Volume 29 — New York Supplement

<p>1. Negligence—Pleading.</p> <p>In an action for injury to the person, a complaint is bad in substance which omits to charge the defendant with a negligent act causing the injury, or which shows that negligence of the plaintiff concurs with negligence of the defendant in causing the injury.</p> <p>2. Same—Boarding Moving Train.</p> <p>The voluntary boarding of an elevated railway train when in motion is an act of contributory negligence.</p> <p>3. Same—Invitation to Incur Peril.</p> <p>An invitation by the defendant is no excuse to the plaintiff for incurring a peril as obvious to him as to the defendant.</p> <p>(Syllabus by the Court.)</p>

Action by Anna C. Kley against John W. Healy to cancel a satisfaction of a judgment, a release, and a countermand of' execution, on the ground that they were procured by fraud. There was a judgment in favor of plaintiff, and defendant appeals.

Action by David Boyd, as administrator, against Robert Boyd, on a judgment. From a judgment of the city court (27 N. Y. Supp. 942) affirming a judgment entered on a verdict in favor of defendant, plaintiff appeals.

Action by Louis T. Helwig against the Second Avenue Railroad -Company for personal injuries. From an order granting a new trial on the ground of surprise and newly-discovered evidence, plaintiff appeals.

Action by John Horan against the Central Park, North & East River Railroad Company for personal injuries. There was a judgment in favor of defendant, and plaintiff appeals.

Action by John Duggan against the Third Avenue Eailroad Company. Prom a judgment of the city court (28 N. Y. Supp. 598) affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals.

Action by Charles E. Bonwell against Thomas Auld to recover •commissions for procuring an exchange of real estate. From a judgment of the city court (27 U. Y. Supp. 936) affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals.

Action by John Morris against William H. Barrisford to recover damages for personal injuries caused by the fall of an awning attached to defendant’s premises, and projecting over the sidewalk along which plaintiff was passing. The court compelled plaintiff' to elect between a cause of action for negligence and a cause of-' action for nuisance.

Action by Jane McKenzie and another against Loftus D. Hatton, impleaded. From an interlocutory judgment overruling a demurrer to the complaint for insufficiency in substance and misjoinder of causes of action (20 N. Y. Supp. 873), defendant appeals. The complaint, so far as material, is as follows: “Sixth.

Action by Antonio Guliano against John H. Whitenack for personal injuries. From a judgment entered on a verdict in favor of. plaintiff, and from an order denying a motion for a new trial, defendant appeals. For former report, see 22 N. Y. Supp. 560.

<p>Appeal from special term.</p> <p>Action by John R. Foley against Abraham G-. Jennings. From •an order directing a bill of particulars to be filed, plaintiff appeals.</p>

Action by Sarah L. Cable against Roger V. Bonnell for rent. A judgment in favor of plaintiff was rendered by a justice without a jury, and defendant appeals.

Action by George Baumiller against the Workingman’s Co-onerative Association on a policy of insurance. There was a judgment, in favor of plaintiff, and defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by John C. Kinkele and another against Emma Giles Wilson for an accounting of moneys received. There was a judgment in favor of defendant, and plaintiffs appeal.</p>

<p>1. Pbincipal and Agent—Authority op Agent.</p> <p>Where defendant, to whom plaintiff applied for employment, refers him, with full knowledge of his application, to a third person, defendant is chargeable with the acts of such third person in regard to the application.</p> <p>2. Appeal—Objections not Raised Below.</p> <p>Where evidence offered for a certain purpose was excluded, its admissibility for other purposes will not be considered on appeal.</p>

Action by Frederick S. Myers against Moses S. Rosenback, brought in a district court, and removed to the court of common pleas. From an order allowing matter of supplemental pleading to be incorporated in the answer by amendment (28 N. Y. Supp.), plaintiff appeals.

Action by Simon S. Stern and another against Abraham Meyer and another. From an order denying defendants’ motion to be discharged from the judgment entered against them, on the ground that the judgment and claim were discharged by defendants’ discharge in bankruptcy, and ordering a reference on the question whether the debt or claim in suit was created by the fraud of the defendants, or either of them, defendants appeal.

<p>Appeal from trial term.</p> <p>Action by George Baber against the Broadway & Seventh Avenue Bailroad Company for loss of services of plaintiff’s son. From a judgment entered on a verdict in favor of plaintiff, and from ¡an order denying a motion for a new trial, defendant appeals.</p>

Action by John J. Brady, as administrator, against the Prudential Insurance Company of America on a policy of life insurance. From -a judgment rendered by a justice without a jury in favor of plaintiff, •defendant appeals.

Action by Harriet A. Brady, as executrix, and James Winterbottom, executor, of Alfred Brady, deceased, against Patrick Cassidy and I. Richard Adler. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, defendants appeal.

Action by Giovanni Amato, an infant, by Matthew De Sfephano, his guardian ad litem, against the Sixth Avenue Railroad Company, for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals.

<p>1. Appeal—Review—Decision op District Court.</p> <p>Decision of a justice of a district court on conflicting evidence will not. ■ be-disturbed on appeal.</p> <p>3. Landlord and Tenant—Renewal of Lease—Waiter of Notice. _</p> <p>_ The holder, of a lease which provided for its renewal on certain notice to the landlord represented to the landlord that the lease was lost, and requested “something to show” the lease. Thereupon the landlord signed a paper reciting that the premises were leased for a certain term, with the privilege of renewal, but not stating that any notice of the renewal was required. Held, that the stipulation in the lease for notice of renewal was not thereby waived.</p>

<p>Appeal from ninth district court.</p> <p>Action by Fannie Kahn against Leopold L. Weill for breach of warranty. There was a judgment in favor of defendant, and plaintiff appeals.</p>

Action by Jacob Fuerst, treasurer of the Furriers’ Union, against Simon Jacobson, for money had and received. From a judgment rendered by a justice, without a jury, in favor of defendant, plaintiff appeals.

<p>Dabeiebs op Passengebs—Steamboats—Liability as Innkeepeb.</p> <p>Where money for traveling expenses carried by a passenger on a steamboat is taken from his stateroom at night, the owner of the -boat is liable therefor, without proof of negligence on his part, the liability of a carrier toy water being analogous to that of an innkeeper.</p>

Action by August T. Hirt and Paul Hagdorn against Passie M. Vincent, impleaded. From a judgment of the city court (27 N. Y. Supp. 258) affirming a judgment in favor of plaintiffs, defendant Passie II. Vincent appeals.

<p>1. Pleading—Amendment—Increasing Amount Sued for.</p> <p>An amendment on the trial in a district court of New York City by including the amount claimed in another action in the same court, though it increased the amount to a sum which entitled defendant to a removal to the court of common pleas, deprived him of his opportunity to claim such a right, and was therefore improperly granted.</p> <p>% Same—Changing Cause of Action.</p> <p>An amendment which changes the cause of action from a demand for wages to one for breach of contract states a new cause of action.</p>

Smith against Charles E. Maxfield for rent, and for damages to the leased premises. There was a judgment in favor of plaintiff, and defendant appeals.

Action by Mary Hanlon against the Metropolitan Life Insurance Company on a life insurance policy. From a judgment rendered by' a justice without a jury in favor of plaintiff, defendant appeals.

Action by Smith A. Brooker and another against John Filkins. From a judgment of the city court (25 N. Y. Supp. 514) affirming a judgment in favor of defendant, plaintiffs appeal.

Action by John Hutton against Jeremiah C. Murphy and others to recover for injuries to personal property, occasioned by the negligence of defendants’ servant while engaged in driving a team. From a judgment rendered by a justice without a jury in favor of plaintiff, defendants appeal.

Action by Michael G-. Kuhn against the American Automatic Knife & Novelty Company for money due on a contract for work and materials. From a judgment rendered by a justice, without a jury, for plaintiff, defendant appeals.

Action by Arrowitz Wolff and others against Edward C. Horn and others. From an order retaxing plaintiff’s bill of costs, and disallowing certain sums paid the referee and stenographer, plaintiffs appeal.

<p>Parol Evidence—Personal or Representative Obligation.</p> <p>Where a receiver executes a bond by which he binds himself personally to indemnify his surety on an undertaking for costs in an action brought by him as receiver, he cannot show by paroi evidence that the indemnifying bond was a representative,' and not a personal, obligation. 25 N. Y. Supp. 487, affirmed.</p>

<p>1. Trial—Waiver op Jury apter Trial has Begun.</p> <p>It is not a mistrial where, after the trial had commenced before a jury, and they had found on several questions submitted to them, the jury was-waived by consent of both parties and further findings of fact made by the-court.</p> <p>2. Negotiable Instruments—Bona Fide Holders.</p> <p>In an action on a check there was evidence that defendant gave the check postdated to one G. for the price of stock of a corporation, under an agreement that G. should not use the check until defendant had further considered the purchase of the stock; that defendant was induced to give the check by representations of G. as to prosperity of the company, which was in fact insolvent; that the cashier of plaintiff bank knew of the negotiations between defendant and G.; that G. immediately procured the-check to be discounted by plaintiff, and placed the proceeds to the credit of the company, which was largely indebted to plaintiff. Held, that a finding that plaintiff was not a bona fide holder for value was sustained by the evidence, though plaintiff’s cashier denied that he knew of the negotiations between defendant and G.</p> <p>3. Same—Question op Fact.</p> <p>In such case, it is a question of fact whether plaintiff was a bona fide holder for value.</p> <p>4. Corporations—When Chargeable with Knowledge op Oppicers.</p> <p>Where the cashier of a bank conspires with a third person to sell worthless property to defendant at par in order that the proceeds may be applied to the payment of a debt due the bank, the bank is chargeable with the knowledge that the cashier had of such conspiracy. Mayor v. Bank, 18 N. E. 618, distinguished.</p>

<p>Contracts—Interpretation—Publication or New York Beports.</p> <p>Code Civ. Proc. § 211, provides that a contract for the publication of the reports of the court of appeals shall provide for such publication fonthree years after the expiration of the time specified in the last contract. A contract with defendant made pursuant to such section provided that defendant, after publication of any volume, should, under a penalty, keep-on hand and sell the same at a certain price to any person desiring to-purchase. Held, that such contract required defendant to keep the books-on hand only during the three years for which contract was made, and; for such reasonable time thereafter as should be required to finish books-in process of completion at the expiration of the three years.</p>

Certiorari by the Singer Manufacturing Company, a foreign corporation, to review an assessment of taxes made by Edward Wemple, comptroller'of the city of New York, under the law of the year ending November 1,1890.

Certiorari by the Singer Manufacturing Company, a foreign corporation, 'to review an assessment of taxes made by Edward Wemple,. comptroller of the city of New York, under the law of the year ending November 1, 1890.

Application by Daniel De Camp to lay out a highway in the town of Lansing, and assessment of damages therefor.- The application was granted, and Edwin B. Weeks, John H. Miller, and Elizabeth J. Miller appeal.

Action by Levi M. Algase against the Horse Owners’ Mutual Indemnity Association of Rochester, N. Y. From a judgment for $56.65 damages and for costs, and declaring “that the defendant is entitled to be subrogated to all the rights of the said plaintiff on his said claim against John T. Brooks, including any security which he may hold against said Brooks,” defendant appeals.

Action by Anna Sullivan against the city of Syracuse for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $200, and from an order denying a motion for a new trial on the minutes, defendant appeals.

<p>Appeal from circuit court, Oneida county.</p> <p>Action by Francenia Lanphere against Jackson Clark for slander.. From a judgment entered on a verdict in favor of plaintiff for $500,. and from an order denying a motion for a new trial, defendant "appeals.</p>

<p>Sale—Action for Price—Evidence.</p> <p>In an action for the price of dies to be used in making gas burners, it appeared that the contract between the parties required dies, to make burners like a sample given to plaintiff. Plaintiff’s witness testified that all the articles mentioned in the contract were complete, but he also stated on cross-examination that the dies would not make burners like the sample. Held, that the complaint was properly dismissed.</p>

Van Nostrand, to enable affiant to prepare his complaint in an action to be brought by him. From an order denying a motion to vacate an order for the examination, said Van Nostrand appeals.

Two actions by John Henry Hull against the New York Elevated Railroad Company and another for an injunction, and to recover damages to plaintiff’s houses and lots known as “Nos. 244 .and 246 East Thirty-Fourth Street.” From a judgment awarding an injunction unless defendants pay $3,000 as fee damages, and $1,500 rental damages, to each of the houses, defendants appeal. Judgment in action No. 1 modified, and judgment in action No. 2 affirmed.

