Volume 31 — New York Appellate Division Reports

Appeal by the defendants, Mary P. Kissam and others, as‘executors, etc., of Philip Iiissam, deceased, and others, from so much of a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 17 th day of January, 1898, upon the report of a referee, as confirms said report and denies the appellants’ testators commissions, upon certain real estate held by the trustees under the will of William Astor, deceased,…

<p>Promissory note colleoted by a bank for a depositor of whose property a receiver is subsequently appointed — to what indebtedness of the depositor to the bank the proceeds can be applied by it.</p> <p>A bank which has received from a depositor for collection a promissory note, has a general lien thereon and on the proceeds thereof to the extent of obligations of the depositor then due the bank, and where such depositor subsequently becomes insolvent and a receiver of its property is appointed, the proceeds of the note so deposited for collection may be applied to the payment of notes of the depositor held by the bank which matured before, but not to such as mature after, the appointment of such receiver.</p>

Appeal by the plaintiff, Hugo Hohenstein, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of April, 1898, requiring him to substitute a new surety and to file a new undertaking in an action of replevin.

<p>Landlord and tenant— title divestedby condemnation proceedings — rent subsequently accruing not recoverable by the landlord.</p> <p>An owner of property in the city of New York whose title thereto has been divested in condemnation proceedings taken under an act of the Legislature, and who has received an award made to her therefor, by virtue of wrhich proceedings the title to the premises vested in the city of New York, cannot recover rent for the premises which has accrued subsequent to such proceedings.</p> <p>This is particularly the case in the city of New York where the statute, section 982 of the Consolidation Act (Chap. 410, Laws of 1882), relating to condemnation proceedings, provides that when land is thus taken, the obligation of the tenant to pay rent is discharged.</p>

<p>Appeal by the defendant, James Gordon Bennett, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Few York on the 15th day of February, 1898, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the Jth day of March, 1898, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by Herman Cantor, as substituted assignee, etc., of the firm of S. Fleischer & Co., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of January, 1898, confirming the report of a referee appointed to pass upon his accounts as assignee, and overruling his exceptions to said report.

Appeal by the defendants, Annie Dolan and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of March, 1898, denying their motion to compel the plaintiffs to give an additional security for costs.

Appeal by the defendant, John J. Radley, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 21st day of November, 1896, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 24th day of November, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21tli day of January, 1898, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 26tli day of January, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Robert M. Jarvis and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 29th day of December, 189Y, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of January, 1898, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by The Warren E. Smith Company from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 21st day of February, 1898, confirming the report of a referee appointed to take and state the accounts of Michael F. Shelley, temporary receiver of The Warren E. Smith Company, except from so much of said order as refuses to allow additional counsel fees to the attorney for the receiver.

Appeal by the plaintiff, Laura E. Turtle, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of JSTew York on the 28th day of April, 1898, denying the plaintiff’s motion for alimony and counsel fee. The action was brought for an absolute divorce upon the ground of the defendant’s adultery.

Appeal by the defendants, John G. Benedict and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of February, 1898, denying the defendants’ motion for a bill of particulars.

Appeal by the defendant, Hugo Meyer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 30th day of July, 1897, upon the report of a referee.

Appeal by the defendant, Kate T. Woolsey, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of .December, 1897, upon the decision of the court rendered after a trial at the New York Trial Term before the court without a jury.

Appeal by the defendant, Mary Brown, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22-d day of November, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of November, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the petitioner, Henry W. T. Steinway, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of December, 1897, denying his application for a peremptory writ of mandamus directed to Charles H. Steinway and others, the president, secretary, treasurer and trustees of the corporation of Steinway & Sons, commanding them to exhibit to the petitioner and his attorney and…

Appeal by Leon E. Muller, individually and as trustee of the-estate of Anna Muller, deceased, from a final decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 30th day of December, 1897, settling the accounts of Leon Edward Muller, as acting trustee of the estate of Anna Muller,, deceased, and also from an interlocutory order entered in said Surrogate’s Court on the 19th day of April, 1897, remanding said cause to a referee for…

Appeal by the defendant, Mary Ray de Oonrval, from a judgment of the Supreme Court in favor of tile plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 21th day of March, 1898, upon the report of a referee.

<p>Insolvent corporation—judgment taken against it by default not a violation of section 48 of the Stock Corporation Law.</p> <p>Where, in an action to recover for goods sold for cash, the summons is served upon the president of a defendant corporation, -which is at the time insolvent, and no answer is interposed and judgment is taken by default, the judgment so entered should not be set aside as having been “suffered" to be taken, with intent to give a preference, in violation of section 48 of chapter 688 of the Laws of 1893 (the Stock Corporation Law).</p> <p>Neither a corporation nor its officers are bound to interpose an answer to a verified complaint to prevent a judgment from being obtained thereon against the corporation, although it is insolvent, when an answer so interposed would be false.</p>

<p>Negotiations by attorneys for the settlement of an action — when executory only, although in writing and initialed.</p> <p>What negotiations between attorneys relating to the settlement of an action, although reduced to writing and “ initialed,” are merely executory, and do not constitute an accord and satisfaction of the cause of action, considered.</p>

Appeal by Irving Bachrack, the purchaser at the sale in the above-entitled action, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 9th day of February, 1898, denying his motion to be relieved from his purchase.

Appeal by the defendant, Ousliman Brothers Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29tli day of December, 1897, upon the report of a referee.

<p> Easements, in land condemned for public purposes—taxes and assessments are not to be deducted from the award made for the easements. </p> <p>An owner of perpetual easements of light, air and access to land, where the servient land has been condemned by the city of New York for the purposes of its board of education, is entitled to the award for the easements thus appropriated by the city without any deduction therefrom for taxes and assessments existing against the land to which the easements appertain.</p>

Appeal by the defendant, Bernard Traynor, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of April, 1898, granting the plaintiff's motion for a discovery and inspection of the defendant’s books.

