit of the promise did not know of it when his claim against the pro'misee accrued.</p> <p>2. Same—Character of Contract.</p> <p>The rule is applicable as well to a specialty as to a simple contract.</p> <p>8. Same—Origin of Doctrine.</p> <p>Origin in this state of the doctrine of Lawrence v. Fox. 20 N. Y. 268.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from trial term.</p> <p>Action by Marshall P. Stafford against Charles C. AzbelL The complaint was dismissed, and plaintiff appeals.</p>

<p>New Trial—Inadequate Damages—Waiver.</p> <p>In an action for personal injuries, caused by defendant’s negligence, a new trial cannot be obtained as for inadequate damages, because, after departure of plaintiff’s counsel, the court has given the jury an instruction asked by defendant, which the court had before overlooked, said counsel’s clerk being in court and excepting, the instruction simply stating a rule of liability, and not of the measure of damages, and plaintiff’s counsel being thereafter present when the sealed verdict is delivered, with knowledge of the facts, and making no objection to the rendering of the verdict. Blschoff, J., dissenting.</p>

Action by George H. Walker and Oscar W. Walker, trading as ° George H. Walker & Co., against Philip G. Hubert, for the contract price of certain printing furnished. From a judgment for plaintiffs, (25 N. Y. Supp. 519,) defendant appeals.

Action by James Flanagan, as executor of the estate of Catherine Flanagan, deceased, against Patrick Fox, on a contract for the purchase by deceased of certain real estate to recover the amount paid on account of the purchase money, with damages for defendant’s failure to perform the contract on his part. From a judgment of the general term of the city court of New York (25 N. Y. Supp. 514) affirming a judgment dismissing the complaint, plaintiff appeals.

Proceedings to punish Simon Buttner, as for a civil contempt, for disobedience of an order in proceedings supplementary to execution prosecuted on a judgment in favor of Elias Wolf and against Simon Buttner and another. From an order of the general term of the city court of New York affirming an order, made on default, adjudging such judgment debtor in contempt, and also affirming an order denying his motion to vacate the order adjudging him in, contempt, Buttner appeals.

Action by George Vorzimer and others against Alexander Shapiro and others to recover damages alleged to have been caused by defendants’ deceit.

Action by Michael Burke against Delia B. Burke individually, and as executrix of the will of Patrick J. Burke, deceased, to enforce a provision of the will in favor of plaintiff. Plaintiff now moves to vacate an order striking the cause from the equity calendar, and to restore it to the equity calendar.

<p>Action by Michael Burke against Alice Burke for divorce. The •co-respondent applies for leave to intervene.</p>

Action by Louis C. Bichard against Claude M. Boland for mali■cious prosecution. The complaint was dismissed, and plaintiff moves for a new trial on the minutes.

Action by Darrow against Riley. A receiver was appointed in supplementary proceedings, and a judgment creditor in another' proceeding against defendant moves to set aside the appointment.

Action by Richard P. McBride against Frank O. Chamberlain and Charles B. Lapham, as administrators with the will annexed of Elbridge Lapham, deceased. Defendants move to correct the judgment rendered in favor of plaintiff by striking therefrom the sum of $192, taxed as costs.

Action by Louise B. Lynch as assignee of Leman B. Treadwell . against Albrecht J. Lerche to recover the sum of $1,870 for services-of attomev and counsel rendered to defendant by said Treadwell. From a judgment entered on a verdict in favor of plaintiff for $1,000, and from an order denying motion for a new trial made on the minutes, defendant appeals.

<p>Municipal Bonds Stolen before Issue—Bona Fide Purchasers.</p> <p>A village is not liable on bonds which were stolen and put on the market before they were issued by the village officers, though the bonds passed into the hands of the bona fide purchaser for value.</p>

Action by John McPhillips, Jr., against John H. Jones, as indorser of a promissory note for $125. There was a judgment for plaintiff, and defendant appeals.

Action by Emily Cochran against Oscar C. Smith for trespass on land. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendant appeals.

<p>Appeal from circuit court, Westchester county.</p> <p>. Action by Christine Beltz against the city of Yonkers to recover damages for personal injuries by reason of the alleged negligence of defendant. From a judgment entered on a verdict in favor of plaintiff, defendant appeals.</p>

Action by Harry R. Elliott and another against the New York Endowment Company for goods sold and work done. Judgment was entered on the verdict in favor of plaintiffs, directed by the court, and defendant appeals.

Controversy between the Troy Manufacturing Company, as plaintiff, and Ellen Harrison, the Saxony Woolen Mills, and others, as defendants. There was a decision in favor of plaintiff, (24 N. Y. Supp. 693,) and defendants appeal.

Action by James Bigler against Joseph W. Duryee on a promissory note alleged to have been made by defendant for $11,400, payable on demand. From an order granting an application by plaintiff for the examination of defendant before trial, defendant appeals.

Action by Anri Eliza Wilcox against Charles J. Quinby and James D. McCabe individually and as executors of the will of Daniel Quin-by, deceased, and as trustees under said will of Egbert Quinby, charging defendants with misappropriation of the income of the trust estate, and with neglect of their duties as trustees. From a judgment in favor of plaintiff, defendants appeal. Plaintiff moves to dismiss the appeal.

Action by James D. Heatherington against Claus Martens. From an order denying a motion to set aside an order directing the sheriff of the county of Richmond to pay over the sum of $88.68 to Margaret Fitzpatrick or her attorney, less his fees, plaintiff appeals.

<p>1. Arbitration and Award —Failure to Swear' Arbitrators.</p> <p>Failure to swear arbitrators before hearing any testimony will vitiate the award, unless the oath was waived.</p> <p>8. Same—Appointment op Umpire in Writing.</p> <p>Where an agreement to submit to arbitration authorizes the selection of an umpire in a certain contingency, but does not prescribe the method, the appointment must be in writing, as required by Code Civil Proc. § 2367.</p> <p>8. Same—Choosing Umpire “by Lot. ”</p> <p>Where the report of a case tried by arbitration states that the umpire was chosen “by lot,” it will be presumed that the selection was in some irregular or some unjustifiable manner, so as to vitiate the award.</p> <p>4. Same—Hearing before Umpire.</p> <p>A submission provided that, if the arbitrators failed to make an award before a certain day, the matter should be submitted before the umpire then or thereafter to be appointed. After taking testimony, the arbitrators chose an umpire. It did not appear that the umpire sat with the arbitrators or heard the testimony. Held, that an award by the umpire without hearing the cause anew was invalid.</p>

<p>Guardian and Ward—Accounting—Limitation.</p> <p>A ward who becomes of age six years before the death of his guardian is barred by limitation from demanding an accounting from the executors of the guardian of the acts of their testator as such guardian.</p>

Separate applications for writs of certiorari by John Donlon,. Michael J. Lynch, and John Cochran, respectively, to review an action of the board of town auditors of the town of Pelham in rejecting claims presented by relators for services rendered as highway commissioners of said town.

Action by Thomas Farmer against the National Life Association of Hartford, Conn., on a policy of life insurance issued to defendant by one Thomas Brady, and by him assigned to plaintiff. From an order denying a motion to have an order for examination of plaintiff before trial to enable defendant to its peals.

Action by Ella G-. Jamieson and another against the Kings County Elevated Railway Company to recover damages with fee and rental walue of plaintiffs’ property, No. 799 Fulton street, in the city of Brooklyn, by reason of the construction and operation of defendant’s elevated railroad in such street, and for an injunction. There was a judgment in favor of plaintiffs, and defendant appeals.

Action by Seth B. Robinson against Herman Passavant and others. Seth B. Robinson, Sr., to whose rights against defendants, plaintiff succeeded, bought goods on defendants’ credit under an agreement that he should have the goods on paying the cost price and a commission for the use of defendants’ credit.

<p>Orders—Liability oe Acceptor.</p> <p>The acceptance of an order payable out- of thé last payment to become due on a building contract is enforceable against the acceptor, though the last payment never became due, where it was prevented from becoming due by the fault of the acceptor.</p>

Action by John Adamson against the Union Railway Company and the city of Brooklyn and others to declare void a grant of a franchise by defendant city to defendant railroad, and to restrain defendant railroad from doing any act or taking any steps towards constructing the said railroad. From a judgment in favor of plaintiff, defendants appeal.

Action by Frank P. Ward against Charles Isbill and others to foreclose a mortgage. There was a judgment in favor of defendants, and plaintiff appeals.

Action by Frank A, Hall against the Sterling Iron & Bailway Company to restrain defendant from obstructing the outlet of a certain pond. There was judgment in favor of plaintiff, and defendant appeals.

Action by Thomas Atwood against Edward C. Beirne for malicious prosecution. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court, defendant appeals.

Action by the Woodhaven Junction Land Company against John Solly and Charles Lange to restrain defendant Solly, as landlord, and defendant Lange, as his tenant, from further letting or using certain premises for the business of a saloon,, and for damages. The premises were purchased by defendant Solly from plaintiff in June, 1891, but the deeds were not delivered until three months after the purchase money had been paid, and the building already erected thereon and rented.

<p>Appeal from Kings county court.</p> <p>Action by William M. Sherwood against Tjark J. Houtman to recover a balance to be due under a contract. There was a judgment in favor of plaintiff, and defendant appeals.</p>

Action by Edson O. Jennings against the D. G-. Burton Company for injuries sustained from the bite of a dog alleged to have been owned and harbored by defendant. From a judgment entered on the verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Application by the Pratt Institute for a writ of mandamus to the board of assessors of the city of Brooklyn to compel defendant to cancel the taxation imposed in 1892 on relator’s property. The application was granted, and defendant appeals.

<p>Wills—Constbuction-—Descbiption of Pbopebtt.</p> <p>Testator devised to his daughter “24 acres in the northeast corner of 104 acres on which I now reside; * * * said 24 acres bounded on the east by the road, on the south and west by a road running through said 104 acres.” The tract was bounded on the east and south by a highway. A few rods west of the southeast corner, a private road ran northwesterly for a short distance, thence northerly to the boundary. The land between the highways and the private road contained 32 acres. Seli, that testator intended the devisee to take 24 acres only, and not the entire portion between said roads.</p>

<p>Appeal from special term, Queens county.</p> <p>Action by Robert Jackson against Pierre M. Brown to recover damages for loss of services of plaintiff’s servant. Defendant demurred to the complaint on the ground of misjoinder, and, from a judgment sustaining the same, plaintiff appeals.</p>

Action by Alonzo Osborn against George Stephens for malicious prosecution. From an order changing a place of trial from Westchester county to Tompkins county for convenience of witnesses, plaintiff appeals.

Action by Elwood B. Mingay against Mary E. Lackey, Idly Mingay, and others for partition. An interlocutory judgment was entered directing a sale of the premises sought to be partitioned, and providing that the value of the interest of James Mingay as tenant by the curtesy should be paid to E. B. Mingay, to whom said James B. Mingay had transferred his interest. Before the sale was made, James B. Mingay died, and on motion the provision of such payment was stricken out.

Action by Edward Miller against the Manhattan Railway Company to recover damages for personal injuries alleged to have been inflicted by defendant’s servant. From a judgment entered on a verdict in favor of plaintiff for $2,232.60, and from an order denying a motion for a new trial on the merits, defendant appeals.

Action by Edward Miller against the Manhattan Railway Company. A judgment having been rendered in favor of plaintiff, and a motion for new trial on the merits denied, (26 N. Y. Supp. 162,) defendant now moves for a new trial on ground of surprise at the absence of William J. Hopper, who is stated in the moving affidavits to be a necessary and material witness for defendant. The motion was denied, and defendant appeals.

<p>Action to Annul Marriage—Evidence.</p> <p>In an action to annul a marriage on the ground of physical incapacity-of defendant, evidence that, in due time after the marriage, defendant, gave birth to twins, is sufficient to sustain a judgment for defendant.</p>

Action by James M. Campbell and William L. Woodill against the United States Foundry Company to recover damages for the alleged negligence of defendant in setting fire to, and destroying, . plaintiff’s property. From a judgment entered on a verdict in favor of plaintiffs for $2,879.23, defendant appeals.

Application by Lawrence D. Huntington and others, constituting the board of commission era of fisheries of the state of New York, for mandamus to compel John J. Crennan, as justice of the peace, to pay over to said board certain fines imposed by him in violation of the game act. Theretofore such fines were payable to the county treasurer. There was judgment in favor of defendant, and relators appeal.

Action by the Hartford Eire Insurance Company against Robert H. M. Dickinson and James H. Blauvelt to recover ¡¡>611.61 alleged to have been collected by defendants as agents for plaintiffs.

Action by James T. Watson against Elizabeth P. King, as surviving executrix of Abraham P. Grant, deceased, for an accounting. From a judgment in favor of plaintiff for $691.10 and costs, defendant appeals. The controversy in this case is over an agreement made the 14th July, 1873, between the executors of the last will and testament of Abraham P. Grant, deceased, of the first part, and John W. P. Allen, of the second part.

Action by Frederick H. Smith against the Equitable Mortgage Company, the city of Athens, Ga., and others, to restrain defendants from issuing and disposing of certain bonds of said city of Athens to the amount of $125,000, in constructing a new system of waterworks in said city, to be used as a substitute for the Athens. City Waterworks Company.

Vernon. Action by Michael Fines against Edward G. Woolfolk for personal injuries, for alleged negligence in employing a fellow servant of plaintiff, in consequence of whose incompetence plaintiff was injured. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Theodore Randolph against Robert B. Murray to recover money due under a contract. There was a judgment in favor of plaintiff, and defendant appeals.

Action by Daniel Miller and another against Nathan M. Kosch. The action was originally begun against John F. Shankey, sheriff of Rockland county, to recover money collected by him from the sale of property of one K. M. Hoffman under executions. Before answering, said Kosch obtained an order substituting himself as defendant, he being also a claimant of the money. There was a judgment in favor of defendant, and plaintiffs appeal.

Action by Edward D. Burt and William H. Perry against William H. Nafis to recover the sum of $645, retained by defendant out of the purchase money of land sold by plaintiffs. Defendant set up a -counterclaim for work, labor, services, and disbursements as an attorney in perfecting the title to the land sold. To this counterclaim appellants reply, denying that $645 was a reasonable charge for defendant’s services and expenditures. .

Action by Catharine D. Sullivan against the Industrial Benefit Association on a certificate of membership. From a judgment entered on a verdict in favor of plaintiff, and from an order denying-a motion for a new trial, made on the minutes of the defendant appeals.

