Volume 28 — New York Miscellaneous Reports

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

This is an action to recover on a so-called promissory note. The evidence upon the trial was taken before the court and a jury, when by agreement of the parties the jury was discharged and the case submitted to the court upon the evidence taken, for its decision thereon.

Ceetioeaej to review the reassessment of the relator’s capital and surplus for the year 1894, made by the respondents pursuant to the order of the court vacating the original and directing a reassessment.

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

<p>Interpleader — Claimant cannot delay it to gain time for determining her most profitable course.</p> <p>Where a defendant stakeholder applies for leave to interplead a third party claimant to a fund and be allowed to pay the latter into court, the claimant will not, after having made the claim, be allowed to resist or delay the application for interpleader merely in order to gain time to determine whether it will be more advantageous for her to claim the fund, or to bring action against the stakeholder on other transactions had between it and her alleged agent, the person who deposited the fund with it</p>

<p>Trade name — Similarity leading to confusion — Injunction.</p> <p>A corporation which has for fourteen years used in its trade the corporate title “ Hoy Watch Case Co.” is entitled to enjoin by action a rival and lately constituted corporation from employing the name “ Camm-Roy Watch Case Co.”, as the palpable identity of names is likely to lead to confusion and resulting damagé to the Roy Watch Case Co.</p> <p>Upoit such a state of facts the plaintiff need not show pecuniary damages, and the motive of the defendant is not material.</p>

<p>Motion to strike out two of the defendants from the summons.</p>

<p>Bills and notes — Notice of dishonor where indorser’s residence is unknown—Waiver.</p> <p>Where the residence of the indorser of a note is unknown, the prompt sending of notice of dishonor to him at the best address' obtainable by the holder satisfies the law as it existed before the Negotiable Instruments Law (Laws of 1897, chap. 612).</p> <p>Notice of dishonor is waived where, after the failure of the maker of a note, the indorser promises the treasurer of the holder tiiat he will meet the note at maturity and is able to do so, as such a promise amounts to an unconditional assumption of the debt.</p>

<p>Trial of framed issues in action for divorce on ground of adultery.</p>

<p>Practice — Motion to make complaint more definite — Effect of extension of time to answer.</p> <p>A motion to make a complaint more definite and certain must be made within twenty days after the service thereof and before answer or demurrer.</p> <p>Semble that an extension of the time to answer is not fatal to such an application where it is a part of an order to show cause why the complaint should not be made more definite and certain.</p>

<p>Gross-actions, one for divorce and the other for separation. Motion for alimony and counsel fee.</p>

<p>Motion for the direction of a verdict and for the dismissal of defendant’s counterclaim.</p>

<p>Demurrer by defendants to plaintiff’s complaint.</p>

Motion by defendant Cody to restrain prosecution of this action until payment of costs awarded to him by judgment dismissing complaint in a prior action brought by present plaintiff against said defendant Cody.

This action is one of ejectment brought to recover the possession of certain premises situate in Onondaga county together with damages for withholding possession of the same.

This action is brought to recover upon coupons aggregating $3,696, which have become due from time to time between and including March 1, 1889, and September 1, 1893, upon $48,800, of 7 per cent, coupon bonds assumed to be issued by the defendant in aid of the New York & Oswego Midland ¡Railroad. Said bonds are a portion of an issue of $75,000. Three defenses were mainly urged to plaintiff's recovery, as follows: 1.

Motiok by defendant to dismiss eight indictments found against him by a grand jury of Onondaga county, seven of said indictments charging illegal sales of liquor, and one the keeping of a disorderly house.

This is an application upon the part of Edward A. Powell and others to be made parties as relators to the above-entitled proceeding.

<p>1. Unincorporated associations — Expulsion of a chapter of a college fraternity.</p> <p>Where the constitution of a college fraternity, composed of chapters in various States, establishes no specific causes for the expulsion of a chapter and authority in such matters has heretofore been assumed by the national convention of the fraternity alone, a grand executive council of five members appointed by the convention has no power to compel a local state chapter to withdraw.</p> <p>2. Same — Charges and notice — Restraint of official organ of the</p> <p>fraternity from publishing expulsion.</p> <p>Where a biased grand council, convened in a distant state, attempted to expel a chapter of the State of New York, having valuable</p> <p>- property interests and not in arrears for dues, upon the unsubstantiated charge, made without notice to or service upon the accused chapter, that there was a “lack of proper material for the maintenance of the chapter ” the court, at the suit of resident members of the said chapter, enjoined the grand council, through • the only member thereof who was within its jurisdiction, from consummating the wrongful withdrawal of the said chapter, and also enjoined the manager of the official organ of the fraternity in the State of New York from publishing therein the misleading statement that the said chapter had been withdrawn from the fraternity.</p>

<p>Motion to dismiss petition of Thomas R. Hodge and others, commissioners in a drainage proceeding, for the appointment of commissioners to condemn the easements necessary for drainage.</p>

<p>1. Foreign corporations — Jurisdiction — Where the right to sue depends on the plaintiff’s residence in the State of New York, he must allege it — Code Civ. Fro., § 1780.</p> <p>Where a cause of action against a foreign corporation is not one which a nonresident of the State of New York is permitted by section 1780 of the Code of Civil Procedure to maintain, the failure of the plaintiff to allege in his complaint that he is a resident of the State is fatal to jurisdiction.</p> <p>2. Same — Objection available on the trial, although not pleaded.</p> <p>Where the plaintiff rests without having proved that he is a resident of the State, it is the duty of the court to dismiss the complaint upon a motion made by the defendant, although the latter has not raised the objection by either demurrer or answer.</p>

<p>Appeal from a judgment of the "General Term of the City Court, affirming an order of the Special Term of the City Court, denying a motion to vacate a judgment taken by default.</p>

Appeal, by the defendant from a judgment of the General Term of the City Court, affirming a judgment rendered in favor of the plaintiff, and also from the order affirming the judgment.

<p>Appeal by the defendant from a judgment of the General Term of the City Court, affirming a judgment rendered in favor of the plaintiff and affirming an order denying a motion for a new trial.</p>

<p>Appeal by the defendant from a judgment of the General Term of the City Court of New York, affirming a judgment of the Trial Term of that court, in favor of the plaintiff, entered upon the verdict of a jury, and an order denying a motion for a new trial.</p>

<p>Appeal by the plaintiff from an order of the General Term of the City Court, modifying, and affirming, as modified, an order of the Special Term granting defendant’s motion for a retaxation of costs,</p>

Appeal by the Pennsylvania Glass Company, junior judgment •creditor, from two orders of the General Term of the City Court of the city of- New York, affirming orders of the Special Term, one denying appellant’s motion for 'the appointment of a receiver, and one granting the motion of the West Side Bank, senior judgment creditor, for the appointment of a receiver, in proceedings supplementary to execution.

Appeal by the defendants from a determination of the General •Term of the City Court of the city of Yew York affirming a judgtpAnt of the Trial Term rendered on the verdict of a jury.

