Volume 27 — New York Supplement

Submission of controversy without action under Code Civil Proc. § 1279, between Harriett A. Raymond, Dora V. Rappleyea, and Ina Jane Lotzar, as plaintiffs, and the Rochester Trust & Safe-Deposit Company, administrator with the will annexed of Henry B. Raymond, deceased, as defendant. Judgment for defendant.

<p>Appeal from judgment on report of referee.</p> <p>Action by Jennette E. Gardner against Charles B. Benedict, as executor. From a judgment entered in Wyoming county, defendant appeals. Affirmed.</p>

Action by Cornelius H. Tallman, as executor, against Adolph Bernhard. From so much of an interlocutory judgment as refused to allow costs on sustaining a demurrer to the complaint, defendant appeals. Reversed.

Proceeding to compel the administrator of the estate of Theodore Scheidler, deceased, to pay a legacy. From an order directing payment of the legacy, the administrator appeals. Affirmed.

Action by Romane Depew against Edina Ketchum and others. From a judgment entered in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court, defendants appeal. Affirmed.

Appeal frorii judgment on report of referee. Action by J. Clarence Osborn against Clara Delafield and others. From a judgment entered in Cayuga county in favor of defendants, plaintiff appeals. Affirmed.

<p>Submission without action of a controversy between Frederick W. Smith, executor, as plaintiff, and George G. Bown, as defendant, under Code Civil Proc. § 1279. Judgment for plaintiff.</p>

Letters of administration granted to Dean Atwood, as a creditor of the estate of Edwin E. Frye, deceased, were revoked by the surrogate, on which Atwood appeals. Affirmed.

Action by William 0. Benfield against the Vacuum Oil Company to recover damages for personal injuries. From an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Beversed.

Action by Henry Oberlies against Balthasar Bullinger for a balance alleged to be due on a contract. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court, defendant appeals. Reversed.

Action by Louis Braceo against James G. Tighe. From a judgment dismissing defendant's counterclaim, and awarding to plain-* tiff the sum of $710 entered on a verdict directed by the court, defendant appeals. Reversed.

Action by John Zorn against Frederick W. Haake for trespass on land. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Reversed.

Certiorari by Oscar C. Wood to review the action of the board of commissioners of excise of the town of Randolph in denying relator’s application for an hotel license. From an order dismissing the certiorari, relator appeals. Affirmed.

Action by Charles H. Clark and others against William Wilcklow and others. From an order denying a motion to vacate an order for the examination of defendants before trial, defendants appeal. Affirmed.

<p>Appeal from Monroe county court.</p> <p>Action by John Wolfe and Ottilie Wolfe against the Conkey Avenue Savings, Aid & Loan Association. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Rebecca B. Evans against Jennie A. Howell and others. From a judgment entered in Livingston county in favor of plaintiff, defendants appeal. Affirmed.</p>

<p>Contractors’ Bonds—Action by Laborers.</p> <p>Laws 1850, c. 278, § 3, providing that the sureties on a bond given by a contractor for a public work to pay the laborers employed by him are not liable “unless proceedings shall be commenced within 30 days after the completion of the labor, payment of which is secured by such bond,” refers to the performance of labor by each laborer, and not to the completion of the entire contract.</p>

Action by George H. Thornton against James 0. Rogers. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court, defendant appeals. Reversed.

Action by Edward H. Mes against Calvin E. Broadhead and others. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendants appeal. Affirmed.

<p>Appeal from special term, Steuben county.</p> <p>Action by Asa Eazy against Christian Whittick for conversion. From a judgment in favor of plaintiff, defendant appeals. Eeversed.</p>

Action by Daniel E. Bartlett against James W. Mugett. From an order of the county court dismissing plaintiff’s appeal from a judgment of a justice of the peace, plaintiff appeals. Reversed.

Action by Charles B. Armstrong, as receiver of the Buffalo Railway Supply Company, against James Danahy. Defendant moves for a new trial on exceptions ordered to be heard in the first instance at general term, after a verdict directed in favor of plaintiff at circuit. Denied.

Action by William H. Handler against the Hew York, Lake Erie & Western Bailroad Company. Plaintiff moves for a new trial on exceptions ordered to be heard at general term in the first instance. Granted.

<p>Appeal from Monroe county court.</p> <p>Action by William Anderson and another against George W. Steitz. From a judgment in. favor of the plaintiffs for $362.46 damages and $64.50 costs, defendant appeals. Reversed, unless plaintiffs remit damages.</p>

<p>Appeal from special term.</p> <p>Action by Maude M. Burke against John J. A. Burke for divorce. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.</p>

<p>L Carriers—Discrimination—Hack Stand in Depot.</p> <p>Laws 1892, c. 076, provides that no preference in the transaction of the business of a common carrier on its cars, or in its depots or buildings, or on its grounds, shall be granted by any railroad corporation to any one of two or more persons, associations, or corporations competing in the same business, or in the business of transporting property for themselves or others. Held, that the purpose of the statute is to prevent discrimination between rival shippers or rival connecting roads, and does not forbid a railroad company to grant to a haekman the exclusive privilege of coming into defendant’s depot yards with his hacks.</p> <p>B. Contracts—Consideration—Public Policy.</p> <p>A contract between a railroad company and a haekman by which the company grants an exclusive privilege to the haekman to come into its depot yards with his hacks for the purpose of soliciting business from persons arriving at the depot is not against public policy.</p>

Action by Josiah H. Helmer against Bartlett Minot. From a judgment in favor of plaintiff after a trial before the court without a jury, defendant appeals.” Affirmed.

' Appeal from special term, Monroe county. Action by John Welsh against Edward Fallihee for assault and battery. From an order denying plaintiff’s motion for a retaxation of costs, plaintiff appeals. Affirmed.

<p>Appeal from special term, Monroe county.</p> <p>Action by Hinman Louis against the Empire State Insurance Company. From an order denying a motion for a retaxation of costs, plaintiff appeals. Affirmed.</p>

Action by George W. Stamp against Augustus W. Franklin, as executor. Defendant moves for a new trial on exceptions taken at Yates circuit, and ordered to be heard at general term in the first instance. Denied.

Action by Hiram Truesdell against Charles H. Chumar. Defendant moves for a new trial on exceptions taken at Wyoming circuit, and ordered to be heard at general term in the first instance. Granted. The action is against the defendant as a stockholder in the Eldridge Salt Company, a corporation created pursuant to chapter 40, Laws 1848, authorizing the formation of corporations for manufacturing, mining, mechanical, or chemical purposes, and the acts amendatory thereof.

Action by Henry C. Phelps against Lucian Rowe. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Affirmed.

New York county. Action by Otto J. Lang, as ancillary executor of Mason Hirsch, deceased, against the Houston, West Street & Pavonia Ferry Railroad Company. From a judgment entered on a verdict in favor of plaintiff, defendant appeals. Affirmed.

Action by the Electric Power Company against the Metropolitan Telephone & Telegraph Company for conversion. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by the Bradford National Bank against Hascal L. Taylor. From an order denying a motion for a new trial after a verdict in favor of defendant at circuit, plaintiff appeals. Reversed.

Action by Seligman Baer against Hudson Street Permanent Savings & Loan Association. From a judgment in favor of plaintiff and from an order denying a motion for a new trial made on the minutes of the court, defendant apeals. Affirmed.

Action by William O. Wyckoff and others against William H. Vicary to recover possession of a typewriter and desk. From a judgment in favor of plaintiffs, and from an order denying a motion for a new trial made on the minutes of the court, defendant appeals. Affirmed.

Action by the town of Dunkirk against the Lake Shore & Michigan Southern Railway Company and others. From an order denying a motion to strike out a portion of the complaint as irrelevant, defendants appeal. Affirmed.

Action by John H. Dwight and another against Howard G. Badgley. From a judgment entered on a verdict directed by the court, and from an order denying a motion for a new trial, defendant appeals. Reversed.

<p>Appeal from Monroe county court.</p> <p>Action by John G. Zweigle against Maria Hohman, Henry Hohman, and others. From a judgment in favor of defendants Hohman on issues between the defendants, defendant Otto Beck appeals. Affirmed.</p> <p>The action was for the foreclosure of two mortgages made by the defendants Hohman,—one to the plaintiff, of date July 1, 1878, to secure the payment of $350; the other, of date January 1, 1879, to John Burger, to secure the payment of $500, and by the latter assigned to the "plaintiff. The defendants Beck, who are husband and wife, alone defend. They allege an estate of inheritance in an undivided one-third of the premises in the defendant Otto Beck, founded upon the following facts: In.May, 1876, Margaretha Beck made her will, whereby she gave to the defendants Hohman all her property, real and personal, upon the condition that they pay to each of her children, Ludwina Beck, Balthazar Beck, and Otto Beck, $300, on the arrival of the latter at the age of 21 years, except as to Ludwina, whose legacy was to be paid when she arrived at age. The testatrix soon after died seised of the premises in question, and the will was admitted to probate in February, 1877. The defendants Hohman went into possession of the premises immediately after the death of testatrix. The defendant Otto Beck was then 14 years of age. He alleges that no part of his legacy has been paid to him. The defendants Hohman, by their answer, alleged that the legacy to the defendant Otto Beck has been paid to him, and, further, that the cause of action did not accrue within six years before the commencement of the action. It was begun in April, 1892. The trial court directed judgment of foreclosure and sale, in favor of the plaintiff, and, upon the issue between the defendants Beck and Hohman, directed judgment for the latter.</p>

Action by Sophia Foels against the town of Tonawanda. From a judgment entered on a verdict in favor of plaintiff, defendant appeals. Affirmed. The action was to recover for personal injuries sustained by the plaintiff in August, 1888, caused by her stepping into a hole in the sidewalk of a highway bridge in the village of Tonawanda. One of the planks of the sidewalk was out, which left a hole in the walk a foot wide, and extending across the entire walk.

Action by George W. Booher against William N. Stewart. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, made on the minutes of the court, plaintiff appeals. Affirmed.

<p>Appeal from circuit court, New York county.</p> <p>Action by Mayer Goldsmith against William Coverly, impleaded with others. From a judgment entered on a verdict of $7,577.83 in favor of plaintiff, defendant Coverly appeals. Reversed.</p>

Proceedings by the East Eiver Bridge Company to obtain leave to construct an elevated railroad in .the city of New York. The petitioner moves to affirm the report of the commissioners. Denied.

Action by Caroline Eademacher against the Greenwich Insurance Company of the City of New York. From a judgment on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Application of John J. Eyan for mandamus to compel the board of . audit of the town of Royalton, Niagara county, to audit an account of relator for services rendered to the board of excise of. said town as an attorney at law. Granted.

Action by the New York Central & Hudson River Railroad Company against Williám Sheeley and others. Defendants move to dissolve an injunction restraining them from entering on plaintiff’s station grounds at the city of Niagara Falls. Denied.

Certiorari by Truman Carman to review an action of Samuel W. Sawyer and others, constituting the board of assessors of the town of Palmyra, in assessing personal property of relator. Quashed.

<p>"1. Executors and Administrators—Appointment—Collateral Attack.</p> <p>A decree granting letters of administration to an infant is void, and may be attacked on that ground in a collateral proceeding.</p> <p>.2. Same—Action in Individual Capacity to Disaffirm Contract.</p> <p>Where an infant to whom letters of administration were granted executed a transfer of property of the estate, he may, after attaining majority, sue individually to disaffirm the contract, in order to protect himself from liability for damages to the transferee, sustained by reason of plaintiff’s want of authority.</p>

Action by Francesco Romano and others against Francis Irsch. From a judgment of the city court (23 N. Y. Supp. 967) affirming a judgment entered on a verdict in favor of plaintiffs, defendant appeals. Affirmed.

Action by Samuel W. Ehrich and others against Charles L. Bucks to recover for necessaries alleged to have been supplied to defendant’s wife on his credit. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

Action by Michael McLóughlin against the New York Lighter-age & Transportation Company to recover damages sustained by plaintiff’s canal boat while in the employ of defendant as charterer thereof. From a judgment in favor of plaintiff, defendant appeals. Reversed.

<p>Principal and Agent—Disbursements by Agent.</p> <p>Where the owner of a building informed his agent who had charge of the building that he had contracted with a certain person to make repairs for the ensuing year, and the agent employs another person to make repairs, for which the owner is compelled to pay, the agent is not entitled to the amount thereof as a disbursement.</p>

<p>1. Evidence—Agreement between Plaintiff and a Third Person.</p> <p>In an action for rent it appeared that while plaintiff was in possession of the premises the landlord let them to defendant. Plaintiff claimed that her lease had not expired at that time and refused to go out. Defendant moved into a part of the premises, and, a controversy having arisen as to the possession, an agreement was entered into between plaintiff and the landlord, and plaintiff continued in possession. No agreement was shown to have been entered into between plaintiff and defendant. Held that the agreement between plaintiff and the landlord was admissible for the purpose of determining the rights of the parties.</p> <p>2. Same—Expert Testimony.</p> <p>In an action for rent a witness is not competent to testify as to the rental value of the premises where he is not shown to be an expert as to such values or to have had any experience in regard to renting.</p>

Action by Hugh McLiney against Philip Gombrecht to recover broker’s commissions. From a judgment in favor of plaintiff, rendered by a justice without a jury, defendant appeals. Beversed.

