Volume 31 — New York Miscellaneous Reports

Proceeding instituted by a domestic corporation for the revocation of a license granted by the police department, under section 1473 of the Greater K'ew York Charter, to give dramatic performances or exhibitions.

Motion to set aside the verdict and to declare a mistrial, for the reason that all the issues raised by the pleadings were not determined.

<p>Partition — Bill of particulars of source of plaintiff’s title — Ancestry.</p> <p>A bill of particulars is proper in an action of partition in order to compel the plaintiff to state specifically the source of his title, where that has not been alleged in the complaint.</p> <p>Where the record apparently shows a fee in a defendant claiming under a deceased Thomas Drake mentioned in the complaint, and the complaint alleges that the said defendant has only a quarter interest in the premises, a mortgagee of the share of that defendant may compel the plaintiff to disclose the name of the wife, of Thomas Drake, by whom the plaintiff or his ancestors claim to have descended from Thomas, and, if claim is made through a prior wife of Thomas or as issue of the marriage of another Thomas Drake, in each case the name of the wife must be disclosed.</p>

<p>Trustee — Foreclosure, by residuary legatee, of a mortgage for the benefit of an annuitant, where the trustee refused to move and had not paid the annuity.</p> <p>Where a testamentary trustee' fails for many years to pay an annuity charged by a will upon a mortgage in his hands given by his brother to the testator, allows taxes, water rates and assessments to accumulate upon the premises, and declines to foreclose the mortgage upon the ground that it is without consideration, the sole residuary legatee of the testator (the annuitant consenting) has sufficient title and interest to foreclose, and this without first demanding of the trustee that he do so, as such a demand would probably have been an empty formality, and, further, because it is not advisable that such a trustee should foreclose and obtain possession of the fund.</p>

<p>Attachment — Affidavit on personal knowledge sufficient although, affiant was not an actor in the original transaction —Non-residence of defendant.</p> <p>An affidavit for an attachment against an alleged non-resident stated: “ I know the defendant in this action, and I am personally familiar with all the transactions hereafter set forth, and make the statements-herein contained of my own personal knowledge ”, It then alleged that the defendant made and delivered a promissory note, that before-maturity the plaintiff became and still was the owner of it, that it had not been paid, and that there were no counterclaims to it. It was further stated that “ The defendant is not a resident of the State-of New York, but resides at Plainfield, in the State of New Jersey Upon a motion to vacate on the original papers,</p> <p>Held, that as the note was in the plaintiff's possession, as he could properly assert that he was a holder for value before maturity, and as-all the other essentials of liability appeared on the face of the note, his averments upon his knowledge were sufficient to support an attachment, although he had hot been a direct actor in the original-transaction.</p> <p>That as he had sworn that he knew the defendant, an inference-might be drawn that he had sufficient knowledge, of the defendant’s non-residence.</p>

This action was brought in the court below by the plaintiff as the assignee of one Eleazer Printup on October 30, 1899, before a justice of the peace for the conversion of a number of bushels óf apples by the defendants. The apples had been harvested on the Tuscarora Indian Reservation, within the town of Lewiston, Niagara county, N. Y., and the defendants were all Tuscarora Indians.

Appeal by the plaintiffs from an order of the City Court of the city of Hew York, denying their motion for a retaxation of costs.

97 upon his counterclaim. The action was by an attorney for services; the defense a denial of their value, and a counterclaim for damages for negligence in pleading to a prior action against the client. In that action one Julia M. Crane had sued Seneca D. Powell for a breach of an agreement to take rooms and board for one year from November 1, 1887. The agreement was made on October, 1887.

<p>Costs — Affected by a reversal at the Appellate Term. “ with costs to abide the event ”,</p> <p>Where the Appellate Term reverses a judgment of the City Court of the city of New York, rendered in favor of the plaintiff (and affirmed on appeal by the General Term of the latter court), with costs to the defendants to abide the event, the costs conditional upon the event are only those of the Appellate Term while the costs theretofore awarded the plaintiff below are absolute, and, therefore, when he succeeds on a second trial, he is entitled to tax the costs awarded him on the first trial and on the subsequent appeal to the Genera] Term as well as his costs on the second trial.</p> <p>Elliott v. Luengene, 19 Mise. Eep. 428, not followed.</p>

Appeal by the plaintiff from a judgment of the City Court of' the city of Eew York, entered upon a verdict directed by the court in favor of the defendant, after a trial at the Trial Term.

. The action was for fraud, in making a false written statement,. upon the strength of which credit was extended to the defendant. Ro affidavit of merits was or had heen served.

Appeae by the plaintiff from a judgment in favor of the defendants for costs, upon a verdict in favor of the plaintiff for five dollars, and also from an order denying plaintiff’s motion for a new trial.

<p>Appeal from a judgment entered in favor of the plaintiff, upon. a verdict directed by the court, and from an order of the Special.' Term, denying a motion for leave to serve an amended answer.</p>

The plaintiff was a former copartner, in the firm of Lord & Taylor, and was lawfully dealing under the name of that firm, the use of the name being continued in him.

<p>Action for partition.</p>

<p>1. Libel — Publication that a baker wanted men to work for fifty cents per day not libelous per se.</p> <p>A publication of and concerning a retail baker that he had declared a fight against a bakers’ labor union and had refused to employ its members because they would not work for him for fifty cents a day, the sum he offered, is not libelous per se, as he had a right to do what the publication says he did.</p> <p>The mere statement that he wants men to work for fifty cents a day cannot be deemed a libel per se as holding him up to contempt for offering starvation wages, for the court cannot take judicial notice, in the absence of any allegation in that regard, of the local rate of wages for the different grades of work in bakeries.</p> <p>8. Same — When special damage must he pleaded.</p> <p>In libel, If the words be not actionable per se, the complaint states no cause of action unless It alleges special damage, i. e., the particular contracts, customers, etc., lost by reason of the publication.</p> <p>In the case of libel per se, the law presumes that it does general damage to the plaintiff, but in the case of words not a libel per se, the law will not presume that it does any damage whatever, and therefore such special damage must be alleged and proved in order to make the words actionable.</p> <p>3. Same — Insufficient allegation of special damage.</p> <p>An allegation of the complaint that the plaintiff “ has suffered great loss and damage in his business ”, is not an allegation of special damage but only of general damage, i. e., the damage which the law will presume to be caused by a libel per se.</p> <p>The damage which the law presumes a slander or libel per se will cause to general character or to business or calling is called general damage, and can be recovered under a general allegation of damages; while special damage can be recovered only under an allegation of special damage.</p> <p>4. Same — Libelous meaning of equivocal words must be pleaded.</p> <p>In the case of words which are equivocal or fairly capable of two meanings, one libelous and the other not, the libelous meaning must be pleaded in the complaint or no cause of action is alleged. It is not for the defendant to attribute the libelous meaning to his own words and then plead to them in such meaning.</p> <p>If there be no ambiguity in the words and the plaintiff pleads a particular meaning to them, he is bound on the trial to the meaning pleaded- and can change to no other, although the words standing alone are libelous per se.</p>

<p>Application under subdivision 2 of section 28 of the liquor Tax Law (L. 1896, eh. 112) to revoke a license heretofore issued to Johannes M. Johannsen on the ground that the liquor tax certificate was issued upon an application in which the applicant made false answers.</p>

<p>Pbooeedings under the Liquor Tax Law (L. 1896, ch. 112) to-revoke and cancel a- liquor tax certificate. Hotion by respondent for a stay of proceedings, pending an appeal</p>

<p>Decedents’ estates — Statute of Limitations — Costs on refusal to refer—Code C. P., § 1822.</p> <p>The period, during which executors of a decedent are negotiating for a settlement with a claimant against the estate, is not to be deemed a part of the six months, after dispute or rejection, within which the claimant must sue or be barred by statute (Code C. P., 5 1822). Where executors neglect or refuse to refer such a claim they are chargeable with costs.</p>

<p>1. Attachment — When merits will not he considered on motion to vacate.</p> <p>Upon a motion to vacate an attachment, the merits will not be considered unless the moving papers are hopelessly bad.</p> <p>2. Same — Secretion of property with intent to defraud creditors.</p> <p>Where affidavits show that, after the defendant had agreed to turn over to the assignor of the plaintiff his share, as received, of all moneys representing the profits of a joint real estate speculation, the defendant denied that such moneys ever existed or came into his possession, and, by various acts and statements sought to and did' conceal their whereabouts, a motion to vacate an attachment granted against the defendant upon the ground that he had secreted his property with intent to defraud his creditors should be denied, as the plaintiff has made out a prima facie case.</p>

<p>Motion to vacate an attachment for insufficiency of the original papers.</p>

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

<p>Motion to vacate an order of publication in an action of foreclosure.</p>

<p>1. Municipal corporation — Action against by salaried appointee to recover “ prevailing rate of wages ” as back pay — Repeal of Xi. 1894, eh. 622 by statute, and Xi. 1897, ch. 415, § 1, by implication.</p> <p>A salaried appointee of the city of New York, employed by the year as a painter and furnished with board and lodging by the municipality free of charge, cannot presently maintain an action against the city, under chapter 622 of the Laws of 1894 or under section 3 of chapter 415 of the Laws of 1897, to recover the rate of wages which had prevailed in his trade in that locality, not only because these statutes-do not apply to a person in his situation, but also because the act or 1894 was expressly repealed by chapter 415 of the Laws of 1897, while the act of 1897 was itself impliedly repealed by section 1 of chapter-567 of the Laws of 1899.</p> <p>There is no such thing as a vested right in a public, law which is-not in its nature a grant or a contract and therefore the repeal of the acts of 1894 and 1897 effectually terminated all legal claim to a recovery thereunder.</p> <p>S!. Same — Construction of L. 1899, oh. 567, § 1.</p> <p>Bemble, that no recovery could be had by the appointee under section 1 of chapter 567 of the Laws of 1899, as it no longer applies the-principle of the prevailing rate of wages to a contract when made by a municipal corporation directly, but merely requires a eontraetor with such a corporation, for a public work, to stipulate in the contract that he will pay the laborers, etc., that rate of- wages.</p> <p>3. Statutory repeal.</p> <p>A statute which is amended and re-enacted, so as to read as prescribed in the amendatory statute, is thereby wholly annulled as to-all future cases, and, except as to rights and duties already existing, becomes merged and incorporated in the latter statute.</p>

<p>Municipal corporation — Unreasonable charter provision that person injured by the negligence of a village must file notice, of an intention to sue, within forty-eight hours of the accident — Statute of Limitations.</p> <p>A provision of a village charter which requires a person, who alleges that he has been injured personally by the negligence of the village, to file with its clerk, within forty-eight hours after the cause of action shall have accrued, notice of an intention to commence an action against the village and of the precise time and place at which the injuries were received, is in the nature of a statute of limitations, and as such is, in view of the short time given to file the notice, unreasonable and unconstitutional.</p>