<p>Appeal from special term, New York county.</p> <p>Action by the Lackawanna Mills against Samuel Weil and others for breach of contract. From a judgment entered on a verdict in favor of plaintiff for $934.17, and from an order denying a motion for a new trial, defendants appeal.</p>

Action by Charles E. Foster and Frank L¡ Freeman, composing the firm of Foster & Freeman, patent attorneys, against John W. Book-waiter for professional sendees. There was a judgment in favor <of plaintiffs, and defendant appeals.

Action by Robert M. G-. Walford against Frank C. Harris, individually and as trustee, and another, for an accounting. From an interlocutory judgment in favor of plaintiff, defendant appeals.

Action by Robert M. G-. Walford against Frank 0. Harris, individually and as trustee, and another, for an accounting. From an order adjudging defendant Harris guilty of contempt, said defendant appeals.

Action by the Southern Cotton Oil Company against the Prudential Fire Association of New York. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendant appeals.

<p>Appeal from special term, New York county.</p> <p>Proceeding by George H. Adams and another, as executors, against Stephen H. Olin and another, as executors. From so much of two orders as allowed defendants costs as in an action, plaintiffs appeal.</p> <p>For former reports, see 16 N. Y. Supp. 131, 18 N. Y. Supp. 899, and 21 N. Y. Supp. 1122.</p>

Action by Albro Akin against Ezra M. Meeker and others for breach of contract. From a judgment entered on a verdict for plaintiff by direction of the court for $3,808.64, and from an order denying a motion for a new trial, defendants appeal.

<p>1. Wills—Signature of Testator after* Attbstat-on Clause.</p> <p>Signature by testator after attestation clause is at the end of the will', within 2 Rev. St. p. 63, § 40.</p> <p>2. Same—Proof of Execution.</p> <p>Where the testimony of one subscribing witness shows due execution of the will, it is sufficient, though the other witness says that she did not observe the facts necessary to show compliance, but does not positively deny them.</p>

<p>Corporations—Reorganization—Powers of Committee.</p> <p>Where a reorganization agreement makes the reorganization committee agents of the signers of such agreement, notice to the committee of matters pertaining to the reorganization is equivalent to a notice to the signers.</p>

Action by Cordelia Á. Martens and others against Elizabeth H. Rightmire and others to set aside a deed. There was a judgment in favor of plaintiffs, and defendants appeal.

Action by Elizabeth Fisher against William Rankin for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Robert J. Hoguet and others against Ewald Mommer and others for the price of goods sold and delivered. The complaint was dismissed, and plaintiffs appeal.

Action by Robert 0. Black and others against Henry McAleenan and others, to recover a diamond necklace, or its value, alleged to have been delivered by plaintiffs to one Eustace, in order that said Eustace might show it to a proposed customer, and pawned by Eustace to defendants. Plaintiffs’ motion for a further bill of particulars giving the name, address, business, and financial standing of the proposed customer was granted, and plaintiffs appeal.

Action by Hannah Springer against Robert E. Westcott, as president of the Westcott Express Company, to recover a trunk and contents alleged to have been lost by defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Ignatz Boskowitz and others against Robert J. Behr for price of goods sold and delivered. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion-for a new trial, plaintiffs appeal.

<p>Contracts—Agreement to Use Electric Lights—Breach.</p> <p>An agreement by defendant to use plaintiff’s electric lights in certain premises, “to the exclusion of other electrical illumination,” is not an absolute requirement that defendant shall use the electric lights, but only that he shall not use any electric light other than plaintiff’s, and defendant is not liable for breach of contract where he removes from the premises specified, and refuses to use plaintiff’s electric light therein.</p>

Action by Rosa Flood against Sarah Cain, individually, and as guardian of Nellie Cain, Sarah Cain, Rosa Cain, Julia Cain, and Annie Cain, infants; Michael Cain and Patrick Rooney, as executors of Peter Cain, deceased; and said Nellie Cam, Sarah Cain, Rosa Cain, Julia Cain, and Annie Cain, infants,—to set aside a deed. From a judgment dismissing the complaint on the merits, plaintiff appeals.

Application by John Miller for writ of mandamus to the justices of the court of general sessions to reinstate relator as court attendant. The application was denied, and relator appeals.

<p>Appeal from circuit court, Hew York county.</p> <p>Action by the Corn Exchange Bank of City of Hew York against the American Dock & Trust Company on certain papers purporting to be warehouse receipts issued by defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.</p>

Application by Henry Keteltas against Asbbel P. Fitch, comptroller; for peremptory writ of mandamus. The writ was granted, and defendant appeals.

<p>Trusts—Sale of Trust Property—Notice.</p> <p>Under 4 Rev. St. (8th Ed.) p. 2439, § 65, providing that an order to sell land held in trust shall not be granted unless a notice in writing stating the time and place of malting the application for leave to sell has been, served on the “beneficiary or beneficiaries” at least eight days before making the application, a notice served on the life beneficiary of a trust estate, but not on the remainder-men, is insufficient.</p>

<p>Witness—Privileged Communication—Transactions with Decedent.</p> <p>Under Code Civ. Proc. § 829, providing that a party to an action shall not testify in his own behalf against .the executor or administrator of a deceased person concerning a personal transaction or communication between the witness and decedent, plaintiff cannot testify that he did not have with decedent a conversation to which defendant’s witness testified.</p>

<p>Parties—Waiver oe Ob.i ecttonr—Stipulation.</p> <p>Stipulation by defendant that the complaint is in proper form waives the objection that the action was not brought by the proper parties, where .such objection appears on the face of the complaint.</p>

Action by Charles T. Barney and Helen T. Barney against the mayor, aldermen, and commonalty of the city of New York to recover taxes paid. Defendant moves for a new trial on exceptions ordered to be heard in the first instance at general term.

Action by Charles T. Barney, as administrator of Ashbell H. Barney, deceased, against the mayor, aldermen, and commonalty of the city of New York, to recover taxes paid. Defendant moves for a new trial on exceptions ordered to be heard in the first instance at general term.

<p>Counterclaim—Debt not Due—Insolvency.</p> <p>After defendant had given the note in suit, payable on demand, to the assignee for bepefit of creditors, for goods purchased by defendant from the assignor, the assignment was set aside at the suit of a creditor as fraudulent, and a receiver was appointed. Held, that a draft on the assignor, owned by defendant, which was not due when the assignment was made, but which matured before it was set aside, was not allowable as a counterclaim in an action by the receiver on the note.</p>

Action by David J. Lees, as receiver of the property and assets of Daniel H. Wickham, George S. Wickham, and Samuel E. Turner, against Eldin B. Hayden and Anna Hayden. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendants appeal.

Action by Lewis C. King against John Townshend, impleaded with Mary H. Townshend. From an interlocutory judgment overruling a demurrer to the third defense in the answer of defendant John Townshend, plaintiff appeals.

Action by Charles M. Ward against the New York Life Insurance Company. From an order denying a motion for the inspection and discovery of the books of the defendant before service of the complaint, plaintiff appeals.

<p>Injunction—Against Maintenance of Bridge.</p> <p>An injunction to restrain defendant railroad from maintaining a street bridge and approaches over its tracks will not lie at the suit of an owner of property on such street, where it appears that the bridge was constructed under a statute (Laws 1872, c. 702) which authorized and required defendant to construct such bridges as would render traveling along streets crossing its tracks safe and convenient, the expenses to be paid one-half by the city and one-half by defendant, and that, after the bridge was constructed, the city assumed control over it, and defendant neither used it nor exercised any control over it, since a judgment in such case against ■defendant would be unavailing.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by Miles M. O’Brien and James G-. Cannon, as receivers of the Madison Square Bank, against Ronald T. McDonald and Ft. Wayne Electric Company, on promissory notes. From a judgment dismissing the complaint, plaintiffs appeal.</p>

<p>1. Homicide—Evidence—Conversation between Deceased and Defendant.</p> <p>On a trial for manslaughter, where it appeared that the immediate cause of death was a miscarriage, alleged to have been produced by an assault and battery committed by defendant, evidence that deceased said to defendant that he was the cause of her death, and that he said he was sorry for what he had done, is admissible.</p> <p>2. Same—Proof of Cause of Death.</p> <p>Where evidence that the injuries inflicted by defendant were sufficient to produce the complication which resulted in death, and there is no evidence of any other cause, the evidence is sufficient to sustain the finding that the complication was produced by such cause.</p>

Action by George G. Williams and another, executors, against Katherine Van Wyck Haddock, impleaded, for specific performance of a contract to convey land. There was a judgment in favor of plaintiffs, and defendant appeals.

<p>Negotiable Instruments—Notice of Nonpayment.</p> <p>Authority of a notary public to send a notice of nonpayment of a note is shown by evidence that the husband of the holder of the note brought it to the office of her attorney, where the notary had his place of business, and told the notary of the presentment and nonpayment, and that after-wards plaintiff’s attorney came in, and he and the notary talked the matter over, and it was decided to send the notice, it appearing that the notary did not certify to a protest of the note, but simply gave notice to the indorser that the note had been presented and payment had been refused.</p>

Action by Isabella Tucker Newell, Ella V. A. Dayton, and Sarah B. Tucker (by Victoria A. Johnson, her guardian ad litem) against the Manhattan Railway Company and another, for an injunction, and for damages to plaintiffs’ premises, known as “Nos. 123 and 125 West Broadway.” From a judgment awarding plaintiffs $5,795.36 damages, and enjoining the operation of defendants’ railroad unless defendants pay $7,500 for a conveyance of the easements taken and impaired by them,…

Application by the board of street opening and improvement of the city of New York, for and on behalf of the mayor, aldermen, and •commonalty of the city of New York, relative to the opening of 173d street from 10th avenue to the Kingsbridge road, in the Twelfth ward of the city of New York. From an order confirming the report of the commissioners of estimate and assessment, petitioner appeals.

<p>Costs—Action Involving Title to Land.</p> <p>In an action by landlord against his tenant for conversion of timber on the premises, a denial in the answer of each and. every allegation of the complaint does not put plaintiff’s title in issue, though the complaint alleges that plaintiff was seised in fee simple, as such.allegation is not necessary to plaintiff’s right to sue.</p>

Application by John O’Brien for writ of habeas corpus to Melvin J. Woodworth, sheriff of the county of Wyoming. From an order refusing to discharge petitioner from imprisonment, and remanding him to the custody of the sheriff, petitioner appeals.

Action by Vincent M. Allen against Edward 0. Lardner and Ida M. Lardner, his wife, and others. From the judgment dismissing the complaint, plaintiff appeals.

Action by George W. Luce, as administrator, against Oscar A. Burchard and others, to foreclose a mortgage. From a final order directing the distribution of surplus moneys arising on the foreclosure sale, defendant Sarah J. Decker and the infant defendant, Jane A. Burchard, appeal.

Action by the Employers’ Liability Assurance Corporation, Limited, against the Employers’ Liability Insurance Company of the United States and others. From a judgment dismissing the complaint on the merits, plaintiff appeals.

<p>Appeal from special term, Hew York county.</p> <p>Application by the Manhattan Railway Compány against Henry M. Taber, Cornelia F. M. Taber, Adelaide H. Toel, Florence T. Holt, Henry Taber, Edward M. Taber, Charles Taber, and Robert S. Taber, impleaded, relative to acquiring title to premises known as-“Hos. 137, 139, and 141 Pearl Street.” From so much of a final order confirming the report of commissioners appointed to appraise the damages as denied the right to costs the landowners appeal.</p> <p>For former report, see 27 H. Y. Supp. 860.</p>

<p>Appeal from special term, New York county.</p> <p>Action by John Dunbar Wright, Mary B. Corlies, Annie A. Mason, Henry Coolidge, and Howard K. Coolidge, Sarah W. Coolidge, and George G. Coolidge, by their guardian, Henry Coolidge, against the New York Elevated Railroad Company, the Metropolitan Elevated Railway Company, and the Manhattan Railway Company for an injunction and damages to plaintiffs’ premises known as ‘‘No. 304 Pearl Street.” From a judgment awarding plaintiffs §2,550 for trespass on the street easements appurtenant to plaintiffs’ premises, and restraining the operation of defendants’ railroad unless defendants pay §6,000 for conveyance of easements taken and impaired by them, defendants appeal.</p>

<p>' Whartes—Dangerous Condition—Liability of Lessee from City.</p> <p>The lessee of a wharf from the city of New York is liable for injuries caused by its dangerous condition to any one who goes thereon, where the-wharf extended out from a public street, and there was nothing to indicate the character of the lessee’s possession, or that it intended to exclude the public therefrom.</p>

<p>Appeal from circuit court, Hew York county.</p> <p>Action by Antonio Bernardi against the New York Central & Hudson River Railroad Company for personal injuries. The complaint was dismissed, and plaintiff appeals.</p>

Action by the Christopher & Tenth Street Railroad Company and others against the Twenty-Third Street Railway Company and others-for an injunction. From a judgment dismissing the complaint on the merits, plaintiff appeals.

