Volume 27 — New York Appellate Division Reports

Appeal Dy the defendant, the Metropolitan Street Railway Company, from an order of the Supreme Court, made at the New Y ork Special Term and entered in the office of the clerk of the county of New York on the 11th day of January, 1898, denying the defendant’s motion for leave to serve a supplemental answer setting up-a settlement between the parties to the action.

<p>Appeal by the defendants, Briton Richardson, as assignee, etc., and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of July, 1897, upon the decision of the court rendered after a trial at the New York Special Term.</p>

Appeal by the defendant, Catharine Haight, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of June, 1897, upon the verdict of a jury, and also from an order entered irt. said clerk’s office on the 13th day of July, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of July, 1897, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 2d day of July, 1897, denying the' defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Tieonderoga Pulp and Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of June, 1891, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of June, 1891, denying the defendant’s motion for a new trial made upon the minutes.

<p>Reply — lohen required by order of the court and not interposed in denial of a counterclaim set up in the answer — a judgment directed thereon as frivolous is improper.</p> <p>Where a reply is served, not to prevent .a judgment for affirmative relief on a counterclaim set up in the answer, but in compliance with an order of the court directing it in order that the court may ascertain how far the allegations in the answer are admitted by the plaintiff and to what extent the defendant must make proof thereof on the trial, it is not proper for the court, on a motion for judgment made ón the ground that the reply is frivolous, to proceed to hear arguments as to whether, assuming the facts alleged in the. answer to' be true, the complaint is completely overthrown thereby, and, if of the opinion that such is the case, to give judgment for the defendant.-</p> <p>Semble, that section 537 of the Code of Civil Procedure applies only to a reply ■ which is served for the reason that the answer sets up a counterclaim.</p>

<p>Contract of sale—reasonable time for performance—shipments of parts of the goods at different times allowable — evidence of laches — when am agent may afterwards limit and fia the time of performance— waiver of delay — admissions of the president of a corporation in a letter to its agent.</p> <p>A contract of sale of coffee, providing as follows, “Sold * * * about (1,000) one thousand piculs picked Corinchie coffee (marks, numbers and name of vessel ' or vessels to be given as soon as known and before the arrival'of the coffee), to arrive and to be shipped per sailing vessel called the •, from Padang bound for New York,” no time for performance being specified therein, must be performed within a reasonable time, to be ascertained as a question of fact from all the circumstances.</p> <p>The fact that the vendee, in an action against him by the vendor for damages for a refusal to accept the coffee, sets up the defense that the contract has not been performed by the vendor within a reasonable time, does not-impose upon the vendee the burden of proving what was a reasonable time.</p> <p>Such a contract does not require the whole 1,000 piculs to be shipped at one time or by any one vessel.</p> <p>It is a material fact, in rebuttal of the testimony of the agent of the vendor, that he could obtain no transportation upon the only four sailing vessels which sailed from the port in question after the making of the contract and before the time when the goods in question were shipped, that one of these ships brought coffee from the same port to the vendor six months before the coffee in question was shipped from that port.</p> <p>Semble, that a broker, who has signed for a vendor a contract to deliver, at an indefinite time, coffee to be shipped from a foreign port, has, while still acting for his principal, in the same transaction and in connection with a proposed change in the contract applied for by the vendor, sufficient authority to modify the contractby an agreement that it shall be performed within a time fixed.</p> <p>Where the time fixed for the performance of such a contract has expired, the vendee is not obliged, on receiving a notice from the vendor, stating the name of the vessel on which the goods have been shipped, to reply to it or be deemed to have waived the delay; it is enough that when the marks and numbers of the goods were subsequently sent to the vendee he repudiated the contract upon the ground of delay.</p> <p>A letter written by the president of the vendor, a corporation dealing in coffee, to its agent, in Sumatra, stating that the delay in shipping the coffee in suit is altogether unreasonable, is admissible against the corporation upon the question Whether it exercised due diligence in procuring transportation for the coffee within a reasonable time.</p> <p>Tan Brunt, P. J., dissented.</p>

<p>Appeal by the plaintiffs, J.. Wesley Rosenquest and Emeline Col-ville, from a judgment of -the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 23d day of March, 1897, upon the decision -of the court rendered after a trial at the New York Trial Term, before the court without a jury, dismissing the complaint upon the merits, except from so much thereof as dismisses the defendants’ counterclaim, and also from an order entered in said clerk’s office on the 17th day of March, 1897, denying the plaintiffs’ motion for a hew trial made upon the minutes.</p>

Appeal by the defendants, Frederick J. Kaldenberg and others, from a judgment of the Supreme Court in favor of the plaintifi, entered in the office of the clerk of the county of New York on the 23d day of February, 1897, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 11th day of March, 1897, denying the defendants’ motion for a new trial made upon the minutes.

<p>Will — time of vesting of shares to be created by executors under a direction to divide-the estate—power in trust.</p> <p>The will of a testator, after directing the payment of his debts and funeral' expenses, directed his executors “todivide the aggregate into as many equal, shares or parts as there shall be then living children, or the issue of deceased, children of mine; such issue of each deceased child to represent one share in such division,” and although giving the executors, in a subsequent clause,, authority “to collect the proceeds, rents, issues and profits,” nowhere provided what disposition should be made of them when collected.</p> <p>Held, that the estates given, in the several shares into which the property was to be divided by the executors, vested in the distributees at once on the death of" the testator, and that the vesting was not postponed until the division was. actually made;</p> <p>That this view was supported by the fact that the testator in á subsequent clause-of the will provided for the creation of a trust for the share of any distributeewho might be a minor at the time of the testator’s death.</p> <p>Semble, that no trust was created, but that a power in trust only was given to-the executors.</p>

Appeal.by the plaintiff, Catharine J. Cavanágh, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25th day of March, 1897, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury.

<p>Negligence—a person killed by a ca/r while walking ón a crosswalk across the track of a cable street railroad — absence of proof that he was not guilty of contributory negligence.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the latter, while proceeding, in the daytime, on a crosswalk from east to west across an avenue through which ran a cable road, walked slowly for a distance of some thirty feet from the east curb of the street to the westerly rail of the north-bound track, not only without stopping to look or listen for an approaching car, but with his eyes on the ground, and apparently absorbed in thought, until he. was warned by the gong of a car, which was five feet distant from him, on the north-bound track, and being confronted by a car which had stopped on the south-bound track, he hesitated a moment and then started to walk .around the rear of the latter car, and was immediately thereafter struck'and fatally injured by the north-bound car.</p> <p>Held, that there was no sufficient evidence of the absence of contributory negligence on the part of the intestate to sustain a j udgment in favor of the plaintiff.</p> <p>Ingraham and Patterson, JJ., dissented.</p>

Appeal by the defendants, Franklin Lynch. and others, as •executors, etc., of David Hall, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of October, 1897, upon the report of a referee appointed to determine a disputed claim ■against the estate of the defendants’ testator.

Certiorari issued out of the Supreme Court and attested on the 8th day of December, 1897, directed to.