Action by William P. McGloin against George H. Jones to recover possession of a chattel. From a judgment in favor of plaintiff, rendered by a justice without a jury, defendant appeals. Reversed.

Action by Louis Sier against James H. Bache. From a judgment in favor of plaintiff, rendered by a justice, without a jury, defendant appeals. Affirmed. The action was for work, labor, and services. The defendant set up the defense of payment and tender and counterclaim, the basis of the defense being an alleged agreement by the plaintiff to pay defendant for certain medical services rendered to plaintiff’s servant.

Action by Alexander McK. Jones and William E. Jones, a minor, by Edward W. S. Johnston as his guardian ad litem, against Caroline Ogden Jones and Frances Ogden Jones, as trustees, under the last will and testament of Caroline Ogden McCagg, deceased, and Julie H. Macfie, to compel a conveyance to plaintiffs of land devised to said trustees in trust for plaintiffs; also for an accounting, and for a determination of the rights of the parties in the land.

Action by Henry P. Rogers and others, as executors of the will of Nathaniel P. Rogers, deceased, against Frank Y. Maguire and another. From an interlocutory judgment overruling a demurrer to the complaint, defendant Rogers appeals. Affirmed.

Action by Edward Gustaveson against Ira L. Otis and William H. Gorsline, as copartners, to recover the sum of $150 for the use and occupation by defendants of certain property in the city of New York, of which the plaintiff was the tenant and occupant.

Application by George T. Fitzgerald for an order requiring the receivers of the Madison Square Bank to pay out of the funds in. their hands as receivers, and before any distribution c-f the assets of said bank is made, to the State Trust Company, the sum of $1,588.77, with interest from July 25,1893, with directions that credit be given to that amount upon a certain mortgage made by the said Fitz.gerald, and which had been assigned by the Madison Square Bank to said State…

■ Action by the American Horse Exchange, Limited, against Jacob Strauss and another. From an order denying a motion to vacate an attachment granted on the ground, as recited in the warrant, “that the defendants are natural persons, who have assigned, disposed of, and secreted, and are about to assign, dispose of, and secrete their property with intent to defraud their creditors, including plaintiff,” defendant Hamburger appeals.

Application by the Standard Gaslight Company for writ of mandamus to Michael T. Daly, as commissioner of public works of the city of New York. From an order denying a motion to punish respondent for contempt for disobeying a writ of peremptory mandamus, relator appeals. Affirmed.

<p>Appeal from justice court.</p> <p>Action by Peter Terwilliger against Luther Terwilliger on a promissory note. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.</p>

<p>1. Evidence—Judicial Notice.</p> <p>The courts will take judicial notice of the general direction of the streets in New York city, and where they begin and end.</p> <p>2. Eminent Domain—Measure op Damages.</p> <p>Findings that the value of plaintiff’s premises had increased since the construction of defendant’s elevated railroad are not inconsistent with a judgment awarding damages for the construction of the road, where it appears the property in the neighborhood had increased in consequence of changes in its use which began before the road was built.</p> <p>8. Trial—Requests op Fine—Form.</p> <p>Requests to find will not be granted where they require each sentence to be passed on, and ask, if the proposed findings of fact are refused, that the same matters be found as conclusions of law, and vice versa.</p> <p>4. Evidence—Declarations.</p> <p>In an action for injury to premises caused by the construction of an elevated railroad in the street, plaintiff’s unsworn statements as to the value of the premises, made to a bank on an application for a loan, are not admissible as declarations against his interest.</p>

Action by Max Abramson against John W. TJ. Koch for injury to plaintiff’s wagon, alleged to have been occasioned by defendant’s carelessness, whereby a collision occurred between the wagons of the parties. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Action by Richard P. Lydon and others against the Metropolitan Elevated Railway Company and another to enjoin defendants from maintaining and operating an elevated railroad in front of the premises Ho. 843 Sixth avenue, and for damages sustained thereby. From a judgment dismissing the complaint, plaintiffs appeal. Affirmed.

<p>Appeal from tenth district court.</p> <p>Action by Emil Krakowski against the North New York Building & Loan Association. From a judgment in favor of plaintiff, rendered by a justice without a jury, defendant appeals. Affirmed.</p>

Action by Michael J. Smith against the American Society for the Prevention of Cruelly to Animals to recover damages for injuries to plaintiff’s wagon, sustained in a collision with defendant’s ambulance, caused by the alleged negligence of the driver of the ambulance. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Action by Donald Nicoll against Fanny Hyman. From a judgment in favor of plaintiff rendered by a justice without a jury, defendant appeals. Affirmed.

Action by Hans F. Jorgensen against the Ministers, Elders, and Deacons of the Reformed Low Dutch Church of Harlem and others to reedver for loss of services of plaintiff’s wife. From an interlocutory judgment sustaining a demurrer to part of the answer, .(26 N. Y. Supp. 876,) defendants appeal. Affirmed.

Action by George F. Eschbach against Brian G. Hughes for damages for ill health alleged to have been contracted because of defendant’s breach of covenant to keep the premises demised to plaintiff in good repair. From a judgment for plaintiff, defendant appeals. Reversed.

<p>1. .District Court of New York—Power of Justice.</p> <p>A justice of the city court of New York has no power to set aside a verdict and order a new trial.</p> <p>2. Jury—Challenge to Array—New Venire.</p> <p>Where an objection that a jury in a justice court was not drawn in* accordance with Code Civ. Proc. § 2994, is sustained, the party is not entitled to a new venire on the ground that the jurors may have been prejudiced against him because of his technical objection.</p> <p>3. Appeal—Objections not Raised Below.</p> <p>The objection that a transcript of the testimony of a deceased witness-given on a former trial was not admissible in evidence because it was-not properly transcribed cannot be first raised on appeal.</p>

Action by Henry C. L. Peetsch against William H. Quinn for goods sold and delivered. From a judgment of the city court affirming a judgment entered on a verdict in favor of defendant, also from orders of the city court affirming order denying motion to vacate order of affirmance, (26 N. Y. Supp. 728,) and order denying motion to enter order of affirmance nunc pro tune, (Id. 729,) and order granting leave to issue execution, (Id. 731,) plaintiff appeals. Reversed.

Action by Henry Schumacher and others against Milton V. Waring to recover a monthly installment of rent alleged to have been accrued under a lease for one year. Prom a judgment in favor of defendant, plaintiffs appeal. Reversed.

Action by Albert P. Wennerstrom against Eugene Kelly, Jr., to recover for work, repairs, and services performed and materials furnished in and about the making of necessary household repairs at defendant’s residence. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Action by Eugene Frankel against Lucian Wolf to recover on defendant’s alleged promise to pay plaintiff a commission on the sale of chattels. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.

Action by Theodore Pots against Jacob Herman to recover $750, alleged to be due as commissions for the sale of goods by-plaintiff for defendant. From an order denying a motion to vacate an order for the examination of defendant, so as to enable plaintiff to prepare his complaint, defendant appeals. Reversed.

Action by William Maisky, an infant, by Nathan Krauskoff, Ms guardian ad litem, against Schumacher & Ettlinger, a corporation, to recover damages for personal injuries. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

Action by John Owens against Bichard Flynn, one of the marshals of the city of Bew York, to recover $160 damages for the conversion of property alleged to have been held by plaintiff as pledgee, by reason of which conversion, his lien was destroyed. From a judgment in favor of plaintiff, rendered by a justice without a jury, for $40 damages and $5.50 costs, plaintiff appeals. Beversed.

Action by Harry Bozen against the Dry-Dock, East Broadway & Battery Bailroad Company to recover money deposited for plaintiff’s faithful performance of his duties at the time of entering defendant’s service as a conductor of one c-f its street cars. From a judgment in favor of plaintiff entered on the verdict of the jury, defendant appeals. Beversed.

Action by James Mead against William B. Pope for goods, sold and delivered. From a judgment in favor of plaintiff, rendered by a justice without a jury, defendant appeals. Affirmed.

<p>1. Elevated Railroads—Refusal to Find Value of Easement'</p> <p>Refusal to find that the easements of light, air, and access appurtenant to property abutting on a street have in themselves only a nominal value is harmless error where it affirmatively appears that in estimating the consequential damages only a nominal value of such easements was allowed.</p> <p>2. Trial—Striking Out Testimony as Hearsay</p> <p>A motion to strike out an answer as hearsay is properly denied where the part of the answer objected to is not pointed out.</p>

Action by Charles A. Glyn against Julia Miner for breach of a contract of employment, which provided, among other things, “that it is further understood and agreed that, should said services not be deemed satisfactory by said party of the first part, [the employer,] this agreement can be terminated by said party of the first part giving one week’s notice of her intention so to do, and that from and after the expiration of the said week this agreement shall be at an end, and…

Action by the Bertha Zinc & Mineral Company against Frank M. Clute, as assignee for the benefit of the creditors of Lucius Hart, impleaded with said Lucius Hart. From an order denying a motion to vacate an injunction during the pendency of the action, defendant Clute appeals. Affirmed.

Action by Samuel Haas and others against Mary Green to recover money for goods sold and delivered. There was a judgment in favor of plaintiffs, and defendant appeals. Affirmed.

Action by Theodore Wagener against James H. Butler to recover on a contract for work, labor, and services rendered and materials furnished in the construction of a building, and for extra work. Defendant denied performance of the contract, and that any extra work was done with his consent, and also interposed a counterclaim for loss of rents occasioned by plaintiff’s delay.

Action by Bernard Campbell against Juan Y. Jimenes and others. From a judgment (25 N. Y. Supp. 1143, mem.) affirming a judgment entered on a verdict in favor of plain tiff, and an order denying motion for new trial, defendants appeal. Reversed.

Action by Chester C. Burritt against Koster, Bial & Co., a corporation, to recover damages for an alleged assault and battery. From an order denying a motion for an examination of defendant as a party before trial, plaintiff appeals. Affirmed.

Replevin by William Francis Clemmons against John J. Gorman, sheriff. From an order affirming an order denying a motion made by Callman Rouse and Samuel Barnett to open a judgment entered against defendant by default and to substitute them as defendants in the action, said Rouse and Barnett appeal. Affirmed.

<p>Appeal from judgment on report of referee.</p> <p>Action by the C. B. ICeogh Manufacturing Company against William Eisenberg to foreclose a mechanic’s lien. From a judgment, in favor of plaintiff, defendant appeals. Affirmed.</p>

Action by George H. Eldridge and another against Moses E. Crow on a promissory note. From a judgment of the city court (25 FT. Y. Supp. 797) affirming an order sustaining a demurrer to a counterclaim, defendant appeals. Affirmed.

Action by Gertrude Heusner against the Houston, West Street & Pavonia Ferry Railroad Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Action by Lc-uisa Carlson against Maria L. Winterson on a promissory note. From an order of the city court setting aside and vacating a sale of defendant’s real estate by the sheriff to Hector M. Hitchings, made on September 1, 1892, and restraining said sheriff from executing a deed, plaintiff appeals. Reversed.

Action by De Youngs, a corporation, against Solomon Jung, doing business under the name of “The Youngs,” to restrain defendant from infringing the name and trade-mark of plaintiff, and from using the name “The Youngs” or “Youngs” in his business, and for damages. From an order granting an injunction, (25 N. Y. Supp. 479,) defendant appeals. Affirmed.

Action by James McComb against Mathilda Von Ellert to recover brokerage on the sale of real estate belonging to defendant. From a judgment entered on a verdict directed in favor of defendant,, plaintiff appeals. Reversed.

Action by Charles F. Winch against Wallace C. Andrews to recover commissions for the sale of stock alleged to have been made by plaintiff as broker for defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals. Reversed.

Action by John Sternwald against Solomon H. Siegel and Jacob Kulla to recover damages for trespass, in causing plaintiff’s store to be entered, and its contents carried away, and plaintiff’s business to be destroyed. The defense was that the store was entered and the contents levied on under an execution issued on a judgment recovered by defendants, and that the judgment debtor was the owner of the store and its contents at the time of the levy.

Action by William F. Howe and another against Edward J. Wool■sey. From a judgment of the city court (25 27. Y. Supp. 1145) affirming a judgment entered on a verdict in favor of plaintiffs, défendant appeals. Affirmed.

<p>1. Appeal—Certificate that Case Contains all the Evidence.</p> <p>In the absence of a certificate that the case contains all the evidence taken on the trial, a review cannot be had on the facts.</p> <p>2. Building Contracts—Certificate of Architect.</p> <p>A building contract, which provides that final payment shall be made within 30 days after completion, “provided that * * * the architect shall certify in writing that all the work * * * has been done to his satisfaction,’’ constitutes the architect the agent of the owner, and his decision as to completion of the work is final.</p> <p>3. Same—Form of Certificate.</p> <p>A certificate under such contract sufficiently complies with the terms of the contract where it states that “there is now due to” the contractor “the final payment on his contract,” specifying the amount.</p> <p>4. Mechanics’ Liens—Enforcement.</p> <p>In an action to foreclose a mechanic’s lien, where the complaint set out a cause of action for work, labor, and services, irrespective of the allegations contained in it entitting plaintiff to equitable relief, defendant is not entitled to a dismissal of the complaint where plaintiff states in open court that he waives mechanic’s lien, as defendant is entitled to a personal judgment (Laws 1885, c. 342, g 15) notwithstanding such waiver.</p>

<p>Appeal from sixth district court.</p> <p>Action by Alfred C. Garsia against T. Hamilton Burch. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.</p>

Action by Henry G-. Bicknell against Gilbert M. Spier, Jr., as receiver of the Vertical Tube Boiler Company, substituted as defendant in place of said company, to recover moneys alleged to have been loaned to defendant company by plaintiff’s assignor, and for services rendered to it by him as its manager. From a judgment of the city court (23 N. Y. Supp. 1165) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.