<p>Aotioe on a marine insurance policy.</p>

<p>Principal and agent'— Broker must bind third party — Option.</p> <p>A real estate broker, employed to rent premises to a party acceptable to the owner, is not entitled to any commissions where the only service he has rendered is his procuring a paper to be signed, on behalf of both the owner and the proposed tenant, by the terms of which the owner agreed to make a lease upon certain conditions and the proposed tenant did not agree to do any act whatever in the premises, as such a paper amounts to no more than a mere proposal or option for a lease.</p> <p>Ward v. Zborowski, 30 Mise. Rep. 839, reversed.</p>

<p>Sale — Admissions o£ vendor, made after transfer, inadmissible against vendee.</p> <p>Where the issue, in an action for the conversion of goods brought against a city marshal who seized their proceeds to satisfy the execution of a creditor of the vendor, is whether the plaintiff was, as he alleged, a bona fide purchaser of the goods or whether he purchased them merely to prevent their seizure upon said execution, admissions of the vendor, made to a third party after the vendor had sold the goods to the plaintiff and the latter had taken possession of them, that he (the vendor) had sold the place to his wife and that she had sold it to an auctioneer and that he (the vendor) had done this to save himself, are clearly incompetent and require reversal of a judgment for the defendant.</p>

<p>Defense — Account stated must be pleaded.</p> <p>The defense of an account stated is affirmative in its nature and is not available unless pleaded.</p> <p>Rishel v. Weil, 30 Mise. Rep. 809, affirmed.</p>

<p>Appeal from a judgment in favor of plaintiff, rendered by the Municipal Court of the city of Rochester, May 5, 1899. •</p>

<p>Motion to confirm an inquisition under a commission de lunático inquirendo, and for the appointment of a committee.</p>

<p>Demurrer to the complaint, upon the ground that it fails to state facts sufficient to constitute a cause of action.</p>

<p>This is an action by a physician to recover for services rendered by bim, in the night medical service of the City of Brooklyn in 1897 and of the new City of New York in 1898; and there are eight other cases tried at- the same time in which the same judgment is to follow.</p>

<p>Appeal — Irrelevant portions of motion papers need not be printed.</p> <p>The Supreme Court has power to excuse an appellant from printing . on appeal clearly immaterial and irrelevant portions of the papers upon which a motion was heard, and accordingly the court, on an appeal from an order confirming a referee’s report in surplus money proceedings, dispensed with the printing of a large amount of testimony taken upon the question whether there was usury in a mortgage under which one of the creditors claimed a part of the surplus, it appearing that the other claimants had submitted to the referee’s decision that the plea of usury had not been sustained.</p> <p>The court confined the printed papers to copies of the report and of the order of confirmation and of the evidence and exhibits, except so much thereof as related exclusively to the question of usury.</p>

<p>Action by surviving partner to recover firm deposit of executors of deceased partner — Jurisdiction — Reference.</p> <p>Where a surviving partner alleges that the accounts of the partnership are unsettled, that moneys deposited by a deceased partner, who managed the - finances, in his individual account and thereafter drawn out and redeposited to their credit by his administrators, belong in fact to the partnership, and that an accounting is necessary, involving the examination of a long account, a reference should be ordered, as such accounting is a matter for the equitable jurisdiction of the Supreme Court, and, if the Surrogate’s Court has jurisdiction because claim is made against administrators, such jurisdiction is not exclusive.</p>

Action to set aside a deed of real estate located in the city of Hew York, given by plaintiff to defendant, upon the ground that such deed was fraudulently, obtained by the defendant from the plaintiff.

<p>Action to recover distributive share of estate.</p>

<p>Gift — Continued possession by deceased donor — Evidence.</p> <p>Where a party seeks to recover from executors the value of an article of personal property found among the effects of their testatrix, and the only title asserted thereto is by way of gift from her, the facts which establish the validity of the gift and rebut the inference to be drawn from continued possession of the article by the decedent, must be proved by evidence so cogent as to leave no doubt in the mind of an unbiased person that the demand is a proper one — otherwise the legal presumption against the validity of the gift must prevail.</p>

<p>Demubbeb to two separate defenses set forth in the answer.</p>

<p>Motion by judgment creditors entitled to surplus to compel John E. MacLean and others to pay the difference between a bid made by them upon premises sold under foreclosure and the amount which the premises brought upon a resale.</p>

<p>1. Village — Status of board of health.</p> <p>Members of a village board of health are village officers and were legislated out of office by the Village Law (L. 1897, ch. 414, § 328) on the Monday following the third Tuesday in March, 1898.</p> <p>Semble, that village boards of health are to be continued as provided in the Public Health Law (L. 1893, ch. 661, as amd.) but that the manner of their election and appointment is governed by the Village Law.</p> <p>3. Office — Vacancy not created by failure to elect a successor.</p> <p>Under the Public Officers Law (L. 1892, ch. 681, § 20), the failure to elect a successor of a health officer of a village does not create a vacancy in that office, and consequently a county judge has no right to fill it under the amendment to the Public Health Law (L. 1897, ch. 282).</p>

<p>1. Municipal Court of the city of Hew York — Jurisdiction — Waiver of defect by failure to object on trial — Appeal.</p> <p>In view of the provisions of the Consolidation Act (L. 1882, ch. 410, § 1382, subd. 3), still applicable to the Municipal Court of the city of New York, that, if an objection to the jurisdiction is “ not taken at the trial, it is waived and the court will be deemed to have jurisdiction ”, where the record of an action in said Municipal Court does not show that the defendant is a resident of the said city, and no objection is taken at the trial upon that ground, trial being had solely on the merits, the defeated defendant will not be permitted to urge, for the first time on appeal, that the judgment must be reversed because the jurisdictional fact of his residence in the city does not appear affirmatively in the record.</p> <p>2. Same — Presumption, by statute; of jurisdiction in an inferior court.</p> <p>It is entirely competent for the Legislature to declare that there shall be a presumption of jurisdiction in actions in inferior courts until the contrary appears, or, that, where no objection is raised on the trial, the jurisdictional facts will be deemed to exist.</p> <p>3. Same — Legislature may condition the right of appeal.</p> <p>There is no such thing as a right to appeal, independent of legislative authority, and the Legislature may, therefore, in granting the privilege, attach to it such conditions and limitations as in its judgment are proper.</p>

<p>1. Privileged communications — Infant a “ patient ”— Code C. F., § 834.</p> <p>An infant is a “ patient ” within the meaning of section 834 of the Code of Civil Procedure, forbidding physicians from disclosing professional information.</p> <p>3. Same — Waiver by natural guardian — Code C. P., § 836.</p> <p>' As an infant is not sui juris he cannot himself waive the protection of the statute, but where the infant and his natural guardians, his father and mother, were present in court upon the trial of an action brought by the father to recover for the loss of the infant’s services caused by personal injuries, the court considered that a waiver by the father was sufficient to permit the physician, who attended the infant, to testify against the objection of the defendant to the information referred to in said section 834.</p> <p>Scott, X, dissented.</p> <p>Corey v. Bolton, 30 Mise. Bep. 836, affirmed.</p>

<p>1. Assessment — Refund of taxes improperly assessed — Xi. 1893, ch. 686, § 16.</p> <p>Where lands owned by Emma G. Reid have been assessed for four years as owned and occupied by “ Reid, Aaron B., heirs of ”, Emma ' G. Reid is entitled to a refund of the taxes paid thereon by her during said period, as they have been improperly or illegally assessed within the meaning of the County Law (L. 1892, ch. 686, § 16).</p> <p>3. Same — Protest of owner.</p> <p>Where an assessment is void the owner is not bound to appear before the assessors and object to it.</p> <p>3. Same — Waiver of illegality.</p> <p>Successive payments of taxes, under a void assessment continued in the same form during each year, do not waive the illegality nor preclude a refund of the several amounts paid, as each assessment is a distinct proceeding, and in each case the owner had a right to rely upon the presumption that the assessors would do their legal duty.</p>

<p>1. “ Special Franchise ” Law, L. 1899, ch. 712 — Home rule not affected — State Const. Art. X, § 2.</p> <p>The assessment by State Tax Commissioners, appointed by the Governor with the consent of the Senate, <?Z the valuation of the “ special franchise ” of a domestic gas corporation occupying the public ways of a city, by its consent, with distributing mains and pipes, is valid under chapter 712 of the Laws of 1899.</p> <p>That act is not repugnant to section 2 of article X of the State Constitution of 1894, providing that all city officers whose election or appointment is not provided for by the Constitution shall be elected by the electors of such cities or appointed by such authorities thereof as the Legislature shall designate for that purpose, as the act does not confer upon the State Tax Commissioners all or any substantial portion of the powers theretofore vested in the local boards of assessors, and hence does not conflict with the principle of home rule secured to municipalities by the said constitutional provision.</p> <p>2. “ Special franchises ” originally proceeded from, the State.</p> <p>The act is intended to establish a system of taxation for franchises in public thoroughfares, formerly escaping taxation, which derive their value from rights originally vested in the State and which it has merely delegated to a political subdivision, as its agent or as a trustee for the People.</p> <p>8. ¡New species of taxable property created.</p> <p>The act has created a new species of property as the subject of taxation; and the Legislature has the right to select officials to assess it other than the local assessors.</p> <p>4. Tangible property of a gas corporation, located in streets, is not “ land ” and may be classified anew.</p> <p>The tangible property of a gas corporation, consisting of mains and pipes laid in public thoroughfares, has no status in the law or by statute which prevents the Legislature at its option from defining it as “ land ”, or as “ personalty ”, or classifying it anew.</p> <p>5. Local assessors not deprived of any constitutional right to tax.</p> <p>The contention that the act (section 1) is unconstitutional in that it adds the value of the “ special franchise ” for laying mains and pipes to the tangible property of the gas corporation, theretofore locally assessed as “ land ”, and that this deprives the local assessors of their constitutional right to assess land within their municipality, is not maintainable, as the only right which the local assessors had to assess tangible property, of such nature, as “ land ” was created by statute (L. 1881, ch. 293) and the State may retract a right which it has delegated.</p>

<p>Pleading — Broker cannot sue on express contract and recover on quantum meruit.</p> <p>Where action is brought upon a written' instrument by which a broker" agrees that his compensation shall be dependent upon his procuring a purchaser who would pay for certain real estate twenty-five thousand dollars, proof that the principal thereafter sold it for twenty thousand dollars does not entitle the broker to recover proportionate commissions, or any commissions whatever, as he has not maintained the allegations of his complaint.</p>

