Volume 30 — New York Miscellaneous Reports

<p>Examination of party before trial.</p> <p>Where the testimony of a party is shown to be material and necessary to his adversary, on the trial of a pending action, the court will' order the party to submit to an examination before trial, although he can be present at the trial.</p>

Action for libel. Motion by the defendant Kling, an attorney and counsellor at law, that the complaint be made more definite and certain by stating “ when, where and under what circumstances ” the said defendant printed and published the alleged libel.

<p>Telephone company — Abutting owner cannot enjoin construction of underground conduit.</p> <p>Where a telephone company has been authorized by a city to place its overhead wires in underground conduits, an act in the interest of the public safety, a mere abutting owner cannot enjoin the company. from constructing such a conduit in the street in front of his property, where, although he alleges that the conduit will constitute a continuing trespass, he does not allege that any substantial pecuniary damage will result therefrom to his easements or to his property.</p>

<p>1. Trespass and assault — Forcible entry — Defenses predicated on a revocable license.</p> <p>Where a complaint for trespass, alleged to have been committed by a gas company upon property, is based upon a forcible entry and also upon an assault following the trespass, a defense that the defendant was invited to enter and was legally bound to do so, that entry was subsequently refused, and that it entered in spite of the refusal, does not present any defense to the assault, and none to the trespass, as such allegations merely show that the defendant had a revocable license to enter, and that it wrongfully entered after the license had been revoked.</p> <p>3. Same — Rule as to a partial defense.</p> <p>Such a defense is not good in mitigation of damages where it is not designated as partial, the rule being that a partial defense must be stated as such unless it is so obvious that there can be no possibility of dispute.</p>

<p>' 1. Corporation — Complaint for penalty on a refusal to exhibit stock-book.</p> <p>The statute, imposing a penalty upon an officer or agent of a stock corporation for a refusal to exhibit etc. its stock-book to a stockholder or judgment creditor, is highly penal, and therefore a complaint, in an action to recover such a penalty of an agent of the corporation, must state all the facts material to the offense, must show that the company was a stock corporation, and must state fully the circumstances of the demand.</p> <p>2. Same — Parties.</p> <p>The corporation is not a necessary party defendant to such an action.</p>

<p>Issues of law upon demurrer to the matters in the answer set up as and for a “ second separate and distinct answer to the complaint of the plaintiff herein.”</p> <p>The nature of the action and the material facts are stated in the opinion.</p>

<p>Motion for preference of the wages of an employee of a defunct corporation.</p>

<p>Motion for alimony and counsel fee in a suit for a separation.</p>

<p>Office — Appointment — Keeper of New York morgue.</p> <p>The keeper of the morgue in the city of New York, enjoying a fixed salary, holds a public office; and where he, after an alleged illegal removal therefrom, seeks reinstatement thereto by mandamus, it is his primary duty to prove that he holds his office by appointment in writing, or by one in the form of a resolution of the appointing board, duly entered in its records.</p>

Action to recover the possession of four bonds which the Madison Square Bank agreed to deliver to plaintiff, and to recover the value of the bonds in case possession cannot be had.

<p>Aotioh to recover for services rendered.</p>

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

<p>Action to foreclose a mortgage.</p>

<p>Motion to set aside an inquest.</p>

<p>1. Judgment — Opened for deceit or fraud.</p> <p>The Supreme Court has entire control over its judgments and may, for fraud or deceit, open a judgment without regard to any Code ■limitations as to the time within which a judgment may be opened.</p> <p>2. Same — Cannot be more favorable than that demanded — Code Civ. Tro., § 1807.</p> <p>Section 1207 of the Code of Civil Procedure is violated where the plaintiff, in a case of no answer, takes a judgment more favorable to himself than that demanded in his complaint.</p>

<p>Appeal from a judgment recovered by plaintiff against defendant on the 9th day of May, 1899, for twelve dollars damages and two dollars and seventy-five cents costs before G. L. Traffern, a justice of the peace of the town of Camden.</p>

<p>1. Decedents’ estates — Jurisdiction of Justice’s Court — Code Civ. Fro., § 8863.</p> <p>Where a claim on open account against a decedent, as presented to his administrator, is less than fifty dollars, a justice of the peace has jurisdiction in the matter under section 2863 of the Code of Civil Procedure, although the interest demanded in the complaint would, if it had been recovered, make a sum exceeding fifty dollars.</p> <p>8. Same — Rejection of claim.</p> <p>Where an administrator tells a claimant against an intestate’s estate that he will have to sue, there is a sufficient rejection of the claim.</p> <p>3. Same — Admissions of sole administrator.</p> <p>The admissions of a sole administrator made in the transaction of his business as such bind the estate of his intestate.</p> <p>4. Verdict — “Por all Ms claim.”</p> <p>A verdict for the plaintiff “ for all his claim ” is sufficient to entitle him to the face of his demand, and to indicate that the jury excluded an offset claimed by the defendant.</p>

<p>Appeal by' defendants from judgment rendered in Justice’s Court.</p>

<p>Appeal by the defendant from an order of the General Term of the City Court, reversing an order of the Special Term of the City Court, directing that a judgment therein, entered by the plaintiff upon an accepted offer, be vacated, and that the defendant be allowed a judgment upon a counterclaim set up in the answer.</p>

<p>1. Summary proceedings — Acceptance by landlord of a note on time.</p> <p>Proof, made in summary proceedings, that the landlord accepted from his tenants, in present payment of rent for the whole term, among other things, their non-negotiable note payable at the end of the term, precludes the landlord from dispossessing the tenants before the maturity of the note.</p> <p>MacLean, J., dissented.</p> <p>8. Same — Bent not recoverable.</p> <p>A recovery for rent cannot be had in summary proceedings,</p>

Appeals by the plaintiffs from judgments rendered in favor of the defendant in the Municipal Court, fifth district, borough of Manhattan.

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

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

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

Appeal by the landlord from an order awarding the possession of premises to the tenant in a summary proceeding taken for nonpayment of rent in the Municipal Court, seventh district, borough of Manhattan.

Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court, eighth district, borough of Manhattan, after trial before a jury.

<p>1. Benefit societies — Reasonable by-law as to “ sick benefit.”</p> <p>A by-law, made a condition of a “ sick benefit ”, providing that a sick member need not necessarily employ the doctor of the society, but that, if, at his own expense, the member employs another, he must within twenty-four hours notify the. corresponding secretary so that the society doctor may examine the case and certify in writing to the sickness, and that such a certificate is an absolute condition of the “ sick benefit ”, is not unreasonable in its requirements.</p> <p>3. Same — Estoppel as to questioning by-law.</p> <p>Semble, that a charter member of a society, who must have taken part in the adoption of its by-laws, will not be heard thereafter to say that they are unreasonable.</p>

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

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

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

Appeal by the defendant, William H. Flaherty, from a judgment in favor of the plaintiff, rendered in the Municipal Court, second district, borough of Manhattan.

<p>lease — When it is monthly.</p> <p>Where a lease of premises in the city of New York is expressly described as a “ monthly lease ”, the fact that the elevator service, heat and power are stated “ at $800 per annum ”, does not constitute the lease one for a year, nor for an indefinite term, valid, under 1 K. S. m. p. 744, until the first day of May next after the possession under such agreement shall commence.</p>

Appeal by the.plaintiff from a judgment, dismissing the complaint, rendered in the Municipal Court of the City of New York, seventh district, borough of Manhattan.

<p>Services — To whom credit was given.</p> <p>An action for services can be maintained only against the party to whom the credit was originally given.'</p>

<p>1. Actions for rent — Former judgment in summary proceedings.</p> <p>A default judgment, obtained by a landlord in summary proceedings, is conclusive as to the validity of the lease, the occupation, and that rent was due; and hence, where the landlord subsequently sues for the rent, the tenant presents no defense by pleading a surrender of the premises and an acceptance thereof, occurring prior to the judgment by default.</p> <p>3. Summary proceedings — Service of precept by posting.</p> <p>Service of a precept, in summary proceedings, by affixing a copy upon a conspicuous part of the property, is not violative of the tenant's rights.</p>

<p>Sale — Rescission.</p> <p>Where title to goods has passed by delivery and the vendee has exercised ownership over them, there can be no rescission; and the only manner in which title can be again vested in the vendors is by a resale to them of the goods.</p>

<p>Lease — Eviction, constructive.</p> <p>The fact that incoming tenants, of a flat in an apartment house, were annoyed during one night by the vibrations of a dynamo, used for light and located in the cellar, does not justify the tenants in abandoning the premises after an occupation of two days, no notice of the defect having been given to the landlord, nor any opportunity afforded him to remedy it.</p>

Appeal by the plaintiff from a judgment dismissing the complaint rendered in the Municipal Court of the City of Hew York, fourth district, borough of Manhattan.