Action by Emil Schalk, as assignee of one Hevesy, against John G. Norris and A. I. Sire to foreclose a mechanic’s lien. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Action by William Risk against Richard. Uffelman and another. From a judgment of the city court (26 N. Y. Supp. 880) affirming a judgment in favor of plaintiff, defendants appeal. Affirmed.

Action by Charles H. Caldwell against the Central Park, North & East River Railroad Company to recover damages for the alleged wrongful ejection of plaintiff from defendant’s street car at South Ferry. From a judgment entered on a verdict in favor of plaintiff for $750, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by Frederick Lyster against Aylma Y. Pearson for breach of contract. From an order of the city court (26 1ST. Y. Supp. 77) affirming an order opening a default, and vacating the judgment entered thereon, on condition that defendant pay plaintiff’s', attorney $15 and serve his answer within six days, defendant appeals. Reversed.

Action by Bridget Geraghty against Jacob New to recover damages for the loss of services of plaintiff’s minor son, who was injured in a passenger elevator in defendant’s premises, 24 North Chambers street. At the time of the accident the father of the minor was living, and he died 9 months and 12 days after the accident to the child. The complaint was dismissed, and plaintiff’s exceptions were ordered to be heard in the first instance at general term. Overruled.

Action by David Seligmann against Isaac Hahn. From a judgment of the city court (28 N. Y. Supp. 969) affirming a judgment entered on a verdict in favor of plaintiff, and an order denying a motion for a new trial, made on the minutes, defendant appeals. Affirmed.

Action by Amelia Spengeman against Henry Alter to recover damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $900, and from an order denying a motion for a new trial, defendant appeals. Reversed. ■ For decision reversing judgment on former appeal, see 19 N. Y. Supp. 1013, mem.

Action by Charles S. Halsted against Sarah B. Halsted for divorce on the ground of adultery. From an order (26 N. Y. Supp. 758) denying a motion for leave to serve a supplemental complaint charging the commission of adultery by defendant since the commencement of the action, plaintiff appeals. Affirmed.

Action by Julia Rattagliata, as administrator of Thomas Moglia, deceased, against William L. Hubbell, as treasurer of the Adams Express Company. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed. The action is to recover damages for the death of Thomas Moglia, 17 years of age, who was run over and killed by an express wagon of defendant in Water street on April 30, 1888.

Action by Thomas J. Canavan, an infant, by Michael Canavan, his guardian ad litem, against Eobert Van E. Stuyvesant and others for personal injuries. From a judgment dismissing the complaint, plaintiff appeals. Eeversed.

Claim against the assignee for benefit of creditors of Thomas M. Barr & Co. for damages for breach of contract by the assignors. The claim was disallowed by the referee, and the assignee now moves to confirm the report. Granted.

Action by Charles W. Klebisch against Charles Siedler for moneys laid out and expended on premises 69 East 106th street; also-for legal services rendered in examining the title to the same premises, and endeavoring to procure a mortgage thereon. From a judgment of the city court (23 1ST. Y. Supp. 1167) affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals-Reversed.

Action by Bernard S. McKean, as assignee of the firm of Bullard & Shannon, against Charles N. Adams, to recover the sum of $250 alleged to be due for services rendered to defendant by plaintiff’s assignors, as attorneys at law. A verdict was rendered in favor of plaintiff for $50, and from the judgment entered thereon, and from an order denying a motion for a new trial, plaintiff appealed.

<p>Action on Note—Averment Admitted by Failure to Deny.</p> <p>In an action on a note, failure of defendant to deny that the note was-transferred to plaintiff “for value,” as alleged in the complaint, is not an admission thereof, as such averment in the complaint was not necessary.</p>

Action by Harlan P. Smith against Peter Wagner. From a judgment in favor of plaintiff, defendant appeals. Affirmed. For former report, see 23 N. Y. Supp. 812. The action was brought to recover the sum of $150 for the rent of the first floor and basement of the premises known as No. 874 Eighth avenue, in the city of New York, for the months of March and April, 1892. The premises had been leased by plaintiff to the firm of Ghatfield Bros. ‘ The lease expired May 1, 1892.

Action by D. Henry Brown and another against Henry Hyman. Judgment was rendered in favor of plaintiff, and execution was issued thereon, and land sold under the execution. Defendant now moves to set aside the execution and the sale under it. Denied.

<p>1. Assault and Battery—Defilement of Plaintiff.</p> <p>The right to sue for an assault and battery committed by throwing plaintiff down and ravishing her is not affected by the fact that she did not resist sexual intercourse to the utmost, though she might not, in that event, be entitled to damages by reason of the defilement.</p> <p>2. Same—Consent of Plaintiff.</p> <p>In an action for assault and battery by throwing down and ravishing plaintiff, who was then 15 years old, and had lived with defendant and his wife as a member of the family for about a year, it appeared that plaintiff was delicate, while defendant was strong and vigorous. Plaintiff made no outcry, though persons' were within hearing, and she did not speak of the matter to her female relations until long afterwards. She testified that she tried to prevent the intercourse, and that defendant told her that it would be worse for her if she told any one. Eeld, that whether or not plaintiff submitted voluntarily was a question for the jury.</p>

<p>Appeal from judgment on report .of referee.</p> <p>Action by the Buffalo, Rochester & Pittsburgh Railroad Company against Georgia Lavery to recover possession of land. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.</p>

Action by Henry B. Hondorf against Silas Atwater and others to foreclose a mechanic’s lien. From a judgment in favor of defendants John H. Maher and James Glasgow, defendants Silas At-” water and others appeal. Affirmed. The action was brought to foreclose an alleged lien upon certain premises.

<p>Appeal from circuit court, Ontario county.</p> <p>Action by Catharine Moore, as administratrix, against the Hew York Central & Hudson River Railroad Company. From an order denying defendant’s motion for a new trial, made on the minutes-of the court, defendant appeals. Affirmed.</p>

<p>Tender—Deposit in Bank</p> <p>Making a special deposit for the payment of a note in a bank at which the note is payable is not effectual as a tender, where the amount is afterward transferred to the general account of the depositor, unless his balance was at all times sufficient to pay the note.</p>

Action by Hawley Pettibone- and others against Maria Moore for specific performance. From an interlocutory judgment, sustaining a demurrer to the complaint, plaintiffs appeal. Reversed.

Action by Caroline B. Garczynsld against Dorr Russell, individually, and as executor of, and trustee under, the will of Lucy G. Russell, deceased, and others. From an order made on January 17, 1893, settling the form of the judgment to be entered on the report of the referee, to whom the cause had been referred to-hear and determine all the issues' therein, defendants appeal. Reversed.

<p>1. Appeal&emdash;Interlocutory Judgment.</p> <p>Where a referee finds, as a conclusion of law, that plaintiff is entitled-to the accounting demanded in the complaint, a judgment containing a provision to that effect, entered on the report, is interlocutory.</p> <p>2. Same&emdash;Judgment on Report of Referee.</p> <p>An interlocutory judgment, entered on the report of a referee, is not appealable.</p> <p>3. Same&emdash;Dismissal.</p> <p>An appeal from a nonappealable judgment will be dismissed, though no-objection is made by respondent.</p>

Action by Caroline B. Garczynski against Dorr Bussell and another. From an order made May 27, 1893, setting aside an execution issued on a judgment entered in Otsego county on September 17, 1881, plaintiff appeals. Affirmed.

Action by Nicholas S. Mundy against the New York, Lake Erie & Western Railroad Company. From a judgment entered on a verdict in favor of plaintiff for $1,400, and from an order denying a motion for a new trial on a case and exceptions, defendant appeals. Affirmed.

Action by Jonas S. Van Duzer and another against the Elmira, Cortland & Northern Railroad Company. From a judgment entered on a verdict in favor of plaintiffs for $1,500, and from an order denying a motion for a new trial made on a case and exceptions, defendant appeals. Affirmed.

<p>Appeal from judgment on report of referee.</p> <p>Action by Resell C. Collis against Martin Y. B. Bull and others. From a judgment in favor of plaintiff .for $14,167.65 and costs, defendants appeal. Affirmed.</p> <p>It is found by the referee that on the 2d June, 1891, the plaintiff was the •owner and in possession of a certain note and trust deed executed by Edward Werner for $3,700, upon which at that time there was due $74 of ac•cumulated interest; that the note and trust deed were dated August 1, 1890, •and bore interest at 6 per cent., payable semiannually, and the plaintiff held •a proper assignment of the same, executed in blank, so that title to the same -could be transferred to such person as plaintiff might choose; .that on the 2d or 3d June, 1891, the plaintiff delivered to the defendants the said note and trust deed and the said assignment, and such delivery was made to defendants as plaintiff’s agents, and for the purpose of immediate sale for plaintiff, hnd they were requested to pay over the avails thereof to the plaintiff when the said securities were sold; that thereafter, and prior to the sale thereof by defendants, the plaintiff demanded of the defendants the return •to him of said securities, but the defendants neglected and refused to return the same to plaintiff; that on or about September 9, 1891, the defendants .-sold and transferred the same, and received the avails thereof, being then the sum of $3,835.66, and have retained and still do retain the same; that .after the sale by defendants, and before the bringing of this suit, the plain-' tiff demanded of defendants the said avails, but the defendants have neglected and refused to pay the same, or any part thereof. Judgment was ordered for $3,835.66 with interest from September 9, 1891. This suit was •commenced December 28, 1891.</p>

Action by the people against Milton W. Doxtater to recover a penalty for catching fish in violation of Laws 1886, c. 141. From a judgment entered on a verdict in favor of plaintiff for §50, directed by the court, defendant appeals. Affirmed.

<p>Appeal from circuit court, Kings county.</p> <p>Action by Robert G-. Eccles against William Radam for libel. Prom a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Reversed.</p>

Application by Thomas J. Lynch for writ of certiorari to review the decision of Henry I. Hayden, as police commissioner of the city of Brooklyn, discharging relator from the police force on the-ground of intoxication. Affirmed.

Action by Mary Fay Fleming and others against the Phoenix zAssurance Company of London on a fire insurance policy. Plaintiffs claimed that the amount of loss was $443.60. The court directed a verdict for plaintiffs for $45.76, and plaintiffs moved for a new trial on exceptions ordered to be heard at general term in the first instance. Denied.

Action by John E. Drake against the Hew York Iron Mine, impleaded with others. From an order granting a motion to require plaintiff’s attorney to give defendant the address and occupation of plaintiff, plaintiff appeals. Reversed. For former reports, see 21 H. Y. Supp. 491, 1117, and 24 H. Y. Supp. 518.

Action by Newman W. Warsawer against Horace L. Hotchkiss and another. From an order denying certain parts of a motion for a bill of particulars, defendants appeal. Affirmed. The following is a copy of the complaint: First.

Application by the Brooklyn Elevated Railroad Company to acquire title to real estate or right of way along Myrtle avenue, in-the city of Brooklyn. A motion for a stay of certain equitable-actions brought to reserve the property embraced in the proceeding was denied, and petitioner appeals. Reversed.

<p>Gifts—Question of Fact.</p> <p>Where a bond and mortgage is claimed as a gift causa mortis, and it appears that there was. a delivery of a mortgage, but there- is no evidence of a delivery of the bond, it is a question of fact whether the donor intended to give the bond as well as the mortgage.</p>

<p>Wills—Construction—Profits on Estate.</p> <p>Premiums received on the sale of securities belonging' to testator’s estate are not “profits,” which the will directs to be applied to the use of certain persons for life, but they form a part of the corpus of the estate, and belong to the remainder-men.</p>

Action by Thomas W. Case against the New York Central & Hudson River Railroad Company to recover damages for injuries to plaintiff’s horse and wagon, received while attempting to cross defendant’s tracks on a highway. From a judgment entered on a verdict in favor of plaintiff for $313.52, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Action by Mary Burns, as administratrix of William Burns, deceased, against Jacob Pethcal, to recover damages for negligently causing the death of said William Burns. From a judgment entered on a verdict in favor of plaintiff, and from the order denying the motion for new trial made on the minutes of the court, defendant appeals. Reversed.

<p>Appeal from circuit court, Otsego county.</p> <p>Action by Edward Meagher against the Cooperstown & Charlotte Valley Railroad Company to recover damages for injuries to plaintiff’s infant child. From the judgment dismissing the complaint with costs, and from an order denying a motion for a new trial, made on the minutes of the court, plaintiff appeals. Reversed.</p>

Action by George H. McChesney against the city of Syracuse, and Mary Crabtree and John Crabtree, as executors of the will of William Crabtree, deceased, substituted as defendants in place of said William Crabtree, deceased, impleaded with others, to foreclose a mechanic’s lien.