<p>Action on an undertaking for an order of arrest — Will lie at once where the order has been finally vacated.</p> <p>Where the plaintiff has failed to appeal in time from an order which vacated his order of arrest for the insufficiency of the moving papers, an assignee of the defendant may at once sue the plaintiff’s-sureties upon an undertaking given to procure the order and providing “ that if it is finally decided that the plaintiff is not entitled to the order of arrest ” he will pay all damages which the defendant may have sustained by reason of the arrest, as it has now become impossible for any judgment, which might be recovered upon a future trial of the original action, to establish that the plaintiff was entitled to the particular order of arrest for which the undertaking was given.</p>

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

<p>Appeal from an order of the General Term of the City Oourt of the city of Rew York, affirming an order made at the Special Term, denying defendant’s motion for a retaxation of costs.</p>

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

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

<p>Appeal from a final order rendered in favor of the landlord, against the tenant, upon the verdict of a jury, in a summary proceeding taken to dispossess the tenant for nonpayment of rent, in the Municipal Court, sixth district, borough of Manhattan.</p>

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

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

<p>Married women. — Personal liability for an article of necessity.</p> <p>Semble, that, since the passage of the Domestic Relations Law (Laws of 1896, chap. 272, § 21), an action may be brought against a married woman for the value of an article of dress, in the nature of a necessity, although she has not expressly promised to pay for it.</p>

<p>1. Municipal Court of the city of Mew York — Appeal where the summons was never served — Code Civ. Tro., § 3057.</p> <p>An application to reverse a default judgment, based upon the ground . that the defendants were never in fact served with the summons, comes within section 3057 of the Code of Civil Procedure relative to appeals founded upon an error in fact in the proceedings which does not affect the merits.</p> <p>3. Same — Return of service only prima facie proof of jurisdiction.</p> <p>A judgment of the' Municipal Court of the City of New York will be reversed upon appeal where it appears that the summons was never served, a return of personal service having the effect of making out only a prima facie ease of jurisdiction.</p>

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

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

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

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

<p>Appeal by the defendant from a judgment rendered in the Eleventh District Municipal Court in favor of the plaintiffs.</p>

<p>Appeal from a judgment of the Eighth District Municipal Court, rendered in favor of the plaintiff and against the defendants.</p>

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

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

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

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

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

Appeal by the defendants from a judgment rendered in favor .of the plaintiff in an action brought, in the Municipal Court, third district, borough of Manhattan, for the recovery of two several sums of money had and received by the defendants.

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

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

<p>Former adjudication. — Not established by nonsuit.</p> <p>The defense of a former adjudication is not established by proof that the present plaintiff was nonsuited in a former action brought against the defendant upon the same cause of action as that now in suit.</p>

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

<p>Corporation — Adoption of contract of employment made by former firm — Evidence thereof —Wrongful discharge.</p> <p>A corporation, organized by two, out of the three, members of a firm in order to continue the same business and in the same manner, may adopt and assume an existing contract of employment made by the firm; and recognition of the continuing existence of the contract is shown where it appears that the Corporation carried out strictly a condition of the contract relating to a possible reduction of salary, demanded the original contract of the employee for the purposes of verification, and passed a resolution which referred the contract and the question of salary to certain of the corporate officers for their report upon those questions. Where the employee is wrongfully discharged by the corporation he may recover of it damages for the breach to the same extent as if it had executed the contract.</p> <p>MacLean, J., dissented.</p>

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

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

<p>Contract — Promise to pay an attorney a fee if a fixed sum was “ realized ” on an attachment procured on Ms information — Compromise of attachment action.</p> <p>An attorney for a debtor to a firm, with a view of procuring the release of his client, agreed to furnish the firm information upon which it could procure an attachment against another of its debtors. The parties then made an agreement by which the firm agreed to pay the attorney §250 in case they “ realized ” upon the proposed attachment at least $1,000, and, if so much was “ realized ”, the firm also agreed to release the attorney’s client. The firm recovered judgment in the attachment action but was forced to compromise with other just claimants upon the fund attached and finally “ realized ” only $573 therefrom.</p> <p>Held, that the firm was justified in making a compromise provided it was done in good faith, and that as, under it, only $573 had been “ realized ”, the attorney could not recover his fee of the firm.</p>

<p>Appeal by the tenant from a final order in summary proceedings made in the Municipal Court of the City of Hew York, fourth district, borough of Manhattan.</p>

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

<p>1. Sale — Custom — Must not contradict contract.</p> <p>A custom in a trade cannot be proved unless it does not contradict the express or implied terms of the contract of the parties.</p> <p>2. Same — Time — Waiver extends but does not eliminate time.</p> <p>A waiver of a time limitation for the delivery of goods through an order, given after the time of delivery had expired, to send the goods “ at once ”, does not eliminate time from the contract but only extends the time originally fixed.</p> <p>3. Same — Order to deliver “ at once ”.</p> <p>An order to send goods “ at once ” is not properly performed by a delivery made one month later.</p> <p>4. Same — “ Reasonable time.”</p> <p>The question of what is a reasonable time ” must be decided by the jury.</p>

<p>Appeal from a judgment, in favor of the plaintiffs, rendered in the Municipal Court of the City of Mew York, second district, borough of The'Bronx.</p>

<p>Appeal by the tenant from a final order in summary proceedings made in the Municipal Court of the City of Hew York, eighth district, borough of Manhattan.</p>

<p>Mechanic’s lien — Basis for foreclosure of subcontractor’s lien.</p> <p>Where a contract provides that upon the contractor’s default the owner may complete the work and deduct the cost from any balance due him, such default does not wholly forfeit his right to a final payment, and any balance remaining due him from the owner, after the cost of completion has been deducted, will afford a basis for a subcontractor’s lien and for its foreclosure.</p>

<p>Partnership — Dissolution agreement — Construction of “ all outstanding indebtedness Accounts “ not collected or collectible ”.</p> <p>Where a partnership dissolution agreement clearly provides that the continuing partner shall pay “ all outstanding indebtedness ” of the firm, there is no room for construction, and he must pay such a debt although he was ignorant of it and it did not appear on the firm books.</p> <p>Where the outgoing partner covenants to pay the continuing partner one-half of any outstanding accounts which are “ not collected or collectible ”, he must pay his share of such an account when it has proved to be not collectible within a reasonable time.</p>

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

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

<p>Summary proceedings — Clerical error in petition.</p> <p>The court cannot amend a petition in summary proceedings by inserting a fact which is essential to jurisdiction, but an obvious clerical error, in stating the period of the default as to rent, may be amended.</p>

<p>Common carrier — Liability for gross negligence in handling violin.</p> <p>Where a common carrier, which has often safely transported a certain violin when inclosed only in its case, requests its consigno to inclose it also in an additional crate before a further shipment, a both the crate and violin arrive at their destination damaged broken, the facts raise a presumption of gross negligence in handling which, when not rebutted, entitles the consignor to recover the valm of the violin from the carrier.</p>

<p>Quo Wabeahto proceedings.</p>

<p>Savings banks — Payment of executor of depositor where the passbook is lost — Indemnity.</p> <p>Where a savings bank has had notice for many years that the pass-book of a depositor has been lost, provisions in its by-laws, assented to by her, requiring the pass-book to be presented as a condition of any payment, and also providing that, in the case of lost pass-books, “ the bank will decide to whom payment shall be made ”, do not justify it in refusing to pay the deposit to the executor of the depositor, unless he first produces the pass-book or furnishes indemnity against its loss.</p> <p>The refusal of the bank to pay the executor after demand is unreasonable. The provisions, for exacting indemnity against lost instruments in suit (Code Civ. Pro., § 1917), refer to such as are negotiable, and the statute has no application to a savings bank passbook as it is not a negotiable instrument.</p>

<p>Objection by defendant to the jurisdiction of the court respecting tort committed in another state.</p>

