Volume 29 — New York Miscellaneous Reports

<p>Motion by receivers to confirm report of referee.</p>

Motion by plaintiff for an injunction pendente lite, to enjoin the defendants from using Shinbone alley and Cross lane, running from Bleecker to Bond streets, between Broadway and the Bowery, in the borough of Manhattan, in the city of Eew York. Since the recent opening of Elm street, one entrance to the alley is upon that street, instead of winding toward and opening upon Bleecker. The plaintiff owns Eos. 1, 2 and 3 Bond street, and the defendants’ property is on Bleecker.

<p>¡Separate actions for an injunction.</p>

This action was commenced on the 10th day of October, 1895,. and was brought to obtain an injunction to restrain the defendant,, the New York & Harlem Railroad Company, and its lessee, the New York Central & Hudson River Railroad Company, from constructing and maintaining their elevated railroad structure on Fourth (now Park) avenue, in the city of New York, in front of the plaintiff’s premises, which are situate on the northwesterly comer of Park avenue and One Hundred and…

<p>Motion for an order canceling a liquor tax certificate.</p>

<p>Demurrer to amended complaint.</p>

<p>1. Equity — Promise for the benefit of a third person — Railroad consolidation agreement not intended primarily to benefit bondholders in the roads consolidated.</p> <p>An agreement, whose primary object is to consolidate several railroads, but which incidentally gives to the bondholders in the roads •consolidated a revocable license or option to exchange their bonds for those of the consolidated road secured by mortgage upon all the consolidated property, and which also provides. for the contingency and the course to be taken in case the bondholders fail to make the exchange, cannot be deemed an enforcible agreement or promise made for the benefit of the bondholders as third persons; and hence one of them cannot, especially after having neglected to make the exchange for nine years, maintain an equitable action, as an alleged beneficiary, to compel the surviving trustee of the consolidated mortgage to permit such an exchange to be now made.</p> <p>2. Same — Laches appearing on the face of the complaint.</p> <p>Where a demurrer, of no cause of action stated, is interposed to the bondholder’s complaint in which he, among other things, alleges that he has been ignorant for nine years of the existence of the license to exchange, and it does not appear that he was entitled to any notice that such a right existed, his evident laches, although laches is ordinarily a matter of defense, may be considered by the court, and this although he further alleges in his complaint that he has neither neglected nor refused to exchange his bonds.</p>

<p>Actioií for an injunction.</p>

<p>Motion to change place of trial.</p>

<p>Cebtiobabi to review the assessment of relators’ stock in the First Rational Bank of Brooklyn.</p>

This is an action brought by the plaintiff, as the daughter of Patrick J. Corvin and Mary Corvin, both deceased, to have a deed made and delivered by them to the defendant The Church of St. Mary in the city of Mew York declared a trust deed for the purposes set forth in the complaint; and for judgment that the plaintiff is now the absolute owner of the property described in said deed, and for a money judgment for $5,000 against the defendant The Church of St. Mary in the…

<p>Action upon a party wall agreement.</p>

<p>Action for conversion.</p>

<p>Officer — Reimbursement, under chap. 700, Laws of 1899, denied an official indicted as an individual.</p> <p>Chapter 700 of the Laws of 1899, providing compensation for officials who have been prosecuted and acquitted, was not intended by the Legislature to be used to compensate officers who have been indicted as individuals for crime, even though the events connected with the crime were in some manner affected by the official station of the accused.</p>

<p>Vendor and purchaser — Marketable title — Torced sale of infant’s real estate — Unborn grandchildren bound by a judgment — Acts done under an appealable judgment.</p> <p>In an action to compel a specific performance of a contract to purchase real estate, it appeared that the will of its deceased owner gave his widow a life estate in the realty and to his executors a power of sale, which they had not exercised, and that a residuary devise postponed a division of the realty until the youngest child of the testator had reached majority, and thereupon gave the issue of any deceased child his portion. The necessities of the estate made a sale necessary, and a judgment was entered, in another action, declaring that the widow held title as trustee, directing a sale and appointing a receiver to apply the income of the proceeds to the life use of the widow, the principal to be distributed, after her death, in accordance with the will. The present plaintiff bought at that sale.</p> <p>Held, that the title was marketable.</p> <p>That a judicial sale of the real estate of such of the parties as were infants was not, under the circumstances, in contravention of the terms of the will; and that the judgment of sale was assailable only by a direct appeal therefrom.</p> <p>That, if any grandchildren were born after the judgment, and survived a parent who died before the youngest child of the testator had reached .majority, they would be bound by the judgment of sale, as they could only take by representation and had been represented in the action for a sale by the parent.</p> <p>That the fact, that the time to appeal from the judgment of sale had not expired, was not a valid objection to the title under the sale, as acts done under an unstayed judgment were valid.</p>

<p>1. Vendor and purchaser — Encroachment o£ three-quarters of an inch not material.</p> <p>An encroachment of a wall to the extent of three-quarters of an inch does not justify a purchaser in refusing to take title to the premises, and especially where the year, limiting the time for attacking the encroachment (Code Civ. Pro., § 1499, as amended by Laws of 1898, chap. 517) has expired.</p> <p>8. Same — Agent, without title, contracting to convey in his own name.</p> <p>Where an agent, although having no title to premises, contracts to •convey them in his own name and, upon closing, presents a deed from his principal, the true owner, there is a sufficient ratification of the acts of the agent and the court will compel a contracting purchaser, who has in the meantime incurred no responsibilities or expenditures in reliance upon the presumed ownership of the agent, to accept the title.</p>

<p>Trade-mark — Injunction against labels likely to deceive the consumer.</p> <p>Where former employees of a firm, long engaged in manufacturing ginger ale, etc., desert it and enter into the same business, and therein adopt labels which, in size, form, type, color and ornamentation, so far resemble those used by the firm as to be calculated to deceive the consumer, such use will be enjoined, although the defendants deny any intention to imitate the plaintiff’s labels and present affidavits of dealers to the effect that purchasers, using ordinary caution, will not be misled by the labels adopted by the defendants.</p>

<p>Injunction — Damages — Defendants not allowed counsel fees for resisting a continuance, etc.</p> <p>Where defendants do not move to dissolve an injunction, they cannot recover, as damages caused them by it, fees paid by them to counsel for resisting a continuance of the injunction and for trying the case, unless the relief sought by the plaintiff is purely injunctive and the right to a preliminary injunction, and the issue in the action, present one and the same question.</p>

<p>Calendar — Receiver in supplementary proceedings not entitled to a preference — Code Civ. Pro., § 791, subd. 5.</p> <p>A receiver in supplementary proceedings cannot be said to be “ appointed'by the court”, within the meaning of subdivision 5 of section 791 of the Code of Civil Procedure, and hence his action as such receiver is not entitled to a preference on the calendar under that section.</p>

Appeal by judgment creditors of the defendant Flynn from an order of the General Term of the City Court, affirming an order of the Special Term of the City Court, denying a motion to vacate an attachment obtained by the plaintiff against the property of the defendant.

<p>Corporation — Cannot be sued after consolidation.</p> <p>Where a corporation is sued for services, it has a right to alie- and prove as a complete defense, that, when the action was begu the corporation had ceased to exist because of its consolidation wit another company, the new company assuming a different name an style.</p> <p>Consolidation absorbs all previous entities.</p>

Appeal by the plaintiff from judgments rendered in favor of the defendant, dismissing the complaints of the plaintiff, in the Municipal Court, third district, borough of Manhattan.

