Volume 30 — New York Appellate Division Reports

Appeal by the plaintiff,' The People, of the State of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Ulster on the. 14th day of December, 189Y, upon the decision of the court rendered after a trial at the Ulster Special Term dismissing the complaint.

Appeal .by the defendants, Mortimer Wade and others, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Fulton on the 15th day of November, 1897, relieving the plaintiff from a final order, entered in said clerk’s office on the 27th day of January, 1897, to the effect that, upon payment of $8,000,. purchase money, as' by said order directed, the plaintiff, The City of Johnstown, might enter into…

<p>Appeal by the defendants, James F. Beidleman and others, from a judgment of the Supreme'Court in favor of the plaintiff,, entered in the office of the clerk of the county of Chemung on the-6th day of October, 1897, upon the decision of the court rendered after a trial at the Chemung Special Term.</p> <p>In March, 1885, the defendants and appellants,. James F. Beidleman and Maria, his wife, executed and delivered a bond and. mortgage for the sum of $700 to Eliza Beidleman, the-aunt of James F. Beidleman.</p> <p>In July, 1895, Eliza Beidleman assigned such bond and mortgage to the plaintiff:, John D. Merkle.</p> <p>As to the consideration therefor the plaintiff testified as follows : ■“ I paid money for that assignment; I bought the seed or lent her money to buy the seed to seed the place before she left there, and I took it with the understanding of helping her. The only money I remember letting her have for this assignment was on the seed,, about $2.0. I think that was every penny in money; I think she came to my house about the léth of October, and she died in November, about four weeks afterwards. I parted with value for this mortgage other than the. twenty dollars in money;' I was to keep the old lady ; she came there to live; she was there four weeks.”</p> <p>And again he. testifies: “ I was to take her and take care of her and keep her until she died, and pay her funeral expenses and any bills that accumulated; I agreed to take her for what tliere.was in the mortgage and take care of her, and she was to come and live with ns, and I was to pay the funeral expenses and pay all there was before her death; I was to pay the doctor’s bills; and I was to furnish medicine and any help that was necessary to take care of her, * * * I did those things, and I paid for what she owed to two different parties after she. died.”</p> <p>Eliza Beidleman died sometime in November, 1895.</p> <p>This action was commenced by the service of a summons and complaint on'the 20th of November,' 1895, for the foreclosure of such bond and mortgage.</p> <p>The defendant James F. Beidleman, in his answer, claims that there was an agreement between himself and Eliza by which he agreed to take charge of her farm, attend to all her business, lease said farm, make contracts for the working thereof, and, in general, take charge of her business affairs, and that in consideration, thereof the said Eliza covenanted and agreed to transfer to him the bond and mortgage in question; that he performed his part of the contract, and he claims that, at the time of the transfer of the bond and mortgage to the plaintiff, he, the defendant James F. Beidleman, was, in equity, the owner and holder of said mortgage; and he asks as affirmative relief that the plaintiff be ordered and directed to transfer and assign said bond and mortgage to him, the said defendant James F. Beidleman.</p> <p>Upon the trial there was evidence tending to show that the defendant James F. Beidleman took care of the farm and garden of said Eliza during her lifetime, and looked after her business generally. Evidence was also given by several witnesses of declarations made by Eliza in her lifetime to the effect that the mortgage belonged to James F. Beidleman, and that she had given it to him in payment and satisfaction of services rendered. by him for her, or that she was to give or had agreed to give such mortgage to him.;. the testimony of the witnesses varies somewhat as to whether she said she had given it to him, or whether she said she was to give it to him. This evidence was received under objections by the plaintiff, and was thereafter, upon his motion, stricken out.</p> <p>There is evidence in the case tending to show that the plaintiff knew, before he took the assignment of the mortgage, of the claim of the defendant James F. Beidleman, that the same had been or was to be given to him by his aunt Eliza.</p> <p>The bond and mortgage seem never to have been delivered either to the plaintiff. or to the defendant .Beidleman, but was found with other of her effects after her death, and was then turned over to the plaintiff.</p> <p>The court rendered judgment in favor of the plaintiff, and from such judgment this appeal was taken.</p>

Appeal by Theron Iilock and others from an order of the County Court of Madison county, entered in the office of the clerk of the county of Madison on the 24th day of January, 1898, affirming the action of the sewer commissioners of the village of Oneida in making an apportionment and assessment for the expense of constructing a sewer in said village, and dismissing the appeals of the appellants herein.

Ceetiojsaei issued out of the Supreme Court and attested on the ■22d day of June, 1897, directed to Timothy L. Woodruff and others, Commissioners of the Land Office of the State of New York, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings in making a grant of land under water in Alexandria bay to Charles W. and Esther A. Crossmon, owners of the adjacent uplands.

<p>Appeal by the petitioners, Frederick D. Light and others, from • an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 2d day of February, 1898, denying their application for a writ of certiorari to review the action of the State Superintendent of Public Instruction in removing them from office as members of the board of education of the town of Dunkirk, in the county of Chautauqua.</p>

<p>; Appeal by the plaintiff, Edmund Deyo, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Greene on the 21st day of' September, 1897, upon the decision of the court rendered after a trial at the Greene Trial Term, dismissing the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and that the court had not jurisdiction of the subject-matter of the action.</p> <p>The action was commenced in June, 1890, and was brought by the plaintiff in behalf of himself and all others who are creditors of the estate of Burton G. Morss, deceased. It is alleged in the complaint that said Morss died at his residence in Greene county on the 13th day of September, 1884, leaving a large amount of real and personal property, some of which was situated, at his death, in the State of Hew York, and another portion was situated in the State of Pennsylvania, and more than sufficient to pay all his debts and obligations ; that he left a last will and testament whereby' lie .first ordered and directed his executors therein named to pay all his debts, and, second, devised and bequeathed to each of his five named children, being five of the defendants herein,, the one sixth part of all the remainder of his estate, real and personal, and to his executors the remaining one-sixth, in trust for a son, Hannibal K. Morss, with a provision that, in case of the death of said Hannibal, without issue, such sixth would, go to his other five children in equal shares; that Foster B. Morss and Leonidas W. Morss were named as executors ; that said will was duly.proved and admitted to probate by and before the surrogate of Greene county on September 20, 1884, and letters testamentary thereon were duly issued on the same day to Foster B. Morss, the other executor failing to qualify; that said Hannibal died before the testator, and without issue, and the other five children were the only heirs at law and next of kin and devisees of the testator; that the testator left numerous creditors ; that the plaintiff is a creditor to the amount of about $4,570, besides interest, and his debt has been allowed by the executor; that all the debts of the testator now remaining due amount, at least, to about $11,600, besides interest; that the creditors have been, and will he, unable, with due diligence, to collect their debts by proceedings in the proper Surrogate’s Court; and by action against the surviving wife, legatees and next of kin of said deceased, or either of them; and that the assets of the testator were not, and are not, sufficient to pay said debts, and that the real property, if any, which descended to the heirs, was and is not sufficient to pay said debts, and that the creditors have been, and will be, unable, with due diligence, to collect their debts by action against such heirs or any of them; that, on the 16th of August, 1886, the defendants Foster B. Morss, Burton G. Morss, Rosaline A. Tremper and Arabella L. Munn aliened and conveyed to the defendant Leonidas W. Morss a large quantity of real estate, of which said four named defendants were seized and possessed as devisees under said will, situated in Wayne and Pike counties in the State of Pennsylvania, and consisting of the undivided three-fifths of the lands and premises of which the testator died seized, including twenty-two parcels specifically described; that said Leonidas, in consideration of such conveyance, paid to each of the grantors the sum of $6,000, and the value of the interest of each one so conveyed was $15,000 ; that of the lands so devised and described, said Leonidas, at divers dates from December 22, 1885, to May, 1890, conveyed the undivided one-fifth of several of said parcels, the interest so alienated being of the value of $4,000; that all the personal estate and all the real estate of said testator within this State has been sold, and the proceeds of such sales have been applied to the payment of the debts of the testator, leaving unpaid debts as above stated-; that three years and upwards have elapsed since letters testamentary were granted within this State.</p> <p>The defendants severally answered, and' at the opening of the trial each moved to dismiss the. complaint upon the grounds: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) that the court has no jurisdiction of the subject of the action. These motions were granted, and from the judgment accordingly entered the plaintiff appeals.</p>

