Volume 30 — New York Supplement

<p>1. Wills—Construction.</p> <p>Testatrix, after giving various legacies, gave to her husband the use of her real estate for life, “principal to go to my heirs at his death.” The real estate was sold under a power in the will, realizing only enough to pay the general legacies, and testatrix left no personalty subject to the general legacies. Held-, that the testatrix intended that the general legacies should be satisfied out of the proceeds of the land at her husband’s-death.</p> <p>2. Same—Presumptions.</p> <p>Where a will was made about a year before testator’s death, it will be-presumed that there was no change in the condition of her property after-executing the will.</p>

Action by Sarah F. Sumner and Emily D. Sumner against Milton P. Skinner, William Van Vranken, and others. The complaint -was dismissed on the merits, and plaintiffs appeal. Affirmed.

Action by Mary Le Bahn, as administratrix of John Le Bahn, deceased, against the New York Central & Hudson River Railroad Company. There was a judgment of nonsuit, and plaintiff appeals. Affirmed. The plaintiff’s intestate was, at the time of his death, a signalman in the ■employ of the defendant, at Palatine Bridge station. In such employment he was also to assist at that place in watering engines.

<p>Appeal from circuit court, Columbia county.</p> <p>Action by James N. Sickles, as administrator of Winfield F. Sickles, deceased, against the New Jersey Ice Company, to recover damages for the death of plaintiff’s intestate. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.</p>

Action by Wayland D. West, as executor, etc., against William Place and others. There was a judgment in favor of plaintiff, ;and defendants appeal. Dismissed. For former report, see 23 N. Y. Supp. 1089.

Action by the First National Bank of Plattsburgh against John J. Fitzpatrick, John P. Brenan, and Hartwell Foote.

<p>Appeal from court of sessions, Sullivan county.</p> <p>Irving Gumaer was convicted of seduction under a promise of marriage (Pen. Code, § 284), and appeals. Affirmed.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Nancy E. Van Dermoor against William Van Dermoor. The complaint was dismissed, and plaintiff appeals. Reversed.</p>

Action by Solomon Fleischman and others against Gertrude Fleischman and others. From an order denying a motion that plaintiffs be required to reply to new matter set up in the answer, defendants appeal. Dismissed.

<p>Injunction—Discontinuance on Action—Injunction Bond.</p> <p>Where an action is discontinued against defendant’s will, it is equivalent , to a determination that plaintiff was not entitled to the injunction granted therein, so as to authorize defendant to proceed on the injunction bond for damages.</p>

<p>1. Towns—Liabilities—Negligence of Highway Commissioners.</p> <p>A town, in its corporate capacity, is not obliged to keep its highways in repair (1 Rev. St. p. 501, § 1), and therefore is not liable for personal injuries, caused by the negligence of the highway commissioner, to a workman engaged by the commissioner to repair a road.</p> <p>2. Same—When Action Lies.</p> <p>Laws 1890, c. 569, § 182, providing that an action for any liability of a town for acts or omissions of town officers shall be in the name of the town, authorizes an action only where there is an existing liability, and does not give a cause of action against a town for the negligence of the highway commissioner.</p>

<p>Appeal from circuit court, Saratoga county.</p> <p>Action by George Y. R. Lewis, administrator, against the president, managers, and company of the Delaware & Hudson Canal Company. The complaint was dismissed, and plaintiff appeals. Affirmed.</p>

<p>.Mortgages—Assignment—Set-Off against Mortgagee.</p> <p>Where a mortgagor gave a note as a conditional part payment of the bond secured by mortgage, and the mortgagee, after transferring the note, assigned the bond and mortgage to another person, the assignee can foreclose only for the balance of the mortgage debt after deducting the amount of the note, unless he indemnifies the mortgagor against the note.</p>

Two actions by the Importers’ & Traders’ National Bank of New York against Cebra Quackenbush and others. From an order denying a motion to vacate an order for discovery, defendants appeal. Affirmed.

<p>Evidence—Statements of Agent.</p> <p>Statements as to financial condition of the firm, made by its bookkeeper to a mercantile agency, are not admissible in evidence against the firm unless the bookkeeper was specially authorized to make such statements, or made them with the knowledge of the firm. Herrick, J., dissenting.</p>

Action by William A. Dean against Andrew R. Clark and Henry D. Gay on a bond. The complaint was dismissed on the ground that the bond was illegal and void, as against public policy, and plaintiff appeals. Affirmed.

Action by George N. Manchester and Emily J. Manchester against the Guardian Assurance Company. The complaint was dismissed, notwithstanding a verdict for plaintiffs, and plaintiffs appeal. Affirmed.

<p>Appeal—Party in Default.</p> <p>Under Code Civ. IToc. § 1294, providing that “a party aggrieved may appeal * * * except when the judgment or order of which he complains was rendered or made upon his default,” an appeal cannot be taken from a judgment by default.</p>

<p>1. False Pretenses—Indictment.</p> <p>An indictment for obtaining the signature of a person to a note for the accommodation of defendant by false representations that his real estate was free from all liens and incumbrances must state the nature of the alleged lien or incumbrance on the land.</p> <p>3. Criminal Law—Motion to Quash—Time op Making.</p> <p>A motion to quash an indictment on the ground that it did not allege facts sufficient to constitute a crime may be made at any stage of the proceeding.</p>

Two actions by Stephen Smith and Kathleen Ryder, as executors of Erastus D. Culver, deceased, against the town of Greenwich. The complaint was dismissed, and plaintiffs appeal. Affirmed.

'Appeal from Schenectady county court. Application by Caroline Peek for an order directing the board of supervisors of Schenectady county to refund taxes alleged to have been illegally assessed and collected of said petitioner. Prom an order in favor of petitioner, the board of supervisors appeals.. Reversed.

<p>1. Carriees—Injuries to Passengers—Jumping from Moving Train.</p> <p>A passenger who jumps from a moving train is guilty of contributory negligence, though the conductor had neglected to stop the train at the passenger’s destination.</p> <p>2. Evidence—Opinion.</p> <p>The rate of speed of a railroad train is not entirely within the knowledge of experts, and therefore any one who has noticed the movement of trains, and judged their rate of speed, may give his opinion on the subject.</p>

Action by Barzell M. Strong against Cyrus Waters to recover for work done and materials furnished under a contract to drill a well. There was a judgment in favor of defendant, and plaintiff appeals.

<p>Contracts—In terpketation.</p> <p>An execution creditor agreed to allow the debtor to continue to operate his factory, the creditor to pay all expenses, including a per diem to the-debtor, sell the products, and apply the proceeds first to amounts paid out by him, and then to his debt, and, after full satisfaction of the debt, to transfer the property back to the debtor. Held, that the debtor was entitled to his per diem before any of the proceeds of sales could be applies to the debt, and it continued to run until notice to terminate the contract was given.</p>

<p>Appeal from circuit court, Greene county.</p> <p>Action by August Schmidt against John Brown and Nathaniel F. Tiel for an alleged breach of a building contract. From an order made by the trial justice, of his own motion, on the minutes, setting aside a verdict in favor of defendant, and ordering a new trial upon the minutes, on the ground that the verdict was against the weight of evidence, defendants appeal. Affirmed.</p>

Certiorari by Tiffany & Co., and by the attorney general on behalf of the state, against Frank Campbell, late comptroller of the state of New York, and James A. Eoberts, comptroller of the state of New York, to review an assessment. Quashed.

Action by Keturah Willdigg, as administratrix, against the city of Brooklyn and Frederick W. Luecke to recover damages for the death of plaintiff’s intestate, alleged to have been caused by defendants’ negligence. From a judgment entered on a verdict in favor' of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendants appeal. Affirmed.

Action by the National Spraker Bank of Canajoharie against the George G. Treadwell Company on a promissory note. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by William T. Reynolds, as executor of Walter P. Denslow, . deceased, against Van Burén Denslow and others, for the construction of a will. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.

Proceeding for the probate of the will of Henderson Journeay, deceased. The will was admitted to probate, and Abigail Journeay, testator’s widow, and Susan Sprague, his daughter, appeal. Modified.

Action by Henry Berau against Daniel O’Connell for an accounting. There was a judgment in favor of defendant, and plaintiff appeals. Affirmed. For former report, see 24 N. Y. Supp. 597.

Action by the First National Bank of the City of BrooHyn against Herman Stuetzer and others on a promissory note. From a judgment entered on a verdict directed in favor of plaintiff, defendants Wallis and Smith appeal. Affirmed.

Action by Solomon Newdoll, as administrator, against Julia Young and John Thatcher, to recover damages for the death of plaintiff’s intestate, alleged to have been caused by defendants’ negligence. The complaint was dismissed as to each defendant, and plaintiff appeals. Affirmed.

Action by Milton T. Woolley against Sarah L. Loew to recover broker’s commissions. From a judgment entered on a verdict in favor of plaintiff for $125 damages, together with $129.34 costs, and from an order denying a motion for a new trial made on the minutes, defendant appeals. Affirmed.

Action by Isaac O. Woodruff and others, as executors of the estate of Edwin G. Freligh, deceased, against Alfred T. Ackert to foreclose a mortgage. There was judgment in favor of plaintiffs, and defendant appeals. Affirmed.

<p>Appeal from special term, Kings county.</p> <p>Action of interpleader by the J ewelers’ League of the City of New York against Ellen B. De Forest and Anna B. De Forest. There was a judgment in favor of defendant Anna B. De Forest, and defendant Ellen B. De Forest appeals. Affirmed.</p>

<p>Nuisance—Keeping Explosives.</p> <p>Whether it is a nuisance to keep explosives on one’s own premises is a question of fact depending on the quantity, the location, and the surrounding circumstances.</p>

Action by Moses Hawkins against John Gr. Beakes and another to recover GO tons of hay. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.

Action by Charles A. Hedges and Aaron P. Hedges against the West Shore Railroad Company and the New York Central & Hudson River Railroad Company to declare defendants’ railroad in front of plaintiffs’ lands illegal and a nuisance, and to enjoin defendants from maintaining the same, and to compel defendants to remove their embankments, timbers, and piles, and to restore a certain stream torts former condition of usefulness.

<p>Appeal from court of oyer and terminer, Kings county.</p> <p>John Y. McKane was convicted of violating the election laws, and appeals. Affirmed.</p>

<p>Action by James W. Wood against Elmira P. Reed to restrain defendant from passing over plaintiff’s land under claim of a right of way. Judgment for plaintiff.</p>

Action by Thomas Canary and George W. Lederer against Lillian Bussell. Plaintiffs move to continue a preliminary injunction restraining defendant from singing, playing, performing, dancing, or ■in any way or manner exercising her talents, upon any stage, or with any organization, or for herself, or any person or persons or ■company, or in any operatic entertainment, under any management other than the plaintiffs’.

<p>1. Boundaries—Center of Street.</p> <p>A deed of a town lot, describing it as “bounded by” a certain street, vests title in the grantee to the center of such street.</p> <p>2. Damages—Cutting Shade Tree.</p> <p>In an action for cutting a shade tree on the street in front of plaintiff’s premises, the measure of damages is the diminution in the market value of the premises.</p>

• Action by Charles H. Clark against the New York, Lake Erie &: Western Railroad Company for personal injuries. • From a judgment entered on an order dismissing the complaint, plaintiff appeals.,. Affirmed.

Action by Joseph Weil against Aaron Levy. An interlocutory judgment was entered directing an accounting by defendant for tiie value of certain chattels and interests which were mortgaged by one Joseph 0. Coggeshall to one J. J. Goodwin, and defendant appeals. Affirmed.

<p>1. Defective Highways—Contributory Negligence.</p> <p>Plaintiff, while riding a bicycle, about sundown, on a highway 25 feet wide and in good condition, was thrown into the gutter, which was about 18 inches deep, by reason of the soil on the edge of the gutter giving „ way. Plaintiff testified that he could have seen the gutter if he had looked. Seld, that he was guilty of contributory negligence.</p> <p>2. Same—What Constitutes Defects.</p> <p>The mere fact that a road through a cut, which has a beaten track 25 feet wide, is constructed with a gutter 18 inches deep, with the vertical side thereof towards the road, does not show negligence, so as to render the town liable to bicycle riders who are thrown into the gutter, as it is only necessary to keep a road in a safe condition for ordinary travel.</p>

Action by John J. Radley, as administrator, against Lillie A Riker, to set aside a deed. There was judgment in favor of plaintiff, and defendant appeals. Affirmed.

Application by the Brooldyn Elevated Railroad Company to acquire title to real estate or right of way along .Myrtle avenue, in the city of Brooldyn. From orders setting aside the reports of commissioners to assert and direct a second appraisal before new commissioners, petitioner appeals. Affirmed. For former report, see 27 N. Y. Supp. 493.

Action by Fannie Gr. Parsons against Charles W. Parker to recover possession of land. From a judgment dismissing the complaint, entered on a decision of the court without a jury, plaintiff appeals. Reversed.

Action by John Lang, Jr., against the New York, Lake Erie & Western Railroad Company, to recover damages for injuries to plaintiff alleged to have been caused by an assault made by defendant’s servant. From a judgment entered on an order dismissing the complaint, plaintiff appeals. Reversed.

Action by Percy Rich against the Sargent Granite Company to obtain sequestration of defendant’s property, an execution against its property having been returned unsatisfied. Peter B. Olney was appointed receiver pending the action, and now moves for a warrant to bring Matthew P. Baird and others before a justice of the court, to be examined concerning defendant’s property.

Action by Frank D. Perry and Jennie E, Perry against the Lehigh Valley Railway Company to recover damages for defendant’s use of its right of way. Defendant demurred to the complaint on the ground that it did not state a cause of action. ' Sustained.

Action by John Freston against the Lawrence Cement Company for breach of contract. The complaint was dismissed, and plaintiff appeals. Affirmed.

<p>Attachment—Claims by Tmiro Persons—Bond.</p> <p>An undertaking given by an attachment plaintiff within two days after " the sheriff’s jury found for claimant is a compliance with Code Civ. Proc. § 658, which provides that where the jury find for claimant the sheriff ' must “forthwith” deliver the goods to him, unless plaintiff give an undertaking.</p>

Action by one Colberg against one Emerson. Certain animals belonging to defendant, then on board the steamship Taurie, had been taken possession of by the collector of the port of New York on the ground that they were dutiable; and, while they were in possession of a keeper with whom they had been placed by the collector, plaintiff caused an attachment to be executed by serving a copy thereof on the keeper, with a notice that he levied- on all the property of defendant.