<p>Negligence — sufficiency of a complaint not alleging knowledge by the master, or ignorance by the servant, of a dangerous condition— when the principle of obvious risks is not involved.</p> <p>In an action brought by a father to recover damages alleged to have been sustained by him in the loss of the services of his minor son, a complaint which alleges that “ owing to the gross carelessness and negligence of the defendant and without any fault or negligence on the part of said minor or this plaintiff in any wise contributing thereto,” the said minor, while performing his duties as a- servant of the defendant, sustained certain injuries by “ falling into and through ah unguarded and improperly constructed elevator shaft on the premises of the said defendant,” is not demurrable. ■</p> <p>Where, in such an action, a party seeks to recover for inj uries not alleged to have been sustained by him in connection with any machinery or appliance with Which he was furnished by the employer, or in connection with the place, where he was working, a complaint containing the usual allegations of the employer’s negligence, and the absence of contributory negligence on the part of the servant, is sufficient.</p> <p>It is not necessary to allege therein that the employer did, or that the servant did not, know of the dangerous condition resulting in the accident, as the principle of obvious risks is not directly involved, although it is possible that it may arise on the trial of the action.</p>

Appeal by the defendant, Fréderick Uhlmann, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yew York on the 15th day of July, 1897, upon the verdict of a jury, and also from, an order entered in said clerk’s office on the 6th day of July, 1897,. denying the said defendant’s motion for a new.trial made upon the minutes.

Appeal by the plaintiff, Thomas Dwyer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of 'the clerk of the county of New York on the 16th day of February, 1897, upon the verdict of a jury rendered'by direction of the court.

Appeal by the plaintiff, Arthur W. Andrews, from so much of an order of the Supreme Court, made at the New York Special Term and'entered in the office of the clerk of the county of New York on the 26th day of January, 1898, as vacates a warrant of attachment theretofore granted in the action. •

Appeal by the defendant, Malcolm 0. Anderson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of April, 1897, upon the verdict of a jury, and also from an' order entered in said clerk’s office on the 20th day of May,. 1897, denying the defendant’s motion for a new trial.

Appeal by the defendants, Thomas M. Barr and another, from a; judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of November, 1897, upon an order made at the New York Special Term and entered in said clerk’s office on the 10th day of November, 1897, overruling the answers of the said defendants as frivolous, with notice of an intention to bring up for review upon suche appeal the said order.

Appeal by the plaintiff, the Shepard & Morse Lumber Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 21st day of December, 1897, changing the place of trial of the action from the county of Hew York to the county of Washington. . ■

Appeal by the plaintiffs, David Sullivan and John Robinson, composing the firm of Sullivan & Robinson, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 12th day of April, 1897, upon the decision of the court rendered after a trial at the New York Special Term, as dismisses the complaint as against the defendant John Eusner.

Appeal by the plaintiff, Elwood S. Hand, from a judgment of the Appellate Term of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 6th day of October, 1897, affirming a judgment of the General Term of the City Court of New York, entered in the office of the clerk of said court on the 17th day of July, 1897, affirming a judgment of the Trial Term of said court, in favor of the defendants, entered in the office…

Appeal -by James B. Ludlow from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 20th day of December, 1897, requiring James B.. Ludlow to appear before a referee to be examined as a witness under section 21 of the General, Assignment Act (Chap. 466 of the Laws of 1877).

<p>Jiegligence— an employee hilled by falling through a skylight upon a snow-covered ■ roof—knowledge by the employee of its existence-—distinction between the risks of the employment and contributory negligence.</p> <p>Upon, the trial of an action brought by an administratrix of an employee to recover the damages resulting from the death of her intestate, who, after having been ordered by his employer to. go upon a snow-covered roof and clean it, fell through a skylight and was killed, it was considered hy McLaughlin and Patterson, JJ., that it was erroneous for the court to limit a request of the defendant that the jury be instructed that the defendant was. not liable if the employee “knew this place was there or should have known it,” by adding “and in any way through any negligence on his own part went through the skylight,” as, if the employee knew of the existence of the skylight and the danger of working on the roof by reason of it, he assumed the risk of falling through it.</p> <p>Semble, that there is no necessary connection between- the risks of the employment which an employee assumes and his contributory negligence.</p> <p>Van Brunt, P. J., dissented.</p>

Motion by t-lie- plaintiffs, Richard M. Montgomery and another,for a. new trial .made -upon a casé containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction ■ of the court 'after a trial before the court -and a jury at the New York Trial Term.

• Appeal by the defendant, John D. Williamson, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 21th day of January, 1898, denying his motion to vacate an order for his examination granted for the purpose of enabling the plaintiff to frame his complaint.

Appeal by the petitioners, Jennie Blanche Havemeyer Campbell and others, from an order of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 6th day of January, 1898, denying their motion to offset the costs awarded to the respondent, J. Lee Humfreville, under an order entered herein upon the remittitur of the Court of Appeals against an equal amount of cos'ts remaining unpaid awarded to the petitioners under a decree entered herein on…

<p>Libel — a letter to the publisher, competent on the question of 'malice—incompetent as regards declarations of third, parties as to the plaintiff’s cha/racter.</p> <p>In an action against a newspaper for libel, a letter written before the publication of • the libel by a friend of the plaintiff to one of the editors of the paper is admissible on the question of malice so far as it gave information which required the newspaper, before making the statement it did, to inquire as to its truth, but is inadmissible as to such parts thereof as contained numerous testimonials to the plaintiff’s character from a number of prominent persons.</p>

<p> Admission to the lar—refused to an Italian on proof of three yecu's’ good standing as an attorney in the higher courts of Italy. </p> <p>An application for admission, as an attorney, of an Italian of good character, a naturalized citizen of the United States, who has been for more than three years an' attorney of good standing in the higher courts of the kingdom of Italy, it was considered should be denied, for the reason that the jurisprudence of the State of New York is based upon the State and Federal Constitutions, interpreted in accordance with the principles of the common law, while that of Italy rests upon the Civil Code of the Roman Empire, modified by the customs, statutes and judicial decisions of that country, and that consequently there is no presumption that an Italian attorney is sufficiently familiar with our laws properly to advise clients in respect thereto.</p>

<p>Appeal by the defendant, John T. Williams, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Rew York on the 22d day of May, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of June, 1897, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Arthur A. Waterman and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of February, 1898, continuing a preliminary injunction until the trial of the action.

Appeal by the defendant, John M. Van Orden, from an order of' the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of November, 1897, staying the defendant’s appeal from a judgment of the Supreme Court.

Cross-appeals by the plaintiffs, George H. Fern aid, and Solomon A. Thomas, as administrator,, etc., of Solomon Thomas, deceased, and the defendant, the Providence Washington Insurance Company, from a judgment of the Supreme Court in favor of the' plaintiffs, entered in the office of the clerk of' the county of Kings on the 11th day of May, 1897, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 25th…

Appeal by James' S. Biddell, as administrator, with the will annexed, of James E. Pringle, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of December, 1897, denying his motion to be substituted as plaintiff in the above-entitled action.

<p>Appeal by the defendant, Elwood S. Hand, from an order of the Supreme Court, made at the Rew York Trial Term and entered in the office of the clerk of the county of Rew York on the 29tli day of December, 1897, granting the plaintiff an extra allowance of five per cent upon the amount of a verdict rendered in the action.</p>

Appeal by the defendant, Sherman W. Knevals, as assignee of William R; Bunker and Charles B. Caldwell, and of the firm of ■ Caldwell & Bunker, from a final judg'ment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the ■county of New York on the 5th day of June, 1897, upon the report of a referee. The plaintiffs in this action seek, in effect, to recover fourteen bonds for $1,000 each, in the possession of the Bank of America.

' Appeal by the plaintiff, Eugene D. Klein, from' a judgment of the Supreme Court in favor of the defendant, entered in the office ■ of the clerk of the county of New York on the 16th day of October, 1897; upon the verdict ,of a jury rendered by direction of the court. ‘

Appeal by .the defendant, Joseph H. Murphy, from an order .of the Supreme Court, made at the Mew York Trial Term and entered-in the office of the clerk, of. the county of Mew York on the 10th day of Febfuary, 1898, granting the plaintiff’s motion to place the abovq-entitled action on the preferred cause calendaf for trial.