<p>Violation of the Liquor- Tax Law — change as to the weight which the good character of the defendant should ham—good faith of parties ordering a meal at which, the liquor was furnished.</p> <p>In a criminal action a charge by the court that “ prool of good character is of absolutely no. weight as-a defense, if the jury are satisfied beyond a reasonable -doubt, arising from all the evidence; that a man charged with crime has actually committed it,” is not erroneous, as by the use of the words “ all the evidence,” the jury is necessarily called upon to consider the evidence of the man’s character.</p> <p>In an action in which the defendant was convicted of selling liquor upon Sunday, in violation of the provisions of section 31 of the Liquor Tax Law (Chap. 112 of the Laws of 1896, as amended by chap. 312 of the Laws of 1897), the main questions were whether the defendant kept a hotel, and, if so, whether the liquor sold was sold to a guest of the hotel.</p> <p>Held, that the element of good faith was involved, and that the court did not err in submitting to the jury the evidence as to the good faith of the parties who . were claimed to have ordered the meal, in the course of which it was alleged by the defendant that the liquor was -furnished1.</p>

Appeal by the defendants, John Hutton and others, from a • judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 6th day of October, 1897, upon .'the verdict of a jury for $200, and also from an order entered in said clerk’s office on the 6th day of October, ,1897, denying the defendants’ motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the 26th day of October, 1897, directed to the Board of Railroad Commissioners of the State of New York, and to the individuals composing said board, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings in denying the application of the relator for a reopening and rehearing of the petition of the Forty-second Street, Manhattan-ville and St.…

<p> Reference of ail the issues —plaintiff submitting to a nonsuit cannot require the ' defendant to prove his counterclaim error of the referee, how reviewed. </p> <p>Semble, that where all the issues in an action have been .referred, and upon the trial the plaintiff submits to a nonsuit, he cannot require the defendant to pro- . ceed with the proof of a counterclaim which he has set up in his answer and which the plaintiff has denied in his reply.</p> <p>If this.be not so .the plaintiff’s remedy for an error committed by the referee' in this respect is by- appeal and not by an application at Special Term to have the judgment entered upon the referee’s report vacated and the case sent back to the referee.</p>

<p>Appeal by the defendant, James A. Roberts, as Comptroller of the State of New York, from an order of. the Supreme Court, made at the Rensselaer Special Term, and entered in the office of the clerk of the county of Rensselaer on the 7th day of January, 1898, ordering that a peremptory writ of mandamus issue, directed to the defendant, commanding him forthwith to credit the current account of the relator in the office of the Comptroller of the State of New York with the sum of $5,789.04, being the amount of the credit of the Panama Railroad Company appearing in the current account of that company, and assigned by it to the relator.</p>

Appeal by the defendants, Edgar D. Sherman and others, as executors, etc., of Isaac 0. Sherman, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Madison on the 5th day of October, 1897^ upon the report of a referee. This was a statutory reference of a disputed claim against the estate of a decedent. .

Appeal by the plaintiff, Catherine Fisher Wieland, as administratrix, etc., of Frederick G-. Wieland, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 4th day of September, 1897, upon a nonsuit granted by the court after a trial at the Albany Trial Term, and also from an order entered in said clerk’s office on the 31st day of.

<p>Edward Winslow Paige and Lafayette B. Gleason, as Receiver of the Saratoga Gas and Electric Light Company, Respondents.</p> <p> Beceivers of a corporation■—one in a mortgage foreclosure, the other in a sequestration suit—relative rights to amounts due for products of the corpomtion. </p> <p>A receiver of a gas company, appointed upon the foreclosure of a mortgage covering all the corporate property, real;personal and mixed, including “all lands * * * and dioses in action, whether, now owned, or hereafter acquired or constructed tw said gas company, together with the appurtenances thereto, and all rents, tolls, issues, income and profits of said gas company, present and future,” is entitled, as against a receiver appointed in a sequestration action based upon a judgment recovered against the company, to receive moneys due the gas company “ for manufactured gas and electricit)r, the produce of its labor, and sold and' delivered by it to various parties, and the consideration therefor due to it before the appointment of either receiver,”</p>

Appeal .by the defendant, Ralph Glasgow, from an. order of the Supreme Court, made at the Fulton Trial Term and entered in the office of the cleric of the county of Fulton on the 28th day of August, 1897, granting the plaintiff’s motion for a new trial made Upon the minutes,the jury having rendered a verdict in favor of the defendant.

Appeal by the defendants, James H. Westcott and another, from a judgment of the Supreme Oourt-in favor.of. the plaintiff, entered in the office of the clerk of the county of Saratoga on the 2d day of December, 1897, upon the decision of the court rendered after a trial at the Saratoga Trial Term before the court without a jury.

Cross-appeals by the plaintiff, John Roberts, and by the. defendant, The State of New York, from a judgment of the Court of . Claims of the State of New York in favor of the plaintiff, bearing date the 25th day of September, 1897, and entered in the office of the clerk of said court, upon the decision of the court rendered after a trial.

Appeal by the plaintiff, Stephen 0. Darrow, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Washington on the 23d day of September, 1897, upon the report of a referee.

<p>Duty, of a consignee to keep accounts of sales made —- effect of Ms willful destruction of Ms books — admission of fact made on a settlement. ■</p> <p>Under an arrangement by which meats are to be sold by a consignee at his own risk, at prices to be fixed by him, and the proceeds, less commissions, are to be remitted to the consignor, it is the duty oí the former to keep books containing a correct account of the sales of meat consigned to him, and the credits and allowances to which the consignor is entitled, which should be subject to the inspection of the consignor; where an examiner, employed by the consignor, after a partial examination of such books by which he ascertained the prices received for sixty-seven carloads of the meats, has been refused further access to the books and they are afterwards willfully destroyed by the consignee, it is ■ not improper to compute the amount due to the consignor for the meats whose selling piice as recorded in the books had not been ascertained before their destructiqn, upon the. basis, of the sales of the sixty-seven, carloads, and when the consignee concedes that the prices entered in the books were not the prices actually .received'.for the. meats sold, and .that he had always conducted" the business in the same way that he did in. reference- to-the- sixty-seven carloads, a shortage may he. allowed for the meats, the account o.f the sales of which .has not been examined, at the same rate as in the case-of such sixty-seven carloads..</p> <p>An admission of fact by a party is evidence against him, although made in a conversation. had respecting a compromise of a controversy.</p>

Appeal by the defendants, John Davenport, Sr., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 6th day of July, 1897, upon the decision of the court rendered after a trial at the Delaware Special Term.

Appeal by the relator, William H. D. Sweet, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Albany on the 18th day of May, 189Y, denying the relator’s motion for a peremptory writ of mandamus to compel the said Henry H. Lyman, State Oommissioner .of Excise of the State of New York, to reinstate the relator in the position of special agent in the excise department.

