Volume 3 — New York Appellate Division Reports

<p>Appeal by the defendant, the Buffalo, Rochester and Pittsburgh Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 3d day of September, 189.5, upon the verdict of a jury rendered after a trial at the Monroe Circuit, and also from an order entered in said clerk’s office on the 3d day of September, 1895, denying the defendant’s motion for a new trial made upon a case and exceptions.</p> <p>This action was commenced for the recovery of damages for personal injuries to the plaintiff, alleged to have been caused by the defendant’s negligence, and at the trial at the Circuit the plaintiff recovered a verdict of ■ $6,500.</p> <p>The, jffaintiff, who was a brakeman of some experience, entered the service of the defendant in that capacity upon the 28th day of ' March, 1892, and at about seven o’clock in the evening of that day he was furnished with a lantern by the defendant’s night yardmaster, at Lincoln Park, in the city of Rochester, and was by him assigned to work in the yard with the switching crew. In the course of his employment, and shortly after he commenced work, the plaintiff went up to that part of the yard west of Lincoln Park station to a switch where-there was a train of coal ears. These cars were pulled from a side track out on to the main track. The .conductor pulled a pin at the west end óf the rear car and -that car was kicked easterly down the main track by the engine. Certain other cars in the train were kicked back into the side track, and then another ear was kicked down the main track, and the plaintiff in attempting to couple this car to the car first above mentioned-was injured. His right hand was caught between the buffers or dead-woods, and crushed to such an extent as to require amputation between the fingers and the wrist. The plaintiff claimed that he sustained his injury by reason of a defect in the defendant’s roadbed. The tracks in this yard were well ballasted, the gravel coming up to the level of the tops of the ties with the possible exception of the point at which the plaintiff was injured, where, he testifies, there was a hole in the ballast extending from the westerly rail to about the center of the main track and from one tie to another; that is, about ten inches, and of the depth of about eight inches.</p>

<p> Gontracts —to perform the duties of another as chairman of a county committee-burden of pi’oof that it is against.public policy—nonstiit. </p> <p>"Upon an appeal from a judgment of nonsuit the plaintiff is entitled to have the case considered in the light most favorable to him, and to have the benefit of every fact proved and of every inference which is -fairly deducible from the facts,</p> <p>In an action brought by the assignee of one Fred M. Smith to recover for work, labor and services performed by him, it appeared that in the month of August, 1893, the defendant informed Smith that he was about to be chosen chairman of-a county Democratic committee; that he was anxious toaccept the position, but had not time to perform its duties; that he wished Smith to perform theffi and promised to pay Smith for such performance. The defendant -was appointed chairman and Smith performed his duties, opened party headquarters,- remained there to receive persons and answer questions, provided for meetings and speakers, received the speakers and took' care of them, and also provided transportation for -the speakers and accompanied them - to- various places in the county.</p> <p>Upon the trial the plaintiff was nonsuited,</p> <p>Held, that the contract was not necessarily against public policy, nor did it violate subdivision 4 of section 41o of the Penal Code, prohibiting the contribution of ■money for any other purpose than the- printing and circulation of handbills, books' and other papers previous t.o an election or town meeting, or the' conveying of electors to the polls, or for music or rent of halls; .</p> <p>That the contract was personal in its character for the performance by the plaintiff’s assignor of .the work of the defendant, in such manner that tile defendant would receive the credit for it;</p> <p>That, if the contract was designed-for some- forbidden purpose and tó defeat or evade the statute, it would undoubtedly be void, but that the burden wag upon, the defendant to show this; '</p> <p>That as the contract appeared the nonsuit was improper.</p>

<p>■Master and servant — defective machinery-^-burden of proof where there are several causes for an accident.</p> <p>In an action brought to recover damages resulting from injuries alleged to have been caused by the negligence of the defendant, it appeared that at the time of the accident the plaintiff, who was a “heater” at a steam forge, was employed in' taking out and replacing the upper die of a steam hammer, which was com trolled by a lever which admitted or shut off steam. A person named Beeves, who was in control of the lever, adjusted it in such a manner as to raise the rain-above the die about two feet, thus enabling the upper die to be reaehed, and in this position the lever was held- by a set screw screwed tight. The die was turned around, and the plaintiff attempted, to insert an iron toggle designed- to hold the upper die to the ram, but the die wouhThot connect with the ram, and an attempt Was then made by another person to drive it into position by a sledgehammer; this jarred the hot toggle, which fell Upon the bed plate, -and the plaintiff, making a holder of his hat, picked it up, and, while he Was attemping to replace i-t, the ram fell and crushed his hand. - ,</p> <p>Beeves- testified, in effect, that the lever had nothing to do with the accident, and that after it he found the set screw to be tight. There was also evidence that if the machine had been in proper condition the Valve would not have moved with the léyer set, and that unless the -valve did move the ram could not fall; that the ram leaked steam and made a squeaking noise when the hammer was raised, and would occasionally stick at the top and at the bottom of the machine, so that steam would not move it, and resort to a sledge hammer was necessary, and that immediately after the accident the ram-got beyond control and bounced up and down. ....</p> <p>Seld, that the defendant was bound to furnish the plaintiff, h}s employee, with a safe place in which, .and reasonably safe machinery with-which, to do .'his work;</p> <p>That, upon all the evidence, the accident must he attributed to some defective' ^condition of the machinery;</p> <p>That, while the cause of the accident was not entirely clear, and while where two or'more, causes operate to produce the injury complained of, for one or more of which the defendant is not responsible, the plaintiff must establish by affirmative proof that his injury is wholly or partially the. result of .a cause for which ■■' the defendant was responsible, yet the jury would have been justified in this case in finding that the accident resulted from defective machinery for which the defendant was responsible.</p>

<p>Extra allowance in an action for an injunction to prevent the pollution of a streami — the damages demanded are a proper basis — if damages are not demanded, no basis exists — Code of Civil Procedure, § 3258.</p> <p>In an action brought to restrain the defendant from diverting or polluting the waters of a creek, the complaint alleged that the defendant maintained salt works upon a stream above the plaintiffs’ property, used the water of the stream in salt wells, withdrew the brine, and evaporated it in such a manner that a considerable part went back into" the stream and polluted it. JSTo damages were asked for and no relief beyond an injunction restraining the defendant from divering or making use of the stream in any manner which would prevent the water from being restored to the stream substantially in the same volume in which it was diverted therefrom, and in its natural purity. Upon tile dismissal of the complaint the defendant made a motion for an extra allowance, based on affidavits-which tended to show that the salt plant, with the use of the stream, was worth §220,000; that, if deprived of the water, the plant would not be worth more than §20,000, and upon this state of facts the defendant contended that the value of “ the -subject-matter involved” was §200,000.</p> <p>Held, that this view was untenable;</p> <p>That the value of the defendant’s plant was not involved, as the plaintiffs had not sought to restrain its operation entirely, but merely demanded that the defendant should conduct its business in such a manner as not to pollute the stream, and as the defendant had answered that, unless it could continue to conduct its business as before, the value of its plant would be depreciated, it clearly appeared that the damage sustained would be incidental or consequential, and would not be direct;</p> <p>That the only proper basis of an extra allowance, under such circumstances, was the damages demanded - by the plaintiffs, and that, as they- had not demanded any damages, the defendant could not be granted an extra allowance.</p>

Appeal by the defendant, the Postal Telegraph Cable Company, from a judgment of the Supreme Court in favor,of the plaintiffs, entered in the office of the clerk of the county of Erie on the 14th day of June, 1895, upon the verdict of a jury rendered after a trial at the Erie Circuit. This action was brought to recover damages caused by the defendant’s failure to transmit a message sent by the plaintiffs to one of their firm in reply to a prior message received from him.

Appeal by the plaintiffs, William Kiernan and another, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Cattaraugus on the 14th day of October, 1895, requiring ■ the clerk of Cattaraugus county “ to tax and allow the defendant’s costs in this action subsequent to the offer of judgment made by the defendant on the 11th day of May, 1892, and to retax and readjust the plaintiffs’ costs in this action, and…

Appeal by A dele L. Hulburt and others from a decision, order :and determination of the Monroe County Court, entered in the ■office of the clerk of the county of Monroe on the 19th day of August, 1895, adjudging that the lands of the petitioners were agricultural lands,- that they were swampy, low or wet, and that it was necessary in order to drain them that a ■ ditch or ditches or other channels for the passage of. water should be opened through the lands belonging to the…

Appeal by the plaintiffs, Philip II. Sage and another, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Lewis on the 28th day of September, 1895, upon the decision of the court rendered after a trial at the Onondaga Special Term.

Appeal by the plaintiffs, George IT. Preston and another, from a judgment of the Supreme Court in favor of the defendants, entered in'the office of the clerk of the county of. Wayne on the 1st day -of July, 189.5, upon the decision of the court rendered after a trial at the Wayne Special Term, and also from an order bearing date the 24th day of June, 1895, and entered in said clerk’s office, granting costs and an extra allowance of $150 to the defendants.

<p> Decision upon conflicting evidence, not disturbed,. </p> <p>Where there is a direct conflict in the evidence upon a vital question arising in . an action, the decision of the question hy the trial court will not he disturbed on appeal.</p>

<p> Action against a wife as maker and the husband as indorser of a note—counterclaim, interposed by the husband—affirmative judgment in favor-of the husband and wife—remedied upon an appeal, without an exception. </p> <p>In an action brought to recover uppn a promissory note it appeared that the note was made by the defendant Rosa Lang, was indorsed by the defendant Fred W. Lang, and was by him delivered to the plaintiffs as part payment of the price of a horse which Fred W. Lang had bought- pf the plaintiffs, he having also paid fifty dollars in cash at the time of the sale.</p> <p>The defendants answered separately, the husband, Fred W. Lang, setting up a breach of warranty and also a counterclaim, the wife, Rosa Lang, interposing the like answer except that she set up no counterclaim.</p> <p>The jury rendered a verdict for both defendants for eighty dollars and thirty cents, and judgment was entered accordingly. There was no request to find made nor any exception to the charge of the judge, but the plaintiff moved for a new trial upon the minutes, and, when this was denied, appealed from the judgment and from the order denying a motion for a new trial.</p> <p>Held, that as Rosa Lang had interposed no counterclaim, and as the liability of the defendants was several in its nature, the affirmative judgment in favor of both the defendants based upon the counterclaim was improper;</p> <p>That the court had power over its judgments and could correct a substantial error, although the error had not been specifically pointed out by an exception, and that the judgment for the counterclaim in favor of the wife should be set aside as not supported by sufficient evidence. ■</p>

<p>Appeal by the plaintiff, George F. Ditmars, as receiver of the property of Arthur E. Smith, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Ontario on the 23d day of September, 1895, upon the report of a referee.</p> <p>This action was brought to set aside an assignment made by defendant Smith to defendant Peel, a ■ deputy sheriff, of certain book accounts to apply on an execution against Smith in the hands of Reel, as deputy sheriff, for collection.</p> <p>January 16, 1895, James B. Ford recovered a judgment in the Supreme Court against Arthur E. Smith, the defendant in this action, for $3,634.8.0, and on the same day and in the same court John A. Parlett recovered a judgment against said Smith for -.$2,054.75 ; on the same day executions were issued thereon and delivered to the defendant Peel, as deputy sheriff, .who, under such executions, immediately levied on all the property of the judgment debtor, , including his books of account, and after due advertisement sold the property at public sale. The amount so realized was $2,705.15, about $3,000 less than the executions in his hands. Prior to the sale about $1,000 in value of the property was surrendered to other creditors, who claimed such property so surrendered. The proceeds of the sale were credited by the deputy sheriff on the executions in equal amount. Immediately after the levy was made the deputy sheriff obtained from the defendant Smith this assignment :</p> <p>“ Geneva, 1ST. Y., Jan. 16, 1895.</p> <p>“For value received I assign and turn over to George A. Peel, deputy sheriff, to apply on the executions he holds against me, all of my book accounts and the sums due thereon.</p> <p>“ ARTHUR E. SMITH.”</p> <p>After the sale of the goods Peel proceeded to collect, ivhat he could of the book accounts and indorsed the amounts so collected on the executions. Subsequent to this assignment other creditors of the defendant Smith obtained judgments against him, and the plaintiff was afterwards duly appointed receiver under such judgments and he brings this action as such receiver.</p>

<p>Telegraph corporation — astipulation in its Manic against its own negligence does not relieve against gross 'negligence.</p> <p>In an action brought to recover damages resulting from the alleged negligence of the defendant in delivering a telegraphic message, it appeared that F. & Brennison & Son wrote to the plaintiff, who lived at Halls, New York, to inquire the price at which the plaintiff would sell a quantity of apples, in reply to which the plaintiff wrote out and sent by the defendant a message which read as written: “One dollar-fifty, freight thirteen cents. Answer quick;” this message when received hy F. G. Brennison & Son did not contain the word “ fifty.” The plaintiff’s offer was accepted, the apples were shipped, and the plaintiff by reason of the error in the message sustained a loss.</p> <p>Upon the defendant’s blank was the following notice: “To guard against mistakes or delays the sender of a message should order it repeated, that is, telegraphed back to the originating office for comparison,” and it was further stated that, unless a message was repeated, the defendant should not be liable, even in a case of negligence, for more than the amount received for sending the message.</p> <p>It was shown that when the message was received at Buffalo it contained upon its face the figure “8,” indicating that it originally consisted of eight words, while the message as delivered consisted of but seven words.</p> <p>The plaintiff testified that, although he had been using these blanks for twenty-five years, he did not know of the stipulation contained in them limiting the liability of the defendant. The court found' that the defendant was guilty of gross negligence and rendered judgment in favor of the plaintiff for §247.66, with interest and costs.</p> <p>Held, that the plaintiff had ample opportunity to acquaint himself with the conditions printed upon the blank, and that it was his own fault if he omitted to read them;</p> <p>That although he was bound by the conditions the. company was liable because it had been guilty of gross negligence;</p> <p>That a telegraph corporation could not, by notice to the public, limit its liability when its negligence was gross or its conduct willful;</p> <p>That the claim of the defendant, that it was exonerated from liability because it had no knowledge of the special purpose which the plaintiff had in'view when he sent the message and that the message did not disclose its purpose, was not tenable, as the message, upon its face, plainly indicated, an important business transaction.</p>

<p>Motion' by the defendant, The Phoenix Insurance Company of Hartford, Connecticut, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance upon the Yerdict of a jury, rendered after a trial at the Tates Circuit on the 4th day of June, 1895.</p> <p>December 6, 1893, the defendant issued to plaintiff a policy óf insurance in the standard form, whereby, in consideration of the premium of nine dollars and fifty cents, it insured the plaintiff from December 6, 1893, to February 6, 1894, against all direct loss or dambge by fire to an amount not exceeding $2,500 on grain, malt, or grain in process of malting, while contained in the two-story and basement brick and frame malting establishment occupied as a malt house and for storage purposes at No. 25 Water street, Penn Tan, N. T.</p> <p>The policy contained, among others, this condition : “ This entire-policy, unless otherwise provided by agreement, indorsed hereon or added hereto, shall be void * * * if the. subject of insurance be personal property, and be or become incumbered by a chattel mortgage.”</p> <p>December 23, 1893, the plaintiff, being indebted to three of his employees in the sum of $160, executed and delivered to them a-chattel mortgage on 300 bushels six-rowed malt, then on kiln in plaintiff’s malt house, as security for said amount. The malt therein described was upon the kiln, separate from the other malt. There was no indorsement on the policy consenting to the incumbering of the property insured, or any part thereof, by'chattel mortgage.</p> <p>The policy contained this further condition: “ This entire policy, unless otherwise provided by agreement, indorsed hereon or added hereto, shall be void" * * * if any change, other than by the death of an insured, take place in the-interest, title or .possession of the subject of insurance, * * * whether by legal process or judgment, Or by voluntary act of the insured or otherwise.” • ■</p> <p>At the.time the policy was issued plaintiff was the owner of a large amount of barley, which was then in the .building described in the policy, in process of malting.</p> <p>During the months of November and December, 1893, plaintiff sold of such barley to one Amsdell 889 bushels of six-rowed malt and 600 bushels of two-rowed malt, and to one Hoffnér 808 bushels of six-rowed malt and 700 bushels of two-rowed malt, which malt was shipped out of' the malt house and delivered during those months.</p> <p>There was no indorsement on the policy consenting to these sales or to this change of title or possession of this property.</p> <p>The malt house, and all the grain and malt therein contained, was destroyed by fire January 2, 1894. At that time the plaintiff had in the malt house 2,870 bushels six-rowed barley of the value of eighty-five cents a bushel, and 1,005 bushels two-rowed barley of the value of seventy-five cents a bushel.</p> <p>Plaintiff duly gave notice of the fire, and furnished proofs of loss, as required by policy. At the expiration of sixty days after delivery of proofs of loss, the defendant having failed to pay, this action was brought, which was tried at Circuit before a jury.</p> <p>At the close of the evidence defendant moved for a nonsuit upon the ground that the property insured by this policy, or a portion thereof, became incumbered by chattel mortgage intermediate the time it was delivered or took effect and the. time of the fire, without the consent of the company being indorsed thereon, and that thereby the policy became null and void. Motion was denied. Defendant éxcépted. The cause was submitted to the jury, and it rendered a verdict in favor of plaintiff for $2,667.80.</p>