<p>Appeal from Chemung county court.</p> <p>Action by James Whitney against John C. Roe. From an order striking out an item of the bill of costs as taxed, plaintiff appeals. Affirmed.</p>

Action by Walter Walrath and others against William H. Abbott to establish and foreclose a vendor’s lien on land. From a judgment dismissing the complaint with costs, plaintiffs appeal. Reversed.

<p>Appeal from special term, Kings county.</p> <p>Application by Andrew D. Baird and others for writ of mandamus to G. Cochran Broome and others, as supervisors of the county of Kings, to divide said county into assembly districts as provided by Const, art. 3, § 5. The petition was denied, and relator» appeal. Affirmed.</p>

Action by Coe H. Ten Eyck against the town of Warwick and others to restrain defendants from interfering with the navigation of Greenwood lake. From an order continuing the injunction pendente lite, defendants appeal. Reversed.

'Appeal from judgment on report of referee. Action by Hiram L. Washburn, Jr., as receiver of the.property of Peter Kalteux and John La Grange, against Andrew Hettinger, to recover a balance alleged to be due for the construction of an ice house for defendant. There was a judgment in favor of plaintiff for $3,503.32 damages and $383.79 costs, and defendant appeals. R6Y6rS6(l

Action by George Mark and others against the village of West Troy to recover damages for destroying a fence alleged to have been erected by plaintiffs on their premises, and for an injunction. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

<p>Certiorari by Frederick A. Bussell to review the proceedings of the board of fire commissioners of the village of Saratoga Springs wherein' they removed relator from the office of assistant chief engineer of the fire department of said village. Quashed.</p>

Action by Frank Brown against the Boot Manufacturing Company to recover possession of certain premises in the city of Cohoes. From, an order denying a motion to appoint another referee in the place of the referee theretofore appointed, defendant appeals. Reversed.

Action by Horace Gr. Young, as trustee under the will of Thomas Cornell, deceased, against Sarah B. Overbaugh, to recover possession of a parcel of land, and a dwelling thereon, alleged to be part of testator’s estate. There was a judgment in favor of plaintiff, and defendant appeals. Reversed.

Action by Henry W. Sage and others against the Shepard & Morse Lumber Company to recover for certain lumber alleged to have been sold to defendant. From an order of reference, defendant appeals. Affirmed. The two causes of action set forth in the complaint are as follows: First.

Action by Edward Palmer against the Hew York & Lake Champlain Transportation Company and the Lake Champlain Transportation Company to recover damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $1,723.75, and from an order denying a motion for a new trial, defendant the Hew York & Lake Champlain Transportation Company appeals. Reversed.

Action by Edmund F. Bennett against John I. Thompson, William A. Thompson, and James F. Cowee to recover for the alleged conversion of personal property. From an order granting the application of Clara F. Bennett, as assignee of plaintiff, to revive the action, and to substitute her as plaintiff in place of said Edmund F. Bennett, deceased, defendants appeal. Affirmed.

Action by Elizabeth Winegard against Benjamin Fanning to recover the sum of $4,183.54 and the accumulated interest, alleged to be the proceeds of the sale of land under a mortgage foreclosure. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>1. Master and Servant—Renewal op Employment.</p> <p>After plaintiff had been in the employ of one C. for several years at an annual salary, C. formed a copartnership with defendants to prosecute the same business. Plaintiff remained with the firm, performing the same services as before. Held, that there was not an implied agreement by the firm to employ plaintiff for a year.</p> <p>2. Same—Employment by Firm—Death op Partner.</p> <p>A contract of employment by a firm terminates on the dissolution of the firm by the death of a partner.</p>

Application by John V. L. Pruyn, as legatee and executor of the will of John V. L. Pruyn, deceased, for an accounting by Anna Parker Pruyn, his coexecutor. A motion to dismiss the proceeding was denied, and Anna Parker Pruyn was ordered to render a full and complete account of all her proceedings as executrix, and she appeals. Reversed.

Action by Edith M. Lamb, Blanche A. Lamb, and Beatrice L. Lamb, infants, by their guardian ad litem, James White, against Jesse M. Lamb, to recover for the use and occupation of real estate. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, made on the minutes, plaintiffs appeal. Affirmed.

Action by Henry A. Bowerman against Warren D. Bowerman and others to set aside a deed and for a partnership accounting. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Certiorari by Asa W. Wilkinson to review the affirmance, by John E. Ireland and others, referees appointed by the county judge of Suffolk county, of an order of the highway commissioners of Southampton. Reversed.

Action by Sarah M. Jackson against Pierre M. Brown for conversion. From an order granting a new trial after a verdict in favor of defendant, defendant appeals. Affirmed.

Action by Thomas L. Johnson and another against the Atlantic Avenue Railroad Company of Brooklyn to recover damages for breach of contract. From an order denying a motion for leave to serve an amended answer, defendant appeals. Affirmed. For former report, see 21 N. Y. Supp. 1056.

Action by Francisco Wood against the town of Gilboa to recover damages for alleged negligence of defendant in keeping a highway, whereby plaintiff was injured. From a judgment entered on a verdict in favor of plaintiff for $1,300 and $239.01 costs, defendant appeals. Affirmed.

Action by Coe H. Ten Eyck against George W. Sayers and others for an injunction. From an order assessing damages under an undertaking given before plaintiff in procuring preliminary injunction, defendants appeal. Modified.

<p>1. Libel and Slander—Pleading.</p> <p>A complaint is sufficient where it alleges that defendant stated to a representative of a newspaper that plaintiff was intoxicated at a camp meeting; that she caused' a disturbance at the meeting, and had to be put out by a policeman; that the statements were false, and were made maliciously by defendant to be published; and that they have been published as intended by defendant.</p> <p>2. Same—Disturbing Camp Meeting.</p> <p>To say that plaintiff disturbed “a camp meeting” is equivalent to saying that she disturbed a “religious meeting.”</p> <p>8. Practice in Civil Cases—Motion to Dismiss Complaint.</p> <p>Defendant has the right, instead of demurring, to move at the trial to dismiss the complaint on the ground that it does not set forth a cause of action; but it is not good practice.</p>

Certiorari by William Mathews and others to review an assessment made by the board of improvements in the town of Flatbush, from Church avenue to the town line, for the improvement of East Eighteenth street. Affirmed.

Action by James 0. Brower against Leopold Kahn, impleaded with others, to foreclose a mortgage made by defendants Knight and others to the Title Guaranty & Trust Company as collateral security for the payment of $3,500. Defendant Kahn was joined as defendant as a party in interest, being the record holder of a second mortgage on the premises.

Action by Elwin S. Piper against the New York Central & Hudson River Railroad Company to recover damages for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. From a judgment entered on a verdict directed in favor of defendant, plaintiff appealá. Reversed.

<p>Appeal from circuit court, Rockland county.</p> <p>Action by George Gerbig against the New York, Lake Erie & Western Railroad Company to recover damages for injuries received by plaintiff while in defendant’s employ. From a judgment entered on a verdict in favor of plaintiff for $5,750, and from an order denying a motion for a new trial, defendant appeals. Affirmed.</p> <p>For decision on former appeal see 22 N. Y. Supp. 21.</p>

Reference of claim of Robert S. Forbes against Rachel L. Kennedy, as executrix of Robert L. Kennedy, deceased. From an order confirming the report of the referee, and denying a motion to set aside such report, and giving plaintiff judgment for $7,100.60, defendant appeals. Reversed.

Petition by the trustees of the Hew York & Brooklyn Bridge to acquire title to land. From an order directing the entire sum awarded to be paid to the owner of the land his wife, Jessie Leary, appeals. Reversed.

Action by the village of New Rochelle against Fredericka Lang to restrain the construction of a frame building on Main street in said village. From an order vacating a preliminary injunction, plaintiff appeals. Affirmed.

<p>Appeal from special term, Westchester county.</p> <p>Action by Franklin P. Roberge against Maria Y. Winne and Elizabeth Oavannah to set aside a deed of certain premises from defendant Winne to defendant Oavannah, and to enforce by specific performance the execution and delivery of a bond and mortgage of $3,500 which the complaint alleged that defendant Winne had agreed to execute and deliver to plaintiff. A judgment was entered by which it was decreed "that the agreement set forth in the complaint be specifically performed, and that the defendant Maria Y. Winne, in her own proper person, within ten days from the entry and service of a copy of the decree, * * * execute and deliver to the plaintiff a good and sufficient bond and mortgage” on the property mentioned in the complaint for the sum of $3,858.75, to be dated January 3, 1893, and to be payable within one year thereafter. The judgment thereby decreed that the deed from the defendant Winne to the defendant Oavannah should be canceled of record, and concluded with these words: "And it is further ordered, adjudged, and decreed that the real property of the defendant Maria Y. Winne, herein described, be subject to and bound by the lien of the judgment herein directed for said $3,858.75, and for said $281.49, the costs.” After the entry of such judgment, defendant moved for a stay of proceedings on the judgment pending an appeal taken therefrom. The motion for a stay was denied, and an order was entered aby plaintiff’s attorney containing a provision as follows: “That plaintiff may issue execution for a sale of said property to satisfy the judgment and costs decreed in the above-entitled action.” Execution was issued accordingly, and defendant’s land sold thereunder. From the order granting leave to issue said execution, and from an order denying a motion to vacate the sheriff’s certificate of sale, defendants appeal. Reversed.</p> <p>For decision on appeal from the judgment, see 24 Y. Y. Supp. 562.</p>

Proceeding for the probate of the will of Stephen Townsend, deceased. Probate was contested by Coleman S. Townsend, Orville F; Townsend, and Freeman S. Townsend, and James J. Townsend, sons of testator. From a decree admitting the will to probate, contestants appeal. Affirmed.

Summary proceedings by James A. Buchanan against Stephen M. Whitman to recover possession of certain premises in the village of Port Jervis. Defendant entered under a lease dated April 8, 1892, “to extend for one year from the date hereof.” From a judgment of the county court reversing a judgment of the justice of the peace in favor of plaintiff, plaintiff appeals. Reversed.

Action by Mary A. Walsh against the Brooklyn Elevated Railroad Company and the Union Elevated Railroad Company to recover damages to the rental value of plaintiff’s premises, No. 320 Myrtle avenue, and to restrain the operation of defendants’ railroad in front of plaintiff’s premises, or, in the alternative, to recover damages to the fee value.

Action by Charles L. Bowland against Thomas F. Kowland for an accounting of the transactions of the Continental Works, in which name the complaint alleged that plaintiff and defendant were associated together, and were engaged in the business of general engineering and contracting, and iron construction. From an order referring the action for hearing and determination, on the ground that it involved the examination of a long account, defendant appeals. Affirmed.

<p>1. Carriers—Injuries Inflicted by Fellow Passenger.</p> <p>In an action by a passenger for injuries caused by another, passenger stepping on plaintiff’s foot, it appeared that the person who caused the injury was somewhat intoxicated, but not so far as to prevent him from walking. At the time of the injury he was standing in the car, holding to a strap, and lurching at every turn, and thus accidentally stepped on plaintiff’s foot, causing the injury. The attention of the guard was called to the man, with the suggestion that he be put off or found a seat, but there was no evidence of any conduct on his part that would have justified his expulsion from the car. Held, that defendant was not liable.</p> <p>2. Same—Injury Inflicted by Crowd on Platform.</p> <p>While plaintiff was leaving defendant’s car, and endeavoring to make her way through a crowd of persons on the platform, some one stepped on her foot. The guard had requested the people on the platform to allow the passengers to leave the car before they attempted to enter, but his request was not heeded. Held, that defendant was not liable for plaintiff’s injury.</p>

Action by John Raven against William R. Smith to foreclose a mechanic’s lien. From an order denying a motion to vacate a judgment which had been affirmed on appeal, (24 N. Y. Supp. 601,) defendant appeals. Affirmed.

<p>Principal and Agent—Powers of Agent.</p> <p>An agent authorized to ship goods has power to bind his principal by contract limiting the liability of the carrier.</p>

Proceeding for the judicial settlement of the accounts of Thomas J. Bitch, Jr., as sole administrator with the will annexed of Nathaniel O. Hawxhurst, deceased. From a decree settling the accounts, said Thomas J. Bitch, Jr., appeals. Beversed.

Action by the United States Trust Company against Philip V. E. Stanton and others to foreclose a mortgage. From a judgment in favor of plaintiff, defendant Stanton appeals. Reversed. For former reports, see 21 N. Y. Supp. 229, affirmed by 34 N. E. 1098.

Action by Charles Pickslay against Theodore B. Starr to recover $3,352.10, the balance alleged to be due the plaintiff on account of salary. From a judgment in favor of plaintiff for $4,301.78, defendant appeals. Affirmed. The following is the opinion of Hamilton Odell, Esq., to whom the case was referred to hear and determine: The plaintiff sues to recover a balance alleged to be due from the defendant for salary. The defendant avers that he has paid the plaintiff in full.

