Volume 28 — New York Supplement

Action by Philip Biershenk and others against William E. D. Stokes to recover for work, labor, and services and materials alleged to have been rendered and furnished at defendant’s request. From a judgment of the city court (26 H. Y. Supp. 88) affirming a judgment dismissing the complaint, plaintiffs appeal. Affirmed.

Action by EEza W. White against Jose Balta for rent. A judgment in favor of plaintiff was affirmed on appeal (27 FT. Y. Supp. 902), and defendant moves for leave to appeal to the court of appeals. Denied.

Action by Claude Gindre and others against Cyrus V. Kean, as assignee for the benefit of creditors of Edward M. Benjamin, to recover moneys collected by defendant, subsequent to the assignment by him for the benefit of creditors, on account of goods sold by the assignor as a del credere agent for plaintiffs. Judgment for plaintiffs.

Action by Henry G. Bickneil against Gilbert M. Spier, Jr., as receiver of the Vertical Tube Boiler Company. A judgment in favor of plaintiff was affirmed (27 N. Y. Supp. 38G), and defendant moves for leave to appeal to the court of appeals. Denied.

<p>Actions by Frederick S. Myers against Moses 8. Bosenback. Defendant moves for leave to serve a supplemental answer.</p>

Action by John Douglas Walton and another against Will. Eafcl, impleaded with others, for forcible entry and detainer under a stipulation that the sole question in controversy is whether the instrument set out below is assignable. The persons designated as parties of the first part are plaintiffs, and the parties of the second part are the Kaliskies, defendant’s assignors. There was a judgment in favor of plaintiffs, and defendant Eafel appeals. Reversed.

Action by John Roberton, as administrator, against the mayor, etc., of the city of 27ew York, and the 27ew York Central & Hudson River Railroad Company to recover for the death of plaintiff’s intestate, alleged to have been caused by the negligence of defendants. From a judgment entered on an order dismissing the complaint on the opening, and from an order denying a motion for a new trial,, plaintiff appeals. Affirmed.

Action by Joseph Birnbaum, an infant, by his guardian ad litem, against Samuel Lord and another, to recover damages for the alleged negligence on the part of the driver of defendants’ wagon in running over plaintiff, a boy about 12 years old, while he was crossing Chrystie street at Stanton street, in 27ew York city. From a judgment of the city court (27 27. Y. Supp. 135) affirming a judgment in favor of plaintiff, entered on a verdict for $250, defendants appeal. Affirmed.

<p>Principal and Agent—Liability op Agent—Undisclosed Principal.</p> <p>An agent who fails to disclose his principal is personally liable to a person with whom he contracts, though such person might have discovered the agency; actual knowledge being necessary to relieve the agent of liability.</p>

Action by Louise Carlson against Maria L. Winterson on a promissory note. A judgment in favor of plaintiff was reversed on appeal (22 M. Y. Supp. 553), and defendant now moves for restitution. Denied.

Action by John L. Hamilton and others against James J. Coogan and another to foreclose a mechanic’s lien on premises known as 225 and 227 Sixth avenue. Front a judgment in favor of plaintiffs for $65,122.83, defendants appeal. Affirmed.

Action by the Union Stove Works against William H. Arnoux to recover the agreed price of 40 ranges, with boilers and attachments, to be set and connected complete in two apartment houses in Ninety-Eighth street in New York city. From a judgment of the city court (26 N. Y. Supp. 83) affirming a judgment entered on a verdict in favor of plaintiff for $1,026, the full amount claimed, defendant appeals. Affirmed.

Action by Alice Watson against John H. Bussell to recover damages for breach of contract of employment. From a judgment of the city court (25 N. Y. Supp. 517) affirming a judgment entered on a verdict in favor of plaintiff, and an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by William Ottmann & Co., a corporation, against Joseph E. Hoffman, as a trustee of the Importers’ & Traders’ Club, a corporation, to recover a debt due from the corporation to plaintiff pursuant to the provisions of section 8 of chapter 228 of the Laws of 1877. From a judgment of the city court (26 N. Y. Supp. 881) affirming a judgment overruling a demurrer to the complaint and awarding to plaintiff the relief demanded therein, defendant appeals. Affirmed.

<p>1. Pleading—Cause op Action not Alleged.</p> <p>If due objection be made, there ean be no recovery on a cause of action not pleaded.</p> <p>3. Same—Amendment on Appeal.</p> <p>On appeal, to sustain the judgment, there can be no substantial change of the claim or defense.</p> <p>(Syllabus by the Court.)</p>

Action by Jamin S. Morse against Francis D. Thurber and others for work, labor, and services performed, and materials furnished. From a judgment in favor of plaintiff rendered by the justice without a jury, defendants appeal. Affirmed.

<p>Appeal from judgment on report of referee.</p> <p>Claim against the estate of Arthur E. Bateman. The claim was disallowed, and claimant appeals. Affirmed.</p>

Action by Lewis A. Olsen against Andrew J. Ensign on a promissory note. From a judgment in favor of plaintiff, rendered by a justice without a jury, defendant appeals. Affirmed.

Action by Cochran Cotton-Seed Oil Company against Julius A. Kugelman for goods sold and delivered. From a judgment in favor of plaintiff, rendered by the justice without a jury, defendant appeals. Affirmed.

Action by John Clafliin and others against the New York Standard Watch Company on a promissory note. From a judgment of the ■city court (23 N. Y. Supp. 324) affirming a judgment entered on a verdict in favor of defendant, plaintiffs appeal. Affirmed.

Action by Joseph W. Doolittle against Robert W. Selkirk to recover rent of a dwelling house in. East Orange, H. J., known as “Ho. 83 Grove Street,” for five months (from December 1, 1891, to May 1, 1892), at $40 per month, payable monthly in advance, and also the water tax, amounting to $2.60. There was a judgment in favor of defendant, and plaintiff appeals. Reversed.

Action by the Cochran Cotton-Seed Oil Company against the Phenix Insurance Company of Brooklyn to recover on a policy of fire insurance on plaintiff’s property at Rock Hill, S. C. From a judgment entered on a verdict in favor of plaintiff, defendant appeals. Modified.

Action by Michael Hassett against Patrick J. McArdle, impleaded. From a judgment of the city court (26 2sT. Y. Supp. 1135) affirming a judgment entered on a verdict in favor of plaintiff for $86.10, defendant Patrick J. McArdle appeals. Affirmed.

Action by Zachariah 0. Nelson and another against the Easton & Ambby Bailroad Company. From a judgment entered on a verdict in favor of plaintiffs, and from am order denying a motion for a new trial, defendant appeals. Affirmed.

Action by Anna E. Swinarton against George Le Boutillier for personal injuries sustained by plaintiff while a customer in defendant’s dry-goods store, plaintiff’s eye being put out by a pin thrown or shot by a cash boy. From a judgment entered on a verdict in favor of plaintiff for $10,000, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Affirmed.

Replevin by Peter Hay against Rosalie Muller, as executrix, to recover goods received by plaintiff’s testator on a loan, and by her wrongfully detained. From a judgment of the city court (26 FT. Y. Supp. 1135) affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals. Affirmed.

Action by Ignatz Weiss and others against Joseph B. Morrell and another. From an order of the city court affirming an order advancing the cause to the short-cause calendar, and from an order denying a resettlement thereof, and from an order to strike the cause from both the special and general calendars of the court, ■defendants appeal. Affirmed.

Action by Ignatz Weiss and others against Joseph B. Morrell and another for work, labor, and services in manufacturing certain materials furnished by defendants into uniforms at the agreed price •of $1,856.70. The answer alleged that the work was not done in a good and workmanlike manner; that plaintiffs failed to return surplus cloth to the account of defendants to the amount of any demand by plaintiffs which might be proved on the trial.

Action by August MarschaU and others against the Eisen Vineyard Company for damages for breach of contract. From a judgment of the city court (21 N. Y. Supp. 468) affirming a judgment entered on a verdict in favor of plaintiffs, defendant appeals. Reversed.

<p>'Trial—Findings op Fact—Variance.</p> <p>An answer which alleges, as a counterclaim, “plumbing materials and labor” furnished by defendant to plaintiff, is not sustained by a finding that defendant furnished, besides plumbing materials and labor, “gas fitting, sewer excavation, and pipes for sewers and gas, and labor connected therewith.”</p>

Action by Louis E. Eraser and another against the Granite State Provident Association, impleaded. From an order sustaining a demurrer from interlocutory and final judgments entered thereon, plaintiffs appeal. Reversed.

<p>Elevated Railroads—Injuries to Abutters—Transfer of Title.</p> <p>A lease of premises for a term of years with an agreement to convey the fee to the lessee six months before the expiration of the term of the lease, title to remain in plaintiff until the time of conveyance, does not divest the lessor of all substantial interest in the premises, and he may sue for injuries to the premises, caused by the construction and operation of an elevated railroad on which the premises abut, notwithstanding the lease.</p> <p>Appeal from special term.</p> <p>Action by Charles S. Hine against the New York Elevated Railroad Company and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.</p> <p>For former report, see 23 N. Y. Supp. 187.</p>

<p>Elevated Railroads—Injuries to Abutters—Evidence.</p> <p>In an action against an elevated railroad for injuries to abutting premises, where it appears that rents had decreased from a time before the construction of the railroad until the beginning of the action, there is no conclusive presumption that the decrease of rents was continuous, but it is competent to find that the decrease after the construction of the road was caused by the road.</p>

Action by Frederick G-iblin against the National Steamship Company, Limited, to recover damages for the loss of a horse delivered to defendant for transportation. Prom a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by Mary Walsh, as administratrix, and Charles H. Mapes, as administrator, against the Manhattan Railway Company to recover damages for alleged negligence causing the dearth of plaintiffs’ intestate. The complaint was dismissed, and plaintiffs appeal. Affirmed.

Action by Emory M.. Van Tassel against Henry Barton Beecher. Prom an order denying a motion to make the complaint more definite and certain, defendant appeals. Affirmed.

Action by Hartwig Herzog and Aaron Herzog against Hath an H. Heyman to recover royalties due on a contract of sale of a patent. From a judgment in favor of plaintiffs, defendant appeals. Modified.

Action by Miles E. Griffiths against the New Jersey & New York Railroad Company for personal injuries. From a judgment entered on an order dismissing the complaint, and from an order denying a motion for a new trial on the judge’s minutes (25 N. Y. Supp. 812), plaintiff appeals. Affirmed. The defendants were building a station house, to be made of wood. The plaintiff was a carpenter. He was hired by the master mechanic.

Action by David E. Austin, as receiver of taxes in the city of New York, against the Westchester Telephone Company to recover taxes assessed against defendant for the years 1889 and 1890. From an interlocutory judgment entered on a demurrer, and from a judgment entered on the pleadings, defendant appeals. Reversed.

Action by Caroline A. McCready and others against the Metropolitan Elevated Railway Company and another to recover past damage and fee damage to plaintiffs’ premises on the northwest corner of 9th avenue and 53d street caused by the construction and operation of defendants’ railroad. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

Judicial settlement of the account of Solomon Farian, as administrator of Charles Wiegel, deceased. From a decree finally settling the account entered on the report of the referee, Frederick W. Wiegel, Anna C. B. Wiegel, and Sabrina C. M. F. Hold, heirs and next of kin of intestate, appeal. Reversed.

Harry Gillette was convicted of grand larceny in the second degree, and sentenced to imprisonment in the state prison at hard labor for four years and nine months, and from the judgment of conviction, defendant appeals. Reversed.

Action by Thomas Nolan against the Rockaway Park Improvement Company, Limited, to recover damages for assault and battery committed by employes of defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals. Reversed.

<p>1. Foreign Corporations—Actions—Contract Made within the State.</p> <p>An agreement made in New York to render services, though it does not fix the price, is nevertheless a contract within Code Civ. Proc. § 1780, providing .that an action against a foreign corporation may be maintained for breach of a contract made within the state.</p> <p>2. Same—Right to Plead Statute op Limitations.</p> <p>In an action in New York against a foreign corporation, defendant cannot plead New York statute of limitations.</p> <p>3. Same—Pleading Foreign Statute.</p> <p>In an action against a foreign corporation, where the answer alleges that the cause of action “did not accrue within six years before the commencement of this action,” it is not sufficient as a plea of the statute of limitations of defendant’s habitat, but the answer should set out the statute, or the substance of it, or make a proper reference to it.</p> <p>4. Pleading—Amendment.</p> <p>Where an answer does not sufficiently plead the statute of limitations of a foreign state, it cannot be amended so as to plead such statute, as that would introduce a new defense.</p>

Action by Jacob Ringle and George Ringle against the Wallis Iron Works, impleaded with the Southern Pacific Company. From a judgment in favor of plaintiffs (24 Y. Y. Supp. 757), defendant Wallis Iron Works appeals. Modified.

Application by the New York Elevated Railway Company to acquire title to easements in Ninth avenue necessary to be taken for the purpose of petitioner’s railroad appurtenant to a certain lot of land on the southeast corner of Ninth avenue and Seventy-Third street.

<p>Appeal from special term, New York county.</p> <p>Application by Hugh J. Grant, as temporary receiver of the St. Nicholas Bank of New York, for instructions. From an order denying the petition, petitioner appeals. Reversed.</p>

<p>1. Municipal Corporations—Liability for Wrongful Act of Policeman.</p> <p>Police officers of a city are not its servants in such a sense as to render it liable for their wrongful acts.</p> <p>2. Same—Employes on Brooklyn Bridge.</p> <p>The city of New York is not liable for the wrongful arrest of a passenger on the New York & Brooklyn Bridge Railroad by a person who was at the time acting as a guard on the car, since the bridge and railroad are a private enterprise, not connected with the exercise of any political power granted to the city by the state, and the fact that the' person acting as guard was a bridge policeman is immaterial.</p>

Action by Sophie Mayer against T. Judson Kilpatrick and others to recover damages for an alleged conversion of a check. From a judgment dismissing the complaint, plaintiff appeals. Reversed.

Appeal'from eleventh district court. Action by Charles 0. Johnson against Abel M. Parker for injury to personal property. From a judgment in favor of plaintiff, rendered by a justice without a jury, defendant appeals. Reversed, unless recovery is reduced.