<p>1. Action—Severance.</p> <p>Code Civ. Froc. § 1220, provides that where issues of law and of fact arise with respect to different causes of action in a complaint, and final judgment can be taken with respect to one or more causes of action without prejudice to either party, the court may, at any stage of the action, direct that the same be divided into two or more actions. Held, that where a complaint for libel alleges three separate causes of action, and asks judgment for an entire sum without stating the damages claimed for each libel, and a demurrer to one cause of action is overruled, and defendant has answered as to the others, plaintiff may sever the actions so as to enter judgment on the cause of action demurred to.</p> <p>2. Same—Time of Application.</p> <p>An application for leave to sever an action will not be denied because the motion was made after damages were assessed on one cause of action, as Code, § 1220, permits a severance at any stage of the action.</p>

Action by Anna D. Bitter against Fannie A. Devine to set aside, on the ground of fraud, certain mortgages executed by plaintiff, in 1888, to defendant Fannie A. Devine, a foreclosure sale under one of said mortgages to defendant Alfred A. Devine, and two mortgages executed by said A. A. Devine to defendant John H. Inness. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.

Action by Robert Went against the Methodist Protestant Church of Williamsburgh and Union Cemetery. Prom a judgment perpetually restraining defendants from selling certain land used for cemetery purposes in the city of Brooklyn, or for using said land for any purpose whatever except for cemetery purposes, defendants. appeal. Reversed.

Action by David H. Sprague against Edward Sprague and others as administrator, on a promissory note. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial, defendants appeal. Affirmed.

Certiorari by Edward Hazlett to review the decision of Alfred T. White, commissioner of the department of city works of the city of Brooklyn, discharging relator from the position of meter inspector of said department. Affirmed.

Action by William 2ST. Dykman, as receiver of the Commercial Bank, against William J. Northridge. From a judgment in favor of plaintiff entered on a decision by the court without a jury, defendant appeals. Reversed.

<p>Railroad Companies—Farm Crossings—Estoppel.</p> <p>Plaintiff is not estopped to maintain an action to compel a railroad to construct an under-grade crossing on his farm by the fact that the award in condemnation was. without his consent, made on the assumption that there were to be no undercrossings.</p>

Action by Charles Robinson Smith and others against Elizabeth Reich to recover possession of land. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by Clara Ottendorff against James Willis to recover damages for the death of plaintiff’s husband, alleged to have been caused by the negligence of defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motions for a new trial, defendant appeals. Affirmed.

Accounting by Frank F. Hathaway, as committee of Francis A. Bush, a lunatic.

<p>Appeal from circuit court, Montgomery county.</p> <p>Action by Bichard H. Shires against the Fonda, Johnstown & Gloversville Bailroad Company for injuries to plaintiff’s person and. property. From a judgment entered on a verdict in favor of plaintiff for $692.80, and from an order denying a motion for a new trial, defendant appeals. Beversed.</p>

Action by James McIntyre against Helen McIntyre for divorce.. The defendant had previously obtained a divorce from John M. Stowell, her former husband. The court, of its own motion, set aside the decree of divorce in the Stowell suit.

Action by Croft C. Carroll against Clayton E. Sweet on an account. Judgment for defendant. . On August 22, 1887, defendant was indebted to plaintiff in the sum of $439' for services rendered. Plaintiff presented a bill then for such services, and defendant gave him his own check for $105.55, and the check of one Wood-ruff, which was drawn to the order of defendant for $273.45.

<p>1. Insurance—Breach of Warranty.</p> <p>AVhere the truth of the facts stated in an application for life insurance, which is made part of the policy, is warranted by the applicant, a false statement as to applicant’s business will avoid the policy though the nature of his business had nothing to do with his death.</p> <p>2. Same—Estoppel.</p> <p>Knowledge, by a committee of a subordinate lodge of a benevolent association, that an applicant for life insurance had made a false state- ■ ment in his application, will not charge the grand 'lodge with such knowledge, or estop it from setting up such statement as a defense to the policy.</p>

<p>Action by Margaret O’Rourke against the John Hancock Mutual Life Insurance Company on a life insurance policy. Judgment for plaintiff.</p>

Action by James W. Lyon against Thornton hi. Motley and others to recover the value of goods sold. There was a judgment in favor of defendants and plaintiff appeals. Reversed.

<p>Sale—When Title Passes.</p> <p>Where chattels are sold on the express terms of cash on delivery, and the buyer, without paying therefor receives them, no title passes.</p>

Action by Ivanhoe B. Lndington against John Dudley for money had and received. There was a judgment in favor of plaintiff, rendered by the justice upon a stipulated state of facts, and defendant appeals. Affirmed.

Action by William K. Hammond against Hannah A. Martin to recover the purchase price of a horse. A judgment in favor of plaintiff was rendered on the verdict of a jury, and defendants appeal. Reversed.

<p>Apfeal—Review—Weight of Evidence.</p> <p>A finding on conflicting evidence will not be disturbed in the absence of passion, prejudice, or mistake.</p>

Summary proceedings by Charles E. Fleming and another, landlords, against Martin F. Ryan and Johanna Ryan, tenants. Possession of the premises was awarded to the tenants, and the landlords ■appeal. Reversed.

<p>Action by George B. Estelle against Mary Dinsbeer. There was a judgment in favor of plaintiff, and defendant appeals. Reversed.</p>

Action by Louis Biel against Edward H. Horner for conversion. A judgment in favor of plaintiff was rendered by the justice without a jury, and defendant appeals. Reversed.

Action by the American Writing Machine Company against Elbert E. Bushnell for goods sold and delivered. A judgment in favor of defendant was rendered by the justice without a jury, and plaintiff appeals. Affirmed.

<p>Appeal from first district court.</p> <p>Action by L’Artiste Publishing Company against Isaac Walker. From so much of a judgment as fails to award the amount claimed in plaintiff’s first cause of action, plaintiff appeals. Reversed.</p> <p>Plaintiff sued upon a contract, in accordance with which advertising was alleged to have been done for defendant by the former at an agreed price. A claim for the value of certain printing was also made as a second cause of action. Defendant pleaded a general denial as to the first cause of action, and set up, as a further defense, the allegation that the contract for the advertising in question was .made with one Tongue, and that payment was agreed to be accepted by the latter in the form of clothing furnished by defendant, a tailor. To the second cause of action the answer was a general denial. The justice gave judgment for the plaintiff upon the second cause of action, and found in favor of defendant upon the first.</p>

<p>Appeal from ninth district court.</p> <p>Action by John Sulyewski against Minna Windholz. There was ,a judgment in favor of plaintiff, and defendant appeals. Affirmed.</p>

Summary proceedings by Walter L. Kane and others, landlords, against Martin Dahlbender and others, tenants. There was a final order in favor of the landlords, and tenants appeal. Reversed.

<p>Appeal from sixth district court.</p> <p>Action by the Singer Manufacturing Company against Abraham Coon, as administrator of George Coon, deceased, on a bond. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.</p>

<p>t. Appeal—Refusal to Open Default in Summary Proceedings.</p> <p>An order in summary proceedings, refusing to open a default, is not appealable, as there is no provision therefor in the statute regulating appeals from the district courts to the common pleas.</p> <p>2. Summary Proceedings—Process—Impeaching Marshal’s Return.</p> <p>Where the marshal’s return of the service of the precept in summary proceedings states that it was left with a person of suitable age and discretion, residing on the premises, defendant being absent, the presumption of regularity is not overcome by affidavits of defendant, his wife and children, stating that the precept was not served on them.</p>

<p>Appeal from second district court.</p> <p>Action by George W. Wensley against Wilton Randolph. From an order granting a motion to open a default, plaintiff appeals. Appeal dismissed.</p>

<p>Appeal from fifth district court</p> <p>Action by Barnett Hamburger against Frances Bottenberg. From a judgment entered on a verdict in favor of defendant, plaintiff appeals. Reversed.</p>

<p>1. Finding of Facts—Review on Arpead.</p> <p>In an action for wages, where the defense is that plaintiff was discharged for misconduct, but the proof was vague and uncertain, a finding for plaintiff will be sustained on appeal, though his testimony was somewhat contradictory.</p> <p>3. Husband and Wife—Right to Recover for Wife’s Services.</p> <p>Plaintiff may recover for his wife’s services where the agreement for her services was made with him, and there is no evidence that defendant ever paid the wife individually, or intended to do so.</p>

<p>Appeal from eighth district court.</p> <p>Summary proceedings by George B. Estelle, landlord, against Mary Dinsbeer, tenant, to recover possession of premises Ho. 244 West Thirty-Hinth street. There was a judgment in favor of the landlord, and the tenant appeals. Reversed.</p>

<p>Appeal from seventh district court.</p> <p>Action by Abraham Cohn against Annie Heusner to recover for-professional services, as attorney at law or solicitor, alleged to have been rendered by plaintiff’s assignor upon defendant’s retainer. A judgment in favor of defendant was rendered by the-justice with a jury, and plaintiff appeals. Reversed.</p>

Action by Garrett D. Clark against Amelia Smith to recover two months’ rent alleged to be due in a written lease. A judgment in favor of defendant was rendered by the justice with a jury, and plaintiff appeals. Affirmed.

Action by Bernard Campbell against the Union Railway Company of New York City for injury to property by reason of negligence. The complaint was dismissed, and plaintiff appeals. Affirmed.

<p>Bailment—Restaurant Keeper—Liability por Customer’s Wraps.</p> <p>A restaurant keeper is liable, in the absence of due care, for the loss of a customer’s wraps left in his charge. Bunnell v. Stern, 25 N. E. 910, 122 N. Y. 539, and Bird v. Everard (Com. PI.) 23 N. Y. Supp. 1008, followed.</p>

<p>Appeal from seventh district court.</p> <p>* Proceeding for forcible entry and detainer. From a final order restoring petitioner to the possession of the real estate in suit, defendants appeal. Affirmed.</p>

Action by Samuel B. Parmelee against the Associated Physicians & Surgeons on a contract of employment made by plaintiff with the treasurer of defendant corporation. The principal defense was that defendant was not chargeable under the contract, in view of the fact that a by-law of the corporation prohibited the making of an agreement involving a liability to the extent of that in suit without the approval of the president.

Action by the Heuehatel Asphalt Company against the mayor, etc., of the city of ¡New York, and others, to enforce a mechanic’s-lien.

Action by the Oil-Seed Pressing Company against S. Hutchison. There was a judgment in favor of defendant, and plaintiff appeals. Affirmed. The action was brought by the plaintiff upon an alleged guaranty of the ■'defendant to-recover for goods supplied to one George Hutchison.

<p>Appeal from second district court.</p> <p>Action by John Lees against Nathan Bittermann. There was a judgment in favor of plaintiff, and defendant appeals. Beversed.</p>

<p>Appeal—Decision—Reversal.</p> <p>Where a judgment is not supported by the evidence, but the appellate court cannot determine to what particular witnesses credit was given on the trial, the appellate court cannot modify the judgment for the purpose of affirmance, but must reverse it.</p>

<p>Appeal from trial term.</p> <p>Action by Isaac Rosenstein against William I. Fox. From a judgment entered on a verdict in favor of defendant, plaintiff appeals. Affirmed.</p>

Action by Maria L. Winterson against Hector M. Hitchings and others to annul a sale of plaintiffs real estate under an execution issued on a judgment which was afterwards reversed on appeal. Defendants demur to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. Overruled.

<p>Costs of Motion—Stay of Proceedings—Waiver.</p> <p>Defendant does not waive the stay of plaintiff’s proceedings, worked by nonpayment of costs awarded on motion to make the complaint more definite and certain, by answering an amended complaint served before the stay began to operate.</p>

Action by the Bradley & Currier Company, Limited, against Frank W. Herter and others, to foreclose a mechanic’s lien. Defendant Herter answered, setting up a counterclaim for $1,500 dama gestor plaintiff’s failure to perform the contract sued on. The other defendants answered, claiming liens on the property. Defendant. Herter moves to state issues for trial by jury. Granted.

<p>Bill of Exceptions—Time for Filing—Motion to Extend Time.</p> <p>In a criminal case, where defendant fails to present his bill of exceptions on the trial, or within five days thereafter, and the time for preparing it has not been enlarged by consent, or by the presiding judge, as required by Code Cr. Proe. § 455 et seq., a motion will not be granted, after the time has expired, for further time in which to serve exceptions.</p>

<p>Appeal from circuit court, Kings county.</p> <p>Action by David Zieley against George Palliser on a promissory note. From an order setting aside a verdict in favor of defendant, and granting a new trial, defendant appeals. Reversed on condition.</p> <p>Defendant set up, as a counterclaim, that the note had been given in payment for $30,000 of the capital stock of the Gilbert Hardware Company, all of such stock which had been issued except $1,000; that in order to induce such purchase the plaintiff made certain false and fraudulent representations; and that defendant had sustained greater damages by reason of the deceit practiced than the amount of the note.</p>

<p>1. Executors—Powers—Postponing Payment op Legacy.</p> <p>Testator gave all lier property to her executor, in trust to pay her debts, and out of the rents of her realty to pay a mortgage and specific legacies, and declared that the executor should be sole and arbitrary judge when it should be convenient for him to pay the legacies. Edd not to empower the executor to postpone payment arbitrarily for an indefinite period, but that the postponement of payment was merely for the benefit of the estate.</p> <p>"2. Wills—Validity—Unlawful Restraint of Alienation.</p> <p>Though the will made the executor sole judge of when it would be convenient for him to pay the legacies, it did not thereby suspend the power of alienation, as the fee of the land rested in him, subject to the payment of the legacies, and as he could always sell the land subject to such charge.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Charles Benner, trustee, against the Phoenix Towing & Transportation Company. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed on condition.</p>

Action by Catherine Fothergill against William Fothergill and others for partition. There was a judgment in favor of plaintiff, and defendants appeal. Modified.

