Volume 29 — New York Appellate Division Reports

<p> Elevated railroad—an abutter's action may be maintained against an elevated railroad company and Us receiver appointed in foreclosure proceedings—all owners of undivided interests in the abutting property should be made parties. </p> <p>An owner of property whose easements of light, air and access have been appropriated without compensation by an elevated railroad company which has built its road along the street upon which the owner’s property abuts, may properly bring an action to restrain the maintenance and operation of the road unless payment of his past and fee damages be made, both against the railroad company itself and a receiver thereof appointed in mortgage foreclosure proceedings against it.</p> <p>The complaint in such an action states a single cause of action for an injunction, the demand for damages being merely incidental to the main relief.</p> <p>In such an action all the owners of undivided interests in the abutting property should he made parties, either as plaintiff or defendant.</p>

Motion by the plaintiff, John Jenkins, for a new trial made on a case containing exceptions, ordered to be heard at the Appellate Division in the first, instance upon the dismissal of the complaint by the direction of the court after a trial at the Kings County Trial Term.

Appeal by the plaintiff, W. Scott Johnson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Dutchess on the 31st day of January, 1898, upon the decision of the court rendered after a trial at the Dutchess County Special Term dismissing the complaint, with costs, and granting the defendant an additional allowance of five per cent, and also from an order entered in,said clerk’s office on the 31st day of…

Appeal by the plaintiff, The City of Albany, from a final judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Suffolk on the 2d day of February, 1898, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Ida E. Damuth, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Lewis on the 14tli day of June, 1891, upon the decision of the court, rendered after a trial before the court, without a jury, dismissing the plaintiff’s complaint upon the merits.

Motion by the defendant, Andrew L. Harmon, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiff rendered by direction of the court after a trial at the Seneca Trial Term.

<p>Appeal by the plaintiffs, Rachel A. Jones and another, as administrators, etc., of Samuel Jones, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Wyoming on the 29th day of September, 1897, as amended by an order entered in said clerk’s office on the 28th day of October, 1897, upon the report of a referee, dismissing the complaint upon the merits.</p> <p>■ Plaintiff’s complaint alleges that on the 20th day of June, 1892,, and for a number of years prior thereto, the defendant William R. Perkins was the owner in fee of, and the defendant Christina Perkins, had an inchoate right of dower- in, certain lands particularly described in the complaint as seventeen acres, situated in the town of Middlebury, and that Samuel Jones, in his lifetime, about that date, loaned and advanced to the defendants the sum of $650 with which to pay a certain mortgage executed by the defendants to Theron Bullock upon the lands so described. The complaint alleges'that the defendants agreed that they would “ execute and deliver to-the said Samuel Jones a mortgage upon the lands and premises-above described in the said sum of six hundred and fifty dollars, for the purpose of securing the payment of the said loan so made by the said Samuel Jones to these defendants; said mortgage, by the terms of said agreement, to be due and payable five years from the date thereof, to wit, on the 20th day of June, 1897, with annual interest thereon.”</p> <p>It is alleged in the complaint that on the 21st of June, 1892,. the defendants paid to Bullock the sum of $650, so received from said Jones, in discharge of the Bullock mortgage, and that that discharge was executed by him and recorded in the clerk’s office of Wyoming county. It is further alleged that on the twenty-third of July the defendant William R. Perkins conveyed the said premises to the defendant Christina Perkins, who is now the owner of the premises. It is alleged that the defendants have refused and neglected to execute a mortgage irpon the premises, and have not paid the sum of $650, or the interest thereon, or any part thereof to the said Jones or to these plaintiffs, his legal representatives. It is alleged that on the 16th of April, 1896, Samuel Jones died in the town of Attica, and on the 8th of May, 1896, the plaintiffs were appointed administrators of the goods and chattels of the deceased; that they have duly qualified, and that on the 16th of July, 1896, the plaintiffs “ tendered to the said defendants and each of them a mortgage upon the said lands and premises in the said sum of six hundred and fifty dollars, to be due and payable on the 20th day of June, 1897, with annual interest thereon, to these plaintiffs as such administrators as aforesaid, mortgagees, and requested the said defendants and each of them to join in the execution of the said mortgage, and that the said defendants and each of them refused and neglected so to do * *</p> <p>Several of the allegations of the complaint are admitted, and the answer alleges that the §650 mentioned in the complaint, “ given to the defendant Christina Perkins by the said plaintiffs’ intestate, was an absolute gift to her, and that there was no agreement or understanding, expressed or implied, that such moneys so given to the defendant Christina Perkins, as aforesaid, were to be treated as a loan, hut on the other hand it was expressly agreed that the same should be an absolute gift based upon the love and affection the said plaintiffs’ intestate had for his said daughter, the defendant Christina Perkins, and the further consideration that the defendant William R. Perkins should thereafter make, execute and deliver the deed of conveyance ” of the premises mentioned in the complaint.</p> <p>The referee finds that the intestate on the 20th day of July, 1892, “ went to the home of the defendants, in said town of Middle-bury, and delivered to his daughter, the said defendant Christina Perkins, the sum of six hundred and fifty dollars, to satisfy and discharge the mortgage aforesaid, intending the same to be accepted and received by the said daughter for such purpose and upon condition that the said defendant William R. Perkins should convey by deed to the said defendant Christina Perkins the said real estate mentioned in the first finding of fact.”</p> <p>The referee also finds that the intestate “ made no request or demand of the defendants, or either of them, for any security for the money so delivered as aforesaid * * The referee also finds that Samuel Jones died on the 16th day of April, 1896, and on the 8th of May, 1896, the plaintiffs were appointed administrators of his goods and chattels. Exceptions were filed to the referee’s report.</p>