Appraisement of the estate of William W. Merriam for taxation under the collateral inheritance and legacy tax. From an order affirming an order assessing the cash value of the personalty at the time of testator’s decease at $79,284.60, and fixing the tax on the transfer thereof to the United States at the sum of $3,964.23, the United States and Clifford B. Ackerly appeal.

<p>Appeal from judgment on the report of referee.</p> <p>Action by Francis Bonneford against Emma H. De Russy, impleaded with others. From a judgment in favor of plaintiff , for §2,708.23 and costs, defendant De Russy appeals. Remanded for settlement of case.</p>

<p>Appeal from special term, Madison county.</p> <p>Action by Samuel W. Davis and others against Seth Howard and others to set aside certain deeds and an assignment for the benefit of creditors on the ground of fraud. From a judgment dismissing the complaint with costs, plaintiffs appeal.</p>

Proceeding by the city of Brooklyn, under Laws 1892, c. 481, to condemn the property and franchises of the Long Island Water-Supply Company, organized in the town of New Lots, which town was afterwards annexed to the city of Brooklyn by Laws 1886, c. 335. The commissioners to whom the question of compensation was referred reported in favor of the water company for $570,000.

Submission, without action, of a controversy between the Elmira Savings Bank, as plaintiff, and Charles Davis, receiver of the Elmira National Bank, as defendant. Judgment for plaintiff.

Action by David P. Lester against the Delaware, Lackawanna & Western Railroad Company. From a judgment in favor of plaintiff for 105.75 and costs, entered on a trial by the court without a jury, defendant appeals. This action is brought for the conversion of a quantity of personal property.

Petition by Thomas H. Stryker and Edward Comstock, as receivers of the New York Locomotive Works, for instructions as to whether certain claims should be paid as preferred claims. The court held that such claimants were not entitled to preference, and George D. Little, Thomas W. Hodges, Bichard Williams, William B. Deming, J. E. Stebbins, and H. M. C. Skinner appeal.

Proceeding by George Clark for damages for the taking and appropriating of lands by the water commissioners of Amsterdam. From an order modifying and confirming an award of commissioners of appraisal the board of water commissioners appeals.

<p>Appeal from Montgomery county court.</p> <p>Final accounting by Edward J. Maxwell, as assignee of John Reddish. From a decree settling the accounts the assignee</p>

<p>Appeal from circuit court, Schenectady county.</p> <p>Action by Joseph Fowler against the New York Central & Hudson River Railroad Company for personal injuries. Judgment was entered on a verdict directed by the court in favor of defendant, and plaintiff appeals.</p>

Action by the people of the state against Frank McMasters to recover penalty for violating the game law. There was judgment in favor of defendant, and plaintiff appeals.

Albert Rockhill was indicted for assault in the first degree. A demurrer to the indictment was sustained, and the people appeal.

Proceeding by John Wesley Bishop and Wilbur F. Hill to determine the right to the office of excise commissioner as against Zachariah Palen and George W. Beesmer. Judgment was entered on a verdict directed by the court in favor of defendants, subject to the opinion of the court at general term.

Action by Ella I. Pollock against Abram D. Van Camp for the conversion of goods claimed by plaintiff as her property. There was a judgment in favor of plaintiff, and defendant appeals.

<p>Libel—What Actionable.</p> <p>It is libelous per se to write concerning defendant that he is “unreliable,” that “he cannot tell the truth,” and that “he does liot regard his-financial obligations."</p>

<p>'Criminal Law—Trial before Different Judges.</p> <p>A conviction before a police magistrate will be reversed where it appears that after the jury was selected, the case opened on the part of the prosecution, and a motion by defendant to dismiss denied, the proceeding was adjourned to a future day, and was then proceeded with by another magistrate, as a criminal case cannot be tried partly before one magistrate and partly before another.</p>

Action by Rebecca Sutherland, as administratrix of Mark Sutherland, deceased, against the Troy & Boston Railroad Company, for alleged negligence causing the death of plaintiff’s intestate. There-was a judgment in favor of plaintiff, and defendant appeals.

<p>Accord and Satisfaction—-Evidence.</p> <p>Where one of two persons, between whom there are mutual accounts, gives to the other a note and money, but receives nothing from the other at the time, it is prima facie evidence of an accounting and settlement between the parties at that time.</p>

<p>Appeal from Ulster county court.</p> <p>Action by Sylvester Stay against Charles V. Du Bois to recover damages for the refusal of defendant to admit plaintiff to the opera house of which defendant was manager. From a judgment dismissing the complaint at the close of the evidence, plaintiff appeals.</p>

<p>1. Marine Insurance—Notice oe Damage.</p> <p>A vessel carrying goods of plaintiff insured by defendant marine insurance company reached the port of destination on Thursday, but could not reach plaintiff’s dock until the vessel had been lightened. It finally reached plaintiff’s dock on Saturday, and was unloaded on that day, when it was discovered that the goods were damaged. Held, that notice given to defendants on the following Monday or Tuesday was within the meaning of the policy, that, in case of damage, defendant should “have early notice” thereof. 1</p> <p>2. Same—Action on Policy—Evidence.</p> <p>In an action against the insurer to recover damages to insured wheat by wetting, it is proper to permit plaintiff to testify that in his opinion the cash market value of the wheat was 81.12 per bushel at the port of ■destination; that he had market quotations every day; that such valuation was made up of the cost of the wheat, the freight, insurance, and ■exchange.</p>

Action by Sylvester McChesney against the Panama Railroad Company for personal injuries. There was a judgment in favor of plaintiff, and defendant appeals.

Action by Annie Taylor against Stephen Taylor for divorce from bed and board. There was a judgment in favor of defendant, and plaintiff appeals.

Actions by Frederick H. Cyrenius, as administrator of Alvin 'Cyrenius, deceased, against the Mutual Life Insurance Company of New York. From a judgment entered on a verdict in favor of plaintiff for §4,944.66, and from an order denying a motion for a new trial made on the minutes of the court, defendant appeals. The action is on a policy of insurance.

Action by the village of Watkins against Henry L. Hillerman. From a judgment in favor of plaintiff for the sum of $55 damages besides costs, entered on the decision of the court on a trial before the court without a jury, defendant appeals.

Application by Frederick E. Bates for a writ of mandamus to Robert G-. H. Speed and others. The complaint was dismissed, and the court refused to allow defendants their costs, and from the order denying the motion for costs, defendants appeal.

<p>Appeal from circuit court, Westchester county.</p> <p>Action by Alexander M. Conway against Edward O. Carpenter for assault and battery. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>J urors—Competency.</p> <p>A proposed juror who states that his prejudice against informers is- very strong, and who speaks hesitatingly as to whether he would believe such testimony, even if corroborated by other witnesses, is properly excluded' where the testimony of an informer is a part of the evidence relied ow by the prosecution.</p>

Two separate petitions for the appointment of a guardian of Dorothy Annan, an infant. From an order appointing, as such guardians, May Earle, the maternal grandmother, and Charlotte S. Richardson, the maternal aunt, of such infant, and directing that each guardian have the custody of the ward every alternate six months, Charlotte S. Richardson appeals.

Action by the Bank of Hamilton against Edwin D. Klock on two bonds executed by defendant to plaintiff. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendant appeals.

Action by Isaac Ostrander against Egbert Snyder. There was an interlocutory judgment that an agreement was made in November, 1890, between plaintiff and defendant, by which they became co-partners for the purpose of purchasing and selling real estate, the profits and losses to be equally divided between them; and W. O. Lament was appointed referee to take and state the partnership accounts between the parties. Defendant moves for a new trial under Code Civil Proc. § 1001.

<p>Appeal from special term, Broome county.</p> <p>Action by Hattie D. Huntley against Elmer E. Huntley for divorce. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Lewis W. Terwilleger against the Ontario, Carbondale & Scranton Railroad From a judgment in favor of plaintiff for $624.91 damages, besides costs, defendant appeals.</p>

<p>Appeal from circuit court, Oneida county.</p> <p>Action by the people of the state of New York against Anthony Girard for a penalty for violation of the “Vinegar Act,” (Laws 1889, c. 515.) Judgment for plaintiff. Defendant appeals.</p>

Proceeding by Le Eoy J. Brooks against Charles H. Watts to oust •defendant from the office of excise commissioner of the town of Norwich.

<p>1. Contract of Employment—Hiring by the Year.</p> <p>Defendant employed plaintiff “at the rate of” a specified sum a year, the employment commencing on July 1st. The salary was increased from time to time, one increase beginning in February, and another January 1st, each increase being “to the rate of” a sum stated. Held, that the employment was not by the year, and defendant had the right to discharge plaintiff at its pleasure.</p> <p>2. Same—Release.</p> <p>Defendant wrote plaintiff that, after a date named, bis services would not be needed. Plaintiff replied that “I accept your ultimatum. I regret that you have shunned me, but I presume your motives were good,” etc. Held, that the effect of the letters was to release both parties from any existing entire contract.</p> <p>8. Same—Recall of Release.</p> <p>A subsequent letter by plaintiff to defendant, to the effect that he did not intend to release it from payment of his" salary for the remainder of the year, and offering to perform during such time, did not reinstate the original relations of the parties.</p>

Action by William Klein against John Wegman to compel the-removal of an encroachment upon plaintiff’s land. There was judgment for plaintiff. Upon defendant’s failure to obey the judgment,, plaintiff made application for an order to have him punished for contempt. From an order refusing to vacate an order, entered by default, granting the application, defendant appeals.

<p>■City of Brooklyn—Pay of Officers of Eire Department.</p> <p>Brooklyn City Charter, (Laws 1888, c. 583,) tit. 13, §§ 5, 6, fixing the salaries of members of the fire department, are not repealed by Laws 1892, c. 710, relating to the pay of officers of the fire department in all cities having at the last census more than 900,000 population, and repealing all acts and parts, of acts inconsistent therewith, since a general law does not presumably repeal an existing local law, and the terms of the law of 1892 fit the organization of the fire department of New York, but not that of Brooklyn.</p>

<p>Controversy between the Democratic County Committee and the Republican County Committee of Queens County, relating to the office of school commissioner, submitted on agreed statement of facts, under Code Civil Proc. § 1279. Decided in favor of the Democratic County Committee.</p>

Action by Emily A. Emerson against Jesse M. Emerson for a separation. Plaintiff moves for an allowance for counsel fees for services already rendered and to be rendered.

Motion by plaintiff for an allowance for counsel fees for services rendered and to be rendered. The motion was denied by Mr. Justice PATTERSON for insufficiency of the moving affidavits, with leave to renew on proper papers. 26 N. Y. Supp. 291. Plaintiff now renews the motion.

Application by the highway commissioners of the town of Brook-haven for an order requiring the Long Island Railroad Company to station flagmen at street crossings in Patchogue. From an order compelling the company to erect and maintain in good order an electric-bell signal at the intersection of their railroad with Main street, east of the village of Patchogue in said town of Brook-haven, said railroad company appeals.

Action by Alfred T. White and another, as taxpayers of the city of Brooklyn, against David A. Boody, mayor of said city, and others, to restrain defendants from paying any money to the Inebriates’ Home under Laws 1877, c. 169, § 4. The injunction was denied, and plaintiffs appeal.

Action by David Aldridge, as superintendent of the poor of Oneida -county, against Mary Walker, to recover the amount ordered to. be paid by her for the support of a poor relative.' From a judgment for defendant, plaintiff appeals. Sarah Walker is the daughter of the defendant.

Action by Clara Brown against Sally Allen and others, administrators of Emory Allen, deceased, for purchase of land. •Judgment for defendants. Plaintiff appeals. May 24, 1870, Marietta L. Brown sold and deeded to Allen & Northam 357.14 acres of timbered land in Lewis county for $3,171.40, of which $671.40 was paid down by cash and a note. The balance was secured by a bond, with a mortgage on the same lands. The deed contained the usual covenant •of warranty.

Judicial settlement of the accounts of Philip F. Wangner, executor and trustee under the will of Magdelena Schauffert, deceased-Appeal by John Martin Daugs and Matilda Daugs, as executors ■and legatees under the will of Ernest Schauffert, deceased, from the surrogate’s final decree settling said Wangner’s accounts and directing final distribution.

Action by Edmund Deyo against Foster B. Morss, individually and as executor and trustee under the will of Burton G. Morss, deceased, and others. From an order denying a motion by defendants to strike out an amended or supplemental complaint they appeal. The stipulation referred to in the opinion provided for the filing of “an amended and supplemental complaint.”

<p>Appeal from special term, Suffolk county.</p> <p>Action by Charles S. Mott and George H. Shaffer against William Underwood, John W. Bransford, Benjamin Moger, David Smith, John McGregor, George Albín, Abraham Smith, Aaron Newins, Elijah Brown, Samuel Bland, Samuel Rowley, John Rowley, James Douglass, George Douglass, Charles Ferguson, James Albin, Dewitt Newins, Samuel Cheshire, and Thomas Kamp to enjoin the taking of oysters from an oyster bed. From a judgment dismissing the complaint, plaintiffs appeal.</p>

Action by Abel S. Myers against James Y. Parker and Emma Parker for trespass by defendants’ cattle. From a judgment of the county court reversing the justice’s judgment in favor of defendants, defendants appeal.

Action by Sophia M. Onderdonk against the New York & Sea Beach Railway Company for personal injuries caused by defendant’s negligence while plaintiff was a passenger on its train. From a judgment for plaintiff, and from an order denying its motion for a new trial, defendant appeals.

Action by Jonas Saltzman against the Brooklyn City Bailroad Company for personal injuries. From a judgment entered on a verdict for plaintiff, and an order denying a new trial, defendant appeals.

Proceedings for the probate of two papers purporting to be the wills of Myra Clark Gaines, deceased,—one dated January 5, 1885, and the other dated January 8, 1885. A decree was entered June 25, 1891, admitting to probate the instrument dated January 5, 1885, as the last will of decedent, and refusing to admit the other paper to probate.

Application to remit forfeiture of bail bond given by William Nooney, who was convicted of assault in the second degree. 19 N. Y. Supp. 134. The remission was denied, and Thomas F. Farrell, surety on the bail bond, appeals.