Appeal by the plaintiff, the American Forcite Powder Manufacturing Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 12th day of March, 1898, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint.

Appeal by the defendant,' Lillie Winston, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25tli day of April, 1898, adjudging the appellant guilty of contempt of court for a failure to produce the body of Lillian Winston as commanded by a writ of habeas corpus, striking out the return to said writ, and adjudging that the custody of the infant child.of the parties be awarded and…

Appeal by the defendants, Abram J. Wolf and Ike J. Wolf, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 17th day of February, 1898, upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by the plaintiff, John Slattery, from a judgment of the Supreme Court in favor of the defendant, bearing date the 23d day of October, 1897, and entered in the office of the clerk of the county of Hew York upon the dismissal of the complaint as to the third cause of action by direction of the court, after a trial at the Hew York Trial Term; and also from an order bearing date the 18th day of October, 1897, and entered in said clerk’s office, denying the plaintiff’s…

Appeal by the plaintiff, J ames A. Striker, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 9th day of December, 1897, upon the report of a referee.

<p>Appeal by the defendant, The Algemeine Yerein, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4tli day of December, 1897, upon the decision of the court rendered after a trial at the New York Special Term.</p>

<p>ITirst judicial department — notice of trial must be for same term as note of issue ■— a note of issue, filed before last pleading is served, is ineffective.</p> <p>In the first, judicial department a notice of trial must be given for that term for ■which the note of issue is filed, and the attorneys in an action have no power by stipulation to provide that a note of issue, filed before the last pleading has been served, shall be effective to place such cause on the calendar without the filing of a new note of issue.</p>

<p>Motion by the plaintiff, The People of. the State of New York, for a special jury, pursuant to chapter 378 of the Laws of 1896, entitled “ An act providing for a special jury in criminal cases in each county of the State having a certain population, and for the mode of selecting and procuring such special juries; also creating a special jury commissioner for each of such counties and regulating and prescribing, his duties.”</p>

Appeal by the defendants, Angela M. Devlin and others, from an interlocutory judgment- of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of August, 1897, upon the decision of the court rendered after a trial at the New York Special Term. The action is brought by the plaintiff, as assignee of Jeremiah Doherty, to recover the sum due him out of the estate of Daniel Devlin, deceased.

Appeal by Eugene II. Sborb and others from an order of tbe Supreme Court, made at the Hew York Special Term and entered in tbe office of tbe clerk of tbe county of Hew York on tbe 1st day of June, 1897, denying tlieir motion to vacate an order made at tbe Hew York Special Term and entered hi said clerk’s office on tbe 29tb day of May, 1894, directing the payment by tbe receiver of §17,000 to tbe parties therein referred to, and also from an order made at tbe Hew York Special…

Appeal by the plaintiff, Anna” W. Corbin Borro we, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 16th day of Hay, 1898, upon the decision of the court rendered after a trial at the Hew York Special Term dismissing the complaint.

Appeal by the plaintiff, Edwin A. Ames, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 28th day of February, 1898, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, Ferdinand McKeige, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9tli day of November, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15tli day of November, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Antoinette L. Schermerhorn, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the cleric of the county of New York on the 8th day of November, 1897, upon the report of a referee, except from so much thereof as adjudges and decrees that Aaron Kahn and William M. Hoes, as administrator of the goods, chattels and credits of Stewart JVC.

Appeal by the plaintiffs, James R. Johnston and James F. Kelly composing the firm of Johnston & Kelly, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of December, 1897, upon the report of a referee dismissing the complaint.

<p>Libel—proof, in mitigation of damages, of actions against other papers for the same libel—punitive damages—damages for mental suffering — excessive verdict.</p> <p>Upon the trial of an action for the recovery of damages for the publication of a libel, the defendant is not entitled to prove, in mitigation of damages, that the plaintiff has commenced actions against various other newspapers for the publication of the same libel.</p> <p>"Where the plaintiff in such an action has attempted, before bringing it, to obtain a retraction of the publication, which the defendant consented to make if the plaintiff would furnish proof of its untruthfulness (although the defendant did ■not claim that he had reason to believe that it was true), the jury is justified in -concluding that the article was published wantonly at least, and with utter disregard of the rights of the plaintiff, and in giving to the plaintiff punitive damages.</p> <p>'The publication of a libel which reflects upon the character of a reputable man must necessarily cause him mental suffering and humiliation, and the jury may ■consider these elements of general damage, although not pleaded, and although no proof is given in regard to them.</p> <p>When a verdict of §7,500 for damages for the publication of a libel will not be •deemed excessive, considered.</p>

Appeal by the defendant, Mary O’Gorman, from two orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York, respectively, on the 28th day of January, 1898, and on the 25th day of February, 1898, denying the applications of said defendant for a new trial under section 1525 of the Code of Civil Procedure.

Certiorari issued out of the Supreme Court and attested on the 13tli day of May, 1898, directed to Daniel Lord and others, commissioners appointed under the provisions of chapter 537 of the Laws of 1893, and chapter 567 of the Laws of 1894, and Frances Kaesemeyer, claimant, commanding them to certify and return to the office of the clerk of the county of New York all acts and proceedings had by them and each of them upon the claim of Frances Kaesemeyer, together with their…

Appeal by the defendant, Pinkus Nathan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New Fork on the 16th day of February, 1898, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Samuel Crawford, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 28th day of December, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of January, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, the MacKnight Flintic Stone Company, from a judgment of the Supreme Court in favor of the defendant entered in the office of the clerk of the county of New York on the 12th day of April, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendants, Eugene M. Earle and others, from an -order of the Supreme Court, made at the New York Special Term ■and entered in the office of the clerk of the county of New York •on the 27tli day of May, 1898, referring the action to a referee to hear, try and determine all the issues therein.