Appeal by the defendant, Lovisa H. Chapin, fi-oin so much of an order of the Supreme Court, made at the Washington Special-Term and entered in the office of the clerk of the county of Washington on the 28-th day of January, 1898, as permits the plaintiff to bring the action ovunc pro tunc.

Certiorari issued out of the Supreme Court and attested on the 26th day of January, 1897, directed to James A. Roberts, as Comptroller of the State of New York, requiring him to certify and return to the office of the clerk of the county of' Albany all and singular his proceedings, de'eMbns and actions in assessing the capital stock . employed by the relator in the State of New York for. the fourteen years ending November 1, 1895, aggregating '$1,126.25, and in refusing to…

Appeal by the plaintiff, Mary Ryan, as administratrix, etc., of Thomas Ryan, deceased, from a judgment of the Supreme Court in ' favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 13tli day of December, 1897, upon the dismissal of the complaint by direction of the court after a trial at the Rensselaer Trial Tenp.

Appeal by the defendant, Lewis F. Eckler, as assignee of Glidden A. Dewandelaer, for the benefit of his creditors^ from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Albany on the 16tli day of February, 1898, upon the decision of the court rendered after a trial at the Albany Trial Term before the court without a jury.

Appeal by the plaintiff, Edward A. Hodges, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 14tli day of October, 1897, upon the dismissal of the complaint by direction of the court after a trial at the Saratoga Trial Term.

Appeal by the defendant, Minnie 0. Graves, from an order of the Supreme Court, made at the Washington Special Term and entered in the office of the clerk of the county of Saratoga on the 13th day of October, 1897, restraining the appellant, Minnie C. Graves, from prosecuting until the decision, in this action, an action brought by her against Byron Pond, as executor, etc., of Alembert Pond, deceased, with notice of an intention to bring up for review upon such appeal an…

<p>Negligence — explosion of a flywheel which has been-used two years is not presumptive evidence of negligence — newly-discovered evidence after a second, trial.</p> <p>The mere fact that a flywheel, purchased from the manufacturers thereof, which has been need for two years in generating the electrical power for a street railway, explodes at the end of that time, is not prima facie evidence of negligence. Merwin, J., dissented.</p> <p>"What evidence, discovered after the second trial of an action, is insufficient to justify the granting of a new trial, considered.</p>

<p> Judgment entered, by a justice of the peace—when it cannot be sustained, either as a judgment by confession or as a judgment by default—power of the County Court over it. </p> <p>Where parties, between whom no action is pending, appear oí their own motion • before a justice of the peace and execute papers which purport to be a' confession of judgment, but which do not comply with the formalities prescribed in section 3011 of the Code of Civil Procedure, no jurisdiction to enter judgment is thereby conferred upon the justice, and a jxidgment entered thereon by him cannot be sustained as one entered upon the voluntary appearance of t.he parties and joinder of issxxe under sections 2876 and 2934 of the Code of Civil Procedure, since there was no joinder of issue or summons served, nor under sections 2988 and 2989 of such Code, since judgment by default can be taken only after a summons has been served, or, if not served, after issue joined.</p> <p>Where a transcript of such a judgment has been filed in a county clerk’s office, the County Court has jurisdiction to set aside an execution issued thereon.</p> <p>The County Court is not bound by the transcript, and has the right to look into the proceedings in the Justice’s Court to see whether that coxirt proceeded within its'jurisdiction. . . ..</p> <p>What papers are insufficient to confer jurisdiction upon the justice of the peace, considered.</p>

Appeal by the plaintiff, Charles J. Oaks, from a judgment of the Supreme Court in favor of the defendant, entered in the office .of the clerk of the county of Albany on the 13th day of November, 1897, upon a nonsuit granted by the court after a trial at the Albany Trial Term. - The action was to recover $20,000' and interest thereon .upon the following- contract: “ In consideration of the sum of twenty thousand dollars in U. S. currency paid to me by Charles J. Oaks, I, 1ST.…

Certiorari issued out of the Supreme Court and attested on the 28th day of May, 1897, directed to James A. Roberts, Comptroller of the State of Hew York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings in assessing a tax against the relator on $125,000 of capital stock, in the sum of $3,000, with a penalty of $300. The relator is a domestic corporation organized under chapter 116 of the Laws of 1832.

Appeal by the defendant, Harriet M. Ash, by Benjamin W. File, her guardian ad litem, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Rensselaer on the 10th day of February, 1898, upon the report of a referee, as subjects her estate in the mortgaged premises to the lien of the mortgage sought to be foreclosed in the action.

Appeal by the defendant, The Syracuse, Binghamton .and Hew York Railroad Company,.from an order of the Supreme Court,, made ■at the Broome Special Term and entered, in the office of' the clerk of the county of Cortland on the 14th day of March, 1898, granting, the plaintiff’s motion to ¡examine two officers of the; defendant before trial,

Appeal by the plaintiffs, Horace Salisbury and others, from an order of the Supreme Court, made at the Washington Special Term and entered in the office of the clerk of the' county of Washington on the 20th day of December, 1897, setting aside the verdict of a jury in favor of the plaintiffs and directing a new trial..

Appeal by the defendants, Loftus D. Hatton and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day of October, 1897, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 18th day of October, 1897, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, Richard Goodwin and Henry G. Goodwin, from a judgment, of the Supreme Court in favor of the plaintiff, .entered in the office of the clerk of the county of Kings on the 15th day of June, 1897, upon the verdict of a jury rendered-by direction of the court after a trial at the Kings County Trial Term.

Appeal by the plaintiff, The People of the State of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the- office of the clerk of the county of Richmond on the 17th day of March, 1898, denying a motion made by the counsel to -the corporation of the city of New York-to modify a certificate of a justice of the Supreme Court, certifying the compensation for services of counsel assigned to defend a prisoner.

Appeal by the plaintiff, Frederick Emiliusen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 15th day of June, 189&, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

Appeal by the plaintiff, Arthur Berry, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 27th day of March, 1897, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

Appeal by Joseph Fitch, the referee appointed in a judgment in the above-entitled action, to sell the property therein described, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 19tli day of February, 1898, directing him, as referee, to pay thirty dollars, as costs and an allowance,'to Elmer G. Story, the guardian ad litem for Lena Schrell, an infant defendant.

<p>Appeal by Adelia A. Taylor, as administratrix, etc., of Delos L. Taylor, deceased, from an' order of the Surrogate’s Court of the county of Orange, entered in said Surrogate’s Court on the 3d day of January, 1898, requiring her to render an account of her proceedings as such administratrix.</p>

Appeal by the defendant, The City of Brooklyn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of December, 1897, upon the verdict of a jury for $1,800, and also from an order entered in said clerk’s office on the 24th day of' December, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Elizabeth 0. Tallman and another, from a judgment of the County Court of Rockland county in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 21st day of February, 1898, upon the verdict of a jury rendered by the direction of the court, and also from an order entered in said clerk’s office on the 8th day of April, 1898, denying the defendants’ motion for a new trial made upon the minutes.

. Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24th day of January, 1898, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 21st day of February, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Frank L. Woods, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 20th day of December, 1897, upon the. dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s offi.ce on the 10th day of December, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Silas A. Underhill, from a final' judgment of the County Court of Kings county in favor of the defendant, entered in . the office of the clerk- of the county of Kings on the- 13th day of January, 1898, dismissing the complaint, with notice of an intention to' bring up for review upon such appeal ■an interlocutory judgment, of the County Court of.