Agreed case, submitted without action by James J. Treanor, John Besson, and John G. Peene, commissioners in the matter of the extension of Warburton avenue, against Charles F. Eichhorn, to test the validity of certain bonds issued by the town of Greenburgh. Judgment for plaintiffs.

<p>Appeal from circuit court, Lewis county.</p> <p>Action by Aaron Humes against Thomas E. Proctor and George Mead for cutting timber on plaintiff’s land. From a judgment for plaintiff, and from an order denying defendants’ motion for new trial made on the minutes, and from an order trebling the awarded on the trial, defendants appeal.</p>

<p>Evidence—Documents—German Parish Records.</p> <p>Certified copies of the church records of the marriage of assured’s parents, and of his own baptism, the latter- reciting the date of his birth, said records having been kept, not under express legal enactment, but regularly, from time immemorial, by the parish pastor, and now under direction of the supervisors of schools and churches of the German principality, are admissible as bearing on the .age of assured under Code Civil Proc. § 962, preserving proof admissible at common law; and are not within section 956, relating to records of “a public office of a foreign country.”</p>

Action by John Mew and Frank Mew, composing the firm of Mew & Sons, against Howard Carroll, as owner, and W. J. Koch, as contractor, to foreclose a mechanic’s lien. There was judgment in favor of the plaintiffs, and defendant Carroll appeals.

Action by Mary Hennessy against the Brooklyn City Railroad Company for personal injuries sustained in a collision with defendant’s cars at a street crossing. From a judgment entered on a verdict in favor of plaintiff for $193.32, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from special term, Kings county.</p> <p>Action by John Cunningham against Margaret F. Woods to restrain said Woods from disposing of certain -books of deposit, and to have plaintiff declared the owner thereof. William B. Davenport, public administrator, as administrator of the goods, chattels, and credits of Patrick Cunningham, deceased, claiming one of these books of deposit by virtue of a gift from plaintiff to said deceased, was, on motion, admitted as a party defendant There was judgment for plaintiff, against defendant Woods, and for defendant Davfor the book claimed him. From that of the judgment in favor of defendant Davenport, plaintiff appeals.</p>

Action by Kate Scaggs, as administratrix of the estate of Eleanor Downing, deceased, against the president, managers, and company of the Delaware & Hudson Canal Company, for the death of plaintiff’s intestate, caused by defendant’s negligence. There was a judgment of nonsuit, and plaintiff appeals.

Replevin by James Creegan against James Robertson for chattels taken by defendant on execution and purchased by him at the execution sale. Plaintiff claimed the property under a writing dated April 4, 1893. From a judgment on a verdict directed for plaintiff, defendant appeals.

Action by Annie I. Dawson, as trustee of Barrett S. Dawson, and another, against John D. Parsons and others. From an order directing plaintiff and defendant Parsons to unite with the receiver in a conveyance of certain property in which Parsons had an interest on completion of the purchase thereof by the purchaser, and from an order directing defendant Parsons to execute the proposed conveyance, Parsons appeals.

<p>Appeal from circuit court, Montgomery county.</p> <p>Prohibition on the relation of Frederick Hess against A. B. Flans-burg, a justice of the peace, „and Horace Inman. From an order granting the writ, said Fransburg and Inman appeal.</p>

<p>Appeal—Modification of Decision.</p> <p>A memorandum of decision by the general term, reversing a conviction, stated that the judgment and order were reversed, but by inadvertence-failed either to direct a new trial or to discharge defendant, as required, by Code Crim. Proc. § 545. Held, that the court had the power to correct the order of reversal, and such case is not affected by Code Grim. Proc. § 549, which provides that, after certificate of judgment has been remitted, “the appellate court has no further jurisdiction of the appeal.</p>

Action by Fannie Goldberg and her husband against Rachel Richards for partition. A motion was made for the appointment, of a receiver of the property sought to be partitioned.

Action by Caroline Bullion against Charles A. Bullion and Ettie Bullion. From a judgment in favor of plaintiff entered in Otsego county, defendants appeal.

Action by Michael Moore against J. Duffy, as sheriff of the county of Westchester, Patrick Farrell, and Margaret Farrell, his wife, and Patrick Costello, to procure an adjudication that a deed from Patrick Farrell and Margaret, his wife, to Patrick Costello was null and void, and that the certificate of redemption given by defendant Duffy, as sheriff, to Patrick Costello, was null and void, and that said Duffy, as sheriff, execute and deliver to plaintiff, his heirs and…

Action by the Upper Nyack Methodist Episcopal Church against John A. Bennet and others to recover damages from defendants for haying cut down trees and dug up the soil on plaintiff’s premises. From a judgment for plaintiff, defendants appeal.

Action by Mary A. Morris against the New York, Ontario & Western Railway Company for personal injuries caused by jumping from one of defendant’s trains to avoid a collision. From a judgment for plaintiff, defendant appeals.

Lawrence county. Action by Mary Aldrich against Heman Aldrich for separation, on the ground of cruel and inhuman treatment. From an order awarding plaintiff $100 for expenses and counsel fees, and $5 per week for her support during the pendency of the action, defendant appeals.

Application by the people of the state of New York, on relation ■of John I. Platt and William C. Daley, for order to the board of state canvassers, and Frank Bice, secretary of state, Edward Wemple, comptroller, Charles F. Tabor, attorney general, E. F, Danforth, treasurer, and John Bogart, state engineer and surveyor, as members of said board, to show cause why they should not be punished for contempt of court. From an order denying said order, relators appeal.

Petition by James W. Walrath, as administrator of the estate of Matilda Sunderlin, for judicial settlement of his accounts. Petitioner asks that Sarah 0. Thumb, coadministrator of petitioner, may be cited to attend the settlement. Said Sarah C. Thumb presented a claim against the estate, which was disallowed, and she appeals. Modified.

<p>Appeal from special term, Westchester county.</p> <p>Action by Christopher O’Conor against Oscar Edgar Philipsen and Emma Philipsen, his wife, and Susan Clist, to foreclose a purchase-money mortgage. Judgment for Defendants appeal.</p>

Action by George R. Newell against James H. Chapman for false-representations as to the value of a certain bond and mortgage. From a judgment for plaintiff, defendant appeals.

Action by Charles H. Armitage against Joseph Fisher and others to enjoin action on the report of a committee relative to the removal of plaintiff by defendants from the office of president of the common council of the city of Albany. From an order (24 N. Y. Supp. 650) continuing a temporary injunction, defendants appeal.

_ Appeal from circuit court. Westchester county. Action by Edgar L. Ryder, as assignee for the benefit of creditors of Edward Nolan, against John Duffy, sheriff of Westchester county, to recover goods seized by defendant under an attachment in favor of John W. Matthews and others. Judgment was entered on a verdict in favor of plaintiff, and defendant appeals.

Action by Clara H. Spencer against Peter B. Myers and the Connecticut Mutual Life Insurance Company to determine conflicting claims to the proceeds of a policy of insurance on the life of Byron O. Spencer. From a judgment for plaintiff, defendant Myers appeals.

Action by George W. Beagle against Robert Harby and Joseph Harby for breach of contract. From a judgment for plaintiff, and from an order denying defendants’ motion for a new trial made on a case and exceptions, defendants appeal.

Action by Louis Bourdon against the New York & Lake Champlain Transportation Company. Francis A. Martin, as receiver of the property of Emma Walker, a judgment debtor, claimed the money sued for, and was substituted as defendant. There was-verdict for plaintiff, and from an order charging the receiver personally with costs he appeals.

Action by James C. Caywood, as guardian of Ellen M. Caywood and Maiy M. Caywood, infants, against John K. Van Ness, for the al•leged conversion of a bond and mortgage belonging to plaintiff’s wards. There was a judgment entered on a verdict in favor of tiff for $2,706.66, and defendant appeals.

Action by John Gillies against the Manhattan Beach Improvement for labor and materials furnished. From ment for plaintiff, defendant appeals.

Certiorari by Joseph H. Rudiger to review the action of Frederick Earl and others, trustees of the village of Mt. Vernon, in assessing relator’s land for the grading of Sixth street.

Certiorari by Mary K. Burton against Frederick Earl and others to review an assessment of street improvements. The facts are the same as in the Rudiger Case, 26 N. Y. Supp. 382.

Petition by the highway commissioners of the town of Islip, in Suffolk county, for an order to compel the Long Island Railroad Company to station flagmen or erect gates at a crossing in the village of Sayville. The petition was granted, and the railroad company appeals.

Application by the highway commissioners of the town of Islip, in Suffolk county, for an order to compel the Long Island Railroad Company to station flagmen or erect gates or signal electric bells at certain railroad crossings in the village of Bay Shore in said town. The application was granted as to one of the crossings, and the railroad company appeals.

<p>Appeal from circuit court, Jefferson county.</p> <p>Action by Lewis W. Hudson, as administrator of Harry L. Hudson, deceased, against the Rome, Watertown & Ogdensburg Railroad Ciompany. From a verdict in favor of plaintiff for $3,000, and from a motion denying a new trial, made on the minutes, defendant appeals.</p> <p>Harry L. Hudson was a fireman in the employ of the defendant on the 8th day of October, 1890, and was killed by the collapse of the crown Sheet of a boiler of a locomotive engine known as “No. 103,” at Mexico. One George H. Grower was the engineer, and they were ordered on the 8th of October, about 1:45 P. M., to take engine No. 103 from the roundhouse in the city of Watertown for the purpose of drawing an extra freight train to the city of Oswego, on the defendant’s road. Grower had not run the ■engine before that time. When they took possession of the engine there was fire in her, and she had on a pressure of about 140 to 150 pounds of steam. She was a large engine, with four drive wheels on each side. They took water at the water column in Watertown, and left there with the tank full. They again took water at Pierrepont Manor, and at Richland. When ■they reached Mexico, the engine stopped at the water column, and Hudson, the deceased, commenced to take water in the tank. Grower testifies: “She was then getting a third gouge of water. She had then two toll gouges, and the injector was working at the time. I left the injector going. I then got down out of the cab, and went into the depot to get orders. As soon as I went into the depot I heard this explosion, although there was not much of it to hear. I ran out of the door, and when I came out I saw a cloud of steam, and I went down to the engine. I saw Hudson. He was back about one car length from the engine. * * * He was badly burned. I picked him up, and carried him to the station. He was taken from there to the hospital in Oswego. I saw him the next morning. He was still alive; and I saw his remains at the undertaker’s rooms at Oswego. That was the next day, October 9th. * * * When I last saw Hudson before the accident he was taking water from the tank. I examined the engine ■after the explosion. I found the crown sheet reversed. Originally it was ■oval. There was not a break in the crown sheet. It was just reversed. The crown sheet dropped into the fire box, and the stay bolts pulled out. During the time I had charge of the engine on October 8, 1890, the water ■did not get so low in the boiler at any time that it did not cover the crown sheet. From the time I left the Watertown yard until the explosion I had water enough in the boiler to cover the crown sheet all the time. We reached Mexico about 6:45 P. M. When I left the engine to go to the depot •at Mexico there was a brakeman on the engine with Hudson, but I can’t remember his name. It was the duty of the fireman to take water into the tank.” The engine was left in Watertown at the roundhouse, where she was coaled, and had her fire dumped. How long she was there is not made very certain by the evidence. While she was there she was under the control of Batchelder, who is the engine dispatcher, and had charge of the roundhouse at Watertown. Batchelder says: “There was no inspection, except that of the engineer and myself when I was around there. I used to inspect them myself when I was there, and when I was absent the only inspection made was by the engineer. The engineers have orders to inspect their engines, and make reports every trip. If the engineer came in with an engine, and didn’t report anything the matter to me, and I was not around, the engine would not be inspected by any person. I would make an inspection of the engine generally. Not necessarily of her boilers. I generally looked around the engine. I have always made it a practice, when I would go around an engine, to inspect it, to see if there was anything out •of order.” There was evidence given to the effect of burning or scorching •of the steel crown sheet would cause the crown sheet to leak into the firebox around the stay bolts. There was evidence given tending to show a leakage. Shepard, the hostler at the roundhouse, testifies that he saw engine 103 on the 8th of October, and that he cleaned her fires, and had her coaled up; and he testifies: “I don’t recollect that it is a fact that I saw her leak before she went out that day.. I don’t remember as I did. My best recollection to-day is that I did not. I cannot remember whether she leaked before or after the accident. I know she did leak. Whether it was before or after I don’t just remember. I did not see her after the accident until after she came back from the shop. I can’t say how long it was, but it was after she had a new crown sheet. I say she either leaked before ■or after there was a new crown sheet put in her, and I don’t remember which. I will not swear that she did not leak before the accident. I don’t know how many days I have had her in charge. * * * I have seen her leak quite a number of times. * * * I could not say whether it was before or after the accident. Yes, I saw her leak. I looked at her ■crowri sheet. But I can’t say whether it was before or after the accident. I didn’t discover anything about her being scorched or heated. I didn’t say ■anything to Batchelder about her being scorched or heated. I said nothing except about her leaking. The leaking was in the right-hand back corner of the fire box; not under her stay bolts. It is where the crown sheet is connected onto the side sheet It was calked up quite a number of times. I think Gates did the calking at Watertown. I don’t know when. Gates is the boiler maker, and he is here in the court room. * * * The-leaking was done where the crown sheet connects onto the side sheet. It was on the edge where the crown sheet connects onto the side in the right-hand back corner,—upper comer.” There was evidence tending to show that a hot fire, generating steam of 150 pounds, would have a tendency to close-any leaks that might have been in her crown sheet; and evidence was also given tending to show that if she leaked only a little it would not be discovered unless some one looked up at the top crown sheet through the-furnace door.</p>

<p>Appeal from court of oyer and terminer, Kings county.</p> <p>Benjamin S. Van Zile was convicted of abortion, and appeals.</p>

<p>Wills—Construction—Lips Estate.</p> <p>A will, after providing for all testator’s children except M., recited that,, as testator did not know whether M. was dead or alive, and as he had’ given him more than any of the other children, “I give and bequeath to him” a small parcel of land “in trust for his heirs.” The will also-provided that “my children are not to have any control of the above bequests until after the decease of my wife,” to whom a life estate in the whole was given. Testator knew that M. was married, but did not know whether he was living, or whether he had any children. Held, that M. took a life estate in the land devised to him, and he or his grantee was entitled to possession at the death of testator’s widow.</p>

Action by J. Vandewater, as administratrix of W. P. Vandewater, deceased, against the New York & New England Railroad' Company, to recover damages for alleged negligence causing the death of plaintiff’s intestate. From a judgment in favor of plaintiff for $5,000, defendant appeals.