Action by Ernest Jesper against the Press Publishing Company for libel. Prom a judgment in favor of plaintiff for $250 damages, and from an order denying a motion for a new trial, plaintiff appeals. Reversed.

<p>Appeal from special term, Kings county.</p> <p>Action by Susan A. Phelps against John W. Phelps and another to protect plaintiff’s inchoate right of dower in certain real property bought by defendant, who was plaintiff’s husband, with his own money, but the record title of which he placed in another for the alleged purpose of defrauding plaintiff. From an interlocutory judgment overruling separate demurrers to the complaint, defendants appeal. Affirmed.</p>

Action by the Roslyn Heights Land & Improvement Company against Robert Burrowes to foreclose a mortgage. From an order denying a motion that issues arising on defendant’s counterclaim and plaintiff’s reply be stated for trial and tried by a jury, defendant appeals. Reversed.

Action by William Eook against the New Jersey & Pennsylvania Concentrating Works to recover $25,000 damages for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant in improperly constructing a building known as “Stock House No. 3,” at Edison, N. J. From a judgment entered on a verdict in favor of plaintiff for $4,000, and from an order denying a motion for a new trial made on the minutes, defendant appeals. Affirmed.

Action by Holmes Van Mater against Jabez Burns, Jr., and Robert Burns, surviving partners of Jabez Burns, deceased, to recover 1352, with interest, the amount claimed to be due to plaintiff by reason of an advertisement inserted for defendants in a paper called the Foreign Trade Gazette, which claim was assigned to plaintiff. From a judgment entered in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal. Affirmed.

Action to annul a marriage on the ground that defendant had a husband by a former marriage at the time of her marriage to plaintiff. Judgment for plaintiff.

<p>Action by Charles W. Anderson against George H. Porter. Plaintiff moves for leave to issue execution on a judgment rendered in his favor. Granted.</p>

<p>Divokce—Testimony of Co-Respondent.</p> <p>A co-respondent in an action for divorce on the ground of adultery is not justifiable in committing perjury in order to protect defendant’s reputation, but he must either take advantage of his privilege to decline answering questions that may tend to criminate or degrade him, or else he must testify truthfully.</p>

Action by Daniel E. Christie against Robert Bowne. From an order denying a motion to set aside a verdict in favor of plaintiff and the judgment entered thereon and all proceedings taken thereunder, and for a new trial on the ground of the alleged invalidity and irregularity of said verdict, defendant appeals. Affirmed.

Application by Charles S. Whitney and others, constituting the board of supervisors of Kings county, to require respondents to divide said county into assembly districts, as required by law. The application was denied, and petitioners appeal. Affirmed.

<p>Appeal from judgment on report of referee.</p> <p>Action by William Hoffman against Lawrence Duncan, as administrator of Ann Duncan, deceased, to recover $2,505, as a balance of wages alleged to be due to plaintiff as general workman and farm hand for defendant’s intestate. The complaint was dismissed on the merits, and plaintiff appeals. Affirmed.</p>

Action by Charles A. Lucas against S. Gr. Thompson and Oliver H. Nickerson, as executors of Oliver B. Lucas, deceased, to recover for wages alleged to be due plaintiff from defendants’ testator. There was a judgment in favor of defendants, and plaintiff appeals. Affirmed.

Certiorari by James W. Lamb to review the action of the board of health of Long Island City in removing the relator from the office of registrar of vital statistics in said city. Reversed.

Action by the Norfolk & New Brunswick Hosiery Company ■against Anna Arnold to restrain defendant from prosecuting an action against the plaintiff in the court of common pleas, in New York city and county to recover the sum of $23,000. From an order temporarily staying said action, defendant appeals. Reversed. For former reports, see 17 N. Y. Supp. 595, reversed by 30 N. E. 590..

Action by Barnard Flood against the Brooklyn Elevated Railroad Company and another to recover damages to plaintiff’s property by the construction and operation of defendants’ railroad. 1 For concurring opinion of Mr. Justice Dykman, see 27 N. Y. Supp. 1111. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal. Affirmed.

Action by Louis S. Hanauer against the city of Utica to recover salary alleged to be due. There was a judgment in favor of plaintiff for a less sum than he claimed, and he appeals. Affirmed.

<p>Appeal from special term, Dutchess county.</p> <p>Application by the New Hamburg & Poughkeepsie Connecting Railroad Company for an order directing the issuance of a certificate that public convenience and necessity require the construction of petitioner’s railroad as proposed in its articles of - association. Denied.</p>

Claim by Mary L. Van Slooten against Charles H. Wheeler, as executor of Harry E. Dodge, deceased, for a diamond ring. There was a judgment in favor of claimant, and the executor appeals. Affirmed. For former reports, see 15 27. Y. Supp. 591; 21 27. Y. Supp. 336.

Application by the Brooklyn Elevated Railroad Company to acquire title to real estate or right of way on Myrtle avenue in the-city of Brooklyn. From an order condemning an easement appurtenant to the premises of John S. Nagel and others, said Nagel, and others appeal. Affirmed.

Indictment against Patrick J. Gleason, charging him as mayor of Long Island City, and as a member of the board of fire commissioners of said city, with unlawfully and knowingly auditing and allowing a false claim against the city. From an order sustaining a, demurrer to the indictment, the people appeal. Affirmed.

Action by Eugene Sisco against the Lehigh & Hudson River Railway Company to recover damages for personal injuries sustained by plaintiff while a brakeman in defendant’s employ. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by Minnie English against Joel Hanford. From a judgment entered on a verdict in favor of plaintiff for $70 damages, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Action by Frank Place and others against Miles E. Burlingame and Amy Burlingame to recover possession of certain lands in the town of Willett. From a judgment entered on a verdict directed in favor of defendants, plaintiffs appeal. Reversed.

Proceedings for the probate of the will of Elizabeth W. Clark, deceased. From a decree refusing to admit the will to probate, Frank A. Place, the petitioner, appeals. Reversed.

Action by the city of Ithaca against Frank 0. Cornell to recover a tax of $322 assessed by the common council of plaintiff city against defendant. From an interlocutory judgment sustaining defendant’s demurrer to the complaint, plaintiff appeals. Reversed.

Bastardy proceeding by Thomas J. Burke, as overseer of the poor of the town of New Rochelle, against Peter Burpo. From an order of the court of sessions affirming an order of filiation and maintenance against defendant, made by two magistrates of the town, defendant appeals. Reversed.

Action by Daniel H. Donovan against Margaret Clark to recover on an undertaking given on appeal. Defendant moves for a new trial on exceptions ordered to be heard at general term in the first Ínst8.nC6 T)finiP(i

Application by the Holland Trust Company to compel an attorney to pay over money. From an order in favor of petitioner, the attorney appeals. Reversed.

Action by the Colorado State Bank against Patrick H. Gallagher on a promissory note. From a judgment and order overruling a demurrer to the answer, and dismissing the complaint, plaintiff appeals. Reversed.

Action by William J. Quinlan, Jr., against John E. Fairchild on a promissory note. From a judgment entered on a verdict directed by the court on the pleadings, defendant appeals. Reversed.

<p>Mortgages—Construction—Payment op Interest.</p> <p>Defendant employed plaintiff as a lawyer to procure a settlement of certain debts, and agreed to pay him for his services and payments made by him in such settlement. The agreement further provided that plaintiff should keep an account of all his services, payments, and expenses, that the items should draw interest from their dates, and that defendant should execute to plaintiff a mortgage for a certain sum as security. The mortgage was executed simultaneously with the agreement, and it contained a clause providing that, unless the interest of the amount should be paid semiannually, the whole amount secured should become due and payable. Held that, the mortgage being given to secure future advances and services, it was not the intent of the parties that the interest clause should ever become operative.</p>

<p>Appeal from special term, New York county.</p> <p>‘Action by Theodore B. Osborne and others against John G. Norris, impleaded with others. From a judgment in favor of plaintiffs, defendant Norris appeals. Affirmed.</p>

<p>Appeal from, circuit court, New York county.</p> <p>Action by John T. Elliot, as administrator, against the Mutual Benefit Life Association of America on a policy of insurance. The complaint was dismissed, and plaintiff appeals. Affirmed.</p>

<p>Criminal Law—Parol Evidence to Contradict Writing.</p> <p>On a trial for larceny, where a written agreement between defendant and the complaining witness is put in evidence to show a felonious intent of defendant in receiving from the complaining witness money alleged to have been stolen, defendant, in order to disprove a felonious intent, may show by paroi that the money was received for a different purpose from that stated in the agreement.</p>

Certiorari by Frederick S. Heiser to review an assessment and award made by Edward Gilon and others, constituting the board of assessors. Affirmed. For former report, see 22 N. Y. Supp. 238.

<p>Negotiable Instruments—Presentment—Certificate of Notary.</p> <p>A certificate of protest is only presumptive evidence of the facts certified, and therefore does not prove that the note was presented, and payment demanded, as recited therein, where the notary testifies that he had no personal knowledge of the matter, but that he was told that the note had been presented, and he then protested it and mailed notices.</p>

Action by Mary Davies, as administratrix of John B. Davies, against the Pelham Hod-Elevating Company, to recover damages occasioned by the death of plaintiff’s intestate because of the alleged negligence of defendant’s employes. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals. Reversed.

Action by George H. Maynard against Angelina Vanderwerker to recover the amount of an insurance policy issued by a fraternal order known as the Knights and Ladies of Honor to Kay R. Smalley, deceased. The complaint was dismissed, (24 N. Y. Supp. 932,) and plaintiff appeals: Reversed.

<p>Practice—Service of Complaint after Time has Expired.</p> <p>After the time for serving the complaint has expired, plaintiff’s remedy is by motion to open the default, and not by a motion to compel defendant to accept service; but an order requiring defendant to accept service of the complaint in such case will not be disturbed, where plaintiff’s notice of motion asks for such other relief as the court might grant, and sufficient facts appear to warrant the opening of the default.</p>

<p>1. Vendor and Purchaser—Marketable Title.</p> <p>Testator devised all Ms property to Ms executors, to be held by them until his son should become 21 years old, and he devised to his wife, in fee simple, his residence. By a subsequent clause of his will he authorized his executors to sell his real estate, “wheresoever situate,” whenever they should deem a sale thereof expedient. The will further provided that, in case of the death of testator’s wife before the death of testator, his children should take the estate bequeathed to her, in equal shares. Testator survived his wife. Meld, that the right of the executors to convey the residence was sufficiently doubtful to justify a purchaser in refusing to accept title from them.</p> <p>2. Costs—Submission of Controversy without Action.</p> <p>A provision, in a stipulation to submit a controversy for decision without action, that the judgment rendered should be without costs, is not binding on the court. Parker, J., dissenting.</p>

Action by Mary Wiley, an infant, by John Wiley, her guardian .-ad litem, against the Long Island Railroad Company, to recover damages for personal injuries. From a judgment entered on an ■order dismissing the complaint at the close of plaintiff’s case, plaintiff appeals. Reversed.

Application by Elizabeth G. McKibbel to require William F. Yafis, an attorney, to pay to petitioner money collected by him, as attorney, on a bond and mortgage, and to deliver said bond and mortgage to petitioner. From an order requiring payment of the money and the delivery of the bond and mortgage, said Yafis appeals. Reversed.

Action by Anna B. Stewart against the Union Mutual Life Insurance Company on a policy of insurance. From a judgment dismissing the complaint, plaintiff appeals. Affirmed. For former report, see 17 N. Y. Supp. 886.

York county. Proceeding from tire appraisal, under the collateral inheritance tax act, of the property of Alexander Milne, deceased.

'Appeal from special term, Onondaga county. Action by Joab L. Clift, as surviving partner of C. Pardee & Co., against Mary E. Moses and Lucien Moses impleaded with others to set aside certain transfers of real and personal property made by Lucien Moses to Mary E. Moses as fraudulent and void.

Action by James J. Nealis, as receiver of the New York Supply Company, Limited, against the American Tube & Iron Company,, to set aside a judgment obtained by defendant against said New York Supply Company, and for a recovery of the money realized on the said judgment. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

<p>Appeal from circuit court, New York county.</p> <p>Action by Charles Palmer against William D. C. Field. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendant appeals. Affirmed.</p>

Action by Joseph C. Drake against the New York, Lackawanna & Western Railway Company. From a' judgment entered on a verdict in favor of plaintiff for $1,216, and from an order denying a motion for a new trial on a case and exceptions, defendant appeals. Affirmed.

Proceeding to subject the estate of Cornelius V. S. Roosevelt, deceased, to the collateral inheritance tax. From an order confirming the amended report of the appraiser assessing the cash value of the property of testator at §305,453, the executors and the annuitants and the remainder-men under the will appeal. Reversed.

Action by Lewis S. Samuel against the Fidelity & Casualty Company of New York. From a judgment entered on a verdict directed by tile court in favor of plaintiff, defendant appeals. Reversed.

Action by Foo Long against the American Surety Company on an undertaking given on appeal. From a judgment entered on a verdict directed by the court in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed. For former report, see 16 H. Y. Supp. 424.