<p>Appeal by the defendant, the Fall Brook Coal Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in. the office of the clerk of the county of Steuben on the 12tli day of December, 1895, for $5,188.10 damages and costs, upon the verdict of a jury rendered after a trial at the Steuben Circuit, and also from an order entered in said clerk’s office on the 12th day of December, 1895, denying the defendant’s motion for a new trial made upon a case and exceptions. *</p> <p>This action was brought to recover damages for injuries received by the plaintiff through the alleged negligence of defendant.</p> <p>The plaintiff entered the employ of defendant in May, 1881. He worked upon the road six or eight months as brakeman, and then in the yard of defendant at Corning as night switchman, and continued as such until the time of the. accident.</p> <p>On the 5th day of December, 1889, the plaintiff went to the yards of defendant at six o’clock in the evening and worked until ten, switching cars. That was the first time plaintiff had worked on the. switch engine which was used that night for switching, and was known as Mo. 13; it had a foot board on each end, and had no pilot. It had one buffer extending in front about eighteen inches, and a mouth organ drawhead or nigger head.</p> <p>The plaintiff gave the following account of the situation just previous to the accident and the manner in which the accident happened, and its cause: “We had got through making up a train and had cleared out for another. We all got on the engine at that time. That was the first time I was on the front of the engine, that evening. * * * I had a common railroad lantern which I set on the bumper just back of where my hand was. * * * I don’t know whether or not it was moonlight.- I -think it was apparently dark. I don’t know whether there was any moon that evening. * * * We were going to couple to a gondola car. * *" * I put. the link in the draw-head just, before we came to the car. I did not look to see if there was a link in the drawhead of the gondola. The engine had a' headlight that showed me the end of the gondola with, perfect distinctness. We were about three ear lengths from the car when the headlight showed the end of the gondola. * * * The engine was going something like four or five miles an hour. I put the link with my left hand into, the nigger head and dropped the pin into the end of the link with my right hand. At that time I had approached I think two, four or five feet from the end of the car. My lantern was standing on the bumper of the engine. * * * When I -had put the link into the nigger head of the engine I think I made the coupling-—-undertook to make it. * * ' * I stood on the footboard and put a link in the car and reached over and entered the link, and I reached to <set the pin and the steam came out of the valves and blinded me so-I couldn’t see when I -went to set the pin, and my hand was caught in the operation. * * * I was reaching with my left hand -to put the pin into the drawhead of the car when my arm was caught between the bumpers on the gondola and the bumper on the engine.- * * * Q.. Describe how the steam came out that night? A: As I stood .upon the' footboard of the engine the steam came from the relief valve of the cylinder or upon the steam chest rather, and also out of the piston: * *■ * Q. As this engine approached the car, was the steam -escaping all the time ? A. I think not. Q. As you- approached the car, did, or did not the engineer, or whoever was running the engine, slow the the engine down? A. Yes,'sir. Q. State w-hén it was when this steam escaped, with reference to that? A. I think it escaped when he reversed his engine. Q. To slow ah engine down you reverse it? A. Yes, sir or shut the throttle.”</p> <p>Ho other person witnessed this accident, and this is all t-lie evidence given concerning the accident. Other evidence. Was given by plaintiff’s witnesses tending to show that at the time of the accident steam did escape from some of the valves and from around the piston of the engine.</p> <p>There is some evidence in plaintiff's behalf tending to show that ■steam had so escaped on different occasions preceding the time of -the accident, but to "what extent or from' what cause does not clearly appear. The plaintiff himself testifies that, although he worked with this engine from six o’clock in the evening until ten o’clock, when the injury occurred, he did not notice that the engine leaked steam. There was also evidence given by the plaintiff’s witnesses, showing that if plaintiff had stood upon the right side of the engine instead of the left, he could have made the coupling with perfect safety, as upon the right there was no buffer, but, as he stood, there was a buffer between him and the drawheads. The plaintiff testified that when he went to work in the yards he was instructed by the yardmaster to work upon the left side of the engine, and that he was there in pursuance of such instructions.</p> <p>At the close of plaintiff’s case a motion was made by defendant’s counsel for a nonsuit upon the grounds:</p> <p>“ I. That there was no negligence on the part of the defendant-proven.</p> <p>“ II. That it was not proven on the part of the plaintiff that he was free from contributory negligence.</p> <p>“ III. That there was no proof that the engine was not as other engines are, or that it leaked steam any more than ordinary engines do.</p> <p>"IV. That even if the engine were out of condition there was no notice proven to the defendant of its condition.”</p> <p>The motion was denied and defendant duly excepted.</p> <p>Evidence was then given by defendant tending to show that the engine was in perfect condition; that it did not leak steam to any appreciable extent, or more than engines in perfect condition; that the plaintiff, if he had been reasonably prudent in selecting the position where he was to do his work, would have stood upon the right of the engine instead of upon the left; that if he had occupied the position upon the right he could have made the coupling with perfect safety. The yardmaster denied that he had ever directed plaintiff to work upon the left of the engine.</p> <p>Evidence was also given by defendant showing that a person standing at the right of the engine could signal by voice or lantern to the engineer, whose position in the engine was upon that side; and that if the switchman stood lipón the left of the engine he could not see the engineer.</p> <p>The cause was submitted to the jury and they rendered a verdict in favor of the plaintiff for $5,000 which, together with the interest from the time of the verdict to the time of the entry of judgment, and the costs, constitute the amount of the judgment entered against defendant. After entry of judgment a cáse and exceptions were made and settled, and a motion thereon made for a new trial before the justice who presided at the trial; such motion was denied. The case comes into this court upon the appeal from the judgment and from the order denying the motion for a new trial.</p>

<p>Appeal by the plaintiffs, William J. Ziegele and others, from, a judgment of the Supreme Court in favor of the defendants,- entered in the office of the clerk of the county of .Erie on the 2lth day of November, 1895, upon the report of a referee.</p> <p>This action was brought to restrain the defendants from the use of a dock situate near the foot of Ferry street in the city of Buffalo and between the Erie basin and the Niagara river on what is known ' as Bird Island Pier.</p>

<p>Specific performance — relief where no damages are alleged or demanded — action in equity and remedy at law —where executors, not heirs, are proper parties defendant ■—where the evidence is not returned the question is whether the findings sustain the conclusion.</p> <p>In an action brought against the defendants, as devisees and executors under the last •will and testament of Elijah D. Webster, deceased, to compel the specific performance of a contract for the purchase of land by the said Elijah</p> <p>" D. Webster from the plaintiff, it appeared that the complaint did not allege that any damages had been suffered, nor did it demand damages.</p> <p>The findings of fact were to the effect that the plaintiff had performed and that the defendants had not performed, and that the executors had sufficient means to pay any judgment rendered, but there was no finding as to damages. There was a single conclusion of law which stated that the plaintiff was entitled to recover judgment against the defendant for damages of §150, besides costs, for breach of contract.</p> <p>The record on appeal.contained none of the evidence.</p> <p>Held, that as no evidence was presented the appeal must be considered upon the judgment roll alone, and the single question was whether the findings of fact sustained the conclusion of law;</p> <p>.That as the facts found were separately stated in the decision, they must support the conclusions of law;</p> <p>That as there was no finding that the plaintiff had sustained dams ges, nor any allegation to that effect in the complaint, the conclusion of law had nothing to Support it;</p> <p>That the distinction between equitable and legal causes of action, and the reme.dies .appropriate to them, still existed, and that a recovery must be had secundum allegata etprohata, and that if, under the.evidence, the plaintiff was entitled omy to legal relief, the action could not be sustained upon a complaint which sought only relief in equity.</p> <p>Whether, in such case, the executors having sufficient assets, the complaint against the heirs and devisees should he dismissed, on the ground that the executors were the proper parties defendant, considered.</p>

<p>Appeal by the defendants, John D. McKechnie, as surviving executor, etc., of Alexander McKechnie, deceased, and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Ontario on the 23d day of April, 1895, upon the decision of the court rendered after a trial at the Ontario Special Term, adjudging that the plaintiffs, Jane McKechnie and Mary McKechnie, were the -owners of the premises described in the complaint, subject to a life lease of the plaintiff Jane McKechnie in five-ninths thereof, and subject to the amount due on a mortgage to be ascertained by a reference, and when ascertained that the plaintiffs have leave to redeem the premises from the lien of the mortgage.</p> <p>October 15, 1891, this action was begun to obtain leave to redeem the premises described in the complaint from the lien of a mortgage executed October 22, 1856:</p> <p>Robert McKechnie acquired title to the premises described in the complaint by two deeds, one executed May 1,1837, by Gardner Straight and wife, unrecorded, and the other executed August 1, 1837, by Joseph Maftel and wife, recorded in the office of the clerk ■of Wayne county August-2,1857, in book 22 of Deeds at page 197. April 27, 1852, Robert McKechnie and Jane,, his wife, in consideration of $2,500, conveyed, by a quit-claim deed, the premises to James and Alexander McKechnie, which deed was recorded in the ■office of said clerk July 7, 1852, in book 54 of Deeds at 'page 185. October 22, 1856, James and Alexander McKechnie and their wives, in consideration of $3,000, conveyed the premises to Robert McKechnie by a deed recorded in the office of said clerk Movember 12, 1856, in book 67 of Deeds at page 228. To secure the payment of the purchase price of said conveyance, Robert McKechnie, October 22, 1856, gave his bond to James and Alexander McKechnie ■(the vendors) by which the obligor undertook to pay to the obligees $3,000, with interest, as follows The interest thereon October 22, 1857, and interest thereon with $500 of the principal October 22, 1858, and a like sum with interest on every twenty-second day of ■October thereafter until the vrhole sum should be paid, the last' payment falling due October 22, 1863. The bond contained a provision that in case any installment of principal or interest remained unpaid for thirty days after it- became due, the whole principal sum should, at the option of the obligees, become immediately due and payable. To. secure the payment of his bond Robert McKechnie ■executed, October 22, 1856, a mortgage on the premises soconveygd) to him, which contained the same conditions as the bond, and- was-recorded in said- clerk’s office Movember 12, 1856, in book MA 40 op. Mortgages at page 228.</p> <p>December 10 and 15, 1857, Bobert McKechnie executed to James and Alexander McKechnie the following bills of sale:</p> <p>“Jambs and Alexander McKechnie,</p> <p>To B. M. McKechnie.</p> <p>To 1 bureau........................................ $5 00</p> <p>To 2 .weighing scales................. :............. 25 00</p> <p>To a panorama..................................... 15 00</p> <p>.......................................... . 35 00</p> <p>$35.00, 1857, Dec’r 10th, reed, pay.,</p> <p>B. MoKECHKTE.’’</p> <p>“ Jas. & Alex. McKechnie,</p> <p>To Bobert McKechnie.</p> <p>To 7 stoves, one cook stove, two coal, one box, three</p> <p>parlor.......................................... $40 00</p> <p>To 100 ft. stove pipe................................ 15 00</p> <p>To 1,000 beer and whiskey bbls. and ten puncheons..... 500 00</p> <p>To 4 carpets....................................... 30 00</p> <p>To 1 mahogany and 8 other tables..................... 40 00</p> <p>To 2 one-horse sleighs and cutter...................... 40 00</p> <p>To 1 mare and wagon and lumber wagon............... 100 00</p> <p>To 200 bush, malt,- poor........ 150 00</p> <p>To 24 chairs and 2 bureaus........................... 25 00</p> <p>To 3 beds, bedclothes and bedstead........... 25 00</p> <p>To 50 lbs. hops..................................... 4 00</p> <p>To 3 cords wood, poor............................... 6 00</p> <p>To 1 panorama and 2 music boxes............ 25 00</p> <p>To 3 bedroom stands................................ 7 00</p> <p>To 2 wheelbarrows.....■............................. • 3 00</p> <p>To 5 shovels....................................... 2 00</p> <p>To 2 looking glasses................................. 3 00</p> <p>$965 00</p> <p>“Bec’d pay. 15th Dec., 1857.</p> <p>“ BOBT McKECHNIE.”</p> <p>December 22, 1857, Bobert McKecimie executed a quit-claim deed, which purports to convey said mortgaged premises to Pomeroy Tucker, which deed was recorded in said clerk’s-office June 30,1859, in book 73 of Deeds at page 231; and December 23, 1857, said Pomeroy Tucker and Ms wife executed a quit-claim deed, which purports to convey the mortgaged premises to Jane McKechnie, one of the plaintiffs herein, who was then the wife of Robert McKechnie, which deed was recorded in said clerk’s office June 30, 1859, in book 73 of Deeds at page 290.</p> <p>March 11, 1858, Robert McKechnie died intestate, leaving him ’ surviving Jane McKechnie,. his widow, born in 1827, Lizzie McKechnie, born June 11, 1846, Mary McKechnie, born October 9, 1848, and John A. McKechnie, born February 14, 1851, children and •only heirs and next of kin of Robert McKechnie.</p> <p>No administrator for the estate of Robert McKechnie has over •been appointed.</p> <p>In May, 1863, Lizzie McKechnie died intestate, leaving her surviving her mother, her brother and sister, her only heirs and next of kin, who are the plaintiffs in this action. No administrator lor her estate has ever been appointed.</p> <p>For many years preceding the death of Robert McKechnie he was a brewer, and at the time of his death the mortgaged premises were occupied by him as a brewery. He left no personal estate, -except about 125 barrels of ale, worth $6 per' barrel; 750 bushels of malt, worth $1 per bushel; about 1,000 empty ale barrels, worth $2 per barrel; puncheons, stillions, vats and implements used m the brewery, of the value of about $500, and a horse, wagon, sleigh and harness, worth about $165, which were in and about the brewery when he died. Some of this property is described in the above bills ■of sale. •</p> <p>Robert, James and Alexander McKechnie were brothers, and' at. the date of the death of Robert, James and Alexander were, and for many years had been, partners, under the firm name of J. & A. McKechnie, and engaged in the business of brewers at Canandaigua,- N. Y.</p> <p>Three or four days after the death of Robert McKechnie, James McKechnie came to the brewery at Palmyra and took charge of the business, and' thereafter it was carried on by the firm o-f J. & A. McKechnie.</p> <p>April 14, 1858. James and Alexander McKechnie began, through James -Peddie, their attorney, statutory proceedings to foreclose said mortgage. A notice of sale was prepared and signed, which stated that a default had occurred in the payment of the sums secured and that the premises would be sold July 10, 1858, at a place named. April 14, 1858, this notice was published in the Wayne Democratic Press, a newspaper published in the county of Wayne, and was so published weekly for twelve weeks, as appears by the affidavit of the publisher, verified July 19, 1858. April 14, 1858, a printed ■copy of the notice was duly posted on the outer door of the court house of said county, and on the same day a printed copy thereof was filed with the clerk of the county, who on the same day affixed it in a book prepared and kept for that 'purpose. .These facts appear by the affidavits filed. James Peddie verified an affidavit August 17, 1858, in which it is stated that June 26,1858, he personally served Jennie McKechnie with a printed copy of said notice of sale by delivering it to and leaving it with her at her residence at Palmyra, and that July 10, 1858, he sold the mortgaged premises to James and Alexander McKechnie for $3,411.02, they being the highest bidders and that being the highest sum bidden. These affidavits were recorded in the office of the clerk of the county of Wayne June 30, 1859, in book 45 at page 228.</p> <p>Jane McKechnie testified on the trial that a notice of the sale was not served on her.-</p> <p>In October, 1858, Jane McKechnie and her children removed from Palmyra to 'Canandaigua, where she occupied a house on FTorth Main street, owned by James and Alexander McKechnie, until October 22, 1892, for which she paid no rent. For nearly seven years after their removal to Canandaigua, and until September, 1865, the family was supplied with groceries and fuel by James and Alexander McKechnie without receiving payment therefor, and after-that date they gave her twenty-five dollars per month until April 5, 1884.</p> <p>In July, 1862, James and Alexander McKechnie received $1,500 from the State for damages done to the mortgaged premises by the ■enlargement of the Erie canal. January 28, 1883, Alexander McKechnie died, leaving a will of which John D. McKechnie, -defendant, is the surviving executor, and September 12, 1889, -James McKechnie died, leaving a will of which Orin S. Bacon, ■defendant, is the surviving executor.</p>