Action by Charles S. Clark against the Exchange Printing Company, Francis E. Fitch, and Alva E. Davis for damages on account of a conspiracy to defraud plaintiff. From a judgment for plaintiff entered on the verdict of a jury, all the defendants appeal; and, from an order a new defendant

<p>Larceny—What is Subject op.</p> <p>On a trial for larceny, it appeared that defendant had agreed to buy a parcel of land from C., free from incumbrances. One B. claimed to hold a lease of a portion of the land, and refused to release it to C. Defendant then made a paroi agreement with B. for a release, and gave her a note for the agreed price of the release. EeU, that the note, being only a provision for defendant to take a title which B. was not bound to give, nor defendant to take, was not the subject of larceny. Pratt, J., dissenting.</p>

<p>Attorney and Client—Fees.</p> <p>A claim for $160 was given an attorney for collection, and $40 was paid without action, of which the attorney received $10. Judgment was obtained for the balance without defense being made, and collected by supplementary proceedings. The attorney claimed that he was to have half; the client claimed that the $10 covered all the services. Held, .that an order allowing the attorney $25 more, and compelling him to turn over the balance to the client, would be affirmed.</p>

<p>1. Master and Servant—Rules to Protect Servants.</p> <p>While plaintiff’s intestate was working in a repair shop of defendant railroad company, other employes of defendant shunted a car from the main track to the side track which ran into the repair shop, intending that such car should be stopped before it reached the repair shop, instead of which it ran against the closed door of the shop, broke through and killed plaintiff’s intestate. Held, that defendant was not negligent in not making a rule to govern the conduct of employes in shifting cars, there being no evidence that other companies had rules on the subject, or that rules were necessary or practicable in such case.</p> <p>3. Same—Defective Appliances.</p> <p>An employer is not chargeable with negligence for injuries to an employe resulting from defective appliances, unless he knew of the defect, or omitted to exercise proper care to discover it.</p>

Action by William C. Randall against Frank Randall for dissolution of partnership and settlement of the partnership accounts. From a judgment dissolving the partnership, and in favor of plaintiff for $149, without costs, plaintiff appeals.. In case defendant consents to an increase of $28.44 in the amount of the judgment, to correct error in calculation, judgment will be affirmed as corrected; otherwise, it will be reversed.

Action by James H. Swart against Charles Rickard for false imprisonment and malicious prosecution. To a ruling of the trial judge withdrawing from the jury the issues as to false imprisonment, plaintiff excepted. Judgment for defendant, and new trial denied. Plaintiff appeals.

Action by Jennie Hochstrasser against George B. Martin and Alvin G. Eaton to enjoin the maintenance by defendants of a stable on a lot adjoining that of plaintiffs, and for damages. There was evidence that a henhouse and privy on plaintiff’s lot were very .offensive, and one witness testified that they were more offensive than the stable. There was a judgment in favor of defendants, and plaintiff appeals.

Action by William Sylvester against Thomas B. Wheeler for the contract price of a water tank, constructed for defendant by E. G. Sylvester, plaintiff’s assignor. From a judgment of nonsuit, plaintiff appeals.

<p>, Mortgage—Conveyance oe Premises—Liability oe Grantee.</p> <p>Where a deed recites that the land conveyed is subject to mortgages which the grantee assumes and agrees to pay as a part of the purchase price, the grantee is not personally liable to the holder of the mortgages unless it appears that the grantor was liable for the mortgage debt</p>

Allen Barber was indicted and convicted of assault in the second degree, and appeals.

<p>Appeal from judgment on report of referee.</p> <p>Ejectment by Bobert Shaw against Christina Kellogg. From a judgment for plaintiff, defendant appeals.</p>

Action by William Ziehen against David J. Smith and John H. Smith for breach of contract. The complaint was dismissed on the trial as to John H. Smith. From a judgment entered on a verdict for plaintiff, and from an order denying a new trial, (24 N. Y. Supp. 922,) defendant David J. Smith appeals.

Action by Herman Crassley against Patrick J. McArdle to recover money alleged to be due on a contract. From a judgment entered on a verdict in favor of plaintiff for $172.48 damages and costs, and from an order denying a motion for a new trial, defendant appeals.

Action by Jerome J. Woodruff against the Syracuse, Binghamton & New York Railroad Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for new trial made on a case and defendant

Application by John P. Adams, as commissioner of public works, of the city of Brooklyn, to acquire land for street purposes in Fifty-First street, between Third and Fourth avenues. From an order denying a motion to confirm the report of the commissioners appointed to appraise the land, awarding nominal damages, petitioner appeals.

Action by Adelaide Knight against Alonzo Church on a judgment rendered in favor of the National Union Bank of Watertown against defendant and another, and assigned by said bank to plaintiff. There was a judgment in favor of plaintiff for $622.42, and defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by Susan Greene against Jay J. Miller for an assault. The ■complaint was dismissed, and plaintiff appeals.</p>

Action by Arthur Hopson Sawyer, by his guardian ad litem, against William Cubby and others, for the construction of the will of Jennie Sawyer, deceased. From a judgment dismissing plaintiff’s complaint, plaintiff appeals.

Proceedings by the city of Syracuse against the Glenside Woolen Mills, impleaded with others, to condemn certain water rights and water privileges for the purpose of supplying plaintiff with water. From an order denying a motion to compel defendant to permit plaintiff’s experts to examine the mill in question, or its contents,, for the purpose of giving evidence of the value of the same before commissioners appointed to assess damages, plaintiff appeals.

Action by Emmett Howd against Sarah E. Cole and others. From an interlocutory judgment overruling a demurrer to the answer of defendants Cole, plaintiff appeals.

<p>L Life Insurance—Application—Warranties.</p> <p>An applicant’s answers to the questions how long since she required the services of a physician, the latter’s name and address, and whether she has had in the past five years, or is subject to, any bladder or kidney trouble, are warranties material to the risk.</p> <p>8. Same—Proof of Breach.</p> <p>When assured’s attending physician, a reputable practitioner, testifies that he attended assured for a disease warranted against in her application as material to the risk, the mere facts that assured’s husband, who was much away from home at the time, did not know of such attendance, and that a surgeon attending assured in child-birth thereafter did not discover the disease, which he admits is one only to be discovered by special examination, do not justify the court in submitting the case to the jury.</p> <p>8. Same—Physician’s Certificate to Proof of Death.</p> <p>The beneficiary is not concluded by the doctor’s certificate annexed to the proof of death, and may prove his protest thereto.</p>

<p>Appeal from Kings county court.</p> <p>Action by Herman Vogel against Edward H. Schlueter and Henry R. Hanlan. From an order setting aside the taxation of costs, plaintiff appeals.</p>

Action by T. Ella Carpenter against Edgar Knapp for slander. A judgment in favor of plaintiff was affirmed on appeal to the general term, (21 N. Y. Supp. 297,) and defendant now moves for leave to-file an amended and supplemental answer setting up justification of the slanderous words alleged in the complaint. The application was denied, and defendant appeals.

Action by Ellen Pickert, substituted as plaintiff in the place of Solon S. Pickert, deceased, whose administratrix she was, against Frederick Windecker and others, for partition.

<p>1. Res Judicata—Judgment in Summary Proceedings.</p> <p>A judgment in summary proceedings for the removal of a tenant is-conclusive of the existence and validity of the lease in a subsequent action between the same parties.</p> <p>8. Same—Pleading—Waiver.</p> <p>In an action to set aside the lease from defendant to plaintiff on the ground that it was only intended to secure a usurious debt, defendant moved to dismiss the complaint The parties stipulated that, for the purpose of the motion, it was conceded that summary proceedings had been brought to dispossess plaintiff (the tenant) for nonpayment of rent, and that judgment was rendered dispossessing him. Held, that the stipulation was a waiver of defendant’s failure to plead the adjudication in the-summary proceedings.</p>

<p>Deposition—Open Commission.</p> <p>It is error to grant an order for an open commission to take testimony in a distant state where the order authorizes the examination of any witness that may be produced by either party, but does not name or describe the witnesses, or limit them to persons residing in such state.</p>

<p>Limitations—Action against Devisee for Testator's Debts.</p> <p>An action to charge devisees with the debts of testator (Code Civil Proa I 1843) is governed, as to limitation, by section 388, which provides that an action, the limitation of which is specially prescribed, must be commenced within 10 years after the cause of action has accrued. Mortimer v. Chambers, (Sup.) 17 N. Y. Supp. 874, followed.</p>

Action by John M. Canda and John P. Kane against Ervin G. Gollner and Ada F. M. Gollner. Plaintiffs recovered a judgment against defendants for $329.38. Afterwards, an order was made for the examination of defendants in supplementary proceedings, containing the usual clause forbidding all transfers or other dispositions of the property of defendants except exempt property.

Certiorari on relation of Lucy D. Kittredge and others to John Mabie and others, assessors of the village of Peekskill, to strike out of the assessment roll certain assessments. From an order in favor of relators, (23 N. Y. Supp. 801,) respondents appeal. The village of Peekskill, Westchester county, was incorporated by a special act in 1816, amended several times, and finally consolidated in Laws 1883, c. 117, which fixed the village boundaries.

Action by Charles M. Titus against Charles F. Poolé and others,, as executors of the will of Edward V. Poole, deceased, for breach of warranty on the sale of certain bank stock by testator to plaintiff. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on a case: and exceptions, defendants appeal.

_ Action by Patrick Haddock against Patrick Naughton for slander, viz. accusing plaintiff of incestuous commerce with his daughter Mary. ■ Verdict and judgment for plaintiff, $1,000 and costs. Defendant appeals.

Action by Jacob Cohn against Frank E. Baldwin, Charles A. Baldwin, and Alvi P. Baldwin to recover money alleged to have been lost in wagers on stocks and other securities. From an order denying a motion for a bill of particulars, defendant Frank E. Baldwin appeals.

Action by Antoine Campbell against John Hurd to recover a balance alleged to be due for work, labor, and services in cutting, drawing, and piling logs, bark, and timber under a contract. There was a judgment in favor of plaintiff for $2,718.67, damages and costs, and defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by Hiram '0. Roblee against William Barss. There was a judgment in favor of plaintiff, and defendant appeals.</p>

<p>1. Corporations—Taxation op Capital Stock.</p> <p>Portions of the capital stock of a New York surety company are neither kept nor employed in New York, so as to be subject to taxation therein, where they are invested respectively in real estate in Illinois, to enable the company to carry on business there, in United States bonds transferred in trust to a corporation in Pennsylvania, to protect the company’s bond and policy holders there, and in United States bonds, deposited with the minister of finance in Canada, for a similar purpose. Mayham, P. J., dissenting.</p> <p>2. Same.</p> <p>The bonds and real estate are not rendered liable to taxation in New York by the fact that they are subject to the claims of all creditors of the corporation, or that their income is received and used at the office in New York. Mayham, P. J., dissenting.</p>

. Application by Louisa Harlow for an order to open a decree of the surrogate’s court admitting to probate the will of John Lyons, deceased. From parts of an order vacating and the decree, contestant appeals. Louisa Harlow, an heir at law of the deceased, presented a petition to the surrogate’s court, February, 1892, asking to have the decree admitting the will of the deceased to probate, entered in July, 1885, opened.

Action by Luigi de Matteis against Carlo la Maida for malicious prosecution. From á judgment entered on a verdict in favor of plaintiff for $1,475.28, defendant appeals.

Action by Horace G-. Prindle against the Washington Life Insurance Company, impleaded with others. Judgment was rendered in favor of defendants named, and plaintiff appeals. Action to recover for professional services alleged to have been rendered for the 14 defendants mentioned in the pleadings. The summons and complaint were served upon the respondent, and the answer of the defendant who is the respondent here was the only answer served.

<p>Appeal from circuit court, Broome county.</p> <p>Action by Alonzo Roberson against James Murray and another. From an order granting a reference to hear and determine, defendants appeal.</p>

Action by Edward M. Knox against the Eden Musee American Company, Limited. There was a judgment in favor of plaintiff, and defendant appeals. This is an action against the defendant corporation to recover damages for the defendant’s refusal to transfer to the plaintiff 15 shares of its capital stock. In May, 1891, one Reynolds, an employe of the defendant, applied to the plaintiff for a loan of $8,500, upon the discount of his note, indorsed by one Jurgens.

. Action by the Albany County Bank against Jonathan T. Rider on two promissory notes for $500 each, made by defendant to the order of plaintiff, each of which was dated October 6, 1892, and which became due and payable December 15, 1892, and January 15, 1893, respectively. From an order striking out the answer as sham, defendant appeals.

Action by Edward A. Anderson against Anna Anderson to annul •a marriage on the ground that it was induced by threats made •against plaintiff’s life. There was a judgment in favor of plaintiff, and defendant appeals. The marriage was contracted on October 18, 1883, and the action to annul it was commenced in December, 1891.

<p>Appeal from special term, Albany county.</p> <p>Action by the Albany County Bank against Jonathan T. Rider on a promissory note for $500, made by defendant to the order of plaintiff, dated October 6, 1892, and which became due and payable February 15, 1893. From an order striking out the answer as sham, defendant appeals.</p>

Proceeding for the probate of the will of Schuyler Skaats, deceased. From a decree admitting the will to probate, testator’s widow, Catherine H. Skaats, and the three daughters of a deceased brother of testator, appeal. Schuyler Skaats, the testator, was bom at Geneva, N. Y., in 1818, married dn 1866, and died in 1890, without issue, at the age of 73.

<p>Appeal from special term, New York county.</p> <p>Action by Edward S. Farrow against the Holland Trust Company and others. From an interlocutory judgment in favor of plaintiff,, defendants appeal.</p>

Action by William A. Ghrigstrom, as sole trustee of school district ¡No. 11, towns of Altona and Ellenburgh, against George Mc-Gregor, to recover an unpaid school tax. From a judgment of the county court affirming a judgment of the justice court in favor of plaintiff, defendant appeals.

Application by the Edison General Electric Company for certiorari to review the action of the commissioners of tax and assessment of the city of Hew York in assessing relator’s property for taxation. From an order dismissing the writ of certiorari, relator appeals.

Action by Lewis J. Phillips against the Equitable Life Assurance Society of the United States, alleging that defendant’s directors had been dealing with the corporate property for their own benefit, and demanding an account, but the directors were not made defendants.

