Volume 32 — New York Appellate Division Reports

<p>Appeal by the defendant, Henry A. Turn Suden, from an order-of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 29th day of March, 1898, denying the'defendant’s motion to vacate an attachment heretofore granted in the action.</p> <p>The attachment was procured under subdivision 2 of section 636 of the Code of Civil Procedure.</p>

Appeal by the petitioner, Louis N. Lanehart, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 31st day of March,. 1898, denying his motion for a writ of certiorari directed to the board of supervisors of the county of Queens, commanding them to certify and return to the court all and singular their proceedings had in the matter of the audit of the claim of Louis N. Lanehart against…

<p>Motion to dismiss an appeal.</p>

■ Appeal by the defendant, the Yonkers Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 10th day of February, 1898, upon the verdict of a jury for $2,000, and also-from an order entered in said clerk’s office on the 10th day of February, 1898, denying the defendant’s motion for a new trial made upon the minutes.

<p> Will —gift of money.to a mother to he divided equally between her children at her death—remaindermen not concluded by the life tenant’s assent to an unauthorized investment. </p> <p>A clause of a will by which a testatrix provided: “ I do give and bequeath unto my sister, Eleanor Day Eapelye, the sum of two thousand dollars, which shall be equally divided between her son and daughter at her death,” presents no repugnance between the provision for Mrs. Rapelye and that for her children, the gift to the former being for life, and to the latter the remainder upon- the former’s death.</p> <p>An assent by a life tenant to the investment of a legacy does not relieve the executors of the will from liability to the remaindermen for the results of an unauthorized investment thereof.</p>

Appeal by the plaintiff, Mary Dochterinann, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 10th day of January, 1898, setting aside the verdict of a jury in favor of the plaintiff for $4,000, and granting the defendant’s motion for a new trial made upon the minutes.

Appeal by Frank W. Hendry, the judgment debtor herein, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Orange on the 23d day of March, 1898, denying his motion to ■vacate an order for the examination of George S. Gagnon,, the third person herein, and also denying his motion to vacate an order' appointing a receiver.

<p>Appeal by Thomas L. Feitner and others, composing the board of taxes and assessments of the city of New York, from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 31st day of March, 1898, and entered in the office of the clerk of the county of Kings, granting the relator’s motion for a peremptory writ of mandamus, commanding the defendants to forthwith reduce the assessed value of the relator’s property for each of the years- 1892, 1.893* 1894* 1895 and 1896, from the sum •of $4,000 to $400, and to refund to the relator the proportionate part of the tax paid on the amount so reduced, and to certify said reduction and the amount of' such refund to -the proper officials of the city of New York.</p>

<p>Appeal by the defendant, Warren A. Ketcham, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 10th day of June, 1898, directing thp defendant to furnish a bill of particulars.</p>

<p>Chattel mortgages—chap. 279 of 1833—possession by a tenant of the mortgagin’ is not a “change” of possession — rights of a bona fide purchaser after the expiration of the time to refile.</p> <p>Possession of mortgaged chattels by a tenant of the successor in title of the mortgagor does not constitute a sufficient change of possession to relieve the mortgagee from the provisions of chapter 279 of the Laws of 1833, which render an unfiled chattel mortgage void as against creditors and purchasers in good faith, although the mortgagee has made a demand upon the tenant for the possession of tlie chattels and has left with him a written notice that he, the mortgagee, had taken possession of them, the property still continuing as before in the actual possession of the tenant.</p> <p>One who, in good faith, purchases mortgaged chattels after the expiration of one year from the original filing of the mortgage (the mortgagee having neglected to rofile it), acquires a title superior to that of the mortgagee, although the title of the vendor, by reason of her having bought the property before the time when refiling was necessary, is.subject to the mortgage.</p>

Appeal, by the plaintiff, Joanna E. Grossman, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 21st day of April, 1898, denying the plaintiff’s motion for a bill of particulars.

<p>■Appeal by the defendants,' Douglass R. 'Satterlee and Elizabeth K. Satterlee,. composing the firm of D. R. Satterlee & Co., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 13th day of January, 1898, on th'e verdict of a jury rendered by direction of the court.</p>

Appeal by' the purchaser herein, The Collins Building and Construction Company, from an order of the Supreme Court, made at the Kings County Special Term, and entered in the office of the clerk , of the county of Kings on, the 26th day of March,' 1898, requiring it to complete its purchase of premises sold under a judgment of foreclosure rendered in the above-entitled action,

Appeal by William Dwight Teese from so much of an order, made at the Kings County Special Term and entered in the office ■of the clerk of the county of Kings on the 24th day' of May, 1898, as denies his motion to resettle a final order in habeas corpus proceedings for the custody of - children, by striking therefrom a pn> .vision charging the said William Dwight Teese with $3,097.95 disbursements.