<p>Election Law — the provisions as to the time of filing certificates of nomination are 'mandatory — duties of the clerk — power of the Superior Court of Buffalo — method of reviewing the decision of a clerk as to filing ■— when a question will he decided, although the election is past —clerk’s right to appeal.</p> <p>The provisions of section 59 of chapter 680 of the Laws of 1892, as amended by chapter 810 of the Laws of 1895, providing that, where certificates of party nominations are directed to be filed with a county clerk, they shall be so filed at least twenty-five, and not more than thirty-five, days before the election, are mandatory, and a county clerk may properly refuse to file such a certificate presented to him only twenty days before the election.</p> <p>The provisions of this section requiring such certificates of party nominations to be filed at least twenty-five, and not more than thirty-five, days before the election, and requiring certificates of independent nominations to be filed at least fifteen, and not more than thirt}r, days before the election, are- a recognition of the fact that independent nominations are seldom made until party nominations, which have been made, have been found to be unsatisfactory to a portion of the electors; and the intention of the statute is to give dissatisfied electors a reasonable time within which to make independent nominations.</p> <p>The provisions of the statute, calculated to give voters an opportunity to consider the qualifications of the regular nominees before being compelled to decide whether independent nominations should be made, and requiring the respective county clerks to publish the list of nominations, to procure official ballots and fac similes of official ballots, and to take measures for their distribution, all demand that its requirements in respect to the time of filing certificates of nomination .should be held to be mandatory.</p> <p>A judge of yhe Superior Court of Buffalo had power to make an order requiring a county clerk to file certificates of nomination, and reversing the decision of the county clerk that the certificates were not entitled to be filed.</p> <p>As the statute known as tire Election Law, although providing for a “review ” of the decision of a filing officer, does not designate the method of procedure, such review may be had by a motion made upon a petition filed.</p> <p>An appeal will not always be dismissed because the question is no longer a practical one. Notwithstanding itlre fact that an election has been held and a decision of the question involved cannot affect the result of that election, yet where the point at issue is one of public interest, affecting the rights of all the ■ electors of the State, the courts will determine it.</p> <p>A public officer, like a county clerk, has the right to institute proceedings for the review of an order commanding him to do an official act which he deems to be a violation of the statutes of the State, and the fact that he has no pecuniary interest in.the act does not affect his right to appeal.</p>

<p> Witness—presumption from a failure to interrogate a friendly witness upon a vital issue presumably within his knowledge. </p> <p>If a- litigant fails to produce a person known to be friendly to him and to his cause, and who is so situated that he must have knowledge of the facts in issue, the jury is permitted to presume that the testimony of that person would not have been favorable to the party.</p> <p>The same presumption arises where a party fails to interrogate a friendly witness, produced by him upon the trial, relative to a vital issue in the case which must be deemed to have been within the knowledge of the witness.</p> <p>In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, it appeared that the plaintiff was riding with his daughter along a street upon which the defendant operated a street railway, when one of the defendant’s motor cars, moving in the same direction, came behind-tile plaintiff, whose horse just at that time shied at a steam roller and entered on the defendant’s track, in which position the plaintiff’s phaeton was struck by the defendant’s motor car.</p> <p>The principal, question in the case was whether the collision occurred immo- ■ diately after the horse shied and went upon the track, or whether, as the plaintiff claimed, the defendant’s car followed the plaintiff’s vehicle for 125 feet or more, overtook it and ran it down.</p> <p>The plaintiff’s daughter was a witness upon the trial, but was not interrogated by the plaintiff upon this point, in regard to which the trial judge instructed the jury that this omission might be taken into account in determining upon which side of the case the truth lay.</p> <p>Held, .that the charge was proper.</p> <p>Ward; J., dissented.</p>

<p>Appeal by the plaintiff, the General Electric Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the. clerk of the county of Erie on the 31st day of May, 1895, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Erie Circuit.</p> <p>March 26, 1892, the Buffalo, North Main Street and Tonawanda Electric Railroad Company was incorporated, pursuant to the Railroad Law, chapter 565 of the Laws of 1890 (Chap. 39, Gen. Laws), for the purpose of constructing and operating a street surface railroad, six miles in length, and extending from Main street in the city of Buffalo, to Delaware street in the village of Tonawanda. Its capital stock was fixed at $60,000, divided into 600 shares of $100 each. March 1Y, 1892, fifteen persons signed the certificate of incorporation, subscribing for sixty shares of stock, and on or before March 25, 1892, they paid to the treasurer of the corporation ten per cent of the amounts subscribed by. them.. After the payment of the ten per cent ($600) by the incorporators, a further sum of $8,463.12 was paid in by the shareholders on their subscriptions, which two sums, aggregating $9,063.12, was all the capital' ever •paid in by the subscribers for shares.</p> <p>At some time (the date not appearing) the defendant' and five others signed and delivered to the corporation a contract of which the following is a copy: .</p> <p>“ Buffalo, North Main Street and Tonawanda Electric Railroad Company".</p> <p>■ “ Whereas, the above-named company was duly incorporated under the. General Railroad Laws of the State of New York on.the 26th day of March, 1892, having the following officers.: President,. L. F. W. Arend; Vice-President, Albert T. FancherSecretary, Edward Rutherford, and Treasurer, Charles C. Mead. The capital stock of the company is $60,000, divided .into 600 shares at $100 each ; and whereas, it. is proposed by this company to build and operate an electric street railroad on the following route: Beginning on Main Street in the City of Buffalo, N.-Y., near its intersection with the City Line, and running thence . northwesterly through private property to the intersection of the Town Line Road, so-called; with the City Line of said City of Buffalo; running thence northerly along and on the east side of the Town Line Road to Mischler’s Corners; running thence northwesterly along the Eggertsville Road or Williamsville Road, so-called, to the village of Tonawanda, N. Y., and northerly along Young Street, which is a continuation of the Williamsville Road, of said village to within one hundred feet of the intersection of Young Street with Main Street of said Village. The road is to. be operated as soon as completed and cars will make half-hourly trips each way.</p> <p>•- “ Now, therefore,-we, the undersigned, for and in consideration of the foregoing promises and the fullfillment . thereof, hereby agree with the said Buffalo, North Main Street and- Tonawanda Electric Railroad ' Company to subscribe for the number of .shares of stock in said railroad company set opposite our respective' names below at The time'when and .as soon as. the' roadbed of said proposed railroad on the route above - specified .shall ’ have been graded-arid ties and rails shall have "been laid thereon, and we further agree to pay one-half of snch stock in cash at the time of such subscription and the other half thereof in cash when the said railroad shall have been in operation fifteen days.</p> <p>Names. P. 0. Addresses. No. of Shares.</p> <p>Wm. Coulson.............. Buffalo..........Ten.</p> <p>Andrew J. Kurtz........... Buffalo..........Ten.</p> <p>F. S. Oaks.................Cattaraugus, N. T. Two.</p> <p>Geo. B. Wightman.......... Buffalo..........Two.</p> <p>Albert C. Spann............ Buffalo..........Three.</p> <p>Maria‘C. Sickman.......... Buffalo..........2J shares, $250.”</p> <p>December 10,1892, the Buffalo, North Main Street and Tonawanda Electric Railroad Company executed a mortgage to the General Electric Company to secure the payment of $44,000, which was recorded June 19, 1894, in the office of the clerk of Erie county, in hook No. 690 of Mortgages, at page 373. The mortgage covered all of the realty of the mortgagor, many of its chattels “ and other property, personal and mixed, of whatever description and wherever situated, together with all and singular the privileges and appurtenances thereto belonging, and whether now held or hereafter acquired by it; all things in action, contracts, claims and "demands of the said railroad company, whether now owned or hereafter acquired, as well in law as in equity.”</p> <p>January 7, 1895, the General Electric Company recovered a judgment foreclosing said mortgage, pursuant to which the property covered by the mortgage was sold March 1, 1895, to James O. Carr for $28,0.00. March 5, 1895, the referee executed a deed to the purchaser, in which the realty mortgaged was described and conveyed, together with “ all things in action, contracts, claims and demands of the said railroad company.” March 13, 1895, James O. Carr assigned to this plaintiff the choses in action which he acquired under said foreclosure, referring in the assignment to the obligation of this defendant, and March 21, 1895, the referee’s sale and conveyance were confirmed by the court.</p>

<p>Witness—cannot be asked whether he has not been charged with ‘ ‘ crooked driving ”— credibility.</p> <p>It is not competent in order to afiect the credibility of a witness to ask him, upon cross-examination, whether he has not been charged with crimes or misdemeanors, or whether he has not been turned out of a social organization, or whether he has not been charged with “ crooked driving ” and whether he has not been taken out of his sulky at a race track for that reason.</p>

<p>Appeal by the plaintiffs, Edmond W. Granger and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of' Erie on the 26th day of May, 1894, upon the decision of the court rendered after a trial- at the Erie Special Term dismissing the plaintiffs’ complaint upon the merits, with costs.</p> <p>This, action was begun May 17, 1892, to recover from the defend-' ant Elizabeth Steele $2,000, paid to her April 4, 1892, by Brooks & Steele, which payment it ■ is alleged was fraudulent as against these plaintiffs. Between. December 27, 1887,. and April 4,1892, the defendants Walter Brooks and Robert J. Steele were equal partners, under the firm name of Brooks & Steele, and engaged in business as retailers of groceries at Buffalo, N. T. Between January 1, 1892, and April 1, 1892, this firm became-indebted to the plaintiffs in the sum of $2,312.60 for goods purchased, on account of which the latter recovered April' 26, 1892,- a judgment against Walter., Brooks- and Robert J: Steele for $2,343.10,. damages and. costs, on which an execution was. duly issued. April 27, 1892, to the sheriff of Erie county, where the defendants then resided, winch execution, was duly returned wholly unsatisfied. May. 6,.1892.,</p>

<p>AppEAL'by the defendants, Charles O. Rose and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 29th day' of March,11895, upon the verdict of a jury rendered after a trial at the Steuben Circuit, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 13th day of March, 1895, denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by Nathan Hinckley, as executor, etc., of Thomas Loft-Louse, deceased, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Wayne on the 31st day of January, 1895, adjusting certain bills of costs and expenses in a proceeding for the appointment of a committee of Thomas Lofthouse, an alleged lunatic.</p>

<p>Appeal by the defendant, the Livonia Salt and Mining Company, from a judgment of the Supreme Court in fayor of the plaintiff, entered in the office of the cleric of the county of Livingston on the 8th day of May, 1895, upon the verdict of a jury rendered after a trial at the Livingston Circuit, and also from an order entered in said clerk’s office on the 21st day of June, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The plaintiff recovered a verdict for $8,000 for personal injuries alleged to have been received in a salt mining shaft belonging to the defendant.</p>

<p>' Appeal by the plaintiff, Josephine S. Parker, from a judgment c>i the Supreme. Court in favor of the defendant,, entered in. the oS.ce of tLo, .clerk of the comity of Mon-roe. on- the 30th day of December, 1895, upon the decision of the court rendered. After a trial at the Moproé Epity Term, sustaining a- demurrer to the complaint in this action for the reason that it appeared by the complaint tk.át. another action, was. pending between the same, parties for the same, .cause, ■' - .. ..</p>

<p>Pan'ent and child—the surviving parent has the custody of the child—depositionde bene esse competent only in the action in which taken — Code of Civil Procedure,. § 830.</p> <p>At common law the father had the legal right to control his minor child, and was. entitled to its custody absolutely, to the exclusion of its mother.</p> <p>Under- the statute now in force in this State the surviving parent has the sole right to appoint the testamentary guardian of a child, and his or her right to the custody of the child is absolute,- provided such parent be a fit person.</p> <p>The deposition of a wife now deceased, taken de bene esse in an action brought to obtain a separation from her husband, but never finally determined, showing acts of cruel treatment upon the part of the husband towards her, is not competent evidence, in a proceeding relative to the custody of their child, upon the question as to the fitness of the husband to be intrusted with its care and custody.</p> <p>Section 830 of the Code of Civil Procedure permits its admission only on a new trial or hearing of the same action or proceeding in which the testimony was-given.</p>

<p>Raib'oads — right to obstruct the drainage of surface water from, the land of an adjoining proprietor — damages caused by loose stones rolling down an embankment.</p> <p>The rule of the common law and that of the civil law differ as to the right of drainage of surface water, as between the owners of adjacent land.</p> <p>By the civil law the question is governed by the law of nature, and the lower proprietor is. bound to receive the natural flow of surface water from the land above him, while at common law the relation of dominant and servient tenements does not apply to such a case, and the lower proprietor may raise the surface of his lands and make erections upon it, although the effect may be to obstruct the flow of surface water from the lands above, to the injury of the owner of such lands.</p> <p>Semble, that an exception to the common-law rule might exist in hilly regions, where, from the natural formation of the ground, large volumes of water might be forced to seek a channel through narrow gorges or valleys.</p> <p>A railroad corporation, in the absence of negligence and unskillfulness in the construction of its railroad, is not liable to an owner of land for an injury resulting from the overflow of surface waters occasioned by the obstruction caused by the roadbed.</p> <p>In an action brought to recover damages for trespasses and for an injunction,, it appeared that the plaintiff owned land which adjoined the railroad of the defendant,' whose railroad tracks, in October, 1891, were.suppor.ted by a trestle-work of wood, during which month the defendant filled in the trestlework with earth and stone and constructed a solid embankment for its roadbed; that before this work was done the surface water from the plaintiff’s premises flowed upon the defendant’s premises and passed through the trestlework to the westward, but thereafter the embankment interrupted this flow of surface water and caused it to accumulate upon the plaintiff’s property, and that during a severe storm largó stones were washed from the" embankment against the plaintiff’s house by which it was damaged.</p> <p>The court awarded a judgment for past damages and also an-injunction which restrained the defendants from the further maintenance of the embankment unless it took proper .means,, by way of culverts and drains, to prevent the further casting of stones, earth and water upon the plaintiff’s premises, and to prevent the damming up and accumulating of' surface water.</p> <p>.Held, that, in so far as the judgment awarded damages for injuries caused by stones which had become loosened by the rain and had rolled down upon the plaintiff’s house, it was maintainable;</p> <p>That, in so far as it awarded an injunction, it was erroneous;</p> <p>That, unless there were some exceptional physical features in that locality, the defendant had a right to construct an embankment even though its effect might be to pr.event drainage from the lands of the upper proprietor from passing away in the manner which it had done before the embankment was constructed</p>

<p>■Constitutional law — when the subject of an act is sufficiently expressed in its title — extent of the power of the Legislative to exempt from taxation.</p> <p>An act which purports to amend an existing local law expresses its subject sufficiently in its title if it refers to the law which was amended.</p> <p>The most valuable test as to whether.the subject of an act is expressed in its title is to inquire whether the title is so framed as to be deceptive or misleading.</p> <p>Chapter 622 of the Laws of 1886, entitled '1 An act to amend the title of and to amend an act, entitled ‘ An act relating to the assessment of real property in the city of Brooklyn, county of Kings, owned and occupied by charitable corporations, societies or institutions,’ passed May twenty-fourth, eighteen hundred and seventy-eight,” which declares that real property situate in the county of Kings, then 'or thereafter owned by any hospital; orphan asylum, house of industry or other charitable corporation, society or institution, shall be exempt from all assessments for local improvements, is constitutional and the subject of the act is sufficiently expressed in its title.</p> <p>The act in question does not violate the constitutional provision that no person shall be deprived of property without due process of law.</p> <p>Special assessments are laid in the exercise of the taxing power, and where no rule for exemption is provided in the Constitution, the Legislature may exempt property from the operation of any form of the taxing power.</p> <p>The question as to the extent to which the power of exemption shall be exercised is one of State policy, in regard to which the Legislature is the sole judge.</p>

Appeal by Louisa Kimberly, as executrix, etc., of David F. Kimberly, deceased, from a decree of the' Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 8th day of January, 1896, confirming the report of an appraiser, and also from a decree of said Surrogate’s ' Court entered December 10, 1895, confirming said report and fixing the amount of the. transfer tax due upon the estate of David F. Kimberly, deceased.