Action by Sel ser Bros. Company against the Potter Produce Company to recover for goods sold and delivered. Plaintiff caused an attachment to be issued and levied on certain goods which had been consigned by defendant to factors for sale on commission. After-wards, a junior attachment creditor moved to dissolve plaintiff’s attachment, and to set aside the judgment entered in favor of plaintiff, and an execution issued thereon. Granted.

<p>Summary Proceedings—Discontinuance—-Claim of Title to Land.</p> <p>Code Civ. Proc. § 2951 et seq., which provide for the discontinuance of an “action” in a justice court when the answer sets up a claim of title to land, do not apply to summary proceedings.</p>

Action by Susan H. Hooker against the city of Rochester to vacate an assessment. Judgment for defendant. In June, 1881, proceedings of the common council of the defendant were had for the construction of a sewer from Clifford street, through several streets, to the center of North St. Paul street, then along old Mill street to the east high bank of the Genesee river.

<p>Appeal from special term, Kings county.</p> <p>Action by John Bolileber against August Waelden and another. There was a judgment in favor of plaintiff, and defendants appeal. Reversed.</p>

<p>Appeal from special term, Kings county.'</p> <p>Action by Anna G-. Pilcher against Bernard Levino and others. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed.</p>

Action by Alexander M. Conway against Edward 0. Carpenter for assault and battery. From a judgment for $2,910.32, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed. For former report, see 26 N. Y. Supp. 255.

Action by the D. G. Burton Company against Stuart W. Cowan and others to foreclose a mechanic’s lien. There was a judgment in favor of plaintiff, and of some of the defendants, and the other defendants appeal. Affirmed.

<p>1. Death by Wrongful Act—Measure of Damages.</p> <p>A verdict for $5,000 for the death of a single man, 33 years old, who resided with his father, and worked for him in making pianos, and was paid only such amount as the father deemed proper, will not be disturbed on appeal as excessive.</p> <p>2. Same—Evidence of Damages.</p> <p>In an action for the death of plaintiff’s intestate, the jury may consider what deceased would have brought to his next of kin while living, and what was their prospect of inheriting from him when dead.</p>

Action by John McG-onigle against James P. Canty to recover «damages for personal injuries sustained by the fall of a tree which was cut down by plaintiff’s fellow servants. Prom a judgment entered on a verdict directed by the court in favor of defendant, •and from an order denying a motion for a new trial on the minutes, plaintiff appeals. Reversed.

<p>Partnership Agreement—Construction.</p> <p>A partnership agreem'ent and renewals thereof recited that the parties had associated themselves in the “regular real-estate * * * business,” and provided for a division of the net profits arising from “said brokerage business.” Held, the term “regular real-estate business" meant the business of real-estate brokers, and did not include speculation in real estate.</p>

<p>1. Nuisance—Railroad Bridge.</p> <p>A bridge maintained across a railroad track, with the consent of the company, of insufficient height to allow a man standing on a freight car to pass thereunder, is not per se a nuisance.</p> <p>2. Railroad Companies—Duty to Maintain Telltales at Bridges.</p> <p>A railroad company whose tracks cross those of another company by a low bridge is not required to maintain telltales to warn trainmen on the under road of the danger.</p>

<p>1. Eminent Domain—Procedure—Selection of Jury.</p> <p>Laws 1870, c. 291 (Village Incorporation Act), as amended by Laws 1893, c. 694, which provides that compensation for land taken for streets shall be determined by a jury of 6, taken from a list of 12 prepared by the trustees, and that the landowner may appeal from their award to the county court, where the damages shall be assessed by.three commissioners appointed by the court, does not violate the requirement of the constitution that compensation shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, since the right of appeal cures the defect in selecting a jury from such list.</p> <p>2. Same—Bond on Appeal.</p> <p>The fact that on appeal the landowner is required to give bond and pay costs in case the jury’s award is not increased does not make the act unconstitutional.</p> <p>8. Same—Securing Payment.</p> <p>The provision in the act which allows the trustees to take possession of the land, and make payment to the landowners, within a year, is constitutional, as the statute makes the damages awarded assessable on and payable from the whole taxable property of the village, thus providing a means by which the owner can compel payment of the award.</p> <p>Dykman, J., dissenting.</p>

Action by Frank A. Bennett, receiver, against Edward G-. Wool-folk and another for trespass on land. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal. Affirmed.

Claim by Benjamin Crosby against William H. Clark, as executor of John Gr. Wilkin, which was disputed by the executor, and referred under the statute. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.

Application by Eliza Tyler to revoke letters of administration issued to George A. Tyler on the estate of Owen Tyler, deceased. The application was granted, and said George A. Tyler appeals.

Certiorari by Peter J. Langan against Henry I. Hayden, as commissioner of police, to review a decision of respondent dismissing relator from the police force. Affirmed.

Action by Joseph Y. Phillips against the Yew York & Yew England Railroad Company to recover damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff for §2,000, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Two actions, one by Merritt A. J ones against the Mail & Express-Publishing Company, and the other by Daniel E. Christie against the same defendant. From interlocutory judgments for plaintiffs^ defendant appeals. Affirmed.

Action by George L. Simpson against the New York Rubber Company to recover damages for personal injuries sustained by plaintiff while engaged at work in defendant’s factory. From a judgment entered on a verdict in favor of plaintiff for $5,000, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>Action by the People’s Trust Company, executor of Eliza Smith, against John J. Smith and others, for the construction of a will.</p>

Action by Rosa M. Kahn against Howes Coen. There was judgment for defendant, and plaintiff moves to retax costs allowing defendant five term fees. Motion denied.

Action by Bennett J. King against Alfred Munzer and others. A motion was made to require each party to pay half the expense of transcribing the stenographer’s minutes. Granted. For decision on trial at equity term, see 28 H. Y. Supp. 587.

<p>Proceeding to inquire into the alleged lunacy of one Owens. Motion for retaxation of costs. Denied.</p>

Action by Margaret G-. Westerfield, as executrix, substituted in place of her testator, Joseph H. Westerfield, the original plaintiff, who died on December 24, 1891, against Henry F. Price, as administrator, substituted in place of his intestate, William M. Price, the original defendant, who died on December 13, 1887, for an accounting. There was a judgment in favor of plaintiff, and defendant appeals. Reversed.

Action by Elizur G. Webster and another against the Kings County Trust Company for specific performance of a contract for the sale of land. There was a judgment in favor of plaintiffs, and defendant appeals. Affirmed.

Application by the receiver of the Worthington Company for instructions as to disposition of certain books, assets of said company. Receiver allowed to sell the books.

<p>Action by Stephen B. French against George D. Whittlesey to prevent, on the grounds of superior title and fraud, foreclosure of u mortgage on land purchased by plaintiff’s assignor at a tax sale. Judgment for defendant.</p>

Application by David K. Bell and others for an injunction restraining the city of Rochester from constructing overflow sewer outlet. Denied.

Petition by the Commercial Mutual Insurance Company for writ of certiorari to review an assessment of its personal property made by Michael Coleman and others, as commissioners of taxes and assessments of the city of New York.

<p>Supplementary Proceedings—Right op Receiver to Rents.</p> <p>Under Code Civ. Proc. § 24(58, declaring that real property of a judgment debtor is vested in the receiver from the time the order appointing him is filed in the county where the real property is situated, the receiver is entitled to the rents of realty not occupied by the debtor himself, and It is a contempt of court for the debtor to interfere with the collection thereof by the receiver.</p>

<p>Appraisement of the estate of Maria Flynn, deceased, for taxation under Laws 1892, c. 399.</p>

Applications by Patrick McClosky and Patrick McNulty, respectively, for writs of mandamus requiring William S. Andrews, as commissioner of the department of street cleaning, to reinstate relators as drivers and members of the uniformed force in said department. Denied.

Action by Frederick L. Degener against John T. Underwood and Frederick W. Underwood. A judgment of the general term affirming a judgment in favor of plaintiff (21 N. Y. Supp. 107) was affirmed by the court of appeals (37 N. E. 567), and appellants (defendants) move for a retaxation of costs. Denied on condition.

<p>Action by Charles Krumweide against the Manhattan Railway Company. Complaint dismissed.</p>

<p>Action by Charles B. Gore against the Mayor, etc., of the city of New York.</p>

At chambers. Action by Leslie H. Crouch against Addison EL Hoyt to recover $20,000 for the alleged alienation of the affections of plaintiff’s wife, Mary S. Crouch. Defendant was arrested, and imprisoned in the Ludlow Street jail. Afterwards, plaintiff gave a general release of his cause of action, and consented to defendant’s discharge from imprisonment, and defendant moves to be discharged accordingly.

<p>Intoxicating Liquors—Licenses—Place near Church.</p> <p>A building, the first floor of which is used for religious meetings, the1 rest being used as offices for directors and physicians, dormitories, and store rooms, the whole constituting a mission for the reformation of fallen women, but not connected with any church, and with which no clergyman is associated, is not a church, within the meaning of Laws 1893, c. 480, § 43, forbidding the issuance of a license to sell liquor within 200 feet of a building used “exclusively as a church.”</p>

<p>Equity—J urisdiction—Money Judgment.</p> <p>In an action for specific performance of a contract to sell land, or, in case defendant cannot make good title, for a judgment for the money paid by plaintiff under the contract, plaintiff may recover a money judgment merely, where defendant did not al'ege in his answer that the action was improperly brought, or that plaintiff had an adequate remedy at law.</p>

Action by Louis Bonadoa, by Lorence Bonadoa, his guardian ad litem, against the Third Avenue Railroad Company, for damages for personal injuries caused by one of defendant’s cable cars. Plaintiff moves for leave to sue as a poor person, under Code Civ. Proc- § 458. Granted on condition.

<p>Action Forma Pauperis—Who may Maintain.</p> <p>The committee of a lunatic is not within the provisions of Code Civ. Proc. § 458 et seep, and therefore cannot sue as a poor person.</p>

Action by George H. Robinson, as a taxpayer, against Thomas F, Gilroy and others, pursuant to Laws 1892, c.,301, § 1, to restrain defendants from committing an alleged illegal official act, and to prevent threatened waste or injury to the property, funds, or estate of the municipality of the city of New York, in selling the Staten Island and Bay Ridge ferry franchises. Plaintiff moves to continue an injunction pendente lite. Denied.

Action by Antonio G-uliano against John H. Whitenack to recover damages for personal injuries. Judgment was rendered in favor of plaintiff, and his attorney now moves to enforce his lien against said judgment in the hands of an assignee thereof. Granted.

Arbitration of controversy between James Taleott and the Canton Mills Company respecting the liability of said Taleott for the price of goods sold by him as commission merchant for said Canton Mills Company.

Action by Peter Wilkins, as a taxpayer in the city of New York, against the mayor, aldermen, and commonalty of the city of New York, and Thomas F. Gilroy and others, composing a majority of the commissioners of the sinking fund, pursuant to the provisions of Laws 1892, c. 301, § 1, for injunctive relief against the contemplated sale of a ferry franchise and lease of wharf property, on the ground that such sale, if permitted, will involve the performance of an illegal…

At chambers. Action by Thomas A. Maitland against the Manhattan Railway Company. Plaintiff moved to restrain defendant from constructing and operating additional track for the purposes of its elevated railway in Ninth avenue. Granted.

Motion to punish George S. Wilkes, William S. Donnington, and Thomas H. Beekman for contempt of court in offering a bond with •an insolvent surety in discharge of a mechanic’s lien. Denied.

<p>1 Deed—Construction—“Heirs. ”</p> <p>In a deed to one for life, and at Ms death to “Ms own lawful heirs, * * * but in case of his death without lawful issue,” etc., the word “heirs” means “heirs of the body.”</p> <p>2. Same—Habendum—Void Limitation.</p> <p>Where the premises purport to convey an estate in fee, but the habendum is to the grantee for “his natural life only, and at his decease then to go to his own lawful heirs,” and the grantee had no issue when the deed was delivered, the limitation in the habendum is void, and the grantee takes the fee simple.</p>

Action by Ferdinand A. Fischer and George, Frank, and Louis Mertz against Isaac H. Bums and others to set aside a contract and recover money paid thereunder. Defendant Burns m,oved for judgment. Denied, and issues of fact ordered tried by jury.

Action by Mary Ellison against Anson 0. Allen, the city of Rochester, and others, to enjoin defendants from cutting certain trees in the street in front of plaintiff's premises. A temporary injunction was granted, and defendants move on affidavits to dissolve the same.. Denied.

Action by Ida S. Harrison against the Union Trust Company of New York and others to compel defendant to execute a deed to the purchaser of property sold under mortgage. From an interlocutory judgment overruling a demurrer to the complaint, defendants appeal. Affirmed.

Two actions, one by the Citizens’ National Bank of Saratoga Springs against Charles H. Hodges and others, and the other by John P. B. Haberlin against Edward A. Hodges and others, to set aside certain conveyances as in fraud of defendants’ creditors. From an interlocutory judgment overruling demurrers to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, defendants appeal. Affirmed.

Certiorari by the Brooklyn Traction Company to set aside an -assessment by the board oí assessors on shares of stock held by the •company. Granted.

<p>Practice in Civil Cases—Dismissal of Complaint.</p> <p>It is error to dismiss a complaint where the allegations are sufficient to sustain a recovery as to a part of the relief demanded, though insufficient as to the greater part.</p>

<p>Municipal Corporations—Defective Streets—Plan of Construction.</p> <p>A city is not liable for injuries caused by a defect in the plan adopted by it in laying a sidewalk.</p>

<p>On reargument. For order granting reargument, see 27 FT. Y. Supp. 1116. For decision on appeal, see 26 FT. Y. Supp. 815.</p>

<p>1. Contempt—Nature of Offense—Averments in Movino Papers.</p> <p>Where the moving papers purport to set forth the facts in the case, and ask the court to punish defendants for an alleged contempt, it is for the court to determine whether it was a civil or criminal contempt.</p> <p>2. Same—Order for Mandamus—Issuance of Writ.</p> <p>Where-an order directing the issuance of mandamus is granted, and thereupon the parties stipulate that an appeal be immediately taken, and that further proceedings be suspended until the decision of the court of appeals, defendants, in a proceeding for contempt in disobeying the mandamus order, are estopped to assert that no writ was actually issued, since its issuance was prevented by the stipulation.</p> <p>8. Same—Effect of Appeal.</p> <p>An order remains in force, though an appeal has been taken; and it is a contempt to do the act prohibited by the order after the decision of the appellate court, but before the remittitur has been filed in the court below.</p> <p>■4. Evidence—Judicial Notice.</p> <p>The supreme court at general term will take judicial notice of an order made by the supreme court in the same proceeding.</p> <p>Mayham, P. J., dissenting.</p>

Certiorari by the Western Electric Company, a foreign corporation, to review the decision of Frank Campbell, comptroller of the state of New York, on the application of relator for a revision and resettlement of certain taxes. Writ quashed.