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

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

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

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

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

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

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

<p>Lease — A contract to permit the use of a wall for advertising purposes is not a lease.</p> <p>A contract, by which a real estate owner “ leases ” the westerly wall of his house for one year for advertising purposes, is a mere agreement for exclusive occupancy and is not a lease, as it passes to the advertiser no estate, interest, possession, or right of possession, in or to the realty; and hence the mere failure of the advertiser to erase the advertisement from the wall, at the end of the term, imposes no further liability upon him — as might have been the case if his status were that of a tenant “ holding over ” his term.</p>

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

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

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

<p>Pledge — Payment under duress.</p> <p>Where a wife in consideration of a loan to her makes an absolute assignment of her interest in a policy on her husband’s life and her husband alone thereafter procures another loan thereon, the lender may hold the policy as collateral to both loans; and where, in order to gain possession of the policy after his death, she pays to the lender the husband’s debt under protest, her payment cannot- be ■ deemed to have been made under duress, but merely as a repayment of the advances made.</p>

Motioh for an order stating priority and amount of preferred1 claims against corporation, in proceedings for voluntary dissolution, upon coming in of referee’s report after reference to take-proof of claims.

Action by an abutting owner for an absolute injunction restraining the use and the maintenance of the third track, and for an alternative injunction restraining the use and maintenance of the remainder of the defendants’ elevated railroad, and damages.

<p>Civil service — Former adjudication — Laches.</p> <p>Where persons wrongfully removed in May, June and July, 1898, in a summary manner, from competitive positions in the city of New York, are defeated by the Appellate Division in a test case because they were held not to be “ regular clerks ” nor protected as such by the charter of 1897, and, upon being subsequently apprised by a decision of the Court of Appeals in another case that questions of civil service in the city of New York were not controlled by its charter but by the general act of 1898, appeal to the Court of Appeals and are there defeated, among other things, upon the ground that the petition does not contain allegations sufficient to bring the test case within the statute of 1898, there is no estoppel by former adjudication nor any laches which preclude the litigants from subsequent applications for peremptory writs of mandamus for reinstatement.</p>

<p>Applications for peremptory writs of mandamus.</p>

<p>Assignee for creditors — Cannot tax costs of trial where his accounts were not contested.</p> <p>Upon the final accounting of an assignee for the benefit of creditors, he cannot tax costs before notice of trial and a trial fee on the reference to pass his accounts, where the accounts were not objected to in writing, or in any other manner, upon the reference.</p>

Motion to make the complaint more definite and certain by setting forth and numbering statement of alleged facts constituting alleged causes of action.

<p>Action for an. injunction restraining a nuisance and foe damages.</p>

<p>Proceedings instituted under the Condemnation Law. Code-of Civil Procedure, § 3357, et seq.</p>

Action to compel the defendant corporation to account for and pay over to the plaintiff, as receiver, the value of the property so obtained by it, in an action brought by a judgment creditor for the sequestration of the property of the debtor corporation.

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

<p>I. Municipal corporations — Void contract of a village, prematurely binding it to open a street.</p> <p>Trustees of a village, whose charter permits the opening of a street only upon a petition for the improvement and after a public hearing on the merits, have no power to make an executory agreement with a railroad corporation, whose tracks run through the village, binding the village in advance to open a certain street, as a municipal corporation has no power to bind itself in advance to legislate in a particular way but must act when the time is opportune and then in the best interests of its constituents.</p> <p>2. Same — TTnenforcible contract to discontinue a street.</p> <p>provision of such an agreement, by the terms of which the trustees attempt to bind the village to discontinue a street, is not enforcible where the discontinuance involves an application under the Highway Law proceeding from a private person, as, assuming that the executory contract to discontinue is not ultra vires, the trustees are not bound to induce some private person to apply to the County Court for a discontinuance.</p>

<p>Complaint — Demurrer tor insufficiency.</p> <p>Under the rule that a complaint is not demurrable for insufficiency unless, after admitting all the facts alleged, it presents no cause of action whatever, a complaint for more than four years’ rent of hotel furniture was held good although it did not show with absolute certainty title in the plaintiff, or in his assignor, at any time prior to the making of the complaint.</p>

<p>1. Poor Law —County superintendent may give temporary assistance at home instead of at almshouse.</p> <p>A county superintendent of the poor has power, under the Poor Law (Laws of 1896, chap. 225, § 3, subd. 12, amended by Laws of 1897, chap. 507), to provide at home for a family requiring only temporary assistance, instead of at the county almshouse, provided always that the expense is not thereby increased.</p> <p>2. Same — Temporary support of children at almshouse instead of in family or institution.</p> <p>A county may recover of a town the expenses of temporarily supporting children at the county almshouse notwithstanding the direction of section 56 of the Poor Law that a child, under sixteen, shall be provided for in families, orphan asylums, hospitals or other appropriate institutions, it appearing that the expense to the town was thereby diminished, the term of support shortened, and the disposition made of the children conductive to their best interests.</p>

Peooeediugs under the Primary Election Law, chapter 473, Laws of 1899 to review the action of the inspectors in canvassing and making return of the number of ballots voted at a primary election.

Mottos' by the receiver of the Rochester & Irondequoit Railroad Company for leave to issue certificates, which certificates shall heft first lien upon all the real and personal property of said corporation, for the purpose of constructing bridges under the tracks of the Rome, Watertown & Ogdensburg railroad. Further facts appear in opinion.

<p>Action to compel specific performance of a contract.</p>

<p>Civil seryice — Employee, appointed before chap. 370 Laws of 1899, entitled to a certificate under that act that he has been employed according to law and the rules.</p> <p>Under section 19 of the Civil Service Law (Laws of 1899, chap. 370), relating to disbursing officers, a municipal civil service commission may be-compelled by mandamus to certify that a city employee “ has been employed * * * in pursuance of law and of the rules made in pursuance of law ”, whether he was appointed before or after the formulation of rules under the statute of 1899.</p>

This action was brought to foreclose the mortgage, which is the subject of this motion. The nature of the motion and the material facts are stated in the opinion.

<p>Costs — When security is not exactable of a plaintiff trustee in bankruptcy — Code Civ. Pro., § 3268, subd. 4.</p> <p>Section 3268, subdivision 4 of the Code of Civil Procedure, giving a defendant a right to exact security for costs from a plaintiff assignee in bankruptcy where the action is brought upon a cause of action arising before the appointment of the trustee or an adjudication in bankruptcy, has no application to an action by the trustee founded upon a transfer made by bankrupts within four months of adjudication, as such a cause of action becomes complete only with the adjudication.</p>

<p>Motion for an injunction restraining the defendant from appointing any person to the position from which plaintiff has heretofore been removed and for an order to reinstate plaintiff in such position.</p>

<p>Action for an absolute divorce.</p>

<p>1. Electric lighting corporation — Reasonable stipulation that customer must pay $1.50 per month — Demurrer.</p> <p>The defendant, an electric illuminating company, required all of its customers to pay at a certain rate based upon meter measurement of actual consumption, with the proviso, however, that there should be a fixed minimum payment of one dollar and fifty cents per month. Such a requirement is not unreasonable nor violative of the duties of such a corporation, in the matter of furnishing light, as set forth in the Transportation Corporations Law (Laws of 1890, chap. 556, art. 6, § 65). So held on-demurrer to an answer, in an action against the corporation for a mandatory injunction to make it resume supplying light.</p> <p>Z. Same — Defense that there is an adequate remedy at law not demurrable.</p> <p>A demurrer to an answer which alleges that the plaintiff has an > adequate remedy at law will not be sustained, as that defense must be pleaded in order to be made available on the trial.</p>