Appeal by William F. Nisbet and another from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 28th ■ day of October, 1895, as resettled by an order, entered in said clerk’s office on the 28th day of December, 1895, dismissing a writ of certiorari issued in the proceeding, and also from an .order entered in said clerk’s office on the 14th day of December, 1895, denying the motion of…

Appeal by the defendant, James Norton, as sheriff of Queens-county, from a judgment of the Supreme Court in favor of the-plaintiff, entered in the office of the clerk of the county of Queens-on the 21st day of October, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Queens County-Circuit, and also from an order entered in said clerk’s office on the; 19th day of October, 1895, denying the defendant’s motion for a new trial made upon…

Appeal by the plaintiff, Walter E. Parfitt, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 10th day of April, 1895,. upon the decision of the court rendered after a trial at the Kings. County Special Term dismissing the plaintiff’s complaint upon th& merits.

Appeal by the defendant, Albert H. Bultman, from a judgment of the City Court of Brooklyn in favor of the plaintiffs, entered in the office of the clerk of said court on the Yth day of December, 1895, upon the decision of the court rendered after a trial at a Special Term thereof, except so far as it adjudges that the complaint be dismissed as to the defendants The German-American Improvement Company and Frederick Brommer upon the merits.

<p> Negligence—delay in seeking medical assistance in the case of a cinder striking an eye presents a question of fact—capitalizing the loss of earning power is an improper measure of damages. </p> <p>In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, it appeared that the plaintiff was struck in the eye by a cinder which he alleged was negligently permitted to escape from an engine belonging to the defendant, and that when he consulted a phy- . sician the night of the next day he was then advised to see a specialist, which he did on the afternoon of the following day.</p> <p>There was no testimony tending to show the effect of this delay upon the injury, and the defendant requested the court to charge that, if the plaintiff's delay in seeking medical assistance materially contributed to the loss of his eye, the plaintiff was guilty of negligence, in response to which request the court charged the jury that the plaintiff had done everything which the law required him to do.</p> <p>Upon the question of damages the court instructed the jury that they must determine how much the plaintiff could earn before he lost his eye and what he could earn since the loss; that this would constitute his loss of earning power, and that, when the jury had ascertained that, they would have a right to fix a sum, the annual income of which would equal that earning power.</p> <p>Held, that the burden rested upon the plaintiff to show that his neglect had not contributed to the injury, and that the conclusion to be drawn from his testimony, describing his conduct after he received the injury, was one of fact, and that the charge of the court in this respect was erroneous;</p> <p>That the defendant was not called upon to show that the delay in consulting a physician necessarily aggravated the injury;</p> <p>That that portion of the charge Which related to damages was also erroneous, in that it permitted the jury to capitalize the plaintiff’s loss of earning power.</p>

<p> Transfer tax—to be assessed upon property in thefoi'm in which it is left by the testator—doctrine of equitable conversion, inapplicable—mortgage debts not deducted from the personalty. </p> <p>Upon an appeal from an order of a surrogate relative to the' transfer tax, it appeared that the estate of the testator consisted of both real and personal property, the former.being subject to mortgages, and that under the terms of the will nearly the whole of the- estate -passed in trust .for the children and grandchildren of the testator to the executor, who was directed to convert the estate into money, divide it into five shares, invest and hold one share for each child, apply the net income to the use of the child during life, and, upon its death, to transfer the share of each deceased child to its issue per stirpes.</p> <p>Held, -that the transfer tax should be imposed upon the property in the form in which it stood when the testator died;</p> <p>That such a rule accorded with the policy of the act which exempted real estate transferred to or for the use of certain persons named in it, and was in harmony with the fact, which evidently influenced the Legislature upon this subject, that real estate always bears the burden of annual taxation which personal property to a very large extent escapes;</p> <p>That the doctrine of equitable conversion should not be invoked merely for the purpose of subjecting property to taxation;</p> <p>That in determining the amount of the transfer tax the mortgage indebtedness of the testator should not be deducted from the amount of the personal estate, notwithstanding the fact that the whole estate, real and personal, was transferred to the executor in trust for the benefit of the testator’s children and grandchildren.</p>

Appeal by the defendant, Royes F. Palmer, individually and as administrator, etc., of Royes G. Palmer, deceased, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of February, 1896, denying his motion to modify the interlocutory judgment entered in the action.

<p>Appeal by the defendant, The New York Stone Crushing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 3d day of July, 1895, upon the decision of the court rendered after a trial at the Orange Special Term.</p> <p>Joseph F. Daly, for the appellant.</p>

<p>Appeal by the plaintiff, Philip Zimmerman, as administrator, etc., of Lawrence Zimmerman, deceased, from a .judgment of the Supreme Court in favor of- the defendant, entered in the office of the clerk of the county of Westchester on the 19th day of October, 1895, upon the dismissal' of the complaint directed by the court after a trial before the court and a jury at the Westchester Circuit.</p>

<p>Mechanic’s lien —failv/re of a sub-contractor to serve upon the owner Ms notice of appeal from a judgment vacating Ms lien — right to review the judgment as against the conto'actor — measure of damage for delay — architects. certificate, when ionpropei'ly refused — a/rehitect’s delay in furnishing plans for special designs■ — Laws 1885, chap. 342, § 15.</p> <p>Where a sub-contractor, whose lien is declared void in an action brought by the contractor to foreclose his own lien, fails to serve his notice of appeal from the judgment upon the owner of the premises in question, the court has no jurisdiction to reverse that portion of the judgment which declares the lien of the sub-contractor to he void.</p> <p>The sub-contractor is entitled, however, to have the judgment reviewed, as, under the' provision of the Mechanics’ Lien Law which provides that in any action brought to foreclose a lien, if the party fails for any reason to establish his lien, he may still recover on tne contract such sum as may he due him, the sub-contractor would otherwise he concluded by the judgment appealed from in any other action brought to enforce his claim.</p> <p>Where a sub-contractor agrees to furnish materials of a special design to be used in the construction of a particular house, although he may be ignorant of the timé within which the contractor is required by his contract to complete it, he will be liable to the contractor for any unnecessary delay in furnishing the materials and be bound to indemnify him against any damages he may suffer under his contract because of such delay. •</p> <p>Where a sub-contractor applies to an architect for a certificate that he has performed his contract, the architect unreasonably refuses, if he declines to give the sub-contractor a certificate upon the ground that he has already given a certificate of performance to the owner.</p> <p>Lt seems, that a delay on the part of the architect to furnish plans of the special designs would he a defense to the sub-contractor, hut that in order to avail himself of it the sub-contractor must show that he made a demand on the architect for such plans.</p>

Appeal by the plaintiff, Edward H. Moubray, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 8th day of May, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the- complaint upon the merits. The action was brought to secure an adjudiction that a deed executed by the defendant Susanna Moubray to the defendant William J..

<p>Appeal by the defendant, Stuart W. Cowan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 17th day of October, 1895, upon the verdict of a jury rendered after a trial at the Westchester Circuit, and also from an order entered in said clerk’s office on the 18th day of October, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Equitable relief against continuous trespasses — easements created without an express grant—trustees 'may grant an easement — a grant in gross is not presumed— “ appurtenances ” cover easements — non-user of an easement by grant.</p> <p>Where trespasses are repeated and continuous, they furnish a good ground for equitable relief.</p> <p>Basements may be created by an agreement or covenant that one person shall have a right or privilege in the estate of another, and an express grant is not necessary.</p> <p>The trustees of an active trust have the legal title and may grant an.easement over lands belonging to the trust estate, which will be valid during the life of the trust.</p> <p>Where such trustees are given a power of sale, this will support the grant of an easement beneficial to the trust estate and made necessary in order to give access to lots into which the property has been subdivided for the purpose of disposing of it as sites for villas.</p> <p>A grant in gross of an easement, personal to the grantee, is never presumed where, from the language of the instrument, the grant can be fairly construed as appurtenant to some other estate.</p> <p>All easements, properly so called, to which an owner of land has a right, in soil belonging to a third person, will pass to a grantee of the former under the word “appurtenances,” which word is sufficient to carry them, although the word “easements” is omitted.</p> <p>Where a person acquires, an easement by grant, his title is not affected by nonuser, unless the non-user is accompanied with an intention to abandon the easement.</p>

<p>• - Appeal by the petitioner, Daniel B. Taylor, from an order,made by-the county judge of Westchester county and entered in the -office of the eleflc of the county of Westehester on the 28th day of ■December, 1895, denying his petition to have declared illegal an elec' .tion to determine whether, the village of Mamaroneck should be -incorporated: - - - . .</p>

Appeal by the defendants, James McWalters and others, from a judgment of the Supreme Court in favor of the plaintiff and the ^defendant P. E. Mathews, entered in the office of the clerk of the county of Queens on the 8th day of June, 1895, upon the decision of the court rendered after a trial at the Queens County Special Term, and by the defendants, John 0.

<p>Attachment — hearsay statements insufficient as a basis therefor — depositions of the witnesses homing knowledge must be produced..</p> <p>Upon an appeal from an order setting aside an attachment, it appeared that the .ground of the attachment was that the defendant had made a false statement . In writing of his financial responsibility, and upon this point the plaintiff’s affidavit stated that the defendant had assigned to it a mechanic’s lien which was invalid, and had transferred to it an order directing a person named Keating to pay the plaintiff a certain sum. The only evidence to show that nothing was due from Keating to the defendant at the time of the order was the declaration of Keating made to plaintiff’s agent, and the only evidence as to the invalidity of the mechanic’s lien was an allegation of the answer in a suit' to •enforce it, that the defendant had previously assigned his interest therein to his wife. No affidavits on the part of Keating or on the part of the person liable to pay the debt secured by the mechanic’s lien were produced, and no • reason was given why such affidavits could not be obtained, it not being alleged that the persons from whom the information was obtained were absent or that" their depositions could not be procured.</p> <p>'The defendant insisted that both claims were valid.</p> <p>JTeld, that the attachment was properly vacated.</p>

Appeal by the defendant, The Kings' County Elevated Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of October, 1895, upon the report of a referee.

<p> The conduct of a party, in another similar transaction, cannot he shown. </p> <p>Upon the trial of an action the plaintiff was asked upon cross-examination whether the defendant had not befriended him, to which he answered that such, was not the case, and that he had complained of the defendant’s treatment of him in one transaction. Upon his re-direct examination the witness was allowed. - to state the transaction referred to, which was somewhat similar to the one in . suit; and that the action complained of by the plaintiff had the effect of depriving him of his commissions as a broker to which he was entitled for obtaining a loan for the defendant.</p> <p>Bold, that the admission of the evidence was erroneous;</p> <p>That, as the present action was brought to recover commissions upon a sale of securities, the effect of the evidence might have been to lead the jury to believe-that, if the defendant had once by sharp practice deprived the plaintiff of his. commissions, he might be repeating the same course in the present case.</p>

■ Appeal by the defendant, the Metropolitan Street Railway Company,'from a judgment of the Supreme Court in favor of the plaintiff, entered in the office, of the clerk of the county of Kings on the 20th day of June, 1895 (as amended by an order entered in said clerk’s office on the 8th day of July, 1895), upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 1st day of July,. 1895, denying…

Appeal by the defendants, The Brooklyn Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 27th day of December, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendants, Theodore C. Walser ana another, from a judgment of the Supreme Court in favor of the plaintiff:, entered in the office of the clerk of the county of Richmond on the 27th day of July, 1895, upon the decision of the court rendered after a trial at the Richmond Circuit before-the court without a jury.

Appeal by the defendants, Edward F. Murray and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 6th day of November, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendants, Elizabeth De Witt Leonard and Jeremiah Potter Robinson, as executor and trustee,, etc., of Jeremiah P. Robinson, deceased, from a judgment of the Supreme Court in favor of the. plaintiff, entered in the office of the clerk of the county of Kings on the 10th . day of October, 1895, upon the report of a. referee. .

Appeal by the defendant, Edward G-. Byrnes, from a judgment of the Supreme Court in favor of the plaintiff in each of the above-entitled actions,. entered in the office- of the clerk of the county of Westchester on the 22d day of October, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Westchester Circuit.

Appeal by the plaintiffs, the Birdsall, Waite & Perry Manufacturing Company and others, from a judgment of the Supreme Court in favor of.the defendants, entered in the office of the clerk of the county of Kings on the 27th day of August, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, J. Philip Rian, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 8th day of June, 1895, upon the decision of the coin-fc rendered after a trial at the Richmond Special Term, as limits his lien to the sum of $6,006.22, with costs and allowances, and as denies a lien to him for the balance claimed to be due him of $4,281.

Appeal by the plaintiff, Susan S. Adee, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Bichmond on the 22d day of May, 1895, upon the decision of the court rendered after a trial at the Bichmond Special Term.

Appeal by the defendant, the Metropolitan Life Insurance Company, from a judgment of. the Supreme Court in favor 'of the plaintiff, entered in the office of the clerk of the county of Richmond. on the 1st day of October, 1895, as amended by an order entered in said clerk’s office on the 21st day of October, 1895, upon the verdict, of a jury rendered after a trial at the Richmond Circuit; also from an order entered in said clerk’s office on the 8th day of October, 1895,…

Appeal by the defendants, Bobert T. Powell and another, from .-an order of the Conn'ty- Court of Queens County, entered in. the office of the clerk of the county of Queens on the 7th day of March, 1896, directing that William A. Onderdonk, as receiver of the .goods, chattels and credits of Bobert T. Powell, be made a defend•ant in the action, and that said receiver be authorized and directed to file with the court a consent to accept a sum in gross, in lieu of the life…

Appeal by the defendant, Charles L. C. Kerr, as executor, etc., of A. Smith Ring, deceased, from a judgment of the Supreme ■Court in favor of the plaintiffs, entered in the office of the clerk of the county of Orange on the 18th day of September, 1895, upon the decision of the court rendered after a trial at the Orange Special Term. This action was brought by the plaintiffs as cestuis que trust to recover from the executor of a surviving trustee the amount of the trust fund.