<p>Corporation — A guaranty toy is not within Code C. F., § 1778 — Default.</p> <p>Semble, that an action against a corporation upon a guaranty is not within the scope of section 1778 of the Code of Civil Procedure, declaring that, in actions covered toy that section, unless the corporation serves with its answer or demurrer a copy of a judge’s order directing that the issues toe tried, the plaintiff may take judgment as in case of a default in pleading.</p>

<p>Negligence — Measure of damages.</p> <p>An award of $750 damages, to a milliner earning seven dollars per week and injured by the negligence of a street railway corporation, cannot be deemed excessive where such injuries forced her to discontinue her occupation, seriously sprained her- shoulder and arm so that she could not hold a scissors or piece of work, and where the injuries had not been cured at the time of the trial.</p>

<p>Bills and notes — Failure to attach revenue stamps.</p> <p>A failure to attach the requisite revenue stamps to promissory notes does not invalidate them.</p>

<p>Negligence — Profit on a person’s own services as a measure of damages.</p> <p>The profit which a boss painter, employing no capital, was making upon his own services at the time he was injured, may be shown by him as a basis for admeasuring damages for injuries which prevented his continuing his occupation.</p>

<p>Appeal from an order denying a motion by the defendant for leave to pay money into court and substituting one Canfield as defendant herein.</p>

<p>Appeal from an order denying a motion on behalf of a judgment-debtor, Frederick H. Schroeder, to vacate and set aside a second order in supplementary proceedings for his examination.</p>

This is a reargument of an appeal from an order of July 29, 1899, which denied a motion made by the defendant to set aside a judgment as irregular, and of the plaintiff’s motion to dismiss an appeal herein from an order of July 7, 1899, which denied a motion made on behalf of the defendant to set aside an inquest taken on the defendant’s default at the trial.

<p>1. foreign receiver — Eight to attack domestic attachment.</p> <p>Where a receiver of a foreign corporation is appointed a receiver of its assets within the State of New York, his status in this State thereafter depends solely on the order of our court.</p> <p>While he can claim no paramount right over a domestic attachment merely because his foreign receivership was prior in time, he will, ujpon the principle" of comity, be permitted to attack the attachment where he alleges it to be void in its inception.</p> <p>3. Same — Validity of his appointment examined — Eights of domestic creditor.</p> <p>Where he alleges that there was nothing to attach because the foreign court had dissolved the corporation before the attachment was granted, our courts have power to examine into the jurisdiction of the foreign court and where it is found that the allegations for a dissolution are insufficient under the foreign statute, the attachment must stand as the corporation is to be deemed to be still in existence.</p> <p>Qucere, whether, notwithstanding the dissolution of a foreign corporation, a domestic creditor may sue to secure payment of his debt out of the corporate property in this State?</p>

<p>1. Association, unincorporated — Dissolution and sale of assets to foreign corporation.</p> <p>A voluntary association may be dissolved pursuant to its articles. Where these provide that, upon notice and by resolution, the directors may dissolve the association provided a majority in interest of the shareholders do not object, the court will not, where the conditions have been complied with and ninety-five per cent, in value of the shareholders have assented to dissolution, restrain the officers as liquidators, at the instance of a single small shareholder, from dissolving the association and consummating a sale of its business and assets to a similar foreign corporation at a fair and adequate price.</p> <p>Í3. Same — Option to take cash or shares in foreign corporation.</p> <p>Where a shareholder is given the option of receiving for his interest cash or shares in the foreign corporation, of equal amount with his stock, it cannot be maintained that he, contrary to law, has been compelled to accept the stock of a foreign corporation for his interest in a domestic association.</p> <p>3. Same — Public policy not prohibitive of sale of domestic association to foreign corporation.,</p> <p>A proposed absorption of a domestic association by a foreign corporation is not against public policy where the probable result will be a reduction of administrative expenses, a more effective management and a corresponding benefit to the public and to those pecuniarily interested.</p>

<p>Motion to vacate an attachment obtained by a resident plaintiff against a nonresident defendant.</p>

<p>Will — Compulsory execution of power of sale in executors refused — Trust in personalty — Testing in interest — Equitable conversion — Authorization to appoint a trustee — Statutory trust — Suspension of power of alienation — Discretion as to time of sale not a suspension — Election, by life tenant with beneficial power to devise, to take land freed from a power of sale in executors — Removal of executors as trustees.</p> <p>The will of a testator directed his trustees to pay to his wife during life so much of the existing or accruing personalty as she might need or desire. It then directed them to sell his Fifth Avenue real estate at public sale as soon after his decease as might in their judgment seem fitting and deposit the proceeds with a banking company. From the proceeds and any other moneys on hand he directed payment of a legacy to his brother. It was then further provided that, after the death of his wife, the trustees should in their discretion, within a period of five years, convert all his remaining estate into cash, and “ deposit one-half the net proceeds of the same in a trust company, to be by them selected, at the best rate of interest obtainable, to be held as a trust fund by said trust company, the principal sum not to be withdrawn by either of the beneficiaries of this trust. The fund is to be the property of my two granddaughters * * * in equal proportions, who may by will devise and bequeath the same, or failing to make will, it shall go to their heirs at law.” The trust company was directed to pay the interest of the fund to the granddaughters in equal shares and the other half of the estate, so converted into cash, the testator directed should be paid to his daughter. The action was brought to compel an executrix to exercise the power of sale and the defendants upon their part demanded a construction of the will and the removal of the executors.</p> <p>Held, That it was doubtful whether the court could, at the instance of trustees and against the protest of beneficiaries, compel a co-trustee to exercise a power of sale, although it be discretionary only as to time, but that in any event action would not be compelled where it was not for the best interests of the estate.</p> <p>That, notwithstanding the use of the expression “ The fund is to be the property of my two granddaughters ”, the testator intended to create merely a trust in personalty for their benefit.</p> <p>That the trust vested in interest upon the death of the testator’s wife. That it included the Fifth avenue property, although unsold, as there was an imperative direction to sell it, discretionary only as to time, and that the trust also included the other real estate, directed to be converted into cash after the death of the wife, from and after her death.</p> <p>That the authority given the executors to select a trust company empowered the selected company to act as trustee, but that, if this were not so, the trust would not be allowed to fail for lack of a trustee.</p> <p>That the trust was one authorized by statute.</p> <p>That a distinct trust was created for, and during the life only, of each granddaughter, and that therefore the power of alienation was not suspended for more than two lives in being.</p> <p>That the said power was not improperly suspended by the discretion given to the trustees to delay the sale of the real estate for five years after the death of the wife.</p> <p>That the provisions of the Real Property Law (L. 1896, ch. 547, § 132) declaring a tenant for life or years, possessing a general and beneficial power to devise the inheritance, to be deemed to possess an absolute power of disposition, could not be invoked to enable the real estate to be taken as such and this because, although the daughter had an absolute estate in the proceeds, the granddaughters as mere beneficiaries had none, and hence there was an absence of the necessary concurrence of all the beneficiaries in an election to take the land and thus free it from the power.</p> <p>That the court would not remove as trustees executors, with a power of sale, merely because they were obnoxious to the beneficiaries, there being no proof that administration was obstructed.</p>

Action in equity by an abutting owner to restrain a railroad’s continuous trespasses upon easements, and for damages. A demurrer was interposed to the answer.

<p>Municipal corporation — Valid condition as to asphalt paving contract.</p> <p>A condition, inserted in a city paving contract by a city commissioner of highways after consultation with the engineers of his department, requiring any bidder, who proposes to offer for asphalt paving any material not theretofore used by or in the city, to file an original certificate of the chief municipal officer, of some other locality where ten thousand square yards of the material has been laid, having charge of such work and of the city engineer whb directed the laying, to the effect that the pavement has worn well for at least two years, and further requiring a statement of the location and capacity in square yards per day of the works or factory where the material is to be prepared, is a reasonable provision in protection of the rights of the city, does not tend to re'strict competition to any particular person or corporation, is not illegal or fraudulent, and affords no basis for a taxpayer’s action to restrain a waste of the estate of the city.</p>

Motion in each case that a peremptory writ of mandamus issue directed to the comptroller and collector of assessments, commanding them to receive the amount of the assessment, without interest.

, .of the firms of Gaff, Fleischmann & Co. and Fleischmann & Co. Motion by plaintiffs that .the books referred to be deposited with the county clerk, with leave to them to inspect them, or that said defendants give to plaintiffs an inspection with permission to take a copy of the same.

<p>Actiobt by tenant in common for partition of real property.</p>

<p>Action on check certified by defendant.</p>

<p>Debtor and creditor — Effect of note, under which the payee wrote “ At my death the above note becomes null and void ”— Gift — Trust —. Payment by note.</p> <p>A woman borrowed money of a person since deceased and several days after the loan gave him her note payable on demand, at the bottom of which he wrote and signed the following: “ At my death the above note becomes null and void”. In an action brought upon the debt, and not upon the note, by the administrator of the deceased</p> <p>Held, That he was entitled to recover.</p> <p>That the transaction did not constitute a gift to the maker inter vivos nor one causa mortis and that there was no element of a trust for her.</p> <p>That the indebtedness, being antecedent, was not discharged by the debtor’s own note.</p>

<p>1. Libel per se — Publication o£ a member of a union as a miserable “ scab.”</p> <p>A publication concerning a member of a cigar makers’ union, addressed in form to other members, which reads: “This tenement-house boss Prince and member of Union 251 had the audacity to slander old and reliable members whom necessity compels to live in tenement-houses of their bosses, while he himself runs a tenement- . house factory and as a miserable scab works six days in a shop and thereby robs other poor devils out of their bread ”, is libelous per se, not only as affecting the member in his business but also as holding him up to public ridicule and contempt.</p> <p>2. Same — Inadmissible report of a committee of the union that the libelous charges were unfounded.</p> <p>Where the defendant, upon cross-examination, has elicited from the plaintiff the fact that a committee of the union had investigated the public charges and the plaintiff is thereafter permitted to say that the result of the investigation was favorable to him, he cannot properly go farther and read in evidence a committee report which states that the charges are without any foundation — as that is one of the questions which it is for the jury to decide under justification pleaded.</p> <p>3. Same — Punitive damages refused unless there was malice or reckless publication.'</p> <p>It is improper for the court to charge in such a form as to lead the jury to infer that punitive damages may be awarded in libel where there was no malice nor reckless publication as, where there is no proof of either of these elements, the damage can be compensatory only.</p> <p>Prince v. Socialistic Co-operative Publishing Assn., 29 Mise. Rep. 773, reversed.</p>

Appeal by the defendant from a judgment of the General Term of the City Court, affirming a judgment in favor of the plaintiffs, entered upon the verdict of a jury. The opinion states the nature of the action and the facts so far as they are material.