<p>Attachment —■ where a warehouseman’s lien exists the sheriff does not acquire the “ actual custody” of goods.</p> <p>Where a levy under an attachment is not made by service of certified copies of the attachment papers, as -provided for by subdivision 3 of section 649 of the Code of Civil Procedure, and the property assumed to be levied upon by the sheriff, by his taking possession thereof, is, and remains, in the hands of a warehouseman, who claims to have a lien thereon for his warehouse charges, •and who, although willing to deliver the goods to the sheriff in case he would promise to pay such charges, never in fact does make delivery of the goods or receive an absolute promise of payment from the sheriff until after a receiver of the property of such judgment debtor is appointed on the application of another •creditor, the warehouseman cannot be said to have waived his lien on the goods, and the sheriff does not acquire the -1 actual custody ” thereof within the meaning of subdivision 2 of section 649 of the Code of Civil Procedure so as to make his levy effective as against the title to the property acquired by such receiver.</p>

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of January, 1898, upon the verdict of a jury for $1,500, rendered by direction of the court, and also from an order entered in said clerk’s office on the 9th day of February, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the relator, George Edwin Leet, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 27th day of May, 1898, denying the relator’s motion for a writ of mandamus commanding the respondent to reinstate the relator in the place of superintendent of the city hospital.

Appeal by the plaintiff, Henry Peetsch, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 22d day of January, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of January, 1898, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by Edward P. Barker and others, as commissioners of taxes and assessments of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of February, 1898, adjudging that the proceedings and adjudications of the defendants, in regard to the assessment for taxation of the relator for the year 1897, were illegal and erroneous, •and ordering that the assessment complained of be corrected by reducing it from the sum of §342,403 to the sum of §189,408.96.</p>

Appeal by the defendants, John T. Mitchell and Henry H. Cooper, and Mitchell & Cooper Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 23d day of February, 1898, upon the decision of the court rendered after a trial at the Hew York Special Term. The defendants John T. Mitchell and Henry H. Cooper composed the firm of Mitchell & Cooper.

Appeal by the defendant, Helen A. Dawson, as administratrix of John F. Dawson, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of April, 1898, denying said defendant’s motion for an order vacating and setting aside the decision or report of the referee, appointed to hear and determine the action, vacating and setting’ aside the judgment entered upon said decision,…

Appeal by the defendants, Charles Van Riper and James S. Bryant, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of February, 1898, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by tlie plaintiff, J. Jaffred Butler, as temporary administrator, etc., of Joseph Richardson, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the lltli day of May, 1898, vacating an order for an examination of the defendant in order to enable the plaintiff to frame a complaint, except that part of such order as adjudges that the defendant, in failing to appear at the…

Appeal by the defendant, Joseph Berrie, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Mew York on the 7th day of March, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of March, 1898, denying the defendant’s motion for a new trial made upon the minutes.

<p>Execution against the person,'—■ when authorized by the nature of the.action—conditions precedent thereto —-judgment without application to the court —proof of the facts alleged, in the complaint not required.</p> <p>A complaint which alleges that the defendants as agents for the plaintiff received funds for the use of the plaintiff and collected accounts for freight and other moneys belonging to the plaintiff, amounting to §7,000, over and above all offsets thereto, all of which sums were received in a fiduciary capacity by the defendants, sets forth a cause of action the nature of which entitles the plaintiff to arrest the defendants, and under it the plaintiff may, upon the default of the defendants, enter judgment without application to the court, and upon the return unsatisfied of an execution issued thereon against the property, may issue an execution against the persons of the defendants.</p> <p>The provisions of subdivision 3 of section 549 of the Code of Civil Procedure, in relation to proof of the allegations of such a complaint that the moneys were received in a fiduciary capacity, apply only where a defense is interposed and a trial becomes necessary. (Eayerweather v. Tucker, 35 Abb. N. 0. 396, overruled.)</p> <p>An execution against the person, although not issued within three months after the entry of j udgment, is not void under section 573 of the Code of Civil Procedure, and in case it is so issued, the defendant’s remedy is by an application to the court for his discharge from imprisonment or to he relieved from imprisonment under the mandate, on which application plaintiff has the right to show a reasonable cause why the application should not be granted.</p> <p>Semble, that an execution against the person is not within the prohibition of section 1377 of the Code of Civil Procedure, where an execution against the property of the defendant has been issued within five years after the entry of judgment.</p> <p>It is not required that an execution against the person shall describe the execution which has issued against the debtor’s property, nor does the statute provide that a mistake in such description shall invalidate the execution against the person.</p>

Appeal by the defendants, the Coatsville Rolling Mill Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the I7tli day of January, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day February, 1898, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by William E. Ritchie, a creditor of the assignor herein, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 10th day of May, 1898, directing that a commission issue to Providence, R. I., to take the testimony of such assignor upon interrogatories to he annexed to said commission.

Appeal by the plaintiff, James McHugh, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 2d day of March, 1898, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term.

Appeal by the plaintiff, John F.‘ Reilly, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of September, 1897, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, August Trenkman, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of December, 1891 granting the plaintiff leave to serve an amended complaint.

Appeal by the judgment debtors, Douglass R. Satterlee and Elizabeth II. Satterlee, as composing the firm of D. R. Satterlee & Company, as trustees of an express fund, from an order of the Supreme Court, made at the blew York Special Term and entered in the office of the clerk of the county of Hew York on the 27th day of April, 1898, denying the said judgment debtors’ motion to vacate an order for their examination in proceedings supplementary to execution.

Appeal by the relator, Joseph H. Batey, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of «the county of New York on the 8th day of April, 1898, denying his motion for a writ of peremptory mandamus directing the respondent, John M. Tierney, justice of the Municipal Court of the city of New York, second district, borough of the Bronx, New York city, to recognize the relator as an attendant or officer of the…

Appeal by the defendants, Charlotte To bier, individually and as administratrix with the will annexed of Henry M. Silverman, deceased, and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of April, 1898, denying the defendant’s motion for a stay under section 1331 of the Code of Civil Procedure.