Action by William Francisco against the Troy & Lansingburgh Railroad Company. Plaintiff was standing on the steps of the front platform of a car, and fell off while the car was rounding a curve. From a judgment entered on a verdict in favor of plaintiff, defendant appeals.

Action by Jennie M. Wood against the American Fire Insurance Company of Philadelphia on a policy of fire insurance. There was a judgment in favor of plaintiff, and defendant appeals.

Action by James Shaw, as trustee, against the Saranac Horse-Nail Company. From an order modifying the report of a referee, and, as modified, confirming the same, defendant appeals.

Controversy between the American Society for the Prevention of Cruelty to Animals, as plaintiff, and the city of Gloversville, as defendant, submitted on an agreed statement of facts, under Code Civ. Proc. § 1279. Judgment for plaintiff.

Action by the people of the state of New York against the Milk Exchange, Limited, to procure the dissolution of defendant, and forfeiture of its franchise, under Code Civ. Proc. §§ 1785 and 1798. There was a judgment for defendant, and plaintiff appeals.

Proceeding for taxation of the estate of Nicholas Bailéis under the transfer tax act. From an order assessing the tax, certain legatees appeal.

<p>Appeal from circuit court, Kings county.</p> <p>Action by Samuel M. Barnett against Charles Scribner & Sons. An order of reference was granted, and plaintiff appeals.</p>

Action by Jennie L. M. Woods against Charles Reiss, impleaded with others, to foreclose a mortgage. There was a judgment in favor of plaintiff, and defendants appeal.

<p>Appeal from court of sessions, Albany county.</p> <p>Michael Pillion, alias Michael Finnerty, convicted of unlawful voting, appeals.</p>

Action by the city of Schenectady against Catharine A. Furman • and another, as executor and executrix of Robert Furman, deceased. The complaint was dismissed, and plaintiff appeals.

Edward Christian was convicted of arson in the first degree, by burning the dwelling house of one Martha Slocum, and from an order denying a motion for a new trial, and from a judgment of conviction, he appeals.

Action by Emma M. Haskins, as administratrix of Martin Has-kins, deceased, against the New York Central & Hudson River Railroad Company, to recover damages for the alleged negligent killing of plaintiff’s intestate. A nonsuit was granted at circuit, and plaintiff moves for a new trial, on a case and exceptions ordered to be heard in the first instance at general term.

<p>Pleading—Denial on Information and Belief.</p> <p>In an action on a note given 30 years before, a denial by defendant of “any knowledge or information sufficient to form a belief as to each and every allegation in the complaint contained” will not be stricken out as frivolous, as denials on information and belief are authorized by Code Civ. Proc. § 500, subd. 1.</p>

<p>Appeal from first district court.</p> <p>Action by Stephania S. Seymour and another against Louis Picus and another. From a judgment in favor of defendants, plaintiffs appeal.</p>

<p>Appeal from special term, Clinton county.</p> <p>Action by John J. Sheldon against Rufus Heaton. From an order striking out of defendant’s answer the denial, defendant appeals.</p>

<p>1. Appeal—Review—Weight of Evidence.</p> <p>The decision of a district court on conflicting evidence will not be disturbed on appeal.</p> <p>S. Evidence.—Declarations—Officer of Corporation.</p> <p>In an action against a corporation, declarations of its president, though not admissible as evidence in chief against the corporation, are admiss.ble on cross-examination to impeach the president as a witness.</p>

<p>1. Covenant of Seisin—Burden of Proving Breach.</p> <p>Tlie burden of proof in an action for breach of covenant of seisin is on-plaintiff.</p> <p>2. Same—What Constitutes Breach—Encroachment of Buildings.</p> <p>In a conveyance of premises by metes and bounds, “with the build ngs and improvements thereon erected,” a covenant of seisin is not broken by the fact that the buildings encroach on the adjoining premises.</p> <p>8. Same—Incumbrances.</p> <p>A purchaser cannot recover more than nominal damages against his vendor on a covenant against incumbrances merely on proof that the buildings on the premises conveyed encroach on the adjoining premises,, without showing that he has paid off or discharged any incumbrance.</p> <p>4 Same—Evidence.</p> <p>In an action for breach of covenant of seisin by virtue of an alleged encroachment of the buildings on the adjoining premises, evidence that plaintiff had made a contract to sell the premises, and that the purchas.r refused to accept on account of such encroachment, is not admissible, as plaintiff’s damages, if anything, are the difference in value between the-building with and without the encroachment.</p>

Action by Harlan P. Smith against Peter Wagner for rent. From a judgment of the city court (27 N. Y. Supp. 423) affirming a judgment in favor of plaintiff, defendant appeals.

<p>1. Contract—Offer and Acceptance.</p> <p>Defendant offered to sell to plaintiff a quantity of tin at a certain price, to which plaintiff replied, “We accept your offer, if full-weight plates.” Held, that the acceptance was conditional, and did not constitute a contract. 27 N. Y. Supp. 143, affirmed.</p> <p>2. Same—Meeting of Minds.</p> <p>Acceptance of an offer does not show a meeting of the minds of the parties where the party accepting the offer, on the subsequent presentation of a written contract for him to sign, containing the terms of the offer, made certain alterations therein which the other party refused to accept.</p>

<p>Appeal from city court, general term. •</p> <p>Action by John Frederick Schwann and another against George W. Clark. From an order of the city court (27 N. Y. Supp. 2G2) .affirming a judgment in favor of plaintiffs, defendant appeals.</p>

<p>Appeal from first district court.</p> <p>Summary proceedings by Alfred Stover against Raphael Chasse. There was a final order in favor of plaintiff, and defendant appeals.</p>

Action by Johann August Kujek against Manassah L. Goldman, impleaded. From a judgment of the city court (25 ¡N. Y. Supp. 753) affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals.

<p>Street Railroads—Starting Car while Person is Crossing Track.</p> <p>It is negligence to start a cable car while a person is driving across the track a short distance in front of the car.</p>

Action by Otis L. Remington against Edward H. Van Ingen and others to recover damages for alleged breach of contract for plaintiff’s employment. From a judgment of the city court (20 H. Y. Supp. 878) affirming a judgment entered on a verdict in favor of plaintiff, defendants appeal.

Action by Caroline Jaeger, as executrix, against the Bowery Bank of New York to recover $1,620.48, alleged to have been left by testator in defendant bank. Defendant set up as a counter-claim, a note for $3,000, discounted by defendant for testator, and which became due after his death. Plaintiff demurs to the counterclaim.

Proceeding, on the relation of William B. Baldwin, against Caroline M. Miller, otherwise known as Mattie Bodman and Mrs. Brink, for contempt of court. From an order in favor of defendant, complainant appeals.

Application by Edwin L. Johnson for writ of mandamus to compel the New York Produce Exchange to restore him to membership. From an order refusing a peremptory writ, relator appeals.

<p>Divorce—Evidence.</p> <p>In an action for divorce, the adultery charged is sufficiently proved where it appears that defendant, who was living apart from plaintiff, his wife, occupied a room adjoining the room of one B., whose husband was su ing her for a divorce on the ground of adultery with a third person; thit defendant and B. had been seen together in night dress; that they had been seen kissing; that B.’s hairpin had been found in defendant’s bed; that defendant was surety on B.’s lease; 'and that B. told her acquaintances that defendant was her brother-in-law.</p>

Action by Sidney G-. Marshall against the Reading Fire Insurance Company. From a judgment entered on a verdict directed in favor of plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals.

Action by Edward H. Swan, Jr., against the Long Island Railroad Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from circuit court, New York county.</p> <p>Action by Felix St. Anna Govin against Luciana Govin De Miranda. From a judgment entered on a verdict directed in favor of defendant, plaintiff appeals.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by Felix St. Anna Govin, Emilia Govin, and Guillermina Govin against Luciana Govin De Miranda, as executrix of the will of Felix Govin y Pinto, deceased. From a judgment entered on a verdict directed by the court in favor of plaintiffs, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.</p>

<p>Statute op Limitations—Note Payable on Demand.</p> <p>A note payable “on demand, after three months’ notice,” is due, and the statute of limitations begins to run against it forthwith, the provision as to notice being merely a limitation of the payee’s right to sue.</p>

Action by Louis Steets and another against the New York Elevated Railroad Company and another. There was a judgment in favor of plaintiffs, and defendants appeal.

<p>Shipping—Limiting Liability op Owner—Proceeding in State Court.</p> <p>A proceeding under Rev. St. U. S. § 4284, providing that, in an action against an owner of a vessel for damages, defendant may take appropriate proceedings “in any court” for the purpose of apportioning the sum to which his liability is limited by section 4283, can be maintained on'y in a court of admiralty (Transportation Co. v. Wright, 13 Wall. 104); and! therefore, in an action against a shipowner for injuries to plaintiff while standing on a pier, caused by a. collision of the vessel with the pier, deféndant cannot enforce the limitation of liability, as such action is not within the admiralty jurisdiction.</p>

Proceeding by Maud E. Slaven Depierris to compel Ellen A. Slaven to settle her accounts as executor of the will of Moses A. Slaven, deceased. The proceeding was dismissed, and petitioner appeals.

Action by Caroline Amanda McCready against the Farmers’' Loan & Trust Company and another. From an order sending back to the referee his report, for the purpose of taking testimony with: regard to commissions alleged to be due William Whaley, as administrator, plaintiff and defendant the Farmers’ Loan & Trust Company appeal. For former report, see 24 N. Y. Supp. 57.

Action by R. Baring Gould, as trustee, against John A. Rutherfurd and others, for the construction of the will of Alfred G. Myers, deceased. From so much of the judgment construing the will (26 N. Y. Supp. 921) as relates to costs, plaintiff appeals; and, from the portion which does not relate to costs, some of the defendants appeal.

* Action by William McCormick against the United Life & Accident. Insurance Association. From an interlocutory judgment, and from a final judgment dismissing the complaint, entered on a verdict directed by the court in favor of defendant, and from an order denying a motion for a new trial made on the minutes, plaintiff appeals.

Action by Patrick H. McCooey against the Forty-Second Street .& Grand Street Ferry Railroad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and. from -an order denying a motion for a new trial, defendant appeals.

Action by John McQueen against Charles E. Lockwood. From a judgment entered on a dismissal of the complaint, and from an order denying a motion for a new trial, plaintiff appeals.

<p>Specific Performance—Good Faith of Plaintiff.</p> <p>Where a vendee has refused to complete the contract unless the vendor will accept different terms from those agreed on, he cannot afterwards enforce specific performance against the vendor.</p>

Action by William A. Hardt and others against Moses S. Levy, impleaded. From an order requiring the receiver to account, and refusing to vacate the order by which he was appointed, defendant Moses S. Levy appeals.

Action by William A. Hardt and others against Julius Levy and others. From an order withdrawing leave of court previously granted to the Kings County Trust Company to sue Henry Winthrop Gray, the receiver, and vacating such order, and ordering said trust company to desist from prosecuting such action which it had commenced against the receiver and others, said trust company appeals.

<p>Homicide—Evidence—Dying Declarations.</p> <p>Statements of a decedent are admissible in evidence as dying declarations where it appears that they were made under a sense of impending death, though the witness could not give decedent’s precise language, and though decedent did not die.until several days after making the declarations. Parker, J., dissenting, on the ground that the evidence did not show a sense of impending death.</p>

Eugene A. Marvin was convicted; under Pen. Code, § 527, for printing a letter or circular offering counterfeit money for sale* and appeals.

Action by Arthur G-. Levy, by Moses M. Levy, as guardian, against -Carrie Levy and others for partition. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals.