Action by Peter Hart against Isaac L. Kip to recover for services alleged to have been performed by plaintiff. There was a judgment in favor of plaintiff, and defendant appeals.

Action by the Mutual Life Insurance Company of Hew York against the Forty-Second St. & Grand St. Ferry Bailroad Company to recover damages for refusing to receive a certificate of stock purporting to have been issued by it, and to transfer the stock to plaintiff on the books of defendant. There was judgment in favor of defendant, and plaintiff appeals.

Action by Myer Heilman and another against the Forty-Second Street & Grand Street Ferry Railroad Company. A verdict was rendered in favor of plaintiffs, and defendant moves for new trial on exceptions ordered to be heard in the first instance at general term.

<p>Appeal from special term, Washington county.</p> <p>Action by H. Cooley Green against Daniel C. Easton. From a judgment in plaintiff’s favor, defendant appeals.</p>

Action by Robert E. Gregg against John P. Murphy, sheriff of Lewis county. was entered on a verdict directed the court in favor of defendant, and plaintiff appeals.

Action by Francis W. Lestrade and James W. Lestrade against Gonzalvo De Cordova and others. The complaint was dismissed on the merits, and plaintiffs appeal.

Action by the Albany County Bank, as assignee of Stephen D. Van Natta, against the Burton & Cory Cider & Vinegar Company, to recover for money loaned to defendant by. plaintiff’s assignor. There was a judgment in favor of plaintiff, and defendant appeals.

<p>1. Eminent Domain—Power op City to Take State Property.</p> <p>A provision in a city charter that the city may appropriate for street purposes any real estate not belonging to the city, does not authorize the city to condemn land owned by the state, as a statute is not binding on the state unless it is expressly named, or included in- it by necessary implication.</p> <p>8, Same—Appealable Orders.</p> <p>An order appointing commissioners in- condemnation proceedings is appealable.</p>

<p>Appeal from Chemung county court.</p> <p>Forcible entry and detainer by Seymour Lowman, as guardian of Frank L. Clearwater, against Frances M. Sprague and Charles Sprague. The action was originally brought in justice’s court, where the proceeding was dismissed, and plaintiff appealed to the county court. From a judgment of the county court reversing the justice’s judgment, defendants appeal.</p> <p>Plaintiff’s petition alleges possession of the premises described therein, and that “while your petitioner was so in such lawful, actual, peaceable occupation, and on or about the 28th day of July, 1892, as petitioner is informed and believes,, certain persons—among others, Charles Sprague and Frances Sprague—did' unlawfully, and against the will of your petitioner, make an unlawful and forcible entry into and upon said premises, and did then and there, unlawfully and forcibly, eject and expel your petitioner’s employe from said premises, and has in like manner on said 28th day of July last, and on divers days and times since said 28th day of July last did hold the possession of said premises by force, * * * and have ever since held and still unlawfully and forcibly hold, in like manner, your petitioner and his employes out of possession of said premises, contrary to the form of the statute.” The answer contains a denial of all the allegations of the petition. When the parties were before the justice on the return of the precept, a waiver was made, in the following language: “Plaintiff waives that part of petition relating to forcible possession of the premises in question, and concedes that defendant got possession without force.” The justice denied the prayer of the petition, and in doing so stated the following grounds: “(1) The petitioner concedes that the defendant did on the 28th day of July, 1892, ■enter on and take peaceable possession of said premises. (2) Petitioner swears that since the 28th day of July the defendants have and do now hold possession of said premises. (3) By the evidence of the petitioner, the defendants claim a right to the possession of said premises. What that right may be, this court has no jurisdiction to determine. Therefore, the court has to concede that the defendants’ right to possession of ■said premises is sufficient to hold the same until the proper courts decide who is the actual owner of said' premises. I therefore dismiss this action, and render judgment against the plaintiff, in favor of defendants, with costs.”</p>

<p>1. Witness—Transaction with Decedent—Party in Interest.</p> <p>In an action to subject to decedent’s debts land which had been mortgaged by the devisee, the mortgagor and the personal representatives of the mortgagee were made defendants. Held, that the mortgagor was not, by Code Civil Proc. § 829, forbidding a party in interest to testify in his own behalf as to personal transactions with a decedent, disqualified from testifying in behalf of plaintiff as to whether he told the mortgagee about the debts of the estate before the mortgage was taken.</p> <p>Mortgages—Bona Fide Incumbrancers.</p> <p>Before the expiration of the three years within which creditors -may proceed to charge the real estate of decedent with payment of debts, no presumption arises that the debts have been paid, and therefore one who takes a mortgage from a devisee of decedent is not a bona fide incumbrancer.</p>

Action by William A. Baldwin against Jane E. Baldwin and others for partition. From an interlocutory judgment directing the sale of the property, defendants appeal.

Action by The Holly Manufacturing Company against Clarence H. Venner, impleaded with others. From an order adjudging defendant to be guilty of contempt for failing to produce some books, pursuant to a subpoena duces tecum, defendant Venner appeals.

Action by Hymen Morange against the New York Elevated Railroad Company and another to recover damages and for injunction. There was judgment in favor of plaintiff, and defendants appeal.

<p>De Jure Officer—Right to Salary.</p> <p>Where the salary of a municipal office was paid during the entire term to a person who performed the duties thereof, a person claiming to have been legally elected to such office during such term cannot afterwards recover the salary from the city where he took no steps during the term to establish his title.</p>

Action by the Seaboard National Bank against Henry Gr. Burleigh and another. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.

Action by Edmund W. Converse and others against Daniel E. Sickles, as sheriff of the city and county of New York. The complaint was dismissed, and plaintiffs appeal.

Action by Orrando P. Dexter against Warren Joseph Alfred for trespass on land. Judgment was entered on a verdict in favor of plaintiff for six cents, and costs were awarded to defendant, and plaintiff appeals.

<p>Appeal from circuit court, Franklin county.</p> <p>Action by John M. Haskell against the Northern Adirondack Bailroad Company for destruction of plaintiff’s trees by fire alleged to have been set by one of defendant’s locomotives. • There was a judgment in favor of plaintiff, and defendant appeals.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by James H. Ferguson and another, as surviving partners-of Henry Lovejoy, composing the firm of Lovejoy, Son & Co., against George H. Gill, to recover a debt of the Lithographoid Engraving & Printing Company, on the ground that defendant, being trustee of the company, joined in the making and filing of a false certificate that the capital stock had been paid in. From an order setting aside a verdict in favor of defendant, and granting a new trial, defendant appeals.</p>

Action by Michael O’Neil against the Hudson Valley Ice Company. From a judgment of the county court, entered on a verdict directed in favor of plaintiff, and an appeal from a judgment of the city court of Albany in favor of plaintiff, defendant appeals.

Action by the Equitable Life Assurance Society of the United States against Thomas Brennan. From a judgment restraining defendant from erecting stables on Ms lands, uMess, witMn 60 days after the entry of the judgment, he pays to defendant $10,000, with interest from date of the entry of the judgment, (24 N. T. Supp. 784,) defendant appeals.

Action by Anthony Yeoman and others against John Townshend and others to declare a trust in certain land. The complaint was dismissed, and plaintiffs appeal.

Application by Daniel E. Sutliff for certiorari to review the action of the board of supervisors of Pulton county in auditing two claims .against the county.

Action by Sidney E. Maders, as receiver in supplementary proceedings of the property of William I. Whallon, against William I. Whallon and William J. McAuliff, impleaded with Eliza Whallon, wife of said William I. Whallon, to set aside a deed given by defendant William I. Whallon to defendant McAuliff on the ground of fraud. There was a judgment in favor of plaintiff, and defendants appeal.

<p>Appeal from judgment on report of referee.</p> <p>Action by James J. Farren, as surviving partner, against Lucy McDonnell. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Contracts—For whose Benefit Promise Inures.</p> <p>Cue H., being indebted to defendant, entered into a contract with Mm, reciting that he had transferred to defendant his stock of goods; that he was indebted to plaintiff in a certain sum; and that, in consideration of the premises, defendant agreed to guaranty payment of plaintiff's claim. Plaintiff took no part in the making or carrying out of' the contract. EeU, that the contract created no liability of defendant to plaintiff. Herrick, J., dissenting. Lawrence v. Fox, 20 N. X. 268, distinguished.</p>

<p>1. Cabbiebs—Ejection of Passenger.</p> <p>In an action for the forcible ejection of plaintiff from defendant’s car, a rule of defendant requiring conductors not to allow intoxicated persons to ride in the cars is not admissible, where it was not claimed on the trial that plaintiff was intoxicated, but. it appears that he was afflicted with St. Vitus’ dance, which produced involuntary motions, somewhat resembling those of an intoxicated person. ,</p> <p>2. Same—Evidence.</p> <p>In an action for forcible ejection from a car, it is not competent for a conductor to testify that he did not use more force than was necessary, as that is a question for the jury.</p>

Action by George Patterson against Joseph Hare for dissolution of a partnership and for an accounting. From an order opening an interlocutory judgment, and granting leave to plaintiff to serve a ' supplemental complaint, defendant appeals.

Action by Benjamin H. Howell, Thomas A. Howell, Frederick H. Howell, Henry B. Howell, and James H. Post, against James P. Bennett to recover damages for false representations. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial made on the minutes of the court, ■defendant appeals.

<p>Appeal from circuit court, Hew York county.</p> <p>Action by the United States Vinegar Company against Francis Foehrenbach and Michael Foehrenbach. From a judgment entered on a verdict in favor of plaintiff for $2,350, defendants appeal.</p>

Action by Samuel Galle and Samuel Karlon against Adolph Tode and others. From a judgment in favor of plaintiffs, defendants appeal. This action was brought by judgment creditors to set aside what is claimed to have been a fraudulent disposition of property, made by the defendant debtors, Tode and Wulling, by means of judgments confessed in favor of various parties, under which the property was sold by the sheriffs of New York and Orange counties.

Action by Joseph P. Carson against the New York Terminal Express Company for the appointment of a receiver. From an order modifying an order appointing a receiver, so as to allow D. D. Mangam & Co. to perfect their judgment in default of action against said company, defendant company appeals.

Action by David R Morison against the New York Elevated Railroad Company and another for injunction against the maintenance and operation of defendants’ railroad company in front of plaintiff’s premises, No. 318 Greenwich street, New York, and incidentally to recover such damages as have been or may be occasioned by such railroad.

<p>Deed—Land Abutting on Street.</p> <p>A deed describing a lot as beginning at the corner of an adjoining lot, “being a point distant fifty feet from the corner formed by the intersection of the southerly side of D. street with the westerly side of G. street, running thence northerly along G. street aforesaid,” etc., does not convey title to the center of the street.</p>

<p>1. Municipal Corporations—Duty as to Streets.</p> <p>Where a village charter gives the trustees “power to regulate * * * highways, bridges, sidewalks, drains and sewers of said village and to prevent the incumbering of the same in any manner, and to protect the same from encroachment and injury,” the village is charged with the duty of keeping its sidewalks and approaches thereto in a reasonable condition for the use of the public.</p> <p>3. Same—Pleading.</p> <p>The complaint in an action against a village is sufficient, where it alleges that, while plaintiff was driving along a street, his vehicle, without his fault, ran on a large stone in the street, and plaintiff was thrown to the ground and injured; that the stone was an illegal obstruction, and was liable to injure persons passing along the street; and that the commissioners and trustees knew that the stone was there; and that plaintiff’s injuries were caused by their negligence. Sherman v. Village of Oneonta, (Sup.) 21 N. Y. Supp. 137, followed.</p> <p>8. Same—Contributory Negligence.</p> <p>In such case the question of contributory negligence was properly submitted to the jury, where it appeared that the stone had been placed to prevent persons from driving against trees along the side of the street, but that it was not in the beaten track; that at the time of the accident the stone was covered with snow, so that it could not readily be seen, and the evidence was conflicting as to the speed at which plaintiff was driving.</p> <p>4. Same—Obstruction—Question fob Jury.</p> <p>Whether a stone placed in the street of a village to protect trees from injury from vehicles is an obstruction in the street is a question for the jury.</p>

<p>1. Insurance—Action on Policy—Evidence.</p> <p>Evidence that defendant’s agent knew, at the time the policy sued on was issued, that" the insured premises were used for other purposes besides that stated in the application, is admissible.</p> <p>2. Same—Warranty as to Occupancy.</p> <p>Recitals in the application and policy that the insured premises were used as a lodge are not a warranty that the occupancy for that particular purpose will be continuous.</p>

<p>Appeal from special term, Clinton county.</p> <p>Action by James Averill, Jr., as assignee of S. Alonzo Kellogg, against Louis W. Emerson, for an accounting. From an order of reference, defendant appeals.</p>

Action by James B. Smith against Phebe Q-. Molleson, as surety on the bond of Pratt & Molleson to plaintiff. From a judgment in favor of plaintiff for $2,587, entered on the verdict directed by the court, defendant appeals.

Action by Henry W. T. Steinway against William Steinway and' Steinway & Sons, a corporation, for an accounting as to certain-transactions relating to the establishment and operation of a piano-factory in Hamburg, Germany, and to compel payment by defendant Steinway of certain profits due Steinway & Sons. Plaintiff sues as a stockholder, after a request that Steinway & Sons should! bring the action was refused.

Action by Thomas J. Conlan against the New York Central & Hudson River Railroad Company for personal injuries. From a judgment entered on a verdict for $623.44 damages and costs in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the judge, plaintiff appeals.

<p>L Damages—Measure for Breach of Contract.</p> <p>In an action for refusal to receive goods to be manufactured by plaintiff for defendant, it is not error to charge that “in such an action the usual measure of damages is the difference between the contract price and the cost of production,” where it had already been charged that it was a question of fact for the jury whether the goods had a market value, and stated the rule of damages in case such market value should be found.</p> <p>2* p A ATT?._ÍÍEB A.TB</p> <p>Defendant agreed to buy at a certain price all the soda ash used in their business for one year from plaintiff, a manufacturer. The contract provided that the barrels in which the goods were to be shipped were returnable to plaintiff at 80 cents each. There was evidence that the actual cost to plaintiff of the barrels was 76 cents each. Ueld, in an action for breach of such contract, that the amount of rebate to which defendant was entitled on account of the barrels was the difference between the amount specified in the contract of sale and the actual cost of the barrels.</p> <p>8. Appeal—Offer to Meet Objections—Failure to Accept.</p> <p>In an action for refusal to accept goods defendant moved to strike out plaintiff’s evidence of value on the ground it did not fix the price as of the day of the breach. Plaintiff then offered to show the price on that day, and to prove that it remained so during the whole time. Defendant remained silent, standing on his strict legal right to have his motion to strike out granted or denied. Eeld, that the denial of such motion was not assignable as error.</p>

Action by Ellen Safford against the village of Green Island to-recover damages for personal injuries caused by slipping and falling on icy sidewalk. From a judgment dismissing the complaint,, and $86 costs, plaintiff appeals.