<p>Service of a summons on a corporation — delivery thereof to am alleged manager of the corporation — proof that he is such.</p> <p>What proof of the service of the summons and complaint upon the Buffalo City Mills, a defendant corporation, by their delivery personally to one Brown, conceded to have been at one time the manager of the corporation, is sufficient, to sustain such service, on a motion to set the same aside based upon an affidavit of said Brown “that he is not the cashier, treasurer or managing agent of the said Buffalo City Mills, Limited, within the State of New York, or any other place, and that he has no connection with the said Buffalo City Mills, Limited, as employee, agent, stockholder or director of said corporation, and that he has no connection with said Buffalo City Mills, Limited, in any way whatever, nor has he been for several months past,” considered.</p>

<p> Contract to furnish a well to a city—evidence as to sufficiency of tests made. </p> <p>In an action brought by a contractor, to enforce a written agreement to furnish, a well to supply the defendant city with water, the question at issue being whether the well had been fully and fairly tested and had produced the average quantity of water called for by the contract, the Appellate Division was of opinion that, considering the criticisms upon the tests actually made, together with the evidence which was offered, showing that the results indicated by the tests were unreliable, as well as the testimony tending to show that the capacity of the well was equal to the quantity mentioned in the provisions of the contract, or some of them, a question of fact was presented which should have been submitted to the jury, and that the trial court erred in directing a verdict in favor of the defendant.</p>

Appeal by the defendant, Samuel K. Fester, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Seneca on the 30th day of March, 1898, substituting Fellie E. Chamberlain, as administratrix of the goods, chattels and credits of John H. Marlcell, as plaintiff in the place of said John H. Marlcell, who has died, and also substituting attorneys for the plaintiff.

Appeal by the defendant, John C. O’Brien, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 1st day of November, 1897, upon the verdict of a jury, and also from an order bearing date the 27th day of October, 1897, and entered in. said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Jeanette P. Barron, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 29tli day of October, 1891, upon the decision of the court rendered after a trial at the Erie Equity Term.

Appeal by The Hew York Central and Hudson River Railroad Company and The Mohawk and Malone Railroad Company, from an order of the County Court of Herkimer county, entered in the office of the clerk of the county of Herkimer on the 23d day of December, 1897, denying their motion for an order vacating an order of the County Court of Herkimer county, entered in the office of the clerk of the county of Herkimer on the 1st day of March, 1897, which appointed commissioners to…

Appeal by the plaintiff, George C. Whipple, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 18th day of January, 1898, denying said plaintiffs motion to vacate and set aside a judgment, entered in the office of the clerk of the county of Monroe on the 27tli day of November, 1897, upon the decision of the court rendered after a trial at the Monroe Equity Term, upon the ground that such…

<p>Motion by the defendant, the Massachusetts National Life Association, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiff for $1,068, rendered by direction of the court after a trial at the Monroe Trial Term.</p>

Appeal by the relators, The West Shore Railroad Company and The New York Central and Hudson River Railroad Company, lessee of said West Shore Railroad, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 2d day of December, 1897, dismissing a writ of certiorari issued to review an assessment for taxes.

<p>Appeal by the defendants, The New York Central and Hudson River Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 23d day of September, 1897, upon the decision of the court, rendered after a trial at the Onondaga Special Term, separately stating- the facts found and the conclusions of law.</p>

<p>Justice’s judgment by confession — its docket as a County Court judgment — the transcript need 'not recite jurisdictional facts.</p> <p>The. entry of a judgment of a justice of the peace in the minutes of the justice, and the issuing of a transcript thereon, and the filing of such transcript in the office of the clerk of the county, although the judgment is not recorded until afterwards in the justice’s docket, are sufficient to authorize such clerk to docket the judgment, which, thereupon, becomes a valid judgment of the County Court.</p> <p>It is not necessary that the transcript should recite that the judgment was recovered on a confession, in order to show facts to establish jurisdiction on the part of the justice over the parties and over the subject-matter.</p> <p>A transcript need not recite the jurisdictional facts.</p>

Appeal by the defendants, Mary Coulter and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 9th day of October, 1896, upon the verdict of a jury, with notice of an intention to bring up for review upon such appeal an order bearing date the 8th day of October, 1896, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John W. Trüesdell, as administrator, etc., of John Fitzgerald, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 2'7th day of February, 1896, upon the dismissal of the complaint by direction of the court after a trial at the Onondaga Trial Term, with notice of an intention to bring up for review upon such appeal an order bearing date the 26th day of February,…

Appeal by the plaintiff, the .Merchants’ Bank of Buffalo, from a judgment of the Supreme Court in favor of the defendant Louis Weill, entered in the office of the clerk of the county of Erie on the 12th day of June, 1897, upon the decision of the court, rendered after a trial at the Erie Special Term, dismissing the complaint, in so far as a personal judgment is demanded on the bond.

