Volume 31 — New York Supplement

Submission, without action, on agreed statement of facts, of controversy between Louise Reydell, plaintiff, and Adam Reydell, defendant. Judgment for defendant.

Action by William Frankfurter against the Home Insurance Company on a fire insurance policy. Plaintiff sued as the assignee of the insured. The defense was that by its terms the policy was avoided, owing to subsequent insurance effected by the insured without the written consent of the defendant, or its authorized agent, indorsed on or attached to the policy. From a judgment of the city court (26 2í. Y. Supp. 81) affirming a judgment in favor of plaintiff, defendant appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Jacob Ter Kuile against Frank E. Maraland. From an interlocutory judgment sustaining a demurrer to a counterclaim set up in the answer, defendant appeals.</p> <p>It is alleged in the complaint that April 1, 1892, the litigants and Orme, Evans & Co. executed a written contract by which defendant agreed to solicit orders from dealers in the United States and Canada for goods manufactured by said firm, which orders were to be in writing, and all bills for goods were to be made out in the name of “Frank E. Maraland, Agent,” and that it should be stated on them face that they were to be paid to the plaintiff. It is also alleged that the defendant, “pursuant to said contract,” procured orders from divers purchasers for goods to the amount of $2,055.50, which were furnished by the plaintiff, and that the defendant wrongfully and without authority from the plaintiff collected the amount due for the goods ($2,055.50), and converted it to his own use. The defendant annexes a copy of the contract of April 1, 1892, to his answer, and denies that he made the sales described in the complaint, and denies that he converted the sum therein mentioned, and sets up by way of counterclaims (1) that goods were sold under said contract to divers persons, on orders procured by the defendant, the price of which the plaintiff collected, and that there is due the defendant, by the terms of the contract, at least $2,000; (2) that the plaintiff broke the contract by refusing to pay the duties on goods received from Orme, Evans & Go., and also neglected to advise the firm of divers orders obtained by the defendant, which were not filled, to his damage in the sum of $2,000; (3) that under the contract the defendant had the exclusive right to solicit orders in the United States and Canada for the goods manufactured by Orme, Evans & Co., and that the plaintiff and said firm conspired and confederated together, wrongfully and fraudulently, to deprive, and did deprive, the defendant of such right, to his damage of $2,000. The plaintiff demurred to the nrst and second counterclaims on two grounds: “(1) It appears on the face thereof that the counterclaim is not of the character specified in section 501 of the Code of Civil Procedure, in that a counterclaim to recover money alleged to be due under a contract cannot be allowed in an action for conversion. (2) The counterclaim is insufficient in law, upon the face thereof.” The plaintiff demurred to the third counterclaim on three grounds: “(1) It appears on the face thereof that the counterclaim is not of the character specified in section 501 of the Code of Civil Procedure, in that a counterclaim to recover for an alleged conspiracy and confederation to deprive the defendant of the benefit of an exclusive right to sell certain goods under a contract cannot be allowed in an action for conversion. (2) It appears on the face thereof that the counterclaim does not state facts sufficient to constitute a cause of action. (3) The counterclaim is insufficient in law, upon the face thereof.” The demurrer to the three counterclaims was sustained, and leave granted the defendant to serve an amended answer on paying the costs, and an interlocutory judgment was entered, from which the defenuant appeals.</p>

Action by Francis V. Greene, as president, etc., against Frederick B. Carey. From an order denying a motion to vacate an order for defendant’s examination and the production of his books, defendant appeals.

Action by Benedickt Fischer and others against Berthold Blank. From an order punishing defendant for contempt of court for the alleged violation of an injunction, defendant appeals. For former reports, see 19 N. Y. Supp. 65, modified by 33 N. E. 1040.

Action by William C. Hackstaff and others, as executors, etc., against Charles L. Hackstaff. There was a verdict in favor of plaintiffs, and defendant moves for a new trial on exceptions ordered to be heard at general term in the first instance.

<p>Elevated Railroads—Damages to Abutting Property.</p> <p>An elevated railroad company is not relieved from liability to the owner of an abutting tenement for a depreciation in its rental value, due to the operation of the road, by shewing that the tenement had been improved to an extent not warranted by the character of the neighborhood.</p>

<p>Submission of controversy between Francesco Ferrari, plaintiff, and James Saitta, defendant,, on agreed state of facts. Judgment for defendant.</p>

<p>Attorney and Client—Summary Proceeding against Attorney.</p> <p>Where an attorney neglected to appeal, and, in consideration of his client deferring suit for damages therefor, stipulated to have the judgment vacated without cost to such client, his failure to carry out the stipulation-does not entitle the client to maintain a summary proceeding, though he alleges deception by the attorney, but he is remitted to his remedy by action.</p>

Actions by William Murray against Rebecca Babbitt, and by the same plaintiff against the G-ast Lithographic & Engraving Company, for an injunction and damages. There was a judgment for defendant in each case (28 N. Y. Supp. 271), and plaintiff appeals.

Action by the Mt. Morris Bank against Robert 0. Lawson. From a judgment of the city court (27 N. Y. Supp. 272) modifying a judgment in favor of plaintiff, defendant appeals.

Action by De Witt Curtis against J. Charles Moore and another to foreclose a mortgage. Judgment was rendered for plaintiff, and defendants appeal

Action by Alfred W. Law against Frank R. Pemberton to recover for breach of an agreement for a lease. From a judgment of the city court (29 R. Y. Supp. 605) affirming a judgment entered on a verdict directed for defendant at trial term, plaintiff appeals.

Action by Samuel Kreiser against Cyrus Scofield and William GL McCrea for false imprisonment. From a judgment of the city court (29 N. Y. Supp. 685) affirming a judgment in favor of plaintiff, defendants appeal.

Action by Jacob Hurwitz against Caiman Hurwitz and Samuel Rouse for damages. From a judgment of the city court (30 H. Y. S. 208) affirming a judgment for plaintiff, defendants appeal.

Action by William J. Townsend against Thomas Auld on a promissory note. From a judgment of the city court (28 FT. Y. Supp. 746) affirming a judgment on a verdict directed for plaintiff, defendant appeals.

Action by Rachel Galantshik against the Globe Fire Insurance Company of the City of New York to recover on a policy of fire insurance. There was a judgment entered on a verdict directed by the court for plaintiff, and defendant appeals.

Action by William J. Johnston and the W. J. Johnston Company, Limited, against Thomas Commerford Martin, for specific performance of a contract of sale of shares of stock. From a judgment entered on the report of a referee, plaintiffs appeal.

Action by John Sullivan against William Brooks and Thomas J. Brooks to recover for personal injuries. From a judgment of the city court (28 N. Y. Supp. 1150) affirming a judgment for plaintiff, defendants appeal.

<p>Appeal from special term, New York county.</p> <p>Action by Gustavus A. Waeber and Walter Lea against Gabriel Talbot and others. From an order denying a motion to vacate an undertaking, plaintiffs appeal.</p>

Action by James Stoddard against John McAuliffe and Jeremiah Mahony. Judgment was entered on a verdict directed by the court in favor of plaintiff, and defendants appeal.

<p>1. Executors and Administrators—Statement of Accounts.</p> <p>A n account stated by an executor binds him, though it does not bind the heirs next of kin, etc.</p> <p>2. Same—What Constitutes Statement of Account.</p> <p>A complaint against an executor which states that, for 17 months after presentation of an account, he did not dispute its correctness, sufficiently alleges an account stated by him.</p>

Action by Emma Keller against Henry Feldman. From a judgment entered on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from circuit court, New York county.</p> <p>Action by George W. Montgomery against Vincent B. Schenck on two promissory notes. A judgment was entered on a verdict in favor of plaintiff, and defendant appeals.</p>

Action by the Railway Equipment & Publication Company against the Lincoln National Bank to recover the value of three checks drawn on defendant, and payable to plaintiff, and alleged to have been wrongfully indorsed by one Silas P. Sechrist, manager, and appropriated by defendant. There was judgment in favor of plaintiff, and defendant appeals.

Action by Joseph B. Schram against Henry Werner, Simon Strauss, and Isador Efron, impleaded with Samuel Schram, to recover the amount of three bills of exchange drawn by defendants Efron and Schram, payable to their own order, and directed to and accepted by defendants Werner and Strauss. There was a verdict in favor of plaintiff, and defendants move for a new trial on exceptions ordered to be heard at general term in the first instance.

Action by Société des Huiles d’Olive de Nice against James Rorke to restrain the use of a label. From an order denying an injunction pendente lite, plaintiff appeals.

Action by Lippman Tannenbaum against Gyulo Armeny for an accounting. From an interlocutory judgment in favor of plaintiff, and from an order denying a motion to amend the answer made after trial and decision, but before entry of judgment, defendant appeals. The complaint alleged a copartnership for the establishment of certain mines, which defendant denied.

Action by Louisa M. Gerry against William H. Liddle. There was-a verdict for plaintiff, and from an order denying her motion, under Code Civ. Proc. § 3248, for a certificate of the justice before whom the action was tried “that the title to real property described in the complaint came in question,” plaintiff appeals.

Action by Hugh J. Grant, as receiver of the St. Nicholas Bank, against Patrick J. Walsh, on a check of which defendant was drawer. A verdict was directed in favor of plaintiff, and defendant moves for a new trial on exceptions ordered0to be heard at general term in the first instance.

Application by Herbert Sholes for a writ of mandamus to the board of supervisors of Oneida county. From portions of a final order or judgment entered on the decision of the court after trial at circuit without a jury, relator appeals. During the years 1888, 1889, and 1890, the relator was special surrogate of Oneida county.

<p>Appeal from surrogate’s court, Herkimer county.</p> <p>Claim by Hudson B. Farrington against the estate of Stillman B„ Sanders, deceased. The claim was disallowed (24 N. T. Supp. 317), and claimant appeals.</p>

<p>Partnership—Pledge op Propits by Partner—Firm Creditors.</p> <p>Where the profits of a banking firm were divided, and credited to the-personal account of each partner, an assignment by one of the partners-of.his share so credited as security for a personal debt is valid asi against the firm creditors where the firm was solvent at the time of the assignment.</p>

Action by Joseph I. Sayles and others against Nicholas J. De Graff and others. There was a judgment for plaintiffs, and defendants appeal.

Action by John I. Goodrich against John Gillies and the mayor, etc., of the city of New York to foreclose an alleged lien on moneys in the hands of the comptroller of said city, due from the city to defendant Gillies on a contract between him and the city to build a pier and bulkhead at the foot of Bivington street, East river.

Action by Harry Kemmerer, administrator, against the Manhattan Railway Company for injuries causing the death of plaintiff’s intestate. From a judgment dismissing the complaint, plaintiff appeals.

Action by John H. Law, by his guardian, against Willey J. P. Kingsley, for injuries caused by a defective sidewalk adjoining defendant’s premises. From a judgment of nonsuit, plaintiff appeals.

Action by the Rector, Church Wardens, and Vestrymen of St. James’ Church, Syracuse, and Albert A. Brockway, against Frederic D. Huntington, as bishop of the diocese of Central New York, to compel defendant to issue to plaintiff Brockway a certificate of transfer, and to set aside an order forbidding said Brockway to officiate as rector of St. James’ Church. From a judgment entered on an order and decision dismissing the complaint, plaintiffs peal.

Action by John D. Higgins against G-eorgianna M. EJngsley to recover a strip of land 2 inches wide and 105 feet long. The case was dismissed on the trial by the court without a jury, and plaintiff appeals.

<p>Appeal from special term, Lewis county.</p> <p>Action by Alexander R. G-ebbie and another against Lovitt E. Stitt for an injunction. The injunction was originally granted ex parte on the verified complaint and affidavits of plaintiff Gebbie and one Bowman. Defendant moved to vacate the injunction on the papers on which it was granted and on an affidavit. In opposition thereto further affidavits were used by plaintiffs. From an order denying a motion to dissolve a preliminary injunction restraining the defendant, until the further order of the court, “from manufacturing, selling, or in any way or manner disposing of, or causing to be disposed of, sold, or manufactured, plows bearing, in any manner or form whatever, the name ‘Deer River’ as a name or trademark, or any name like or similar thereto, which might deceive or tend to deceive the public, to plaintiff’s harm,” defendant appeals.</p>

Action by Mary A. Peckham and others against the Dutchess county Railroad Company to compel defendant to construct a farm crossing. A judgment in favor of plaintiffs was rendered February 26,1892, requiring the crossing to be made. See 20 H. Y. Supp. 39; 35 H. E. 206.

<p>Appeal from special term, Onondaga county.</p> <p>Proceeding by the county of Oneida against Abel 0. Brewer, as committee of Myron N. Bartholomew, a lunatic, to enforce a claim against the lunatic’s estate. The county had judgment for $745.70, with interest. Defendant appeals.</p>

Petition by James Moore against the Anglo-American Dry-Dock & Warehouse Company for leave to sue. From an order denying said petition, the petitioner appeals. An action was commenced by Thomas Cochrane and William W. Flannagan against said defendant to foreclose a real-estate mortgage, and is still pending.