<p>Assignment op Lease—Waiver op Forfeiture.</p> <p>A lessor wlio accepts rent from an assignee of the lease thereby waives a provision of the lease that it shall be void if assigned without the lessor’s consent.</p>

Action by Jacob London and Lewis A. London, partners in trade under the firm name of L. & J. London, against Wilbur F. Martin and others to set aside a general assignment made by said Martin to defendant Elwood Donnelly. From a judgment dismissing the ■complaint, plaintiffs appeal.

Action by Henry S. Eiegle against Hiram E. Bratt. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals.

Judicial settlement of the accounts of George S. Young and Mary Hurlbutt, as executor and executrix of Amos Hurlbutt, deceased. From a decree of the surrogate, certain legatees appeal.

Action by Thomas J. Reynolds against Ransom H. Miller on a . promissory note. A verdict was directed in favor of defendant at the Monroe circuit, and plaintiff’s motion for a new trial on the exceptions was ordered to be heard at general term in the first instance.

<p>Guaranty—Liability or Guarantor.</p> <p>In an action for money alleged to have been advanced by plaintiff to defendant T. under an agreement that, on performance of certain conditions, the money should belong to T., otherwise it should be repaid to plaintiff, with interest, to which agreement defendant E. was a party as guarantor, no recovery can be had against E. for money advanced before the agreement, unless E. knew of such prior advances.</p>

Action by Nathan Metzger against George W. Carr and others. From an interlocutory judgment sustaining a demurrer to portions of the answers, defendants appeal.

Action by the New York Breweries Company, Limited, against Francis Higgins, as receiver of the North River Bank. The complaint was dismissed at circuit, and plaintiff moves for a new trial -on exceptions ordered to be heard at general term in the first instance.

<p>Gifts—Inter Vivos—Evidence.</p> <p>The fact that a father, before purchasing a piano, stated that it was for his daughter, and, after the piano is brought home, spoke of it as the daughter’s piano, does not show a completed gift.</p>

<p>Appeal—Decision—Opinion op Appellate Court as to Facts.</p> <p>On reversal of a judgment in a case triable by jury, the appellate court will not express an opinion as to facts.</p>

Action by Hewlett Scudder and others, as trustees under the will of Henry J. Scudder, deceased, against the mayor and commonalty of city of Hew York, for an injunction. From a judgment dismissing the complaint on the merits, plaintiffs appeal.

<p>Appeal from circuit court, 27ew York county.</p> <p>Action by Frederick El. Feist against Alfred Schiffer and others.</p> <p>The complaint" was dismissed, and plaintiff appeals.</p>

<p>sIaster and Servant—Incovpetency op Fellow Servant.</p> <p>In an action against a railroad company for injuries to a fireman whose engine while waiting on a side track was placed so near the main track by the engineer that it was struck by a passing train, causing the injuries complained of, the evidence is not sufficient to show that the accident resulted from the incompetency of the engineer by reason of nearsightedness, where the only evidence of defective sight was that he could not see more than 350 feet, as it was only necessary for him to see a few feet in order to determine whether or not his engine was too near the main track.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by George Hill against the Durham House Drainage Company of New York and Caleb W. Durham. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendants appeal.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Louisa Stokes against Laura Pease, as executrix of Mary Ann Banks, deceased. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Action—Misjoinder oe Causes.</p> <p>Where a complaint states causes of action for partition, for ejectment, and for an accounting as to rents of real estate, and none of the defendants are Interested in all the causes of action, there is misjoinder.</p>

<p>Release—Validity—Failure to Name Releasee.</p> <p>A release of “all my Interest, of whatsoever name and nature,” in the estate of a decedent, without naming a releasee, is invalid, and does not render the releasor competent to testify in favor of contestant on a contest of decedent’s will.</p>

<p>Appeal from circuit court, Hew York county.</p> <p>Action by William T. A..Hart against the Sun Printing & Publishing Company. From a judgment entered on a verdict in favor of plaintiff for $1,214.35, defendant appeals.</p>

Action by Mary E. Gr. Shaw against Richard Webber for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Action by Annette B. Wetmore against Sarah Taylor Wetmore, individually and as trustee under the will of Samuel Wetmore, deceased, and others, to subject the income of the trust property to-the payment of alimony awarded to plaintiff in an action by her against William B. Wetmore. There was a judgment in favor of plaintiff (28 N. Y. Supp. 377), and defendants Sarah Taylor Wetmore and William B. Wetmore appeal.

<p>Assumpsit—Monet Had and Received.</p> <p>In an action for money had and received, it appeared that plaintiff was-a joint devisee with defendant and others, and that the executor of the will was authorized to sell and convey the land, and divide the proceeds-among the devisees. Plaintiff claimed that the executor induced her to convey her share of the land to defendant, in order to facilitate a sale,, and that the conveyance to defendant was without consideration; that the land was sold, and the proceeds paid over to defendant. There was-no evidence that defendant received the proceeds of plaintiff’s interest under an agreement with any one that she would hold them for or pay them to plaintiff. Held, that plaintiff did not establish a cause of action.</p>

Action by Dennis C. Feely against Gilbert E. Jones, as treasurer of the New York Times. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

<p>Appeal from special term, New York County.</p> <p>Application for leave to commence an action to annul the charter-of the Central Stamping Company. The application was granted,, and the stamping company appeals:</p>

<p>Appeal—Review—Weight of Evidence.</p> <p>A verrlict on conflicting evidence will not be disturbed on appeal.</p>

<p>Appeal from, surrogate’s court, New York county.</p> <p>Application by Mary J. Mosher to revoke letters of administration issued to William H. Patterson as administrator of Josephine Patterson, alias Josephine West, and to vacate a decree settling his accounts. A decree was entered granting the relief asked, and said Patterson appeals. Affirmed in part and reversed in part.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Thomas J. McKee and others, as executors, against the New York Elevated Railroad Company and another. There was a judgment in favor of plaintiffs, and defendants appeal.</p>

Action by Thomas J. McKee and others, as executors, against the New York Elevated Railroad Company and others. From a judgment in favor of plaintiffs, defendants appeal.

Controversy between William Ebling, as plaintiff, and Henry Dreyer, as defendant, submitted without action on an agreed statement of facts, pursuant to Code Civ. Proc. § 1279. Judgment for defendant.

<p>Appeal from special term, Erie county.</p> <p>Ac .ion by Edwin Gf. S. Miller against Solomon Eheinzweig and others. From an interlocutory judgment in favor of defendants, plaintiff appeals.</p>

Action by Annie M. Keating against William B. Hayes. From an order which vacated and set aside an order opening defendant’s default, and permitting defendant to serve an answer, and which struck out the answer defendant had served by virtue of said order,, defendant appeals.

Petition by Seymour Boughton for an order to show cause why he should not have possession of and title to lands of Margaret J. Anderson which had been sold for taxes to one Lyman Johnson, who had agreed to convey Ms interest to petitioner. The petition was dismissed, and petitioner appeals.

Action by William Miller, L. Louis Ettenheimer, and Jacob Miller against Elijah Boyer. From a judgment entered on a verdict directed by the court in favor of plaintiffs, and from an order denying a motion for a new trial made on a case and exceptions, defendant appeals.

Action by the town of Sardinia against David Butler. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Controversy between Francis Charles Le Marchant and others,, composing the firm of H. S. Lefevre & Co., as plaintiffs, and John G-. Moore and others, composing the firm of Moore & Schley, as defendants, submitted without action on an agreed statement of facts, pursuant to Code Civ. Proc. § 1279. Judgment for plaintiffs.

'Controversy between the Fourth Presbyterian Church, Thirty-Fourth Street, as plaintiff, and David Steiner, as defendant; submitted without action on an agreed statement of facts, pursuant to Code Civ. Proc. § 1279. Judgment for defendant.

<p>Appeal from circuit court, Monroe county.</p> <p>Action by Charles Murch, as administrator of Charles Murch, deceased, against the Western New York & Pennsylvania Railroad Company. From a judgment entered on a nonsuit, plaintiff appeals.</p>

Action by Horace A. Reynolds, individually and as administrator of Celia A. Reynolds, deceased, against William Penn Sisson and others. There was a judgment in favor of plaintiff, and defendant Sisson appeals.

<p>-Counties—Liability for Torts—Employes of Insane Asylum.</p> <p>A county is not liable for injuries caused by the negligence of the person in charge of a lunatic asylum maintained by the county, since, in maintaining such asylum, the county is engaged in the performance of the duty imposed on each county to support and care for its insane.</p>

Action by John Doorley against Ellen L. McConnell to recover possession of land. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals.

<p>Appeal from special term, Erie county.</p> <p>Action by James D. Yeomans against George H. Bell. From a judgment in favor of plaintiff, defendant appeals.</p>

Action by Commercial Bank against Archie Cameron and others, on promissory notes. From a judgment affirming a judgment of the municipal court of the city of Rochester in favor of plaintiff, defendants appeal.

<p>Appeal from special term, Erie county.</p> <p>Action by Johnston W. Beacon against Lucius Rogers. From a judgment entered on an order vacating and setting aside the service of summons and complaint and order of arrest on defendant, and dismissing the action, with costs, plaintiff appeals. Appeal from judgment dismissed.</p>

<p>Appeal from special term, Erie county.</p> <p>Action by William T. Knorr against the New York State Mutual Benefit Association. From an order vacating a warrant of attachment, plaintiff appeals.</p>

<p>Judgment—Satisfaction—Eight of Judgment Creditor.</p> <p>A judgment creditor may impose conditions on the satisfaction of a judgment entered by default, though grounds may exist for opening the default and permitting defendant to answer.</p>

Action by Edwin A. Bobbins against the Springfield Fire & Marine Insurance Company. A verdict in favor of plaintiff was directed by the court at the Genesee circuit, and defendant moved for a new trial on exceptions ordered to be heard at the general term in the first instance.

<p>"Execution—Delivery to Sheriff—Leaving at Deputy’s Placf op Business. Leaving an execution at a butcher shop kept by a deputy sheriff, who was absent therefrom at the time, is not a delivery to the sheriff, since in such case a memorandum of the day, horn, and minute when he received it could not be indorsed thereon by the sheriff, as required by Oode Oiv. Proe. § 1363.</p>

Action by Edward F. Wilson and another against the Niagara City Land Company and Henry A. Eose and others, impleaded with Loren M. Hewit. From a judgment in favor of defendants Eose and others, defendant land company appeals.

<p>Appeal from special term, Monroe county. -</p> <p>Action by Ann Curvin against the Rochester Railway Company. From a judgment restraining defendant from operating and maintaining its railroad on premises belonging to plaintiff, in the city of Rochester, and requiring defendant to remove its tracks and trolley poles therefrom, defendant appeals.</p>

Action by Robert Bryson against Roger St. Helen and Jeremiah Phelan to foreclose a mechanic’s lien. From a judgment of foreclosure and sale, and for the deficiency against defendant St. Helen in case the avails of the sale should not be sufficient to pay the judgment, defendant St. Helen appeals.

Claim by Martha Brayman against William E. Stephens and others, as executors of David W. Langley, deceased. The claim was disputed, and referred under the statute, and from a judgment entered on an order confirming the report of a referee, and from an order denying a motion for a new trial, defendants appeal.

<p>Appeal from judgment on report of referee.</p> <p>Action by the National Life Association of Hartford against Harriet E. Sturtevant and others to obtain a direction as to the distribution of a fund among defendants. From a judgment in favor of defendants Miner and another, defendant Sturtevant appeals.</p>

<p>Appeal from circuit court, Monroe county.</p> <p>Action by David J. Kirkpatrick against James E. Briggs for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals.</p>

Action by Otto Kudik against the Lehigh Valley Railroad Company. From a judgment dismissing the complaint entered on a nonsuit, and from an order denying a motion for a new trial made on the minutes of the court, plaintiff appeals.

Action by Hyman Bloom and others against the National United Benefit, Savings & Loan Company. From an order denying a motion for leave to file exceptions nunc pro tune to the report of a referee after confirmation of such report, and for entry of final judgment thereon, defendants appeal.

Action by Lewis F. W. Arend against Fremont C. Laing for reformation of contract and specific performance. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals.