Appeal by the plaintiff, Benjamin C. Miller, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Steuben on the 10th day of February, 1898, denying the plaintiff’s motion for a retaxation of the defendant’s costs. This action is brought to recover the value of certain legal services claimed to have been rendered on behalf of the defendant by the plaintiff’s assignor.

Appeal by the plaintiff, John Yan Yoorhis, from a judgment of the Supreme Court in favor of the defendant Hannah F. Brown, entered in the office of the clerk of the county of Monroe on the 13th day of August, 1897, upon the decision of the court rendered after a, trial at the Monroe Special Term dismissing the complaint as to-said defendant.

Appeal by the plaintiff, C. 0. Townsend, as receiver, etc., of Harry Bumpus, from a judgment of the Supreme Court in favor of the defendant Sarah E. Bumpus, entered in the office of the clerk of the county of Seneca on the 1st day of June, 1897, upon the decision of the court rendered after a trial at the Seneca Special Term dismissing the complaint upon the merits.

Appeal by the defendant, Robert West, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 20th day of December, 1897, affirming a judgment of conviction rendered in the Police Court of the city of Rochester.

Appeal by the defendant, The Connecticut Indemnity Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 14th day of May, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of May, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The Buffalo German Insurance Company, from so much of a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on… Held: and notified them that in the event the same were not paid and the stock redeemed on or before the sixteenth day of that month, such stock would be sold and the proceeds applied in liquidation of the indebtedness of their testator.

Appeal by the plaintiff, Tyndale Palmer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 19th day of May, 1897, upon the verdict of a jury for six cents damages, and also from an order entered in said clerk’s office on the 24th day of May, 1897, denying the plaintiff’s motion for .a new trial made upon the minutes. .

Appeal by the defendants, The City of Buffalo and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office' of the clerk of the county of Erie on the 10th day of Hay, 1897, upon the decision of the court, rendered after a trial at the Erie Special Term, restraining the defendants from collecting an assessment made against several parcels of land owned by the plaintiffs for the expense of constructing a sewer in the city of Buffalo.

Appeal by the defendants, Richard P. Hubbard, as executor, etc., of Richard P. Hubbard, deceased, and also as guardian ad litem for Richard P. Hubbard, Jr., and others, infant defendants, and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 24th day of September, 1897, upon the decision of the court rendered after a trial at the Monroe Special Term, in an action brought…

Appeal by the plaintiff, The American Trust and Savings Bank, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clérk of the county of Onondaga on the 3d day of December, 1897, directing that the sheriff of the county of Onondaga and two judgment creditors of the defendant be made parties defendant in the action, said judgment creditors claiming the fund in controversy.

Appeal by the defendant, James Lyons, from a judgment of the County Court of Monroe county in favor of the plaintiff, rendered on the 19th day of November, 1896, and entered in the office of the clerk of the county of Monroe convicting him of the crime of burglary in the third degree; also from an order entered in said clerk’s office on the 26th day of December, 1896, denying the defendant’s motion for a new trial made upon the minutes, and also from an order, made by the…

Appeal by the plaintiff, George Miller, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 17th day of Rovember, 1896, upon the dismissal of the complaint by direction of the court after a trial at the Monroe Trial Term, and also from an order entered in said clerk’s office on the 20th day of September, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Alfred A. Howlett and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Onondaga on the 6th day of ¡November, 1897, upon the decision of the court rendered after a trial at the Onondaga Special Term.

Appeal by the defendants, Charles James Murray and others, from portions of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Livingston on the 3d day of'June, 189 Y, upon the decision of the court rendered after a trial at the Monroe Special Term.

Appeal by the defendant, Elizabeth L. Hicks, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Allegany on the 4th day of September, 189'T, upon the report of a referee.

Appeal by the defendant, Charles Bierstadt, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 2d day of February, 1898, directing him to pay the plaintiff alimony and counsel fees.

Appeal by the plaintiff, James Crampton, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 23d day of October, 1897, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 28th day of October, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the petitioner, Mary Raby, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of February, 1898, denying her application for an order directing Hugo S. Mack to pay over an amount alleged to be in his possession and belonging to her.

<p>Agency — a husband executing in his individual name an unsealed contract, employing a broker to sell premises owned by his wife — the husband may be ashed what authority he had to act for his wife.</p> <p>In an action brought by a broker against an owner of real property to recover for services rendered by the broker in conducting negotiations for the sale thereof, the plaintiff may, notwithstanding the fact that the contract under which he was employed, which was not under seal, was signed by the defendant’s husband in his individual name, show that the husband had authority to act in the premises for his wife, and the husband may properly be asked whether he had authority from his wife to execute the contract of employment; also, whether at the time of signing such contract he had a power of attorney from his wife, and also the question, “ What, if any, paper writing did you have from your wife in relation to the property ? ”</p>

Appeal by the plaintiff, Henry Karstens, as trustee under the last will and testament of Gerhard II.

Appeal by the defendant, Anton Iglauer, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of March, 1898, continuing an injunction pendente lite.

Appeal by the plaintiff, Michael Moran, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of March, 1898, granting the defendant’s motion for the discovery and, inspection of a letter written by the defendant to the plaintiff.