Action by John F. Montignani, as administrator with the will annexed of Barnabas Staats, deceased, against Mary Y. Staats Blade and others, to maintain a construction of the will. From a judgment entered on a decision of the court, defendants appeal.

<p>Appeal from court of sessions, Ulster county.</p> <p>Alexander B. Terwilliger was convicted of rape on the person of Edna Clearwater, and appeals.</p>

Judicial settlement of the accounts of Thomas J. Mullon and Jacob H. Mullon, as administrators with the will annexed of John Mullon, deceased. From a decree settling their accounts the administrators appeal.

Action by Alice J. A. Tiers, against the mayor, aldermen, and commonalty of the city of New York to recover damager for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $2,000, and from an order denying a motion for a new trial made on the minutes of the court, defendant appeals.

Action by S. Walter Scott against the Sun Printing and Publishing Association. From an order setting aside a verdict as excessive, and granting a new trial, unless, within 30 days after the service of the order, plaintiff stipulated to reduce the verdict to the sum of $4,000, plaintiff appeals.

Action by Washington Belt and others against the American Central Insurance Company. From a judgment in favor of defendant, plaintiffs appeal. The defendant is a corporation organized under the laws of the state of Missouri, and in July and August, 1892, Ackerman, Deyo & Hilliard were its general agents in the city of New York, with power to bind it by contracts of insurance.

<p>Criminal Law—Concurrent Jurisdiction of State and Federal Courts.</p> <p>A pilot who by willful negligence runs his tug into a yacht on the Hudson river, within the boundaries of New York county and causes the death of a person on the yacht, is guilty of manslaughter, both undei Pen. Code, § 193, and Rev. St. U. S. § 5344 and the jurisdiction of the state courts of such offense as an infraction of the state laws is not ousted by Rev. St. U. S. § 711, which vests in the courts of the United States exclusive jurisdiction of all crimes cognizable under the authority of the United States; it being provided by section 5328 (part of the title containing section 5344) that “nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several states under the law thereof.”</p>

Action by Daniel W. McClain against Benjamin Schofield and others. The complaint was dismissed on the trial, and' plaintiff moves for a new trial, on exceptions ordered to be heard at general term in the first instance. Judgment for defendants.

<p>Contracts—Validity—Perpetuities.</p> <p>A contract for the deposit of shares of stock with a trust company, which provides that the shares shall not be withdrawn for a period of six months from date without the written consent of each party, is void under the statute against perpetuities, which forbids the suspension of the absolute ownership of personal property for a longer period than two lives in being.</p>

<p>1. Corporations—'Transfer of Property to Officers.</p> <p>The directors of a corporation loaned it money, taking the transfer of certain accounts as security, under an agreement that until default the company might, from time to time, substitute other accounts in the place of those so transferred. The directors collected the accounts, and paid the proceeds to the company. After the debt had become due, other accounts were transferred in place of those which had been collected. Held, that the last transfer, not being within the terms of the contract, was void, under Laws 1892, c. 688, § 48, which forbids a corporation, after refusal to pay any of its obligations, to transfer any of its property to any of its officers or directors on any other consideration than full value paid in cash.</p> <p>8. Same—Transfer to Former Directors.</p> <p>A transfer of property by a corporation to secure a debt to the transferee, incurred while he was a director, he having ceased to be such at the time of the transfer, is not a violation of such statute.</p> <p>8. Same—Proof of Insolvency.</p> <p>In an action by a receiver to set aside a transfer of corporate property on the ground that it was made when the corporation was insolvent, proof that the corporation, at the time of the transfer, had failed to pay one or more of its obligations at maturity, is not sufficient to show insolvency.</p>

Action by Van Allen and others against Rogers and others. Defendant Rogers moves to strike out part of the answer of defendant Howard.

Action by John McKelvey against the Twenty-Third Street Railway Company. The complaint was dismissed at the trial, and plaintiff moves for a new trial on the minutes.

Action by Arteen Petrakion against Najeeh J. Arbeely for an accounting as to the affairs of the partnership alleged to have existed between the parties. Plaintiff asked for interlocutory judgment directing the taking and charging of an account between the parties, and injunction restraining defendant from disposing of, or interfering in any way with, the real or personal property of the parties; also, that a receiver be appointed. Plaintiff demurs to the answer.

<p>Appeal from special term.</p> <p>Action by Henry O. L. Peetseh against William H. Quinn. Erom an order entered at special term, plaintiff appeals.</p>

<p>1. Supplementary Proceedings—Time of Commencing 'Proceedings.</p> <p>Supplementary proceedings are limited to 10 years, by Code Civil Proc. 8 388, though the right to maintain the proceeding had accrued when the Code was adopted. Conyngham v. Duffy, 26 N. E. 142, 125 N. Y. 200, followed.</p> <p>2. Same—Effect of Adjudication in Bankruptcy.</p> <p>An adjudication that a judgment debtor is a bankrupt does not operate as a stay of proceedings, so as to stop the running of the statute of limitations against the judgment creditor’s right to maintain supplementary proceedings.</p>

Two actions,—one of Winthrop Otis Sargent against the Sargent Granite Company, and the other by Francis T. Sargent against the same respondent. From an order overruling a demurrer to the defense in each case, (23 H. Y. Supp. 886,) plaintiffs appeal.

Action by Charles Lafrentz, an infant, by Julius Lafrentz, Ms guardian ad litem, against Charles Mass. Defendant was arrested at the commencement of the action, and plaintiff gave an undertaking to pay costs, as required by Code Civil Proc. § 559, relating to arrests in civil cases. Afterwards, on defendant’s motion, plaintiff was required to give an undertaking or make a deposit as security for costs, on the-ground that plaintiff was an infant.

Summary proceedings by Alfred Stover, as landlord, against Raphael Chasse, as tenant. From a judgment in favor of defendant, plaintiff appeals.

<p>Appeal from seventh district court.</p> <p>Action by the American Typefounders Company against Charles S. Conner. From a judgment in favor of defendant, plaintiff appeals.</p>

Action by Alice -McIntyre against Daniel Clark and others for partition. From interlocutory and final judgments all the defendants except Edward Duffy appeal. February 23, 1875, John Clark died seised of the premises in question. He left a will, which provides, among other things, as follows: “Item 6.

Action by the Starr Cash-Oar Company against Henry Reinhardt and another.

Action by Moses Tanenbaum and another against Simon Feist. From a judgment of the general term of the city court (23 H. Y. Supp. 319) affirming a judgment entered on a verdict in favor of defendant, and an order a motion to set aside the verdict and for new trial, plaintiffs appeal.

Action by William M. Norris against Walton C. Tiffany. From a judgment of the general term of the city court affirming a judgment in favor of plaintiff, defendant appeals.

Action by Chaya Glovinsky against the Cunard Steamship Company, Limited, to recover the value of baggage alleged to have been lost in transportation. From a judgment of the general term of the city court (24 N. Y. Supp. 136) affirming a judgment entered on a verdict in favor of plaintiff for $283, defendant appeals. Plaintiff was a passenger from Liverpool to New York, and the baggage was delivered to the agent of the steamship company in Hamburg.

Action by Richard Hamilton against the Third Avenue Railroad Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Walter L. S. Langerman against George H. McAdam and Graham McAdam. From orders adjudging defendant George H. McAdam guilty of contempt, and fining him $30, (23 A. Y. Supp. 1000,) he appeals. The said defendant was ordered to appear before a referee on November 9, 1892, for examination in behalf of the plaintiff, in order to enable the latter to frame his complaint in this action.

Action by John H. Haviland against Welcome B. Price to recover commissions alleged to have been earned by plaintiff’s assignors as brokers. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Charles S. Halsted against Sarah B. Halsted for divorce on the ground of adultery. Plaintiff moves for leave to serve a supplemental complaint charging defendant with additional acts of adultery with the co-respondent named in the complaint since the commencement of the action.

<p>1. Limitation or Actions—When Statute Begins to Run.</p> <p>In an action against a bailee for breach of his implied contract to return the chattel on demand, the statute of limitations begins to run from the time of the demand, and not from the time of a conversion by the bailee.</p> <p>2. Same—Pleading.</p> <p>In the city court of Albany the statute of limitations need not be pleaded to a counterclaim set up in the answer, as the pleadings in such court consist merely of the complaint, answer, and a limited demurrer, as in justices’ courts.</p>

<p>Judge—Objections to Regularity oe Bond.</p> <p>On a trial before a court of special sessions, defendant cannot raise the question as to the regularity of the official bond of the presiding magistrate.</p>

<p>Appeal from special term.</p> <p>Action by Sarah Clover against Louis Silverman and the Commercial Credit Company. From an order continuing an injunction pendente lite, defendants appeal.</p>

Action by Mary Mitchell, as administratrix of Patrick Mitchell, deceased, against William Cody, to recover damages for the death of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from special term.</p> <p>Action by James Waldron Gillespie against Philip Weinberg and Louis Clark, Jr. From a judgment in favor of plaintiff, defendants appeal.</p>

Action by Martin K. Murphy against the Ninth Avenue Railroad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Robert Katz against Henry Koster. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals.

Action by Albert L. Thomas against William CauldweU. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a new trial, defendant appeals.

<p>Attachment—Motion to Vacate.</p> <p>An attachment will not be vacated where the papers on which it was granted are sufficient, and the evidence given in support of it is fairly preponderating.</p>

Action by James Gordon Bennett against Lawrence Y. Mulry and Henry W. Pflanz, as sureties on a bond given in an attachment suit by plaintiff against James Gordon Bennett. A verdict was ordered for plaintiff, subject to the opinion of the court at general term. Judgment for plaintiff.

Action by Michael Hogan against the Manhattan Railway Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Proceedings to settle the affairs of the Canal Street Bank. Charles M. Levy filed a petition asking for certain relief as a depositor in said bank, and from so much of the order made thereon as imposed on petitioner the payment of $50 costs, and disallowed interest on counterclaim, petitioner appeals.

<p>Master and Servant—Risks Assumed by the Servant.</p> <p>Plaintiff was employed to shovel away from the bottom of a chute debris, consisting of bricks, etc., which defendant was removing from the upper story of a building, and, while so engaged, he was struck by a brick. The chute was in good condition, and was the usual appliance for the purpose for which it was used.' Plaintiff had observed the character of the debris coming down, and knew the danger. Held, that the injury resulted from a risk incident to the employment.</p>

Action by John Schnugg against the New York Elevated Railroad Company and another. From an order declining to pass on certain proposed findings, defendants appeal.

Action by Frank Forrester against Anna G. Price to recover commissions as real-estate broker. The complaint was dismissed, and plaintiff appeals.

<p>Action by Louis Muller, by guardian, against John H. Menken, to recover damages for personal injuries. Judgment for defendant.</p>

- Action by Edward H. Hawke against Madison Genn Hawke, individually and as executor, and Julia Alice Isabelle Beimer, in' dividually and as executrix, of the instrument admitted to probate as- and for the last will and testament of Edward H. Hawke, deceased; Elizabeth Matthews Christopher Wilson; and Susie Bars-tow Skelding,—to determine the validity of the probate of the will and codicil of Edward H. Hawke, deceased, and to revoke, annul, and declare invalid the probate…

Action by James E. Howell against 'William Donegan for specific performance of a contract for the proceeds of land. From a judgment in favor of defendant, plaintiff appeals.

Action by Elizabeth D. De Lancey against Henry Piepgras and ethers.

Action by Elizabeth De Lancey against Henry Piepgras, impleaded with others. ■ From an order dated July 22, 1893, requiring defendant Piepgras, Ms servants, agents, and attorneys, forthwith to restore to plaintiff the possession of the premises described in the judgment, and thereafter to desist from forcible resistance to, or interference with, the enforcement of the execution, or from any other mandate issued upon said judgment, and from an order dated August, 3, 1893,…

Action by Mary M. Stout against Hiram W. Betts, individually and as executor and trustee of the will of Hiram Betts, deceased, Lela A. Betts, and Elsina M. Stout. Pending the action, Hiram W. Betts was removed from the office as executor and trustee by -a decree of the surrogate’s court, and from an order substituting Lewis Boughton, administrator with the will annexed, as party defendant in place of Hiram W. Betts, defendant Betts appeals.

Lawrence county court. Action by Charles F. Tallman and James P. Howe against William H. Kimball to recover for materials purchased by one Thomas Ma-honey, who is engaged in repairing a building owned by defendant, and used in such building. A judgment of the justice of the peace was affirmed by the county court, and plaintiffs appeal.

<p>Criminal Law—Evidence of Child—Corroboration.</p> <p>Under Code Crim. Proc. § 392, providing that where a child under the age of 12 years, offered as a. witness, does not, in the opinion of the court, understand the nature of an oath, the evidence of such child may be received, though not given under oath, “but no person shall be convicted on such testimony unsupported by other evidence,” corroboration is not required where the testimony of a child is received under oath.</p>

Final judicial settlement of the accounts of Sarah M. Byalls, as administratrix of the estate of William H. Byalls, as executor of the will of Elizabeth Haney, deceased. From the decree of the surrogate, Sarah M. Byalls appeals.

Seth Olmsted was convicted in a court of special sessions for unlawfully selling intoxicating liquors. The conviction was affirmed by the court of sessions, and defendant appeals.

Action by the American Exchange National Bank against the New York Belting & Packing Company. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendant appeals.

Action by the Exchange Fire Insurance Company of New York ■against John G-. Norris and others to foreclose' a mortgage. From an order granting judgment in favor of plaintiff on the ground of ■the frivolousness of the answer, defendants Albert I. Sire and Meyer L. Sire appeal.

Action by Edward Wright against Robert W. Chapin on a foreign judgment. From a final judgment sustaining a demurrer to the amended complaint, plaintiff appeals.