<p>Trades’ unions — Refusal to work together — Conspiracy and coercion — Injunction.</p> <p>The continued expression, by the members of a laborers’ union, of their refusal to work with the members of a masons’ and plasters’ union, occurring under circumstances which would naturally result in causing the common employer to dismiss the latter, does not amount to a conspiracy to prevent employment under all circumstances, nor to an unlawful coercion, and hence a preliminary injunction, obtained against the laborers by the masons and plasters, should be vacated.</p>

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

<p>Motion to punish for a contempt.</p>

<p>Officer — Pay of New York city park policeman not affected by chap. 741, Laws of 1894 — Repeal of special by general act.</p> <p>The general act (Laws of 1894, chap. 741), fixing the pay of policemen in cities exceeding 800,000 in population, had no application to or effect upon the pay of a member of the “ park police ” of the city of New York, an independent force appointed, by the city commissioners of parks acting under a special act (Laws of 1882, chap. 410, § 690), the rule applying that a general act does not affect a special one unless there is the clearest manifestation of an intent upon the part of the Legislature to effect a change.</p>

This action is brought by plaintiff to foreclose a mortgage given by the defendant Jones to one Griffiths and of which he executed two assignments, one to the plaintiff and another to one Eobert G. Jones. The latter antedated the former assignment but it was not put on record until after the later assignment had been recorded. The action also seeks, incidentally, to have said assignment to said Jones, of said mortgage, declared invalid, etc.

<p>Action for a separation — Alimony etc. refused.</p> <p>Alimony and counsel fees will be refused a wife in her action, among other things, for cruel treatment and abandonment, where the acts of cruelty took place before the making of a voluntary agreement of separation and are not the gravamen of the action, and where the only abandonment upon the part of the husband, alleged or provable, took place under and according to the said agreement.</p>

Pkooeeding to reach surplus moneys paid into court, arising upon the sale, in foreclosure, of a piece of land known as the Jacob Sharpe farm, instituted in the action by persons claiming to have a lien upon the fund under the following circumstances: Bernard TJ.

<p>Evidence — Receipt “ in full ” not conclusive.</p> <p>A receipt “ in full for all demands to date ” does not conclude the party who executed it from subsequently explaining or contradicting it.</p>

<p>Replevin — In a Justice’s or a City Court, unless plaintiff replevies before judgment, he need not show the value of the chattel — Jurisdiction.</p> <p>Where the plaintiff brings an action in a City Court, whose powers and jurisdiction are analogous to those of a Justice’s Court, to recover a chattel, and does not require it to be replevied before judgment, he need not show, by affidavit, that its value does not exceed the sum of money fixed by statute (Laws of 1893, chap. 563) as the limit of the jurisdiction of the City Court in such an action.</p>

motion to set aside the service of the summons and complaint on the ground that the court had not acquired jurisdiction over the person of the appellant.

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

<p>Appeal from an order of the General Term of the City Court reversing a judgment of the City Court entered upon the verdict of a jury in favor of the plaintiff and ordering a new trial.</p>

Appeal by the plaintiffs from an order of the General Term of the City Court, reversing a judgment in favor of the plaintiffs-entered upon the verdict of a jury, and ordering a new trial.

<p>Appeal by the defendant from a judgment of the General Term of the City Court, affirming a judgment of the City Court rendered in favor of the-plaintiff and entered upon the verdict of a jury, and also affirming an order denying a new trial.</p>

<p>Negligence — Contributory negligence of a driver, confused by street cars coming from opposite directions.</p> <p>A person driving a loaded dirt cart slowly and in an easterly direction, stopped at a street crossing upon seeing a car .approaching on the south-bound track of the intersecting street. After that car had passed he drove on that track, when he saw, some twenty-five feet distant, a car approaching “ kind of swift ” on the north-bound track of the intersecting street. He motioned to the gripman of that car and at the same moment saw another car coming towards him on the south-bound track. He testified “ I saw that I should go on because I could not get back ”. The gripman of the north-bound car, which struck him, testified that he saw the driver stop for the first southbound car and that the driver was not more than ten or twelve feet away when the gripman saw him again, coming from behind the first south-bound car.</p> <p>Held that there was no proof that the corporation controlling the car had been negligent.</p> <p>That the driver was guilty of contributory negligence.</p>

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

Abbeal from an order of the General Term of the City Court of Eew York reversing an order made at the Special Term awarding costs to the plaintiffs.

<p>3. Replevin — Proof aliunde that the chattels in suit were not covered by the defendant’s mortgage does not make the action one in equity to reform the mortgage — The City Court of the city of New York has no equitable jurisdiction.</p> <p>Where a mortgagor has by inadvertence included in a mortgage, of the contents of his saloon, two chattels which were then the property of the mortgagees, proof of other instruments, executed by the mortgagor to correct the error, made in an action brought by the mortgagees against an assignee of the mortgage to replevy these two chattels, does not convert the action into an equitable one to reform the mortgage and thereby oust the City Court of the city of New York of jurisdicion, as the case presented is one where the additional proof is required to complete the transaction, but not to complete the mortgage.</p> <p>3* Same — Evidence — Writings, contemporaneous with a written agreement, may qualify it.</p> <p>Contemporaneous writings relating to the same subject matter are admissible to explain or qualify a written agreement.</p> <p>3. Same — Notice to purchaser of a chattel mortgage.</p> <p>Where such writings have been shown to the assignee of -a mortgage before he took an assignment of it, they are admissible against him in order to prove that he purchased the mortgage with notice of their qualifying effect.</p>

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

<p>Appeal to the Appellate Term — Entry of judgment on order of affirmance necessary.</p> <p>An appeal to the Appellate Term from a judgment of the General Term of the City Court of the city of New York cannot be taken from the order of affirmance alone, as judgment must first be entered on the order and the appeal be taken from the judgment.</p>

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

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

Appeal by the defendant from a judgment rendered in favor ■of the plaintiffs in the Municipal Court, eleventh district, borough of Manhattan.

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

<p>Negligence — Erroneous refusals to charge as to contributory negligence.</p> <p>In an action to recover damages to property caused by a collision with a motor car of a street railroad corporation, it was admitted that the plaintiff’s driver saw the car approaching. The court refused the defendant’s requests for charges to the jury that, if both parties were negligent the verdict must be for the defendant; that the plaintiff was guilty of negligence if the jury believed that when he started to cross in front of the car it was evident to him that he could not pass in safety unless the motorman stopped the car or slackened its speed; and, further, that if the plaintiff saw the car, negligence could not be imputed to the defendant because of a failure to ring the gong.</p> <p>Held that the requests were proper and the refusals to charge them reversible error.</p>

<p>Municipal Court of the city of New York — Jurisdiction — Dismissal of complaint for insufficiency of proof.</p> <p>Where, in an action in the Municipal Court of the city of New York, the plaintiff fails to show that the defendant resides within the territorial jurisdiction of the court, a dismissal of the complaint will be affirmed as one for insufficiency of proof; and the fact that the trial judge assigned a different ground for the dismissal is immaterial, as the propriety of his decision will not be considered on appeal.</p>

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

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

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

<p>¡Negligence — Unexplained accident to a woman, whose skirt caught on a street car after she had alighted.</p> <p>The fact that a passenger, after alighting from a street car, built in 1898 and of the most approved pattern, was dragged along for a distance of about the width of two houses because her skirt was, in some unexplained manner, caught by some part of the car when moving on, affords in itself no proof that the corporation controlling the car had been negligent in the matter.</p>