<p>Appeal from a judgment against the defendant, Charles Murray, rendered in the Municipal Court of the City of New York, first district, borough of Manhattan.</p>

<p>Application under the Election Law to determine the validity of certain ballots cast at a town election.</p>

Demubbeb to an answer in an action for penalties under the provisions of the Fisheries, Game and Forest Laws, being chapter 31 of the General Laws of the State of Hew York.

<p>Attorney’s lien — Code Civ. Pro., sec. 66 — Settlement by parties.</p> <p>An attorney’s lien upon the cause of action is subject to the right of the parties to compromise and settle. His lien is determined by the amount agreed to be paid in settlement, in the same manner as it would be by obtaining a judgment. If the money is all paid over to the client without the attorney’s consent, the party paying it will, nevertheless, be required to pay to the attorney the amount thereof to which he is entitled by his lien, provided his client refuses to pay him and is irresponsible.</p> <p>The attorney cannot repudiate a settlement made by the parties and prosecute the action for the purpose of trying to get a judgment for more than the amount of the settlement, so as to realize more out of his lien. He is bound by the settlement.</p>

Motion to resettle the judgment on the remittitur from the Court of Appeals, so that the respondents shall get only one bill of costs instead of one each. The remittitur reads that the judgment appealed from is affirmed and that “ the respondents recover against the appellants costs of appeal to this court.”

<p>Pleading — Denial — “ Defense ” — Negatives pregnant.</p> <p>A general or special denial should not be pleaded “ for a defense ”, as it is not a defense. A defense can only consist of matter which cannot be proved under an issue raised by a denial, k e., such as payment, accord and satisfaction, and the like.</p> <p>Denials, in haec verija, of the different subdivisions of the complaint, each subdivision consisting of several statements of fact, with dates, adjectives, conjunctives and disjunctives, and the like, are not denials, . but are negatives pregnant, and are frivolous.</p>

<p>1. Trust — Trustee entitled to the whole fund in order to account and deliver securities.</p> <p>The rule, that where the purpose of a trust has ceased, the statute conveys the title without intervention of the trustee, is a rule confined to real property; and where a surviving trustee of personalty, who must, from the nature' of the case, account for a part of the fund, seeks a construction of the trust, he is entitled to the possession of all of the fund, to the end that he may make but one accounting, and • may actually deliver the things in action to the parties entitled thereto.</p> <p>S3. Same — Unpaid balance of annuity.</p> <p>Where an annuitant, under a trust, dies before the settlor, at whose death the trust determines, the annuitant, or her estate in case of her death, is entitled to the unpaid annuity which accrued between the last payment and the death of the settlor.</p> <p>3. Release to trustee — His failure to perform an independent condition.</p> <p>Where the settlor’s widow, having under the annuitant a derivative interest in the trust, releases, as an individual and as the administratrix of the annuitant, to the trustee all claims against the trust, the release enures to the benefit of the trustee, and also to that of the persons who have the next estate.</p> <p>The release remains valid, although the trustee fails to perform a stipulation requiring a certain payment to be made to the widow, as the stipulation is to be deemed an independent promise.</p> <p>4. Same —“ Accumulated income.”</p> <p>The interpretation of the words “ accumulated income ”, occurring in a trust deed, determined from the instrument at large.</p>

<p>Costs — Double taxation.</p> <p>Where a party to an action is permitted to amend his pleading upon the payment of costs, an order to that effect is an adjudication that the items covered thereby belong to the party adverse to the one so amending, and such costs cannot again be taxed by either party to the action.</p>

<p>Liquor Tax Law — Illegal submission of local option — Remedy.</p> <p>The first and last, of the four questions which are to be submitted 6o town electors upon the question of local option, are related to •each other, and where the fourth question as printed, omits the final clause required by statute, “ if the majority of the votes' cast on the first question submitted are in the negative ”, the variation is material and the election is void.</p> <p>The remedy of a party aggrieved is not by mandamus, to compel the inspectors to reconvene and reject the ballots upon which the fourth question was not printed in the manner required by statute, but there must be a new special election, at which all four questions must be submitted again.</p>

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

<p>■ Fraudulent transfer — Guilty knowledge of transferee — Fraud.</p> <p>Where creditors attack a sale of personalty upon the ground of fraud, indirect proof may establish the fraud, it must exist in the minds of both parties, and the sale cannot be avoided unless the vendee knew that the vendor was intending to defraud her creditors thereby.</p>

<p>Negligence — Permitting a valise to remain in the aisle of a sleeping-car.</p> <p>A sleeping-car company is guilty of negligence where it knowingly permits a large valise to remain in the passage-way of a car, dimly lighted, and over which a passenger stumbled while on his way to the washroom, before sunrise.</p>

The action was brought on a certificate of insurance, issued to plaintiff by the defendant on the life of a third party.

<p>Negligence — Owners permitting water to leak down upon their tenants’ goods.</p> <p>Owners of a building who permit water to leak, from an unoccupied floor, upon the merchandise of tenants below, are liable to them, where it appears that the overflow was caused by a leaky faucet, leading into a sink which was stuffed with ashes and dirt.</p>

<p>City Court of the city of New York — Note of issue must be filed after-service of notice of trial — Code Civ. Pro., § 8163.</p> <p>Where a plaintiff desires to bring an issue of fact, or one of law, on for trial at a particular term of the City Court of the City of New York, he should file a note of issue for that term after he has served! his notice of trial for the term, as, otherwise, the note of issue cannot state “ the term for which the notice has been given ”, a matter required to be stated in the note of issue by section 3162 of the Code of Civil Procedure.</p>

<p>City Court of the city of New York — Calendar — New notice of trial required by an amendment of a pleading.</p> <p>Where the defendant serves an amended answer after the plaintiff has served a notice of trial, the latter must serve a new notice in order to entitle the case to be placed on the calendar.</p> <p>Where the plaintiff fails to serve a new notice of trial, the defendant may wait until the case is reached on the day calendar, and may then move to strike it from the calendar.</p>

<p>Judgment — Even in a case of default, the plaintiff cannot sue on contract and recover on a quantum meruit.</p> <p>Where a plaintiff sues to recover a balance alleged to be due on a contract for services, and the answer is a general denial, and the defendant defaults at the trial, and the complaint is never amended, a recovery for a larger sum than that demanded in the complaint, based on a quantum meruit, cannot be supported, as the effect would be to permit a recovery upon a cause of action which has not been pleaded.</p>

This is an appeal from an order, made by a justice of this court at Special Term, entered on May 22, 1899, denying the defend1ant’s motion for a reargument of an appeal from a judgment rendered in December, 1898, and, in the notice of appeal, the appellant states that, upon the argument of said appeal from said order, it will move for a reargument of said appeal from the judgment.

Appeal by the defendant from a judgment entered in the plaintiff’s favor upon a verdict rendered by a jury, and from an order denying the defendant’s motion for a new trial.

<p>1. Corporation, foreign — Although not authorized to do business here, it may file a mechanic’s lien.</p> <p>A foreign corporation, not authorized to transact business in the State of New York, may file a mechanic’s lien against the owner of a house in this State in whose construction, its goods have been used, ' where it appears that the goods were delivered by it, within the State, to a domestic corporation, which in .turn furnished them to the owner.</p> <p>2, Same — Effect, on lien, of injunction in dissolution proceedings.</p> <p>The fact that, when the lien was filed, the domestic corporation was in the hands of a receiver appointed in dissolution proceedings, and that he-had served the resident-agent of the foreign corporation with the usual order restraining all persons and creditors from bringing any action against the domestic corporation to recover a sum of money, does not make the foreign corporation guilty of a contempt in filing the lien, as such an order does not prohibit the filing of such a lien.</p>

The assessors of the town of Bochester, Ulster county, ¡N. Y., made an assessment for the year 1899 against the relator, the 'Cornell Steamboat Company of $75,000. The assessors met to review the assessments on the third Tuesday of August, pursuant to notice. The relator appeared before them and made ■application for a reduction of the assessment. The assessors re•duced the assessment to the sum of $25,000.

<p>Banks — Taxation of stockholders.</p> <p>A stockholder of a bank is taxable upon the fair value of his shares, irrespective of the character of the bank’s assets, whether taxable or nontaxable. If this leads to a double taxation of the same property, the only remedy is with the Legislature.</p>

<p>Cebtiobabi proceeding to review assessment of personal estate-for taxation in city of Hew York (borough of Brooklyn) for 1899..</p> <p>The entire personal estate held by the relator as executor amounted to $522,000. Of this amount $309,800 represented bonds secured by mortgages upon real estate assessed at face value. The petition purported to allege two separate grounds of review, inequality and overvaluation.</p> <p>Motion by respondents to dismiss the proceeding on the ground that no legal grievance had been alleged requiring any review by the court.</p>

This was a motion to set aside an order for substituted service of the summons made under sections 435 and 436 of the Code of Civil Procedure, for irregularity, and also for being unauthorized by law. The service was by mailing and posting on the door of defendant’s residence.