<p>Contracts—Mutual Assent.</p> <p>Defendant wrote to the owner of a house offering to accept a lease to terminate on April 1st following. The owner called at defendant’s house when he was absent, and defendant again wrote, referring to the visit, and stating that he understood from his wife that he (the owner) had accepted the offer, but he refused to accede to the owner’s wish to have possession of the house at an earlier day than April 1st. The owner replied that he would not recede from his proposal as to the termination of the lease. Defendant then refused to take the lease, whereupon the owner wrote that he would hold him to his offer. HM, that the minds of the parties did not meet.</p>

Action by Charles H. Colton and others against the New York Elevated Railroad Company and another for an injunction and damages caused by the taking of easements by defendant’s elevated railway.

<p>1. Pleading—Sufficiency of Complaint on Demurrer.</p> <p>On demurrer a complaint will be upheld if it exhibit facts entitling to any relief, although it be insufficient for the specific form of action.</p> <p>2. Judgment—Res Judicata—Conviction of Crime.</p> <p>A judgment of conviction in a criminal court is conclusive only between the parties,—i. e. the state and the defendant; but is no estoppel as between the defendant and strangers to the record.</p> <p>3. Same—Collateral Attack.</p> <p>A judgment of conviction on a plea of guilty may be avoided collaterally by proof that the plea was induced by the fraud, duress, and conspiracy of the person seeking to avail of it.</p> <p>4. Action for Tort—Consent of Injured Person.</p> <p>Consent to a wrong, induced by fraud, duress, and conspiracy, is no answer to an action upon the wrong by the party so consenting against the party so procuring the consent.</p> <p>(Syllabus by the Court.)</p>

Action by Mattie L. Wood against Raphael Wood to enforce payment and security for alimony decreed to plaintiff in a judgment for divorce by a French court. Defendant demurs to the complaint on the ground that the court has no jurisdiction of the subject of the action, that two causes of action are improperly united, and that the complaint does not state facts sufficient to constitute a cause of action. Overruled.

Action by Alfred Pionier against John E. Alexander to recover wages alleged to be due. From a judgment in favor of plaintiff, rendered by the justice without a jury, defendant appeals. Reversed.

<p>Corporations—Personal Liability of Stockholder.</p> <p>A stockholder of an insolvent corporation cannot bring an action at law against another stockholder to enforce the liability imposed by Laws; 1848, c. 40, § 10, which provides that stockholders shall be individually liable for corporate debts until the whole amount of capital stock shall have been paid in, and a certificate thereof recorded.</p>

Action by Edward S. Stokes against W. E. D. Stokes for libel. From an interlocutory judgment overruling a demurrer to part of the complaint, and from an order directing the entry of said Interlocutory judgment, defendant appeals. Affirmed. For former report see 25 N. Y. Supp. 405.

<p>Arrest in Civil Cases—Motion to Vacate.</p> <p>An order denying a motion to vacate an arrest will not be disturbed on appeal, where the right to maintain the action and the order of arrest both depend on the construction of a contract between the parties to the action, and such construction may dependí on the course of business between the parties, which can be satisfactorily established only on the trial.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by Joseph Wallach against Sarah H. Van Schaick to recover commissions alleged to have been earned by plaintiff, as a real-estate broker, in bringing about an exchange of property between defendant and one George Moore. The complaint was dismissed, and plaintiff appeals. Affirmed.</p>

Action by James H. Van Inwegen against the New York, Lake-Erie & Western Railroad Company to recover for injuries to plaintiff’s team of horses, harness, and wagon, and for injuries to himself, caused by the running away of his horses, which were frightened: by defendant’s locomotive.

Action by Eliza B. McGowan against the Supreme Council of the Catholic Mutual Benefit Association to recover $2,000 on a beneficiary certificate issued by defendant to Richard B. McGowan, plaintiff’s son, and payable to plaintiff. A verdict was directed in favor of defendant, and plaintiff moves for a new trial on exceptions taken at circuit, and ordered to be heard at general term in the first instance. Denied.

<p>Authority of Agent—Warranty of Goods Sold.</p> <p>In an action ■ for breach of warranty of goods sold by defendant’s agent, a conversation between defendant and the agent is not admissible to show that defendant did not authorize the agent to warrant the goods, since authority to sell includes an authority to warrant.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by the Alleghany Lumber Company, Limite^, against William Hoyt and Mark Hoyt, as surviving partners of the late firm of Hoyt Bros. There was a judgment in favor of defendants, and plaintiff appeals. Affirmed.</p> <p>The action was brought for an alleged breach of contract made between the parties, of date May 15, 1884, by which the defendants agreed to sell to the plaintiff all the hemlock timber—after it had been cut, and the bark peeled from it—on certain described lands in McICean and Bradford counties, state of Pennsylvania, at a certain price per specified quantity; also, the cherry, ash, oak, cucumber, basswood, whitewood, pine, and black birch upon the lands, at another price specified. It was stated in the contract that the defendant intended to construct a railroad from the terminus of the New York, Lake Erie & Western Railroad, in the city of Bradford, up the west branch of the Tunangwant creek, and up Fuller brook, to the east line of warrant No. 3,422, to be furnished with an engine (the railroad to be and remain under the management and control of the defendants, subject to the terms of their contract with the New York, Lake Erie & Western Railroad Company, of date May 9, 1884), and that the parties and Benjamin F. Hazel-ton should have the right and privilege of using the railroad and engine for the purpose of moving bark, logs, and lumber (they, respectively, to furnish their own rolling stock, other than the engine); that the cost and expense of operating and maintaining the railroad after its completion be borne by the plaintiff, defendants, and Hazelton pro rata, in proportion to the number of car loads shipped over it by each; and that the plaintiff should have equal rights and facilities with the defendants “in loading its cars, and in moving all logs and timber.” The railroad was afterwards constructed, and completed in August, 1884; and the contract remained operative between the parties to it until in January, 1888. The plaintiff charges that the defendants failed to pay their pro rata share of the expense of maintaining and operating the railroad, and denied to the plaintiff the facilities to which it was entitled for removal and transportation of its logs and lumber, and, as the consequence, the plaintiff sustained a large amount of damages. The allegations in support of a cause of action were put in issue by the answer of the defendants, and they alleged a counterclaim against the plaintiff for moneys due them on the contract. The referee found that there remained unpaid from the plaintiff to the defendants, of the purchase price of the timber sold to it, the sum of §4,265.91, which became due June 1, 1889, that the defendants had failed and neglected to afford the plaintiff equal rights and facilities with them in loading its cars, and in moving logs and timber over the railroad, to the plaintiff’s damages of §2,000,—and directed judgment against the plaintiff for §2,368.36.</p>

Action by Margaret Leary, as administratrix of John W. Leary, deceased, against the Lehigh Valley Railroad Company, to recover damages for the death of plaintiff’s intestate. Plaintiff moves for a new trial on exceptions taken on the trial in the superior court of Buffalo, and ordered to be heard at general term in the first instance, and afterwards removed into the supreme court, pursuant to Code Civ. Proc. § 273. Denied.

Action by Nora Fuller against Nancy Brown and John Allen to declare a deed fraudulent as to creditors. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.

Action by Daniel L. Wesson, suing for the benefit of himself and other creditors, similarly situated, of George D. Chapman, as receiver of the Lackawanna & Pittsburgh Railroad Company, against George D. Chapman, as such receiver.

<p>Appeal from circuit court, Monroe county.</p> <p>Action by Stephen Mahoney against the Vacuum Oil Company. From an order denying a motion made on the minutes for a new trial, plaintiff appeals. Affirmed.</p> <p>The plaintiff, by his action, sought to recover damages for personal injuries suffered by him, while in the service of the defendant, under the following circumstances: He, with others in the employ of the defendant, was engaged in putting a tank weighing about six tons into a hole about six feet in diameter, cut through the floor of the second story of the building, and onto a supporting iron girder about eight feet below the floor. For that purpose the lower end of the tank was placed so as to project some over the hole in the floor, and a two-inch rope was put through a hole in the bottom of the tank, to be there securely fastened, with a view to raising and placing the tank by means of a tackle above. For the purpose of doing the work of putting the rope through, and securing it there, the plaintiff and others were on a plank laid across the hole. It broke, and he was precipitated to the bottom of the building, and sustained the injuries complained of. He was nonsuited at the trial.</p>

Action by George W. Thomas against the Grand View Beach Railroad Company to restrain defendant from maintaining and operating its railroad on plaintiff’s land and for damages. From a judgment dismissing the complaint, plaintiff, appeals, and from so much of the judgment as determined that plaintiff is the owner of the premises described in the complaint, defendant appeals. Reversed.

Judicial settlement of the accounts of Frank A. Teed, as administrator with the will annexed of Louis B. Grant, deceased. From a decree settling the accounts of the administrator and directing distribution, the New York Baptist Union for Ministerial Education appeals. Modified.

<p>Appeal from judgment on report of referee.</p> <p>Action by S. Hobart Dorr against August Beck, as sheriff of Erie county, Frank S. Hubbard, and Charles Hubbard. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.</p>

<p>Appeal from court of sessions, Wyoming county.</p> <p>Albert G. Vosburgh was convicted of selling liquor without a license, and appeals. Affirmed.</p>

<p>1. ComtTS—Jurisdiction—Waiver.</p> <p>In an action in the county court, failure to allege in the complaint that defendant is a resident of the county is waived where defendant appears and answers on the merits without objection.</p> <p>2. Merger—Judgment against Indorser of Note.</p> <p>A recovery against an indorser on his contract of indorsement is not a merger of the note so as to preclude the indorser from recovering against a guarantor of the note, as the recovery on the contract of indorsement does not include the liability of the maker or of the guarantor.</p>

<p>Attachment—Alternative Statement oe Grounds.</p> <p>A recital in an attachment that “defendants have assigned, disposed of, or secreted their property, with intent to defraud their creditors,” is not subject .to the objection that it contains an alternative statement of the grounds.</p>

<p>Appeal from circuit court, Allegany county.</p> <p>Action by Charles S. Whitney against Sarah E. Whitney for divorce. From a judgment entered on a verdict in favor of plaintiff, defendant appeals. Affirmed.</p>

Action by Floyd 0. Shepard, Philo Osgood, and William S. King against Watson 0. Squire and Ida Squire. From an order granting a motion to change the place of trial from Monroe to Herkimer county, plaintiffs appeal. Affirmed. ■ The action was commenced by the service of the summons May 8, 1893. The complaint was served by mail upon the defendants’ attorney June 22d, and their answer was served July 20th.

<p>Appeal—Dismissal—Failure to Serve Case and Exceptions.</p> <p>An appeal will not be dismissed for failure to serve a case and exceptions within the time prescribed, but the only effect of such failure is to leave complainant to argue his appeal on the judgment roll.</p>

Action by Harriet Cooper, Sarah E. Cooper, and Lncy A. Edes against Caroline Monroe and Simon Monroe to recover possession of certain real estate. From an order granting a new trial on the minutes of the court after a t-erdict in favor of defendants, defendants appeal. Reversed.

<p>1. Municipal Corporations—Presentation op Claim.</p> <p>Under a city charter providing that no claim against the city for damages caused by negligence shall be received for audit unless made out in detail, specifying “when, where and how occasioned,” a claim is sufficient where it states that, on a certain evening, claimant’s buggy was overturned by coming in contact with a pile of dirt in the middle of a street at a point about one-third of a mile east from a certain railroad; that claimant was thrown to the ground, and rendered unconscious by the fall; that the exposure during unconsciousness caused a severe sickness; that his buggy and harness were broken; and that he claims $200 for personal injuries, and $20 for damages to his buggy and harness.</p> <p>2. Same—Averment op Negligence.</p> <p>The claim need not aver negligence on the part of the city, as the charter does not require such allegation.</p> <p>8. Same—Time op Presenting Claim.</p> <p>Rochester city charter provides that no action shall be brought against the city until the expiration of 40 days after the claim shall have been presented to the common council; that all actions against the city for negligence shall be commenced within one year “from the time of the receiving the injuries or when the cause of action * * * shall have accrued;” that no action shall lie against the city for personal injuries unless notice of intention to sue shall have been filed with the city counsel within six months after such “cause of action shall have accrued.” 'Held, that the notice of intention to sue must be given within six months after the expiration of 40 days from the presentation of the claim, but before the expiration of one year from the time the injuries were received.</p>

<p>Alteration of Instruments—Bonds—Affidavit of Justification.</p> <p>The affidavit of justification, of the obligors in a bond is not a part of the bond, and an alteration of the affidavit does not affect the validity of the bond.</p>

<p>Pleading-Striking Out Answer as Sham.</p> <p>An answer in an action on a promissory note which states that at the time the note became due the maker had sufficient funds on deposit with plaintiff, a bank, to pay the note, states an affirmative defense, and will not be stricken out as sham.</p>

Action by Harold J. Emmett against William J. Penoyer. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Reversed.

<p>Appeal from Monroe county court.</p> <p>Action by Mary W. Merrick, as executrix of the will of Melzer F. Merrick, deceased, against Sarah J. Hill and Frederick Zimmer, for rent. From a judgment of the county court affirming a judgment of the municipal court of the city of Rochester in favor of plaintiff, defendants appeal. Affirmed-.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Henry H. Gee against Hiram J. Torrey and Horace Davis to foreclose a lien. From a judgment in favor of plaintiff, defendants appeal. Affirmed.</p>

<p>Principal and Agent—Implied Notice op Agent’s Acts.</p> <p>Plaintiff put money in the hands of one M.i as his agent, to deposit it in defendant’s bank, and send to plaintiff, for each deposit, either his individual check, or defendant’s check indorsed by him. M. deposited the money in his own name, and induced defendant to issue checks payable to him, by representing that he was plaintiff’s partner, that the money was his share of the business, and that he desired the checks only as memoranda to be used in settling with plaintiff, after which he would return them. M. indorsed the checks and sent them to plaintiff, who received them supposing that they represented deposits made according to the agreement. Afterwards, M. appropriated to his own use the money so deposited by him. -Held, that plaintiff was chargeable with knowledge of the acts of M., and could not recover from defendants on such checks. Bradley, J., dissenting.</p>

Action by Alexander Dennistown and others, against Thomas M. Barr and others, to obtain possession of the proceeds of certain coffee, or to have them placed in the custody of the court. Judgment for plaintiffs.