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

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

<p>Statute of Frauds — Collateral oral promise of attorney that he will pay any judgment his adversay may recover against his client.</p> <p>Where a judgment by default has been taken against a defendant, without negligence upon the part of his attorney, and the latter, as a condition of being allowed to open the default, orally promises the plaintiff to pay any judgment he may recover in the action provided the plaintiff will waive costs and the giving of an undertaking on the default, the oral promise of the attorney is not enforcible, as it is a promise to pay the debt to another. It cannot be deemed original in its nature as it was not beneficial to the attorney, nor was he, when he made it, under any present duty to pay.</p>

<p>Appeal by the plaintiffs from a judgment of the Municipal Court, second district, borough of The Bronx, rendered in their favor.</p>

<p>1. Benefit associations — By-law imposing a reasonable penalty.</p> <p>A by-law of a benefit association, which declares that a member who defaults in the payment of his monthly dues shall be suspended for a period of thirty days from the time when he has put himself in good standing with the treasurer, does not impose an unreasonable penalty.</p> <p>2. Same —■ Penalty not waived by accepting back dues.</p> <p>The association does not, by accepting the back dues, waive its right to insist on the penalty.</p>

<p>Conversion — Exercise of exclusive dominion by the defendant not shown.</p> <p>A Woman ordered a coat of a tailor and paid for it, assuming that it would fit. It would not fit, and after unsatisfactory alterations she left it with the tailor. She subsequently demanded of him the price paid, but never demanded the coat.</p> <p>Held that she had not shown such an exercise, by the tailor, of exclusive dominion over the coat as would support an action against him for conversion.</p>

Appeal by the defendant, James S. Ritt, from orders made in the Municipal Court of the city of ¡New York, sixth district, borough of Manhattan, opening a default.

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

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

<p>Lease — Election of remedies upon a holding over, by a subtenant.</p> <p>Under a demise for a definite term at a fixed rent, a landlord may treat a tenant, who holds over by a subtenant, either as a tenant or as a trespasser; but where the landlord relets the entire premises, after the expiration of the term, to a new tenant, he has made his election and can recover nothing for the period during which the subtenant held over after the tenant had left and before the landlord was enabled to relet.</p>

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

<p>Municipal Court of the city of New York — Jurisdiction — Ousted by order of interpleader granted in an action at law.</p> <p>Where an order of interpleader is granted in an action at-law, brought in the Municipal Court of the city of New York and involving the ownership of a fund, the action is at once converted into an equitable one and the said "court is thereby ousted of jurisdiction.</p>

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

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

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

<p>Application for peremptory writs of mandamus.</p>

<p>Application for leave to remove a body from one cemetery to another. '</p>

<p>Debtor and creditor — Tort of debtor in depriving his creditor of $a security by mortgage — Laches.</p> <p>Where a grantee, after having given his grantor a bond and mortgage upon the premises conveyed as part payment of the consideration, sells the premises to a bona fide purchaser and the latter records his deed before the grantor has recorded his mortgage and before the same has become enforcible by its terms, the grantor may, notwithstanding his laches in not recording his mortgage promptly, recover in tort of the grantee the value of the bond and mortgage as damages sustained by the grantee’s fraud in law in having deprived him of the mortgage security.</p>

<p>1. Affidavit — Execution without, for use within, the State of New York — Foreign notary public.</p> <p>In view of the provisions of section 844 of the Code of Civil" Procedure and of those of the Beal Property Law (Laws of 1896, chap. 547, § 249), an affidavit, executed before a notary public of another State, may be used in an action pending in the courts of the State of New York, where the clerk of a court of record of the proper county of the foreign State certifies that the notary was duly authorized by its laws to take the affidavit and also “ to take acknowledgments and proofs of deeds or conveyances of land, tenements and hereditaments situated and lying in ” that State.</p> <p>2. Alimony.</p> <p>Alimony will not be refused in an action of divorce unless it clearly appears that the husband’s success is inevitable.</p>

<p>1. Vendor and purchaser — Reimbursement of the latter on failure of' title.</p> <p>Where tenants in common of premises, who have contracted to sell the whole estate in the expectation that a hostile co-tenant will join in the sale, are finally met with an absolute refusal in that respect, an innocent vendee, who contracted to purchase upon the basis of obtaining the entire title, may refuse to complete, and is entitled to be repaid his advances, his 'disbursements to an agent who negotiated the contract, and the cost of such repairs and improvements as he made to the premises in good faith and before he had notice that the hostile co-tenant had an interest and would not sell it.</p> <p>S. Same — Fraud, by reckless representations.</p> <p>Where a person makes a representation of a material fact, when he has no knowledge upon the subject, he is liable although he believed his representation to be true and did not intend to deceive.</p>

<p>.Grift causa mortis — Failure to identify the thing given.</p> <p>The clear and convincing proof required to establish a gift causa mortis of a particular savings bank book is not afforded by the testimony of two witnesses, sworn upon the part of a donee who had access to the donor’s bank books, that the donor took an unknown number of such books (not identified by the witnesses), from a bag in the sick room and, handing them to the donee, said “ I am a sick woman and I- know I am going to die. You take these and bury me with this and what is left is yours ”; the rule applying that mere possession of the-chattels of a decedent is not evidence of a gift.</p>

<p>Greater New York charter — Demand for a tort need not be presented before action to the city comptroller — Demurrer.</p> <p>Where a complaint against the city of New York, for personal injuries resulting from negligence, alleges that notice of an intention to sue has been duly given thfe corporation counsel in the manner required by chapter 572 of the Laws of 1886, the complaint need not state that the demand has also been presented to the city comptroller and that he neglected for thirty days thereafter to adjust or pay it (Laws of 1897, chap. 378, § 261). The city comptroller, having no power to adjust an unliquidated demand sounding in tort, the omission to allege a presentation to him cannot make the complaint demurrable.</p>

Plahttiee owned property on the line of the elevated railway, and brought a suit for an injunction and damages. Pending the-action and on April 24, 1893, she sold the property to the defendants, reserving to herself the fee and rental damages.

<p>Lease — Condition, that rent shall be paid only until total destruction, applies to rent paid in advance.</p> <p>A condition in a lease, “ that in case of total destruction of the premises by fire or otherwise, the rent shall be paid up to the time of such destruction ” and that thereupon the lease shall determine, is applicable to rent paid in advance; and consequently, where the demised premises are thus destroyed, the tenant is entitled to a refund of so much of the advance rent as had not been earned at the time of the total destruction.</p>

<p>Interest — Barred by unreserved acceptance of the principal.</p> <p>Where interest is not payable by the terms of a contract and is recoverable only as damages, the unreserved acceptance by the creditor of the principal bars him from subseguently recovering the interest.</p> <p>Rule applied to a case where the answer admitted liability for a part of the principal and the plaintiff procured a severance of the action under Code of Civil Procedure, § 511, and took judgment for such principal only.</p>

<p>1. Action to set aside patents issued under . a State tax sale — Invalidity of sale where all bids, except that of the State, are rejected.</p> <p>Where several pieces of land, assessed as one parcel, after having been advertised for unpaid taxes by the Comptroller and offered by him at a tax sale, are immediately sold to the State and all other bids rejected, because the State claims an interest in some of the individual pieces, no legal sale of the parcel has taken place and the Comptroller has no power to convey under the sale.</p> <p>2. Same — ¡Remedy of an owner of pieces of a tract sold as one parcel.</p> <p>The owner of particular pieces, who has been deprived, by the form of the assessment and by the attempted sale to the State of the whole parcel, from paying taxes upon or buying in his pieces, may maintain an action to set aside patents of the Comptroller based on such sale and conveying'the whole parcel; and, as the defect is jurisdictional, it cannot be cured by any of the statutes which are designed to quiet titles taken at State tax sales.</p>