Appeal by the defendant, the Hew York Post-Graduate Medical School and Hospital, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of February, 1898, directing the issuance of a peremptory writ of mandamus.

Appeal by the defendant, Alphonse V. Benoit, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of November, 189Y, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 23d day of November, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Pierre Y. A. Brett, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 21st day of December, 1897, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 10th day of January, 1898, denying the plaintiffs motion for leave to go to the jury on specific questions.

Appeal by the defendant, The Union Railway Company of New York city, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of October, 1897, upon the' verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 11th day of- October, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Motion by the plaintiff, Agnes Sheehy, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of her complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, German Iialm, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of January, 1898, upon the verdict of a jury, with notice of an intention to bring up for review upon such appeal an order bearing date the 5th day of January, 1898, and entered in said clerk’s office nunc pro tunc as of the 5th day of January, 1898, denying the defendant’s motion for a new. trial…

Appeal by the plaintiff, Bertha Dworsky, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of November, 1897, upon the decision of the court rendered after a trial at the New York Special Term directing the specific performance of a contract. The will of Henry Wisendanger, referred to in the opinion, was admitted to probate on the 23d day of December, 1897.

Appeal by the plaintiff, The Continental National Bank of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of February, 1898, denying its motion for an inspection and discovery, and permission to take copies, of certain notes, books, papers and documents.

Appeal by Moses G. Wright and others from portions of an order •of the Supreme Court, made at the Mew York Sj>ecial Term and entered in the office of the clerk of the county of Mew York on the 22d day of September, 1891, confirming the fifth separate report of commissioners of assessment and apportionment appointed in the proceeding.

Appeal by the plaintiff, William A. Lord, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Yew York on the 19th day of February, 1896, upon the decision of the court rendered after a trial at the Yew York Special Term dismissing the complaint upon the merits.

Appeal by the plaintiff, James Y. Lawrence, as surviving partner of the firm of Lawrence Brothers, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 7th day of January, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

<p>Wan'ranty — an express warranty must have been relied upon—proof to establish an implied warranty.</p> <p>A vendee who seeks to maintain an action for a breach of an express warranty must establish the fact that the warranty was relied upon.</p> <p>Proof insufficient to show the existence of an implied warranty of quality upon the sale of a manufactured insulating substance, considered.</p>

Appeal by the plaintiff, Pasquale Caponigri, from a judgment of the Appellate Term of the Supreme Court in favor of the defendants, hearing date the 28th day of December, 1897, and entered in the office of the clerk of the county of New York affirming a judgment of the General Term of the City Court of New York-which affirmed a judgment of the City-Court of New York, entered in the office of the clerk of the City Court of New York on the 20th day of May, 1897, upon the…

Appeal by the plaintiff, Marie S. Bouillon, from a judgment of the Supreme Oourt in favor of the defendant, entered in the office of the clerk of the county of New York on the 4th day of June, 1896, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 18th day of June, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Francis H. Leggett and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 22d day of Hovember, 1897, upon the verdict of a jury for $700, and also from an order entered in said clerk’s office on the 2d day of December, 1897, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Lawrence E. Storey, as administrator, etc., of Joseph F. Storey, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the Utli day of February, 1898, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term, and also from an order entered in said clerk’s office on the 15th day of February, 1898, denying the plaintiff’s…

Appeal by the relator, Tlie New York Real Estate Association, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of April, 1897, dismissing a writ of certiorari issued to review the assessment against the capital and surplus of the relator, a domestic corporation, for the purposes of taxation, for the year 1896, and also from a judgment entered in said clerk’s office on the…

Appeal by the defendant, Hattie Maud Fitzsimons, sued as Hattie Maud Hamilton, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of March, 1898, denying her motion to open a judgment taken by default and allow her to defend said action upon the merits.

Appeal by the plaintiff, George A. Gumby, an infant, by Mary L. Clayton, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 10th day of January, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiff, J ames W. Christopher, from a judgment of the Supreme Court in favor of the defendant, The Langdou and Granger Brewing Company, Limited, entered in the office of the clerk of the county of Hew York on the 24th day of January, 1898, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term.

Appeal by the plaintiff, Emily 'Brugher, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 14th day of December, 1897, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term.

<p>Appeal by the plaintiff, Thomas Kelly, as administrator, etc., of Michael Kelly, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Hew York on the 2d day of June, 1897, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term.</p> <p>This action was brought to recover damages for the death of the plaintiff, caused, it was alleged, by the negligence of the defendants as owners of an estate to which the tenement house referred to in the opinion belonged.</p>

<p>Appeal by the plaintiff, William E. Dean, from an order of the Supreme Court, made at the Hew York Special Term, bearing date the 22d day of July, 1897, and entered in the office of the clerk of the county of New York, denying the plaintiff’s motion for a new trial or to correct the verdict.</p>

<p>Appeal by the defendant, Isaac C. Birch, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 19th day of February, 1898, upon the decision of the court rendered after a trial at the Hew York Special Term overruling the said defendant’s demurrer to the plaintiff’s complaint.</p>

<p> Action to recover unliquidated damages for a breach of contract—the damage must be alleged or be inferable. </p> <p>An action cannot be sustained to recover unliquidated damages for a breach of a certain contract by the defendants where there is no allegation in the complaint that such breach caused the plaintiff any damage, and no fact is alleged from which such damage can be presumed.</p>

Appeal by the defendants, Elizur B. Hinsdale and others, as justices of the Court of Special Sessions of the first division of the city of New York, and Adam Ludwig, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of March, 1898, granting a writ of prohibition.