<p>Veteran — May recover for time lost by an illegal discharge but not for costs, etc., of a mandamus for reinstatement.</p> <p>Where a veteran, who has been appointed a watchman in the New York county courthouse, is removed in violation of chapter 821 of the Laws of 1896, and no one is appointed in Ms place, he may maintain an action against the city to recover his salary for the time during which he was prevented from serving it through no fault of his own, hut he cannot recover the costs and counsel fees of a mandamus proceeding which he instituted with a view to procuring his reinstatement.</p>

<p>^Replevin — Not maintainable by widow to recover possession of the buried body, of her husband — Equity — When a legal action relative to burial will lie.</p> <p>A widow cannot maintain replevin against one, who caused her husband’s body to be interred, in order to recover possession thereof, as matters arising after burial are .questions for the consideration of equity.</p> <p>Semble, that it is only where an arrested right, founded upon the duty of burial, has been violated before burial that a person aggrieved can maintain a legal action in the premises.</p>

<p>Sales — Impossibility of performance.</p> <p>Where vendors, who are independent dealers in the output of several factories, agree to sell and deliver goods, made by one of these factories, which they state they have “ secured ”, they must deliver at the periods fixed or pay damages, and the impossibility o£ obtaining the goods from the manufactory, in time, affords them no excuse for the failure to deliver.</p>

<p>Beferee — In a compulsory accounting of general assignee, may recover against moving parties and bondsman of assignee, but not against the latter — Contribution not to prejudice referee.</p> <p>A referee appointed to take and state the accounts of a general assignee, who is compelled to account, may recover, for all his services up to the time of the filing of his report, of the creditors who-</p> <p>' were active in the proceedings and of a bondsman of the assignee who voluntarily took part in them for his own protection; but the referee can recover nothing of the assignee, as the status of the latter negatives the inference that he requested the services of the referee.</p> <p>No right of contribution, as between the parties liable, will be allowed to delay the referee’s right to be presently paid.</p>

One John D. Rockefeller during several years furnished money from time to time to the Tabernacle Baptist Church, a part of which was coneededly furnished as contributions and a part of which Rockefeller claims were temporary loans to the church.

<p>Motion by defendant to change the place of trial from Jefferson county to Eew York county.</p>

<p>Mutual benefit fraternity — Eight to reincorporate under its own name, although similar to that of another fraternity — Mandamus against Superintendent of Insurance Department.</p> <p>An incorporated mutual benefit fraternity has an absolute right to reincorporate under the Insurance Law (Laws of 1892, chap. 690), and by its existing name, although that be very similar to the name of another previously incorporated benefit fraternity.</p> <p>The Superintendent of the State Insurance Department is given by the statute no discretion in the matter, and may be compelled by mandamus to comply with section 231 of the statute and file the declaration for a reincorporation thereby required, and refer the same to the attorney-general for his certificate of conformity and approval.</p>

<p>Liquor Tax Law — Bad faith of applicant in applying when he knew his town had voted against local option.</p> <p>Where an applicant for a liquor tax certificate fails to answer the question, contained in his application, whether he could legally trafile in liquors in the place in question, because he then knew that his town had voted at town meeting against local option, he is chargeable with ba'd faith in making his application and his certificate will be revoked at the instance of the State Commissioner^ of Excise.</p>

<p>Action to recover a penalty for an alleged violation of the rules and regulations governing the plaintiff association.</p>

<p>Action for a divorce.</p>

<p>Actios to restrain the úse of a trade-mark.</p>

<p>Demurrer to complaint.</p>

<p>Motion for a mandamus.</p>

<p>Criminal" procedure — Compensation of assigned counsel.</p> <p>Where an attorney, assigned as counsel to defend a person accused of murder in the first degree, has been once paid by the county, the compensation fixed by the court for his services, he cannot recover further compensation for additional services rendered upon his reassignment by the court to argue an appeal from a judgment of conviction given at the trial.</p>

<p>Motions for a bill of particulars and for tlie appointment of a receiver in an action for partition.</p>

This action was commenced in the Supreme Court • on the 3 cl day of April, 1899, and the place of trial designated in the complaint was the county of Schoharie.

<p>1. Highways — Dedication of a street by plotting it on maps.</p> <p>An abutting owner is assessable for the cost of a street sewer laid in 1898, through an alleged street where it appears that her husband, and predecessor in the title, plotted the said street on a map of his lands made by him in IS73, thereafter permitted public use of the street and filed the map in the county clerk’s office in 1877, and that in 1889, he caused a new map to be made which, although shortening the street, narrowing it to some extent and failing to give it a name, still recognized it as an open way in front of the premises assessed.</p> <p>2. Same — Acceptance by city — Revocation.</p> <p>Where land has been in use by the public as. a street for twenty-five years with the owner’s consent, the city need not formally accept the dedication thus made; nor can a formal acceptance, proposed to be made by a resolution of the common council in 1898, be then defeated by the erection, upon the part of the occupant, of fences at both ends of the strip in dispute two days before the passage of the resolution.</p>

<p>Motion for a bill of particulars, in an action of trespass.</p>

<p>Mandamus to compel reinstatement of relator and ten others as doekmasters in the department of docks and ferries of the city of Hew York, and for their salaries at $1,500 from January 1, 1898. These persons were doekmasters in the bureau of docks, in the city of Brooklyn, at the time of the consolidation, who, in the written plan of apportionment of the subordinates and employees of the municipalities consolidated, were transferred to the finance department, and were, by Comptroller Coler, dismissed and discharged from the service on January 28, 1898. They claimed that they were improperly transferred to the finance department through the error or mistake of Alfred E. Mudge, at the time an. assistant corporation counsel for the city of Brooklyn, to whom was assigned the clerical duty of preparing the written plan of transfer of the subordinates and employees of that municipality; that section 1536 of the charter directed and the board0of transfer had determined they should be transferred to the department of docks and ferries. They demanded reinstatement, which was refused. They then brought mandamus to compel their reinstatement. The writ was granted by Mr. Justice Dickey, but on appeal to the Appellate Division the order was reversed, and it was held that the court could not ignore the written plan; that if it were erroneous, as contended, and the relators were placed in the finance department by mistake, an action should be brought to correct the plan, in which the parties who formulated the plan would have a chance to be heard. See People ex rel. Percival v. Oram, 32 App. Div. 414. This order was affirmed by the Court of Appeals. 158 M. Y. 666. In obedience to a peremptory writ of mandamus, allowed by Mr. Justice Mattice, the former mayors and other members of the board of transfer corrected the error and transferred the dockmasters and employees of the bureau of docks of Brooklyn to the department of docks and ferries of the city of ISTew York, as now constituted, directing that it . take effect as of the date of the original written plan. Thereupon this action was commenced by Charles E. Alsberge for himself' and the other dockmasters. Peremptory writ granted as to Alsberge.</p> <p>On behalf of the respondents it was contended that the action of the former mayors and others members of the board of transfer was void, (1) because the city of Mew York was not made a party to the action; (2) because the board of transfer was funcius officio, and had no power to act in the matter.</p>

Motiost made by plaintiff for counsel fee and alimony in an action brought by her to annul a marriage on the ground that she was under the legal age of consent when the marriage ceremony was performed.

<p>Bank — Liable to payee for conversion of checks paid on forged indorsements — Measure of damages.</p> <p>Where a bank pays checks, deposited for collection, upon indorsements of their payees forged by a third person who stole and negotiated the checks, and the makers subsequently ratify the payments and cancel the checks, the payees may, instead of suing the makers, affirm the payments made by them and thereafter bring an action against the bank for wrongfully converting the checks, and recover as damages the amounts which the bank collected on the checks and paid to the depositor of them.</p>

Action by plaintiff to reach sufficient property belonging to defendant corporation, and now in the hands of other defendants, to satisfy her judgment against said corporation.