Application by Henry J. Warren for a writ of habeas corpus t© August Beck, sheriff. The writ was granted, but was afterwards vacated, and relator appeals. Affirmed.

<p>Proceeding to compel an accounting by the assignee in the assignment of Morris Ginsberg.</p>

Action by Gilbert Newton against the Central Vermont Railvoad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $3,500, defendant appeals. Affirmed.

Action by Sarah Russell against George Willette to recover the value of a quantity of hay. From a judgment entered on a verdict in favor of plaintiff for $11.14, defendant appeals. Affirmed.

Action by Mary E. Ward against George B. Boyce on a promissory note. From a judgment entered on the decision of the trial judge without a jury, defendant appeals. Affirmed.

<p>Application by the people of the state of New York to review the determination of the comptroller in the matter of tax against Tiffany & Co.</p>

Action by William R Laidlaw against Russell Sage to recover damages alleged to have resulted from defendant’s wrongful act. ■ From a judgment entered on a verdict in favor of plaintiff fo'r $25,000, and from an order denying a motion for a new trial, defendant appeals. Reversed.

<p>Appeal from special term, St. Lawrence county.</p> <p>Applications for orders compelling the board of inspectors for the registry of voters in the first election district in the town of Canton to strike from the registry of voters in that district the names of Cassius A. Hamilton, Lyman C. Ward, Wallace Williams, and William B. Washburn. The applications were granted, and said persons appeal. Reversed.</p>

<p>Appeal from Schenectady county court.</p> <p>Action by Isaac M. Van Patten against the Schenectady Street-Railway Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $80, defendant appeals. Reversed.</p>

<p>1. Taxation—Redemption.</p> <p>The right to redeem after the expiration of the statutory time, on the ground that the land was actually occupied at the expiration of such time, and notice had not been served on the occupant (Laws 1855, c. 427, § 74, as amended by Laws 1890, c. 556, § 1), is not affected by an agreement between the owner and tlie comptroller’s predecessor in office that the application to redeem would not be acted on until the decision of an ejectment suit then pending between the original owner and the holder of the tax title, where neither the original owner nor the comptroller had notice of such agreement.</p> <p>2. Same—Evidence—Affidavits.</p> <p>In a proceeding to redeem, the application and affidavits filed in support thereof are admissible in evidence.</p> <p>3. Same—Findings by Comptroller—Review.</p> <p>The comptroller’s findings of fact will not be reviewed on certiorari unless entirely unsupported by evidence, or against the clear weight of evidence.</p>

Certiorari by Ferdinand W. Chase against Frank Campbell, late comptroller of the state of New York, to review his action in allowing a redemption of certain land from a sale for taxes in the years 1871-77 and 1880. Quashed.

Action by the National Mahaiwe Bank against Elizabeth T. Hand, as executrix of Allen F. Hand, deceased, for breach of covenant by defendant’s testator to keep insured, for plaintiff’s benefit, premises leased by plaintiff to defendant’s testator. From a judgment entered on a verdict in favor of plaintiff for $13,035.68, defendant appeals. Reversed.

<p>Application by John H. Murphy for a writ of certiorari to correct the assessment roll of New Albion, Cattaraugus county, by striking out an assessment to said Murphy of 50 acres of land because the same was purchased by pension money, and was exempt from taxation. Dismissed.</p>

<p>Fraudulent Conveyances—Mortgage—Trust in Favor oe Mortgagor.</p> <p>A mortgage covering all the mortgagor’s property, and by its terms given to secure debts due to the mortgagee' and to others not parties to the mortgage, and providing that the mortgagee may sell the property, and that he shall return to the mortgagor any surplus left after satisfying such debts, creates a trust in favor of the mortgagor (2 Rev. St. p. 135, § 1), and is therefore void as to the unsecured creditors. .</p>

Action by Walter Hamilton against Ferral 0. Dinniny, Jr., to recover the price of certain stock and bonds alleged to have been sold and delivered by plaintiff to defendant. The complaint was dismissed, and plaintiff’s exceptions were ordered to be heard at general term in the first instance. Overruled.

<p>Executors and Administrators—Expenses—Hire of Bookkeeper.</p> <p>Executors will not be allowed the hire of a bookkeeper merely because they were men of large affairs, and in employing the bookkeeper and fixing his compensation acted as they would have done in their own business.</p>

'Appeal from special term, New York county. Action by Alonzo L. Tuska against George B. Wood and others. Defendant moves to change place of trial to the county of Onondaga. The motion was denied, and defendants appeal. Affirmed.

Action by Louis F. Martin and others against Eliza Jane Adams and others to set aside a compromise. From a judgment dismissing the complaint on merits, plaintiffs appeal. Affirmed.

Action by Selser Bros. Company against Potter Produce Company. Plaintiff obtained an attachment against defendant on November 17, 1893, in the supreme court, and on January 2, 1894, judgment was entered in favor of plaintiff, and an execution issued thereon. On January 5,th one Charles H. Kuske obtained an attachment in the city court of New York against defendant on a claim assigned to him by the Potter Produce Company of Minneapolis, Minn.

Action by William W. Clendinning against Richard Lindner for rent. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendant appeals. Affirmed. The lease was made on October 31, 1888, for a term of one year, with the privilege of renewal for two years longer. Defendant held over after the expiration of the year named in the lease, and afterwards abandoned the premises.

Action by the National Board of Marine Underwriters against the National Bank of the Republic to recover §4,914,62. A judgment for $2,803.27 was rendered in favor of plaintiff, and both parties appealed. The judgment was affirmed on plaintiff’s appeal, but was reversed on defendant’s appeal. 29 N. Y. Supp. 698. Plaintiff now moves to resettle the order of the general term. Denied.

<p>Appeal from special term.</p> <p>Action by William J. Brewster against George H. Wooster. From an order requiring plaintiff to give additional security for costs, he appeals. Affirmed.</p>

Action by Peter M. Wilson against the New York Elevated Railroad Company and others to enjoin the operation of defendants’ elevated railroad in the street in front of plaintiff’s premises, and for damages.

Separate actions: (1) By Guillermina Govin against Luciana Govin De Miranda, as executrix; (2) by Felix St. Anna Govin against the same defendant; and (3) by Emilia Govin against the same defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, in each case, defendant appeals. Reversed in actions 1 and 2. Affirmed in action 3.

<p>Appeal from special term.</p> <p>Action by Bridget Nealon against Mortimer A. Frisbie. From an order overruling a demurrer to the complaint, defendant appeals. Dismissed.</p>

Action by Job E. Hedges, as receiver in supplementary proceedings, against John Polhemus and others, to set aside a chattel mortgage. Judgment for plaintiff.

Action by Excelsior Steam Power Company and another against the Cosmopolitan Publishing Company, brought under Code Civ. Proc. § 677, which provides that “the plaintiff, by leave of the court, * * * may bring and maintain * * * any action which, by the provisions of this title, may be brought by the sheriff, to recover property attached, or the value thereof, or a demand attached.” There was a judgment in favor of plaintiffs, and defendant appeals. Reversed.

Action by Lyman C. Mason against Willard F. Bobison, individually and as trustee, David Bobison, Jr., William Baker, John Cummings, James M. Ashley, William V. McCracken, Neil McDonaid, and George A. Evans. There was a judgment in favor of defendants, and plaintiff appeals. Beversed.

Application by the Manhattan Bailway Company against Sarah E. Youmans. Emma L. Jacquelin, and Emma J. Balen, impleaded with others, relative to acquiring title to certain premises in the city of New York known as “Nos. 1, 3, and 5 New Bowery.” From an order denying a motion for a retaxation of costs, defendants appeal. Affirmed.

, Appeal from special term, New York county. Action by Mary Elizabeth Palmer and others against Emily L. Paret and others for partition. The complaint was dismissed on the merits, and plaintiffs appeal. Reversed. Rufus Story, a resident citizen of New Jersey, died October 6, 1877, at Bergen Point, in that state, leaving Ursula Story, his widow, and Mary E.' Palmer, Alice Rowland, Abby S. Marshall, and Emily L. Paret, daughters, his heirs and next of kin.

<p>Appeal from circuit court, New York county.</p> <p>Action by Martha Morris against the Strobel & Wilken Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $5,000 damages, besides costs, defendant appeals. Affirmed.</p>

Action by Stephen U. Cadwell against Marks Amheim for personal injuries to plaintiff and to his horses and wagon by collision with defendant’s team. From a judgment entered on the verdict for $2,500 damages, and $250.07 costs and allowance, and from an order denying a motion for a new trial on the minutes, defendant appeals. Affirmed.

Action by Max Danziger against the Metropolitan Elevated Railway Company and another to enjoin the operation of defendants* elevated railroad in front of plaintiff’s premises in New York City, known as Nos. 2040, 2042, and 2044, Second avenue, and for damages. From an order granting the injunction, unless within a, certain time defendant paid to plaintiff the sum of $14,000, as fee damages to said premises, and $4,708.32, past damages, defendants appeal. Reversed.

Appraisal for taxation of the estate of Catherine A. Taylor, deceased. From an order of the surrogate’s court affirming an order of the surrogate assessing a transfer tax upon the estate of decedent, the Elberon Memorial Church, a religious corporation, organized under the laws of the state of New Jersey, appeals. Affirmed.

Action by the Germ-Proof Filter Company against the PasteurGhamberland Filter Company for slander and malicious injury to plaintiff’s business. The complaint was dismissed on the ground that it did not contain facts- sufficient to constitute a cause of action, and plaintiff appeals. Affirmed. The plaintiff is a corporation organized under the laws of this state, and the defendant is a corporation organized under the laws of the state of Ohio.

Certiorari by the Equitable Gaslight Company against Edward P. Barker and others. From an order vacating and setting aside the assessment of a personal tax upon the relator for the year 1893, defendants appeal. Affirmed.

Action by James R. O’Beirne against Spencer S. Bullís and others for specific performance. From a judgment dismissing the complaint on the merits, plaintiff appeals. Reversed.

Action by John L. Douglass against John F. Halstead to recover • commissions alleged to have been earned by plaintiff in effecting ■ a sale of real estate for defendant. The complaint was dismissed ■ on the merits, and plaintiff appeals. Affirmed.

Action by George F. Wiechers against the Central Trust Company of New York. A verdict wTas directed in favor of plaintiff, and both parties move for a new trial on exceptions ordered to be beard in the first instance at general term. Judgment modified. In December, 1888, the plaintiff became the owner of 2,424 shares of the Sugar Refining Company, which stood in his name on the books of the corporation.

Action by the Bank of British North America against Richard Delafield to recover the sum of $25,000. From a judgment dismissing the complaint, with costs, entered on a verdict directed by the ■court, and from an order denying a motion for a new trial, made •■on the minutes, plaintiff appeals. Affirmed.

Action by Richard C. Sibley against the New York Times Publishing Company. From an order vacating an order requiring de: fendant to permit plaintiff to inspect certain documents, plaintiff appeals. Reversed.

Action by New York Security & Trust Company against Manhattan Athletic Club and others on a promissory note. From a judgment overruling a demurrer to the complaint, defendant Walton Storm appeals. Affirmed.

<p>1. New Trial—Newly-Discovered Evidence.</p> <p>Where it does not appear on a motion for a new trial, on the ground of newly-discovered evidence, in an action for negligence, whether a verdict for defendant was based on a finding that defendant was free from negligence, or that plaintiff was guilty of contributory negligence, and the new evidence relates to defendant’s negligence, the question will be disposed of as if the jury had found that defendant was not negligent.</p> <p>2. Same—Credibility op Proposed Witnesses.</p> <p>On an application for a new trial, on the ground of newly-discovered evidence, the credibility of the proposed new witnesses will not be passed on.</p> <p>8. Same—Newly-Discovered Evidence.</p> <p>Where plaintiff, in an action for injuries caused by falling from an electric street car, testified that his fall was caused by an electric shock from the dashboard of the car, which he seized to steady himself with, and experts testify that the electric apparatus was in good condition, and that the car on which plaintiff was riding could not "possibly have become charged with electricity, and the judge, in charging the jury, treats plaintiff’s testimony as to the electric shock as so entirely overcome by defendant’s testimony that no question is presented for the jury, a new trial will be granted for newly-discovered evidence that the electrical appliances were out of order, and that the car had, as a matter of fact, become highly charged with electricity.</p>

Action by Charles S. Fairchild and others against Margaret B. Edson and others. There was a judgment in favor of plaintiffs, and defendant Margaret B. Edson appeals. Appeal dismissed.

Supplementary proceedings against Kirk B. Crane, a judgment debtor. From an order directing said judgment debtor to deliver to the receiver theretofore appointed in the proceeding certain books ■of account, and to assign to the receiver a certain land contract, said debtor appeals. Affirmed.

Action by Citizens’ National Bank of Corry, Pa., against Abijah Weston and others, on a promissory note. From an order denying a motion for leave to serve a supplemental answer, defendants Abijah Weston and Orren Weston appeal. Affirmed.

<p>Appeal from circuit court, Monroe county.</p> <p>Action by Charlotte Thon against the Rochester Railway Company to recover damages for personal injuries. From an order setting aside a verdict in favor of defendant and granting a motion for a new trial on the minutes (29 R. Y. Supp. 675) defendant appeals. Affirmed.</p>

Action by Anna Bundschuh against Albert Mayer- to recover ■damages for personal injuries. From a judgment entered on a -verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Affirmed.