Appeal by the defendant from a judgment of the General Term of the City Court of Xew York, affirming á judgment entered in favor of the defendant, upon the verdict of a jury. The nature of the action and the material facts are stated in the opinion.

<p>1. Verdict — Improper direction of where there was a conflict of fact — Waiver of right to go to the jury.</p> <p>Where there is a conflict in a case upon material questions of fact, the direction of a verdict for the plaintiff is an error of which the defendant may avail himself, upon due exception taken, where he has, at the close of the proof, not moved for a non-suit nor done any other act from which a waiver of his right to go to the jury might be implied.</p> <p>3. Reversal — Where the same kind of evidence is admitted for one side and refused to the other.</p> <p>Where the trial justice admits testimony against the objection of the defendant and, upon the plaintiff’s objection, excludes testimony of a similar character and equal relevancy when offered by the defendant, a judgment for the plaintiff must be reversed.</p>

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

<p>Attorney — Hot liable for an error of judgment in regard to a doubtful question of law.</p> <p>In view of the fact that a conviction long existed among the members of the bench and bar that the defense of the Statute of Frauds was provable under a general denial, the interposition of such a denial by an attorney and his failure to plead the statute as a defense to his client against an action upon an oral agreement, for board and office room, not to be performed within one year, must be regarded at most as an error of judgment in regard to a doubtful question of law, and for-such an error the attorney is not liable to his client, although the latter was subsequently defeated upon this point in the Court of Appeals, it being then for the first time definitively settled that the statute is waived if not pleaded.</p> <p>Patterson v. Powell, 31 Mise. Rep. 20, reversed.</p>

<p>Appeal from an order and judgment of the General Term of the City Court" of the city of Hew York, affirming a judgment of a Trial Term, dismissing the complaint.</p>

Appeal by the plaintiff from a judgment and order made at the General Term of the City Court of the city of New York, affirming a judgment in favor of defendant entered on a verdict at Trial Term, and affirming also an order made at Trial Term denying plaintiff’s motion for a new trial.

<p>JL. Evidence — Res gestee, as affecting the question to whom credit was given — Corporation bound by admissions of agent.</p> <p>Where the vital question in a case is whether a printing company, which had printed an attorney’s brief, gave the credit to' his client, a corporation defendant, or to the attorney himself, it is erroneous for the court to exclude, upon the objection of the corporation, proof of admissions and declarations of an officer of the corporation, made during the progress of the work to an employee of the printing company, as these are competent as res gestae.</p> <p>53. Evidence — Proof of custom of sending bills against clients to their attorneys.</p> <p>Where the printing company has sent bills for the work to the attorney, it is entitled to rebut any inferences derivable therefrom in favor of the corporation, and to that end may show that, through courtesy or other motives, It is customary to send bills to the attorneys of parties.</p> <p>Livingston Middleditch Co. v. New York College of Dentistry, 30 Mise. Rep. 831, reversed.</p>

<p>1. Sale — Cost as evidence of value.</p> <p>Cost is some evidence of value.</p> <p>2. Same — Declarations of vendor, after sale, inadmissible against vendee.</p> <p>Declarations, contained in a letter written by the vendor to a third person after transfer of the thing sold, are not admissible to impeach the title of the vendee.</p> <p>8. Witness — Contradicting one's own witness.</p> <p>A party may show that the facts are not as his own witness has stated them (even though the effect of the proof is to impeach the witness), but this must be done by competent proof which in and of itself is material to the issues.</p>

<p>Order — Recital of papers used on motion.</p> <p>Parties have the right to have all the papers, read or used upon a motion, recited in the order made, but, where a motion is argued orally, unless an attorney then advises his adversary and the court that he submits an affidavit, he cannot subsequently procure its recital in the order upon a motion for a resettlement thereof.</p> <p>Silo v. Linde, 30 Mise. Rep. 812, affirmed.</p>

<p>Appeal from a judgment of the General Term of the City Court, affirming a judgment entered in said court upon the verdict of a jury in favor of the plaintiff.</p>

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

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

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

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, rendered in favor of the plaintiff, upon a trial had before the court, without a jury.

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

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

<p>Will — Void devises are covered by a general residuary clause.</p> <p>Where it was the evident intention of a testator to dispose by his will of his whole estate, void devises contained therein pass, not to his heirs-at-law, but to bis residuary devisees under a residuary clause embracing both real and personal property.</p>

<p>Demubreb to- plaintiff’s complaint.</p>

Motion by the plaintiff for a new trial. Action for damages for ■libel. The complaint was dismissed at the close of the evidence for the plaintiff. The defendant is an attorney and counsellor at law.

<p>Action for damages for negligence. Motion on the minutes by the defendant for a new trial.</p>

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

<p>1. Costs — Eeference, under Code C. P., § 2717, where the claimant against a decedent’s estate recovers less than fifty dollars.</p> <p>Sera Me, that where a claim against the estate of a decedent is referred in the court of the surrogate under section 2717 of the Code of Civil Procedure and the claimant recovers, but the amount of the recovery is less than fifty dollars, the referee cannot award costs as in the Supreme Court to the defendant where he has made no certificate as to costs under section 1836 of the Code of Civil Procedure; nor is the defendant entitled in such case to any costs under any of the sections 2717, 2863, subdivision 5, 3228, or 3229 of said Code.</p> <p>«2. Same — Effect of referee’s failure to make a certificate as to costs — Review of his determination.</p> <p>Where the referee makes no certificate as to costs, no costs can be taxed by the plaintiff.</p> <p>While, in the absence of such certificate, the question of costs becomes one for the Supreme Court, that court considered it proper, in view of the doubt whether the Special Term could overrule the determination of the referee, to deny a motion to retax costs awarded in favor of the defendant and left the matter of costs to be determined by the Appellate Division on appeal.</p>

<p>1. Debtor and creditor — Hights of creditor, of insolvent accommodation indorser, bolding collateral of tbe maker upon which the creditor has not realized.</p> <p>A bank holding notes, secured by collateral of the maker upon-which it has not realized nor attempted to do so, may file a claimj against the general assignee of the accommodation indorser of the notes for the full amount thereof and interest and is entitled to prorata payment out of the estate on that basis.</p> <p>.The fact that the bank subsequently realized moneys upon the collateral of the maker is not material where it appears that, after its dividend under the general assignment shall have been paid, no .considerable amount of the original indebtedness will be paid.</p> <p>2. Assignee for benefit of creditors — Fees and expenses.</p> <p>The fees and legal expenses allowed a general assignee must bear-a reasonable relation to the amount of the estate and should be governed by the rule applicable to the estates of decedents.Such an assignee cannot be allowed for legal services rendered to-him before the assignment went into effect, nor for having attorneys do what he ought to have done himself.</p>

<p>Action by judgment creditors to set aside a general assignment for the benefit of creditors. The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>Motion to set aside an order granting alimony and counsel fee.</p>

<p>1. Municipal contract — Excavated materials cannot be charged again as embankment.</p> <p>Where a city contract for excavating provides that excavated materials shall conform to such lines and levels as may be given by the engineer in charge and be deposited at such places as he may direct, the contractor, after having been paid for excavating, cannot claim to be paid again for embankment merely because he deposited the excavated materials, which were the property of the city, at other points of the embankment where he was directed to deposit them.</p> <p>3. Same — Certificate of engineer.</p> <p>Where a contract appoints the engineer in charge as the final arbiter between the parties, his certificate is conclusive unless he has been guilty of fraud or misconduct.</p>

<p>Demubbee to the complaint herein on the ground, among others, that it. does not state facts sufficient to constitute a cause of action.</p>

<p>1. Mandamus — To compel performance of a ministerial duty relative to a city contract.</p> <p>The performance of a ministerial duty, e. g., the signing by a mayor and city clerk of a contract to purchase realty- for the city . duly made by its common council and which its mayor and city clerk were by statute required to sign, is compellable by a peremptory writ of mandamus.</p> <p>2. Same — Peremptory, refused where the contract was suspicious.</p> <p>Where, however, the contract price was $21,000 and it was alleged in opposition to the vendors’ application for such a writ that the value of the premises was only $12,000, the court considered the discrepancy to be so great as to cast suspicion upon the transaction and it refused a peremptory writ.</p> <p>It, however, gave the vendors, at ■ their election, the privilege of taking out an alternative writ to the end that they might show if they could that the discrepancy in values was not so great as appeared on the motion.</p>

Motion to vacate a temporary injunction which restrained the defendants from constructing or operating a street surface railroad across a bridge over the Seneca river, at the intersection of Syracuse and Bridge streets, in the village of Baldwinsville, New York.

Motion made under section 999 of the Oode of Civil Procedure to set aside a verdict in favor of the plaintiff, rendered pursuant to the direction of the court, at the Trial Term, held at Utica, January 24, 1900.

Motion to set aside and vacate a judgment in favor of the defendant, entered upon the report of a referee, and also to vacate said report.

<p>Motion to confirm, an inquisition and for the appointment of a committee, in proceedings instituted under title 6 of chapter 17 of the Code of Civil Procedure.</p>

.Verdict for the plaintiff. Action for damages-for personal injury caused by the alleged neglect of the defendant to make repairs as landlord. The plaintiff is an infant. His parents hired of the defendant apartments in the defendant’s tenement house.

<p>Application for "writ of peremptory mandamus. Facts appear in opinion.</p>

<p>1. Receiver — Premature application to make him pay fees of a referee for hearing a claim against the fund.</p> <p>Where a receiver is directed by a decree to state his account before a referee appointed to pass upon it and any other claim presented and the matter of the costs and expenses of the reference is postponed until the confirmation of the report, a claimant who has been successful in her contest before the referee is premature in moving to have the receiver directed to pay the referee bis fees and expenses of hearing the claim where his report has not been confirmed. The motion should be renewed after confirmation of his report.</p> <p>2. Referee.</p> <p>Remedies of a referee to collect his fees considered.</p>

<p>Motion to strike the cause from the calendar.</p>

<p>Action hy an insurance company to recover the earned premiums for the period during which the policy remained in force.</p>

<p>Action for damages and for an injunction.</p>

<p>Motion to strike out a reply.</p>

Action for malicious prosecution. Verdict for the plaintiff for $2,500. Motion to dismiss on all the evidence, reserved until after verdict, and motion for a new trial on the minutes.

Motion to dismiss at the close of the testimony reserved until after verdict. Action on quantum meruit for the value of twelve years’ board and lodging furnished by the plaintiff to the defendant’s decedent. Verdict for the plaintiff. The defendant pleaded the six years statute of limitations.