<p>Attachment — Publication of summons against nonresident may be begun before the warrant has been granted.</p> <p>Section 638 of the Code of Civil Procedure does not require the issue of a warrant of attachment against the property of a nonresident before the summons can be published against him, personal service not having been made; and where publication has been begun after an invalid warrant had been granted, the plaintiff may rest on that publication, if completed, in support of jurisdiction under a valid warrant obtained after the first one was vacated.</p>

Motion by defendant to vacate an attachment and also to vacate and set aside the levy which has been made under the warrant of attachment herein.

<p>Application under the Liquor Tax Law for the" cancellation of a liquor tax certificate.</p>

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

<p>Motion to compel plaintiff to receive defendant’s answer.</p>

<p>The defendant was organized in 1890 under the braiding and loan association statute of this state (chapter 122, laws of 1851). The plaintiff is a shareholder of the defendant, and this is a common law action to recover $1,000, the par value of his ten shares. The certificate of the defendant to the plaintiff for such shares contains in substance an agreement that the plaintiff shall pay to the defendant monthly installments of 75 cents a share in payment therefor, and that at the end of 78 months the defendant shall pay to the plaintiff $100 for each of the said shares, provided such monthly installments shall have been paid meanwhile. It also provides that at stated intervals all profits of the defendant shall be apportioned among the outstanding shares. The profits apportioned to the plaintiff’s shares during the 78 months was $102, making the total of the 78 installments and the profits' amount to $687. It is also provided in the certificate that any action against the defendant shall be brought in the county of Onondaga, N. Y., its principal office and place of business being in the city of Syracuse in said County. The certificate also expressly makes the by-laws of the defendant a part of the contract. At the expiration of the 78 months the plaintiff, having paid the 78 installments, demanded $1,000 of the defendant for his ten shares, but payment was refused.</p>

<p>Constitutional law — ITnconstitutionality of chap. 700, Laws of 1899, requiring the city of Hew York to pay the expenses of officials who have been tried and acquitted — Due process of law — Gift to an individual — City purpose.</p> <p>Chapter 700 of the Laws of 1899, providing for payment by the city of New Toi'k of the counsel fees and expenses of city officials who have succeeded against the city in prosecutions for alleged crimes connected with their official duties, is unconstitutional in that its first, third and fourth sections violate section 6 of article I and section 10 of article VIII of the Constitution of 1894, by failing to require that any notice be given to the city of the proceedings upon the reference to determine the claim or of those upon the audit thereof by the referee, and also by requiring the issue of city revenue bonds, in effect, in aid of an individual and not for a city purpose.</p>

<p>Motion to continue pendente lite injunction restraining letting and execution of contract for street lighting.</p>

<p>Proceedings under the Liquor Tax Law to cancel a liquor tax •certificate.</p>

Action to recover penalty, under section 104 of the Railroad Law, for refusing to transfer plaintiff from one to another of defendant’s leased lines.

<p>Motion for a new trial upon the minutes.</p>

<p>Action for au absolue divorce.</p>

<p>1. Conveyance — By an alleged incompetent actor to his wife.</p> <p>A conveyance of his property, made by a childless actor to his faithful wife eighteen months before his death and when his health was failing, will not be set aside, at the instance of collateral relatives, for his incompetency upon mere proof of his vagaries and eccentricities.</p> <p>3. Same — Undue influence.</p> <p>Undue influence will not usually be presumed in the case of a transfer to a faithful wife and the court will assume that the actor made the one in suit under a proper sense of obligation and from a fear that he might soon be unable to manage his property.</p>

<p>Trade-mark — Limitation of the right to use one's own name.</p> <p>While a woman is entitled to use her own surname as a trade-mark in business, she cannot use it in such a manner as, in combination with other business devices, will deceive the public and divert, from a person of the same surname, trade and good will which he has fairly earned in the past.</p>

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

<p>Proceedings under the Liquor Tax Law to revoke a liquor tax certificate.</p>

<p>1. Parties — Necessary to a complete determination of an action to declare a transfer fraudulent.</p> <p>Where the owner t£ a seat in the New York Stock Exchange has assigned it to another as a mere agent, charged with the duty of selling it, paying up dues and applying the balance towards paying a creditor of the owner, and the latter, in addition, has sold the seat to the creditor, the ecurt will not declare the transfer fraudulent where the first crédito; has not been made a party to the action, and will of its own notion order him to be brought in, to the end that there may be a complete determination of the controversy.</p> <p>2. Same. — Costs to party rot necessary.</p> <p>The New York Stock Ixchange is not a necessary party to such an action and will be awarded costs on a dismissal of the complaint as to it, although the complaint states that costs will not be asked against the Exchange unless it unreasonably defend.</p>

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

About December 30, 1896, one Julia A. Jones, residing in the county of Oneida, died. She left a husband, the plaintiff Seymour Jones; also a last will and testament; also a farm and ■some personal property consisting for the most part apparently of live stock, etc., on the farm. The will was admitted to probate in January, 1897.

This is an appeal from a judgment in favor of the plainti if entered upon a verdict and from an order denying a motion for a new trial.

<p>Sales — Measure of damages where the thing sold is not fit for the stipulated manufacture.</p> <p>Where vendees interpose, as a defense to an action for the price of cloth sold, a counterclaim based on a breach of an express warranty that the cloth was suitable to be manufactured into cloaks, their damages should not be limited merely' to the difference between the price and the actual value of the cloth for the purpose contemplated, as they are entitled to prove their actual damages, resulting from the fact that the cloth turned out to be of no use for cloaks after it had been made into them.</p>

This is an appeal from an order denying a motion made by the defendant to direct the referee, to whom the issues were referred to hear and determine, to resettle the case on appeal to the General Term of this court.

<p>1. ¡Fraudulent representations — Inducing the purchase of stock in a failing corporation.</p> <p>Where the manager of a dry goods commission corporation, by false representations as to its past and present financial condition, induces a person to invest in its stock, he is personally liable for a subsequent loss sustained by the investor upon the winding up of the corporation by its stockholders.</p> <p>2. Same — Estoppel.</p> <p>Although the investor remains in the corporation after discovering its true condition and accepts a dividend of forty-five per cent, declared upon his stock in the winding-up proceedings, he is not thereby estopped from suing the manager personally for the balance unpaid.</p>

<p>Attachment undertaking — Demand, as to surety — Measure of damages.</p> <p>A surety upon an undertaking given to procure an attachment is not, upon the latter being vacated, liable to an action on the undertaking unless the amount claimed to be actually due thereon has been first demanded of the surety, nor is its liability greater than the actual damages which have been sustained.</p>

<p>Appeal from an order of the Special Term granting an extension of time in which to answer.</p>

<p>Inquest—Vacation discretionary — Affidavit of merits.</p> <p>It is discretionary with the Special Term whether it will vacate an inquest, and the General Term will not interfere unless there has been an abuse of discretion.</p> <p>Failure to produce an affidavit of merits is a proper ground for a refusal to vacate.</p>

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

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

<p>Appeal from an order awarding the defendant-respondent judgment on a counterclaim in default of a reply or demurrer thereto, and vacating a judgment entered herein by the plaintiff-appellant upon an offer and acceptance of judgment, unless the appellant stipulated to deduct from said judgment the amount of the defendant’s counterclaim.</p>

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

<p>Reference —' Itemized attorney’s bill not. a “ long account.”</p> <p>The separation into Items of an attorney’s bill, for his services in a single action, made by him the subject of a counterclaim, does not render the action referable as one involving a “ long account ”.</p>

This is an application by the above-named Getman for an order under section 16, Liquor Tax Law, as amended by chapter 398, Laws 1899, authorizing and directing a special town meeting in and of the town of Theresa, Jefferson county, for the purpose of having resubmitted thereto the four questions or propositions in regard to the issuing of liquor tax certificates, covered by the local option provisions of the section above referred to.