Action by the New York Harbor Towboat Company against the New York, Lake Erie & Western Railway Company to recover for • damages to a steamboat occasioned by a collision with defendant’s ferryboat. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>Laeceny—Evidence.</p> <p>On a trial for larceny of a watch, plaintiff testified that she left defendant alone in her sitting room for about five minutes, that she had placed her watch in the room just before defendant entered, and that she missed it a few minutes after he had gone, that she did not see him take it, but that no other person had been in the room between the time she placed the watch there and the time whpn she missed it. Defendant, who was in plaintiff’s apartments at her invitation, denied that he had seen or taken the watch, or that he knew anything about it, and, in addition, produced witnesses who testified as to his good character. Held, that the evidence was not sufficient to justify'a conviction.</p>

Action by Sarah E. Mellen against William C. Banning, surviving executor. From an order allowing plaintiff to serve an amended and supplemental complaint in place of amended complaint already served, defendant appeals. Affirmed.

Action by James Shields against John Bush and others to recover a hansom cab or its value. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal. Affirmed.

Application by the Metropolitan Elevated Railway Company relative to acquiring title to certain real' estate, the property of Elvira Purdy, known as “Nos. 337 and 339 East Twenty-Third Street,” and described in the petition as “Parcel 142.” From the award of the commissioners of the appraisal, and from an order confirming said award, Elvira Purdy appeals. Reversed.

<p>Appeal from judgment on report of referee.</p> <p>Action by Hugh O’Reilly and others, as executors, against the New York Elevated Railroad Company. From a judgment dismissing the complaint, plaintiffs appeal. Affirmed.</p>

<p>Vendor and Purchaser—Marketable Title.</p> <p>Testator devised land to bis son W. for life, remainder to the son’s children. The will further provided that, in case any of testator’s children should die without issue, the share of such child should go to the survivors, “it being my will and intention that my said sons and daughters should take and hold their shares and proportions of the estate for and during their natural lives; and, upon their—any or either of their —decease, the same shall descend to, and be had, shared, and divided by and between, his or her lawful issué, in equal proportions, share and share alike, and their heirs and assigns, forever.” W. died unmarried and without issue. Afterwards, a son of a deceased son of testator sued for partition of the land devised to W., and plaintiff purchased it at the partition sale. Held that, because of the failure to make the children and grandchildren of a living daughter of testator parties to the partition suit, plaintiff’s title was not so free from reasonable doubt that he could compel a vendee to accept title.</p>

Action by Ira A. Harpending against Elisha Gray on a promissory note. From a judgment entered on a verdict directed in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by Harlem Bridge, Morrisania & Fordham Railway Company against the town board of Westchester and others. From orders granting defendants’ motion for leave to renew motions for extra allowance, and from an order granting such extra allowance of $500 to each set of defendants, plaintiff appeals. Reversed.

Petition by John F. Pentz and others to determine the title of certain awards made to unknown owners. From an order confirming the report of the referee in favor of petitioners, Ira Shafer, claimant, appeals. Reversed.

Proceeding to determine the title of certain awards made in proceeding to ■open St. Nicholas terrace. From an order confirming the report of the ref■eree, William R. Hutton and others, executors, appeal. Reversed.

Action by Charles E. Hart, by Aymar Embury, Ms guardian ad litem, against the Delaware, Lackawanna & Western Railroad Company to recover damages for personal injuries. From a judgment dismissing the complaint entered on a nonsuit, plaintiff appeals. Reversed. For former report, see 22 N. Y. Supp. 3.

Action by Peter Peiffer against John E. Wheeler and another. From an order denying a motion by Henry Delafon and another, junior attachment creditors, to vacate plaintiff’s attachment, and also granting plaintiff’s motion amending said attachment, said junior attachment creditors appeal. Reversed.

Action by George A. Widmayer and others, as executors, against William P. Widmayer, individually and as executor, to remove defendant from his office of trustee and manager. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

<p>Landlord and Tenant—Surrender of Lease.</p> <p>. Plaintiffs bad leases of four lots executed before the construction of defendant’s elevated .railroad in the street on which the lots abut. The leases required the lessees to erect buildings on the lots, and the lessors covenanted to renew the leases for two terms. The leases expired after the construction of the elevated railroad; and plaintiffs, who had erected five buildings, took five leases for the renewal term instead of four, in order to partitiqn their interests, and surrendered the original' leases. Eeld, that the estate created by the original leases was not thereby surrendered, but the subsequent leases were mere renewals.</p>

Action by Isidor Richmond, by Bessie Richmond, his guardian ad litem, against the Second Avenue Railroad Company, to recovar damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Affirmed. For former report, see 19 H. Y. Supp. 597.

Action by Frank Boss, as ancillary administrator of James G. Boss, against Wallace P. Willett and Hathaniel P. Hamlin, for an accounting of all dealings and .transactions under certain agreements between defendants and said James G. Boss, deceased, and of the moneys received and paid out by said James G. Boss, by plaintiff and by defendants, respectively, in regard to the same; that defendants be adjudged to pay plaintiff, as administrator as aforesaid, any sum which, upon…

Action by Charles A. Domey and others against William M. Thacher, impleaded with Richard S. Kingman and others, to set aside an assignment for benefit of creditors made to defendant Thacher by the other defendants. From an order confirming the report of the referee appointed by an interlocutory judgment, charging the assignee with $1,104.55, defendants appeal. Reversed in part.

Action by the Greenwich Insurance Company against the Oregon Improvement Company and others to recover a pro rata portion of a premium on a policy of insurance issued by plaintiff. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendants appeal. Affirmed.'

<p>Master and Servant—Contract of Employment—Termination.</p> <p>On an issue as to whether plaintiff’s employment by defendant terminated on December 31, 1881, or continued until October, 1887, it appeared that plaintiff was paid in full for his services, and for electrical experiments pursuant to the contract, during the year 1881, and that on December 30, 1881, he tendered his resignation to defendant, and it was accepted. Plaintiff testified that since December 31. 1881, he had not made any experiments for the defendant. During the years 1882 to 1887 plaintiff received various sums of money from defendant, giving receipts therefor as money received “on account,” “for expenses,” or “money advanced,” but none for salary or experiments. 'Held, that the employment terminated on December 31, 1881.</p>

Action by Charles S. Murphy against William C. Jack and Millard F. Payne. From an order granting a motion' to vacate an attachment made on the papers on which the writ was granted, plaintiff appeals. Eeversed. It is alleged in the verified complaint that the defendants purchased goods of the plaintiff, and agreed to pay therefor $1,854.80, July 20, 1893, but have not paid the same, nor any part thereof.

Action by Willard Parker and another, as executors, against Benjamin F. Butler, as trustee, and others, for the construction of the will and codicil of Dr. Willard Parker, deceased. From a judgment in favor of defendants, (25 N. Y. Supp. 1100,) plaintiffs appeal. Affirmed.

Proceeding for the probate of the will of Robert Ray Hamilton, deceased. The will was admitted to probate, (12 N. Y. Supp. 708,) and contestant appeals. Affirmed.

Action by Michael Mulligan against John D. Crimmins to recover damages for injuries sustained by plaintiff while in defendant’s employ as a laborer on the Broadway cable road. Plaintiff, whose labors were directed by defendant’s assistant foreman, was directed to take up an old pickaxe, broken off at both ends, one of which was much battered by hammering, and hold it upon a spike. The foreman then struck the axe with a heavy hammer, to drive home the spike.

Certiorari by Jacob Dreicer to review the proceedings of Isaac T. Ouderkirk and others, as assessors. From an order requiring defendants to make and file a return to the writ without payment or tender of their fees, defendants appeal. Reversed.

Action by John S. Cronin against Johanna C. Crooks. From an order vacating a warrant of attachment, and directing the delivery of the attached property to a person not a party to the action, plaintiff appeals. Affirmed.

Application by James C. Fargo, as president of the American „ Express Company, for writ of mandamus to Simon W. Rosendale, attorney general, to compel him to grant the certificate provided for-by Code Civ. Proc. § 3241, that he might present the same to the comptroller to collect costs in certain actions. From an orderdenving the. application, relator appeals. Reversed.

<p>1. Wills—Liability of Residtjaey Legatee.</p> <p>The rule that, where one legatee has been paid in full, and the balance of the estate has been wasted by the executors, the other legatees cannot call on the legatee who has been paid in full for contribution, does not apply as between a general legatee and the residuary legatee.</p> <p>2. Limitation of Actions—When Statute Begins to Run.</p> <p>A right of action for a legacy payable at the death of a third person does not accrue until the death of suc'h person, and therefore the statute of limitations does not begin to run until that time.</p>

Ac I ion by Isaac McConihe against Charles Palmer, as sheriff of the county of Fulton, to recover damages for an alleged omission to perform an official duty. From an order changing the place of trial from the county of Rensselaer to the county of Fulton, plaintiff appeals. Affirmed.

Action by James B. Baxter and others against Mathias Baxter and others to set aside a deed. From a judgment in favor of plaintiffs, defendant Mathias Baxter appeals. Reversed.

<p>Mandamus—To Attorney General—Ministerial or Judicial Duties.</p> <p>Laws 1893, c. 725, § 10, provides that a certificate oí authority shall not be granted to a proposed insurance company until the declaration and charter “shall have been examined by the attorney general, and certified by him * * * to be in accordance with the requirements of law,” imposing on the attorney general a duty theretofore performed by the superintendent of insurance. 'Held, that the granting of such certificate by the attorney general is judicial, and cannot be controlled by mandamus. 25 N. Y. Supp. 769, reversed.</p>

<p>Appeal from special term, Rensselaer county.</p> <p>Proceeding to extend South Market street, in the village of Johns-town, through the lands of Mortimer Wade and others. From an order appointing commissioners to assess damages claimed by landowners for the opening and extending of said street, James Young-love appeals. Reversed.</p>

Action by Bernard Keilt against the Staten Island Rapid-Transit Railroad Company to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of defendant. From a judgment entered on a verdict in favor of plaintiff for $250, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by the city of Albany against the Watervliet Turnpike & Railroad Company to recover damages for the alleged negligence of defendant in the construction and operation of its trolley for the propulsion of electric cars. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

Henry Lotz, having been convicted before a court of special-ses-sions in the town of Hempstead for selling liquors without a license, • was sentenced to pay a fine of $25, or, on default thereof, to be imprisoned until paid. He refused to pay the fine, and was committed to jail. He then applied to the county judge for a writ of habeas corpus. The county judge discharged relator from imprisonment, and the people appeal. Affirmed.

Controversy between Nicholas Wilhelm and Wilhelmina Wilhelm, plaintiffs, and Charles Wilken, defendant, submitted on agreed statement of facts, under Code Civ. Proc. § 1279. Judgment for plaintiffs.

Application by the board of commissioners of charities and correction of Kings county for order vacating the approval of an order made by the state commission in lunacy, and directed to petitioner. From an order denying the motion, petitioner appeals. Dismissed.

« Application by John L. Ryder for a writ of mandamus to the clerk of the board of supervisors of Kings county, commanding defendant to erase from the roll of members of the board of supervisors the name of Richard L. Baisley, as supervisor from the town of Flatlands, and record in said roll the name of relator. From an order directing the issuing of a peremptory writ, defendant appeals. Affirmed.

<p>Action by Annette F. Bates against Charles F. Bates for separation and alimony on the ground of abandonment and nonsupport. Complaint dismissed.</p>

Action by Theodore B. Floyd, as supervisor of the town of Shandaken, against Duane 0. Dutcher and George W. Lament, on the official bond of Dutcher, as overseer of the poor of the town of Shandaken. From a judgment of nonsuit, plaintiff appeals. Reversed.

<p>Landlord and Tenant—Eviction—Record of Former Action.</p> <p>In an action for rent, defendant pleaded eviction and a former adjudication, and introduced in evidence a record, which showed that the tenant theretofore sued the landlord for damages because of defects in the premises. The landlord counterclaimed for rent, and the trial resulted in a judgment for the tenant for a certain sum over the amount claimed for rent. Eeld, that such record did not prove an eviction.</p>

Action by George W. Curtis and others against the Saddlery Hardware Manufacturing Company to recover for goods sold and delivered. From a judgment in favor of the plaintiffs, rendered by a justice without a jury, defendant appeals. Affirmed.

White against Jose Balta for rent. From a judgment rendered by a justice, without a jury, in favor of plaintiff, defendant appeals. Affirmed.

Action by Benjamin J. Falk against Henry Wolfsohn to recover for services rendered and goods furnished. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Action by Edward S. Steinam against George H. Bell to recover damages for false representations. From a judgment dismissing the complaint rendered on a trial before a justice without a jury, plaintiff appeals. Reversed.

Action by James B. Smith against the Ingersoll-Sergeant Rock-Drill Company to restrain defendant’s use upon its premises of a steam hammer of excessive size, from the operation of which plaintiff’s adjoining building was rendered unfit for the purposes of trade and manufacture, to which it had been devoted, and for damages for alleged injuries to plaintiff’s building, and the machinery therein, from the past operation of the hammer. Judgment for plaintiff.

Proceedings for a final settlement of the accounts of James H. Fay, assignee for benefit of creditors of Marshall Lefferts, Herman Braun, and Joseph D. Taylor, partners under the firm name of Marshall Lefferts & Co.