<p>Appeal by the plaintiff, George G. Youngs,'from an interlocutory judgment of the Supreme Court, entered in the' office of the -clerk of the county of New York on the 22d day of November, 1897, upon the decision of t-he court rendered after a trial at the New York Special Term, sustaining the demurrer of the defendant Charles A. Stoddard, and the joint demurrer of the defendants Robert B. Snowden, Lydia P. Snowden, Arthur C. Snowden and ¡Susan A. Yon Tagen to the amended complaint, with notice of an intention to bring up for review upon such appeal the decision, bearing date the 16th day of November, 1897, and entered in said ■clerk’s office, upon which such judgment was entered;</p> <p>This is an action in equity to secure a proportionate part of an Award made to the defendant Stoddard by commissioners of estimate and assessment, appointed in a proceeding brought by the city to condemn certain lands in One Hundred and Eighty-second street, between Audubon and Eleventh avenues.</p> <p>The facts alleged are substantially these : In December, 1889, certain of the defendants and others, who, for the sake of brevity may be called the Snowden. family, conveyed to Louisa J. Morgan by ' warranty deed a lot of land, fifty feet in width, upon the north side •of One Hundred and Eighty-second street, together .with all • their right, title and interest in and to one-half of One Hundred' and Eighty-second street, “in front of and adjoining the premises so-conveyed.” Louisa J. Morgan subsequently conveyed the same premises to the plaintiff, who was her grantee thereof at the time the award in question was made.</p> <p>. About a month prior to the conveyance to Louisa J. Morgan the Snowden family and one John J. Vail executed) as part of one and the same transaction, three instruments, viz.:</p> <p>1. A quitclaim deed (for a nominal consideration) from the Snow-dens to Vail of a large tract of land, including the one-half of One Hundred and Eighty-second street, in front of the premises subsequently conveyed to Morgan.</p> <p>2. A contract, under seal, between. Vail and the. Snowdens (set up verbatim in the complaint), whereby Vail agreed to pay to the Snowdens all moneys which he at any time thereafter might receive as damages awarded to him for the taking of said land for a public use.</p> <p>3. A mortgage given by Vail to the Snowdens to secure performance of the latter contract.</p> <p>Vail subsequently quitclaimed these premises- for a nominal consideration to the defendant Stoddard, “ subject to the terms, conditions and agreement ” between himself and the Snowdens. The city condemned the land in question for the opening of One-Hundred and Eighty-second street, and the commissioners awarded to Stoddard the sum of $4,755.50 for the land embraced within one-half of One Hundred and Eighty-second street. This award was for a strip of 350 feet, in which the plaintiff’s 50 feet were included. The plaintiff asks judgment that he be declared to be the owner of a proportionate part of the award made to Stoddard;. that the proportionate part be ascertained and that the city be directed to pay it over to him. He also asks that the deeds to Vail and to Stoddard be declared void. . .</p>

Appeal by the plaintiffs, Francesco Galasso and Pasquale Di Pietro, as administrators, etc'., of Pietro Macceo, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 20 th day of January, 1897, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, Amelia Gall, as administratrix, etc., of Joseph Gall, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county ■ of New York on the 22d day of November, 1897, nuncfro tunc, as of the 16th day of October, 1897, upon the verdict of a jury, and also from an order bearing date the loth day of October, 1897, and entered in said clerk’s office denying the defendant’s motion for a new trial…

Appeal by the plaintiff, Jacob Hirshfeld, suing on his own behalf and on behalf of all other creditors of The Madison Square Bank, and by. the defendants, Miles M. O’Brien and James G-.

<p>Newly-discovered evidence—failure to exercise diligence in procuring the proof on the first trial — delay in moving'.</p> <p>A motion for a new trial, made upon, the ground of newly-discovered evidence, should he granted only where it appears from the moving papers that the evidence could not, by the exercise, of reasonable diligence, have been discovered-before the trial, and where the motion is made promptly upon the discovery of . the new "evidence.</p> <p>Where a defendant testifies upon .a trial that" hé made certain payments on the plaintiff’s intestate’s claim by his checks whichhad been indorsed by the plaintiff’s intestate, and were in the possession of the defendant’s attorney, who was, present at the trial and was asked to produce the checks, but said that he did not have them, a motion for a new trial on the ground of newly-discovered evidence, based upon the fact that since the trial the defendant’s attorney had' made search for and found the checks, no explanation being given why they . could not have been produced on.the trial, and on the further ground that a witness not called upon the previous trial, although the defendant must have-known at -the .time of the trial what the witness could testify to, will swear that he delivered certain moneys to the plaintiff’s intestate by -the defendant’s direction, should be denied. •</p>

Appeal by the plaintiff, Catherine Taylor, from a judgment of the Supreme Court in favor of the defendants, The New York and Harlem Railroad Company and The New York Central and Hudson River Railroad Company, entered in the office of the clerk of .the county of New York on the 3d day of May, 1897, upon the •decision of the court rendered after a trial at the New York Special ‘Termdismissing the complaint upon the merits as to said defendants.

Appeal by the defendant, John Merritt, as executor of and trustee under the last will of Hannah B. Merritt,., deceased, from a judgment of the Supreme Court in. favor of the plaintiffs, entered; in the office of the clerk of the county of Hew York on the 11th day of February, 1891, upon the -decision of the, court rendered after a trial at the Hew York Special Term. . ' ...

Appeal by the defendants, William B. Ogden and Lizzie Walton,, as executors, etc., of Nathan Brewster, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of • the county of New York on the 13th day of October, 1897, upon the report of a referee.

Appeal by the plaintiff, The National Gum and Mica Company, from a judgment of the Supreme Court in favor of the defendant,, entered in the office of the clerk of the county of New York on the 13th day of July, 1897, upon the decision of the court rendered after a trial at the New. York Special Term dismissing the complaint upon the merits.

Appeal by the defendant, The Connecticut Indemnity Association of Waterbury, Connecticut,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of September, 1897, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 25th day of September, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Albert R. Genet, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 5th day of November, 1897> upon the decision of the court rendered after a trial at the New York Special Term sustaining the defendants’ demurrer to the complaint.

Appeal by the plaintiff, William Scott, an infant, by Alexander H. Orosbie, his guardian ad litem, from an order and judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 11th day of December, 1897, upon the dismissal of the complaint by direction of the court on the opening of the plaintiff’s counsel at the Hew York Trial Term.

Appeal by the defendant, the Edison Electric Light Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of April, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of May, 1897, denying the defendant’s motion .for a new trial made upon the minutes.

Appeal by the claimant, Cornelius B. Schuyler, from an order of the Supreme Court, made at the New York Special Term on the 6th day of January, 1896, and entered in the office of the clerk of the county of New York, confirming the report of a referee appointed to take proof of the claims of. Cornelius B. Schuyler and Henry D. Purroy to an award made in the- above-entitled proceeding.

Appeal by Giovanni Dominici, the third party herein, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 7th day of August, 1897, denying his motion to vacate an. order directing him to appear and be examined under oath concerning the property of the defendants and any debt or demand owing from him or his said firm to said defendants sought to be affected by . the attachment herein, and…

Motion by the plaintiff, Patrick Byrne, for a new trial made upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of his complaint by direction of the court after a trial at the New York Trial Term.

