Volume 3 — New York Supplement

<p>Appeal from judgment on report of a referee.</p> <p>Action by George Bleistein, president of the Courier Company, against Jacob H. Studer, for printing and binding certain books. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Landlord and Tenant—Recovery oe Possession—Action by Purchaser.</p> <p>A conveyance of demised premises in fee, without reservation, carries with it all the lessor’s rights, and, in a proceeding by the grantee against the tenants, after giving them the statutory notice to pay the rent or quit the premises, a judgment that defendants are in default, and that a warrant issue to put petitioners in possession, is proper.</p> <p>2. Same—Parties—Subtenants.</p> <p>Another tenant, who occupies and carries on business in a part of the premises, with the knowledge and consent of the lessee, is properly made a party to a suit for possession.</p> <p>3. Same—Rights and Liabilities—Estoppel to Dent Landlord’s Title.</p> <p>In the absence of other evidence, the execution of the lease is conclusive proof of ownership in the lessor at the time, as against the lessee.</p> <p>i. Same—Execution of Lease bt Landlord—Estoppel to Dent.</p> <p>Where a tenant has remained in possession of premises, and enjoyed the use thereof, and the trial court finds that he signed the lease, he is estopped from asserting the improper execution of the lease by the landlord.</p> <p>5. Same—Holding Over—Liabilitt of Tenant.</p> <p>Where the tenant has remained in possession after the expiration of the lease, the law implies an agreement on his part to hold in accordance with the terms of the lease.</p> <p>6. Same—Appeal—Review—Questions not Raised Below.</p> <p>Where trial court assumed, without objection, that the lease was properly executed by the landlord, the signature cannot be questioned for the first time on appeal.</p>

Proceedings supplementary to execution in the action of Frank Lippert against Bartlomiz Olejniczak. From an order adjudging defendant in contempt, and another directing a warrant of attachment to issue, defendant appeals.

H. Dugro, Judge. Action by Richard V. Harnett against Robert Westcott, as president of Westcott’s Express Company, for the value of a trunk and its contents. Verdict and judgment for plaintiff for $690, and defendant appeals. For opinion on motion to dismiss appeal, see 2 H. Y. Supp. 10.

Action by George E. Sibley, assignee of Joseph Manning, a bankrupt, against the Equitable Life Assurance Society of the United States, Mary R. Heather, and Joseph Manning, on a policy of insurance. An order was made at special term by Judge O’Gorman, allowing the society to pay the amount of the poling into court without interest. Plaintiff appeals. '

Teaman, Referee. Action by David Porter Templeton against Julius and Isaac Wile for Bellthal mineral water sold by the Bellthal Brunnen Company to defendants, the claim for which the company assigned to plaintiff. Defendants alleged a contract by the Bellthal Brunnen Company, giving defendants the sole agency for the term of five years, for the sale of its mineral waters in the United States, and that the company failed to perform the same.

Action by Nettie Danzig, a dress-maker, against Florence Gerard Abbey, an actress, for $643.64, the price of certain dresses furnished to defendant. At the time the goods were furnished defendant was an actress in the employ of one Eric Bayley, a theatrical manager, and the dresses were for use on the stage.

Action by Albert F. West against AVilliam Kurtz on bond assigned to plaintiff. Plaintiff appealed from a judgment for defendant, which was affirmed by the general term, but a reargument was ordered. For opinion on motion for reargument, see 2 H. Y. Supp. 110.

<p>X. Appeal—Practice—Rehearing.</p> <p>A reargument of an appeal will be granted only when some question decisive of the case, and duly submitted by counsel, has been overlooked, or the decision is in conflict with an express statute, or with a controlling decision to which the attention of the court was not called.</p> <p>2. Same—To Court of Appeals—Decision on Facts—Reasoning op Trial Judge.</p> <p>An appeal will not be allowed by the general term of the common pleas to the court of appeals, though the reasons assigned for his decision by the trial justice may be unsound, where the decision itself is correct, and depends mainly upon a question of fact.</p>

On motion to compel plaintiffs to give security for costs. It appears by the affidavits on which the motion is based that the action was commenced in May, 1886, tried the following December, and decided soon after.

New York county; George 0. Barrett, Justice. Action on notes by the Boston National Bank against Paul J. Armour and Charles W. Armour. Motion by defendants for an order directing the clerk to change a date in plaintiff’s sworn complaint so as to make it conform to the copy served, and praying for general relief. Motion denied, and defendants appeal.

<p>Action by Joseph Rivera against Edward Finn and others, for excavating, under an alley over which plaintiff had the right of passing.</p>

Action by Mary Duffy, heir at law of Philip Duffy, against Catherine Duffy his widow, Francis Duffy, Susan Daly, and others, heirs at law, for sale in partition of certain parcels of land of decedent. Sale ordered, and defendant Catherine Duffy appeals. Code Civil Proc. N. Y. § 1532, authorizes ah action for partition between tenants in common, and sale where partition cannot be made without prejudice.

Action by Adrian Van Sinderen, testamentary trustee of the estate of Will•iam Lawrence, deceased, to enjoin proceedings in plaintiff’s accounting before the surrogate until a certain release alleged to have been given him by •defendant, William B. Lawrence, should be established as a conclusive discharge of the latter’s claims against plaintiff or the estate. Defendant appeals from an interlocutory judgment overruling his demurrer.

This action was brought by Henry Bornkamp against Gustav Boehm and Sophia Boehm, for the purpose of setting aside and reforming a deed made by plaintiff to defendants, and to have the same declared as intended for security merely, and to set aside the conveyance of the premises, made by defendant Gustav to defendant Sophia, as a fraud on plaintiff. The court dismissed tlier complaint, and plaintiff appeals.

<p>Wharves—Piers in East River—Obstructions.</p> <p>Under Laws N. Y. 1875, c. 249, authorizing the erection, with the consent of the-department of docks, of sheds upon piers in New York city, but prohibiting interference with free public use of any pier on East river “which has heretofore been used for the loading and discharging of sailing vessels regularly employed in foreign commerce, and having a draught of more than 18 feet of water, ” the courts will order the removal of a shed erected on such a pier, so as to interfere with its free-use as a highway, though erected under permit from the department of docks, since the wharves ana piers of New York city are hut extensions of the highways, and, being upon navigable waters, are wholly within the jurisdiction of the legislature.</p>

Action by Albert G. Bearing against Cyrus A. Sears upon an agreement to divide their commissions as brokers. Judgment was entered for defendant upon dismissal of the complaint, at the close of plaintiff’s evidence, and plaintiff appeals.

Action for money loaned by Ignatius Macmanus and others against Horace K. Thurber and others. Complaint dismissed on the merits. Plaintiffs appeal.

Harry A. Ely, captain in the Ninth regiment of infantry of the National Guard, was convicted by a court-martial of conduct unbecoming an officer and a gentleman, and sentenced to be cashiered from the service. To review these proceedings he brings eertiorari.

Action by Frances L. Ledj’ard, administratrix of Asa Worthington, deceased, against William L. Bull and others, executors of Henry Worthington, deceased. From a judgment in favor of defendants, entered on report of referee, plaintiff appeals.

Action by Charles E. Copeland and Earle C. Bacon, assignees of Frank CL Johnson, against the Johnson Manufacturing Company, on a claim of the-assignor for services as president of defendant. There was evidence that a report of the liabilities of defendant, showing an amount due Johnson as salary, had been before a meeting of the stockholders, and was not objected to; and the court submitted the question of the ratification of the rendition of the services to the jury.

On exceptions from circuit court, New York county. Action by Elizabeth S. Spring, administratrix of Marshall Spring, deceased, against Francis George and Cornelius Stokem, on a promissory note made by Stokem and indorsed by George. Stokem did not defend. A verdict against George was directed, and his exceptions were ordered heard, in the first instance, at general term.

• Petition by George W. McLean, as receiver of taxes, to enforce by fine the payment of a tax for personal property, imposed on the Meyer Sniffen Company, Limited, under Laws 1882, c. 410, § 857. The company appeals from an order adjudging it guilty of misconduct in failing to pay the sum of $125.32, with interest, percentage, and expenses, and imposing on it a fine of that amount.

<p>Appeal from circuit court, Rensselaer county.</p> <p>Action by John A. Foley against the city of Troy for injuries received by a fall occasioned by a defective sidewalk. A verdict and judgment for plaintiff was set aside on appeal by the general term. 45 Hun, 396. A second trial resulted in another verdict for plaintiff, and judgment thereon. Defendant again appeals.</p>

<p>Landlord and Tenant—Action fob Eviction—Damases.</p> <p>A dwelling-house, and lot of land 50x105 feet, had been leased for one year, for laundry purposes, at a rental of $20 per month. In the middle of the second month the landlord erected a new fence around the lot, cutting off 17x105 feet of it, and destroying four of the five clothes-lines of the tenant. At the time of the trial of the action against the landlord for an eviction the tenant had already paid $160 rent under the lease. Meld, that a verdict for $200 damages for the eviction was fairly warranted.</p>

<p>Appeal from city court, general term.</p> <p>Action by Henry 0. Briggs against Jacob Ottmann, for the value of two “flying bridges” sold by defendant to plaintiff, and converted by defendant before their removal. The action was brought in the city court, and a judgment was rendered for defendant at trial term, which was affirmed by the general term. Plaintiff again appeals.</p>

Action by the Farmers’ & Mechanics’ National Bank of Buffalo against Samuel Rogers on a promissory note executed by defendant to plaintiff, for $5,000,.and to foreclose the lien on certain stock deposited with plaintiff as collateral security for the note. An order was entered striking out defendant’s demurrer as frivolous, and defendant appealed. For opinion on demurrer see 1 N. Y. Supp. 757.

Action by the Twenty-Third Street Baptist Church against Jacob B. Cornwall and another, executors of Catharine Weeks, deceased, for a subscription of $5,000, made by defendants’ testatrix, towards a fund of $50,000 for the purpose of building a church. One condition of the subscription was that the subscribers should not be liable unless the sum subscribed amounted to' $50,000. The amount subscribed was about $52,000.

<p>Insurance—Mutual Benefit Societies—Assessments—Tender.</p> <p>Where the constitution of a mutual benefit society provides that the financial reporter of a subordinate lodge shall receive all moneys due the lodge, and give a bond for the discharge of his duties, and authorizes no other person to receive or decline payment of assessments, and a notice of assessment states that assessments must be paid to the financial reporter only, a tender of payment of the assessment to the secretary, an officer not under bond, and his refusal to accept it, on the ground that the member is suspended, are ineffectual to bind the society, though it is customary for the secretary and other officers to receive payment of assessments.</p>

Action by Bernard Dreyfuss against Meyer Foster and others, for refusal to accept goods sold. Defendants appeal from judgment entered on verdict in favor of'plaintiff.

<p>Abatement and Revival—Another Action Pending.</p> <p>An action commenced by service of a complaint on the sole defendant, where" the summons annexed to the complaint improperly contains the name of another joined as defendant, is a bar to a subsequent action for the same cause, the summons in which conforms to the complaint, though by an indorsement on the latter summons the defendant is informed that the former summons was attached to the complaint served with it by a clerical mistake; as such notice does not amount to a discontinuance of the first action, which can be effected only by an order of court.</p>

<p>Appeal from trial term.</p> <p>The plaintiff, Walter F. Kilpatrick, claiming title as general assignee of Peter Haulenbeck, sues the defendants, R. J. Dean & Co., for the conversion of 184 bags of coffee, of the value of $4,000. Haulenbeck acquired title to-the coffee under a delivery order signed by Henry A. Morris, the general owner thereof, in these words: “Nov 16, 1886.</p> <p>“Messrs. B. J. Dean & Co.—Gent. : Please deliver to P. Haulenbeck or order the following lot of coffee, he paying advances thereon:</p> <p>Due.</p> <p>Oct. 14. 25 bags M. & C., 2,906 lbs., Feb’y 17, - - - - $ 550</p> <p>25 “ G C. D., 3,233</p> <p>16.25 “ A. C. H., 3,105 “ 9, - 850</p> <p>43 “ Pm., 7,273</p> <p>19. 31 “ S. R. C., 3,739 Jan’y 22, 600</p> <p>35 “ A. G. H„ 4,557</p> <p>24,813 $2,000</p> <p>“H. A. Morris. ”</p> <p>The sums of $550, $850, and $600 indicate the loans that Messrs. Dean &■ Co. made to Morris on the coffees. The defendants were warehousemen, and Morris had stored the coffees with them, and received the above advances-upon the security thereof. The order to Haulenbeck was intended to transfer the property to Haulenbeck, subject to the advances so made. The advances-were made in this way The defendants issued three negotiable warehouse-receipts, covering the coffee in question. After the warehouse receipts had been thus issued, the defendants, at the request of Morris, negotiated three loans for him on the hypothecation of the coffee,—the one with the American Loan & Trust Company of $550, the other with the National Shoe & Leather Bank of New York for $850, and the third with the said American Loan & Trust Company for $600. The usual course in that behalf was followed, viz.: Moiris made his three notes, by which he promised to pay to the order of the banks the amounts covered by the notes; and as security therefor, and also-as collateral for demands of all kinds by the banks against him, past, present, or future, due or not due, he pledged the coffee in question; that is, he divided up the coffee among the three notes, and he gave power to the banks to sell the coffee on non-payment, and also gave the right to the banks to demand other collaterals in case the coffee depreciated below the estimated value set forth in the notes after service of a demand of one day; and he also gave the right to the banks, (the payees,) in case of sale, to apply the proceeds to the payment of any demands due or not due which the banks had against him, with the right of purchase in the banks, etc. Then, at the request of Morris, the defendants, by indorsement in writing, guarantied payment of each note. Upon the back of each note was an agreement signed by Morris in the following words: “ Authority is hereby given to R. J. Dean & Co. to deliver the within note and the guaranty indorsed thereon, together with the collateral security specified therein, to the payee, (bank,) and to receive the proceeds of the discount of the said note; and for value received the undersigned hereby .agrees that if Messrs. R. J. Dean & Co. pay the within note, or "it is transferred to them by said payee bank, that said R. J. Dean & Co. shall have all the right, title, and interest of the said payee (bank) in and to the collaterals specified and referred to herein, and said R. J. Dean & Co. may hold such col-laterals as security for the payment of any and all demands of said R. J. Dean & Go. against the undersigned, due or not due. H. A. Morris.” The •three notes, representing the loan of $2,000 referred to in the complaint, were thus negotiated by the defendants, and the proceeds paid over to' Morris. The three several notes in question are dated, respectively, October 14, 1886, at four months; October 16,1886, at four months; and October 19,1886, at three months,—so that the first did not mature until the 22d day of January, 1887. Before maturity of the notes Morris disappeared, whereupon the' payees, the banks, called upon the defendants to take up the loans; and thereupon the .defendants undertook to. realize on the coffee, and, after receiving an offer of 13| cents per pound, which they regarded as a fair price, they, on the 14th .day of December, 1886, sold the coffee to Thurber, Whyland & Co. at that price, and realized therefor $3,368.89, which they placed to the credit of Morris. No notice of sale was given to any one. On the following day, December 15th, the defendants paid to the banks the amount of each note, respectively, and tliey became severally transferred to them. It is for the sale of the coffee in this manner, without notice to Morris or Haulenbeck, and before the maturity of the notes or either of them, that the plaintiff predicts his conversion." It is admitted that at the date of the sale neither of the three notes had in fact matured. At the time of the sale of the coffee the defendants, R. J. Dean & Co., claimed to hold, in addition to the three notes in question of $2,000, the following other claims against Morris, to-wit:</p> <p>(1) Note of said Haulenbeck, dated September 16, 1886, four</p> <p>months, payable to the order of Morris, indorsed by Morris, and discounted by R. J. Dean & Co., at the request of</p> <p>Morris, - - - - - - - $ 963 11</p> <p>(2) Note of Henry Butters, dated October 23,1886, two months,</p> <p>payable to the New York Textile Filter Co., indorsed “N.</p> <p>Y. Textile Filter Co., per Morris,” - - 12126</p> <p>(3) Note of Malcolm & Flagler, dated October 23, 1886, three</p> <p>months, payable to N. Y. Textile Filter Co., indorsed</p> <p>“Henry A. Morris,” ----- 100 98</p> <p>(4) Also a bill for storage, and for weighing and commissions</p> <p>incident to the sale of the coffee in question, 35 67"</p> <p>(5) Also a bill for storage on other coffee, - - 313 27</p> <p>$3,554 29</p> <p>These together foot up $3,554.29, or some $185.40 more than the amount realized on the sale of the coffee; and these respective amounts the defendants claimed the right to set off against the amount realized for the coffee, upon the theory that they were demands of theirs against Morris, for which he was liable at the time of the alleged conversion, and they claimed that by the terms oí the notes, and of the agreement of Morris indorsed on the back of each note, they had a right to offset such demands against the sum which came into their hands as the proceeds of the coffee, or against any sum which the jury might .adjudge the value of the coffee tobe, assuming that they should fix an amount greater than the amount so realized. The correctness of some of these items was disputed, and it was denied by the plaintiff that any lien existed in respect to any of them. Upon the trial the court refused to hold, as matter of law, that the first three of these live demands were capable of being set off against the damages of the plaintiff awarded by the jury, upon the ground that the language of the notes and the agreement were not broad enough to entitle the defendants to have them set off; but as defendant Dean swore to the fact that there was a parol independent agreement made with Morris that all •coffee in his warehouse at any time should be held for any charges or demands against him, whether the coffee had been taken out and exchanged for other coffee or otherwise, this question was submitted to the jury as one of fact, but upon that issue the jury found for the plaintiff, and the three off-sets were therefore disallowed. The other two items were disposed of as stated in the opinion. The jury, on the trial before Mr. Justice Browne, awarded the plaintiff the value of the coffee, less the original advances of $2,000 and the interest thereon, with the proper storage charges. The verdict was for -$1,999.45, and from the judgment entered thereon the defendants appeal.</p>

Matthew Marx brought an action in the county court of Queens county-against Elizabeth McCloud, which resulted in a judgment for defendant.. Upon appeal the judgment was reversed by the general term, and a new trial! granted, costs to abide event. A second trial also resulted in a judgment for defendant. Plaintiff moved to tax the costs of the general term against defendant, which was denied; whereupon he appeals.

Action by I-tutsen Hunt against Charles A. Van Deusen, for the balance of the purchase price of a lot of dressed hogs, sold and delivered by plaintiff as first-class, merchantable hogs. Defendant claims a breach of warranty, in that one of the hogs had had only one testicle taken from him in castration, the other not being found, and asks that his damage be set off against plain-1 tiff’s claim. Judgment was rendered for defendant, and plaintiff appeals.

<p>Municipal Corporations—Defective Streets—Icy Sidewalks.</p> <p>In an action against a village for injuries caused by slipping on a sidewalk on which ice was allowed to accumulate by defendant’s negligence, the evidence showed the ice to be two inches deep or more. The time for which it had been there was variously stated at “all winter, ” “two or three weeks, ” and “four or five days. ” The ice was caused by water from melting ice running over the walk, .there being no gutter opened to carry it away. Within four or five days before the accident it had rained and snowed, and it then froze. No ashes or other material had been placed on the ice. Seld not evidence of negligence sufficient to warrant a recovery.1 Ingalls, J., dissenting.</p>

This action was brought by Peter J. Lansing against Samuel Stevens, impleaded, etc., in the city court of Albany, where he obtained judgment, which was affirmed by the county court. Defendant, Stevens, appeals. Oulman v. •Schmidt, 35 Hun, 345, referred to in the opinion, was an action commenced dn a justice’s court of King’s county by the service on the defendant of a summons and sworn complaint.

Mayham, Justice. i Action to recover for goods sold and delivered, brought by Dennis Maher against Mrs. G. W. Willson. Trial to a jury. Verdict and judgment for plaintiff for $839.64. Defendant appeals.