<p> New York city—practice on an application for an extra allowance of costs by the commissioners of estimate and assessment. </p> <p>An application by commissioners of estimate and assessment, under section 1000 ' -'solidation Act, relating to the city of New York (Chap. 410, Laws of 1882, as amended by chap. 449, Laws of 1895) for an extra allowance of costs must be made to the court at the time of the taxation of the costs, when all parties in interest are before the court, and it cannot properly be made upon notice to the corporation counsel only.</p> <p>Chapter 393 of the Laws of 1896 does not alter the rule.</p>

<p>Mrst judicial district — where an application for a preference must be made — the case must be at issue — a preference denied in an action to establish a will.</p> <p>In the first judicial district an application for a preference under section 793 of the Code of Civil Procedure, or rule 3 of the Rules for the Regulation of the Trial Terms in the First Judicial District, must be made at Part 3 of the Trial Term.</p> <p>The case cannot he placed upon the preferred calendar until it is at issue; and an order directing that the case be set down on the calendar of the Trial Term of the court, Part 3, for the hearing of preferred causes, which provides that, in case an amended answer he served, the cause be set down on the calendar of the court for a later date, is improper, especially where it does not appear in the moving papers that the case has been noticed for trial, or that a note of issue has been filed, as required by section 977 of the Code of Civil Procedure.</p> <p>Pacts deemed insufficient to justify a preference of an action brought to establish a will, considered.</p>

Appeal by the infant defendants, Adele Le Oompte and another, from an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the county of Hew York on the 19th day of March, 1898, denying their motion to vacate an order granting a preference.

<p>Will — construction of a clause providing for the payment of annuities from a trust estate — duration of the term of payment.</p> <p>A testator, toy the 6th clause of his will, vested the residue of his estate in trustees, and provided for the payment of annuities as follows: “To my sister, Julia R Montanye, the sum of three hundred and twenty (§820) dollars per year, to toe paid to her quarterly during the term of her natural life, and to my daughter, Carrie Jelliff, the sum of twenty (§20) dollars per week, to toe paid to her weekly during the lifetime of my said wife, and, also, to permit her to have the free use and occupancy of the premises where she now resides at three hundred and twenty East One Hundred and Fiftieth street, in said city of New York, until the final distribution of my estate.” The testator further directed that, should either of his daughters or sisters die, without issue, during the lifetime of his wife, her share of the income of the estate should toe paid to his wife, and toy a subsequent clause of the will he provided that upon the death of his wife this trust estate should be divided among his children, or the descendants of any deceased child, except the share allotted to his daughter, Carrie Jelliff, which was to toe retained by the executors, as trustees, in trust for her, and upon her death to toe divided among her children.</p> <p>The testator’s daughter, Carrie Jelliff, died intestate during the lifetime of the the testator’s widow, -and left her surviving her husband and three infant children.</p> <p>Held, that the administrator of her estate was entitled to receive twenty dollars per week from the trustees of the estate of the testator during the continuance of the trust estate, and was also entitled to the use of the house 820 Bast One Hundred and Fiftieth street, New York city, during the same time.</p>

Appeal by the defendant, Theodore W. Myers, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day-of November, 1897, upon the verdict of a jury for §1,000, and also from ah order entered in said clerk’s office on the 22d day of November, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Katherine Heumeister, as administratrix, etc., of Henry Heumeister, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk, of the county of Hew York on the 4th day of Hovemher, 1897, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, The Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of November, 1897, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 2d day of December, 1897, denying the defendant’s motion for a new trial made apon the minutes.

Appeal by Henry Korndorfer from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 22d day of Hovember, 1897, revoking and canceling liquor tax certificate Ho. 6080, granted to Henry Korndorfer.

Appeal, by the defendant, Charles F. Mayer, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 5th day of April, 1898, directing him to serve a bill of particulars.

Appeal by the petitioners, Charles H. Meyer and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of February, 1898, denying their motion for an order granting them leave to inspect the books in the hands of the assignee of Rudolph Pagenstecher and others.