Appeal .by the defendant,. Susanna S. Minturn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk- of the county of New York on the 28th- day of September, 1897, on the decision of the court, rendered after a trial at the Hew York Special Term.

<p>Action against an ‘' incompetent ” defendant — the commi ttee cannot be served, with the summons without leaveofthe court—a guardian ad litem for-the incompetent cannot be appointed until after notice and leave to sue is given.</p> <p>A committee of the estate of an incompetent person is an officer of the court, and no action can he begun against him until the leave of the court has been first obtained.</p> <p>Service of a summons upon the incompetent person and his committee before such leave is obtained, and the appointment, under section 428 of the Code of Civil Procedure, of a guardian ad, litem for the incompetent, without notice to the committee, upon the ground that the interests of the committee and those of' the incompetent person are hostile, are both irregular.-'</p>

<p>Restrictive covenant as to the distance of buildings from, the street line, arid against the erection of a “ tenement house," construed.</p> <p>A restrictive covenant contained in a deed of building lots, to the eSect that the grantee will not erect upon the premises conveyed any “tenement house” or .any “houses except private dwellings,” the front walls of which shall set back at least ten feet from the line of the lot, is violated by the erection, on such premises, of a house whose front wall, from the foundation to the roof, extends outward at a certain point, forming a bay window, the outer face of which extension is four feet and two inches in length, and eight feet and eight inches from the front line of the lot, while the remainder of the front- wall is twelve feet and eight inches from such line ; and which house is' so constructed that the rooms on each of the three floors form a complete apartment, suitable for the occupation of a separate family.</p> <p>The covenant being directed against the construction of the building, and not against its use, proof as to the manner in which the grantee intends to use the building is immaterial. - ;</p> <p>Rtjmsey and O’Brien, JJ., dissented.-</p>

Appeal by Alfred W.. Hoyt and ■ others, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 24th day of June, 1897, finally judicially settling and allowing the accounts of Samuel N. Hoyt, Alfred M. Hoyt and James W. Jackson, as trustees for Mary Irene Hoyt under the last will and testament of Jesse Hoyt, deceased.

Appeal by the defendant, George Putnam Smith, from a judgment of the Supreme Court in' favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 13th day of July, 1897, upon the report of a referee.

Appeal by the plaintiff, Louise Young, from a judgment of the Supremo Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of July, 1897, upon the report of a referee dismissing the complaint upon the merits.

<p>Written contact to drill a well — when a patent ambiguity cannot be explained by. parol. '</p> <p>A written contract by which the party of the first part agrees ‘ ‘ to drill a well for party of the second part at §2.50 a foot and furnish pipe for pump without charge, and is to be relieved from all responsibility when he stops drilling ; in case of a flowing well to be two dollars per foot,” presents a patent ambiguity in that it fails to indicate the precise kind of well contemplated by the parties; and in an action brought to recover upon such contract, parol evidence is inadmissible to show that the defendant had in mind a well which would' produce water from the bed rock.</p> <p>Semble, that in such a case the word “well ” is to be construed to mean a common or ordinary well.</p>

<p> Negligence—an employee crushed, while coupling two cars, by timber projecting over one of them. </p> <p>A railroad company is not liable for an injury to an employee caused by the unsafe manner in which timber had been placed upon a car, between the ends of which timber and another car the employee, while coupling the cars together, was crushed.</p>

Appeal by the plaintiff, Hermann Schmaltz, .from a judgment of the Supreme Court in favor of the plaintiff for nominal damages only and in favor of the defendant for costs, entered in the office of the clerk of the co.unty of Clinton on the ■ 24th day of April, 1897, upon the decision of the court rendered after a trial at the Clinton Special Term, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s .office on the 12th day of…

<p>Pleading — when the reaffirmance by a reference thereto in a second separate defense of the denials of the first does not incorporate them into the second—demurrer.</p> <p>A second further and separate defense in an answer, which “reaffirms all the allegations and denials contained in the first, second and third paragraphs of the answer,” which consist in substance simply of denials, and then follows with a statement of matter which does not constitute a defense, will not be construed as repeating the first defense and incorporating the denials thereof into such</p> <p>■ second and further defense—it consists of nothing more than the new matter therein alleged and is demurrable.</p> <p>Merwin and Putnam, JJ., dissented.</p>

<p>Conversion — when a complaint states a cause of action for the conversion of goods delivered subject to the retention of title by the vendor, the vendee homing authority . to sell them—a sale by the vendee, under the conditions of the delivery, need not be</p> <p>A complaint in an action, in substance, alleged that the defendants .received from the plaintiff certain bicycles under an agreement that the title to and the ownership of the same should remain in the plaintiff until they were fully paid for; that in case the defendants sold any of them the proceeds of the sale should be the absolute property of the plaintiff; that a price was agreed upon, and that all the bicycles were to be paid for in ninety days; that although the ninety, days had elapsed, none of the bicycles had been so paid for, but that certain specified ones had been returned; that possession of those not returned had been demanded by the plaintiff and refused, and that the defendants had “wrongfully and unlawfully converted said property to their own use.”</p> <p>Held, that the complaint stated a cause of action in tort for conversion;</p> <p>That it was not necessary to allege, in order to state a cause of action for conversion, that none of the bicycles had been sold; that such fact, if it existed, constituted a defense to be set up by answer.</p>

<p>Change of place of trial— in the third judicial depa/rtment a failure to allege the grounds of the moving party’s expectation that his witnesses will testify as lie slates is not fatal— it is to be considered in passing upon the merits.</p> <p>The rule prevailing in the first department, that on a motion for a change of the place of trial of an action, the failure to allege upon what the party founds his . expectation that the witnesses named by him will testify to the facts stated in the moving papers is a fatal defect therein, does not prevail in the third department any further than that the failure to make such statement may be considered in passing upon the merits of the application.</p>

■ Appeal by the plaintiff, William J. Whitney, from a judgment of the Supreme Court in favor of the defendants, entered iii the office of the clerk of the county of Warren.on the 25th day of June, 189J, upon the dismissal of the complaint by direction of the court-after a trial before the court and a jury.

Appeal by the defendants, the Indian River Company and others, from an order of the Supreme Court, made at the Clinton Special Term and entered in the office of the clerk of the county of Essex on the 25th day of October, 1897, continuing an injunction pendente lite^ The defendants, being the owners of a large amount of wild land in to wnships Nos. 15 and 32, Totten and Crossfield’s patent, so called, .• offered to sell the whole of township No. 15 and 18,000 acres in…

' Appeal by the defendant, The Connecticut Mutual Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 22-d day of October, 1897, upon a verdict of a jury, and also from an order entered in said clerk’s office- on the 22d .day of October, 1897, denying the defendant’s motion for a new trial made Upon the minutes.

Appeal by the defendants, Luther Adams and others, from a judgment of the Supreme Court ip favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 28th day of April, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of May, 1897, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Eobert N.- Clemons, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 10th day of May, 1897, upon the dismissal of complaint by direction of the court after a trial before the court and. a jury, and also from an order entered in said clerk’s office denying the plaintiff’s motion for a new trial made upon the minutes. The plaintiff and appellant is a physician.

Appeal by Alfred Guibord and others from an -order -made by a justice of the Supreme Court and entered in the office of the -clerk of the county of Clinton on the 7th day of April, 1897, declaring certain acts of the appellants, as officers of the village of Plattsburgh, illegal, restraining the payment of certain claims against said-village contracted by such officers, and imposing upon them the pay-' ment of the costs of the proceeding.