Appeal by the plaintiff, Cornelius F. Kingsland, as sole surviving trustee of Albert A. Ilingslancl, under the last will and testament of Ambrose 0. Kingsland, deceased, from an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of ¡New York on the 3d day of May, 1898, denying his motion to compel Albert J. Gr. Riemann to complete his purchase of premises sold under a judgment of foreclosure.

Appeal by the relator, the New York Clearing House Building Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 23d day of November, 1897, upon an order made at the New York Special Term and entered in said clerk’s office on the 16th day of November, 1897, dismissing a writ of certiorari issued to review the proceedings of the defendants as commissioners of taxes and assessments of the…

<p>Railroad — an applicant for a mileage book cannot be required to disclose the. names of the members of his family nor to sign a contract.</p> <p>A railroad company, required by chapter 835 of the Laws of 1896 to issue mileage books, is not justified in requiring an applicant for a mileage book to disclose the names of the members of his family, or in requiring him to subscribe his name to a written contract of compliance with certain rules and regulations, printed on the inside cover of the book, as a condition precedent to the delivery of the mileage book to him.</p>

<p>Appeal by the plaintiff, The Town of Ontario, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Wayne on the 8tli day of November, 1897, upon the decision of the court rendered after a trial at Monroe Special Term, dissolving an injunction theretofore granted restraining the defendant, The Union Bank of Rochester, from selling, or otherwise disposing of, or attempting to collect, the refunding bonds of the plaintiff, Nos. 81 and 84, for §100 each, and No. 154 for §500, delivered to it by the defendant Hill; and also dismissing the plaintiff’s complaint and allowing the defendant, The Union Bank of Rochester, to recover costs.</p> <p>The three bonds mentioned were more particularly described in the complaint. At the town meeting in 1887, the defendant Hill was elected supervisor of the plaintiff town, and continued to be re-elected until the 5th of March, 1889, when his successor was elected. In the complaint it is alleged that, between April 15, 1887, and September 1, 1896, Hill, while such supervisor, or after his term of office had expired, without right or authority of law, executed in his name, as supervisor of said town, a large number of instruments, partly lithographed or printed, and partly in writing, in the form of and purporting to be refunding bonds of said town, and alleged to be issued in virtue of the acts of the Legislature to take up, pay and retire the bonded indebtedness of the town, and that he put the same into circulation for use and used some of them as collateral security for loans made to himself, for which instruments the town of Ontario received no value. It is alleged that the instruments were negotiable in form, payable to bearer, and had attached thereto lithographed upon the same sheet wdth each bond a large number of coupons maturing each six months from and after April 1, 1887, some of them (bonds) being in the amount of §100 and others in the amount of $500. The plaintiff alleges that among such instruments issued without right or authority by the defendant Hill, were two bonds of the denomination of §100 each, numbered 81 and 84, and one bond of the denomination of $500, numbered 154, each with coupons, which bonds are alleged to be in the possession of the defendant, The Union Bank of Rochester ; and the plaintiff alleges that said bonds are asserted by the bank to be held, as pledged to it, as collateral security for a loan made by it to the defendant Francis Hill in the sura of $500; that the bank asserts that the instruments are valid obligations of the plaintiff, and that the plaintiff alleges that each of said instruments are invalid, illegal and wholly void as against the plaintiff because the said defendant took the same charged with knowledge that the same were not issued for the benefit of said town, but for the private benefit of said defendant Hill. The complaint asked that the defendants be required to surrender the bonds to the plaintiff to he canceled and destroyed.</p> <p>The answer of the Union Bank alleged that it held the said three several bonds, and averred that they were valid and denied that it took the same charged with knowledge that the same were not issued for the benefit of said town.</p> <p>The answer of the defendant Hill admitted several of the allegations of the complaint, and among others that the three several bonds mentioned therein “ are in possession of the Union Bank of Rochester as collateral security for a loan made by said bank to Francis A. Hill; ” and alleged that all bonds issued by him were issued by authority of law and legally, and avers that the town received full value for the same “ by the return of the original bonds which the bonds were issued to refund.”</p>

Appeal by the plaintiff, Michael O’Brien, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 27th day of October, 1897, upon a nonsuit granted by the court after a trial at the Onondaga Trial Term, and also from an order granting such nonsuit.

<p>Railroad—the manner in which streets shall cross steam surface railroads is to he determined ly the Railroad Commissioners — mandamus against the railroad company, when premature.</p> <p>By chapter 754 of the Laws of 1897 it was intended that the Railroad Commissioners should he consulted and should determine the manner in which streets should cross steam surface railroads from and after the taking effect of that act, and in the absence of such a determination by the Railroad Commissioners a mandamus will not he granted requiring a railroad company to cause a street to he taken across its tracks.</p>

Appeal by the plaintiffs, Mary Jehle and another, as administrators, etc., of Valentine Jehle, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in che office of the clerk of the county of Erie on the 23d day of February, 1897, upon a nonsuit granted by the court after a trial at the Erie Trial Term.