<p>Party Nominations—Interference by the Courts.</p> <p>Where a convention, after making a nomination, reassembled, and nominated another person for the same office, but the party which the convention represented had taken no action in regard to the matter, and it is not shown that either meeting of the convention was irregular, the courts will recognize the nomination first made.</p>

<p>1. Constitutional Law—Dub Process op Law—Convict-Made Goods.</p> <p>Laws 1894, c. 698, requiring convict-made goods to be labeled as such when exposed for sale, is unconstitutional as depriving persons of property, etc., without due process of law, since it applies to goods purchased before its enactment</p> <p>2. Same—Interstate Commerce.</p> <p>Laws 1894, c. 698, requiring goods made by convict labor in another state to be labeled as such 'when exposed for sale in New York, is repugnant to the interstate commerce clause of the federal constitution.</p>

<p>1. Alimony—Amount—Construction of Order.</p> <p>An order for alimony, directing the payment of “the sum of $20 per week * * * in the following manner; that is to say, in sums of $40 semimonthly onjthe first and third Mondays of each month,” means that the alimony is payable at the rate of $80 per month.</p> <p>2. Order for Alimony—Construction by Parties.</p> <p>Where a certain construction of an order for alimony was adopted by both parties for over six years, the court will not afterwards give it a different construction at the instance of one of the parties.</p>

<p>Brokers—Commissions—When Earned.</p> <p>A broker is entitled to commissions for procuring a lease if he brought the parties together under circumstances resulting in its execution, though he was not the first to suggest to the lessee that the lease could be procured. Reargument of 29 N. Y. Supp. 578, granted.</p>

<p>Motion for reargument.</p>

Action by Alwin Eisert against William H. Brandt for work, labor, and services performed, and materials furnished, under a special agreement. From a judgment of the city court (29 H. Y. Supp. 1148) affirming a judgment for plaintiff, defendant appeals.

Action by Abram French Company against Philip Marx. From a judgment of the city court (28 R. Y. Supp. 749) reversing an order of the special term vacating a judgment for plaintiff, defendant appeals.

Action by Israel 0. Blake against Herman Bolte. From an order -of the city court (30 N. Y. Supp. 209) affirming an order in supplementary proceedings directing defendant to pay the judgment out of his salary, and in default thereof that a precept of commitment issue, defendant appeals.

<p>1. Attachment—Validity—Sufficiency of Affidavit.</p> <p>An attachment on an affidavit which, in form, complies with all the requirements of the Code, is not irregular.</p> <p>2. Same—Recitals in Affidavit.</p> <p>If the statement in the affidavit as to the indebtedness be such as to call for a judicial determination whether, apparently, the amount be in excess of counterclaims, the attachment, though erroneous and vacated, is not void, and affords a protection to all parties acting under it.</p> <p>3. Process—Void and Irregular—Distinction.</p> <p>Distinction between erroneous, irregular, and void process, and the effect of each in justification of a trespass.</p> <p>(Syllabus by the Court.)</p>

Action by Maria L. Winterson against Hector M. Hitchings and John B. Sexton, as late sheriff of the city and county of New York, to restrain the ex-sheriff from executing a deed of land sold under an execution, and to set aside the sale. A demurrer to the complaint was overruled (30 N. Y. Supp. 260), and defendant Hitchings appeals. This was an action in equity to obtain restitution of property sold under ■execution upon a judgment which was reversed.

Summary proceedings by Charles E. Fleming and another against Martin F. Eyan and Johanna Eyan. Possession of the premises was awarded defendants, as tenants of plaintiff, at the first trial, but that júdgment was reversed on appeal by plaintiffs. 30 1ST. Y. Supp. 224. Judgment in the second trial was also for defendants, and plaintiffs again appeal.

Action by Margaret O’Rourke against the John Hancock Mutual Life Insurance Company on a policy of life insurance. From a judgment rendered by the justice, without a jury, in favor of plaintiff, defendant appeals.

Action by Davie Schaff and another against John Miles, impleaded with others, for goods sold and delivered. From a judgment rendered on a verdict for plaintiffs, and from an order denying a motion for a new trial, defendant Miles appeals.

Action by Peter McDugan against the New York Central & Hudson River Railroad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from Eleventh district court .</p> <p>Action by George J. Vestner against William C. Findlay. There was a judgment in favor of plaintiff, and defendant appeals.</p>

Action by Adolph Prince against Jacob Feller and Israel Doushkess for goods sold and delivered. From a judgment in favor of plaintiff rendered by a justice without a jury defendants appeal.

Action by the Westchester Hardwood Company against the Manhattan Electric Light Company, Limited, to recover damages for injuries received by plaintiff’s horse in a collision with defendant’s ■ wagon. From a judgment in favor of plaintiff, rendered by the justice without a jury, defendant appeals.

Action by Annie M. Sadler against Dore Lyon and others to foreclose two mortgages. Plaintiff moves to compel the referee to pay over the sum of $50, which he had retained, claiming that he was entitled to it as part of his fees.

Action by Henry Schwabeland and others against Herman Buchler and others. There was a judgment in favor of plaintiffs, and defendants appeal.

Action by Charles L. Strong against the Prentice Brown Stone Company. From a judgment of the city court (26 M Y. Supp. 85) affirming a judgment of the trial term for plaintiff, defendant appeals.

Motion by defendant (respondent) for reargument of the appeal from the order of the city court of 3STew York, made at general term, which reversed a judgment rendered at trial term, and granted a hew trial. For the opinion of this court at the time of the decision of the appeal, see 29 N. Y. Supp. 712.

<p>Appeal from Ninth district court</p> <p>Action by the mayor, aldermen, and commonalty of the city of New York against the New York & Harlem Railroad Company. From a judgment in favor of plaintiff, rendered by a justice, without a jury, defendant appeals.</p>

Actiou by John H. Smallwood and others against Herman H. Sehwietering and others to enjoin the sale of stock. A decision was rendered in favor of defendants, who move for an extra allowance.

Action by Edward B. La Fetra against William A. Glover. There was a verdict for plaintiff, and defendant moves for a new trial on the minutes.

Action by Alexander Myers against the New York Central & Hudson River Railroad Company for personal damages. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Action by the people of the state of New York against the American Steam-Boiler Insurance Company of New York City to dissolve defendant corporation for nonuser. From an order denying a mtt tion to compel the superintendent of insurance to pay interest, Henry S. Ward, who was appointed receiver in the action to dissolve, appeals.

<p>Vendor and Purchaser—Bona Fide Purchaser.</p> <p>Where defendant became trustee for plaintiff corporation after its real property had been sold under a mortgage foreclosure, and while it (plaintiff) was in possession of such property as lessee of the purchaser, defendant is not bound, on acquiring the title of such purchaser, to investigate the consideration of the mortgage under which the property was sold.</p>

<p>Appeal from special term, Broome county.</p> <p>Action by G-eorge O. Glassford against Alfred 0. Lewis and others ' There was a judgment for defendants, and, from an order granting a new trial, defendants appeal.</p>

Action by J. Milford Andrews and others against Belle N. Whitney and others to subject trust funds to the payment of a judgment. There was a judgment in favor of plaintiffs, and defendants appeal.

Action by Nathaniel Simpkins against William H. Taylor and others to reform and recover on a contract of guaranty. There was a judgment for plaintiff, and defendant Taylor appeals.

<p>Appeal from special term, Delaware county.</p> <p>Action by Isaac J. Squire against Otis H. Preston and others, as president and trustees of the village of Roxbury, to set aside a certain tax warrant issued by defendants, and to restrain the -collection by them of the annual" tax levy. From an order dismissing his complaint, plaintiff appeals.</p>

Application by Susan Brizzee for probate of the will of John W. Flansburgh, deceased. Probate was contested by Calesta A. Miller. From a decree refusing to admit the will to probate, proponent appeals.

Action by Clifford A. Spencer against Peter J. McManus to recover damages for alleged negligence of defendant in allowing water to leak through, the floor of premises occupied by defendant, whereby plaintiff’s goods were injured. Prom a judgment of the county court reversing, without opinion, a judgment of the city court of Albany (27 N. Y. Supp. 896), plaintiff appeals.

<p>L Municipal Corporations—Council—Modification op Contract.</p> <p>The common council has power to bind the city by modification of a contract between the city and another.</p> <p>2. Same—Right to Sue.</p> <p>Where a city fails to make assessments to pay for a public Improvement, the contractor may sue the city therefor, though the contract provided that no payment should be made until the cost was assessed on and collected from the taxpayers.</p> <p>8. Contracts—Actions—Fraud.</p> <p>Evidence that plaintiff procured a contract with defendant city by bribing an alderman is properly rejected, where it appears that an investigation of the complaint of bribery had previously been had, and that defendant had extended the time for the completion of the work. ■</p>

Action originally brought by Julia A. Block against Fanny Brennan and John H. Bixby, as executors of the will of George B. Bixby, deceased. Mrs. Block died after judgment was rendered in her favor, and Hiram B. Cady, her administrator, was substituted as plaintiff in her stead. From the judgment in favor of plaintiff, defendants appeal.

<p>Judgment—Res Judicata.</p> <p>Defendant informed plaintiff, who had purchased goods at auction, that he (defendant) had been induced,by fraud to sell the goods to a third person, and it was agreed that a merely formal replevin suit should be brought by defendant for the goods, the'entire expense thereof to be paid by defendant. Plaintiff, however, employed counsel, and successfully defended the replevin suit. Held, that plaintiff thereby abandoned the agreement, and could not afterwards recover from defendant damages arising from the fact that the goods wer.e for a long time in possession of the marshal, as such damages were recoverable in a replevin suit</p>

Applications by Eugene Noel, Michael McCarty, Henry Both, Patrick E. Hackett, John Eountree, and John Greener, respectively, for writs of mandamus to Alexander G. Smith and others, constituting the board of inspectors of election in the Twenty-Seventh election district of the Nineteenth assembly district of the city of New York. Writ granted in each case.

<p>Appeal from circuit court, Broome county.</p> <p>Action by William Cooley against Elmina E. Lobdell, as administratrix of the estate of Gideon Lobdell, deceased, to recover the price of land sold by decedent. From a judgment dismissing the complaint, and from an order denying a motion for a, new trial, plaintiff appeals.</p>

Action by Edwin Gomez and others against Horatio Gomez, trustee, and others. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals.

Action by the New York & New Jersey Telephone Company against the Metropolitan Telephone & Telegraph Company for breach of covenant. From an interlocutory judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>li Partnership—Rights op Nominal Partner.</p> <p>Where plaintiff and defendant, in order to avoid the effect of Pen. Code, § 363, forbidding any one to use “the name as partner of one not interested with him as partner,” entered into a partnership agreement, plaintiff became liable as a partner; and it is no defense to an action by her to wind up the affairs of the alleged partnership that she had no interest in the business.</p> <p>2. Same—Individual and Firm Debts.</p> <p>One M., being about to retire from business, and wishing to preserve it until his son became of age, arranged with defendant to carry it on, and agreed to lend him a certain sum, to be used as capital, and also, such additional sums as might be required to properly conduct the business. In consideration thereof, defendant agreed to contribute a certain sum as capital, to employ M.’s son until he became of age, and then admit him as a partner. The sum contributed by defendant was borrowed for him, by his attorney, from M. Held, that the loans made by M. pursuant to the agreement were loans to the firm, but that the loan which defendant’s attorney obtained from M. was an individual debt of the defendant</p>

<p>On reargument.</p>

Action by Ambrose Best against Levi Zeh, individually and as executor, impleaded with others, for partition. There was a judgment in favor of plaintiff, and defendant Zeh appeals.

Action by Robert T. Skelton, an infant, by his guardian, against Matthew Larkin, Jr., for personal injuries. There was a judgment in favor of plaintiff, and defendant appeals.

<p>Defective Highways—Absence of Barrier.</p> <p>The mere absence of a barrier from an embankment, where the highway is 17 feet wide and level, does not show negligence of the highway commissioners.</p>

Action by William H. Gray against the Guardian Assurance Company. From a judgment entered on a verdict directed by the court in favor of defendant, plaintiff appeals.

Action by Albert A. Fletcher against Myron 0. Barber and Lucy Barber to recover possession of land. There was a judgment in favor of plaintiff on a trial by the court without a jury, and defendants appeal.

Action by William H. Magilton against the New York Central & Hudson River Railroad Company for killing plaintiff’s horse. From a judgment entered on a verdict in favor of plaintiff for $200 damages and $106.40 costs, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Application by the Union Pacific Tea Company for a writ of certiorari to review a tax made by James A. Roberts, comptroller of the state of New York. Relator deals in teas, coffees, spices, and baking powder, and claims exemption from taxation on the ground that it is a manufacturing corporation.

<p>Application by the American Axe & Tool Company against James A. Roberts, as comptroller of the state of New York, for writ of certiorari to recover a tax assessment.</p>

Application by Stanley H. Bevins against the board of supervisors of the. county of Warren, N. Y., for mandamus to compel defendant to audit relator’s bill against the county. The application was granted, and defendant appeals.