<p>Legacy toan unincorporated religious society of a foreign State—proof, when proper under the pleadings, and sufficient authentication, of the statutes and reports of that State — what determined by the law of the domicile of the testator, and what by that of the legatee—when a gift “in trust” does not create a trust-time within which an action lies against executors, and when the Statute of Limitations runs.</p> <p>In an action brought to recover the amount of a legacy, payable under the will of Joseph P. Hale to an unincorporated religious society, located in the State of Massachusetts, the complaint alleged “that, by the laws of said Commonwealth, the plaintiff is now, and always has been, competent to take and hold said legacy, and to sue for and recover the same; ” and also that, “at the time of the death of said Joseph P. Hale, it was, and still is, the law of said Commonwealth that incorporated and unincorporated religious societies may appoint trustees, not exceeding five in number, to hold and manage bequests for their benefit,” and that, “before the commencement of this action the plaintiff duly appointed three trustees to hold and manage said bequest, * * * and that each of said trustees has accepted his said appointment, and that said trustees are ready and prepared to receive said bequest and administer it according to law.”</p> <p>Held, that the allegations of the complaint were sufficient to justify the reception in evidence of the statutes of the State of Massachusetts;</p> <p>That books purporting, in their title pages, to be statutes of Massachusetts, and to have been published by the Commonwealth, and reports of the Supreme Court of Massachusetts, proved by a member of the bar of Massachusetts to be “ volumes of the regular reports of the Massachusetts Supreme Court,” and to have been obtained from the New York Law Institute of the city of New York, were sufficiently authenticated under the requirements of section 943 of the Code of Civil Procedure.</p> <p>While the laws of a testator’s domicile govern as to the formal requisites essential to the validity of his will, the capacity of the testator and the construction, of the instrument, yet the validity of particular bequests depends, unless expressly prohibited by the law of the testator’s domicile, upon the law of the domicile of the legatee.</p> <p>Semble, that a bequest to a legatee, an unincorporated Unitarian society, “in trust,” with directions to apply the income thereof to the keeping in good order of a cemetery lot connected with the church of the society, “the balance of such annual income to be applied by the said trustees towards the support of the preaching of the Gospel in that society,” does not create a trust. That, even if treated as a trust, under the laws of Massachusetts, where the English doctrine of charitable uses is in force, a trust to a religious society for the support of the preaching of the gospel is a public and charitable trust, and is valid, although in perpetuity, and notwithstanding the fact that the society may be a voluntary and unincorporated body; nor is such a bequest invalid under the laws of Massachusetts, because of the provision in regard to the burial lot, as the gift for the support of the preaching of the gospel, if the prior bequest is invalid, is a good gift of the whole sum, discharged from the obligation to keep such lot in good order, the application in regard to the lot being treated as honorary only, and the whole fund going to the charity</p> <p>The proper construction of section 1819 of the Code of Civil Procedure, relative to an action by a legatee against the personal representatives of a testator, is that the legatee may, after the lapse of one year from the granting of letters and after demand made, sue for his legacy, although the representatives have not judicially settled their accounts, but that until the representatives have settled their accounts the statute does not run against the cause.of action.</p>

<p>Appeal by the defendants, Maross Jenkins and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of April, 1897, upon the decision of the court rendered after a trial at the New York Special Term.</p> <p>The action is brought upon a written contract executed March 28, 1896, between the defendant Maross Jenkins and the plaintiff’s assignors, James R. Pitcher and Aubrey H. Martin. By this contract Pitcher & Martin agreed to obtain a suitable building in the city of New York, and place therein a plant for the manufacture of certain brands of soap known as “ Coal Oil J ohnny,” “ Petrolia ” and “ Balm of Gilead,” the plant to have a capacity of not less than 400 boxes a day. They also agreed to organize a corporation with a capital stock of $100,000, and set apart for Mr. Jenkins $10,000 thereof, which should be retained until the accumulated dividends equaled the par value, and then delivered to him. Mr. Jenkins agreed to purchase exclusively from Messrs. Pitcher & Martin, for a period of twenty years, all the Coal Oil Johnny soap which he should need for purposes of sale, except eight-ounce bars thereof. This exception was due to an outstanding contract by Mr. Jenlcins with the firm of Bell & Bogerfc to purchase the eight-ounce bars from them.</p> <p>The defendant, the Coal Oil Johnny Soap Company, is a New Jersey corporation organized in March, 1894, of which Mi. Jenkins has been the president throughout. On June 19, 1896, he, as such president, executed an agreement whereby the company, in considtion of the covenants and agreements contained in the contract of March 28, 1896, ratified and confirmed said contract,the intention being to make said Coal O. J¡ Co. and said J. (Jenkins) as Prex. thereof liable under said agreement as the same were executed by him as such Prex. originally.”</p> <p>The judgment appealed from awards damages jointly and severally against the two defendants for a breach of the covenants in the contract, and enjoins their further violation. Further facts are stated in the opinion.</p>

Appeal by the defendants, Richard M. Martin and others, as executors, etc., of William Campbell, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of February, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of February, 1898, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, James Oarroll, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 1st day of May, 1896, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term.</p>

<p>Evidence — a finding that a witness testified, incorrectly on one question does not require his testimony to be disregarded on others.</p> <p>Where in an action by an attorney to recover the value of professional services, the plaintiff testifies positively to a retainer by the defendant to defend certain suits brought against the defendant’s husband, and the referee finds against the plaintiff on that point, such finding is not equivalent to a conclusion that the plaintiff intentionally testified falsely in that particular, and consequently the referee is not required to refuse to believe any further testimony given by the plaintiff, so far as he was contradicted</p>

Appeal by the defendants, John A. Deraismes and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of March, 1898, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Order of arrest — statement made by the defendant’s attorney to whom, the plaintiff was referred by the defendant.</p> <p>An order of arrest, granted upon the ground that the defendant had been guilty of false and fraudulent representations in regard to the ownership of a judgment by the defendant, is properly based on proof that the defendant had referred the plaintiff to his (the defendant’s) attorney, by whom he alleged that the judgment was recovered, and that the attorney stated that the judgment was not in favor of, but against the defendant, such statement, under the circumstances, being evidence of the fact, in regard to which the plaintiff had been referred to the attorney for information.</p> <p>In an action upon contract to recover for money lent, it is not necessary that the plaintiff set forth in the complaint the facts relied upon by him to establish the fraud or deceit which is the basis of an order of arrest granted in the action.</p> <p>It is sufficient that the complaint alleges that the representation was false, and was made fraudulently for the purpose of obtaining money from the plaintiff,</p>

Cboss-appeals by the plaintiff, Theodore C. English, as trustee, substituted for Isaac H. Williamson as trustee under the last will and testament of Benjamin.