<p>Appeal by John Maynard Brundage and another, legatees under the will of Benjamin C. Brundage, deceased, and by John Maynard Brundage, as sole executor of the will of said deceased, from an order and decree of the Surrogate’s Court of the county of Allegany, entered in said Surrogate’s Court on the 13th day of January, 1897, assessing, fixing and determining the tax upon the property of Benjamin C. Brundage under the Taxable Transfer Law, and also from an order and decree of said surrogate entered m said Surrogate’s Court on the 10th day of September, 1897, affirming in all respects the said order and decree of January 13, 1897.</p> <p>On the 9th of December, 1895, Benjamin C. Brundage died, being then a resident of Andover, Allegany county, leaving a last will and testament, which was admitted to probate. The will contained a bequest to John Maynard Brundage of about the sum of $49,110.20, and to Belle Brundage of about the sum of $11,856.03. The testator was a bachelor, and left him surviving neither wife nor child. His next of kin and heirs at law “ were a brother, nephews, nieces and children of a deceased niece.” By an order .made by the surrogate of Allegany county on the 4th of March, 1896, W. N. Ren wick, Esq., was appointed appraiser “ to appraise and fix the fair market value of the property of which Benjamin C. Brundage * * * died seized and possessed, subject to taxation under and pursuant to Chapter 483 of the Laws of 1885, and acts amendatory thereof.” On the lltli of March, 1896, he issued notices for a hearing' before him on the 26th of March, 1896. On the 4th of March, 1896, he-took and subscribed an oath of office. After taking the testimony of several witnesses he made his report on the 2d day of June, 1896, and also returned the evidence taken by him. In his report he stated the legacy of John M. Brundage at $49,110.20, and tax assessed thereon $2,455.51; and the legacy of, Belle Brundage at $11,856.03 and the tax thereon at $592.80 ; and he enumerated certain other legacies and taxes thereon not necessary to be considered on this appeal. The order confirming the report of the appraiser bears date January 13, 1897. An appeal was taken therefrom to the surrogate February 25,1897, and an order was made on the appeal by the surrogate June 4, 1897, and notice of appeal to this court from both orders of the surrogate was given September 13, 1897. John Maynard Brundage was born January 2, 1856. His father, Andrew J. Brundage, died June 20, 1861, at Monroe, Wis., and his mother came east with her children, and in the fall of 1861 made their home with the testator; she died in April, 1875. The personal property of the testator inventoried $63,480.37.</p>

<p>Appeal by the defendants, Julius H. Shaw and others, as commissioners appointed by the Supreme Court for the drainage of low, wet marsh lands, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 27th day of December, 1897, upon the decision of the court, rendered after a trial at the Erie Special Term, overruling their demurrer to the complaint interposed on the ground that the complaint failed to state facts sufficient to constitute a cause of action.</p>

Appeal by the defendant, Jonathan Clark & Sons Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 8th day of November, 1897, upon the decision of the court rendered after a trial at the Erie Special Term overruling its demurrer to the complaint, the court having found “ that the said complaint states facts sufficient to constitute a cause of action.” The action was commenced…

Appeal by the plaintiff, August Beck, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 29th day of May, 1894, denying his application for a peremptory writ of mandamus, “ on the ground that he is not entitled thereto as a matter of law upon the facts appearing,” and by which the application for a peremptory writ was dismissed upon the merits, with costs.

<p>Appeal by the plaintiff, John Jerome Burns, from an order of the Supreme Court, made at the Ontario Trial Term and entered in the office of the clerk of the county of Ontario on the 24th day of February, 1898, denying the plaintiff’s motion for a new trial made upon the minutes, the jury having rendered a verdict in favor of the defendant by direction of the court.</p>

Appeal by the defendants, Ralph 0. Fessenden and others, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the cleric of the county of Erie on the 16th day of March, 1898, directing the issuance of a peremptory writ of mandamus commanding the defendants, members of the board of canvassers of the town of Gerry, to meet and recanvass the ballots cast at the annual town meeting of said town, held February 15, 1898, for commissioner…

Appeal by the plaintiff, James H. Warner, from an order of the Supreme Court, made at the Livingston Special Term and entered in the office of the clerk of the county of Livingston on the 22d day of October, 1897, denying his motion for a new trial made on a case containing exceptions, a nonsuit having been granted by the court after a trial at the Livingston Trial Term.

<p>Appeal by the plaintiff, The New York, Lackawanna and Western Railway Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Steuben on the 1st day of November, 1897, upon the decision of the court, rendered after a trial at the Monroe Special Term, dismissing its petition, with notice of an intention to bring up for review, upon such, appeal, an order made at the Monroe Special Term, and entered in the office of the clerk of the county of Steuben on the 1st day of November, 1897, confirming the report of a referee; and also the report of said referee, which was filed in the Steuben county clerk’s office on the 4th day of June, 1897.</p>

<p>Will — revocation thereof by a later will which is subsequently destroyed — what republication of the first will is insufficient.</p> <p>A testator duly executed a will and thereafter made a second will by which he revoked the former one. Subsequently he destroyed the second will and stated to several persons, not, however, to the witnesses to the first will, that the latter instrument was his will.</p> <p>Reid, that such action on the part of the testator was not sufficient to constitute a republication of the first will, or to justify its admission to probate.</p> <p>Adams, J., dissented.</p>

<p>Insurance — relative rights of a domiciliary and of an ancillcvry ^administrator to enforce policies of an insurance company domiciled in the State issuing the ancillary letters.</p> <p>Ail administrator to whom letters were issued in the State of New York on March 3, 1897, caused to he served on April twenty-first of that year, upon the Superintendent of Insurance of the State of New York, the summons in an action upon two policies of insurance issued to his intestate hy an insurance company organized under the laws of the State of Connecticut and payable in that State, which policies had been assigned as security to the company for loans made by it to the insured. Against this company an action was thereafter brought in the State of Connecticut upon one of the policies by an ancillary administrator of the estate of the intestate to whom letters had been issued in the latter State; and the company, after the service of the summons in the New York action upon the Superintendent of Insurance, paid the amount of the other policy to such ancillary administrator, who had obtained the actual possession of both of the policies from the insurance company after the service of the summons upon the Superintendent of Insurance, by the payment of certain notes of the insured held by the company and representing the above-mentioned loans. The fact of the pendency of the action brought by such ancillary administrator upon one policy and the payment made to him of the amount of the other policy was set up as a defense in the answer of the insurance company in the action brought by the administrator appointed in the State of New York.</p> <p>Held, that the policies, being choses in action, followed the person of the owner, and that their legal possession was to be deemed to be in the' intestate at the place of his residence, no matter where the evidences of the choses in action might be;</p> <p>That the administrator appointed in the State of New York, the domicile of the intestate at the time of his death, had authority to take such choses in action wherever the evidences of them might be, and receive the amounts due upon them;</p> <p>That a foreign insurance company doing business in the State of New York was, for the purpose of an action brought to enforce its policy, deemed to be an inhabitant of the State of New York, and service upon it, by delivering a summons to the Superintendent of Insurance of the State of New York, was as effective as though made upon the defendant personally;</p> <p>That the fact that the insurance company was a Connecticut corporation, and that the policies were in its possession when the intestate died, and when the domiciliary and ancillary administrators were appointed, and were payable in Connecticut, did not make the policies exclusively Connecticut assets;</p> <p>That neither the pendency of the action on one policy in the State of Connecticut by the ancillary administrator, nor the payment to him of the other policy, was a defense to the action which, previous to such payment, had been brought by the administrator appointed in the State of New York.</p>