Action by Elizabeth F. Dagger and others against Bhoda Shultes to recover certain real estate. From orders reviving the action by substituting Henrietta Church as plaintiff in place of the above-named plaintiff, and by making Cyrus S. Shultes and Philena Shultes parties defendant, and authorizing the substituted plaintiff to issue a supplemental summons and serve amended complaint, defendant appeals.

Claim by Eliza Bands against Derrick W. Sparling and Joseph-. Hassir, as administrators of Hannah. Hassir, deceased, for board: furnished to defendants’ intestate. The claim was allowed, and defendants appeal.

Claim by Ethan Akin against the water commissioners of Amsterdam for damages for diversion of water by defendants: From an order confirming an award of damages in favor of claimant, and from an order denying defendants’ motion to set aside and vacate an order appointing commissioners of assessment, defendants appeal.

Proceeding by Caroline J. Dewey against George Edward Barber and Martin V. B. Stetson, as executors of Silas H. Dewey, deceased, for an accounting. From the decree settling the accounts of the executors, the widow of decedent appeals.

Action by Samuel S. Evans, Jr., who sues in behalf of himself and all other judgment creditors of Edward H. Sims, similarly situated, who may join in the action, against Edward H. Sims and others, to set aside a bill of sale executed by defendant Edward H. Sims to defendants Calvin B. Sims and Fred H. Young, dated August 1,1891, and a general assignment made by said Edward H. Sims to defendant William F. Her, dated August 7,1891, as fraudulent and void.

Lawrence county. Action by Heywood Boot & Shoe Company against Murray N. Ralph for price of goods sold. There was a judgment in favor of plaintiff, and defendant appeals.

Application by Charles E. Hodgman and others to open a decree theretofore entered. The application was denied, and they appeal.

Lawrence county. John O. Jeffery was convicted of the crime of obtaining the signar ture of one John McCann to a written instrument by means of false pretenses, and appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by William D. MacFarlane against Robert F. MacFarlane and others for partition. The complaint was dismissed, and plaintiff appeals.</p>

<p>1. Boundaries—Establishment by Agreement.</p> <p>Where adjoining owners submit to arbitration the question as to the true boundary line between them, the award is sufficient to establish the lino as between the parties, their heirs and privies.</p> <p>2. Deed—Estate Conveyed.</p> <p>One J., in possession of the land under contract of purchase, conveyed his interest, by quitclaim deed, to defendant’s grantor, who afterwards received a warranty deed from the owner of the legal title, and then conveyed to defendant, describing it as the same land conveyed to the grantor by J. Sold, that defendant took only the estate that his grantor derived from J.</p>

Action by Martin C. Van Alstyne against Christopher Smith, personally and as administrator of William H. Smith, deceased, and others, to foreclose a mortgage. There was a judgment in favor of plaintiff, and defendant Smith appeals.

Action by James E. Lyon against Warren Hussey. From a judgment entered on a decision sustaining a demurrer and dismissing the complaint, plaintiff appeals.

Action by John B. Bowen, as assignee in bankruptcy of the estate of Anna N. Dwight, against the Delaware, Lackawanna & Western Railroad Company, to recover possession of land. There was a judgment in favor of defendant, and plaintiff appeals.

Action by David Murphy and John W. Gee against the Stickley-Simonds Company and others to foreclose a mechanic’s lien. The referee awarded damages for the balance due on the contract, and also $450 for extra work performed and materials furnished to defendant, finding a total amount in favor of plaintiffs of $5,416.66. Defendant the Stickley-Simonds Company appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by George L. Munroe and Mary A. Munroe against Priscilla H. Judson. The complaint was dismissed, and plaintiffs appeal.</p>

<p>Appeal from circuit court, Oswego county.</p> <p>Action by William Rowe against the New York Central & Hudson River Railroad Company for personal injuries. From a judgment entered on the verdict for plaintiff for $1,800, and from an order denying a new trial on the minutes, defendant appeals.</p> <p>. The Rome, Watertown & Ogdensburg Railroad Company (owned and occupied by the defendant) crosses at right angles and grade the Ontario & Western Railroad at Central Square, Oswego county. A signal is erected for the use of both roads to denote when the crossing is clear. It was the custom of either road, on approaching the crossing, to stop at a distance of some 800 feet from the crossing at a post, and whistle for a signal, and wait until it received a signal from the operator denoting that the road was clear. About 10 o’clock at night of the 2d of September, 1892, the plaintiff took his seat in the smoking car of the Ontario & Western Railroad, and the train, when it reached the grade crossing at Central Square, stopped, and called for a signal, and, upon receiving a signal denoting that the road was clear, proceeded to cross, and, while the smoking car in which the plaintiff was seated was standing at the crossing, an engine drawing a freight train of cars for the defendant approached without stopping or waiting for a signal from the operator, and ran into and collided with the smoking car in which the plaintiff was a passenger, causing the injuries complained of, at about 12 o’clock at night. Extensive evidence on either side was given as .to the nature and extent and character ot the injuries claimed to have been sustained by the plaintiff, and the appellant claims the verdict is excessive, and ought not to have exceeded in any event the sum of $500.</p>

Action by Holister E. Hesler against 0. Frederick Shafer. From an order vacating an injunction in part, plaintiff appeals.

Action by Julia R. Duane against Clinton F. Paige, Maria A. Lewis, and others to determine the rights of the respective parties to certain premises in the town of Fenton, Broome county.

Action by John Miller, as administrator, against the New York Central & Hudson River Railroad Company, to recover damages for the alleged negligence of defendant, causing the death of plaintiff’s intestate at Lock street crossing in the village of Little Falls. From a judgment entered on a verdict in favor of plaintiff for $1,375, and from an order denying a motion for a new trial on the minutes, defendant appeals.

Action by the Cortland Wagon Company against Margaret Lynch on a promissory note. From a judgment entered on the decision made on the trial before the court, a jury having been waived, plaintiff appeals.

Action by William B. Reynolds, as executor of Celancy Reynolds, deceased, against Amanda J. Strong, to recover the purchase price of land. From a judgment entered on a decision in favor of plaintiff on a trial by the court, a jury having been waived, defendant appeals. Reversed.

<p>Appeal from circuit court, Rensselaer county.</p> <p>Action by Amelia Lortie, as administratrix of Jeremiah T. Lortie, deceased, against the Troy Steel & Iron Company, to recover damages for the death of plaintiff’s husband, alleged to have been caused by the negligence of defendant. There was a judgment in favor of plaintiff, and defendant appeals.</p>

Action by James R. Duncan against the George C. Treadwell Company and others. From an order denying a motion by F. T. .Herx and others, judgment creditors of defendant corporation, for an order directing the receiver of defendant to pay to the sheriff the amount due on their judgments, said judgment creditors appeal.

Lawrence county court. Action by George H. Fleetham against George C. Reddick to recover damages for the alleged conversion by defendant of a quantity of grain claimed by plaintiff to be covered by a chattel mortgage executed to him by defendant. There was a judgment in favor of plaintiff, and defendant appeals.

<p>Appeal from circuit court, Saratoga county.</p> <p>Action by Frances E. Williams against the United States Mutual Accident Association of the City of New York. There was a judgment in favor of plaintiff, and defendant appeals.</p>

Action by August Voege against Pierre L. Ronalds and Reginald Ronalds. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendants appeal.

<p>Appeal from circuit court, Ulster county.</p> <p>Action by Jesse L. Van Caasbeck against the town of Saugerties. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals.</p>

<p>Appeal from circuit court, Malone county.</p> <p>Action by James Lever against Buel L. Foote to recover possession of land. There was a judgment in favor of plaintiff, and defendant appeals.</p>

Action by Henry A. Boot against the New York & New England Railroad Company. From a judgment-in favor of plaintiff entered on a decision of the court without a jury, defendant appeals.

Summary proceeding by George Pearson and others against George H. Germond and others. There was a judgment in favor of plaintiffs, and defendants appeal.

<p>Appeal from judgment on report of referee.</p>

Action by John W. Brown against Jonas Fishel and others. From a judgment entered on a verdict in favor of defendants, and from an order denying a motion for a new trial, plaintiff appeals.

Action by Jacob Hauptmann and Henry Thomas, as administrators of John Hauptmann, deceased, against the First National Bank of the City of Brooklyn. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, defendant appeals.

Action by Jacob A. Perkins against the city of Poughkeepsie. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Vicious Dogs—Knowledge op Owner.</p> <p>It is a question for the jury whether defendant ought to have known that his dog was savage, where the evidence shows that the dog had bitten other persons, and that it was his habit to rush out and bark at people passing by.</p>

Action by Thomas I. Storm and others, as trustees of school district No. 5, town of East Fishkill, against the New York & New England Railroad Company. There .was a judgment in favor of plaintiff, and defendant appeals.

Petition by Hiram Farrington to compel the mayor, etc., of the city of New York to pay to petitioner the damages to land conveyed by petitioner to Nathan L. Culver, and afterwards reconveyed to petitioner, as ascertained by the commissioners of appraisal appointed under the aqueduct law (Laws 1883, c. 490).

Certiorari by William Barnes and others to review the determination of the court of sessions of Albany county in holding the relators guilty of criminal contempt, and imposing penalties for the alleged contempt. Quashed.

<p>Oppicers—Valtdtty op Acts—Recital op Authority.</p> <p>The fact that the supervisors of a county recited a repealed statute as the source of their authority, does not affect the validity of their action, where • the authority exercised was conferred on them by the repealing statute.</p>

Action by Patrick McDermot against the Brooklyn City Railroad Company for personal injuries. From a judgment entered on k verdict in favor of plaintiff, defendant appeals.

Action by Daniel E. Christie against Bobert Bowne. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from circuit court, Queens county.</p> <p>Action by Yette Reich, as administratrix of Marcus Reich, deceased, against Henry A. Peck and William L. Peck, to recover damages for the death' of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff for $4,500 and costs, and from an order denying a motion for a new trial on the minutes, defendants appeal.</p>

Action l)v Adrian Vanderveer against John Suydam to recot'er broker’s commissions for effecting a sale of real property, Avhich de-' fendant, the OAvner, refused to convey. From a judgment entered on a verdict in favor of plaintiff for §3,241.57 damages and costs, and from an order denying a motion for a neAV trial, defendant appeals.

Action by William M. Peard against the city of Mt. Vernon to recover damages for personal injuries. The complaint was dismissed on the merits, and plaintiff appeals.

Two actions by Elizabeth Holz against the Woodside Brewing Company and others on promissory notes. From a judgment entered on a verdict in favor of plaintiff in each case, defendants appeal.

Orrin Friday was indicted jointly with Judson Friday and John Bruce for burglary in the third degree. He was tried separately, and convicted, and from the judgment of conviction he appeals.

Action by Merritt A. Jones against- Charles H. Butler to enforce the personal liability of defendant as a stockholder of the New York Advertising Agency, Limited, on the ground that a certificate of the full payment of the capital stock was not filed in the New York county clerk’s office. From an order and interlocutory judgment sustaining the demurrer to portions of the answer, and from an order denying a motion to retax costs, defendant appeals.

Action by the Broadway Savings Institution of the City of New York against the town of Pelham. From a judgment entered on a verdict in favor of plaintiff, defendant appeals.

Action by Challes W. Gibbs against the Long Island Bank to compel defendant to transfer certain shares of its stock to plaintiff’s name on its books, and to issue to plaintiff a certificate in due form showing that plaintiff is the owner of said shares of stock. The complaint was dismissed on the merits, with costs and an additional allowance of $100 to defendant, and plaintiff appeals.

Proceeding for a settlement of the accounts of Mary E. Townsend, as administratrix of Stephen P. Sherwood, deceased. From a decree directing distribution of the personal estate, Charles Hoag, a judgment creditor, appeals.

<p>Appeal from surrogate’s court, Richmond county.</p> <p>Petition by Maria Louisa Richardson to compel the administrators of Junius B. Alexander, deceased, to pay the petitioner a share of decedent’s estate. The petition was denied, and petitioner appeals.</p>

Claim by Esther A. Benedict and Ashmnn J. Benedict against David Sliter, as administrator of David Hull, deceased, for necessaries furnished to testator. There was a judgment in favor of plaintiffs, and defendant appeals.

Action by Mary Ann Thuringer against the New York Central & Hudson Kiver Railroad Company for personal injuries. From a judgment entered on the verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Supplementary proceedings by the people of the state of New York against Thomas G-. Cowan, principal, and John Cahill, as surety, in a forfeited recognizance. Defendant Cahill moves to vacate an order for his examination.

<p>Action by Warren S. Sillcocks against the Manhattan Railway Company and others for an injunction and damages.</p>

Action by Louisa Carlson against Maria Louisa Winterson on a promissory note. The defenses were a denial of the execution and delivery of the note, and that the promise of defendant to pay was contingent on the promisee’s successful prosecution of certain services which he had engaged and failed to perform. From a judgment of the city court (29 N. Y. Supp. 1142) affirming a judgment in favor of plaintiff, defendant appeals.

Action by Merton S. Mosher and another against Charles Lewis and others to foreclose a mechanic’s lien. The complaint was dismissed, and plaintiffs appeal.