Action by Florence A. Smith against the city of Rochester. A nonsuit was granted at circuit, and plaintiff moves for a new trial on exceptions ordered to be heard at general term in the first instance

<p>Master and Servant—Torts of Servant—Scope of Employment.</p> <p>A railroad company is not liable for injuries caused by the explosion of a torpedo placed on the track by a station agent, where it appears that the agent placed the torpedo on the track merely for the purpose of hearing the explosion, and not as a signal to any train, that torpedoes were net furnished to station agents for their own use, and that the rules of the railroad company forbade placing them near stations.</p>

George R. Van Alstyne was convicted of seducing one Jennie M. Campbell under a promise of marriage, and from the judgment of conviction, and from an order denying a motion for a new trial, defendant appeals.

<p>Usury—Sufficiency of Evidence.</p> <p>Defendant gave plaintiff a check in payment of a debt, but the check was not paid, and defendant afterwards gave plaintiff a bond bearing interest from date at the legal rate, seemed by mortgage, and received his check back. Held, that the fact that the bond was for a greater sum than the amount of the check did not prove usury, where the difference between the amounts was equal to the interest on the amount of the check from its date to the date of the bond.</p>

Action by Obed M. Rice against Jacob K. Post for broker’s commissions. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals.

Application by Uriah Harmon for leave to issue execution against the real estate of David L. Hallock, deceased. The application was denied, and petitioner appeals.

Action by Moses B. Watkins and Catherine, Ms wife, against T. Frank Jones, to set aside a bond and mortgage. From a judgment in favor of defendant, plaintiffs appeal.

Daniel Linzey was convicted in a court of special sessions of the crime of petit larceny, and, from a judgment affirming the conviction, defendant appeals.

<p>1. Water Courses—Obstruction by Bridge—Question for Jury.</p> <p>, It is a question for the jury whether a bridge has an opening for the flow of water of sufficient capacity to meet all the ordinary exigencies of the climate and the situation of the stream, and also such extraordinary exigencies as experience would lead the residents in that vicinity to believe might sometimes occur.</p> <p>■2. Measure of Damages—Removal of Soil.</p> <p>The measure of damages for injuries to land by the washing away of the soil is the difference in the value of the land before and after the injury, and not the expense of putting other soil in the place of that washed away.</p>

Action by Joseph Michaels and others against Robert Hain and Daniel J. Myers. From an order setting aside the service of summons on defendant Myers, and vacating judgment by default, plaintiffs appeal.

<p>Contracts—Interpretation—Statute op Limitations.</p> <p>A cemetery association resolved to borrow $2,500, to purchase land, but succeeded in obtaining only $2,200, of which plaintiff loaned $300. A certificate was issued to each lender, stating the amount of the loan, and “that one-half of the receipts of the sale of lots shall be applied exclusively to the payment of the sum of $2,500 loaned to said association by divers persons.” Held, that one-half of the receipts for the sale of lots was required to be set apart for the payment of the loan ($2,200), and the statute of limitations began to run against the loans from the time that stun was realized, and not from the time that one-half of the proceeds of the sale of lots amounted to $2,500, as the recital in the certificate as to the amount of the loan was made in contemplation of a loan of $2,500.</p>

Action by Ann Lee, as administratrix of John Lee, deceased, against John Van Voorhis and others, to cancel a° contract. There was a judgment in favor of defendants, and plaintiff appeals.

<p>1. Deposition—Foreign Commission—Issuance from Justice’s Court.</p> <p>Under Code Civ. Proc. § 2980, providing that, where a witness is “not within the county where the action is pending or an adjoining county,” the justice may award a commission to take his deposition, a justice may issue a commission to examine a witness in another state.</p> <p>2. Same—Withdrawal prom Files.</p> <p>Code Civ. Proc. § 2985, provides that a deposition taken under a commission issued by a justice of the peace “must remain on file with him until the trial, but either party is entitled to inspect it on file. Held, that a deposition cannot be read in evidence where one of the attorneys took it from the files, and retained possession of it until the trial.</p> <p>8. Evidence—Book Accounts.</p> <p>A witness will not be permitted to testify that an account shown to him was for goods sold to defendant, and that the entries in plaintiff’s book were made by the witness, where the books were not produced or read in evidence.</p>

Action by Walter Myers against Robert J. Dean for services in procuring a lease to defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Injunction Pendente Lite—Restraining Operation oe Machinery.</p> <p>An injunction pendente lite will not be granted to restrain defendants• from running the engines, machinery, and electric light plant, and the pneumatic blower for conveying cash receptacles, in their store, on the ground that it is a nuisance to plaintiff, who resides in the adjoining building, where it appears that the noise produced by the machinery is such as is ordinarily incidental to the operation of similar machinery used in the conduct of like business in other parts of the city.</p>

<p>Aliens—Setting Aside Naturalization—Motion by Private Individual.</p> <p>A private individual cannot maintain a proceeding to set aside an order admitting an alien to citizenship.</p>

Action by Mt. Morris Electric-Light Company against United States Horse & Cattle Show Society. From a judgment of the city court (27 N. Y. Supp. 419) affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals.

Action by Max Danziger against Charles Falkenberg and JacobLederer. From a judgment entered on a verdict in favor of defendants, and from an order denying a motion for a new plaintiff appeals.

<p>Appeal from jury term.</p> <p>Action by Bessie Richmond against Second Avenue Railroad ■Company. From a judgment dismissing the complaint, plaintiff</p> <p>appeals.</p>

Action by the G-ansevoort Freezing & Cold-Storage Company against the Wessels Company. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals.

<p>1. Municipal Corporations—Defective Docks in New York City.</p> <p>An action cannot be maintained against the city of New York for injuries caused by the defective condition of a dock structure, as the department of docks has exclusive control of such matters.</p> <p>3. Same—Obstructing Streets—Proof of Negligence.</p> <p>No recovery can be had against a city for injuries caused by falling over a stringpieee, 12 inches high, placed on the side of a street to protect a water pipe, and to prevent teams going up and down a pier at that point from colliding with each other, unless such stringpieee is shown to be a dangerous obstruction to public travel, since every obstruction in a street is not actionable.</p>

<p>Action by Siegfried Bienenstok and others against Edward H. Ammidown and others.</p>

Petition by William W. Chapin against Eugene H. Satterlee to* obtain possession of land purchased by him at a tax sale. The petition was dismissed, and petitioner appeals.

Action by Walter B. Fargo against Charles Owen for rent.. From a judgment of the county court affirming a judgment of the justice court entered on the verdict of a jury, defendant appeals.

Action by Joseph Phillips against Charles H. Coveil for trespass on land. Prom a judgment of the county court reversing a judgment in favor of defendant, defendant appeals.

<p>Concurring opinion. For majority opinion, see 28 N. Y. Supp. 855.</p>

<p>1. Statutes—Amendment—Repeal of Former Statute.</p> <p>A statute which amends a former statute “so as to read as follows,”' and provides that “all acts or parts of acts inconsistent with or repugnant tó this act are hereby repealed,” repeals the former statute by implication.</p> <p>2. Police Justices—Territorial Jurisdiction—Constitutional Law.</p> <p>Laws 1887, c. 384, which provides that the police justice of Rochester shall have jurisdiction of all misdemeanors committed within the county of Monroe, is unconstitutional, in assuming to give the police justice jurisdiction beyond the limits of the city.</p> <p>3. Same—Act Valid in Part.</p> <p>Such statute is not valid as to so much of the county of Monroe as is within the limits of the city of Rochester, and only bad as to the residue of the county, as the designation of the territory within the jurisdiction of the police justice is entire.</p> <p>4. Statutes—Amendment of Statute Theretofore Repealed.</p> <p>A statute amending a statute which had already been superseded by an amendatory statute is valid, where it was the intention of the legislature to amend an amendatory statute, and not the amended statute.</p>

Proceeding in the nature of quo warranta by John Lardner and another against Samuel N. Carson. From an order striking the cause from the calendar, relators appeal.

Action by Frederick E. Jutsum against the Bricklayers’, Plasterers’ & Stonemasons’ Union of Rochester and others to recover damages for inducing persons not to employ plaintiff in his trade. From an order directing a bill of particulars as to the claims for damages, plaintiff appeals.

<p>Appeal from special term, Erie county.</p> <p>Motion by the Kellogg Iron Works to continue a mechanic’s lien against the Gould Coupler Company. The motion was granted,</p> <p>•and the coupler company appeals.</p>

Action by William Van Ñostrand against the New York, Lake Erie & Western Railroad Company to recover damages caused by fire. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court, defendant appeals.

Action by Mary B. Sessions against the New York, Lake Erie Sc Western Bailroad Company for money lost by plaintiff while a passenger on defendant’s train. A judgment of a justice court in-favor of plaintiff was reversed on appeal to the county court, and plaintiff appeals.

- Action by Frances B. Scott against Frances Galladme and others- , for partition. From a judgment dismissing the complaint on the-merits, plaintiff and defendants Kittle and others appeal.

Action by Lucy E. Hand against Charles Deady, as trustee of school district No. 5, in the town of Bose, Wayne county, N. Y. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Action by the United States Glass Company against Galvin H. Vary, Stephen ¡N. Keener, Charles W. Trotter, Thomas J. Reynolds, Byron H. Rose, and James M. Pitkin, Jr. From a judgment dismissing the complaint, plaintiff appeals.

<p>Appeal—Review—Conclusions of Law.</p> <p>Where breach of express warranty is alleged as a defense in an action for the price of goods, and the referee finds a warranty and its breach, but does not find any facts which show resulting damage, a judgment for plaintiff will not be disturbed, where exceptions are taken only to referee’s conclusions of law.</p>

<p>Appeal from court of sessions, Livingston county.</p> <p>Charles Flaherty was convicted of rape, and appeals.</p>

Action by Alice M. Colvin against Sophia Shaw to foreclose a. mortgage made by Mies Broadbent to Jonah D. Decker, August 1,. 1883, on certain premises at Hollt, in Orleans county, to secure the payment of $600. Defendant Shaw alleged an equitable title in herself to a portion of the premises, arising from a contract to sell and convey to her for a consideration, which she had paid, and; pursuant to wMch she had taken possession.

Application of Feodora Karowney for an order for the examination of the records of the. Buffalo Orphan Asylum. From an order vacating an order requiring the defendant orphan asylum to allow the examination of its records, Feodora Karowney appeals.

Action by Frederick F. Hoyer against the village of North Tonawanda. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Burdette B. Brown and Mabel S. Brown, by guardian, against Charles Dow and Frank B. Church, as receiver of Ansen D. Brown, impleaded with Helen M. Brown. There was a judgment in favor of plaintiffs, and defendants appeal. The action was brought to reform a deed made by Jason Hunt and wife to Anson D. Brown and Esther J. Brown, of date April 26, 1870, conveying certain land in Andover, county of Allegany, N. Y. The grantees were then husband and wife.

Action by James M. Emmens against Mary E. St. John to recover commissions as a real-estate agent. From a judgment reversing a judgment of the municipal court of the city of Rochester :in favor of plaintiff, plaintiff appeals.

Action by Lodemia A. Smith against Robert Bevels. From an order denying plaintiff’s motion for a new trial, made on the minutes of the court, plaintiff appeals.

Action by Francis H. Salt, William Shepard, George G. Shepard, and Joseph Doherty against Nathan D. Ensign, sheriff of Niagara county. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial made on the minutes of the court, defendant appeals.

Action by the Buffalo Chemical Works against the Bank of Commerce in Buffalo and others. From an order appointing a receiver of the property of defendant Genesee Oil Works, Limited, and restraining the other defendants from prosecuting any action against defendant oil works, the other defendants appeal. The Genesee Oil Works, Limited, is a partnership association, created pursuant to the laws of the state of Pennsylvania.

Action by Caroline L. Ely and Almira F. Beers, as surviving executors of Joseph Field, deceased, against John Fahy. Defendant moves for a new trial on exceptions taken at Monroe circuit, and ordered to be heard at general term in the first instance.

<p>Action by Adaline Wood, as executrix and trustee, against Albert E. Hall and others.</p>

<p>Action by Charlotte Thon against the Rochester Railway Company. Plaintiff moves for a new trial on the minutes. Granted.</p>

Action by Samuel F. Myers and others against Johanna Kastan. From a judgment entered on a verdict directed by the court in favor of plaintiffs, and from an order denying a motion for a new trial, defendant appeals.

Action by John J. Montgomery and Samuel F. Pease against the .mayor, aldermen, and commonalty of the city of Rew York. From so much of a judgment as dismissed the second cause of action,, plaintiffs appeal.