<p>Action to determine the ownership of real estate, and for an adjudication as to certain liens claimed thereon. It appeared that plaintiff had received from the government a sum of money on account of the pension for services rendered as a soldier in the war of the Rebellion. Plaintiff handed $700 of the pension money to his wife, who deposited it in bank in her own name. Afterwards she bought the real estate in controversy, a vacant lot, for $250, took the title in her own name, and paid for it out of the $700 which had been handed to her by plaintiff. Plaintiff and his wife then' entered into a contract with one McNulty, a contractor and builder, to build a house on the lot for $1,100, of which $500 was to be paid in cash and $600 by a mortgage on the property. The balance of $450 of the pension money remaining after deducting the $250 paid for the lot was all applied on the cash payment for the building. The $600 bond and mortgage for the balance of the price of the house were executed by the wrife alone. Certain liens were filed against plaintiff's wife as the owner of the real estate, she having the legal title thereto.</p>

Action by Benjamin A. Horton and others against James W. Matthews and others to set aside an assignment for benefit of creditors. Judgment for plaintiffs. ■

Action by Peter Herder against Theophilus J. Bloomer to recover from the defendant $95 for type stolen from the plaintiff, from a loft which plaintiff had rented from the defendant for the purpose of storing type and other material, with the condition that the defendant was to retain part of the same for his own use. The complaint alleges that the defendant was negligent in his use of the loft, in that he did not see that the doors were properly locked after he had used same.

Separate actions by Grace D. Ives against Peter Quinn, William B. Converse, William F. Bartley, and James S. Nathans, respectively, for trespass on real property. From judgments in favor of plaintiff, defendants appeal. Affirmed.

Action by William Murray against the Gast Lithographic & Engraving Company to enjoin the publication of a portrait of his infant daughter, and for damages. Judgment for defendant.

Action by Margarett A. Boot against John B. Strang, as executor of Collins Woodruff, deceased, on a promissory note. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the conn., defendant appeals. Affirmed.

<p>Action by Rosa Cullin against Supreme Tent of the Knights of the Maccabees of the World to recover $2,000 on an endowment certificate. Defendant moves for a new trial on exceptions ordered to be heard at general term in the first instance after direction of a verdict in favor of plaintiff. Denied.</p>

Action by Philip Becker against the town of Cherry Creek. From an order denying a motion to change the place of trial from Erie to Chautauqua county, for the convenience of witnesses, defendant appeals. Affirmed. For former report, see 24 N. Y. Supp. 19.

<p>1. Equity—Laches—Demurrer.</p> <p>A demurrer to a complaint in equity will not be sustained on the ground that plaintiff’s claim is stale, but such question can be determined only on trial of the issues of fact.</p> <p>2. Contracts—Interpretation.</p> <p>A lease of a railroad provided that certain shares of stock should be transferred to a trustee, “which stock shall be held by the said trustee for the benefit of the party of the second part [lessee] so long as the second party shall retain the possession of said demised premises, and continue to perform the conditions of this agreement and lease. But in case of the forfeiture of this lease, and the repossession of the said demised premises by the parties of the first part, then it is hereby mutually agreed that in that case said capital stock held by said trustee shall become forfeited, and shall be retransferred to the original holders thereof.” Held, that it was not the intention of the parties that the stock should be retransferred merely on the forfeiture of the lease, without a repossession of the railroad by the lessors.</p>

<p>Appeal from special term.</p> <p>Action by Thomas J. Buffum against Joseph Forster and August Beck, as sheriff. From an order denying a motion to vacate a temporary injunction, defendants appeal. Affirmed.</p>

<p>Mortgages—Absolute Deed—Reconveyance.</p> <p>Where a deed absolute in form is given as collateral security for the price of land, and afterwards, by agreement between the parties, the contract for the sale of land is canceled, and a conveyance made under a different contract, a reconveyance will be decreed.</p>

<p>Appeal from special term, Erie county.</p> <p>Action by Matthew G-. Elliott against Elijah S. Smith, impleaded, etc., to foreclose a mortgage. From an order continuing an injunction restraining defendant from collecting or disposing of a judgment which he had recovered against plaintiff, defendant appeals. Reversed.</p>

Action by Joseph Crebarry against the National Transit Company to recover damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Reversed.

Action by Eugene C. Denton against the Ontario County National Bank, impleaded, to foreclose a mortgage. From a judgment in favor of defendant, plaintiff appeals. Affirmed. For former report, see 18 N. Y. Hupp. 38.

<p>Witness—Personal Transactions with Decedent.</p> <p>Code Civ. Proc. § 829, providing that a party to an action shall not be examined as a witness in his own behalf, against “a person deriving his title * * * from * * * a deceased person,” concerning a personal transaction or communication between witness and decedent, does not prohibit a party who derives title from a decedent from testifying as to personal transactions with him as against a party who does not derive his title from decedent.</p>

<p>Appeal from circuit court, Monroe county.</p> <p>Action by Sophia B. McG-ucken, as administratrix, against the Western Hew York & Pennsylvania Railroad Company, to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Reversed.</p>

<p>1. Conditional Pardon—Violation—Remandinq Convict.</p> <p>Where a convict is charged with violating a conditional pardon, the question of fact is properly tried by a jury on return of an order to show cause why he should not be remanded to prison, for such violation, under his original sentence.</p> <p>2. Same—Validity of Condition.</p> <p>Under Const, art. 4, § 5, providing that the governor may grant pardons on such conditions as he may think proper, a condition that the person pardoned shall totally abstain from the use of intoxicating liquors for five years is valid.</p>

Henry J. Warren was convicted by the police court of the city of Buffalo of a misdemeanor, and from a judgment of the court of sessions affirming the judgment of conviction, defendant appeals. Affirmed.

Judicial settlement of the accounts of Philo D. Beard and John M. Provorst, as executors of the will of Caroline M. McCredie, deceased. From so much of the decree settling the executors’ aecounts as adjudges them entitled to commissions as executors, only, and not to commissions, also, as trustees, they appeal. Modified. • •

<p>Appeal from judgment on report of referee.</p> <p>Action by" Martin D. Chace against the Kerr Salt Company for an injunction. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.</p>

<p>Appeal from Chautauqua county court.</p> <p>Action by Augustine Wright against George W. Chase. From an order denying a motion to continue the action in the name of the administratrix of defendant, who died during the pendency of the action, plaintiff appeals. Affirmed.</p>

Action by David Shaw against Oliver P. Outwater and Abel Crossman on a note. Plaintiff moves for a new trial on a case and exceptions ordered to be heard in the first instance at general term, after a verdict for defendants directed by the court at Yiagara circuit. Granted.

Action by Haskell H. Marks, an infant, by Ms guardian ad litem, against the Rochester Railway Company, for personal injuries. There was a verdict in favor of plaintiff, and from an order granting defendant’s motion for a new trial on the minutes of the court plaintiff appeals. Reversed.

<p>Appeal from special term, New York county.</p> <p>Action by Joseph B. Rose against David Stewart and others, trustees of the London & Lancashire Fire Insurance Company. From ■a judgment dismissing the complaint, plaintiff appeals. Reversed.</p> <p>This action was begun December 26, 1890, to recover a judgment perpetually restraining the defendants from erecting and maintaining in a yard structures obstructing light and air from entering plaintiff’s building from said yard. On the 13th of November, 1832, Nathaniel G. Carnes was the •owner of Nos. 42 and 44 Cedar street, and of Nos. 57 and 59 William street, the rears of which lots abutted. No. 44 was then wholly covered by a brick store, and there was a brick store on No. 42 about 50 feet deep north and south, leaving a yard about 30 feet long north and south, and about 25 feet wide east and west, which abutted Nos. 57 and 59 William street on the west. At this date Lynde Catlin owned No. 40 Cedar street, which was abutted on the south partly by Carnes’ William street property and partly by said yard. November 13, 1832, Carnes and Catlin mutually executed a contract (duly recorded November 16, 1832, in the office of the register of the city and county of New York, in Book 259 of Conveyances, at page 449), which contains, among other recitals and covenants, the following:</p> <p>“Whereas, the said Lynde Catlin is desirous to have the use of the privy in the yard of the stores of the said Nathaniel G. Carnes in common with the tenants of the surrounding stores, and also to use and enjoy the light and air appertaining to said yard for his said store, now erecting as aforesaid, as will appear by the map hereto annexed. * * * And the said Nathaniel G. Carnes does hereby give and grant unto the said Lynde Catlin, his heirs and assigns, the use, benefit, and advantage of the privy in the yard of the stores of the said Nathaniel G. Carnes on William street aforesaid, in common with the tenants of the surrounding stores, and also the use, benefit, and enjoyment of light and air for the said store of the said Lynde Catlin, so far as the same in common belongs and appertains to the yard aforesaid. * * * That in no case, or under any pretense, shall the said Lynde Catlin, his hens or assigns, be deprived of the use or privilege of access to and use of the privy therein, or the light and air, as contemplated to be granted to or enjoyed by the said Lynde Gatlin, his heirs or assigns. * * * And it is further mutually covenanted and agreed by and between the parties to these presents that the triangular piece of ground in the rear of the lots Nos. 40 and 42 Cedar street, as delineated on the plan or map hereunto annexed, shall forever remain open for light and air. excepting that the said party of the second part (Catlin) reserves to himself, his heirs, administrators, and assigns, the right to inclose the ground belonging to him, the said party of the second part (Catlin), with an iron railing, and of putting steps to descend into the yard from the first or principal story of his buildings on said lot, No. 40 Cedar street.”</p> <p>The ground embraced within the yard, and owned by Catlin, was a small, triangular piece, containing less than 30 square feet. The plaintiff has acquired No. 42 Cedar street, except a small triangular piece on the southeast corner of that lot, forming part of the yard, through -mesne conveyances, subject to the covenants above quoted, and the defendants have acquired Nos. •57 and 59 William street, through mesne conveyances, subject to said covenants. The court found:</p> <p>“Ninth. That the defendants, prior to the commencement of this action, erected, and are now maintaining, in said yard, in immediate proximity to the rear wall of the building on the premises Nos. 57 and 59 William street, an iron cylinder or pipe of the diameter of about two feet, which extends from the ground in said yard to a point about two feet above the top of the rear wall of the building on the premises Nos. 57 and 59 William street, a height of about one hundred and fifty feet; and that the defendants, prior to the commencement of this action, also erected and constructed, and are now maintaining, in said yard, two skylights, or ventilating shafts, one of which is seven feet eight inches long by six feet five inches wide and four feet six inches in height, and the other of which is three feet seven inches long by four feet wide and four feet five inches in height. Tenth. There is no evidence that the said iron cylinder or pipe, or said skylights, substantially interfere with or obstruct the -use, benefit, or enjoyment of the light appertaining to the yard in the rear of the premises Nos. 57 and 59 William street for the premises of the plaintiff, No. 42 Cedar street.”</p> <p>The court found the following conclusions of law,—the first and second upon the plaintiff’s request, and the last upon the request of the defendants:</p> <p>“First. That the plaintiff at the time of the commencement of this action was, and still is, entitled to the use, benefit, and enjoyment of the light and .air of the said yard, so far as the same in common belonged and appertained to the said premises No. 42 Cedar street, in the city of New York. Second. That the plaintiff is entitled to the use, benefit, and enjoyment of the light and air of the said yard, which fell in and upon the said premises, No. 42 Cedar street, as said light and air had existed prior to the erection of said •cylinder or pipe and of said skylights.” ■</p> <p>“The defendants are entitled to judgment against the plaintiff dismissing the complaint herein with costs, and I order and direct judgment accordingly.”</p> <p>The plaintiff has not excepted »to the ninth finding, but has to the tenth, and by six requests asked in various forms the court to find the converse of the tenth finding, which requests were refused, and exceptions filed. The plaintiff also excepted .to the last conclusion of law above quoted, and requested the court to decide that the plaintiff was entitled to the judgment prayed for, which was refused, and an exception filed.</p>

Action by Leopold Sinsheimer and others against the United Garment Workers of America and others to restrain defendants from interfering with plaintiffs’ business. From an order granting an injunction pendente lite (26 N. Y. Supp. 152), defendants appeal. Reversed.

Action by the mayor, aldermen, and commonalty of the city of New York against John Brady and others. From a judgment dismissing the complaint, plaintiff appeals. Reversed. For former report, see 24 N. Y. Supp. 296.

<p>Judgment—Determination oe Terms in Advance op Entry.</p> <p>In an action to foreclose a mortgage, an order will not be made before entry of judgment requiring the insertion in the judgment of a clause containing certain provisions.</p>

Submission of controversy between Morris Fisher and Louis Harris, as plaintiffs, and Ellen H. Wilcox, executrix and sole trustee under the will of Benjamin Albro, deceased, as defendant, on an agreed state of facts, pursuant to Code Civ. Proc. § 1279. Judgment for plaintiffs.

Action by Alfred H. Smith and another against the American Turquoise Company. From an order denying a motion to strike out portions of the answer, plaintiffs appeal. Affirmed.

<p>Appeal from surrogate’s court, Hew York county.</p> <p>Proceeding to fix the amount of the inheritance tax on the estate of John A. Phipps, deceased. From an order fixing the amount of said tax, Benjamin Phipps, ancillary executor of the will, appeals. Reversed.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Matilda A. Sloane, as executrix, against William R. H. Martin. From a judgment in favor of plaintiff (24 N. Y. Supp. 661), defendant appeals. Affirmed.</p>

Action by Dugald J. Bannatyne and others against the Florence Milling & Mining Company. From a judgment entered on a verdict in favor of plaintiffs for $1,746.58, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by Julia V. Pape, as executrix, against Joseph L. Schofield and others, for an accounting of the rents of certain premises. From a judgment in favor of plaintiff for $6,341.23 and costs, and directing defendant Thomas McKee to pay said amount to plaintiff out of moneys in his hands to the credit of this action, defendants appeal. Affirmed.