<p>1. Action against a foreign insolvent corporation to impress a trust and obtain a preference.</p> <p>The rule, that a debtor may honestly prefer a creditor, does not apply to the obligations of an insolvent foreign corporation, equity requiring its assets to be distributed ratably among all the creditors.</p> <p>2. Same — Following assets — Creditors’ levy, innocent but invalid —. Preferences refused creditors.</p> <p>A foreign corporation which was entirely owned by a firm, and the firm itself, were insolvent, when the latter took an assignment of the property of the corporation upon a mere promise to pay Its debts. Thereupon the firm made a general assignment. The corporation was then indebted to two banks, and one of these procured the general assignment to be set aside. A third bank recovered judgment against the firm, innocently levied on the property, which the firm had taken from the corporation, and thereafter sold it. The other two banks then brought an action to impress a trust upon, and for a preference out of, the moneys thus in the hands of the third bank, claiming that these moneys represented assets of the corporation. Held, that the action could not be maintained as one for a preference, as no preference was permissible.</p> <p>That the course of the third bank, in innocently levying and selling, was not a tort, and that that bank was virtually a creditor of the corporation. That the action might be supported as one to determine equities, and that all three banks, and all other creditors of the ■ corporation, were entitled to share ratably in all such corporate assets as were within this jurisdiction.</p>

<p>Attorney — His lien protected against his client’s satisfaction of the judgment.</p> <p>Where an irresponsible client satisfies, of her own motion, upon payment, a judgment rendered in her favor, and her attorney is thereby defrauded of his agreed lien on the cause of action, the satisfaction-piece should be vacated to the extent of his lien, so as to enable him to enforce the judgment pro tanto and recover his agreed compensation.</p>

<p>3.. Estoppel — Scope of judgment taken by default.</p> <p>A judgment rendered by default is final, as between the parties, as to every fact decided therein which had such a relation to the issue that its determination was necessary to the determination of the issue,</p> <p>3. Same — Failure to deny a material allegation of the complaint in a former action.</p> <p>Where an accommodation indorser of the notes of a mortgagor is made a party to an action of foreclosure brought by an assignee of the mortgage, and the complaint therein alleges that the mortgage had a valid inception, the indorser cannot, after his liability as such has become fixed and after he has defaulted in pleading, and after a finding has been made in said action declaring the inception to have been valid, claim, in a later action brought by him to compel the said assignee to contribute the amount of the mortgage towards the payment of the notes, that the mortgage was really given, as between the original parties, merely as a security upon which the said assignee should advance moneys, and that he had agreed to use such moneys to protect the indorser against his indorsements of the mortgagor’s notes.</p>

<p>label per se — Bill of particulars, of special damage not pleaded, refused.</p> <p>Where a physician sues for the publication of an article alleged to charge him with an act of adultery (which if really imputed, is a libel per se) and claims only general damages for injury “in his vocation ” and for exposure to “ public contumely ”, the defendant cannot compel him to give the names of patients whom he has lost by the libel, as, under such a complaint, only general damages, including general loss of professional income, are recoverable, and there can be no recovery for special damage, e. g., the loss of particular patients,, for the reason that such damage has not been pleaded, i. e., by giving the names of such patients.</p>

This was an application for a peremptory writ of mandamus to compel a business corporation organized under the laws of the State of Mew York, its directors and officers, to allow the petitioner, who claimed to be a stockholder, to examine the books of the company.

<p>1. Municipal corporation — May be authorized by the Legislature to compel overhead wires to be placed in city underground conduits — Police power of the State — Cost of construction apportioned.</p> <p>Under the police power of the State, the Legislature may, by statute (Laws of 1899, chap. 405), validly empower the city of Geneva, or its board of public works to compel all overhead electric wires, etc., to be removed from the streets and placed in underground conduits constructed by the city; and the statute may also lawfully require the owners of the wires to pay such part of the expense o£ the conduits as the common council of said city shall determine.</p> <p>2. Same — Duty of city in constructing conduits for high and low-power currents — Rules for use of conduits.</p> <p>The city must exercise reasonable skill in constructing its conduits,, to the end that the operations of a telephone company, using a weak: current, shall not be embarrassed by the presence, in the same conduit, of high currents used for light and power; and the city must also keep the conduits in repair.</p> <p>Where conduits -are properly constructed by the city, the telephone company cannot avoid placing its wires in the conduits by insisting that the city has made no rules in regard to the use of them, as the court will assume that suitable rules will be made by the city, and that reasonable facilities and protection will be afforded to the teiepnone company.</p> <p>3. Same — Discretion of city in constructing conduits or permitting them to be constructed.</p> <p>Where the statute leaves it discretionary with the city whether it shall itself construct the conduits or allow the electrical corporations to do so, the determination of the city to build the conduits, and their subsequent construction by it, makes it obligatory upon the telephone corporation to use them.</p>

<p>Issues of law upon demurrer to the complaint.</p>

Motion to supersede a writ of certiorari issued to review the assessment of certain real estate in the city of New York for purposes of taxation.

<p>Motion to open a judgment of foreclosure.</p>

<p>Motion by defendant to set aside the verdict as against the weight of evidence and upon exceptions taken at the trial.</p>

<p>Trust — Substituted family arrangement permitted to stand — Acquiescence — Statute of Limitations.</p> <p>Where no rights oi creditors intervene, the court will not permit a family arrangement, made by children, to be set aside, although it be at variance with the terms of a real estate trust created by their mother’s will and has had the effect of changing realty into personalty, where it appears that the child, attacking the arrangement, has waited more than twenty years to do so, has benefited substantially by it, and that its validity, as well as that of a debt (now attacked) due from the mother to another child, who was one of her executors and trustees, was passed upon by the proper surrogate more than twenty years ago, when the said executrix and her co-executor and trustee, accounted as executors before him and then obtained a decree from which no child ever appealed.</p>

<p>Lease — Lessee’s option to purchase premises construed.</p> <p>A lease provided, in substance, that, at any time before its expiration on December 31, 1898, the lessee, “having first satisfied itself” that the lessor could convey a good and clear title to the demised! premises, might purchase them at a price named, the same to be paid on March 31, 1899, when the deed was to be delivered. It was further provided that, if the lessee did not exercise said right to purchase, it should, on said December 31, 1898, pay the lessor additional rental in the sum of $5,000. the rent of $5,000 reserved in the lease having been reduced to the latter sum in order to induce the lessee to exercise the option; and, further, that, if the lessor should be unable to convey a good and clear title, preventing an exercise of the option, then the lessee should not be obliged to pay the additional $5,000. On December 31, 1899, the title was defective and the option was never exercised. On demurrer to the complaint in an action for the additional $5,000, brought by an assignee of the lessor,</p> <p>Held, that he was not entitled to recover the additional $5,0001 That the true construction of me various clauses of the instrument made the state of the title, on December 31, 1898, the material and decisive time, and that, as the title was defective on that day, the lessee was wholly excused from exercising the option.</p>

<p>Corporation — Unnecessary voluntary dissolution restrained by minority stockholders.</p> <p>Where a stock corporation is prosperous and no reason appears Why it should be voluntarily dissolved, the court will, at the suit of minority stockholders, who allege that the dissolution of the corporation and the proposed substitution for the latter of a partnership constitute a scheme of the majority to “ freeze out ” the minority and O buy in the corporate assets at a loss to the corporation, restrain all proceedings looking to' a dissolution until the question whether a permanent injunction should be granted the minority has been decided by a trial upon the merits; and this, although the minority acting, as they now allege, in haste or under the influence of the dominating stockholder of the corporation, have already, as directors, voted, at a preliminary meeting of the directors, in favor of dissolution and have then signed a written agreement to form a partnership in lieu of the corporation.</p>

<p>Motion to set aside an attachment.</p>

<p>Negligence — Complaint must show that the accident caused the injury.</p> <p>Where the complaint, in an action predicated upon negligence, although alleging a negligent act and injuries caused by it, nowhere charges that the injuries sustained by the plaintiff were caused by said negligent act, no proof on that point can properly be received on the trial, and the complaint must be dismissed, opportunities to amend it having been disregarded.</p>

<p>1. Receiver — Interest on the fund — Commissions.</p> <p>Where a bank, as a judgment creditor, is finally defeated after twelve years’ litigation in an action to set aside an assignment for benefit of creditors, the general assignee cannot, after lying by, charge a receiver, appointed in the action and not directed to invest the funds of the judgment debtors, with twelve years’ interest, or with any interest, on the funds, which, during this period, had been deposited with the bank. The receiver will, however, not be allowed any commissions on said funds.</p> <p>8. Same — Loss on sale of a security.</p> <p>The general assignee cannot lie by for years and then seek to charge the receiver with a loss incurred by his selling a disputed bond and .mortgage, belonging to the estate, for about one-fourth of its face.</p>

Proceeding to recover possession of the first floor and part of cellar of premises ISTo. 12 Grand street in the city of Albany.