Action by Francis W. Smith against S. Howard Barnes and others to recover broker’s commissions. From an order denying a motion to set aside a stipulation for a reference, and for a new trial on the ground of newly-discovered evidence, or for an opening of a reference and a rehearing, defendants appeal.

Action by Frank Flandreau against Philip Elsworth. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

- Action by Mary G-. Krulder, as administratrix of Cornelius Krulder, deceased, against William H. Woolverton, as president of the New York Transfer Company. From a judgment entered on a verdict in favor of plaintiff and from an order denying a motion for a new trial, defendant appeals.

Action by the National Board of Marine Underwriters against the National Bank of the Bepublic of New York. There was a judgment in favor of plaintiff, and both parties appeal; plaintiff, on the ground that the referee should have allowed $4,914.62, instead of $2,803.27, and defendant, on the ground that the amount allowed was excessive. Affirmed on plaintiff’s appeal.

Action by Otto GT. Mayer and others against Eben J. Beggs and others. Judgment was entered on a verdict directed in favor of plaintiffs, and defendants’ exceptions were ordered to be heard in the first instance at general term.

Action by Clarence True against Richard C. Sibley. There was a judgment in favor of plaintiff, and defendant appeals. Respond- ent moves to strike the cause from the calendar.

<p>Appeal from special term.</p> <p>Action by Van Burén Denslow against Sazah M. Bush and others. Prom an order sustaining a demurrer to the complaint, plaintiff appeals.</p>

<p>Action by William G. MoGrea against Arthur G. Bedell. A motion to dismiss the complaint was granted, and plaintiff's exceptions were ordered to be heard at general term in the first instance.</p>

Action by Adolph Rothmiller against Theodore G-. Stein and Edward Weber to recover damages for false representations. From an interlocutory judgment overruling a demurrer to the complaint, defendants appeal. The plaintiff was a stockholder of the Grooved Plaster Slab Manufacturing Company, and the defendants were its officers and directors, and had the sole and exclusive management of its business.

Action by ¡péñora Cielfield against Fannie Browning and another to recover for injuries caused by a defect in the building in which plaintiff was employed to work. The complaint was dismissed at the close of plaintiff’s case, and plaintiff appeals.

Action by Ephraim C. Gates and others against Ellen Williams, impleaded, etc., on a promissory note. From a judgment of the city court (22 H. Y. Supp. 925) reversing a judgment entered on a verdict against defendant Williams, plaintiffs appeal.

<p>Appeal from special term.</p> <p>Petition by John J. Hopper to punish Edwin S. Updike, Sr., for contempt of court. The petition was denied, and petitioner appeals.</p>

Action by the Monroe-Miller Company against Edward S. Stokes. From a judgment of the city court (27 N. Y. Supp. 940) affirming a judgment sustaining a demurrer to the answer, defendant appeals.

<p>1. Equity—Rescission oe Contract—Election.</p> <p>One who is induced by fraud to enter into a contract is not restricted to , an action at law for damages, but may sue for rescission.</p> <p>2. Vendor and Purchaser—Caveat Emptor.</p> <p>The doctrine of caveat emptor does not apply where the purchaser was induced by the fraud of the vendor to enter into the contract to purchase.</p>

Action by James L. Clark against Andrew J. Smith for goods sold and delivered. From a judgment of the city court (28 Y. Y. Supp. 89) affirming a judgment in favor of defendant, plaintiff appeals.

Petition by Pliny D. Saxton for the sale of the real estate of Samuel Lawrence, deceased, to pay debts. From a decree directing a sale, William Mott and others appeal.

<p>Appeal from judgment on report of referee.</p> <p>Action by Martin D. Chace against the Warsaw Waterworks Company. From a judgment in favor of plaintiff, defendant appeals.</p>

Action by William H. Muckle against the Rochester Railway Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Emanuel Myerson against William H. Woolverton, as president of the Hew York Transfer Company, for loss of baggage. Prom a judgment rendered by the justice, without a jury, in favor of plaintiff, defendant appeals.

Action by Joseph Van Camp against Edward P. Searle, sheriff, and others. From a judgment determining the rights of the parties plaintiff and defendant, the Orleans County National Bank and others appeal.

Action by Sarah Brady against Industrial Benefit Association. Plaintiff moves for a new trial on exceptions taken at Cayuga circuit, and ordered to be heard in the first instance at general term, and from an order of thé Monroe special term denying a motion for a new trial on the ground of newly-discovered evidence, plaintiff appeals.

Action by Mary Elizabeth Stewart, as executor of David Stewart, against Thomas Patón and others, for partition. The premises were ordered to be sold by a referee, who advertised the sale-as required by law, and, in addition thereto, inserted the advertisement in other papers, and posted notices. Plaintiff moves to allow the referee to retain the sum paid by him for extra advertisement out of the proceeds of the sale of the premises.

Action by Lillian Cauchois against William Proctor- for an accounting. From an order granting a motion to compel plaintiff to reply to certain defenses, containing new matter, plaintiff appeals.

Action by Charles É. Bullard and Charles 0. Howe against Mary C. Harris, James H. Kenyon, and Ellen M. Kenyon to declare a chattel mortgage executed by defendants James H. Kenyon and Ellen M. Kenyon to the defendant Mary 0. Harris fraudulent and void as against plaintiffs, and to restrain defendants from interfering with the mortgaged property.. There was a judgment in favor of the plaintiffs and against defendant Harris for costs, and defendants Kenyon appeal.

<p>Appeal from circuit court, Kings county.</p> <p>Action fey Joanna Ditmas and Abigail Ditmas, as administratrices of Henry Clay Ditmas, deceased (substituted for Henry Clay Ditmas), against Hector M. Hitchings and John M. Hitchings, as executors of Benjamin G-. Hitchings, deceased. There was a judgment in favor of plaintiffs, and defendants appeal.</p> <p>For order granting reargument, see 28 N. Y. Supp. 1112.</p>

<p>Action by Mathushek Piano Manufacturing Company against James Pearce. From an order requiring defendant to appear for examination, he appeals.</p> <p>For former reports, see 21 N. Y. Supp. 920, 921.</p>

<p>Principal and Surety—Security Held by Surety—Right op Debtor.</p> <p>The maker of a note held by plaintiff gave to one J., who was accommodation indorser thereof, a second bote, indorsed by defendant, to secure J. against loss by reason of his indorsement, and J. transferred the collateral note to plaintiff. Held, that plaintiff could sue on the collateral note, though J. had paid nothing on account of his liability as indorser; a creditor being entitled to ail collaterals given by the principal debtor to his sureties.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Clara Harmon against the Vanderbilt Hotel Company. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals.</p>

<p>Street Cars—Injury to Person on Track—Evidence.</p> <p>Where the evidence in an action against a street-railroad company for injuries caused by defendant’s car colliding with a wagon driven by plaintiff’s intestate is conflicting as to whether the car struck the wagon while it was turning out from the track, or whether the wagon was suddenly driven on the track in front of the car, defendant’s negligence is a, question for the jury.</p>

<p>Criminal Law—Former Jeopardy.</p> <p>A justice of special session did not lose jurisdiction by reason of the fact that a trial before him, commenced on Saturday, was continued into Sunday morning, but proceeding on Sunday was merely an error for which the judgment will be reversed, and a new trial granted.</p>

Action by Oliver H. Booth against Hannibal Smith and Mary A. Huntington, as administrators of James Vassar Harbotüe, deceased, for an accounting. From an order appointing plaintiff receiver of the property of the firm of M. Vassar & Co., composed of plaintiff, defendants’ intestate, and others, defendants appeal.

. Action by Charles De Kay Townsend against Emma M. Work, impleaded with Albert O. Hendrickson and others, to foreclose a mechanic’s lien. From an order canceling plaintiff’s lis pendens,, plaintiff appeals.

Two actions, one by Fred Baker against Edward Brundage, and the other by Charles Collins against the same defendant. From an order denying a motion by plaintiff Collins, to vacate supplementary proceedings had by plaintiff Brundage, said Collins appeals.

Action by the Albany City National Bank against the Hudson River Brick Manufacturing Company, impleaded, to foreclose a chattel mortgage executed by Bernard J. McG-uire and others to Sullivan & Ehlers. From an interlocutory judgment overruling a demurrer of defendant brick company to the amended complaint, said brick company appeals.

Action by Arthur I. Griggs against John S. Brooks. Danforth Becker moves to vacate a judgment and order of the general term entered in favor of plaintiff on June 3, 1883.

<p>Criminal Law—Validity ob' Trial—Denial oe Right to Give Bail.</p> <p>The denial of the right of defendant to be taken before a magistrate-of the county in which he was arrested to give bail does not affect the-validity of his subsequent trial and conviction.</p>

<p>Attachment—Vacating—Decision on Merits op Action.</p> <p>An attachment against a foreign corporation will not be vacated on the motion of a junior attaching creditor on an affidavit that the claim of the senior attaching creditor arose out of a contract which was void by the laws of defendant’s domicile, as the grounds of such motion involve the merits of the action.</p>

Action by Alice Crocker against Lester A. Lewis and others to foreclose a mortgage. The premises were sold under a decree of foreclosure, and a controversy now arises between defendants as to the ownership of the surplus moneys remaining after satisfaction of the mortgage. From an order declaring that defendant Lewis had a prior right, defendants Watson and Pittinger appeal.

<p>Appeal from circuit court, Monroe county.</p> <p>• Action by James Farley against Abraham Picard for personal injuries. From a judgmenb entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes of the court, defendant appeals.</p>

Action by Eugene J. Kline against John P. Hibbard, Henry Z. Strong, and John R. Lord, for malicious prosecution. The complaint was dismissed on the merits, and plaintiff appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by Montraville W. Atwood and James L. Atwood against Martin Barney. There was a judgment in favor of plaintiffs, and defendant appeals.</p>

<p>Change of Venue—Service of Demand.</p> <p>Service of demand for change of venue is in due time when made on the same day the answer was served, though after service of the answer.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by James Eadley against Eichard Connell for an accounting. There was a judgment in favor of plaintiff, and defendant appeals.</p>

Action by William D. Bailey against the Rome, Watertown & Ogdensburg Railroad Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the judge, defendant appeals.

<p>Action by William Z. Lamed and Anna T. E. Kirtland against Daniel E. Donovan and others.</p>

<p>Appeal from special term, Onondaga county.</p> <p>Action by Norman A. Barnes against Gerrit S. Wheaton. The complaint was dismissed, and plaintiff appeals.</p>

Action by the Farmers’ ¡National Bank of Adams against Sanford S. Thomas and W. H. Seward Thomas on promissory notes. There was a judgment in favor of plaintiff, and defendants appeal.

Albert Mackinder and Frank Mackinder were convicted of robbery in the first degree, and from the judgment of conviction, and from an order denying a motion for a new trial, they appeal.

<p>Exeoutobs and Administrators—Recovery of Property of Estate.</p> <p>In an action by an administrator to recover money alleged to have been received by defendant’s testator in fraud of the creditors of plaintiff’s intestate (Laws 1858, c. 314, §§ 1, 2), it appeared that the intestate was insolvent, and that defendant’s testator had obtained money belonging to the estate. There was evidence that testator had received the money as the pastor of a church, to aid in building a charity school, and deposited it, in his own name, in hank; that he had stated that he had received the money, but it was a question whether or not he could keep it. Testator’s will recited that there was deposited in bank, in his name, 81,000, which belonged to the S. school, “unless a judgment is rendered against me or my estate in the action pending in favor of” plaintiff, “in which event I direct said money to be applied in satisfaction of said judgment.” Held, that the evidence was sufficient to go to the jury on the question whether the 81.000 received by testator was received in fraud of the creditors of plaintiff’s intestate, and whether the same was in his custody at the time plaintiff demanded it of him.</p>

Action by Charles M. Smith, as executor of Loren Smith, deceased, against George B. Northrup. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Action by the village of Little Falls against Helen Cobb. From an interlocutory judgment sustaining a demurrer to the ninth subdivision of the answer on the ground that the counterclaims and defenses alleged therein were insufficient in law on the face thereof, and that neither of them stated facts sufficient to constitute a cause of action as a counterclaim to plaintiff’s complaint, and that neither contained facts sufficient to constitute a defense to the complaint, or any…

Action by one Emil Oelberman against the Hew York & northern Railroad Company and others. Plaintiff moved for leave to serve a paper called a proposed “amended and supplemental complaint,” and also to amend the summons. For appeal from order denying injunction, see 29 H. Y. Supp. 545.