<p>Application by James Oliver for mandamus to the board of police commissioners of the city of New York.</p>

<p>At chambers. Application for writs of mandamus to compel defendant to receive certificates of nomination.</p>

<p>Injunction—Evidence.</p> <p>A complaint asking for an injunction and damages, and the affidavit in support thereof, alleged that defendant wrongfully entered on plaintiff’s land under water, and commenced dredging thereon, and that defendant was about to continue said dredging. The answer admitted plaintiff’s title to the land described in the complaint, but denied that defendant ■ entered on it, or that he was about to do so, and alleged that the dredging was on land adjacent to plaintiff’s land. Affidavits and maps were introduced in support of the answer. Held, that an order denying a motion to continue a temporary injunction pendente lite would not be disturbed.</p>

<p>Appeal from special term.</p> <p>Action by Frederick F. Proctor against Henry P. Soulier. From an order appointing plaintiff receiver of the partnership property of the partnership composed of plaintiff and defendant, and restraining defendant from interfering therewith during the pendency of the action, defendant appeals.</p>

Action by Mary M. Perkins, as administratrix, against Henry W. Slocum, individually and as receiver. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals.

<p>Appeal from surrogate’s court, Saratoga county.</p> <p>Application by Scott B. Glenn to revoke probate of the will of William V. Clark, deceased, and the codicils thereto. From so much of the decree as revokes probate of the codicil dated December 17, 1889, Isaac K. Grenell, William Grenell, and Rosella Grenell apipea!.</p>

Action by George Hempenstall against the New York Central & Hudson River Railroad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

<p>1. Adverse Possession—Permissive Entry.</p> <p>Possession of one who enters on land with the consent of the owner, under an agreement with him, is not adverse to the owner, and cannot ripen into a valid title by lapse of time.</p> <p>2. Jury—Right to Trial by—Waiver.</p> <p>Where defendant moves for a nonsuit, and plaintiff asks the court to direct a verdict for him,, they both waive the right to submit the case to the jury.</p>

Action by James W. Bender against John L. Blessing. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals.

<p>Appeal from circuit court.</p> <p>Action by Libbie E. Button against Charles E. Hibbard for breach of promise of marriage. The complaint was dismissed, and plaintiff appeals.</p>

<p>L Insurance—Action on the Policy—Complaint.</p> <p>The complaint in an action on an insurance policy, which does not allege that there was any default in payment by defendant of any sum due on the policy, does not state the cause of trial.</p> <p>8. Pleading—Amendment on Appeal.</p> <p>Amendment of complaint on appeal will not be allowed, where plaintiff’s attention is called to the defect at the trial.</p> <p>8. Same—Objection Cubed.</p> <p>Where the complaint in an action on a live-stock insurance policy alleges the death of the animal insured, but does not allege default in payment of any sum due on the policy, the defect is not cured by an admission in the answer of the death of the animal, where that fact alone was not sufficient to create a liability.</p>

<p>Appeal from special term.</p> <p>Action by Frederick S. Harlow against Hiram La Brun to dissolve a partnership. There was a judgment in favor of defendant, and plaintiff appeals.</p>

Lawrence county. Action by Martha L. Sanford and C. Ralph Sanford against Amelia B. Goodell, Eliza M. Goodell, Mary E. Goodell, and Earnest Danforth, for partition. From a judgment dismissing the complaint (28 N. Y. Supp. 129), plaintiffs appeal.

<p>Appeal from special term.</p> <p>Action by Josephine Van Olinda against Mary B. Hall. From an order denying a motion for a bill of particulars of plaintiff’s claim, defendant appeals.</p>

<p>1. Reference to Take Testimony.</p> <p>A reference cannot be made to take testimony to be used on the trial of an equity case.</p> <p>2. Trial—Reference to Take Testimony—Waiver of Objections.</p> <p>Appearance before a referee appointed to take testimony is not a waiver of the objection that the reference was unauthorized.</p>

Action by Max Hartman and others against the Manhattan Railway Company for an injunction and damages. There was a judgment in favor of plaintiffs, and defendant appeals.

<p>Forest Commission—Right to Maintain Certiorari.</p> <p>The forest commission, not being authorized by the statute from which it derives its powers (Laws 1885, c. 283; Laws 1893, c. 332) to maintain an action or special proceeding, cannot maintain certiorari in its own name, to compel the comptroller to cancel a tax sale.</p>

Certiorari by the forest commission to review the action of the comptroller of the state in canceling a tax sale. Quashed.

Action by Richard Bishop, as administrator of Clara B. Hopkins, deceased, against Helen E. Hendrick. From an order and judgment confirming in part the report of the referee appointed to assess plaintiff’s damages, and refusing to confirm in part said report, both parties appeal.

Action by Charles M. O’Neil against Jane Hester for inducing plaintiff’s wife to leave him. From an order denying a motion for leave to amend her answer so as to set up what defendant claims to be a bar to the action, and compel plaintiff to reply thereto, defendant appeals.

Action by George L. Taylor against the Blue Bidge Marble Company and others for specific performance of a contract, arid for an accounting. From an order requiring plaintiff to amend his complaint by separately stating and numbering two causes of action, plaintiff appeals.

Action by Sigmund Ashner against Max Abenheim and others to recover the* sum of $454.60, alleged to have been procured from plaintiff by defendants by false and fraudulent representations. The complaint was dismissed at the close of plaintiff’s case, and plaintiff moves for a new trial, on exceptions ordered to be heard at general term in the first instance.

Action by Charles Bloom against the P. .Cox Shoe Manufacturing Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by the People’s Trust Company, as executor of Eliza Smith, against John J. Smith and others, to construe a clause in the will of Eliza Smith, deceased. From a judgment construing the will (30 N. Y. Supp. 342), defendants John J. Smith, William E. Smith, John E. Mason, and Frederick Mason appeal.

Action by Samuel W. Milbank, as receiver, etc., against Helene De Riesthal and William C. Bowers, impleaded, to declare void certain judgments. From a judgment dismissing the complaint, plaintiff appeals.

Action by James J. Ward against the Metropolitan Elevated Railway Company and another. The complaint was dismissed on the merits, with costs, and plaintiff appeals.

Action by Mary D. Hatch and Edwards S. Sanford, as executors of Mary D. Sanford, against the Fourth National Bank of the City of New York and others. From a judgment dismissing the complaint, and directing defendant bank to pay to defendant Georgiana L. Crabb $2,364.19, and to deliver to defendant James H. Fay. a $1,000 bond, and awarding to defendant bank costs and an extra allowance against plaintiffs, defendant Fay and plaintiffs appeal.

Action by William T. Standen against William L. Brown for the cancellation of three bonds of plaintiff, executed and delivered by him to defendant, and for the return of certain collateral securities. The complaint was dismissed, and plaintiff appeals. July 28, 1892, the plaintiff was the owner of the following bonds and mortgages: B. & M. of Philip Godfrey, dated June 15, 1893, to sec. $ 700 & Int. B. & M. of Wm. H. & M. E. Stead, 320 & Int.

Action by Augustus D. Shepard against the Metropolitan Elevated Railway Company and the Manhattan Railway Company and another. From an order denying on its merits the prayer of a petition of the Western Union Telegraph Company to be made a party to the action, said telegraph company appeals.

Action by Mary Mercadante against the Manhattan Railway Company to enjoin the operation of defendant’s elevated railroad in front of premises No. 340 Bowery, and to recover damages for trespasses already committed by defendant by the operation of the road. From a judgment awarding plaintiff the sum of $830.30 as past damages, and $3,000 fee damages, defendant appeals. '

<p>Checks—Execution—Presumption as to Fillinq in Payee’s Name.</p> <p>In the absence of proof to the contrary, it will be presumed that the name of the payee appearing in a check was written in when the check was signed.</p>

Action by Matilda Teschemacher against August Lenz to dissolve a partnership and for an accounting. From an interlocutory and final judgment in favor of plaintiff, defendant appeals.

Action by Robert J. Dean and William Wills against Marshall S. Driggs. From so much of an order as disallowed the sum of $500 for legal services, and from so much of the order as disallowed the charge of $2,500 for professional services rendered in other proceedings, Edward S. Hatch appeals.

Action by Newman Cowen and others against Herman Einaldo, impleaded with others, to construe the will of Marks Einaldo, deceased. From a judgment construing the said will and holding its provisions valid (28 N. Y. Supp. 369), defendants appeal.

Action by David M. Blaustein, as administrator, against Eugene W. G-uindon and others. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes, defendants appeal.

<p>1. Libel and Slander—Privilege—Acts of Public Officers.</p> <p>The act of the trustees of a school in collecting evidence in respect to the conduct of the principal, and sending it to the board of education, which alone had power to remove the principal, is privileged, as within the line of their public duty.</p> <p>2. Same—Publication.</p> <p>Sending a copy of such evidence to the principal, in order that she might answer the charges against her, is not a publication.</p>

<p>Appeal from court of sessions, Suffolk county.</p> <p>Frederick Maxwell was convicted of violating the excise laws, and appeals.</p>

Coie against John E. Carl for conversion. From a judgment entered on the verdict directed by the court in favor of plaintiff, defendant appeals.

<p>L Libel and Slander—Description of Plaintiff.</p> <p>Plaintiff may sue for a libel contained in an article which describes him though it names another person.</p> <p>8. Statute of Limitations—Absence of Defendant—Proof of Return.</p> <p>Where the statute did not begin to run at the time the cause of action accrued because of defendant’s absence'from the state, the burden is on defendant to show, in order to set the statute running, that his return was public or notorious, so that plaintiff either knew of it, or by due diligence could have ascertained it.</p>

Application by Roswell W. Keene for a writ of mandamus to the board of supervisors of Queens county and others. From an order allowing relator to tax costs of trial at special term, and costs and disbursements of appeal to the general term, and from a judgment sustaining a demurrer to the petition (24 N. Y. Supp. 503), the board of supervisors appeals.

Action by Milton T. Woolley against Charles Loewenstein and another to recover broker’s commissions. From a judgment entered on a verdict in favor of plaintiff, defendants appeal.

Proceeding by Madison D. Shipman, as administrator with the will* annexed of Azariah B. Shipman, to compel Jacob A. Nottingham,, as executor of the will of Emily G. Shipman, to file an account of her proceedings as executor of Azariah B. Shipman. Jacob A. Nottingham asked that there be a judicial settlement of the accounts of his-testatrix as executor, and a citation therefor was issued and served.

<p>Appeal from special term, Kings county.</p> <p>Action by Richard A. Roberts and others against the New York & New England Railroad Company and the Boston, Hartford & Erie Railroad Company and others. From a judgment sustaining a demurrer to the amended complaint, plaintiffs appeal.</p>

. Action by Emil Schopen against Homer E. Baldwin to recover for services rendered by plaintiff as a physician. From a judgment entered on a verdict in favor of plaintiff, defendant appeals.

<p>Appeal from special term, Kings county.</p> <p>Action by Cornelius F. Kingsland against the Kings County Elevated Railway Company. There was a judgment in favor of plaintiff, and defendant appeals.</p>

Action by Anton Spiehler against Leopold N. Asiel. From an order adjudging plaintiff guilty of contempt, and from an order denying a motion to set aside said order, plaintiff appeals.

<p>Principal and Agent—Husband and Wife.</p> <p>In an action to charge a wife for goods sold to her husband, and used by him in his business of farming, the profits of which were received and the expenses paid by him, evidence that defendant was the owner of the land is not sufficient to show that her husband was her agent</p>

<p>Release—Necessity op Pleading.</p> <p>A release of a cause of action is an affirmative defense, and must be-pleaded.</p>

<p>1. Estoppel—Accounting by Executors—Proceeds op Realty.</p> <p>An objection made on an accounting by executors that they could not account in the surrogate’s court for the proceeds of realty does not estopthe objecting parties afterwards to claim that such proceeds were personalty, and to demand an accounting.</p> <p>•2. Conversion—Power of Sale in Will.</p> <p>A power given to executors to sell realty as in their judgment might be best for the estate is given for the purpose of paying debts, and converts the realty into personalty, where the amount of testatrix’s debts exceeded the value of the personalty. 26 N. Y. Supp. 333, reversed.</p>

<p>1. Alimony—Stipulation as to Amount.</p> <p>Where a deed of separation made pending an action for separation provides that the husband shall pay the wife $50 per week for her support, and that, on default, an order might be made granting alimony at the same rate, the husband cannot on a motion for alimony pendente lite object that his wife had not a meritorious cause of action, or that $50 per week would be excessive.</p> <p>2. Same—Time op Allowance.</p> <p>Alimony pendente lite can be allowed only from the time notice of an application for its payment is given.</p>

<p>1. Municipal Corporations—Revieav op Assessments—Certiorari.</p> <p>Laws 1880. c. 209, providing for a review on certiorari of the valuation of property, or the legality of placing it on the roll for the purpose of taxation, does not affect the right to a common-law writ of certiorari to review a final levy of an assessment</p> <p>2. Same—Notice to Owners.</p> <p>A sale under an assessment made pursuant to a statute which does not require notice to be given to the owners is void.</p>

Applications by Edwin W. Fiske and Edson Lewis, respectively, for mandamus to William H. Devermann and another. The applications were denied, and relator in each case appeals.