The complaint alleges that defendant is a corporation under the laws of Vermont; that about the 1st day of September, 1887, defendant in this state hired plaintiff to do work in this state; that between September 29 and December 1, 1887, plaintiff did work in this state for defendant under that hiring, for which defendant owes plaintiff $67.90. The answer does not deny the complaint, but avers a partial payment of $32.97, under circumstances hereafter to be stated.

Proceeding by the people at the relation of the Fitchburg Railroad Company against Patrick J. Harén and others, assessors, to reduce a valuation made by them on relator’s railroad. Order reducing the valuation, and the assessors appeal.

Action by Evah Brothers against the California Insurance Company on a ■policy of fire insurance. Verdict and judgment for plaintiff. iSTew trial de¡nied, and defendant appeals.

<p>1. Appeal—Appealable Orders—Setting Aside Answer as Frivolous.</p> <p>An order setting aside an answer as frivolous cannot be reviewed on appeal from the judgment rendered thereon, but a motion must be made below to set aside the judgment, and an appeal taken from the ruling on the motion.</p> <p>■2. Same—Taking Judgment without Notice.</p> <p>Taking judgment against one without notice to him is an irregularity which must be corrected by motion in the court rendering the judgment, and not by appeal.</p>

Action by Adelbert W. Boynton against Jane Laddy, as administratrix of the estate of Alpheus Wilkins, deceased, for services rendered in probating-the will,' etc. Plaintiff was employed by Melville Wilkins, and afterwards, the latter becoming a non-resident, letters of administration were granted to defendant.

Action of trespass guare clausum by Mary E. Freeman against Lemon Thomson. Defendant’s motion for change of venue was denied, and defendant appeals. Code Civil Proc. FT. Y. § 982, enumerates the actions which shall be tried in the county in which the subject of the action is situated, and, among them, waste and nuisance.

Action before a justice of the peace by George H. Hearman against Jacob H. Snyder for legal services. Judgment for plaintiff for the amount of his demand, with certain deductions, less a note against plaintiff, and another, offered by defendant, and for costs. Judgment affirmed by the county court, and defendant appeals.

Judgment was rendered in justice’s court in favor of the plaintiff, and defendant served notice of appeal upon the justice, and paid to him all the costs which he said were due. A motion was made to dismiss the appeal on the .ground that the justice’s fee for making the return was not paid within the •time required bylaw, and from an order denying this motion plaintiff appeals.

In 1871, John S. Perry executed to Joseph A. Shondy a deed by which he-conveyed a lot of land in trust. The trust \yas to receive the rents and profits, and pay the same to Harriet Perry for her natural life. On her death the land was to be sold or partitioned. One-third was to be vested in Annie; E. McCaffrey, a daughter of said Harriet, her heirs and assigns.

<p>Pleading—Bill of Particulars—When Required of Defendant.</p> <p>Under Code Civil Proo. N. T. § 531, providing that the court may, in any case, direct a bill of particulars of the claim of either party to be delivered to the adverse party, it is proper, in an action by a contractor for work of various classes done on a railroad, where the defendant alleges that the work was done in a careless and unworkmanlike manner, to require of defendant a bill of particulars, stating each particular class of work alleged to have been improperly done, and its location.</p>

<p>Appeal from court of sessions, Saratoga county.</p> <p>Bastardy proceedings against Ira H. Allen, who appeals from an order of the court of sessions taxing his costs on his acquittal.</p>

<p>Appeal from judgment on report of referee..</p> <p>Action by Jacob H. Snyder against Thomas O’Connor, to recover for money loaned. Judgment for defendant, and plaintiff appeals.</p>

Action by James A. Goodrich, as assignee of George W. Mayers and Daniel P. McQueen under a voluntary assignment for benefit of creditors, against Seth L. Clute, sheriff of the county of Schenectady, for wrongfully seizing property under attachment. Judgment for plaintiff, and defendant appeals.

Action by Emeline Bowers against William 0. Smith and Charles H. Smith, executors of Edward Smith, deceased, for services to deceased while sick, and for room rent. Judgment for defendants, and plaintiff appeals.

<p>Justices or the Peace—Appeal—1Trial de Novo.</p> <p>Where the answer in an action before a justice alleges a breach of contract by which defendant lost more than $50, but does not demand judgment, or set up a counter-claim, it will be treated as a defense merely, and defendant cannot avail himself of Code Civil Proc. N. Y. § 3068, authorizing a new trial in the county court, “where the amount of the judgment demanded by either party exceeds $50. ”</p>

At chambers. Application by Nelson J. Smith, Alfred Steckler, Louis E. Waehner, John G. H. Meyers, Alexander Thain, Joseph J. Marrin, Leicester Holme, and Peter Mitchell, a special committee appointed by Tammany Hall, lor a mandamus to the inspectors oí the Thirty-Second election district of the Twenty-Second assembly district of New York city, to receive the votes of all registered voters who should be at the polls, and ready to vote, on the coming election day.

Case submitted on agreed statement. Action by Byron J. ¡¿trough, supervisor of the town of Orleans, -against the board of supervisors of the county of Jefferson, to compel the payment into a sinking fund, for the benefit of the town, of taxes collected from the Clayton & Theresa Railroad Company. Code Civil Proc.

Action by Pierce Marx against the Manhattan Railway Company for personal injuries. Plaintiff sued in forma pauperis, and obtained judgment. Motion by plaintiff for an extra allowance.

<p>1. Clerk of Court—Adjournment by—Summary Proceedings—District Court.</p> <p>By the provisions of Code Civil Proc. N. Y. relating to summary proceedings to recover possession of real property, no express power of adjournment is given to clerks of district courts in New York city. Laws 1882, c. 410, § 1358, (consolidation, act,) provides that “if upon the return of the precept” in such proceedings, “or upon an adjourned day, the justice is unable by reason of absence * * * to healthy cause, and it is not adjourned by the clerk in accordance with section 1292, ”’ which is a re-enactment of Laws 1857, c. 344, § 6, (giving the clerk power to adjourm actions in the_ absence of a justice,) a justice of another district may act. Thisi section (1358) is a re-enactment of Code Civil Proc. § 2239, containing similar provisions, except that no reference is made to adjournment by the clerk. Section 2143 of the consolidation act provides that certain sections of the act, including section 1358, shall not be construed as making any new enactment, or as amending any provision of the Code. Meld, that it sufficiently appears that the legislature intended that clerks should have the same power of adjournment in summary proceedings as in other actions.</p> <p>2. Landlord and Tenant—Recovery of Possession—Adjournment before Answer.</p> <p>Code Civil Proc. N. Y. § 2244, provides that at the time when the precept in such summary proceeding is returnable “without waiting, as prescribed in an action * * ":i in a district court of the city of New York, the person to whom it is directed * * * may file with the judge or justice, * * * or with the clerk of the court, a written answer." Section 2248 provides that “at the time when issue is joined” the judge may adjourn the trial. By section 2249, “if sufficient cause is not shown upon the return of the precept, ” the judge “ must make a final order ” for delivery of the property to the petitioner. Meld, that where no judge is present when the precept is returned, the tenant is not required to appear and file an answer, but the cause may be adjourned by the clerk before issue is joined, and the tenant be allowed to file his answer at the adjourned day when the judge is present.</p>

Action to recover the value of goods delivered by a messenger of defendant, the Manhattan District Telegraph Company, contrary to instructions of the sender. Plaintiff appeals.

Action by John. Elsey against the Postal Telegraph Company to recover 'damages for error in the delivery of a telegram. Defendant appeals from a judgment for plaintiff.

Action by Sophia L. Mattern against Bussell Sage for an accounting, upon stock transactions conducted for her as broker, for five years ending April, 1885. The defendant alleged that over $7,000 was due him.

This is a motion by defendants for trial of issues by a jury. The firm of Baxter, Bell & Co. made an assignment for the benefit of creditors to defend.ant Hibbard.

Action by Mary Wells against Francis Alexander and others, of the New York, Havana & Mexican Mail Steam-Ship Line, on a contract to buy coal for-three steamers for one year from January 1. 1888. The second defense was-that defendants sold the steamers June 25,1888, and did not subsequently need the coal, and plaintiff demurred.

Action by William Boeber against George W. Dawson. An execution; against the person was vacated, and plaintiff appeals. Code Civil Proc.

<p>1. Corporations—Liability of Stockholders—Enforcement.</p> <p>Under the business corporations act (Laws N. Y. 1875, o. 611) an action may be-maintained to enforce a stockholder’s liability pending an action against the corporation, and before judgment therein. Following Walton v. Coe, 17 ÍT. E. Rep. 676.</p> <p>2. Same—Discharge of Liability—Payment before Judgment.</p> <p>Payment by the holder of fully paid-up stock of an amount equal to the par value-of such stock, to a creditor of the company, though made before judgment in the action brought, is a good defense to actions subsequently brought against the same stockholder by other creditors of the company.</p> <p>3. Pleading—Demurrer—Effect.</p> <p>Such defense having been set up in an answer, a demurrer thereto admits the payment.</p>

<p>1. Contempt—Appeal—Discharge on Habeas Corpus.</p> <p>One committed for contempt may prosecute an appeal from the order of commitment, though he has been discharged on habeas corpus.</p> <p>■2. Same—Refusal to Deliver Property to Receiver—Disputed Title.</p> <p>An order adjudging defendant in contempt for refusal to deliver certain property to a receiver in supplementary proceedings is void where it is shown that title to the property is in dispute.</p> <p>3. Same—Power to Punish—Amount of Pine.</p> <p>Where there is no proof of loss to creditors, an order committing defendant for refusal to deliver property to the receiver, until he pay a fine of $500, is erroneous, since, under Code Civil Proc. N. Y. § 2284, a court can summarily fine a party for misconduct only to the amount of $250 and costs.</p>

Appéal from trial term. Action by John Canda and others against Loren Zeller, as surviving partner, etc., on two notes and two checks. Verdict and judgment for defendant, new trial denied, and plaintiffs appeal.

Action by Charles Danenbaum against A. Person and others. Verdict and judgment for defendants. New trial denied, and plaintiff appeals.

<p>Assignment—Op Non-Negotiable Note—Indobsement and Deliveby.</p> <p>An allegation in a complaint by the assignee of a non-negotiable note that the payee indorsed and delivered the note to plaintiff, is a sufficient averment of a transfer of title to the note, as a chose in action is transferable by delivery without any formal assignment.</p>

Judicial settlement of the estate of Henry C. Walker, deceased, by Dow, administrator. The widow, and Erank Walker, decedent’s son, objected that the administrator had not charged himself with interest on the funds óf the estate, which had lain in his own private bank more than a year and a half. Administrator ordered to account for the interest, and objectors move that he be charged personally with the costs of the accounting.

On application by John Neder, legatee under the will of Margaretha Dubernell, deceased, for an accounting by Zimmer, the executor of her estate.

<p>Charities—Superstitious Uses.</p> <p>A direction in a will to the executor to expend a certain sum in having masses-read for the repose of the testator’s soul is invalid.1 Following Holland v. Alcock,. (N. Y.) 16 N. E. Rep. 305.</p>

Petition by district attorney of Kings county for citation to Susan M. Kissam, as executrix of the will of Daniel Kissam, to show cause why the collateral inheritance tax should not be paid by the estate in accordance with Laws N. Y. 1885, c. 483. The defense relied upon was the amendment of 1887, exempting legatees who are also adopted children of the decedent.

Motion to confirm report of the appraisers of the estate of David Ryan, deceased. Margaret Donlon, a legatee under the will, contests her liability to pay a tax on the legacy. Laws N. Y. 1885, c. 483, imposes a collateral inheritance tax, and is the statute which is amended by the act of June 25,1887.

An alleged will of Anna Wanninger, produced for probate by Charles W. Wanninger, her son, who was by the will appointed sole executor, is contested by Peter W. Wanninger and Anna Metzger, other children of the deceased. The proponent petitions for the appointment of a temporary administrator.

<p>A. Wills—Construction—Creation oe Trust.</p> <p>A will giving real and personal property to the use of A. for life, with directions .to the executors to use so much of the principal as is necessary to A.’s comfortable support, if the interest should prove insufficient, and a further provision that tes•tator’s daughter should, if in need, share the use of the estate with A., remainder to said daughter and her husband for their respective lives, remainder over to a charitable society in fee, creates no trust in the executors.</p> <p>"2. Same—Tenancy in Common—Husband and Wire.</p> <p>The daughter and her husband would not, because of their being husband and wife, be joint tenants, or tenants by the entirety, but their estate would be a tenancy in common, with cross-remainder, as if unmarried.</p> <p>8. Same—Perpetuities.</p> <p>The cross-remainder, beingin effect a third life-estate, is void, and maybe dropped, and the devise otherwise held valid, under 3 Rev. St. N. T. 2256, §§ 1, 2, prohibiting the suspension of alienation for more than two lives in being, but providing that life-estates intervening between the life-estates of the two first named and the ultimate remainder shall be void, and the remainder be as valid as if limited immediately upon the determination of the two valid particular estates.</p> <p>4. Charities—Statutory Requirements—Amount of Bequest.</p> <p>Under Laws FT. Y. 1860, c. 360, providing that a devise to a charitable or other society shall not be valid as to more than one-half of the testator’s estate, the values-of the estate and of the ultimate remainder-man’s interest under the devise mentioned are found as follows: From the whole cash value of the estate deduct the widow’s dower in the real estate; half the residue is the most that can be held by the society. . From the whole cash value of the estate, less the dower, deduct the-present worth of the life-estates; the sum left is the cash value of the remainder, to which, if not greater than the half of the cash value of the estate already calculated, the society is entitled.</p>

Roll in M. Squire, the relator, was removed from the office of commissioner of public works on the ground of bribery and conspiracy. During the hearings before the mayor and governor the relator was indicted for the same offenses, and acquitted. He applies for certiorari to review the proceedings by which he was removed, contending that he could not be removed except for cause.

■ Habeas corpus. Relator, John H. Post, is held under a commitment made July 21, 1887, for contempt in disobeying a final judgment of the supreme court, and he appeals from an order dismissing the writ and remanding him to the custody of Hugh J. Grant, sheriff of New York county.

<p>Appeal from special term, New York county.</p> <p>Habeas corpus. John H. Post, the relator, is held under a commitment made December 80, 1887, in aid of an order declaring him guilty of contempt in failing to comply with an order giving “further directions” at the foot of a final judgment after appeal to the court of appeals. The contempt arose in the same case as that involved ini People v. Grant, ante, 148. The writ was dismissed, and relator remanded, and he appeals.</p>

Action by Charles Kernitz against Long Island City, to recover for the publication of certain notices. Judgment for defendant, and plaintiff appeals.

Appeal by James Gilleran from a decree of the surrogate of Richmond county, refusing his application for letters of administration on the estate of Gershen P. Jesup, deceased.

<p>Appeal from Queens county court.</p> <p>Action by Charles Lighte and another against Robert Finan for the wrongful taking and detention of personal property. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Rosalie Krone against the Kings County Elevated Railroad Company.</p>

<p>Appeal from Kings county court.</p> <p>Action by Thomas It. Sheffield against Christian Loeffler. There was a judgment for plaintiff, and defendant appeals.</p>

<p>■ Towns—Officers—Injunction—Action by Tax-Payer.</p> <p>In an action by a tax-payer under Laws 1881, c. 531, permitting tax-payers to sue to restrain unlawful official acts, against a town supervisor, to restrain the payment of certain bills presented by the highway commissioners, an injunction will not be granted where plaintiff fails to prove that the bills were not audited by the board of auditors, or that there was no legally constituted board, or that the audit was illegal, or that the bills were unjust, or that the commissioners had failed to make their reports to the board, or that the payment of the bills would injure plaintiS.</p>

Case submitted on agreed statement. Action by Clarence B. Conger against John Treadway, for the possession of a lot of land used by defendant as a burial ground. There was a verdict •for defendant, and plaintiff excepted.

Proceedings to admit to probate the will of Daniel Totten, deceased. Prom an order in favor of the proponents the contestants appeal.

<p>Cemeteries—Sale of Lots—Evidence.</p> <p>Where defendant’s family used a lot for burial purposes, without objection, for over 20 years, gravestones being erected, marked with the initials of the family, the manager of the cemetery association recognizing their right, and a memorandum of the sale of the lot to defendant being shown in the manager’s hand-writing, a sale to defendant of the right to use such lot was sufficiently shown.</p>

Action by Patrick Hanley against Patrick H. Crowe, as surviving member of the firm to which plaintiff loaned the money and notes for which suit is brought. J udgment was rendered for plaintiff, and defendant appeals.

<p>1. Libel and Slander—Excessive Damages.</p> <p>Plaintiff, in an action for libel, was an undertaker, and, being called by a friend of the family of a deceased person, commenced embalming the remains. Before he finished, another undertaker, who had been called by the family, took charge. Plaintiff’s bill was not paid, and the editor of a newspaper published the fact, and offered to pay it himself. Plaintiff answered in a letter, which was published by the editor, stating that those who were legally and morally bound repudiated the bill. The editor subsequently paid the bill, and defendant, in the article in question, condemned the interference of the editor, referring to plaintiff’s claim as unjust, and as one which the family pronounced “blackmailing in color, and in no way meritorious. ” The article also charged plaintiff with intoxication and offensive conduct on the day he had charge of the remains. Plaintiff’s bill was for $500, and the evidence was that $100 was a reasonable price. Held, that a verdict for plaintiff for $5,000 shows prejudice, and is excessive.</p> <p>2. Same—Justification—Several Charges in One Count.</p> <p>The complaint alleged the publication of the defamatory words, by setting out separately the different portions of the article reflecting on plaintiff. Defendant set up justification of each extract, and the verdict for plaintiff was general. Held, that there was but one count, and that the verdict was sustained by a failure to justify any one of the extracts.</p>

<p>1. Assault and Battery—Criminal Prosecution—What Amounts- to an Assault.</p> <p>To seize the reins in front of the hands of the driver of a vehicle, and to direct another to take the horses by the heads and turn them, the latter doing so, is an assault, though there is no intention to wound.</p> <p>2. Same—Intent to Wound—Evidence.</p> <p>An intention to wound not being alleged by the prosecution, disproof of it is inadmissible.</p> <p>3. Same—Evidence—Remarks of Assailant.</p> <p>The person assaulted may be asked what he understood by the assailant’s remark in the course of the assault, that “the easiest way is the best, ” and may testify that he thought they meant to handle him roughly.</p> <p>4. Same—What Pacts are Relevant.</p> <p>In a prosecution for an assault, in attempting to exclude a tradesman from a village built on privkte grounds, defendant having given evidence that in connection with the land-owner’s request that such tradesman should be excluded, statements were made showing that it was reasonable that another person named should take his place, the admission of evidence that the latter was a town assessor is not so irrelevant as to require a reversal.</p> <p>5. Same—Sufficiency of Warrant—Review—Objections not Raised Below.</p> <p>The objection that the affidavit on which a warrant was issued does not state facts sufficient to constitute the offense charged, is not re viewable where the record does not show that the objection was made before the magistrate.</p> <p>6. Highways—Dedication—Road to Village.</p> <p>One who builds a village upon his land, reserving the title to the thoroughfares over which the public officers exercise no authority, cannot prevent tradesmen from entering it for the purpose of delivering their wares, in order to compel the inhabitants to deal with those nominated by him.</p> <p>7. Criminal Law—Conduct of Trial—Right of Magistrate to Enter Jury-Room.</p> <p>Though.it is technical error for the magistrate to enter the jury-room during the deliberations of the jury, yet it is not ground of reversal where the jury asked for the form of the verdict in case of an agreement, and he answered “Guilty or not guilty,” and withdrew, and nothing else occurred, Code Grim. Proc. N". Y. § 764, requiring judgment to be given without regard to technical errors not prejudicial to defendant’s substantial rights.</p>

Action by Amasa R. Moore against John M. Francis and others, for libel published in the Troy Times. Verdict and judgment for defendants. Hew trial denied, and plaintiff appeals.