<p>Crimes — Burden of proof where self defense is pleaded.</p> <p>Where a charge of assault is met by the pleading of self defense, it is erroneous for the court to charge that the defendant has the burden of proof upon the latter question, and this because no defense to a crime can be affirmative in its nature, and the burden of proof be upon" the defendant to make it out — all evidence for the defendant coming in under the general issue, upon which the burden of proof is always upon the people.</p>

<p>Demueeee to complaint.</p>

<p>Motion to confirm the first partial and separate report of the commissioners of estimate and apportionment in the above-entitled matter.</p>

<p>Motion to vacate an attachment.</p>

<p>Motion for an additional bill of particulars.</p>

<p>Motion by plaintiff to set aside a dismissal of the complaint.</p>

<p>Action to charge the real estate of which Gideon E. Moore died seized, with an indebtedness due from him to the plaintiff.</p>

<p>Motion for the appointment of a receiver pendente lite, of a partnership which has been dissolved by the effluxion of time.</p>

<p>Motion to vacate an attachment.</p>

<p>Motion for leave to amend answer.</p>

<p>Motion to vacate and set aside certain findings of fact and conclusions of law.</p>

<p>1. Mandamus — Peremptory, denied where the facts are disputed.</p> <p>A peremptory mandamus will not be granted where a material fact is in dispute between the parties.</p> <p>2. Register’s office of New York — “Expedited” search — Request therefor.</p> <p>Semble, that a search of the register of the county of New York cannot be deemed an “ expedited ” one, for which he may charge extra fees, unless there is an indorsement upon it calling for its return on a day earlier than the fifteen days allowed the register by statute for making a search. The indorsement need not be made by the party requiring the search, and it is enough that it be made thereon by a person in the office at his request.</p>

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

<p>Civil service — Municipal rules do not operate retroactively.</p> <p>Where a statute (Laws of 1899, chap. 370), contemplating the classification of city laborers, requires rules promulgated under it by a city civil service commission to be first approved by the State Oivil Service Commission, a laborer, summarily removed before such approval, cannot claim any rights under an unapproved rule of the city commission requiring a statement of the cause of his removal to be made, and an opportunity for explanation to be given him, as the rules cannot be permitted to have any retroactive effect.</p>

<p>Demurrer to complaint.</p>

<p>Trust — Stock dividends must be added to the corpus, and cannot be paid to the life beneficiaries.</p> <p>Where a trust, whose income is payable to the testator’s children for life with remainder to their right heirs, consists, in part, of stock, a stock dividend thereon of fifty per cent., representing accumulated past earnings of the corporation, should be added to the corpus of the trust and should not be paid to the life beneficiaries as income.</p>

<p>Negligence — A wife cannot maintain" an action against one whose negligence injured her husband.</p> <p>A wife cannot maintain an action for the loss of her husband’s support, companionship and personal care, resulting from the fact that he has been injured by the defendant’s negligence in managing a horse, as neither the common nor the statute law affords any ■ ground for such an action.</p>

<p>Action in equity to determine the distribution of a fund.</p>

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

Action to foreclose mechanic’s lien by subcontractor, upon moneys due to contractor from the city under contract for public work.

<p>Action for money had and received, tried by consent without a jury.</p>

<p>Application for an order revolting and cancelling a liquor tax certificate.</p>

<p>Appeal from the Municipal Court of the City of New York. Motion by ‘the respondent for a re-taxation of his costs of appeal, the judgment having been affirmed.</p>

<p>Motion by the purchaser at foreclosure sale to compel the referee to pay certain state, county, village and school taxes for the years from 1893 to 1897 inclusive. The land is situated in the Village of Port Richmond, Town of Horthfield, Richmond county.</p>

Action on a claim against an administrator for money alleged to have been obtained of the plaintiff by the decedent by fraud, i. e., in that the decedent by falsely and fraudulently representing' herself to be without means and in poverty obtained such money of the defendant in charity. The claim having been presented to the administrator was rejected by him on March 17th, 1898. This action was begun on September 6th, 1898.

<p>This action is brought by plaintiffs as taxpayers of the town of Orogan in effect to prevent the construction of a bridge over the Beaver river in said town by the defendant Bridge Company under an alleged contract made by it with the defendant Pate as commissioner of highways of said town. It is brought upon the theory and in the form of an action to restrain waste. The alleged contract provides for the construction of said bridge 'for $3,500, and purports to have been made under section 10 of the Highway Law, which at the time'the contract was made read as follows:</p> <p>“ Section 10. If any highway or bridge shall at any time be damaged or destroyed by the elements or otherwise or'become unsafe, the commissioner of highways of the town in which such highway or bridge may be 'situated may with the consent of the town board cause the same to be immediately repaired or rebuilt,” etc.</p> <p>Plaintiffs’ counsel in 'his brief upon the submission of the case states three grounds upon which the relief asked for should be granted. First, that no consent of the town board to the building of'the bridge was given as required by statute. Second, that the contract under which the parties were acting was not a valid contract because not completed. Third, that the alleged contract was corrupt and made for'the purpose of defrauding the town.</p>

<p>Action against sureties upon the bond of a general guardian after an accounting by the guardian in Surrogate’s Court.</p>

<p>Motion to compel purchaser to take title.</p>

<p>Action to recover money paid by defendant on forged indorsement of plaintiffs’ firm as payees of bank check.</p>

<p>Municipal corporation — Liable to contractor, where a water pipe licensed by it interferes with his work.</p> <p>Where a contractor, with the city of New York to sink a crib for a proposed bridge, is delayed by the presence, under permission of the city, of a water pipe at the place where he was to place the crib, the city is liable to him for damage for the delay, as such a pipe cannot be deemed an .unforeseen obstruction, nor was it one which the contractor could lawfully remove.</p>

<p>Motion to set aside the service of a summons.</p>

<p>Injunction — Failure of moving party to show title.</p> <p>Where the record does not show that the plaintiff has title to a strip of land, lying between his lot and that of another, he cannot restrain the adjoining owners from building on the strip, and a temporary injunction, granted in the matter, must be vacated.</p>

<p>Demurrer to complaint.</p>

<p>Application for an order passing the account of the assignee, fixing the commissions and counsel fees, and directing their payment and directing that upon payment to the substituted assignee of the balance shown by said account, less such commissions and counsel fees, the bond of the assignee be cancelled and the surety thereon released.</p>

Upon April 30, 1891, plaintiff' recovered a judgment against the defendant John 0. Keeffe for $6,365.37. Execution was duly issued upon said judgment and returned unsatisfied except as to the sum of $580, and there is now due upon said judgment the sum of about $8,800.

This is a writ of certiorari to review the proceedings leading up to a proposed assessment by the city of Syracuse upon property bounded upon part of McBride street, in said city, for the purpose of defraying the cost of paving said street.

Reabgument of an appeal by the plaintiff from an order of the General Term of the City Court, affirming an order of the Special Term of the City Court, requiring the plaintiff to give security for costs.

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

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

Appeal by the defendant from an order of the General Term of the City Court, affirming an order of the Special Term, adjudging the defendant guilty of contempt.

<p>Common carrier — Estoppel as to clause in bill of lading requiring a claim for loss to be made within thirty days.</p> <p>Where the vendor of goods, consigned by himself to himSelf at a distant point, after learning that the vendee has failed to pay for them on delivery, as agreed, demands them of the carrier on the thirtieth day after they were forwarded, and is' then informed by its agent that it has the goods and will return them to the vendor within a few days, the carrier cannot escape liability for a conceded misdelivery to the vendee, made without any payment or the presentation of the bill of lading, by setting up the conceded failure of the vendor to comply with a clause in the bill of lading which protected the carrier from liability for loss or damage, unless claim was made therefor within thirty days after the delivery of the property or after due time for the delivery thereof.</p>

<p>Appeal by the defendant from a determination of the General Term of the City Court, affirming a judgment of the Trial Term., rendered on the verdict of a jury.</p>

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

Appeal Ro. 1. Appeal by the plaintiff from an order made in the Municipal Court, seventh district, borough of Manhattan, opening a default and vacating a judgment entered in favor of the plaintiff. Appeal Ro. 2. Appeal by the plaintiff from a judgment rendered in the Municipal Court, seventh district, borough of Manhattan, in favor of the defendant.