<p>Appeal from special term, New York county.</p> <p>Action by the United States Trust Company of New York against the mayor, aldermen, and commonalty of the city of New York. From a judgment awarding plaintiff $50,255.55 for personal taxes wrongfully collected from it in the year 1887, and denying it any recovery on account of the taxes of 1888, 1889, and 1890, both parties appeal. Eeversed in part, and affirmed in part.</p> <p>The action was brought to recover $139,765.71, being the aggregate amount paid for taxes in each of the years 1887, 1888, 1889, and 1890, on the ground that the assessments were void, and the payment of the taxes induced by duress and under mistake, and to cancel the assessments themselves. The plaintiff is a domestic corporation transacting business as a trust company in the city of New York. In each of the years mentioned, plaintiff was assessed for taxation on its capital stock, pursuant to the provisions of the act of 1857 relating to taxing incorporated companies. Laws 1857, c. 456, § 3. In each instance, plaintiff furnished the commissioners sworn statements showing its condition in those years, for the purpose of assessment, and, through its officers or attorneys, appeared before the commissioners while the books were open for correction, and applied for cancellation or reduction of the assessment. The ground of application for cancellation or reduction of the assessment in each year was that according to these statements the plaintiff had no personal property subject to taxation, except for the year 1890; but the commissioners, instead of canceling, reduced, the assessment. The result of these proceedings was that the assessments were confirmed for amounts in each year which, in the aggregate, make up the sum for which a recovery is sought in this action. Plaintiff took no proceedings by certiorari to review any of the assessments, but paid the taxes as levied, either with interest accrued at the time of payment, or less the rebate allowed by law for prompt payment In the years 1888, 1889, and 1890 the taxes were paid (excepting a small portion of the taxes of 1890) during the first weeks that the books were open; and in each of said years plaintiff received a rebate of interest, this being one of the inducements stated by the president of plaintiff for the early payments of taxes in those years. In the year 1887, payment of the tax was deferred until December 20th, on which day payment was made, with interest, and at the same time a written notice was served, either upon the mayor or comptroller or the receiver of taxes of the city, in the following form:</p> <p>“The United States Trust Company of New York being informed that you claim that it is indebted to you to the amount of §37,231.77 for a tax on personal" estate of the said trust company, and in response to your demand therefor, it hereby pays the same under protest; reserving all rights to recover the amount so paid under protest, or any part thereof, believing the tax above referred to to have been unlawfully assessed, and the demand for the payment thereof to be unlawful.</p> <p>“United States Trust Company of New York, “By J. S. Clark, 2d Vice Prest.</p> <p>“To the Mayor, Aldermen, and Commonalty of the City of New York; the</p> <p>Comptroller of the City of New York; the Receiver of Taxes of the City</p> <p>of New York.”</p> <p>No proof was offered of an actual demand by the receiver of taxes on the plaintiff for the amount of the tax laid in 1887. The person who paid the tax on behalf of plaintiff had died before the trial of this case, and the receiver of taxes was also then deceased. Upon whom the notice of protest was served, or the manner of its service, is not made to appear. “It does not appear that any officer of the defendant had authority, at the time of payment of the tax of 1887, to enforce collection of the same, or that any officer threatened to enforce the same, or had made any attempt to seize the property of the plaintiff, under color of law, or otherwise.” The court at special term held that the tax of 1887 was paid under duress, and that the amount so paid might be recovered back in this action, and that the taxes for the other years could not be so recovered. Judgment was entered accordingly, and both parties have taken appeals to this court.</p>

Application by Henry W. Schmidt and Peter V. Stocky for letters of testamentary guardianship on the estate of George Ulmer Clausen, a minor. From an order denying the application, petitioners appeal. Affirmed.

Appraisement of the estate of Frank Linsly james, deceased, for taxation under the legacy and inheritance tax act (Laws 1887, c. 713). From a decree confirming the appraiser’s report (27 N. Y. Supp. 288) assessing a tax on certain legacies, John Arthur-James, the executor, appeals. Reversed.

Action by Samuel Cole against Samuel B. Sanford, George Boheny, and Charles C. Pope, as executors and trustees under the will of J. Monroe Taylor, deceased. Plaintiff moves for a new trial on a case and exceptions ordered to be heard at general term in the first instance. Granted.

Proceeding by Sarah Leverett Hayden, Charles H. Hayden, William B. Hayden, Albert Hayden, and Cotton Allen, as executrix and executors and trustees' under the will of Peter Hayden, deceased, for a judicial settlement of their accounts. From portions of the decree settling the accounts the executors appeal. Affirmed.

Action by Jacob D. Nordlinger against the Manhattan Railway Company and the Metropolitan Elevated Railway Company. From a judgment dismissing the complaint on the merits, with costs, plaintiff appeals. Reversed.

Application by Maurice S. Cohen for a judicial settlement of the ■accounts of Sewanee M. Stevenson, James D. Smith, and James McClenahan, executors of the will of David Stevenson, deceased. 'The application was denied, and petitioner appeals. Affirmed. The respondents’ testator died in 1892, and letters testamentary were issued October 31st of that year, on his estate, to the respondents.

<p>Action by John Poth against the mayor, aldermen, and commonalty of the city of Hew York to have an assessment declared void, and to recover back the amount paid thereon by plaintiff. Defendant moves for a new trial on exceptions ordered to be heard at general term in the first instance. Denied.</p>

<p>Liens—Fob Advances.</p> <p>Plaintiffs gave acceptances to defendant to enable him to purchase goods, and drew on him against the acceptances, accompanying the drafts with the invoices and bills of lading of the goods purchased. After defendant had accepted plaintiffs’ drafts, plaintiffs surrendered the invoices and bills of lading, and took defendant’s receipt, stating that defendant agreed to hold the goods on storage as the property of plaintiffs until then1 acceptances should be paid or sat’sfactorily provided for, with the privilege of selling the goods and handing the proceeds over to plaintiffs. Held, that such agreement gave plaintiffs a lien on the goods which was superior to the claim of a person who subsequently made advances to defendant on his representation that he was the owner of the goods.</p>

Action by Henry Moritz against Joseph Sachs Kaliske, TheodoreKaliske, Charles S. Kaliske, William Vogel, and Sara S. Kaliske,. Fabian S. Kaliske, and Theodore Kaliske, as executors of the estate of Alexander S. Kaliske, deceased, and John J. Gorman, as sheriff' of the city and county of New York. Plaintiff moves to continue,, pendente lite, an injunction theretofore granted. Granted.

<p>Judgment—Res Judicata.</p> <p>A judgment and order of a county court reversing a judgment in favor of plaintiff reciting that the testimony shows no cause of action against defendant is rendered on the merits, and bars a subsequent action for the same cause, though the case was one in which the county court could not order a new trial.</p>

Action by Bernard Cahn and others against the Hoffman House to enjoin an alleged infringement by defendant of plaintiffs’ trademark. Judgment for defendant.

Action by John T. Fitzpatrick against John Burchill and Mary Burchill to -set aside a deed made by defendant John Burchill to his codefendant, as in fraud of creditors. Judgment for defendants.

.Actions, one by Herman Russ and others against Eliza Stratton and others and the Lawyers’ Title Insurance Company of New York, and the other by Louis E. Fraser and another against Minna Duncan and others and the Lawyers’ Title Insurance Company of New York. From an order making the title insurance company a defendant, plaintiffs appeal. Reversed.

John Y. McKane and others were indicted for conspiracy to violate the election laws in the town of Gravesend. Defendants demur to the indictment. Sustained.

<p>Appeal from special term, New York county.</p> <p>Action by Henry J. Barnes against Amelia M. Barnard, Julia A. Hilliard, William S. Mason, Lydia Brown Mason, Josephine Ball Mason, Ella Kellogg Mason, Mary Hannah Pierce, Jane WV Weaver, and Henry H. Earl, as executor of the will of Abbie M. Ball, and Thomas P. Wickes, as receiver of the property of Julia M. Luther, impleaded. From an order relieving defendants Louis Lowenstein and Albert L. Lowenstein from their contract to purchase from said receiver, Thomas P. Wickes, and directing the receiver to return to them the sums paid by them on their contract for auctioneer’s fees and for searching title, plaintiff and the other defendants appeal. Affirmed.</p>

Action by Charles S. Fairchild and others, as executors of the will of Mary A. Edson, deceased, against. Margaret B. Edson individually, and as executrix of Marmont B. Edson, and others, to obtain a construction of the will of the plaintiffs’ testatrix. From the judgment construing the will (25 N. Y. Supp. 937), defendant Margaret B. Edson appeals. Modified.

Petition by Levi C. Lathrop and others, composing the firm of Lathrop, Smith & Oliphant, for an order directing Hugh J. Grant, as temporary receiver of the St. Nicholas Bank, to return to petitioners certain checks deposited in said bank, or the proceeds thereof. From an order granting the petition in part, and denying it in part, both the receiver and the petitioners appeal. Reversed in part, and affirmed in part.

Petition by Edward C. Homans and others for an order directing Hugh J. Grant, as. temporary receiver of the St. Nicholas Bank, to pay over to petitioners the sum of $11,900. The application was granted, and the receiver appeals. Reversed.

Application by Julius A. Kohn for an order directing Hugh J. Grant, as temporary receiver of the St. Nicholas Bank, to pay over certain sums deposited by petitioner in said bank before its failure. From an order in favor of petitioner, the receiver appeals. Reversed.'

Application by Thomas B. Kerr and others for an order directing Hugh J. Grant, as temporary receiver of the St. Nicholas Bank, to pay over certain sums deposited by petitioners in said bank before its failure. From an order in favor of petitioners, the receiver appeals. Reversed.

Action by William E. Wamsley against H. L. Horton & Co., Limited, to recover damages for breach of a written contract. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed. For former reports, see 23 N. Y. Supp. 85, and 24 N. Y. Supp. 1142.

<p>Appeal from special term, New York county.</p> <p>Action by the Selser Brothers Company against the Potter Produce Company. From an order vacating and setting aside an attachment, judgment, and execution on motion of Charles H. Kuske, a junior attaching creditor, plaintiff appeals. Reversed.</p>

‘ Action by Daniel B. Wesson, for the benefit of himself and other creditors, against George D. Chapman, as receiver of the Lackawanna & Pittsburgh Railroad Company, and others. From a judgment holding that defendants Robert Dunlap & Co. are not entitled, as creditors of said receiver, to a lien against the property of the railroad company equal to the lien held by holders and owners of cer-tificates issued by order of the court, said Robert Dunlap & Co. appeal. Affirmed.

Action by Edwin Einstein against the Eochester Gas & Electric Company and the Brush Electric Light Company. From an interlocutory judgment overruling a demurrer to the complaint, defendants appeal. Reversed.

Action by Clarence Delafleld against the village of Westfield. From a judgment in favor of plaintiff for $2,515.70, entered in Chautauqua county on the report of a referee, plaintiff appeals. Reversed.

<p>Appeal from circuit court, Cayuga county.</p> <p>Action by William H. Stone, as executor of Arthur Stone, deceased, against the Groton Bridge & Manufacturing Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Reversed.</p>

Action by Bernard Wintermeyer against Mary E. Sherwood, as executrix of the will of Henry A. Sherwood, deceased. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Action by James Kennedy against Charles N. Strobel, as executor of the will of Hannah Bank, deceased. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>Appeal from special term, ¡New York county.</p> <p>Action by Ada Bennett against William H. Wright to have certain mortgages satisfied of record. From an order enjoining defendant from interfering or intermeddling with certain chattels mortgaged by the plaintiff to*defendant, defendant appeals. Modified.</p> <p>The complainant alleges that plaintiff bought $3,200 worth of furniture, fixtures, and chattels of Elliott & Congle, and paid at various times by check, cash, and return of furniture a sum equal to this amount; that five months after th'e purchase of furniture, Elliott & Congle, by their agents, secured through fraud, trick, and device a mortgage on these chattels to defendant of $3,179.51, and at several other times subsequent to this mortgage secured three other mortgages in same manner to defendant amounting, with the first one, to $5,560.21.</p>

<p>1. Condemnation Proceedings—Railroads.</p> <p>Where a petition to condemn for railroad purposes land on which petitioner’s predecessors had entered, and constructed a track, alleges that the track had been constructed, but only asks to condemn the land, an interlocutory judgment directing the commissioners to include in the compensation the value of the rails, ties, etc., on the land, is erroneous.</p> <p>2. Same—Costs.</p> <p>Under Code Civ. Proc. c. 23, regulating condemnation proceedings, costs on the preliminary hearing can be allowed only in case the petition is dismissed.</p>

Proceeding by Bernard Ritzenthaler, as overseer of the poor of the city of Rochester, against Edward F. Higgins, impleaded with others. From a judgment of the county court affirming a judgment of the municipal court of the city of Rochester in favor of the plaintiff for $500, defendants appeal. Affirmed.

Action by Eobert E. Burger against William D, Eoelsch and Elizabeth Eoelsch for breach of contract. Defendants' motion for a new trial was ordered to be heard in the first instance at general term, after a verdict directed in favor of plaintiff at the Erie circuit.. Granted.

Action by Pascal P. Pratt against the New York Central & Hudson River Railroad Company. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Action by Charles H. Reynolds against Albert Haywood and others, executors of the will of Rufus Haywood, deceased. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, made on a case and exceptions, defendants appeal. Affirmed.

Action by William H. Meaker, as executor of the will of Samuel Stokes, deceased, against Haney A. Fiero, impleaded, etc., to foreclose a mortgage of $800 given by defendant, Fiero, to plaintiff’s testator. The defense was usury. There was a judgment in favor of defendant, and plaintiff appeals. Affirmed.

Action by Maude Marie Y. Rarcells against the city of Auburn to recover damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff, defendant appeals. Affirmed.

Action by Mary P. Brater against Annie I. Hopper and others for an accounting. From an interlocutory and final judgment in favor of plaintiff, defendant Addison F. Andrews appeals. Reversed.

Proceeding for the assessment and collection of the collateral inheritance tax on bequest contained in the will of Julia.A. Smith, deceased. From a decree holding that the bequest was not subject to the tax, the county treasurer appeals. Reversed.

Action by the Travellers’ Insurance Company against Ann Healey, Samuel A. Peterson, George A. Packer, Starks A. Doty, and Carrie’ E. Doty, in which plaintiff asks to be allowed to pay into court the amount of a policy issued by it for whoever may be entitled to it, and that the rights of defendants between themselves may be determined, and that all the defendants be restrained from proceeding against the plaintiff to recoArer the same.