Action by Samuel B. Janes against the Fitchburg Railroad Company upon certain coupons for interest on bonds executed by the Troy & Boston Railroad Company, which had been consolidated with the Fitchburg Railroad Company under the name of the latter. Judgment for plaintiff, and defendant appeals.

<p>Appeal from circuit court, Albany county.</p> <p>Action by Adolphe Clement against the Bankin Knitting Company, to recover damages for negligence causing death. Judgment of nonsuit, with costs against plaintiff, and he appeals. »</p>

Action by Henry Allen and others against the German-American Insurance Company, on a policy of insurance. Judgment was rendered for defendant, and plaintiff Allen appeals.

Action by John Post against the West Shore Railroad Company, the New York Central & Hudson River Railroad Company, and the New York, West ■Shore & Buffalo Railway Company, to enforce specific performance of covenants in a conveyance of a right of way by plaintiff to the last-named defendant, against which alone the action was originally brought.

Motion to modify an injunction enjoining defendant from diverting the waters of Crownen brook from their natural course and channel through the premises of the plaintiff, John D. Crownen.

Action by Benjamin C. Wetmore, executor of the will of Mary Hopeton Drake, deceased, against the New York Institution for the Blind and others, legatees under said will, to have a construction of certain clauses thereof.

Action for partition, brought by Rosetta M. Kearney against Charles E. Fleming and Charles Jones. In February, 1884, it was agreed between Jones- and James Kearney, who was acting as his attorney, that the property in question, which was incumbered with taxes, assessments, and sales, and could be bought for a small sum, should be purchased, Jones furnishing the money and Kearney his services in removing the liens and assessments, and each to have a one-half interest.

<p>At chambers, on motion to confirm referee’s report.</p> <p>Action by Susan Mount against Charlotte A. Mount and others, for partition of land, The case was referred to George Putnam Smith, as referee, to ascertain the rights or. the parties, and his report is as follows:</p> <p>“Richard E. Mount, Jr., died in the city of New York, March 31,1880, seized and possessed of certain real property and of certain undivided shares in other real property, which are involved in the present action. He left a last will and testament, wherein, after making specific bequests, he directed as follows:</p> <p>‘ All the rest, residue, and remainder of my estate, both real and personal, I give, devise, and bequeath to my brother, Henry, and my sisters, Maria, Charlotte, and Susan, in equal shares, and to their respective heirs and assigns, forever.’ Henry R. Mount, the brother named in this will, 'departed this life prior to the death of Richard E. Mount, the testator, and the important question in this cause is as to the legal effect of the death of Henry R. Mount upon the rights and interests of the parties to this action in the property belonging to RichardE. Mount, Jr., which forms the subject of this action. Henry R. Mount left him surviving no child or issue of a deceased child. It is claimed on the part of the plaintiff and certain of the defendants that the devise in question consequently lapsed. On the other hand, it is contended by certain other defendants that, owing to the wording of the residuary clause in Richard E. Mount, Jr’s., will, and in accordance with the intent of the testator, as expressed in the whole will, this devise did not lapse, but went to the heirs of said Henry R. Mount. I do not assent to this contention. 0</p> <p>“The case of Van Beuren v. Dash, 30 N. Y. 393, seems directly in point. It was there held that the devise to descendants has'always been construed as meaning nothing more than issue or lineal descendants, and that there is no use of the word in the Revised Statutes that will admit of any other construction. The court (Ingraham, J.)says: ‘It is also urged on the part of the appellants that, the devise being to the devisees and their heirs, the title-Should pass, notwithstanding the death of the devisee. Such a form of devise</p> <p>was necessary before the Revised Statutes to express the intent to give a fee, and the same form is used now in many instances to avoid doubt as to the intent of the testator. The mere fact that other words may be used to show such an intent is no reason why any other interpretation should be given in the use of such words now from what they received formerly. The law as it</p> <p>• existed previously did not pass any estate to the heirs of the devisee where he died before the testator, and the use of the same words should not have any effect, although they maybe unnecessary to pass a fee to the devisee if he had lived.’ The same doctrine is enunciated in Thurber v. Chambers, 66 N. Y. 42; Gill v. Brouwer, 37 N. Y. 549, and I am of opinion that by the death of Henry R. Mount in the life-time of the testator the share devised to him lapsed.</p> <p>“It is claimed on the part of the remaining residuary devisees of Richard E. Mount, Jr., that the residuary estate to which they are entitled is increased by the amount of the lapsed devise to Henry R. Mount. It is settled by abun- • dant authority that where property is left by will to a class, in case of the incapacity to take of any member of that class the remaining members shall have the whole estate. It is also settled that where a devise is made to two or more persons, as tenants in common, the share of any one happening to die before the -testator lapses for the benefit of the testator’s next of kin as a portion of the estate found under the circumstances not to have been disposed of by will; and, further, that where a devise is made to devisees by name, or where their shares</p> <p>• or interests are defined by the will, the presumption is that the devise is to them as tenants in common, and not to them as a class. Kerr v. Dougherty, 79 N. Y. 327-349; Hart v. Marks, 4 Bradf. Sur. 161; Downing v. Marshall, .23 N. Y. 366, 373. ‘ Such language is always held to constitute the beneficiaries tenants in common, and to show that they take distributively, unless there is something in other provisions of the will to show that the testator intended that they should take as a class.’ Delafield v. Shipman, 103 N. Y. 468, 9 N. E. Rep. 184.</p> <p>“It is claimed on behalf of Charlotte A. Mount, committee of MariaB. Mount, one of the residuary legatees, that the intent of the testator, as dis- • closed by the will in question, was that, in case of the decease of any of the residuary legatees before the will took effect, the share or interest so devised . should pass to the remaining residuary legatees. A careful examination of the authorities cited in the able and elaborate brief of the counsel for the • committee has failed to convince me that this is the case. These authorities decide that in case of the death of a specific legatee before the will takes • effect the legacy becomes part of the residuary estate; but the question we have to consider is as to the effect of the death of one of the residuary legatees upon the share or interests of the remaining legatees; and although, as • decided in Hoppock v. Tucker, 59 N. Y. 202, ‘ an intent inferable from the language of a particular clause of the will may be qualified or changed by - other portions of the will evincing a different intent,’ so that in that case the devise of a portion of the residuary estate ‘ in equal proportions, share and share alike ’ to the children of a deceased daughter, and who were named in the will, was construed as a bequest to these children as a class; yet this must be considered an extreme case, and I do not think that the scope of the will • of Richard E. Mount, Jr., will permit of an interpretation which will confine the benefit of the lapsed share of Henry R. Mount to the co-residuary legatees named in the will. Upon the whole, I am of opinion that by reason of the • death of Henry R. Mount during the life-time of his brother the share in the • estate devised to him lapsed, and is to be distributed under the statute to the heirs at law of the testator.”</p>

Freeman J Fithian died leaving a will by which he named Lemuel B, Clark executor, and his wife, the present petitioner, executrix. The latter renounced her right to administer, and letters were issued to Clark alone. Clark died without a settlement of his accounts, and by his will made his wife his executrix. Mrs. Fithian afterwards retracted her renunciation, qualified as executrix of her husband’s will, and cited Mrs. Clark to settle her husband’s ex-ecutorial accounts.

<p>On petition for revocation of the probate of the will of Christopher Tacke, deceased.</p>

<p>Alteration of Instruments—When Made—Presumption.</p> <p>An alteration in a voucher will not be considered to have been made after filing, unless the evidence establishes such to be the fact.</p>

<p>Settlement of the accounts of the executors of John F. Delaplaine. On exceptions to referee’s report.</p>

Petition by C. J. Phalen to revoke the probate of the will of James Phalen,. deceased. The executor, Edgar Lockwood, moved to dismiss the petition for want of parties, which was granted, and the plaintiff moved to amend the petition by bringing the omitted party.

On accounting by William P. O’Connor, executor of John McEvoy, deceased. The will bequeathed to the executors $500, to be expended in having masses said for the repose of testator’s soul. Mary Ann Murphy was residuary legatee. The other executor named in the will did not act.

<p>Appeal from special term.</p> <p>Action by Benjamin F. Watson against David C. Cooley and James H. Holdane, to recover for professional services. Defendants appeal from an order of reference.</p>

Action by Oliver V. Penny against^Frederick J. Kaldenberg, for services rendered under special contract. Defendant appeals from a judgment entered on the verdict of a jury and from an order denying a motion for a new trial.0

<p>1. Sale—Action foe Price—Fraud—Province of Jury.</p> <p>In an action for goods sold, where defendant alleges that the goods were bought on a credit not yet expired, which plaintiffs admit, but give evidence to show that at the time of the sale defendant was insolvent, and had no intention of paying for the goods, thus avoiding the credit, it is error to dismiss the complaint; the question of defendant’s insolvency and fraud being for the jury.</p> <p>2. Same—Pleading and Proof.</p> <p>The fraud relied on to avoid the credit, and resolve the sale into one for cash, may be proved without averring it in the complaint; no arrest being asked for.</p>

Action by the F. A. Kennedy Company, a foreign corporation, against Bernard J. McCormack. Motion to vacate order requiring plaintiff to file security for costs.

<p>On motion for new trial.</p> <p>Action by Maggie Fitzgerald against the Equitable Reserve Fund Life Association on a certificate of membership in said association for her benefit.. . Verdict for plaintiff.</p>

Appeal fronj'circuit court, New York county. Two actions by Edward Rosen wald, Isaac Rosen wald, Henry Rosen wald, and Sigmund Rosenwald against the Phenix Insurance Company on two Are insurance policios. The causes were consolidated, and tried by the court in lieu of a jury, judgment for plaintiffs, and defendant appeals.

<p>Appeal from circuit court, Kings county.</p> <p>Action on contract brought by Charles B. Young against Frederick Grill. Plaintiff appeals from a judgment entered on a verdict for $9.60 in his favor.</p>

<p>Horse and Street Railroads—Negligence—Defective Appliances—Evidence.</p> <p>In an action against a street railroad company for injuries received in alighting-from a car, a verdict for plaintiff cannot be sustained where the only ground alleged in support of it is that there is evidence of a defect in the car step, and plaintiff testifies that he looked at the step, and saw nothing wrong, and numerous witnesses agree that it was not defective.1</p>

Reference under the statute of a disputed claim by Sidney R. Havens against Adeline P. Havens and Lewis Bowden, executors of Nicoll Havens, deceased. It -was proved before the referee that plaintiff, who was testator’s son, had been to California, and returned in 1868, bringing with him his wife and children, with whom he lived in testator’s house until the latter’s death.

Action by the board of supervisors of Suffolk county against the city of Kingston to recover for the expense of maintaining an insane criminal, a resident of the city, in the insane asylum for criminals at Auburn. Judgment on demurrer to complaint for plaintiff, and defendant appeals.

<p>Boundaries—Natural Monuments—Control of Course and Distance.</p> <p>A natural monument, such as a ditch, will control both courses and distances when there is no question of its actual .location.1</p>

<p>Appeal from special term, Queens county.</p>

<p>Appeal from Kings county court.</p> <p>Action by James White against Andrew Mowbray for deceit in the sale of a horse. Judgment for plaintiff, and defendant appeals.</p>

Action by Sarah A. Charlock against Edward Freel to recover damages for personal injuries. Defendant appeals from a judgment on a verdict for plaintiff, and from an order overruling a motion for a new trial.

<p>1. Master and Servant—Negligence of Master—Defective Machinery.</p> <p>The drum of defendants’ elevator was of sufficient capacity to hold the chain if wound tightly, but as it did not wind tightly it filled the drum, and slipped off on one side, tipping the elevator, and causing plaintiff, an employe of defendants, who was riding on it, to fall down the elevator hole. The defect was well known to defendants. The engineer had frequently driven the chains straight with a hammer when they wound wrong. Held, that the elevator was unsafe, and defendants were liable for the injury to plaintiff resulting from its use.1 Following Stringham v. Stewart, 3 N. E. Rep. 576.</p> <p>2. Same—Contributory Negligence—Question for Jury.</p> <p>The elevator was a freight elevator, and though there was a notice that it was not to be used defendants’ servants used it continually and openly, and there was evidence that plaintiff was the proper person to go up with it. He knew nothing of the danger from the uneven winding of the chain, and was told by defendants’ engineer to use it as it was. Meld, that the question of contributory negligence was properly submitted to the jury.</p> <p>3. Same—Evidence.</p> <p>Evidence that the elevator was not safe for the carriage of passengers, and had no appliances to avoid accident, was properly admitted. Following Stringham v. Stewart, 3 N. E. Rep. 570.</p>

Action by Adolph Simis, Jr., against Dwight M. Hodge and others, for the wrongful levy of an attachment on goods mortgaged to plaintiff and the sale of the goods under the attachment. Defendants appeal from a judgment bn a verdict for plaintiff, and from an order overruling a motion for a new trial.

<p>•Carriers or Passengers—Injury to Persons in Street Car—Proof of Negligence;,</p> <p>Evidence that defendant’s street car was being ¿driven very rapidly, and ran into the end of a van, the horses drawing which had crossed the track, the accident happening at midday, and when there was no obstruction in the street, and that plaintiff, a passenger, was free from negligence, will sustain a verdict in his favor, for injuries received by the collision.1</p>

Action by Michael Fitzgerald, administrator of Edward M. Fitzgerald,, against the Long Island Bailroad Company, for the alleged negligent killing of plaintiff’s intestate. The complaint was dismissed, and plaintiff appealed to the supreme court, when the judgment was reversed, and new trial granted. Verdict and judgment for plaintiff, and defendant appeals. For former appeal, see 45 Hun, 591, mem.

<p>Municipal Corporations—Change in Grade op Streets—Abutting Owners.</p> <p>Under Laws N. Y. 1883, c. 113, making villages liable to abutting owners for damages occasioned by a change in the grade of streets, a village is liable to an abutting owner, where the change is made with its permission by a railroad company.</p>

<p>1. Criminal Law—Evidence—Declaration of Co-Conspirator—Proof of Conspiracy.</p> <p>Appellant and his co-defendant, who had pleaded guilty, testified that the former did not participate in the murder, no motive was shown, and respectable witnesses testified to appellant’s good character. Appellant and defendant had separated on the evening of the murder at about 10 o’clock. Two men were seen at different times and places during the night, by witnesses, three of whom heard them speaking in a foreign language; one of the three recognized appellant, but said that the •other man was a stranger. When this witness saw them appellant wore a light-•colored bat, as did also one of the men seen by another witness, while both the ;men seen by a third witness wore black hats. Appellant testified that, on leaving ibis co-defendant, he went to the house of the deceased, but, the latter being absent, "he did not remain; that on the way home he went to sleep beside a wire fence, over which he could not get;-and in the morning one of his countrymen, who was a stranger, accosted him, ana they talked while walking together. His employer testified that appellant returned home about 5 o’clock in the morning, and the co-defendant came and inquired for him at about 9 o’clock. Both defendants testified that appellant knew nothing about a watch which the co-defendant hid in a hay-mow until the latter told him about it afterwards. Held, that the evidence showed no conspiracy between the defendants, and the admission of acts and declarations of his co-defendant, not participated in by appellant, was error.1</p> <p>8. Homicide—Evidence—Motive.</p> <p>Appellant and deceased had been friends. The former had hoarded with deceased and was in the habit of visiting his house, and occasionally spending the night there. On one occasion appellant became noisy, and deceased told him to be still, or he would put him out of the house. Appellant raised a chair, and deceased got a stick, but no blows were exchanged. On the day of the homicide appellant refused to drink with deceased, assigning no reason, and deceased afterwards said to him: 11 Go hack to M.; you didn’t get beer enough yet. ” Deceased’s wife testified that her husband and appellant, on that day, talked, eat, and went out together, in a very friendly manner. Held, that no motive was shown for appellant’s participation in the murder.</p>

Action by Samuel N. Bacon against the United States Mutual Accident Association of the city of New York, to recover on a policy of insurance issued on the life of Frederick J. Oaks. On a former trial plaintiff was non-suited, and the supreme court, on appeal, held that the evidence required a. submission to the jury. 44 Hun, 599. The main contention on the new trial was whether the insured died from the effects of a facial carbuncle or of a malignant pustule.

This was an action by Peter J, Dorchester against Edward C. Dorchester .and Rose to set aside a bill of sale or assignment to defendant Dorchester of .all the interest of plaintiff in the partnership with defendant Rose in the business of hardware merchants. A judgment was entered on the report of a .referee setting aside the assignment, and defendants appeal.

<p>At chambers. Motion for injunction in the action of William Kramer against Gustave Amberg and others.</p>

<p>Pleading—Verification—Sufficiency.</p> <p>Under Laws N. Y. 1869, c. 133, the verification of a petition is insufficient, which does not certify to the genuineness of the signature of the officer taking the affidavit, or state that such officer was authorized to administer the oath, or give the name, age, etc., of the deponent.</p>

Action by Edward L. Frost, receiver of the assets of John Young, a judgment debtor, against Owen McGinnis, for work done in the erection of a building. Judgment for plaintiff, and defendant appeals.

<p>Bonds—Actions—Evidence—Insurance Agents.</p> <p>In a bond given for the faithful performance of his duty by the agent of an insurance company, it was stipulated that certain books should be conclusive as to his receipt of premiums from policy-holders. Held, that an action against the surety was properly dismissed where such books were not introduced in evidence, and the only other evidence as to the default of the agent were his accounts, and certain receipts given and statements made by him; the agent testifying that he had paid over every cent collected.</p>

<p>1. Assignment for Benefit of Creditors—Validity—Residence of Debtor.</p> <p>Under Laws N. V. 1888, c. 394, requiring an assignment for the benefit of creditors to state the place of residence of the debtor, the business in which he is engaged, with the place at which it is carried on, giving the street and number, if in a city, and, if not, some sufficient designation to identify the debtor, an assignment omitting to state such residence and place and kind of business is void.</p> <p>Z. Same—Partnership.</p> <p>Such provision applies as well to assignments by copartnerships as by individual debtors, as, by the general assignment act of 1877. of which said chapter is an amendment, it is provided that when words are used in the act in the singular number several persons shall be deemed included thereby, unless otherwise stated, or repugnant to other provisions therein.</p> <p>:8. Statutes—Validity—Commencement of Operation—Sunday.</p> <p>Said act of 1888 is valid, though the day designated therein for the beginning of its operation is Sunday.</p>

On motion to set aside judgment. Action in the district court by Thomas Tracy against Thomas Shannon. Judgment by default for plaintiff, which was docketed in the county clerk’s •office, and which defendant moves to set aside, on the ground that he had never been served with summons. Code Civil Proc.

Action by Peter Miller and Barbara Miller to recover damages to real property. Upon the trial it appeared that the defendant was a corporation duly-created under and by virtue of the laws of the state of New York for the purpose of Constructing and operating a railway from the city of Binghamton,. N. Y., to the international bridge in the county of Brie, N. Y. The defendant’s premises adjoin those of plaintiffs on the easterly and northerly sides-thereof.

<p>Appeal from municipal court.</p> <p>Motion by plaintiff to dismiss the appeal.</p>

On exceptions from jury term. Ejectment by Ann Maria Palmer against Gustav H. Saft. The court directed a verdict for plaintiff, and ordered defendant’s exceptions to be heard, in the first instance at general term.

Appeals from trial term. These are actions of ejectment brought by Adam Lamb against Michael - Connolly and William Lancy, respectively.

Action by Jesse Jones against the Brooklyn, Bath & West End Railroad Company to recover damages for personal injuries sustained through the alleged negligence of defendant. On the trial, the physician who attended plaintiff and amputated his leg, was asked what was the condition of plaintiff’s leg at that time.