Appeal by the defendant from an order and judgment rendered in the Municipal Court, fourth district, borough of Manhattan in favor of the plaintiff.

<p>.negligence — Voluntarily placing one’s self in a danlgerous position.</p> <p>A person who, after seeing a street car 250 feet distant from him, drives on the car track and makes no further attempt to observe the car, although it was continually approaching him from the rear, must be considered to have voluntarily placed himself in a dangerous position, is guilty of negligence, and can recover no damages for a collision which occurred as he was turning out of the track.</p>

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

<p>1. Contract — Failure to pay installment on delivery of goods.</p> <p>Where an agreement constitutes a deposit security for monthly payments in two installments for tailors’ monthly clippings, a failure of the depositors to pay an installment upon a delivery of the clippings made to them, is a breach of the contract which entitles the tailors to refuse to make further deliveries and precludes the depositors from recovering their deposit from the tailors.</p> <p>2. Same — Not to be varied by parol.</p> <p>A written agreement, which has been treated by the parties as constituting the whole contract, cannot be varied by parol.'</p>

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

<p>Negligence — Waiver by infant. sui juris of the protection of the Factory Act.</p> <p>Assuming that a cogwheel of a cylinder press was not guarded in the manner required by the Factory Act, a boy, aged sixteen years, who has worked at the press sufficiently long to be charged with its obvious perils, can recover no damages from his employer for injuries caused to his leg by the cogwheel catching it as he slipped from a platform while feeding the press, as his continuance in his employment amounts to a waiver of the protection of the said act.</p>

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

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

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

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

<p>1. Common carrier — Not excused from tendering freight by a clause in the bill of lading which permits the carrier to store it.</p> <p>Where a bill of lading of freight requires the carrier to tender it to the consignee, the carrier is not excused from making some tender, either actually or through a notice of the arrival of the goods, by a separate and distinct clause of the bill of lading which declares that the carriage of the merchandise shall be complete, “ when it has been held a reasonable time without notice, say twelve working hours ” subject to the owner’s order at the point of delivery, and that, ’if the consignee had then failed to remove it, the carrier may store it at his expense and risk without notice, as the latter clause, while changing the nature of the carrier’s liability, cannot excuse it from failing, to make any tender whatever to the consignee.</p> <p>¡2. Same — Evidence of custom inadmissible.</p> <p>Under such a bill of lading, evidence of a custom, dispensing with a tender in the case of freight, is inadmissible.</p> <p>MacLean, J., dissented.</p>

Appeal by thé tenant from a final order in favor of the landlord, made in a summary proceeding in the Municipal Court, ninth district, borough of Manhattan.

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

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

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

<p>Evidence — Cost of repairs.</p> <p>The cost of repairs is not adequate proof of their value, but may be accepted as sufficient when supplemented by testimony that other dealers would have charged more than the repairs cost.</p>

<p>Fraudulent transfer.</p> <p>Circumstances deemed sufficient to show that a transfer of a baker’s business to his driver, a man without apparent means, was colorable merely and void as to the baker’s creditors.</p>

<p>Summary proceedings — Defense that landlord did not put tenant in possession of' the entire premises.</p> <p>It is the duty of a lessee, and not that of his landlord, to eject one who, at the inception of the demise, is wrongfully holding over in a part of the demised premises, and hence, where rent is unpaid, it is not a defense to the lessee, in summary proceedings, that the latter has failed to put him in possession of the entire premises.</p>

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

Pboceediitg to investigate the ballots returned as protested and void for the office of overseer of the poor in the town of Catskill, at the last general election.

<p>Application for a new trial on the ground of newly-discovered evidence.</p>

<p>'Action for partition.</p>

<p>Action for the foreclosure of a mortgage.</p>

Petition by Valentine Smith for the determination of conflicting claims to a fund in court, being an award for land taken by the city of Brooklyn by eminent domain proceedings.

<p>1. Reference — Of two cases to same referee — Stay, pending an appeal in one of them, refused.</p> <p>Where two actions, involving the services of the same agent to the same insurance company but relating to different territories, have been referred to the same referee, the fact that he has decided one of them against the company does not entitle it to stay the trial of the other until its appeal in the first has-been heard, there being no proof that such a disposition would prejudice the company.</p> <p>2. Same — Referee discharged after deciding one of them.</p> <p>Where, however, the decision of the referee has discredited some of the company’s witnesses and has charged it with bad faith in 'the interposition of its chief defense, and the same witnesses will be necessary and some of the same questions of fact will arise upon the trial of the second action, the court will, in the interests of fairness and not as a criticism upon the referee, discharge him from further consideration of the second action upon condition that he be paid such fees as he has earned, and that the defendant stipulate to try before another referee to be selected by the court.</p>

<p>Application for an order revoking and cancelling a liquor tax •certificate.</p>

<p>Application for an order revoking and cancelling a liquor tax certificate.</p>

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

<p>Action to set aside conveyances made by a decedent, as in fraud of creditors, or upon the ground of undue influence. The facts, so far as they are material, are stated in the opinion.</p>

<p>Life insurance — Complaint at law, by policyholder on a “ semi-ton-tine ” plan, to reach the reserve and surplus — Accounting and apportionment unnecessary — Equity — Demurrer.</p> <p>A complaint, in an action at law for breach of contract, aften alleging the making by the defendant, an insurance company, of a policy on the “ semi-tontine ” plan, upon another life, for the benefit of the plaintiff, the payment of the premium, the completion of the tontine dividend period when the policy was to be paid, and the performance by the plaintiff of all stipulations upon her part, alleged, in substance, that the defendant had failed to perform further conditions of the policy by which it agreed, at the completion of the said dividend period, to pay the plaintiff her share of the accumulated reserve of the policy, and also apportion equitably to her her share of the surplus or profits from policies issued by the defendant on the tontine plan, the exact value of each interest being stated, although no method of computation was given. The defendant demurred.</p> <p>Held, that the contention of the defendant, that the plaintiff’s only remedy was in equity, was untenable.</p> <p>That, as the demurrer admitted that the plaintiff’s share oí the surplus was the sum named in the complaint and also that the defendant was bound to make an equitable apportionment thereof at the end of the dividend period, no accounting, nor any formal apportionment, was necessary in order to determine that sum.</p> <p>That, the mere allegation of the complaint that the defendant had issued a large number of policies on the semi-tontine, tontine, and other plans and schemes, afforded no ground for the contention that an equitable action must be brought upon the ground that the. presence of many other persons, similarly situated, was necessary to a final determination of the controversy.</p> <p>That, the act, relating to when the Attorney-General must sue (Laws of 1892, chap. 690, § 56), applied only when a party was seeking by an accounting, etc., to interfere with the business of a domestic insurance company, and had no application to an action where no accounting was sought nor any needed.</p> <p>That where a complaint stated only one cause of action, consisting of two items, a demurrer to it was bad, if the plaintiff was entitled to recover on one of the items.</p>

<p>Extra allowance — None on overruling a demurrer.</p> <p>An extra allowance cannot be granted upon the overruling of a demurrer to the complaint, leave being given to answer on payment of costs, as such an allowance is proper 'only when a final judgment is given which terminates the action unconditionally and fixes absolutely the right of the successful party to tax costs.</p>

<p>Motion to open judgment.</p>

<p>Action to compel retransfer of certain stock and for an accounting of dividends.</p>

<p>Motion to set aside a verdict as against the weight of evidence and upon exceptions.</p>

' Action by plaintiff to recover money deposited with the county treasurer of St. Lawrence county for a liquor tax certificate.

Actions for damages for the alleged negligence of the highway commissioner of the defendant. Verdicts for defendant. Motion for new trial on the affidavits of all of the jurors, and on the ground of newly discovered evidence.

Makdamus to reinstate the relator who alleged that he was an honorably discharged Union soldier, that he entered the employment of the Hew York city dock department on or about October 30, 1874, as an inspector of painting, and that he was discharged October 31, 1895.