Application of John Torney for writ of mandamus against Joseph H. Stiner, as justice of the district court in the city of New York, of the eighth judicial district, commanding him to reinstate and reappoint the relator to the position of court attendant. Dismissed.

Action by Cornelius F. Timpson against Henry Allen and another for an accounting against the defendants as brokers, and for the value of 100 shares of stock purchased and held by them on plaintiff’s account. The referee found $2,303.76 due from defendants to plaintiff, with interest from Hovember 15, 1S92, and gave judgment accordingly, and defendants appeal. Affirmed.

Action by Smith A. Brooker and another against John Filkins. From an order granting defendant’s motion to dismiss plaintiffs’ appeal from a judgment and order of the general term of the city court, on the ground that the appeal had not been perfected by the giving of an undertaking, plaintiffs appeal. Reversed. For decision by the general term of the city court, see 25 N. Y. Supp. 514.

Action by Rachel Richards against Samuel Goldberg and another, to compel defendant Goldberg to assign to plaintiff a one-half interest in a lease, and in a contract for the purchase of premises known as 248 E. Broadway, in New York city, and an order was granted continuing an injunction against the commission by defendant, during the pendency of this action, of the following acts: (1) Disposing of a lease and contract of purchase of said premises; (2) prosecuting an action…

Action by Ludwig Euser against the Union Distilling Company to recover damages for the seizure of the stock in trade, fixtures, etc., of the store of plaintiff’s assignor, Henry Euser, under a warrant of attachment issued against him, which was subsequently vacated, for failure to serve or publish the summons in the action within 30 days after the granting of the attachment, as provided by Code, § 638.

Action by William R. Thurston against the E. P. Wilbur Trust Company, as executor, and others. From an order denying an ex parte application, made by the guardians of the infant defendants, for an order directing the chamberlain of the city of New York to pay over certain moneys, petitioners appeal.

<p>At chambers. Action by the Cahill Iron Works, a foreign corporation organized under the laws of the state of Tennessee, against Frank E. Pemberton, doing business in the city of Chattanooga, Tenn., under the name of Frank E. Pemberton & Co., to recover the sum of $1,347.64, with interest on $703.99 from the 15th day of July, 1891, and on the sum of $608.50 from the 1st day of August, 1891. Defendant demurred to the complaint, and plaintiff now moves for judgment on the demurrer as frivolous. Denied.</p> <p>The complaint, omitting the formal parts, is as follows:</p> <p>For a first cause of action:</p> <p>(3) That on or about the 25th day of March, 1891, the Kensington Land Company was indebted to the plaintiff in the sum of seven hundred and three and 99-100 ($703.99) dollars, and in consideration that the plaintiff would extend the time of payment of said indebtedness, and accept" the ninety-day note of said land company in payment of said indebtedness, the defendant agreed to and with the plaintiff, at thd city of Chattanooga, in said state, to give the plaintiff his written guaranty of the payment of said note at maturity; whereupon the said land company executed and delivered to the plaintiff its certain promissory note in writing, dated on or about the 25th day of March, 1891, wherein and whereby it promised to- pay to the order of the plaintiff seven hundred and three and 99-100 ($703.99; dollars, ninety days after date; and at the same time the defendant, under said name of F. R. Pemberton & Co., executed and delivered to the plaintiff his written guaranty of the payment of the said note, of which the following is a copy:</p> <p>“Chattanooga, Tenn., March 25th, 1891.</p> <p>“The Cahill Iron Works, Chattanooga, Tenn.—Dear Sirs: Referring to the ninety-day note for seven hundred and three and 99-100 ($703.99) dollars, given you by the Kensington Land Company in payment of bills rendered, we beg leave to say that we will guaranty the prompt payment of the note at maturity.</p> <p>“Very respectfully, F. R. Pemberton & Co.”</p> <p>(4) That, at the maturity of said note, the said land company applied for an extension of time in which to pay the same, and, in consideration that the plaintiff would renew said note fifteen days, the defendant agreed to give his written guaranty of the payment of the same; whereupon, at said city of Chattanooga, on the 27th day of June, 1891, the said land company executed and delivered, in renewal of said note, its certain promissory note in writing, of which the following is a copy:</p> <p>“$703.99. Chattanooga, Tenn., June 27th, 1891.</p> <p>“Fifteen days after date we jointly and severally promise to p:\; to the order of the Cahill Iron Works seven hundred and three and 99-100 ($703.99) dollars at First National Bank, Chattanooga, Tenn., value received. If suit is brought on this note, we agree to pay 5% attorney’s fees and costs of collection. Kensington Land Company.</p> <p>“F. W. Carlisle, Treasurer.”</p> <p>And pursuant to the foregoing agreement the defendant, under said name of F. R. Pemberton & Co., on said last-named day executed and delivered to the plaintiff his certain guaranty in writing of the payment of said last-named note, of which the following is a copy:</p> <p>“With the consent of the Cahill Iron Works, the Kensington Land Company renewed the note above mentioned, viz. seven hundred and three and 99-100 ($703.99) dollars, for fifteen days, due July 15th, 1891, the payment of which we guaranty. F. R. Pemberton & Co.”</p> <p>(5) That said last-named note was, at its maturity, duly presented for payment at said bank, and payment thereof duly demanded, but payment thereof was refused, of which presentment and nonpayment due and timely notice was given to the defendant.</p> <p>(6) That no part of said note has been paid, although payment thereof has been duly demanded of the defendant, and the plaintiff is now the owner and holder thereof. 0</p> <p>For a second cause of action:</p> <p>(7) That on the 22d day of April, 1891, the said Kensington Land Company was indebted to the plaintiff in the further sum of six hundred and eight and 50-100 ($608.50) dollars, and in consideration that the plaintiff would extend the time of payment of said indebtedness, and accept the ninety-eight day note of said land company in payment thereof, the defendant agreed, to and with the plaintiff, to give to the plaintiff his written guaranty of the payment of said note at maturity; whereupon the said land company, at the said city of Chattanooga, and on or about the 22d day of April, 1891, executed and delivered to the plaintiff its certain promissory note in writing, of which the following is a copy:</p> <p>“$608.50. Chattanooga, Tenn., April 22nd, 1891.</p> <p>“Ninety-eight days after date we promise to pay to the order of the Cahill Iron Works six hundred and eight and 50-100 ($608.50) dollars. Negotiable and payable at F. R. Pemberton & Co., bankers, value received, with legal rate of interest after maturity until paid. If this note is collected by an attorney suit or otherwise, we agree to pay all fees and costs of collection.</p> <p>“Kensington Land Company.</p> <p>“F. W. Carlisle, Treasurer.”</p> <p>And thereupon, and pursuant to the foregoing agreement, the defendant, under said name of F. R. Pemberton & Co., on said last-named day executed and delivered to the plaintiff his written guaranty of the payment of said note, of which the following is a copy:</p> <p>“Chattanooga, Tenn., April 22nd, 1891.</p> <p>“The Cahill Iron Works, Chattanooga, Tenn—Dear Sirs: Referring to the note of the Kensington Land Company in your favor for six hundred and eight and 50-100 ($608.50) dollars, dated April 22nd, 1891, ninety-eight days after date, and due July 24th, 1891, we beg leave to say that we will guaranty the payment of said note at date of its maturity.</p> <p>"Very respectfully, F. R. Pemberton & Co.”</p> <p>(8) That said note was, at maturity, duly presented for payment at the office of said F. R. Pemberton & Co., and payment thereof duly demanded, but payment thereof was refused, of which presentment and nonpayment due and timely notice was given to the defendant.</p> <p>(9) That no part of said note has been paid, although payment thereof has been duly demanded of the defendant, and the plaintiff is now the owner and holder thereof.</p>

<p>Action by the Cahill Iron Works against Frank B. Pemberton. Plaintiff’s motion for judgment on a demurrer to the complaint on the ground that the demurrer was frivolous having been overruled, (27 N. Y. Supp. 927,) the cause is now heard on the demurrer. Overruled.</p>

<p>Appeal from special term.</p> <p>Action by the Owl Cigar Company against Thomas Lidgerwood. From an order denying a motion to vacate an attachment, defendant appeals. Affirmed.</p>

<p>Rape—Uncorroborated Testimony of Prosecutrix.</p> <p>A conviction of rape will be reversed where it is had on the uncorroborated testimony of the prosecutrix.</p>

Proceedings for the probate of the will of Alexander F. Wilson, deceased. The application was denied, and petitioner appeals. SGYsrssd

<p>Action by Nathan Arnstein against William H. Burroughs for breach of contract to convey land. Judgment for plaintiff.</p>

<p>Action by Theresa Sasserath against Bernhard Metzgar for specific performance of a contract to exchange real estate. Judgment for plaintiff.</p>

<p>Application for the probate of the will of Daniel Hyland, deceased. Granted.</p>

Action by George Maitland and the General Fixture Company against the Central Gas & Electric Company. From a judgment of the city court (27 Y. Y. Supp. 421) affirming a judgment sustaining a demurrer to-the fifth paragraph of the amended answer, defendant appeals. Affirmed.

Action by Agnes S. Lyon, an infant, against the Manhattan Railway Company, to recover damages for personal injuries. From an order directing plaintiff to submit to physical examination, on the application of defendant, plaintiff appeals. Reversed.

Action by Bernard S. McKean against Charles H. Adams. From a judgment of the city court (27 H. Y. Supp. 421) affirming an order vacating the settlement of a case on appeal, plaintiff appeals. Dismissed.-

Action by Eliphalet L. Davis against Ella V. A. Dayton and another on a check. From an order of the city court (26 H. Y. Supp. 727) affirming a judgment in favor of plaintiff entered on a verdict, defendants appeal. Affirmed.

Action by Hyman Schmitzer against Morris Willner. From an •order of the city court affirming an order denying defendant’s motion to vacate an order for his examination in supplementary proceedings, defendant appeals. Affirmed.

Action by William H. Weaver and others against Joseph T. Farrington and another on a promissory note made by defendant George Blair and indorsed by defendant Farrington. From a judgment of the city court (26 N. Y. Supp. 78) affirming a judgment entered on a verdict directed by the court in favor of the plaintiffs, defendants appeal. Affirmed.

Action by Lewis Curtis against Charles L. Ritzman. From a judgment of the city court affirming an order denying a motion to dismiss defendant’s appeal from an interlocutory judgment on the ground that the appeal was not in time, plaintiff appeals. Affirmed.

<p>Appeal from second district court.</p> <p>Action by John Lees against James W. Pitney. There was a judgment in favor of plaintiff, and defendant appeals. Reversed.</p>

Action by August Gemunder and others against Isidor Hauser to recover $500 commissions for procuring the sale of a Stradivarius violin at the price of $5,000, upon a special agreement of employment by defendant. From a judgment of the city court (26 H. Y. Supp. 529) affirming a judgment in favor of plaintiffs, defendant appeals. Affirmed.

, general term. Action by Herman Oetjen against Henry F. Fayen. From an order of the city court (25 H. Y. Supp. 1151) affirming an order denying defendant’s motion to vacate a judgment against him or to reduce the amount thereof, and to vacate an attachment, defendant appeals. Affirmed.

<p>Mechanic’s Lien—When Attaches—Death op Owner.</p> <p>Under Laws 1885, c. 342, § 5, providing that the lien shall be preferred to any conveyance, judgment, or other claim which was not docketed or recorded at the time of filing the notice of lien, a mechanic’s lien filed after the death of the owner of the premises does not attach to the interest of the heir or devisee, as such interest is not included in the enumeration in section 5.</p>

<p>1. Action in Forma Pauperis—Application—When Made.</p> <p>Under Code Civ. Proe. § 458, providing that an application may be mad* “to the court in which the action is pending, or in which it is intended to be brought, for leave to prosecute as a poor person,” the application may be made either before the action is brought or while it is pending.</p> <p>S. Same—Effect of Motion for Security for Costs.</p> <p>Right to make the application is not affected by the fact that the court has already granted a motion requiring plaintiff to give security for costs.</p> <p>3. Same—Wealth of Guardian ad Litem.</p> <p>The wealth of the guardian ad litem, though he is also plaintiff’s father, cannot be considered on an application for leave to sue in forma pauperis.</p> <p>4. Same—Discretion of Court.</p> <p>The right of plaintiff to sue in forma pauperis is absolute on compliance with the statute, and is not dependent on judicial discretion.</p>

Action by Christopher A. Johnson, as administrator of Christopher Johnson, against John P. Priedhoff. From a judgment of the city court (23 N. Y. sSupp. 665) affirming a judgment dismissing the complaint, plaintiff appeals. Reversed. The action was brought to recover the sum of $1,210, balance due on the purchase of the lease of the premises 112 Sixth avenue, and the good will of the business theretofore conducted at said place.

Application by Guiseppe Gentilesco for certiorari to review the decision of the board of excise commissioners refusing to transfer a liquor license. Denied.

Action by David H. Carroll against Arthur Tucker and others for broker’s commissions on the sale of real estate. From a judgment of the city court (26 2T. Y. Supp. 86) affirming a judgment in favor of plaintiff, defendants appeal. Reversed.

Action by John S. Forster against David Eberle for rent. Defendant sets up as a defense that he had been dispossessed by order of the board of health. From a judgment in favor of plaintiff for $88 rent and $17 costs, defendant appeals. Affirmed.