<p>Negotiable Instruments—Actions—Transfer—-Indorsement—Stipulation.</p> <p>In an action by the purchaser of a negotiable note, in which the answer denies only the consideration of the note, and avers that plaintiff purchased after maturity, and the parties stipulate that all the allegations of the complaint were admitted except as to the consideration of the note, and the evidence shows that, while no written indorsement of the note was made, plaintiff purchased and paid for it, and had it in his possession, it is error to dismiss the complaint on the grounds that the want of a written indorsement made the paper non-negotiable, and that plaintiff’s title thereto was not shown.</p>

<p>Judgment—Default—“ Copt ” Summons—Amendment—Notice.</p> <p>Where the “copy” summons served on defendant requires him to answer within twenty days, and he has no notice of any amendment shortening the time, a judgment by default at the end of six days will be set aside, and defendant allowed to appear, though the original summons contains the word “six, ” instead of “twenty. ”</p>

<p>Action by Ann Cassidy against Francis Boyland. Motion by defendant to set aside a judgment by default.</p>

<p>1. Wills—Capacity to Make—Evidence.</p> <p>Testator died at the age of 90 years, having made a will and four codicils, at times from five years to within six months of his death. Three of the instruments were very long; owing, mainly, to repetition of formal words. Testator had no family, and his numerous relatives, some clergymen, personal friends, and charitable institutions were the beneficiaries. The general scheme of disposition remained the same, though some radical changes were made by the codicils. About the times the instruments were executed testator had severe attacks of vertigo, at times producing unconsciousness, and he was shown to have forgotten streets, lost his way in localities well known, and failed to recognize faces he knew. Usually, when told of such places and persons, his conduct and remarks were rational. Those best acquainted with his daily life and business testified to his accuracy and intelligence in financial affairs, and to his industry and energy in business matters. Many who met him often stated that he never failed to recognize them, and was always rational. The provisions of the codicils weU accorded with his expressed intentions. The evidence of subscribing witnesses, and the weight of expert testimony, favored testamentary capacity. Held, that testator had testamentary capacity, and understood the effect of the will and codicils.1</p> <p>■3. Same—Undue Influence—Bequest to Attorney—Burden of Proof.</p> <p>The third codicil, which radically changed the residuary provisions, making the draughtsman, who was testator’s attorney and trusted friend, a residuary legatee, in view of the relations of the parties, and testator’s age, the burden is upon the draughtsman to show the absence of undue influence, and that testator understood the changes made by the codicil.2</p> <p>-8. Same—Presumption of Undue Influence—Evidence to Rebut.</p> <p>In the absence of proof of undue influence, it appearing that testator had already, by a former codicil, with which the draughtsman had nothing to do, made one radical change in the residuary devise; that he had for some time expressed love and respect for the draughtsman, who had devoted much time professionally to testator’s business, for which it might be supposed testator intended to reward him by the bequest, as he did other lawyers for similar services; that he was dissatisfied with certain existing provisions for relatives; that many remote relatives were named and provided for in the will whose names were likely unknown to the draughtsman, and their legacies increased without their being represented when the codicil was drawn; that its preparation was assisted in by a trusted relative of testator, who received less by the changes, and had no reason to favor the draughtsman, with whom he was unacquainted; and that the draughtsman’s legacy was about 6 per cent, of the entire estate,—the presumption of undue influence by the draughtsman is rebutted, and testator’s understanding of the codicil established.</p> <p>-4. Same—Revocation of Probate—Estoppel—Accepting Legacy.</p> <p>The acceptance and retention of a legacy under said codicil estops the legatee from procuring a revocation of its probate on the ground of such undue influence and want of testamentary capacity.</p> <p>5. Same—Offer to Refund—Tender in Court.</p> <p>A tender of the amount of such legacy in court, after filing a petition for revocation, does not remove the estoppel.</p> <p>6. Same—Additional Petitioner—Lapse of Statutory Period.</p> <p>A legatee who is not so estopped cannot be made a petitioner after the expiration of the statutory time within which such a petition may be filed, some of the interested persons being infants, and others unrepresented, so as to give him the same rights as if he had originally been a party.</p>

The petition for probate was filed by Peter Comerford, who was named an executor jointly with Michael L. Doyle, and probate' was contested by Thomas F. Hall, her son, who appeals from said decree.

<p>Emma Foley brought action against Alfred G-. Stone for an assault, and procured his arrest upon giving an undertaking in the usual form, with Charles E. Bergeman and William H. Ottman as sureties. The order of arrest was afterwards vacated, and the summons set aside, and Stone, in an action for false arrest, recovered judgment against Miss Foley and her sureties for $565.04. The sureties being insolvent, he now moves in the original action for an order punishing the plaintiff, her attorney, W. Duryee Hughes, and the sureties for contempt in procuring the order of arrest upon the giving of an undertaking with worthless sureties.</p>

<p>Appeal from circuit court, Kings county.</p>

Action by John R. Hinz, administrator of Oscar C. Hinz, against John II. Starin, brought pursuant to Code Civil Proc. § 1902, to recover damages for the death of plaintiff’s intestate while bathing at Glen Island, caused by defendant’s negligence. The action was first tried before Justice Dykman and a jury, which resulted in a verdict for plaintiff for $4,000.

This was an action brought by Richard W. Beyrich against Nathan Ballin •and Theodore A. Liebler, Jr., to recover damages for breach of a contract to deliver shares of corporate stock. Ballin died pending the action.

Action by Jacob Cortwright to recover a balance due under a contract for excavating and grading Franklin avenue, in the village of Mount Vernon. Plaintiff recovered a verdict, upon which judgment was entered, from which .and from an order denying a motion for a new trial defendant appeals.

-Appeal from special term, Kings county. This is an appeal from an order taxing costs in the action. At the first “trial judgment was awarded to the plaintiffs, with costs, which was affirmed by the general term, with costs. Defendants appealed to the court of appeals, where the judgment was reversed, and a new trial ordered, “with costs to abide the event. ” 12 H. B.Itep. 571. On the second trial judgment was rendered for defendants, with costs.

William Evans brought this action in 1874 against the United States Life-Insurance Company of New York city, to recover upon a policy of insurance-issued on the life of one Starr. Plaintiff had judgment, which was reversed-in the court of appeals, and in February, 1876, in pursuance of the stipulation on appeal, judgment absolute was entered in favor of defendant, and* against plaintiff for costs.

Summary proceeding, brought by John C. Provost, as landlord, against • Thomas F. Donohue, as tenant, to recover possession of real property in Long Island City for non-payment of rent. The answer to the petition “(1) denies ■ each and every allegation therein contained.

Action by Frederick H. Smith, Jr., to foreclose a mortgage given by the •defendant the Isle of Wight Company, of which the defendants Rufus W. Leavitt, Sidney De ICay, Van Dewater Smith, and Philip Kobbe were guarantors.

In 1877, Joseph Otto Yon Prochazka was married to Minna Yon Prochazka, and in 1881 she obtained a divorce from him by default. In 1885 he married, the defendant in this action, Linna Yon Prochazka, and in 1887 she instituted an action against him for divorce, in which issue was joined, February 16, 1888.

<p>Appeal from circuit court, Westchester county.</p> <p>Application by Isaac B. Lefurgy for a mandamus to compel the New York As Northern Railroad Company to restore the waters of the Sawmill river to their ancient channel at, through, and along relator’s farm in the town of Greepburgh. An alternative writ was issued January 25, 1888, to which defendant made return setting up the general issue, and alleging, among other things,' that the acts complained of were not done by defendant, but by an■other corporation, and that the cause was barred by the statute of limitations. It was shown by the evidence that the ancient bed of the river ran along the .eastern boundary of relator’s farm, there making a curve or bend towards the west; that for ten years prior to 1880 a railroad had crossed this bend in the river by two bridges within a short distance of each other, on relator’s land, leaving the water free to flow in its ancient bed; that in 1880 the New York Gity & Northern Railroad .Company dug a ditch along the east side of its track .on the land of one Odell, so that the waters of the river flowed through it on "that side of the track,—the ancient channel under the bridges being left open, -and the water flowing there when the river was at high water. The defendant corporation, the successor of the New York City & Northern Railroad 'Company, was organized October 10, 1887, by persons who had bought the road under a foreclosure sale. The jury rendered a verdict for the relator, by ■direction of the court, upon which a judgment was entered directing the issuance of a peremptory writ of mandamus. From this judgment defendant -appeals.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by the Nason Manufacturing Company against Benjamin F. Stephens on a contract by plaintiff to build an extension to the stand-pipe or water-tower of the Coney Island Water-Works. The contract provided that the water-level during the progress of the work should be maintained by defendant at any height plaintiff might desire for the convenience of the workmen. There was evidence that it was designed to work from a raft floating on the water in the old tower, and that by reason of the failure of defendant to maintain the water at the required level, scaffolding became necessary. For the •expense of this scaffolding plaintiff sought to recover. Judgment for plaintiff, and defendant appeals.</p>

Defendant, Jefferson Patten, was adjudged guilty of a contempt in the proceeding entitled “The People ex rel. James W. Slaght against Jefferson Patten.” On appeal to the general term the order was “reversed, with costs and disbursements.” The clerk thereupon taxed costs in favor of defendant and, against relator at $176.52. Kelator then moved for retaxation. His motion, was denied, and he appeals.

Appeals from circuit court, Richmond county. Action by Constantine W. Benson against Clara McHamee, under Code Civil Proc. § 1638 et seq., to bar her claim of title to certain land. Verdict and judgment for defendant. Plaintiff appeals from the judgment and from orders denying a new trial, and respecting costs and allowances.

<p>Ejectment—Title to Support—Equitable Interest—Purchase under Execution.</p> <p>A levy on and sale of the interest of one holding land under a contract of purchase, or as cestui que trust, the legal title being vested in another for his benefit, passes no title upon which ejectment can be maintained.</p>

<p>1. Executors and Administrators—Liabilities—Acts op Co-Executor.</p> <p>A petition for the settlement of the executorial accounts cannot be maintained by a legatee against the surviving executrix, who never received any of the assets, the same being exclusively controlled by her co-executor, and who has been guilty of no negligence or bad faith.</p> <p>2. Same—Settlement—Consent Order—Failure to Enter.</p> <p>It is a good defense to such a petition that the petitioner and the deceased executor accounted before the surrogate, the executrix joining therein, and that a full settlement was then made, while said executor was solvent, which settlement had been for many years acquiesced in, and that, by a stipulation in writing then made between the accounting parties, an order was to be entered approving the account, though such an order was never entered.</p>

Jane Colgan, administratrix of the estate of Anthony Davin, .deceased, brought this action against Patrick Dunne and others, legatees under the will of Michael Dunne, deceased, to recover the amount of a deficiency judgment rendered upon the foreclosure of a mortgage executed by said Michael Dunne. The bond and mortgage were dated August 17,1865, and due three years from date.

Action by E. M. Collyer against G. B. Collyer for slander. Plaintiff had judgment, and defendant appeals.

These actions are by Thomas Kain and William Kain, respectively, against the New York & New England Railroad Company, for personal injuries sustained while attempting to cross defendant’s track. Judgments were entered for plaintiffs, and defendant appeals.

Supplementary proceedings by James Clark, a judgment creditor of William L. Gallagher, and Frank Gallagher, to subject a debt owed by John Callahan to William L. Gallagher to the payment of said judgment. Callahan admitted that he owed Gallagher $175 for the erection of a house, which was nearly completed. His answer was taken July 25, 1888. On the next day an order was made, and served on the day following, requiring Callahan to pay the amount to the sheriff.

<p>Appeal from special term, Orange county.</p> <p>Appeal by Herman Cohen from a j udgment sustaining an assignment made by Asa Moorhouse for the benefit of creditors.</p>

Bell, commissioner of police and excise of the city of Brooklyn, dismissing the relator, Adolph Wasserman, from the police force. Rule 11 of the police department provides that “conduct unbecoming an officer” shall be a cause for dismissal.

<p>Libel and Slander—Pleading—Joinder op Dependants—Publication.</p> <p>A complaint alleging the composition of a libelous article by one defendant, and its publication in a newspaper by the other, is sufficient to charge both as publishers of the article.</p>

A paper purporting to be the will of Bridget Harold was presented to the surrogate of Queens county for probate. It was objected to for undue influence of the beneficiaries. Probate was refused, and proponent appeals.

Action by Cleanthus S. Wilcox, as administratrix of Ruama Wilcox, deceased, against Susan M. Corwin and Gilbert L. Noble, executors of James. Corwin, deceased, and Melvin J. Wheeler, on a promissory note. Verdict and judgment for plaintiff, motion for new trial denied, and the executors appeal.

Action by Patrick I. Boylan against Francis S. Hodgkinson, under-sheriff of Kings county, and Henry S. Hollingsworth, his surety, for failure to pay over money collected by virtue of his office. A demurrer to the complaint was sustained, and plaintiff appeals.

<p>Appeal from special term, Richmond county.</p> <p>Complaint by Nathan Barrett Mundy against John T. Barrett and Clarence T. Barrett, executors and trustees under the will of Sarah Barrett, deceased, to require an account by defendants of their trust, and to remove them for mismanagement. Judgment for defendants dismissing the complaint, and plaintiff appeals.</p>

<p>Appeal from surrogate’s court, Rockland county.</p>

Defendant, George W. Mead, appeals from an order refusing to vacate and set aside an order for his examination in supplementary proceedings, obtained by Samuel T. Sudlow and others, judgment creditors.

<p>Appeal from special term, Kings county.</p> <p>On motion by Mary G. Rogers, one of the defendants in Taggart v. Wade, 1 N. Y. Supp. 900, for a reargument.</p>

<p>Towns—Obstruction of" Highway—Legislative Authority.</p> <p>A town is not liable to one who is injured by an obstruction in the highway consisting of a culvert over an artificial passage for water overflowing from the New York city aqueduct, built by that city under authority of the legislature.</p>

Action by Isaac S. Lydecker and others, as members of the board of health of the village of Nyack, against Richard P. Bells and Richard De Contillon, to abate an alleged nuisance on the premises of the latter. Judgment was rendered in a justice’s court against both defendants, but only affirmed in the county court as to the defendant Bells, who takes this appeal.

Action for specific performance of a contract to convey land, brought by Michael Levy and Henry May against Emanuel ¡Newman. Judgment for plaintiffs, and defendant appeals.

Action for the conversion of personal property by William T. Gillott, Jr., assignee of Herman FT. Smith, originally brought against Charles B. Farley, sheriff of Kings county.

On certiorari. Writs of certiorari at the relation severally of Katharine H. Richmond and: William A. Smith against John H. Wilson and others, trustees of the village-of Flushing, to vacate an assessment made on the lands of relators to pay the expenses of certain street improvements. The principal objection to the-validity of the assessment was based on the insufficiency of the petition of the land-owners asking for the improvement.

<p>Appeal from circuit court, Kings county.</p> <p>Action by Maria P. Polhemus against the Fitchburg Railroad Company on certain bonds and coupons. ,Judgment for plaintiff, and defendant appeals.</p>

Action by Frederick J. Smith against James H. Buggies, to recover the •price paid for a horse sold by defendant to plaintiff, which had been taken from plaintiff by virtue of a mortgage executed on the horse by II. C. Kughler, a former owner. The plaintiff testified that he bought the horse for him.self alone, but at the instance of Kughler, who said he once owned it, and recommended it to him.

Action by Kate 0. Reynolds against the New York Central & Hudson River Railroad Company for the value of certain furniture delivered to defendant for carriage. The trial court dismissed the complaint on motion of defendant, and plaintiff appeals.

This was an action by Peter W. Schmitz against the Union Elevated Railroad of Brooklyn, to compel defendant to change the curve of its proposed road, running from Elatbush avenue to Hudson avenue, in the city of Brooklyn. Plaintiff had a decree, and defendant appeals.

<p>fAETNEKSHir—Dissolution—Reoeiveiis.</p> <p>Where a firm of attorneys retained original abstracts of the titles which they were employed to examine, and delivered copies to their clients, and the good-will of their place of business, which includes a business made by a deceased partner, is valuable, and, on dissolution, a portion of the former partners have given notice that they will continue business at the offices occupied by the firm, it is proper, in an action to adjust the affairs of the firm, to appoint a receiver of the abstracts, the unexpired lease of the offices, and the office furniture, with direction to sell the same, and permission to the members to purchase.</p>

Action for settlement of partnership accounts after dissolution, brought by .Spencer D. C. Van Bokkelein against Robert H. Berdell. There was a reference to John L. Lawrence, who made a report which the court confirmed, and .a re-reference was ordered for further accounting in conformity with the findings of that report. Lawrence died before making his second report, and Horatio 0. King was appointed to take the accounts.

Petitions severally by Mary Ella Camp, William C. Camp, and Julia A. Tebbetts, wards of Calvin B. Camp, for an accounting. Decrees for petition* ■ers, and defendant appeals, all the cases being heard together.

Action by Charlotte Van Burén against the Fishkill & Matteawan Water-Company, to recover damages for the diversion of a stream of water. Defendant appeals from a judgment for plaintiff.

William P. O’Connor, executor, etc., of the will of John McEvoy, deceased, filed his petition for final accounting.

Action by Alfred Ayers against Sehvyn A. Bussell, Daniel V. O’Leary, and Anthony Gould, the first two being physicians, and the latter the recorder of the city of Albany, for damages alleged to have been sustained by the wrongful confinement of plaintiff as a lunatic. From an order sustaining the demurrer of all the defendants to the complaint plaintiff appeals.

Application by the water commissioners of the village of Catskill for the appointment of commissioners to appraise the compensation to be made to Oeorge Clark for lands proposed to be taken for the use of the village waterworks. From an order granting the application, Clark appeals.

<p>Mechanics’ Liens—Nobeolosube—Commencement oe Action—Limitation.</p> <p>By Laws N. Y. 1885, c. 342, § 6, a mechanic’s lien ceases in a year, unless within that time an action to enforce it is commenced; and section 8 provides that the manner of instituting the action shall be the same as in mortgage foreclosure. Provision is made for the mode of commencing an action in a court not of record, but not for a court of record. Code Civil Proc. § 399, which applies to mortgage foreclosure, declares that an attempt to commence an action by delivery of the summons to the sheriff is equivalent to a commencement “within the meaning of each provision of this act which limits the time for commencing an action. ” Cases of different limitations specially prescribed are excepted from that chapter of the Code by section/414. Meld, that a lien is preserved by delivery of the summons to the sheriff for service within a year, though it is not served until after the year has expired. Landon, J., dissenting.</p>

Action by McKay ancl others to recover value of timber and bark cut and: removed by defendants from lands in the town of Hardenburgh, Ulster county, ST. Y., and claimed to be owned by plaintiff. It was conceded by both parties that the premises in question belonged to, and were occupied by,, one Patrick Clark, in his life-time. Patrick Clark died in the year 1847, leaving him surviving, as heirs at law, the plaintiffs, and his son, James Clark.

Action by Jessie L. Colt against George K. Davis, formed by the consolidation of two actions, each upon a promissory note. The fifth defense was the note given by Bobert A. dolt to defendant. Defendant appeals. The following are the sections of Code Civil Proc. 2L Y. referred to in the opinion: “See. 537.

Lawrence county. Action by Alexander McFadden against Van Burén Allen and others to recover damages for the conversion of a blacksmith shop, two additions to a saw-mill, the water-wheel, and a large portion of the machinery in the mill, a pump, and the lightning-rods attached to the buildings.

Indictment for robbery in the first degree against Earl Fox jointly with David Argesinger, Benjamin Miller, and another, who, being unknown, was named “John Doe.” Defendant appeals from a judgment of conviction.

. The action was brought by Archibald Wieting, administrator, and others,, against William Billinger, Benjamin J. Getman and others, purchasers at, foreclosure sale, to charge certain premises devised by the will of Jacob Wieting, deceased, to his son Christopher Lorenzo, with the payment of certain-legacies.

Application of the attorney general for a writ of mandamus to compel the comptroller of the city of New York to draw a warrant and issue bonds for payment of certain taxes into the state treasury. An alternative writ was granted.