<p>Action in partition to obtain sale or partition of 1,128 acres in northwest one-fourth of township four (4) Totten & Crossfield’s purchase, Hamilton county.</p> <p>Plaintiff claimed title to an undivided tworthirds of premises described in the complaint, under the Comptroller’s tax sale of 1843.</p> <p>The township is cut by the town line between towns of Arietta and Morehouse, leaving a triangular strip in town of Morehouse, variously estimated to contain from 600 to 1,000 acres, a portion of which might be included in premises claimed by plaintiff.</p> <p>By sales subsequent to the sale under which plaintiff claims title, an undivided one-third of portion in Morehouse became vested in the International Paper Company, one of the defendants, through the defendant Warren Curtis.</p> <p>By a subsequent tax sale by the Comptroller in 1871 the whole township was sold to John F. Rathbone and a portion of the triangular portion in Morehouse was conveyed to the defendant William McEchron, who claimed adverse title to so much of premises claimed by plaintiff, as should lie in town of Morehouse.</p> <p>The claim of adverse title and the Statutes of Limitation as provided by Laws of 1885, 1893 and 1897 were pleaded to controvert plaintiff’s title.</p> <p>Plaintiff introduced evidence claiming taxes to have been paid and the sales of 1866 and 1871 to have been void.</p>

Action to recover installments of rent under sealed lease. Defense — fraud in misrepresenting the amount of rent reserved by a prior lease made to Dean & Co., from whom the defendant had received such prior lease.

<p>Practice, calendar — Plaintiff sole executrix entitled to no preference where she sues also as an individual.</p> <p>Where a plaintiff sues, not only as sole executrix, but also as an individual, she is not entitled to a preference on the calendar, under subdivision 5 of section 791 of the Code of Civil Procedure.</p>

<p>1. Divorce — Insufficient identification of party served with the summons.</p> <p>Proof of the identification of the defendant, in an action for an absolute divorce, consisting in the evidence of the process server that he recognized the person served with the summons from a photograph of the defendant, that the latter admitted his name to be that of the defendant, and that a "third person told the process server that the person served was the defendant, is not sufficient to satisfy the court that the summons was served upon the proper person.</p> <p>2. Same — Basis for alimony.</p> <p>Alimony cannot be granted a wife unless she makes proof as to her husband’s financial status.</p>

<p>Motion for preference in First Department.</p>

<p>Application for an order confirming the report of a referee, .and directing a final decree of distribution, etc.</p>

Action to recover the possession of four wampum belts obtained by defendant through intermediate transfers from an Onondaga Indian.

This is an action of ejectment. The case was tried before the court without a jury. The facts sufficiently appear below.

Motion by defendant for a compulsory reference under section 1013, Oode, upon the ground that the trial of the action will involve the examination of a long account.

<p>1. Schools — Attempt of teacher to procure a pension from a town board — Mandamus.</p> <p>Proceedings taken under chapter 767 of the Laws of 1895, by a petition of twenty-five tax-paying electors of a town and by a town board, in order to provide a pension for a particular school teacher who had served the town for twenty-five years, together with a vote of a town meeting, in favor of a proposition that the town should provide a teachers’ pension fund, not shown to have been passed by a majority of all the taxable electors who voted in any manner at the election, nor to have been preceded by any publication of an intent to present such proposition to the town meeting, afford no authority to the town board to impose upon the town a fiscal obligation to pay a life pension to all teachers who shall have served the town for twenty-five years, nor will the court compel the town'board to do so.</p> <p>Z. Same — Construction of Chap. 767 of the Laws of 1895.</p> <p>Semble, that the statute was designed to pension only such teachers as had already served the town, for twenty-five years at the time when the statute was passed.</p>

<p>Action to restrain defendant, as town clerk, from printing and distributing certain ballots submitting to the electors of the town, at the general election to be held November Y, 1899, the four questions authorized by section 16, chapter 398, Laws of 1899.</p>

<p>Settlement of a case on appeal.</p>

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

<p>^Partition — Allowances in case of actual partition.</p> <p>Where actual partition is made, the court cannot award costs and an allowance to the defendant; but where the latter has succeeded in forcing an actual partition, the court will not allow anything to the plaintiff, but will order the defendant to pay half of the plaintiff’s costs. ' ,</p>

<p>Certiorari to review the refusal of the respondent to grant a liquor tax certificate.</p>

<p>Disorderly child — Commitment in New York city without notice to father — Laws of 1886, chap. 353 — Penal Code, § 291.</p> <p>A child, committed in New York city to a reformatory under the provisions of the special act, Laws of 1886, chap. 353, may be so committed without notice to either parent, as the provisions as to notice, which are contained in section 291 of the Penal Code, do not apply.</p>

<p>1. Action on the liability of a director for failure to file an annual report — “ Existing debt ” — Discount of notes payable to the president personally.</p> <p>Where a corporation is shown to have been in the habit of making notes payable to its president personally and to have paid them, after he had procured their discount, as liabilities of its own, a bank which without inquiry discounted similar notes, whose proceeds have ultimately been received by the corporation, holds a valid “ existing debt ” of the corporation, represented by the unpaid notes. This may be made the basis of an action by the bank to enforce the liability, under the Stock Corporation Law, of a director of the corporation, arising out of its alleged failure to file an annual report.</p> <p>2. Same — Annual report, not stated to be as of January 1st — Filing.</p> <p>A report, purporting on its face to be the annual report of a domestic corporation for the year 1893, although not in terms speaking as of January 1, 1893, should be deemed a report for that year, sufficient under section 30 of the Stock Corporation Law, where it appears that the directors acted in good faith in making it and intended it as a report for 1893, and there is no proof that, either the capital, assets, or debts, of the corporation had changed between the 1st day of January, 1893, and the twenty-fifth day, the date of the report.</p> <p>Where such a report is filed with the Secretary of State during January, 1893, it is not invalidated by the fact that no filing was had in the county clerk’s office until February 1, 1893.</p> <p>3. Same — Liability for debts contracted before report made.</p> <p>The statutory liability which a director incurs, by the failure of his corporation to file an annual report, for debts contracted before a report is made, does not extend to a note of a third party discounted by a bank for the corporation upon endorsement by the latter before an annual report was filed, but which note did not mature and was not protested until after the filing of such report.</p> <p>4. Same — Interest on recovery.</p> <p>Where a creditor recovers in such an action, of a director, interest should be allowed on the recovery.</p>

<p>Action to foreclose a mortgage.</p> <p>Motion by the Lawyers’ Surety Company that plaintiff be required to assign to it the judgment of foreclosure and sale in this action, upon payment of the principal sum due, with interest and costs, and whatever expenses may have been incurred since entry of judgment.</p>

Motion to stay further proceedings in this action until the decision of an appeal now pending in the Court of Appeals in another action between the same parties.

