Volume 28 — New York Appellate Division Reports

<p>Appeal by the defendants, William H. Johnson and another, from a judgment- of the Supreme Court in favor of the plaintiff as against the said defendants, entered in the office of the clerk of the county of Erie on the 24th day of May, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of December, 1897, denying the said defendants’ motion for a new trial made upon a case containing exceptions.</p> <p>The action was commenced in Erie county in March, 1896, to recover of the appellants and Henry J. Wilkes, a majority of the directors of the “ Buffalo Brass and Iron Bedstead Company,” a stock corporation organized and existing pursuant to the Stock Corporation Law, damages resulting to the plaintiff, who had purchased stock in the said. corporation upon the faith of an annual report made by them of the property of the corporation, pursuant to sections 30 and 31 of the said Stock Corporation Law, which contained-false and material representations as to the financial condition of the corporation.</p> <p>This report was made in January, 1895, and filed as required By the statute, and set forth that the capital stock of the corporation was $100,000 which had been actually issued; that the amount of its debts did not exceed the sum of $66,511.67; that the amount of assets was at least equal to the sum of $170,935.77.</p> <p>The plaintiff, in conjunction with a relative, Martha J. Parsons, was the owner of twelve and six-tenths acres of an island in the Niagara river called “ Connor’s Island.” The appellants were stockholders in the corporation, and after some negotiation through an agent of-Johnson’s with the plaintiff,.'Johnson, on the 30th of September, 1895, entered into a written agreement with the plaintiff, whereby it was agreed that the twelve and six-tenths acres on “ Connor’s Island,” upon which a valuation of $25,200 was fixed, subject to a mortgage-of $5,000, should' be exchanged for 202 shares of the capital stock of the “ Buffalo Brass and Iron Bedstead Company,” being stock held and owned by Johnson, and' the par value of which was $22,000, each party agreeing to deliver to the other the property to be transferred. Pursuant to this agreement the plaintiff, his wife and Martha J. Parsons conveyed the premises at. the request of the defendant Johnson to his brother Walter J. Johnson, and the defendant Johnson transferred the 202 shares of the capital stock mentioned to the plaintiff, and the plaintiff ultimately surrendered- the certificates held by Johnson and received others issued to him by the corporation. The deed to the land upon the island was taken in the name of Johnson’s brother for the benefit of the defendants Johnson, Conroy and Wilkes, and they were thus interested in the purchase of the land hy Johnson.</p> <p>There was evidence given upon the trial before the jury strongly tending to prove that, before purchasing the stock, plaintiff examined the annual report above mentioned to ascertain the value of the stock of the corporation, and that, relying upon such report, he purchased the stock. The evidence also made it quite apparent that, at the time of the making of' the annual report and at the time of the purchase of the stock by the plaintiff, the stock, was worthless and the corporation was insolvent.</p> <p>Other facts will appear in the opinion of the court.</p>

<p>Appeal by the defendants, The Union Bank of Rochester and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk.of the county of Monroe on the 15th day of May, 1897, upon the decision of the court rendered after a trial at the Monroe Special Term.</p> <p>The action was commenced May 21, 1896. At that time the plaintiff was an infant of the age of eleven years.</p> <p>The complaint alleged that in the month of February, 1895, the plaintiff was the owner of certain real estate in the city of Rochester ; that the defendant Holmes B. Stevens was his general guardian ; that the guardian for some years had carried on the business of a brewer at a brewery upon the plaintiff’s premises; that in carrying on the business he had borrowed money of the defendant The Union Bank of Rochester and given promissory notes therefor signed by himself as general guardian of the plaintiff; that the business was carried on by the guardian in the name of -the infant without authority, and the debt for the money loaned was the debt of the guardian individually and not that of the plaintiff; that in the month of February, 1895, Stevens, as general guardian, presented a petition to the Supreme Court setting forth the existence of the indebtedness to the Union Bank in the sum of $24,500 and upwards and praying that the said real estate might be mortgaged for .the payment of the debts; that such" proceedings were had that a special guardian of the infant was appointed, and who thereafter, name of the infant, executed and delivered to one Gilman H. Perkins amortgage upon the real estate of the plaintiff which was duly recorded in the Monroe county clerk’s office for the sum of $25,000 and interest thereon, payable one year from date, and that Perkins assigned the said mortgage to the Union Bank; that Perkins paid the special guardian the sum of $25,000, aiid the special guardian, after taking put certain expenses, applied the balance of the money to the payment of the debt to the Union Bank; that the proceedings to mortgage the real estate of the plaintiff were undertaken pursuant to an agreement between the said Holmes B. Stevens and the Union Bank for the purpose of discharging said indebtedness; that Perkins paid the money to the Union Bank under an agreement that the same, or the net proceeds thereof, or what should be necessary, should be applied to discharge the debt to the Union Bank, and that the bank should refund to Perkins, who was a director and vice-president of the said bank, the moneys so paid by him, and that the assignment of the mortgage to the bank was made in pursuance of that arrangement; that the plaintiff was without means to pay said mortgage, and that there was a prior incumbrance by mortgage upon his real estate for $60,000.</p> <p>Judgment was demanded that the mortgage should he declared null and void and canceled of record, and that the proceedings in the Supreme Court resulting in the execution of such mortgage be set aside and vacated “ as unadvisedly made and granted by this court,” and for further relief.</p> <p>The defendants answered, alleging that the proceedings that were attacked in the complaint as invalid were valid; the issues were tried at the Monroe Equity Term, and upon the trial the defendants’ counsel moved to dismiss the complaint upon the pleadings, and upon the opening of counsel for the plaintiff (which was substantially a statement of the matters set forth in the complaint), upon the ground that the complaint did not set forth a cause of action, in that (1) it neither questions the jurisdiction of the court which entertained and directed the proceedings referred to therein, nor their regularity nor their sufficiency; (2) if every fact stated in the complaint were true, it would not give the plaintiff any cause of action; and (3) there is no averment of fraud or collusion, imposition, mistake or any other ground of equitable jurisdiction. The motion was denied and the defendant excepted.</p> <p>‘ It appeared upon the trial that on the 27th of February, 1895, the defendant Holmes B. Stevens, as general guardian, presented a verified petition at a Special Term of this court held in the city of Rochester by which it appeared that the plaintiff' at that time was an infant of ten years of age; that he was residing with his mother in Rochester, although they were then sojourning'in Paris, France,, for his better education; that on the 6th day of November, 1890,, he (Stevens) had been appointed such general guardian by the surrogate of Monroe county; that Edward K. Warren, who was the paternal grandfather of the plaintiff, had carried on the brewery business upon a portion of the plaintiff’s premises, and had died prior to May, 1888, leaving Harriet M. Warren his widow, and Edward C. Warren his son and only heir at law, and leaving a will by which he devised and bequeathed his property, real and personal, to his wife during her life, or until she should marry again, with remainder to the plaintiff, appointing his wife the sole executrix of his will, with power to sell his real estate for such prices as should be approved of by her and by Hiram L. Barker of Rochester; that on the 10th of June, 1888, the widow, with the consent of Barber, conveyed by deed to Edward C. Warren, the father of the plaintiff, the brewery property for the sum of $38,000, subject to a mortgage of $37,000 held by the Rochester Savings Bank, and took security for the payment of the amount that Edward O. was to pay for the property in a mortgage upon the property, and in a few days thereafter the widow sold to her son Edward O. the personal property used in connection with the brewery for $15,000, and took his'notes therefor. In 1890 the widow died and the petitioner was duly appointed administrator with the will annexed of the estate of Edward K. Warren, who, at the time of his death, was the owner in fee of the real estate covered by the mortgage in controversy; that upon a sale -of the brewery property to' the son, Edward 0. Warren, he entered into possession of the property and conducted the business of manufacturing ales and porter; that Edward O. mismanaged the business; that the petitioner brought an action against Edward O. Warren in the Supreme Court, as guardian ad litem for Haskell B. Warren, the plaintiff, to set aside the deed of the brewery premises and the transfer of the personal property to Edward C. Warren, upon the ground that the sale to him was. for a grossly inadequate consideration, and by collusion with his mother with intent to deprive the plaintiff, Haskell B. Warren, of more than $100,000 of the value of the property. That action was settled, Edward C.Warren transferring the personal property to the petitioner as administrator, which was substantially all the personal property belonging to the brewery property, including books of account; and the said Edward C. Warren also, in. conjunction with his wife, by deed, conveyed the brewery real estate to the plaintiff; that Edward O. received as a consideration for these transfers the sum of $8,000, which was paid to him out of the proceeds of certain mortgages upon plaintiff’s real estate that had been executed under the authority and direction of the County Court of Monroe county; that thereafter, and in November, 1891, the petitioner, as administrator, had a-final accounting before the surrogate of Monroe county, and that court made an order settling his accounts, and.directed that all the property in his hands as such administrator be turned over to the petitioner as the general guardian of the plaintiff. The petition then sets forth the real estate and personal property of the infant, the incumbrances upon the real estate, the income from the real estate. The value of the real estate is stated at $198,000. The incumbrances by mortgage were $65,000, besides some accrued and unpaid taxes. The personal property, consisting of a bond and mortgage, household furniture and notes due the brewery company, amounted to $3;143.03, and, in addition to that, the boiler, engine, piping connections, etc., of the brewery and malt house was called personal property, and valued at $6,229.99. Upon the settlement .with Edward O. Warren the petitioner went, into possession of the brewery in 1891, and continued in possession and carried on the business until the 1st day of July, 1893, at which time the personal property used in the brewery business, including the good will' of the concern, was sold to a corporation known as the E. K. Warren Brewing Company, under the order and direction of the Supreme Court, and the petitioner received in exchange therefor $23,000 in the full-paid stock of the corporation. And the petition further states that the personal property and the income of the real property were insufficient to pay the infant’s debts, and “ That at the time of the transfer of said brewery business to your petitioner by said Edward C. Warren, the estate and business were largely involved and very heavily in debt. - That said business was conducted by your petitioner until the first'day ,of July, 1893, when the same was sold and transferred to the E. K. Warren Brewery Company, as hereinbefore stated. That upon said sale no money was received by your petitioner, but the entire purchase price of said business was paid in the stock of the said E. K. Warren Brewery Company. That said stock was- not and is not now salable, nor could your petitioner realize any money upon it, That the estate and business, was, -at the time of such sale, largely in debt, and it became necessary to raise a large sum of money to pay said debts,.</p> <p>“ That your petitioner borrowed from the Union Bank, of Rochester at divers' times sums of money aggregating about twenty-four thousand five hundred dollars, for which loans he gave his promissory note as guardian of said infant; that said Union Bank of Rochester has ever since carried said loans and renewed said notes from time to time; that said Union Bank is now impatient for the payment of said obligations,, and threatens to sue the same unless paid; that there are no other debts due from the estate, except several small amounts, aggregating about one thousand dollars, a list of which are hereto attached ; and also certain back taxes, both city and county, which are unpaid; * * * that no dividends have been paid upon the stock of the E. K. Warren Brewery Company, held by said infant; * * * that said infant has no income or debts except as aforesaid; that the interests of said infant will be substantially promoted by paying the debt of the Union Bank of Rochester, for, unless paid, the said bank will commence suit upon its said notes, and the said property of said infant, both real .and persona], will be sold at a sacrifice to pay any judgment obtained by said Union Bank against said infant in said actions; that the income of said infant from its said property is not sufficient to pay said indebtedness; * * * that Henry G. Danforth, residing at number 535 West avenue, in the said city of Rochester, who is not related to said infant in any manner, and who is a competent and suitable person to be appointed a special guardian for the purpose of making said mortgage, is willing to give security as such guardian by such a bond as the court may require.” (Naming the sureties.)</p> <p>The petition prayed that the real estate of the plaintiff be mortgaged for the payment of the debt due to the Union Bank. Upon the filing of this petition the Supreme Court made an order that Mr. Henry Gr. Danforth, upon filing with the clerk of the court the bond as required by law, in the sum of $50,000, with at least two-sufficient sureties, freeholders of the State, who should justify, etc., be appointed special guardian with respect to the proceedings. The-bond was filed and certified; report was made to the court- and the court referred the matters set forth in the petition to a referee, to-inquire into the merits of the application, examine into the truths of the allegations, hear the allegations and proofs of all persons-interested in the property or otherwise interested in the application, and report his opinion thereon, together with the testimony, with all convenient speed. The subsequent proceedings as to the reference,, the report of the referee, the taking of testimony before the referee-covering all the matters stated in the petition, were in conformity with the provisions of the Code (§§ 2348-2351), as, indeed, were all the subsequent proceedings, resulting in the execution ' of the mortgage upon the plaintiff’s real estate to secure the debt of the Union Bank, unless it may be in regard to the agreement, entered into between the special guardian and Gilman H. Perkins,, the purchaser, and as to that the special guardian reported that lie had entered into an oral agreement with Perkins, subject to the-approval of the court, for mortgaging the property for the sum of" $25,000, payable in a year, with interest- at six per cent, etc., with conditions as to insurance. This agreement was approved by the court, as was also the report of the referee, and, upon the sale of the premises, the court directed the execution of the mortgage ; the special guardian executed and delivered the mortgage and made his. report to the court, which was duly confirmed and approved.</p> <p>Upon the trial of this action it appeared from the testimony given by the defendant Stevens and others that, after Stevens had obtained possession of the property, in September, 1891, he conducted the-business as it had been formerly carried on ; that from the time it came into his hands he made efforts to sell or lease the property, and. that he sold it as soon as he had an opportunity; that it was essential to the preservation of the brewery business and for the protection of the interests of the infant to carry on the business; that it .was necessary to operate the real and personal property of the brewery together in order to obtain income from the real and personal property and to preserve the good-will of the business and that all the money obtained from the Union Bank was: used necessarily in that business.</p> <p>The court, in its findings upon this trial, found the facts substantially as set forth in the petition, and that the money obtained from the-Union Bank was used in the brewery business, and found, as a matter of law, that the indebtedness represented by the note held by the Union Bank was the personal indebtedness of the defendant Stevens, and not an indebtedness of the plaintiff Haskell B. Warren. It also found as a fact that Henry G. Danforth, at the time that he was appointed special guardian, was the attorney for the defendant, the Union Bank. The trial court also held that the mortgage was void, and the assignment of it to the bank was void, •and declared all proceedings had and orders made resulting in the execution of the mortgage void, and that the mortgage and the assignment thereof should be canceled, upon which decision judgment was rendered for the plaintiff.</p>