<p>Writ of mandamus — not the proper method of determining the title to a public office pending an action of quo warranto.</p> <p>It is -not the proper office of a writ of mandamus to restrain a party claiming to he a public officer from performing the duties of the office.</p> <p>This is especially so where an action in the nature of a writ of quo warranto, brought by the Attorney-General of the State to determine the validity of the officer’s appointment, is pending.</p>

<p>Appeal by the defendant, the Lehigh Valley Creosoting Company, from. an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 23d day of March, 1898, granting the plaintiff’s motion for leave to discontinue the action upon payment of costs.</p>

<p>Proceeding by as' water wor7cs company to acquire land,-—defeated by itsfailwre to file a map as required by the Transportation Gorporatiom Law.</p> <p>In a proceeding to acquire land, taken under section 83 of chapter 566 of the Laws of 1890 (the Transportation Corporations Law), providing that, in proceedings taken by a water Works company to acquire land “before entering upon, taking or using any land for the.purposes of its incorporation,. such corporation shall cause a survey and map to be made of the lands intended to be taken of entered upon,’’.and that such map shall be filed in the office of the county clerk of the county in which the lands are situated, the failure of' th.e corporation to filé the survey and map entitles the landowner to the dismissal of such proceeding, where such objection thereto has been duly made. •</p>

<p>New York and Brooklyn Bridge trustees■—power of, to appoint a police surgeon— effect of the Greater New York charter, section 278 of chapter 378 of 1897.</p> <p>Section 8 of chapter 300 of the Laws of 1875, which authorized the trustees of the New York and Brooklyn Bridge to appoint “an adequate police forcé and to regulate and direct the same for the protection of the said bridge, and of the . travel over the same, and of all persons, vehicles, railroad cars and animals using or passing over the same,” did not confer authority upon the trustees to appoint a police surgeon; nor is such authority given by the amendatory act, chapter 710 of the Laws of 1894.</p> <p>Semble, that a resolution adopted by the board of trustees “that Dr. E. A. Lewis be and he is hereby appointed surgeon, and Dr. Alexander Rae, assistant surgeon to the police force of the New" York and Brooklyn Bridge, at the same compensation as heretofore,” does not operate to change the relation of either of the parties named to the New York and Brooklyn Bridge, or create either a public officer whose services cannot be dispensed with at any time.</p> <p>The words “attached to the police force,” used'in section 278 of chapter 878 of the Laws of 1897 (the Greater New York charter), .do not have the force of creating an office -where one had never previously existed — their evident purpose being to transfer only such persons as were, by virtue of their office, officially related to the police force transferred.</p>

<p> Divorce—•duty, of the husband as to affirmatively preventing his wife from committing adultery. </p> <p>A husband who believes that his wife has already committed adultery and intends ’ to persist in her adulterous practices whenever she has an opportunity to do so, is not guilty of such connivance in her act as will preclude his taking advantage of it as a ground for divorce where he, with the intention of obtaining evidence of adultery against his wife, does not actively interfere to prevent her commission of the offense, under circumstances in which, had he desired to do so, he could have prevented it.</p>

Appeal by the defendants, John O’Rourke andothers,.as assessors •of the town of White Plains, in the county of Westchester, H. Y., '.from a final order and judgment of the Supreme Court in favor of ¡the relators, entered in the office of the clerk of the county of West•chester on the 27tli day of Hovémber, 1897, upon the decision of .the court, rendered after a trial at the Westchester Special Term, ¡adjudging that the defendants liad improperly assessed a personal 'tax…

Appeal by the defendant, The Morning Journal Association, from a judgment of the Supreme Court in favor of the plaintiffs intestate, bearing date the 10th day of November, 1897, and entered in the office of the clerk of the county of Kings, upon the verdict of a jury for $1,000,. and also from an order entered in said clerk’s office on the 28th day of October, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on •the 23d day of April, 1898, upon the verdict of a jury for $2,000, •and also from an order entered in said clerk’s office on the 16th day •of May, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Arthur E. Gough, from an order of the Supreme Court, made at the Richmond Trial Term, and entered in the office of the clerk of the county of Richmond on the 18th day of April, 1898, setting aside the verdict of a jury rendered in favor of the plaintiff, and granting the defendant’s motion for anew trial made upon the minutes.