Action in the nature of quo warranto by the attorney general of the state of New York, to oust and exclude the defendant, Thomas C. Platt, from the office of commissioner of quarantine; the complaint alleging that he had unlawfully intruded into and usurped the functions of said office, not having been at any time a resident of the metropolitan police district.

Action by Joseph H. Fell against the New York Locomotive Works to recover agreed compensation for labor and services. Upon the report of the-referee, judgment was entered in favor of the plaintiff for $812.53, and interest from Hovember 5, 1887, damages, and for costs.

This is an appeal from an order granting the prayer of the petition of Conrad Loos and others to set aside a judgment sale of certain real property.

Action by Samuel J. Levis against William J. Burke for damages for injuries to a piano hired by defendant. Plaintiff obtained judgment in the municipal court of Rochester, which was reversed by the county court, and he appeals.

Job Sayre, administrator, etc., of the estate of William H. Sayre, deceased, appeals from two decrees settling and adjusting his accounts, and charging him with the costs of the accounting.

<p>Appeal from judgment on report of referee.</p> <p>Action by Mary R. Bullock against John M. Bemis for settlement of a partnership account. Judgment for plaintiff, and defendant appeals.</p>

Action by Beuben W. Gifford as receiver of the property of Ghauncey W. Bising, a judgment debtor, against Ghauncey W. Bising and others, to reach a bequest or annuity payable to Ghauncey W. Bising under his father’s will. Judgment for defendant, and plaintiff appeals.

On motion to compel defendants’ attorneys to receive an amended complaint, or, upon their refusal, to substitute the amended complaint for the-original complaint; Code Civil Proc. § 542, provides that “ within 20 days after a pleading or the answer or demurrer thereto is served, or at any time before,' the period for answering it expires, the pleading may be once amended by the party, of course, without costs, and without prejudice to the proceedings already had.”

On motions to vacate order for guardian’s allowance, and to attach for failure to pay the same. Action by Harriet Richardson against Herman Van Voorhis and Herman ' H. Van Voorhis, for assault and battery. Thomas H. Bennett was appointed .guardian ad litem, for Herman H. Van Voorhis, an infant defendant, and was allowed $50 as compensation therefor. Defendants moved to vacate the order, and the guardian moved to commit the infant for contempt in failing •to pay the amount.

On demurrer to the complaint. Action by United States Life Insurance Comnany against Eleanor P. Gage .and others.

<p>."Nuisance—Pollution of Stream—Injunction.</p> <p>The draining of privies connected with a public school into a small, open brook flowing through a village in which the school is situated is a public nuisance, and will be enjoined.</p>

Action in the nature of quo warranto, brought by the people of the state of New York, for the forfeiture of the defendant’s corporate franchises, and for its dissolution.

Summary proceedings by John E. Marsh as executor, landlord, against Catharine Masterson and others, tenants. Thomas 'O’Callaghan, Jr., one of the subtenants, appeals from a final order awarding the landlord possession.

Action by Sarah E. Dobbs against William H. Niebuhr, Charles G-. Dobbs, and William P. Hawes, to foreclose a mortgage given by Niebuhr to plaintiff. The defendants Dobbs and Hawes held mortgages junior to that of plaintiff, and were thus made parties defendant. There was a decree of sale, and defendant Niebuhr appeals.

Action in the city court by Robert McBride against Richard W. Van Fleet for moneys alleged to have been collected for plaintiff. Judgment for defendant was affirmed at general term, and plaintiff appeals.

'Appeal from jury term. Action by Francis J. McCann, an infant, etc., against the Sixth Avenue Railroad Company to recover damages for personal injuries. The court directed a verdict for defendant, and from a judgment entered thereon plaintiff appeals.

Action by Nathan Rebhun against Frank G. Swartwout. Plaintiff appeals from an order vacating and setting aside a judgment entered in his favor upon the verdict of a jury and granting a new trial.

Action by Charles Monks against Sanders D. Bruce for the difference between the price at which plaintiff authorized defendant to sell a certain blooded mare, and the price for which defendant actually sold her. Defendant moved at the trial to dismiss the complaint.

Action by Henry Brentman against Henry Mote. Plaintiff alleged that he had agreed to sell an interest he had in a house, together with the furniture in it, for $600, and that the purchaser had paid $10 to bind the bargain; and that-by reason of false reports made by the defendant concerning the property, to the effect that the house was in bad condition, the furniture broken and damaged, and part of it had been moved away, etc., the purchaser refused to comply with his…

<p>Trusts—Deposit or Trust Fund in Bank—Liability of Trustee ror Loss.</p> <p>An executor was directed by the will to invest a trust fund in some good interest-bearing security. A portion of the fund was so invested, but tbe balance—the executor being unable to obtain a proper investment for it—was deposited in a bank, with the assent of the parties concerned, where it remained until the failure of the bank. The executor was a director of the bank, but believed it to be solvent, as-did others of the directors and certain of its leading depositors. Held, that the ex. ecutor was not personally liable for the loss caused by the failure of the bank.</p>

Petition by Jennie E. Pearson, executrix, etc., of Harriet Pearson George-deceased, for a settlement of her accounts. Exceptions were filed by legatees ■ under the will.

<p>Taxation—Exemption—Transfer to Exempt Corporation.</p> <p>Property taxable on the second Monday in January, when the books are opened for correction of assessments, but subsequently, and before the 1st day of May, when they are closed, transferred to a corporation whose property is exempt from taxation, does not thereby become exempt.</p>

<p>Municipal Corporations—Officers—Compensation—Statutes—Construction.</p> <p>Under act N. Y. ’Feb. 27,1883, entitled “An act to supply the city of Schenectady with water, ” and providing for the appointment of three commissioners, who, “for the first year after the commencement of the construction of water-works as hereinafter prescribed, shall each receive such salary as the common council shall fix, * * * which shall not exceed $500, ” and empowering them to adopt and report any feasible plan for the construction of the works, “embracing the purchase -of any water-works, ” the said commissioners are entitled to compensation for the adoption and the recommendation to the council of a plan for purchasing the works of another company, and for their control and management of said works after the purchase.</p>

<p>Appeal from special term, Washington county.</p> <p>Application- of William Spier and others, freeholders, to compel the commissioners of highways of the towns of Queensbury, in Warren county, and Moreau, in Saratoga county, to build a bridge across the Hudson river. The order was granted, and the town of Moreau, and John Conlin, commissioner of highways for said town, appeal. Laws 1857, c. 383, § 1, provides that “ whenever any two or more towns shall be liable to make or maintain any bridge or bridges, the same shall be built and maintained at the joint expense of said towns, without reference to town lines.”</p>

<p>■Tenancy in Common and Joint Tenancy—Bank Accounts—Subvivobship.</p> <p>A depositor had his bank account changed into an account with him and his mother, “order of either of them,” she signing the signature book at the time. Afterwards, speaking of the account, and showing her the book, he said, “This is yours. ” He retained the pass-book about a month, but on the day before his death sent it to his mother, with directions to tell her to keep it for him. Held sufficient ■to create a joint tenancy in the fund, and that upon his death it vested in the mother .as survivor.</p>

<p>Appeal from circuit court, Ulster county,</p> <p>Action by Marcus H. Mullenneaux, receiver, etc., of Henry S. Terwilliger,against said Terwilliger, Martha J. Terwilliger, his wife, and David A. Scott, defendants, to set aside a conveyance made by said Terwilliger to his wife,as made with intent to defraud creditors. Judgment for plaintiff, and defendants Terwilliger and wife appeal.</p>

Action by Joseph Sondheimer against the Troy & Lansingburgh Railroad •Company, to recover wages alleged to be due plaintiff.

Anna R. Barliydt filed her petition asking to be appointed temporary guardian of Alberta Van Vranken, a minor under the age of 14 years, which was done. Albert C. Van Vranken, father of the infant, appeals. Code Civil Proc.

Action by Edgar Bronk against John Riley and others, commissioners of the Albany penitentiary commission, and John McEwen, superintendent of the Albany penitentiary, to compel performance of a contract. A preliminary injunction was granted, (2 H. Y. Supp. 266,) and defendants appeal.

Appeal irom judgment on report of a referee. Action by William W. Hartwell and Ebenezer S. Winslow against the Mutual Life Insurance Company of New York and others, to determine the rights-of the parties in a water-power in Plattsburgh. In 1829, Abraham D. Brinkerhoff, Jonathan Griffin, Bichard Keese, and Azariah 0.

<p>Appeal from surrogate’s court, Schenectady county.</p>

<p>1. Bridges—Between Adjoining Towns—Duty to Rebuild.</p> <p>Under Laws N. Y. 1857, c. 639, providing that when adjoining towns refuse to rebuild a bridge over a-stream dividing the towns after its destruction, upon application to compel them to do so the court may make such order as to it may seem just, two such towns may, in a proper case, be required to rebuild such a bridge on a highway, though it has been destroyed for 80 years, and the stream has been crossed at points a few hundred feet distant, by means, first, of a toll-bridge, next of a ferry, and for 40 years solely by the aqueduct of the Erie canal, which, though illegal, has been permitted by the state for that length of time, as no discontinuance of the highway has been thus effected.</p> <p>2. Same—Discretion oe Court.</p> <p>It appearing that the bridge would cost $20,000, and would always be liable to destruction by the floods to which the creek is subject, that there is but little dissatisfaction with the present mode of crossing, and that the state makes no objection thereto, the order of the special term refusing the application does not seem to be abuse of its discretion under said statute, and will be affirmed without prejudice to a similar application, if a change in the circumstances should render the rebuilding of the bridge expedient.</p>

Action by William Van Antwerp and Marcus T. Hun, who sue as well for themselves as other tax-payers of Albany county, against Henry Kelly, treasurer of said county, and Charles Devol, to restrain the payment of an order issued to said Devol by direction of the board of supervisors of said county. Complaint dismissed, and plaintiffs appeal.

This was an application by Charles E. Tabor, attorney general, for leave to-bring an action to vacate the charter of the Ulster & Delaware Railroad Company. Erom an order granting leave, the railroad company appeals.

Appeal by the defendant, F. P. Thayer, from a judgment entered in Albany county upon the report of a referee.

Plaintiff in his complaint alleges that prior to January, 1876, he was the owner of 10,500 acres of land, situated in the town of Rockland, county of Sullivan, and state of New York, subject to a mortgage thereon, given by plaintiff to John D. Watkins, to secure plaintiff’s bond, which bond and mortgage was dated May 6, 1874, and that the mortgage by assignment came to the hands,of the defendant; and the plaintiff also alleges that he was owner and in possession of a…

Action brought in justice’s court by Christian J. Eauscher against William Cronk, as trustee of school-district No. 7, towns of Ara and Western, and after a trial there before a jury the verdict was, no cause of action. Thereupon the plaintiff appealed to the county court, and a trial was had, resulting in a verdict for the plaintiff of 25 cents.

Action by Ida B. Sackett against Thomas H. Breen and Nathaniel F. Breen to recover money collected by defendants for plaintiff. Plaintiff is a married woman, whose husband, George S. Sackett, separated from her in 1884, he-then being in the possession of the farm of 130 acres in the town of Turin, Lewis county. Upon the farm was a quantity of personal property which the-plaintiff claimed belonged to her.

Action by Frank L. Smith, as receiver, against Curtis A. Barnum and others. A demurrer to the complaint was overruled, and, on failure of defendants to answer, final judgment was entered for plaintiff. Defendants appealed, giving notice that they intended to bring up for review the order overruling the demurrer, and the interlocutory judgment rendered thereon.

Simeon Block resided at Vernon, Oneida county, N. Y., and was 81 years old when his son, Henry Block, on the 17t'h day of November, 1887, petitioned the county court to appoint a committee for. him, and that a commission de lunático inquirendo issue. The commission was issued to one John F. Tuttle, who caused a jury to be summoned.

Appeal.from a judgment awarding the plaintiff a mandatory injunction requiring the defendant to restore to its original channel a stream of water adjudged to have beer iiverted by it to the injury of the plaintiff, and awarding damages sustain-,-A by reason of such diversion.

Action by William Mnrtaugli against the Few York Central & Hudson River Railroad Company, for injuries caused by the explosion of an emery-wheel operated by plaintiff in one of the repair shops of the company. The wheel was used for polishing pieces of metal, and was made in segments or sections, so cut that the grain and the joints between the segments in each layer ran from the circumference to the center of the wheel.

Ejectment by George W. Zink against Anna McManus and others for about seven acres of land. Defendants were in the actual possession, and claimed that plaintiff’s title, as set up in his complaint and proved on the trial, had been transferred to defendant McManus by a tax deed, executed by the comptroller of the city of Buffalo, in pursuance of a sale for non-payment of taxes levied upon the premises.

Action by Elijah It. Sehoonmaker against Frank W. Bonnie, Mrs. Frank W. Bonnie, Robert P. Bonnie, and Mrs. Robert P. Bonnie, for the specific per-formance of a contract. At the special term judgment was rendered for plaintiff, and defendants appealed to the general term, where the judgment was reversed as to Mrs. Frank W. Bonnie and Mrs. Robert P. Bonnie, “ with costs. ” The plaintiff now appeals from the order of the special term for retaxation of ■costs.

<p>1. Payment—Application by Creditor—Former Indebtedness.</p> <p>In an action on a bond given to secure future indebtedness, payments made after its execution may be applied by the creditor to a former indebtedness, in the absence of directions by the debtor.1</p> <p>■3. Same—Evidence—Principal and Surety.</p> <p>Statements of account between the creditor and the principal debtor are admissible, as against the surety in the bond, to show the application of the payments, and the consent of the principal debtor thereto.</p> <p>.8. Bonds—Actions—Evidence—Alterations before Execution.</p> <p>Where there was no ambiguity in the bond, and no allegation in the answer that the surety’s signature was fraudulently obtained, evidence tending to show why certain words were stricken out of the printed form before execution, and what was said on that occasion, was properly excluded.</p>

<p>1. Assignment fob Benefit of Creditors—Fraud—Knowledge of Assignee.</p> <p>An assignment ostensibly made for the benefit of creditors, but with fraudulent, intent on the part of the assignors, may be avoided though the assignee is not chargeable with knowledge of such fraudulent intent.</p> <p>3. Same—Presenting Claim:—Waiver of Objections.</p> <p>The fact that a creditor causes a verified statement of his claim against the debtor to be presented to an assignee for the benefit of creditors, in response to a notice from the latter, does not prejudice a proceeding by the creditor to set aside the assignment as fraudulent.</p> <p>3. Appeal—Review—Harmless Error.</p> <p>Where evidence is improperly admitted, but the findings of fact are against such evidence, the error may be disregarded.</p>

Action by John Heigel against R. G. Willis. Defendant appealed from a judgment rendered against him in the justice’s court to the county court, and from an order denying plaintiff’s motion to strike the cause from the trial calendar, and have the appeal heard as an appeal on the law, plaintiff appeals.

The alleged will of Louisa M. Ramsdell, deceased, was offered for probate ffiy the executors named therein, and probate contested by the committees of her son and daughter, who were adjudged lunatics. Probate was refused, and the executors appeal.

On exceptions from circuit court, Livingston county. Action by Adaniram J. Abbott and others against Louisa M. Royce, impleaded with Julia Hosford. Verdict was directed for plaintiff, and defendants move for new trial on a case and exceptions ordered to be heard in the first instance at the general term.

<p>Appeal from judgment on report of referee.</p> <p>Action by Oliver Durfee against William H. Bump. Judgment for plain-tiff, and defendant appeals.</p>

The defendant, John Andrews, was indicted for selling intoxicating liquo s to be drunk on the premises, without a license, and appeals from a judgment ■entered upon a verdict of a jury, and from an order denying a new trial.

<p>Appeal from judgment on report of referee.</p> <p>Action by Joseph W. Doty against the Case & Willard Thresher Company, for commissions and.services.. Judgment for plaintiff and defendant appeals.</p>

Action by Gertrude Schum against the city of Rochester and others, to-restrain the city from emptying sewers on plaintiff’s premises. After an interlocutory judgment for plaintiff was rendered at trial term, and costs awarded, a motion was made at special term for retaxation of costs, which being denied, defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action for damages for and an injunction against waste, by Mary A. Stryker, against Francis M. Schuyler. Judgment for defendant. Plaintiff appeals.</p>

Action for damages for personal injuries, brought by William H. Clapp against the town of Ellington. Verdict and judgment for plaintiff and defendant appeals.

Action by Charles Brigham, as executor of the will of Harriet T. Sedgwick, deceased, against Delia A. Gott, to set aside a transfer of shares of stock made to defendant by the deceased, and for other relief. Judgment for plaintiff, and defendant appeals.

On motion by the relator, Simpson D. Travis, for a writ of mandamus requiring the respondent, Charles F. Durston, agent and warden of the Auburn state-prison, to reappoint relator a keeper therein.

At chambers. Application by George S. Simpson to enjoin the inspectors of election for the Eighth election district of the Ninth assembly district of the city of New York from permitting the voters who were to vote at the ensuing general election from voting by one or more ballots at different times.

<p>Judgment—Confession—Death of Debtor—Fraction of Dat.</p> <p>Code Civil Proc. N. Y. § 1275, providing that judgment by confession shall not be entered after defendant’s death, is violated by entry of such judgment after his death, though on the same day; the rule that the law will not regard fractions of a day not applying.</p>

Action originally brought by Baer against one Mead, who obtained an order of interpleader, bringing in Kempner. Judgment was rendered in favor of Baer, and Kempner appeals.

Action by Abraham Phillips against Prank A. Munsey, to recover $247, the alleged value of certain engraving work, consisting of six blocks or plates.

<p>1. Municipal Corporations—Liability for Icy Sidewalks—Evidence.</p> <p>3. New Trial—Improper Evidence—Exclusion after Objection.</p> <p>A verdict for plaintiff for injuries received from an icy sidewalk will not be disturbed on appeal, where there is evidence that there had been for a long time a thick coating of ice where plaintiff fell, and that other sidewalks in the vicinity had been cleared.1</p> <p>The reception of evidence as to injuries other than those pleaded is not cause for new trial, where no such evidence was received after objection made.</p> <p>3. Trial—Motion to Strike out Evidence—Discretion of Court.</p> <p>A motion to strike out evidence received without objection is in the discretion of the court.</p> <p>4. Witness—Examination—Contradictory Statements Oct oe Court.</p> <p>Evidence of contradictory statements made by a witness out of court is not admissible, where his attention has not been specially directed to them in his examination.1</p>

Actions by Henry R. Sire against George Kneuper, for rent; one pending in the court of common pleas, and the other pending in a district court. Defendant moves in the common pleas for an order for the removal to that court of the action in the district court, and for the consolidation of the two actions.

Action in the nature of interpleader, brought by the mayor, aldermen, and commonalty of the city of Yew York against Thomas Curran, Edward Jacobs, and John W. Murray, and others, executors of Andrew J. Dam.

On habeas corpus. The relator, Thomas Slatzkata, petitions for an order requiring Nelson H. Baker, superintendent of the Society for the Protection of Destitute Roman Catholic Children, at Buffalo, N. Y., to discharge him from custody.

Action by George L. Zoller, George Lupert, and Hugh Alexander, partners in the business of furniture dealers, under the firm, name of Zoller, Alexander & Co., against Hugh J. Grant, sheriff, and others, to recover damages for the taking of plaintiff’s property under an attachment against the Luppert & Kline Furniture Company. Verdict and judgment for plaintiffs, and defendants appeal.

Action by Margaret Jourdan against Patrick Haran, impleaded, and others, to enforce a claim to dower. From a judgment adjudging plaintiff entitled to dower, and admeasuring the same, and from an interlocutory judgment ordering a reference, and from an order confirming the referee’s report, defendant Haran appeals.

Action by William P. Thorp against Henry A. Riley. The complaint alleged that on September 24,1885, plaintiff, being then an infant of the age of 20 years and two months, intrusted to defendant $2,500 for investment in •.the north-west; that $1,500 have been repaid; that after plaintiff became of age he demanded the remaining $1,000, but defendant has refused to pay the same, and to give him securities therefor.