<p>Parties—Joinder of Plaintiffs.</p> <p>Where realty is conveyed pending an action to restrain the operation of a railway in the street on which it abuts, the interests of the grantor and of the grantees are several, and the grantees cannot be brought in as parties plaintiff.</p>

<p>Action by John Zorn against Peter McFarland to recover money paid on a contract to purchase real estate. Judgment for plaintiff.</p>

<p>Action by Benjamin L. Curtis, individually and as trustee, agáinst William Ogden Giles and others, to reform a contract Complaint dismissed.</p>

Certiorari by John Byan to review the decision of William Dalton and others, constituting the board of commissioners of excise, in refusing relator the hotel liquor license. Quashed.

Action by Edwin J. Dearborn against the A. S. Holmes Refining -Company and others to recover damages for personal injuries. There was a verdict for plaintiff, and defendants move for a new trial. Denied.

Action by Eliza Donahue against William. Wippert for breach of contract. There was a verdict for defendant, and plaintiff moves-for a new trial. Granted.

Action by Robert G. Irving against Joseph A. Britton on a note given for an interest in a pool, and for a bet with the bookmaker at a horse race. From a judgment of the city court affirming a judgment in favor of plaintiff, defendant appeals. Reversed.

A judgment was rendered in favor of the plaintiff on a trial by the justice without a jury, and defendant appeals. Reversed.

Action by William E. Ball against Livonia Salt & Mining Company to recover damages for an alleged wrongful discharge. A judgment in favor of plaintiff was rendered by the justice without a jury, and defendant appeals. Reversed.

<p>Appeal from special term.</p> <p>Action by James O’Connor against the National Park Bank of New York. From an order denying a motion to continue a preliminary injunction, plaintiff appeals. Affirmed.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Thomas J. Briggs against Francis J. Kennett, George B. ■Hopkins, and George Kirkland. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.</p>

Action by John 0. Sweetser against the Metropolitan Life Insurance Company on a policy of life insurance. A judgment in favor of plaintiff was rendered by a justice without a jury, and defendant appeals. Eeversed.

Action by Thomas O. O’Connor against the New York & Yonkers Land Improvement Company and others to enjoin the sale of an option to buy real estate. The complaint was dismissed on the trial, and a reference was ordered to assess the damages sustained by defendants in consequence of an injunction pendente lite.

Action Tby the Ansonia Brass & Copper Company against Charles A. Gerlach and James Curran to foreclose a mechanic’s lien. There was a judgment in favor of defendant Curran, and defendant Gerlach appeals. Affirmed.

Action by Mary Fiske Paget and Marietta R Stevens against Charles G-. Stevens, as trustee, etc., and another. From an order denying a motion to vacate an order for the publication of the summons, defendant Stevens appeals. Beversed.

Action by Charles H. Whedon against James Hogan, impleaded with another. There was a judgment in favor of defendant Hogan rendered by the justice without a jury, and plaintiff appeals. Affirmed.

<p>Appeal from third district court.</p> <p>Action by Samuel Knight against Isaac Seckendorf and others. There was a judgment in favor of defendants, and plaintiff appeals. Affirmed.</p>

Action by Edwin Y. Brendon against George S. Worley, as president of Nelson Lodge, No. 64, Order of Sons of St. George, for services rendered by plaintiff as physician. There was a judgment in favor of plaintiff, and defendant appeals. Reversed.

<p>Landlord and Tenant—Assignment of Lease—Presumption.</p> <p>Possession of demised premises by a person other than the lessee raises a presumption that the lease was assigned to the person in possession.</p>

Action by William Lowey against the Granite State Provident Association. A judgment was rendered by the justice without a jury in favor of plaintiff, and defendant appeals. Reversed.

Action by Peter Campbell and others against Amalie Coon to foreclose a mechanic’s lien. There was a judgment in favor of plaintiffs, and defendant appeals. Reversed.

Action by William Halperin against Arthur F. Schermerhorn to recover a share of broker’s commissions. A judgment in favor of plaintiff was rendered by the justice without a jury, and defendant appeals. Affirmed.

Action by Thomas Farrell against John L. Amberg, substituted as defendant in the place and stead of the Church of St. Francis of Assisi, to recover a balance alleged to be due on a building contract. The original defendant admitted its liability, and paid the money into court. There was a judgment in favor of the plaintiff, and defendant appeals. Affirmed.

Action by Ludwig T. Muench against the Globe Fire Insurance Company. A judgment was rendered by the justice without a jury in favor of defendant, and plaintiff appeals. Affirmed.

Action by Sebastian Sommer, as administrator, against the Bavarian Star Brewing Company, for rent. From a judgment of. the special term (26 N. Y. Supp. 865) overruling a demurrer to the complaint, defendant appeals. Affirmed.

Action Tby Abey Gundlin against Hamburg-American Packet Company for loss of baggage. Defendant was conceded to be a foreign corporation, and plaintiff claimed to be a resident of the state of New York, at the time of the commencement of the action. From a judgment of the city court (26 N. Y. Supp. 73) affirming a judgment entered on a verdict in favor of defendant, and an order denying a motion for a new trial on the minutes, plaintiff appeals. Affirmed.

Action by Chaim Lechowitzer against the Hamburg-American Packet Company. From a judgment of the city court (27 N. Y. Supp. 140) affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals. Affirmed.

Action by Henry OeEerich against George A. Hayes. Plaintiff, wThile in the service of defendant, was furnished with a. ladder alleged to be insufficient for the prosecution of his employment. He declined to use the ladder, but in conjunction with his coservants, and without defendant’s authority, selected an insecure and unsafe substitute, by which he was injured.

Action by James Riley against the Western Union Telegraph Company for damages for delay in transmitting and delivering a telegraphic message. From an order of the city court (26 R. Y. Supp. 532) reversing a judgment entered on a verdict in favor of plaintiff, and directing a new trial, plaintiff appeals.' Affirmed.

<p>1. Guaranty—Action on.</p> <p>To maintain an action on a guaranty, the plaintiff must prove performance of a stipulated condition of the guarantor’s liability.</p> <p>2. Same—Perpormance op Conditions—Waiver.</p> <p>A waiver of performance of such condition is avoided by the misrepresentation of the party claiming the benefit of the waiver.</p> <p>(Syllabus by the Court.)</p>

Action by Bennett J. King and others against Alfred Munzer and others to set aside three judgments confessed by the firm of A. Munzer & Co., as in fraud of plaintiffs and other creditors, and to set aside a transfer of book accounts on the same ground. Judgment for plaintiffs.

Action by John C. Pegram and others, as trustees, against the New York Elevated Railroad Company and another. From a judgment granting in part the relief asked, and denying it in part, both parties appeal.

<p>Action by Miles M. O’Brien and James Gr. Cannon, as receivers of the Madison Square Bank, against Simon Ottenberg and others. Defendants move that the complaint be made more definite and •certain. Denied.</p>

Action by Anna M. Arnold against the Norfolk & New Brunswick Hosiery Company to recover royalties alleged to be due to-plaintiff for the use of certain patent rights. On April 10, 1882, plaintiff and defendant entered into a contract, by which plaintiff agreed to sell to defendant the use of certain patent rights, and defendant agreed to pay therefor royalties guarantied to amount to the average sum of $1,000 per month.

Action by Samuel J. Krooks against the L. & C. Wise Company.

<p>Mechanics’ Liens—Consent op Owner—Knowledge and Acquiescence.</p> <p>Where a lease contains no covenant by the lessor to repair, knowledge on his part that the premises are being improved under a contract with the lessee, and acquiescence therein, does not constitute the consent required by the mechanic’s lien law to charge the property.</p>

Action by William J. Brewster against George H. Wooster to recover $17,000 paid by plaintiff as his share of the purchase money of certain steam boilers and other machinery, amounting to $44,000, sold by defendant to H. Bateman, H. S. Brown, and plaintiff, all of which plaintiff claims was not transferred by defendant. There' was a judgment in favor of plaintiff, and defendant' appeals. Reversed. For former reports, see 9 1ST. Y. Supp. 312, 30 1ST. E. 489.

Action by Emma Beyer, by her guardian ad litem, against Thomas B. Clark for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals. Reversed.

Action by Paulina Ryshpan against Nathan M. Goldberg and others to reform a bond and mortgage. There was a judgment in favor of plaintiff, and defendants appeal. Reversed.

Action by Henry W. Homiston against the Long Island Railroad Company. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Action by Melvin E. Boas against the Thatcher Car & Construction Company. The complaint was dismissed on the trial, and plaintiff’s exceptions ordered to be heard in the first instance at general term. Sustained.

Action by John B. McPherson against Herman W. Schade for specific performance of a contract. From a decree dismissing the complaint on the merits, and granting defendant affirmative relief, plaintiff appeals. Affirmed.

Action by Augusta H. Hanna’ against the Connecticut Mutual Life Insurance Company. The complaint was dismissed, and plaintiff’s exceptions ordered to be heard in the first instance at general term. Overruled.

Action by Henry Zlotovsky, by guardian ad litem, against the Twenty-third Street Railway Company for personal injuries. From a judgment entered on the dismissal of the complaint, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Action by the Hall Steam-Power Company against the Campbell Printing-Press & Manufacturing Company. From a judgment entered on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial (25 H. Y. Supp. 106), defendant appeals. Affirmed.

Action by Sandor Kohn against the Manhattan Railway Company. From an order directing a retaxation of costs, and disallowing certain items taxed by the clerk, plaintiff appeals. Affirmed.

<p>Appeal from special term.</p> <p>Action by Sandor Kohn against the Manhattan Railway Company. From an order declaring defendant’s case abandoned, defendant appeals. Reversed.</p>

<p>Appeal from special term.</p> <p>Action by George Lewis Prentiss, as general guardian, against Ellen Bowden. There was a judgment in favor of plaintiff, and ■defendant appeals. Reversed.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by William E. Nichols against Henry H. Balch. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.</p>

Action by Sarah Young, as administratrix, against the Staten Island Bapid Transit Bailroad Company and another. The complaint was dismissed on the trial, and plaintiff’s exceptions were ordered to Tbe heard in the first instance at general term. Overruled.

Action by Frank Flandreau against Philip Elsworth. A judgment was directed in favor of plaintiff, subject to the opinion of the court at general term, and plaintiff now moves for a judgment on the verdict. Denied.

Action by John Cheney Platt against the mayor, aldermen, and commonalty of the city of New York for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal. Reversed.

Action by Peter Higgins against the Western Union Telegraph Company for personal injuries. The verdict was directed in favor of defendant, and plaintiff moves for a new trial on exceptions ordered to be heard in the first instance at general term. Granted.

Action by August Klipstein against the New York Elevated Railroad Company and the Manhattan Railway Company for an injunction and damages. From an order denying a trial by jury, defendants appeal. Affirmed.

Action by Walter B. Ripley against the Second Avenue Railroad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by Theodore B. Foulke against Eugene Thalmessinger. From a judgment entered on a verdict in favor of the plaintiff, and; from an order denying a motion for a new trial, defendant appealsAffirined.

<p>Appeal from municipal court.</p> <p>Action by Bichard Peer against John O’Leary, Sr. There was a judgment in favor of defendant, and plaintiff appeals. Beversed.</p>

Action by John Dye against the Delaware, Lackawanna & Western Railroad Company for personal injuries. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.

Action by the city of Buffalo against Peter Smith and Charles Decker for an alleged violation of chapter 84 of section 1 of the ordinances of the city of Buffalo. The complaint was dismissed, and plaintiff appeals. Affirmed.

Action by Henry H. Rhodes against the Hew York Central & Hudson River Railroad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on a case and exceptions, defendant appeals. ■ Affirmed.

<p>Appeal from municipal court.</p> <p>Action by the John T. Hoye Manufacturing Company against George H. Raymond. From a judgment in favor of plaintiff for $516.61, defendant appeals. Affirmed.</p>

Action by Henry Winter against the Crosstown Street Railway of Buffalo. From an order denying a motion for a new trial made on the minutes of the court, plaintiff appeals. Affirmed.

Action by Harrison D. Folinsbee against George P. Sawyer. From a judgment entered on a verdict dismissing the complaint, and from an order denying a motion for a new trial, plaintiff appeals. Reversed.

Action by Jacob Morgenstern against Charles B. Hill. From a judgment in favor of plaintiff for $837.86, entered on a verdict of a jury, and from an order denying a motion for a new trial on the minutes, defendant appeals. Reversed.

Accounting of Joseph Pool as assignee for benefit of creditors of Hiram Pool. From a decree confirming the report of referee the assignee appeals. Affirmed. The opinion of Chief Judge DALY at special term is as follows: The matters upon which I reserved my decision were: (1) As to the sum of $3,028.50, derived by the assignee from the Ford account, which he claims as his own property, but with which he has been charged by the referee as part of the assigned estate.

<p>Principal and Agent—Liability of Principal to Third Persons.</p> <p>Where defendants delivered to their clerk, for return to plaintiff, securities held as collateral to a claim against plaintiff, and the clerk converted them to his own use, defendants are liable, though the clerk presented a forged check, which he stated was given by plaintiff to discharge his liability and release the securities.</p>

Action by Sigmund Wachsman and another against the Columbia Bank of the City of 27ew York. Plaintiffs were depositors with defendant, and the action was substantially to recover the amount of three checks which the bank charged against them, but which they averred to be forgeries. One check was for $493, dated August 18, 1892; one was for $578.96, dated August 30, 1892; and the third was for $700, dated October 24, 1892. From a judgment of the city court (26 27.

Action by Nina H. Dearing against Aylma Y. Pearson. From an order of the city court (26 N. Y. Supp. 74) affirming an order denying a motion for a resettlement of the proposed amendment of case on appeal, defendant appeals. Affirmed.

<p>Appeal from city court, general term.</p> <p>Action by Nina H. Bearing against Aylma Y. Pearson. From a judgment of the city court (26 N. Y. Supp. 74) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.</p>

Action by John Doherty against Samuel Lord, Jr., and others, to recover damages for personal injuries sustained by a collision with defendants’ truck, alleged to have been at the time of the collision in the custody and control of defendants’ driver, who carelessly and negligently drove it. From a judgment of the city court (25 27. Y. Supp. 752) affirming a judgment entered on a verdict in favor of plaintiff, defendants appeal. Affirmed.