<p>• Appeal by the relator, William H. Quinn, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 28th day of March, 1898, denying the relator’s motion for a peremptory writ of mandamus to compel the respondents to prepare, certify and submit to the comptroller of the city of New York a proper pay-roll certifying that the relator is entitled to be paid the sum of $291.61 for his salary for the month of January, 1898:</p>

<p>Appeal by the defendant, the Nassau Electric Railroad Company, from a judgment, of the Supreme Court in favor of the plain-tiff, entered in the office of the clerk of the county of Kings on the 13th day of January, 1898, upon the verdict of á jury for $7,500, -and also from an order, entered in -said clerk’s, office on the 27th day of January, 1898, denying the defendant’s motion for" a new trial made upon the minutes.</p> <p>The action was .-brought to recover damages for personal in juries sustained by the plaintiff through the alleged negligence of the defendant.- , ... •</p>

<p>Qommittee of an incompetent—a proceeding to appoint him and a proceeding to remove him are separate proceedings — order made in one proceeding staying the other — right of the Appellate Division to vacate such order on an ex parte application.</p> <p>A proceeding to remove a- committee of the person and estate of an incompetent person is not a part of the original proceeding by which such committee was appointed.</p> <p>An order in one proceeding staying the prosecution of the other proceeding is in substance and effect an injunction and not a stay.</p> <p>The Appellate Division has power, upon an ex parte application, to vacate the order staying the proceedings.</p> <p>Goodrich, "P. J., dissented.</p> <p>Ex parte application to yacate an injunction.</p>

Appeal by the defendants, William Kelly and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of. Kings .on the 12th day of April, 1898, denying their motion to compel the plaintiffs to separate and number the several causes of action alleged to be set forth in the complaint. '

Appeal by the defendant, Louis Herbst, from a, judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the loth day of January, 1896, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the 14th day of January, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Motion by the New York, New Haven and. Hartford Railroad Company for the appointment of a referee to take proof of the facts and circumstances upon which the common council of Mount Vernon acted in passing an ordinance for the extension of North Third avenue in said city across the railroad tracks of the New York, New Haven and Hartford Railroad Company.

Appeal by the defendant, Martin R. Mead, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24th day of May, 1897, upon the verdict of a jury.

Appeal- by Charles G. Coffin, as special guardian of Nellie II.

Appeal by the defendant, John L. Shea, individually and as commissioner o'f bridges of the -city of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of February, 1898, granting an injunction restraining him from interfering with the construction of the plaintiff’s pneumatic tubes across the New York and Brooklyn Bridge.

Appeal by James A. Roberts, as Comptroller of the State of Hew York, and Charles L. Mead, as county treasurer of Orange county, from an order of the Surrogate’s Court of the county of Orange, entered in said Surrogate’s Court on the Ith day of February, 1898, modifying an order made on January 4, 1898, fixing the transfer tax upon the estate of S. Maretta Thrall, deceased.

Appeal by the defendant, Edward L’Estrange Phipps, from a judgment of the Supreme Court in favor of the plaintiff and the defendant, Isabella M. Burton, entered in the office of the clerk of the county of Westchester, on the 13th day of September, 1897, upon the report of a referee.

<p>Adverse possession — character of the inclosure required — presumption of entry in siiboi'dination to the legal title—possession under a tax lease is not adverse—possession under a quitclaim deed from the tax tenant—recording of the deed—evidence establishing a lost deed.</p> <p>In the absence of proof showing under what claim the adverse claimant entered upon land, it must he assumed that he entered in subordination to the legal title.</p> <p>In order to establish a title by adverse possession, it is not necessary that the property in question should be fenced on every side. A natural harrier on one side, and the inclosure of the ground by fences on the other sides, is sufficient ■ to comply with the statute, and it is not necessary that there should be a fence between the land in question and other lands of the occupant.</p> <p>■Possession under a claim based upon a tax lease for a term of years is not adverse to the owner of the fee of the land, and will not, by lapse of time, create a valid title.</p> <p>Evidence that a party, entering under a quitclaim deed of lands given by one who had acquired a tax lease thereof for a term of years, did so under an agreement for the purchase of the whole premises, and that he entered thereon believing that he was the owner in fee, and that he always so claimed, is sufficient to warrant the finding of a possession on his part, not as a tax tenant, but as the owner of the fee.</p> <p>The mere fact that the deed was not recorded is immaterial.</p> <p>Evidence sufficient to establish a lost deed, considered.</p>

Appeal by the defendant, the Northwestern Life Assurance Company, from a judgment of the Supreme Court iii favor of the plaintiff,' entered in the office of the clerk of the county of Orange on the :15th day of November, 1897, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the 11th day of November, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, ITenry M. Heimion, from a .judgment of the County. Court of Rockland county, entered in the office of the clerk of the county of Rockland, on the 8th day of February, 1898, upon the decision of the court rendered after a trial at a Special Term of said court. ...

Appeal oy the defendant, The Henry Zeltner Brewing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 22d day of January,1898, upon the verdict of a jhry for $600, and also from an order, entered in said clerk’s office on the 30th day of December, 189Y, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Austin B. Fletcher, the petitioner in the above-entitled proceeding, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Westchester on the 6tli day of July, 1897, confirming the report of a referee appointed to take proof concerning the several liens upon lands held by the receiver, and upon such proof, to determine their respective priorities.

Appeal by the defendants, Thomas J. Murphy and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 5th day of February, 1898, granting the plaintiff’s motion for an inspection of the defendant company’s books.

Appeal by the defendant, The City of Brooklyn, from a judg-^ ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of November, 1897, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 9th day of November, 1897, denying the defendant’s' motion for a new trial made upon the minutes.

Appeal by the defendant* Albert JMauterstock, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 11th day of November, 1897, upon the decision of the court rendered after a trial at the Dutchess County Special Term.

Appeal by Charles II. Steinway and others, as executors, etc., of-William Steinway, deceased, from an-order of the Surrogate’s Court of Richmond county, entered in said court on the 18th day of February, 1898, requiring the appellants to render an account of the proceedings of the said William Steinway, as trustee of the estate of Balthasar Kreisoher, deceased, and requiring them to deposit certain bonds witii the Farmers’ Loan and Trust Company, or show cause why said bonds…

Appeal by the defendant, Henry B. Jones,-from a judgment of. the -County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 8.th -day of January, 1898, upon the verdict, of a jury rendered by direction of the court, and also from an order, entered, in said. clerk’s office on the 6th day of January, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Joseph E. .Sinnott, individually^ and as sole surviving partner of the firm of ■ Moore & Sinnott, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the -30th day of March, 1898, directing a reference of the issues in the action.

Appeal by Walter E. Watts, a creditor of the above-named, corporation, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of February, 1898, denying his motion for an order directing the receivers of said corporation to pay a sum claimed to be due to him for wages as an employee of The American Lace and Fancy Paper Works.

Appeal by the defendant, John ¡D. Bennett, from an order of the County Court of Kings county, entered in the office of the clerk of the county of Kings on the 23d day of February, 1898, affirming a judgment of a justice of the peace of the former city of Brooklyn, in favor of the plaintiff. ■ . ■

Appeal by the defendant, Catharine A. C. G. Rehfeldt, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the l'lth day of May, 1897, upon the report of a referee. The action was brought to foreclose a mechanic’s lien.