Action by James B. Watts against Caleb B. Knevals, trustee, and others, to recover damages for breach of a written agreement alleged to have been made by defendant as trustee for himself and others with the firm of Caldwell, Weston & Co., of which firm plaintiff was the successor, in regard to the disposal to said firm of the entire output of the “Primrose Colliery,” controlled by the defendants.

On application of Elizabeth A. Hall, plaintiff, an injunction was issued to (restrain Mary Sexton, defendant, from cutting off plaintiff’s sewer connection, which was continued pending the action; the order continuing it being affirmed by the general term. Thereafter, on plaintiff’s application, the action was discontinued on terms with which plaintiff has complied. Defendant moves for a reference to ascertain damages sustained by her by reason of said injunction.

Action by Albert Behrens and others against Simon H. Bloom and others. Verdict and judgment were for defendants, and plaintiffs move for a new trial on the ground of surprise and newly-discovered evidence.

Action by Henry Numrich, Sr., individually, and as guardian of liis children, against The Supreme Lodge Knights and Ladies of Honor. The defendant is a benevolent society created under the laws of the state of Missouri, having subordinate lodges throughout the country.

<p>Case submitted on agreed statement.</p>

<p>Appeal from surrogate’s court, Chenango county.</p> <p>Special proceeding by Charles W. Olendorf to sell the land of Ella B. Church, deceased, for a debt due him. The parties were Samuel W. Church snd George W. Ray, special guardian for said Samuel W. Church, an infant heir of the deceased, and John W. Church, her administrator, the said John W. Church in his own right, and one. George N. Barnes. Decree of sale, and -the infant and his guardian appeal.</p>

Petition by the people ex rel. Egbert M. Gaige for a mandamus to William. J. Reardon and others, inspectors of election of the Second election district of. the Fifth ward of the city of Binghamton, to reassemble and make a correct. return of the votes cast for the several candidates for alderman in the said Second district. The writ was granted, and defendants appeal.

Indictment of Samuel P. Hill for murder in the second degree. There was-a conviction, and defendant appeals; The facts are fully stated in the opinion.

<p>1. Deed—Delivery—Finding op Reperee.</p> <p>In a controversy as to whether a deed had been delivered, there was evidence of the declarations of the grantor that she intended the grantee to have the land described in tbe deed, and that he had been in possession of the deed, and had occupied the land since the execution of the deed 30 years before, and paid the taxes. On the other hand, the land was usually assessed to the grantor, and there was evidence that the grantee had admitted that the land belonged to the grantor’s heirs, and that he had paid small sums for deeds from such heirs. The admissions were denied, and the payments to the heirs were shown to have been made after a claimant had begun to acquire deeds from such heirs. Reid, that a finding that the deed had been delivered would not be disturbed.</p> <p>2. Same—Bona Fide Purchasers.</p> <p>One claiming title to land under a deed from the heirs of a former owner, who had previously conveyed the land by an unacknowledged and unattested deed, is not a purchaser within the meaning of 1 Rev. St. BT. T. p. 738, g 137, providing that a grant of real estate shall not take effect as against a purchaser, unless the execution and delivery of the deed is attested, etc.</p> <p>3. Witness—Competency—Transactions with Decedents.</p> <p>The testimony of one claiming land under a deed from a deceased grantor, that he had occupied the land, had rented it, and collected the rents, is not objectionable as relating to transactions with deceased persons, within Code Civil Proc. BT. Y. § 829.</p> <p>4. Same—Possession op Deed.</p> <p>Nor where the delivery of the deed is in issue can such reason be urged against evidence by the grantee that he had been in possession of the deed since the year of its date.</p>

Action by Letitia 0. Baker against Oakwood, a corporation, to recover the - possession of one undivided fourth interest in a tract of land .formerly owned by her father, Charles B. Hargin. The land in 1835 was mortgaged by the-person owning the entire tract, and before August 6, 1840, the date of Charles ■ B. Hargin’s death, he acquired title to the equity of redemption of one fourth, interest therein.

Action by the First General or Six Principle Baptist Society of Willett against Aaron B. Loomis as president of the Free Will Baptist Society of Willett. Defendant moved for an order charging W. B. Place, William Wightman, and Irving Bell with the payment of his costs and disbursements. The motion was denied, and defendant appeals. Code Civil Proc. N. Y. provides as follows: “Sec. 779.

Harty against Alice E. Doyle and others for the partition of lands of which plaintiff alleges Timothy Harty died seised. On August 1, 1882, for the recited consideration of $1,735, Timothy Harty .conveyed to his daughter, defendant Alice C. Doyle, by quitclaim deed, which was recorded, a house and lot.

<p>1 Master and Servant—Negligence oe Co-Employes—Instructions.</p> <p>A locomotive which had helped a west-bound freight train in the night was, preparatory to backing to its destination, run upon the main track a little east of the-station, and left, while the engineer went to the station for orders, fronting to the-west, with a light on its rear, but with no head-light; that having been broken the-previous day. While so left an east-bound freight collided with it, killing plaintiff's intestate, the fireman of the east-hound freight. The engine was left on the-track in violation of a rule of the company providing that no irregular engine should be allowed upon the main track without special orders, and the approaching train was passing the station at a higher rate of speed than, the company's rules permitted. Held, that the company was not liable unless the accident would not have-happened but for the absence of the head-light, and it was error to chargp that it was liable if its negligence contributed to the injury, though deceased’s co-employes ■ were also negligent, provided deceased was guilty of no contributory negligence.</p> <p>3. Appeal-Decision—Reversal—General Term.</p> <p>On appeal, accompanied by a case, to the general term of the supreme court from ■. a judgment entered at circuit and from an order denying a motion for a new trial, a reversal may he granted for an erroneous instruction, though the trial term was-not asked to charge its converse.</p>

<p>Adultebation—Jubisdiction op Special Sessions—Pbooedube.</p> <p>Laws Ñ. Y. 1885, c. 183, relating to offenses concerning diluted milk, and making such offenses misdemeanors, provide that “courts of special sessions shall have jurisdiction of all cases arising under this act, "does not confer exclusive jurisdiction, and the offense not being among those named in Code Grim. Proc. § 56, of which those courts have exclusive jurisdiction, a defendant charged with a violation of the act is entitled to give hail, and to have a trial after indictment as provided in Code Crim. Proc. § 211.</p>

Action by George W. Stedman as assignee of Charles E. Stedman against John Batchelor, sheriff of Oneida county, for conversion. Plaintiff moved to set aside the verdict and for a new trial, on which the following opinion was rendered by Williams, J.: “Motion by plaintiff to set aside a verdict, and for a new trial, on the ground that one of the jurors was a deputy appointed by the defendant, sheriff of Oneida county. The action was for the conversion of personal property.

Action by Emma 0. Hall, as administratrix, etc., of T. S. Hall, deceased, against the Cooperstown & Susquehanna Valley Railroad Company. Defendant appeals from a judgment for plaintiff, and an order denying its motion for new trial on the minutes.

Action by William D. Bailey against the Rome, Watertown & Ogdensburg Railroad Company, for personal injuries. Defendant appeals from a judgment on a verdict of $10,113.62 for plaintiff, and from an order denying a motion for new trial on the minutes.

<p>Appeal from circuit court, Onondaga county.</p> <p>Action by Mary A. Austin against Martha Bacon and John B. Bacon, her husband. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from judgment on report of referee.</p>

Action by Fewell M. Sheffer against George B. Harmon, for the hire of an engine. Judgment for plaintiff on a verdict directed by the court. Defendant’s motion for a new trial denied, and he appeals.

Action by James W. Fry against Elijah L. Clow for the conversion of a piano and stool. Plaintiff appeals from an order dismissing his complaint.

<p>Appeal from circuit court, Ontario county.</p> <p>Action by the trustees of the village of Geneva against the Brush Electric 'Company of Cleveland. Judgment for plaintiff, and defendant appeals.</p>

Action by Emma Ostrander against Matthew P. Campbell. From a judgment in county court affirming a judgment for plaintiff in the justice’s court ••defendant appeals.

•Appeal from circuit court, Ontario county. Action by Harriet Bichardson against Herman Van Voorhis and Herman H. Van Voorhis. Defendants appeal from a j udgment for plaintiff and from an order denying a motion for a new trial.

Action by David O. Lapham against Martha A. Marshall, William J. Marshall, and Henry H. Hickox, to set aside two deeds,—one executed by said William J. Marshall to said Hickox, and one by said Hickox to Martha A. Marshall,—alleging that they were fraudulent and void as against the judgment held and owned by- the plaintiff against the defendant William T. Marshall. From a judgment for plaintiff, and an order denying a new trial, de-fend ant Martha A. Marshall appeals.

Action by Frederick B. Potter against Sylvanus II. Greene and William Epes, executors of the will of David Greene, deceased, to recover for labor ■performed by plaintiff for deceased. Trial by jury and verdict for plaintiff, which the special term set aside on a motion by defendants based on the judge’s minutes. Plaintiff appeals.

Action by William E. Clark against the New York, Lake Erie & Western Railroad Company, for loss of the services of his infant son, Thomas B. Clark, who was injured by defendant’s negligence. There was evidence that the boy had caught on the forward end of the caboose of a moving train, and that, while riding there, one of the train-hands threw water in his face, causing him to fall, whereby he received the injuries complained of.

<p>1. Trusts—Resulting Trusts—Conveyance to Third Person.</p> <p>Under 1 Rev. St. N. Y. p. 788, § 51, providing that no trust shall result in favor of the person paying the consideration when the title is taken in the name of another, where a husband causes the title to land purchased by him to be taken in-the name of' his wife, without fraud on her part, the beneficial interest vests in her; and her oral promise to convey to the husband when he shall so desire, whether made before ■ or after the taking of the deed, is not binding.</p> <p>3. Same—Improvements—Liability of Grantee.</p> <p>When, after the conveyance, the husband leased the land, he cannot recover, for improvements made thereon without any promise on the wife’s part to reimburse - him.</p>

<p>1. Pleading—Answer—Motion to Make More DEStnite.</p> <p>An answer denying that on or about June 4,1883, or at any other time, defendants entered into an agreement with plaintiff that plaintiff should cause certain appa,ratus to he placed in their brewery for their use, and that they agreed to pay for its use, as a royalty, three cents for each barrel of beer manufactured by them, puts in issue an allegation in the complaint of a contract of substantially the same terms made on or about June 4,1883. The defect, if any, is uncertainty and indefiniteness, for which the remedy is by motion to make more definite and certain, as nrescribed by Code Civil Proc. N. Y. § 546. . y</p> <p>3. Appeal—Review—Findings of Referee.</p> <p>A referee’s finding of fact, made upon disputed testimony given by interested witnesses, will not be disturbed.</p>

Hiram B. Everest and Charles M. Everest appeal from a judgment imposing upon the defendants a fine of $250 on a verdict finding the defendants guilty of.the crime of conspiracy.

<p>1. Trover and Conversion—Equitable Defenses—Rescission of Contract.</p> <p>Defendants sold certain property, agreeing to accept in part payment the purchaser’s notes, indorsed by a third person. The notes were delivered properly indorsed, but without the signature of the purchaser, and the omission was not discovered by defendants until after a portion of the property, about equal in amount to a cash payment made at the time of the sale, had been consumed, when defendants took possession of the unconsumed portion, the indorser having refused to permit the purchaser to sign the notes. There was evidence that the omission of the signature was with fraudulent intent. Held, in trover by the purchaser, that defendants could not avail themselves of their equitable right to have the contract rescinded under Code Civil Proc. R. T. § 507, providing that a defendant may set forth in his answer as many defenses as he has, whether legal or equitable, where the answer did not ask for rescission, or offer to refund the money paid thereon.</p> <p>-.2. Same—Pleading—Denial of Complaint.</p> <p>Where in such action the complaint sets out the bill of sale of the property, showing an unconditional transfer, and an acceptance of the property by plaintiff, an .answer which denies each and every allegation of the complaint not “hereinafter specifically admitted or explained, ” and which then states the substance of the bill •of sale, and sets out the circumstances of its delivery, and of the delivery of the notes, does not put in issue the question as to whether there was a mutual intention at the time of the sale to transfer title.</p> <p>Appeal from circuit court, Niagara county.</p> <p>Action by Edward J. McLeod against John Maloney and Patrick McCoy. "Defendants appeal from a judgment for plaintiff, and also from an order defying a motion for a new trial.</p>

Appeal by Celestia Y. Harris from certain provisions of an order confirming the report of a referee appointed to pass upon the accounts of Edwin J. Glefiin, assignee for the benefit of creditors of William H. Harris, and directing the distribution of the assets among the creditors; also from an order'denying a motion to set aside the report on the ground of alleged irregularities General rule of practice 30, referred to in the opinion, requires that, “in references other…

<p>1. Trusts—Duties of Trustee—Execution Sale—Agent for Purchaser.</p> <p>An execution was levied on all the personal property of a manufacturing corporation, and the day before the sale defendant H. purchased the judgment, at the solicitation of defendant W., who was, as H. knew, one of the trustees and the general manager of the company. H. made no examination of the property, and was ignorant of its value. He attended the sale, and as fast as the articles were put up he bid whatever amount W. marked on a memorandum, and became the purchaser; the total price being much less than the actual value. Pursuant to an agreement when he bought the judgment, W. leased him the plant and acted as his agent in manufacturing the stock bought at the sale. W. made no effort to advertise the sale, though there were other factories of the same kind in the vicinity, and much of the property levied on had a cash market value, and there was no one present to compete in the bidding. Held, that W. acted at the sale as the agent of the purchaser, and that a judgment that the sale was valid could not he sustained.</p> <p>S3. Execution—Validity of Sale—Duty of Shebiff.</p> <p>A disregard by the sheriff of the requirements of Code Civil Proc. N. V. § 1428, that personal property sold under execution must be offered for sale in such lots or parcels as are calculated to bring the highest price, and must be offered for sale in the presence and view of those in attendance, renders the sale voidable by the debtor.</p>

<p>Appeal from special term, Monroe county.</p> <p>Action by Daniel Supplee against Joab Sayre, administrator of the estate of William H. Sayre, deceased, to recover the amount of a judgment rendered against the plaintiff as surety on the bond of said intestate, who was in his life-time administrator of Henry Sayre, deceased. The action was brought against Supplee after the administrator had published notice to creditors, as required by statute, and the claim was never presented to defendant until the time specified in the notice had expired. It was afterwards presented, and defendant refused to refer it, and thereupon this action was instituted. Judgment for the debt and costs was rendered, charging the latter on the defendant personally, and he appeals. Rev. St. PC. Y. c. 6, art. 2, § 34, is 3 Rev. St. ÍT. Y. (7th Ed.) p. 2299, § 34, and is sufficiently set forth in the opinion. Code Civil Proc. §§ 1835, 1836, provides that upon a judgment against an executor or administrator for money only no costs shall be allowed unless-after the administrator has given the notice prescribed by law the creditor shall present the claim within the time fixed by the notice, and payment shall be unreasonably resisted or neglected, or the defendant shall refuse to refer the claim as provided bylaw. Section 3246 gives costs against an administrator as such, excepting in eases falling under §§ 1835, 1836, unless the court shall for misconduct of the administrator require him to pay them. Section 1916 provides that a surety may recover of his principal costs necessarily incurred in good faith in the prosecution or defense of an action relating to the demand secured.</p>

Mary Keeler, who was named as executrix of the alleged will of Morris Keeler, deceased, offered it for probate, which was contested by William Keeler and others, the heirs at law and next of kin of testator. Probate-being refused, the proponent appeals.

Action tor an injunction brought by Charles G-. Wilson, as president of the-Consolidated Stock & Petroleum Exchange, against the Commercial Telegram. Company. James D. Smith, as president of the New York Stock Exchange,, and others were subsequently made parties defendant.

<p>Action by Oliver T. Hopper against Mary 0. Hopper, who, as foreign executrix, has taken out letters ancillary in New York.</p>

Motion to confirm report of commissioners appointed to appraise property to be taken for the extension of North Third avenue, New York city. John B. Haskin, Bridget Curry, and the trustees of St. John’s College objected to the confirmation on the ground that proper awards had not been made for their property.

At chambers. Application by defendants, James M. Seymour, Allen L. Seymour, and James A. Baker, for discovery of certain reports. For opinions •on former proceedings in the same case, see 2 H. Y. Supp. 841, 842.

<p>Application to continue a temporary injunction, granted in an action</p> <p>brought by Brayton Ives and others against Elijah Smith and others.</p>

Action by Simon M. Rosenbaum, assignee of the estate of Julius Cohn, an insolvent debtor, against Robert Lawson, to recover the value of goods sold defendant by said Cohn after the assignment. Verdict and judgment for plaintiff, and defendant appeals.

Action by Adam Weber against Vincent Demuth and others for the price of certain fire-brick, manufactured by plaintiff for defendants. The defense was breach of warranty. Judgment was entered for plaintiff, and defendants appeal.

Action for slander. Plaintiff served a bill of particulars stating the names, to the best of his knowledge and information, of the persons in whose presence the alleged slander was spoken, but not stating the place or places. This bill of particulars was not verified. Defendant now moves for a further bill of particulars, which should state the hour of the day when the alleged slander was spoken.

Action by Louis ÍSolomon against Leopold Miller and another for damages for being bitten by a horse belonging to defendant Miller. Judgment for plaintiff, and defendant appeals.

Petition by Peter EL Hopkins, next of kin of Louisa S. Hopkins, deceased, to revoke a decree admitting her alleged will to probate on the application of Henry H. Lane, the executor named therein.

Code Civil Proc. N. Y. § 1294, cited in opinion, reads as follows: “A party aggrieved may appeal, in a case prescribed in this chapter, except where the judgment or order of which he complains was rendered or made upon his default. ”

<p>Application of William F. Gaffney for a writ of mandamus against Phillip Becker as mayor of Buffalo.</p>

Action by the St. Nicholas Bank of New York City against Henry C. de Bivera and others, to set aside as fraudulent a general assignment for benefit of creditors, made by one Salvador Bos, on behalf of himself and De Bivera, July 13, 1886. On March. 27, 1887, plaintiff recovered judgment against De Bivera, Bos, and Percy B. King, as partners under the firm name of J. 0. de Bivera & Co., on a debt contracted before the assignment.

At chambers. Petition by Anne Adelia Messant, otherwise known as Madam Diss Debar, for habeas corpus, to obtain the discharge from custody of Julia Diss Debar and Alice Messant, otherwise known as Alice Diss Debar.

<p>On demurrer to answer.</p>

<p>Action by Sherman S. Rogers, to prevent the city of Buffalo from paying any part of the salary claimed by defendant Ceriac Diebolt as street and health inspector. For former report, see 2 ÍT. T. Supp. 326. For affirmance on appeal, see post, 674.</p>

Certiorari on the relation of Mary J. Taylor, as executrix of the last will •■and testament of Augustus C. Taylor, deceased, to review the commissioners’ assessment of the personalty of said testator.

Action by Thomas Harvey against Giles S. Brisbin and others to quiet his-title to an estate pur autre vie in land devised by the will of Catharine S. Bailey, deceased. Judgment for defendants, and plaintiff appeals.