<p>1. Costs—Witness Fees—Affidavit.</p> <p>An affidavit for the allowance of witness fees and mileage, which states that the persons attended for the purpose of being witnesses on the trial of the cause, and specifies the number of miles traveled by them within the state, is not subject to the objection that it did not state that they attended only as witnesses, or that they were deemed absolutely material and necessary.</p> <p>2. Same—Failure to Examine.</p> <p>. The fact that witnesses summoned for defendant, and attending the court, are not examined at the trial, is not ground for denying the allowance for their fees and mileage, where it appears that the complaint was dismissed at the close of plaintiff’s case.</p> <p>8. Same—Officers of Corporation.</p> <p>Where defendant corporation asks to tax as costs fees and mileage of its officers summoned as witnesses in the ease, the affidavit must distinctly show, not only that the witnesses have attended, but that the fees have been or will be paid.</p>

Action by A. J. Seasongood and Charles Hayer against James A. Fleming. From an order denying a motion to make the complaint more definite, defendant appeals.

<p>Negotiable Instruments—Discharge of Indorser—Collateral Security.</p> <p>Where bonds pledged as security for the payment of notes are after-wards, by consent of the pledgor, but without the knowledge of the indorser of the notes, postponed to other liens on the mortgaged property, the indorser is thereby released.</p>

Certiorari by the Dunkirk, Allegheny Valley & Pittsburgh Railroad Company to review the action of Frank Campbell, as comptroller of the state of New York, in imposing a tax on relator’s franchise and business in the state of New York for the year 1892. Quashed.

Petition by Patrick J. Smith for the judicial settlement of the accounts of Samuel 0. Mott and another as executors of the will of Eunice A. Roberts, deceased. From a decree settling the accounts, the executors appeal.

Action by John E. Domschke against the Metropolitan Elevated Railway Company and the Manhattan Railway Company. From a judgment in favor of plaintiff, defendants appeal. From May 1, 1884, to January 16, 1893, the plaintiff was the owner in fee of Nos. 1116 and 1168 Second avenue, between Sixty-Fust and Sixty-Second streets.

Action by Joseph Bacharach against Charles Von Eiff. From a judgment overruling a demurrer to new matter in the answer, and directing judgment absolute for defendant, plaintiff appeals.

Action by John P. Holt and others, as assignees, against James P. Streeter. From an order denying a motion to vacate an order of arrest, defendant appeals.

Action by the London & Brazilian Bank against B. St. G. Walker, superintendent. From an order denying a motion for a reference to ascertain the damages sustained by defendant, Walker, by reason of an injunction obtained by plaintiff, said Walker appeals.

Action by Richard T. Wilson against the Lewiston Mill Company. From a judgment entered on a verdict directed by the court in favor of defendant, plaintiff appeals.

<p>1. Estoppel-'-Recitals in Lease.</p> <p>A recital in a lease that the rent “is evidenced by the twenty promissory notes executed by said lessee” estops the lessee afterwards to deny that such notes are promissory notes.</p> <p>3. Negotiable Instruments—Promise to Pat.</p> <p>Where a lease contains a promise to pay the rent and recites that the rent is evidenced by promissory notes executed by the lessee, it is sufficient to render the notes negotiable promissory notes, though they contain no express promise to pay.</p>

Action by John W. Moran against the Eacine Wagon Company to recover damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Application of the board of street opening and improvement relative to acquiring title to Forest avenue. From an order affirming the report of the commissioners of estimate and assessment, and denying a motion to vacate and set aside the proceedings, the objectors appeal.

Three actions by Edward A. Morrison against the Metropolitan Elevated Railway Company and another, (Nos. 2, 3, and 4,) and one action by George G. Moore and others against the same defendants. From orders denying motions for references, plaintiffs appeal.

Action by the New York Central & Hudson River Railroad Company and the Consolidated Transfer Company against James Flynn and others for injunction. From an order granting a temporary injunction, defendants appeal.

A ction by Henry Winthrop Gray, as receiver of the property and assets of the copartnership known as Levy Bros. & Co., against Moses, S. Levy, Louis Muhlhauser, Benjamin Croner, and the Kings County Trust Company, and others, to establish the title of plaintiff as receiver of the firm of Levy Bros. & Co. From a judgment in favor of plaintiff, defendants appeal.

<p>Action by Sebastian Sommer, as administrator of Diadema Sommer, deceased, against the Bavarian Star Brewing Company. Defendant demurred to the complaint.</p>

Final accounting by Abraham B. De Freece as assignee for the ¡benefit of creditors of Gustave Banger. A motion having been .made to confirm the referee’s report, objections thereto were made by the receiver of taxes and by J. & W. Seligman & Co., Littledale .& Co., Watjen, Toel & Co., William Lobb & Son, David L. Einstein, Fatman & Co., and the estate of Thomas Cornell, creditors.

<p>Action by Margaret Haas against the Missionary Society of the Most Holy Redeemer. Plaintiff moves to open a default taken at trial term.</p>

<p>1. Action—Joinder—Causes Aiusing Out op Same Transaction.</p> <p>An action against plaintiff’s lessee and the owner of a lot adjoining the leased premises for injuries caused by excavations made by the adjoining owner, and by the refusal of the lessee to allow the adjoining owner to come on the demised lot for the purpose of securing it against the excavation, states causes of action arising from the same transaction, (Code Civil Proc. § 484, subd. 9,) which are properly joined, though one may be ex contractu and the other ex delicto.</p> <p>2. Landlord and Tenant—Excavations on Adjoining Land.</p> <p>Laws 1882, c. 410, § 474, as amended by Laws 1885, c. 456, provides that whenever an excavation is made on land near the boundary of adjoining land, the person causing such excavation to be made, if afforded the necessary license to enter on the adjoining lands, shall render the same safe from injury by reason of the excavation. Held, that a lessee of land who refuses such license is liable to his lessor for damages caused by the excavation.</p>

Action by Hans F. Jorgensen against the minister, elders, and deacons of the Reformed Low Dutch Church of Harlem and others to recover for the loss of services of the plaintiff’s wife. Plaintiff demurs to so much of the answer as sets up the three-years statute of limitations.

<p>Appeal—Reversal.</p> <p>Where the correctness of an order depends on the disputed question as to whether or not a stenographer’s minutes on a former trial contained the whole of a stipulation between the parties, the order will be reversed, and the matter sent to a referee to take proof.</p>

<p>1. Disorderly Conduct—Refusal to Support Wife.</p> <p>A prosecution for disorderly conduct in refusing to support wife Is not barred by an offer of defendant to try to support his wife.</p> <p>3. Criminal Law—Procedure—Signature of Acting Recorder.</p> <p>Kingston City Charter (Laws 1872, c. 150) provides that a justice of the peace may be designated by the city council to act as recorder during a vacancy, and (section 46) that a justice thus designated in signing process shall add to his official title the words “Acting as Recorder.” Held, that where a justice so designated signs the process merely as “Acting Recorder,” omitting his official title of “Justice of the Peace,” such omission does not invalidate a conviction.</p>

Action by Lizzi Rettig, as administratrix of George Rettig, deceased, against the Fifth Avenue Transportation Company, Limited. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Fanny Maltbie against Francis Bolting and others. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.

Action by Rudolph Marks against Joseph Jaffa to restrain the publication by defendant of a picture of plaintiff in a newspaper, of which defendant is editor. Plaintiff moves to continue the injunction.

<p>Marriage—Action to Annul—Fraud.</p> <p>Where plaintiff, a confiding young woman, was induced to marry defendant, by representations that he was an honest, industrious man, when in fact he was a professional thief, the marriage will be annulled, on the ground that plaintiff’s consent was obtained by fraud. Code Civil Proc. § 1743, subd. 4.</p>

<p>Appeal from special term.</p> <p>Action by William J. Brewster against G-eorge H. Wooster. From a judgment in favor of plaintiff, defendant appeals. Plaintiff' moves to dismiss the appeal.</p>

Action by Barbara Sebald against James Mulholland to enforce payment of a sum agreed to be paid for a party wall, and to have the same declared a lien on the premises of defendant, and to compel the removal of a projecting wall.

<p>1. Fraudulent Conveyances—Evidence—Recording Deed.</p> <p>The fact that a voluntary deed to the grantor’s wife was promptly recorded is not conclusive that the grantor did not intend to defraud his subsequent creditors, but may be considered in determining the intent 8. Same—Admissions of Grantor.</p> <p>In an action against a grantor and grantee to set aside a deed as in fraud of creditors, it is not error to admit statements made by the grantor, and evidence of his circumstances, where the court expressly limits the effect thereof to the grantor.</p>

Action by Jacob Crouse and others against Eiila Henrietta Kosterlitz and others to construe the will of Daniel E. Crouse, deceased. From an interlocutory judgment sustaining demurrers of defendants Kosteiiitz and Wilson to the complaint, plaintiffs appeal.

Action by Jackson Montgomery, as sole overseer of the poor of the town of Spencer, on the relation of Seymour Seeley and Horace A. Hugg, against Marcellas C. Odell. From an order denying a motion for an order directing the county treasurer of Tioga county to pay to the attorney for the defendant herein, from the said money so deposited with him, the sum of $164.34, defendant appeals.

<p>1. Taxation—Certiorari to Review—Return.</p> <p>The return to a certiorari to review an assessment against an insurance company by the tax commissioners of New York city stated that theretofore a bill had been introduced in the legislature for the taxation of insurance companies, and was opposed by New York city on the ground that it would exempt such companies from taxation for local purposes; that the representatives of such companies assured the representatives of the city that the companies would never claim such effect, whereupon the opposition was withdrawn, and the bill was passed. Held, that such averment was material, as setting up a waiver of any claim of exemption under such statute.</p> <p>2. Same—Objections not Raised Before Commissioners.</p> <p>Certiorari will not lie to review a tax assessment for any other, or different cause or grievance than was submitted to the assessing officers.</p> <p>8. Same—Petition.</p> <p>A petition for certiorari to review a tax assessment, which merely alleges that relator was exempt from taxation, does not comply with Laws 1880, c. 269, § 1, which provides that the petition shall specify the grounds of the alleged illegality.</p> <p>4. Same—-Specification of Illegality.</p> <p>Nor is it a sufficient specification to state that the several kinds of property of relator were overvalued in certain sums, and that relator was entitled to a deduction on the valuation of certain other property.</p> <p>6. Same—Amendment of Petition.</p> <p>Under Laws 1880, c. 269, which provides that certiorari will not be granted unless application therefor shall be made within 15 days after the completion and delivery of the assessment roll,. a .petition which fails to specify the ground of the illegality relied on cannot, after the lapse of 15 days, be amended by inserting the specification.</p>

<p>Appeal—Judgment Roll—Bill of Particulars.</p> <p>On appeal from an interlocutory judgment overruling a demurrer interposed on the ground that the complaint does not state facts sufficient to constitute a cause of action, appellant (defendant) will not be required to include in the judgment roll a bill of particulars served by plaintiff, as a bill of particulars is not a part of the pleading to which it refers, and is not required by any statute to be included in the judgment roll.</p>

Action by Edgar F. Hale and others against John B. Brote and .others. From an order vacating and setting aside an attachment theretofore granted, plaintiffs appeal.

Action by the T. New Manufacturing Company, a corporation, against Harry Galway and Elias T. Hatch to declare that certain land which had been conveyed to Galway was in reality the property of Hatch, and to establish thereon the, lien of a judgment against said Hatch. The complaint was dismissed, and defendants move for an extra allowance.

Action by David S. Brown and Delaplaine Brown, composing the firm of David S. Brown & Co., against John H. Doscher, to restrain the use by the defendant of an alleged infringement of plaintiffs’' wrapper. The defenses were (1) that defendant’s wrapper was-not so nearly like plaintiffs’ as to be calculated to mislead; and (2) that plaintiffs came into court with unclean hands, because their wrapper had involved a misrepresentation.

Action by Wales Henry Dunham against Hartley H. Parmenter to recover for the conversion of certain personal property in Clinton county. The articles alleged to have been converted are over. 50 in number, and are enumerated in the bill of particulars served with the complaint. Defendant moves for a change of venue to Clinton county.

Action by the Continental National Bank of Boston against Horace K. Thurber and others. From an order denying a motion to vacate a judgment against defendant for $4,203.49, damages and. •costs, and from an order denying his motion to vacate an order permitting substituted service of summons, defendant Thurber appeals.

Judicial settlement of the account of Caroline E. Perkins, as executrix of the will of John Perkins, deceased. From a decree settling the accounts of the executrix from June 29, 1882, to. December 31, 1892, George W. Angelí and Azariah O. Angelí appeal.

Action by the First National Bank of Jersey City against Emilie Huber and others, executors, etc. A verdict was directed in favor of plaintiff for $5,675.15, and defendants’ exceptions were ordered to be heard at general term at the first instance. Judgment for plaintiff.

<p>Appeal from special term, New York county.</p> <p>Action by the First National Bank of Jersey City against Emilie Huber and others, executors, etc. From an order denying a motion for a new trial, defendants appeal.</p>

<p>Injunction—Damages.</p> <p>Where defendant recovers judgment in an action in which an injunction was granted, defendant can recover only the damages sustained by reason of the injunction, and not all the costs and expenses incurred in defending the action.</p>

<p>Appeal from surrogate’s court, New York county.</p> <p>Judicial settlement of the accounts of William T. A. Hart, as administrator of the estate of Archibald Johnston, deceased. From an order surcharging the account with costs to the amount of $1,-033.55, and fixing at $1,500 the value of an undivided interest in the leasehold sold by him for $110, the administrator appeals.</p>

<p>. Examination of Party before Trial—Affidavit.</p> <p>An order for tbe examination of a party before the trial will be denied1 where the moving affidavit does not state the residence and office address of plaintiff’s attorney, as required by Code Civil Proc. § 872, siibd. 1..</p>

Application by the German Looking-Glass Plate Company for certiorari to review the action of Edward P. Barker and others, commissioners of taxes and assessments of New York city and county, in assessing property for taxation. The writ was dismissed, and relator appeals.

Action by Catherine King against the Second Avenue Railroad Company for personal injuries alleged to have been caused by an assault made by a conductor on one of defendant’s cars while plaintiff was a passenger thereon. Prom a judgment entered on a verdict in favor of plaintiff for $2,000 damages, and from an order denying a motion for a new trial made on the minutes of the court, defendant appeals.