<p>Appeal by the defendant, Allen Taylor, from a judgment of' the 'City Court of Yonkers in favor of the plaintiff, entered in the office •of the clerk of said court on the 24th day of November, 1897, upon the decision- of the court rendered after a trial before the court without a jury, and- also from an order, entered in said clerk’s office on the 24th day of November, 1897, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Will— when a provision for a widow is not in lieu of her dowet\</p> <p>A testator gave by his will the residue of his estate, real and personal, as follows: “Equally to my said son, Lulce Eldert, and niy said daughter, Emma Gloss,, and my said wife, Julia Eldert, share and share alike/’ and by a subsequent clause provided: “ I hereby declare that it is my intention,-and I hereby will, that all the said several devisees shall, respectively, hold the said premises so devised to them, respectively, with all the hereditaments and appurtenances to them belonging, to themselves, respectively, and to their respective heirs and assigns forever, absolutely.” The will contained no statement that the devise to-the widow was in lieu of her dower. .</p> <p>Held, that the widow took dower in addition to the® devise.</p>

Appeal by the defendant, Mary Collins, from a judgment of .the .County Court.of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of December, 1897, upon the decision, of the court rendered • after a. trial before the court without a jury, adjudging that the plaintiff recover from the defendant the sum of $980 and the interest accrued thereon, now on deposit in the Hamilton Trust Company of the city of Brooklyn,…

<p>Appeal by the defendant, The Mutual Union Association of Rochester, N. Y., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of July, 1897, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the 6th day of August,' 1897, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Mary E.'Veerhoff, as executrix, etc., of Ernst H. Veerhoff, deceased, from two orders of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 6tli day of. April, 1896, denying the plaintiff’s motion for the appointment of a receiver of the rents of the premises- described in the complaint herein. These actions were brought to foreclose two mortgages.

Appeal by the defendant, Byron E. Hazen, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Putnam on the 15tli day of November, 1897, upon the verdict of a jury, and also from an order denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Julia S. Thom, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of May, 1S97, upon the verdict of a jury, and also from an order entered in said clerk’s-' office on the 5th day of June, 1897, denying the said defendant’s.' motion for a new trial made upon the minutes. .

<p>Witt — trust estate — testamentary directions for the investment thereof held to apply to the accumulated income as well as the principal,</p> <p>A testator, who devised his residuary estate to trustees with direction that it he divided into four equal parts to represent each of his living children, respectively, by the 7th clause of his will directed the trustees “to hold and invest each share and apply the income therefrom as it shall be -received, * * * or so much thereof as shall be necessary to the support, maintenance and education of the child whom it represents, during the minority of any child and until such child shall attain the age of twenty-one years, when all accumulations of interest shall cease,, and the accumulated interest shall be paid to such child.”</p> <p>By a subsequent clause the trustees were directed to invest-“such funds as they may have in their hands forming part of my estate ” in certain specified securities, including United States bonds and railroad bonds and the capital stock of corporations. The testator added: “This clause of my will to he taken as advisory and not directory, and temporary loans may be made on first-class bond or stock securities with ample margin.” •</p> <p>Held, that, in view of the difficulty'of keeping the estate of the testator, which was a very large one, invested within the limits of trust investments, and of the absence of any apparent reason why the testator should authorize the incurring of greater risks in the investment of the capital than in that of the income of the estate, and of any provision of the will calling for any different rule of investment between the two, it must be considered that the accumulated income was within the terms of the will, and the intention of the testator, included in the expression' a “part of my estate,” and that the trustees were authorized to invest such income in the kind of securities mentioned in the will.</p>

<p>Appeal by the plaintiff, The New York Mail and Newspaper Transportation Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of March, 1898, denying its motion to punish the defendant, John L. Shea,, and others, for contempt of court in disobeying an injunction order • made in the above-entitled action.</p>

Appeal hy the plaintiffs, Charles Deutermann and others, as executors, etc., of Charles Deutermanu, deceased, from an order of the Supreme Court, inade at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 8th day of March, 1898, as resettled by an order - entered in said clerk’s office on the 28th day of March, 1898, correcting a finding of fact.

Appeal by the plaintiff, Maud Cruikshank, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of March, 1898, modifying an order theretofore entered, directing the defendant to serve a bill of particulars.

Appeal by the defendant, Edward 0. Beirne, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 13th day of January, 1897, upon the verdict' of a jury for $2,000, and also from an order-entered in said clerk’s office on the 28th day of January, 1897,. denying the defendant’s motion for a new trial made upon the-minutes. This action was brought to recover damages for malicious prosecution.

Appeal by William C. Figner from an order of the County Court of Westchester county, made at a Special Term thereof and entered in the office of the clerk of the county of Westchester on the 15th day of January, 1898, denying his motion to vacate an order for, his examination as a third party in supplementary proceedings, and also from an order bearing date the 29tli day of January, 1898, and entered in said clerk’s office, resettling such order.

Appeal by the defendant, Supreme Oommandery, United Order of the Golden Cross of the World, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 21st day of April, 1897, upon the verdict of a jury, and also from an order entered in said cleric’s office on the 6tli day of May, 1897, denying the defendant’s motion for a new trial made upon the minutes.

<p>Adulterated vinegar — evidence to show the adulteration must conform to the statutory test.</p> <p>In an action brought to recover the penalty prescribed for a violation of chapter 338 of the Laws of 1893, which provides that cider vinegar must not have less than four and one-half per cent of acidity, nor “less than two per centum of cider vinegar solids on full evaporation over boiling water,” a statement of a chemist, called as a witness, that the sample tested by him contained one and sixteen one-hundredths per cent of vinegar solids, not accompanied by any statement that this result was obtained by him “ on full evaporation overboiling water,” is not sufficient to show an application of the test required by law to be made in order to establish a violation of the statute.</p>

Appeal by the defendant, the Anglo-American Savings and Loan Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of September, 1897, upon the verdict of a jury for $350, and also from an order bearing date the 27tli day of September, 1897, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

<p>Negligence — collision with a coach at a railroad crossing —failure to give signals —■ insufficient signboard.</p> <p>A coach, driven along a macadamized highway, crossed by a railroad track at a point where the train dodged out from behind a dense piece of forest and crossed the highway upon tracks planked in such a manner that a person approaching them could scarcely discover any break in the smooth surface of the road, was run into by a train approaching this crossing upon a down grade, with steam cut off from the engine, without the customary blowing of the whistle and with but a slight ringing of the bell, not calculated to warn persons of the approach of the train. The track was obscured from the view of those approaching it for a distance of a quarter of a mile until they came within thirty feet of the track, and the signboard, indicating a railroad crossing, supported upon a single pole and partially obscured by intervening telegraph poles, was not of the conspicuous character required by the law.</p> <p>In an action brought by a passenger on the coach, injured by such collision, who had no knowledge of the highway, nor any reason to apprehend danger; who was seated fifteen feet away from the driver of the coach, and had no authority over him as regards the management of the horses, a verdict was rendered in favor of the plaintiff.</p> <p>Held, that the Appellate Division was not justified in disturbing the finding of the jury, or in reversing the order of the court, which denied a motion for a new trial.</p>