Motion to vacate injunction restraining defendant from constructing its street surface railroad across plaintiffs’ tracks.

<p>Motion to strike out defendants’ demurrer as frivolous.</p>

Taxpayers’ action brought for the purpose of preventing waste of public funds in the threatened payment of alleged illegal claims against the town of Mount Pleasant.

Appeal by the defendant from a judgment in favor of the plaintiff, of the G-eneral Term of the City Court, affirming a judgment of the City Court entered upon the decision of the trial judge.

Appeal by the defendant from a judgment and order of the General Term of the City Court of the city of New York, reversing a judgment of the Trial Term of the said City Court, entered upon a verdict directed for the plaintiffs, and ordering a new trial.

Appeax from a judgment of the General Term of the City Court, affirming a judgment entered upon a verdict directed by the court.

<p>1. Set-off —Joint and several debts.</p> <p>Where action is brought on a joint contract, the defendant cannot set off a debt due to her by one of the joint contractors.</p> <p>2. Same — When a contract is joint.</p> <p>Where a contract is made by two or more persons jointly and there are no words which indicate a several liability, the contract is joint.</p>

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

A we at, by plaintiff from an order of the General Term of the City Court of the city of New York, affirming an order of the Special Term of the said City Court, requiring the plaintiff to give security for costs.

Appeal by the defendants from an order of the General Term of the City Oomt of New York, affirming an order entered in the action at Special Term on the 16th day of December, 1896, granting plaintiffs’ motion for a discovery and inspection.

<p>Appeal by tbe defendant from an order of the General Term of the City Court of the city of New York, affirming a judgment entered herein in favor of the plaintiff and against the defendant by direction of the court, and also from the judgment of affirmance entered herein.</p>

Appeal by the defendants from a judgment of the General Term of the City Court of the city of Yew York, affirming a judgment of the Trial Term entered in favor of the plaintiff upon the verdict of a jury, and also from an order of affirmance.

Appeal by plaintiff from an order of the General Term of the City Court, reversing a judgment of the Trial Term entered in favor of the plaintiff upon the verdict of a jury, and reversing an order denying defendant’s motion for a new trial.

<p>Appeal from a determination of the General Term of the City Court of the city of ¡New York, affirming a judgment of the Trial Term rendered on the verdict of a jury in favor of the plaintiff.</p>

<p>Accord and satisfaction — Assent — Consideration.</p> <p>After vendors had shipped 341 bundles of kid skins, a dispute arose between them and the vendees as to 82 of the bundles, and the vendors refused to take the latter back when they were returned to them by the vendees. The vendees then sent a check for 259 of the bundles and in their accompanying statement credited themselves with “ merchandise returned”, being the purchase price of the rejected 82 bundles. The vendors used the check and thereafter the parties again attempted to settle their dispute.</p> <p>Held, that no valid accord and satisfaction arose from the use of the check, as the vendors had not thereby assented to a new agreement.</p> <p>That they had received no consideration therefor, as they had merely - been paid the value of those bundles which were not in dispute.</p>

<p>Estoppel — Default judgment on the first of a series of notes.</p> <p>Where a series of notes grows out of the same transaction, a judgment taken by default, against the maker of them, upon the first note, estops him, when sued upon a subsequent one, as to all defenses which he interposed, or which he might have interposed, in the action on the first note.</p>

<p>Appeal from a determination of the General Term of the City Court of the city of Hew York affirming a judgment of the Trial Term in favor of the plaintiff, rendered on the verdict of a jury.</p>

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

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

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

Appeal by the defendant from a judgment rendered upon an inquest in favor of the plaintiff, in the Municipal Court, second district, borough of The Bronx.

Appeal by the plaintiffs from a judgment rendered in their favor and against the defendant, in the Municipal Court of the ■city of Hew York, second district, borough of Manhattan.

Appeal, by the defendant Hammerstein from a final order, in favor of the owner, awarding the delivery of the possession of the premises to the landlord therein, rendered in the Municipal Court, tenth district, borough of Manhattan.

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

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

Appeal by the defendant Fine from a judgment taken upon an inquest in favor of the plaintiffs in the Municipal Court of the city of Mew York, fifth district, borough of Manhattan.

<p>Husband and wife — Necessaries under Laws of 1896, chap. 272, § 21.</p> <p>The statute enabling a married woman to contract as if she were unmarried (Laws of 1896, chap. 272, § 21) does not absolve her husband from liability to pay for such of her purchases as are suitable to her station and his means; and, in this view, he is liable to pay for a silk dress which he saw her wear and which the court, sitting as a jury, found to belong to the class of “ necessaries.”</p>

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

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

<p>Chattel mortgage — Void as against mortgagor’s receiver — Delivery and change of possession.</p> <p>The immediate delivery, followed by an actual and continued change of possession of the things mortgaged, required by the Lien Law (Laws of 1897, chap. 418, § 90) to validate an unrecorded chattel mortgage as against the creditors of the mortgagor, etc., is not shown where it appears that, when the mortgage was executed, the mortgagee, who was boarding with the mortgagor, declared in another writing that she turned over and delivered the mortgaged chattels to the mortgagee, and subsequently allowed the latter to continue to use them in the conduct of her boarding-house.</p> <p>Such a chattel mortgage is void as against a receiver of the property of the mortgagor, appointed before the chattel mortgage was recorded.</p>

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, second district, borough of The Bronx, rendered in favor of the plaintiff.</p>

<p>Services — Party liable.</p> <p>It is a presumption that the party requesting the performance of services is bound to pay therefor and, if he would obligate any one else, he must clearly indicate by apt words, or by other means, that the services are to be rendered not for himself but for another, whom the party employed accepts as a debtor.</p>

<p>3?alse representations — As to illegal claim, not actionable — Assignment of unearned public salary.</p> <p>A paper, executed on July 8, 1898, transferring all one’s right “ in and to any claim which I may have against the city of New York, for services either between the 1st day of July, 1898, and the 31st day of July, 1898, or any other time or period ”, containing a statement that the claim amounts to $100 and a warranty that it “is a legal claim against the city of New York ”, must be taken to be, on its face, an assignment by way of anticipation of salary to become due a public officer and, being void as such, it can afford no basis for an action by the assignee for fraudulent representations of the assignor, inducing the purchase of the claim, when, as alleged, he knew he had no claim against the city.</p>

<p>Appeal by tenant from an order, called by him a judgment, of the Municipal Court of the city of Hew York, seventh district, borough of Manhattan, entered in favor of the landlords, “ awarding to the said landlords the delivery of the premises within described by reason of the tenant’s non-payment of said rent.”</p>

Appeal by tbe plaintiffs from a judgment of the Municipal Court of the city of Hew York, second district, borough of Manhattan, rendered in favor of the defendant.