<p>Appeal by Emma E. Parrish, the third person named in the above-entitled proceeding, from an order of the Supreme Court, made at the Monroe Special Term and. entered in the office of the clerk of the county of Ontario on the 4th day of December, 1897, denying her motion to vacate an order made by the county judge of Ontario county, requiring her to appear and be examined concerning the property of the judgment debtor, W. Scott Parrish, and restraining her from interfering with any of said property, and also from an order made at the Monroe Special Term and entered in the office of the clerk of the county of- Ontario on the 29th day of December, 1897, denying her motion to amend the first-mentioned order or for leave to renew said motion.</p>

Appeal by the defendant, The Village of Randolph, from an order of the Supreme Court, made at the Cattaraugus Special Term and entered in the office of the clerk of the county of Cattaraugus on the 17th day of November, 1897, as amended by an order made at the Erie Special Term and entered in the office of the clerk of the county of Cattaraugus on the 13th day of December, 1897, denying the defendant’s motion for an order directing that the record herein be corrected by…

Appeal by the plaintiff, Henry H. Lyman, as State Commissioner of Excise of the State of New York, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Ontario on the 8th day of October, 1897, granting the defendants’ motion to change the place of trial from the county of Ontario to the county of New York, for the convenience of witnesses.

Appeal by the plaintiff, Samuel L. Hawke, from a judgment of the Supreme Court in favor of the defendant, John Crosby Brown, individually and as one of the executors, etc., of James Brown, deceased, entered in the office of the clerk of the county of Erie on the 9th day of September, 1897; also from a judgment in favor of the defendants, Edwin P, Thayer and Charles R. Hastings, entered in said clerk’s office on the 30th day of October, 1897, upon a nonsuit granted by the…

Appeal by the defendant, Catherine Franey, from a judgment of-Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 19th day of March, 1897, upon the report of a referee granting the plaintiff an absolute divorce from the defendant.

Appeal by the defendant, William Eggleston, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 6th day of October, 1894, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of September, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The Predigested Food Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of February, 1898, denying the plaintiff’s motion for an open commission to examine without the State upon oral questions certain witnesses named in the commission and such other witnesses as might be produced by either party.

<p>In an action to enforce a guaranty of payment for goods sold to the firm of B. 0. Young & Co., it is not proper to receive evidence of a conversation, which took place in the absence of the guarantor, between the vendors and B. C. Young and one Bruns at the time of the arrangement for the purchase of the goods, as to who composed the firm of B. 0. Young & Co., to the effect that Young and Brims were going into business under the firm name óf B. C. Young & Go., especially where under the proofs a question is presented on the trial as to whether, when the goods were sold, the firm of B. C. Young & Co. had not ceased to exist, and a new firm of Young & Bruns had been created.</p> <p>Such conversation is not part of the res gestee.</p> <p>Appeal by the defendant, Charles L. Tiffany, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 26th day of November, 1897, affirming a judgment of the G-eneral Term of the City Court of New York, entered in'the office of the clerk of said court on the 8th day of July, 1897, upon ah order affirming a judgment in favor of the plaintiffs against the said defendant, entered in the office of the clerk of said court on the 10th day of- February, 1897," upon the verdict of a jury, and also, as stated in the notice of appeal, from a judgment of the Appellate Term of the Supreme Court, entered in the office of the clerk of the City Court of New York on the 27th day of November, 1897,-upon said order of affirmance.</p>

Appeal by the defendant, the Independent Order Free Sons of Judah, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 11th day of October, 1897, denying the defendant’s motion for an order substituting Annie Blee as defendant in its stead.

Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of October, 1897, upon the verdict of a jury for $3,000, and also from an order entered in said- clerk’s office on the 14th day of October, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Emma M. Lockwood', from a judgment, of the Supreme. Court in favor of the defendant, entered in the office of the clerk of the county of New. York on the 23d day of' February, 1897, upon the dismissal of the complaint by direction .of the court after a trial before the court and a jury.

Appeal by the German Government, the Royal Prussian See-Amt and Rudolf Dulon, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 19th day of October, 1897, vacating and setting aside a subpoena directed to Clement Acton Griscom, Jr., requiring him to appear before Rudolf Dulon, Esq., as commissioner appointed by the Royal Prussian See-Amt.

Certiorari issued out of the Superior Court of the city of Hew York and attested on the 26th day of April, 1895, directed to-James J. Martin and others, composing the board of police commissioners of the police department of the city of Hew York, commanding- them to certify and return to the office of the clerk of said court all and singular their acts and proceedings in regard to the ■ removal of the relator from his position as a member of the police force of the police…

<p>Credit indemnity to a commission merchant — what apportionment is contemplated by the use in the 'policy of the word “pro-rated"—application of the policy to goods consigned to the insured and to his advances and commissions on the sale thereof— when an action thereon is not premature — interest is not chargeable after suit brought.</p> <p>A credit insurance policy insuring a commission merchant for one year against loss from the insolvency of his debtors (no single loss of a debt due from any one individual or firm to exceed §10,000), and also protecting his advances upon goods consigned, provided by its 10th clause that “all settlements accepted, amounts paid, secured or guaranteed, or in process of collection on any claim at the time of final proof of loss, shall first be deducted and pro-rated on shipments made under ” the policy before another condition, providing for additional deductions of fifteen per cent of the amount of the claim, and of five-eighths of one per cent of the amount of the annual sales of the merchant, should apply.</p> <p>Held, that the word “pro-rated” required an apportionment when a debt was. made up of the purchase price of goods, some of which were sold within the period of the policy, and some of which were not, so that the part insured should receive its due share of a payment; that it did not require, where a debtor failed, that the amount realized upon goods consigned to the creditor, the insured, should be apportioned ratably between the §10,000 of debt covered by the policy and the excess of the debt over $10,000 not so covered;</p> <p>That the insured was entitled to deduct from the price realized on the sale of goods consigned to him his commissions upon the sales so made before crediting the moneys received on the sale upon the indebtedness;</p> <p>That as the policy provided that all amounts “secured or guaranteed, or in process of collection ” as well' as those actually paid, should he included in the. proofs of loss, it permitted the insured to sue before he had sold the consigned goods, and that, consequently, as the debt necessarily became fixed as of the date when he brought suit, he could not recover interest which accrued upon his advances subsequent to that date.</p>

<p> Bills and notes—when the facts require the submission to the jury of the question whether the holder of the paper toolc it in good faith. </p> <p>In an action brought to recover upon notes issued in the aggregate amount of §10,000 by a Pennsylvania railroad corporation, whose president, residing in the city of Hew York, was authorized by a resolution of its board of directors to use them in the purchase of cars, it appeared that the president directed that the notes be drawn to his private secretary as payee, who indorsed them, and that the president then pledged them with other collateral to secure a Toan of §80,000, used for his own purposes, made by a Boston capitalist, to whom at the time he owed some $75,000, not well secured, much of which was overdue and unpaid, and the interest upon which had not been paid as from time to time it had become due; that the president’s business was speculative in its character and was chiefly carried on with borrowed capital; that his railroad had undergone many vicissitudes and had only just emerged from a receivership, and that the capitalist, a lawyer of forty years’’ experience, himself the president of a railroad, without making any inquiry as to the payee ahdindorser or as to the’ railroad, loaned the money on the faith of these notes, which were not protested by him at their maturity and were sought to be enforced against the railroad company only after the lapse of some two years or more thereafter. Held, that the facts of this case, the character and appearance of the paper itself, its possession by the railroad company’s president, the complete ignoring of the intervening indorser, the lack of inquiry as to the corporation itself, the previous relations between the president and the capitalist, the speculative nature of the former’s business, his borrowing of money from the latter for such business,, his large existing indebtedness matured and unpaid, the failure of the capitalist under these circumstances to make the simplest and most natural inquiries, the neglect to protest the paper at maturity, and the failure for two years or more thereafter without plausible excuse to ask for payment, should be submitted to the jury upon the question of the good faith of the capitalist in taking the paper.</p>

Appeal by the defendant, Abraham Mencke, from an order of the Supreme Court, made-at the New York Special Term, bearing date the 3d day of February, 1898, and entered in the office of the clerk of the county of New York, granting the plaintiff’s motion for leave to issue execution upon a judgment obtained in the action. The judgment was recovered in the District Court of the city of New York upon the 21st of March, 1887. No execution was ever issued' upon it.

<p>Royalties under a patent — an exclusive right to manufacture is not defeated bp ■ proof of competition and infringements—a licensee is liable until it definitely renounces the right to usé the patent — a judgment for the royalties for some yean is res'acljudicata as to such right in subsequent ones.</p> <p>The owners of a patent for making watch cases contracted with a watch manufacturing company to give it the exclusive right to make, under such patent, silver and gold watch cases, to be manufactured according to samples furnished by one of the patentees named Skidmore. A price to- wholesale dealers was fixed by the contract, but a reduction in price was contemplated in case of competition. It appeared from the judgment rolls in actions brought by Skidmore against the company, to recover the royalties due in 1891 and 1892, in' which he recovered royalties under this contract, that Skidmore prepared models or samples which were approved, accepted and -vised by the company, and further that Skidmore and the other patentee obtained from a person named Fitch, who claimed that their patent was an infringement upon his, a right to.use his patent, which it appeared was a valid one.</p> <p>In an action brought by Skidmore to recover the royalties for 1893 and 1894 it appeared that the company had manufactured in those years, under the protection of the original patent and that of Fitch, watch cases from Skidmore’s model, but had stamped them only with the name of Fitch as patentee; that watch cases very much resembling those made by the company under this contract had been put upon the market, and that the sales by the company had fallen off, although it was not shown that this sale by other parties had caused it. The watch company had before 1893 asserted its right to make cases without. paying a royalty to Skidmore, but had not given him notice of its intention to ' act upon such a right. In 1896, and after the present action was .begun, Skid-more’s patent-was adjudged to be invalid. A referee, to whom the action was referred, dismissed the complaint, sustaining the.defense thereto of a failure of consideration.</p> <p>Held, that the company had, in 1893 and 1894, an exclusive right to manufacture the watch cases under the valid patent of Fitch, and that, especially in view of the provisions of the contract contemplating a possible reduction in price-in case of competition, proof that other similar watch cases were put upon the market in competition with those of the company, and that a decrease had taken place in the sale price, did not justify a finding that the company had not enjoyed such an exclusive right.</p> <p>Semble, that this would be so even were it shown that such similar watch cases Were an infringement of the Fitch patent.</p> <p>That' as the company had manufactured watch cases in 1893 and 1894 under the protection of the Skidmore patents and that of Fitch from samples furnished by Skidmore, and had stamped them with Fitch’s name, and as the patentees had during that period relinquished their right to manufacture, and as the company had never unequivocally renounced the protection of the license thus obtained, it was liable for the royalties for those years;</p> <p>That the judgment rolls, in the actions brought by Skidmore in 1891 and 1892 against the company upon the same contract were, so far as they construed the contract, final determinations as to the rights of the parties.</p>

<p>Appeal by the defendants, Samuel N. Berlin and Bernard Trosky, composing, the firm of Berlin & Trosky, from an interlocutory judgment of the Supreme Court in favor of the plain tiffj entered in the. office of the clerk of the county of New York -on the 24th day of May, 1897, upon the decision of the court rendered after a trial at the New York Special Term. '</p>

Appeal by the plaintiffs, J. Tredwell Richards and Alfred S'. Brown, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of .New York on the 26th day of November, 1897, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

<p>• Appeal by the plaintiff, Reckitt &.Sons (Limited),, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of May, 1897, upon the decision of the court rendered aftér a trial at the New York Special Term dismissing the complaint.</p>

<p>Action on an indebtedness discharged in bankruptcy—proof of a subsequent promise to pay — what promise in writing is insufficient to sustain the action.</p> <p>Under the practice prevailing in the State of New York a creditor may bring'an action upon a debt discharged in bankruptcy and prbve in avoidance of the ■ discharge a new promise of payment made by the debtor; such new promise must, however, under the requirements of chapter 324 of the Laws of 1882, be in writing.</p> <p>A letter written by a debtor who has been discharged in bankruptcy, stating that it was his duty to devote the profits of his business to the discharge of his debts, and that he proposed to pay the debt in question before paying other debts, but from which it is evident that this intention was to be carried out only in case his affairs should continue so prosperous that he would be easily able to do so, and that the debtor did not intend to bind himself by any promise which would interfere with the business in which he was engaged or With the use of his money as he might see fit to use it after the letter was written, does not constitute a; promise to pay which will revive the debt.</p>