<p>Trusts—Assignments to Take Effect in Futuro.</p> <p>An instrument executed by a husband recited that he assigned to his wife certain bonds theretofore deposited by him in a bank, and directed the bank to deliver the bonds to his wife in the event that she should survive him, but declared that the assignment should not take effect unless he should die before his wife. Held, that a valid trust in favor of the wife was created.</p>

Action by Samuel W. Hastings, as constable, against Jacob Nagel and others, substituted in place of John Courtney. There was a judgment in favor of defendants, and plaintiff appeals.

Action by Michael Kline against Charles Green. From a judgment of the county court (24 N. Y. Supp. S31) affirming a judgment in favor of plaintiff rendered in a justice court, defendant appeals.

Action by the Grand Kapids Veneer Works against George B. Forsythe and another. From a judgment entered on a verdict in favor of defendants, and from an order denying a motion for a new trial plaintiff appeals.

Judicial settlement of the accounts of Edward M. Grout as committee of the property of Anthony Crouter, a lunatic. ' From an order denying an application for an accounting, and from an order denying a motion for an accounting, the committee appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Thomas W. Robertson against the Ongley Electric Company on a promissory note. The complaint was dismissed, and plaintiff appeals.</p>

Action by Cornelius S. Bushnell against William W. Durant. From an order changing place oí trial from the county of New York to the county of Hamilton, plaintiff appeals.

Action by Anthony Day, as executor of Charles S. Scott, deceased, to recover damages for breach of covenant in a lease. There was a verdict in favor of plaintiff, and defendant moves for a new trial on exceptions ordered to be heard at general term in the first instance.

Action by Paul G. Grening against George Malcom to recover the value of services alleged to have been rendered by plaintiff to defendant. From an order granting a motion made on the minutes to set aside a verdict for $7,000 in favor of plaintiff, and for a new trial on the ground that the damages were excessive, and that the verdict was contrary to the evidence and contrary to the law, plaintiff appeals.

<p>Partnership—Liquidation—Compensation.</p> <p>A partner who liquidates the affairs of the firm is not entitled to compensation, in the absence of an agreement therefor.</p>

<p>Appeal from circuit court, Kangs county.</p> <p>Action by Thomas Reilly against the Atlas Iron Construction Company for personal injuries. The complaint was dismissed, and plaintiff appeals.</p>

Actions by John W. Macy, as trustee of Martha A. Guión, against David T. Williams and another, executors of Benjamin L. Guión, deceased, and by said Macy, as trustee of Alfred E. Hildrick, against the same defendants. The complaint was dismissed in each case/ and plaintiff appeals.

Proceeding to lav out a highway at Tappan, in the town of Orangetown, Rockland county. An order was made in accordance with petition, and petitioners now move for confirmation thereof.

Action by Nicholas Powers against the Prudential Insurance Company of America. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by John E. Norcross, receiver of Lewis B. Stegman, substituted as plaintiff in place of said Stegman, by whom the action was originally brought, against Henry S. Hollingsworth, to recover money alleged to be due on a bond. From a judgment entered on a verdict in favor of plaintiff for $3,118.84 and costs, defendant appeals.

Action by Mortimer S. Brown against James H. Symes to recover a balance alleged to be due on a loan by plaintiff to defendant. The complaint was dismissed, and plaintiff appeals.

Proceeding by the Seaside & Brooklyn Bridge Elevated Railway Company to acquire title to lands of the South Reformed Dutch Church on Third avenue for the purpose of the railroad. From an order confirming an award of $1,500, said church appeals.

<p>Contributory Negligence—Burden of Proof.</p> <p>Absence of contributory negligence cannot be inferred from proof of the accident and of negligence on the part of defendant, but it must be affirmatively shown by plaintiff.</p>

Action by Francis D. Carley against J. Kennedy Tod and others to set aside a transaction had between the parties in September, 1890. There was a judgment in favor of defendants, and plaintiff appeals.

Action by John Doherty against Charles S. Sweetser for personal injuries. A judgment was rendered in favor of plaintiff, and defendant moves for a new triad, on exceptions ordered to be heard at general term in the first instance.

<p>Appeal from special term, Kings county.</p> <p>Action by Thomas F. Brown against Anne Brown. There was a judgment in favor of plaintiff, and defendant appeals.</p>

<p>Appeal from circuit court, Kings county.</p> <p>Action by Elizabeth S. Edgecomb against Sarah 0. Buckhout, administratrix of Eckford Webb, deceased. From a judgment entered on a verdict in favor of plaintiff for $8,330, defendant appeals.</p>

<p>L Municipal Corporations—Improvements—Validity of Resolution.</p> <p>A resolution ol tlie common council directing the opening of a street is fatally defective where it fails to specify according to which of two plans then on file the street is to be laid out, and the defect is not cured by the action of the city clerk in afterwards attaching to the resolution a map not before the council at the time, nor by parol evidence of the aldermen as to what map they had in mind.</p> <p>2. Same—Assessment District—Injunction.</p> <p>Where land benefited by an improvement is excluded from the assessment district, the owner of land included in the district may enjoin the work as creating a cloud on his title.</p>

Action by Robert H. Sherwood against Maitland E. Graves.. From a judgment entered on a verdict in favor of plaintiff, and from an order denving a motion for a new trial, defendant appeals.

<p>Equity—Jurisdiction—Determining Right to Chattels.</p> <p>An action in equity will not lie to determine the several rights and interests o£ plaintiff and defendants in certain chattels in possession of defendants, some of which chattels are alleged to be the property of plaintiff and some to be the property of defendants.</p>

<p>Appeal from special term, Westchester county.</p> <p>Action by Cora E. Bliven against George H. Robinson and others, as executors and trustees. The complaint was dismissed on the merits, and plaintiff appeals.</p>

Motion to punish for contempt certain of respondents in an appeal from the decree admitting to probate the will of Myra Clark Gaines, deceased.

<p>Appeal from special term, Westchester county.</p> <p>Action by Cordelia Armstrong, as guardian, against Samuel Warren. There was a judgment in favor of plaintiff, and defendant appeals.</p>

Action by Charles O. Bassett against Thomas Henry French to recover damages for wrongful discharge. The complaint set out the contract of service by which the defendant refused to take plaintiff into his employment. Defendant made no answer, and thereupon a reference was ordered to assess damages. The assessment was had before expiration of the stipulated term of employment.

<p>1. Building Contracts—Waiver of Ar'-hitect’s Certificate.</p> <p>Facts constituting a waiver of the architect’s certificate in a building contract</p> <p>3. Same—Evidence—Inferences.</p> <p>When the uncontroverted evidence requires an inference of such waiver, it is legal error to draw the contrary inference.</p> <p>8. Appeal—Exceptions.</p> <p>An exception to a finding of fact without proof presents the point of legal error in the finding.</p> <p>(Syllabus by the Court)</p>

Action by Charles E. Mead and others against H. Edgar Hartwell and others. From an order of the city court (28 N. Y. Supp. 1150) affirming an order denying a motion to vacate an order shortening the time to answer, defendants appeal.

Action by Bernard Mahon against the mayor, aldermen, and commonalty of the city of New York. From a judgment in favor of plaintiff for $19,991.39, defendant appeals.

Action by Ella Cram against the Springer Lithographing Company. From a judgment of the city court (30 H. Y. Supp. 1130), affirming a judgment in favor of plaintiff, defendant appeals.

<p>L Wills—Capacity to Make.</p> <p>The mental and physical weakness of old age does not render one incapable of making a will, if he is rational, and has sufficient capacity to apprehend the condition of his property, his relation to the objects of his bounty, and the scope and bearing of the will.</p> <p>2. Same—Review on Facts—Trial by Jury.</p> <p>On reversal of a decision rejecting a will on the ground that it was procured by undue influence, such question should be tried by jury.</p>

<p>1. Assumption or Contract—Corporation to Succeed Firm.</p> <p>A corporation to which was conveyed and transferred all the property of a partnership, but which did not undertake to pay its debts, does not, by completing all the work undertaken by the firm, assume a contract made by it with a third person for the supervision of such work.</p> <p>8. Corporations—Transaction or Business—Necessity or Resolution.</p> <p>Where the stock subscribed by three of the five incorporators was given to them by the other two in order to qualify them for the purposes of incorporation, and three of such number compose the officers of the corporation, its ordinary business may be transacted without the formality of resolutions.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Austin Baldwin and Radcliff Baldwin against Albert Von Micheroux and others. From an interlocutory judgment in favor of plaintiffs (25 N. Y. Supp. 857), defendants appeal.</p>

Action by James Brand against Henry J. Newton for the price of goods sold. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Action by Hugh J. Grant, as temporary receiver of the St. Nicholas Bank of New York, against the George 0. Treadwell Com- . pany, impleaded with George H. Treadwell. The complaint was dismissed, and plaintiff moves for a new trial, on exceptions ordered to be heard at general term in the first instance.

Action by John Gray and Robert J. Gray against the Central Railroad Company of New Jersey. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

<p>Appeal from circuit court, New York county.</p> <p>Action by Edward S. Stokes against John W. Mackay and Hector De Castro. From a judgment entered on a verdict in favor of plaintiff for $94,006.53, defendants appeal.</p>

Action by the Moffett, Hodgkins & Clarke Company against the Peoria Water Company. From an order dismissing the action in default of compliance with conditions, defendant appeals.

Action by the mayor, etc., of the city of New York, against the New York Refrigerating Construction Company and others. There was a judgment in favor of plaintiff (28 N. Y. Supp. 614), and defendants appeal.

Action by Donald Mackay, as executor of Elizabeth R B. King, against Rowland B. Dennington, as administrator with the will annexed of Jane E. Jessup, impleaded with others. From an order denying a motion to correct the final judgment defendant Rowland B. Dennington appeals.

Action by Evelena Dunning against Edgar F. Dunning and Lillie E. Henderson, impleaded, for construction of the will of William Dunning, deceased. From a judgment in favor of plaintiff, and from an order granting an extra allowance, defendants appeal. Judgment modified.

<p>1. Pleading—Variance.</p> <p>Where the existence of an alleged contract is in issue, evidence that the contract was procured by fraudulent representations or acts is not admissible.</p> <p>2. Contracts—Action on—Signing without Knowing Contents.</p> <p>It is no defense to an action on a contract that defendant signed it with- . out knowing what it contained, and without intending to agree to it</p>

Action by Annie A. E. Moffett against Mary S. Elmendorf and others for partition. From a judgment construing the will of Samuel B. Duryea, and making partition, defendants Annie O. King and another appeal.

<p>Appeal from special term, New York county.</p> <p>Application by the board of street opening relative to 128th street, between Amsterdam avenue and Convent avenue, in the Twelfth ward of the city of New York. From an order affirming the report of the commissioners, and refusing to discontinue proceedings, the D. G-. Yuengling Brewing Company and the Third. Avenue Railroad Company appeal.</p>

Application by the commissioners of the department of public parks of the city of New York, relative to acquiring title, for the use of the public, to land required for the widening of Biverside avenue, between 127th street and Claremont Place in the 12th ward of the city of New York, pursuant to Laws 1892, c. 548. From an order confirming the report of the commissioners of appraisal, certain landowners appeal.

Action by Louis Munzinger against the Courier Company for libel, commenced by service of summons and complaint on George Bleistein, president of .said Courier Company. From an order denying a motion to amend the summons and complaint, plaintiff appeals.

Action by Effie B. Oliver against Margaret R. French and others. From an order denying a motion to modify the judgment and decree entered in the action, plaintiff appeals.

<p>Guaranty—Compromise between Guarantor and Creditor.</p> <p>A mortgagee, pursuant to an arrangement with the mortgagor, assigned the bond and mortgage to one B., and received from the mortgagor a sum in cash and an assignment of a bond made by two other persons, secured by a second mortgage on the premises covered by the first mortgage, together with a guaranty of collection by one C., agreeing, on receiving the balance of his debt, either by payment from the mortgagor, or from the bond secured by a second mortgage or the guaranty of C., to assign the bond and second mortgage and guaranty to the mortgagor; and, in case he should receive the amount of the bond and second mortgage, to pay the excess over his debt to the mortgagor. Afterwards, the mortgagee compromised with C. for less than the amount due, in the belief that C. was insolvent, which afterwards proved to be a mistake. Held, that the mortgagee was liable to the mortgagor for the difference between his debt and the amount of the bond guarantied by C.</p>

Proceeding by the Hornellsville Electric Railway Company against the New York, Lake Erie & Western Railroad Company tti determine the right and manner of intersection of defendant railroad company by that of plaintiff in Canisteo street, in the city of Hornellsville.