<p>Libel — Privilege of newspaper report of a judicial proceeding — Malice — Code O. P., § 1907.</p> <p>A fair and true newspaper report of the proceedings in a divorce case is privileged, but where the report falsely states that the defendant’s counsel therein asserted or intimated in court the truthfulness of the testimony of a servant, in regard to the plaintiff therein and herein, which was libelous per se, that is proof of malice, within section 1907 of the Code of Civil Procedure, sufficient to destroy the privilege with regard to the entire report.</p>

<p>Settlement of case and exceptions on appeal. The judgment is for the plaintiff for personal injuries caused by the negligence of the defendant, entered upon a verdict. The appeal is from the judgment, and also from an order denying a motion on all the grounds for a new trial on the judge’s minutes.</p>

<p>Motion for a new trial-. Action for slander, the alleged words being as follows: “ ‘ Who is that woman that was here with your wife? ’ Mr. Worth made answer, ‘ She keeps a little boarding house-down in South Brooklyn.’ Defendant replied, ‘ I think she keeps something else besides a boarding house. She (meaning plaintiff)came down here and coaxed my bartender to stay with her all night.’ ” Mo meaning of the words was alleged in the complaint» The complaint was dismissed for not stating a cause of action.</p>

<p>Will — Widow, expressly given the income of the personalty, held, under the entire will, to be entitled also to the income of the realty — Intestacy not favored — Illegal accumulation not presumed — Intention derived from entire instrument.</p> <p>The will of a testator gave his widow, in lieu of dower, the net income of his personalty for life or so long as she remained unmarried, but made no disposition, during her life or until her remarriage, of the income of his realty. It, however, directed his trustees to pay over, after her remarriage or death, “ such net income of my (his) real estate and personal estate ” to his children until the youngest became of age, when the corpus was directed to be divided among them. It subsequently empowered his trustees to sell his real estate, invest the proceeds and pay over the income thereof as directed in the clause relative to “ such net income of my real estate and personal estate,” etc.</p> <p>Held, that the widow was entitled, until remarriage or death, to the income of both the real and personal estate.</p> <p>That, where it was possible, a will should be construed so as to avoid intestacy as to any part of the estate.</p> <p>That it was not to be presumed that the testator contemplated an unlawful accumulation of income.</p> <p>That his intention, as expressed in the whole instrument, should be effectuated even if words of limitation were required to be inserted or transposed or given a meaning which they would not have if standing alone.</p>

<p>1. Power of sale — Present exercise defeated by a fixed price required to be obtained “ beyond incumbrances ”.</p> <p>Under a provision in a will of a testator that “ If my said wife does not desire to care for the house as aforesaid, the same may be sold by her as my executrix, but for a sum not less than twenty-eight thousand ($28,000) dollars, beyond incumbrances, and the proceeds ' representing the equity in the said house shall be kept as a trust fund ” to be distributed to the wife and the children of the testator, the word “ incumbrances ” includes a mortgage to which the house was subject when the testator died, and therefore the wife, as executrix, cannot sell unless she obtains $28,000 plus the mortgage, even though it be impossible for her to procure such a price.</p> <p>8. Same — Discretionary power does not effect equitable conversion. The merely discretionary power of sale given to the wife does not work an equitable conversion of the realty into personalty.</p> <p>3. Dower — Testamentary provisions inconsistent with — Election.</p> <p>Provisions of a will under which a wife is given a house “ to live in and to rent out and to keep in good repair during her life”, is entitled to keep for life any flat therein rent free, and is given a share for life in the income derived from so much of the house as she does not occupy herself, are inconsistent with dower; and, where she continues to live in the house after her husband’s death and occupies a flat therein she must be deemed to have made her election and is not entitled to dower in the house.</p> <p>4. Devise, through trustees, contingent — Survivorship until distribution.</p> <p>Where property is given to trustees to pay the income to the testator’s wife and children and distribution of the corpus is directed to be made among the children when the wife dies, a child; who dies before her loses his interest as that is contingent upon his surviving until the period of distribution.</p>

<p>1. Life insurance — Reformation of policy, for fraud, refused.</p> <p>Equity will not reform an “ installment bond ”, or endowment policy, for fraud upon the insured where the fraud was practiced by one who never was an agent of the insurer and where the latter never knew of or ratified the fraud.</p> <p>3. Same — Insured should read his policy.</p> <p>A person receiving a policy of life insurance should read it before accepting it and ascertaining whether it contains the terms of the agreement of an alleged agent of the insurer which induced the insured to contract.</p> <p>3. Same — One dealing with a “ Special Agent ” is put on notice.</p> <p>Where a person with whom the insured negotiates describes himself as “ Special Agent ” of the insurer, it is the duty of the insured to ascertain the existence and extent of his powers.</p> <p>4. Same — Laches in moving for reformation^</p> <p>Equitable relief, by reformation of the policy, should not be afforded an insured person where he has paid his installments, or premiums, for ten years without protest.</p>

<p>Power — When coupled with an interest, survives donor’s death.</p> <p>Where a debtor, by a mortgage given by him to a third person as trustee, authorizes the trustee “ to collect the rents and profits of said premises and apply the same to the payment of interest oil prior mortgages and taxes and take charge of said property ”, and the trustee takes such possession as is possible, the power is coupled with an interest in the realty, it survives the debtor’s death, and the trustee as mortgagee in possession is entitled to apply rents collected after such death to the payment of the special creditors of his trust and may hold the rents for that purpose as, against the executrix of the debtor claiming them as applicable to the payment of his general creditors.</p>

<p>1. Deed — Reservation, of “ all mines and minerals ” reserves granite and limestone.</p> <p>Under an exception and reservation, contained in a deed, of “ail mines and minerals ”, the title to granite and limestone upon the premises remains in the grantor, as these substances are minerals and must be deemed reserved where there is nothing in the nature and context of the deed to show that such was not the intention.</p> <p>3. Access — Right not lost by nonuser.</p> <p>A right of access to lands is not lost by mere nonuser.</p> <p>3. Lease — Failure as to part of premises demised. __</p> <p>Although a lease may fail as to a part of the demised premises, the same being covered by quarry rights, it is good against the lessor as to the remainder of the premises.</p>

<p>Motion by defendant to set aside verdict in favor of plaintiff and for a new trial on all the grounds specified in section 999 of the Code, except insufficiency of damages.</p>

Action to recover interest upon a part of $149,000 of bonds issued on behalf of the defendant, one of the towns of Westchester county, under chapter 493 of the Laws of 1892.

<p>Cebtiobabi to review the action of the commissioners of taxes and assessments.</p>

<p>Civil service — Illegal new eligible list — Permanency of tenure — L. 1899, ch. 370.</p> <p>The rank, which an applicant for the position of assistant court clerk in the criminal courts of the boroughs of Manhattan and of The Bronx, was given, after competitive examination, upon an eligible list promulgated on July 16, 1899, and after the White Act (L. 1899, ch. 370) went into effect, stands and cannot be reduced for at least one year.</p> <p>The provisions of section thirteen of the White Act, that “ a new list shall he created for a stated position or group of positions only when there is no appropriate list existing from which appointment may he made,” cannot be employed to create, by a new examination held within one year, and covering similar applicants from the whole territory of New York city, as well as applicants for other positions, a new eligible list, reducing the rank of the said applicant, merely to fill a vacancy in an assistant clerkship in a criminal court of the borough of Queens, to which position the said applicant, and all others 'on the first list were ineligible, because of their nonresidence in Queens.</p>

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

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

<p>lease — Measure of damages for lessor’s refusal to deliver possession.</p> <p>Where a lessor refuses to deliver possession of a demised store to his lessee, her damages are the difference between the rent reserved and the rental value; and no damages are recoverable for loss on ordinary store fixtures which the lessee-bought without the knowledge of the lessor, nor for a loss on goods which she bought to sell, but was precluded from selling.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, rendered in favor of the plaintiff upon a trial had before the court, without a jury.

<p>1. Receiver — Right to attack a judgment suffered by the debtor for an excessive amount.</p> <p>Where a debtor has permitted one of his creditors to recover a judgment greater, as alleged, than the actual debt, the court "will, at the instance of a subsequently appointed receiver of his property and in the interests of justice, vacate the judgment to the end that the claim may be subjected to judicial scrutiny and a fair division of the assets of the debtor be made among his creditors.</p> <p>2. Appeal — Order denying a substantial right — Code C. P., sec. 1348.</p> <p>An order denying the receiver’s motion affects a substantial right and is appealable.</p>

<p>Supplementary proceedings — Debtor’s false swearing as to disposition of his property not a contempt.</p> <p>False swearing by a judgment debtor, committed upon his examination in supplementary proceedings, touching the disposition of his property, is neither a civil nor a criminal contempt, and he cannot be punished therefor by fine and imprisonment, especially where it does not appear that a right or remedy was impaired, impeded or defeated.</p> <p>Bernheimer v. Kelieher, 30 Mise. Rep. 829, reversed.</p>

<p>Appeal from a determination of the General Term of the City Oonrt of the city of Hew York, affirming a judgment of the Trial Term directed by the court in favor of the defendant.</p>

<p>Account stated — Sufficiency of evidence.</p> <p>Tro of that an agent of a vendor called upon the vendee, delivered to him a paper which read “ Balance due on amount of account rendered, $132.12 ”, told him that he represented the vendee, that he had called to collect the account that was overdue, that the vendee then offered a lot of hooks in payment, that the agent refused them, that the vendee then paid five dollars and said he was going to pay the whole bill, requires a submission to the jury of the question whether the evidence established an account stated, and a dismissal of a complaint, based upon such a cause of action, is erroneous.</p>

<p>Costs — Taxation against separate defendants after a verdict against all — Action not severed.</p> <p>After a verdict has been rendered against all the defendants in an action, it should not be severed for the purpose of entering judgment for interlocutory costs against some of them separately.</p> <p>Such a course is unnecessary as the clerk has power, under section 1246 of the Code of Civil Procedure, to docket judgments for different sums separately against each judgment debtor.</p>

<p>Negligence — Erroneous charge as to liability to passenger injured while alighting from a street car, it being In dispulte whether the car had stopped.</p> <p>Where the plaintiff alleges that she was injured because the defendant’s street car, after stopping, started suddenly while she was alighting, and the defendant alleges that she was injured by attempting to alight before the car stopped, it is erroneous for the court to refuse to charge that, if she alighted while the car was in motion, the defendant would not be liable.</p> <p>Cunningham v. Dry Dock, 33. B. & B. It. K-. Co., 29 Mise. Rep. 772, reversed.</p>

<p>1. Negligence — Married woman cannot recover for medical attendance for injuries.</p> <p>A married woman, having no separate business, cannot recover the value of medical attendance upon her made necessary by persona! injuries caused by the negligence of a street railroad corporation.</p> <p>3. Same — Improper evidence of subsequent internal injuries.</p> <p>Where the accident is proved not to have injured her internally and she has since borne children, it is improper to admit testimony showing the present existence of injuries to the genital organs.</p>

<p>1. Appellate Term — Cannot consider weight of evidence, nor reverse for excessive damages.</p> <p>The Appellate Term cannot, when determining an appeal from a judgment rendered on a verdict, consider the weight of evidence; nor reverse for excessive damages if there is any evidence to support the verdict.</p> <p>2. Motion to dismiss — Waiver of denial. «</p> <p>An exception to a denial of a motion to dismiss the complaint is waived if the defendant introduces testimony after such denial.</p>

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

<p>Appeal from a judgment in favor of defendant rendered in a .Justices’ Court.</p>

<p>Appeal by defendants from judgment entered by direction of trial judge in favor of plaintiff.</p>

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

<p>Appeal from a judgment dismissing the complaint at a Trial Term.</p>

■The note in suit was made by Abram Pineus to his own order and was endorsed in blank successively by him, G. Goldstein & Sons, H. H. Levy & Go. and Louis I. Bablove. The latter transferred it to Isaac Blumberg, who endorsed and transferred it to the plaintiff.