<p>Nemoral, on Janucm'y 20, 1898, of an assistant elerk of a Justice’s Court of Brooklyn, made assistant clerk of the 3Iunicipal Court of New York by the Greater New York charter — appeal from, an alternative writ of mandamus.</p> <p>An assistant clerk of one of the Justices’ Courts of the city of Brooklyn, changed by the Greater New York charter (Chap. 378, Laws of 1897) to an assistant clerk of the Municipal Court of the city of New York for the first district of the borough of Brooklyn, was, on the 20tli day of January, 1898, removed from office by the justice of the Municipal Court because of an alleged neglect of duty and absence from his office, and another person was appointed in his place for a term of six years, under section 1373 of the act.</p> <p>On an application to the Supreme Court an alternative writ of mandamus was ordered to issue, directed to the said justice of the Municipal Court, requiring him to “certify a payroll of his said court for the month of January, 1898, and specifying therein the sum of two hundred and fifty dollars as the amount due petitioner as assistant clerk of said court for said month of January, 1898, this alternative writ of mandamus to issue only upon the issue' of fact raised by the respondent herein, as to whether petitioner is entitled to be certified for the whole month’s pay on account of his alleged absence from duty, it being hereby ordered, found and determined that the petitioner is entitled to be certified as prayed, except as to the time of such alleged absence.”</p> <p>Held, that, although no appeal lay from an order granting an alternative writ of mandamus, yet, as in the present case the order was peremptory, except as to a portion of the relief prayed for, it was proper to consider the questions raised and to pass upon them;</p> <p>That the power conferred upon the justice by section 14 of title 31 of the charter of the city of Brooklyn (Chap. 583, Laws of 1888), to remove the assistant clerk from office at will, was, by section 1384 of the Greater New York charter, continued in force up to midnight of the 31st day of January, 1898;</p> <p>That section 1383 of the Greater New York charter relates wholly to clerks who shall be appointed to office under the provision of the Greater New York charter;</p> <p>That the petitioner was not removed from office in the sense in which that term is used in section 1383, but that his term of office expired by reason of the election of the justice to use the power conferred upon him by law.</p> <p>Qucei’e, whether, in any event, mandamus was the proper remedy in this case.</p>

Appeal by the defendant, The Westchester Electric Railway Company, from an order of the Supreme Court, made at the Westchester Trial Term and entered in the office of the clerk of the county of Westchester on the 6th day of January, 1898, granting the plaintiff’s motion to set aside a verdict for the plaintiff for $500 and for a new trial.

Appeal by the plaintiff, Edward 0. Jones Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 5th day of February, 1898, upon the report of a referee.

<p>Appeal by the defendant, Charles Griess, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the Ttli day of March, 1898, denying the defendant’s motion for an order vacating and setting aside a judgment of foreclosure and sale, entered in the office of the clerk of the county of Westchester on the 29tli day of October, 1895, and requiring the plaintiffs, or their attorneys, to surrender and deliver up to the defendant a certain stipulation alleged to have been made by the plaintiffs’ attorneys with Charles Griess, consenting that the judgment of foreclosure and sale be vacated and set aside.</p>

Appeal by the plaintiff, Eva Bergold, from a judgment of the Sujireme Court in favor of the defendant, entered in the office of. the cleric of the county of Kings on the 21st day of December, 1897, on the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of December, 1897, denying the jfiaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Louise Wendel, from a decree of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of January, 1898, upon the decision of the court rendered after a trial at' the Kings County Special Term annulling the marriage of the plaintiff and the defendant.

<p>Appeal by the plaintiff, Jensiue Bruen, as administratrix, etc., of Edward Bruen, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 27th day of November, 1897, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.</p>

Appeal by the defendant, Henry C. Miner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 22d day of October, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of October, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, George S. Bailie, from an order of the-Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of New York on the 28tli day of April, 1898, directing him to pay to the defendant’s attorney a counsel fee of §250, and also to pay to the defendant the sum of $10 per week for the support of Lillian M. Bailie, a child of plaintiff and defendant, during the pendency of the action.

Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on tl e 11th day of March, 1898, upon the verdict of a jury rendered ly direction of the court.

Appeal by the defendant, The Chatham National Bank of New .York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of April, 1898, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to two counterclaims contained in the answer of the defendant.

Appeal by the defendants, Charles 0. Worthington and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of .February, 1898, granting the plaintiffs motion for an order permitting him to serve a fourth amended complaint.

Appeal by the defendant, James T. Lentzy, from an order of the Supreme Court, made at the New York Special Term and entered, in the office of the clerk of the county of New York on the lltli .day of April, 1898, vacating an order requiring the plaintiff to file security for costs.

<p>Services — what is a sufficient notice of a change in the prn'ty to whom they are being rendered — who is liable for them.</p> <p>A party who had rendered services to a firm in advertising the trips of a steamboat, of which the firm was a part owner, after the organization of a corporation to which the steamboat was transferred continued to render such services, making out bills against the firm, which previous to such transfer had paid the bills by the personal checks of one of its members. After the transfer the bills rendered to the firm were altered by the latter’s bookkeeper, who inserted the name of the corporation as debtor in place of the firm, and checks of the corporation, signed by its treasurer and countersigned by its president, were returned in payment thereof, the checks being received and the bills receipted and the checks indorsed for deposit by a party who had acted as agent for the plaintiff during the entire time. Thereafter this agent made out the bills against the corporation.</p> <p>-5eld, that the firm was not liable for the services rendered after the transfer of the steamboat to the corporation, since the plaintiff’s agent accepted the corporation as the debtor;</p> <p>That the fact that one of the members of the firm agreed to pay a part of the bill rather than be troubled with'a law suit was clearly an attempt to compromise a claim, the validity of which he denied, and did not authorize a recovery by the party rendering the services.</p>

<p>Services for salary and a share of profits — when an agreement as to profits is too indefinite to be enforced•—■action based on quantum meruit — doctrine of “ unjust enrichment ” —res adjudicata.</p> <p>In an action to recover on a quantum meruit for services rendered to a drygoods establishment, the plaintiff conceded that lie was to receive a definite salary, but claimed to be entitled to ignore the contract and proceed upon a quantum meruit, on the ground that, while the express contract was clear enough as to the specified salary, the defendants had also agreed to divide with him all the profits he might make in his department above his past average percentage, which agreement was alleged by the plaintiff to be so indefinite with regard to the profits as to be unenforcible, and he consequently based a claim for reasonable compensation on the doctrine of “unjust enrichment.”</p> <p>The plaintiff had received his stated salary for six months, but offered to give the defendants credit therefor upon wliatevei sum might be awarded to him in the action.</p> <p>Held, that he could not thus enforce the contract in part and still recover, upon the ground that there was no valid agreement as to the rate of payment, the action being based not upon a quantum meruit in lieu of profits, but upon a quantum meruit as to his entire services during the six months.</p> <p>The judgment in the court of another State, in which the plaintiff had filed a bill for an accounting, averring that the defendants agreed to give him, “in addition to the same salary that he had heretofore been paid, a certain interest in the profits that should thereafter accrue from said department of silks and velvets under the management of your orator, which interest it was agreed should be an equal division between your orator and said J. Y. Farwell & Company of all the profits that should accrue over and above the past average of profits in the business of said department of silks and velvets under the management of your orator,” in which action the plaintiff’s bill was dismissed under a finding “that said agreement is too indefinite as to the salary of the last half of the year 1889, over and above the specified amount at the rate of $3,250 per annum, to constitute anything more than the promise of a bonus, and also too indefinite to constitute such an agreement as would constitute a partnership as to profits and entitle the complainant to an account,” was held to be conclusive against the plaintiff’s claim that there was an agreement for salary plus an equal division of profits, and in favor of the defendants’ claim that the sole agreement was for a specified salary, and that all beyond that was a mere promise of a bonus.</p>

Appeal by the plaintiff, William F. Brewster, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 19th day of February, 1898, as dismisses the complaint as to the cause of action stated 'in the first and second counts thereof, by direction of the court after a trial at the New York Trial Term.

<p>Appeal by the defendant, the Home Bank, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 8th day of May, 1898, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 8th day of March, 1898, denying the defendant’s motion for a new trial made upon the minutes, and granting the plaintiffs’ motion for an extra allowance.</p>

Appeal by the plaintiff, Mary Marsullo, as administratrix, etc., of George Fischer, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of February, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of March, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, John D. Park & Sons Company, a corporation organized under the laws of the State of Kentucky, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29tli day of November, 1897, striking out parts of the complaint as irrelevant and redundant.</p>

Appeal by tlie plaintiff, John D. Park & Sons Company, a corporation organized under the laws of the State of Kentucky, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29 th day of November, 1897, striking out parts of the complaint as irrelevant and redundant.