<p>Action by a real estate broker-for commissions — effect of pleading a special contract to accept less—cancellation of the contract of sale after the purchaser had defaulted .—extension of time of payment given to him,</p> <p>A real estate broker, who had been employed by a corporation to procure-a purchaser for a tract óf land owned by it, at the price of §2,400,000, for which service he was to receive a commission of one per cent, after finding a person, Lewis S. Samuel, who was willing to purchase, but whom the corporation expressed some disinclination to accept, wrote a letter to the corporation, under date of May 31, 1893, in which he agreed, under the conditions substantially hereinafter stated, to accept §6,500, and subsequently — his proposition being; accepted — gave a receipt for that sum under the following conditions, viz., as- “ being the amount within named as to be paid us on account our brokerage for sale of its site to Lewis S. Samuel, as per contract for the same, dated May 29th and made yesterday, and being all that is to be paid to us for such brokerage-if such contract be not fulfilled.” By its terms the contract of sale was to have been completely executed on January 2, 1895, but before that date a modification thereof was made by the parties to it (to which the real estate broker-refused to consent), so that a payment of only §100,000 was required on that day,, and the final conveyance was postponed until July 1, 1895. The purchaser-failed to make any payment on January 2, 1895, and on January 26, 1895, the contract, by mutual consent of the parties thereto, the real estate broker not-being consulted, was canceled.</p> <p>On the trial of an action subsequently brought by the broker to recover commissions as upon a quantum meruit, the complaint was, on plaintiff's motion-amended by setting up a special contract, set forth in the letter of May 31, 1893, and the court thereafter directed a verdict for the defendant.</p> <p>Held, that the plaintiff could not, in view of such amendment of the complaint, insist, on an appeal from the judgment entered in the action, that his letter of May 31, 1893, was without consideration, and, therefore, not binding upon him;</p> <p>That the plaintiff’s rights were to be determined by the rules applicable to such letter under the terms of which he was bound to show that the contract between Samuel and the corporation had been performed, or that performance had been prevented by the corporation;</p> <p>That when Samuel was in default on his contract on January 2,1895, the corporation was not bound to sue him either for specific performance or for damages, but might regard the contract, as at an end, in which latter event the right of the real estate broker to further commissions was lost;</p> <p>That the cancellation of the contract of purchase by mutual consent of the parties simply released the right of action of the corporation against Samuel for damages, in which the real estate broker had no interest;</p> <p>That the modification of the contract, Samuel not having paid on January 2, 1895, even the smaller sum to which the payment of that date was, by. such modification, reduced, caused no injury to the real estate broker. '</p>

<p>Appeal by the petitioner, Henry II. Lyman, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of December, 1897, denying the petitioner’s application for the revocation and cancellation of the liquor tax certificate granted to the Young Men’s Cosmopolitan Club of New York.</p>

<p>Appeal by the plaintiff, William Crawford, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of March, 1898, denying the plaintiff’s motion for an order of reference.</p>

Appeal by the relator, Charles B. Throckmorton, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of February, 1898, denying the relator’s- motion for a writ of mandamus directing the defendants forthwith to restore the relator to active duty in the position of assistant superintendent in the street cleaning department in the city of New York.

<p>The issue of a liquor tax certificate depends entirely on the application— the officer issuing it has no discretiona/i'y power.</p> <p>By section 19 of the Liquor Tax Law, as amended in 1897 -(1896, chap. 112, as amended by chap. 312 of 1897), the right of an applicant to a liquor tax certificate is made to depend altogether upon the statements contained in his application therefor; that section leaves no discretionary power with the officer empowered to issue the certificate.</p>

<p>Assessments to pay for easements over land in streets which a/re closed — they are made for a public purpose and are constitutional.</p> <p>Chapter 1006 of the Laws of 1895, providing for the closing of streets in certain cities, is not unconstitutional in its requirement that assessments be made upon neighboring property to pay for the extinguishment of private easements over the land of the streets thus closed and vested in individual ownership (in an individual grantor if the streets were made by dedication, or in the city of Hew • York if the streets were opened by statutory proceedings for that purpose), as the object of the statute is not confined exclusively to thus vesting the title free from incumbrance in private ownership, but its main object is, as declared in the 1st section of the act, to “more effectually secure and preserve regularity and uniformity in the general and permanent plan of streets and avenues and public places therein, or where other public necessity, in the judgment of such local authorities, requires the discontinuance; ” embraced in which necessity is the advantage óf a regular and harmonious street system which is devised not only with .reference to light and air to be furnished to buildings to be erected in such streets, but also with reference to drainage and sewerage and the grading of the surface of the streets in particular localities, matters pertaining to public health and convenience, and also with reference to accessibility of particular properties, all of which are public advantages.</p> <p>The fact that., as a consequence of closing a street, private ownership in its bed results, and that provisions are made by the law under which the land can be utilized and rendered valuable, does not convert the main purpose of the legislation from a public into a private one.</p> <p>Ingraham, J., dissented.</p>

<p>Forgery — alteration- of a check by aM addition thereto of the name of an alternative payee— when, under the pleadings, a question is presented for the jury.</p> <p>In ah action against a trust company to recover money deposited with it by .the plaintiff, which the complaint alleges was paid out by the trust company upon ' a check drawn by the plaintiff, altered, as alleged, by the insertion therein of the name of an alternative payee to whom it was paid, a denial of any knowledge or information sufficient to form a belief whether the name of the alternative payee was inserted in the check requires, where there is a conflict of evidence upon that subject, the submission to the jury of the question whether there had been any unauthorized change made as to the payee of the check.</p>

Appeal by the defendant, Samuel I. Acken, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of June, 1897, upon the verdict of a jury, for $2,000, and also from an order entered in said clerk’s office on the 29th day of June, 1897, denying the defendant’s motion for a new trial made upon the minutes.

<p>Hire insurance—'validity of a "binding slip," either as a renewal of a former policy or as an independent complete contract —proof of a custom substituting a different liability for that expressed by the slip, is inadmissible — a denial by the insurer of all liability excuses the insured from making tender of the premium ■— effect of knowledge by the insurer that a building stands on leased ground — construction of a statement that the insured, a tenant of the land, is the sole owner of the building insured.</p> <p>An insurance company which had issued to a person who had erected a building upon leased land, and paid for it, a policy insuring the building against loss by fire for one year from January, 1889, which policy was renewed for the year 1890, about the 1st of January, 1891, delivered to the agents of the insured a binding slip upon the building in question in the following form:</p> <p>“ Beecher & Benedict.</p> <p>“New York, 89 .</p> <p>“Insure E. M. Van Tassel.</p> <p>“ §10,000 for 12 months, at</p> <p>“ On Building N. E. corner 13th Av. and W. 11 St.</p> <p>“ N. Y. City.</p> <p>“ In Store.</p> <p>“Binding this 1 day of Jany., at noon.</p> <p>“ (this memo, to be void on delivery of the policy</p> <p>“ at the</p> <p>“ Office of Beecher and Benedict).</p> <p>“ Company: Amount. Accepted..</p> <p>“ Greenwich. 10000. 'A.</p> <p>“ Renewal.</p> <p>“ 559298 not in force.</p> <p>“WM. ADAMS.”</p> <p>In an action brought to recover for a loss which had occurred January 13-14, ' 1891, it was</p> <p>Held, that the binding slip constituted a valid contract of insurance, either as an independent contract of insurance, in which view it was subject to the terms and conditions of the usual policy issued by the company, or as a renewal of the former policy, in which event it was subject to the terms and conditions of such former policy;</p> <p>That the instrument was unambiguous, containing all the elements of a valid and enforcible contract of insurance; and hence that proof that the binding slip was issued in accordance with a custom prevailing in the insurance business to issue such instruments merely as temporary gratuitous insurance, to be operative only until the underwriter could determine whether he would accept ór reject the proffered risk, was properly excluded, as the effect of such evidence would he to vary its terms and to substitute another and different liability in the place of that which appeared plainly upon its face;</p> <p>That as the insurer had absolutely repudiated all liability for the loss, a tender by the insured of the premium was unnecessary, as the law does not require the performance of, an idle ceremony;</p> <p>That as the insurer knew, from a statement made in the application for the former policy, that the insured building stood upon leased ground, it could not successfully resist payment of the loss upon the ground that there had been a violation of a condition of the New York standard policy (upon the conditions ■ of which policy the plaintiff’s rights depended), providing that, if the interest of the insured be other than unconditional and sole ownership, the policy shall be void;</p> <p>That, assuming that the plaintiff had made a declaration that he was the sole owner of the building, such declaration only related to a description of the plaintiff’s insurable interest in the building, arising from the fact that he had . erected and paid for it.</p>

<p> Supplemental complaint—a grantee of the subject-matter of the action may not set ■ forth therein an independent right of action in his favor. </p> <p>In an action brought against an elevated railroad company to restrain its use of 'the street in front of abutting premises and for the recovery of past damages, where the property and the right of action have been - conveyed' pending the action, it is not the office of a supplemental complaint to set forth, on behalf of the grantee, a substituted plaintiff, the fact of the continuance of the use of ■ "the street by the railroad company subsequent to the time of 'the conveyance, in order that the complaint may continue to justify the claim for an injunction, which would otherwise be lost by such transfer of the property.</p> <p>Section 544 of the Code of Civil Procedure does not authorize the pleader to set forth in a supplemental complaint an entirely independent right which had no existence when the action was brought, nor any connection with the then ’ pending suit.</p>

