Volume 27 — New York Miscellaneous Reports

Action in equity to compel defendant to remove that portion of a wall, the eaves and cornice of her house which she .had placed upon and over the premises of the plaintiffs.

<p>Place of trial — Change of, in equitable action to restrain a nuisance — Common law action distinguished — Code Civ. Pro., § 968, subdv 2, 982.</p> <p>An equitable action brought to enjoin the continuance of a nuisance, consisting in an addition to the height of an old dam in Franklin county, which addition raises the water in Tupper’s lake and overflows lands of the plaintiff bordering on said lake and situated partly in Franklin and partly in St. Lawrence counties, is not an action “ affecting an estate, right, title, lien or other, interest ” in. the said lands, and, therefore, will not, at the instance of the defendants, be chánged from Kings county, the plaintiff’s residence, to St. Lawrence as the proper county under section 982 of the Code of Civil Procedure.-</p> <p>The action “ for a nuisance ” mentioned in said section is the common law action “ for a nuisance ” enumerated in subdivision 2 of section 968 of said Code and is triable by a jury; and said section 982 has no application to an equitable action in which a jury trial is not a matter of right.</p> <p>If such an equitable action as the present could be deemed one which affects the title or interest in real property, within the meaning of said section 982, such real property is the dam and the land to which it is appurtenant, which are in Franklin county.</p>

<p>Action for absolute divorce. Application to the court for judgment on default.</p>

<p>Practice — When, plaintiff will not be required, by motion, to state Ms residence by street and number.</p> <p>A motion by a defendant, a corporation, to require the plaintiff to furnish it his place of residence by street and number will be denied where it does not appear that the plaintiff’s attorney has, on request, refused to furnish these particulars.</p>

<p>Action for an injunction to restrain defendant from operating .its pumping station and driven wells at the ■ Spring Creek pumping, station of the defendant’s, water works in the borough of Queens, and for damages for loss of crops by reason of the drying up of plaintiff’s land.'</p>

<p>Motion to vacate a judgment.</p>

<p>Crimes — Habitual criminals as disorderly persons — Repeal by implication of chapter 357 of the Laws of 1873.</p> <p>The provisions of the Code of Criminal Procedure (§§ 510-514) de- ' daring adjudged habitual criminals to be liable to summary arrest and to punishment as disorderly persons were intended to cover the whole subject-matter of the previous legislation in this regard and therefore repeal, by implication, chapter 357 of the Laws of 1873 declaring that a professional thief, burglar, pickpocket, counterfeiter or forger, who has previously been convicted of any of those crimes and who is proved to have been frequenting or attending any hotel, or any of the other places named in the latter statute, for an unlawful purpose, shall be deemed a disorderly person and be punishable as such.</p> <p>A professional thief, burglar and pickpocket, twice convicted in the state óf New York for grand larceny and once for burglary, and found in 1899 in a city hotel, not being a guest, under circumstances tending to show that he was there for an unlawful purpose, cannot now be prosecuted under chapter 357 of the Laws of 1873, nor convicted under the Code of Criminal Procedure where he has never been adjudged an habitual criminal by the court which tried the indictment for which he was originally convicted.</p>

<p>Bail for jail limits —After six months a surety must return property taken as security. <</p> <p>Where an imprisoned judgment debtor is within the jail limits at the expiration of six months from the time of his arrest, the longest period of imprisonment permissible under section 111 of the Code of Civil Procedure, and no action is then pending against the sheriff for an escape, a surety upon the bail bond for jail liberties must reconvey to a person property which she conveyed to the surety as security against its liability upon the bond.</p> <p>The provisions of section 385 of the same Code, fixing a limit of one year for an action against a sheriff do not apply to such a state of facts nor afford any defense to the surety.</p>

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

<p>Costs — Merits of an order requiring the plaintiff to give security for costs not considered until a referee’s decision, on the -single question of residence, has been duly confirmed.</p> <p>Where the court, upon the plaintiff’s motion to vacate an order requiring her to give security for costs as a nonresident, refers the single question of residence to a referee under section 1015 of the Code of Civil Procedure for its own information, his report in favor of the defendant cannot be confirmed by the latter esc parte, and, until notice</p> <p>is given and due confirmation thereof had, the court cannot consider the merits of the original motion to vacate.</p>

<p>Lunatics — While the inquisition is in force, a settlement made with a lunatic is void and cannot be pleaded.</p> <p>The transferee of an adjudged lunatic will not be permitted to interpose, in actions brought by her committee to set aside said transfers, supplemental answers which allege a settlement entered into by the transferee with the lunatic pending the action and while the inquisition continued. Such a defense must be deemed frivolous as," during the life of the inquisition, the presumption .of insanity is conclusive.</p>

<p>Motion to discontinue the action, without costs, and to cancel, the notice of lis pendens filed herein. .</p>

<p>Place of trial — Occupation and residence, by street and number, of material witnesses must be shown.</p> <p>Upon an application to change the place of trial of an action, the moving papers should, where alleged material and necessary witnesses are residents of a city, show the street and number of their residences and state their occupations.</p>

<p>Demurrer to complaint.</p>

<p>Trusts — Determination by the failure of the beneficiary to perform its purposes.</p> <p>In 1865 a donor created in the plaintiff á trust to establish in a college a perpetual theological professorship. It appeared that" for at least ten years last past the college had maintained only a preparatory school for girls; that no theological department had existed during the same period; that it was not contemplated ever to revive of maintain one in the future, and that the college buildings were in use for other purposes.</p> <p>Held, that the conduct of the college amounted to a voluntary surrender of all benefits under the trust and that the trustee should be directed to transfer to the donor the corpus of the.trust and any accumulations.</p>

<p>Application for a writ of mandamus. .</p> <p>The opinion states the facts.</p>

<p>Costs —Taxation, where affidavit fails to show that items are “ reasonable in amount.”</p> <p>A county clerk in taxing a bill of costs, accompanied by an affidavit as to the necessity but not as to the-reasonableness of the items of disbursement therein, may disallow items of charge for printed papers because they are not satisfactorily shown to be “ reasonable in amount ”, but he is not authorized, because from his own knowledge of the subject he believes the charge to be excessive, to reduce the amount thereof.</p>

<p>"Motion by plaintiff for leave to amend-complaint..</p>

<p>Pleading — Amendment as of course.</p> <p>Where the time for joining an issue of law or of fact upon a pleading has expired and issue thereon has been joined, section 542 of the Code of Civil Procedure affords no authority for the amendment of the pleading, as of course, merely because issues upon a subsequent pleading of the same party have not been concluded.</p>

<p>Order of arrest—Not vacated for service of defective, copies.</p> <p>Where the original papers for an order of arrest are not defective, the order will not be vacated merely because the copies served on the defendant did not contain a jurat or verification. ' '</p>

<p>Demurrer to answer.</p>

<p>Proceedings for the final settlement of the accounts of David F. Wilber, as general guardian of Edith FT. Wilber, an infant.</p>

Motion on behalf of defendants Hoff for an order directing that all proceedings in above-entitled action subsequent to the death of Margaret E. Sherwood be vacated and set aside as irregular, on the ground that Margaret E. Sherwood was dead and her successors in interest had not been made parties to the action.

<p>1. Mortgages — Innocent mortgagee not bound by the knowledge o£ her agent.</p> <p>Where a mortgagee for value is innocent of the mistake or wrong of her agent, who, While having a pecuniary interest in the-matter, professionally advised' -the executors of a testator to pursue a method by ■ Which they might mortgage his real estate for the needs of a firm composed of the son and son-iñ-law of the testator, although they were given merely a power of sale to sell it for the purposes .of the estate, the mortgagee is entitled to rely upon an apparent execution of the power of sale by a deed from' the executors to a purchaser and she or her executors may enforce a first, mortgage given directly to herself by such purchaser.</p> <p>2. Same — Priorities as between a mortgagee and creditors whose proceeding to sell the mortgaged real estate for debts was dismissed and subsequently reinstated — Laches.</p> <p>Where at the time when the.mortgagee took her.mortgage no claim, of creditors was-by the record am apparent lien upon the real estate' of the testator, the fact that their application tó sell his real estate to pay Ills debts, theretofore denied by the surrogate, was subsequently granted on appeal to the extent of reinstating the proceedings, has not the effect of subordinating the claim of the mortgagee to that of the creditors and particularly where the latter have been guilty of laches.</p>

Two judgment-creditors’ actions brought after return of execution to set aside two assignments of book accounts of the J. C. Travis Company to Henry E. Jones, on the ground that they were void under the statutes of New Jersey and New York.

<p>Application for discharge of Frank Liatto on a writ of habeas corpus.</p> <p>Other facts appear in opinion.</p>

The plaintiff as assignee of the “ Lehigh Construction Company, Limited ” brought this action for conversion against the defendant who, as sheriff of -St. Lawrence county, seized property in possession of plaintiff, claiming it as the property of the “Lehigh Construction Company,-Limited.” A stipulation was entered into whereby the property was returned and $3,400 in money was deposited in lieu of it.

Morion in behalf of defendant to discharge an indictment against him for the crime of murder, first degree, in causing the death of of one Mrs. Adams, by sending through the mail, addressed to one Cornish, a poison package, and some of which poison Mrs. Ad arris, took and from which she died.

Motion to punish Charles M. Palmer, treasurer of the defendant The. Morning' Journal Association, for contempt in failing to produce before the referee appointed to take his deposition, certain books and records of the defendant The Homing Journal Association.

Motion to compel the defendant to elect between its answer and demurrer. ' The action is for the recovery of damages claimed in consequence of the defendant’s, alleged failure to deliver certain advertising .matter. / The material allegations of the complaint are, (1) that the plaintiffs are copartners; (2) that the defendant is a foreign corporation and a common carrier of goods for hire; (3) that for. a certain compensation it agreed to forward for the plaintiffs from the…

Motion to continue an injunction pendente lite. Counter motion by the defendant to set aside the service of the preliminary injunction order, for failure of service of a copy of the undertaking.