Action by Bernhard Stirn against the Hoffman House Company to recover for merchandise sold and delivered. • The defenses were a general denial, payment, and offset. From a judgment of the city court (27 N. Y. Supp. 271), modifying and affirming a judgment entered on a verdict directed by the court in favor of defendant, plaintiff appeals. Affirmed.

Action by Joseph H. Tooker and others against Marion Booth. A default suffered by defendant was opened by the special term of the city court. The order of the special term was reversed by the . general term of the city court (27 N. Y. Supp. 974), and defendant appeals. Plaintiffs move to dismiss the appeal. Granted.

Action by Augusta A. Johnson against John Barg for rent, under a letting from month to month; the rent payable in advance on the 1st of each month. There was a judgment in favor of defendant, and plaintiff appeals. Reversed.

Action by Fred H. Williams against Charles C. Dodge to recover for services alleged to have been rendered by plaintiff as an attorney at law In the state of Massachusetts. There was a judgment in favor of defendant, and plaintiff appeals.

<p>Landlord and Tenant—Liability of Tenants to Each Other.</p> <p>A tenant of part of a building is liable to a tenant on the floor below for damages caused by water running from a stopcock left open on his premises.</p>

<p>Appeal from first district court.</p> <p>Action by Robert McBratney against William C. Heydecker for breach of contract. There was a judgment in favor of plaintiff, and ■defendant appeals. Affirmed.</p>

Action by Benjamin Bloom against Rosa Saberski for work, labor, and services rendered. There was a judgment in favor of plaintiff, and defendant appeals. Reversed.

Action by Greenwich Warehouse Company against Charles E. Maxfield to recover storage charges. There was a judgment in favor of defendant on a counterclaim, and plaintiff appeals. Affirmed.

<p>Landlord and Tenant—Liability for Rent—Dilapidation of Premises.</p> <p>Where premises, held under a lease which covenants that the lessee will keep them in repair, become dilapidated by gradual decay, and not by any sudden disaster, the lessee is not relieved from paying rent.</p>

<p>Appeal from trial term.</p> <p>Action by Marshall P. Stafford against Charles C. Azbell. The complaint was dismissed, and plaintiff appeals. Affirmed.</p> <p>For former report, see 26 FT. Y. Supp. 41.</p>

<p>Appeal from third district court.</p> <p>Action by the A. L. & J. J. Reynolds Company against the Third Avenue Railroad Company. There was a judgment in favor of plaintiff, and defendant appeals. Reversed.</p>

Action by Mary Oakley and Sarah Oakley against Albert Loening to recover rent. From a judgment of the city court (27 N. Y. Supp. 1017) affirming a judgment in favor of plaintiffs, defendant appeals. Affirmed. The appellant argued that he was entitled to vacate the premises, under chapter 345, Laws 1860, and cited, in support of his contention, Tallman v. Murphy, 120 N. Y. 354, 24 ÍL E. 716.

<p>Appeal from first district court.</p> <p>Action by Loie E. Applegate against the Westchester Hardwood Company. There was. a judgment in favor of plaintiff, and defendant. appeals. Reversed.</p>

<p>1. Injunction—When Granted—Pleading.</p> <p>r To authorize a preliminary injunction, pursuant to section 603 of the Code of Civil Procedure, the complaint must exhibit a right to a judgment of injunction; and a defect in that regard may not be supplied by affidavit.</p> <p>2. Same—Restraining Breach of Contract.</p> <p>An injunction will not issue to restrain a breach of contract, where the complaint shows the damage to be susceptible to computation and recompense in money.</p> <p>3. Same—Restraining Seller from Engaging in Rival Business.</p> <p>Upon the sale of, a business and its good will merely, without any restrictive engagement on the part of the seller, an injunction will not issue against his establishing a rival business, and soliciting the customers of the purchaser.</p> <p>4. Same—Mandatory Injunction.</p> <p>A mendatory injunction for specific performance of a contract will not be awarded on an interlocutory motion, except in a case of clear and urgent equity; nor then if the constant intervention of the court be requi.site to enforce the performance.</p> <p>(Syllabus by the Court.)</p>

Action by Henry Graham against the Manhattan Railway Company for personal injuries. From a judgment dismissing the complaint, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

<p>Appeal from eleventh district court.</p> <p>Action by I. Newton Williams against Isabella H. Fisher. From a judgment in favor of plaintiff, defendant appeals. Affirmed.</p>

Action by Desiderio Genovese against Rizieri Matelli and another. From an order denying a motion for leave to serve a supplemental answer, defendant Virgilio Del Genovese appeals. Reversed. _

<p>Life Insurance—False Answers in Application.</p> <p>Where the insured warrants the truth of the answers in the application,, compliance with the warranty is a condition of the contract, and any substantial deviation from the truth is material to the risk, and avoids the-policy.</p>

Action by William S. G-uerineau and others against Moses Weil and others. Plaintiffs move to place the cause on the special calendar for short causes. Denied.

Action by Thomas Brady and another against Joseph B. Smith, as administrator, and others. There was a judgment in favor of plaintiffs, and defendants appeal. Affirmed.

<p>Action by William Foley, an infant, by Ms guardian ad litem, against the Mail & Express Publishing Company. Defendant demurs to the complaint. Overruled.</p>

Action by John D. Heins against the Manhattan Railway Company and another. There was a judgment in favor of plaintiff, and defendants appeal. Plaintiff now moves to strike cause from the calendar, and for judgment, pursuant to rule 4 of the special rules of the superior court. Granted.

Action by William J. Wilson against the Broadway & Seventh Avenue Railroad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by the American Preservers Company against the Columbia Investment Company. A verdict was rendered in favor of plaintiff, and defendant moves for a new trial. Denied.

Action by Rose Corley, as one of the heirs at law of Patrick Trenor, deceased, against James McEmeel and others, for partition. Plaintiff also asks to procure an adjudication declaring null and void a devise claimed by one Annie E. Stover under an alleged will.

<p>Carriers—Injury to Passenger—"Negligence op Postal Clerk.</p> <p>When a passenger Is injured by falling over a mail bag thrown by a postal clerk on the platform in the way of passengers entering the car, the railroad company is not liable, unless the mail bag had been so thrown on other occasions before the accident, and the fact was known to the conductor of the train.</p>

Action by Yietta Brown, an infant, by guardian ad litem, against the city of Syracuse, for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $96, and from an order denying a motion for a new trial on the minutes, defendant appeals. Affirmed.

<p>Appeal from special term, Jefferson county.</p> <p>Action by John J. B. Primean against the National Life Association on a policy of insurance. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.</p> <p>By the judgment it was determined that a policy of insurance issued by the defendant on the 15th day of June, 1892, upon the life of the plaintiff, is a valid and subsisting policy, and it was decreed to be in full force and effect up•on payment by the plaintiff of the premiums past due, with interest from the time the same became payable; and it was adjudged that defendant accept such payment, and give notice to plaintiff of the amounts of such premiums, ¡and of the times when they become due and payable.</p>

<p>Logs and Logging—Injury to Riparian Owner.</p> <p>A log owner is not liable for damages to riparian owners arising incidentally, and without his fault, from the reasonable use of a river while driving his logs down a stream, and the question as to whether there was any unreasonable use is one of fact.</p>

<p>Appeal from special term, Broome county.</p> <p>Action by Frances E. Stuart against Ambrose Blatchley and others. From an interlocutory judgment overruling a demurrer to certain portions of the answer of defendants Silas P. Brown and another defendant, Nellie V. Watson and another appeal. Affirmed.</p>

Action by Irvin Van Wie and another against Edwin L. Loomis and others. A judgment was entered on May 3, 1893, in favor of plaintiff for $509.40 and interest from October 10,1891, besides costs, and defendants appeal. Affirmed.

<p>Appeal from Schuyler county court.</p> <p>Action by Clarqnce F. Hill and others, infants, by Emmett B. Bus-sell, guardian ad litem, against the board of water and sewer commissioners of the village of Watkins, to recover damages for the diversion of a stream of water. From a judgment entered on a verdict in favor of plaintiffs for $60, and from an order denying a motion for a new trial on the minutes, defendant appeals. Affirmed.</p>

<p>Appeal from Oneida county court.</p> <p>Action by Head’s Iron Foundry against Smith Sanders. From a judgment affirming a judgment of the justice’s court in favor of plaintiff for $6.63 damages besides costs, defendant appeals. Affirmed.</p> <p>The action was brought before a justice of the peace of the town of Whitestown, in the county of Oneida, and the summons was served on the defendant within that town on the 22d April, 1893. The complaint was for goods sold and delivered, and was verified. Upon the return day of the summons the defendant appeared specially, and objected to the jurisdiction of the justice on the ground that the plaintiff was a resident of the city of Utica, which adjoined the town of Whitestown, and that the defendant was a resident of the town of St. Johnsville, in Montgomery county. An affidavit was presented, showing the residence of defendant as stated; and a certified copy of the articles of association of the plaintiff, showing its principal business office to be in the city of Utica. The objection was overruled, and judgment entered on the verified complaint.</p>

Action by Thomas D. Reilly against Milton 0. Gray. From an in-* terlocutory judgment overruling a demurrer to the complaint, defendant appeals. Reversed.

<p>Negligence—Injury to Child.</p> <p>Where the parents of a child four years old residing near a railroad permit the child to wander about with other small children, and it goes on the railroad track and is killed liy a train, the negligence of the parents so concurs with the negligence of the child as to preclude a recovery by the father against the railroad company.</p>

Action by Maria L. Davis, as administratrix • of Ira L. Davis, deceased, against the New York, Lake Erie & Western Railroad Company, to recover damages for alleged negligence of defendant in causing the death of plaintiff’s intestate. Judgment was entered on a verdict for $5,000 in favor of plaintiff, and defendant appeals. Affirmed. For former report, see 23 N. Y. Supp. 359.

<p>Appeal from circuit court, Dutchess county.</p> <p>, Action by Bertram A. McDowell against the Homer Ramsdell Transportation Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.</p>

Action by Patrick Evers and Eose Evers against Long Island City to recover for injuries caused by a defective sewer. From a judgment dismissing the complaint, plaintiffs appeal. Affirmed.

<p>Appeal from Westchester county court.</p> <p>Action by Thomas Campion against S. Webber Parker. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.</p>

Action by Charles W. Banham against Mary A. Roberts and others to foreclose a mechanic’s lien. From a judgment in favor of plaintiff and of defendants Odell, defendant Mary A. Roberts appeals. Affirmed.

<p>Appeal from circuit court, Dutchess county.</p> <p>Action by Bennett F. Hines against the New York Central & Hudson River Railroad Company to recover damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $2,900, and from an order denying a motion for a new trial, defendant appeals. Affirmed.</p>

Action by Robert W. De Forest against Samuel A. Walters and the board of trustees of the town of Huntington to recover possession of land. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

<p>Appeal from judgment on report of referee.</p> <p>Action by Alfred 0. Lewis and William D. Stevens against Barbara Yagel to recover a balance due on a building contract for the erection and construction of two three-story and basement, stone, brick, and wood stores, and upon a contract for the plumbing and building an area wall for said building, and also for extra work. From a judgment in favor of plaintiffs for $989.47 damages and $2,552.25 costs, defendant appeals. Reversed. ,</p>

Action by George G. French against Susan Row and Gould P. Row to foreclose a mortgage. From a judgment in favor of plaintiff and from two orders—one striking out the amended answer, and the other denying a motion to have the issues settled and tried before a jury—defendants appeal. Judgment and order striking out answer reversed. Order denying motion to settle issues affirmed. For former reports, see 24 N. Y. Supp. 1146; 26 N. Y. Supp. 1126.

Action by Henry Stanton against John S. Hennessey. Judgment was entered on a verdict in favor of plaintiff for $939.21, together with $161.02 costs and disbursements, and defendant appeals. Reversed.

Action by Elizabeth Gray against James C. Gray for divorce. From an order directing defendant to pay $250 for counsel fees, and $100~ per month for alimony pendente lite, defendant appeals. Affirmed. The opinion of Mr. Justice CULLEN at special term is as follows: While it may be that under section 1757, Code Civ.

Action by George A. Quincy against Benjamin J. Warner to recover damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $2,758.06 damages and costs, and from an order denying a motion for a new trial on the minutes, defendant appeals. Affirmed.

Action by Edward H. Harriman against Albert G. Howe, George W. Hunter, and Jacob P. Hance, as commissioners of highways for the town of Woodbury, Orange county, to procure an adjudication that a certain road was a private way, and to enjoin defendants from working or repairing it. The complaint was dismissed, and plaintiff appeals. Reversed.

Action by Anthony Elemm, as administrator of Eliza Klemm, deceased, against the ¡New York Central & Hudson River Railroad Company, to recover damages for negligence causing the death of plaintiff’s intestate. From a judgment for $5,447.81 damages and costs, entered on a verdict in favor of plaintiff, defendant appeals. Reversed.

Action by Charles B. Pitt and others against Samuel C. Freed to recover certain' goods sold by plaintiffs to defendant. There was a judgment in favor of plaintiffs, and defendant appeals. Affirmed.

Action by Charles Distler against the Long Island Railroad Company for injuries received by plaintiff while boarding one of-defendant’s trains. The complaint was dismissed, and plaintiff appeals. Affirmed.

Action by Joseph Husson against Albert I. Sire, impleaded with Jacob Oppenheimer. There was a judgment in favor of defendants, and plaintiff appeals. Affirmed. For former report, see 19 N. Y. Supp. 135.

Action by George B. Hankins against Edmund H. Watkins, an infant, by his guardian ad litem. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on a case and exceptions, defendant appeals. Affirmed.

Action by the John Church Company against George H. Clarke. From a judgment entered on a verdict in favor of defendant, and from an order of the special term (25 N. Y. Supp. 949) denying a motion for a new trial, plaintiff appeals. Reversed.