<p>This case arises upon a petition presented" to this court by one Martin Dunn, Jr., asking that Lewis E. Griffith, an attorney and counselor of this court, be disbarred and prohibited from practicing in the courts of record of this State, because of the matter charged against him in such petition. '</p> <p>Upon the reburn day of such iDetition Mr. Gr~ffith appeared in person and asked for an immediate and thorough investigation of the charges, and the matter was thereupon referred: to a referee to hear the charges and take proof thereof, and report the same, together with his opinion thereon, to this court. The district attorney of Ulster county was designated, under section 68 of the Oode of Oivil Procedure, to conduct the prosecution.</p> <p>The referee has niade his r~port wherein he olnlDletely exo~erates Mr. Griffith from the charges made against him, and a motion is now made for a confirmation of such report.</p>

Appeal by the. defendant, Gertrude Walker Egbert, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 17th day of April, 1897, upon the verdict of a jury; also from an order entered in said clerk’s office on the 12th day of March, 1897, denying the defendant’s motion for a new trial made upon the minutes, and also from an order denying the defendant’s motion for a nonsuit.

<p> Action against a domestic railroad corporation for the wrongful acts of a foreign railroad corporation done while using the former company’s railroad under a contract for such use. </p> <p>An action to recover damages for injuries sustained at a highway crossing, through the negligence of a foreign railroad corporation running its trains over a railroad under a contract made by it with a domestic railroad corporation owning the road, is not maintainable against the latter corporation, the contract allowing such use of the road by the first-mentioned company being authorized by the Railroad Law (1890, chap. 565, § 78, as amended by chap. 433 of 1893).</p>

<p> Substantial performance-—defective work done under a carpenter’s contract—-what defects are so substantial as to constitute non-performemee. </p> <p>Substantial performance of a contract to perform the carpenter work in a brick building permits of only such omissions or deviations from the contract as are inadvertent or unintentional, are not due to bad faith, do not impair the structure as a whole, are remediable without doing material damage to other parts of the building in tearing down and reconstruction, and may, without injustice, be compensated for by deductions from the contract price.</p> <p>Omissions which do not come within the above rule, and defects so substantial that the owner should not be required to accept damages or deductions from the contract price as compensation therefor, and which constitute a non-performance of the contract, considered.</p> <p>The.fact that the owner, on examining the house; specifies many defects and requires them to be remedied, does not operate as a waiver of the objection that others, not at the time detected by him, exist therein, nor does the further fact that the owner takes possession of his house without protesting-against "defects which he had not then discovered.</p>

<p>Appeal by the plaintiff, Joseph Parker, from a judgment of the Supreme Court, in favor of the defendant, entered in the office of the clerk of the county of Tompkins on the 13th day of February, 1896, upon the decision of the court dismissing the complaint rendered after a trial before the court without a jury at the Tompkins Circuit.</p> <p>The action was brought to recover fifty dollars and seven cents, a penalty of fifty dollars and seven cents overcharge, under section 89 of the Railroad Law (Chap. 565, Laws of 1890,. as.amended by chap. 676 of the Laws of 1892) which provides : “ Any railroad corporation which shall ask or receive more than the lawful rate of fare,, unless such overcharge was made through inadvertence or mistake, not amounting to gross negligence, shall forfeit fifty dollars, to be recovered with the excess so received by the party-paying the same.’’</p> <p>■ February 25, 1895, the plaintiff was a passenger upon defendant’s train from Freevil-le to Cortland, a distance of ten and forty-one one.-hundredths miles. Before taking passage he purchased a ticket at defendant’s station from its agent for the trip,and was charged and paid forty cents for it. If section-37 of the Railroad Law fixed the rate of fare it should not have exceeded thirty-three cents, being “ three cents for every such mile or fraction thereof.”</p> <p>The defense was:</p> <p>(1) A right to charge four cents per mile under section 5, chapter 594, Laws 1872, which provides : “ The Utica, Ithaca and Elmira Railroad are hereby authorized to charge a fare not exceeding four cents per mile on said road, * * * provided they shall furnish commutation tickets in amounts of not less than ten dollars, .not transferable, at the rate of two, cents per mile.”</p> <p>The Utica, Ithaca and Elmira Railroad Company and its successors, including, the defendant, did furnish the commutation tickets pursuant to this statute, and the defendant still does so.</p> <p>(2) That if it did not have such legal right, it supposed it had, and thus the excessive charge was made through inadvertence or mistake, not amounting to gross negligence. The defendant, in charging four cents per mile, acted upon the advice of its counsel that it had the right to do so. The trial court found for the defendant upon the latter ground.</p> <p>The defendant is the successor in interest of the Utica, Ithaca and Elmira Railroad Company, the owner and operator of the railroad when chapter .594, Laws 1872, was enacted. In 1878, upon foreclosure sale under a mortgage given by this company,.the railroad and the franchises of the company were sold to Goodlow & Lindley, acting for the bond and stockholders of the company, who, associating others with them, organized the Utica, Ithaca and Elmira Railway Company, to which company they thereupon conveyed the railroad ánd franchises. This company then gave a mortgage upon the railroad and franchises of the néw company, and in' 1884 the same were sold under judgment of foreclosure to Corbin & Maxwell, who, associating others with them, thereupon organized the defendant, to which they conveyed the railroad and franchises.,</p>

<p> ■Constitutional law—power of the Legislature to declare an office, to which the incumbent has been elected, vacant, and to provide that it be filled by appointment. </p> <p>Under section 8 of article 10 of the Constitution, providing that the duration of any office, not provided for therein, ‘ ‘ may be declared by law, and if not so declared such office shall be held during the pleasure of the authority making the appointment,” and under sections 5 and 8 of article 10, authorizing the Legislature to declare offices vacant and to provide for filling vacancies in office, the. Legislature may enact a statute providing for the election of the president of a village by its board-of trustees, instead of by its electors, and declaring the office of president vacant before the expiration of the term of the then present incumbent, chosen under a former act.-</p> <p>The word “ elect,” as used by the Legislature in section 4 of chapter 347 of the Laws of 1895, amending chapter 330 of the Laws of 1866, is equivalent, in its legal effect, to the word “appointment” as used in the Constitution.</p> <p>The court will not presume that legislation has been directed against the incumbent of an office and not to the office itself.</p>

<p>Appeal by the plaintiff, Emma Tillman, from a judgment of the County Court of Albany county in favor of the defendant, entered in the office of the clerk of the county of Albany on the 4th day of May, 1891, upon the verdict of a jury rendered by direction of the court.</p>

<p>Town of Watervliet — it did not survive its ' division into the towns of Green Island and Oolonie and the city of Watervliet — action discontinued on motion.</p> <p>The clear intention of the Legislature, as expressed in chapter' 975 of the Laws-of 1895, and chapters 811 and 905 of the Laws of 1896, was to extinguish the existing town of Watervliet and to create from its territory and population the towns of Green Island and Oolonie and the city of Watervliet, and the fact, that a few uninhabited strips of land, not exceeding three acres in extent, were neither included in the two new towns nor in the boundaries of the city of Watervliet, which was created after the two new towns, is insufficient to afford a basis for the contention that the old town of Watervliet still' exists, and to. justify an action in its name against one of the new towns to enforce a settlement of the-assets and liabilities which belonged to or devolved upon each at the time that the new town was created from the old one.</p> <p>The fact that, in the act creating the city of Watervliet (Ohap, 905 of the Laws-’ of 1896), reference is, made to the town of Watervliet as an existing town in the words, “The balance of said towns (i. &,• Watervliet and Golonie),.not included within the boundaries of said city, shall respectively be separate and distinct towns,” creates- no presumption that the Legislature intended that the town of Watervliet should still continue, notwithstanding the creation of the two towns and the city, where it appears that neither the hill creating the town of Green Island, nor that creating the city of Watervliet, had been approved by the Governor when the Legislature adjourned, and that it was consequently uncertain at the time the latter bill was passed whether- the act creating the town of Green Island would ever become a law, and the language in question must be construed as providing for such a contingency.</p> <p>In view of the definition of a town, contained in section 2 of chapter 569 of the Laws of 1890, the intention cannot be imputed to the Legislature of continuing such shreds of territory in existence as a town.</p> <p>The question of the continued existence of the old town may properly be determined upon a motion to discontinue the action, as a defendant should not be compelled to contest an action against a plaintiff which is not an existent entity.</p>