<p>The action was by the plaintiff as an attorney to recover $1,000 for professional services rendered under the following special contract:</p> <p>.'“We hereby retain and employ James A. Dennison, Esq., counsellor-at-law, to take such proceedings as to him may seem best to test the validity of the will of James W. Lawrence, and in consideration of his services rendered and to be rendered therein, we hereby promise and agree to pay to the said James A. Dennison, the sum of $3,000, being $1,000 for each of'us, of the money in any, manner obtained and recovered, it being understood and agreed that said James A. Dennison is to take, full charge of and manage said proceeding or proceedings; and if he is unsuccessful he-shall receive no compensation for his services.”</p> <p>The agreement was signed by three heirs of the testator, of. whom " the defendant was one.</p> <p>The plaintiff, under this contract, brought suit, which terminated in upholding the will and the trusts therein, except as to what the-plaintiff terms certain “ cross remainders,” which were declared void; The defendant received no present property or right of property, under the decision. ...</p> <p>The question was whether the. plaintiff had, under the . circumstances, earned his fee., ■</p>

Action by plaintiff for the purpose of establishing a trust relation between the plaintiff grantor and certain defendants as grantees.

<p>Special action, brought under sections 1837 to 1860 of the Code of Civil Procedure, to charge devisees of real estate with an alleged indebtedness of the testator to the plaintiff for which plaintiff had recovered judgment against the defendant Emily A. Burnham as executrix.</p> <p>The answers denied the indebtedness and set up the Statute of Limitations as a defense.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Action for specific performance. Facts appear in the opinion.</p>

<p>Action for dissolution of a copartnership and for an accounting. Pacts .appear in the opinion.</p>

<p>Motion for injunctloli pendente lite.</p>

<p>1.- Estoppel—-Banks.</p> <p>A stockholder who, upon the basis of proceedings dissolving a bank, has obtained an order .allowing him to intervene in proceedings to reach certain newly-discovered assets of the bank and to prove his claim therein, cannot subsequently attack the dissolution proceedings as void.</p> <p>3, Receivers—/When a discharged receiver will not be reinstated to earn fees. ■ •</p> <p>A receiver of a bank, who has been finally dischárged, will not be allowed to intervene in proceedings to reach newly discovered assets of the bank and to receive fees thereon, as he would have no authority to receive or pay out the fund and therefore could earn no fees.</p>

<p>Practice — Leave to serve supplemental answer refused — Requirements.</p> <p>A motion for leave to serve a supplemental answer will be denied where the proposed pleading has not been served and is not presented to. the court, and where there is no proof that an affidavit of merits has been served and filed as required by rule 23 of the General Rules of Practice.</p>

<p>1. Incompetent persons—Bight to select a new domicile after inquisition found.</p> <p>Where no committee of an incompetent person has ever been appointed by the Supreme Court of New York, the fact, that she was declared by it incompetent upon the return óf ■ an inquisition ' in lunacy, does not absolutely preclude her from the exercise of an intention to change her residence to another state, as her ability to choose a domicile still remains a question of fact.</p> <p>3. Same — Appointment of foreign committee — Jurisdiction.</p> <p>Where the incompetent person subsequently removed to another state and had sufficient ability to understand the removal and the foreign court determined that state to be the residence of her choice and first appointed a committee of her person and estate, it was considered that the foreign court had acquired jurisdiction first and that consequently the court of New York had power, under section 2326 of the Code of Civil Procedure, to appoint the foreign committee as committee of her property within the state, upon giving proper security.</p>

<p>Motion for security for costs.</p>

<p>Foreclosure — Demand of subsequent mortgagee against co-defendants.</p> <p>Although,. in an action of foreclosure, a subsequent mortgagee demands by his answer that his mortgage be next payable from the surplus and serves his answer upon all the defendants who have appeared and they fail to take issue upon it, he can obtain no relief until a referee has been appointed, a sale had and surplus proceedings taken, as there may be lienors, in priority to the answering defendant, who have failed to appear and, if there are any, they are entitled, under section 521 of the Code of Civil' Procedure, to be served with the answer. •</p>

<p>Negligence — Execution against the person.</p> <p>An execution against the person issued under a judgment rendered In an action based upon negligence will not be set aside merely because the negligence consisted in an omission rather than in a wilful wrong, as such a distinction is not recognized.</p>

<p>Interpleader.</p> <p>Where the plaintiff, by a verified complaint, claims a fund in the hands of a bank, his defeat on a motion to restrain the bank from paying a rival claimant does not of itself afford sufficient ground for the denial of a bank’s motion that it be allowed to interplead the rival claimants.</p>

<p>Inspection and discovery — Attempt' of moving party to discover whether his answer is true.</p> <p>Where the real purpose of the defendant, in moving for an inspection of the books of account of the plaintiff’s intestate, is to discover whether or not a certain allegation of the answer is true, the motion will be denied.</p>

<p>Annulment of marriage — Alimony and counsel fees.</p> <p>Where an actual marital relation has been admitted or shown and its existence is sought to be avoided by the husband upon the ground that when it was contracted the wife had a husband living, she is entitled to alimony pending his action to annul the marriage • and to counsel fees in order to defend the action.-</p>

<p>Executors and administrators—-Failure to collect — Proof of disbursements.</p> <p>Where an administratrix files no inventory! until she is forced to do so in a compulsory accounting and does not then include in it a note, of a solvent debtor, of whose existence she has long had knowledge and never makes any attempt to collect the note, although it was the main asset of the estate, she will be charged with the amount unpaid ■ upon it and. interest and will be denied commissions and costs. !</p> <p>Payments exceeding in amount $20 must be supported by' legal proof in order to be allowed an administratrix.</p>

Motion by the plaintiff for a review of a taxation of costs in favor of the defendant after a trial, in the County Court of Steuben county, of an action begun in justice’s court.

<p>Motion to continue an injunction pendente lite. The facts appear in the opinion.</p>

<p>Motion by the plaintiffs at Special Term for the áppointment of a receiver -of the defendant corporation -the Hoffman House, Hew York, and. for an injunction 'restraining the" defendants' from- interfering with the' property' of the said defendant corporation pendente-.liie.</p> <p>The -facts- of the case, so far as they are. material,, are stated in. the opinion.</p>

This action is brought to recover a balance claimed to be due upon a bond executed by the defendant to the plaintiff’s assignors in the sum -of $20,000, to secure the payment of which a mortgage covering certain premises in the city of New York, of even tenor and date with the said bond, was given as,collateral security..

<p>City of New York — “ The speedway ” may be used by one riding on a horse or in a landau, but not upon a bicycle.</p> <p>The purpose of the public driveway in the city of New York, commonly called “ The Speedway”, so far as disclosed by the act under which it was established (Laws of 1893, chap. 102, as amended by Laws of 1894, chap. 8) was not to afford a place for speeding horses but for “ riding by equestrians and driving of carriages”, and the city park department cannot prevent a person, during such reasonable hours of use as the department may fix, from riding over the driveway on horseback or in a landau, but may forbid the use of a bicycle.</p>

Applications argued together, for peremptory writs of man-damns to compel the. reinstatement of the relators as deputy tax commissioners in the department of taxes and assessments in the city of Mew York.

<p>Civil Service Law — Becreátion-pier attendants in New York city may be removed summarily after the close of the piers for the season — Laws of 1898, chap. 186.</p> <p>Récreation-pier attendants serving on New York city piers, which are open only from May to November, may be summarily removed by the city dock commissioners on November .18, and are not protected in their positions by chapter 186 of the Laws of 1898, requiring a statement of the reasons for. removal and giving the incumbent an opportunity for explanation. ¡</p>

<p>Civil Service Law—Laches in moving for reinstatement — Insufficient excuse for delay.</p> <p>A keeper in the department of correction in the city of New York, in the competitive class, who, after having been summarily removed on March 31, 1898, delays taking proceedings for his Reinstatement for more than four months thereafter, can obtain no relief; and his . explanation, that the delay. was caused by a difference of opinion as , to whether chapter 186 of the Laws of 1898 applied to the city of New York, must be deemed insufficient where it appears that for more than six weeks before he commenced, his proceedings the weight of judicial authority was against him;</p>

<p>Motion to confirm referee’s report. Facts appear in the opinion.</p>

<p>Application to amend decree on accounting, by reducing commissions allowed. Facts appear in opinion.</p>

<p>Distribution, under common law — Assets of - intestate married woman.</p> <p>Where a married woman dies beiore her husband, in'testate.and without descendants and while a resident of a state where the common law prevails, her choses in action which her husband had never reduced to possession during his lifetime will pass to his and not to her next of-kin.</p>

<p>Appeal from a judgment rendered in a Justice’s Court.</p>

<p>Motion to set aside an ex parte order requiring the justice to make and file his return.</p>

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

<p>Brokers — When commissions are earned — Contract not binding a club to the purchase of realty.</p> <p>Where a broker seeks to recover commissions, for procuring an incorporated club as the purchaser of the real estate of a client, he must show that the person who proposed to sign the contract in behalf of the club was' duly accredited agent, and further that the club was financially able to complete. A club constitution which</p> <p>merely provides that its" board of trustees “ shall have the control and management of its property, funds and affairs ” affords no authority to the trustees, nor to a site committee appointed by them, nor to its chairman, to sign a contract for the purchase of real estate and bind the club thereby. .</p>

<p>Negligence — When servants of the same master are not engaged in the same common employment.</p> <p>A hod-carrier engaged in building a brick wall and the driver of a truck used in a meat business, although hired by the same master, are not fellow servants, engaged in the same common employment, in such a sense as to preclude the hod-carrier from recovering damages of the common master for the negligence of the driver in directing his truck against a ladder which the hod-carrier was descending, and thereby throwing it and him to the ground to his serious personal injury.</p>

<p>Evidence — Transactions with, a deceased person — Code Civil Procedure, § 829.</p> <p>Where a chattel mortgagee brings an action against the executrix of a deceased person for the' alleged conversion by the deceased of the chattels mortgaged, the mortgagor is, as a person through whom the plaintiff derives title, debarred by the provisions of section 829 of the Code of Civil" Procedure from testifying on behalf of the plaintiff to a personal transaction or communication which she had with the deceased, tending to. show that she sold and delivered the chattels to him, and that he took possession of them.</p>

<p>Appeal from an order requiring plaintiff to file security for costs.</p>

<p>Appeal from a Special Term order granting, a discontinuance.</p>

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

<p>1. City Court of Hew York—Severance of action is discretionary and not appealable.</p> <p>An application to the City Court of the city of New York made by the plaintiff for the severance of an action as to certain counterclaims is addressed to the discretion of that court and is not appeal-able.</p> <p>8. Foreign corporation — Defense that it has not capacity to sue is not sham.</p> <p>A verified allegation upon information and belief that the plaintiff, a foreign corporation, had not capacity to sue on a contract made in the State of New York because it had not complied with and was acting contrary to our statute relative to the transaction of business in this state by such corporations, cannot be stricken out as sham, as the defendant is entitled to a jury trial of such a defense.</p>