<p>Appeal from special term, Jefferson county.</p> <p>Application by Perrin A. Strough against the board of county canvassers of Jefferson county for mandamus to compel defendant to recanvass the votes cast at the election in November, 1893, for; school commissioners of the third school commissioners’ district in the county of Jefferson. From an order directing that a peremptory writ issue, defendant appeals. Reversed.</p>

<p>1. Action on Judgment—Pleading—Averment on Fraud.</p> <p>Where the complaint alleges that the judgment sued on was “for damages sustained by plaintiff by reason of the fraud and deceit of defendant alleged in the complaint,” such allegation is not absolute, but is limited to the fraud and deceit alleged in the complaint in the former action.</p> <p>2. Deceit—Pleading.</p> <p>A complaint which alleges that defendants induced plaintiff to sell them goods by falsely representing that they needed the goods in their business, and that defendants were insolvent, and fraudulently concealed that fact from plaintiff, does not state a cause of action for false representations, as it does not state that defendants knew such representations to be false.</p> <p>3. Same—Purchase op Goods by Insolvent.</p> <p>Where a complaint in an action for goods sold alleges that defendants, by deceit, induced plaintiff to sell the goods, that they were insolvent at the time, and did not intend to pay for the goods, it states the cause of action for fraud.</p>

Action by John B. Young and George W. Newman against Win-field S. Stone, as sheriff of Broome county. From an order setting aside a verdict in favor of defendant, and granting a new trial on payment of costs of the action after notice of trial, defendant appeals. Modified.

<p>Master and Servant—Safe Place for Servant to Work.</p> <p>The superintendent of repairs of defendant railroad company directed the foreman of the carpenter shop to construct scaffolding for an employe to work on, but he gave no instructions as to the materials or method of construction. The carpenter was without experience in constructing such scaffolding, and, owing to the quality o£ the materials used, the scaffolding was not of sufficient, strength, and the employe was injured by its fall. Held, that defendant was liable for such injuries, as a master’s duty to furnish a safe place for his servant to work cannot be delegated to another servant, so as to relieve the master from liability.</p>

<p>Appeal from circuit court, Essex county.</p> <p>Action by Zoe Neddo against the village of Ticonderoga for personal injuries. From a judgment of nonsuit, plaintiff appeals. Affirmed.</p>

Action by the village of Sandy Hill against Benjamin Akin and Elizabeth S. Allen, administrators with the will annexed of Rebecca Miller, deceased, to recover certain unpaid taxes. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Action by Sigmund Ashner against Daniel H. Deyoe, as sheriff of the county of Saratoga, to recover a quantity of tobacco. From a judgment entered on a verdict in favor of plaintiff, defendant appeals. Affirmed.

<p>1. Statute of Frauds—Pleading. '</p> <p>The statute of frauds is not available as a defense at the close of the trial, where it was not pleaded, and evidence of a parol contract was received without objection.</p> <p>2. Same—Agreement to Answer for Debt of Another.</p> <p>An agreement by a member of a firm to pay out of his own money additional compensation to an employe of the firm, to induce such employe to continue his services, is not a promise to answer for the debt or default of another.</p>

<p>Appeal from circuit court, Ulster county.</p> <p>Action by Henrietta Childs against the New York, Ontario & Western Railway Company to recover damages for causing plaintiff to alight from defendant’s train at a station other than that for which she claimed to have a ticket. From a judgment entered on a verdict in favor of plaintiff, defendant appeals. Reversed.</p>

Action by Agnes Cameron, as administratrix of Allan Cameron, deceased, against the New York Central & Hudson River Railroad Company, to recover damages for the alleged negligence of defendant, causing the death of plaintiff’s intestate, a brakeman in defendant’s employ. From a judgment entered on a verdict in favor of plaintiff for $1,924.86 damages and costs, and from an order denying a motion for a new trial made on the minutes of the judge, defendant appeals. Affirmed.

Action by Katherine Van Rensselaer and Cornelia Bolton, as executrices of the will of Catherine W. Van Rensselaer, deceased, against Horatio D. Mould, for wrongfully entering on certain lands under water, situate on the east bank of the Hudson river, in the town of East G-reenbush, in cutting and removing ice therefrom. There was a judgment in favor of plaintiffs, and defendant appeals. Affirmed.

<p>Appeal from special term, Dutchess county.</p> <p>Action by G-. A. Van Kleeck and others against the Dutchess County Railroad Company. There was a judgment in favor of plaintiffs, and defendant appeals. Reversed.</p>

Action by Hester A. Tompkins against William H. Tompkins and another to recover money alleged to have been loaned by plaintiff to defendants. From a judgment entered on a verdict in favor of plaintiff, defendants appeal. Reversed.

Action by Timothy Callahan against Wilbur H. Searles for false imprisonment. From a judgment entered on a verdict in favor of plaintiff for $250, defendant appeals. Affirmed.

Action by John Ziegler against George W. Pearsall and another, as executors of the will of Elizabeth B. Brush, deceased, on claims arising from transaction between one Mary Harris and decedent, and assigned by said Mary Harris to plaintiff. There was a judgment in favor of defendants, and plaintiff appeals. Affirmed.

Appeal'from special term, Kings county. Action by Daniel S. Jones against Edward J. Newell, as administrator with the will annexed of Bridget Callahan, deceased, and Annie Leonard, as administratrix of Patrick D. Callahan, deceased, and others, to compel payment of a judgment held by plaintiff out • of the property left by Bridget Callahan, deceased. 'From a judgment which determined that defendants Annie Leonard and others were not entitled to any interest in the estate…

The application was contested by John Baud Hoffman, Frederick G. Hoffman, and Henry D. Bultman, grandsons of decedent. The will was admitted to probate, and contestants appeal. Affirmed.

Action by John Raven against William R. Smith for services performed under a contract. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed. For former report, see 24 N. Y. Supp. 600.

Application by Thomas F. Gilroy to acquire lands under the aqueduct law. From the award of damages, the landowner appeals. Affirmed.

<p>Appeal from surrogate’s court, Suffolk county.</p> <p>Judicial accounting of Albert Payne and Shepard H. Payne, as executors of Silas W. Payne. Prom the decree settling the accounts, the executors appeal. Reversed.</p>

William J. Smith was indicted for murder in the first degree, and pleaded guilty of manslaughter in the second degree, and was sentenced to the penitentiary for a term of 10 years. He now applies for writ of habeas corpus, alleging that his imprisonment was illegal. The writ was dismissed, and he appeals. Affirmed.

Action by the Mutual Life Insurance Company of New York against Darius C. Newell and another to foreclose a mortgage. From an order amending the judgment of foreclosure so as to include taxes paid by plaintiff after the judgment was entered, Albert C. Benedict, grantee of the equity of the mortgaged land, appeals. Modified.

Action by Simon Newman and others against John 0. Wilson and another. There was an affirmative judgment in favor of defendants on a counterclaim, and plaintiffs appeal. Affirmed.

Action by Sophia Crozier against George R. Read for personal injuries. Judgment was entered on a verdict directed by the court in favor of defendant, and plaintiff appeals. Reversed.

<p>Municipal Corporations—Defective Streets—Plan oe Construction.</p> <p>The plan of construction of a sidewalk, whereby water flows over and freezes on it, is not a nuisance for which the city is liable to one who fails thereon, where no other negligence than the plan of construction is charged against the city. Urquhart v. City of Ogdensburg, 91 N. Y. 67, followed.</p>

Action by Leonard J. O’Neil against the Third Avenue Railroad Company for personal injuries. There was a judgment in favor of defendant, and plaintiff appeals. Affirmed.

Action by Agnes Mickee, as administratrix, against the Walter A. Wood Mowing & Reaping Machine Company to recover damages for the death of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the judge’s minutes, defendant appeals. Reversed.

<p>Appeal from judgment on report of referee.</p> <p>Action by Frank Monteverde against the board of supervisors of Queens county to recover the contract price of work done. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.</p>

Action by Thomas Slavin and Thomas F. Slavin against William K. Mansfield on account of goods sold and delivered, and for a balance alleged to be due plaintiffs in a prior settlement. From a judgment of the county court reversing a judgment in favor of plaintiffs, plaintiffs appeal. Reversed.

Action by the Vilas National Bank of Plattsburgh against Henry E. Barnard and Benton Turner on a promissory note. From a judgment in favor of plaintiff for $5,116.71 damages and costs, and from an order overruling defendants’ answer as frivolous, and ordering that plaintiff have judgment in the action for damages and costs as above stated, defendants appeal. Affirmed.

Lawrence county. Action by Annie Rutherford, as administratrix of James Rutherford, deceased, against the town of Madrid, to recover damages for alleged negligence of defendant in causing the death of plaintiff’s intestate. From an order requiring plaintiff to give security for costs (26 N. Y. Supp. 573), plaintiff appeals. Reversed.

Action by the Yonkers Savings Bank against William H. Kinsley, as executor, to foreclose a mortgage. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.

Application by L. J. Prescott and others for the removal of Richard Donovan, a justice of the peace, from office. From- an order of removal, said Donovan appeals. Reversed.

<p>Appeal from circuit court, Orange county.</p> <p>Action by Thomas Neill, Jr., against the Order of United Friends to recover $1,500, being one-half the death benefit given to a member who met with a total disability under the constitution and by-laws of defendant. The complaint was dismissed, and plaintiff appeals. Reversed.</p>

Action by John H. Same against Anton Seylcora to recover the possession of a chattel. There was a judgment in favor of defendant, and plaintiff appeals. Reversed.

Action by Sarah A. McCluskey against the National Life Association of Hartford on a policy of life insurance. From a judgment in favor of plaintiff, entered on a trial before the court without a jury, defendant appeals. Affirmed.

Action by the Farmers’ Loan & Trust Company against the New York & Northern Railway Company and Artemas H. Holmes, Alfred R. Pick, and others to foreclose a mortgage. From a judgment in favor of plaintiff, defendants Holmes and Pick appeal. Affirmed.

Action by Caroline Yeit against Elvira Dill for specific performance of a contract. From a judgment dismissing the complaint and awarding affirmative relief to defendant, plaintiff appeals. Affirmed.

Action by the New York City Suburban Water Company and others against Joseph B. Bissell and Joseph M. Low on an injunction bond. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

Certiorari by Martin Vincent against the common council of the city of Hudson and others to review the proceedings of said common council, and its decision and determination thereon, dismissing relator from the police force of said city.- Reversed.

<p>Appeal from surrogate’s court, Suffolk county.-</p> <p>Proceeding for the probate of the will of Mary Snelling, deceased. The application was contested by John H. Lewis, Mary Gordon, Thomas H. Lewis, Peter H. Lewis, Susan Lewis, Thomas Lewis, of New York City, Thomas Lewis, of Elwood, L. L, Charles H. Lewis, Henrietta Anderton, and Frank Lewis. TÉe will was admitted to probate, and contestants appeal. Affirmed.</p>

Action by James H. .Stuart against the Mutual Reserve Fund Life Association on two certificates or policies of life insurance issued by defendant on the life of John B. Page for $5,000 each. From a judgment dismissing the complaint, entered on a verdict directed by the court in favor of defendant, plaintiff appeals. Affirmed.

Action by Isaac Bell and another against the city of Yonkers to set aside an assessment made on plaintiffs’ land for the construction of a sewer. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

Action by Josephine Whitlatch against the Fidelity & Casualty Company of New York on an accident insurance policy. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.

Action by Annie Foley against the Eoyal Arcanum on a mutual benefit certificate. The' complaint was dismissed on the merits, and plaintiff appeals. Affirmed.

Action by Frederick Hock against James E. Cocks for specific performance. The complaint was dismissed on the merits, and plaintiff appeals. Affirmed.

<p>Negligence—Evidence.</p> <p>In an action for injuries caused by a fall in front of defendant’s wagon, no recovery can be had without proof that the person injured was knocked down by the horse or the wagon. Pratt, J., dissenting, on the ground that there was evidence that the injury was caused by defendant’s negligence.</p>

Vernon city court. Action by Julia Mullins, as administratrix of Catherine Flynn, ■deceased, against the Metropolitan Life Insurance Company, on a policy of life insurance. The summons was served on one W. A. Skidmore, a local superintendent _ of defendant. From an order ■denying a motion to set aside the service of the summons, defendant appeals. Affirmed.

Vernon city court. Action by Frederick J. Stubing against the Metropolitan Life Insurance Company on a policy of life insurance. Summons was served on one H. Wall, a local superintendent of defendant. From an order denying a motion to set aside the service of summons, defendant appeals. Affirmed.

Action by John Lynch against the village of New Rochelle for personal injuries. From a judgment entered on an order dismissing the complaint, plaintiff appeals. Reversed.

Action by Frank S. Benson and others against Austin Corbin and others for specific performance of a contract. There was a judgment in favor of plaintiffs, and defendants appeal. Affirmed.

Action by Eobert S. Orsor against the Metropolitan Cross-Town Eailway Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Eeversed.

Action by Amelia F. Baker against Eliza A. Mott and Lucretia A. Burtis to establish a right of way. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.

<p>Judgment—Res Judicata.</p> <p>Where a contract to furnish labor and materials in the erection of a house, for certain commissions on the value thereof, does not stipulate any time for the payment of the commissions, they do not become due until the performance of the contract; and therefore a judgment, in an action brought during the continuance of the contract, for the value of the labor and materials furnished, will not bar a subsequent action for the commissions.</p>

■ Appeal from special term, Queens county. Action by Rosalie Adele Oakley against John Lyon Gardiner and others for partition. From an interlocutory decree of partition and sale, defendants Gardiner appeal. Affirmed. The real estate which is the subject of this action is situated in Long Island City, and in the year 1888 a portion thereof was sold for nonpayment of assessments levied thereon to pay for certain street improvements.

<p>Appeal from circuit court, Richmond county.</p> <p>Action by Abram R. Kelsey against the Staten Island Rapid Transit Railroad Company for personal injuries. The complaint was dismissed, and plaintiff appeals. Reversed.</p>

<p>1. Statute op Limitations—Exceptions—Payments.</p> <p>Defendant gave a mortgage on her land as collateral security for a bond which one F. had given to plaintiff to secure a debt of defendant’s husband to plaintiffs. The bond was signed by F. alone, but both F. and defendant’s husband joined in the execution of the mortgage, in which the only personal covenant was that of F. Held, that payments on the bond by defendant’s husband did not stop the running of the statute of limitations against the right to foreclose the mortgage. Pratt, J., dissenting.</p> <p>2. Same—Absence prom State.</p> <p>Where a mortgage is given as collateral security for the bond of a third person, and the obligor in the bond joins in the mortgage, though he has no interest in the mortgaged land, the absence of the mortgagor from the state does not stop the running of the statute of limitations against the mortgage.</p>

<p>Wharves—Public or Private.</p> <p>A wharf occupied by a ferry company, to which access can be had only through a gate controlled by the ferry company, or over private property of another, is a private wharf.</p>

' Appeal from, special term, Kings county. Application Tby William J. Gaynor for an injunction against John Y. McKane, Nicholas J. Johnson, Harlan Crandall, James H. Cropsey, and Bichard V. B. Newton. From orders adjudging each defendant guilty of contempt of court, and imposing on each punishment by fine and imprisonment, defendants appeal. Affirmed.