<p>Money had and received — Breach of trust in failing to pay moneys as agreed — Counterclaim.</p> <p>Where the payee of a note, representing a balance due her upon a contract for an exchange of properties, after accepting from the makers a deposit for the sole purpose of paying, for them, taxes due on their property, taken in exchange, but not then presently payable, thereafter fails to pay them, and the makers, because of their liability under a second mortgage, are compelled to make the payment, they may counterclaim their deposit against their note, as the payee received the deposit impressed with a trust to pay the taxes and, by her failure to perform the trust, has become possessed of money of the makers for which she has made no return and which she cannot therefore retain.</p>

<p>Sale — Offer and acceptance.</p> <p>Vendees asked to Inspect a sample of cloth which the vendors had said they would sell at 871-2e per yard. After seeing the sample, they offered, by mall, 80c, and requested to be informed by return mall whether the offer was accepted or rejected. On the next day the vendors answered we will “ submit your offer to the mill and advise you promptly regarding same.” The vendors received a favorable reply from the mill, and four days later delivered the cloth to the vendees and took their receipt for it. Later, on the same day, the vendees declined, by mail, to accept the goods, and stated that they were held subject to the vendors’ orders.</p> <p>Held, that there was no sale, and no acceptance which' precluded the vendees from claiming that the minds of the parties had never met.</p>

<p>Action brought to restrain the defendant from constructing a street railway upon the White Plains road in the defendant town. It was brought by the commissioner of highways, in the name of the town, under section 15 of the Highway Law. The defendant claimed the right to construct such road under a consent which had been granted to the Horth Mt. Vernon Railway Company, in May, 1896, which consent contained a provision to the, effect that the road should he constructed by the 1st day of January, 1897, or that the consent should then become null and void, without any action or proceeding at law or otherwise. In 1898, a mortgage, given by the FTorth Mt. Vernon Railway Company to secure certain bonds, was foreclosed, and upon the foreclosure sale these francMses and properties were sold to one Halsey, who subsequently conveyed them to the defendant. The defendant claimed the right to construct the railway under such consent, and under such claim had entered upon the highway and begun the construction of the road. Thereupon, in November last, this action was commenced to enjoin the defendant from constructing such railway, and to compel it .to remove the track already laid by it and to restore' the highway to its former condition. The defendant interposed a demurrer to the complaint upon various grounds, but chiefly upon the ground that the facts alleged in the complaint did not establish any cause of action in the plaintiff; in other words, that such an action as this could not be brought in the name of the town under section 15 of the Highway Law.</p>

<p>Appeal by the defendant from a judgment of the General Term of the City Court of Hew York, affirming a judgment entered in the plaintiff’s favor upon the report of a referee. The nature of the action and the material facts are stated in the opinion.</p>

<p>1. Replevin — By vendors against purchasers, with notice, from fraudulent vendees — Notice — Good faith — Valuable consideration.</p> <p>Vendors and partners who have been induced to sell goods by the false representations of their vendees, as to their solvency, may maintain replevin against persons who purchased the goods from the vendees with knowledge of the fraud.</p> <p>After the vendors have proved the fraud, they may rest and the defendants must then prove, not only that they purchased in good faith, but also that they paid value.</p> <p>Direct proof is not necessary to establish the fact that the defendants had actual notice of the fraudulent intent of the original vendees, and notice thereof may be inferred from the circumstances which surround the entire transaction.</p> <p>Where the defendants are shown to have taken the goods in question from the vendees at twenty-five per cent, below the inventory price, the question, whether the transfer was for a valuable consideration, must be submitted to the jury.</p> <p>3. Same — Partner bound by knowledge of his copartners — Interest in the event.</p> <p>Although the evidence of one partner of the defendants’ firm fails to disclose that he had any knowledge of the fraud in the transfer, this cannot discharge him, as he is bound by the knowledge of the fraud which his partners had.</p> <p>The testimony of the partner may be disregarded by the jury, as he is an interested party.</p> <p>3. Same — When complaint need not show wrongful detention — Code Civ. Pro., | 1731.</p> <p>Where the taking of chattels was tortious, the complaint, in an action to recover possession of them, need not set forth facts showing that their detention was wrongful.</p> <p>Section 1721 of the Code of Civil Procedure does not apply to such a case.</p> <p>4. Same — Payment of value cannot protect a sale where there was an absence of good faith.</p> <p>Where the jury have found that the. defendants were not purchasers in good faith, it cannot avail the defendants that they were to some extent purchasers for value.</p>

Appeal by the defendants from a judgment of the General Term of the City Court of New York, affirming a judgment entered in plaintiff’s favor for $91L14 damages and costs, upon the verdict of a jury. The nature of the action and the material facts are stated in the opinion.

<p>Appeal from a judgment of the General Term of the City Court, affirming a judgment entered upon the verdict of a jury, rendered by direction of the court.</p>

<p>Municipal Court of the City of Hew York — Bight to discontinue — When not waived.</p> <p>At any time before an action, in the Municipal Court of the city of New York, is finally submitted, the plaintiff has an absolute right to discontinue.</p> <p>This right is not waived because his attorney, after moving to discontinue at the close of the testimony of one of the defendants, subsequently cross-examined another witness sworn for the defendants, and did not renew his motion after the proofs were all in.</p>

<p>Negligence — Mutual rights of vehicle and street car at street intersection — Contributory negligence, a question of fact.</p> <p>At the intersection of two streets, the driver of a vehicle has a right to cross the tracks of a street surface railroad, although a car is in sight, provided there is reasonable opportunity for him to do so; and if, for that purpose, it is necessary for the person in charge of the motive power of the car, to check its speed, or even stop it entirely for a short period, it is his duty to do so; and the driver has a right, without necessarily being chargeable with negligence, to assume that the duty will be performed.</p> <p>The rights of the driver and those of the person in charge of the motor power, are, in such case, reciprocal.</p> <p>The question, whether it is a negligent act for a driver to cross a track when a street car is approaching, depends upon the circumstances of each case, and should be submitted to the jury.</p>

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of ¡New York, borough of Manhattan, rendered in favor of the defendant, upon a trial had before the court, without a jury.</p> <p>The nature of the action and the material facts are stated in the opinion.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered in favor of the plaintiff, upon a trial had before the court, without a jury. The nature of the action and the facts, so far as material, are stated in the opinion. •

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered in favor of the defendant, upon a trial had before the court without a jury. The nature of the action and the material facts are stated in the opinion.

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, rendered in favor of the defendant, upon a trial had without a jury.</p> <p>The nature of the action and the material facts are stated in the opinion.</p>

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

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

<p>Appeal from a judgment of the Municipal Court of the city of ¡New York,'eleventh district, borough of Manhattan, in favor of the defendant.</p>

<p>Appeal from an order of the Municipal Court of the city of New York, fifth district, borough of Manhattan.</p>

<p>Appellate Term — May reverse Municipal Court default judgment where the facts are insufficient to support it.</p> <p>An appeal lies to the Appellate Term from a judgment rendered upon the default of the defendants, in an action brought in the Municipay Court of the city of New York, and the said judgment will be reversed where the evidence offered .in support of the complaint is insufficient to make out a .cause of action.</p>

This is a proceeding under section 27 of the General Corporation Law to establish an election of directors in the Mutual Fire Insurance Company, of Albany, which was incorporated pursuant to the provisions of chapter 239 of the Laws of 1836 and amended by chapter 47 of the Laws of 1848.

<p>Application for costs, under section 1836 of the Code of Civil Procedure, and also for an extra allowance.</p>

<p>Motion to vacate an attachment on the papers upon which it was granted.</p>

<p>Motion to quash a writ of certiorari.</p>

<p>Motion for a reference, under the Tax Law, to try issues of fact raised by the return, of the tax commissioners of the city of Hew York, to a writ of certiorari granted to review an assessment made by them.</p>

<p>Motion for new trial in an action for false imprisonment on the ¡ground that the court erred in charging the jury that they could .give punitive damages, and also on the ground of excessive damages.</p>

<p>Action to enjoin production of musical comedy — Injunction refused — Contract not rescindible ■ for non-payment of royalties — Estoppel — Expenses incurred by the defendants — Their pecuniary responsibility.</p> <p>Where it appeared, in an action brought by the composers of a musical comedy to compel assignees, who became such on May 4, 1897, of the exclusive right to produce it, to account for royalties accruing thereon in 1898, and to restrain such assignees and their assignee from any further production of the comedy, that the defendants had a right to produce the comedy, that the mesne assignee had already paid large sums in so doing and had incurred other large expenses for important advance engagements, that the contract contained no provision for its forfeiture or rescission - in case the royalties were not paid, that, although the plaintiffs claimed a right under the contract to require notice if the defendants wished to prdduce the comedy after the theatrical season of 1897-1898, they had, with knowledge of its production in the United States and other countries, accepted royalties up to December, 1899, that the defendants claimed that they had already tendered all the royalties which were due and had rendered statements of the gross receipts of each performance, which had not been objected to in 1898, and that they denied their insolvency and alleged their pecuniary ability to pay any judgment which might be recovered against them, the court considered that the final success of the plaintiffs and their right to maintain the action were not so clear and certain as to justify the granting of the severe and drastic remedy of a preliminary injunction, restraining the production of the comedy, and especially where tiiere was opportunity for a speedy trial at which the rights of the parties could be better determined than upon a motion.</p>

Motion by defendant Meissner to dismiss the action and vacate all proceedings had upon the following grounds: (1) That the charter of the plaintiff corporation has been annulled by the authorities of the State of Mew Jersey pending the action, and, therefore, it cannot be continued in the name of said corporation; and (2) that the bringing of the action was not properly authorized by said corporation.