<p>Motion to vacate and set aside a judgment in an action to foreclose a mortgage.</p>

<p>Receiver — Payment of attaching creditors of a foreign corporation, out of the fund attached, of costs awarded them against a trustee of the corporation, who tried to gain possession of the fund to their prejudice.</p> <p>Domestic creditors of an insolvent foreign corporation, in the hands of a foreign trustee for creditors, levied an attachment upon a debt due to it by a domestic corporation, voluntarily dissolved and in the hands of a receiver. Thereafter, in said dissolution proceedings, the debt was adjudged to be due to said foreign corporation to an amount fixed by an order of the court. A substituted trustee of the foreign corporation was thereafter finally defeated with costs in all courts, in the Court of Appeals, by the attaching creditors, in an attempt to have the amount thus fixed declared payable to him as such trustee, and not to the foreign corporation.</p> <p>Held, .that these costs, awarded to the attaching creditors, should :be paid by the receiver out of the fund, in his hands, awarded to the .foreign corporation, and that, to that end, the attaching creditors imight.and must waive the lien of their attachment pro tanto.</p>

<p>Condemnation. — A proceeding in New York city is controlled by the local law in force there at the time when title vests in the city.</p> <p>The local law in force, when title vests in the city of New York under proceedings to condemn land, determines the future conduct of such proceedings ; and, where vesting has occurred before the Greater New York charter took effect, its provisions, as to interest on awards and as to the scope of assessments for benefits, have no application.</p>

<p>Motion by defendant, on a petition, under section 115 of the Banking Law (Chap. 689, Laws of 1892), for an order amending the proceedings by making Thomas Hunter and others, parties defendant, and for an award of costs of the action thus far, and for costs of this motion.</p>

<p>1. Assignment for benefit of creditors — Fraudulent preference.</p> <p>Where a husband gives real property to his wife so that she may-hold it only until such time as he shall need it, money realized by him' upon such property, while it was standing in her name, cannot, many years later, an.d at the time of his insolvency, be lawfully preferred by him, in a general assignment, as loans due to her, and such a. preference is fraudulent as to his creditors.</p> <p>2. Same — Fraudulent payment on the eve of an assignment.</p> <p>His payment to her of interest on such alleged loans, made three days before his general assignment, is an act which is fraudulent as to his creditors, as the money paid is withdrawn from the operation of the assignment and from the reach of creditors.</p>

<p>Demubbeb to complaint.</p>

<p>Action to enforce a lien. Further facts appear in the opinion..</p>

<p>1. Jurisdiction — Intervention of United States district attorney to call the court's attention to its lack of jurisdiction over a foreign nation — Attachment.</p> <p>The courts of the State of New York have no jurisdiction over ah independent sovereign nation which has treaty relations with the" United States.</p> <p>Where an action is brought in such a court against such a nation and an attachment is granted therein, the United States District Attorney for the proper district, may, on instructions from the Attorney-General of the United States and also as amicus curiae, properly intervene in the State court and call i'ts attention to its entire lack of jurisdiction.</p> <p>2. Same — Intervention not governed by Code Civ. Pro., § 682.</p> <p>Section 682 of the Code of Civil Procedure has no bearing upon such an intervention, as the proceeding is not one to vacate an attachment, but is rather a revocation of a writ which was inadvertently granted, which was void a6 initio, and which should not appear on the records of the court.</p>

<p>Application for an order directing the chamberlain to pay to the petitioner herein, who has recently attained her majority, the amount deposited to her credit in this action.</p>

<p>1. Execution — Against the person after five years, where a property execution was timely issued — Code Civ. Pro., § 1377.</p> <p>Where an execution against property has been issued within five years of the rendition of judgment in an action whose nature justifies an execution against the person, and the judgment still remains unsatisfied in part, the plaintiff is authorized by section 1377 of the Code of Civil-Procedure to issue an execution against the "person, although more than five years have elapsed since the rendition of the judgment.</p> <p>2. Same — Discharge — Code Civ. Pro., § 572.</p> <p>The provisions of section 572 of the Code of Civil Procedure do not entitle the defendant to be discharged from arrest under the execution, as that section is applicable only to vacating an order of arrest.-</p>

Motion to strike out the allegations of the answer denying consideration and alleging that it was given for accommodation.

<p>Motion to confirm report of commissioners to appraise land.</p>

<p>Counterclaim — Code Civ. Pro., § 501.</p> <p>Where a complaint seeks to recover o£ the defendants, as sureties of Julius Scharmann, costs of trial and of appeal awarded the present plaintiffs in an action hitherto unsuccessfully brought by him against them as executors of a decedent, the sureties of Scharmann may, as-his assignees, interpose a counterclaim growing out of the surety-ship of the plaintiffs’ testator for a certain administratrix and her failure to pay Scharmann certain costs awarded by a surrogate’s decree to him personally, as well as certain referee’s fees directed to be paid by her but for which Scharmann remains liable, as both the complaint and the counterclaim allege valid causes of action on contract, which may be set off against each other.</p>

<p>Demurrer to complaint</p>

<p>Liquor Tax Law — Presumption that a certificate holder knew that the law was being violated, on her premises.</p> <p>The fact that a, woman, owning a hotel and conducting it by herself or by her husband as her agent, had given orders to him, and to her servants, not to sell beer or liquors on Sunday in violation of the provisions of the Liquor Tax Law of 1896, cannot protect her against the consequence of such illegal sales, where it appears that either she, or her husband, were constantly on the premises, and in or about the kitchen through which the beer or liquors were carried, and must therefore have known of the illegal sales.</p>

Action to recover for labor and material in building houses for the defendants. Motion by the plaintiffs for a new trial on the minutes.

<p>Application by the State Comptroller for a reappraisal, under section 232 of chapter 908, Laws of 1896.</p>

Motion by members of the city council to compel the attorney for relators to accept service of a notice of appeal, served on behalf of said members, from an order made at Special Term, directing that a peremptory writ of mandamus issue to them, compelling them to vote for an issue of bonds, to acquire the plant of the Long Island Water Supply Company.

<p>Demurrer to an answer.</p>

<p>Divorce — Proof of adultery — Abandonment.</p> <p>Proof of adultery must be clear. An abandonment of the plaintiff does not necessarily substantiate such a charge against the defendant.</p>

<p>Action on a promissory note made by defendant.</p>

<p>Decedent’s estates — Reference of claim — Certificate of Unreasonable resistance to payment — When it may be made.</p> <p>As soon as a claim against the estate of a decedent has been referred under the statute (Code Civ. Pro., § 2718) the matter becomes an action in the Supreme Court, and the claimant, if successful, is as matter of right entitled to costs against the executors where the referee certifies that payment has been unreasonably resisted or neglected. Such a certificate may be a paper separate fro.m his report and he may execute it after he has made his report.</p>

<p>Motion for a retaxation of costs.</p>

Appeal by the defendant from a judgment entered against him in Justice’s Court, upon his failure to appear upon a verified complaint served with the summons.

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

<p>Practice — Motion to dismiss complaint must point out the supposed defects.</p> <p>A motion to dismiss the complaint, for want of proof, is not effectual unless it specifies the defects which are supposed to exist, for, if these had been pointed out, the plaintiff might have supplied the proof.</p>

Appeal by the plaintiff from a judgment, entered on the direction of the trial judge, dismissing the complaint. The action was brought by the owner of a canal boat to recover damages in the nature of demurrage, for unreasonable delay in unloading flagstones shipped under a bill of lading. The plaintiff claimed that the defendants, who had hired the boat for such transportation, had then agreed to unload it.

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

<p>City Court of the city of New York — A foreign corporation, plaintiff, must give security for costs — Code Civ". Pro., §§ 3160, 3268.</p> <p>A foreign corporation may be required to give security for costs where it sues in the Oity Court of the city of New York; and, although it has an office and place of business in said city, it is not exempted from giving such security by the provisions of section 3360 of the Code of Civil Procedure, as it is not a “person”, within the meaning of that section, and cannot transact “ business in person ”, but must do so by its officers or agents.</p>

Arread from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from an order denying a motion to set aside the verdict and for a new trial.

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

Appeax from a judgment-, entered upon a verdict directed by the court, and from an order denying a motion for a new trial.