Certiorari issued out of the Supreme Court and' attested, on the 13th day of June, 1896, directed to James A. Roberts, as Comptroller. of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all arid singular his proceedings in assessing upon the relator a business or franchise tax for the year ending November 1, 1895, under chapter 542 of the Laws of 1880, and the acts 'amendatory thereof and sup- ■ piemen tal…

Appeal by the defendant, Wilbert S. Birdsall, from a final order of the county judge of Broome county, entered in the office of the clerk of the county of Broome on the 21st day of October, 1897, awarding to the plaintiff the delivery of the. possession of certain real estate.

<p>WHl — a gif t in trust for the life of a beneficia/ry, to whom a power of disposition is given, with a wish that he designate tioo corporations — effect of the death of the beneficiary before that of the testatrix.</p> <p>A testatrix provided by her will as follows : “ I give, devise and bequeath to my executor hereinafter named, all my property, of every name and kind, in trust, to support and maintain -my husband, Thomas D. Taylor, for and during the term of his natural life, and in a comfortable and proper manner. Second, on ' his death, whatever may remain is to go to such charitable or religious purposes as he may direct by will; but it is my wish that one-half should go to The High Street M. E. Church, and one-half to the Old Ladies’ Home of Binghamton, N. Y., located at Fail-view.”</p> <p>The husband died after the will was made and before his wife.</p> <p>Held, that, there being no. exercise of the power of appointment by the husband, the property passed to the church and home mentioned in the will.</p>

Appeal by the defendants, Lyman Hempsted and Emma J. Hempsted, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of' the clerk of the county of Albany on the 14th day of July, 1897, upon- the decision of the court rendered after a trial before the court, without a jury, at the Albany-Trial Term, . . '

<p>Notice of pivtest of a note — a misdescription which does not mislead is immaterial — evidence of a custom to make a demand by the notary’s clerk —proof required in a suit by the payee against an indorser.</p> <p>In an action upon a promissory note, made by E. W. Cheney, against the 'maker and indorser thereof, it appeared that the notice of protest served upon the indorser described the note as being dated November 11, 1893, instead of November 1, 1895, and that the indorser, after receiving the notice of protest, wrote to the holders of the note “ in regard to a certain note made by E. W. Cheney," stating that he (the indorser) could not pay the note and asking for an extension. There was no intimation that the indorser had indorsed for such maker any other note than the one in suit.</p> <p>Held, that the evidence, in the absence of any testimony from the indorser on the subject, created a presumption that the indorser had not been deceived or misled by the' misdescription in the notice of protest, and that, consequently, it was erroneous for the court to hold that no sufficient notice of non-payment had been given to the indorser.</p> <p>A notary’s certificate of the protest of a note, which certifies to a demand for payment, is prima facie evidence that a demand was made; and where the notary testifies without objection that he presented the note through his clerk for payment; that payment was refused; the note marked “no funds,” and that this manner of presentation was according to the custom in regard to such matters in the city where the indorser resided, and the certificate of protest is received in evidence over the objection that the notary did not present the note personally ■— no further evidence of demand having been given and no point having been made at the trial that the demand was not sxifficiently shown — the indorser is not in a position to say that the ruling admitting the certificate was erroneous, or to claim that the notice of protest was insufficient because of the want of a demand for payment.</p> <p>The indorser cannot assert that the note was made payable to the plaintiffs, and that there is no sufficient allegation or proof that he was not intended to be a second indorser, where it appears that the plaintiffs offered to prove that the defendant in qxiestion signed as surety for the maker, but that the court held it to be unnecessary upon the ground that it was admittéd by the pleadings.</p>

Appeal by the Lebanon Springs Railroad from an order of the Supreme Court, made at the Albany Special Term, bearing dale the 22d day of February, 1898, and entered in the office of the cleric of the county of Albany, permitting Elnathan Sweet, as receiver of the Lebanon Springs Railroad, to employ counsel in defense of the action which was brought to foreclose a mortgage.

Appeal by the defendant, Maximillian Sliinburne, from a judgr ment of the County Court of Schoharie county, entered in the office of the clerk of the county of Schoharie on the 22d day of May, 1896, convicting the defendant of the crime of burglary in the third degree, and also from an order entered in said clerk’s office, denying the defendant’s motion for a .new trial made upon the minutes.

Appeal by Anthony T. Small, individually and as executor, etc., of Grace A. Small, deceased, from an order of the Surrogate’s Court of Rensselaer county, entered in said Surrogate’s Court on the 19th day of July, 1897, denying his motion for an order requiring Samuel Bolton, Jr., as executor, etc., of Mary Dugdale, deceased, to make a* further accounting.

<p>When a verdict may be directed — an undisclosed principal is not liable for goods furnished her agent in a new business carried on by the agent in his own name— the rule in reference to a pcurtnership, distinguished,</p> <p>A verdict can only be directed where the evidence is undisputed, or so certain and convincing that a reasonable man could come to but one conclusion.</p> <p>The doctrine that one who has dealt with an agent in a matter within his authority has a right to assume in subsequent dealings with the agent, unless informed to the contrary, that the agency still continues, does not apply where the agent of an undisclosed principal afterwards embarks in a new enterprise in his own name, the fact that he was ever an agent being unknown to the party with whom he deals; hence, where an ice dealer delivers ice to the husband of the proprietor of a boarding house upon the sole credit of the husband and in ignorance of the fact that he is his wife’s agent, the wife is not liable for ice furnished by the. dealer, upon the husband's sole credit, to a hoarding house earried.on by the husband in.his own name at a different place from that in which the wife’s boarding house is situated, the ice dealer being unaware that the husband occupied a different relation to the new enterprise from that which he bore to the old one.</p> <p>The foregoing case distinguished from that of one dealing with a partnership, although unaware of the names of its members.</p>

Appeal by the defendant, Bead Gordon, from an order of the county judge of Sullivan county, entered in the office of the clerk of the county of Sullivan on the 24th day of September, 1897, denying the defendant’s motion for leave to interplead one Amanda M. Bills as defendant in the action.

Certiorari issued out of the Supreme Court and attested on the 26th day of January, 1897, directed to James A. Roberts, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings in assessing a franchise tax upon the relator for the year ending November 1,. 1895.

Appeal by the defendant, The Syracuse, Binghamton and New York Railroad Company, from an order of the Supreme Court, made at the Cortland Trial Term and entered in the office of the clerk of the county of Cortland on the 26th day of January, 1898, denying the defendant’s motion to strike the cause from the calendar of the January Trial Term. The defendant’s time to answer, which had been extended by order, expired on the 10th day of January, 1898.