<p>Appeal by 'the defendant, Patrick Gallagher, from a judgment of the Supreme Court in favor of the plaintiff and the defendant, The Mayor, Aldermen and Commonalty of the City of New York, entered in the office of the clerk of the county of New York on the 14th day of June, 1897, upon the decision of the court rendered after a trial at the New York Special Term.</p> <p>The action was brought for the foreclosure of a mechanic’s lien.. It appeared upon the trial that the defendant, a builder, had entered into a contract with the trustees of a school for the construction of a school building on Edgecombe avenue. Thereafter the defendant made a sub-contract with the plaintiff, under which the latter undertook to “ furnish and provide all the work and materials necessary or proper in, toward or about the cut stone work and marble tablet,, including the setting of all blue stone steps and platforms for all. stoops and entrances to yards ” of the school building. Under a. claim that the contract was fully performed, the plaintiff sought in this action to recover a balance due on the contract. The question most seriously contested by the defendant was as to whether the-plaintiff had, without unnecessary delay, performed his work as-required by the terms of the contract. The learned trial judge, in his decision, after summarizing the contract entered into between, the parties, held: “ The plaintiff thereupon proceeded with and substantially completed in due season all the work and materials by him. agreed to be furnished and provided as aforesaid. But he did not furnish work and materials provided for in said contract of the value-of three -hundred and seventeen dollars.” That sum, therefore, was deducted from the amount claimed by the plaintiff, and the balance, $4,176, was awarded, with interest thereon.</p>

<p>Contributory negligence — brick falling through an elevator shaft — a hodcarrier continuing work under a promise that the dangerous condition will be remedied.</p> <p>In an action brought to recover from the defendant, who was engaged in reconstructing a building, damages for injuries sustained by the plaintiff, a hod-carrier, while employed in carrying brick from the street to an elevator, to which it was his duty to attach the hod, and by which the hod was carried ’ to the upper stories of the building, it appeared that the plaintiff, when about three or four feet from the elevator, was struck by a brick falling down between the open beams of the floor above, upon which no flooring had been laid, except two planks above the elevator, as was also the case with the various tipper floors; that complaints that the place was insecure had been made to the foreman of the defendant by the plaintiff, who was told by the foreman to go ahead, that -he would have the floor planked over and would make it all right.</p> <p>Held, that the plaintiff was guilty of contributory negligence in that, with full knowledge of the danger, he had continued to work, relying upon the promise of the foreman that at some future time he would protect the workmen from the obvious danger of missiles falling through between the open beams.</p> <p>The present case distinguished from cases in which, while there is an apparent danger, to which the attention of the master has been- called, the servant continues to work, in reliance upon the superior knowledge of the master and his assurance that there is no. danger.</p>

<p>Equity — injunction to prevent an encroachment upon real property —the remedy is not lost beca/use the act is consummated—proper form of judgment.</p> <p>The jurisdiction of equity depends upon the position of the plaintiff and the relief to which he is entitled at the time the suit is brought. The measure of the relief is adapted to the situation at the time of the decree.</p> <p>In an action brought to restrain the defendants from interfering with an independent wall on the north side of a building belonging to the plaintiffs, known as No. 471 Broadway, New "York, city, in the erection on the north thereof of a new building in place of No. .473 Broadway, the complaint alleged that the wall upon which the encroachment was about to be made was “on the property of these plaintiffs, and these plaintiffs have, as they are informed and believe, the right to maintain. it as it now stands, but the defendants propose to and will, unless restrained as aforesaid, trespass without right, authority or due process of law, but with force and • violence will enter upon these plaintiffs’ property and remove a portion of said wall as aforesaid, and these plaintiffs aver that the maintenance of said wall does not trespass upon the defendants’, said property, and the defendants well know the facts so to be,” and ended with a prayer that the defendants “ be forever enjoined and restrained from in any manner interfering with or removing any part of the northerly wall of the.plaintiffs’ building,” etc. One of the defendants claimed that part of the north wall of No. 471 encroached upon the lot of No. 473, and. he cut channels in it upon which to rest iron beams.</p> <p>At the time that the case came to trial, a temporary injunction having been refused, the building No. 473 Broadway had been completed by including in such construction two inches of land which were in dispute between the parties.</p> <p>The plaintiffs offered to prove that the defendants’ trespass had resulted in weakening the wall so that it had to be taken down, and that in constructing the new building the defendants had appropriated a portion of the plaintiffs’ premises.</p> <p>Held, that the complaint stated a cause of action;</p> <p>That the fact that the defendants had constructed their building and had actually appropriated the portion of the plaintiffs’ premises in dispute did not affect the plaintiffs’ right of action;</p> <p>That, as a matter of strict right, the plaintiffs, under the circumstances, were entitled to a mandatory injunction requiring the defendants to remove the wall;</p> <p>That if, by reason of any special circumstances presented, this would be a hardship or inequitable, and the plaintiffs expressed a willingness to take damages in lieu thereof, the court would be justified in awarding such damages as would compensate the plaintiffs; such damages representing an alternative relief, determined on as a favor to the defendants to prevent the greater injury which would result to them from being obliged to take down their wall.</p>

Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, from an order of the Supreme Court, made at the New Yofk.'Trial Term and entered in the office of the clerk of the county of New York on the 15th day of October, 1897, granting the plaintiff’s motion for a new trial made upon the ground that the verdict of $1,000 in favor of the plaintiff was insufficient' and inadequate.

Cross-appeals by the plaintiffs, Hermann Colberg and another, and by the defendant, Luke M. Emerson, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 20th day of July, 1897, upon the report of a •referee.

Appeal by the defendant, Benjamin J. Falk, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county of ISTew York on the 25th day of June, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of June, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal, by the plaintiff, William Ledman, by his guardian ad litem, Harris Ledman, from a judgment of the Supreme Court in favor of .the defendant, entered in the office of the clerk of the county of Hew York on the 30th day of January, 1896, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term.

Appeal by the plaintiff, George Hornberger, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 26th day of May, 1897, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by The Gramercy Club, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 21st day of January, 1898, revoking and canceling the liquor tax certificate issued to The Gramercy Club.

<p>A creditor of a firm who volunteers to take its property and pay the debts of the other creditors, denied commissions.</p> <p>A creditor of a firm who, by representing to other firm creditors that the firm desires to and will liquidate its obligations by assigning to him all its outstanding accounts and stock on hand, provided he is made its sole creditor, obtains from them an instrument, by its terms, substituting him as such creditor, and providing that he is “to divide the piroceeds (of the property receivable by him), * * * after deducting all necessary and proper expenses, among all the parties thereto in proportion to the respective amounts now due by the said firm, ” and who subsequently obtains from the firm an assignment of its accounts and stock in trade, is not, when compelled by one of the other creditors to account for the proceeds thereof, entitled to any commissions; as it is evident that compensation to him was not contemplated and that the position was of his own seeking.</p>

Appeal by the defendant, The Continental Fire Insurance Company of the city of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of November, 1891, upon the report of a referee.

<p>Appeal by the defendants, Marie A. Strelinger, sometimes known as Marie A. Curtis, and another, from a judgment of the Supreme-Court in favor, of the plaintiffs, 'entered in the office of the clerk of the county of New York on the 27th day of January, 1897, upon the decision of the court rendered after a trial at the New York Special Term.</p>

Appeal by the plaintiff, Fanney Goodman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 1st day of November, 1897, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

<p>Negligence — act of a contractor’s superintendent in turning steam into an exhaust pipe full of water, without seeing whether its drip valves were open — evidence as to , the use of wages —• an error in the dismissal of the complaint as'to some of several joint wrongdoers, not available to the others.</p> <p>A stonecutter engaged in -fitting stone on the top of a building in process of construction was fatally scalded by water which had collected in an exhaust pipe connected with elevator pumps, which were being installed in the building, in connection with elevators, by a contractor. The accident occurred because the superintendent of the contractor, Without inquiring or observing whether certain drip valves, designed to free the exhaust pipe from water were open, turned steam into the elevator pumps to increase their action, and the steam, in turn, finally drove the water in the exhaust pipe out on the roof.</p> <p>In an action brought by the administrator of the stonecutter against the elevator contractor and others,</p> <p>Meld, that the elevator contractor was liable, as .the jury was justified in finding that the accident resulted from the negligence of its superintendent in turning on the steam without paying any attention to the condition of the drip valves of the exhaust pipe:</p> <p>That, as it appeared that the deceased was in the habit of giving all his earnings to his father, it was competent for the latter to show what use he had been accustomed to make of the wages which he received from the deceased, and how necessary they were for the support of .his family.</p> <p>In an action against several parties defendant to recover damages resulting from the death of the plaintiff’s intestate, caused, as alleged, by the defendants’ negligence,- the propriety of the ruling of the trial court in dismissing the complaint as to some of the defendants, cannot, upon an appeal from a judgment in favor of the plaintiff against the remaining defendant, be considered by the appellate court, unless the evidence introduced upon the trial shows that the accident arose solely from the negligence of those defendants as to whom the complaint was dismissed, or of one of them.</p>

Appeal by the plaintiff, Henry Wayne Ellis, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New. York on the 9th day of April, 1897, upon the report of a referee.