Action by Falding W. Sldnner against Frederick Odenbach to recover possession of land. From an order setting aside an execution issued on a judgment in favor of plaintiff, plaintiff appeals. Modified.

<p>1. Trust—Improvement oe Trust Property—Liability.</p> <p>Where a bequest to trustees for the benefit of testator’s widow for her-life was set apart in realty, and it afterwards appeared that a building on-the real estate so set apart contained latent defects, which rendered the building unsafe, and which the building department required to be repaired, the cost of which was paid by the executors, with the understanding that the question as to liability therefor should be left open for judicial determination, such cost is chargeable as a payment on account of the-.principal of the trust fund.</p> <p>2. Same—Power oe Trustees—Improvement oe Trust Property.</p> <p>Where trustees are authorized to change the investment of ihe trust/ fund, they may use part of the capital of the fund in building on land, owned by the trust.</p> <p>■3. Executors and Administrators—Application op Funds.</p> <p>Where testator gave his widow a legacy absolutely, and created a trust for her benefit, and also made her one of the executors of the will, money received by her as executrix will be applied in payment of the legacy in .preference to the trust fund, because she received the money in a trust •capacity, and should therefore be held to have applied it most beneficially •for the estate.</p> <p>4. Estates—Lips Tenant and Remainder-Man—Apportionment op Insurance.</p> <p>The cost of insurance will be apportioned between the life tenant and the remainder-man.</p> <p>5. Wills—Legacy in Lieu op Dower—Interest.</p> <p>A legacy in lieu of dower draws interest from testator’s death.</p>

Actions by William H. Smith against Orren Yves Ion, impleaded . with others, and by the First National Bank of Friendship against the same defendants. From an order in each case denying a motion to set aside a judgment taken by default, and for leave to answer, defendant Orren Weston appeals. Reversed.

<p>° Appeal from Genesee county court.</p> <p>Action by George High against Charles F. Chick. From a judgment affirming a judgment of a justice’s court rendered on a verdict in favor of plaintiff, defendant appeals. Reversed.</p>

Petition bv Ernest F. Ayrault, as administrator of Mary Ayrault, deceased, to comnel an accounting by Charles P. Bowditch, as trustee under the will of Allen Ayrault, deceased. From a decree dismissing the petition, petitioner appeals. Affirmed.

Action by Louis Greve against Aetna Live-Stock Insurance Company on a policy of insurance. From an interlocutory judgment entered on an order sustaining a demurrer to one of the defenses set up by defendant in its answer, defendant appeals. Reversed.

<p>Appeal from circuit court, Schenectady county.</p> <p>Action by William A. Drake against the New York Central & Hudson River Railroad Company for personal injuries. From a judgment entered on an order dismissing the complaint, plaintiff appeals. Affirmed.</p> <p>Plaintiff’s cause of action, as set out in his complaint, is as follows:</p> <p>“Paragraph 1. For complaint this plaintiff, upon his information and belief, states that the defendant is a corporation organized under the laws of the state of New York for the purpose of operating a railroad between New York City and the city of Buffalo, and for over ten years last past have operated a railroad and run trains between those cities to carry passengers and also to transport freight. Par. 2. That on the 19th day of February, 1889, and for a long time prior thereto, the plaintiff had been in the employ of said defendant; that on said 19th day of February a freight train, number 48, started from Buffalo on said railroad for the east, upon which one Patrick Fox was employed by the defendant as a brakeman. and whose duty it was to carry a signal to the rear in case any accident or detention should happen to that train. Par. 3. This plaintiff further states, upon his information and belief, that the said Fox was not a fit or competent person to be employed by said defendant to perform that duty, of which the defendant had due notice. Par. 4. This plaintiff further states that on the morning of February 19, 1889, and about two o’clock, the said train, consisting of a large number of freight cars, was stopped about one mile west of the village of Corfu, which was the depot nearest to where said train was stopped; that the said Fox then went on the track to the rear of said train with two lanterns, furnished by the defendant, to signal any trains that might be approaching upon the same track. Par. 5. This plaintiff further states, upon his information and belief, that the said lamps thus carried by said Fox were not safe or sufficient for the purpose of signaling an approaching train, even when used by a competent person. Par. 6. This plaintiff further states that on the said 19th day of February, 1889, the defendant started another extra freight train from Buffalo east, on the same track, and which started about twenty minutes after said train number 48; that the plaintiff was then and there employed by the defendant to accompany said extra train as a brakeman, and he did so accompany said train until the collision hereinafter stated. Par. 7. This plaintiff further states that soon after two o’clock in the morning of said February 19th, and while it was dark, the said extra train, at full speed, ran against the rear of said train number 48, which was then stationary upon the track, as before stated. Par. 8. This plaintiff further states that the engine on said first train was not in proper condition to draw said train; that said train was not supplied with torpedoes to warn an approaching train; that the said first train remained an obstruction upon the track, to the knowledge of the defendant, and was not removed therefrom; that the defendant neglected to place upon the track of said railroad proper signals that the track was obstructed; that the defendant did not send back but one person to give signals; that the person sent back with lamps was not furnished with proper lamps, and he was not competent to use the lamps which he had; and in consequence of said negligence of the defendant the last or extra train ran into train number 48, without any fault of the plaintiff or of the persons in charge of the extra train. Par. 9. This plaintiff further states that in consequence of the said negligence of the defendant this plaintiff had his leg broken, and otherwise sustained permanent injuries, to his great damage, and was also compelled to and did pay out large sums for medical treatment and nursing. Wherefore this plaintiff demands judgment against said defendant for ten thousand dollars damages, besides the costs of this action.”</p>

Action by Louis Goodman against James G. Snow. From an order denying a motion to set aside an execution on the ground that the judgment had been paid, defendant appeals. Modified.

Lewis, deceased. From a decree denying probate, Emma B. Adamson, the executrix named in the will, and Henry Langslow and Lena Langslow, infants, by their guardian ad litem, James S. Garlock, appeal. Reversed.

Action by Phoebe T. Colby against Edward Colby, guardian, etc., impleaded with others. From an interlocutory judgment entered on a decision sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

<p>Appeal from circuit court, Monroe county.</p> <p>Action by John A. Smith against Henry W. Foote for breach of warranty of goods sold. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Affirmed.</p>

Action by Hampton Dodge against Henry Weill to recover commissions for the sale of land. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Reversed.

Judicial settlement of the accounts of Norman M. Allen as executor of the will of Norman Howard, deceased. From portions of' a decree relating to the distribution of the residuary estate (23-N. Y. Supp. 836), Charlotte Kavanaugh, a residuary legatee, appeals. Modified.

Action by the trustees of the village of Canandaigua against William L. Foster to recover the amount of a judgment recovered against and paid by said village in an action by one McSherry for personal injuries sustained by falling on a defective sidewalk in front of defendant’s premises. From an order denying a motion for a new trial on the minutes of the court after verdict in favor, of plaintiffs, defendant appeals. Affirmed.

<p>W ills—Leg act Charged on Land.</p> <p>Where testator directs payment of a pecuniary legacy by the devisee of a life estate in his realty, whom he also authorized to sell the realty, and use the proceeds, if necessary, for her support, such legacy is charged on the land, though the devisee is also the executrix.</p>

Action by Jackson W. Bowdisb, as assignee for benefit of creditors of Mortimer Allison and Lawrence Allison, against Esek Page, William H. Murray, and the Citizens’ National Bank of Hornellsville, for conversion. There was a judgment in favor of plaintiff, and defendants appeal. Reversed.

Action by Harvey F. Drake, Henry H. Craig, and Eli M. Upton against Severin Siebold for breach of a contract. The complaint was dismissed, and plaintiffs appeal. Reversed.

<p>1. Appeal—Review—Obdeb Affecting Final Judgment.</p> <p>An order opening a case, and permitting plaintiff to introduce further-evidence, and requiring as a condition that the cause be sent to a referee to hear the additional evidence, and on it and the stenographer’s minutes-of the evidence taken before the court to determine all the issues, is not , an order which “necessarily affects the final judgment” (Code Civ. Proc.. § 1316), and therefore is not reviewable on appeal from the judgment.</p> <p>2. Same—Objections Waived.</p> <p>Where counsel, when a cause comes on to be heard before the referee,, objects that the court had no power to make the order of reference, but takes part in the trial on the merits, the objection is not reviewable on an-, appeal taken from the final judgment alone.</p> <p>■8. Corporations—Action by Stockholder.</p> <p>• A stockholder may sue for the benefit of the corporation where the corporation refuses to sue, or is controlled by directors who are charged with liability.</p> <p>4. Same—Liability of Directors.</p> <p>Directors are neither indorsers nor sureties for the fidelity of the officers of the corporation, but are liable only for losses attributable to their own neglect.</p>

Action by Fredericka Bantheon against Elizabeth Meier. From an order granting a motion for a new trial, on the ground of newly-discovered evidence, defendant appeals. Reversed.

<p>Appeal from judgment on report of referee.</p> <p>Action by James Danihee against John Hyatt to recover possession of land. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.</p>

Action by Dewitt C. Le Fevre against Charles W. Phillips, impleaded, etc., to have a judgment declared a lien on land. From an interlocutory judgment, entered on an order overruling a demurrer to the complaint, defendant appeals. Affirmed.

<p>Appeal from circuit court, Orleans county.</p> <p>Action by Clement J. Weber against. Edward H. Butler for libel. From a judgment entered on a verdict in favor of plaintiff for $800, . and from an order denying a motion for a new trial made on the minutes of the court, defendant appeals. Affirmed.</p>

<p>1. Insurance—Action on Policy—Limitation.</p> <p>Code Civ. Proc. § 399, providing that an attempt to commence an action by delivering the summons to the sheriff to be served is equivalent to the commencement thereof, within the provisions of the Code as to the limitation of actions, applies only to the limitations specifically provided for by the Code; and therefore an action on a policy which provides that no action shall be brought on it, unless commenced within 12 months after the loss, cannot be maintained where the summons was served after the 12 months had elapsed, though it was given to the sheriff for service within that time.</p> <p>2. Same—Estoppel.</p> <p>In an action against a foreign insurance company, defendant is not estopped to set up the one-year limitation contained in the policy by the fact that the superintendent of insurance was absent from the county of his official residence when the summons was received by the sheriff for service on him, within the year, and did not return until the year had expired, since the service could have been made on the superintendent’s deputy, under Laws 1892, c. 690, § 5.</p>

Action by the Commercial Bank of Rochester against Burton H. Davy, as sheriff of Monroe county, for conversion of personal property. From a judgment in favor of plaintiff for $469.25 damages and costs, defendant appeals. Affirmed.

Action by George T. Ditmars and Abram R Wyckoff, as executors of John V. Ditmars, deceased, against Frederick B. Sackett, W. Gilmore Sackett, and John H. Sackett, to recover possession off mortgaged property. A verdict was rendered in favor of defendants, and plaintiffs move for a new trial on a case and exceptions; directed to be heard at general term in the first instance.. Granted.

Action by Catherine Dempsey, as administratrix of John J. Dempsey, deceased, against the New York Central & Hudson River Railroad Company, to recover damages for the death of plaintiff’s intestate, alleged to have been caused by defendant’s negligence. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on a case and exceptions, defendant appeals. Affirmed.

<p>1. Specific Performance—Assignee of Contract.</p> <p>The assignee of an oral contract for the purchase of land, which has been partly performed, has the same right to specific performance as the assignor.</p> <p>3. Same—Decree—Rights of Defendant.</p> <p>Where a vendor has made advances to the purchaser to enable him to erect a building on the land under an agreement that he should be secured by a lien thereon, specific performance in favor of the assignee of the purchaser will be decreed, subject to the vendor’s judgment for the money so advanced.</p>

Applications by E. Devillo Root, as supervisor of the town of Addison, and by Marcus Stowell, as supervisor of the town of Lindley, respectively, for a writ of mandamus to the board of supervisors of Steuben county to compel a levy on the taxable property of «aid county in order to pay the county’s proportion of the expenses of the construction and repair of bridges in said towns.

Action by David Drew, as assignee of James 0. Sebring, against Fred. 0. Keufer, John J. Karle, and David E. Hoover, impleaded' with others, to recover for services rendered in proceedings to dissolve the Pleasant Valley Vintage Company, a domestic corporation.. The complaint was dismissed, and plaintiff appeals. Affirmed.

> Action by Patrick J. Sutley, as assistant to the dairy commissioner, in the name of the people, against' Edward Hodnet, to recover a penalty for selling adulterated milk. There was a verdict in favor of defendant, and plaintiffs’ motion for a new trial on exceptions, ordered to be heard at general term in the first instance, was denied, and judgment was ordered for defendant on the verdict. 22 N. Y. Supp. 809.

<p>Action by Charles K. Bryant against the New York Central & Hudson River Railroad Company to recover damages for personal injuries alleged to have been caused by the negligence of defendant. There was a verdict in favor of defendant, and plaintiff moves for a new trial on exceptions ordered to be heard at general term in the first instance: Denied.</p> <p>The plaintiff was a locomotive engineer in the service of the defendant. On the evening of April 4, 1893, he received from the division superintendent of the defendant a telegraphic order to run engine 565, extra, from East Rochester to Canandaigua. The order was addressed to the conductor and engineer having charge of that engine and a freight train of 20 or 30 cars. That line of the road was a single track. The plaintiff’s train left East Rochester at 10:05. On arrival at Brighton he received another telegraphic order to meet No. 45 at Pittsford,—a regular train hound west, due there at 10:20. The train was met at Pittsford. He then proceeded to Fishers. There the engineer of 23, a regular train going west, delivered to the plaintiff a telegraphic order as follows: “For Victor. To O. & E. of No. 69, Victor, Eng. 565, Care of G. & E. No. 23: Extra eng. 565, east, has right of track against No. 69, Pittsford to Victor. H. G. Time received, 11:35 p. m. O. K. Given at 11:36 p. m. By M.” No. 69 was a regular freight train going west Its leaving time at Canandaigua was 11:40. It left there about 40 minutes late. The plaintiff, with his train, proceeded east. Was delayed on the way by the breaking of the injector of his engine. Arrived at Victor 12:30, and stopped his engine about 300 feet west of the depot The water was then low in the boiler, and he cut it from the train, ran it to a tank about 200 feet east of the station, sent flag forward, took supply of water, and returned to train, coupled on the engine, and was about proceeding to draw the train onto side track, when the headlight of engine 69 came in sight, and, not having time to get his train from the main track, proceeded to jump from his engine as that of No. 69 collided with it, and he was injured. The further facts appear in the opinion. The plaintiff was nonsuited.</p>

Action by the German-American Bank of Tonawanda against the P. W. Scribner Lumber Company and another on 13 promissory notes made by defendant company, a domestic corporation, and indorsed by the other defendant. The alleged defense is payment. From a judgment entered on a verdict directed in favor of plaintiff for $18,601.53, and from an order denying a motion for a new trial, made on a case and exceptions and on the ground of newly-discovered evidence, defendants appeal.