<p>1. Supplementary proceedings — Failure to notify debtor of application for receiver not reviewed collaterally.</p> <p>Semble, th'at in supplementary proceedings, unless it is shown that the judgment debtor cannot be found within the State of New York, she is absolutely entitled to notice of an application for the appointment of a receiver of' her property, but where the order appointing a receiver contains an unjustifiable recital that she cannot be found within the State and no appeal is taken from the order, the defect . cannot be reviewed in a collateral proceeding.</p> <p>2. Same — Waiver of the right to have title to property determined by an action — Jurisdiction.</p> <p>A disputed claim to a deposit in a bank should be determined by suit and not on a motion; but where the alleged true owner petitions the court to determine the question of ownership and makes proof of her claim under an order having that object in view, she can-' not after defeat insist that the court had no jurisdiction.</p>

<p>Appeal from a determination of the General Term of the City Court of the city of Hew York, affirming a judgment of the Trial Term, dismissing the complaint.</p>

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

<p>1. 'Sales—Inspection of goods manufactured.</p> <p>TKe vendee is entitled to a reasonable time to inspect manufactured iron beams to the end that he may determine whether they are under weight, but he must act promptly.</p> <p>2. Same — Measure of damages where iron beams, not inspected, were set the next day — Damages too remote.</p> <p>Where servants of the vendee inclosed iron beams, under weight, in the brick and mason work of his "building on the next morning after their delivery, the court considered that the vendee might be allowed as damages the difference in the value of the iron beams and also' the cost of transporting them from the dock of delivery to the building, but held tl\at items of expense for setting the beams, removing them, and'rebuilding a wall in which new- beams were placed, were too remote and were damages which could not naturally be expected to flow from a violation of the contract.</p>

<p>1. Municipal Court of the city of New York — Denial, of. or information sufficient to- form a belief, inadmissible.</p> <p>A denial of any knowledge or information sufficient to form as to the truth of the allegations of the complaint is a form . not permissible in the Municipal Court of the city of New</p> <p>2. Defense of another action pending.</p> <p>A defense that another action is pending between the -sam - SUIB8C[ for the same cause cannot be stricken out as insufficient.</p>

Appeal by the defendant from a judgment of the Municipal Court, eleventh district, borough of Manhattan, rendered in favor •of-the plaintiffs,

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

<p>Joint debtors — Defenses of unserved joint debtor — Statute of Dimitations — Merger.</p> <p>On May 3, 1892, the plaintiff recovered, in a New York city court not of record, on a note made by the firm of A. S. and S. S., a judgment which was in form against both, although only A. S. has been served with the'summons. On the basis of this judgment the plaintiff on April 21, 1898, recovered a second judgment against A. S. alone. On May 5, 1898, the plaintiff brought the present action, under Code Civil Procedure, § 1937, to charge S. S. alone, who pleaded the statute of limitations to the original debt and also a merger of the cause of action in the judgment of April 21, 1898, recovered against A. S.</p> <p>Held, that the Code of Civil Procedure had not enlarged the rights of an unserved joint debtor.</p> <p>That S. S. could not, under Code Civ. Pro., § 1939, plead the statute to the original debt as that defense did not, as appeared, exist when the original action was brought.</p> <p>That the defense of merger was untenable, as the plaintiff, by entering his original judgment against both joint debtors, had preserved his rights against both; and that the subsequent judgment against A. S. alone, obtained by the plaintiff solely to prevent the extinguishment of his remedy against that debtor, could not be invoked by S. S. to defeat the plaintiff’s right against the latter. MacLean, J., dissented.</p>

<p>Common carriers — Bight of consignee to. inspect, before acceptance, goods which appear to have been totally damaged in transit — Bejection.</p> <p>Where the outward indicia tend to show that dress skirts, shipped to and rejected by a customer of a dressmaker, have been so damaged in transit on their return to the latter by express that they are un-' salable, she has a right to inspect them before accepting.</p> <p>Where inspection is refused her and the loss -subsequently proves to be total, she is justified in rejecting the goods absolutely when tendered, as nothing which she could do. would lessen the loss or diminish the carrier’s liability to her for the valué.</p>

<p>Bailments — Liability of storekeepers for a customer’s purse left in a fitting room.</p> <p>The general liability of a storekeeper to customers is that, while the latter are on the premises, no harm shall come to them that can reasonably be averted, and there is also a liability, for a limited time, to care for garments and articles which customers habitually wear, or carry, and necessarily lay aside to effect purchases.</p> <p>Where, however, a customer of tailors, of her own motion, leaves her purse in their fitting-room which up to that time she had not been invited to enter and, because of the presence there of a male fitter, goes back into the adjoining waiting-room, and after being subsequently invited by the forewoman to return to the fitting-room to be fitted, finds that her purse has disappeared from that room, she cannot recover the value of the purse from the tailors, as there was no necessity for her to lay it aside until she entered the fitting-room for the second time.</p>

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

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

<p>Dispossession of monthly tenant holding over in the city of Hew York — Hotice of termination of tenancy.</p> <p>Proof of due service of the written statutory notice of five days, that the landlord elects to terminate the tenancy of a monthly tenant in the city of New York, who holds over his term, is a condition precedent to the granting of a final order of dispossession.</p>

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

<p>1. Insurance — Brokers for the insured are not subject to the prohibition and penalty of Laws of 1892, chap. 641, § 1.</p> <p>An agreement by insurance brokers, to procure for an owner of property insurance in certain companies at an uniform rate of one per cent., without regard to the rate charged by the companies, is not a violation of section 1 of chapter 641 of the Laws of 1892, making it unlawful and a misdemeanor for “ any fire insurance company, or for any officer, manager, agent or other representative of any such company, to include in the sum charged- or designated in any policy, as the consideration for insurance, any fee, compensation, charge or perquisite whatsoever ”, as the statute is intended to apply only to employees or representatives of the insurer and not to those of the insured. '</p> <p>■ 2. Same — Penal statute not enlarged by importing a definition of an “ agent ” contained in another statute (Laws' of 1892, chap. 690, § 49).</p> <p>A penal statute is to be strictly construed, and the definition of an “ agent ”, as contained in section 49 of chapter 690- of the Laws of 1892, will not be imported into chapter 641 of Laws of 1892 in order to bring agents of the insured within the penalty of that statute and defeat a recovery by them on the agreement. t</p>

<p>Principal and agent — A mere salesman cannot bind his principal to ■ accept payment in a medium other than money. •</p> <p>A mere salesman of a liquor dealer has no authority to bind his non-consenting principal to an-agreement that, instead of cash being paid by the vendee for whiskey sold,- payment shall be made by permitting the dealer to use the outer walls of the building Of the vendee for advertising purposes.</p>

<p>Corporations'—Directors cannot alone make a lease which, inyolves an abandonment of the purposes of the corporation for five, years — Injunction.</p> <p>The board of directors of a corporation created, “ for the purpose of acquiring,, etc., mineral lands and other real property on Baranoff Island,. Alaska, and elsewhere in the United States and territories that, may be determined by the company, to mine, et cetera; such lands ”, has no power, without the consent of all the stockholders, to lease for five- years mines on Baranoff Island, acquired by an exchange of practically all its stock and in whose development all contributions to its treasury have been expended, as such a lease in-, volves á practical abandonment for five years' Of the prosecution of the' purposes for which the corporation was created. The consummation of such an- agreement will, at the suit of a stockholder, be restrained by a temporary injunction.</p>

<p>Demurrer by defendants to plaintiffs’ complaint.</p> <p>Other facts appear in opinion.</p>

<p>Demurrer by plaintiff to several portions of the amended answer of the defendant Schreyer.</p>

<p>Motion to compel plaintiff’s 'attorneys to produce written evidence of their authority to bring suit, and also to stay proceedings until costs in a previous action have been paid.</p>

<p>Action by grantor .. to set aside a trust deed —Undue influence and constructive fraud.</p> <p>Where an unmarried woman,, aged thirty, transfers her property, without receiving any consideration therefor, to ■ a trust® company upon the trust that it pay her the income for life and, failing issue upon her part, that it pay the principal at her death to the issue of her uncle, and it appears that her uncle was. her. sole a.dviser,- and that she executed the trust deed at his earnest solicitation and that of his wife, and that she did not then understand that it was an irrevocable disposition of her property, and that when she did so understand she promptly brought action to have the deed set aside, such relief will be granted her, as it cannot be said that the contracting parties dealt oñ a footing of equality, even though no actual fraud is shown.</p>

<p>- Action upon. a. covenant against incumbrances contained' in a ■ deed.</p>

<p>1. Reinsurance — Is a contract of indemnity and is to be construed liberally. '</p> <p>Reinsurance is a contract of indemnity between the original and collateral insurer by which the former is to be indemnified by the latter as to the risk undertaken; such a contract is to be construed liberally and, so far as is just, in such a manner as to afford the greater indemnity.</p> <p>¡2. Action against reinsurer — Establishment of loss by judgment — Statute of Limitations.</p> <p>After a vessel had been damaged at sea the consignee of the cargo insured, and which had been partially reinsured, gave a general average bond upon which the owners of the vessel sued and made .the insurer a party as garnishee. The latter defended upon the ground of unseaworthiness and after thirteen years of litigation was defeated. It- thereupon paid the judgment and sued the reinsurer for its proportionate share of the loss. Held, that it was not necessary for the insurer to sue when the loss occurred, that it was entitled, before seeking indemnity, to wait until the loss had been established against it by the judgment,-, and tháj: the statute of limitations began to run against the insurer only from the latter date. ■:</p>

<p>Action to restrain use of the title “ New York Polyclinic ” in a medical journal — Breach by licensee of his promise to publish monthly.</p> <p>Where a person agrees with “ The New York Polyclinic ” to publish at his own expense a medical journal, having the title “ New York Polyclinic ”, on the fifteenth day of every month, with a proviso that the right to use said title remains in “ The New York Polyclinic ” and may be prohibited if the person fails, to carry out his agreement, his failure to publish a regular monthly number, not caused by the act of God, nor of' the law or of the other patty,.puts him' in défaiult and entitles the successor of “The New York Polyclinic” to enjoin him from further use of the title “ New York Polyclinic ”.</p>

<p>Mistrial — Failure of jury'to agree except on. one issue decided by the court. '</p> <p>Where issues are Settled, in an action for an absolute divorce, for a trial by jury and- the jury disagree except as to-'one of the charges made, in- regard to which they Were directed to Arid for the'defendant, there is a. mistrial and no judgment Whatever can be entered. ■</p>

<p>Motion .by the plaintiff for a peremptory' mandamus commanding the defendants, constituting the civil Service board of the city of Syracuse) to forthwith make and deliver to the common council of said city their certificate that the relator, Peter Tobin, has passed an examination for merit and fitness for the position of assistant custodian of the City Hall, pursuant to-the provisions of the Civil - Service Act; that he is an honorably 'discharged veteran .of the .late civil war; that his rating for said position is the highest of any veteran on the eligible list, and that he is entitled to be appointed-to said office. ’ "</p>

This action is brought; to foreclose á mortgage executed by Frances L. Daggett to. the plaintiff.