Appeal by the defendants, J. Wesley Rosenqnest and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 17th day of June, 1897, upon the verdict-of a jury, and also from an order entered in said clerk’s office on the 16th day of June, 1897, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Laura Y. Rhinelander, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of October, 1897, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 8th day of November, 1897, denying the defendant’s motion for a new trial made upon the minutes and upon exceptions.</p>

<p>Bills and notes — effect of permitting an indoi'ser, who has not served an affidavit under Code Civ. Proa. § 923, to give testimony impeaching the ceHificate of protest-mailing a notice of.protest to the indorser at his place of residence as given in the directory without further inquiry.</p> <p>In an action brought by the payee against the indorser of a promissory note, a defense was interposed by the indorser that he had not been properly charged by service of notice of protest of the note, but no affidavit, such as is required by section 923 of the Code of Civil Procedure, to the effect that the indorser had not received notice of the non-payment of the note, was served upon the plaintiff. Upon the trial of the action, on which the notary’s certificate of protest was introduced in evidence by the plaintiff, he allowed the indorser, without objection or exception, to testify that notice of protest had not been received by him.</p> <p>Held, that, by permitting such evidence to be received without objection, the plaintiff waived the conclusiveness which the notary's certificate would otherwise have had, in the absence of service of the affidavit required by the statute.</p> <p>A notary protesting paper, which did not state the address of the indorser, without inquiry as to the latter’s residence or place of business, mailed a notice of protest addressed to him at his address as stated in the directory, and in his certificate of protest said, respecting the addresses to which the notices of protest were sent, “ The above being the reputed places of residence of the said parties and the post office nearest thereto.” It appeared that the indorser’s residence was not at the place designated in the directory, and that his place of business, although in the city, was not at the address to which the notice was sent. ■ .</p> <p>Held', that the notary had not .made diligent inquiry as to. the residence-of the indorser within the meaning of the statute in reference to the service of notice of protest of negotiable paper (Laws of 1857, chap. 416), and that the notice was insufficient to bind the indorser.</p>

<p>Trust — trust property cannot be sold to pay off a mortgage thereon executed by contingent remaindermen — a court of equity has no inherent power to direct the sale or mortgaging of trust property.</p> <p>A testator devised certain property to trustees to hold the same during the lives of two persons who were each to receive an annuity out of the rents of the premises, the residue of the income being directed to be applied to the support and education of the children of Richard Cromwell, a deceased son of the testator.</p> <p>Upon the death of the two annuitants the real estate and the accumulation of net •income were, as stated in the will, to “ go and be divided in fee to and amongst, the children of my said son Richard, who shall be then living and the issue of such as may be dead, the issue of such deceased children of my said son to take the share of their deceased parents.”</p> <p>Before the death of the surviving annuitant the three children of Richard Cromwell mortgaged their estate in remainder in the property to: secure the pay- ■ ment of their individual bond's. ' Subsequently a substituted trustee obtained an order from the court authorizing her to raise by mortgage or sale of the premises a sum of money sufficient to pay the said mortgage, on which judgment of foreclosure- and sale had been obtained, on the ground that there was no probability of a sale under such judgment realizing the full value of the estate in remainder, and that a sale would be injurious to the mortgagors, and thereafter the premises were sold pursuant to such order.</p> <p>In proceedings taken to compel the purchasers at such sale to complete their purchase,</p> <p>Held, that the statute (§' 85, Real Prop. Law [Chap. 547 of 1896], as amended by chap. 136 of 1897) did not authorize a sale to pay off the mortgage covering the estate in remainder, where, as in the present case, the interest of the mortgagors was subject to be divested-in case of their dying before the termination of the precedent estate.</p> <p>Semble, that there is no inherent power in a court of equity to interfere with trust property by directing that it be mortgaged or sold, and that the right to do so . must be predicated upon some statutory authority^</p>

Appeal by the plaintiff, Sidney Starbuck, from a judgment of the Supreme Court in favor of the defendants, entered- in the office .of the, clerk of the.county of Rew York on the 12th day of November, 189.7, upon the decision of the court rendered- after a trial at ’ t-lie - New York Special Term dismissing -the complaint. William M. Starbuck, deceased, was in his lifetime a shipowner, and the plaintiff, his brother, was employed in his office.

<p>Appeal by the plaintiff, Ernest E. Esmond, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 14th day of May, 1897, upon the verdict of a jury rendered by direction of the court.</p> <p>The complaint, which was vei’itied on May 27, 1894, alleges that in May, 1888, the plaintiff negotiated for one Mallory a sale to the defendants, who were copartners, of a tract of land in Mystic, Connecticut, for the sum of $100,000; that the said Mallory agreed to pay him for such services the sum of $10,000, and paid the same by giving to the plaintiff a written order for said sum of $10,000 directed to the defendants, and thereby required them to pay the plaintiff that sum and deduct it from the purchase price of the premises ; that the defendants duly' accepted the said order in writing and agreed to pay the plaintiff the said sum, part in cash, and the balance in four annual payments, and that no part thereof has been paid except the sum of $450.</p> <p>The defendants by their answer admit that the plaintiff called the defendants’ attention to the land and undertook to act for them in the transaction, and that they agreed to purchase it for $100,000 ; that before undertaking to make the purchase, the plaintiff agreed to- act as agent for Mallory in the sale of the land; that for his services in effecting such sale, Mallory' was to pay him the sum of $10,000 out of the purchase price, and that on the day on which the contract for the purchase was' signed, Mallory gave the plaintiff a written order for that sum, addressed to the defendants, requesting them to pay it to the plaintiff and deduct the same from the purchase price of the premises. They deny that at the time of the purchase or at any time prior thereto the defendants had any notice or knowledge that the plaintiff had undertaken to act for or as agent of Mallory, or that in soliciting them to jrarchase he was acting in the interest or as the agent of Mallory, or that he was to receive any compensation from him; and they aver that they then understood and believed that the plaintiff was acting in respect to such purchase solely for himself and for them; ■ “ they deny that they ever agreed to pay the same or any part thereof, except by applying the same in part payment for a share or interest which the plaintiff was to have in the business for .which they purchased said premises as hereinafter set forth.” They further allege that the plaintiff, concealing the fact from them that he had undertaken to act for or as the agent of Mallory, and that Mallory had agreed to allow and pay him a commission, represented that he had an option good for ninety days for the purchase of the property at the price of $100,000, and that it could not be purchased for less; that the property was very valuable; that large profits could be realized from developing and working' ceiv. tain mineral deposits found therein and marketing the product; that he solicited them to furnish the funds and execute the obligations necessary to buy the property, allow him an interest in the purchase and a share in the anticipated.profits, and consent to his being employed to develop and work the property; that, believing' the statements and representations made by the plaintiff, they agreed to furnish the money and obligations necessary to purchase the property, and that it should be worked under the management of the' plaintiff and for his and their joint benefit; that he should receive one-fourth of the profits and.they the other three-fourths, and that the plaintiff should be allowed to draw from the funds of the business a stipulated sum per annum in anticipation of his share of the profits; that, in pursuance of this arrangement, the plaintiff proceeded and conducted the negotiations which led up to the purchase of the property ; that after the execution of the contract, and before the title passed, the plaintiff informed them that he was to receive out of the purchase price the sum of $10,000 as a commission allowed him. by Mallory for services in effecting a sale of the property ; that they thereupon promptly proposed to rescind their agreement to allow the plaintiff an. interest in the purchase and in the profits of the business, and notified him that he could not receive such commission and also have such interest, and that he must choose between the two ; that it was finally agreed that the plaintiff should forego the payment of such commissions in cash, but should receive credit therefor in the boobs of the business as a contribution by him to the capital account, and that the same should be allowed as a payment on account for his one-fourth interest in the business; that thereupon, in pursuance of said agreement, the plaintiff surrendered the order to the defendants, and, upon the opening of the boobs of the business, which was conducted under the name of the “ Lantern Hill Silex Works,” the plaintiff received credit therein for said sum of $10;000 in accordance with said agreement.</p> <p>Testimony in support of this defense was given, and, at the end of the case, a motion made for the direction of a verdict in the defendants’ favor was granted, and from the judgment thereupon entered this appeal is taken.</p>

<p>Appeal by the defendant, Julia M. Harden, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 2.8th day of February, 1898, denying the defendant’s motion to strike the cause from the calendar of preferred causes.</p>

Appeal by the defendant, William J. Hazard, from a judgment of the Court of General Sessions of the Peace of the city and county of Hew York in favor of the plaintiff, rendered on the 31st day of March, 1897, upon the verdict of a jury convicting the defendant of the crime of grand larceny in the second degree.