<p>Bills and notes — notice to a bank that a note was signed in a firm, name for the accommodation of the payee.</p> <p>A bank which, at the time that it received a promissory note for discount, had brought to its attention the long time that the note had run, and was informed that a deal had taken place between the firm by which the note was made and the payee, “by which this paper was secured to them, and it was given to him to use in his matters, and he had it for that purpose,” has notice that the note was not given in the usual course of business for the benefit of the firm whose name is signed to it, and that it is accommodation paper.</p>

<p> Accounting by executors—under what circumstances an executrix is responsible for illegal investments made by her co-executor. </p> <p>On the rendering of an account-by executors, to which exceptions were filed because of improper investments, the evidence showed that while the executor had the principal management of the estate, he frequently consulted his co-executrix, one of the beneficiaries, in regard to his official transactions; that such co-executrix knew, in a general way, and had ample opportunity to know in each particular instance, how the estate was being managed, what investments were being made, and the income which was being derived therefrom, so that the executor “ never made any transaction while she (his co-executrix) was here that she did not know of.”</p> <p>Held, that the co-executrix was equally chargeable with the executor with the consequence of the illegal investments so far as she had the means of knowing of her co-executor’s acts, and had assented to or acquiesced in them.</p> <p>Green, J., dissented.</p>

<p>Appeal by tlie defendant, The Middlesex Valley Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the comity of Monroe on the 18th day of December, 1896, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 8th day of January, 1897, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Motion by the plaintiff, Dora Schubert, for a new trial upon a ease containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon a nonsuit granted by the court after a trial at the Monroe Trial Term.</p> <p>This action was commenced on the 8th of April, 1897, to recover damages for an injury to the plaintiff resulting from a fall upon a sidewalk on Rowley street, in the city of Rochester, on the 11th day of March, 1897. The complaint alleged that the defendant had unlawfully obstructed the sidewalk upon that street, placing large piles of dirt and stones thereon, almost covering the same, and had further obstructed it with boards and planks, creating a nuisance on the sidewalk, and carelessly and negligently making the same dangerous for travelers, and that the plaintiff, lawfully passing along said street and sidewalk with due care, and without negligence on her part, was injured in consequence of said nuisance and the negligence of the defendant.</p> <p>The defendant answered, admitting that the plaintiff fell on the said street on the 11th of March, 1897, and denying other allegations in the complaint, and alleging that lie was lawfully engaged in constructing a sewer in the street under a contract with the city of Rochester, and that the plaintiff had been guilty of contributory negligence.</p> <p>The case was tried at the Monroe Trial Term on the 5th of October, 1897, and resulted in the plaintiff’s being nonsuited, and the plaintiff’s exceptions to such nonsuit and other exceptions upon the trial were directed by the court to be heard in the first instance by the Appellate Division of this court, and that defendant’s proceedings be stayed in the action until the determination by the Appellate Division of such questions.</p>

Appeal by the defendants, Patrick Glynn and another, from a judgment of ■ the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Niagara on the 4th day of. November, 1896, upon the report of a referee.

Appeal by the defendant, William II. Breckon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 18th day of March, 1897, upon the verdict of a jury for $375, and also from an order entered in said clerk’s office on the 3d day of December, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by John Barry and James Coyle, two of the inspectors of election of the third election district of the first ward of the city of Buffalo, N. Y., from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 27th day of January, 1898, directing that a peremptory writ of mandamus issue, commanding the inspectors of election of the said district to convene and sign an original statement, giving the…

Appeal by the defendant, the Rochester Railway Company, from a- judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 30th day of December, 1897, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 13th day of December, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Patrick Kennedy, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 4th day of May, 1897, upon the dismissal of the complaint by direction of the court after a trial at the Monroe Trial Term, and also from an order entered in said clerk’s office on the 4th day of May, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Mary A. Vance, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 17th day of November, 1897, upon the decision of the court rendered after a tidal at the Niagara Trial Term before the court without a jury.

Appeal by the plaintiff, Philip A. Decker, from a judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of the county of Kings on the 19th day of April, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7tli day of April, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Covenant against incumbrances■—damages where the title is restricted — evidence of the grantee's knowledge of the fact — costs of an action to enforce the restriction.</p> <p>In an action to recover damages for the breach of a covenant against incumbrances, in a deed of property which was subject to certain restrictions in its use, prohibiting its occupation, among other things, for the purposes of a saloon, it is improper to allow a witness to state what his judgment is as to the difference in value between the property if it were free from incumbrances and the property subject to the restrictions.</p> <p>In such a case proof that the grantee knew of the existence of these restrictions upon the use of the premises when she purchased, is competent, when offered merely in mitigation of damages.</p> <p>It seems, that the costs and counsel fees resulting from the proper defense by the grantee of an action ¡rreviously brought against her by a third party, because of her violation of such restrictions, are recoverable by her where proper notice of the action has been given to her grantor.</p>

Appeal by the defendant, William A. Moriarty, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of January, 189 upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, Paul Lichtenstein, from an order of' the Supreme Court, made at the Kings County Special.Term and entered in the office of the clerk of the county of Kings on the 12th: day of March, 1898, denying the defendant’s motion to vacate and set aside an order entered by plaintiff’s attorneys, placing the action on the special calendar of the court for the trial of short causes, and to strike said action from the special calendar of the court.