<p>Negligence — Verdict against weight of evidence. '•</p> <p>Where the motorman and the conductor of a car and four disinterested witnesses testify that a collision was the result of the plaintiff’s own negligence, the testimony of the latter, and of one other interested witness, that it was the fault of the crew of the car, must be deemed to be overborne, and a judgment for the plaintiff must be reversed.</p>

<p>Negligence — Boy six years old injured by a plank, guarding an excavation adjoining the street, which fell upon him while at play in the excavation — Negligence of all parties a question of fact.</p> <p>Where a boy six years old is injured in the city of New York, becavfse, while playing tag in the day-time about an excavation adjoining a street, a plank, three by eight inches and twenty-five feet long placed on three empty barrels set on end and guarding the excavation, in some manner fell upon him while he was in the excavation, the questions whether the owner of the premises had properly guarded the excavation, as required by statute, “ so as to prevent the same from becoming dangerous to life and limb ” and also whether the boy was sui juris, and, if he was not, whether his parents had been negligent in letting him play unattended on the sidewalk, are questions of fact which must be submitted to the jury.</p> <p>A dismissal of the complaint at the close of the evidence is improper.</p>

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

<p>1. Diversion — Following moneys which can be identified.</p> <p>Where the secretary of a mercantile company pays its moneys,' without authority from it, as a down payment upon his bid on property sold in foreclosure, a receiver of the company may, after the sale has failed, recover the amount of the bid from the referee, as it is not the business of a mercantile company to deal in real estate, and the referee has given and the company has received no value for the money.</p> <p>2. Same — Equities.</p> <p>Where, after the sale has failed, there is a resale at a price which satisfies the mortgagee’s demand, the equity of the company to recover the payment is greater than that of a purchaser of the equity of redemption to retain it, as it cannot be deemed a surplus on foreclosure and the company is under no obligation to benefit the purchaser of the equity of redemption.</p>

<p>Motion by the receiver of the defendant for a stay of proceedings.</p>

<p>Contingent remainders — Vesting in interest — Futurity, when not annexed to the gift by a direction to pay upon a contingency — Bight of beneficiary of a trust to inherit corpus from remainder-man.</p> <p>.The will and codicil of a testator, which indicated an intention to dispose of his whole estate, among other things created a trust in his executors for the benefit of his grandson, Charles W. Cornell, for life, with liberty to the executors to pay him the principal if they deemed it wise to do so; and it further provided that “ in case they should not pay to him said principal, and the said Charles should die without leaving issue surviving him, then to pay said principal on his death to my said son, William W. Cornell, and my said daughter, Sarah B. Harrington, to be divided equally betweén them, but in case the said Charles shall die leaving issue surviving him, then said principal shall go and belong to such issue ”. The executors never paid Charles W. Cornell the principal; he died without issue surviving him, and left a will by which he devised his whole estate. Both remaindermen died after the testator and before Charles W. Cornell and one of them, William W. Cornell, intestate, leaving neither widow nor children.</p> <p>Held, that the remainders were contingent, that they vested in interest at the death of the testator, that each of the remaindermen became a tenant in common of one-half of the realty and of the personalty, and that their interests were alienable and devisable.</p> <p>That the direction “ then to pay said principal on his death to my said son,” etc.— an act which had become impossible by the son and daughter dying before Charles W. Cornell —did not annex futurity to the gift and postpone vesting, as this phrase was to be given the same meaning as the subsequent provision that, if Charles W. Cornell died without issue surviving him, “ then said principal shall go and belong to such issue ”.</p> <p>That as the will of the testator made no disposition of the share of William W. Cornell, in case he died without issue, Charles W. Cornell, although only, a life beneficiary oí the trust, took as heir-at-law anct next of kin an equal share with Sarah E. Harrington in the interest of William W. Cornell, and that this interest passed to the devisee of Charles W. Cornell.</p>

<p>Application for an order, granting leave to' issue execution upon a judgment recovered in 1889, in the Supreme Court, and assigned to the applicant.</p>

Motion to vacate an order obtained by the applicant for the examination of Samuel F. Randolph, for the purpose of ascertaining who are the proper persons to make defendants, and also to enable the plaintiff to frame the complaint.

<p>Motion for dismissal of complaint at the close of the evidence.</p>

<p>Motion for an alternative writ of mandamus.</p>

<p>Oertiorabi to review the action of the commissioners of taxes and assessments.</p>

<p>Demurrer to answer.</p>

<p>Action by veteran of the Civil War to recover salary incident to the position from which he was wrongfully removed and to which he was reinstated by peremptory mandamus, without the assessment of his damages.</p>

<p>Motion to confirm the report of a referee in an action for partition.</p>

<p>Certiorari proceedings to set aside an assessment of real property, to the relator.</p>

<p>1. Liquor Tax Law — Consents — Distance of 300 feet how measured.</p> <p>In determining the necessities of consents, to liquor traffic, from the-owners of buildings occupied exclusively as dwellings, the statutory two hundred feet is to be measured in a straight line from the nearest entrance to the dwelling, whether rear side or front, to the nearest public entrance to the building where the traffic is to be carried on.</p> <p>2. Same — Status of dwelling not changed by letting rooms by the week.</p> <p>A dwelling-house does not lose its character as such merely because its owner occasionally lets rooms by the week.</p>

<p>1. Railroad Law — Validity of a contract giving a hackman an exclu-</p> <p>sive privilege to carry incoming passengers from a station.</p> <p>A contract, by which for a valuable consideration a railroad company gives to a hackman the exclusive privilege of carrying away from its grounds at its station incoming passengers, is valid and does not violate the Railroad Law (L. 1890, chap. 565, § 34, as amended by L. 1892, chap. 676), forbidding a railroad corporation to give a preference upon its grounds to any one of two or more persous competing in the same business, as the competing persons contemplated by the statute are only those having contractual relations with the compapy and the statute does not apply to a person who has none.</p> <p>2. Rights at station of independent hackman — Injunction.</p> <p>The court will, under such a contract, enjoin a rival hackman, having no contractual relations with the railroad company, from soliciting, against its protest, at the station grounds, employment from incoming passengers, but will not restrain him from carrying from the station incoming passengers whom he has previously contracted to meet and carry away from it, nor from carrying to it intending passengers who have hired him to do so.</p>

<p>1. negligence — Bunaway caused by steam motor — Fright not actionable.</p> <p>A runaway, caused by a horse taking fright at a steam motor carriage, with pneumatic tires, slowly approaching him and not differing In construction from ordinary motor carriages except that it had a smokestack which only emitted the usual amount of vapor, affords no cause of action to the owner of the horse for damages caused by the accident.</p> <p>Mere fright, deteriorating the value of the horse, gives no cause of action to its owner.</p> <p>2. Same — Construction of statute requiring a person to he sent one-eighth of a mile ahead of a steam vehicle.</p> <p>The statutory provision, forbidding the use in public streets (except on railroad tracks) of any vehicle propelled by steam unless a person is sent at least one-eighth of a mile in advance to warn travelers, was directed against traction engines and not against automobiles, which have come in use since the passage of the statute.</p> <p>The said provision cannot be successfully invoked to procure a recovery upon the ground that the owner of the motor carriage was proceeding illegally where the proof shows that a compliance with the statute would not have prevented the accident.</p>

<p>Appeal from judgment of Justice’s Court, held in the town of Webster, awarding plaintiff possession of a heifer, and costs of the action.</p>

Application to the county judge of Rensselaer county to compel School District Ho. 6 of the town of Ste-phentown to levy a tax for his costs in an appeal to the Superintendent of Public Instruction, under sections 5 and 6 of article I, title XY, of the Consolidated School Law. L. 1894, Oh. 556.

<p>1. Municipal corporation — Fire department in cities of second class.</p> <p>The charter of cities of the second class (L. 1S9S, ch. 1S2) did not create, in the city of Troy, a new fire department, but continued the old one, changing the supervision from the former fire commissioners to the present commissioner of public safety.</p> <p>2» Same — Commissioner of public safety may try for offenses committed before his appointment.</p> <p>The said commissioner of public safety has power, under the said charter, to try a fireman for offenses committed before January 1, 1900, the date when the said charter went into operation, and will not be prohibited from so doing.</p> <p>3. Same — Eight of review.</p> <p>Quaire, whether in view of the fact that the offenses were committed before the charter, declaring the decision of the commissioner of public safety final, went into effect, the accused could still exercise the right, existing before the charter, of reviewing by writ of certiorari a - decision adverse to him.</p>

<p>1. New York city — Jurisdiction over Riverside Park and Drive is in board of park commissioners.</p> <p>Riverside Park and Drive or Avenue, in the city of New York, are within the exclusive jurisdiction of the board of park commissioners, and the municipal assembly has no control over them.</p> <p>2. Same — One commissioner cannot issue a permit for an “ erection ” —' Scope of permit,</p> <p>The power to pass ordinances in regard to “ erections ’’ in the public parks of New York city being vested by the charter (L. 1897, ch. 378, § 610) in the board of park commissioners, a single commissioner has no authority to grant a permit for such an erection, and particularly where it permits the front and entire side walls of a building to project into a public park for a distance of three feet and six inches.</p> <p>Sernhle, that the board itself could not grant so extensive a permit.</p> <p>3. Same — Estoppel by acquiescence.</p> <p>Where the agent and husband of an adjoining owner witnesses the erection of this illegal construction, and does not object to it, the owner cannot compel its subsequent removal, but will be awarded damages, it appearing that the lot damaged was very small, irregular and not likely to be built upon.</p>