<p>Teade-Maeks—Adveetising Devices—Injunction.</p> <p>Areal-estate auctioneer, who formanyyears has sold suburban property on the installment plan, and -who has always used in his business, and for several years has had printed in connection with his advertisements, a representation of a flag with stars on the .upper and lower borders, is entitled to an injunction against the use of the like arrangement of stars upon the representation of a flag used in the advertisements of another real-estate auctioneer, who also sells suburban property on the installment plan.</p>

<p>Witness—Examination before Trial—Parties.</p> <p>Code Civil Proo. N. Y. § 872, as amended by Laws 1878, c. 299, and Laws 1880, o. 536, which provides (subdivision 5) that if an action is pending a -witness may be examined before trial, on affidavit that he is about to depart from the state, or that he is so sick or infirm as to afford a reasonable ground to believe that he will not be able to attend the trial, does not authorize the examination on those grounds of a party to the action; it being therein expressly provided that subdivision 5 shall not apply to a case where the person to be examined is a party to the action.</p>

<p>Action by Frank P. Crasto against Richard White for commissions alleged to have been earned in procuring a loan for defendant.</p>

Defendant Theodore Bearss, having paper title to certain lands, brought ejectment against Sarah Bullard, who thereupon brought this suit to enjoin said action and reform a certain deed, which is one of the links in Bearss* chain of title, and to that end joined as defendants Ida 0. Bullard, Lewis Bullard, administrator, Harris Chapman, and Rebecca, his wife, and Nellie Bearss, wife of Llieodore Bearss. Bearss moves to dissolve the temporary order.

Action by the Mutual Life Insurance Company of New York to foreclose a mortgage executed by Elizabeth L. Campbell, (wife of Joseph Campbell, and formerly widow of Parson G. Shipman,) individually and as executrix of Ship-man’s estate. The defendants are the children of Shipman, who became vested with the estate on the remarriage of their mother. Judgment was rendered for the defendants, and plaintiff appeals.

Action by William B. Briggs, by Ms guardian, against Peter D. Carroll to charge a legacy on real estate. Judgment for plaintiff and defendant appeals. Code Civil Proc. S. Y. § 499, cited in opinion, provides that if certain ob-“ jections, including inter alia an objection for defect of parties, be not taken by answer or demurrer, defendant is deemed to have waived them.

The rights of all the parties to this action, as disclosed upon the trial, were based upon the will of Manley Griswold, who died on the 14th day of January, 1870. Held: used, and enjoyed by her as she sees fit, to use in repairs for her separate estate, to pay hired help, as well as to repair our cemetery lot, erecting a family monument thereon, and for any and all purposes she sees fit to use the same for.

<p>Appeal from judgment on report of referee.</p> <p>Action by Emily Laraway against Frederick Fischer and others. Defendants appeal.</p>

Action by Francis E. Steele against Robert Gunn, by guardian, etc., and others. Milton Ballard, who was appointed referee to sell, etc., was required by order to pay the surplus to the treasurer, file his report, and pay $10 costs. Neglecting to do so, he was adjudged guilty of contempt, and appeals.

Action by William Campbell against the New York Central & Hudson Biver Bailroad Company to recover damages for personal injuries. Judgment was entered on a verdict in favor of plaintiff for $5,220.76, and costs,, from which, and an order denying a new trial, defendant appeals.

Action by Joseph Esmond against Lucia 0. Kingsley. Defendant appeals from a judgment for plaintiff, and from an order denying a motion for a new trial.

Action by James H. Cooper against Emmett B. Gannett and Margaret A. Gannett. Defendants appeal from a judgment of the county court affirming a judgment of a justice of the peace, with costs.

<p>Appeal from judgment on report of a referee.</p>

Action by Simon Uhlmann and Frederic Uhlmann against Nathan Brown-ell, RosellaS. Brownell, S. Lavina Fuller, and Henry Morgan, to set aside a deed conveying land from Nathan Brownell to Fuller, and from Fuller to Rosella Brownell, and to set aside an assignment for creditors made by said Nathan Brownell to said Morgan as assignee; alleging that both instruments were fraudulent as to plaintiffs, who were creditors of Nathan Brownell.

<p>Appeal from Oneida county court.</p> <p>Action by James McNamara against Alpheus G-. Babcock, for services rendered. Defendant appeals.</p>

<p>Appeal from judgment on report of a referee.</p> <p>Action by Harriet S. Chamberlain against the Insurance Company of North America on an insurance policy. Defendant appeals.</p>

These two actions were tried together. The first, designated in the opinion as “No. 1,” is brought by Jacob Muehlberger against Charles Schilling and others, to set aside a mortgage sale at which plaintiff was the purchaser, and to obtain a return of the surplus of the purchase price, deposited with the county treasurer.

Action by William McKay against the New York Central & Hudson River Railroad Company, to recover damages alleged to have been sustained by delay in transportation and delivery to the consignee of a quantity of potatoes,, shipped upon the defendant’s railroad, at Buffalo, N. Y. By the bill of lading of date April 5,1880, the defendant “received from William McKay, in apparent good order, articles: 296 barrels of potatoes; one barrel of flour, brand •Ionia;’ .two barrels of…

Action by Addison H. Delamater and Edward H. Everson against David Folz and others. Judgment was entered dismissing the complaint, and plaintiffs appeal.

<p>1. Appeal—Review—Weight of Evidence—Findings of Referee.</p> <p>Where the evidence is conflicting, the findings of a referee are conclusive.</p> <p>2. Evidence—Presumptions—Delivery of Note.</p> <p>The fact that plaintiff gave defendant his note for the price of a horse does not-show that defendant was not then indebted to plaintiff.</p> <p>8. Payment—To Third Person—Ratification.</p> <p>A statement by a creditor, when told of a payment to his wife, that “it was all. right” if it had been so made, amounts to a ratification of the wife’s authority.</p>

Action by Julia P. Ashley and Jeannie T. Hard, administratrices, etc., ■of William M. Ashley, deceased, against George W. Lamb, to restrain the collection, and to cancel and cause the discharge of record, of a judgment recovered against the plaintiff’s intestate. This judgment was recovered by Charles O. Ashley, June 19,1872, for $587.43, assigned by him to Portus M. Hinman, and by the latter to the defendant.

Action by Earl W. Bailey against Adam Daigler and others. Plaintiff appeals from an order denying his motion for the retaxation of costs.

• Action by Michael A. Pearce against Samuel K. Hester. Judgment for plaintiff in justice’s court was reversed in the county court, and plaintiff appeals.

Action by Edward J. Kelsey against the Pfaudler Process Fermentation Company, to recover a statutory penalty. Verdict and judgment for plaintiff, and defendant appeals.

Action by Wilson H. Howe against Perry Oyer for the wrongful conversion-of chattels, instituted before a j ustice, where judgment was rendered for plaintiff. Defendant appealed to the county court, which reversed the judgment,, and defendant appeals.

This action was brought by Frank E. Flanders against George W. Batten, to recover for the alleged conversion by the defendant of a quantity of personal property of the plaintiff.

Action by James Dorsey against Bosella E. Pike for the price of machinery-sold. Defendant appeals from a judgment entered on a verdict for plaintiff,, and from an order denying a motion for a new trial.

<p>Case submitted on an agreed statement of facts.</p>

Action by Henry Wright against Charles Boiler and Nicholas 0. Eecktenwait. Defendants appeal from judgment for plaintiff and from an order-denying a motion for new trial.

Action by Wesley Mandeville, receiver of Henry J. Beck, appointed in sup•plementary proceedings against Edward H. Avery and others, to set aside a mortgage executed by said Beck, and a foreclosure sale thereunder, as fraudulent, and to require defendant Avery to account for effects of said debtor received under said mortgage. There was a verdict and judgment for defend.ants, and plaintiff appeals.

Action oy Eunicy Birch against Lyman Hall. Defendant appeals from a judgment for plaintiff and from an order denying a motion for new trial.

Action by Fannie J. Bent, as administratrix, etc.-, against Mary E. Bent and Myron H. Bent, to set aside certain conveyances as fraudulent as to creditors. The complaint was dismissed, and plaintiff appeals.

<p>Appeal from special term, Oswego county.</p> <p>Mandamus on the relation of the village of Pulton against the board of supervisors of the county of Oswego. Respondent appeals from an order refusing its motion to set aside the alternative writ.</p>

Proceedings against George S. Willies, an attorney, charged with misconduct in office. This matter comes before the court in the following manner: An application was made before Mr. Justice Browne in an action pending, wherein one Murray was plaintiff and Jones defendant, to permit the defendant to serve a supplemental answer, pleading a deduction of $80, costs, to which the defendant claimed he was legally entitled.

Action by Nathaniel Whitman against Edward A. Lon ten and others to recover for rent reserved in a lease made by plaintiff to defendants. Verdict was directed for plaintiff, and defendants move for a new trial on the minutes.

Action by A. J. Kimball against A. S. Hewitt, mayor of the city of New York, John Newton, commissioner of public works, and Theodore W. Myers, comptroller. A motion to continue an injunction was denied, and plaintiff appeals.

Action by John Fischer and another against John J Reilly and another. A general verdict was returned for defendants. Plaintiffs’ motion for new trial was “granted, unless the defendants stipulate to change and amend the verdict * * * so that it would appear to have been rendered in favor of plaintiffs for $20 and interest,” and was denied in the event that such stipulation should be made. Defendants stipulated accordingly, and judgment was entered for plaintiffs for $21.35.

Action by Gerhard H. Bielc, administrator, etc., against Catherine Beese, to recover certain securities, alleged to belong íq the plaintiff as sucli administrator. Verdict and judgment for plaintiff, and defendant appeals.

<p>Action by Lawrence Drake against Samuel Drake and others, to construe the will o£ James Drake, deceased, by which a power of appointment was given -to Mary Hopeton Drake. The latter exercised the power by last will, which is construed in Wetmore v. Institution, ante, 179.</p>

Action by Thomas Powell against the New York Central & Hudson Eiver Bail road Company, for personal injuries received at a crossing. The court of appeals affirmed the judgment of the general term affirming a judgment of nonsuit entered by the circuit court. Plaintiff now moves for a new taxation -of the costs of an appeal to the court of appeals. For opinion of court of appeals, see 15 ÍT. E. Rep. 891.

<p>Appeal from special term, Steuben county.</p> <p>Action by the Savings Association of St. Louis against Edward W. O’Brien, administrator of John W. Coiiiogue, to enforce the personal liability of deceased as stockholder in the Illinois, Missouri & Texas Railroad Company. Defendant appeals from a judgment overruling his demurrer to the complaint, •which was upon the following grounds: (1) That the court has no jurisdiction of the subject of the action; (2) that the complaint does not state facts sufficient to constitute a cause of action; (3) that the complaint does not state facts sufficient to constitute a cause of action in favor of the plaintiff against the defendant.</p>

<p>Appeal from Steuben county court.</p> <p>Proceedings by the people, on the relation of Israel P. Grant and Lewis M.. Smith, against Samuel Warner, for contempt of court in refusing to testify in supplementary proceedings. Code Civil Proe. N. T. § 1348, provides that an appeal may be taken to the general term of the supreme court, or of a superior city court, from an order made in an action, upon notice by a judge out of court, in a case where an appeal might have been taken if the order had been made by the court. Prom an order adjudging defendant to be in contempt, and imposing a fine therefor, the latter appeals.</p>

<p>1. Appeal—Review—Weight of Evidence.</p> <p>In the absence of a certificate by the referee that the case contains all thevidence taken at the trial, the court, on appeal, cannot inquire whether his findings of fact are against the weight of evidence.</p> <p>•2. Principal and Agent—Indorsement for Principal’s Benefit—Liability.</p> <p>Though the note of a corporation be made payable to, and discounted and indorsed by, an agent, in his own name, yet, if it appear from the conduct of the parties that credit was given, not to the agent, but to the corporation, and that it was intended that the corporation should be bound by the indorsement, the corporation is alone liable.1</p> <p>•U. Trial—General and Special Findings—Notice of Protest.</p> <p>While a general finding that a notary’s certificate recited that notice of protest was mailed"“for E. S. Hubbell, directed, Buffalo, N. Y.; for B. S. Hubbell, Agt. for Butler Colliery Co., inclosed to E. S. Hubbell, ” is by itself evidence that the latter notice was inclosed in a letter containing the former, properly addressed, yet such finding is overcome by a special finding that the notice to Hubbell, as agent, had no place of address.</p>

<p>Appeal from court of sessions, Herkimer county.</p> <p>John D. Riordan was convicted of manslaughter in the second degree, and. appeals.</p>

<p>• Venue in Civil Cases—Transitory Actions—Justices op the Peace.</p> <p>Code Civil Proc. N. Y § 3869, provides that “an action must be brought before a justice of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county, except, * * * where the defendant is a non-resident of the county, it may be brought before a justice of the town or city in which he is at the time of the commencement of the action. ” Held, that the latter provision is not exclusive, and that a j ustice of the town where plaintiff resides has jurisdiction, though defendant is a non-resident, and was in another town in the same county when the action was commenced.</p>

<p>At chambers. Motion for injunction by the United States Illuminating -Company against Jacob Hess, Theodore Moss, Daniel L. Gibbens, and Abram S. Hewitt, mayor of the city of New York, constituting the board of electrical control for the city of New York; John Newton, commissioner of public works; and John Richardson, superintendent of the bureau of incumbrances.</p>

<p>1. Cemeteries—Denominational Cemetert—Right op Burial.</p> <p>A person purchasing the right of interment in a Roman Catholic cemetery acquires it subject to the condition that the person for whom it is exercised shall have-died in communion with the Roman Catholic Church.</p> <p>3. Religious Societies—Membership—Jurisdiction op Civil Courts.</p> <p>Whether a person died in the faith of the Roman Catholic Church is not a question within the jurisdiction of the civil courts, but must be decided by the ecclesiastical authorities.</p>

Action by William A. Persch against James A. Simmons. Defendant demurs to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.

<p>Mechanics’ Liens—Material-Men—Abandonment by Contractor.</p> <p>Laws N. Y. 1885, c. 343, § 1, provides that any person who furnishes material; for use in erecting, altering, or repairing any house, etc., with the consent of the owner or his agent, or any contractor or subcontractor, may have a lien upon such house, etc. The owner of certain premises made a contract for the completion of houses thereon, he to advance a sum of money, and on the fulfillment of the contract to convey the premises to the contractor for a named consideration. The contractor subsequently abandoned the contract. Held, that plaintifi had a lien upon, the premises for material furnished the contractor.</p>

<p>Action by Henry P. Ansorge against Rachel Kaiser. Defendant demurs to new matter set up in the reply as a defense to a counter-claim.</p>

George T. Fisher was* convicted of cotmterfeiting and imitating a trademark, and affixing the same to an article of merchandise, in violation of the statute. This trade-mark was devised by the “Gigar-Malcers’ International Union of America,” in the year 1880. It was known as the “Blue Label,” .and used as such upon boxes containing cigars made by the members of the union, and read as follows: “Issued by authority of the Cigar-Makers’ International Union of America.

<p>On motion to set aside service of summons.</p>

Action on a contract for the recovery of $480. Defendant set up a counterclaim to the amount of $200. The jury found a verdict in defendant’s favor for $1. The court taxed defendant’s bill of costs, but refused to tax plaintiff’s bill, and thereupon lie moved for a new taxation.

Gatlin and another against Charles T. Tucker, to review the decision of the special county judge of Chautauqua county, discharging the defendant' from imprisonment.

<p>Motion by defendant to set aside an order for the service of summons upon him by publication, on the ground of the insufficiency of the affidavit.</p>

At chambers. Application by the directors of the American Dramatic-Fund Association for dissolution of the corporation, on the ground that it was-for the interest of the members and beneficiaries that the fund be distributed,, rather than to pay small and decreasing annuities. The fund derived from, donations, subscriptions, etc., amounts to $55,675, only the income from, which, can be used.

Motion to set aside service of summons and complaint as having been made -when defendant was in the state as a witness in two other causes, and so was privileged. Service was had at a hardware store, No. 100 Chambers street, .New York city, about 2 or 2:30 p. m., June 15, 1888.

Action by the Union Dime Savings Institution of New York City against Francis Neppert and Otto Baumann, to enforce the liability of the defendant first named on a bond conditioned for the faithful conduct of defendant Bauman as “clerk, or in whatever other capacity he may serve” plaintiff. Trial to the court, and judgment dismissing the complaint. Plaintiff appeals.

The action is brought by George F. Yietor and others against Louis F Strooek, for goods sold and delivered. The answer is a general denial. Plaintiffs’ witnesses testified substantiallythat in March, 1880, upon invitation, the defendant, Samuel Stroock, (now deceased,) called at plaintiffs’ place of business in New York city, and partially examined certain goods, called “Chinchillas,” contained in 10 eases.

Action by the Gallison & Hobron Company against Henry Rawak. After ■the action was commenced, the parties entered into the following stipulation: “The plaintiff and defendant, Rawak, hereby agree to the following state of facts: This action was commenced by the service of a summons and complaint on defendant, Rawak, on the 24th day of December, 1888, for the recovery of a claim of $75, which is conceded to-have been due.

<p>Appeal from trial term.</p> <p>Action by Cyrus Scofield against Samuel Kreiser. From a judgment rendered for plaintiff, and from an order denying a motion for new trial, defendant appeals.</p>

<p>1. Tendee—What Amounts to—Checks.</p> <p>The debtor of a partnership tendered his check for the amount due payable to the firm. The partner to whom the check was tendered refused to accept it, unless it was made payable to his individual order. The debtor would not make the alteration, and immediately destroyed the check. Held that, as the creditor was under no obligation to receive a check of any description, he had a right to dictate the form of the check, and that no legal tender had been made.</p> <p>2. Same—Effect—Payment into Court.</p> <p>Where a debtor, after a tender to his creditor, which is declined, mingles the amount tendered with his other moneys, and uses it in his business, he must afterwards, on a tender and payment of money into court in an action brought by the creditor, also pay interest up to that time.</p> <p>•3. Same—Acceptance—Objection to Amount—Waiver.</p> <p>Where, after action is brought, a tender is made, and the money deposited in court, plaintiff has a right to take the money out of court, and an objection to the amount of the tender is not thereby waived.</p> <p>4. Same—Insufficient Tender—Judgment.</p> <p>Where a tender of money made and deposited in court after action brought is found to be insufficient in amount, a judgment will be directed for plaintiff for the entire amount claimed by him, and the amount tendered will be credited on the judgment after its entry.</p>

<p>Action by John E. Brandt against Parke Godwin, to enforce a statutory liability. Trial to the court. The act referred to in the opinion is Laws 1875, c. 611.</p>

Certiorari by James B. Reilly, a member of the police force of the city of Brooklyn, to' review t'he proceedings of James D. Bell, police commissioner, in dismissing the relator from the force.

Action by Henry C. Briggs against the Weidmann Cooperage Company for breach of an alleged contract of copartnership. The complaint was dismissed .at the trial, and plaintiff appeals.

<p>1. Landlord and Tenant—Bepairs—Waiver—Benewal of Lease.</p> <p>After the execution of a lease, the tenant was given permission to make certain alterations, and he promised to restore the premises 80 days before the termination of the lease. The tenant afterwards obtained a lease for an additional term, but nothing was said as to restoring the premises. Held, that the covenants of the first lease were not waived by the second lease, and that the tenant was liable for the cost of the restoration contemplated by the first lease.</p> <p>2. Same—Ambiguity in Lease.</p> <p>A covenant to keep the demised premises in the condition required by the health department is not ambiguous.</p>

Action by Charles W Fowler against John W. Holmes for an assault and battery on plaintiff by one alleged to have been a servan t of defendant. Judgment was entered on a verdict for plaintiff, and defendant appeals.

Action by Julia D Hildick against David T. Williams and Isaac M. Hunt, to recover certain bonds which had been deposited by plaintiff with Benjamin L. Guión, defendants’ testator, for safe-keeping, and thus came into defendants’ possession. The defendants were sued individually, and their only defense was that the bonds were not plaintiff’s, but belonged to Eleanor Hildick, for whom they held them.

<p>.'Evidence—Parol to Vary Writing—Sale—Statute of Frauds.</p> <p>In an action on a contract of sale required by the statute of frauds to be in writing, parol evidence is inadmissible to vary the writing.</p> <p>Appeal from jury term.</p> <p>Action by George Routledge and others against the Worthington Company •on a written contract of sale. Defendant appeals from a judgment on a ver•dict for plaintiffs, and from an order denying a motion for a new trial.</p>

Action by Edward Clark against Edwin W. Adams and others for an accounting. Plaintiff agreed to manufacture “available phosphoric acid” out of materials to be furnished by defendants, and the profits of the sales were to be divided. Judge O’Gorman, on the hearing at special term, delivered the .following opinion: “The rights and obligations of the parties to this action must be governed by the terms of the written agreement between them.