- Appeal by the defendant, George K. Thompson,.from a judg-^ ment of the County Court of Westchester county in favor of the plaintiff,-entered in the office of the clerk-of. the county of Westchester on the 21st day of September, .1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of September, 1895, denying the defendant’s motion for a new trial, made upon the minutes. ■ .

- Appeal' by the defendants, the Richmond Light, Heat and Power Company (Limited) and others, from a judgment of the Supreme Court in favor - of the defendant, the Holland Trust Company, entered in the office of .the clerk of the county of Richmond on the 21st day of November, 1895, upon the decision of the court rendered after a trial at the Richmond Special Term, foreclosing a mortgage upon the property of the Richmond' Light, Heat and Power Company (Limited). • . • .

<p>Qa/rrier — right of, to limit its liability —power of the agent of the owner to bind him.</p> <p>A common carrier has a right to limit its liability, and may, by a contract, fix the sum beyond which it will not be liable for a loss upon a carload of animals.</p> <p>Where an owner of animals intrusts them to an agent for shipment the agent has power to sign a contract limiting the liability of the carrier, and the principal will be bound thereby.</p>

Appeal by the defendant, The Yew Jersey and Yew York Railroad ■Company, from a judgment of the Supreme Court in favor of. the plaintiff, entered in the office of the clerk of the county of Rock-land on the 10th day of August, 1895, upon the decision of the court' rendered after a trial at the Rockland Circuit before the court without a jury.

Appeal by the defendant, The City of Mount Vernon, from a, judgment of the'County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 18th day of December 1895, upon the decision of the court rendered after a trial before the county judge without a jury.

<p>Surrogates Court—jurisdiction over the proceeds of real estate sold under a power in a mil—right to construe a will relating to real estate— Code of Civil Procedure, §§ 3736, mbd. 4, 3738.</p> <p>A Surrogate's Court.is expressly vested with jurisdiction to compel an executor to account for the proceeds of real estate sold under a power in a will, and an executor may ■render a voluntary account of such proceeds and their disposition uhd'er section 3738 of-the Code of Civil Procedure.</p> <p>Where a power given to. an executor to sell real estate has been exercised and the proceeds have been brought into the Surrogate’s Court, the surrogate has jurisdiction over them.; such jurisdiction is not dependent upon the decision of the question whether the character of the power of sale is as broad as the power actually exercised.</p> <p>A surrogate, upon the accounting of an executor, is authorized to construe a will in so far as it may .be necessary in order to make a proper, decree of distribution, even though the will relates to real property.</p>

<p>Bills and notes—burden of proof as to a/ppm'ent altemtiom—.new trial granted because of an erroneous charge, although no exception was taken thereto.</p> <p>In an action brought by the executor of Henry A. Gowdey, to recover upon a promissory note made in 1878 by the defendant, and by W. A. Robbins to the order of Henry A. Gowdey for $-1,000, the defendant admitted the making of the note, but, by way of counterclaim, set up a promissory note for $950, made by Henry A. Gowdey and running to the defendant as payee, dated in April, 1886. The principal question in the case was whether the note set up in the counterclaim had not, since its execution, been altered in its date from 1885 to 1886, and in its amount from §150 to $950.</p> <p>The trial judge stated to the jury that there was no evidence that the note was ever altered except what appeared upon the face of the paper and, as to the burden of proof, charged as follows : “The defendant has produced a paper which on the face of it is a defense to this suit, and the duty of explaining it by showing that it is something else rests with the plaintiff in this suit. The plaintiff assumes the burden of showing that that note is other than what it purports to be, or than what the defendant says it is.”</p> <p>Held, that the instruction was erroneous ;</p> <p>That the burden of explaining apparent alterations in an instrument rests upon •the party who produces it;</p> <p>That, under the circumstances, although the defendant had not excepted to the charge, the court would grant a new trial.</p>

<p>¿LceduMj/iigaright to,elect to take profits ,in lieu of salan'y —¿the election must be -, , exercised befoj-e the employment ends. ■</p> <p>In .an .action brought-to compel an accounting of the profits of a printing establishment, it appeared .that the defendants agreed to pay the plaintiff fifty dollars a week until the printing office had paid for itself, after which time, whenever he might elect, the plaintiff could take half the profits in lieu of a ' weekly payment of fifty dollars. The plaintiff, who was familiar with the condition of the business, never-made an election, .and was paid -fifty dollars per week until he was discharged.</p> <p>JETeld, that he was not entitled to an accounting ;</p> <p>That his time to elect had expired, with his employment,, before he began his action,' and that, therefore, he' never became entitled to any portion of the . -profits, ■ . . •</p>

<p> Bailee—not liable for property destroyed by foe without his fault—an appellate court will not review conflicting evidence as to a special agreement to insure. </p> <p>Where personal property is in the temporary custody of a bailee and is destroyed by fire, without any negligence upon the part of the bailee, he is not liable to the owner in the absence of a special agreement to insure the property.</p> <p>Where the main question in a. case is whether a bailee agreed with the owner of property to insure it while it remained in the custody of the bailee, and the evidence is conflicting, the appellate court will not ordinarily interfere with the decision of the trial court.</p>

Appeal by the defendant, Henry Bischoff, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of February, 1896, overruling the answer ■ of the defendant Henry Bischoff as frivolous and directing judgment of foreclosure and sale in favor of the plaintiff.

<p>Negligence — injury from the act of an independent contractor — bricks knocked into a cellos' by a moving derrick.</p> <p>In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, it appeared that the plaintiff was employed by T. J. Castin & Co;, who were constructing a building in which the defendant was placing iron beams, on which, resting on a platform of planli, there was a pile of bricks walled in on three sides by dried bricks, inside of which wall the bricks were thrown in loosely. There were open spaces between the beams, around the pile of brick, under which the plaintiff was working in the cellar, while the defendant’s servants were moving a derrick near the pile of brick and in the direction of the brick at the time of the accident, in doing which, it was claimed by the plaintiff that the derrick struck the pile of brick and caused a brick to -fall upon the plaintiff.</p> <p>Held, that the case was one which was properly submitted to the jury;</p> <p>That a verdict which implied that the derrick was moved against the pile of brick and caused it to fall into the cellar was supported by the evidence.-</p>

Appeal’ by the plaintiff, Daniel Robert, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 30th day of September, 1895, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the plaintiff’s complaint upon the merits.

<p> Negligence—a person being driven by another gratuitously is not responsible for his negligence—allowing a witness, when confused, to leave the stand temporarily^ </p> <p>In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant it appeared that the plaintiff, who was an old woman, asked her.son, Patrick Weldon, to get a team and cab and take her to West Farms to visit her niece-, which he did, taking in the cab the plaintiff and his sister-in-law, and his brother who rode on the same seat with him. On returning in the evening Patrick Weldon drove down Third avenue in the city of New York, in the rear of a car of defendant, which had a .trailer ' attached, and when he reached Ninety-seventh street he turned to the left and attempted to cross the up-town track, upon which a car was approaching (according to'the plaintiff’s testimony) from 125 to 160 feet away from the cab, which had nearly cleared the up-town track when the car upon that track "struck the hind wheel of the cab and injured the plaintiff.</p> <p>Held, that as it appeared that the plaintiff was taking a gratuitous ride, having no control of the vehicle or the driver, any negligence of Patrick Weldon could not be attributed to her.</p> <p>When a judge sees that a witness is so confused by a long or irrelevant cross-examination that his memory seems to have left him, it is a proper exercise of discretion to let the witness rest for a short time, in order to collect his thoughts and become composed, before continuing his examination.</p>

<p>Appeal by the plaintiff, Henry Arthur, Jr., from a judgment of the Supreme Court in favor of the defendant, Henry Arthur, individually and as executor, etc., of Sarah Arthur,, deceased, entered in the office of the clerk of the county of Kings on the 2d day of January, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the plaintiff’s complaint upon the merits.</p> <p>L. Laflim, Kellogg and Alfred G. JPetté, for the appellant.</p> <p>Jesse Johnson, for the respondent.</p>

<p>Appeal by the defendant, The Village of Far Rockaway, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of' the clerk of the county of Queens on the 19tli day. of October, 1895, upon the verdict of a jury rendered after a tidal at the Queens County Circuit, and also from an order entered in said clerk’s office on the 11th day of ¡November, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendants, Silas W. Germond and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess bn the 30th day of January, 1896, upon the verdict of a jury rendered after a trial at the Dutchess Circuit.</p> <p>An order' denying -a motion for a new trial is contained in the case on appeal, but the notice of appeal does not state that an appeal was taken therefrom.</p>

Motion by the respondent, Frank Irvine, an infant, by John Irvine, his guardian ad litem, for a reargument of the appeal pending in the Appellate Division of the Supreme Court for the second judicial department. The appeal was decided upon the merits, at the February term of the court. (See 2 App. Div. 69.)

<p>Matter of the Petition of John Vanderhoof for a Peremptory Writ of Mandamus.</p> <p>Veteran — unlawful discharge from office — remedy by mandamus, discretionary — it must be promptly sought — abolition of an office, whether colorable or not, a question of fact.</p> <p>The writ of mandamus is a discretionary writ, and may be refused where the delay in applying for it is unreasonable.</p> <p>Where a person holding a position in the public service of the State or of a city is unlawfully discharged by his superior officer, he should assert his right to be reinstated in a prompt manner. A delay of ten months requires explanation on his part.</p> <p>Where a veteran volunteer fireman is discharged from a position which he holds under a city on the ground that the position he holds has been abolished, the question whether the position has been in good faith abolished or whether its abolition was colorable only, is one of fact which ought to be determined before the court can grant a writ of peremptory mandamus commanding the proper city officer to restore him to his position.</p> <p>Where a question is raised as to whether the office was abolished in good faith the person discharged cannot be entitled to more than an alternative writ of mandamus.</p>

<p>A purchaser at a partition sale buys subject to the risible easement of an derated railroad — committee of a lunatic may maintain pa/rtition, without joining the lunatic.</p> <p>A purchaser at a sale in partition must be assumed to have bought the property-subject to the open and visible easement of an elevated railroad then in operation.</p> <p>Under the provisions of section 2340 of the Code of Civil Procedure, providing that a committee of the property of an incompetent person may maintain in his own name, adding his official title, “any action or special proceeding which the person with respect to whom he is appointed might have maintained if the appointment had not been made,” the committee of a lunatic may maintain an action for the partition of real estate in his own name, adding his official title, without making the lunatic a party, to the action.</p>

<p>Appeal by the defendants, William L. Strong and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of .the clerk of the county of Kings on the 1st day of April, 1896, restraining the defendants from carrying out a contract entered into between the commissioners of the East river bridge and the East River Bridge Company.</p>

Appeal by the defendant, Robert A. Johnston, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 15th day of October, 1895, upon the verdict of a jury rendered after a trial at the Westchester Circuit, and also from an order bearing date the-day of October, 1895, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Christina Donnelly, as administratrix, etc.,. of Edward Donnelly, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Rockland on the lYt-h day of June, 1895, upon the dismissal of the complaint directed by the court after a trial at the Rockland Circuit before the court and a jury.</p>

<p>Appeal by the defendant, Henry A. Y. Post, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 6th day of February, 1896, denying his motion to strike out certain portions of the plaintiff’s complaint as irrelevant and redundant.</p>

<p>Appeal by the defendants, Georgiana O. Stone and another, as executors, etc., of George F. Stone, deceased, from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Queens on the 5th day of March, Í896, as denies their motion to make the complaint more definite and certain and to strike out certain allegations thereof as irrelevant and redundant.</p>

<p> Mortgage—attorney collecting a debt •—mortgage delivered to him for the benefit of the creditors of the mortgagee and owner -^attorney takes no interest. </p> <p>In an action brought by one Martin- to foreclose - a mortgage, it appeared that Martin, the plaintiff, had been employed by certain persons to collect debts due them from a person named Staats ; that Staats delivered to Martin the mortgage in question under an agreement that Martin was to sell it, apply the proceeds to the payment of the debts of Staats and pay to Staats any surplus • that it was then suggested that one of the'creditors named Teator might purchase the mortgage at a specified sum, and that, if he did, Teator could pay • himself an<f another creditor of Staats, and Staats could trade out the balance at Teator’s. store. Martin took the mortgage, made an agreement with Teator upon the terms stated; and thereafter Staats assigned the mortgage to Teator.</p> <p>Upon the trial of this action brought by Martin to foreclose the mortgage the complaint was dismissed. - -</p> <p>Held, that -this was proper;</p> <p>That the plaintiff’s connection with the transaction was merely that of an attorney collecting a debt, and that he took no title to the mortgage, either legal or equitable, individually -or as -trustee.</p>

<p>City Court of Mount Vernon — the jurisdiction of mi inferior local court is restricted to the locality—it cannot entertain supplementary proceedings where the order is not served within the locality — Lams 1893, chap. 183, §§ 60, 111; old Constitution, art. 6, 119.</p> <p>Upon an appeal from'an order of the City Court of Mount Vernon, adjudging the defendant guilty of a contempt in failing to obey an order in supplementary proceedings, it appeared that the court was created in 1893 as a local and inferior court by virtue of the power conferred by section 19, article 6 of the ■ Constitution then in force, authorizing the Legislature to establish inferior local courts of civil and criminal jurisdiction. The act of 1893 (Chap. 183) provided that the court should have no jurisdiction of an action unless one of the parties resided in the city of Mount Vernon, and in another section provided that a summons might be served at any place within the county of Westchester, and in still another section the court was given concurrent jurisdiction, with the County Court,'of proceedings to enforce a judgment, where a transcript of the . docket of its judgment had been filed in the office of the clerk of the county. Held, that these provisions exceeded the legislative powers;</p> <p>That the jurisdiction of a local court must be exercised within the locality and that its process could not be executed outside of the locality;</p> <p>That as neither the summons in the action nor the order in the supplementary proceedings was served upon the defendant within the city of Mount Vernon, the City Court of Mount Vernon never acquired jurisdiction either of the person of the defendant or of the subject matter of the action.</p>

<p>Appeal by the plaintiff, William Reynolds, from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the. office of the clerk of the county of Kings on the 25th day of March, 1896, as imposes as a condition for a substitution of attorneys for the plaintiff-the payment of the sum of $125, and also from an order entered in said clerk’s office on the 31st day of March, 1896, denying the plaintiff’s motion for a substitution of attorneys for non-compliance with the conditions of the first-mentioned order of March 25,1896.</p>

<p>Appeal by the defendant, Clarence S. Watkins, from a judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of the county of Queens oii the 2Jth day of December 1895, upon the verdict of a jury rendered by direction of the court after a trial at the. Queens County Court, and also from an order .entered in said clerk’s office on.the 21st day, of December, 1895, denying the defendant’s motion for a new trial made upon the minutes.'</p>

<p>Bequest for a ruling in advance — its refusal not the subject of an order or an appeal •—withdrawal of a juror, a mistrial.</p> <p>Upon the second trial of a case the court permitted certain amendments to the complaint. After a jury had been impaneled on a third trial, the plaintiff moved that the trial proceed upon the amended complaint and the answer of the defendant, and not upon the original complaint and answer, and the plaintiff requested the court to pass upon the question at that stage of the proceedings. The court refused to do so, but allowed the plaintiff to withdraw a juror, and the case went off for the term.</p> <p>The plaintiff entered an order reciting his request and its denial and appealed from the .order.</p> <p>Held, that there was no authority for the entry of an order and none for the appeal;</p> <p>That the court, by merely expressing an opinion as to the ruling which it would make when the question actually arose, did not authorize the entry of such-an order;</p> <p>That when a juror was withdrawn there was simply a mistrial.</p>