<p>Motion by plaintiff for an injunction.</p>

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

<p>1. Marketable title — Condition subsequent as a restriction on fee and as an “ incumbrance.”</p> <p>A condition in a deed, providing that the estate granted should revert to the grantors if the premises were used for any of certain purposes prohibited by its terms, when accompanied by the grantee’s covenant for himself, his heirs and assigns, that he would not so use them, and construed in view of the circumstances that- the premises were a part of a tract of city lots, and that the condition was imposed for the benefit of all prospective purchasers of lots in the tract, must be deemed a condition subsequent, and a purchaser from one holding under such a deed and who has agreed to give a title in fee-simple, free from all incumbrances, may properly reject the title.</p> <p>Such a condition is also to be deemed an “ incumbrance ” where the purposes prohibited injuriously restrict the use to which the premises might otherwise have lawfully been put.</p> <p>3. Deed — When to individuals and not to trustees.</p> <p>' A deed describing the grantees therein as trustees of a land association, but granting and conveying the premises “ to the parties of the second part, their heirs and assigns forever ”, and reading in the habendum clause “to the parties of the second part, the survivor of them, his heirs and assigns, to their own proper use, benefit and be-hoof as joint tenants ”, is not a deed to the grantees as trustees, but to them as individuals.</p> <p>3. Damages — When liquidated damages must yield to compensatory.</p> <p>Where a vendor affirms the validity of his executory agreement to sell and convey real estate by suing upon it, and is defeated for a defect in his title, the vendee is entitled to compensatory damages, and the vendor cannot limit his liability to the stipulated damages fixed by the executory agreement, in case he should elect tó declare the same void.</p>

<p>Trial of issue raised by return to alternative writ of mandamus.</p>

<p>Actions by abutting owners to restrain the defendant from using a street in Syracuse and for damages.</p>

Plaintiee seeks to foreclose a mortgage for $950 and interest. upon premises of which the title and possession is held by the defendant Screiber. The defendant McChesney asks, at this time, in effect, that a mechanic’s lien, for materials sold to Sugarman and used in the erection of a house upon said premises, before they were conveyed to Screiber, be held a claim against and payable out of plaintiff’s interest as mortgagee.

This action is brought to recover the sum o-f $300, with interest, on account of the alleged breach of a contract, made by one ■ defendant and guaranteed by the other, to pay to the plaintiff, in consideration of his cancellation of certain mortgages, judgments, etc., the sum of $300 in personal property.

<p>Action to enjoin, commission by defendant of acts alleged to amount to a nuisance and to recover past damages.</p>

<p>Action to foreclose a mechanic’s lien.</p>

Action to obtain, specific performance of an oral agreement on the part of the deceased, Joshua Healy, to give to the plaintiff the share of a child of his own in his estate.

<p>¡Negligence — Vendor need use only reasonable care in selecting an appliance which a servant of the vendee will use in unloading the thing sold.</p> <p>The duty which a vendor of hay, furnishing ropes and pulleys for the vendee to unload it from the vendor’s truck by hoisting it into a loft, owes to a servant of the vendee engaged in unloading, is that of reasonable care in providing safe and proper appliances, and where the vendor testifies that he was particular about his tackle, looked at it every once in awhile and attended to the rope if it was the least bit ravelly, he is not liable to a servant of the vendee for injuries sustained by the breaking of a small rope, which, if frayed, must have been visible to the servant, and of which fraying it was not shown that the vendor had any knowledge or notice.</p>

<p>1. Municipal Court of the city of New York — Removal to City Court —- Code C. P., § 3316.</p> <p>Where, in an action in the Municipal Court of the city of New York, removable by virtue of the amount involved to the City Court of said city, the defendant presents, before any adjournment had, an undertaking in the largest amount specified in section 3216 of the Code of Civil Procedure, the Municipal Court is ousted of jurisdiction, and it is not material that the undertaking was executed before the trial justice had fixed its amount.</p> <p>2. Appeal — Waiver.</p> <p>The fact that the defendant introduced evidence, after his application for a removal had been denied, is not a waiver of his right subsequently to appeal from a judgment for the plaintiff.</p>

<p>Negligence — Right of expressman to unload, although his wagon encroaches on street car tracks.</p> <p>An expressman has a right to unload from his wagon, although this requires it to overlap the tracks of a street railroad company; and where a driver of a car misjudges the possibility of passing the wagon without colliding, and attempts to pass without giving any warning or making any request to be allowed to pass, a verdict in favor of the expressman, for personal injuries sustained by being thrown from the wagon by the collision, will be sustained.</p>

<p>Appeal from a judgment in favor of the plaintiff against the defendant, entered on a decision of the court in an action on a written agreement of the defendant to pay the plaintiff monthly a sum of money to support and maintain their children, who were infants.</p>

<p>tExecutor and administrator — Liability of an administrator’s sureties for a debt he owed the intestate and was able to pay.</p> <p>Sureties upon the bond of an administrator are liable to the next of kin for the amount of judgments which the intestate obtained against the administrator, and for which the latter had not accounted, although able to pay them.</p>

<p>Appeal from a judgment, in favor of the defendant, entered upon a dismissal of the complaint by direction of the court.</p>

<p>Action for rent — The defense that the landlord has lost title by condemnation proceedings, must be pleaded.</p> <p>Proof offered by lessees as a defense to an action brought against them in the city of New York for rent, that the lessees have been divested of title to the demised premises by condemnation proceedings, is not admissible where no such defense has been pleaded.</p>

<p>Motion to set aside an execution against the person of the defendant.</p>

<p>Motion to continue an injunction.</p>

<p>Payment — Duress of law'— Distinction between void and excessive assessment under New York city charter.</p> <p>A person who, under threat of a sale of his property, pays to the city of New York a void assessment, may recover the payment, and' the charter (L. 1897, eh. 378, § 962) has no application, as section 962' relates only to cases where the illegality of the assessment consists in its being excessive.</p>

This was a motion to vacate an order made by Mr. Justice Gray-nor under section 1534 of the charter of the city of Hew York (L. 1897, ch. 378) for the examination of the mayor, the commissioners of docks, and others on the ground that the said section was unconstitutional.

<p>1. Street railroad — An individual cannot sue to restrain it from charging illegal fare.</p> <p>An individual cannot maintain an action to restrain a street surface railroad corporation from charging fare in excess of the rate permitted by law, and the proper remedy is for the Attorney-General to vacate or annul the charter of the corporation.</p> <p>0. Same — Legal rate of fare on lines of Brooklyn Heights Railroad Company.</p> <p>Semble, that the Brooklyn Heights Railroad Company, a street surface railroad corporation incorporated under chapter 252 of the Laws of 1884, cannot charge more than five cents for a continuous ride from one point to another in the borough of Brooklyn, whether the passage is made on its own line or in part on lines leased and operated by it.</p>

<p>Marketable title — Adverse possession sufficient.</p> <p>A title by adverse possession is marketable and a purchaser will be compelled to accept it, although the vendor has established it only with great labor and difficulty, and it depends in part upon the testimony of witnesses who must in the natural course of events die before many years, and upon records, documents and papers which might not be accessible to a subsequent purchaser.</p> <p>Evidence deemed sufficient to show adverse possession.</p>

<p>Surety — Discharged by alteration of contract.</p> <p>One who agrees to indorse a note for $3,000 and secure another person by bond and mortgage if he will advance the proposed maker the money on the note is a surety as between the lender and the borrower, and, therefore, where the lender, instead of taking a note from the borrower as agreed, gives him a check for $3,000 to the order of the proposed indorser of the note, and after the latter has indorsed the check and it has been returned by the borrower to the lender the latter cancels it and gives the borrower another check for $1,000, an old debt of the borrower to the lender for $2,000 having been deducted, the lender cannot subsequently enforce the bond and mortgage against the surety, as the latter has been prejudiced in that if the lender had taken a note the surety could have compelled him to enforce it, or attempt to do so, before proceeding upon the bond and mortgage.</p>

<p>1. Encroachment — Wall of building, encroaching at a point above roof of lower adjoining building, not required to be removed — Damages.</p> <p>Where the wall of a lofty building encroaches a few inches upon the air space over a lower adjoining building, the remedy of the adjoining owner is in damages only, and the court will not compel the owner of the lofty building to remove the encroaching wall where that would entail enormous expense, without corresponding benefit to the adjoining owner.</p> <p>2. Same —■ Permanent right to maintain encroaching cornices and shutters prevented.</p> <p>Where it was admitted that ornamental cornices and swinging iron shutters of the lofty building were encroachments, the court enjoined the owner thereof from continuing them in their existing position whenever the adjoining owner or his grantees desired to build on his lot, and also required the said owner to execute an instrument, to be approved by the court, declaring that it claimed no right to have the cornices and shutters remain permanently in their present position.</p>

<p>Trademark — Use of “ O. Vermilion ” and. “ P. Green” not an infringement of “ Oriole Vermilion ” and “ Peerless Green.”</p> <p>Where the sale of dry colors under the names “ O. Vermilion ” and “ P. Green ” is made in packages dissimilar from those used by a manufacturer of dry colors having a trademark in the names “ Oriole Vermilion ” and “ Peerless Green ”, and there is no proof of any intention of the vendor to induce customers or the public to believe that his article is that sold under the said trademarks, nor any proof of any representations upon his part to that effect, there is no unfair competition in trade.</p>

<p>Motion to strike cause from the calendar.</p>

<p>Action to recover balance of salary claimed to be due.</p>

<p>Contract to supply a paper mill with lumber for wood pulp, during ten months of ten successive years — Diversion of lumber, by sale to third party, enjoined — Rescission — Title to unidentified standing timber.</p> <p>A company, expending about §1,000,000 on a paper mill, made, in 1899, a ten-year contract with a lumber company owning 32,000 acres of woodland for a delivery from the tract in each of ten months of each year, beginning in 1900, of about 1,200 cords of pulp wood, at §9 per cord. The lumber company agreed not to sell any of said lands or pulp wood during the term of the contract so as to in any way prejudice or prevent its fulfillment. The contract also provided that the paper mill company should make to the lumber company such advances as it might request during the progress of the work, but stated that the paper mill company “ need not advance more than approximately the cost of the work done”. When the lumber company had, in April; 1900, done §40,000 worth of work and had demanded advances to that amount, the paper mill company had advanced only §25,000. The lumber company then rescinded and sold half of its tract to a cooperage company, reserving the right to buy the pulp wood on the stump. It refused to deliver the cut of 1900 and claimed a right to sell it to others. The paper mill company brought this action to restrain the sale to the cooperage company in so far as it would disturb the power of the lumber company to fulfill its contract.</p> <p>Held, that a temporary injunction should be granted upon the usual security, accompanied by a further undertaking that the paper mill • company would, if defeated, take the cut of 1900, at $9 per cord, and, on similar terms, all other cuts made during the litigation.</p> <p>That the contract did not so much contemplate the sale of a vendible thing, replaceable at market rates, as it did the absorption into the product of the paper mill, during ten successive years, of a thing necessary to that product, and that a diversion of the thing necessary was contrary to the spirit of the contract.</p> <p>That the failure of the paper mill company to make the relatively small advance of $15,000, did not justify a rescission in toto of so large a contract — however much it might affe'et the right of the lumber company to refuse to make further deliveries to a defaulting vendee.</p> <p>That an injunction would not be refused merely because the paper mill company had recorded its contract and filed a Us pendens in the present action, as it was doubtful whether those records would prevent title in unidentified standing timber from passing to a bona fide grantee.</p>