<p>Demurrer to complaint.</p>

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

<p>Remainder — Invalid execution of a power to appoint the amount of a vested remainder.,</p> <p>Where a testator gives his widow a life estate in all his property and to his four, children vested remainders in such proportions as .the widow may appoint by. will, she cannot defeat the remainder of a child, who died- before her and devised bis share to his widow, by creating in her own will a trust, as to the child’s share, which has the effect of- diverting from his widow and devisee all the prim cipal and a part of the income. -</p>

<p>Action to foreclose a mortgage.</p>

Action to compel the payment and distribution of an award made in proceedings, instituted by the City of Hew York to acquire certain lands for park purposes, pursuant to. chapter 746., Laws 1894. -

<p>Motion to compel purchaser to complete. purchase.</p>

<p>Demueeer to complaint.</p>

<p>Action to establish and enforce a mutual agreement respecting the disposition of several estates.</p>

These are proceedings to review upon writ of certiorari the assessment of relator’s property iñ said town of Sullivan, for the year. 1897.

<p>This is an action for partition and- a motion is made by the defendant Birch to have her default in pleading herein opened.</p>

This is an appeal from a judgment rendered before O. S. Evans, a justice of the peace of the town of Remsen, on the 2d day of' April, 1898, in favor of plaintiff for $50 damages and $4.35 costs. The complaint alleged two canses of action. First.

This is a motion to confirm the decision of the commissioners appointed to determine the necessity of a proposed highway in the town of Copake, Columbia county, and to assess the damages by reason of the laying out of said highway. The commissioners decided in favor of laying out the highway and assessed the damages.

Action to recover a quantity.of coal levied upon and. sold by the collector of taxes of Union Free School District No. 1, town- of Harrietstown, for the nonpayment of a school tax ¿ssessed against real estate belonging to the 'plaintiff’s wife.

Proceedings upon a writ of certiorari granted by the county judge of Monroe county to review the action of John B. Hamilton, as county treasurer, in refusing; to issue a liquor tax certificate to the relator.

<p>Appeal from ajudgm'eñt entered on the verdict of a jury.</p>

<p>City Court of New York — Security for costs from non-resident administrator.</p> <p>An administrator, not residing in the county of New York, who brings an action in its City Court may be required to give security for costs, although the matter in suit, a deposit in a city savings Dank, is located in the city of New York and he has been appointed administrator by the Surrogate’s Court of that county. .</p>

<p>1. Former adjudication.</p> <p>The recovery of a judgment upon the first of a series of three notes, given at the same time and under the. same circumstances, is an ' adjudication between the parties which precludes the maker from setting up against another one of the notes a defense which, if it existed at all, existed against the first note.</p> <p>2. Amendment — A new defense cannot be interposed.</p> <p>On a motion to conform an answer to the proof, an entirely new defense cannot be interposed.</p>

<p>Trial — Improper comment of court cured by the charge.</p> <p>The error of the court in saying, upon the trial of an action for negligence, to the .plaintiff's counsel “ You have evidence of the injury sufficient for a. big verdict, if'the jury believe it”, is cured where the court subsequently instructs the jury to 'disregard the remark entirely and informs them that they are the sole judges of the facts.</p>

<p>Action on written contract — Where the only issue is performance, a waiver thereof cannot be shown.</p> <p>Whére the only issue raised by the pleadings in an action is the performance of a written contract, the plaintiff cannot introduce evidence tending to show that" the defendant waived performance.</p>

<p>Supplementary proceedings — Punishment of debtor for wilful failure to appear. *</p> <p>Where the wilful failure of a judgment debtor to appear for examination on the return day' of an order in supplementary proceedings is not shown to have prejudiced the judgment creditor, the debtor should only be fined such an amount as would repay the attorney for the creditor his costs and expenses.</p>

<p>Supplementary proceedings — Service of notice of application for a • receiver.</p> <p>The personal service, upon a judgment debtor of a notice of an application for the appointment of a receiver of his property, required by section 2464 of the Code of Civil Procedure, is not satisfied by the service of such notice upon the attorneys for the judgment debtor in the action in which judgment was recovered against him.</p>

<p>Petition to revoke a liquor tax certificate.</p>

<p>Writ of habeas corpus for the discharge of the petitioner from imprisonment in the Brooklyn Disciplinary Training School.</p>

<p>1. Practice — General appearance in an action is not shown by the service of motion papers — Code Civil Procedure, § .421.</p> <p>Where a defendant has not appeared in an action nor served a copy of a demurrer or answer, service of motion papers upon-, his part does not constitute a general appearance.</p> <p>2. Lis pendens — Cancellation for failure to serve summons — Code Civil Procedure, §§ 1670, 1674.</p> <p>A Ms pendens will, be canceled where no one of the defendants has been served with the summons, and none have appeared, within sixty days after the filing of the Ms pendens.</p>

<p>Mandamus, peremptory — Allegations of opposing affidavits must be taken to be true — Application of a district attorney to be admitted at all times to a criminal court — Whether the right of a citizen “ freely to attend ” all courts can be qualified by a custom of excluding all persons during the charge of the jury?— Alternative mandamus.</p> <p>An application by the district attorney of the county of New York for a peremptory mandamus, compelling the recorder of the city of New York as presiding judge of a part of Court of the General Sessions of the Peace to admit the- district attorney to said part at ¿ny time when it might be in -session, will be refused where tlie allegation of the moving affidavit* that the recorder had directed his court attendants not to let the district attorney or any one enter the court while the recorder was charging or was about to charge -the jury, is denied, as, for the purposes of the motion, the denial must be taken to be true. ■</p> <p>• The question, whether the statutory right of every citizen to “ freely attend ” the ¡sittings of every court within the State of New York, save only in certain cases ■ excepted by section 5 of the Code of Civil Procedure, can be in any manner' qualified by an alleged custom in the county of New York of closing the doors of, the court rooms of certain' criminal courts when, and -so long as the court is charging the jury, is one of public interest, ahd therefore- an alternative mandamus will be issued to the end that the court may be advised whether such a custom exists and is reasonable, and .further so that the facts touching the threatened'exclusion of the district attorney-may be duly established. .</p>

Action by a creditor against the stockholders of a banking corporation to recover for each the par value of their stock, or so much thereof, as may be necessary, in addition to whatever may be realized by the receivers to pay claims of creditors.

<p>Libel — A defense which, is insufficient will not be stricken out.</p> <p>, The complaint in-an. action of libel pleaded, in the .form of an innuendo, that the meaning of the language used in the defendants , newspaper was, and that the defendant thereby Intended to irn..pute against the plaintiff, that, upon the trial ¡of an action ¡for ab¡splute divorce between persons named Cruikshank, flashlight .photographs were introduced in evidence which revealed the figure of the alleged guilty husband disrobing at night in an apartment of the plaintiff, whom the wife had charged to be his paramour; and it was further alleged that said photographs “ furnished evidence thqt said William J. Cruikshank and this' plaintiff had been guilty of illicit sexual relations and adultery”. A separate defense alleged “ that it was also true and testimony was given upon the trial of the said suit for divorce in substance as follows: That the defendant in that action was seen disrobing in an apartment in the house of the plaintiff herein, and that photographs were taken of such house ”.</p> <p>Held, that a motion to strike out the defense must be denied. That, as it did not allege that the plaintiff had committed adultery, it did not amount to a defense and that the plaintiff’s proper course was to take that objection on the trial, not having demurred.</p>

• Peoceediegs under writs of certiorari granted by William E. Werner, a justice of the Supreme Court of the seventh judicial •district of the state of New York, to review the action of the sev•eral county treasurers in refusing to issue liquor tax certificates to ■certain relators.

<p>1: Action to determine a claim to real property — Code Civ. Pro., § 1639, .subd. 2 — Presumption of survivorship iñ case of fire.</p> <p>Where a widow and her children perish in the same fire, there, is, in the .absence of any proof of the fact, no presumption that the widow survived her children.</p> <p>2. Same — Possession.</p> <p>The possession, during one year next preceding the. commencement of an action to determine a claim to real property, which is ■necessary to the maintenance of such an action, is sufficiently shown by proof that a tenant of the plaintiff’s grantor fenced the property and used it for at' least' a year for pasturage and as a yard for stock, although the tenant never recognized the plaintiff’s title nor knew that the property had been conveyed to her!</p> <p>3. Same — Tenant cannot dispute landlord’s title — Attornment to a stranger..</p> <p>A tenant cannot dispute the title of- a landlord under' whom he has gone into possession, nor claim under any new title until he has renounced the former one.</p> <p>Where the relation of landlord and tenant is established, the possession of the tenant is that of the landlord; and the Real Property Law (Laws of 1896, chap. 547, § 194) forbids the tenant from severing the relation by attorning to an adverse claimant.</p> <p>4. Same — Deed by one out of possession.</p> <p>A grant of property in the actual possession of an adverse claimant is void under section 225 of the Real Property Law.</p>

<p>Application for reduction of assessment of the Bronx- Gas & Electric Company for the year 1898..</p>

<p>1. New York city — Valuation under Riverside Park Extension Act, Laws of 1894, chap. 158.</p> <p>The valuation of lands taken under the Riverside Park Extension ■ Act (Laws of 1894, chap. 152), including that of lands under water, should be made as of the date of the passage of the act and not as of the time when the lands were taken, and nothing should be added for interest on the awards nor for taxes paid, after having deducted rentals received.</p> <p>2. Same — Compensation of riparian proprietors.</p> <p>Where the rights of riparian proprietors, claiming under a city grant extending into the Hudson river to the bulkhead line" of 1857 and .granting rights of wharfage and cranage, are taken by the city under a subsequent grant from the State, the proprietors are entitled to compensation for such rights and lands as were actually taken, but can .obtain no compensation for lands outside of and. beyond the • boundaries of their grant or for rights incident thereto, which resulted from the establishment by Congress in 1888 of a new and exterior bulkhead line.</p>