<p>Negligence — injury, by being run into by a railroad cm' while riding with others to a picnic^ liability of a guest for the driver’s negligence.</p> <p>In an action brought to recover damages resulting from inj uries caused by the alleged negligence of the defendant, it appeared that the defendant operated a 'double-track railway with dummy engines in an avenue of the city of Brooklyn; that, according to the plaintiff s version, a truck in which he was riding-with others was proceeding towards the' city on the right-hand track when the whistle of a train moving in the same direction was heard, and, in order to enable this train to .pass, the truck was driven to the left-hand track, and as soon as the train had passed was turned again towards the right-hand track, but before it had cleared the left-hand track a train coming on that track struck its end, the occupants were thrown out and the plaintiff was injured.</p> <p>There was also testimony that the condition of the highway was such that the truck could not turn to the right when the train approached from the rear, but was compelled to turn towards She left. The defendant denied this, asserted that the wagon was on the left-hand side of the highway, outside the tracks, and that it was suddenly turned across the track in front of the approaching train.</p> <p>Held, that the defendant had only the rights of any street railroad; it had only a paramount, not an exclusive, right of way;</p> <p>That if the condition of the highway was such as to make it necessary for vehicles to drive on the defendant’s tracks it was proper for them to do so;</p> <p>That upon the facts the case was a proper one for the jury.</p> <p>The evidence tended to show that the plaintiff was invited to go and that he went as a guest to a picnic; that the. other parties borrowed the horses and vehicles used, and selected one of their number to drive.</p> <p>Held, that the negligence of the driver could not be imputed to the plaintiff;</p> <p>That in order to make one of several persons engaged in a joint enterprise responsible for the act of another, the former must have some voice in the control, management or direction of the enterprise, which was not. affirmatively shown to be the fact in this case.</p>

<p>• Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 25th day of October, 1895, upon the verdict of a jury rendered after a trial at the Queens County Circuit, and also from an order entered in said clerk’s office on the 31st day of October, 1895,' denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The complaint in this action alleged that the plaintiff was driving his team along the highway,, in the village of Maspeth, when one of defendant’s cars ran into plaintiff’s vehicle from behind with such force that plaintiff was thrown from his seat to the ground, and the wheels of his said vehicle, pushed forward* by defendant’s car,.passed over him, severely bruising and injuring him, in consequence of which he was put to great pain and suffering and was severely in jured; that the said collision was caused entirely by the negligent, improper and wrongful acts of defendant, its agents and servants, in the careless, faulty and improper management of its cars, and demanded judgment against- the defendant for $1Ú,050 damages. The jury rendered a verdict in favor of the plaintiff for $4,500.</p>

<p>1Yill — a fee not cut down to a life estate by a subsequent interpretative clause the opinion of the testatrix as to the legal effect of prior words not controlling — ■intestacy not favored —effect of a power of sale. '•</p> <p>"Where an estate is given in oiie part of a will in clear and decisive terms,, such estate cannot he taken- away or cut down by any subsequent words-that, are not as clear and decisive as the words, of the clause giving -the estate</p> <p>The will of Sarah Purdy, the wife of Underhill L. Purdy, Who -was also her executor, first bequeathed to Sarah Pine some silverware and -wearing apparel’; second, -authorized her executor to sell' all' her real estate-, to invest the proceeds to the amount of §10,000 on bond and mortgage, the interest of which he- was to pay to himself during life and on his death the sum of §10,000, “ or so much thereof as may be invested-as aforesaid,’” was to be paid to her brother, James Pine, absolutely; third, devised and .bequeathed to her husband and. executor all- her estate, both real and personal (except what had been given to Sarah Pine), “ subject, however, and I hereby expressly charge the above devise of my real estate to my husband, except so far as the same may be conveyed ■ as above provided, with the payment of the sum of $10,000, subject' to be diminished to the amount invested as directed by the preceding clause of my will, to my brother, James Pine, to whom I give and bequeath the same, to him, his heirs and assigns forever, payment thereof without interest to be made within one year after the decease of my said husband. , By the above provision it is intended to give my husband the use of all my estate, both real and personal (except the bequest to Sarah Pine), during his natural life,' with full power to sell and convey my real estate, or any part dr parts thereof, at one- or more times, free from a,ll incumbrances, and to give to my brother, James Pine, 810,000 without interest, to be paid in one year from the death of my husband, payment thereof to be secured as above expressed in the two preceding clauses of this my will.”</p> <p>Held, that the paragraph last quoted did not reduce the estate in fee given to the husband of the testatrix by the first part of the “third” item of the will, to an estate for life;</p> <p>That the language of the alleged restrictive clause was interpretative and not declaratory;</p> <p>That the intention of the testatrix must be discovered from the language which she employed, and not from her expressions of opinion respecting the meaning of words employed in an antecedent paragraph of the-will;</p> <p>That the law preferred a construction of a will which would prevent partial intestacy to one which would permit it; .</p> <p>That the insertion of a power of sale did not alter the construction given, because, if there was a sale of the land under the second clause of the will, the husband in that event only took the surplus over and above the legacy of 810,000 given to James Pine.</p>

<p>Broolclyn—it has no board of a/udit'—tlw compensation of assistants in.examining -accounts is to be fixed by the common council— the motive of the common council, in reducing a salary, not inquired into —Veterans — a salary of four dollars a day not “ day’s wages." .</p> <p>Upon an appeal-from an order denying a motion for an order directing a peremptory writ of mandamus to issue commanding the defendants as the hoard of audit of the city of Brooklyn to certify to the comptroller and auditor of that city the pay roll of the relator for certain months, and to certify to the comptroller and auditor that certain amounts were due him from the city for-services rendered by him during said months in the board of audit, and requiring the defendants to make a requisition upon the comptroller for the amounts due, it appeared that the petitioner had heen performing expert and responsible duties under the comptroller, the auditor and the chairman, of the finance committee of the common council in the examination; of accounts; that the petitioner, who was a veteran, was removed from office by the officials employing him, and was thereafter reinstated by the court,;, that the official's employ- ■ ing him, and also the common .council, thereupon reduced his salary to four dollars a day,; and the motive for tliis was charged to-be to take him out of the . protection of -the .statute relative to veterans, which does not apply to persons receiving day’s wages, and also to make so great reduction as to compel him i' to resign. This intention was denied.</p> <p>Held, that the motion was properly denied;</p> <p>That there was no board of audit in the government of the city of Brooklyn;</p> <p>That while it was the duty of the comptroller, .the auditor and the chairman of the finance committee of the common council to examine accounts, there was no provision of law empowering them to employ assistants, and to fix their salary;</p> <p>That the salaries of such assistants were, under the present charter, to be fixed by the common council;</p> <p>That the coult would not inquire into the motives of the common council in fixing salaries;</p> <p>That the resolution of the common council reducing the salary of the petitioner did not reduce him to day’s wages, but left him upon a salary which was measured by four dollars a day.</p>

Appeal by the relator, Jacob T. Worth,, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 21st day of February, 1896, denying his motion for a peremptory writ of mandamus directed to Leonard R. Welles, as commissioner of police and excise of the city of Brooklyn, commanding him to appoint the said relator a member of the police force of the city of Brooklyn with the rank of captain…

<p>Order of arrest — action to recover possession of boohs of account—facts showing'their value must be alleged,,</p> <p>"Where the complaint, in an action brought to recover the possession of certain books of account, contains no allegation as to the value oí the books and merely claims damages for their detention in the sum of §1,000, it is improper under ah allegation that the defendant had removed part of the books from the State of Hew York for the court to grant an order of arrest with bail in the sum of §1,000. .</p> <p>Tacts must be set forth showing that the value of the article in question is real or that the damages alleged have some foundation.</p>

Appeal by the defendant, the Second Avenue Railroad Company, from a judgment of the Superior Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 25th day of November, 1895, upon the verdict of a jury, and also from ah order entered in said clerk’s office on the 21st day of November, 1895, denying the defendant’s motion for a new trial made upon the minutes.

<p> Bill of particulars—when a motion therefor is premature. </p> <p>Where a motion is made by the defendant in an action for a bill of particulars and the defendant has not answered nor demurred, and there is no allegation in the moving papers that a bill of particulars is necessary to enable the defendant to prepare his answer, the motion is prematurely made and should be denied.</p>

<p>Services—promise implied to pay therefor — liability for the expenses of an arbitration of one who withdraws from it —evidence.</p> <p>In an action brought to- recover the value of certain services and damages for the breach of an agreement to arbitrate the matter in dispute between the parties, it appeared that the defendant became ill, and through Milbank, his brother-in-law, employed the plaintiff, who conducted a similar business, to take charge of his own, and executed to the plaintiff powers of attorney upon four banks ' with which the defendant did business, giving the plaintiff the right to sign, accept and indorse checks, notes and drafts: A dispute having arisen as to compensation to which the plaintiff was entitled, the parties undertook to settle it by an arbitration, from which the defendant afterwards withdrew. The ' services rendered were substantial and involved the receipt and disbursement of some §800,000.</p> <p>Held, that while there was no actual agreement for compensation, the circumstances raised.au implied obligation on the part of the defendant to make compensation, and that, in order to rebut that presumption, there must be clear evidence that "the services were intended to be gratuitous;</p> <p>That the referee properly found that the services were not gratuitous and properly awarded compensation therefor;</p> <p>That evidence relative to the extent of the plaintiff’s own .business during the period in which he was conducting the defendant’s business was properly excluded, as the question was not whether the plaintiff was benefited or injured in his own business, but whether he had rendered services to the defendant for . which compensation should be made;</p> <p>That as the defendant had revoked the arbitration proceedings he was liable for its expenses;</p> <p>That, as the answer did not deny that the defendant had withdrawn from the submission, it was not erroneous to exclude a letter offered by the defendant which, as was claimed, contradicted the plaintiff’s testimony that he never withdrew from the arbitration.-</p>

<p>Appeal, by the defendant, Jeremiah Pangburn, Jr., from a judgment of the Superior Court of the city of New York in favor of the plaintiff, entered in the, office of the clerk of said court on the 9th day of November, 1895, upon the decision of the court rendered after a trial before the court without a jury.</p> <p>■The action was in the nature of an action of quo warranto, ousting the defendant from the office of. secretary of the Retail Coal Exchange of the city of New York, and adjudging that the relator is rightfully entitled to the office.</p> <p>The Retail Coal Exchange, of this city, is a corporation duly organized under the laws of the State of New York, having, among other officers, a secretary, who, according to the by-laws, is to be elected annually at the first meeting in December of each year, which election is to be by ballot.</p> <p>On December 7, 1894, at a meeting of this corporation, nominations for officers for the year 1895 were made, at which Jeremiah Pangburn, Jr., was nominated for secretary. The annual meeting was held December 21, 1894. The secretary brought to this meeting the’ printed list of nominees, whereon, for secretary, appeared the defendant’s name, and following that name was a blank space of about half an inch. The chairman called for additional nominations for secretary, and the relator was then also nominated. The printed slips were distributed among the members, and the presiding officer announced the additional nominations made at this meeting, and directed “ that the members would please write those in, that is, proceed to complete the ballot * * * after which a recess was declared for the preparation of ballots.” Under the by-laws, “ a majority vote of the members present and voting shall be necessary to electand “ the mode of taking a vote or ballot on any question shall be in such manner as the meeting shall decide.”</p> <p>After the recess ballots were cast, and the count showed that of the forty-two ballots cast, twenty-one had the printed name--. “ J. Pangburn, Jr.,” and the name “Oscar Thorn,” in writing, underneath it, with a line drawn through the name “ J. Pangburn, Jr.seven had the name “J. Pangburn, Jr.,” in print, and the name “ Oscar Thorn,” in writing, underneath it, with a line drawn through the name “ Oscar Thorn ; ” twelve had the name “ J. Pang-burn, Jr.,” in print only; and two had the name “ J. Pangburn, Jr.,” in print, and the name “ Oscar Thorn,” in writing, underneath it, with neither name crossed off, so that these two ballots read:</p> <p>“ For Secretary,</p> <p>“ J. Pangburn, Jr. [in print].</p> <p>“ Oscar Thorn ” [in writing].</p> <p>The inspectors of election decided that these two ballots were defective, and the president of the Exchange declared that there had been no election for secretary, and ordered another vote to be taken, which was immediately done, and showed nineteen for Mr. Thorn and twenty-four for Mr. Pangburn, whereupon Mr. Pang-burn was declared duly elected and installed in-- office. -</p> <p>The action was tried by the court without a jury, and the decision rendered was to the effect that the tellers erred in declaring the said two ballots defective, and from the judgment entered upon that decision this appeal is taken.</p>

<p>Motion by the plain tiffs, Joseph Steiner and another, for a new trial on a case containing exceptions, ordered to be heard at the General Term of the Superior Court of the city of New York in the first instance, upon the verdict of a jury in favor of the defendant rendered by direction of the court after a trial at a Trial Term of said court on the 26th day of November, 1895.</p> <p>The plaintiffs, who are co-partners in the wholesale fur business in New York, bring this action to recover damages for the failure of the defendant’s company (a joint stock association engaged in the transportation business) to transport within a reasonable time a case of astrakhan furs, delivered by the plaintiffs to such company for transportation to Sterling, MacOredie & Co., at Toronto, Canada.</p> <p>In November, 1891, one of the firm of Sterling, MacCredie&.Co. purchased of the plaintiffs a case of astrakhan furs either upon approval, or, as One of the plaintiffs,states, “conditional to sample.” David Steiner, one of the plaintiffs, testified: “ I had three cases alike; one we kept in bond which we shipped to Toronto, while one case Mr. Sterling seen here. We showed him how they run, and he said, ‘ If they run that way, send them on as quick as you can.’ * * * That is what I mean by conditional to sample.” The Mr. Sterling referred to was called as a witness for the defendant, and testified that his purchase of the skins was simply on approbation, and that there was no time specified for delivery. The goods were shipped by Merchants’ Despatch on November eleventh. In ordinary course they should have arrived at Toronto within four or five days. By mistake the goods were shipped via .Montreal, instead of by the usual route, via Suspension Bridge, so that they did not reach their destination until November twenty-sixth. On that day Sterling, MacCredie & Co. wrote the plaintiffs as follows :</p> <p>“ Dear Sirs — The ■ lost case of Astrachans arrived to-day from Montreal, and to say that we .were disappointed on examining the same is to put it mildly. We thought you would ship us some decently fair skins, but such a poor lot of skins we never handled. We inclose manifest, which please have tilled in and return, and we will have cases shipped back at once. -Regretting that the transaction is so very unsatisfactory, we are,” etc.</p> <p>On November thirtieth the plaintiffs replied :</p> <p>“ Gents — Tour letter to hand, aud we are sorry to hear that the goods did'not-come up to your expectations, and that there should have been such a delay in delivering the goods to. you, as: we sold several similar cases here at the .time and could also have sold the case we sent to you, but since then these goods have declined in value, and we could not realize the same price now. We claim that it is the fault of the Merchants’ Despatch that the goods were sent to Montreal instead of Toronto, and had they been forwarded immediately we certainly could have ordered them back - and sold them. We wish you would. write us to the effect that the goods have been delayed and came too late to your place, as we intend to make complaint against the M. D. Hoping you will write us a letter to that effect, we remain,” etc. ;</p> <p>Accordingly, on December second, Sterling,. MacCredie & Co; accommodated the plaintiffs with a letter as follows :</p> <p>“Dear Sirs — Tour case of Astrachans invoiced to us 9 Novr-. and shipped per Merchants’ Despatch, arrived via Montreal -26th ult. too late to be of any use to us whatever. This delay has caused us serious loss, as the season is so far advanced. We have no time to manufacture up the goods, even if we could get them elsewhere.. We await your instructions,” etc.</p> <p>Upon the trial, at the close of the case, the plaintiffs asked to go to the jury upon the questions, “jb'st, was there any delay? and, second, was there.any damage caused by it?” .And further asked to be allowed to conform the pleadings to the proof in order to raise the above questions. This motion was denied and the plaintiffs excepted. The court directed a verdict in favor of the defendant, to which the plaintiffs excepted, and the court ordered the exceptions to be heard here in the first instance.</p>