Action by George D. Woodward and others against Herman E. Eemmington to recover for goods sold and delivered. There was a judgment in favor of plaintiffs, and defendant appeals. Affirmed.

Action by Frederick Dieboldt against United States Baking Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minntes of the court, defendant appeals. Reversed.

<p>Negligence—Evidence—Change in Locus in Quo.</p> <p>In an action for injuries caused by defective highway, the admission-of evidence as to changes in the condition of the highway since the accident is not error, where the change appeared incidentally from evidence by which plaintiff sought to show the condition of the highway at the-time of the accident.</p>

Action by Sophia A. Miller and John G. Miller, as administrators of John H. Miller, deceased, against the New York Central & Hudson River Railroad Company to recover damages for the death of plaintiffs’ intestate, alleged to have been caused by defendant’s negligence. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Reversed.

Sheehan and another to recover damages for personal injuries. Plaintiff died after a verdict was rendered in his favor, and Mary Carr, his administratrix, wTas substituted in his stead. From a judgment entered on the verdict, and from an order denying a motion for new trial, defendants appeal. Reversed.

Action by the Empire State Savings Bank of Buffalo against Daniel 0. Beard, Peter J. Ferris, Bussell H. Potter, Henry H. Otis, James F. Trott, Charles Berrick, and Samuel H. Wilkeson and others, as executors of John Wilkeson, deceased, impleaded with others. From an interlocutory judgment overrruling the demurrer to the complaint with leave to defendants to answer on payment of costs, the defendants named appeal. Affirmed.

<p>Payment—Evidence.</p> <p>A finding that a note for $415 given to plaintiff by testatrix was paid in her lifetime, though it was never surrendered, is sustained by evidence that, four months after the note became due, plaintiff purchased land from testatrix, assuming a mortgage thereon for $7,500, and giving tes- . tatrix three promissory notes of $500 each, and one of $400, and a duebill for $100, that the note held by plaintiff bore interest at the rate of ti per cent., while the notes given by plaintiff to testatrix bore 5 per cent, interest, and that plaintiff lived two years after the transaction.</p>

Action by Charles W. Etz and James M. Welch against Almira M. Place on a promissory note. From a judgment entered on a verdict directed in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Affirmed.

<p>Principal and Agent—Proof of Agency.</p> <p>In an action on a note drawn by defendant, payable to one M., evidence that defendant delivered the note to M., that he paid nothing for it, that he transferred it to plaintiff without rendering himself liable as indorser, that plaintiff gave him a check for the amount of the note, and that he delivered the check to defendant, who drew the money thereon, is sufficient to show that M. was defendant’s agent to procure the discount of the note.</p>

<p>Action by Theresa Maria Lund against the Masonic Association! of Western New York on two benefit certificates issued by defendant. A verdict was directed in favor of defendant at the circuit court, Erie county, and plaintiff moves for a new trial, on exceptions ordered to be heard at general term in the first instance. Denied.</p>

Action by Catherine B. Martineau, as administratrix of Irene Martineau, deceased, against the Rochester Railway Company, to recover damages for the alleged negligent killing of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for new trial, made on the-minutes of the court, defendant appeals. Affirmed.

<p>.1. Contract—Interpretation—Loan.</p> <p>Defendants signed a writing, which recited that they had received of plaintiff a certain sum of money “to operate with in buying and selling crude oil for .him; and we are to pay said [plaintiff] the principal and proceeds over and above cost and trouble of buying and selling, use of tanks, etc.” Held, that the transaction was a loan.</p> <p>2. Same—Evidence—Understanding of Parties.</p> <p>In interpreting a contract, a subsequent contract between the parties, respecting the same matter, is admissible to show how the parties understood the first contract</p> <p>3. Statute of Limitations—Absence of Joint Debtor.</p> <p>Where one of two joint debtors absents himself from the state, the statute is suspended as to him, but runs as to the other.</p>

Action by George B. Dayton against the New York, Lake Erie & Western Railroad Company to recover damages for the killing of cattle. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Affirmed.

Action by Isabella M. Baird, as executrix, etc., of John Baird, ■deceased, against William Baird, impleaded, etc., to foreclose a mortgage. There was a judgment in favor of defendant Baird, and plaintiff appeals. Affirmed.

Action by Joseph W. Ayer against Nathan Colgrove. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Affirmed.

Controversy between the town of Salamanca, plaintiff, and the county of Cattaraugus, defendant, submitted without action, under -Code Civ. Proc. § 1279. Dismissed.

Action by Helen M. Campbell against George Ellwanger and others to redeem land from a mortgage sale. From a judgment dismissing the complaint with costs, plaintiff appeals. Affirmed.

Action by Thomas Sheffield against Frederick Robinson and. others. From an order overruling a demurrer interposed to new • matter set up in the answer of defendant Murray, and from a judgment entered upon the order dismissing the complaint, plaintiff appeals. Reversed.

<p>Appeal from special term, New York county.</p> <p>Action by Emeline Lee against Mary A. Timken. From an order sustaining a demurrer to the complaint, plaintiff appeals. Dismissed.</p>

<p>1. Estate by Entireties—How Created.</p> <p>An estate by entireties is created only by a conveyance to husband and wife.</p> <p>2. Same—Conveyance to Wipe by Husband’s Cotenant.</p> <p>A conveyance to the wife by the husband’s cotenant is inoperative to create such an estate.</p> <p>8. Wills—Limitation Over an Absolute Devise.</p> <p>A limitation over upon a devise of the entire and absolute estate, with an express and unqualified power of disposition in the first taker, is void for repugnancy.</p> <p>(Syllabus by the Court.)</p>

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

<p>Appeal from trial term.</p> <p>Action by Richard H. Casey against Walter H. Stewart and Frederick Gillies Payne, impleaded, on a promissory note. The complaint was dismissed, and plaintiff appeals. Affirmed.</p>

Action by the people, on the relation of John Lardner, against Samuel A. Carson, to establish relator’s right to the office of superintendent of the poor of Niagara county, and to put him in possession of the office. Complaint dismissed.

<p>Action by Lina St. Clair Di Messiah against Catherine Gern to determine conflicting claims to life insurance policy. Judgment for defendant</p>

Action by Howard J. Forker, as receiver of the Rochester & Pittsburgh Railroad Company, against Walsion H. Brown, Frederick A. Brown, and Herbert P. Brown, for an accounting. The complaint was dismissed, and plaintiff appeals. Affirmed.

Action by Matilda Weill against the Metropolitan Railway Company and another- to restrain the operation of defendants’ railroad in the street in front of plaintiff’s premises, and for damages. Plaintiff moves for leave to amend the complaint. Granted.

Action by Ellen McGillicuddy, an infant, by her guardian ad litem, against the Kings County Elevated Railway Company. From an order denying plaintiff’s motion for leave to sue as a poor person, and granting defendant’s motion to require plaintiff to give security for costs, plaintiff appeals. Reversed.

<p>Application by Michael Conway for final papers of naturalization. Denied.</p>

Action by Mary W. Mirick, as executrix,, against Sarah J. Hill and another. There was a judgment in favor of plaintiff, and defendants appealed. The judgment was affirmed. See 28 N. Y. Supp. 237. Pending said appeal, appellants moved to compel respondent to accept an undertaking given to stay proceedings. Granted.

<p>Attorney and Client—Substitution op Attorney.</p> <p>A substitution of an attorney will not be denied on the ground of a general lien for services of the attorney to be displaced, where the only thing done by him was serving notice of appearance for defendant, but the substitution will be granted on payment of the sum earned in drawing and serving the notice of appearance.</p>

<p>Costs—Remedies—Stay of Proceedings.</p> <p>Code Civ. Proc. § 779, which provides that where costs are not paid within the time limited, all proceedings by the party required to pay the same, except to review or vacate the order, are stayed, does not apply to a motion by plaintiff for leave to enter final judgment dismissing the complaint after an order sustaining a demurrer thereto has been affirmed on appeal.</p>

Stephen 0. Duryea was convicted of seducing one Addie Oakley under a promise of marriage, and from the judgment of conviction he appeals. Reversed.

Certiorari by the Oppenheimer Publishing & Printing Company to review the action of George People, supervisor, and Harrison S. Moore and others, composing the board of town auditors of the town of Flushing, Queens county, in auditing and allowing relator’s claim against the town. Affirmed.

Action by William W. Kirby against Charles R. Colwell and Laura R. Colwell to recover for services. From an order vacating and setting aside an attachment, plaintiff appeals. Reversed.

Action by Harry Sneck against the Travellers’ Insurance Company of Hartford, Conn., on a policy of accident insurance. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Reversed.

Proceeding by William C. Camp for an accounting by Calvin B. Camp, his guardian. From an order reviving the proceeding against the executor of said Calvin B. Camp, who died during its pendency, the executor appeals. Reversed.

Separate actions by Sarah A. Burtis against Thomas V. Dickinson and Matilda B. Dickinson, by Charles D. Marshall against the same defendants, by Ludwig Nissen and Alexander C. Chase against the same defendants, and by the German-American Bank against the same defendants.

Action by Mary O’Connell against Morris Samuel and others for an assault and battery. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendants appeal. Affirmed.

<p>On reargument. For decision on appeal, see 25 N. Y. Supp. 438. For order granting reargument, see 29 N. Y. Supp. 1145.</p>

Action by Charles S. Laney against the Bochester Railway Company. From an order denying a motion to vacate a chamber order staying proceedings on the injunctive provision of the judgment herein during the pendency of defendant’s appeal to the court of ■appeals, plaintiff appeals.. Affirmed.

Action by Charles L. Eastman against Emily H. Gray. From an order striking from the judgment the award of costs to defendant, defendant appeals. Affirmed.

Action by Mary A. Knope against Joseph Nunn. From a judgment entered on a verdict in favor of plaintiff, and from an order ■denying a motion for a new trial, defendant appeals. Affirmed.

<p>Application by Charles Young for writ of habeas corpus to James C. Stout, agent and warden of state prison at Auburn, to inquire into the cause of relator’s imprisonment. Relator discharged.</p> <p>For report of decision on application to special term, see 30 JN. Y. Supp. 370.</p>

Action by George W. Brand against the New Jersey Steamboat Company to recover damages for injuries to part of a shipment of 63 bales of hops shipped by plaintiff on defendant’s steamboat from Albany to the Glaus Lipsius Brewing Company, in Williamsburgh, under a verbal contract of affreightment. The complaint was dismissed on the merits, and plaintiff appeals. Affirmed.

Action by Lazarus Straus and others against Warren Sage and others to charge defendants, as trustees of the Manhattan Athletic Club, with corporate debts. From an interlocutory judgment entered on an order sustaining a demurrer to the complaint interposed by defendant Sage, plaintiffs appeal. Reversed.

Action by Erastus Crawford against Thomas M. Tyng to recover money alleged to have been loaned. From a judgment of the city court (27 N. Y. Supp. 424) affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals. Reversed.

Action by Henry Merzbach against the mayor, etc., of the city of New York, to recover statutory fees as a notary to which plaintiff •claimed to be entitled for services performed by him at the request of the district attorney of the city and county of New York in and about the necessary affairs of the latter’s 9f6.ee, and. while plaintiff was employed as a clerk in said office, at a salary payable from the city treasury.

Action by Henry Schwabeland and Henry G. Schloendorff against Edmund P. Holahan, as one of the marshals of New York, to recover possession of a stock of goods and fixtures o-f a grocery store seized by defendant under execution against one William McCaw. From a judgment of the city court (26 N. Y. Supp. 880) affirming a judgment entered on a verdict in favor of plaintiffs, defendant appeals. Affirmed.

Action by Henry Eeens against the Mail & Express Publishing Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by Heinrich Eckensberger, Jr., an infant, by Heinrich Eckensberger, Sr., his guardian ad litem, against Bernard G-. Amend, for personal injuries. From a judgment of the city court (27 N. Y. Supp. 941) affirming a judgment entered on a verdict in favor of plaintiff, and an order denying a motion for a new trial, defendant appeals. Reversed.

Action by Munczi Lajos against the Eden Musee American Company, Limited, on a contract of employment. From a judgment of the city court (27 N. Y. Hupp. 1132) affirming a judgment entered on a verdict in favor of plaintiff for $150, defendant appeals. Reversed.

Action By Anna A. Johnson against the New York Elevated Railroad Company and another to enjoin the operation of defendants’ elevated railroad in the street in front of plaintiff’s premises known as “633 and 635 Third Avenue,” and for damages alleged to have accrued from loss of rents due to the presence of the railroad. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.

Action by Caroline Grace Page and others against the Metropolitan Elevated Railway Company and another to enjoin defendants from the further maintenance and operation of their elevated railroads in front of plaintiffs’ premises, known as “Yo. 972 Second Avenue,” and for damages to said premises. There was a judgment in favor of plaintiffs, and defendants appeal. Affirmed.

<p>Contracts—Excavating Land—Title to Materials Removed.</p> <p>A contract to excavate defendant’s land for the erection of a building; thereon does not imply a transfer to the contractor of the title to materials of value removed in performance of the contract.</p>

Action by Mary Demann against the Eighth Avenue Railroad Company for personal injuries alleged to have been sustained by a fall from defendant’s street car. The court charged that plaintiff might recover “for any mental suffering and anguish they found to be the direct and natural result of the accident.” From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

• Action by Isaac Bierman and others against the City Mills Company to recover damages for misrepresentations and concealment on a sale of goods. From a judgment entered on a verdict directed by the court in favor of defendant, plaintiffs appeal. Affirmed.