<p>Motion of National Surety Company for leave to come in and defend an action of replevin in which it had become surety for the defendant upon his undertaking, given to reclaim chattels which had been replevied by the plaintiffs. The affidavits upon which the motion was made alleged the insolvency of the defendant, that it would not, according to its own statements, proceed with the defense of the action, that the goods in question were not the goods of the plaintiffs, and had been seized under a second writ by another party.</p>

<p>Demurrer to complaint.</p>

<p>Action to restrain an exchange from excluding outsiders from doing business on the floor.</p> <p>A dispute having arisen between members of New York Produce Exchange and merchants for whom they had acted at said exchange as brokers, the matter was arbitrated by a committee of the exchange but the merchants would not accept the decision and defended an action brought by the brokers for the award made. At the instance of the brokers the exchange subsequently duly prohibited all the members from doing business on the floor for the merchants and the latter thereupon brought an action to enjoin, the exchange from excluding them in this manner.</p> <p>Held, that as the action of the exchange appeared to be regular and as the merchants were not members thereof they had no status-to regulate its manner of conducting business.</p> <p>That the question whether the decision of the exchange committee-could be supported on its merits was not at issue and should be-decided in the action to recover the award.'</p>

<p>Greater New York charter, Laws of 1897, chap. 378, §§ 898, 906, 908 — Review of assessment for overvaluation and for inequality — Proof of overvaluation — When further testimony will not he taken — Proof of inequality.</p> <p>Where a review by certiorari is sought, under the Greater New York charter (Laws of 1897, chap. 378, § 906), of an assessment of • real property on the ground of overvaluation, the taxpayer must show that the valuation exceeded the market value, and where he presents no evidence on this point and rests his contention upon his own opinion and upon the fact that in former years his assessments were much lower, .there is no ground for interference by the court with the decision of the tax commissioners. Section 898 of said . charter does not make it- the duty of the -city tax commissioners,</p> <p>' upon the presentation to them of the petition of one aggrieved by an assessment, to cause testimony to be taken with respect to the complaint and the burden is upon the taxpayer to - take the initiative.. The court has power, upon certiorari, to direct evidence to be taken with regard to the complaint, but whether this shall be done rests in sound discretion.</p> <p>Testimony will not be ordered taken where the necessity for supplementary proofs arises from the Inexcusable failure of the taxpayer properly to submit bis case to the tax commissioners in the-first instance. Under section 908 of said charter an assessment is-now reviewable for inequality, but a taxpayer cannot obtain the-advantage of this provision unless his petition specifically states-the instances in which such inequality exists and the extent thereof ”, .....</p>

Action to set aside assessment made for the opening of South. State street, in the city of Syracuse, and to enjoin the collection thereof.

The only question raised upon the accounting of Mr. Barker, as trustee, is as to the application of certain .moneys, still in his hands. A contest arises here between Sarah A. Yates, the mother of Alonzo 0. Yates, and Leila M. Yates, his wife, as-to whether ■ the moneys so on hand shall be. applied to the reimbursement of the mother for certain expensés • incurred in connection with the death and burial of-Alonzo. 0. Yates.

<p>Motion by defendant for a bill of particulars.</p>

Demurrer by defendant to the amended complaint, on the ground that it does not state facts sufficient to constitute a cause of action. Facts fully set forth in opinion.

<p>Action against a contractor and his sureties upon a bond given to discharge a lien for a public improvement.</p>

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

<p>Calendar practice — An potion asking relief against trustees, additional to a money judgment, is triable at Special Term — Equity.</p> <p>The complaint in an action against trustees alleged a trust whi<jh the plaintiff had created for his 'own benefit and in which his wife had a contingent interest. It alleged that, provided the plaintiff had not wilfully deserted his wife, the trustees were to pay him a fixed sum per year; it denied desertion, alleged that he had been paid nothing for three years, demanded the sum due, and further that, if the trustees had not money sufficient to pay the claim, they be directed to sell so much of the principal as was necessary for that purpose, The wife answered, alleged wilful desertion, set up other defenses and a counterclaim and also asked equitable relief. Her motion to strike the case from the equity calendar was denied.</p> <p>Held, that the' denial was proper as the. plaintiff asked relief other than a money judgment, demanded no judgment against the trustees personally, and sought only to compel them to perform the terms of the trust.</p>

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

<p>Attorney of record — His right to receive payment of Ms client’s mortgage debt on premises partitioned — Construction of Code Civ. Pro., § 1580.</p> <p>A referee in an action of partition is protected in paying to the attorney of record, for ail the plaintiffs, moneys in part payment of a mortgage held by one of the plaintiffs and which was a lien upon one of the parcels partitioned, and, as an attorney of record has authority to receive money for his client, the fact that the money was in part at least realized from the sale of parcels upon which the mortgage was not a lien, does not change the rule.</p> <p>Such a payment does not fall within the provisions of section 1580 of the Code of Civil Procedure directing that in actions of partition “ the sum chargeable upon any share, to satisfy a lien thereon, musbe paid to the creditor, or retained subject to the order of the court,” etc.</p>

<p>This is an action brought to foreclose a mechanic’s lien. The plaintiff furnished materials to one Margaret McCarthy who’ was a subcontractor under one Patrick Gallagher, who was the principal contractor, with the'mayor, aldermen and commonalty of the city of New York, through its board of education, for the erection of a school building on the southern side of Rivington street, between' Forsyth and Eldridge streets in said city of New York. The performance of the work by the contractor is admitted, and the furnishing of the materials by the plaintiff for which its lien was filed is not disputed. The defendant, the city.of New York, which is the successor of the mayor, aldermen and commonalty of the city of New York, has in its hands sufficient of the moneys due said Gallagher to pay plaintiff’s claim, interest and costs. The question whether the .plaintiff is entitled to recover dr not, arises out of the fact that said subcontractor, Margaret McCarthy, to whom the plaintiff furnished the materials for which its lien is filed, made a' general assignment for the benefit of creditors to the defendant, Alfred Bienhauer, on the 6th day of May, 1898. The plaintiff’s notice of lien herein was filed on the 24th day of May, 1898. The contest is between the plaintiff and said assignee.</p>

<p>Corporations — Expenses of voluntary dissolution and appointment of receiver made a first charge on fund.</p> <p>Where the directors of a corporation, which has issued first mortgage bonds, apply for a voluntary dissolution and for the appointment of a receiver in order to protect the corporate property, the expenses of the application may properly be made a charge to be first paid by the receiver out of the funds in his hands, although he was not appointed in an action brought by the bondholders or their trustee.</p>

<p>Action to foreclose a mortgage.</p>

<p>Action brought by Gordon MacDonald, as guardian ad litem for Hazel L. Davis, under article 5 of title 1, chapter 14 of the Code of Civil Procedure, relating to an. action to compel the determination of a claim to real property.</p>

<p>Infants — Commitment to a house of industry, how reviewed — Code Grim. Tro., § 749.</p> <p>While the court has power, in a direct proceeding instituted by petition and in the interests of an infant, to go behind its commitment to the custody of a House of Industry, the court cannot review a commitment, made by a competent criminal tribunal, upon returns to writs of habeas corpus and certiorari, the remedy being by an appeal taken under section 749 of the Code of Criminal Procedure.</p>

<p>Action to foreclose a mortgage.</p>

<p>Action for partition.</p>

<p>Demurrer to alternative writ of mandamus.</p>

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

<p>Trustees — Commissions, not deducted when earned, aré lost.</p> <p>Where an executor, acting as a testamentary trustee, pays the annual income of the trust to the beneficiaries during many successive years and fails to deduct his commissions annually, he cannot subsequently procure their allowance from the fund upon an accounting.</p>

<p>Proceedings upon probate of a will.</p>

<p>Transfer tax — Jurisdiction to appoint appraiser of the estate of a nonresident who leaves property in different counties.</p> <p>Where a nonresident of the State of New York dies leaving prop- ■ erty in two of its counties, that surrogate who first issues ancillary letters upon the estate acquires exclusive jurisdiction to appoint an appraiser for the purposes of the transfer tax, and this although the proceedings before, that surrogate were irregular in that the ancillary letters were obtained without citing the county treasurer, as required by law.</p>

<p>Bailment — Liability of landlord for overcoat of guest hung by consent in the hotel office.</p> <p>Where a guest hangs his overcoat upon one of a row of hooks, placed in the office of a hotel behind the desk and used by guests for ■ that purpose, and so hangs it in the presence of a person apparently in charge of the office, the landlord is liable to the guest for the subsequent unexplained loss of the overcoat and cannot, where he has not established any particular place for keeping overcoats,. escape liability by insisting that the overcoat had not been “ specially entrusted ” to his care and custody, within the meaning of section 2 of chapter 227 of the Laws of 1883.</p>

This is an action brought to compel the specific performance of a contract entered into in Inly, 1898, between the plaintiffs and the defendant “ The American Queen Incorporated,” hy the terms •of which the latter agreed to insert and publish, in its paper, called “ The American Queen ”, for the period of eighteen months, an advertisement of “ Eeder’s Brush Skirt Protector ”, for which plaintiffs are the agents in the United States.

<p>Appeal from a judgment of the General Term of the City Court, affirming a judgment in favor of the plaintiff and against the defendant, entered upon the verdict of a jury, and from the order of affirmance of the General Term.</p>

<p>Appeal from an order of the General Term of the City Court, reversing an order of the Special Term of the City Court, striking out the answer of the defendant as sham and frivolous, and granting defendant leave on terms to serve an amended answer.</p>

<p>Lloyds’ insurance—A settlement made by the attorney in fact benefits all the associates, and may be. proved.</p> <p>Where the attorney in- fact for an association of Lloyds’ underwriters has been given by them power to settle losses and compromise and defend all claims, any compromise or satisfaction made by • him-inures to the advantage of all the associates, and may be shown by one of them who is sought to be-made liable upon a judgment-which the attorney in fact fraudulently permitted to be recovered against himself after he had settled the claim in the interest of' all' the associates. '</p>

<p>Incompetent persons — Committee may sue on lost note payable to lunatic — Indemnity.</p> <p>A committee of a lunatic may, in bis representative capacity, - maintain an action ón a note payable to the lunatic although the committee knew that the note had been lost and never found it after diligent search; and it is not necessary that he offer, under section 1917 of the Code of Civil Procedure, indemnity to the maker before action brought, as that offer may be made in the first instance at the trial. .</p>

<p>Appeal from a judgment of the City Court, affirming a judgment in favor of the plaintiff.</p>

<p>1. Goods sold — Contradictory plea of rescission.</p> <p>Where the defense to an action for goods sdld- is an alleged rescission, and the further specification of the facts, constituting the-rescission nullify that defense, the . plea must fail, as a, pleading, must . be taken most strongly against the pleader. . , •■ ■ ■:</p> <p>2.. Same — Election of remedies.</p> <p>A mere demand upon the part of vendors, that a sheriff surrender to them goods' which he had seized under third-party writs of re- ' plevin, not followed by any legal proceedings by the vendors to re- . cover possession, is not an.election upon their part, to repudiate"'the • sale, which is inconsistent with the remedy of a subsequent áctióñ by them against the vendees for the price.</p> <p>MacLean, J., dissented..</p>

<p>Bill of particulars — Affidavit must foe made foy party.</p> <p>;.An attorney,¿employed -iti .the' office o£,,the,.defendant,srattorney. cannot make an affidavit which will afford a proper basis for an order . requiring the plaintiff to serve a bill of particulars of the complaint, as such an affidavit should be made by. the party.</p>

<p>Appeal by the defendant from an order made by the General Term of the City Court of New York, affirming an order made by a justice at Special Term, vacating an order of reference.</p>

<p>. Appeal from a determination of the General Term of the City Court of the City of Hew York, reversing a judgment in favor of •the plaintiff, rendered at the Trial Term on the verdict of a jury, and dismissing the complaint.</p>

Abbeai, from a determination of the General Term of the City Court of the city of New York, affirming a judgment rendered at the Trial Term on the verdict of a jury.