<p>Motion by the plaintiff, Charlotte A. Conselyea, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, upon the verdict of a jury directed by the court after a trial at the Kings County Circuit on the lltli day of January, 1895.</p> <p>This appeal came on to be heard at the Appellate Division of fhe Supreme Court of the second department on February fourth, and it appearing that two members of the court were not qualified to sit in the case, an order was granted transferring the appeal to the Appellate Division of the first department, to be there heard and determined.</p> <p>This action was brought to recover the amount due under a benefit certificate issued by the defendant on December 6,1883, to one William Conselyea for the benefit of his wife, the plaintiff. No change was made of the beneficiary named in the certificate from the date of its issue until the death of the member, which occurred on the 21st- day of August, 1893. All the dues and assessments accruing under this certificate were paid up to the assessment No. 237, due June 15, 1892. The payment of that and of the subsequent assessments was, however, tendered and refused. In February, 1889, a separation agreement was entered into between plaintiff and her husband, whereby they mutually agreed to live apart, the husband to pay a certain sum monthly for the wife’s support, and she, among other things, to have all policies or certificates of insurance then held by him for her benefit, which were to be delivered to her, and thereafter such insurance to be maintained by her, he agreeing not to change the beneficiary named in such policies or certificates. Under this agreement, the benefit certificate in question was delivered to plaintiff, who from that time retained it and paid all assessments-and dues thereunder,, amounting to over $100,. up to "the .assessment of June. 15, 1892, before referred to. The plaintiff and her husband continued to live apart, pursuant to the agreement; and this, together with the further fact that the assessments and dues were being paid by the wife, was known to the local or subordinate council of the defendant. Notwithstanding the agreement, the husband endeavored to deprive the plaintiff of her, rights under ■ the certificate, and wrote a number of letters, not only to the subordinate council, but to defendant itself, two of which, selected, are ■as follows-:</p> <p>“Dated, New York, June 0th, 1892.</p> <p>“.Received June 1th, 1892.</p> <p>“• Comp. A. S. Waknock,, Supreme See'y: "</p> <p>■“ Dear Sir — Some time ago 1- tendered my resignation to St. ■John’s Council, No. 3, A. L. of H., as ones of its members, desiring to withdraw from the order ; since then I received the following communication from the See’y, which you will find inclosed ; the section and article referred to is for those desiring to withdraw. When I became .a member of the order my certificate was made payable; to- what Was then my wife, since which time differences arose which caused a separation, she holding the -certificate and paying the assessments which prevents my being suspended and" cannot furnish you with the certificate as demanded by this letter, but am perfectly willing to sign a release for all claims against the order. If this meets your approval please advise, for 1 think the council is acting in a manner not sustained by any law in receiving from one who is not a member of the order the assessments as they become due, thereby preventing my either withdrawing or suspension and at the same time gratifying a desire of hers as expressed that I may die so that .she may get the benefit. This I want to prevent as she is worthy of no consideration. Hoping to hear from you soon I am,.</p> <p>“ Yours fraternally, -</p> <p>“WILLIAM CÓNSELYEA, Sect”</p> <p>“Dated, New York, June 10th, 1892.</p> <p>“Officers and Members' of St. John Council, No. 3, A. L. of H.: “ Companions -— I have waited nearly a year for - the acceptance of my resignation, from your council and order which- up to the present time has not been granted. I again present it in the same spirit and meaning, and desire its immediate granting. I also give ■ notice that you accept no more assessments on my account, and that no more notices of my assessments be mailed to any one, and inasmuch as I have received no notice from the council, either for the election of officers or for other matters which have called for special notification by mail, it is my desire that my name be- dropped from the roll of your council, and that you record me suspended for non-, payment of the first assessment due and unpaid subsequent to the date of receipt of my -communication. Supreme secretary has informed me that the acceptance of my resignation by. the council</p> <p>is compulsory.</p> <p>“Yours fraternally,</p> <p>“ WM. CONSELYEA.”</p> <p>In addition, letters were received from the husband resigning as a member and voluntarily withdrawing.</p> <p>The by-laws relating to withdrawal and suspension are as follows:</p> <p>“146. A member wishing to withdraw permanently from the order shall pay all dues, fines and assessments charged against him, surrender his benefit certificate with a written release of. all claim thereto or against the order, and said release and benefit certificate shall be forwarded to the supreme secretary. ***”■•</p> <p>“ 65. Any member failing to pay the assessments required of him, and for which he shall be liable, on or beforé the day limited for the payment of the same, shall stand suspended from the order and all rights and benefits therein; and his or her benefit certificate shall be void. * * *”</p>

<p> Deposition of a defendant—the plaintiff need, not read it all—latitude of cross-examination as to agency. </p> <p>A party bringing an action cannot be compelled to read the whole of a deposition of the defendant, but need only read such portions of it as he deems proper.</p> <p>Where the principal issue in a case is whether certain persons were agents of the defendant and of others jointly interested with him, or whether they.were agents of a corporation, the court should allow the plaintiff considerable latitude in his examination of the defendant and of the parties who acted as- agents, with a view to eliciting the real relation existing between them.</p>

<p>Transfer tax-.—an individual deposit of a.non-resident, in Ms name as trustee, in a, loan and trust company is not taxable —nor is the right to an accounting — limit of jurisdiction to tax^- situs of a debt—widen the tax is upon the pi'operty, and not one upon the succession. ' ■ ■ ■ •■ '- •</p> <p>Money of a, non-resident of this State, belonging to. him individually, and deposited by him in an account which he kept as trustee with a loan and trust company doing business in the State of New York, is not property of the decedent within the State of New- York within the meaning of the- Taxable •Transfer Act (1892, chap. 399, § 1, subd. 2). ■</p> <p>In such a situation, all that the decedent has individually within, this. State-is a , right to an accounting ’ in equity, between himself and his debtor, the loan and trust company, in Order tp separate the individual from the trust deposit and to appropriate the general balance in bank in accordance' with justice.</p> <p>Neither the debt nor the right to an accounting is property •'within this State:</p> <p>The power of the State to tax is limited to persons, property and business within, its jurisdiction.</p> <p>The situs of a debt is the domicile of the creditor, and the legal situs of a chose-in action is, to all intents and purposes, its actual situs.</p> <p>The State cannot create a liability in its own favor against a non-resident creditor by the mere exercise of jurisdiction over his resident debtor.</p> <p>In the case of a non-resident, the transfer tax is not a tax upon the right of succession, but is simply a tax upon property acquired through the instrumentality of a foreign law relative to the succession.</p>

<p>Specific performance — the agreement must be definite—promise by the vendor of a-business to make a codicil directing his executors to continue the business, provided the vendees “ conformed” to the agreement of sale — too indefinite as to time of payment and, not binding.</p> <p>In an .action brought to obtain a judgment enjoining the defendants, as executors-of Thomas Garry, from attempting to rescind a contract made between the-plaintiffs and Thomas Garry and from selling his business, it appeared that. Thomas Garry, desiring to retire from a retail dry goods business conducted by him, made an agreement with the plaintiffs, two of his clerks, by which the: plaintiffs were to thereafter conduct the business, but that Thomas Garry, who-had invested in the business $151,000 which he desired to withdraw therefrom, should' retain the absolute ownership of the business until he had withdrawn all his money, the plaintiffs in the meantime each contributing $4,000 as capital and receiving, during the period until Garry’s money should be withdrawn, only their former salaries, at the end of which period Thomas Garry was to transfer to each of the plaintiffs a one-fifth interest in the business and in everything connected with it except the lease; that if Thomas Garry, before he had withdrawn all his capital, should so elect, he might terminate the agreement and should incur no liability beyond an obligation to return the capital contributed by the plaintiffs and interest thereon; Thomas Garry, at all times and until he had withdrawn his whole capital, was to remain the sole owner of the business and have the right to dispose of it as he pleased, and in case of his death his executors were to occupy his position.</p> <p>At the time when this instrument was offered for signature the plaintiff Patrick J. Molohan objected to signing it and asked Thomas Garry what position the plaintiffs would be placed in if he died and his executors had control. Garry then said that, if the plaintiffs would sign the agreement, he would add a codicil to his will directing his executors to conform to the agreement to continue the business until the amount of his interest was paid, provided the plaintiffs conformed to the agreement on their part, and after the execution of the agreement Thomas Garry executed a codicil in which he incorporated a provision somewhat similar to that which he had promised to make, but he subsequently made a will containing no such provision, in which he appointed as his executors the defendants, who after his death notified the plaintiffs of their desire to cancel and annul the agreement. The plaintiffs testified that they signed the agreement upon the understanding that Garry would provide in his codicil as he had promised.</p> <p>Up to the time of the commencement of the present action, Thomas Garry and his executors had withdrawn about $115,000.</p> <p>Held, that the action could not be maintained ;</p> <p>That equity could not enforce specifically a contract which was indefinite and uncertain in its character ;</p> <p>That, assuming that Garry promised to make a codicil directing his executors, provided the plaintiffs conformed to the agreement, to continue the business until the amount was paid and the contract was fulfilled, there was nothing in the agreement to show what was meant by the phrase “ conformed to the agreement,” nor was any time fixed when the amount to which the testator was entitled should be paid;</p> <p>That, assuming that the parol contract was sufficiently definite, it was not binding;</p> <p>That under the agreement Garry had absolute and arbitrary control of the business until he had been paid in full, could have canceled the agreement or sold the business to another, and that, this being so, he could arbitrarily change his mind in regard to making a codicil to his will and the plaintiffs would still be without relief.</p> <p>Patterson, J., dissented.</p>

Appeal by the defendant, Clara Rosenstein, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rew York on the 19th day of April, 1894, upon the verdict of a jury rendered after a trial at the Rew York Circuit, and also from an order entered in said clerk’s office on the 19th day of April, 1894, denying the defendant’s motion for a new trial made upon the minutes.

. Appeal by Henry S. Ward, as receiver, etc., from a judgment of the Supreme Court in favor of the Southern National Bank of New York, entered in the office of the clerk of the county of New York on the 29th day of November, 1895, upon the report of a referee; also from an order made at the New York Special Term and entered in said clerk’s office on the 29th day of November, 1895, denying the motion of certain stockholders of The American Steam Boiler Insurance Company to…

Appeal by the. defendants, Herman A/Ctiriel and another, from; a judgment of the Superior Court of the city of New;York in favor of the plaintiffs, entered in the office of the clerk of said court on the.4th day of May, 1894, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th‘day of May, 1894, denying the defendants’ motion for a new trial made' upon the minutes.

<p>■ Appeal by the plaintiffs, the Gorham Manufacturing Company and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 15th day of February, 1895, upon the decision of the court rendered after a trial at the Hew York Special Term dismissing the plaintiffs’ complaint upon the merits.</p>

<p>Appeal by the petitioners, Henry Havemeyer and others, from a, decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 27th day of January, 1896, denying the application of the petitioners to remove J. Lee Humfreville,. as executor of and trustee .under the last will and testament of' Mary J. Havemeyer, deceased; also from an order entered in said Surrogate’s Court on the 27th day of January, 1896, denying the petitioners’ motion to strike out a certain affidavit of the said J.. Lee Humfreville as scandalous.</p>

<p>Guaranty made in France—the foreign law, not pleaded nor proved, will not he considered — the burden of proving it rests upon the defendant..</p> <p>Upon the trial of an action brought to recover upon a guaranty, of which the plaintiff was the assignee, it appeared that the plaintiff’s assignor and the defendant, whose husband was a merchant, having business relations with the assignor and transacting his business in New York city, both resided in Paris, and although the guaranty was executed and delivered in France, neither the complaint nor the answer referred in any manner, nor was any proof made, as to the laws of the French Republic.</p> <p>Held, that a recovery by the plaintiff was proper;</p> <p>That the courts of this jurisdiction were open to foreigners as well as to citizens;</p> <p>That the courts would determine the rights of the parties to a contract under the provisions of their own law, and that if the law of the place where the contract was made differed in any respect from the law of the forum, so that liability according to the lex loci contractus would not attach or would be avoided, it was for the defendant, claiming the benefit of the foreign law, to show the existence of a provision invalidating the contract upon which the action was brought.</p>

<p>Appeal by the plaintiff, Cero. Mastro Paolo, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the. BOth day of January, 1896, upon the decision of the court rendered after a trial at the New York Special Term sustaining the defendant’s demurrer'to the complaint. • •</p>

<p>Matrimonial actions — adultery—evidence of prostitutes must be corroborated — effect of defendant’s prior illicit relations with the co-respondent — affidmits of prostitutes contradicting their subsequent testimony.</p> <p>The courts regard the uncorroborated evidence of prostitutes and private detectives as insufficient to break the bonds of matrimony, but, in divorce cases, the courts must take such evidence as the nature of the case permits, circumstan. tial, direct or positive, and must bring to bear upon it the tests of observation and experience in the exercise of good' judgment. It is to be weighed with prudence and care, and effect must be given to its just preponderance.</p> <p>Where the testimony of prostitutes relative to an act of adultery is corroborated, both as to the person with whom the adultery was committed and as to the date of the act, the court will not interfere with the judgment.</p> <p>While it is a general rule that marriage operates as an oblivion of prior improper acts, the rule is not the same where the adultery, which is the basis, of the action, is charged to have taken place with the same person with whom the defendant had had illicit relations before his marriage.</p> <p>Circumstances which may be proved to have existed subsequent .to the marriage will have a very different complexion if taken standing alone, or if taken in conjunction with an antecedent criminal connection.</p> <p>Where the defendant procures, before the trial, affidavits from prostitutes which are at variance with their testimony upon the trial, the only effect of the . affidavits is to intensify the already existing necessity that such witnesses should be corroborated.</p>

<p>Appeal by the defendants, The 'Manhattan Railway Company and another, from judgments of the Supreme Court in favor of the plaintiff in each of the above-entitled actions, entered in the first and third above-entitled actions in the office of ’ the clerk of the county of New York on the 2d day of May, 1895, and in the second above-entitled action on the 3d day of May, 1895, .upon decisions of the court rendered after trials at the New York Special Term.</p>

<p>Receiver of an insolvent corporation—liability of, under a lease —what terms a/re incorporated, into a lease by a reference therein to a blank form, of lease — waiver of. a claim that an instrument is a promise to make a lease and not a lease—a lessor, re-renting as agent of the lessee, does not discharge-the lessee.</p> <p>Upon an appeal from an order confirming the report of a referee appointed to determine a controversy between D. .0. Mills and the receiver of the St. Nicholas Bank of New York city, it appeared that the parties executed an agreement in August, 1891, which stated that Mills agreed to lease to the bank, and the bank agreed to take, certain rooms in the Mills Building for five years, from Hay 1, 1892, at the yearly rent of §12,000, and further provided: " The parties hereto agree to execute and exchange leases of said room prior to the occupancy thereof, such leases to be drawn on, and this agreement being subject to, all the provisions of, the blank forms in use in the Mills Building, except as modified by the above memorandum.” The bank entered upon and occupied the premises, and became insolvent in December, 1893, and its receiver occupied them until February 1, 1894, when he vacated them, and Mills re-rented the premises, claiming that ho was permitted to do so under a condition contained in the blank form of lease in use in the Mills Building, as agent of the lessor, and subsequently made a claim for the rent unpaid and for all future rent to accrue during the term, after making allowance for the sum which he would receive under the re-renting agreement.</p> <p>Held, that the instrument of August, 1891, was a lease and not a mere executory agreement to lease in the future;</p> <p>That the provisions contained in the leases in use in the Mills Building became by the terms of the agreement of August, 1891, incorporated into that instrument;</p> <p>That the provision that the parties should execute and exchange leases before occupancy was one which could be waived, and which had been waived by the fact that the bank entered into occupation and subsequently paid the rent;</p> <p>That the claim was enforcible against the assets of the bank in the hands of the-receiver;</p> <p>That the assets in the hands of the receiver constituted a fund for the payment of the debts of the bank, due and to become due, and was a fund to cancel and discharge all subsisting obligations;</p> <p>That the agreement of the bank to pay rent for the full term did not cease to be one of its subsisting obligations because of its insolvency and the appointment of a receiver;</p> <p>That Mills had a right under the agreement, as agent of the bank, to rent the. premises to a new tenant, and in so doing did not cancel the lease to the bank, nor discharge the lessee.</p>