<p>Appeal from special term, Monroe county.</p> <p>Application by John Slater for writ of mandamus to Jacob Smith, Herbert D. Rowley, Jarvis M. Truesdale, Owen Rigney, Henry Burrows, and Alonzo P. Britton, composing the town board of the town of Greece, requiring defendants to audit and allow relator’s claim against said town. Prom a final order (after verdict at circuit, on issues of fact arising on alternative writ and return thereto) directing a peremptory writ of mandamus to issue, defendants appeal.</p>

Action by Mary E. Riley against Ashbel W. Riley and Anna Bentley, as executors of Ashbel W. Riley, deceased. There was a judgment in favor of plaintiff, and defendants appeal. The plaintiff was the wife of the testator, who negotiated a sale to the Union & Advertiser Company of certain land at the price of $25,000. The plaintiff declined to execute a deed until the company agreed to pay, in addition to that sum, $2,500 to her for the release of her dower interest in the land.

<p>Highways—Doty to Erect Barriers—Question for Jury.</p> <p>It is a question for the jury whether it was negligence not to erect a harrier along a highway at the place where the track was only 7 feet wide, with a space 3 feet wide on the same level, then a slope of 13 feet with a fall of 2 feet, then a precipitous fall of 4 feet, and then a slope of 16 feet vertically and 31 feet horizontally.</p>

Application by Edward M. Goring for writ of mandamus to the-president and trustees of the village of Wappinger’s Falls, to compel, them to recognize relator as police justice of said village, and to fix: his salary. The application was granted (30 N. Y. Supp. 265), and .defendants appeal.

Submission, without action, of a controversy between Emma 0. Tweddell, plaintiff,-and the Hew York Life Insurance & Trust Oom: ,pany and Charles H. Coffin, defendants, on an agreed statement of facts. Judgment for plaintiff. The following facts are submitted by both parties: “Emma S. Clark, the -aunt of the plaintiff, departed this life, being a resident of Suffolk county, New.

Petition by E. B. Lynch, as administrator of Sophia Lynch, deceased, to discover property belonging to the estate of said decedent. From an order directing the examination of George W. Lynch as to property alleged to be withheld from the administrator, said George W. Lynch appeals.

Certiorari by the Commercial Mutual Insurance Company to review an assessment of the tax commissioners of the city of New York. From an order quashing the writ, relator appeals.

Action by Aaron M. Klaw against Samuel W. Ehrich and Julius S. Ehrich. The complaint was dismissed, and defendant moves for a new trial on exceptions ordered to be heard at general term in the first instance. This action was begun April 11, 1892, by an employe against his employers, to recover damages for an alleged wrongful discharge from their service.

<p>Permissive Statutes—Auditing Claim against City.</p> <p>Laws 1888, c. 568, as amended by Laws 1891, c. 291, providing that the board of estimate of New York City “is hereby authorized to examine into the facts relating to” a certain claim against the city for work done which had been adjudged invalid because the comptroller did not join with the mayor in ordering the work, is merely permissive, and the board cannot be compelled by mandamus to allow the claim.</p>

Certiorari by Bryant W. Dinsmore to review the determination of Thomas F. Gilroy and others, constituting the board of estimate and appraisement of the city of New York, that the relator is not entitled to recover any sum for advertising.

Action by Elias M. Ball and John W. Day against George B. Stover and Jennie A. McCowatt, as surviving partner of the firm of W. R. McCowatt & Co., for commissions on goods sold by plaintiffs for defendants. From a judgment in favor of plaintiffs for $2,243.97, defendants appeal.

Action by Catherine T. Smith, Andrew J. Smith, John H. Murphy, and Edward F. Murphy, executors of Hugh Smith, deceased, against the mayor, aldermen and commonalty of the city of New York, to recover $8,512.72, paid by plaintiffs to defendant for two sewer assessments. Plaintiffs recovered the amount of one of the assessments, and were nonsuited as to the other. Both parties appeal.

Action by Bernhard Rausch against Katharina Rausch and others to construe the will of Michael Rausch, deceased. Michael Rausch died, leaving the defendant Katharina Rausch, his widow, and one son, the plaintiff. The latter had two children, named in the testator’s will which was admitted to probate.

Action by Eward Burns against Augustin Walsh to recover for services rendered as engineer, and in taking care of defendant’s premises No. 3 and 5 East Eighty-Fourth street, in the city of New York. From a judgment of the city court (30 N. Y. Supp. 807) affirming a judgment in favor of plaintiff, entered on a verdict for $145, damages, besides costs, defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by the Harlem Co-operative Building Sc Loan Association against the Mercantile Trust Company. There was a judgment in favor of plaintiff, and defendant appeals.</p>

Action by the Hospital Supply Company against John O’Neill. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from city court, general term.</p> <p>Action by Harris Lyons against Julius Miller. From a judgment ■of the city court (30 N. Y. Supp. 832) affirming a judgment in favor of .plaintiff, defendant appeals.</p>

Action by Florian Rohe and another against the Third Avenue Railroad Company. From a judgment in favor of defendant rendered by the justice without a jury, plaintiffs appeal.

Action by Mary G-. Shaw against Bichard Mansfield for breach of a contract of employment. From a judgment in favor of plaintiff, rendered by the justice without a jury, defendant appeals.

<p>Evidence—Competency.</p> <p>Where the evidence was conflicting as to whether plaintiff had paid money to or for defendant on certain vouchers, which she produced at the trial, or whether the vouchers had been given by defendant to one L., plaintiff’s former employer, and had been abstracted by plaintiff, evidence of L.’s bookkeeper, as to the alleged taking of the vouchers, is admissible.</p>

Action by the Price Printing House against the Jewelers’ Review Publishing Company for breach of a contract. From a judgment in favor of plaintiff, rendered by the justice without a jury, defendant appeals.

<p>1. Negligence—Dangerous Premises—Res Ipsa Loquitur.</p> <p>The mere fact that the rubber covering on the stairs of defendant's elevated railroad station was out of repair, and caused plaintiff to fall, without any evidence that such condition existed before the accident, is not sufficient to charge defendant with negligence, and therefore the maxim “res ipsa loquitur” does not apply. 25 N. Y. Supp. 753, affirmed.</p> <p>3. Same—Evidence.</p> <p>In an action for injuries caused by falling down the stairs of defendant’s elevated railroad station, plaintiff’s evidence merely showed that her fall was caused by catching her foot on one of the steps, and that afterwards the rubber covering on one of the steps was observed to be loose; but no one saw her trip on the loose cover, and there was no evidence as to its condition before the accident. Held, that the complaint was properly dismissed for want of proof of negligence. 25 N. Y. Supp. 753, affirmed.</p>

<p>Appeal from Second district court.</p> <p>Summary proceedings by Edward Burrell against Do Sim, Yuen Yun, and Jim Ham. There was a judgment in favor of plaintiff, and defendants appeal.</p>

Action by Edmund S. Whitman and another against Edwin L. Johnson. From an order denying plaintiffs’ motion to set aside the service of defendant’s notice of entry- of judgment, and from an order which resettled an order dated April 9, 1894, but entered June 9, 1894, granting a stay, plaintiffs appeal.

Action by William Roe against Thomas 'E. Crimmins to recover damages sustained by plaintiff through the alleged negligence of defendant in maintaining an open and unguarded excavation in Park Row, near Frankfort street, in the city of New York, during the construction of the Third Avenue Cable road. From a judgment of the city court (28 N. Y. Supp. 750) affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals.

<p>Appeal from Sixth district court.</p> <p>Action by the Equitable Gaslight Company against Sarah- H.. French. There was a judgment in favor of defendant, and plaintiff appeals.</p>

Action by Katherine Jennings against Henry H. Miller, impleaded. From a judgment in favor of plaintiff, rendered by the justice without a jury, defendant Miller appeals.

Action by John Thomas and others against the Societa Italiana di Mutuo Soccorso. From a judgment in favor of plaintiffs, rendered by the justice without a jury, defendant appeals.

Action by Hyman Israel against the Metropolitan Elevated Bail-road Company and another for an injunction and damages. The complaint was dismissed on the merits, with findings of fact and law, and plaintiff appeals.

Action by Abram P. Kerley against Oscar Mayer for.rent reserved by a written lease made for a term of five years from May 1, 1892, at a rental of $2,000 per annum, payable monthly in advance. Plaintiff sued as assignee for the first six months’ rent. There was a judgment in favor of plaintiff, and defendant appeals.

■1 Action by Joseph J. Kittel against Henry Stueve to compel defendant to accept the fee of the premises described in the complaint, and to pay for the same. The premises in question were among several lots of land sold by auction at Mt. Vernon on June 25, 1892, and defendant bid in at the sale the premises in question. There was a judgment in favor of plaintiff, and defendant appeals.

Action by Edward Hensey against Dulany Howland for conversion. From a judgment in favor of plaintiff, rendered by the justice without a jury, defendant appeals.

Action by James Burke and another against John Slattery for conversion of a savings bank book. The complaint was dismissed, and plaintiffs appeal.

<p>Appeal from First district court.</p> <p>Action by Theodore L. Hermann against Thomas B. Van Burén.. There was a judgment in favor of plaintiff, and defendant appeals..</p>

<p>Appeal from Eighth district court.</p> <p>Action by Eugenie Ruffin against Salvatore Ruggiero. There was a judgment in favor of defendant, and plaintiff appeals.</p>

<p>Appeal from trial term.</p> <p>Action by Charles H. Reynolds against Alfred Van Beuren and others. From a judgment entered on a verdict in favor of plaintiff, defendants appeal.</p>

<p>Appeal from equity term.</p> <p>Action by John M. Schmidt against the Manhattan Railway Company. There was a judgment in favor of plaintiff, and defendant -appeals.</p>

Action by Mary Walsh, by her guardian, Julia Walsh, against the Commercial Steam Laundry Company, Limited. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Replevin—Damages for Detention.</p> <p>In replevin the damages recoverable for the detention are interest on the value of the property and the amount of the depreciation thereof, or the value of the use where the property has a usable value.</p>

Action by Mary Ann Diehl and others against the Metropolitan Elevated Railway Company and another. There was a judgment in favor of plaintiffs, and defendants appeal.

<p>Appeal from equity term.</p> <p>Action by Helen W. Bacon against Sarah L. Heywood. There was a judgment in favor of plaintiff, and defendant appeals.</p>

Action by Peter Higgins against the Western Union Telegraph Company. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, defendant appeals.

Action by William W. Clendenning against Richard Lindner. The judgment in favor of plaintiff was affirmed on appeal (30 N. Y. Supp. 543), and defendant now moves to resettle the case before an appeal to the court of appeals.

<p>Building Contract—Architect’s Certificate.</p> <p>Where a contract provides that payments shall be made on certificates signed by the architect, and that his decision as to matters in dispute shall be final and conclusive, the architect’s certificate is conclusive as to matters stated therein, unless fraud is shown.</p>

<p>Pleading—Answer—Negative Pregnant.</p> <p>An allegation in a complaint that “plaintiff duly performed all the conditions of” the insurance policies sued on, and “presented to the attorney of defendant, pursuant to tlie terms of said policies, due notice and proofs of the fire and loss aforesaid,” is not put in issue by denials in the answer that “plaintiff duly performed all the conditions of each of the said policies,” and that “plaintiff presented to the attorney of defendant, pursuant to the terms of said policies, duo notice and proofs of the fire and loss aforesaid,” but the only issue tendered is that one of the conditions of one of the policies was not performed.</p>

<p>Fraudulent Conveyances—Husband and Wife.</p> <p>A transfer by an insolvent husband to his wife, in consideration of an honest debt to her, is valid as to other creditors.</p>

Action by Marie H. Frohman against Charles Dickinson, as executor of William W. Jones, deceased. Plaintiff moves for judgment on a verdict directed in her favor, subject to the opinion of the court at general term.

<p>1. Assumpsit—Money Paid Out and Expended.</p> <p>Where a consignee was compelled to pay money due to the owners of the ship from the charterer on account of the hire of the ship, for which the owners had a lien on the cargo, the amount so paid may he recovered, as money paid for the charterer’s use.</p> <p>2. Evidence—Pilesumftions—Payment op Debts.</p> <p>In an action by a consignee against the charterer of a ship to recover money which plaintiff was compelled to pay to the owners of the ship on account of the ship hire, for which the owners had a lien on the cargo, plaintiff need not prove payment of freight to the charterer, as a person is presumed to have paid his debts.</p>

Action by Bridget Wealon against Mortimer A. Frisbie. From-an interlocutory judgment overruling a demurrer to. the complaint, defendant appeals.

<p>Negligence—Evidence.</p> <p>In an action against a gas company for injuries caused by an explosion of gas, the evidence does not show negligence on the part of defendant where it appears that the gas was found leaking in the cellar of a house; that one of defendant's employes was notified, and he immediately went into the cellar to ascertain the whereabouts of the leak; and that the explosion occurred almost as soon as he entered the cellar, though he took no light with him, and did nothing to cause the explosion.</p>

Action by Sandor Kohn against the Manhattan Railway Company for an injunction and damages. There was a judgment in favor of plaintiff, and defendant appeals.