<p>'Gorpomtions — subscriptions to capital stock, induced by false representations, set aside — a corporation taking the fruits of its agent’s acts is liable for such acts.</p> <p>Where a party is induced to subscribe to the capital stock of a corporation by the representations of an agent authorized to obtain subscriptions, that all but ■$10,000 of the §50,000 of capital stock lias been subscribed, when, in fact, no ¡subscriptions have been received, except possibly those of two parties taking $2,000 of stock each, which appeared not to have been cash subscriptions; and that two gentlemen well known in the community, as experts in the business for which the corporation was organized, had subscribed to the stock, when, in fact, the stock held by these gentlemen had been given to them, and they had not subscribed or paid anything for it; and that the company had in sight or in immediate prospect contracts amounting to $120,000, whereas in fact it had not made a single contract for business, nor were negotiations for business then pending, an action lies in equity to rescind the subscription induced by such representations.</p> <p>The fact that no authority was given to the agent authorized to solicit subscriptions to make these statements, does not relieve the corporation from responsibility therefor, the rule being that the receipt and and retention by the principal of the fruit of the fraud of the agent renders the principal liable, although innocent of participation in the wrong.</p>

Appeal by the plaintiff, William Nuttall, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 24tli day of November, 1897, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 7th day of December, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Flora L. Davenport, as sole executrix, etc., of Clara D. Lufkin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 24th day of February, 1897, upon the dismissal of her complaint upon the merits, by direction of the court after a trial at the Kings County Trial Term.

Cross-appeals by the plaintiff, the Guarantee Trust and Safe Deposit Company, trustee, and by the defendant, the Philadelphia, Reading and New England Railroad Company, and by James K. 0.

<p>Contract for excavating the bed of a pond ■—right of the engineer to direct as to the separation and disposition of the excavated material —■ expend testimony as to marks on the plans.</p> <p>The specifications referred to in a contract for the excavation of the bed of a pond and the construction of a dam and the banks and slopes of the pond provided that the engineer should decide upon the quality and the character of the excavated material to be used at various places in forming the embankments of the conduit and supply pond, and the remainder was to be disposed of in grading and filling at such places as the engineer might designate.</p> <p>Held, that, under these provisions, the engineer was authorized to direct that the muck and the sand should be excavated separately, and that no muck should be placed in the embankments surrounding the pond.</p> <p>Where neither the contract nor the specifications give auv figures as to the extent of the improvement to be made, or anjr dimensions of its details, and in the plan, along the margins of the pond, appear colored stripes which civil engineers testify would indicate to contractors and engineers the width of the embankment, the interpretation of technical terms, marks or designs on the plans is properly the subject of expert testimony.</p> <p>Courts cannot take judicial notice of the meaning of these symbols in the absence of proof; and when such uncontradicted proof is given by competent witnesses, courts are not at liberty to disregard it.</p>

Appeal by the plaintiff, Norman Hubbard, Jr., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 15tli day of April, 1898,» vacating an order of arrest.

Appeal by the defendant, Bird S. Coler, as comptroller of the city of Hew York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the comity of Kings on the 29tli day of March, 1898, granting a peremptory writ of mandamus directing him to reinstate the relator in the position of collector of city revenue at Wallabout Market.

<p>Peremptory mandamus—denials and affirmative allegations made solely upon information and belief where the source of the information is not stated — they do not pvt in issue positive statements in the moving affidavit.</p> <p>Denials and affirmative allegations made expressly and solely upon information and belief, where there is no disclosure by the affiant of the sources of his information, or the grounds of his belief, do not put in issue positive allegations in the affidavit of the moving party upon an application for a peremptory mandamus, except possibly in cases where a public officer or other party proceeded against cannot possibly have any cognizance of the subject-matter, except such as is based upon communications from others.</p>

<p> Pa/rtition—measure of allowance, for improvements made by a co-tenant under the belief that she was sole owner. </p> <p>In an action for partition it is proper to allow to a party who has, in good faith, acquired possession of the property sought to be partitioned under the mistaken belief that she owned the entirety, and has made valuable improvements thereon, the value of such improvements, after the other owners have been paid the full value of their share of the land exclusive of the improvements, and in addition thereto the fair and reasonable value of such party’s exclusive use and occupation of the portion of the land which belonged to the other owners.</p>

<p>Submission of a controversy under section 1379, Code of Civil Procedure — it must justify a judgment against one of the parties.</p> <p>The submission of a controversy under section 1379 of the Code of Civil Procedure must relate to “ a question in difference which might be the subject of an action;” that section does not authorize a submission for the purpose of obtaining the opinion of the Appellate Division upon a mooted question of law merely because the answer thereto might be a guide to the termination of a lawsuit between the parties interested to be instituted upon other and further facts than those stated.</p> <p>The statement of facts must be such that if established by proof it would entitle the person named as plaintiff to some sort of a judgment against his adversary, provided the court agreed with the plaintiff as to the law applicable to the facts.</p>

Appeal by tlie defendant, The Trustees of the New York and Brooklyn Bridge, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of March, 1898, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 9th day of February, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, the S. R. Smith Infirmary (sued herein as D. R. Smith Infirmary) and the Children’s Aid Society (sued as the Newsboys’ Home), from so much of a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Richmond on the 20th day of December, 1897, upon the decision of the court rendered after a trial at the Richmond Special Term, construing the will of Elizabeth B. Caldwell, deceased, as adjudges…

Appeal by the plaintiff, William J. Maxwell, an infant, by Mary E. Maxwell, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 13th day of ¡November, 1897, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

Appeal by the defendant, Michael Sullivan, from an order of the County Court of Kings county, entered in the office of the clerk of the county of Kings on the 23d day of September, 1897, denying his motion to open his default and for leave to interpose an answer to the amended complaint in the action, and to vacate and set aside a judgment for deficiency entered in the action.