<p>Appeal by the plaintiff, Charles Cotesworth Pinckney, Jr., from a "judgment of the Supreme Court in ■ favor of the defendant, entered in the office of the clerk of the county of New York on the 1st day of February, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 1st day of February, 1895, denying the plaintiff’s motion for a new trial made •upon the minutes.</p>

<p>Equity — tracing funds wrongfully used—equitable ownership of mortgages — priority of legal title over equitable rights — subrogation.</p> <p>The subject-matter of an action was a fund in court, the proceeds of three mortgages given by Max Danziger to Francis H. Weeks, which was claimed by the plaintiff as executor and trustee of William E. Howland, deceased, by the defendant, the Land and River Improvement Company, of which Weeks was president in 1892, and also by the defendant James B. Williams. It appeared upon the trial that in October, 1885, Weeks, who was co-trustee and executor with the plaintiff, had in his possession certain stock belonging to the How-land trust, which it was agreed between him and the plaintiff should be sold and the proceeds be loaned to Max Danziger upon four mortgages to be given by him. Weeks sold the stocks for §74,000, deposited this sum to his own account in the Bank of Commerce, and later invested §60,000 of it in mortgages made by Max Danziger, which Weeks took in his own name as mortgagee, which latter fact did not come to the knowledge of the plaintiff until 1893. In the interval Weeks wrongfully used the mortgages for his own purposes, and actually parted with one of them, retaining the others. On December 12, 1892, Weeks, as president of the Land and River Improvement Company, borrowed for the use of that company of the defendant James B. Williams railroad bonds having a face value of §48,000, which were to be used to borrow §30,000 for that company, and gave to Williams as collateral security the three Danziger mortgages, which were duly assigned to Williams. Weeks took the railroad bonds to the Bank of Commerce and borrowed §30,000 on them, giving, to the Bank of Commerce, without the knowledge of Williams, his, Weeks’, individual note for the amount, and the proceeds were used solely by the company. Before the note became due Weeks drew a check upon the bank account of the company, made to his own order, for the amount of the note, received the money upon it, and when the note became due he paid upon it only §5,000, and had it renewed for the balance, the securities of Williams still remaining pledged to the bank. Subsequently the mortgages of Danziger were paid and the proceeds were brought into court.</p> <p>Held, that as the evidence showed that the moneys of the Howland trust were satisfactorily traced into the bank account of Weeks with the Bank of Commerce, and out of that account into the loans made to Max Danziger upon his mortgages, the Howland trust was the equitable owner of those mortgages;</p> <p>That as Williams was the legal owner of the mortgages, without knowledge or notice of latent equities, he was entitled to be first paid from the fund;</p> <p>That the act of Weeks, in paying one-sixth of the §30,000 note and procuring its renewal for the balance, did not alter or improve the position of the Land and River Improvement Company in regard to Williams, nor discharge its debt to him;</p> <p>That if the renewal of the note was to he deemed a new transaction, still Williams • was entitled to have the Land and River Improvement Company return his securities, an act which it had never performed;</p> <p>That Williams was entitled to an execution against the Land and River Improvement Company for his debt, as fixed hy the judgment in the action, and if this • was not paid or collected, Williams should he authorized to apply to the court to he paid from the fund in court, and upon such payment should assign to the .plaintiff all his rights under the j udgment.</p>

Appeal by the. defendant, The Western Assurance Company of Toronto, Canada, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 24th day of February, 1896, vacating a former order made on default which set aside the service of the summons and complaint in the action, and denying defendant’s-motion to set aside such service.

Appeal by the claimant, Jaines Talcott, from a decree of the Court of Common Pleas for the city and county.of New York in favor of the assignee for the benefit of creditors of Orlo Atwood & Sons, entered in the office of the' cleric of said court on the 26th day of September, 1895, upon the report of a referee, disallowing the claim presented by the claimant against the estate in the hands of the assignee, and granting an allowance against him of $500, in addition to the…

Appeal by the plaintiff, John Shields, from a judgment of the Superior Court of the city of New York in favor of the defendant, entered in the office of the clerk of said court on the 24th day of October, 1895, upon the dismissal of the complaint directed by the court, after a trial before the court and a jury. The action was brought to recover damages for personal injuries to the plaintiff, alleged to have been caused by the negligence of the defendant.

Appeal by Frederick Beltz, a third party in the action, from so much of an order of the Court of Common Pleas for the city and county of New York, entered in the office of the clerk of said court on the 21st day of November, 1895, as directs him to pay over to the sheriff of the city and county of New York, in. ■partial satisfaction of a judgment recovered by the plaintiff against the defendant, a sum of money in Ms hands alleged to belong to the judgment debtor.

<p>Marine insurance — a suppression of the fact that the insured, the owner of the merchandise, is the charterer of the vessel avoids the policy.</p> <p>It is a fact material to the risk in marine insurance that the owners of the property shipped upon a. vessel are also the charterers of the vessel.</p> <p>If the insured suppresses this fact when the risk is taken the policy is void, and if the insurer pays the loss while still in ignorance of this fact, he is entitled to recover the money paid.</p>

<p>Appeal by the defendant, Henry Wilkens, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the the 9th day of December, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Hew York Circuit, and also from an order entered in said clerk’s office on the 13th day of December, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover rent under a written lease under seal. In the title of the action the plaintiffs were named as executors of and trustees under a last will and testament. It was alleged in the body of the complaint that the . testator died January 30, 1888, seized in fee of lots 129, 131 and 133 Worth street, city of Hew York, and left a will naming the plaintiffs as executors of and trustees under the will; that the will was admitted to probate about May 1,1888, and that the plaintiffs duly qualified, and ever since have been acting as such executors and trustees; that the will directed plaintiffs to divide and partition certain lands, including the Worth street lots, into certain equal shares, one of which he gave and devised to the plaintiffs in trust for the benefit of his son, and authorized and empowered the plaintiffs to lease the lands, but not for a term of more than five years without the consent of the son if of full age and competent to give such consent; that the plaintiffs, pursuant to such authority, did divide and partition the lands in equal shares, and set apart one of the shares for the use and benefit of the son, and that these three lots were a part of that share; that the plaintiffs held these three lots in trust for the use and benefit of such son, who was of full age and competent to give such consent to the leasing of sudh lots; that on April 24, 1889, the lease in question was given to the defendant of the three lots for ten years from January 1, 1890, at a yearly rent for the first five years of $10,000, and for the remaining five years of $11,000, which was to be paid quarterly on the first days of April, July, October and January in each year, the defendant to pay in addition thereto the Croton water taxes and charges on demand during the term; that the plaintiffs agreed to erect upon the lots a substantial store building, six stories high, and that the son consented to the making of the lease for the, ten years; that the plaintiffs, pursuant to ‘the terms of the lease, erected a building on the property before January 1, 1890, and the defendant entered into possession of the property under the lease, and has ever since remained and now is in such possession, and has paid the rent provided in the lease for the first five years and up to January 1, -1895 ; that a quarter’s rent became due April 1, 1895, amounting to $2,150, and, although payment thereof had been demanded, remained wholly unpaid ; that Croton water taxes and charges amounting to $499.60 had become due and payable, and remained unpaid, although payment thereof liad been demanded,, and judgment was demanded for the amount of this rent and these taxes and charges with interest.</p> <p>A copy of the lease was annexed to the complaint and made a part thereof, and it was stated to be made by the persons who are the plaintiffs herein, adding to their names the words “trustees of Lorillard Spencer” (the son), and it was signed by two only of these persons, each writing the word “ trustee ” after his name — the body of the lease reading as follows :</p> <p>“ This indenture,, made the twenty-fourth day of April, one thousand eight hundred and eighty-nine, between James P. Kernochan, William A. Spencer and Charles G-. Spencer, trustees of Lorillard Spencer, of the first part, and Henry Wilkins of the second part, witnesseth.”</p> <p>(And being signed):</p> <p>“ JAMES P. KERNOCHAN, Trustee [l, s.] .</p> <p>“WM. AUGUSTUS SPENCER, Trustee [l. s.]</p> <p>“HENRY WILKENS [l. s.].”</p> <p>The answer of the defendant denied all the allegations of the complaint as to the lease of the property and possession and payment of rent under it and the amount unpaid for water rents and charges, but admitted the allegations with reference to the will and the character of plaintiffs thereunder.</p> <p>Upon the trial evidence was given by the plaintiffs tending to prove the allegations in the complaint. No evidence was given by defendant. The defendant objected to the plaintiffs’ evidence, and moved to dismiss the complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action, and on the further ground that no cause of action had been made out by the proofs; that the action was based on the lease, and there was nothing in that to show that these men made the lease as executors or trustees.</p> <p>The motion was denied and a verdict was directed for the plaintiffs.</p>

<p>Appeal by the defendants, Rebecca Samuel and others, from a judgment of the Supreme Court in favor of the ¡ilaintiñ and of the defendants, Albert Hendricks and others, entered in the office of the clerk of the county of New York oh the 27th day of November, 1895, upon the report of a referee.</p> <p>The action was brought to obtain a judicial construction of the last will and testament of -Charlotte Gomez, deceased. The will of the testatrix was as follows:</p> <p>“ In the Name of God, Amen : I, Charlotte Gomez, widow of Benjamin Gomez, of the city of New York, deceased, being in good health of body, and of sound and disposing min’d and memory, praise be to God for the same, and being desirous to settle my worldly affairs while I have the strength and capacity for that purpose, do make and publish this my last will and testament, hereby revoking and making void all former wills by me at any time heretofore made. And first and principally, I commit my soul into the hands of my Creator, who gave it, and my body to the earth, to be interred at the direction of my executors and executrix, hereinafter named; and as to such worldly estate wherewith it hath pleased God to intrust me, after the payment of all just debts and funeral charges, I dispose of the same as follows:</p> <p>“ Imprimis. I give to my executors and executrix the sum. of twelve thousand dollars, now invested in the stock of the city of New York,- commonly known as the Croton water stock of the city of New; York, to be held by them in trust, to apply the yearly income and dividends thereof in and towards the support, maintenance and clothing of my daughter Matilda, during her natural life; charging on them, that while her unhappy state continues, that they carefully attend to her wants. and necessities in the said application of the said interest, income or profits, to her said maintenance, support and necessities. And as I deem the said twelve thousand dollars to be at present well invested, I desire and direct that no change be made of said investments, unless there should be great danger of loss, or some serious disadvantage from the present investment, but that the same remain invested as it now is, in the five per cent water stock of the city of New York, until the same be paid or otherwise liquidated, and that in such case of payment or liquidation of the said stock, that my said executors, and executrix ’shall then only invest it in stock known as the Croton water stock of like character as the present investment, or, if the same cannot be purchased, then in stock of the city of New York, or of the United States, or on bond, secured by mortgage on improved real estate, situated in the city of New York, of at least double the value of the amount so invested, the income of such new investment to be applied to the maintenance, support, clothing and necessities of my said daughter Matilda during her life.'</p> <p>“ Seeondl/y. I give, devise and bequeath unto my executors, all the rest, residue and remainder of my real and personal estate, wheresoever and whatsoever the same may be, in.trust, nevertheless,, to receive the income, dividends, interests, rents and profits thereof, and to pay the same, after deducting all necessary expenses, over as soon as received, unto my daughter Emeline, on her own proper receipt, to be for her use alone, and without the interference or claim of any husband she may have, or of any other person whatsoever. And in case she should die, leaving lawful issue, then to transfer, set over, grant and convey all and singular the said rest, residue and remainder of the said real and personal estate to such child or children of my daughter - Emeline, or his or her or their heirs arriving at the age of twenty-one years; to have and to hold the same to his, her or their use and behoof forever.</p> <p>“ Thirdly. In case my said daughter Matilda should die, leaving my said daughter Emeline her surviving, then I give unto my said executors the said sum of twelve thousand dollars, invested as afore.said, in the Croton water stock of the city of New York, the interest of which is to be applied to the support, maintenance and necessities of my said daughter Matilda ; the said twelve-thousand dollars to be and remain invested as aforesaid by this will directed, during the life . of my said daughter Matilda, and that the said twelve thousand dollars after her decease, to be held by my said executors in trust, with the rest, residue and remainder of my estate) as is hereinbefore provided, nevertheless to. receive the increase, dividends, interest and profits of the said twelve thousand dollars, with the increase, dividends, interests and profits of the rest of my said estate, and to pay the same to my said daughter Emeline on her own individual and proper receipt, to be for her use alone, and without the interference or claim of any future husband or any other person whatsoever; and in case she should die leaving lawful issue her surviving, then to transfer, set over, grant and convey all and singular the said stock and proceeds thereof to such child or children, or their heirs, on his or their arriving at the age of twenty-one years.</p> <p>“ Fourthly. -In case my said daughter Matilda should survive her sister Emeline, my -said daughter Emeline dying and leaving no child or children or their issue, descendants of her body her surviving, I bequeath and devise the real and personal property hereinbefore devised and bequeathed to be held in trust for my said daughter Emeline by my s^id executors, to my said executors to be held in trust, to apply the rents, income, dividends and profits of all and singular the same, to the support, maintenance, wants and necessities of my said daughter Matilda during her natural life, and after her decease to transfer, convey and set over all and singular the same my real and personal estate so left in trust to the children and lawful heirs of - my brother Harmon Hendricks, deceased, to share and share alike, per stirpes/ saving and reserving, however, both from this last bequest and devise, in trust for the use of my daughter Matilda, and the children and heirs of my brother Harmon Hendricks, in case my daughter Emeline should by her last will, or other lawful direction, dispose of the sum of five thousand dollars to be paid out of my said estate , so held in trust, after the decease of my said daughter Emeline, to such person or persons as she may deem proper.</p> <p>“ Fifthly. In case my said daughter Matilda should die after my daughter Emeline, I give and bequeath the said twelve thousand dollars in stock, or the investment and proceeds thereof, to the child or children of my said daughter Emeline, if she should leave child or children, or their heirs, on arriving at the age of twenty-one years; and in case she should die without issue, then I give and bequeath the said sum of twelve thousand dollars, as aforesaid directed, unto the children of my said brother Harmon Hendricks, the same to be divided as I have before directed, with respect to the property of my said daughter Emeline, and I direct my executors, holding the same in trust, to transfer and convey all the property hereinbefore bequeathed and devised, according to the true intent and desire of this my will.'</p> <p>“Sixthly. In case of the death of either of my executors, the trust of this will hereinbefore imposed on them not being fully concluded or discharged, I do will and direct that with the consent of my said daughter Emeline, in case she should be living, a new trustee be appointed in the place of the deceased executor; such appointment or nomination, however, to be examined into, ratified and confirmed by an application to some competent legal tribunal to be made for that purpose.</p> <p>“ Lastly. I do hereby nominate, constitute and appoint Aaron Gomez and Henry Hendricks of the city of New York my executors, and my said daughter Emeline my executrix, of this my last will and testament, to fulfill and execute the trusts hereinbefore com tided to them.</p> <p>“In witness whereof, I have on this.---day of February, in the year one thousand eight hundred and forty-eight, to this my last will and testament, contained on three half sheets of paper, set my hand and seal in manner following, that is to say, -at the end of each page I have set my hand by subscribing the same with my name, and last half sheet, I have signed and subscribed my name and set my seal.”</p>