Action by John T. Barnard, as temporary administrator of Ann E. Crouse, deceased, against Clinton W. Starkey, John F. Gantz, and others. From an order denying a motion to punish for contempt, plaintiff appeals.

<p>Appeal from Monroe county court.</p> <p>Action by Edmund K. Stedman against Frank B. Ranney. From a judgment reversing a judgment of a justice court, plaintiff appeals.</p>

Action by C. Fred Thompson against Kate Sheridan and another for goods sold and delivered. There was a judgment in favor of plaintiff, and defendant Sheridan appeals.

Action by Charles A. Pitts, as administrator of Margaret Pitts, deceased, against the New York, Lake Erie & Western Railroad Company. From a judgment entered on a verdict of $3,000 in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by Ellis H. Roberts & Co., a corporation, against John Buckley and others. There was a judgment in favor of defendants Patrick F. Bulger, as assignee, and others, and defendants George F. Vietor and others appeal.</p>

<p>Appeal from special term, Oswego county.</p> <p>Action by Mortimer D. Bumpus against Electa A. Bumpus for the construction of a will. There was a judgment in favor of defendant, and plaintiff appeals.</p>

<p>Appeal from circuit court, Oneida county.</p> <p>Action by Sherman Petrie against Elverton 0. Stark and another. From a judgment entered on a verdict for $5,000 in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendants appeal.</p>

Action by Mary Senecal, as administratrix, against the Thousand Island- Steamboat Company, Limited. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals.

<p>Appeal from circuit court, Jefferson county.</p> <p>Action by Peter J. Daily against Jonas A. Emery for slander. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial made on the minutes, plaintiff appeals.</p>

Application by Charles F. Zeese for writ of habeas corpus to Vincent M. Hasten, superintendent of the state industrial school of Eochester. The writ was dismissed, and petitioner appeals.

<p>Appeal from court of sessions, Tompkins county.</p> <p>Warren S. Bates was convicted of intrusion into a public office, and appeals.</p>

<p>Appeal from circuit court, Onondaga county.</p> <p>Action by Elias Warn against the New York Central & Hudson Biver Bailroad Company. Prom a judgment entered on a nonsuit</p> <p>in favor of defendant, plaintiff appeals.</p>

Action by Harvey Joyce against the Rome, Watertown & Ogdensburgh Railroad Company, while in defendant’s employ. From a judgment entered on a nonsuit, and from an order denying a motion for a new trial made on the minutes, plaintiff appeals.

Action by John C. Troian against Leroy S. Rogers. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial made on the minutes, plaintiff appeals.

Action by Israel P. Grant, survivor, etc., against William D. Lawrence, survivor, etc. There was a judgment in favor of plaintiff for $1,510.55 and costs, and defendant appeals.

<p>Appeal from special term, Jefferson county.</p> <p>Action by Angeline Bettinger against Betty E. Van Alstyne and others. There was a judgment in favor of plaintiff, and defendants appeal.</p>

<p>Appeal from special term, Dutchess county.</p> <p>Action by Cornelia Fay Cline against David H. Sherman and Samuel W. Sherman, as executors of Walter W. Sherman, deceased. The complaint was dismissed as to defendant David H. Sherman, and plaintiff appeals.</p>

Action by Edward F. Byrne against the city of Syracuse. From a judgment entered on a verdict for $2,000 in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Iva Manwarren against Mary J. Mason to recover damages for the alleged alienation of the affections of plaintiff’s husband, George W. Manwarren. The defense was general denial. Judgment was entered on a verdict for $2,358.33 in favor of plaintiff, and defendant appeals.

Action by Emma L. Hirsch and others against Frederick Auer, substituted as defendant in place of Clara Auer, deceased. There was a judgment in favor of plaintiffs for $1,618.50 and costs, rendered on a trial by the court without a jury, and defendant appeals.

Action by Jedediah S. Kingsley against Willey J. P. Kingsley for libel. The answer contained a general denial, and also matter by way of justification and in mitigation. From a judgment entered on a verdict for defendant, and from an order denying a motion for a-new trial made on the minutes, plaintiff appeals.

Action, by Hotchkiss S. Finch against Frank A. Skilton and Harry I. Skilton on a promissory note. From a judgment entered on a verdict for $2,105.22 in favor of plaintiff, and from an order denying a motion for a new trial made on a case and exceptions, defendants appeal.

<p>Witness—Examination—Unresponsive Answers.</p> <p>Where the prosecuting witness on a trial for larceny states that certain memoranda had been destroyed, as was customary, and, in reply to a question whether “they would be of some value if you had them now,” says, “Yes, sir; they would be strong evidence against the prisoner,”—such answer is not responsive to the question, and should be stricken out.</p>

Action by William Duffus against Christoph Schwinger and oth'ers. From a judgment entered on a verdict rendered at circuit in favor of plaintiff, and from an order at special term denying a motion for a new trial made on a case and exceptions (27 N. Y. iSupp. 949), defendants appeal.

<p>Appeal from judgment on report of referee.</p> <p>Action by Nelson E. Kelly and German B. Barnes, as administrators of Judson H. Barnes, deceased, and Leverette Barnes and others, against George E. Jay. There was a judgment in favor of plaintiffs, and defendant appeals. The notice of appeal also states that a certain order of the county judge, dated January 5, 1893, will be brought up for review.</p>

<p>1. Trover and Conversion—Defenses—Possession under Pledge.</p> <p>In an action for conversion, possession of the property alleged to have been converted under a pledge is a defense.</p> <p>2. Pledge—Validity.</p> <p>Plaintiff leased a machine to defendant for certain work, under an agreement that plaintiff should receive one-fourth of the profits of the work and pay one-fourth of the losses. Afterwards it was agreed .that defendant should have a lien on the machine as security for plaintiff’s agreement to pay one-fourth of the losses. It was then delivered to defendant. Held, that there was a pledge of the machine to defendant.</p> <p>8. Lien—Waiver.</p> <p>A mere promise, without consideration, by one who has a lien on a chattel, that he will send the chattel to the owner, is not a waiver of his lien.</p>

Action by Margaret T. Eldredge against Anne E. Eldredge and Mary E. Withington, impleaded with Hallam Eldredge, deceased. From a judgment entered on a verdict for $4,000 in favor of plaintiff, and from an order denying a motion for a new trial made on a case and exceptions, defendants appeal.

Action by George Hollenbeck against Delos H. Johnson. Judgment was rendered in favor of plaintiff for $1 damages, and costs amounting to $194.18 were awarded to defendant. Plaintiff served exceptions to the report and refusal to find “that the plaintiff is ■entitled to recover for his personal injuries resulting from his falling into the cistern through the hole made by the defendant’s cow.” Plaintiff appeals.

<p>Wills—When Legacy Vests.</p> <p>Testator devised a medal presented to him by congress to his wife for life, and on her demise to be handed down to testator’s oldest surviving daughter, successively, until the demise of all the daughters, and then to . testator’s “oldest grandson living.” Held, that the words “oldest grandson living” referred to the time of the decease of testator’s oldest surviving daughter, and not the decease of testator.</p>

<p>Receivers—Appointment—Action for Partition.</p> <p>In an action for partition a receiver will not be appointed on the ground that one of defendants was in possession of the premises, and refused to account for the rents, where such defendant denies that any demand had ever been made for an accounting, and expresses her willingness to account at any time, and there is no evidence that she had acted improperly, or that she was unable to respond to any claim of the moving party.</p>

Action by Marvin Cross, Sherlock Austin, and John H. Ireland against the Anglo-American Banking Company. A verdict was ■directed for plaintiffs for $896, and defendant moves to set aside the verdict and for a new trial on exceptions ordered to be heard at general term in the first instance.

Action by Joseph M. Mullins and others, by guardian, etc., against Thomas F. Mullins, impleaded, etc. The complaint was dismissed, and plaintiff appeals.

Action by Andrew J. Rogers against Elizabeth Patterson and others, impleaded, etc. A demurrer to the complaint was overruled, and defendants appeal.

Certiorari by John F. Mitchell to review the proceedings of James J. Martin and others, commissioners of police, in dismissing relator from the police force.

<p>Appeal from special term, New York county.</p> <p>Action by Francis A. H. Bergmann and another against Hamilton H. Salmon individually, and Hamilton H. Salmon and Emily M. Salmon as executors of the estate of Hamilton H. Salmon, deceased.. There was a judgment in favor of plaintiffs, and defendants appeal-</p> <p>For former report, see 23 N. Y. Supp. 482, 35 N. E. 204.</p>

<p>Elevated Railroads—Injuries to Abutters—Apartment Houses.</p> <p>Where some of the apartments in plaintiff’s apartment house front on the street occupied by defendant’s elevated railroad, and the other apartments front on a cross street, damages can be awarded only for those fronting on the street occupied by the railroad, as the other apartments have no easements on that street.</p>

<p>1. Attorney and Client—Misconduct op Attorney.</p> <p>An attorney is guilty of professional misconduct where he alters an-undertaking which had been used on an unsuccessful application for art-attachment, and uses it, as altered, on an application to another court.</p> <p>2. Same—Punishment—Suspension prom Practice.</p> <p>Where the attorney was young and inexperienced, he will not be disbarred for such misconduct, but will he suspended from practice for a-substantial period.</p>

Action by Miles M. O’Brien and others, receivers, against Frederick A. Kursheedt, impleaded, etc. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals.

Action by Frank S. Gray against Augustus D. Shepard and others, executors. From a judgment entered on a verdict in favor of defendants, and from an order denying a motion for a new trial, Dlaintiff appeals.

Action by Miles M. O’Brien and others, receivers, etc., against Lawrence J. Fitzgerald, impleaded, etc. From an interlocutory judgment overruling a demurrer to the complaint, defendants appeal.

<p>New Trial—Verdict against Evidence.</p> <p>A verdict founded on a disbelief of clear and undisputed evidence will be set aside.</p>

Action by the Mutual Life Insurance Company of New York against the mayor, aldermen, and commonalty of the city of New York. From a judgment entered on a verdict directed in favor of the plaintiff, defendant appeals.

' Appeal from special term, New York county. Action by Mary Foster Long and others against Marion L. Rodgers and others, impleaded with Charles H. Seymour, individually and as executor of George W. Long, deceased, to contest the validity of the probate of decedent’s will. F’rom an order restraining the executor from proceeding in the surrogate’s court for a judicial settlement of his accounts pending the action, defendants appeal.

<p>Appeal from special term, New York county.</p> <p>Action by Harriet Eads against Henry G-. Wynne. From an order denying a motion to vacate an order of arrest, defendant appeals.</p>

<p>Appeal from circuit court, Montgomery county.</p> <p>Action by Bridget Furlong against Justus L. Banta and George S. Banta.- There was a judgment in favor of defendants, and plaintiff appeals.</p>

Action by Howard B. Jaffray and another against Clara Krauss on promissory notes. The complaint was dismissed on the ground that it did not state facts sufficient to constitute a cause of action, and plaintiffs appeal.

Action by Emilia G-Qvin against Nathan Metz and others. A verdict was directed in favor of plaintiff, and defendants move for a. new trial on exceptions ordered to be read at general term in the first instance.

<p>Appeal from special term, New York county.</p> <p>Action by George Philip Wagner against the New York Elevated Railroad Company and the Manhattan Railway Company. There-was a judgment in favor of plaintiff, and defendants appeal.</p>

<p>Fraudulent Conveyances—Action to Set Aside.</p> <p>A deed may be set aside, as in fraud of the grantor's creditors, where the grantor took a mortgage on the land for the entire purchase price, and soon afterwards disposed of the mortgage for much less than its face value, and stated on his examination in supplementary proceedings that he had spent all the money received for it Mayham, P. J., dissenting.</p>

Action by Leila R. Martin, individually and as executrix of William 0. Martin, deceased, against John B. Pine, as trustee under the will of William C. Martin, deceased, and others, to construe a will. There was a judgment in favor of defendants, and plaintiff appeals.

Action by Asbury Lester against the mayor, aldermen, and com-of the city of New York. The complaint was dismissed,- and plaintiff appeals.

Action by Marie T. Upington against Michael A. Corrigan and others. There was a judgment in favor of plaintiff and defendant Pooler, and defendant Corrigan appeals.