<p>Pleading— an allegation that the plaintiff has no adequate remedy at law is not admitted by a demurrer — an executriw hating a personal claim against her decedent’s estate has an adequate legal remedy at law under section 2731 of the Code of Citil Procedure -±-jurisdiction of the Supreme Court.</p> <p>An allegation in a complaint to the effect that the plaintiff has no adequate remedy at law is merely a conclusion of la w, and hence is not admitted by a demurrer interposed to the complaint.</p> <p>The right of an executrix having á personal claim against the-estate of her decedent to establish it before the surrogate upon her final accounting, under section 2731 of the Code of Civil Procedure, affords the executrix'a sufficient and adequate remedy at law, and she is confined to this remedy..</p> <p>Quaere, whether the Supreme-Court has jurisdiction of an action in equity brought by the executrix as an individual against her co-executor and herself, as-.execu- . trix, to enforce a personal" claim against the estate.</p>

Appeal by the defendant Walter Cox, as administrator of the estate of James Clark, deceased, from a final judgment 'of the Supreme Court in favor of the defendants Richard Hecksoher and August Hecksoher, entered in the office of the clerk of the county of New York on the 13th day of August, 1897, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an intermediate order made at the New York Special Term and entered in said clerk’s…

Appeal by the defendant, The New York, New Haven and Hartford Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of November, 1897, upon the verdict of a jury for $8,000, and also from an order, entered in said clerk’s office on the 3d day of November, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Julius T. Staples and another, from so much of an interlocutory judgment or decree of the Supreme Court, entered in the office of the clerk of the county of New York on the 23d day of June,. 1897, upon the decision of the court rendered after a trial at .the New York Special Term, as adjudges and declares that Joseph Staples, Jr.-, did not take an, absolute vested one-fourtli interest- in the estate of his father, Joseph Staples,: deceased-, which…

<p>Partnership — liability of a retiring partner for an indebtedness subsequently created— evidence establishing credit dealings with a firm, entitling the creditor to actual notice of its dissolution.</p> <p>Proof that a woman employed in making umbrella bands for a firm, out of material supplied by it, was accustomed to either take her work to the firm in person, in which event she received payment therefor- in cash, or else to send it to the firm, in which event the firm sent its check to her — sometimes to points out of town — is sufficient to establish credit dealings between the woman and the firm entitling her to notice of its dissolution in order to relieve the retiring partner from liability as to future dealings had by her with the continuing partner who continued to use the firm name.</p> <p>In such a case the duration of the credit is immaterial.</p>

Appeal by the defendant, George B. Wightman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of October, 1897, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 4th day of November, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The President, Managers and -Company of the Delaware and Hudson Canal Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of' December, 1897, upon the decision of the court rendered after a trial at the New York Special Term. The action was brought in February, 1893.

Appeal by the plaintiff, The Fire Department of the City of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of October, 1896, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint Upon the merits.

Appeal by the plaintiff, Hyman Schnitzer, from a judgment, of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 1st day of October, 1897, upon the verdict of á jury, and also from an order entered in said clerk’s office on the 15th day of October, 1897,. denying the plaintiff’s motion for a new trial made upon the minutes. Three causes of action aré alleged in the complaint.

‘ Submission of a controversy upon an agreed statement of facts,., pursuant to section 1279 of the Code of Civil Procedure. This, is a submission of a controversy under section 1279 of the Code of Civil Procedure.

Appeal by the plaintiffs, Leila O. Henifiques and another, from a final judgment of the Supreme Court in favor of the- defendant Yale University, sued as The President and Fellows of Yale College, entered in the office of the clerk of the county of.

<p>Appeal by the plaintiff, John L. Melcher, as attorney and agent for the owners, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 12th day of January, 1898, upon -the'- dismissal of the complaint by direction of the court after a trial at the New York Trial Term.</p>

Appeal by the defendants, Emmet Densmore and another, from a judgment of the Supreme Court in favor of the plaintiff,-entered in the office of the clerk of the county of Hew Y.orlc on the 4th day. of October, 1897, upon the verdict of -a jury, and also from an order entered in said clerk’s office on the 8th day of October, 1897, denying the said defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Eugenia A. Webster Ross, from a final judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 11th day of December, 1897, upon the decision of the court rendered after a trial at the New York Special Term; also from an order made at the New York Special Term and entered in said clerk’s office on the 11th day of December, 1897, denying the defendant’s motion to have the issues in…

Appeal by the defendant, Charles Frederick Nagele, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of December, 1897, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendants, The New York and Harlem Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of January, 1897, upon a decision -of the court rendered after a trial at the New York Special Term, and also from an order made at the New York Special Term and entered in said clerk’s office on the 3d day of December, 1896, denying the said defendants’…

Appeal by the plaintiff, Honora Coulahan, from- a judgment of the Supreme Court in favor óf the defendant, entered in. the office of the clerk of the county of New York on the 8th day of July, 1897,. upon the dismissal of the complaint by direction-of the court after a trial at the New York Trial Term.

Appeal by ttie defendants, the United Portable Hoisting Engineers and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of October, 189'7, upon the decision of the court rendered after a trial at the New York Special Term.

Motion by the defendant, the Forty-second Street, Manhattan-ville and St. Nicholas Avenue Railway Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the verdict of a jury in favor of the plaintiffs rendered after a trial at the New York Trial Term.

Appeal by the plaintiff, Helen Frances Hales, as administratrix, etc., of Mary B. Schmitt, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 12th da,y of November, 1897, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 12th day of November, 1897, denying the plaintiff’s motion for a new trial made upon the…

Appeal by the defendants, the Hamilton Bank Note Engraving and Printing Company and another, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 1.3th day of September, 1897, upon the decision of the court rendered after a trial at the New York Special Term; also from said interlocutory judgment as amended and entered in said clerk’s office on the 4th day of October, 1897; also an appeal by the plaintiff,…

Appeal by tlie plaintiff, William McClure, from a judgment of tlie Supreme Court in favor of the defendant, The Central Trust Company of New York, entered in the office of the clerk of the county of New York on the 13th day of July, 1897, upon the report of a referee. .

Appeal by the defendant, Royal C. Peabody, from a-judgment of the Supreme Court in favor, of the plaintiff, entered in thé office of the clerk of the county of Kings on the 24th day of November, . 1897, upon the verdict of a jury rendered by direction of the court and also from an order entered in said .clerk’s office on the 1st day of December, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Philip Zimmermann, as administrator of the estate of Lawrence Zimmermann, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 6th day of August, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of July, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John J. Wilson, from a judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of the county of Kings on the 22d day of June, 189J, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury. The action was brought to recover damages for personal injuries resulting to the plaintiff from the alleged negligence of the defendant.

Appeal by the defendant, The Long Island Electric Railway Company, from a judgment of the Supreme Court in favor of the .plaintiff, entered in the office of the clerk of the county of Queens on the 13th day of January, 1898, upon the decision of the court, rendered after a trial at the Queens County Special Term, perpetually enjoining the defendant from maintaining upon a public highway, known as Liberty avenue, in the county of Queens, a wall of masonry and an iron…

Appeal by the plaintiff, Fred Hamilton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 5th day of August, 1897, upon the dismissal of the complaint by direction of the court after a trial at the Orange Trial Term.

Appeal by the defendant, The Long Island .Bailroad Company,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of June, 1897, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 17th day of June, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Otto Gas Engine Works, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 10th day of February, 1898, denying the defendant’s motion to vacate an order directing the service of the summons by publication.

<p> Malfeasance in office of the recorder of Poughkeepsie —proof thereof. </p> <p>A recorder of the city of Poughkeepsie who, by its charter, is required to pay over' to the city chamberlain, once in each month, all fines imposed and collected by' him, except those for the violation of the excise laws and drunkenness, and to pay over the latter fines to the almshouse commissioners of the city,.but who, during the years 1895 and 1896, has neglected to pay to the chamberlain the full amount collected in each of those, years, leaving- a balance of $63, which he paid after the institution Of proceedings by the common council for his removal, on the ground of malfeasance and corruption in office, and who has also left unpaid of other fines payable during those years to the almshouse commissioners, $429, which were paid , subsequent to the institution of such investigation, may, where it appears by his own admission that he appropriated such moneys to his own use, and that, although disclaiming any intention to embezzle, he has made false answers upon the subject to .city officials, properly be removed from office.</p>

Appeal by the plaintiff, Gehial Garrison, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Orange on the 26th day of June, 1897, upon the dismissal of the complaint, upon the plaintiff’s opening, by direction of the court at a trial before the court and a jury.