<p>Verdict set aside as against the evidence — weight to which the decision of the tried court is entitled — the submission of a case to a jury and the subsequent setting aside of its verdict as against evidence are not inconsistent.</p> <p>While the impressions and convictions of a judge cannot prevail against the verdict of a jury, yet where a judge of great experience, who has presided at the trial of thousands of cases, takes under advisement a motion to set aside the verdict of a jury, as against the evidence, requires the stenographer’s minutes to he written out in full for his inspection, and, after mature deliberation, states, in effect, that in the conscientious discharge of his duty he can reach no other conclusion than that substantial justice requires a new trial, his determination is entitled to the greatest weight in the consideration of the matter by the Appellate Division.</p> <p>There is no inconsistency in setting aside a verdict as against the. evidence even where the case has been necessarily submitted on the facts to the jury.</p> <p>A motion for a nonsuit involves the consideration by the court only of the question of law, whether upon all the facts one party or the other is entitled to a judgment, while on a motion for a new trial the judge is compelled to pass upon the facts.</p>

Appeal by the plaintiff, the John Polhemus Printing Company, a corporation under the laws of New Jersey, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 2d day of February, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

<p> Indictment charging burglary in the second degree—what proof of “ breaking ” into the dwelling will support it. </p> <p>An indictment charging the crime of burglary in the second degree in that the accused feloniously and burglariously did break into and enter the dwelling house of one Mary Ryan (there being then and there a human being in the said dwelling house), with the intent to commit some crime therein, is sustained by proof that the accused entered an apartment in an apartment house, which apartment had an entrance door opening into a general hallway of the building, through such entrance door which he opened.</p> <p>The fact that he opened the entrance door may be established by proof of circumstances from which the conclusion would necessarily result that he could not have gained entrance otherwise than by opening the door.</p>

<p>Specific performance -- marketable title by adverse possession — appointment, without notice, of trustees to execute a power of sale — merely nominal conditions annexed to a power.</p> <p>In an action brought to compel the specific performance of a contract for the purchase of land, it appeared that the title to one portion thereof, known as “the Bayley tract,” was apparently derived from John Fleetwood Marsh, who, on June 1, 1806, purchased certain property, the description of which was too indefinite to enable the exact boundaries of the land thereby described to be determined; that subsequently one Bayley laid claim to the whole of this parcel and conveyed it by deed to one Faile, describing the property as that “ of which John Fleetwood Marsh died seized,” but no deed from Marsh to Bayley appeared on record.</p> <p>Faile entered into possession of the Bayley tract under the Bayley deed in 1831, and in 1835 acquired a deed of the other parcel known as the “Fisher piece” from the sheriff, conveying “ all the estate, right, title and interest of Hannah Fisher” therein; hut it did not appear of record what interest Hannah Fisher then or at any time had in this piece of land.</p> <p>Faile’s claim to both pieces was evidenced, not only by his having taken possession of them, but by the fact that in his will he specifically mentioned the property, and directed that, upon the death of his wife, it, together with the rest of his real estate and personal property, should be converted into cash and the proceeds be divided into four equal parts, one of which parts he gave to each of his two sons, and one part in trust for each of his two daughters, for their respective lives, with remainder to their lawful issue respectively, and, in default of such issue, to the testator’s then surviving children and the lawful issue of his deceased children. He also authorized his executors to sell and dispose of all or any part of his real estate.</p> <p>All the executors who qualified having died without exercising this power of sale, an action was commenced in the Supreme Court asking that some suitable person be appointed to execute the trust contained in Faile’s will, and to sell the real estate therein described, in which action certain persons were appointed trustees to carry into effect the said trust, with all the powers of the original trustees and executors, and with power to make sales of real estate.</p> <p>Held, that, considering that the action was brought merely for the purpose of having some person appointed to execute the trust, the fact that some of the remaindermen were not made parties thereto, did not affect the jurisdiction of the court or the validity of the judgment entered therein.</p> <p>Semble, that the court, upon the facts being brought to its attention, upon an ex pa/rte application made by any one interested in the trust estate, could have appointed a suitable person to execute the trusts in the will under its direction;</p> <p>That it was not necessary that the power of sale conferred by the will should be exercised during the lifetime of the widow of the testator;</p> <p>That the trustees appointed by the judgment to sell the property would, if the trusts still continued, have conferred upon them a power of sale as trustees of the trusts, or, if the trusts had terminated, would be vested with the naked power of sale given by the will, for the purpose of selling the property and making distribution of the proceeds as provided by the will;</p> <p>That the validity of the sale was not affected by the fact that in part payment for the property a purchase-money mortgage was taken back from the purchaser, as in view of a provision of the will that the proceeds of all sales made prior to the death of the testator’s widow be invested on bond and mortgage and the interest be paid to her for her life, the clause of the will by which the testator directed his “real estate and personal to be converted into cash, and the proceeds thereof to be divided into four equal parts," came within the provision of the Revised Statutes that “Where the conditions annexed toa power are merely nominal, and evince no intention of actual benefit to the party to whom or in whose favor they are to be performed, they may be wholly disregarded in the execution of the power.” (1 R. S. 736, § 120.)</p> <p>Semble,, that it was doubtful, had the purchaser stood on the objection that the title was unmarketable because of the missing link in the chain of title between Marsh and Bayle)', whether the court would have compelled him to accept the title, but that as the purchaser had demanded by way of relief, “if the court shall determine that the plaintiff can convey a marketable title to said property, that this defendant be allowed to take such title upon his complying with the terms of sale,” and as every doubt arising upon the naked record title had been reasonably explained or dispelled and cleared up upon the trial, and as an undoubted title by adverse possession to both pieces of property had been established, the purchaser should be required to complete his purchase of the property.</p>

Appeal by the defendant, Robert Herbst, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 23d day of December, 1896, ujion the report of a referee.

Appeal by the defendant, Grahams Polley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of January, 1898, upon the verdict of a jury rendered by direction of the court, and also from an order, bearing date the 14th day of January, 1898, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes; also an appeal by the plaintiff, Edward S.…