Appeal by the plaintiff, William J. Burghen, from a judgment of the County Court of Erie county in favor of the defendants, entered in the office of the clerk of the county of Erie on the 18th day of Hovember, 1897, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury, and also from an order entered in said clerk’s. office on the 6th day of August, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Charles Z. Moers and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga on the 24th day of June, 1891, upon the decision of the court rendered after a trial before the court without a jury at the Cayuga Trial Term.

Appeal by The Buffalo General Hospital, a legatee under the will of Charlotte Kimberly, deceased, and John L. Kimberly and another, as executors, etc., of Charlotte Kimberly,-deceased, from, so much of a decree of the Surrogate’s Court of the. county of Erie rendered on the 2d day of.

<p>Town audit — a town board cannot be required to audit a claim a second time — a demand for a peremptory mandamus admits the truth of answering_ affidavits.</p> <p>A board of town auditors which has audited and reduced a claim presented by a physician for fumigating a house by direction of the town supervisor, and has , rejected, as unauthorized, his further claim for medical services rendered to a family, and has declined to pass upon the same bill when presented to it a second time, two years later, on the ground that it had already been audited, cannot be compelled, by a writ of mandamus, to audit the account at the full-amount thereof, as its former decision is conclusive until it is modified or . reversed upon a writ of certiorari.</p> <p>Semble, that where, upon the return of an order to show cause why a peremptory mandamus should not issue, the relator, after answering affidavits have -been read which conflict with the moving affidavits, demands a peremptory writ, his demand is equivalent to the interposition of a demurrer, and as to any disputed question of fact, the- allegations of the answering affidavits must be taken to be true.</p>

<p>■ Appeal by the defendant, The Fidelity Mutual Life Association of Philadelphia, Pennsylvania, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 27th day of May, 1897, for $2,213.33, and also from an order entered in said clerk’s office'on the 5 th day of June, 1897, denying the defendant’s motion fora new trial made upon the minutes.</p> <p>This action was brought to recover upon a certificate of membership in the defendant issued by it on the 9th day of January, 1895, in consideration of $11.26 paid that day and premiums to be paid subsequently on the life of James Hamilton, and an agreement to pay $2,000 in the event of his death to his wife, Lucie Hamilton, the plaintiff. The assured died on the 17th day of April, 1895.</p> <p>/ The answer of the defendant admits that it “ did receive one James Hamilton, of Buffalo, New York, as a member of defendant association on certain terms and conditions, and did issue its certain policy of insurance upon the life of said James Hamilton.”-</p> <p>The answer alleges: “ Said James Hamilton falsely represented and set forth in his application for insurance, upon which said policy was issued and which was incorporated in and made a part of said policy, that he, said James Hamilton, did not then use and never had used spirits, wines, malt liquors or narcotics, and had always been temperate and sober, except that he used about two or three glasses of beer a day; that as a matter of fact said Hamilton, at the time of executing said application and for a long time prior thereto, had been and was addicted to the use of spirits, wines, malt liquors and narcotics, and used the same or some of them, excessively, and, at the time of making the same, knew the said statements in said application relating thereto were false, and said Hamilton so made said false statements as aforesaid for the purpose of inducing this defendant to issue said policy; that all- of the statements so made as aforesaid in said application were material, and, relying upon the same as true, this defendant did issue said policy as aforesaid ; that by reason of said false and fraudulent statements so made by said Hamilton in said application as aforesaid, said policy became prior to and was, at the time of said James Hamilton’s death, and now is, hull and void.”.</p> <p>The policy issued by the defendant contained the following language : “ In consideration of the application for this policy, which is made apart hereof, and a copy of which is hereto attached, and the payment to said association of eleven and 26-100 dollars upon the ninth day of the month of January, April, July and October in every year for the period of fifteen years. * * * Does hereby receive James Hamilton of Buffalo * * * as, a member of said association, and issues this policy of insurance, and hereby promises to pay .the sum of two thousand dollars to his wife Lucie Hamilton ; * * . * subject, however, to all the requirements hereinafter stated, and the conditions hereon indorsed, which are. liéreby referred to and made a material jiart of this contract.”</p> <p>In the conditions indorsed on the policy are the following: “Fifth. No agent of the association has any power or authority to make, alter or discharge contracts, waive forfeitures or grant credit, and no alteration of the terms of this contract shall be valid, and no forfeiture hereunder shall be waived, unless such alteration or waiver be in writing and be signed by, the president of the association.</p> <p>“Sixth: If any statement contained in the application on which this policy is issued be untrue in any respect, then this policy, except as herein provided, shall be ipso facto null and void.”</p> <p>The application, in writing, made by James Hamilton and by him signed, is dated the 20th day of December, 1894, and in the 11th subdivision thereof appears the following:</p> <p>“11th. That I do not use, and never have used, spirits, wines, malt liquors or narcotics, and have always been temperate and sober, except as stated below; I use about two or three glasses of beer a day.”</p> <p>It also contained the following“I hereby agree and bind myself as follows: That the truthfulness of the statements above made or contained, by whomsoever written, are material to the risk, and are the sole basis of the contract with the said association ; that I have signed this application in my own proper handwriting; * * * that no verbal statement, to whomsoever made, shall modify this contract, or in any manner affect the rights of the association, unless the same be reduced, to writing and be presented to, and approved by, the officers of the association at the home office in Philadelphia, no agent or examiner having any power or authority to -make or alter contracts, waive forfeitures or grant credit; * * * and that if any concealment or untrue statement or answer be made or contained herein, then the policy of insurance issued hereon and this contract shall be ipso facto null and void. ”</p>

<p>Appeal by the defendant, Fred B. Keeney, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clei;k of the county of Allegany on the 19th day of June, 1897, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 26th day of July, 1897, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>This action was brought to recover damages for malicious' prosecution.</p>

Appeal by the defendant, The New York' Central and Hudson. River Railroad Company, from a judgment of the Supreme Court. in favor of the plaintiff, entered in the office of the clerk of the county of Genesee on the 3d day of June, 1897, upon the verdict of a jury for $4,000, and also from an order made at the Erie Special Term and entered in the office of the clerk of the county of Genesee on the 2d day of June, 1897, denying the defendant’s motion for a new trial made upon…

<p>Bxecutors — an oral renunciation of an executorship, made in open court, is valid, — review, by the Appellate Division of a surrogate’s exercise of his discretionary power to permit its retraction — oral retraction, when permissible. .</p> <p>Where, upon a contested proceeding for the probate, of a will, the executor named in the will declares in open court that if the objections to the probate of the will are withdrawn he will renounce as executor and consent that lettérs of administration, with the will annexed, be issued to himself and another, and such statement is accepted and at a later date acted upon by the surrogate and all the interested parties, the renunciation is as effective as though it had been evidenced by an instrument signed and acknowledged by the executor in strict accordance with the statute. (Code Civ. Proc. § 2639.)</p> <p>The Appellate Division will not interfere with the exercise by a Surrogate’s . Court of the discretionary power conferred upon it by section 2639 of the Code of Civil Procedure, relative to the acceptance of a retraction of a renunciation by an executor, unless it appears that the power was exercised in some improper way.</p> <p>Circumstances considered by the Appellate Division which justify a surrogate in declining to accept a retraction.</p> <p>' ■Semble, that where a renunciation is oral a retraction of it may be.</p> <p>Green, J., dissented.</p>

<p>Appeal- by the defendant, The Buffalo Office Building Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Erie on the 21st day of May, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of May, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by- the defendant, George. M. Pierce, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on- the 5 th day of November, 1897, striking out certain allegations contained in the defendant’s answer.</p>