Action by George L. Baber, an infant, by his guardian ad litem, against the Broadway & Seventh Avenue Railroad Company, for personal injuries. The complaint was dismissed, and plaintiff moves for a new trial on exceptions ordered to be heard at general term in the first instance. Granted.

<p>Appeal from judgment on report of referee.</p> <p>Action by John Courtney against the New York Elevated Railroad Company and another. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.</p>

Action by James McVity against Daniel Y. Stanton for the conversion of bonds. For value, defendant assigned to plaintiff certain receiver’s certificates. Certain bonds were provided for the redemption of these certificates. Of these bonds defendant, with notice of plaintiff’s right, got possession, without the knowledge or consent of plaintiff, and, on receiving them, gave release from all liability for the bonds either to himself or his assignee.

Action by Joseph Hughes against Henry Hughes, impleaded with David M. Koehler, Peter Engle, and Eugene Conran, to recover possession of- land. The complaint alleged exclusive seisin of the plaintiff in fee simple, and wrongful entry and detention of possession by the defendant.

Action by Fillmore Riker, substituted as plaintiff in place of Emily F. Wyckoff, by whom the action was originally brought, against James L. Curtis, for money loaned. Said Emily F. Wyckoff died pending the action, and Jacob F. Wyckoff assigned the cause of action to said Fillmore Biker, the present plaintiff herein. From a judgment of the city court (27 N. Y. Supp. 1012) affirming a judgment in favor of plaintiff, defendant appeals. Reversed.

Action by Henry Gimpel against Peter K. Wilson and Samuel M. Wilson for an accounting of partnership profits. There was a judgment in favor of plaintiff, and defendants appeal. Reversed. The account, as stated by the referee, is as follows:

Action by John Zacharias against Thomas H. French. Plaintiff moves that certain matter be stricken from the answer, and that defendant be required to state whether certain facts are relied on as a complete or as a partial defense. Denied.

<p>Action by Harriet D. Hallett against Theodore Hallett on a note. Plaintiff moves to strike out defendant’s answer as sham and friv-olous. Granted.</p>

Action by Maltby K. Pelletreau against the United Electric Light & Power Company to recover on a contract for work, labor, and services. From a judgment rendered by a justice without a jury-in favor of plaintiff, defendant appeals. ¡Reversed.

Action by Benjamin F. Bomaine and others against Thomas F. Brewster for. rent, under a written lease. From a judgment of the city court (27 FT. Y. Supp. 138) reversing a judgment sustaining a demurrer to defendant’s counterclaim, plaintiffs appeal. Reversed.

.Appeal from special term, New York county. Action by Henry Pike, Jr., as receiver of the property, assets, and effects which were of the copartnership of Haas & Pohalski, against Benoit Wasserman, Herman Beiners, Catharine M. Beiners, Henry Bischoff, Moses Lindheim, Solomon L. Simpson, Mechanics’ & Traders’ Bank, Francisco Garcia, Vincente Guerra, Abraham Rosenstein, Helen Wollman, Leopold Schmitt, Robert J. Dean, Edward M. Dean, Alvin J. Donally, John J. Gorman, as sheriff…

Action by Adran J. Reynolds against the city of Niagara Falls for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying the motion for a new trial made on the minutes, defendant appeals. Affirmed.

Proceeding by the Manhattan Railway Company and another against Julia A. Kent, individually and as trustee, and others, to acquire so much of the easement appurtenant to premises owned by defendants, and known as numbers 1, 3, and 5 New Bowery, in the city of New York, as has been taken by the maintenance of petitioners’ elevated railway in front of such premises.

Proceeding by the Manhattan Railway Company and another ■against Julia A. Kent, individually and as trustee, and others, to . condemn easements appurtenant to premises known as numbers 1, 3, and 5, New Bowery, in the city of New York. The facts fully appear in the preceding case, which was an appeal by petitioners from an award of costs in favor of defendants. This is an appeal ■by defendants from an order denying their motion for a retaxation of costs.

<p>Damages for Personal Injuries—When not Excessive.</p> <p>A judgment for $18,500 will not be disturbed as excessive, where the ■medical testimony shows that plaintiff’s condition is incurable, and will .grow worse until he becomes entirely helpless.</p>

<p>Offer of Judgment—Amendment.</p> <p>After an offer of judgment has been accepted by plaintiff, and paid by defendant, the court cannot, on motion, set aside the judgment, and allow an amendment of the offer.</p>

Summary application to determine as to objections filed by John J. Mitchell to a certificate of nomination filed in the name of the “Regular Democratic Party.” Prom an order entered on a decision that said “Regular Democratic Party” was entitled to have its ticket printed, said Mitchell and the Queens county Republican committee, which had been permitted to intervene, appeal. Affirmed.

<p>.Bridges—Compensation of Bridge Tender.</p> <p>A drawbridge over a canal was constructed in defendant village under a statute which provided that the superintendent of publicworks should direct the operation of the bridge, but that the village should pay the expense. The superintendent appointed plaintiff as bridge tender, and the village fixed his compensation at $45 a month. Afterwards it was provided by Laws 1889, c. 380, that Avages of employes of the state should not be less than $2 per day. Plaintiff continued to perform the duties of bridge tender, and each month received $45 from the village, but did not assert any claim for additional compensation under the statute until the end of the term for which he Avas employed. Held, that the question whether there was an implied agreement by plaintiff to do the work for $45 a month should have been submitted to the jury.</p>

Action by James M. Welch, as temporary administrator of the estate of James M. Earley, deceased, against the St. Patrick’s Church Society of the City of Rochester, 27. Y. From an order denying a motion by said Welch for an order canceling the record of satisfaction of the judgment, said Welch appeals. Reversed.

Action by Frederick W. Skinner and George W. Skinner against George W. Hannan, as sheriff of Monroe county, and Frederick Odenbach. From an order vacating a preliminary injunction granted in the action by the special county judge, and directing the sheriff to execute a special term order theretofore made in an action wherein one Falding W. Skinner was plaintiff and the defendant Odenbach was defendant, plaintiffs appeal. Modified.

Action by Carlo Scotti and Charles Viola, as administrators of Benedicto Scotti, deceased, against George Behsmann and others. From a judgment dismissing the complaint, plaintiffs appeal. Reversed.

Claim by August Von Hermann! against Adam Wagner, Peter Lyding, and George Schuster, as executors of the last will and testament of Adam Schepp, deceased. The matter was referred to Henry 0. Botty; Esq., pursuant to Code Civ. Proc. § 2718, as amended in 1893. Judgment was rendered in favor of claimant, and defendants appeal. Reversed.

Action by George Ropes against William H. Arnold, impleaded with others. From a judgment in favor of plaintiff, entered on a verdict directed by the court, defendant Arnold appeals. Affirmed.

Action by Morris C. Mengis against the Fifth Avenue Railway Company and Alfrederick S. Hatch, impleaded with others. From a judgment in favor of plaintiff, defendants, railway company and Hatch appeal. Affirmed.

Action by Maximilian Toch, individually and as administrator with the will annexed of Moses Toch, against Jacob B. Toch, as executor of Bernard Toch and individually, and Lucas Toch. From a judgment entered on a decision that certain legacies were equitable liens, and chargeable on the real estate, and that the land should be sold for the payment of such legacies (28 N. Y. Supp. 602, affirmed), plaintiff, and defendants Jacob B. Toch, as executor, and Lucas Toch, appeal.

Action by the Clinical Instruction Company, Limited, against the New York Elevated Railroad Company and another. A judgment was rendered in favor of plaintiff, and defendants appeal. Affirmed.

Proceeding by Viola J. M. Karan to vacate a decree admitting to probate the will of Benjamin Kicliardson, deceased. The application was denied, and petitioner appeals. Affirmed. February 20, 1889, Benjamin Richardson died, leaving, him surviving, Joseph B. Richardson, son, Jane Richardson, daughter, and five grandchildren, the children of a deceased daughter, to wit, Ella T. Birdsall, William H. Birdsall, Louis P. Birdsall, Viola J. Birdsall, and Philena 0.

Action by Mary Talbot against Stephen V. R. Cruger and others. Judgment was entered on a verdict in favor of defendants, and plaintiff appeals. Affirmed, For former report, see 25 N. Y. Supp. 285.

<p>Appeal from the judgment on report of referee.</p> <p>Action by Edith E. Tinker against the Metropolitan Elevated Railway Company and another. From a judgment dismissing complaint on the merits, plaintiff appeals. Reversed.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by Catherine Gunning and James Gunning, as administrators, against Denis Quinn, for conversion of money. From a judgment entered on a verdict directed by the court in favor of defendant, and from an order denying a motion for a new trial, plaintiffs appeal. Affirmed.</p>

Action by John G. Fuchs against John H. Morris for the price of :an orchestrion sold by. plaintiff to defendant. From a judgment ■entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Reversed.

Action by Alfred Blum and Lucas Toch against Philip A. •Jung (“Philip’’ fictitious; real Christian name of the defendant un- ! known to plaintiffs), Alexander Mailer, and Isidor G-reen (“Isidor” fictitious; real Christian name of defendant unknown to plaintiffs), —said defendants being copartners carrying on business under • the firm name and style of American Saloon & Fixture Company,— toe recover the price of goods sold and delivered.

Action by Anna Mortland against the Philadelphia & Reading - Railway Company to recover baggage of plaintiff, alleged to have-been lost by defendant. From a judgment dismissing the complaint, with costs, and from an order denying a motion for a new - trial, plaintiff appeals. Affirmed.

<p>Banks and Banking—Liability of Stockholders.</p> <p>Laws 1892, c. 688, § 55 (Stock Corporation Law), providing that no action shall be brought against a stockholder for any debt of the company until certain requirements have been complied with, must be construed in connection with Laws 1892, c. 689, § 52 (Banking Law), which makes stockholders of banks liable for corporate debts; and a complaint against a stockholder for a debt of the bank, in a case where the requirements of section 55 have not been complied with, must allege facts showing that such compliance was impossible.</p>

Action by Jacob Hirshfeld, suing in his own behalf, etc., against Adolph S. Kalischer and others, impleaded. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Application by Frances M. Peaslee for payment of a legacy bequeathed to her under the will of Martha K. Peaslee, deceased. The surrogate ordered payment of the legacy, and Hiram Hitchcock and Edward H. Peaslee, as executors of the will of said Martha K. Peaslee, appeal. Affirmed.

Action by Cochrane Carpet Company against Henry G-. Howells, Jr., and another, to recover the price of goods sold. From an order requiring a bill of particulars of matters alleged in the answer, defendants appeal. Modified.

Action by the Nason Manufacturing Company against the Craft Eefrigerating Machine Company. From an order denying a motion to vacate an attachment, defendant appeals. Affirmed. The affidavit on which the attachment was granted is as follows: Samuel Greason, being duly sworn, says: That he is treasurer and general manager of the Nason Manufacturing Company, the plaintiff herein.

Action by Barstow Stove Company against Albert M. Darling, as administrator, etc. From an order vacating a warrant of attachment, plaintiff appeals. Reversed. The affidavit on which the attachment was granted is as follows: Royal F. Harvey, being duly sworn, says: First.

Action by John S. Keyes and Theodore E. Smith, individually and as executors of Antoine Ruppaner, deceased, against Barbara Ellensohn, the town of Altstaetten, the canton of St. Gall, Carl Haselbach, Jr., Ida Haselbach, Clara Senk Haselbach, Anansia Kristof, Christina Kristof (the first name of the two persons last named being fictitious, their real names being unknown to plaintiffs), President and Fellows of Harvard College, Rose A. Gallery, John McArthur, Martha L. Keyes,…

Action by Christopher G-ullmann against John M. Sharp, impleaded with others, for conversion of a pump. Prom a judgment entered on a verdict in favor of plaintiff for $3,515.10, and from an order •denying a motion for a new trial, defendant Sharp appeals. Affirmed.

Action by William A. Hankinson against William H. Biker, W. B. Biker & Son Co., Amy E. Vantine, John Dimond, Otis Bros. & Co., and others, to foreclose a mechanic’s lien on certain property in which defendants were severally interested as owners, lessees, lien-holders, etc. There was a judgment in favor of plaintiff, and defendants Vantine, Margaret A. Dimond as executrix, and Otis Bros. & Co. appeal. Modified.

Action by Acalus L. Palmer against the Great Western Insurance Company on a policy of marine insurance. From a judgment ■ entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals. Affirmed.

<p>On reargument. For decision on appeal, see 25 N. Y. Supp. 100. For order granting reargument, see 27 2f. Y. Supp. 1123.</p>

<p>Action by Patrick Sweeney against James White. Plaintiff moves for leave to sue as a poor person. Denied.</p>

<p>Appeal from justice court.</p> <p>Action by Charles W. Sebring against William H. Stryker. Judgment was rendered in favor of plaintiff, and defendant appeals. Affirmed.</p>

<p>Appeal from trial term.</p> <p>Action by Harris Christian Nagel against Albert A. Adler and Rosa Adler. From a judgment entered on a verdict in favor of plaintiff, defendants appeal. Affirmed.</p>

Action by Henry Keteltas, as trustee, etc., against Kobery M. Gilmour. From an order directing a bill of particulars in a counterclaim set up in the answer, defendant appeals. Affirmed.

<p>Appeal—Review—Question op Law.</p> <p>On appeal from the judgment only, questions of law alone can be reviewed.</p>

<p>Appeal from trial term.</p> <p>Action by John Kerr, against the Atlantic Avenue Bailroad Company of Brooklyn for personal injuries. From a judgment entered on a verdict in favor of plaintiff, defendant appeals. Affirmed.</p>

Action by Anthony Timony, as administrator of John Timony, deceased, against the Brooklyn City & Newtown Bailroad Company. From a judgment entered on a verdict in favor of plaintiff for $3,-000, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by Lizzie Butcher against Richard Hyde and Louis C. Den-ham for personal injuries. From a judgment entered on a verdict in favor of plaintiff, defendants appeal. Affirmed.