Action by Thomas Collins against Thomas E. Crimmins for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Patrick J. McLarney against the Long Island Eailroad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Barbara Sebald against James Mulholland to recover compensation for the use of a portion of a party wall standing on the lots of both parties, and to enjoin the maintenance of an extension of the wall, or, in the alternative, to recover damages for such maintenance. The complaint was dismissed on the merits, and a counterclaim set up by defendant was denied (26 U. Y. Supp. 913), and both parties appeal.

Action by Charles Wehle, executor, and others against the United States Mutual Accident Association. The court directed a verdict in favor of defendant, and ordered plaintiffs’ exceptions to be heard at general term in the first instance. The action was upon an accident insurance policy issued to plaintiffs’ testator, Henry Wehle, whereby the defendant insured him in the sum of $10,000 against bodily injury through violent and accidental means, from which, death should ensue.

Action by Hoses Lindheim against Henry Buys, Jr. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals.

Action by Hannah M. Lawler, as administrator of John Lawler, deceased, against the National Life Association of Hartford, Conn., on a life insurance policy. From a judgment entered on a verdict for plaintiff, subject to the opinion of the court, and from an order defying a motion to set aside the verdict, defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Claim by Mary Henning against Libbie Miller, as administratrix of Catherine Barbara Hestel, deceased. From a judgment in favor of plaintiff, and from an order awarding costs to plaintiff, defendant appeals.</p>

Action by Isaac Altman and Julius Altman, as administrators of Jacob Altman, deceased, against Eli Hofeller and others. There was a judgment in favor of plaintiffs, and defendant Eli Hofeller appeals.

Action by Seneca H. Gage against Tirzah M. Gage and Esther C. Sawyer. From a judgment entered on an order dismissing the complaint on the opening of a trial, plaintiff appeals.

<p>Appeal from Ontario county court.</p> <p>Action by Lewis Richards against Lewis B. Ross. From a judgment reversing a judgment rendered in a justice’s court, plaintiff appeals.</p>

<p>Witness—Privileged Communication—Physician and Patient.</p> <p>In an action for medical services, the provision of Code Civ. Proc. § 834, that the physician shall not disclose information required while attending a patient in his professional capacity, is not waived by the interposition of a general denial; and therefore it is error to permit the physician to testify as to what defendant said to him about his physical affliction.</p>

<p>Justices oe the Peace—Unauthorized Continuance—Appearance.</p> <p>Where defendant in a justice court objected to a second adjournment on the ground that the court had no authority to grant it, and the return shows that, on the adjourned day, “parties appeared and answered. Defendant offered the objections, in writing, his counsel made to the adjournment, and went away,”—the objection is not waived, as the return shows that defendant’s appearance was only-for the purpose of filing the objections.</p>

Action by Lotila Herrington, as administratrix oí Wallace Herrington, deceased, against the Lake Shore & Michigan Southern Railway Company. Plaintiff moves for a new trial, on exceptions ordered to be heard in the general term in the first instance, after verdict for defendant, directed by the court at the Erie circuit.

Action by Minnie Wheadon against Edward Huntington. From an order granting a new trial, made on the minutes after a nonsuit, defendant appeals.

Seeley against Arthur M. Bisgrove. From a judgment reversing a judgment in favor of defendant, rendered in the justice’s court, defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by Henry S. Danolds against James H. Lord. From a judgment in favor of defendant, entered in Monroe county, plaintiff appeals.</p>

Action by Margaretta F. Johnson, as executrix, against William B. Sirret and Augustus F. Seheu, impleaded with one Morganstern. From a judgment entered on the decision and findings of the court in favor of plaintiff, a jury being waived, defendants appeal.

Action by William Skipworth and another against John Deyell.From a judgment entered on a verdict in favor of plaintiffs, and from, an order denying a motion for a new trial on the minutes of court,, defendant appeals.

<p>Mandamus—To Compel Execution of Contract—Municipal Officers.</p> <p>The common council directed a committee to advertise for proposals for certain work, and to let it to the lowest bidder, and directed the mayor to execute the contract. After relator’s proposal had been accepted, the common council reconsidered its action, and indefinitely postponed the matter. Held, that mandamus to compel the mayor to execute the contract would not lie, and relator’s remedy was by an action against the city for damages.</p>

Action by the Mechanics’ Savings Bank against De Villo W. Selye and others. Prom an order confirming the report of a referee in proceeding to obtain surplus money arising under a sale of foreclosure, Josephine L. Parker appeals.

Action by Simon Schrank against Rochester Railway Company.From a judgment entered on a verdict in favor of plaintiff, and from, an order denying a motion for a new trial, made on the minutes of the court, defendant appeals.

<p>Appeal from special term, Erie county.</p> <p>Action by Walter G. Smith, as assignee, etc., against George R. 0. Smith. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals.</p>

<p>jhmEL and Slander—Words Actionable per Se.</p> <p>It is libelous per se to say of a person that he is a member of a “gang” which had entered into a scheme to obtain property by improper methods.</p>

Proceeding for the settlement of the accounts of Hadley Jones as assignee for the benefit of creditors of William Sutcliff. From a decree settling the assignee’s accounts, and adjudging that he pay to Samuel K. Nestor, a creditor of Sutcliff, the sum of $3,453.74 and costs, said Nestor appeals.

Action by Ida Mggli against Frank X. Foehry and another. From a judgment entered on a verdict in favor of defendants, and from an order denying a motion for a new trial, made on the minutes of the court, plaintiff appeals.

Action by George W. Crouch, Sr., against the Trimby & Brewster Shoe Company. From a judgment entered on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. The defendant was a corporation engaged in manufacturing boots and shoes in the city of Rochester.

<p>Change of Venue—Convenience of Witnesses.</p> <p>Change of venue for convenience of witnesses will not be granted, where the moving affidavits do not state the reasons for affiant’s belief that the persons named are necessary and material witnesses.</p>

Claim by Herbert Beattie, as executor of William Beattie, deceased, against Henry C. Beattie and Thomas B. Wilson, as administrators of Jane Beattie, deceased. The claim was disputed by defendants, and referred, under the statute. From a judgment in favor of plaintiff, entered in the Ontario clerk’s office, defendants appeal.

Action by Ella Terwilliger against the Industrial Benefit Association. From a judgment- entered on a verdict in favor of plaintiff, and from an order denying a new trial, made on the minutes, defendant appeals.

Petition by James C. Wing and others for an order directing the committee of a lunatic to pay a judgment recovered by respondents before inquisition found, but upon which execution was-not issued until after the appointment of the committee. The petition was granted, and the committee appeals.

<p>Appeal from court of sessions, Ontario county.</p> <p>Bastardy proceeding on the relation of J. Tuttle Kenfield, over-seer of the .poor, against Frank E. Lyon. From a judgment affirming an order of filiation, made by two justices of the peace in ■the town of Naples, defendant appeals.</p>

Action by the Union Bank of Rochester against William Wallace Gilbert, impleaded, etc. From a judgment in favor of plaintiff, and from an order denying a motion for new trial, made on the minutes of the court, defendant Gilbert appeals.

Action by Edward E. Foreman against the Union & Advertiser Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court, defendant appeals.

Action by George R Losey and others against Arthur G. Stanley and Leonora J. Stanley, by guardian, and others, to foreclose a mortgage. There was a judgment in favor of plaintiffs, and the infant defendants appeal.

Action by Emma M. Morgan against Daniel W. Powers and others. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendants appeal.

Certiorari by Victoria A. Green against Ira W. Hall and others, constituting the board of assessors of the village of Canisteo, to review a tax assessment. From an order denying the prayer oí the petition, and quashing the writ of certiorari, the relator appeals.

<p>Appeal from Monroe county court.</p> <p>Application by Margaret Dean for an order directing payment to her of money paid into court by John D. Rutledge. From an order vacating an ex parte order directing such payment, petitioner appeals.</p>

Action by Bridget Tehan against William H. Tehan, as executor of James Deering, deceased, and others. There was a judgment in favor of plaintiff, and defendants James Deering, Jr., and Patrick Deering appeal.

<p>Appeal from Monroe county court.</p> <p>Action by Henry H. Craig and Eli M. Upton against Frank J. Butler. The action was first tried in the municipal court of Rochester, and appealed to the county court for a new trial. From a judgment entered on the findings and decision of the court in favor of plaintiffs, a trial by jury having been waived, defendant appeals.</p>

Action by the Goodyear’s India Rubber Glove Manufacturing Company against Frank B. Gorham and Benjamin M. Wilcox, impleaded. From an order granting discovery of a letter book of the firm of Pitt & Esser, in possession of defendants, defendants appeal.

<p>Malpractice—Evidence—Reputation fob Skill.</p> <p>Defendant cannot show that he was generally reputed to possess a high degree of skill in his profession, where plaintiff did not allege or offer to prove that he lacked ordinary skill. Carpenter v. Blake, 60 Barb. 490, 50 N. Y. 696, explained.</p>

Actions by Edward H. Hawke against Madison G-. Hawke and others, and by Elizabeth H. Wilson against Madison G. Hawke and others. Plaintiff in the first-entitled action was a son of Edward H. Hawke, deceased, and sued to have the validity of the probate of his father’s will determined, and the probate thereof revoked, pursuant to section 2653a of the Code of Civil Procedure.

Action by Ralph g. gcobell against gidney g. Block and another to recover for conversion of certain property situated on premises mortgaged by plaintiff. On foreclosure of the mortgage, it was contended that the articles in question were fixtures, and came under the mortgage, though they were not specifically described therein. Defendants were purchasers at the foreclosure sale.

<p>Appeal from special term, Oneida county.</p> <p>Action by Mary G-. Atherton against Peter Lee Atherton. Prom a judgment granting a separation with alimony to plaintiff, and an allowance for the support of her infant child, and awarding to her costs and an allowance of $1,000 for counsel fees, defendant appeals.</p>

Action by Fred T. Remmel against Martha L. Townsend. From a judgment affirming a judgment of the municipal court of the city of Rochester, in favor of plaintiff, for $47.78, damages and costs, defendant appeals. The plaintiff, a retail dealer in groceries, brought this action to recover an unpaid balance for goods sold and delivered to the defendant’s husband.

<p>Appeal from circuit court, Chautauqua county.</p> <p>Action by Alonzo C. Pickard against Adam V. Pickard. From a judgment entered on a verdict directed by the court in favor of defendant, plaintiff appeals.</p>

Action by Frank Ball and another, individually and as executors of the will of Edwin J. Dickson, deceased, against Charles Dickson and others, to construe the will of said Edwin J. Dickson, deceased. From a judgment construing such will, plaintiffs appeal.

<p>Appeal from special term.</p> <p>Action by Charles G. Buckley against John F. Harrison and others. From an interlocutory judgment overruling a demurrer to the complaint, defendants appeal.</p>

<p>Pbactice in Civil Cases—Resettling Ohdee—Extending Time to Appeal.</p> <p>A motion to resettle an order denying a motion for a new trial will not be granted after expiration of the 30 days within which an appeal might have been taken, as the effect would be to extend the time for taking the appeal, which, under Code Civ. Proe. § 784, the court or judge is not authorized to do.</p>

Action by Edmund S. Whitman and another against Edwin L. Johnson. From an order denying a motion for a new trial, on the grounds mentioned in Code Civ. Proc. § 999, plaintiffs appeal.

Action by William L. Hughes against the New Jersey Steamboat Company to recover damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from, an order denying a motion for a new trial, defendant appeals.

Action by George Reilly against Charles A. Parker to recover damages for personal injuries. The complaint was dismissed, and plaintiff appeals.

Action by Samuel Bailie and David J. Bailie against Leopold Plaut and Joseph Plaut to recover rent. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a m'otion for a new trial, defendants appeal.

Action by Marie J. Collins against Mary V. Collins to recover possession of certain shares of stock. A judgment was rendered that ” the title to the shares of stock belonged to plaintiff, subject to the right of defendant to collect and receive dividends during her life, and both parties appeal.

Action by Julia .M. Phyfe, as executrix and trustee, and others, against the Metropolitan Elevated Railway Company and another. There was a judgment in favor of plaintiffs, and defendants appeal.

<p>Appeal from trial term.</p> <p>Action by the American Preservers Company against the Columbia Investment Company. From a judgment entered on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial (28 N. Y. Supp. 782), defendant appeals.</p>

Action by Patrick V. Byrnes against Henry N. Lewis, impleaded. From an order requiring defendant Lewis to furnish to plaintiff a bill of particulars of certain matters set forth in his answer, defendant appeals.

<p>Appeal from circuit court, Genesee county.</p> <p>Action by Mary Lortz, as administratrix of Frederick Lortz, deceased, against the New York Central & Hudson River Railroad Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for new trial, made on the minutes of the court, defendant appeals.</p>

<p>Appeal—Discretion op Trial Court—Granting New Trial.</p> <p>An order granting a new trial on the ground that the verdict is contrary to the evidence is discretionary, and will not be reversed unless it appears that there was an abuse of discretion.</p>

<p>Exemptions—Benefit Insurance.</p> <p>Laws 1884, c. 11G, and Laws 1889, c. 620, exempting the fund received by the widow of a deceased member of a beneficiary society from “any debt or liability,” refers to debts contracted after the fund is received, as well as those contracted before.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by Adolph Friedman against Jacob Rose and others. There was a judgment in favor of plaintiff, and defendants appeal.</p>

<p>Fraudulent Conveyance—Action to Set Aside—Rights oe Grantee.</p> <p>A voluntary transfer, being valid as between the parties, will not be set aside, except so far as Is necessary' to pay the debt of the complaining creditor; and therefore the judgment should provide that, on -satisfying such debt, the property be returned to the grantee.</p>

Application of Oscar H. Goodman to strike from the list or registry of voters of the Twenty-Fifth election district of the Twenty-First assembly district the name of Henry W. Bainton. The application was granted, and said Bainton appeals.