<p>Appeal by the defendant, Emmett Armstrong, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Clinton on the 13th- day of January, 1897, upon the verdict of a jury rendered by direction of the court, establishing the validity of the probate of the last will and testament of Thomas Armstrong, deceased, with notice of an intention to bring up for review upon such appeal an order bearing date the 18th day of November, 1896, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>■ This appeal was transferred from the third department to the fourth department.</p>

<p>Liquor Tax Law — effect of a violation of the law by one partner, aftvr an assign ment of the certificate as collateral to a loan, and the issue of a rebate tax certificate —1896,- chap. 113, § 3o, and 1897, chap. 813.</p> <p>Where a liquor tax certificate, issued to a firm and assigned as security for a loan, is surrendered, and a rebate tax certificate is issued to the assignee, a violation of the Liquor Tax Law, by one member of the firm within thirty days thereafter, and before the rebate becomes due and payable, deprives the assignee of the right to the rebate.</p>

Certiorari issued oat of the Supreme Court and attested on the 25th day of June, 1897, directed to the board of fire commissioners •of the city of Auburn, commanding it to certify and return to the office of the clerk of the county of Cayuga all and singular its proceedings in regard to dismissing certain hose companies from the Auburn fire department, and dismissing the relators from service in said department.

Appeal by the defendant, Charles Flaherty, fr.om a judgment of the Court of Sessions of the county of Livingston in favor of the plaintiff, entered in the office of the clerk of the county of Livingston on the 9th day of October, 1895, upon the verdict of a jury convicting the defendant of an “ act of sexual intercourse with a female under the age of sixteen years, not his wife,” pursuant to which he was sentenced to imprisonment in .the State prison at Auburn for seven…

Appeal by the defendant, Jessie B. Wadsworth, from a final judgment of the Supreme Court in favor of the plaintiff, entei*ed in the office of the clerk of the county of Livingston on the 26th day of June, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of June, 1897, denying the defendant’s motion for a new trial made upon a case containing exceptions.

Appeal by the defendants, the Auburn City Railway Company and others, from an order of the Supreme Court, made at the JVIon-, roe Special Term and entered in the office of the clerk of the county of Monroe on the 20th day of November, 1897, denying the defendants’ motion to vacate a temporary injunction.

Appeal by the petitioner, Frank Place, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on' the 7th. day of June, 1897, denying the petitioner’s application to have canceled a liquor tax certificate issued to Frank Matty.,

<p>Eminent domain — exercise of the right by a railroad, corporation—deductions cannot be made for benefits to property from the "public use” — definition of the term "public use ” — rule of damages in cities distinguished.'</p> <p>The right of the owner of a farm, of which a portion is to be taken for the construction of a railroad, to ride oh such road or transport part of his property thereon upon payment of the established tolls, is a right of “public use,” the benefits arising from which cannot be considered by commissioners appointed in the condemnation proceedings.</p> <p>The term “ public use,” as employed, in the Condemnation .Law (Code Civ. Proc. § 3370), forbidding condemnation commissioners to make “ any allowance or deduction on account of any real or supposed benefits which the owners may derive from the public use for which the property is to be taken or the construction of any proposed improvement connected with such public use,” denotes such use as the landowner, as one of the public, has the right to make of the public improvement, in common with other members of the public.</p> <p>Semble, that the rules for determining, damages to improved city business real estate, resulting from the construction of street railroads, do not apply to farm property through which a railroad has been constructed..</p>

Appeal by the defendant, the Fort Plain and Richfield Springs Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 2d day of June,' 1896, upon the decision of the court, separately stating the facts found and the conclusions of law, rendered after a trial at the Oneida Special Term, foreclosing nine mechanics’ liens, and awarding damages in favor of lienors whose liens had ceased…

Appeal by the defendant, The Keystone Gas Company, from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk- of the county of Cattaraugus >on the 12th day of October, 1896, upon the verdict of' a jury for $2,650; also from an order entered in said clerk’s office on the 12th day of October, 1896, denying the defendant’s motion for a new trial made upon the minutes, and also from an order made at the Cattaraugus Special Term and…

Appeal by William H. Barr, the second purchaser at a sale under foreclosure, from an order of the Supreme'Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 5th day of November, 1897, setting aside the sale made under a judgment of foreclosure, and directing a resale of the premises.

Certiorari issued out of the Supreme Court and attested on the 19th day of May, 1897, directed to James K. McGuire, as mayor of the city of Syracuse, and Melvin Z. Haven, as city clerk of the city ■of Syracuse, commanding them to certify añd réturn to the office' of the clerk of the county of Onondaga all and singular their proceedings in regard- to the dismissal of the relator from the office of fire marshal of the city of Syracuse and the appointment of his successor.

Appeal by the defendant, Arthur B. Baker, from a judgment of the County Court of Niagara county, in favor of the plaintiff, rendered on the 14th day of June, 1897, and entered in the office of the clerk of the county of Niagara, upon the Verdict of a jury convicting the defendant of the crimes of burglary in the third degree and grand larceny in the second degree, and also from an order denying the defendant’s motion for a new trial.

Appeal by the plaintiffs, Octavius 0. Cottle and another, as executors, etc., of John J. P. Read, deceased, from' so much of a judgment of the Supreme Court in favor of the original plaintiff, John J. P; Read, entered in the office of'the clerk of the county of Erie on the 26th day of March, 1886, upon the decision of the court rendered after a trial at the Erie Special Term, as required him to execute a deed, and from so much as deducted from the amount adjudged to be…

Appeal by the defendant, Alvaretta Merrill, as executrix, etc., of Alvin Seamans, deceased, frotn an order of the Supreme Court, made at the Steuben ■ Special Term and entered in the office of the clerk of the county of Steuben on the 3d day of December,' 1897, denying her motion to vacate and- set aside the verdict of a jury in the action and all proceedings had thereon.

<p>Order affirmed, with ten dollars costs and disbursements, on opinion of the court below. Present</p>

Order affirmed, with ten dollar's costs and disbursements.— Appeal from an order denying appellant’s motion for a resale of real estate sold under the judgment herein.—

Determination appealed from affirmed, with costs.—Appeal from determination of the Appellate Term which modified a judgment entered upon the order made by the General Term of the City Court.—

<p>Judgment reversed, referee discharged and a new trial granted,- costs to abide the event.—Patrick Roach was the owner of a few acres of land in the town of Granville. It was bounded on the east by a highway. On May 2,1862, he conveyed a portion of these lands to Daniel I. Day, and retained the balance of them. The portion which he conveyed lay next south of that which he retained, and the question in dispute is where the division line between them should be located. By subsequent conveyances the part that Roach retained has been conveyed to the defendant in this action, and the part which he conveyed to Day is now owned by the plaintiff. The plaintiff claims that such division line should be located further north than the line down to which the defendant claims, and is now occupying. Plaintiff brings ejectment, and the referee orders judgment for the defendant. From such judgment plaintiff brings this appeal.—</p>

Judgment affirmed, with costs.— The controversy in this action arose out of a contract, of which the following is a copy: “This agreement, made this 24th day of December, A. D., 1884, between L. D..

<p>Judgment affirmed, with costs.</p>

<p>Order appealed from reversed, with costs, and case remitted to the Special '"erm for further action.—</p>

<p>Order affirmed, with ten dollars costs and disbursements.— Appeal by plaintiffs from an order of Special Term directing the clerk to tax costs to defendant under the provisions of section 3234 of the Code, and also amending the judgment as entered, so as to make it conform to the had at the-trial.</p>

<p>Orders affirmed, with ten dollars costs and disbursements • in each appeal.—•</p>