Action by William Wainwright and others against the Queens County Water Company. From an interlocutory judgment entered on an order overruling a demurrer to the complaint, defendant appeals. Reversed.

Judicial settlement of the accounts of Julia L. Butterfield, as executrix of the will of Frederick P. James, deceased. From the decree settling the accounts, Charles D. Chase and others appeal. Modified.

Action by Edward J. McAleer against Willis H. Warren and William H. Buckley to recover on a claim in favor of Thomas Godson & Son against defendants, and assigned to plaintiff. The case was tried before a justice and a jury.

Philip W. Frederick was convicted of being a disorderly person, under Code Or. Proc. § 899, for failure to support his wife, and he appeals. Affirmed. For former report, see 21N. Y. Supp. 26.

<p>Action by Charles Mitchell against William B. Dick. Plaintiff moves to vacate an ex parte order requiring him to file security for costs. Denied.</p>

<p>Divorce—Supplemental Complaint.</p> <p>Acts of adultery committed since the commencement of the action cannot be set up in a supplemental complaint</p>

<p>Pleading—How Often Complaint may be Amended.</p> <p>Code Civ. Proc. § 542, which provides that “a pleading may be once amended by the party, of course, without costs,” does not authorize a second amended complaint to be filed, as a matter of right, after the first amended complaint has been stricken out .</p>

<p>Action by Daniel M. Hurlbut against the Interior Conduit & Insulation Company. Defendant moves for leave to serve an amended answer. Denied.</p>

Action by William H. Kirk against the village of Homer. From a judgment entered on a verdict in favor of plaintiff for |1,000, and from an order denying a motion for a new trial on a case and exceptions, defendant appeals. Affirmed. The action was brought to recover damages for injuries sustained by plaintiff in passing along Hudson street,—one of the principal streets, that had been used for many years, in the defendant’s corporation.

Action by Anna E. Grant, by Ida L. Grant, guardian ad litem, against the village of Groton, for personal injuries. There was a judgment in favor of plaintiff for $1,650 damages and $1-14.55 costs, and defendant appeals. Reversed.

Action by John S. Hutt against Abram Zimmer. From a judgment entered on a verdict in favor of plaintiff for $263.58 damages and $94.47 costs, defendant appeals. Affirmed.

<p>Witness—Testimony op Party—Credibility.</p> <p>Where defendant calls plaintiff as a witness, the rule that the credibility of the testimony of a party, though uncontradicted, is a question for the jury, does not apply.</p>

<p>Landlord and Tenant—Breach of Covenant—Damages.</p> <p>Judgment in favor of a lessee for damages for breach of a covenant by the lessor to repair an ice house is not supported by the evidence where it does not appear to what extent the ice was damaged in consequence of the failure to repair, or what repairs the ice house needed, or. how much less the ice was worth in consequence of the breach of covenant.</p>

<p>Appeal from Sullivan county court.</p> <p>Action by Mary M. Carney against Miner Brome to recover damages for wrongfully chasing, abusing, and dogging eight cows and a Holstein heifer belonging to plaintiff. From a judgment of the county court reversing a judgment of the justice entered on a verdict in favor of plaintiff for $14, plaintiff appeals. Affirmed.</p>

Two actions—one by John C. Miller against the city of Amsterdam, and the other by Mary C. Smith against the same defendant— to remove cloud from title. There was a judgment in favor of plaintiff in each case, and defendant appeals. Affirmed.

Action by Julia Benoit, by her guardian ad litem, against the Troy & Lansingburgh Railroad Company, for personal injuries. There was a judgment of nonsuit, and plaintiff moves for a new trial on exceptions ordered to be heard at general term in the first instance, pursuant to Code Civ. Proc. § 1000. Granted.

Action by John R: Myers and others against Josephine Polhemus to recover the value of a quantity of ice alleged to have been sold to defendant. The complaint was dismissed on the merits, and plaintiffs appeal. Reversed.

Action by John F. Davis against Anna E. Kling to recover for milk delivered to defendant’s creamery during the months of February and March, 1892. There was a judgment in favor of plaintiff for $43.30 damages, besides costs. Defendant appealed to the county court, and demanded a new trial in that court. The county court directed a verdict in favor of plaintiff for $43.90, with interest, and defendant appeals. Reversed.

Action by Maria Ives against the Metropolitan Life Insurance Company on a policy of insurance. From a judgment of the county court affirming a judgment of the justice of the peace, defendant appeals. Affirmed.

Action by Frederick Hall against Adeline Campbell and others for partition.

Action by James J. Fitzgerald and others against Edgar M. Payn and another for breach of contract. From an order changing the place of trial from Greene county to Albany county, plaintiffs appeal. Affirmed.

Claim by Mary Jane Mowell against Augustus H. Van Burén, as administrator of Nicholas E. Brodhead, deceased, for $5,000, alleged to have been loaned by claimant to decedent. There was a judgment in favor of plaintiff for the sum sued for, with interest and costs, and defendant appeals. Reversed.

Application by Elizabeth Winegard for writ of certiorari to review a tax assessment made by Jedediah Hynds, Charles Kromer, and Peter A. Strail, assessors of the town of Seward. The writ was granted, and defendants’ motion to set aside and vacate the same was denied (25 IN'. Y. Supp. 48), and defendants appeal. Modified.

Action by Sarah A. Tyler against Timothy P. Hildreth, Alfred C. Peck, Prescott Hildreth, and George B. Thompson on a promissory note made by defendants George B. Thompson and Prescott Hildreth to the order of defendant Timothy P. Hildreth, and indorsed by said Timothy P. Hildreth and Alfred G. Peck. Plaintiff obtained judgment for $932.16 damages, and $28.48 costs. Afterwards the judgment was assigned to one Abner J. Griffin.

Action by Asa Gillett against the trustees of the village of Kinder-hook to recover damages for injuries to plaintiff's land caused by the improper construction of a sewer. From a judgment entered on a verdict in favor of plaintiff for $2,700.75, and from an order denying a motion for a new trial, and refusing to set aside the verdict on the ground that it was contrary to evidence and contrary to law, defendant appeals. Reversed ■

<p>Appeal from Albany county court.</p> <p>Action by George Kautz against Harry Vandenburgh to recover for work and materials. There was a verdict in favor of plaintiff for $105, and plaintiff’s costs were taxed by the clerk, and judgment entered in his favor, with costs. From an order vacating and setting aside the taxation of costs in favor of plaintiff, and directing taxation of costs in favor of defendant against plaintiff, plaintiff appeals. Reversed.</p>

Proceeding by Soloman W. Bussell, Jr., as administrator of Bobert Stewart, deceased, for the discovery of assets belonging to decedent’s estate, and alleged to be improperly withheld by one Slocum W. Lake. From a decision and decree in favor of petitioner, said Lake appeals. Beversed.

Action by Eleanor E. O’Brien against John Barkley, as executor, and others, to construe a will. Defendants move for a new trial on a case and exceptions, as provided by Code Civ. Proc. § 1001. Denied. Held: “This condition is illegal and void. It requires the violation of a statute. It is contrary to public policy.

Action by Homer J. Martine and Godfrey R. Martine against William H. Robinson and Lyman Jenkins as assignee for benefit of creditors of the New York & Oriental Tea Company, and of William H. Robinson individually, to set aside the assignment. The complaint was dismissed as to defendant Jenkins, and an injunction against defendants was dissolved, and plaintiffs appeal. Affirmed.

<p>Counterclaim—Contracts—Undertaking on Appeal.</p> <p>An undertaking on appeal is a “contract,” within Code Civ. Proc. § 502, subd. 1, which provides that in an action on a contract which has been assigned, a demand against the party or assignee in favor of defendant may be allowed as a counterclaim.</p>

<p>Appeal from surrogate’s court, Ulster county.</p> <p>Application for the probate of the will of Gilbert Palmateer, deceased. Probate was refused, and the executors and legatees appeal. ^0ygjg0^</p>

Action by Frank H. Pettee against Mary H. Pettee for divorce. From a judgment entered on an order confirming the report of a referee granting an absolute divorce, defendant appeals. Affirmed. For former report, see 19 N. Y. Supp. 311.

<p>Appeal from judgment on report of referee.</p> <p>Action by Luther Shute against Frederick W. Jones on a promissory note. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.</p>

Action by Patrick Redmond against the Industrial Benefit Association on a certificate of membership. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion to set aside a verdict, made on the minutes, defendant appeals. Affirmed.

Action by the First National Bank of Lowville against George D. Moffatt and others to set aside a conveyance made in fraud of plaintiff, as creditor of George D. Moffatt. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed. Upon an indebtedness which arose in October, 1886, the plaintiff recovered a judgment December 1, 1891, for $1,747.09.

Harry Burton and Frank Clapper were convicted of arson, and appeal. Affirmed.

Action Tby John Hardwick against the Royal Food Company of New Jersey and others. From an order confirming the report of a referee, Thomas E. Ferrier, as trustee, a claimant of the surplus money, appeals. Affirmed.

Tillinghast, as county treasurer of the county of Madison, against J. Herman Merrill, supervisor of the town of Stockbridge, George Porter, and W. Fayette Bridge on a bond. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.

<p>Negligence—Dangerous Premises—Turntables.</p> <p>Where a railroad company maintains a turntable at a place accessible to children, and does not lock or fasten it in any manner, the company Is liable for injuries to children who are attracted to the premises to play with the turntable.</p>

Action by the Mohawk National Bank of Schenectady against the-Schenectady Bank to compel a transfer of stock. There was a judgment in favor of defendant, and plaintiff appeals. ' Affirmed.

Action by Elise Reich, as administrator of William Reich, deceased, against the Union Railway Company of New York City for the death of plaintiff’s intestate. The complaint was dismissed, and plaintiff appeals. Affirmed.

<p>Action by Maud E. S. Depierris against Henry B. Slavin and others. For former report, see 26 N. Y. Supp. 970.</p>

<p>Action by Edith M. Faxon against John Mason and another.</p>

<p>Appeal from circuit court, Kings county.</p> <p>Action by Henry Frederick Harris against the Union Elevated Railroad Company.</p>

<p>Appeal from circuit court, Kings county.</p> <p>Action by Jane Kirkwood against Frank Gehring.</p>

<p>Appeal from circuit court, Richmond county.</p> <p>Action by Martha C. Kuhne against Charles A. Gescheidt and others.</p>

<p>Appeal from Dutchess county court</p> <p>Action by Charles R. Pultz against William Starr Miller.</p>

<p>Action by Elwin S. Piper against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Coe H. Ten Eyck against the town of Warwick and others.</p>

<p>Action by Henry N. Squire and another against Alexander C. McKenzie.</p>

<p>Appeal from circuit court, Kings county.</p> <p>Action by David M. Torrey against Francis A. Waters and others.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Phillip Wolff and another against Paul Kuhne.</p>

<p>Action by James Spears against Eben Willis.</p>

<p>Action by Oliver B. Whitney against Lawrence E. Wardell.</p>

<p>Action by Ezra Marion against the town of Newfield.</p>

<p>Action by the people against Milton W. Doxtater.</p>

<p>Certiorari by Frederick L. Taylor against Gerrit A. Forbes, justice.</p>

<p>Action by Adelbert G. Sergent against the Liverpool & London & Globe Insurance Company.</p>

<p>Action by Andrew J. Taylor against Reuben H. Geer, as executor, etc.</p>

<p>Application of Jane Le Breton Brugh, an alleged lunatic.</p>

<p>Proceeding for the probate of the last will and testament of Solander Carver, deceased.</p>

<p>Action by Farley W. Gray, administratrix, etc., against the town of Caneadea.</p>

<p>Action by J. Felix Nassoiy against David H. Tomlinson and others.</p>

<p>Action by John Metzler against the Rochester City & Brighton Railroad Company.</p>

Prosecution against William A. McDowell for selling intoxicating liquors. Motion to amend decision so as to certify that the reversal was upon questions of law only, etc.

<p>Action by Charles N. Tompkins and others against Charles Hunter and others.</p>

<p>Action by Charles Curran against Lewis Galen, as president, etc., and others.</p>

<p>Action by the City Dime Savings & Loan Association against William A. Lobdell and George F. Mings, impleaded, etc.</p>

<p>Action by Thomas P. McCormick against John McCormick, Jr.</p>

<p>Action by Annie Mitchell against the Rochester Railway Company.</p>

<p>James Kelly and John Von Glahn move to vacate judgment entered on a forfeited recognizance. See 22 N. Y. Supp. 775.</p>

<p>Action by Thomas Nolan against John P. Lewis.</p>

<p>Action by William Risk against Richard Uffelman and others. Appellants move for leave to appeal to the court of appeals.</p>

<p>George Lucas and Charles Lighte move to vacate judgment entered on a forfeited recognizance.</p>

<p>Appeal from fourth district court.</p> <p>Action by Lewis Kemmelhor against Isaac Cohen.</p>

<p>Appeal from sixth district court.</p> <p>Action by Samuel B. Parmlee against the Associated Physicians & Surgeons. Argued before BOOKSTAYER and BISCHOFF, JJ.</p>

<p>Action by John Allen against Francis A. Clark.</p>

<p>Action by John Claflin and others against the New York Standard Watch Company.</p>

Action by George H. Meyers and another against Lena Stix and another. Plaintiffs appeal from a judgment of the general term of the city court. 28 N. Y. Supp. 90.

<p>Action by James W. Murphy and others against the New York Elevated Railroad Company and another.</p>

<p>Action by Henry Schulz against Charles Rohe and others.</p>

Action by Eliza W. White and Caroline White against Anna Byron Benjamin and others. There was a judgment in favor of the plaintiffs (23 N. Y. Supp. 981), and defendants appeal. ' Affirmed.