Action by Warren F. Goddard and others against Harris Cassell' and others. From an order amending the complaint by changing cause of action from replevin to trover, defendants appeal.

Action by Frank E. Kinsman against Harvey Edward Fisk and others to restrain defendants from making any disposition of certain shares of defendant company’s stock, which had been pledged to Harvey Fisk & Sons as collateral security. From an order denying a motion to continue an injunction pendente lite, plaintiff appeals.

Action by Henry J. McGuckin against Samuel W. Milbank, Charles M. Cauldwell, and Thomas W. Cauldwell, as executors of William A. ■Cauldwell, deceased, to recover damages for breach of covenants contained in a deed. There was a verdict directed in favor of plaintiff for $1,666.66, and defendants move for a new trial on exceptions ■ordered to be heard at general term in the first instance.

New York, county. Action by George B. Clarke and William J. Clarke against Alice A. Schell individually, and as executrix of Richard J. Clarke, deceased, and others, to set aside the probate of a will. From a judgment dismissing the complaint, entered on a verdict directed by the court in favor of defendants, and from an order denying a motion for a new trial made on the minutes, plaintiffs appeal.

Action by Franklin Bank-Note Company against Charles W. Mackey to recover for services performed by plaintiff for defendant. A verdict was directed for defendant, and plaintiff moves for a new trial on exceptions ordered to be heard at general term in the first instance.

Action by the New York Bank-Note Company against the Hamilton Bank-Note Engraving & Printing Company for an injunction. From so much of an interlocutory judgment as sustains a demurrer to the complaint for insufficiency of facts, plaintiff appeals; and from so much of said judgment as overrules a further objection assigned in the demurrer of a defect of parties defendant, defendant appeals.

<p>Criminal Law—Instructions—Weight op Evidence.</p> <p>On a prosecution for assault and battery, where the person alleged to have been assaulted testified that she inflicted the wounds on herself, thereby contradicting the formal complaint against defendant made by her before a magistrate, it is for the jury to determine which statement is true; and it is reversible error for the court, in charging the jury, to intimate that he believes the testimony on the trial to have been false.</p>

Action by the Communipau Coal Company against Albert Gray to recover a balance alleged to be due for coal sold by plaintiff to defendant From a judgment entered on a verdict -in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>"Limitation op Action—What Statute Applies—Concurrent Remedies. ,</p> <p>An action by the receiver of an insolvent corporation against the trustees to recover assets alleged to have been wasted by defendants is maintainable either at law or in equity, and therefore is within Code Proc. §■ 91, which limits to six years “an action upon a contract; obligation, or liability, express or implied, excepting those mentioned in section 90” [judgments and sealed instruments].</p>

Action by Louise Meise against John H. Doscher and Henry Newman on a promissory note. From a judgment entered on a verdict in favor of plaintiff for $2,036.77, directed by the court, defendants appeal.

Action by James Smith against Philip G-. Hubert and Gustave Frohman to recover money alleged to be due for board furnished' ■defendants and others at defendants’ request From a judgment entered on a verdict directed by the .court in favor of defendants, plaintiff appeals.

Action by William G-uichard, an infant, by Augustine L. Guichard, Ms guardian ad litem, against Jacob New, for personal injuries. The complaint was dismissed, and plaintiff appeals.

<p>1. Marine Insurance—Warranty—Seaworthiness.</p> <p>Where the insurer at the time of insuring a vessel for an ocean voyage knew that she was not an ocean-going vessel, but was constructed for river navigation only, and charged a greater rate than was usual for ocean vessels, the only warranty as to seaworthiness is that the vessel shall be made as seaworthy for the voyage as a vessel of her kind could reasonably be made.</p> <p>2. Same—Delay in'Sailing—Fitting por Voyage.</p> <p>Where a river steamer is insured for an ocean voyage, it is a question for » the jury whether a delay from June 28th to August 27th in commencing voyage was a reasonable time required to make the vessel seaworthy.</p> <p>3. Same—Deviation—Trial Trip.</p> <p>A trial trip taken by a new vessel before beginning the voyage insured against is not a deviation.</p>

Action by Charles L. Berg against Henry Parsons for injury to plaintiff’s house. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Annie Butler against James R. Townsend and another to recover damages for personal injuries. The complaint was dismissed, and plaintiff moves for a new trial on exceptions ordered to be heard at general term in the first instance.

<p>Corporations—Insolvency—Right of Unsecured Creditors.</p> <p>One who lends money to a corporation, to enable it to carry on its business, is not, under the doctrine of subrogation, entitled to a preference over mortgage creditors on the ground that the money loaned was partially expended by the corporation for purposes for which receivers’ certificates might have been issued.</p>

Action by Matilda E. Goodwin, individually and as sole surviving executor and trustee of Matilda E. Coddington, deceased, against Emily M. Coddington, impleaded with others, for the construction! of the will of Matilda E. Coddington, deceased, and for an accounting. Aji interlocutory judgment was rendered in favor of plaintiff, and defendant Emily M. Coddington moves for a new trial on exceptions,, pursuant to Code Civ. Proc. § 1001.

Action by James L. Lowry, as executor, against Edward J. Woolsey, impleaded, to enforce a mechanic’s lien. The complaint was. dismissed on the merits as to defendant Woolsey, and plaintiff appeals.

Action in equity by Lawrence J. O'Connor against Horace Waldo, individually and as administrator of the estate of Francis W. Waldo, deceased, Rosalie L. Waldo, Katharine L. Waldo, and Rhinelander Waldo, to collect a debt of Sarah O. H. Waldo, deceased, out of decedent’s real estate in the city of Hew York. There was a judgment in favor of plaintiff, and defendants Horace Waldo and Rhinelander Waldo appeal.

<p>Foreign Corporations—Attachment against — Certificate of Authority.</p> <p>The papers on which an attachment on a cause of action arising within the state is obtained .must show compliance with the provision of Laws 1892, c. G87, § 15, that no foreign corporation can sue on a contract made by it in the state until it shall have procured a certificate authorizing it to do business. Parker, J., dissenting.</p>

Action by James Murray and others against Matthew Micolino and others on an alleged order for payment of money. The complaint was dismissed, and plaintiffs appeal.

Action by James E. Brett and others against the Harlan & Hollingsworth Company to recover freight and demurrage alleged to be due under a charter party. A verdict in favor of plaintiffs for $233.14, the balance admitted by defendant to be due on account of freight, was directed by the court, and plaintiffs’ motion to go to the jury on the question as to their right to recover demurrage was denied.

Action by the Clinton Bank against August M. Collignon. From ai judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals.

Action by Samuel H. Terry against Leopold Rothschild to charge defendant as a stockholder of the I. Herman Manufacturing Company. The complaint was dismissed, and plaintiff appeals. In May, 1887, the I. Herman Manufacturing Company was incorporated, under chapter 40, Laws 1848 (the Manufacturing Act), and the acts amendatory thereof, with a share capital of $10,000, divided into 10,000 shares of $1 each.

<p>Mutual Benefit Insurance—Distribution of Reserve Fund.</p> <p>Tlie by-laws of a mutual benefit association provided that assessments ■should be applied to create a “mortuary and benefit fund” and a “reserve fund." Death claims were payable out of the mortuary and benefit fund. The reserve fund was declared to be “for the exclusive use and.benefit of members” of the association, but that it “may be” used to pay death claims in excess of the experience table of mortality, and that after it should have reached a certain sum the accumulations should be divided among the members, or applied to death claims, “as may be determined by a vote of the members.” Held that, on dissolution of the association, the reserve fund was distributable exclusively among holders of certificates in force, and that death claimants were not entitled to share therein. In. re Life Association, 30 N. E. 114, followed.</p>

Petition by the Brooklyn Elevated Railroad Company relative to acquiring right of way over real estate of Albertine W. C. Poellmann (parcel 136) on Lexington avenue, in the city of Brooklyn.

<p>Action by Henry C. Adams against the New Jersey Steamship Company. W. P. Prentice, for the motion. Gibson & Davis, opposed.</p>

<p>Action by Patrick V. Byrnes against Nellie Lewis.</p>

<p>Action by Elizabeth F. Cagger and others against Rhoda Shultes and others.</p>

Petition by the Brooklyn Elevated Railroad Company relative to acquiring title to right of way over real estate of Eliza A. Douglass (parcel 138) on Lexington avenue, in the city of Brooklyn.

<p>Action by Newman Co wen and others against Samuel Rinaldo and others.</p>

Action by Louise Carlson against Maria L. Winterson. Motions for reargument of appeal from order of the city court directing restitution. See opinion 7 Mise. Rep. 15, 27 N. Y. Supp. 368.

<p>Action by Mamie Brown against Royal E. Deane and George G. Brooks.</p>

<p>Action by Patrick V. Byrnes against M. Fannie Lewis.</p>

<p>Appeal from First district court. Action by James W. Hamblett against: Rudolph Liede.</p>

<p>Action by Alvin A. Gage and Henry S. Bennett against Julius Lippman and Louis Levy.</p>

<p>Action by Mary Haight against John H. Townsend, as administrator, etc.</p>

<p>Action by Charles E. Hart against the Delaware, Lackawanna & Western Railroad Company.</p>

<p>Action by Charles M. Hibbard against the Commercial Alliance Life Insurance Company of New York.</p>

<p>Appeal from First district court. Action by Herbert E. Hawes against Abram V. Whiteman.</p>

<p>Action by Ralph Henry against Joseph Agostini, Robert Tailer, and William H. Tailer.</p>

<p>Action by Daniel W. Jones -against William R. Crum and others.</p>

<p>Action by La Socíete Anonyme de L’Union Des Papeteries against Samuel M. Marks and Jules Meyer.</p>

<p>Action by Hattie Krauss, administratrix, against the Wallkill Valley Railroad Company.</p>

<p>Action by Thomas A. Lynch against Catharine Love.</p>

<p>Action by Newbold T. Lawrence against the town of Hempstead.</p>

<p>Action by Sarah M. Mygatt and another, as surviving trustees, etc., against George S. Coe.</p>

<p>Action by Morris C. Mengis against the Fifth Avenue Railway Company.</p>

<p>Action by Ichibaro Moriuro and others against Mukuro Neiva and others. G. W. Gibbons, for appellant. Y. D. Deckert, for respondent.</p>

<p>Action by John McClave against John Gibb.</p>

<p>Appeal from jury term. Action by Patrick O’Hara against the Third Avenue Railroad Company.</p>

<p>Application by Pa'trick McClosky for a writ of mandamus to William S. Andrews, as commissioner of street cleaning.</p>

Action by Benjamin A. Norton and others against James W. Matthews and others to set aside an assignment as fraudulent, and for other relief.

<p>Action by Patrick Riley against Elijah Hallett.</p>

<p>Proceeding •on the relation of Le Roy Maxon against John C. Schrieber, as sheriff of Oneida county.</p>

<p>Action by Blackburn B. Pew against Margaret J. McCaul and others.</p>

<p>Action by William P. Roome and others against Frederick C. Jennings and others.</p>

<p>Application by Patrick McNulty for a writ of mandamus to William S. Andrews, as •commissioner of street cleaning.</p>

<p>Action by E. Katie Read against Abner Mills.</p>

<p>Action by Dina Sulz, as administratrix, etc., against the Mutual Reserve Fund Life Association.</p>

<p>Action by Luman A. Soule against Victor L. Veyrac.</p>

<p>Action by William Schwegler against Susan Bray.</p>

<p>Action by Heinrich Steihler against Harry Redding.</p>

<p>Action by Edward D. Thornton against L. Balton Winpenny.</p>

<p>Action by the United States Trust Company of New York, as trustee, etc., against James Drake Black and others and the American Seamen’s Friend Society and others.</p>

<p>Action by Thomas P. Wallace, as surviving partner, etc., against Herman Kaempf, etc.</p>

<p>Action by Clarence True against Richard C. Sibley.</p>

<p>Action by the Whitehill Engine & Pictet loe Machine Company against one Binz.</p>

<p>Action by Peter J. West against Peter Buttner.</p>

<p>Action by Clarence W. Wood against the Sidney Sash, Blind & Furniture Company.</p>

<p>Action by Caroline S. Wilkinson against Henry Eugene Davies, as administrator of Henry E. Davies, deceased.</p>

<p>Action by Mary M. Whiting against the Standard Gas-Light Company.</p>

<p>Action by William G. Wood against Walter W. Taylor.</p>