Appeal by the plaintiff, The Glens Falls Paper Mill Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of. the county of New York on the 24th day of January, 1898, upon the report of a referee.

Appeal by the plaintiff, Jacob Levy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 2d day of February, 1898, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term.

Certiorari issued out of the Supreme Court and attested on the ■2d day of April, 1898, directed to Daniel Lord and others, commissioners appointed under the provisions of chapter 537 of the' Laws of 1893, etc., commanding them to certify and return to the office of the clerk of the county of Hew York all and singular their proceedings in relation to the claim of Katherine E. Rapp.

Appeal by the defendant, The Baker Transfer Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of December, 1897, for $6,000 damages, and also from an order entered in said clerk’s office on the 16th day of December, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the W estera. Electric Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of January, 1898, upon the verdict of a jury for §1,000, and also from an order entered in said clerk’s office on the 18th day of January, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of June, 1897, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 16th day of June, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Eugene Cowles, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the -30th day of September, 1897, upon the report of a referee, as provides that the defendant shall pay the plaintiff the sum of thirty-eight dollars per week, from the 10th day of December, 1896, for her support and maintenance during the joint lives of the parties, and that the defendant shall…

Appeal by the defendant, William L. Loew, from an Order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of March, 1898, opening a default by the defendant, and allowing him to answer in the action upon terms, and providing that unless the terms therein provided for were complied with, the motion to open the default should be denied, with costs.

Appeal by the plaintiff, Philip Sternbach, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of April, 1898, as stays the plaintiff’s proceedings pending the hearing and determination of the defendant Yette Friedman’s appeal, upon the defendant Yette Friedman giving an undertaking for costs of the appeal.

Appeal by tbe defendant, Deutscher Yerein, from a judgment of tbe Supreme Oourt in favor of the plaintiff, entered in tbe office of tbe cleric of tbe county of New York on tbe 24th day of November, 1897, upon tbe verdict of a jury for $3,200, and also from an order entered in said clerk’s office on tbe 22d day of November, 1897, denying tbe defendant’s motion for a new trial made upon tbe minutes.

<p>Appeal by the plaintiff, John Van Dolsen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 14th day of April, 1897, upon the decision of the court rendered after a trial at the New York Trial Term before the court without a jury dismissing the complaint.</p>

Appeal by the defendant, William Boerum Wetmore, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the Tfch day of October, 1896, denying his motion for an order to be made at the foot of the judgment in the action, modifying such judgment by directing the trustee to pay a portion of the surplus income of the trust estate for the support and maintenance of the defendant, William Boerum…

Appeal by the defendant, William Boernm Wetmore, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of January, 1898, denying his motion for a rehearing of a motion denied by an order made at the New York Special Term bearing date the 29th day of September, 1896.

<p>Appeal by the defendants, the Union Trust Company of New York, executor and trustee of and under the last will and testament of Andrew Jeffries Garvey, deceased, and others, from interlocutory judgments of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 25tli day of January, 1898, upon the decision of the court rendered after atrial at the New York Special Term overruling their demurrers to the amended complaint.</p>

<p>Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 15th day of December, 1897, upon the verdict of a jury for §1,000, and also from an order entered in said clerk’s office on the 13th day of December, 1897, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, William Rankin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of November, 189Y, upon the verdict of a jury.</p>

Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of November, 1897, upon the Verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 6th day of December, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Washington Belt and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county tif New York on the 3d day of November, 1897, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merits.

<p>Appeal by the plaintiff, Lewisohn Brothers, suing on its own behalf and for all other stockholders similarly situated, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26tli day of April, 1898, permitting The Montana Ore Purchasing Company to intervene in and defend the action and be made a party defendant thereto.</p>

Appeal by the defendant, the Third Avenue Railroad Company, from- a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of November, 1897, upon the verdict of a jury for $5,500, and also from an order, entered in said clerk’s office on the 11th day of November, 1897, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, J. Edward Simmons, as receiver of the American Loan and Trust Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of November, 1897, upon the verdict of a jury, and also from an,order, entered in said clerk’s office on the 11th day of November, 1897, denying the plaintiff’s motion for a new trial.</p>

Appeal by the plaintiff, Richard D. Harris, from an interlocutory judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Hew York on the 18th day of April, 1898, upon the decision of the court rendered after a trial at the Hew York Special Term sustaining their demurrer to the complaint.

Appeal by the plaintiff, The Glens Falls Insurance Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Warren on the 29th day of September, 1897, upon the decision of the court rendered after a trial at the Essex Special Term dismissing the complaint upon the merits.