Appeal by defendant from a judgment of the Municipal Court of the city of Hew York, fourth district, borough of Manhattan, rendered in favor of the plaintiffs.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, tenth district, borough of Manhattan, rendered in favor of the plaintiff.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of blew York, first district, borough of Manhattan, rendered in favor of the defendants.

Appeal by the plaintiff from a judgment, rendered in his favor in the Municipal Court of the city of Hew York, fifth district, borough of Manhattan, because, the defendant being subject to arrest and imprisonment, it is not so stated in the judgment.

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

<p>Appeal from a judgment, in favor o-f the defendant, rendered in the Municipal Court of the city of Hew York, tenth district, borough of Manhattan.</p>

<p>Appeal from a judgment, dismissing the complaint, rendered in the Municipal Court of the city of New York, second district, borough of Manhattan.</p>

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

<p>Mew promise — Code Civ. Pro., § 395.</p> <p>A letter from a debtor, to the attorneys of a creditor, in which the debtor recognizes a merchandise debt as existing, classifies it as an “ old debt ”, says he “ would like ” to pay it, and that he “ will be pleased” to make an arrangement as soon as his salary permits, is a sufficient acknowledgment of the debt, within section 395 of the Code of Civil Procedure, to extend the Statute of Limitations for six years from the date of the acknowledgment.</p>

<p>Husband and wife — His liability for her legal expenses in defending his action for a separation.</p> <p>A husband is liable for the reasonable value of the services of attorneys rendered to a penniless wife in her defense of her husband’s action for a separation, although the parties have been" reconciled and the action is discontinued.</p> <p>The attorneys need not show any justification of her endeavor to preserve the marital relation unimpaired, as public policy warrants her defense. (MacLean, J., dissenting.)</p>

<p>1. Municipal Court of New York —Lack of jurisdiction over Kings county corporation.</p> <p>The Municipal Court of the city of New York, borough of Manhattan, has no jurisdiction over a domestic corporation whose office and principal place of business is in the county of Kings, as it is to be deemed a non-resident of the county of New York.</p> <p>8. Same — Answer.</p> <p>An answer, setting up such non-residence, presents a valid defense.</p>

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

<p>Appeal from a judgment dismissing the complaint rendered in the Municipal Court of the city of New York, second district, borough of Manhattan.</p>

<p>Lehurrer to an alternative writ of mandamus.</p>

<p>1. Mandamus — Contempt by board of aldermen.</p> <p>Members of a board of aldermen who willfully disobey a writ of mandamus, directed to the board, will be fined and imprisoned until they obey the writ.</p> <p>2. Same — Individual members not entitled to separate hearings.</p> <p>Semble, that where such a writ is applied for against such a board, the individual members are not entitled to be heard separately and it is sufficient that they were represented by the corporation counsel of the city.</p>

<p>Certiorari to review the assessment of relator’s personal property for the purpose of taxation.</p>

<p>Exceptions to the report of a referee.</p>

<p>On April 22, 1898, the plaintiff O’Neill was the owner of certain real property situate corner of Park avenue and Geddes street, Syracuse, N. T., and on that day he and the defendant executed a lease in writing whereby he leased to the defendant the lower floor of the above premises for the term of one year, beginning May 1, 1898, and to end May 1, 1899, for the sum of $300, $25 payable at the end of each month. On October 29, 1898, a judgment in foreclosure Was entered in an action brought by one Frances E. Bondy to foreclose a mortgage upon the above premises, in which action the plaintiff and defendant were parties. A sale was had under the judgment on November 25, 1898, and the premises were purchased by the mortgagee, Frances E. Bondy, and a deed of the premises was delivered to her by the sheriff on November 29, 1898, which was recorded on the same day. The judgment-roll (stipulated by the parties to this appeal to be considered in evidence) contained the usual provision contained in judgments in foreclosure actions: “That the purchaser or purchasers at such sale be let into possession on production of the sheriff’s deed and a certified copy of the order confirming the report of sale.” There is no evidence that the sale has been confirmed. It was conceded upon the trial that the defendant went into possession under the lease above mentioned and continued in possession until the trial. It also appeared that the agent of the purchaser of the premises informed the defendant of the sale on the day that the same took place and told him that the lease from Mr. O’Neill was abrogated by the sale. The action was brought in the Municipal Court of the city of Syracuse. The plaintiff’s complaint was: “For rent twenty dollars for month of Nov. 1st to 25th.” Judgment was rendered in favor of the plaintiff for damages, $17.34, and the costs; from such judgment this appeal is taken.</p> <p>Upon the argument the plaintiff’s counsel moved for leave to amend the complaint so as to claim for entire month of November. By consent the decision of the motion for leave to amend was reserved to be decided with the case.</p>

On July eighteenth T made an order to show cause, returnable before me at chambers on July 28, 1899, why an injunction should not issue restraining the defendants from disposing of any of the second mortgage bonds issued by the plaintiff, which had been pledged by the defendant Kimball with the other defendants-as collateral security to personal obligations of the said Kimball.

<p>Application under the Liquor Tax Law to revoke and cancel a liquor tax certificate.</p>

Motion to compel plaintiff, upon the payment of the judgment herein, by the defendant, a surety, to assign the same to it and also a contract which the plaintiff took from one of his joint judgment debtors.

<p>1. Trust — Foreign, improperly suspending the power of alienation.</p> <p>The scheme of a testamentary trust, valid in the foreign State where it was created, and affecting New York real estate, was that the executors and trustees should hold the residuary estate and divide its income between his widow and his three children during their lives, the income to be divided among the survivors as each life ceased and the last survivor to enjoy the whole income. After her death certain charitable legacies were to be paid and the balance was to pass absolutely to a museum of fine arts of said foreign State.</p> <p>Held, that as there was no time during the existence of the four lives when an absolute fee in possession could be conveyed, the power of alienation was, as to the New York real estate, illegally suspended and that the testator died intestate as to it.</p> <p>2. Same — Personalty used by foreign trustees to pay New York mort-</p> <p>gages — Subrogation.</p> <p>The will directed the foreign executors and trustees to pay “ all mortgages which may be upon any real estate owned by me at the time of my decease ”. The executors paid from the personalty a mortgage on the New York real estate.</p> <p>Held, that as the primary purpose of the testator was to benefit his widow and children, the payment was proper, and that the museum was not entitled to subrogation, as against that real estate, to the extent of ihe payment; and particularly when it had been confirmed by the foreign court on the accounting of the executors.</p>

<p>Action for separation,</p>

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

<p>Corporation — May incorporate with, only one resident director — Repeal by implication.</p> <p>The Secretary of State must file a certificate of incorporation, prepared under the Business Corporation Law (Laws of 1890, chap. 567, as amended by Laws of 1895, chap. 671), although only one of the directors, named therein to serve for the first year, is a resident of the State of New York, as the requirement of the General Corporation Law (Laws of 1892, chap. 687, § 29), that every corporation must have two resident directors, has been impliedly repealed by the amendment, made by chapter 672 of the Laws of 1895, to section 4 of the General Corporation Law, requiring only one incorporator to be a resident.</p>

<p>Equity — Legal remedy of tenant, working a farm on shares, for an accounting and division of personal property.</p> <p>No trust relation exists between parties who agree to work a farm on shares, and therefore where they disagree and the tenant seeks an accounting and a division of personal property, also covered by the agreement, he must sue at law, particularly where the amount is small, and will not be permitted to bring an expensive action in equity.</p>

<p>Motion by judgment creditors to have amount of costs in certain supplementary proceedings fixed by the court.</p>