<p>Appeal by the plaintiff, The Standard Fashion Oompany, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the-county of New York on the 14th day of February, 1898, upon the decision of the court rendered after a trial at the New York Special Term sustaining the defendants’ demurrers to the complaint.</p> <p>This suit was brought in equity to enjoin the violation of certain negative covenants, and to decree the specific performance of certain affirmative covenants, contained in a written agreement entered into between the plaintiff and the defendant the Siegel-Cooper Company, under which the business of selling the plaintiff’s paper jsatterns in the said defendant’s store for the joint profit of the contracting parties during a period of more than two years was to be carried ~n upon various terms and conditions set forth in the agreement, a copy of which is annexed to the complaint, and is as follows:</p> <p>“ In consideration of the sum of one dollar by each to the other in hand paid, and hereby acknowledged, the above parties mutually agree as follows :</p> <p>“ The Siegel-Cooper Company is hereby appointed an agent for the sale of Standard Patterns and Standard Fashion Publications for a term of two years from the date the contract goes into effect — and said term to be extended from year to year thereafter until closed by three months’ notice in writing by either party to be given within thirty days after said two years or any one year thereafter.</p> <p>“ The Standard Fashion Company agrees to conduct, at its own expense and risk, a pattern department on the ground floor of the Siegel-Oooper Company’s store on Sixth avenue and 18th street, New York city, said Standard Fashion Company furnishing its own employees, such employees to be subject to the employees’ rules of the Siegel-Cooper Company. The Standard Fashion Company further agrees to furnish, free of charge, not less than two hundred and fifty thousand (250,000) eight-page fashion sheets, of the kinds sold at ten dollars per thousand to the Siegel-Cooper Company per annum as long as this contract continues, and to print the advertisements of said Siegel-Cooper Company on front and back thereof, without charge, to be changed monthly if so desired, such fashion sheets to be distributed by the Siegel-Cooper Company from its store or from pattern counter or any other of the business without expense to the Standard Fashion Company. The Siegel-Cooper Company to furnish wrapping paper and twine, free delivery and other store facilities. Said Siegel-Cooper Company agrees not to sell, or allow to be sold on its premises during the duration of this contract, any other make of paper patterns.</p> <p>“ Siegel-Cooper Company agrees to pay over to the Standard Fashion Company two-thirds of all the moneys received from the sale of patterns and fashion publications, making weekly settlements with the Standard Fashion Company, said Siegel-Cooper Company to make no charge for cashiering. The remaining one-third to be the remuneration of said Siegel-Cooper Company for the permission to the Standard Fashion Company to conduct said department.</p> <p>“ The said Siegel-Cooper Company agrees to allow the use of the present pattern fixtures and the present position for paper patterns, but in case a change of location should be deemed advisable, such new location not to be less prominent, nor to occupy less space than the present one, except between Thanksgiving and Christmas of each year.</p> <p>“ This contract to go into effect either on September 12tli or December 12tli, 1897, according to the choice of said Siegel-Cooper Company, such choice depending upon the question of whether the contract between the said Siegel-Cooper Company and the Butterick Publishing Company, now existing, will be terminated in September or December of this year.</p> <p>“ The Standard Fashion Company agrees to assume all risk of loss by fire, water, etc., or risk of theft or other unforeseen damage to or destruction of pattern stock, and to hold the Siegel-Cooper Company harmless in that respect. Said Siegel-Cooper Company to make, at the expense of the Standard Fashion Company, frequent mention of the fact that they are agents for the sale of the Standard Patterns in its daily New York newspapers* advertisements, and also to allow reasonable display of attractive show cards and signs furnished by the Standard Fashion Company, and subject to the approval of said Siegel-Cooper Company, at convenient places in its store, the expense of such signs to be entirely borne by the Standard Fashion Company.”</p> <p>The Siegel-Cooper Company notified the plaintiff that they declined to carry out the contract, and the complaint alleges that the other defendant, the Butterick Publishing Company, induced its co-defendant to break the contract and to enter into a similar one with it. The complaint further alleges that the plaintiff will be subjected to irreparable loss and injury if the defendant, the SiegelCooper Company, be suffered to break its engagement with it, not only by the direct loss in its own business, but also by permitting its rival and competitor, the Butterick Publishing Company, to obtain the advantages which it, the plaintiff, would have obtained from the exclusive sale of patterns in the store of the Siegel-Cooper Company, and that it would be thus damaged “ in a manner altogether impossible to be compensated for in an action for money damages.” Both the defendants demurred to the complaint; the Special Term granted an order sustaining the demurrers, and from the interlocutory judgment thereupon entered this appeal is taken.</p>

Appeal by the defendant, the Magnolia Metal Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of 'New York on the 20th day of April, 1898, upon the decision of the court rendered after a trial at the New York Special Term overruling its demurrer to the complaint.

Appeal by the plaintiff, George Greenhaus, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 21st day of April, 1897, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

<p>Chattel mortgage — oral understanding that the mortgagors are to dispose of the chattels in the course of trade—if repudiated befm'e being carried out the mortgage is valid—effect of a voluntary delivery of the chattels to the mortgagees.</p> <p>Where the execution of a chattel mortgage, valid upon its face, is attended with an oral understanding between the mortgagees and the mortgagors, that the latter are to remain in possession of the mortgaged property and to sell and dispose of the same in the ordinary course of trade, and out of the proceeds of such sale to pay the expenses of conducting the mortgagors’ business, but immediately after the execution of the mortgage, and before any part of the oral understanding has been carried out, or any creditor has brought an action • to have the chattel mortgage declared void or has obtained a lien upon the-mortgaged property, the mortgagees expressly repudiate such verbal understanding, and the mortgagors, upon the mortgagees’ demand for the possession, accede to such demand without objection, the mortgage is enforcible.</p> <p>Even assuming that the mortgage is voidable at the election of creditors of the mortgagors by reason of this contemporaneous oral understanding, the mortgagees are entitled to hold the property as security for the indebtedness by virtue of the voluntary 'delivery of the property to them by the mortgagors, independently of the chattel mortgage.</p>

Appeal by the defendant, Peter J. Connor, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the comity of New York on the 6th day of May, 1897, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by John Schreyer from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of October, 1896, overruling his exceptions to the report of a referee, and confirming said report, except from so much thereof as directs that the mayor, aldermen and commonalty of the city of New York are entitled to be paid an amount due for unpaid taxes and assessments on land taken for the opening…

Appeal by John Schreyer from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of February, 1898, denying his motion to vacate a judgment docketed against him in favor of James A. Deering.

<p>Commission issued out of a court of another State—a Supreme Court justice of the State of New York cannot issue a subpoena duces tecum to a witness named therein.</p> <p>A justice of the Supreme Court of the State of New York has no power to issue a subpoena duces tecum requiring a person named as a witness in a commission issued by a court of another State to produce books and papers before a commissioner acting under such commission.</p> <p>In order to justify the issuing of such a subpoena, the existence of some clear affirmative power conferred by statute upon the justice must be shown, ' and such power is not conferred by article 3 of title 3 of chapter 9 of the Code of Civil Procedure (§§ 914-920).</p> <p>Sections 854 and 855 of the Code of Civil Procedure do not apply to such a case.</p>

<p>Action for money had and received —■ agreement in restraint of trade repudiated — what must he proved ly the plaintiff.</p> <p>In an action brought to recover for money had and received by the defendants from the plaintiff, for its use and benefit, it appeared that the parties to the' action had entered into an agreement by which an association was formed for-the purpose, as therein recited, of promoting harmony among the bridge manufacturers of America, which provided, however, “ that this association shall not, in any manner, constitute the parties hereto partners, and shall confer no authority upon any member thereof, or subject any member thereof to any liability, except as hereinafter expressly provided.” Under this agreement the members of the association were to pay into its treasury an entrance fee of $52,000 (of which sum the plaintiff was to pay sixteen per cent) which was to he known as the “guaranty fund” of the association, and was to be increased from the receipts of the association until its total amount should be $260,000, and the treasurer of the association, at the time of the commencement of the suit, had in his custody the entire guaranty fund, amounting to more than' $200,000, the interest of the plaintiff in which was some §35,000.</p> <p>The plaintiff had given notice of its disaffirmance of the agreement, and demanded that it be paid §40,000, claiming that the agreement was not legal because it constituted a combination to enhance prices.</p> <p>Held, that in an action of this kind it was necessary to.show that the defendants, had obtained possession of, or had received, something as money, to which the plaintiff was entitled, and that this was not shown by proof that the treasurer of the association held a certain sum of money as a guaranty fund under the' agreement;</p> <p>That .tlie plaintiff was only entitled to receive the money which it had contributed and from the person who held it, and in this case had neither proved that it had paid any money under the agreement, or that any of the defendants held any of the plaintiff’s money.</p> <p>Note. — The rest of the cases of this term will he found in the next volume, 31 App. Div.— [Rep.</p>