Action by Elias Hempstead against Ernest Flagg to recover damages for the destruction of two boilers belonging to plaintiff. From a judgment in favor of plaintiff for $92.50 damages and costs, defendant appeals. Affirmed.

Action by Augustus Schieck against Hanna Herzog to recover for work and materials. From a judgment dismissing the complaint, plaintiff appeals. Reversed.

Action by Morris Eobinson and others against Charles Lewis and others. From a judgment of the city court (25 N. Y. Supp. 1004) affirming a judgment entered on a'verdict in favor of plaintiff for $608.11 damages and costs, and an order denying a motion for a new trial, defendants appeal. Affirmed. The action was brought to recover $386.37 for the wrongful talcing and conversion by defendants of a quantity of trimmings claimed to be worth that sum.

Action by Patrick Cassidy and I. Eichard Adler against Frederick K. Aldhous. From a judgment of the city court (27 N. Y. Supp. 267) affirming a judgment of nonsuit, plaintiffs appeal. Affirmed. The action was to recover the value of plumbing materials to the amount of $540.30 from the defendant, through Pearse & Thornton, from whom, it was alleged, he retained the money to pay the plaintiffs, and agreed to do so. The answer was a general denial.

<p>Application by William L. Patton, an imprisoned judgment debtor, for discharge from imprisonment. Denied.</p>

<p>Action by John J. Adams against Marietta B. Stevens and James-M. Bankin to recover for services rendered as an attorney at law-Defendants demur to the complaint. Sustained.</p>

<p>Judicial settlement of the accounts of the temporary administrator of Clara M. Egan, deceased.</p>

<p>Landlord and Tenant—Duty on Landlord to Repair.</p> <p>Laws 1860, c. 345, which provides that, where a leased building becomes unsafe and untenantable without fault of the lessee, he may surrender possession, and be released from liability for rent, does not apply except where the lessor retains control over the building.</p>

Action by Minnie L. Ackerman against the Third Avenue Railroad Company to recover damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals. Affirmed.

Action by James M. Constable and others against Matthew Hardenbergh and others. From an order requiring plaintiffs to furnish a bill of particulars, plaintiffs appeal. Reversed. This action was brought to set aside a general assignment for the benefit of creditors, made by the defendants Hardenbergh and Kelly to the defendant Hugo Hirsh, as assignee, upon various grounds stated in the complaint.

Action by Edith M. Faxon against John Mason and another to set aside an assignment executed by defendant Mason on the ground that it was intended to defraud creditors. From a judgment in favor of plaintiff, defendants appeal. Modified. For decision on application for biE of particulars, see 21 N. Y. Supp. 737.

Judicial settlement of the accounts of John S. Cameron and Hannah D. Cameron, as executors of John Cameron, deceased. From a decree of the surrogate construing the will of decedent, Isabella Cameron, a residuary legatee, appeals. Eeversed. The will was as follows: First. I direct my executors, hereinafter named, to pay all my just debts and funeral expenses as soon as may be after my decease. Second.

Action by Rosa Herzog against the New York Elevated Railway Company and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed. The opinion of Mr. Justice INGRAHAM, at special term, is as follows: Prior to the year 1875 the city of New York had acquired, under certain condemnation proceedings instituted under the act of 1813, the fee of Third avenue, which it held in trust for use as a public street.

Action by John Duryea against Catherine Furchsel and another, as executors, tó recover for goods sold and delivered. From a judgment entered on a referee’s report, and from an order modifying the provisions of the judgment, and from an order overruling exceptions to the referee’s report, defendants appeal. Reversed.

Action by Charles C. Doremus against Arieanna M. Doremus, individually and as executrix of the will of P. C. Doremus, deceased, and others, for partition. An order was entered that the cause be referred to William' H. Willis, Esq., to take testimony, and report to the court with his opinion as .to the rights of the several persons interested in having liens upon or claiming any part of the proceeds of the sale of the premises which had been deposited with the city chamber.

<p>1, Appeal—Order Directing Interlocutory Judgment.</p> <p>An order directing an interlocutory judgment is not appealable.</p> <p>2. Libel and Slander—What is Libelous Matter.</p> <p>A publication that “an enticing article” had recently been sent out by plaintiff, asking subscriptions to a business corporation organized by him, is not prejudicial to plaintiff in his profession of lawyer, as it has no relation to his character or conduct as a lawyer.</p>

<p>Action by James A. Merritt against John A. Fowler, impleaded, etc., on a foreign judgment. A verdict was directed in favor of plaintiff, and defendant Fowler’s exceptions were ordered to be heard in the first instance at general term. Exceptions overruled.</p>

<p>1. Assignment—Delivery—Acknowledgment.</p> <p>Acknowledgment before a notary public of an instrument purporting to transfer personalty does not dispense with the necessity of delivering such instrument.</p> <p>2. Trusts—Undelivered Declaration on Trust.</p> <p>One who signs and acknowledges a paper declaring that he holds for another’s benefit certain property theretofore owned by himself, but retains custody of the paper, does not thereby create himself a trustee for the person named. Martin v. Funk, 75 N. Y. 134, distinguished.</p>

<p>Appeal from special term, New York' county.</p> <p>Action by George Bliss and others, as executors, against Hiram Fogg and others, to compel the transfer to plaintiffs of certain shares of stock. From a judgment in favor of defendants Charles B. Fosdick and St. John’s Guild (24 N. Y. Supp. 939), plaintiffs and defendants Hiram Fogg, Benjamin Phipps, as ancillary executor, and Mary J. N. Phipps appeal. Reversed.</p>

Application by the American Bible Society for writ of mandamus to the commissioners of taxes and assessments of the city and county of New York. From an order granting a peremptory writ, defendants appeal. Affirmed.

<p>Fraudulent Conveyances—Payment oe Stale Claims.</p> <p>Though a claim for money advanced is barred by the statute of limitations, it is a sufficient consideration for a transfer of property by the debtor in payment as against other creditors of the debtor, provided the amount of the property transferred is not so great as to show an intent to defraud creditors.</p>

<p>1. Case on Appeal—Statement as to Evidence.</p> <p>A statement that a case on appeal “contains all the testimony taken upon the trial of this action” is not equivalent to a statement that it contains all the “evidence.”</p> <p>2. Elevated Railroads—Injuries to Abutters—Evidence.</p> <p>In an action against an elevated railroad company for injuries to an abutting apartment house, caused by the construction and operation of the road, where plaintiff has given evidence as to the rental history of a bank building in the neighborhood, defendant may show that apartments in a bank building bring higher rents than in other buildings.</p>

<p>Partnership—When Relation Exists—Evidence.</p> <p>On an issue as to whether plaintiff was a partner with defendants, it appeared that defendants entered into a copartnership agreement by which defendant W. was to furnish the capital, and have half the profits of the business, the other two defendants to have one-fourth each. The partnership agreement was entered into pursuant to an understanding between plaintiff and defendants that plaintiff should furnish the money for the firm, and that he should have half of W.’s interest, and that he did not wish his name to appear in the firm because it would interfere with his other business. Held, that there was enough evidence to go to the jury on the question whether or not it was the intention of all the parties that plaintiff should be a partner.</p>

Action by the Third National Bank of the City of New York against the Merchants’ National Bank. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendant appeals. Affirmed.

- • Action by Matilda 0. Jantzen, individually and as executrix, against Helen J. Nelson and Others, to recover money alleged to have been paid on a mortgage. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes, defendants appeal. Reversed.

<p>Appeal' from circuit court, New York county.</p> <p>Action by Georgiana Upton, against Abram N. Bernstein and others. From a judgment entered on a dismissal of the complaint, plaintiff appeals. Reversed.</p>

<p>Taxation—Assessment.</p> <p>Where the tax commissioners make an assessment in reliance on a statement furnished by the person assessed, and there is no evidence to discredit such statement, or.in any way suggesting that it is erroneous, " they must take the statement as true.</p>

<p>Appeal from surrogate court, New York county.</p> <p>Appraisement of the estate of Ella S. Hoffman for taxation under the transfer tax law. From the decree of the surrogate assessing and fixing the transfer tax, (26 N. Y. Supp. 888,) the executors and special guardian of Olga Sandford appeal. Reversed in part.</p>

Action by Isaac K. Funk against the Evening Post Publishing Company for libel. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Action by Jacob Kimmer, as administrator of William Kimmer, deceased, against John Weber and Louis Weber, to recover for alleged negligence in causing the death of plaintiff’s intestate. There was a judgment in favor of defendants, and plaintiff appeals. Reversed.

<p>Action by Caroline L. Brown and others against Charles J. Richter, as executor, and another, to declare the will of James W. Lawrence, deceased, void, as unlawfully suspending the absolute ownership of personal property. An interlocutory judgment was entered in favor of plaintiffs, and defendants move for a new trial on a case and exceptions. Reversed.</p>

Action by Howard Conkling against the New York Elevated Railroad Company and another to restrain defendants from the maintenance and operation of their elevated railroad in front of plaintiff’s premises. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

<p>Application by the Standard Gaslight Company for a writ of mandamus to Michael T. Daly, as commissioner of public works.</p>

<p>Action by Lucy H. Kuhn against the New York Elevated Railroad Company and another.</p>

<p>Action by Robert J. Wright against the Haskin Wood Vulcanizing Company.</p>

Action by Elizabeth D. Delancey against Henry Piegras and others- to recover possession of certain real estate. Judgment was rendered in favor of plaintiff and defendant Hunter, and an extra allowance was granted in favor of plaintiff, and, from an order refusing to vacate and set aside such order, defendant Piegras appeals. For former reports, see 25 N. Y. Supp. 961, 26 N. Y. Supp. 806, 807.

<p>Action by one Davenport against the Brooklyn Elevated Railroad Company.</p>

Application by the Metropolitan Brewing Company, as creditor of Honora Callaghan, deceased, to participate in the funds pending the stay. From a decree directing distribution to the heirs disregarding the debts, petitioner appeals.

<p>■Action by Barnard Flood"against the Brooklyn Elevated Railroad Company..</p> <p>Concurring opinion. For majority opinion) see 27 N. Y. Sujpp. 662.</p>

<p>Action by Henney against the Brooklyn Elevated Railroad Company.</p>

Action by Daniel McCampbell against the Cunard Steamship Company, Limited, to recover damages for personal injuries sustained by plaintiff while in the employ of defendant.

Action by William Jacklin against the National Life Association of Hartford to recover the sum of $100 on an insurance policy issued by defendant to one Venie Jacklin, the daughter of plaintiff, and payable to plaintiff. The cause was by agreement of the parties.

<p>Action by Van Sickel against Hsley.</p>

<p>Action by James H. Styler against the Long Island Railroad Company.</p>

<p>Action by Plaut against Moores.</p>

Action by Almeda Waterbury against James Eliphalet Waterbury to recover money alleged to be due. From an order denying a motion by Harriet E. Drew, a junior attaching creditor of defendant, to set aside plaintiff’s attachment on the papers on which it was granted, said Drew appeals.

Two actions by the Central National Bank of Troy against the Fort Ann Woolen Company and John M. Barnett, and two actions by Stephen W. Barker against the same - defendants. ■ From an order in each case denying a motion by the Glen First National Bank, a subsequent- attaching creditor, to vacate and set aside a prior attachment obtained by plaintiff, said Glen First National Bank appeals.

Application by John It. Pruyn for the .appointment of a trustee for the holders of certain bonds secured by mortgage executed by the Saratoga Gas & Electric Light Company February 1, 1887. ■ From an.order denying the application, and setting aside an order theretofore made appointing James L. Scott and Theodore F. Hamilton trustees, petitioners Scott and Hamilton appeal.

<p>■ Action by- the people against Anthony Girard.</p>

<p>Action by Richard Foran against the. New York .Central & Hudson River Railroad Company.</p>

<p>Action by Hugh Merancy Murphy against James W. Whitney.</p>

<p>Action by Emma E. McCabe and Joseph F. McCabe against the city of Buffalo.</p>

<p>Action by Timothy Sbeehan,against.Albert H. Pierce.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Samuel P. Dexter and others against Louis Adler and others.</p>

<p>Action by John C. McQuhae against Charles Lehman.</p>

Action by the people of the state of New York against Carlton H. Betts, principal, and Alois E. Keene, surety. Motion to vacate judgment entered on a forfeited recognizance.

Action by the people of the state of New York against Joseph O’Donnell, principal, and John Boland, - surety. Motion to vacate judgment entered on a forfeited recognizance.

<p>Action by Alexander Rich against the Manhattan Railway Company and another.</p>

<p>Action by Bernard Katz and others against John Haffen and others.</p>

<p>Action by Ernest Lieberman against Oscar E. Vermilye and another.</p>

<p>Action by Jochm Hein against John Wilkins.</p>

<p>Action by Philip Waldheim against Abraham Sonnenstrahl.</p>

Action by Charles J. Close against Pascal P. Beals. Defendant appeals from a judgment entered on a verdict directed by the court in favor of plaintiff for $1,400. For former report, see 21 N. Y. Supp. 1086.

<p>Appeal from trial term.</p> <p>Action by Thomas G. Hague against Henry D. Cone.</p>