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

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

<p>Bond, official — Sureties not liable where the officer takes a deposit, as indemnity, when he should have taken an undertaking.</p> <p>The act of a marshal of the city of New York in taking, as indemnity for levying an execution, a deposit instead of the undertaking required by law, is not in the line of his official duties, and, therefore, where he wilfully fails to return the deposit, the sureties upon his bond are not liable to the plaintiff in the execution, who" made the deposit.</p>

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, rendered in favor of the plaintiff, upon a trial had before the court and a j™y.</p> <p>The nature of the action and the material facts are stated in the opinion.</p>

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

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

<p>Negligence — Facts not creating a presumption of negligence — Passenger slipping on banana peel.</p> <p>No presumption of negligence upon the part of ah elevated railroad corporation is raised by mere proof that, at midday, a passenger was injured by slipping upon a banana peel lying upon the stairway of a station, in the absence of any evidence as to how long the banana peel had been there, or that the corporation had had notice of its being there, or that it had had time or opportunity to remove it.</p>

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

<p>Appeal from final order in summary proceedings of the Municipal Court of the city of Hew York, fourth district, borough of Manhattan.</p>

Appeal by the defendant, Etta Forgotston, from a judgment of the City Court of the city of Hew York, overruling a demurrer to the complaint herein.

<p>Voluntary benefit society — Legality of provision forbidding a member accident benefits unless he is working at the organization rate of wages, or has been permitted to work at another rate.</p> <p>A provision of the constitution of a voluntary association designed, among other things, to maintain the rate of wages in a trade, requiring a member over sixty years of age to procure exemption from a provision declaring that, in order to share in accident benefits, a member “ must have worked at the job where the injury was received for the rate of wages demanded by the organization ” is legal and enforeible, and where a member over sixty years of age, while working at a job, without permission of the organization, for wages less than those demanded by it, is injured, he cannot recover accident benefits of it.</p>

<p>Payment — Hot made out where there is a compulsory deduction from wages — Services.</p> <p>Where an express company makes a monthly deduction from the wages of a driver to repay it for his alleged loss of a package, the fact that he, under protest, receipted each month for his wages in full, does not show that he has been paid them nor preclude him from recovering from the company the amount it withheld.</p>

<p>Uegligence — Presumption of warehouseman’s negligence in keeping property.</p> <p>Where an article receives, while in storage, injuries of a character which reasonably import that they would, not have occurred had proper care been exercised, the warehouseman must rebut the resulting presumption of negligence, and where rebutting proof is given, the question still remains whether the bailor has made out a case upon the whole evidence.</p>

<p>Corporation. — Construction of by-law as to payment to be made a stockholder who withdraws — Priority.</p> <p>Where a by-law of a solvent domestic corporation, regarding the payment to be made a stockholder who desires to withdraw therefrom, provides that not more than one-half of the funds in the treasury shall be applicable to such a purpose, unless the board of management consent, a vote of the board that the withdrawing stockholder be paid the withdrawal value of his shares is a consent which absolutely entitles him to payment, no matter what may be the state of the funds in the treasury. The contention that withdrawing stockholders ought to be paid in the order of their withdrawal is not maintainable where the by-laws do not contain any such provision.</p>

<p>Appeal from a determination of the General Term of the City Court of the city of Hew York, affirming a judgment of the Trial Term, entered on the verdict of a jury, directed by the court in favor of the plaintiff.</p>

<p>Action to foreclose mechanic’s liens.</p>

<p>Appeal from an order of the General Term of the City Court of the city of New York, modifying and affirming an order of the Special Term of said court.</p>

Appeal by the plaintiff from a judgment of the General Term of-the City Court of the city of New York, affirming a judgment rendered upon the verdict of a jury in favor of the defendant.

<p>Appeal from a judgment of the General Term of the City Court of the city of New York, affirming a judgment entered upon a verdict rendered in said court in favor of the plaintiff.</p>

Appeal by the plaintiff from a judgment of the Municipal Oourt of the city of Hew York, borough of Manhattan, rendered in favor of the defendant upon a trial had before the court without a jury. Action to recover damages claimed to have been sustained in consequence of the defendant’s alleged negligence.

Appear from final order in summary proceedings, entered in'the Municipal Court of the city of Hew York, tenth district, borough- of Manhattan; also from an order denying the tenant’s motion to open his default.

<p>Appeal from a judgment of the Municipal Court of the city of Rew York, third • district, borough of Manhattan, in favor of the defendant.</p>

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

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

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

<p>Appear by the under-tenant from a final order in summary proceedings awarding the delivery of the possession of certain premises to the petitioner, made by one of the justices of the Municipal Court of the city of Rew York, sitting in the borough of Manhattan.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered in favor of the plaintiff, upon a trial had, without a jury. Action for broker’s commissions.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered in favor of the plaintiff, upon a trial had without a jury. Action for a conversion.

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

Ahpeal by the plaintiff from a judgment of the Municipal Court of the city of Hew- York, borough of Manhattan, in favor of the defendant, upon a trial had, without a jury.

Appeal by the defendant from a judgment of the Municipal Court of the city of Eew York, borough of The Bronx, entered in favor of the plaintiff for $164.72 damages and costs, upon the verdict of a jury. * •

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

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

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

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

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

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

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

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

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

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

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

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered in favor of the defendant, upon a trial had without a jury.</p>

Appeal by the defendants from a judgment of the General Term of the City Court of the city of New York, affirming a judgment in favor of plaintiff and from an order denying a motion for a new trial.

<p>Appeal from judgment of the General Term of the City Court of the city of New York, affirming a judgment in favor of plaintiff, entered upon a verdict.</p>

<p>Appeal from a judgment of the General Term of the City Court of the city of New York, affirming a judgment in favor of plaintiff entered upon a verdict.</p>

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

<p>Appeal from an order of the General Term of the City Court of the city of New York, modifying an order made at Special Term, granting plaintiff leave to amend the summons and complaint, and to serve a supplemental summons and complaint.</p>

<p>Appeal from a judgment of the General Term of the City Court of the city of Hew York, affirming a judgment at Trial Term in favor of plaintiff.</p>

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

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

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

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

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

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

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

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

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

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

<p>Appeal from an order of the Municipal Court of the city of Eew Tork, for the fifth judicial district, opening the default of' the defendant.</p>

<p>Appeal from a judgment in favor of the plaintiffs rendered in the Municipal Court of the city of Eew Tork, second district, borough of Manhattan.</p>

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

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

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

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

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

<p>Appeal from judgment of the General Term of the City Court of the city of New York in favor of plaintiff.</p>

<p>Appeal by the plaintiff from a judgment dismissing the complaint, rendered by the Municipal Court of the city of New York, borough of Manhattan, upon a trial had before the court and a jury.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered in favor of the plaintiff upon a trial had without a jury. Action upon a promissory note. The answer was a general denial; failure to give notice of dishonor of the note; lack of consideration and fraud.

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

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, rendered in favor of the plaintiffs upon a trial had without a jury.</p>

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

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

<p>Appeal from judgment of the Municipal Court of the city of Hew York, borough of Manhattan.</p>

Appeal by the plaintiffs from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered-in favor of the defendant upon a trial had before the court without a jury.

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

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

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

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

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

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of Kew York, borough, of Manhattan, rendered in favor of the plaintiff upon a trial had before the court, without a jury.</p>

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

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

<p>Appeal from judgment of the Municipal Court of the city of Hew York, borough of Manhattan.</p>

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

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

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

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

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

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

Appeal by the defendants from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Hew York, ninth district, borough of Manhattan, after a trial had before the court without a jury.

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

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

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

<p>Appeal from judgment of the Municipal Court of the city of' Flew York, borough of Manhattan.</p>

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

<p>Appeal by the defendant, the Continental Real Estate Holding & Building Company, from a judgment in favor of plaintiff.</p>

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

<p>Appeal from a judgment and also from an order denying a motion for a new trial.</p>

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

<p>Appeal from an order denying a motion to sever this action made by plaintiff and that judgment be entered against the defendants Muller and Bendit.</p>

<p>Appeal from an order, denying plaintiffs’ motion for a bill of particulars of the counterclaim, set up in defendant’s answer.</p>

<p>Appeal from an order made at Special Term, vacating and setting aside an order adjudging the judgment debtor herein guilty of contempt.</p>

<p>Appeal from an order denying a motion to preclude plaintiff from giving evidence at the trial of the above-entitled action in support of the allegations in the amended complaint, wherein plaintiff claims to have expended certain sums for the benefit of the defendant.</p>

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

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

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

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

<p>Appeal from a judgment in favor of the defendant dismissing the plaintiff’s complaint, with costs.</p>

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

<p>Appeal from an order adjudging the defendant guilty of contempt and imposing a fine.</p>

<p>Appeal from a judgment entered upon verdict and order denying new trial.</p>

<p>Appeal from order requiring plaintiff to give security for costs.'</p>

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

<p>Appeal from an order granting, in part only, a bill of particulars, and denying motion therefor in part.</p>

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

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

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

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

<p>Appeal from a judgment directed by the court in favor of plaintiffs.</p>

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

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

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

<p>Appeal from a judgment at a Trial Term entered upon a verdict, and from an order denying a motion for a new trial.</p>

<p>Appeal from a judgment entered upon a verdict at a Trial Term, and from an order denying a motion for a new trial.</p>

<p>Appeal from an order at Special Term denying defendant’s motion for leave to amend his answer.</p>

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

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

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

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

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

<p>Appeal from an order of Special Term granting plaintiffs’ motion for a bill of particulars of a counterclaim set up in the answer.</p>

<p>Appeal from an order of Special Term vacating an order for examination of defendant before trial.</p>

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

<p>Appeal from a judgment of replevin and from order denying the defendant’s motion on the minutes for a new trial.</p>

<p>Appeal from an order of reference.</p>