<p>¡Attachment — Nullified by judgment for the 'defendant, who cannot thereafter move to vacate — Effect of plaintiff’s stay after, verdict.</p> <p>Where the trial of an action of attachment has resulted in an affirmative judgment for the defendant upon his counterclaim, the City Court of the city of New York has no power to entertain a motion by the defendant to vacate the attachment, as the judgment has nullified it. At most the defendant would only be entitled to a formal order declaratory of that fact.</p> <p>The fact that the plaintiff, • after the rendition of the verdict obtained a stay and continued it by an undertaking on appeal, does not assist the defendant, as the annulment of the attachment by the judgment leaves nothing to vacate or enforce pending the appeal. . Friede v. Weissenthanner, 26 Mise.' Rep. 857, reversed.</p>

<p>Evidence — Wlien its improper exclusion will not be disregarded.</p> <p>Tbe erroneous exclusion of evidence will be disregarded on appeal where opportunity for its admission has been accorded and it does not appear that in the meantime any disadvantage has resulted to the excepting party from the ruling, but an exception will not be deemed to have been abandoned where the attempt of the excepting party to avail himself of the opportunity has been set at naught by the continued adverse ruling of the court.</p>

'. . Appeal from a judgment in. favor of the plaintiff and against the defendant rendered in the ¡NinthDistrict Municipal Court, borotigh of Manhattan.

<p>Negligence — Cable car accident — Judgment against. the weight of evidence.</p> <p>Where the "testimony of the plaintiff to the effect, that, while he "witÜ á Box'of . tools under, his-’arm was attempting'to. board a pable car at rest and had one foot on its step and one hand on its hand rail, the conductor Started the car suddenly and threw him into-.an .' excavation near thb track,'is confuted by five witnesses, of. whom two were disinterested passengers, and they state that the car was ■ in motion,- that the tool box was upon the -plaintiff’s right shoulder in such a manner, that'it obstructed the line of his vision,, that he .-never • reached the car at all, and that he fell into the excavation while making the attempt, a judgment- for the plaintiff will be reversed as 1 against the weight of evidence.</p>

. Appeal from a judgment in favor of the plaintiff and against . the defendant, rendered in the Eleventh District Municipal Court, . borough of Manhattan.

<p>ITegligence — Attempt to board a street car — Contributory negligence.</p> <p>Testimony of a person that he signalled a street car to stop, that it slowed' up, and that after it had passed his crossing he tried to board it while it was still in motion and that, because the motion was then quickened, he was thrown from its step and injured, when not accompanied by proof that any operator of the car was aware of the person’s attempt to stop the car or board it, does not show that the person was free from negligence nor that the corporation was guilty of it. . -</p>

Appeal-from a judgment rendered in favor of the plaintiff and against the defendant, in the Second District Municipal Court, borough of Manhattan.

Appeal by the defendant from a judgment of the Municipal 'Court, third district, borough of Manhattan, rendered in fkvor of. the plaintiff, upon the verdict , of a jury.

<p>IFire insurance — Construction of brokers’ contract to insure fdr three years and to renew policies expiring within the three years.</p> <p>A contract, executed on May 25, 1895, provided that brokers should procure for their principal fire insurancé upon certain property and in certain companies and pay premiums thereon “ for the period of three years, subject to the conditions hereinafter stated, from the 1st day of June, 1895 to the 1st day of June, 1898 ” and it was further agreed that the brokers should also “from time to time, as the same expire, renew all policies procured or renewed by them ” for the principal, “ during the said period of three years ”.</p> <p>Held, that the contract contemplated a one-year term of insurance and that the principal was liable to the brokers for premiums, "on policies which were renewed by them for a second time on May 1, 1898. and which did not, as last renewed, expire until after June 1, , 1898 and not until May 1, 1899.</p>

<p>Landlord and tenant — Hotice to tenant holding for an indefinite term.</p> <p>A tenant who holds for ah indefinite term is entitled to remain in possession so long as he pays the rent or until he receives one month’s notice to quit.</p>

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

Appeal by the defendant from a judgment of the Municipal Court, fifth district, borough of Manhattan, rendered in favor of the plaintiffs.

<p>Negligence — Passenger alighting from street car — Judgment, against the weight of evidence.</p> <p>A judgment for a street-car passenger must be reversed where her statement that she was injured because the ear started after it had stopped and while she was alighting* is contested by the conductor, the gripman, a bicycle patrolman and a passenger who state that the accident happened before she reached her street,, and that she alighted -while the car was in motion.</p>

<p>Appeal by the defendant from a judgment entered upon an inquest taken in the Municipal Court, fifth district, borough of Manhattan-.</p>

<p>Replevin — Title in a stranger, connected with the defendant. -</p> <p>Where the undisputed evidence of the defendant. in an action of replevin tends to show property in a.stranger and' connects the defendant himself with the title, a judgment for the plaintiff cannot ' .be sustained. - ■ 1.</p>

<p>Lien — Custody of a horse, wagon and harness.</p> <p>An agreement under which the defendant was to take care of the plaintiffs’ team, the latter to have the use of it in their business every day, accompanied by proof that besides boarding the horse the defendant occasionally of his own motion washed the wagon and cleaned the harness, affords no basis for a lien upon his part, either by agreement, or by statute as ah artisan for the betterment of personal property; or for the storage of the goods, within sections 70 and 73, art. VI, chap. 418 of the Laws of 1897.</p>

<p>Appeal by the defendants from a judgment in favor of plaintiffs, rendered in an action brought to foreclose a mechanic’s lien in the Municipal Court, first district, borough of Manhattan.</p>

<p>1. Sales — Express warranty — Dealer’s talk.</p> <p>Semite, that an advertisement circulated by a cycle manufacturing company which says of á hub, pedal and vise “ we are in a position to guarantee them to be all that is claimed for them, perfect of their kind” and which• further says of the hub “We are confident that it is an article unsurpassed and unsurpassable”, is to be regarded as mere dealer’s talk; and, in any event, cannot be construed as an express warranty in favor of, one who is not shown to.have purchased in reliance .upon the advertisement but rather upon his subsequent correspondence with the manufacturing company.</p> <p>8. Same —How far an implied warranty survives acceptance. ■</p> <p>The implied promise which attends executory sales of manufactured articles, -that the articles sold shall be merchantable and fit for the purpose intended, survives acceptance only in respect to those de- " -fects which are latent and undiscoverable; with due diligence, by ordinary inspection and by the application of the usual tests.</p>

Aureal from a final order in summary proceedings made in the Municipal Court of the city of Hew York, borough of Manhattan, first district.

<p>1. Sales — A salesman cannot warrant unless it is the custom.</p> <p>In the absence of proof that an express warranty usually attends a sale of blending oils, a mere salesman has no power to give such a warrant upon such a sale and bind his principal.</p> <p>3. Municipal Court of the city of Mew York — Denial of any knowledge, etc., sufficient to form a belief not permissible.</p> <p>A denial “ of any knowledge or information sufficient to form- a belief ” is not permissible in the Municipal Court of the city of New York.</p>

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

<p>Principal atad agent—Undisclosed principal may enforce a contract not under seal.</p> <p>A contract for work, not executed under seal nor Involving any ? special skill in doing the work, made by and with an agent In his. own name, but for an undisclosed principal, may be enforced by the, latter in her own name.</p>

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

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

<p>State superintendent of public works — His power to contract for skilled, engraving..</p> <p>The state superintendent of public works' is authorized to let to third parties the work of preparing and printing engraved steamboat inspectors’' licenses required by the Navigation Law (Laws of 1897, chap. 592), as such work is not-to be deemed, as include^-..under, the. Execu-' tive Law (Laws of 1892, chap. 683), providing that the “ public printing payable by the state, other than legislative printing ’’ shall be done by the lowest contract bidder for. the term of two years; and the contractors with the state- gain, under the latter law, no rights to perform such engraving,, as it requires skilled labor and the impréssions struck off constitute but an insignificant part of the contract work. •</p>

Application to compel the county treasurer of Cortland county to issue fifteen liquor tax certificates to the several individuals, separately named in said petition.

<p>(Foreclosure — Besale.</p> <p>Where property has been sold, in foreclosure, to a third party, below its assessed valuation and without notice, other than by advertisement, to a subsequent mortgagee whose mortgage will be wholly cut off, a resale will be ordered at his instance, where the plaintiff does not object, the subsequent mortgagee binding himself legally to bid more at the resale than the assessed valuation.</p>

<p>Motion to change the place of trial frota Albany county to Washington county for convenience of witnesses.</p>

<p>New York city — Interest on an award under chapter 746 of Laws of 1894 — Demand.</p> <p>Where the city of New York is required to pay an award, made ■ under chapter 746 of the Laws of 1894, within four calendar months after the report of the commissioners is confirmed, a demand, to set interest running, is well made on the day before the four months expired, instead of on the day after, the intervening day being Sunday; it appearing that the city did. not at the time take the objection that the demand was premature and that it thereafter delayed payment for a period of over seven months.</p>

<p>Judgment — When standing “ as security,” is not actionable under Code Civil Procedure, § 1913.</p> <p>Where the defendant has been permitted to open a judgment recovered against him by default and defend, the judgment to stand “ as security ”, and the action has been thereafter referred, no action upon such judgment can be maintained, under section ■ 1913 of the Code of Civil Procedure, after the death of the defendant against his administrator, as the judgment is not final nor enforceable by execution, and the cause of action is still open to defenses.</p>

<p>Discontinuance by plaintiffs — Not a right where there is a counterclaim— Effect of pending prior foreign action.</p> <p>Whether tb*e plaintiffs should be permitted to discontinue an action in which the defendant has interposed a counterclaim is a matter of judicial discretion, but such a discontinuance will not be permitted where the action has been pending two years, has been once tried without result, and’ where the defendant has become practically the real actor in the litigation, as it stands at the present .time.</p> <p>The fact that the defendant, a resident of the State of New York, has brought a prior action for the same cause of action in the state .of the plaintiffs’ domicile, wherein no trial has been had, affords in itself no reason for discontinuing the action pending in our court and relegating the defendant to the courts of another state.</p>

<p>Motion for restitution in an action for the partition of real estate.</p>

Motion to charge plaintiff with the costs and expenses of a reference incident to a motion made by it to compel the treasurer of the defendant company to deliver to a receiver certain books and papers alleged to be in his possession.