<p>Appeal from special term.</p> <p>Action by the Charles S. Higgins Company against the Amalga Soap Company and others. From an order continuing an injunction, defendants appeal. Affirmed.</p>

Action by Alexander H. Small against the Brooklyn City & New-town Railroad Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>Appeal from trial term.</p> <p>Action by Anna Whalen against the Citizens’ Gaslight Company for personal injuries. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.</p>

Action by Edward A. Kitchell against the Brooklyn Heights Railroad Company for loss of services of plaintiff’s infant daughter. From a judgment entered on a verdict in favor of plaintiff for $2,000, defendant appeals. Affirmed.

<p>1. Street Railroads—Injury to Child on Track.</p> <p>In an action for running over a child 6% years old it appeared that the child started to cross the street in full view of defendant’s motorman; that she stumbled and fell on the track after traversing a space of 23 feet from the curve, and that defendant’s car was then between 25 and 50 feet distant; that the car could have been stopped within the distance of four or five feet, but nevertheless ran 40 feet after striking the child. Beld, that the question of defendant’s negligence was properly submitted to the jury.</p> <p>2. Evidence—Expert Testimony.</p> <p>A witness who had worked as motorman on defendant’s electric cars for about a year, was familiar with its tracks, and often had occasion to stop a car suddenly, is competent to testify as an expert as to the distance within which a car may be stopped at a given place on defendant’s track.</p> <p>S. Negligence—Evidence—Reasonable Doubt.</p> <p>In an action for injuries alleged to have been caused by defendant’s negligence it is proper to refuse to charge that, if the jury is in doubt as to whether an injury was caused by defendant’s negligence, “defendant is entitled to the benefit of the doubt,” since the rule as to reasonable doubt . does not apply to civil cases.</p>

<p>Appeal from trial term.</p> <p>Action by John S. Tholen, as guardian ad litem of Anna Tholen, against the-Brooklyn City Railroad Company. From a judgment entered on a verdict in. favor of plaintiff, defendant appeals. Affirmed.</p>

<p>Appeal from special term, New York county.</p> <p>Action by William Ottman & Co. (incorporated), Beinecke & Co. ■ (incorporated), George B. Weaver, and John B. Ihl against Marvelle W. Cooper and William Waddell, individually and as trustees, . James 0. Matthews, and Edwin D. Studley, as ancillary executor under the will of Albert P. Sturtevant, deceased, substituted by - order of the court for his decedent during the pendency of the action, to have declared null and void two chattel mortgages, and a trust deed in the nature of a mortgage, covering certain personal property of the defendant Matthews, and his leasehold rights in a certain piece of real property in the city of New York, known as the “Sturtevant House.” From a judgment dismissing the complaint on the merits, plaintiffs appeal. Affirmed.</p> <p>This action was brought by three judgment creditors of James O. Matthews •to set aside as fraudulent and void as against creditors three chattel mortgages executed October 14, 1891, by the defendant Matthews to one Albert P. Sturtevant individually, one to him as surviving partner of A. P. & J. D. Sturtevant, and, third, a trust chattel mortgage executed by Matthews at the . same date to Marvelle W. Cooper and William Waddell, as trustees. March 10, 1886, A. P. & J. D. Sturtevant leased the premises known as the “Sturtevant House” to James O. Matthews for a term beginning October 1, 1886, and ending May 1, 1892, with a covenant that the lease should be renewed until the 1st day of May, 1895, at the annual rent of $54,000, and the lessee entered into occupation of the demised premises under the lease. July 1, 1888, John D. Sturtevant, one of the firm of A. P. & J. D. Sturtevant, died, leaving Albert ' P. Sturtevant the sole surviving partner. On the 14th of October, 1891, James •O. Matthews was indebted to Albert P. Sturtevant, as surviving partner, on 14 promissory notes given by Matthews, and payable to the order of A. P. & J. D. Sturtevant, amounting to $41,871.97, to secure the payment of which said Matthews mortgaged to said Albert P. Sturtevant “all the goods, chattels, property, effects of every name and nature of the party of the first part, . now owned or upon the premises known as the ‘Sturtevant House,’ situate upon Broadway, between Twenty-Eighth and Twenty-Ninth streets, In the city of New York, consisting of all furniture, beds, washstands, bureaus, chairs, ■carpets, cooking utensils, bar fixtures, tables, crockery, silver and plated ware, mattresses, pillows, bed linen, table linen, and all property more particularly mentioned and described in the schedule hereto annexed, which is made a part hereof.” On the same date said Matthews was indebted to Albert P. Sturtevant individually on four promissory notes amounting to $22,700, and Sturtevant was also liable as an accommodation indorser for said Matthews on two promissory notes amounting to $13,000, which were then under discount. On the same date said Matthews, to secure the payment of said notes to said Sturtevant, and also to secure him against his liability as an indorser, mortgaged to said Sturtevant the property described in the first mortgage. On the same date said Matthews executed a chattel mortgage to Marvelle W. Cooper and William Waddell, as trustees, in which it was recited that he was indebted to Albert P. Sturtevant, individually and as a surviving partner, in the sum of about $00,000, to secure the payment of which this trust is created. This mortgage embraces the mortgagor’s leasehold interest, accounts, claims of every nature, promissory notes, drafts, checks, choses in action, bonds, mortgages, stocks, securities, wines, liquors, mineral water, owned by and in the possession of the mortgagor, and also the chattels described in the first two mortgages. The trustees in this mortgage were authorized to take possession of the hotel, and run it, and out of the proceeds pay the expenses of management, and from the net income to pay off and dis- i charge the indebtedness of the mortgagor to Albert P. Sturtevant, and, after ! the payment of such indebtedness and expenses, and a reasonable compensation to the trustees, to return the remainder to the mortgagor. The first two mortgages were duly filed in the office of the register of the county of New York on the 15th of October, 1891, but whether the mortgage of the trustees was filed, does not appear.</p> <p>The court found the foregoing facts, and also that the two mortgages were executed by Matthews and received by Sturtevant in good faith for the purpose of securing just debts due from the mortgagor to the mortgagee. It was also found that at the date of the execution of the trust agreement Matthews was sick, and unable to attend to his business, and that the trust mortgage was executed in good faith, without any intent to defraud creditors, and for the purpose of further securing said Sturtevant, as stated in the trust mortgage. It was also found that the three mortgages were all executed and delivered on the same date, but it was found that Sturtevant was not present when the trust agreement was executed, and that there was no evidence that he knew, prior to the execution thereof, that Matthews contemplated making it. Immediately after the execution of these mortgages the trustees took possession of the Sturtevant House, and managed it; Matthews, on the next day, going into the country for his health, where he remained until about November 10, 1891. On the 11th of November, Matthews demanded that the trustees should surrender the hotel and the mortgaged property,, and on the 13th of that month he brought an action against the trustees and Sturtevant to reform the three mortgages by inserting in Sturtevant’s mortgages that they were to be payable in one year instead of on demand, and by inserting a clause in the trust agreement that the property and business were to be turned over to the mortgagor on demand. In that action the plaintiffs in this were made parties defendant, and also one other creditor. It was tried, and resulted in ■a judgment dismissing the complaint on the merits, with costs. On the 11th of November, 1891, the plaintiffs in this action recovered three several judgments against James C. Matthews upon the service of summonses and complaints and offers to compromise, served by Matthews and accepted by the plaintiffs, upon which executions were issued, and were outstanding in the hands of the sheriff when this action was begun, on the 10th of December, 1891. The debts on which these judgments were recovered were contracted before the mortgages were executed, and Matthews was also indebted to others when the mortgages were given, and when they were executed Matthews owned property not described in them. March 14, 1893, Albert P. Sturtevant, a resident citizen of the state of Connecticut, died, leaving a last Will and testament, which was duly probated in said state March 23, 1893, and letters testamentary were duly issued thereon to Edwin B. Studley-Marvelle W. Cooper, Charles P. Sturtevant, Allen Tenney, and Arthur H. Brewer, and on June 13, 1893, ancillary letters were duly issued to Edwin B. Studley by the surrogate’s court of the city and county of New York, and June 19, 1893, this action was revived and continued against said ancillary-executor.</p>

Action by Charles E. Maxwell against Nathan Hofheimer to recover damages for a breach of contract for the sale of whisky. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>Appeal from special term, New York county. .</p> <p>Application by the attorney general for .leave to sue to annul the charter of the Central Stamping Company. There was an order granting the application, and said company appeals. Reversed.</p>

Habeas corpus by Peter Nechamcus to the warden of the city prison. From an order dismissing the writ and remanding relator to the custody of respondent, relator appeals. Affirmed.

Action by Daniel L. Gr. Frobisher against the Fifth Avenue Transportation Company, Limited, for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Affirmed.

Action by Jacob Kimmer, as administrator, against John Weber and another for injuries resulting in the death of intestate. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal. Affirmed. For former report, see 27 N. Y. Supp. 1093.

Certiorari by John W. Goodwin to review the action of James J. Martin and others, constituting the board of police commissioners of the city of New York, in accepting his resignation from the police force of that city. Judgment for relator.

Action by the Bank of Clarke County against Theodore Gilman and others. Judgment for plaintiff. Submission of controversy on agreed statement of facts, pursuant to section-1279, Code Civ. Proc. Plaintiff and the defendants are engaged in the business of banking,—the former at Berryville, Va.; the latter in the city of New York.

Proceeding by A. Edward Woodruff, individually and as attorney for Gilbert M. Husted, for the removal of Augustus Cruikshank as trustee of the estate of Benjamin Lord.

Action by Ambrose J. Agate against Caroline House, individually and as executrix of Ann Agate, deceased. There was a judgment in favor of defendant, and plaintiff appeals. Affirmed.

Action by James Talcott against the American Credit Indemnity •Company on a bond of indemnity. From an order denying a motion to vacate an attachment, defendant appeals. Reversed. A copy of the bond sued on was attached to and was referred to in the complaint as part thereof.

Action by the mayor, aldermen, and commonalty of the city of New York against John Brady and William Hollweg. From a judgment directed for plaintiff for $7,701.52, defendants appeal. Affirmed.

Action by John W. Lumsdon against Theodore Gilman and Winthrop S. Gilman. From a judgment entered on a verdict in favor of defendants, and from an order denying a motion for new trial, made on the minutes, plaintiff appeals. Affirmed. For several years past the defendants have been engaged in the business of banking, under the firm name of Gilman, Son & Go., at No. 62 Cedar street, New York.

Action by Joseph Blumenthal, as receiver of Morris Schneider and Abraham Schneider, formerly of the firm of M. & A. Schneider, against Benjamin F. Einstein, Herman Myers, and Henry Rice, as trustees, to recover a dividend declared by defendants, managers of what is called the “Backer Trust.” There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.

<p>Action by John Andrews against John McNamara and the City of Brooklyn. John Andrews, for appellant. Johnson & Lamb, for respondent McNamara. Almet F. Jenks, for respondent city.</p>

<p>Action by Hyman Bloom and others against the National United Benefit Savings & Loan Company an<B others.</p>

<p>Action by Marshall Barber and Warren C=. Barber against Charles H. Rutherford and William E. Gray. Frorame Bros., for appellants. Cardoza & Nathan, for respondents.</p>

<p>Action by the Alberlype Company against Nicholas J. Coundouris. Ira G. Darrin, for appellant. Herbert A. Meyer, for respondent.</p>

Action by the Campbell Printing Press & Manufacturing Company against Robert P. Yorkston on a promissory note. From a judgment in favor of defendant, plaintiff appeals. Affirmed. Charles De Hart Brower, for appellant. John Reilly, for respondent.

<p>Action by John Dorley against Ellen L. McConnell.</p>

<p>Action by Ella Cram against the Springer Lithographing Company. Boothby & Warren, for appellant. Kellogg, Rose & Smith, for respondent.</p>

<p>Action by Lillie J. Earle against George H. Robinson, as trustee, etc., and others. George M. Finney, ior appellants. A. J. Dittenhoefer, for respondent.</p>

Two actions by Marie Fogassi against the New York Central & Hudson River Railroad Company. There was a judgment in favor of plaintiff in each action, and defendant appeals. Affirmed. Ashbel Green, for appellant. Campora & Reville, for respondent.

<p>Action by the Lamson Consolidated Store-Service Company against Michael Conyuham. Wilmer & Canfield, for appellant. Gumbleton «& Hottonroth, for respondent.</p>

<p>Proceeding for the probate of the last will and testament of Richard D. Lewis, deceased.</p>

<p>Action by George Lebright against Frederick C. Schneider. Wilson, Barker & Wilson, for appellant. Grossman & Vorhaus, for respondent.</p>

<p>Action by Frank D. Hunter against Oscar Hauptner.</p>

<p>Action by the New York Bank-Note Company against the Hamilton Bank-Note Engraving & Printing Co. Edward P. Lyon, for appellant. William L. Turner, for respondent.</p>

<p>Action by Caroline Nagel against Frederick Nagel, impleaded, etc. L. Whitney Searle, for appellant. Louis Wendel, Jr„ for respondent.</p>

<p>Action by Henry C. Miner against Jonas Stolts and Julius Stolts.</p>

<p>Action by Edgar L. Ridgway, as administrator, against Charles P. Bacon, impleaded. For former reports, see 22 N. Y. Supp. 1016; 25 N. Y. Supp. 651. C. Donohue, for appellant. Elden Bisbee, for respondent.</p>

<p>Action by Annie Rutherford, as administratrix, etc., against the town of Madrid. Louis Hasbrouck, for appellant. F. J. Merriman, for respondent.</p>

<p>Action by William R. Robinson, against H. Edward Fincken. Philips & Avery, for appellant. Walter W. Wenzel, for respondent.</p>

<p>Action by Carl Rehm, and others against William S. Weiss. Ernest H. Ball, for appellants. Charles Goldzier, for respondent.</p>

<p>Action by Edward S. Stokes against William E. D. Stokes. J. J. Adams, for plaintiff. B. F. Tracy, for defendant.</p>

<p>Action by George B. Swikehard and others, commissioners, etc., against Fred P. Michels and others.</p>

Action by Lena Schmidt, by Frank Schmidt, her guardian ad litem, against Valentine Cook and another. For former reports, see 20 N. Y. Supp. 889; 23 N. Y. Supp. 799. E. M. Burghard, for appellants. Jeroloman & Arrowsmlth, for respondent.