Appeal by the petitioner, James F. Oarey, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of March, 1898, denying his application for a peremptory writ of mandamus commanding the defendants to forthwith ascertain and determine his claim against the late town of Flatlands for surveying the boundary line of said town and for surveying the common lands of said town.

Certiorari issued out of the Supreme Court and attested on the 28th day of January, 1897, directed to the board of supervisors of the county of Rockland, commanding them to certify and return to the office of the clerk of the county of Rockland all and singular their proceedings in disallowing the claim of the relator for services alleged to have been performed by him as justice of the peace of the town of Clarkstown, in the county of Rockland, for the years 1894 and 1895,…

Appeal by the plaintiffs, Robert Smack and another, from a judgment of the Supreme Court in favor of the defendants, Charles J. Gillis and another, entered in the office of the clerk of the county of Queens on the 1st day of September, 1897, upon the report of a referee.

Appeal by the defendants, John McElwee, individually, and John McElwee, interpleaded, as administrator of the estate of John McElwee, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of July, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, Asa W. Parker, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 2(>th day of January, 1898, upon the decision of the court rendered after a trial at the Dutchess County Special Term, as determines that the defendant, Asa W. Parker, is liable for a deficiency upon his bond in an action to foreclose a mortgage.

Appeal by tbe defendant, Henry S. McFall, as attorney in fact for and representing James Corrigan and others, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of the clerk of tbe county of Richmond on the 12th day of November, 1897, upon the decision of tbe court rendered after a trial at the Richmond Special Term; also from tbe said judgment, as amended by an order made at the Kings County Special Term and entered in the office of the…

Appeal by the defendants, John O’Rourke and others, assessors of the town of White Plains, Westchester county, New York, from a final order of the Supreme Court, made at the Westchester Special Term and entered iu the office of the clerk of the county of Westchester on the 1st day of November, 1897, in a certiorari proceeding under the Tax Law reducing an assessment against the relator, as executor and trustee under the will of William Smith Brown, deceased, for personal…

Appeal by the defendant, John Devlin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of December, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term setting aside certain deeds purporting to have been made on the 1st day of June, 1895, by the defendant, as attorney in fact for the plaintiff, to George W. Devlin, his son and her brother.

<p> Negligence—a street car colliding with a truck, which had, been, driven on its track, the street being incumbered with snow—relative duties of each party. </p> <p>In an action to recover damages sustained by the plaintiff by reason of a collision between a truck which he was driving and one of the defendant’s street cars, it appeared that the street being somewhat incumbered by snow which the defendant had removed from its tracks, the plaintiff, who desired to drive around a coal cart in front of him, turned into the track of the defendant’s road, before doing which, however, he looked ahead and saw.a car, some two blocks away, approaching at a rapid rate, and that, as he was turning his team in front of the coal cart, his truck came into collision with the car.</p> <p>Held, that both the plaintiff and defendant were bound to exercise that degree of care “which a person of ordinary experience and prudence should have exercised to avoid the collision; ”</p> <p>That the court properly charged the jury that “ the same degree of care must be exercised by one as by the other.”</p>

Appeal by the defendant, Joseph A. Smith, from a final judgment of the Supreme Court, in favor of the plaintiffs, entered in the office of the clerk of the county of Rockland on the Ytli day of September, 1897, upon the decision of the court rendered after a trial at the Orange Special Term, with notice of an intention to bring up for review upon such appeal an interlocutory judgment, entered in said clerk’s office on the 21th day of June, 1897.

<p>" Funded debt”— to what form of indebtedness the term applies.</p> <p>The words “ funded debt,” in section 5 of the General Municipal Law (Chap. 685, Laws of 1893), requiring for its creation a two-thirds vote of the board or council adopting the ordinance or resolution proposing it, include all municipal indebtedness embraced within or evidenced by a bond, the principal of which is payable at a time beyond the current fiscal year of its issue, with periodical terms for the payment of interest, and where provision is made for payment by the raising of the necessary funds by future taxation and the quasi pledging, in advance, of the municipal revenue.</p> <p>The board of supervisors of the county of Westchester, consisting of thirty-two members, cannot, by an affirmative vote of twenty-one of its number, issue bonds for the construction of bridges in the town of Greenburgh, the cost of which, under chapter 419 of the Laws of 1893, which repealed chapter 493 of the Laws of 1893, may be paid either by a levy upon the taxable property of the county or by the issuing of bonds.</p>

<p>Village Act, chaptei' 414, Laws of 1897— it applies to the grading of streets in the milage of New Rochelle — claimants for damages need not all unite in one proceeding.</p> <p>The charter of the village of New Rochelle contains no specific authority to regrade streets, and an application for the appointment of commissioners to determine the amount of compensation to which the applicant is entitled by reason of the change of the grade of certain streets in that village, is properly made under the provisions of section 159 of the Village Act (Chap. 414, Laws of 1897).</p> <p>There is no requirement that all persons who are aggrieved by the change of grade of a village street shall unite in one proceeding to determine the amount of their damages, respectively.</p>

Appeal by the defendant, Charles H. Roberts, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of November, 1897, upon the verdict of a jury rendered by direction of the court.

Appeal by Frank A. Williams and Edward K. Wead, as executors, etc., of Kelson G. Williams, deceased, from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 5th day of May, 1898, allowing Genevieve H. Williams, the widow of the deceased, the sum of $200.