<p>Motion to strike out a bill" of particulars .in an action for libel'.;</p>

<p>Motion to continue a temporary injunction in an action between the stockholders of a corporation.</p>

Action to enjoin the-defendant from interfering with the prem-, ises of the plaintiff and to have an assessment'declared illegal and void.

On the 2d day of September, 1896, Phoebe A. Cheney and-Edward D. Cheney were the owners, as tenants in common, of certain real estate in the city of Troy. On that day an action of partition was commenced by Phoebe A. Cheney, as plaintiff, in which action Edward D. Cheney and Margaret A. Cheney, his wife, Mary C. Perry, Rice C. Bull, Edward McGraw, Rollin 0. Reynolds, Albert E. Grant and Samuel O. Gleason were defendants.

<p>1. Justices’ Court — Judgment under chapter 441 of Laws of 1881, may be taken without proof where .the answer is frivolous;</p> <p>Under the provisions of chapter 414 of the Laws of 1881, judgment may be taken in a justice’s court upon a verified complaint, without making any proof, where the answer interposed is clearly frivolous.</p> <p>8. Same — Frivolous denials as to the right of a foreign corporation to do business, and as to the time when, the debt became due.</p> <p>Where a complaint by a foreign corporation for goods sold is silent as to the place of sale it is to be presumed that the sale was made and completed in the foreign state, and hence an allegation, contained in the answer of the vendee,, denying any knowledge or information as to whether the plaintiff was duly incorporated or was lawfully ' doing business within the state of New York, presents no defense. .</p> <p>An answer which admits the allegation of the complaint as to the amount in which the defendant is indebted, but which denies on information and belief that the amount in question became due and • payable on the day named in the complaint, is frivolous.</p>

<p>Accord and satisfaction — Use of check for a smaller amount than the debt. ' ...</p> <p>Where there has been a dispute in regard to.the value of goods sold and delivered and the vendees thereafter.send to the vendors a • check for an amount which they claim to be the full value of the goods, the use of the check by the vendors, with knowledge of the vendees’ contention, cancels the debt, as thé vendors should have returned the check if they deemed its amount insufficient.</p>

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

<p>Attorney — A defense under Code' Civil Procedure, § 73, is a question of law — Intent. , .</p> <p>Where an action brought by an attorney. upon á nóte is resisted under section 73 of the Code of Civil Procedure, the jury should find ■ specially on the intent of the attorney in purchasing the note; but the defense in question is one Of law whose validity must, be subsequently passed upon by the court alone.</p>

<p>Appeal from judgment in favor of the plaintiffs entered upon a verdict directed by the court and from an order denying a motion to set aside verdict.</p>

<p>Fixtures — Buie between grantor and grantee.</p> <p>Where the owner of a building fits up its first floor and basement as a saloon and, after selling the fixtures thereof to his tenant of. the saloon, regains possession of them upon the latter’s default in the payment of the purchase price, subsequent to the owner’s conveyance of the fee, the owner of the fee may, as against his grantee of the entire premises, remove the saloon fixtures as they are personal property and constitute no part of the freehold.</p>

<p>Replevin — A demand is necessary, where the possession is lawful.</p> <p>Where a general assignee has become possessed, under his. assignment, of chattels alleged to have been obtaind by his assignor ■ ' thrbugh fraud, the possession thereof by the assignee is lawful and a demand and a refusal upon his part must be shown in order, to make ■ his possession tortious and support an action against him for the recovery of the chattels. <</p>

<p>New trial — Newly-discovered evidence;</p> <p>Where the only issue in an action brought by an employee against an employer is whether the former was to receive 1 or 2 per cent, commissions on certain sales made by him, the employer’s motion for a new trial, on the ground of newly-discovered evidence, will be granted where it appears that he was taken by surprise on the trial, that according to the affidavits of his wife and of his physician he was confined to his bed at the time when the employee, as the latter testified, made the contract of employment with him at his store, and-where the only witness produced by the employee, besides himself, •now makes affidavit that a written memorandum of the contract, which he testified that he once had copied and which he had identified upon the trial, was not the one which he copied.</p>

<p>Appeal from order denying motion to set aside service of summons and complaint on the ground that Thomas A. Lee, upon whom the service thereof was made, was not at the time an officer-of the defendant corporation.</p>

<p>landlord and tenant — Constructive eviction by sswer gas.</p> <p>Where a landlord who has control of the main drains of his house suffers them to become, and notwithstanding complaints, to remain so defective and broken that escaping sewer gas permeates the basement, which has been let as a barber shop, and causes customers of the shop to discontinue their patronage, the tenant thereof is justified in abandoning it during the term as the unfavorable conditions relative to health'and business amount to a constructive eviction.</p>

<p>Mandamus — Will not lie against police commissioners for placing a criminal’s picture in a “■ Rogues’ Gallery Remedy.</p> <p>A person who has been convicted of an assault and has been sentenced therefor to a city workhouse, who has frequently been arrested, and who is an associate of criminals, is not entitled to a mandamus compelling police commissioners to remove his picture from their •“ Rogues’ Gallery ”, as no duty is imposed by law upon said commissioners in the premises.</p> <p>Semble, that if the person has. been wronged he should sue for libel.</p>

<p>Application for writ of prohibition.</p>

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

<p>New York city — Restoration of illegally removed keeper of the aqueduct — Measure of damages — Mandamus.</p> <p>A keeper of the aqueduct of the city of New York, entitled to a ' salary of $1,000 per annum, to occupy rent free a house belonging to the city, and allowed $2.50 per diem for the use of a horse and wagon required by his duties and furnished by himself, is entitled, upon his restoration by mandamus to his position from which he had been illegally removed, to enjoy the same emoluments; and, for the period of his illegal removal, may recover his pro rata salary as well as his . per diem allowance for the keep of the horse and wagon, but cannot, in a proceeding of such a nature, recover anything for his loss of the use of the house.</p>

Agtioh to recover damages claimed by plaintiff for cutting down. Kingsboro avenue in front of her premises, so as to make same conform to the grade adopted by the common council in 1894.

<p>Judgment — When final, cannot be supplemented by an ex parte order stating the substance of the decision.</p> <p>A judgment, entered upon a decision made in an action brought to foreclose^ an annuitant’s lien on real estate, which disposes of every issue, appoints a referee to compute and sell and provides for a judgment for any deficiency, is final in its nature, and therefore the entry by the plaintiff’s attorney, without application to the court, of an order setting forth in substance what was contained in the decision is unnecessary and unauthorized, and the order will be vacated on the defendant’s motion.</p>

<p>The facts, so far as' material, are stated in the opinion.</p>

Mandamus to compel the commissioner of sewers and the deputy commissioner of sewers for the borough of The Bronx to reinstate the petitioner as inspector on the Sedgwick avenue sewer.

<p>Motion to substitute a bond for money already paid into court for the discharge of a mechanic’s lien. The owner of the premises discharged the lien by depositing money in court. Subsequently he desired to use his money, and moved for leave to give a bond and take back Ms deposit.</p>

<p>Motion to cancel two writs of attachment and one indemnity bond, and for an order discontinuing the action. The facts appear in the opinion.</p>

Motion to set aside an order for the examination in supplementary proceedings, on a judgment for costs only, of the plaintiff, Mary C. Burke, a school teacher.

Application to set aside a subpoena requiring Jose Gerardo Polo, vice-consul of Colombia, to attend as a witness. The facts are set forth in the opinion.

<p>Action to recover for services as teacher in the common schools of the city of New York.</p>

<p>Trust — Converted by a death, into a legal estate charged with an annuity—Pledge of an executor for his own benefit — Priority.</p> <p>A testatrix devised her residuary personal estate to her husband and her sister, as executors, in trust to pay from the income an annuity to her aunt and to pay the remainder of the income to themselves, -and then directed that after the death of the aunt the. corpus and any increase should be equally divided between the husband and sister except that, in case either died before the aunt, the survivor • should take the whole. The sister, who never qualified as executor, died before the aunt and husband. The husband, stating that he was sole executor and legatee, thereafter pledged for a personal loan bonds which stood in the name of the testatrix. The aunt died after the ■executor, after the loan had been made, and after the husband.</p> <p>Held, that the trust terminated with the death of the sister and . that there was no basis for the subsequent appointment of a substi- . tuted trustee. That after the death. Of the sister there remained only a legal estate, which was charged with the incumbrance of the annuity; that the husband had power to charge that estate; and that the loan which he negotiated upon the bonds must be paid therefrom as a lien in preference to the claims of other creditors Of the estate' represented by its administratrix or otherwise.</p>

<p>Motion for an injunction pendente lite.</p>

<p>Civil service — The commissioner of jurors of Manhattan and The Bronx is a city officer, one of whose clerks cannot he removed summarily and in' contravention of chapter 186, Laws of 1898 — Mandamus.</p> <p>Under the charter of the Greater New York (Laws of 1897, chap. 378) the commissioner of jurors of the boroughs of Manhattan and of The Bronx is a city officer, and, therefore, a clerk in his office, who was removed after chapter 186 of the Laws of 1898 had gone into effect, without written reasons for his- removal filed or being afforded any opportunity to explain, is entitled to be reinstated by a peremptory writ of mandamus.</p>