<p>Negotiable Instruments—Actions—Fraud as a Defense.</p> <p>Under a plea of fraud, duress, and want of consideration for the note sued on, defendant may show that, while certain negotiations were pending, which were expected to result in enabling a corporation to pay its indebtedness to defendant, plaintiff demanded from defendant immediate payment of a pretended claim against the corporation, and threatened an attachment against it; that defendant requested time to investigate the claim, which was refused; and that the note was given to prevent the attachment, which would probably have terminated said negotiations.</p>

Action by the Holland Trust Company against James A. Waddell. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Ludwig Baumann against Richard De Logerot and another to recover the price. of goods sol'd under such contract. From an order granting judgment on a demurrer as frivolous, and from a judgment entered thereon, plaintiffs appeal.

<p>1. - Executors and Administrators—Failure to Collect Assets.</p> <p>Where plaintiff collected money belonging to the estate of a decedent, and refused to pay it over to defendant, who, was temporary administrator thereof, he cannot afterwards, as administrator of the estate, require defendant to account therefor.</p> <p>2. Same—Accounting—Counsel Fees.</p> <p>Refusal to allow counsel fees is not error where no request was made to find that the amount claimed was a reasonable charge, though evidence was given in respect to it</p> <p>8. Wills—Perpetuities.</p> <p>A devise to the executor, his successor or substitute, with a direction to sell the property devised at some convenient day and place during the spring months of 1891, (the will having been made in September, 1890,) is not in violation of the statute against perpetuities.</p> <p>4. Same—Fee Simple.</p> <p>A devise to C. for life, with full power to devise, but not power to grant or convey, and, if he shall die intestate, then the remainder over to his heirs, vests a fee simple in C.; 1 Rev. St. p. 733, § 84, providing that, where a general power to devise shall be given to a tenant for life, he shall be deemed to possess an absolute power of disposition.</p>

Action by Alice A. Schell against James A. Lowe to recover rent due on a lease made by one Bichard J. Clarke, deceased, to defendant Lowe. From an order allowing said defendant to deposit with the clerk of the court the money sued for, and interpleading William J. Clarke and George B. Clarke as defendants in his place, plaintiff appeals.

Action by Charles E. Hadden and others against the Metropolitan Elevated Railway Company and the Manhattan Railroad Company to recover damages caused by the construction and operation of defendants’ elevated railroad in the street in front of plaintiffs’ premises, known as “No. 102 South Fifth Avenue,” and for an injunction.

John Eichler was convicted of having attempted to extort money by threatening to accuse one Otto Doepfner of a crime, and from the judgment of conviction defendant appeals.

Action by Frank J. Amsden against George W. Jacobs to recover a balance alleged to be due on a contract for the purchase of wheat. From a judgment entered on a verdict in favor of plaintiff, defendant appeals.

Action by Abram H. Garson and another against Philip Brumberg. From an order denying a motion by Dewitt Kornhauser and others, junior judgment creditors of defendant, Brumberg, to vacate an attachment previously obtained by plaintiffs, said Kornhauser and others appeal.

<p>Pleading—Bill op Particulaes.</p> <p>In an action on a note made by defendant’s testator, payable to bearer, the complaint alleged that the note was delivered to the payee therein named, and that it was afterwards transferred to plaintiff. Held, that plaintiff would be ordered' to give a bill of particulars stating the name and residence of the person to whom the note was first delivered, together with the time and place of such delivery.</p>

<p>1. Criminal Law—Jurisdiction of Magistrate.</p> <p>A person who is arrested by a police officer without a warrant (Code Grim. Proc. § 168, subd. 2) may be tried for the offense charged though no information was laid or warrant issued by the magistrate on the charge.</p> <p>2. Same—Offense Charged.</p> <p>A conviction by a magistrate sitting as a court of special sessions is valid where the officer who caused defendant’s arrest appeared before the magistrate and made the charge, though the officer who actually took defendant into custody entered a different charge at the station house before defendant was taken before the magistrate.</p>

Action by Sarah Knisley against Páscal P. Pratt and others for personal injuries. Plaintiff moves for a new trial on exceptions ordered to be heard at the generál term in the first instance after a nonsuit at the circuit court of Erie county.

. Action by Mary Moore against the Citizens’ Mutual Life Insurance Company. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendant appeals.

<p>Appeal from special term, Erie county.</p> <p>Action by the Queen City Bank against M. Fillmore and Libbie T. Brown on a promissory note. From an order modifying a judgment in favor of plaintiff against defendants, plaintiff appeals.</p>

<p>Executors and Administrators—Proop op Claim.</p> <p>A claim which was never presented to decedent in his lifetime must be established by satisfactory proof, and it is error to allow it in an action against the executor, on the probabilities of plaintiff’s case.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Edward Schell, surviving executor of the will of George F. Merklee, deceased, against Adaline M. Merklee and others to construe item 20 of testator’s will. From a judgment sustaining the validity of said item, defendants other than thé churches designated as beneficiaries in the will appeal.</p>

Action by Edward S. Stokes against William E. D. Stokes (1) to enjoin defendant from prosecuting certain actions against plaintiff; (2) that defendant be adjudged the holder of $125,000 of Hoffman House bonds and $30,000 of.

Action by Robert S. Powell and another against Daniel D. Con-over to recover money alleged to have been loaned. From a judgment entered on a verdict in favor of plaintiffs, defendant appeals.

Action by Gabriel Tuthill against the Long Island Railroad Company for personal injuries. From an order denying a motion to change the place of trial from Orange county to either Kings or Queens county, defendant appeals.

<p>Forgery—Evidence.</p> <p>Defendant, the president of a life insurance company, compromised a $2,000 claim against the company for $400. He then sent the compromise agreement, in which the amount was stated as $1,400, to the office of the company, and directed the money to be sent to him. Of this sum he paid $400 to the claimant, and retained the balance. Held, that defendant was guilty of forgery in the third degree, under Pen. Code, § 514, which defines that offense as where an officer of a corporation falsifies or unlawfully alters any writing appertaining to its business; and it was immaterial whether the compromise agreement was made to read “fourteen” hundred instead of “four” hundred before or after it was signed by the claimant.</p>

Action by Eobert D. Castle against the Corn Exchange Bank. From a judgment entered on a verdict directed by the court in favor of defendant, and from an order denying a motion for a new, trial, plaintiff appeals.

<p>Appeal from special term, New York county.</p> <p>Application by Dr. Carl J. Stephani for the appointment of a committee of the estate of Alphonse J. Stephani, a life convict. The application was granted, and Josephine Stephani appeals.</p>

Morris Spiegel was convicted of presenting a false and fraudulent claim to an insurance company, and from the judgment of conviction he appeals.

Action by Effie Redner against the Lehigh & Hudson Railway-Company to recover damages for personal injuries. There was judgment in favor of plaintiff, and defendant appeals;

Action by Philip B. Veiller against Edward L. Oppenheim and ■others to recover money alleged to be due on a contract. From an ■order granting in part a motion to allow plaintiff to inspect the books of defendants for the purpose of enabling plaintiff to frame his complaint, defendants appeal.

Action by the Hanover National Bank of the city of New York against the American Dock & Trust Company on a warehouse receipt purporting to have been issued by defendant. From a judgment entered on a verdict directed by the court in favor of defendant, plaintiff appeals.

Action by Nathaniel Jarvis, Jr., against the Manhattan Beach Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Mark Lythgoe against Charles Lythgoe and others for partition. From an interlocutory judgment in favor of defendants, Maria Linden and the other defendants appeal.

<p>1. Right to Jury Trial—Waiver.</p> <p>Where defendant goes to trial before the special term without objecting to the power of the court, and proceeds with the trial to its close, submitting requests to find, a claim, made for the first time in such requests, that he was entitled to a trial by jury, is too late.</p> <p>2. Parol Evidence—To Explain Writing.</p> <p>Where the parties differ as to the meaning of a term in a contract, their statements at the time the contract was entered into are admissible-to show their understanding of the term.</p>

Action by Ida M. Cobb against EL Eugene Welcher and others to recover damages for personal injuries, sustained by plaintiff - while working in defendants’ factory. Plaintiff moves' for a new trial after a nonsuit at the Monroe circuit, upon exceptions ordered to be heard -at general term in the first instance.

Action by Jacob Cram against the Gas Engine & Power Company-to recover damages for breach of warranty. From a judgment entered on a verdict in favor of plaintiff, and from an order denying, a motion for a new trial, made on the minutes of the court, defendant, appeals.

<p>1. Reference—Examination of Long Account.</p> <p>In an action for a balance alleged to be due to plaintiff on a sale by defendant of land owned by the parties in common, the answer denied that the purchase money had been paid in full, or that it was all due, and set up as a counterclaim that plaintiff had collected the rents of the land, and that defendant had paid for repairs, taxes, and insurance, in consequence of which plaintiff was indebted to him. Plaintiff replied, denying the collection of rents in the sum alleged, or that she was indebted to defendant, and alleged that all the rents collected by her were paid out by defendant’s direction. Held, that the examination of a long account, within Code Civil Proc. § 1013, was not required.</p> <p>•8. Same—Sufficiency of Affidavit.</p> <p>An affidavit is not sufficient where it states that the trial of the case will involve the examination of a long account, but does not state the facts from which such conclusion is drawn. Cornell v. Illuminating Co., (Sup.) 16 N. Y. Supp. 306, followed.</p>

Action by Walter L. Sessions against Washington Palmeter and' Jane Palmeter to recover for services rendered as attorney at law. From a judgment of the county court reversing a judgment entered on a verdict in a justice’s court, plaintiff appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by Julia Fuller against the Jamestown Street-Railway Company for personal injuries. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from circuit court, Niagara county.</p> <p>Action by Mary Hogan, as executrix, etc., against the Mutual Aid & Accident Association. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court, defendant appeals.</p>

Action by Charles W. Van Vleet against W. Martin Jones. Plaintiff moves for a new trial on exceptions ordered to be heard at the general term in the first instance, after a nonsuit at the Monroe circuit.

Action by Richard A. Smith and others, as trustees under the will of Richard L. Campbell, deceased, against Rosalie C. Campbell and others, for an accounting, and a construction of the will. From an interlocutory judgment, defendant Rosalie C. Campbell appeals. February 2, 1884, Richard L. Campbell died, leaving a widow, Emeline F. Campbell, and two minor daughters, Martha Campbell and Rosalie C. Campbell, his only heirs and next of Mn.

Action by Thomas F. G-ale against George Roll to recover commissions alleged to have been earned in effecting the sale of real estate. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court, defendant appeals.

Action by Charles Hanks against Ernest W. Gerbracht, impleaded, etc. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals.

Action by the Staten Island Dyeing Establishment against the Skinner Engine Company and another. From an order denying a motion for an injunction, plaintiff appeals.

<p>Negotiable Instruments—Recitals as to Place of Execution.</p> <p>The purchaser of a note has the right to rely on recitals therein as to the place of execution, and the maker cannot, in an action on the note-by a bona fide holder without notice that it was not executed at the place where it bears date, deny that it was executed at such place.</p>

Action Tby the Phoenix Insurance Company and John York against the New York Central & Hudson River Railroad Company to recover damages for the destruction of a house by fire. From an order denying a motion for a new trial on the minutes of the court after a verdict in favor of plaintiff for $28,650, defendant appeals.

<p>Specific Performance—Compliance by Plaintiff with Terms of Contract.</p> <p>Where the referee finds “that the plaintiff failed to observe, and plainly violated, the promises and agreements made by him in the said agreement,” and no appeal is taken from refusals to find facts in plaintiff’s favor, a judgment dismissing the complaint will not be disturbed.</p>

Action by Hannah Little against Rosa Wirth, sued as Rosa Wuth, to recover damages for injuries caused by falling on the sidewalk in front of a tenement house owned by defendant, and of which plaintiff was a tenant. A demurrer to the complaint was sustained, and plaintiff appeals.

<p>James A. Deering interposed a claim in the proceeding for the opening of One Hundred and Twenty-Seventh street</p>

<p>Action by Ong Sing against Hom Mon Dus, impleaded, etc.</p>

<p>Action by Therese Murphy, as administratrix, etc., against Frank K. Hays and William H. Hays.</p>

<p>Action by Henry E. Wessels and another against Gustavus A. Boettcher.</p>

<p>Action by the Atlas Iron Construction Company against George Ferguson.</p>

<p>Action by Ackert against Miller.</p>

<p>Action by George Duryea against John Mackey and others.</p>

<p>Action by Frederick W. Helmke against Henry I. Stetler.</p>

<p>Action by Lucy S. Morrison against the Metropolitan Telephone & Telegraph Company.</p>

<p>Action by the people against H. E, Kane and William Ford.</p>

<p>Action by Harvey Cook against the Saratoga Victory Manufacturing Company.</p>

<p>Action by Charles Leopold against the president managers, and company of the Delaware & Hudson Canal Company.</p>

<p>Action by Jane E. O’Bryan against the city of Amsterdam.</p>

<p>Action by Benjamin Blackburn against the Rome, Watertown- & Ogdensburg Railroad Company.</p>

<p>Action by Catharine Boland, as administratrix, etc., against the New York -Central & Hudson River Railroad Company.</p>

<p>Action by George G. French against Susan Row and another.</p>

<p>Action by Esther Y. McCarthy against Eugene McCarthy.</p>

<p>Action by Alexander Richert against John Baekenstross.</p>

<p>Action by John M. Walker and another against Arthur E. McAllister, impleaded.</p>

<p>Action by Simon D. Paddock against Patrick Guyder.</p>

<p>Appeal from city court, general term.</p> <p>Action by the W. D. Wilson Printing Ink Company against Austin E. Ford.</p>

<p>Appeal from city court, general term.</p> <p>Action by James R.- Smith against Stuart Robson.</p>

<p>Appeal from city court, general term.</p> <p>Action by Annie Haines against Denman Thompson and another.</p>

<p>Action by John F. Peppard against the Delaware, Lackawanna & Western Railroad Company.</p>

<p>Action by Jane Callaghan against Diedrich W. Rohde.</p>

<p>Action by Julius Jacobs and George Easton against the Howard Insurance Company of New York.</p>

<p>Action by Henry Piepgras against Walter D. Edmonds and others.</p>

<p>Action by David Roth against the Dry Dock, East Broadway & Battery :Railroad Company.</p>