<p>Disorderly child — Commitment to Randall’s Island, N. Y"., during minority, not vacated at the instance of the committing parent.</p> <p>A boy, committed to the House of Refuge at Randall’s Island, N. Y., under the Consolidation Act (Laws of 1882, chap. 410, §§ 1596, 1597), during minority, as a disorderly child, for the purpose of reformation and on the complaint of his father, is not entitled to be released on proof that his parents deem him to be sufficiently reformed.</p> <p>Matter of Knowack, 158 N. Y. 482, distinguished.</p>

<p>Motion by plaintiffs to compel purchaser at judicial sale to take title.</p>

<p>Discovery — Stockholder's right to examine corporate books refused a pledgee of shares not transferred on the books.</p> <p>A pledgee, for the debt of an insolvent third person, of shares of the stock of a domestic corporation, still standing on its books in the name of the now deceased pledgor, is not a stockholder of the corporation either under the Stock Corporation Law or under the General Corporation Law, and hence cannot be accorded the common-law right which a stockholder has of inspecting the corporate books.</p>

<p>Judicial sale — Purchaser not bound by a resale made on different terms.</p> <p>Where premises, sold at public auction as unincumbered, are finally rejected by the purchaser because restrictive covenants exist oí which he had no knowledge, and the referee resells subject to the restrictions, the sale establishes no legal measure of damages against the purchaser, he will be relieved of the purchase, and must be repaid his down payment, “ the exchange ” and auctioneer’s fees.</p>

<p>Construction — Conflicting terms of a devise and of a prior ante-nuptial settlement made by the testator upon the devisee.</p> <p>In, 1877 a father made an ante-nuptial settlement upon his daughter, secured payment to her of an annual income by a mortgage deed on New Jersey realty executed to the trustee, provided that, if she did not will the principal, it should pass to her living issue in accordance with law, and that, failing such issue at her death, it should revert to the father or his estate. In 1883 he made a will by which he did not discriminate against her and in favor of his other children, except that he directed that the sum which he had theretofore “ settled upon her and her issue ” be charged against her as an advancement. He died in 1887; the daughter died in 1897 childless, and devised all her property to her husband.</p> <p>Held, that the father regarded the settlement as an absolute obligation whose principal the daughter might will, that her husband was entitled to it as her sole legatee, and that the provision of the ante-nuptial agreement that, if she left no living issue, the principal should revert to the father or his estate, should not be permitted to have any effect.</p>

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

Action brought by the sheriff of Eew York, in conjunction with the plaintiff in an attachment suit, as permitted by section 677, Code Civ. Pro., in aid of an attachment issued against the property of Louis Pons. The attachment was served upon the administrator of the goods, chattels, etc., of Jean Fernand Auguste Pons and upon the firm of Coudert Brothers, who had been the attorneys for Pons in his lifetime.

<p>Hace of trial — Mandamus to compel Superintendent of Banking to certify to a reward under chapter 386 of 1895.</p> <p>An application to compel, by mandamus, the State Superintendent of Banking, whose office is in the State Capitol at Albany, to issue a certificate that the relator is entitled, under section 2 of chapter 320 of the Laws of 1895, to receive from the State of New York a reward as being the first informant and furnisher of legal proof of a violation of its provisions, controlling loans of associations upon personal property, must be made in the county of Albany where the said information and proof is to be lodged, or in an adjoining county.</p>

<p>1. Benefit society — Rules of foreign as to change of beneficiary.</p> <p>The rules of a foreign benefit society, relative to a change of the beneficiary, are a part of the contract and a claimant of the fund must show that the rules were followed in making the change.</p> <p>¡3. Same — Waiver.</p> <p>Such a society may waive its rules and recognize a new beneficiary but, in order to be effectual, the recognition must have occurred before any rights had attached under the rules.</p> <p>3. Same — Effect of interpleading claimants.</p> <p>Where rights have attached, under the rules, by the death of the insured, an action by which the society interpleads rival claimants to the fund, does not constitute a waiver upon its part of the rules, but merely submits to the court the question as to who is entitled, under them, to the fund.</p>

<p>1. Trust — Not converted into a fee by a power to appoint by will.</p> <p>The fact that a beneficiary is given power, by his mother’s will, to dispose, by his own will, of a trust estate whose income is given him for life, does not impair the trust or entitle his creditor to reach it</p> <p>2. Same •— Surplus income refused beneficiary’s creditor.</p> <p>Where the beneficiary has been brought up luxuriously and has a wife and three children, the court will not allow his creditor to take from him any part of a trust income amounting to only $2,400 per annum.</p> <p>3. Same — Income not assignable.</p> <p>The income of a trust is not assignable.</p>

<p>Action upon a policy of life insurance.</p>

Application, upon return of order to show cause, for writ of peremptory mandamus, requiring the inspectors of election of the two town election districts of the town of Waterford, Sara-toga county, to reconvene and make a corrected statement of the votes cast at the town election, held March 7, 1899, by including in such statement the number of votes cast for applicant for the office of justice of the peace.

<p>■ Certiorari to review the action of the county treasurer of Sullivan county for a refusal to issue a liquor tax certificate to the relator.</p>

<p>1. Constitutional law — TJneonstitutionality of chapter 687, Laws of 1899, making the Supreme Court justices of Erie county a tribunal to try the Buffalo police commissioners.</p> <p>• The provisions o"f the revised charter of the city of Buffalo, (Laws of 1891, chap. 105, '§ 184, as amended by Laws of 1899, chap. 587) constituting the justices of the Supreme Court, resident in the county of Erie, a permanent tribunal to try the city police commissioners upon charges of malfeasance or misconduct in office and to remove them if found guilty, and also empowering that justice, to whom application is made in such a matter, to fix the time and place of the hearing of the same by all of the said justices, are unconstitutional.</p> <p>8. Same — Special or Trial Term cannot be appointed by one justice or be held by more than one.</p> <p>Such a tribunal, which must be either a Special or Trial Term, cannot be held lawfully by more than one justice, and the time and place of the hearing, in all except extraordinary cases where the Governor is given power, must be fixed by the Appellate Division and cannot be fixed by a single justice.</p> <p>3. Same — Imposition on the justices of a county of exclusive judicial duties.</p> <p>Semble, that the imposition, upon the justices of the Supreme Court resident in the county of Brie, of particular judicial duties to the exclusion of all the other justices of the same judicial district and of all the other justices of the State, tends to interfere with the orderly and uniform administration of justice.</p>

<p>Bemainder — Provisions contingent on the death of the remainderman during the life of the testatrix.</p> <p>The will of a testatrix, whose son and daughter were married when she made her will and whose son was then childless, gave by its second clause all her residuary estate to her son and to her daughter, share and share alike. The third clause provided that, if the son died without lawful issue him surviving or surviving issue not attaining the age of twenty-one years, then his share should go to the daughter. The fourth and fifth clauses provided that her executors, her son and her husband, might sell the realty and dispose of the personalty, but that the husband during his life should receive the net income of the whole. The testatrix survived her husband and died seventeen years after making her will.</p> <p>Held, that each of the children was entitled absolutely to a moiety of the whole estate.</p> <p>That the contention of the daughter, that the son only took an interest which was defeasible, in her favor, if he did not leave issue or if his surviving issue did not attain majority, was untenable, ■ as these dispositions of the third clause, made dependent on the death of the son, were intended to have effect only in the event of his having died during the lifetime of the testatrix.</p>