<p>Action to apply income of a husband’s trust fund to arrears due by him under a judgment of divorce — Modification in his favor aftér wife’s second marriage — Effect of a direction that affidavits' are to be treated “ merely as in the nature' of pleadings.”</p> <p>Upon a motion to modify a decree in an action brought by a woman to procure the application of the income of a trust fund, to which in- ■ come her former husband was entitled, to arrears due her. under a judgment of divorce from him, it appeared that she had since married a man who was' entirely able to support her; that her former husband had in the past seven years and since -the decree of divorce was entered lost or wasted nearly all his property outside of the trust income, and that the Court of Appeals had, in affirming the judgment herein, granted him “ leave at any time to apply for leave to share in the future income of the trust estate.”</p> <p>Held, that the defendant was not bound to support his former wife after her remarriage and that he was entitled tó the income of the trust after deducting therefrom such payments as he had been directed by the decree of divorce to make to his children through their mother.</p> <p>Where the Appellate Division directs a referee to treat affidavits, used on a motion to modify such a decree, “ merely as in the nature of pleadings with regard to this supplemental application ”, any allegation of the defendant’s affidavit, not denied by his former wife, must be taken to be true for the purposes of the motion.</p>

<p>Ejectment — Proof of attorneys’ authority to sue—Stay of vexatious action.</p> <p>Attorneys who bring an action of ejectment may be required, under sections 1512 and 1513 of the Code of Civil Procedure, to file written evidence of their authority to commence the action and the proceedings of the plaintiff will be stayed until they do so.</p> <p>The court has inherent power to stay, upon affidavits, a baseless and . vexatious action of ejectment which has been brought by an irresponsible plaintiff in the hope of compelling the defendants to buy their peace, and the exercise of such power is particularly appropriate' where it appears that the plaintiff has already been twice defeated in another action of ejectment' which involved his main and vital contention, and that he has never paid the costs which were awarded against him therein.</p>

<p>Motion to confirm the report of a referee upon a claim against executors and for an order that costs be allowed against the defendants’ executors.</p>

In the autumn of 1895, and winter and spring of 1896, the Metropolitan Marble Company, a domestic corporation, having an office in the city of New York, was engaged in quarrying ston'e in the counties of Lewis and'St. Lawrence for building purposes. Its shop or mill for dressing the stone was located at Watertown, Jefferson county, and its principal business was transacted there and at Harrisville, Lewis county.

<p>Summary proceedings before the county judge of Lewis county.</p>

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

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

<p>1. Assignee for benefit of creditors — Loss on inventory value — Em- ' ployment Of attorneys. . ,</p> <p>A loss at public sale on the inventory valué of an assigned estate will not be surcharged against its general assignee where the assignor and not the assignee filed, the inventory, and vthere the evidence of the latter and that of the auctioneer, not directly contested by the objecting creditor, tends to show that the public sale of the assets was fair, although some minor requisites were not complied with.</p> <p>A general assignee is not entitled to employ an attorney to perform ' those duties which the Statute imposes upon the assignee himself but he may employ one for thp preparation of formal papers which must be presented to the court.</p> <p>Such an assignee will be allowed nothing for the services of attorneys whom he employed to resist an application to compel him to account which was made at a time when he- was legally bound to account; nor will he be allowed a payment to them, in regard to a claim, amounting to more than one-half of the face value thereof, where the estate never realized anything upon the claim.</p> <p>2. Same — Preferred claims — Salesman on commission as “ employee ” — Personal taxes of assignor.</p> <p>A salesman on commission is. an “ employee " and as- such is entitled to a preference in payment, even though his compensation is measured in part by the profits.</p> <p>Personal taxes due by the assignor to the city of New York, with interest thereon for defaults, are to be preferred in payment to any other claims, except the costs and expenses of the accounting.</p> <p>3. Same — Beimbursement for rent after assignment refused assignee and claim rejected as against estate.</p> <p>Landlords who,- with knowledge of the general assignment, have permitted the assignee to use and occupy a part of certain premises formerly leased by the assignor and who have recovered a judgment / for such use against the assignee personally, are entitled to neither preference nor payment from the estate but must look to their judgment for payment.</p> <p>An assignee, who is not shown to have been without funds, should not rent the former premises of his assignor for storage if he can obtain for a less sum, others which are suitable, and if he does so rent, the court will not reimburse him.</p>

<p>Bills and notes — Bankers liable as makers on a check drawn On them by their cashier.</p> <p>Where indebted bankers direct their cashier to draw a check to the order of their creditor, and the cashier in accordance with the custom of bankers, draws a check upon them, and signs it in his own name as cashier, his act is their act, and they are liable to the creditor as makers.</p>

<p>Assignment for benefit of creditors — Payment refused of a preferred claim for services rendered before the assignment.</p> <p>A motion, to compel a general assignee to make a preferred payment (Laws of 1897, chap. 624, § 29), of a claim for services rendered to the assignor previous to the assignment, will be denied as prematurely made, where an action is pending to set aside the assignment and it does not appear whether the services were rendered within a" year of it, nor whether the assignee has funds enough to pay in full all preferred claims of the nature of the one in question.</p>

<p>Absolute divorce ^ Alimony refused Wife who does not deny adultery — Husband’s income.</p> <p>• Unless a wife denies upon oath her husband’s charge of adultery, she will be denied alimony and counsel fees pending his action for an absolute divorce.</p> <p>' Upon such a motion, her affidavits must Contain allegations Upon . which the court may, With satisfactory Certainty, base a finding as to her husband’s income.</p>

<p>Motion for alimony and counsel fee in a suit for a separation.</p>

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

<p>Action to recover dowér..</p>

<p>Appeal by the plaintiff from a judgment rendered in the Municipal Court, second district, borough of The Bronx, dismissing the complaint of the plaintiff.</p>

<p>Appeal by the defendant from á judgment of the Municipal Court, sixth district, rendered in favor of the plaintiff.</p>

<p>Appeal from a judgment dismissing the complaint of the plaintiff, rendered in the Municipal Court, eighth district, borough of Manhattan. „ ' • : ></p>

<p>Appeal by the plaintiff. from a judgment rendered .-in the .Municipal Court, fourth district, borough of Manhattan, dismissing the complaint of the plaintiff, at the close of the plaintiff’s, case.</p>

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

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

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

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

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

<p>Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court, first district,. borough of Manhattan, for the sum of $29.79, .damages and costs. .</p>

Apeeal by the defendant from a judgment of the Municipal Court, eighth district, borough of Manhattan, rendered in favor of the plaintiff.

<p>Appeal from a judgment in favor of the defendant, rendered, in the Municipal Court of the City of New York, borough óf The Bronx, for the second district.</p>

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

<p>Appeal from a judgment, in favor of the defendant,-rendei-ed in the Municipal Court of the City of New York, borough of Manhattan, for the second district.</p>

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

<p>Appeal from a judgment in favor of the defendant, rendered in the Municipal.Court of the City of Few York, borough.of Mam hattan, for the fifth district.</p>

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

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

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

<p>Appeal by defendants from a judgment of the Municipal Court, third district, borough of Manhattan, rendered1 in favor of the plaintiff. .</p>

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

Appeal- from ax judgment rendered in' favor of the-plaintiff and .-against the défendant in the Municipal Court, fourth district, - borough- of Manhattan.

Appeal by defendants from a judgment of the Municipal Court, first district, borough of Manhattan, in favor of plaintiff, for the sum of $200.15.

Appear by the defendant from a judgment of the Municipal Court, first district, borough, of Manhattan, rendered in favor of the plaintiff.-

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

Appeal by the plaintiffs from a judgment of the Municipal Court, fourth district, borough of Manhattan, dismissing the complaint of the plaintiff.

the Special Term of the City Court, denying a motion to vacate, a warrant of attachment issued against the property of the'defendant.

<p>Appeal by the defendant from an order of the General Term of the City Court, affirming a judgment of the Trial Term of the City Gourt in favor of the plaintiff, entered upon-a verdict of a, juiy$ and also affirming an order denying a motidn made by the déféndant for a new trial.</p>

Appeal by the defendant from a judgment of the Municipal 'Court, seventh district, borough of Manhattan, rendered in favor of the plaintiff. , ,

Appeal by the plaintiff ..from a judgment of the Municipal' Court, eleventh district, borough of Manhattan, rendered in favor of the defendant, dismissing the complaint and disallowing the counterclaim herein.

Appeal by the tenant from a final order of the: Municipal ’Court, second district, borough of The Bronx, in favor of the petitioner.

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

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

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

<p>Appeal from a judgment in favor of the defendant rendered on the 20th day of February, 1893, in the District Court of the city of Hew York for the tenth judicial district.</p>

Appeal by the plaintiff from- a judgment in his favor rendered ■ in the Municipal Court . of the City of Rew York, borough of Manhattan, ninth district, ,.-

<p>Appeal from-an order made in' summary proceedings in the Municipal Court of the City of New York, borough of Manhattan, fourth district, dismissing the landlord’s petition. '</p>

<p>Appeal from a'judgment in favor of the defendant, rendered in the Municipal Court of the City of New York, borough of Manhattan, third1 district.</p>

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

<p>Appeal from a judgment in favor of defendant, and from an order denying a motion for a new trial.</p>

<p>Appeal from an order sustaining a demurrer to a counterclaim.</p>

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

<p>Appeal from a judgment in favor of plaintiff entered upon a verdict from an order denying a motion for a new trial.'</p>

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

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

<p>Appeal from a judgment dismissing the complaint.</p>

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

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

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

<p>Appeal from a judgment dismissing a complaint.''</p>

<p>Appeal from a judgment , in iavor of plaintiff, entered upon a verdict, and from an order "denying a motion for a new trial.</p>

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

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

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

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

<p>Appeal from a judgment in favor of plaintiff, rendered upon a verdict, and. from an order denying a motion for a new trial.</p>

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

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

<p>Appeal from an order demanding the return of a chattel.</p>

<p>Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial.</p>

<p>Appeal from an order denying a motion to vacate an order for the examination of third parties in supplementary proceedings.</p>

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

<p>Appeal by defendant from an interlocutory judgment, overruling a demurrer to a complaint.</p>

<p>Appeal from an order of the Special Term referring the issues to a referee to hear and determine.</p>

- Appeal from an. order of the Special Term denying a motion to compel a reply to alleged new matter constituting defense by way of avoidance.

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

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

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

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

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

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

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

<p>Appeal from an order denying a motion made by an exécution Creditor vacating an attachment obtained by the plaintiff.</p>

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

<p>Appeal from judgment only, entered on verdict rendered by a jury-</p>

<p>Appeal from an order of the Special Term.</p>

. Appeal from an order made at Special Term granting leave to defendant to pay into court the sum of one hundred dollars ($100), and to amend his answer. »

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

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

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