<p>Motion by plaintiff for a reargument of a motion, made by defendant, to set aside an execution.</p>

<p>1. Liquor Tax Law — Good faith cannot assist a false statement in the application.</p> <p>The good faith of the applicant, for a liquor tax certificate, in making a material statement in his application which was false when made, is not a defense to an application to cancel his certificate made under subdivision 2 of section 28 of chapter 112 of the Laws of 1896.</p> <p>2. Same — Exemption of place occupied as a hotel on March 23, 1896.</p> <p>The exemption, as to consents, conferred by subdivision 8 of section 17 of said act, upon a place occupied as a hotel on March 23, 1896, is not given to a place then occupied as a boarding-house.</p>

Cbbtiobael brought under the General Tax Law, to review the assessment for the year 1899, made against the personal property of the relator, a domestic corporation.

<p>1. Sale ot infant’s real estate — Competing contracts to "buy such real estate, which was subject to curtesy.</p> <p>Where a father has curtesy in the lands of his infant children, a contract for the sale of their lands by the terms of which the purchaser agrees to pay therefor $28,333.33, “ subject to the life estate by right of curtesy of the father ”, is more favorable to the infants than one for $29,250 net, burdened with a proviso that the father shall have curtesy in the proceeds instead of in the lands.</p> <p>2. Same — Ineffectual release of curtesy — Code Civ. Pro., § 2362.</p> <p>A release of curtesy, executed under Code Civ. Pro., § 2362, running td either of the two prospective purchasers, and obtained from the father by the special guardian without any payment made by the purchasers but upon the parol understanding between the guardian and the father that his curtesy should follow and attach to the proceeds of the sale when made, confers no rights on said purchasers, and where, upon a contest in regard to which of the two contracts was more favorable, the purchasers under the first contract still insisted that they were willing to pay $28,333.33 and take a deed from the guardian burdened with the father’s interest, the court gave them thirty days to procure a deed from him of his curtesy and present it to the court, as a condition of its approval of their contract.</p> <p>S. Same — Waiver of written consent, of the holder of the prior estate, to a sale — Code Civ. Pro., § 2362.</p> <p>The absence of the consent in writing of the father, and holder of the prior estate, to accept a gross sum or have a proportionate share of the proceeds invested for his benefit, was excused where it was evident that he was willing that this should be done.</p>

<p>Motion to continue a temporary .injunction restraining the defendants, during the pendency of this action, from prosecuting certain writs of attachment in the city of Spokane in the State of Washington.</p>

<p>Demurrer to complaint.</p>

<p>1. Assignment for benefit of creditors — Irregularity of order requiring assignee to account or show cause why he should, not be declared in contempt.</p> <p>An order requiring a general assignee, residing without the State of New York, to show cause why he should not be declared in contempt for having failed to file an account in the forum of his appointment after having been duly cited thereto, and providing impersonal service upon him without the State of New York or for service by mail at his foreign residence, is irregular if made returnable within twenty-one days, for, if it be regarded as an order to show cause it should have been made returnable within eight days, while, if it is to be deemed a citation, the Assignment Act (Laws of 1877, chap. 466, § 16) requires that it be served without the State thirty days before the return day.</p> <p>2. Same — Personal service of an order necessary to found a contempt.</p> <p>■ A general assignee cannot be punished for contempt in disobeying an order unless it was served upon him personally, service by mail being insufficient.</p>

<p>Application for a special town meeting under the provisions of section 16 of the Liquor Tax Law.</p>

<p>Demübbeb to plaintiff’s complaint.</p>

This is a motion made by defendant to set aside a verdict obtained against it at the Onondaga Trial Term for the sum of $5,000. The real basis of the motion is that the verdict was against the weight of evidence. Plaintiff’s intestate was killed by a collision with one of the defendant’s trains at a highway crossing in the country east of Syracuse.

Action for damages for personal injuries. The negligence alleged in the complaint was by the general allegation that “ by reason of the carelessness and negligence of the defendant” the electric street car in which the plaintiff was a passenger “ was thrown from the track upon which it was running with great speed.” The plaintiff’s counsel introduced evidence tending to show that the car was being run at so high a rate of speed on a curve that it jumped off the track.

<p>Beal property — Revocation of inchoate dedication of a street before acceptance — Practical location.</p> <p>Where the members of an unincorporated association, then the equitable owners of a tract of village land, file a map of it, in 1851, showing a street sixty feet wide, and, five months later and before the street had been laid out,, pass a resolution privileging each member “ to set hisc fence five feet on the sidewalk ” and such a change is made by them, a subsequent statute (Laws of 1854, chap. 114, § 7) declaring that all the streets of the village “ shall be considered to be highways of the width of sixty feet ”, cannot, to the detriment of abutting owners, be deemed an acceptance by the village of the street at its original width, as the tender of the street, or its inchoate dedication, must be regarded as having been effectively revoked by the association before such acceptance.</p> <p>Under such circumstances the practical construction, placed upon the situation for nearly fifty years by the landowners and the public authorities, must control.</p>

<p>Physician and patient — Privilege of patient waived by his testimony in court— Code Civ. Pro., §§ 834, 836.</p> <p>Where a patient interposes, to a female physician’s claim for services, a counterclaim based on her negligent and unskillful treatment, and supports this, not only by his own evidence and that of his wife as to his symptoms and treatment during his entire illness, but also by the evidence of two surgeons, who testified that they were called in and told the female physician that she had made a mistake in diagnosis, notwithstanding which she persisted in the same treatment, and that they subsequently operated for another disease and that the patient then speedily recovered, the patient must be deemed to have waived the protection afforded him by sections 834 and 836 of the Code of Civil Procedure, and the female physician is entitled to prove by a physician, who was called In before the surgeons, that he diagnosed the disease as she did, and that the patient did not disclose to him any of the symptoms for which the surgeons operated, and, by another physician, called in later but before the surgeons, that he discovered the disease for which the surgeons operated, that the patient admitted to him that he had not given the female physician the information which he gave him, and that the patient stated his reasons for not telling her.</p>

<p>Motion for a nonsuit..</p>

<p>Motion to set aside service of summons.</p>

<p>Contempt — Conduct of person who incites accident cases against corporations and furnishes witnesses false testimony, condemned — He cannot be punished civilly where the corporation succeeds on the trial — Code Civ. Pro., § 14.</p> <p>, pphe conduct of an “accident adjuster ”, employing his time in dis- . covering accidents and in inducing the injured to go to a lawyer of ;his selection, in furnishing to. proposed witnesses for the plaintiff, ,■.... -in an'action predicated on the negligence of a street railway corpora- ■ ■ tion,. typewritten statements of false testimony which they were to give, upon the trial, is strongly to be condemned; but where the defendant succeeded upon the trial, the court considered that a motion to punish the “ accident adjuster ” for a civil contempt, under section 14 of the Code of Civil Procedure, must be denied, as his misconduct could not be said to have defeated, impaired, impeded or prejudiced the right of the defendant.</p>

<p>Action on a promissory note made by the Consolidated Butter & Egg Company to the order of and indorsed first by Frank Gold-stein, and afterwards by the other defendants, and delivered by Goldstein to the plaintiff. The maker and payee made no defense. The subsequent indorsers did defend.</p>

<p>Fire insurance — Calculation of rebate on unearned premium of can-celled policy.</p> <p>An insurance company, when cancelling a policy before maturity, has no right to deduct anything from the unearned premium beyond what is admissible under the short rate system; and a further deduction, through which it seeks to get back what it has paid brokers to place the risk, is wholly unauthorized and may be recovered of the company by an assignee of the insured.</p>

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

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

<p>Negligence — Bight of landlord to show he was not in possession of an area, whose grating caused an accident to a third party — Lease as evidence of nature of possession.</p> <p>Where the owner of premises in the city of New York is sued for injuries alleged to have been sustained by a third person from a defective grating covering an area located within the stoop line, close to the cellar wall of the premises and lighting and ventilating the cellar from the street, the owner is entitled to show that he was not, at the time of the accident, in possession of the area, as his liability to the plaintiff is dependent thereon; and, therefore, he should be permitted to prove, upon the trial, a written lease of the first floor and cellar, with “the appurtenances”, to the end that 11 may be determined whether, under a true construction of the lease In the light of the intention of the parties to it and of their acts undci it, the owner retained title to the area and was therefore bound 1“ repair it, the tenant having only an easement of light and air there from. Whether an area not specifically referred to in a lease of a store and cellar is conveyed by the lease depends upon whether it is an incident and so piece or parcel of the demised premises, or not</p>