Action by Owen Donegan against Joel B. Erhardt, receiver of the New York City & Northern Railroad Company, for injuries received by plaintiff while in, defendant’s employ as brakeman. Defendant appeals from a judgment on a verdict in favor of plaintiff, and from ah order denying a motion for a new trial.

<p>Appeal from jury term.</p> <p>Action by Daniel M. Redmond against the American Manufacturing Company. Plaintiff appeals.</p>

Action by Eva Heaton against Leonard F. Tracy. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.

At chambers. On motion to continue an injunction. Action by Edward Weil against Yerman L. Munro. Plaintiff leased of the former owner a sub-cellar and half of a cellar or basement of a building oh Pearl street. There is a stairway from the basement to the store floor, and .a hoist-way from the basement to the sidewalk. The leased premises could be reached also by entering a building on Cliff street, running parallel to Pearl street, and passing through a middle building.

Action by the national Oleo Meter Company against Walter M. Jackson, tocona pel defendant to assign to plaintiff certain letters patent, and for other and further relief.

Action by Alfred H. Smith, Harrison B. Smith, Sigmund Saril, CarolineMarehand, Leonard March and, and the Illinois Watch Company, against William H. Payne, Frederick D. Steek, May L. Payne, Augusta L. Bamber, and Louise Hellis, and Hugh J. Grant, sheriff of the city and county of New York, to enforce plaintiffs’ rights as attachment creditors. Defendants appeal froin. an order continuing an injunction pendente lite.

Action by Daniel J. Sprague against Bartholdi Hotel Company, for breach of contract. Plaintiff appeals from a judgment dismissing the complaint, and from an order granting an extra allowance.

This was a motion by Anna Grangier against William D. Hughes and Henry J Morris, to compel them to pay a judgment recovered against them. The motion was denied, and plaintiff appeals.

Action by Peter Gasz against Michael Strick, for the possession of certain. real estate. Plaintiff moves to correct the findings of the court by striking .out the provision disallowing costs, and inserting a provision for judgment with costs.

Laws N. Y. 1885, c. 483, § 5, provides that the penalty of 10 per cent., imposed for n'on-payment of such a tax, shall not be charged where, by reason of claims made upon the estate, necessary litigation, or other unavoidable cause of delay, the estate cannot be settled within a year from the death of the decedent.

<p>Descent and Distribution—Legacy Tax—Intebest.</p> <p>Laws N. T. 1885, c. 483, § 4, provides that if a collateral inheritance tax is paid within one year from the death of the decedent, interest at the rate of 6 per cent, shall be charged; but, if not so paid, interest at the rate of 10 per cent, shall be charged from the time the tax accrued. Section 5 provides that where, by reason of necessary litigation, etc., the estate cannot be settled at the end of a year from the death of the decedent, the penalty of 10 per cent, shall not he charged, but 6 per cent, only shall he collected from the expiration of such year, etc. Held, that the intention was not, in case of an exception arising as provided in section 5, to remit the interest on the tax altogether for the year succeeding the death of the decedent, but to provide for a continuous rate of'6 per cent, from such death.</p>

Action by Feclc against Hayes, before a justice of the peace. One George Hayes appeared for defendant, but his appearance was objected to, on the ground that he was a minor. On his admission of that fact, the appearance was excluded, and judgment by default was rendered for plaintiff. Defendant appeals.

Application by David J. Whitney for mandamus to prevent Ernest Dowal from furnishing liquor as a part of meals to the participants in a French ball' during certain hours of the morning, and to compel him to close his restaurant during those hours.

<p>Appeal from special term, New York county.</p> <p>Action by William H. Meeks against James S. Berry. A demurrer to a counter-claim interposed by defendant was overruled, and plaintiff appeals.</p>

Action by the people on the relation of Hugh McCormack to review the action of the police commissioners of the city of New York in dismissing the relator from the police force. The charge upon which his dismissal was based was that he had assaulted one Joseph Danut, and did not arrest him.

Action by Caroline C. Piper against John L. Hoard to cancel two deeds to-certain land, or that the last deed be declared a deed to plaintiff or to the grantor in the first deed. The general term affirmed the decision of the special term1 overruling a demurrer to the complaint, which ruling was affirmed by the court? of appeals. 18 H. E. Kep. 626. Defendant then applied to the special term for leave to withdraw his demurrer, and answer over, which was denied.

Action for partition by Leocadie A. V. Cassagne against James M. Marvin and John Tayler Hall, individually, and, as trustees, etc., James M. Ostrander, .and others. The rights of the parties grow out of the agreement set out in Cassagne v. Marvin, 1 N. Y. Supp, 590.

<p>Actidh by the people against William J. H. Ballard and others. Code Civil Proc. H. Y. §§ 1781,1782, referred to in the opinion, are as follows: “1781. Action against Directors, etc., of a Corporation, for Misconduct. An action ,may be maintained against one or more trustees, directors, managers, or other officers of a corporation, to procure a judgment for the following purposes, .or so much thereof as the case requires: (1) Compelling the defendants to .account for their official conduct in the management and disposition of the .funds and property committed to their charge. (2) Compelling them to pay to the corporation which they represent, or to its creditors, any money, and the value of any property, which they have acquired to themselves, or transferred to others, or lost, or wasted, by a violation of their duties. 1782. By Whom Action to be Brought. An action may be brought, as prescribed in the last section, by the attorney general in behalf of the people of the state; or, except where the action is brought for the purpose specified in subdivision .third or fourth of that section, by a creditor of the corporation, or by a trus■tee, director, manager, or other officer of the corporation having a general :superintendence of its concerns.”</p>

<p>Vendor and Vendee—Rights and Remedies—Detective Title—Mortgage Sale.</p> <p>Under Code Civil Proc. N. V. § 2393, declaring that in foreclosure by advertisement, if the property consists of two or more distinct lots, they must be sold separately, and as many only shall be sold as are necessary to satisfy the amount due, a sale of several distinct lots as a whole confers such a doubtful title that one subsequently agreeing to purchase a part of the property from another who derives his right though such sale is not obliged to complete his contract, but may recover the amount paid thereon, where it is not shown that the sale of the whole was necessary to discharge the amount due.</p>

<p>Appeal from special term, New York county.</p> <p>Henry R. Kibbe and others obtained an attachment against Rosalie Herman and another on the ground of fraudulent disposition of defendants’ property. From an order refusing to vacate the attachment Henry S. Manning, defendants’ receiver, appeals.</p>

Bache McE. Whitlock appeals from an order of the special term, requiring him to appear before commissioners appointed by the high court of justice in England to take evidence in this state in an action pending before that court, wherein Charles G. Francklyn is plaintiff, and John Walter and George C. Wright, proprietors of the London Times, are defendants. Code Civil Proc.

<p>1. Malicious Prosecution—When Lies—Arrest in Civil Action.</p> <p>Where an order of arrest, alleged to have been obtained by a false and malicious’ affidavit, is vacated on the merits, and no appeal is taken from the order vacating it, an action for malicious prosecution may be maintained without waiting for a termination in favor of the party arrested of the action in which the order of arrest was obtained. Daniels, J . dissenting.</p> <p>2. Same—Pleading—Complaint.</p> <p>But a complaint in the action for malicious prosecution, which does not allege that no appeal has been taken from the order v'acating the order of arrest, is demurrable.</p>

Action by Dennis Nugent against the Atlas Steam-Ship Company, Limited. Judgment for plaintiff, defendant’s motion for a new trial denied, and it appeals.

Action by Daniel H Crouse, as executor of Charlotte B. Crouse, against Alonzo Rowley and others, on the following instrument: “We hereby, for value received, guaranty the payment of the within bond, or any deficiency, to be paid by each of us pro rata, according to the following amounts, to-wit: Rowley & Hey, $578.87; Daniel Crouse & Sons, $440.73; Thomas Owens, $337.80. Dated Utica, February 14,1880. [Signed] Daniel Crouse & Sons. Thomas •Owens.

Action by William H. Smith et al., partners, against Sophia Dodge, to recover for work and labor performed for defendant at the request of her husband, alleged to be her duly-authorized agent. Judgment for plaintiffs, and defendant appeals.

Savillian F. Traffarn sued Charles Getman in replevin before a justice. Defendant met the justice, with the plaintiff, the day of the suit, and said that he would not attend the trial; that plaintiff might have the goods, and he would pay the costs. At the time of trial, June 21, 1882, neither party being present, the judge entered judgment for plaintiff on his minutes.

Action by the Watts-Campbell Company, a corporation, existing under the-laws of New Jersey, against David G. Yuengling, Jr., and Catharine M. Yuengling, his wife, the D. G. Yuengling, Jr., Brewing Company, and the-Farmers’ Loan & Trust Company, to foreclose a mechanic’s lien filed under the mechanic’s lien law of New York, of 1885, for machinery erected in a building owned by defendant David G. Yuengling, Jr. The other defendants were alleged to include all those having…

Action by William F. Peck, a tax-payer, etc., against the city of Rochester and its officers, to restrain the execution of a contract with defendant Belknap as lamp inspector, and to restrain the payment of his salary as such, on the ground that his employment is in violation of thecivil service laws.

■On motion for confirmation of referee’s report. Benjamin F. Bexford, administrator, etc., of Benjamin F. Bexford, deceased, presented a claim to Abel Comstock, administrator d. 6. n. of William G-. Guernsey, deceased, for attorney’s fees due, and disbursements made by plaintiff’s intestate, which was referred under the statute. The referee reported $4,192.24 due the claimant.

Action by Frederick Wagner against John H. Perry, to reeover-a sum of money. 9?he special term granted an order canceling a notice of Us pendens filed by plaintiff, and plaintiff appeals. For opinion on former appeal, see 47 Hun, 516.

<p>Appeal from special term, New York county.</p> <p>Action by Mayer and others against Garret L. Hardy. Defendant appeals.</p>

<p>¡Master and Servant—Negligence of Master—Dangerous Premises.</p> <p>Plaintiff, an employe of defendant, descended, in the course of his work, a staircase which was securely fastened, but had often been moved to make room for work. A co-employe, being ordered to put a machine in position, moved the staircase a short distance to make room for the machine, and, while he stepped aside to get nails to fasten it, plaintiff ascended the stairs, which gave way, and he was injured. Held, that defendant was liable for the injury. Bartlett, J., dissenting.</p>

<p>Appeal from special term, New York county.</p>

The plaintiff, Hiram Lockwood, appeals from an order at special term, denying plaintiff’s motion to compel John O. Baker, respondent, to complete the purchase of lands struck down to him at public auction, April 9, 1888, at the partition sale herein. The purchaser refused to complete the purchase because of defects of title. The court at special term held the objections to the title to be good. 2 H. Y. Supp. 224.

Petition by Chauneey M. Brainerd to vacate an assessment for the con-str notion of a sewer. The petition was denied, and petitioner appeals. A statement of the case will be found in the opinion of the special term. 1 H. Y. Supp. 78.

Petition by William A. Wheelock to reduce an assessment to the extent to. which it is alleged the same exceeds the limitations of the statute. Tha petition was denied, and petitioner appeals.

<p>T. Set-Off and Counter-Claim—Pleading—Stipulations.</p> <p>In an action for money had and received, plaintiff charged that a common agent for plaintiff and defendant, who had been selling goods on commission for both, had turned over to defendant notes received in payment for plaintiff’s goods. On general denial by defendant, the parties stipulated that either might read in evidence entries from the account of the other contained in the common agent’s books, .and from these it appeared that each had received from the agent notes given in payment of the other’s goods, hut which had received the larger amount did not appear. Held that, under the stipulation, defendant was entitled to have the case treated as if he had pleaded a set-off, and a judgment dismissing the complaint was proper.</p> <p>-3. Assumpsit—Money Had and Received—Proof.</p> <p>Such judgment is also sustainable on the ground that, in an action for money had and received, plaintiff must show that he is entitled to the money sued for, ex aequo et bono.</p>

<p>Action by Hugh Fay against Nelson Waldron and William H. McGiven to ¿obtain a dissolution of partnership, and for an accounting.</p>

At chambers. On motion for change of venue. Action by the Cincinnati, Hamilton & Dayton Railroad Company against Henry S. Ives and George H. Stayner for a misappropriation of plaintiff’s funds. Code Civil Proc. H. Y. § 984, requires actions, excepting those mentioned in the preceding sections, to be tried in the county in which one of the parties resided at the commencement thereof.

Action in the county court of Cattaraugus county to recover possession of real property, which plaintiff claimed under a lease from the owner, and also to recover possession of blacksmith’s tools belonging to plaintiff, with damages for detention of both.

Action by James J. Graham against William J. Powers, William Sexton, and Nathan M. Heal, as trustees of a school-district. A demurrer to the complaint being overruled, with leave to answer within 20 days after notice, judgment was entered against defendants in default of answer, and from an order refusing to set aside the judgment defendants appeal.

<p>Mechanics’ Liens—Enforcement—Sale of Premises.</p> <p>It is no defense to an action to foreclose a mechanic’s lien for materials that defendant contracted to sell the land and advance money to the purchaser, who agreed to erect the building, on completion of which he was to give a bond and mortgage-on the premises, and receive a deed, neither the deed nor mortgage ever having been executed.</p>

Application by the Brooklyn Crosstown Railroad Company to enjoin the Brooklyn City Railroad Company from operating its cars over the tracks of the former company.

Action by Melinda Houghtaling against Benjamin Shelley for damages for personal injuries. The complaint was dismissed, and plaintiff appeals.

Action by David T. Bayles and others, commissioners of highways of the town of Brookhaven, against Seudder Jayne, to recover a statutory penalty for obstruction of a highway. Judgment for defendant, and plaintiffs appeal.

Action by Ludlow W. Valentine, an infant, who sues by George W. Bergen, his next friend, against Hermann T. Richardt, Susan A.^Austin, and Elizabeth’ H. Lunt, to set aside certain deeds and a mortgage. Detiiurrers to the separate-answers of defendants Austin and Lunt were sustained, and they appeal.

Action by William Tumbridge against Cassius H. Bead and Edward S. Stokes, to recover rent of certain premises in the city of New York. Verdict, and judgment for plaintiff, and defendants appeal. Eor the opinion of the-court of appeals on a former appeal in this case, see 16 N. E. Itep. 534.

On exceptions from circuit court, Kings county. Action by Warren H. Lewis against the Ocean Navigation & Pier Com•pany to recover the value of a building alleged to have been converted by defendant. The complaint was dismissed, and plaintiff’s exceptions directed to .be heard at general term.

The following are the findings of fact and conclusions of law filed by Lawrence, J., before whom the case was tried: “findings of fact. “(1) That the defendants the New York, Lake Erie & Western Railroad Company were, and still are, a corporation duly organized under the laws of the state of New York, having full authority to contract, as hereinafter stated. “ (2) That on February 19,1880, an agreement bearing date of that day was duly made and executed between John Lowber…

Application by Tallmadge Delafield, Jr., to enjoin the Commercial Telegram Company from violating a contract entered into by it with plaintiff, to furnish plaintiff, who thereby became a subscriber to the company, market quotations, etc., and to restrain the removal of certain reporting instruments known as a “ticker.” The contract, which was entered into January 27, 1885, for the term of one year, provided as follows: “The said company will furnish to its subscribers, by…

<p>Appeal from trial ter in.</p> <p>Action by W. Lyman Rathburn against Alfred D. Snow. Complaint dismissed, and plaintiff appeals.</p>

<p>1. Intoxicating Liquobs—Illegal Sales—Revocation oe License.</p> <p>Laws N. Y. 1857, c 628, which prohibits the sale of liquor to minors, contains no express prohibition of 'such sale by a licensee’s agent, but was amended by Laws 1877, c. 420, “so as to read as follows,” and, as amended, expressly prohibits such sale by agent. Meld that, though the statute (Laws 1870, o. 175, § 8, as amended by Laws 1873, c. 549, § 4) which authorizes the board of excise to revoke a license for violation of the act of 1857 was passed before the amendment of the latter act, the board has power to revoke a license for a sale of liquor to a minor by the licensee’s bar-tender.</p> <p>2. Same—Sale bt Agent—Knowledge oe Licensee.</p> <p>A sale to a minor by the bar-tender in the licensee’s presence, and with his knowledge, will authorize a revocation of the license, under the act of 1857 as it stood before the amendment.</p>

Action by William H. Morrell against the Long Island Railroad Company for breach of contract. A judgment for plaintiff was affirmed on appeal by defendant to the general term of the city court, and defendant now appeals to this court.

<p>Appeal from Minth district court.</p> <p>Action by Isaac Mebenzahl against James C. Fargo, as president of the American Express Company, for damages for the loss of a certain package of goods delivered by plaintiff to the company at the city of New York, addressed to Mrs. C. P. Frankel, Saugerties, M. Y., for carriage and delivery as addressed. Mrs. Frankel testifies that she never ordered the goods, never received them, or knew of their delivery, and that she never gave.authority to any person to order or receive them for her. The defendant’s driver, who had been in its employ but four days, and had never previously'been in the express business, testified that he tendered the package to Mrs. Frankel, and she refused to accept it; that he afterwards took the package to her store, and gave it to a man there, who he afterwards learned was Warschofsky; that he received it, paid the expressage, and signed for it in his own name. He did not inquire for his authority to receive it, nor did he ask for Mrs. Frankel. The delivery was made in the day-time, and the package was a large one. The door between the store and the little building back of it, in which the Fran Iréis lived, was open, and there were some ladies in there, who could see into the store. From a judgment for plaintiff, defendant appeals.</p>

t Action in the city court of New York by Andrew Powell against Hugh Lamb and Charles A Rich. The jury found a verdict for plaintiff, which, upon motion, was set aside, and a new trial granted. Plaintiff appealed to the general term of the city court, when the order was affirmed, and he now appeals to this court.

Action in the city court of ITew York city by David Porter Templeton • against Julius Wile and Isaac Wile. Judgment was entered for plaintiff on the report of a referee, affirmed on appeal to the general term of the city court, .and defendants now appeal to this court.

Action by Hamilton W. Shipman against Theodore W. Frech. The general term of the city court affirmed the judgment of the trial term in favor of plaintiff. Defendant appeals.

<p>Appeal from city court, general term.</p> <p>Action by William Wallace and others against Frederick D. Blake and others. The general term of the city court affirmed a judgment of the trial term, for plaintiffs, and defendants appeal.</p>

Action by James Blewitt against Stephen H. Olin for materials furnished to a building known as the “Rutland Flat.” The general term of the city court affirmed the judgment of the trial term for plaintiff, and defendant appeals to this court.

Action by the New York Lumber & Wood-Working Company, a corporation, to foreclose a lien on real estate of which the Seventy-Third Street Building Company and Franklin E. Robinson were owners, for material furnished for buildings thereon to William J. Merritt, George H. Tilton, and Robert A. Hollister, partners trading as William J. Merritt & Co., the contractors for :said improvements.

<p>Appeal from city court, general term.</p>

On reargument of an appeal from a judgment of the city court, general term. Memorandum decision on original hearing, post, 947 Code Civil Proc. N Y. § 3191, provides that an appeal may be taken to the court of common pleas foi the city and county of New York from an actual determination made by the city court at general term, where a final judgment has been rendered, on an appeal taken to the general term

<p>Appeal from judgment on report of referee.</p> <p>Action by Joseph F. Cullman and others against Herman Colell. There was a judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Third district court.</p>

<p>Appeal from a judgment of the city court affirming a judgment entered on an order made at the special term overruling a demurrer to the answer.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action for damages by John McBwen against the Northern New York Manufacturing Company. Judgment for plaintiff, and defendant appeals.</p>