<p>Appeal from circuit court, Rensselaer county.</p> <p>Action by Elizabeth Stopp against the Fitchburg Railroad Company. There was a judgment in favor of plaintiff, and defendant .appeals.</p>

<p>Appeal from circuit court, Sullivan county.</p> <p>Action by James Daley, as administrator of William H. Daley, deceased, against the Port Jervis, Monticello & New York Railroad Company. There was a judgment in favor of plaintiff, and defendant appeals.</p>

Action by Amelia M. Millard against Otis G. Clark, as executor, and Ella J. Williamson, as executrix, of Orange R. Young, deceased. There was a judgment in favor of defendants (27 N. Y. and plaintiff appeals.

Judicial settlement of the accounts of Caleb Bandall as administrator of Harvey Bandall, deceased. From the decree settling the accounts, the administrator appeals.

<p>Guabanty—What Constitutes.</p> <p>Defendant agreed to guaranty sales made by plaintiff to V. The first sale was charged to V., and defendant was requested to give his note for the amount, which he did; stating, however, that he understood that the goods were to be billed to him, and requesting that course for the future. Afterwards, all goods were charged to defendant, and the bills were made out to him. Defendant wrote across the face of each bill, “Payment guarantied.” Held, that defendant’s obligation was original, and the indorsement on the bills did not convert it into a guaranty.</p>

Proceeding to extend South Market street, in the village of Johns-town, through lands of Mortimer Wade and others. An order appointing commissioners to assess damages was reversed on an appeal taken by James Younglove (27 N. Y. Supp. 843), and he now moves for a modification of the decision by awarding him costs.

Action by Daniel Bahr against the National Fire Insurance Company of Hartford on a policy of fire insurance. A judgment in favor of plaintiff, rendered by a justice of the peace, was affirmed by the county court, and defendant appeals.

Action by Frederick P. Forster against Charles E. Moore and another to foreclose a mortgage. There was a judgment in favor of plaintiff, and defendants appeal. For former reports, see 22 N. Y. Supp. 1089; 25 N. Y. Supp. 1032'.

<p>Appeal from judgment on report of referee.</p> <p>Action by Martin Grampp against John Watts De Peyster. There was a judgment in favor of plaintiff, and defendant appeals.</p>

Action by Bernhard Liebstadter against Nathan Federgreen to recover damages for an assault. There was a judgment in favor of plaintiff, and defendant appeals.

<p>Appeal from Warren county court.</p> <p>Action by Aliña J. McNutt against William Hiltons and Dallas-W. Lavoy. There was a judgment in favor of plaintiff, and defendants appeal.</p>

Lawrence county. Action by Annie Ives against James Ives for a divorce. From an order denying a motion to set aside an order of reference (28 N. Y. Supp. 170), plaintiff appeals.

<p>Supplementary Proceedings—Custody of Books and Papers.</p> <p>When an examination in supplementary proceedings has been concluded or adjourned, defendant, who had produced his books and papers to be used on the examination, cannot be compelled to leave them with the referee, as there is no statute conferring such power.</p>

Action by Morris Kusselewskey against Samuel Fabricant to recover damages for inducing plaintiff to sell goods by alleged false representations as to defendant’s financial condition. Judgment was rendered in favor of plaintiff on the verified complaint, no evidence being given in support thereof, and defendant appeals.

Action by William G. Schryver against the Metropolitan Life Insurance Company to recover for services rendered. There was a judgment in favor of plaintiff, and defendant appeals.

Action by Frederick Gorham and another against the Eastchester Electric Company to recover damages for cutting a shade tree on the sidewalk in front of plaintiffs’ premises. The deed under which plaintiffs held the premises did not show whether the fee in the street had been condemned, or only a right of way over it for the purpose of a highway. A verdict of $75 was rendered in favor of plaintiffs, and defendant moves for a new trial on the minutes of the court.

<p>Assignment op Attorney’s Fees — Right op Assignee to Attorney’s Lien.</p> <p>A writing by which an attorney agrees to pay a person a part of the compensation to be earned by him in a certain action, “to be a lien on said money,” is a valid assignment, and entitles the assignee to the benefit of the attorney’s lien for the amount assigned.</p>

Claim by Gustav Muller for wages or salary earned by him, as anemployé of Sawyer, Wallace & Co., prior to the execution by them of an assignment for the benefit of creditors. The referee disallowed the preference claimed, and the assignee moves to confirm-the referee’s report.

Action by Frederick Wunsch against Louis Weber and Edward Weber for personal injuries. On the physical examination of plaintiff before trial, objections were made to questions being asked by the physician, referee, or defendants’ attorney, as irrelevant, immaterial, and not within the scope and purport of the order of reference.

Action by Peter F. Roland, as assignee of Christian E. Soelkey. against Kate Emma Pinckney, as executrix of the will of Stephen R. Pinckney, deceased, on an alleged written agreement. The complaint was dismissed, and plaintiff appeals.

Action by Lucius B. Hutchinson against the president and directors of the Manhattan Company and others. There was a judgment in favor of plaintiff. Defendant appeals.

Action by 2i. Bailey against the Sargent Granite Company to recover on claims against defendant for labor which had been assigned to plaintiff. The original summons was entitled “NT. Y. Superior Court,” but the copy summons which was served on defendant was entitled “N. Y. Common Pleas.” Of the papers subsequently served, some were entitled in the superior court, and some in the court of common pleas.

Action by Leopold Krauss against Max Hallbeimer and Morris Ginsberg to set aside an assignment. Plaintiff moves for an order directing defendants to serve cross interrogatories, to be annexed to a commission to take testimony of a witness without the state.

Action by Isaac Cahn against Mary S. Hewsey to enjoin waste by defendant on premises mortgaged by defendant to plaintiff, whereby the mortgage security would be impaired. Plaintiff moves to continue a temporary injunction.

Action by Charles Frohman against Arthur E. Miller and others. Plaintiff moves for an injunction against the production by defendants of a play called “Charley’s Uncle,” and from using certain advertising devices in relation thereto.

Action by Emma L. Jacquelin and others and Sarah E. Youmans and others against the Manhattan Railway Company and others. From orders suspending the operation of injunction in each case for three months from May 6, 1894, plaintiffs appeal.

Action by George Hayes against Linbonier R. Mestaniz. From a judgment entered on a verdict directed .by the court in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Action by Martha M. King against Thomas C. Brewer to annul a marriage contract.</p>

<p>Appeal—When Case is Necessary.</p> <p>An alleged error in dismissing the complaint before plaintiff has concluded his proof does not appear on the record, and can only be reviewed on appeal when incorporated in a case made and settled as required .by Code Civ. Proc. § 997.</p>

<p>Record—Amendment of Postea.</p> <p>A postea need not show the grounds for dismissing a complaint, ana therefore leave will not he granted to amend so as to state the ground on which the complaint was dismissed.</p>

Action by Benno Lewison, substituted as plaintiff in place of the Order Germania, a benevolent corporation, of which said Lewison was appointed receiver, against Louis Hoffman and Johanna Weiss, as sureties on the bond of John Weiss, as treasurer of the Order Germania. Defendant Weiss died pending the action, and it was •continued against defendant Hoffman.

Action by Matilda Stevenson and others against George M. Kaiser and others to redeem a leasehold which was sold under execution issued on a judgment rendered against one Dunning.

Action by Anthony Solarz against the Manhattan Railway Company. There was a verdict in favor of plaintiff, and defendant moves for a new trial on the minutes.

<p>Appeal from circuit court, Ulster county.</p> <p>Action by John Kiernan against the Dutchess County Mutual Insurance Company. There was a judgment in favor of plaintiff, and defendant appeals.</p>

<p>Appeal from circuit court.</p> <p>Action by John Albert against the New York Central & Hudson River Railroad Company for personal injuries'. There was a judgment in favor of plaintiff, and defendant appeals.</p>

<p>Appeal from special term, Clinton county.</p> <p>Action by the Springfield Fire & Marine Insurance Company of Springfield, Mass., against the village of Keeseville. From a judgment sustaining a demurrer to the complaint (26 N. Y. Supp. 1094), plaintiff appeals.</p>

Action by Emeline Pettit against the New York Central & Hudson River Railroad Company. There, was a judgment of nonsuit,, and plaintiff appeals.

<p>Application by the Board of Rapid Transit Commissioners for an order awarding their compensation. J. M. Bowers, for the commissioners. W. H. Clark, Corp. Counsel, for the City.</p>

<p>Action by the Auburn Button Company against Philip L. Silvester and others.</p>

<p>Action by John Brady, as administrator, against the Prudential Insurance Company of America. James A. Donegan, for plaintiff. Wm. .0. Campbell, for defendant.</p>

<p>Action by John T. M. Brewster against William Barlow and another. B. B. Barnum, for appellants. L. J. Morrison, for respondent.</p>

<p>Action by M. Wallace Clark against Eliza W. Clark, individually, and as administratrix.</p>

<p>Action by John S. Cronin against Johanna C. Crooks.</p>

<p>Action by Robert Dan-singer and James H. Vandenburgh against Edward C. White. For former reports, see 19 N. Y. Supp. 897; 20 N. Y. Supp. 985. S. & L. M. Brown, for appellant. Young & Kellogg (L. H. Northup, of counsel), for respondents.</p>

<p>Action by John Butscheck against Vacuum Oil Company.</p>

<p>Action by Edwin Einstein against the Rochester Gas & Electric Company and ano.her.</p>

<p>Action by Alice Harmon by guardian, etc., against the New York Central & Hudson River Railroad Company.</p>

<p>Appeal from circuit -court, Kings county. Action by Frank T. Gilbert against the Long Island Railroad Company to recover •damages for personal injuries. William C. Beecher, for appellant. Charles J. Patterson, for respondent.</p>

<p>Action by Henry Holly and others against the Manhattan Railway Company.</p>

<p>Action by August Klipstein against the New York Elevated Railroad Company. For former report, see 28 N. Y. Supp. 683.</p>

Application by Jonas Litt for mandamus to compel Z. Taylor Emery, M. D., as commissioner of the department of health of the city of Brooklyn, to restore petitioner to the position of meat inspector. Alexander H. Van Cott, for appellant. Blanchard, Gay & Phelps (Joseph G. Gay, of counsel), for respondent.

<p>Appeal from fifth district court. Action by John Larkin against William Sullivan, as president, etc. Samuel Mullen, for appellant. Abraham H. Sarasohn, for respondent.</p>

Action by Arthur R. Peck against Johanna Dieterich and another, as executors of Lewis C. Dieterich, deceased. From a judgment affirming a judgment of the justice of the peace, plaintiff appeals. Affirmed. Jacob W. Clute, for appellant. Walter Briggs, for respondents.

<p>Appeal from sixth district court. Summary proceedings by Matilda Pfaif against Helen Reddick. R. W. Newhall, for appel.lant. Straley, Hasbrouck & Schloeder, for respondent.</p>

<p>Action by Anna J. Ripley against Virginia Jaussen. J. F. Higgins, for appellant. W. W. Foster, for respondent.</p>

<p>Action by Henry P. Rogers and others against Frank Y. Maguire. J. F. Miller, for appellant. T. D. Kenneson, for respondents.</p>

<p>Action by Leocadia Schaad against George M. Edebohls. Purrington & Shannon, for appellant. G. B. Boyd, for respondent.</p>

Action by Charles Tan¿e against the New York & New Jersey Investment Company. There was a judgment in favor of plaintiff. and defendant appeals. Reversed. Fromme Bros., for appellant. 1. Newton Williams, for respondent.

<p>Action by M. Francis Wager against Thomas B. Link and others. Warren. Patterson & Faulkner (Chas. E. Patterson, of counsel, for appellants. G. R. Donnan and E. R. Harder, for respondent.</p>

Action by Louis P. Whiteman against the Saratoga Kissingen Spring Company. An attachment was vacated on the motion of the First National Bank of Saratoga Springs, a junior attaching creditor, and plaintiff appeals. J. B. A. Mullally, for appellant. Walter M. Rosebault, for respondent.

Application of Amy Williams to remove an executor, and for leave to file further objections to said executor’s account. I. Newton Williams, for applicant. Scott & Upson, opposed.

Action by Andrew S. Wright against Benjamin F. Deniston and John C. Shaw and others. From an order directing compliance with certain terms of a judgment at equity term as an alternative to the defendants being adjudged for contempt, defendants Deniston and Shaw appeal. Gratz Nathan and John 0/ Shaw, for appellants. Charles B. Meyer, for respondent.