<p>Negligence — Master not liable unless the offender was his servant.</p> <p>A carter of coal for a power company, who at times employs, for that purpose, a third person independently engaged in the coal business, and pays him merely by the day or hour for the cart, horses and driver, is not liable for the act of such driver in leaving a coal-hole open into which a woman fell and was injured, it appearing that, although the defendant employed the cart, etc., of the coal merchant to deliver coal for the power company, he was not the master of the offending driver, did not select or pay him, had no power to discharge him, was not present- when the coal was loaded for delivery from a boat of the- power company under the sole supervision of its representatives, and had never given the offending driver any directions in the matter.</p>

<p>Appeal —■ Limited by service of uncertified copy of judgment.</p> <p>The time to appeal is limited by the service of a true copy of the judgment, where the same purports to have been signed by the proper clerk, and it is unnecessary that the copy served should be duly certified.</p>

<p>1. Contract — Rescission after reasonable time for performance.</p> <p>Where a company promises, for value received, to make a person a loan to pay his debts and does not do so within a reasonable time, the person may rescind and sue on contract for so much of the consideration as has not been repaid him.</p> <p>2. Recovery in tort — When permitted to stand.</p> <p>Such facts do not authorize an action for conversion, but where the objection was not taken on the trial, a judgment for the plaintiff will be affirmed.</p>

<p>Municipal Court of the city of New York — When jurisdiction of an action, once tried, is lost by a failure to order a jury trial.</p> <p>Jurisdiction of an action, once tried before a justice of the Municipal Court of the city of New York, is entirely lost unless, within eight days after its submission to him, or, where his time to decide it has been extended for more than eight days, within the period of such extension, he certifies that a jury trial is proper and orders one as required by the Consolidation Act (Laws of 1882, chap. 410, § 1372).</p> <p>After such failure upon the part of the trial justice, no other justice can try the action.</p>

<p>Principal and agent — Salesman has no implied authority to advertise his master’s goods.</p> <p>A mere salesman has no implied authority to advertise in a newspaper that the wares of his master are on sale at a certain store, even though the salesman had agreed with the proprietors of the store that he would have such an advertisement inserted, and where the master repudiates the transaction at the first opportunity and never subsequently ratifies it, the proprietors of the newspaper can recover nothing of him for the insertion of the advertisement.</p>

<p>Use and occupation — Hot maintainable against tenant holding over his year.</p> <p>Where a tenant for a year holds over the term, the landlord may treat him as tenant for another year or as a trespasser, but a recovery as for use and occupation cannot be supported.</p>

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

<p>Common carrier — Theft of money from a stateroom.</p> <p>Where a passenger on a steamship, after having been assigned a stateroom but not given a key to it, places a sum of money reasonable for his traveling expenses in his traveling bag, locks the bag, closes the door of the room and goes for a key, the carrier is liable to him for a theft of his money which occurred before he could return.</p>

<p>Lease — Unauthorized payment, to third party, .of rent.</p> <p>A tenant must perform his agreement to pay his rent in advance on the first day of the month, although the landlord has agreed to sell the demised premises on the fifteenth and allow the purchaser half a month’s rent; and where the tenant of his own motion pays this half to the purchaser directly, the payment is not a defense to him pro tanto in an action for the rent.</p>

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

Appeal' from a judgment in favor of the defendant, rendered in the Municipal Court of the city of Hew York, tenth district, borough of Manhattan.

<p>Municipal Court of the city of Mew York — Failure of proof does not justify a dismissal on the merits.</p> <p>Under the Consolidation Act (Laws of 1882, chap. 410, § 1382), where the plaintiff does not prove his cause of action in the Municipal Court of the city of New York, the justice must dismiss the action with costs, without prejudice to a new action, and has no power to dismiss it on the merits.</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Appeal by the defendant from a judgment of the General Term of the City Court, affirming a judgment in favor of the plaintiffs, entered upon a verdict of a jury, and from an order denying defendant’s motion to set aside the verdict and for a new trial.

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

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

<p>Appeal from a determination of the General Term of the City Court of the city of Rew York, affirming a judgment based on a verdict directed at the Trial Term in favor of the plaintiff.</p>

<p>Appeal from a judgment dismissing the complaint, rendered in the Municipal Court of the city of Rew York, fourth district, borough of Manhattan.</p>

Appeal by. the plaintiff from a judgment rendered in the Municipal Court of the city of ¡New York, tenth district, borough of Manhattan, in favor of the defendant, dismissing the complaint.

<p>Appeal from a judgment of the Municipal Court, rendered in favor of the defendant.</p>

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

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

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

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

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

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

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

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

<p>Appeal by the defendant from a judgment, entered in favor of the plaintiff, in the Municipal Court of the city of New York, first district, borough of The Bronx.</p>

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of New York, first district, borough of Manhattan.</p>

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

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

<p>Appeal from a judgment in favor of plaintifl</p>

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered in favor of the defendant upon a trial had before the court without a jury.</p> <p>The nature of the action and the material facts are stated in the opinion.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

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

<p>Motion for leave to appeal to the Appellate Division.</p>

<p>Appeal from a judgment in favor of plaintiffs.</p>

<p>Appeal from judgments entered in favor of plaintiffs.</p>

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

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

<p>Appeal from an order in favor of the plaintiff, rendered in the Municipal Court of the city of Eew York, second district, borough of Manhattan.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

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

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment in favor of defendant.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

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

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

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

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment in favor of plaintiff entered upon the verdict of a jury.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment in favor of .plaintiff.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from judgments in favor of plaintiffs.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from an order granted at Special Term.</p>

<p>Appeal from a judgment upon findings of the Trial Term awarding foreclosure of a mechanic’s lien.</p>

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

<p>Appeal from order of the Special Term refusing to set aside service of summons upon a foreign corporation.</p>

<p>Appeal from an order of the Special Term denying the defendant’s motion to vacate a judgment entered upon substituted service.</p>

The action was for work, labor and services alleged to have been rendered to a firm composed of Wm. H. Gedney and William A. Gedney, the former of whom died pending the action.

<p>Appeal from a judgment entered upon a verdict in favor of the defendant, and from an order denying a motion for a new trial. The action was on promissory notes alleged to have been given in settlement of this action.</p>

<p>Appeal from an order of the Special Term refusing to vacate an order directing the plaintiff to serve a bill of particulars.</p>

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

<p>Appeal by the defendant from an order, declaring a reply to have been regularly served and requiring the defendant to receive the same, with costs.</p>

<p>Appeal from an order denying a motion to resettle an order.</p>

<p>Appeal from an order entered upon a motion to open defendant’s default, granting the motion on terms.</p>

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

<p>Appeal from a judgment for the plaintiff entered upon a verdict directed by the court.</p>

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

Appeal by the defendant, and judgment debtor, from an order made at Special Term,.denying his motion to vacate an order, made ¡herein, extending the receivership of Norton Chase, receiver, etc., and dismissing this proceeding.

<p>Appeal from a judgment in favor of the defendant, entered Upon a verdict rendered by a jury.</p>

<p>Appeal from an order striking out the verified answer of defendant, as shown, etc.</p>

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

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

<p>Appeal from a judgment, entered upon a verdict rendered by a jury by the direction of the court, and from an order denying the defendant’s motion for a new trial.</p>

<p>Appeal from an order adjudging the judgment debtor guilty of contempt.</p>

<p>Appeal from an order of the Special Term.</p>

<p>Appeal from an order of the Special Term of the City Court of the city of New York, made after a trial of the plaintiff’s case, granting a motion to bring in the Westchester Electric Railroad Company as a party defendant; that a supplementary summons and complaint be served on it and that the issues remain the same. The defendant’s attorneys had claimed upon the trial that the cause of action had not arisen from any act upon the part of the Union Railway Company, hut through acts of the employes of the Westchester Electric Railroad Company.</p>

<p>Appeal from a judgment dismissing plaintiff’s complaint upon the trial.</p>

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

<p>Appeal from an interlocutory judgment sustaining a demurrer interposed by the defendant Brown to plaintiff’s complaint.</p>

<p>Appeal from an order granted at Special Term for the purpose ■of examining the defendant before trial.</p>

<p>Awe at. from an order granted at Special Term.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>