<p>Practice — Affidavit for examination before trial must comply strictly with the statute — Code Civ. Pro., § 872, subs. 1, 4.</p> <p>Where an application is made, during the pendency of an action, for the examination before trial of a party, and of a witness not a j party, the moving affidavit must show a strict compliance with the requirements of section 872 of the Code of Civil Procedure in regard to stating the name and residence of the party and of the witness respectively.</p>

Appeal by the defendant from a judgment, entered upon a verdict directed by the court, and from an order denying a motion for a new trial.

Appeal by the defendant from a judgment of the City Court of the City of New York, in favor of the plaintiff, entered upon a verdict directed by the court after a trial before a jury, and from an order denying the defendant’s motion for a new trial.

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

<p>Supplementary proceedings — Contempt of enjoined debtor in directing her sublessee to pay rent directly to the original landlord.</p> <p>Where a lessee, and judgment debtor under injunction in supplementary proceedings, requests her subtenant to pay her rent directly to the original landlord, and the subtenant complies, the lessee, although she derived no personal profit from the transaction, is guilty of a contempt in having paid, or caused to be paid, a creditor other than the one who took the supplementary proceedings.</p>

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

Appeal by the plaintiff from an order of the General Term of the City Court, reversing a judgment entered upon the verdict of a jury at a Trial Term of the City Court and ordering a new trial.

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

Appeal by the defendant from a judgment of the City Court affirming a judgment in favor of the plaintiff of the trial court, entered upon the verdict of a jury, and from an order affirming an order denying a motion to set aside the verdict and order a new trial.

Appeal by the defendants from a judgment and order of the General Term of the City Court, affirming a judgment of the Trial Term entered upon a verdict directed in favor of the plaintiffs.

<p>Appeal — Appellate Term cannot review the amount of a verdict in the City Court.</p> <p>An appeal to the Appellate Term, from a judgment of the General Term of the City Court of the city of New York, brings up questions of law only, and the propriety of the amount of a verdict, rendered in an action predicated upon negligence, cannot be reviewed.</p>

<p>Time — The phrase “ in three months ” construed.</p> <p>The right to exercise an sption, that “ This contract may be-discontinued in three months”,' exists for only three months from the date of the contract, and when that period has expired a subsequent notice electing to discontinue comes too late.</p>

<p>Pleading — Where an express contract for services is pleaded, an implied one cannot be proved.</p> <p>Where the plaintiff pleads an express contract for services, he cannot, without amending, give evidence upon the trial of an implied contract — based only upon the defendant’s acceptance of the services. The two causes of action are inconsistent.</p>

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

<p>Appeal by the tenant from a final order made in favor of the landlord in summary proceedings for nonpayment of rent, in the Municipal Court, fourth district, borough of Manhattan.</p>

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

Appeal by t]ie plaintiff from an order setting aside the verdict in favor of the plaintiff, after a trial by jury, in the Municipal Court, seventh district, borough of Manhattan.

<p>1. Negligence — Essentials of liability to third party for the fall of a gas-holder.</p> <p>Where a third party, working in an adjoining building, brings an action to recover damages, of a corporation, for personal property which was injured by the fall of a gas-holder upon the building where he was working, and which gas-holder was, as alleged, being constructed for the corporation by contractors, the third party must prove that, at the time of the accident, the corporation owned, or was in possession, or was in control, of the gas-holder.</p> <p>8. Same — Degree of care towards third party.</p> <p>The degree of care which must be exercised toward a third party is merely ordinary care.</p> <p>3. Same — Eall of gas-holder not proof per se of negligence.</p> <p>The fact, that the gas-holder fell, does not in itself raise a presumption of negligence under the doctrine of res ipsa loquitur.</p>

Appeal by the plaintiff from a judgment recovered by the defendant upon a verdict of a jury, in the Municipal Court, ninth district, borough of Manhattan.

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

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

<p>Landlord and tenant — Where the latter abandons, the former cannot, except by agreement, relet during the term and hold the tenant for a deficiency.</p> <p>Unless there is an agreement, either express or implied, that a landlord may relet premises which his tenant has abandoned during the term, the landlord has no right to relet, and, if he does, cannot hold the tenant for a deficiency resulting from a demise to a new tenant, for the balance of the term, at a lower rental;</p>

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

Appeal by the plaintiff from a judgment, in his favor, rendered in the Municipal Court of the City of New York, second district, borough of Manhattan.

<p>Lease — Words expressing a mere agreement to make a lease in the future.</p> <p>Where a landlord seeks to dispossess a tenant for holding over the term, a petition of the tenant, which alleges that the landlord “ promised and agreed to and with said tenant to let ” and that the tenant “ promised and agreed to and with such landlord ” to take the premises for another year, does not present the defense of a right of possession in the tenant, as the said allegations do not set up a lease but only an agreement for a lease.</p>

<p>Witness — Interest in the result.</p> <p>Where a person, who was the plaintiff in an action theretofore brought to procure an attachment on chattels, brings suit on a bond given him in said action by a third party claimant of the chattels, and, in order to overcome the claimant’s proof of title, introduces admissions of the latter made to the plaintiff’s mesne assignors, the claimant has a right to cross-examine these assignors in regard to their pecuniary interest in the result of the action.</p>

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

<p>Lease — Delivery — Contemporaneous parol agreement — Acceptance.</p> <p>Where a lease has never been delivered to an alleged tenant and he has never entered, no action for rent can be maintained against him. In such an action, the tenant may prove a contemporaneous parol agreement, between the parties, that the lease, although signed in duplicate, was not to be delivered until certain repairs had been made upon the premises. Where the rent is payable in advance, the payment of a part of it by the tenant is not, under such circumstances, to be construed as an acceptance by him of the lease, but simply as an earnest that he would fulfill his part of the agreement provided the landlord did likewise.</p>

<p>.Motion to change place of trial from Rensselaer to Steuben county.</p>

<p>Appeal from a judgment of the Municipal Court of Buffalo.</p>

<p>Motion to vacate an execution issued against the person of the defendant.</p>

<p>Examination before trial — Application by the plaintiff to have his own testimony taken — Code Civ. Pro., § 872.</p> <p>Where a plaintiff shows by affidavit the requisites of subdivisions 1 to 4 inclusive of section 872 of the Code of Civil Procedure,, he maiy procure an order for his own examination before trial. The requisite of subdivision 5 of said section, that the person to be examined is about to depart from the State, or is so sick or infirm that he will not be able to attend the trial, applies solely to witnesses, and not to the examination of a party to the action.</p>

<p>Place of trial — As determined by the nature of the action — Code Civ. Pro., § 988.</p> <p>An action for trespass on the demised premises brought by a tenant against his landlord is within section 982 of the Code of Civil Procedure, and must be tried in the county where such premises are situated.</p>

Motion by defendant to open bis default to plead, in order that he may serve a demurrer to the complaint. The action is against the defendant as maker of a promissory note payable at a bank. There is no allegation that the note was presented and payment demanded.