Appeal by the defendant, The Empire Lithographing Company, from an. interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of’ Queens on the 26th day of November, 1897, upon the decision of the court rendered after a trial at the Queens County Special Term,; sustaining the plaintiff’s demurrer to the second separate and distinct defense contained in the amended answer of the defendant and therein designated as…

Appeal by the plaintiff, The Montaulc Tribe of Indians, by Wyandank Pharoah, their chief and king, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 29th day-of November, 1897, upon the decision of the court, rendered after a trial at the Suffolk Special Term, sustaining the defendant’s demurrer to the complaint. ■

Appeal by the plaintiff, Bridget Murphy, as administratrix, etc., of James Murphy, deceased, from an order of the Supreme Court,' made at the -Kings County Trial Term, bearing date the 24th- day of June, 1897, and entered in. the office of the clerk of the county of Kings, denying the plaintiff’s motion to set aside the direction made at the Trial Term dismissing the complaint as against the defendants Benjamin Altman and The Mosler Safe Company, and for a new trial made…

<p>Supervisors — the power to rescind a resolution closing a street requires the same authority as the resolution sought to be rescinded.</p> <p>A board, of supervisors, which, acting under chapter 389 of the Laws of 1893, has changed the line of a street whereby a portion thereof has been closed, has.. authority to rescind such action only on the presentation of the same petition of property owners, or, in lieu thereof, of the certificate of certain town officers that theimprovement is, in their judgment, proper and necessary for the public interest, which is required to authorize the opening of the street.</p>

<p>. Vees of a deputy sheriff acting as a peace officer — a town charge.</p> <p>The fees of a deputy sheriff, acting as a peace officer in criminal actions tried • before a magistrate of the town where an ofEense is alleged to have been committed, are a legal charge against such town, and it is the duty of the board of town auditors of the town to audit the same.</p>

Appeal by the defendant, John J. Seannell, as fire commissioner of the city of New York, from an order of the Supreme Court, made at the Kings County Special Term, -and entered in the office of the clerk of the county of Kings on the 2d day of February, 1898, granting a peremptory writ of mandamus, commanding the said fire commissioner to reinstate the relator in his former position as an active member of the uniformed fire department (formerly of Brooklyn, but now) of the…

Appeal by the plaintiff, Arthur IT.- Ely, from an interlocutory judgment of the Supreme Gourt in favor of the defendant, entered-in the office of the clerk of the county of Kings on the 13th day of, October, 1897, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the plaintiff’s demurrer to the second separate defense set out in the amended answer. ’ ’ ’ ■

Appeal by the defendant, Elizabeth Turner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 18th day of October, 1891, upon the verdict of a jury.

Appeal by the plaintiff, Eliza J. Alvord, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 2'7th day of November, 1897, vacating a preliminary injunction granted, in the action.

<p>Appeal by the defendants, William Seymour and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 27th day of November, 1897, upon the decision of the court rendered after a trial at the Westchester Special Term, decreeing the specific performance of an agreement to execute a mortgage.</p>

<p>Appeal by the defendant, William Frieder, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of ■the clerk of the "county of Kings on the 8th day of July, 1897, upon the verdict of a jury for $101.11, and also from an order entered in said clerk’s office on the 12th day of July, 1897, denying the defendants motion for a new trial made upon the minutes.</p>

r Appeal by the defendants, the Metropolitan Street Railway Company and another, from so much of an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of-the county of Queens on the 14th day of December, 1897, as denies the defendants’ motion to resettle the proposed case on appeal herein.

<p>Appeal by the defendant, The Morning Journal .Association,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of April, 1897, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 29th day of April, 1897, denying the defendant’s motion for' a new trial made upon the minutes.</p> <p>The action was brought to recover damages for an alleged libel.</p>

Appeal by the plaintiff, William M. Patton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Grange on the 27th day of April, 1897, upon the decision of the court, rendered after a trial before the court without a jury at the Orange Trial Term, dismissing the complaint.

Appeal by the defendant, Francis A. Fitzelle, from an order of the City Court of .Yonkers, entered in the office of the clerk of said court on the 8th day of December, 1897, setting aside the verdict of a jury rendered in favor of the defendant and granting the plaintiffs’ motion for a new trial made upon the minutes.

<p>Supervisors of Queens county — power of, to transfer a balance of a fund raised by bonds for improving one road, to another.</p> <p>The board of supervisors of Queens county, which, in 1879, issued bonds for the improvement of two roads, under two distinct resolutions, each of which provided that the money received from the bonds authorized thereby should be kept as a separate and distinct fund in payment of the indebtedness of the county incurred on the road mentioned in the resolution, had authority to transfer, in January, 1898, a balance not required for the improvement of one road to the fund provided for the improvement of the other, but which has proved to be inadequate for that purpose.</p> <p>Such action by the board is not in conflict with section 56 of the Highway law (Chap. 568, Laws of 1890, as amended by chap. 375 of the Laws of 1895), providing that “ the board of supervisors shall designate the amount of money to be expended, upon- each county road, and may make rules and regulations for the government of the county engineer, and regulating' the expenditure of such money," nor is it an objection to the transfer of such moneys that, by the Greater Hew York charter (Laws of 18.97, chap. 378, § 1588), the board of supervisors of the county of Queens from the 1st day of January, 1898, is deprived of any pow.er to issue bonds or obligations which shall bind or fender liable the property of any part of the county included within the city.</p>

-Appeal by the defendant, Hathan C. Jessup, from á judgment of the Supreme Court in favor of the relators, entered in the office of the clerk of the county of Suffolk on the 27th day of Hovember, 1896, upon the decision of the court rendered after a trial at the Suffolk Special Term.

Appeal by the plaintiff, John Naumer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 22d day of November, 1897, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

<p>Appeal by the defendant, Charles M. Dennison, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in .the office of the clerk of the county of Kings on the 17th day of January, 1898, upon the decision of the court rendered after a trial at the Kings County Special Term.</p>

Appeal by the plaintiff, George Reidman, by his guardian ad, litem, Charles H. Belknap, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 27th day of July, 1897, upon the dismissal of the complaint at the close of the plaintiff’s case by direction of' the court after a trial at the Kings County Trial Term.

<p>Appeal by the defendants, Edwin 0. Stimpson and others, from a judgment of the" County Court of Kings county in favor of. the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of January, 1898, upon the decision of the court.</p>

Appeal by the plaintiff, The Methodist Episcopal Church in the-Center of.

Appeal by the plaintiff, Nicolus J. Kuet, from a judgment of the Supreme Court in favor of' the defendant, Nellie Gertrude Kuet; entered in the office of the clerk of the county of Kings on the 7th day of December, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term, as amended by an order made at the Orange County Special Term, and entered' in the office of the clerk of the county of Kings on the 28th day of December, 1897, which…

<p>JFew York city — a contact to furnish water to the borough of Queens may be let without competition — taxpayers action—the court will not consider circumstances involving the policy of a municipality as to the manner in wJiibh its water supply shall be furnished.</p> <p>Section 419 of the charter of the Greater New York (Chap. 378 of the Laws of 1897), providing that “all contracts to be made or let for work to be done or supplies to be furnished, except as in this act otherwise provided, * * ” shall * * * be founded on sealed bids or proposals,” after public notice, is not applicable to the letting by the commissioner of the water supply of the city of New York of a contract for the furnishing of a supply of water to the . borough of Queens, in the city of New York, the requirements of that section being inconsistent with the provisions of the charter relating to the duties and powers of the said commissioner.</p> <p>This view is supported by the fact that while provision is made in the charter for the purchase, by certain other departments of the city, of supplies for immediate use without calling, for competitive bids, no corresponding provisión is made for the department of water supply.</p> <p>It is not within the power or duty of the court, in an action brought by a takpayer to prevent the execution of such a contract, to consider, circumstances involving the policy of the municipality in respect to whether it shall contract for the furnishing of its water supply by private companies or shall adopt the policy of municipal ownership.</p> <p>Goodrich, P. J., dissented.</p>

<p>Motion by the plaintiff, Norman Hubbard, to dismiss an appeal taken by the defendant for a failure to serve printed appeal papers as prescribed by rule 41 of the General Rules of Practice.</p>

<p>Transfer Tax Aet—its application to a deed of trust—chapter 399 of 1892.</p> <p>A father, acting in good faith and. with the sole purpose of providing for his adopted sons, executed and delivered certain deeds of trust, in all of which, except one dated March 10, 1890, the net income of the trust was to go immediately to the beneficiaries of the trust, and the principal at a certain date was to be paid over to certain parties designated therein. In the case of the deed of March 10,1890, the net income was to go to the father or his order during his life, and after his death to one of such adopted sons during the latter’s life, and afterward to those who might be designated in the will of such adopted son or to his children.</p> <p>The latter deed was subsequently modified by a written instrument directing that the income arising from the trust fund transferred to the trustee be paid to the until that authority should be revoked by him in writing.</p> <p>Bach deed reserved the right to the father “to revoke and annul the same during my lifetime.”</p> <p>Held, that the property transferred by all the trust deeds, except the deed of March 10, 1890, constituted no part of the property of the father at the time of his death,</p> <p>■ and was not properly included in any appraisal of his estate for the purpose of taxation under the Transfer Tax Act (Tax Law, § 220), said deeds of trust not having been “ made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after such death;”</p> <p>That the deed of March 10, 1890, did not vest the beneficiary named therein with any right of property until the death of the grantor, ancl that consequently the property conveyed thereby came within the provisions of the Transfer Tax Act.</p>

<p>Appeal by the defendant, The Poughkeepsie and Eastern Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the. clerk of the county of Dutchess on the 25th day of June, 1897, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 6th day of July, 1897, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The -¿Etna Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff against the defendant insurance company for the sum of $5,676.28 and costs, and in favor of the plaintiff against the defendant Little, as receiver, and Margaret Worthington jointly with the defendant insurance company, for the costs of the action, entered in the office of the clerk of the county of Kings on the 4th day of November, 1897, upon the…