<p>Benefit insurance — Lender on policy entitled dnly to his advances.</p> <p>Where the holder of a certificate in a fraternal benefit association, payable to his wife, changes the beneficiary in order to secure a person who has made him loans and whom he names and describes in the change as “ Hepke Creditor ”, the court will not, in a contest, arising after his death and that of his wife, between his infant child and the said creditor, award the latter the whole fund but only the amount of his loans, as no encouragement should be given to an attempt to convert a benign benefit certificate into a gambling policy of insurance and enable the creditor to derive an extraordinary profit from the unexpected death of the insured.</p>

<p>Trust — Agreement to pay a husband income, etc., so long as he did not willfully desert his wife — Power to reinvest not destructive of power to sell — Equitable relief.</p> <p>A husband, fearing that he could not manage his estate, conveyed it to a trustee with power to collect the principal due on choses in action and also to receive the rents and profits of the realty, the husband to be paid the whole income for life and $3,000 a year of the principal, if he requested it; but, in case he wilfully deserted his wife, during such period each to be paid one-half of the income and one-half of the $3,000 principal payments. In case she died first the fund was to be repaid to him but in case he died first it was to be paid to her. The trustee was also given power to sell, convey, invest and reinvest. The husband subsequently by the advice of his wife went to a sanitarium and was afterward sent to an insane asylum, she being his committee. After his discharge from the asylum she unjustifiably refused to live with him. Thereafter a substituted trustee refused to pay him, on his requests, the $3,000 annual payments of principal.</p> <p>Held, that he was entitled to them as he had not been guilty of wilfully deserting his wife. ¡</p> <p>That the power to reinvest did not necessarily exclude the trustee from exercising his other power of collecting the principal due on choses in action, as that must be exercised in order to make the contemplated payments from the principal.</p> <p>That, assuming that the husband had a remedy at law against the trustee, the former still had a right to go into equity to compel the latter to perform a general power in trust.</p>

<p>Motion by stockholder for inspection, etc.</p>

<p>1. Judgment — Unless it declares preferences in payments, none exist.</p> <p>Where a final judgment fails to provide for any preference in payment as between separate clauses thereof, the presumption is that no preference exists and the Special Term has no power to interfere and construe the judgment.</p> <p>2. Compromise — Belief therefrom to infant unless it is carried out in a reasonable time.</p> <p>Semble, that, where the guardian of an infant has made an authorized compromise as to her rights in an estate, the court may relieve her from it, upon her attaining majority, unless its provisions are carried out within a reasonable time.</p>

Proceedings under the Primary Election Law (Laws of 1899, chap. 473, § 2), directing the respondent McMahon to substitute what, it is contended, is the regular list of names and further that from the substituted list the police board be directed to appoint the election officers.

<p>1. Municipal corporation — Council compelled to issue bonds for a reservoir, etc.— Mandamus.</p> <p>Where the council of the city of New York refuses to pass a resolution for the issue of bonds “ authorized and directed ” by statute (Laws of 1892, chap. 481) to be issued in payment of reservoirs, etc., required in the “ public interest ” by the former city of Brooklyn and taken before consolidation in proceedings subsequently confirmed in all the courts to which an appeal was possible, a taxpayer and resident of the borough of Brooklyn may by mandamus compel the council to pass the resolution, as that body has no discretion in the matter.</p> <p>S. Same — Existing remedy at law.</p> <p>A municipal council may be compelled by mandamus to execute its legal functions, although a remedy at law against it co-exists.</p> <p>3. Same — Eorm of mandamus.</p> <p>Where the duty imposed by a statute is mandatory, the writ may not only direct performance but prescribe the manner thereof.</p> <p>4. Same — Unnecessary issues not considered.</p> <p>Where such a writ is sought against an inferior body which has failed to perform a plain statutory duty, any attempt upon its part to raise unnecessary issues will be discouraged.</p>

<p>1. Constitutional law — Unconstitutionality of chapter 700, Laws of 1899, requiring the city of New York to pay the expenses of officials tried and acquitted.</p> <p>Chapter 700 of the Laws of 1899, providing for payment by the city of New York of the counsel fees and expenses of city officials who have succeeded against the city in prosecutions for alleged crimes connected with their official duties, is unconstitutional.</p> <p>8. Same — Gift to an individual.</p> <p>The provisions of the act, constituting the findings and audit of the referee, in regard to claims by persons who have no legal claim against either the city or the county, a sufficient warrant in law to compel taxpayers to pay the sums awarded or have their property sold, clearly show that the act authorizes the taking of private property for the benefit of individuals and not for a public use, as required by the Constitution of 1894.</p> <p>3. Same — Confirmation by the court.</p> <p>The constitutional objection is not cured by the provision that the report of the referee must be confirmed by the court, as the questions submitted to the referee are exclusively those of fact, his action thereon usually conclusive, and the action of the court in most cases necessarily merely confirmatory.</p>

<p>¡Motiokt to confirm report of referee ais to surplus moneys.</p>

<p>Motion by defendant to require security for costs.</p>

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

Aureal by the plaintiff from a judgment in favor of the defendant dismissing the complaint, rendered in the Municipal Court, sixth district, borough of Manhattan.

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

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

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

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

Appeal by the plaintiff from a judgment rendered in the Municipal Court, tenth district, borough of Manhattan, dismissing the complaint..

Appeau by the defendants from a judgment of the General Term of the City Court, affirming' a judgment of the Trial Term of the City Court, rendered in favor of the plaintiff.

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

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

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

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

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

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

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

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

Motion to dismiss an appeal from an order of the General Term of the City Court, affirming an order of the Special Term of the City Court, denying a motion to vacate an order in supplementary proceedings requiring the judgment debtor to submit to an examination.

Appear from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Hew York, third district, borough of Manhattan.

<p>Motion to dismiss an appeal from an order of the General Term of the City Court, affirming an order of the Special Term of the City Court, denying a motion to vacate an order in supplementary proceedings requiring the judgment debtor to submit to an examination.</p> <p>Motion to dismiss an appeal from an order of the General Term of the City Court, affirming an order of the Special Term of the City Court, adjudging the judgment debtor in contempt in not. appearing for examination, pursuant to an order in supplementary proceedings.</p>

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

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

Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Eew York, ninth district, borough of Manhattan.

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

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

<p>Motion to dismiss an appeal upon the ground that the notice of appeal was not served in proper time.</p>

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

<p>Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Hew York, second district, borough of The Bronx.</p>

<p>Appeal by the plaintiff from an order of the General Term of the City Court, affirming two orders of that court at Special Term.</p>

<p>This is an appeal by the plaintiff from a judgment herein, after a trial by a jury, and from an order denying motion for a new trial.</p>

This is an appeal from a judgment entered upon a verdict at a Trial Term and from an order denying a motion for a new trial.

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

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

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

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

<p>Appeal from an order, made and entered herein on September-27, 1898, on motion of plaintiff’s attorneys, directing “ this action to be discontinued, with ten dollars costs to the plaintiff’s attorneys,”' and from another order made and entered herein on October 3, 1898, on motion of defendant’s attorney, denying a resettlement of the first-mentioned order.</p>

<p>Appeal from judgment entered upon a verdict rendered by a jury, and from an order denying defendant’s motion for a new trial made on the minutes.</p>

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

<p>This is an appeal from a judgment entered at a Trial Term of this court, dismissing the complaint on the merits.</p>

<p>This is an appeal from an order vacating a judgment against defendant, and granting him leave to serve an answer alleging payment, accord and satisfaction.</p>