<p>Appeal by tlie defendants, Israel Mannesovitch and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 17th day of August, 1897, upon the decision of the court rendered after a trial at the Warren Trial Term before the court without a jury.</p> <p>On November 19, 1894, the defendant Mannesovitch began an action against Morris Link to recover judgment on three promissory notes, and judgment was taken by default thereon upon December 10, 1894, and execution issued. The ninth day of December being Sunday, this judgment was entered one day before Link’s twenty days to answer had expired. No proceedings, however, were ever taken by Link to vacate the judgment, nor was any appearance or answer ever served by him.</p> <p>On December tenth said Link confessed a judgment to the defendant Safran upon a note for $500, dated October 1, 1892, payable two years from its date. The judgment so confessed and entered that day was for $565.58, and execution was.at once issued thereon.</p> <p>On December 1, 1894, tlie plaintiff in this action commenced an • action against Link, which resulted in a judgment in her favor, entered December 22, 1894, for $455.63. This judgment was for goods sold to Link October 4, 1894. On December 19, 1894, an attachment was issued in such action, and levied upon the goods of Link. Such goods were, however, then subject to the lien of the executions issued upon the defendants’ judgments above mentioned.</p> <p>In January, 1896, this action ivas brought by the plaintiff to set aside the judgments recovered by Mannesovitch and Safran as above stated, and tlie executions issued thereon, upon the ground that they Avere fraudulent and void as to her, having been taken through a conspiracy on their part Avitli said Link, to hinder, delay and defraud her in the collection of her said debt. Upon the trial of the action at Special Term, judgment Avas rendered in favor of the plaintiff substantially for the relief asked in her complaint; and from that judgment the defendants take this appeal.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 26th day'of January, 1897, directed to James A. Roberts, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings in assessing a tax against the relator for the three years ending November 1, 1893, in the sum of $1,800, measured by dividends paid on $300,000 of capital stock employed in the State of New York.</p>

Appeal by the defendant, The Fitchburg Railroad Company, from a judgment of the Comity Court of Rensselaer county in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 23d day of December, 1891, affirming a judgment rendered by the Justice’s Court of the city of Troy. The plaintiff was a passenger on the defendant’s train and arrived with his trunk at its station in' Iloosick at about half-past seven o’clock .in the evening.

<p>Appeal by the defendants, William W. Zelie and another, as executors, etc., of David Zelie, deceased, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Schoharie on the 23d day of February, 1898, denying their motion to vacate an order of publication of the summons on the defendant Jesse 0. Yroman.</p> <p>The action is to foreclose a mortgage executed by Jesse 0. Yroman to the plaintiff. Prior to its commencement the defendant. Daley had been appointed receiver of Yroman’s property and Yroman himself had absconded. Yroman is named a party defendant in this action and also Daley. William and Josiah Zelie are the-owners of a subsequent mortgage on the premises and are also made-parties defendant. An order was granted to serve the summons by publication on Yroman, but it was made upon an unverified complaint and is confessedly irregular and void. A motion was made-at Special Term by the defendants William and Josiah Zelie to vacate and set aside such order. It was denied on the ground that Yroman was not a necessary party, inasmuch as Daley had been appointed a receiver of his property and a lis pendens had been, filed in the action.</p> <p>From the order denying such motion this appeal is taken.</p>

■ Appeal by the plaintiff, Nelson B. Clark, from a judgment of the County Court of Fulton county in favor of the defendant, entered in the office of the clerk of the county of Fulton on the 14th day of December, 1897, reversing a judgment in favor of the plaintiff rendered by a justice of the peace,' with notice of an intention to bring up for review upon such appeal an order of the County Court of Fulton county entered in said clerk’s office on the 9th day of December,…

Appeal by the defendant, Amasa Corbin, Jr., from an order of the Supreme Court, made at the Jefferson Special Term and entered in the office of the clerk of the county of St'. Lawrence, on the 8th day of February, 1898, declaring the case and exceptions on appeal in the action abandoned by the defendant.

Appeal by the defendants, The City of Schenectady and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 20th day of September, 1897, upon the report of a referee. The action was brought to vacate and set aside an assessment upon the plaintiff’s lot for the paving of a street in the city of Schenectady, and to enjoin the defendants from collecting said assessment.

Appeal by the plaintiffs, John H. Mabbett and others, as executors of and trustees under the last will and testament of Joseph M. Mabbett, deceased, from an interlocutory judgment of the Supreme Court in favor of the defendant, Myrtle E. Mabbett, as executor of and trustee under the last will and testament of Joseph M. Mabbett, deceased, entered in the office of the clerk of the county of Saratoga on the 22d day of November, 1897, upon the decision of the court rendered…

Appeal by the defendant, Frank H. Wilmartk, from a judgment of the County Court of Fulton county in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 6th day of September, 1897, convicting the defendant of the crime of grand larceny in the second degree and forgery in the third degree.

Appeal by the defendant, Sarah M. Scully, individually, and as executrix, etc., of Patrick Scully, deceased, from an interlocutory, judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Schenectady on the 9th day of April, 1897, upon the verdict of a jury rendered upon two specific questions of fact, and also from an order denying the said defendant’s motion for a nonsuit, and from an order directing a general verdict…