<p>Separation — An agreement providing for a future separation of a husband and wife is void.</p> <p>An agreement, made without the intervention of a trustee, directly betwen a husand and wife, not shown to have been then living apart nor to have been guilty of any marital misconduct towards each other, by the terms of which they “ mutually consent and agree to hereafter live separate and apart from each other ”, is absolutely void; and is unenforcible by the wife as to a certain provision which the husband made therein for her, for her future support and that of their children.</p>

<p>Action for divorce.</p>

<p>1. Divorce — Proof that the real defendant was served.</p> <p>Where the brother of the plaintiff serves the summons, in an action for absolute divorce, upon the defendant wife, he should, although he states in his affidavit of service that he knew her very well, be called as a witness, where she defaults, and be examined as to his knowledge that the person he served was the defendant.</p> <p>8. Same — Not granted on the uncorroborated testimony of the paramour.</p> <p>The court will not grant an absolute divorce upon the uncorroborated testimony of a man who appears and testifies that he himself had intercourse with the defendant wife, as the testimony tff such a man is to be viewed with suspicion.</p>

Motion by the defendants to set aside an order heretofore granted by the county judge of Oneida county, to examine the defendants in proceedings supplementary to execution taken on a judgment of the Supreme Court, on the ground that the order is one for a second examination of the defendants and that the affidavit of the plaintiff is insufficient.

This is a motion made by defendant to vacate an order of arrest granted in the above-entitled action.

<p>Application for a peremptory writ of mandamus against Henry R. M. Cook, as auditor, to compel him to audit the pay-roll of the teachers of Public School Ho. 23 of the borough of Brooklyn for the month of October, 1899.</p>

<p>Motion by the attorney for the plaintiff for leave to prosecute the action in aid of his lien for costs. His affidavit is that the plaintiff and defendant have settled the action, which is for damages for the alienation of the affections of the plaintiff’s wife by the defendant. Nothing was paid in settlement. The plaintiff simply withdrew his action.</p>

<p>Liquor Tax Law — Revocation proceeding must be brought against the actual holder of the certificate.</p> <p>Where a citizen seeks a revocation of a liquor tax certificate, the proceeding must be brought against the person who is, at the time, the holder thereof. Where it is wrongly brought against the original holder, there is no authority for bringing in his duly constituted assignee; and the proceeding must be dismissed.</p>

<p>1. Greater New York charter — Municipal assembly must authorize a supply of water.</p> <p>The administrative officers and departments of the city of New York cannot acquire a supply of water for the city, and furnish it to the inhabitants, without prior authority from the municipal assembly, conferred by legislative enactment upon its part.</p> <p>3. Same — Expenditure of money.</p> <p>The acquisition of such a supply involves an expenditure of money, a matter over which saifl assembly has exclusive jurisdiction.</p> <p>3. Same — Taxpayer’s action to restrain board of public improvements from contracting for a supply.</p> <p>A taxpayer cannot maintain an action, as for a legal fraud, to restrain the city board of public improvements from approving, or voting to approve, a contract which would give a domestic corporation a right to supply water to the city, where it appears that all that has so far been done is that the city water commissioner and said board have investigated -the matter of a water supply, that a contract proposed by a domestic corporation has been submitted to said board for its consideration, and that it has postponed action thereon in order to afford its members an opportunity to investigate the matter.</p> <p>4. Same — Allegations on information and belief.</p> <p>An allegation, on information and belief not stating the sources or grounds thereof, to the effect that the proposed contract is the result of a fraudulent political combination is entirely ineffective for any purpose of pleading.</p>

<p>Motion to continue temporary injunction pendente lite.</p>

<p>Action to recover possession of bank books.</p>

<p>Veteran — Discharge, where Ms specific work has been completed.</p> <p>Where a veteran is hired by a city merely for the performance of a special work and his discharge will create no vacancy, he may be summarily discharged when his services .are no longer required by the city.</p>

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

Motion by defendant in each case for a vacation of the order under which the chamberlain holds certain money. Further facts appear in the opinion.

<p>Amendment — Of answers refused, where it sets up a new defense.</p> <p>Where an application for leave to amend answers, in an action for specific performance, by setting up the new defense that the contract of sale was void under the statute of frauds, is based upon the fact that the defendants and their attorneys have misconceived the theory of the action and have not appreciated the possibilities of proof under the complaint, the court, in its discretion, will not permit the amendment where, in view of the misleading conduct of the defendants and of the equities of the plaintiff, the same would not be in furtherance of justice.</p>

<p>Remainder — Vesting — Not postponed by death of remainderman before life beneficiary.</p> <p>The will of a testator gave certain lots to his executors in trust and directed them to pay the net rents and profits to his adopted son during life. Upon the son’s death, the testator devised the lots to the wife and to the three children of the adopted son “ share and share alike, the issue of such as may have died to take the share which his, her or their parent would, if living, have taken”. One of the remaindermen died before the life beneficiary and devised her share by will.</p> <p>Held, that her devise was valid, as the remainder vested in her at the death of the testator and was not defeated by her death before that of the life beneficiary.</p> <p>That the clause, relative to the right of issue to take the share of a deceased parent, did not postpone vesting until the death of the life beneficiary, but merely meant that, if, at the time of the testator’s death, any devisees were dead, their issue should be substituted.</p>

<p>Municipal Court of the City of New York — Term of Brooklyn justice — Salary.</p> <p>The office of justice of the Múnicipal Court of the city of New-York, borough of Brooklyn, came into existence on January 1, 1898,, when the Greater New York charter went into effect.</p> <p>The fact that that charter continued Justices’ Courts and Justices, of the Peace in Brooklyn until February 1, 1898, and did not give-Brooklyn justices of the Municipal Court possession of their courtrooms until February 1, does not abate the right of such a.justice- | to recover salary for so much of the month of January, 1898, as he was duly in office.</p> <p>A salary is an incident of an office and is due the officer irrespective of the amount of duty performed.</p>

<p>1. Syracuse — Bight of water board to employ special counsel.</p> <p>Under the legislation creating a water board for the city of Syracuse, that board has a right to employ special counsel in intricate and laborious proceedings and litigations which have arisen over the city water supply.</p> <p>2. Same — Compensation of special counsel.</p> <p>Where a taxpayer brings an action to restrain the water board from making further payments to its special counsel, the court will not, on a motion to vacate a preliminary injunction, decide the value of the services, but will leave that question to be decided in the action — permitting the attorneys to become parties thereto.</p>

<p>Statute of Frauds — Consideration for promise to pay the debt of another.</p> <p>Unless a written promise to pay the debt of another has a valuable consideration no action can be maintained upon .the promise.</p>

Action to compel specific performance of contract for sale of certain premises made by defendant Marriott with plaintiff.

<p>Motion by plaintiff for a new trial upon the ground of newly discovered evidence.</p>

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

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

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

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

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

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

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

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

<p>Appeal by the defendant from an order in each action of a justice of the Municipal Court, seventh district, borough of Manhattan, denying motions to open defaults and to vacate judgments therein.</p>

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

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

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

<p>Appeal from a judgment, in favor of the plaintiff, rendered in the Municipal Court of the city of Rew York, fourth district, borought of Manhattan.</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p>Appeals from judgments rendered in favor of the plaintiff» in the Municipal Court of the city of Hew York, ninth district, borough of Manhattan.</p>

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

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

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

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

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

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

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

Appeal by the defendant from a judgment of the City Court of the city of Hew York, entered on a verdict for the plaintiff and from an order denying a motion for new trial. The action was for services alleged to have been rendered in the political campaign of the fall of 1898. The defendant was an unincorporated association, consisting of more than seven members, and was sued by its treasurer.

Appeal by the defendant from a judgment, entered on a verdict of a jury, and from an order denying a motion for a new trial.

Appeal by defendant from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for new trial.

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

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

<p>Appeal from orders.</p>

<p>Appeal by the plaintiff from a judgment dismissing the complaint, and from an order denying a motion for a new trial.</p>

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

<p>Appeal from a judgment in favor of the plaintiff after a trial before a jury, and from an order denying the defendant’s motion for a new trial.</p>

<p>Appeal by the defendant from a judgment rendered by the direction of the court.</p>