Appeal by the defendant, The Trustees of the New York and Brooklyn Bridge, from a judgment of - the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25tli day of February, 1891, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of March, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Albany Railway, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 4th day of February, 1897. upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 5th day of February, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Erastus H. Barnes,, from a-judgment of the Supreme Court- in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 11th day of December, 1897, upon the verdict of a jury. ■ The complaint alleges that the defendants, on the 5th day of March, 1890, became partners in business under the firm name of John Brown & Co., and, as such partners, in June or July, 1890, borrowed $4,000 of the plaintiff, and on October 20,…

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the County Court of Madison county in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 10th day of January, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of December, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John C. Blanshan, as administrator of Elizabeth R. Bruyn, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Ulster on the 27th day of May, 1897, upon the dismissal of the complaint by direction of the court after a trial at. the Ulster Trial Term.

Appeal by the defendant, Charles S. Seaman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 12th day of April, 1897, upon the verdict of a jury, and also from an order made at the Broome Special Term, and entered in the office of the clerk of the county of Tompkins on the 4th day of January, 1898, denying the defendant’s motion for a new trial made on a case and exceptions.

Certiorari issued, out of the Supreme Court and attested on the 21st day of December, 1897, directed to James Á. Eoberts, as Comptroller of the State of Hew York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings and decisions relative to the revision and readjustment of the account for taxes of the relator for the year ending June 30, 1896.

Appeal by the claimant, Garrett S. Veeder, from an order of the Supreme.

Appeal by the defendant, The President, Managers and' Company of the Delaware and Hudson Canal Company, from a judgment of the Supreme 'Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany oil the 28th'day of Séptember, 1897, upon the report of a referee awarding a peremptory writ of mandamus,, commanding the defendant to comply with the recommendation of the Board of Railroad Commissioners that it erect at its station, in the village…

Appeal by the plaintiff, Truman E: Davis, from a judgment of the Supreme Court in favor of. the defendant Horman Bly, entered in the office of the cleric of the county of Essex on the 80th day of September, 1897, upon the dismissal of the complaint as to said defendant by direction of the court after a trial at the Essex Trial Term.

Appeal by the defendant,. The City of'Albany, from a judgment of the County Court of Albany county, in favor of the plain tiff, entered in the office of the clerk of the county of Albany on the -11th day of March, 1898, affirming a judgment of the City Court of Albany, with notice of an intention to bring up for review upon such appeal an order- of the County Court of Albany county, entered in said clerk’s office on .the 11th day of March, 1898, affirming the judgment of…

Appeal by the plaintiff, Mary Reilly, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 23d day of April, 1897, upon the verdict of a jury, and also from an order denying the plaintiff’s motion for a new trial made upon the minutes. Ho order denying the motion by the plaintiff for a new trial upon the minutes appears in the case upon appeal.

Appeal by the plaintiffs, George D. L. Harison and others, from á judgment of the Supreme Court in favor óf the defendant, entered in the office of the clerk of the county of St. Lawrence on the 3d day of January, 1898, upon a verdict of a jury in favor of the defendant against the plaintiffs George D. L. Harison and Thomas L. Harison, and upon a nonsuit granted by the court as to the plaintiff Gertrude Harison, and also from an order entered in said clerk’s office on the…

' Appeal by The Mutual Life Insurance Company of New York from an order of the Supreme Court, made at the.- Albany Special Term, and entered in the office of'the clerk of the county of Albany on the 18th day of February, 1898, directing that the said appellant, as the real party in interest, pay to the plaintiff’s attorney the-, costs of the action.

<p>Justice of the peace of a town ■—• an act giving exclusive jurisdiction over misdemeanors committed in a village in such town to a police justice therein is constitutional</p> <p>Section 182 of chapter 414 of the Laws of 1897, giving exclusive jurisdiction over charges of misdemeanor committed within a village and triable by a Court of Special Sessions, to the police justice of the village, is not unconstitutional, as depriving a justice of the peace of the town in which the village is located of jurisdiction over such offenses.</p>

<p>Appeal by the defendant, Russell E. Holmes, from an order of the Supreme Court, made at. the Clinton Special Term and entered in the office of the clerk of the county of Fulton on the 9th day of' March, 1898, denying the defendant’s motion for a new trial upon the ground of newly-discovered evidence.</p>

Appeal by the defendant. Edward K. Clark, from an interlocutory judgment of the Supreme Court in favor of the. plaintiff, entered in the office of the clerk of the county of Broome on the 28th day of July, 1897, upon the decision of the court rendered ■ after a trial at the Tioga Special Term sustaining the plaintiff’s demurrer to tiré defendant’s answer.

Appeal by the defendant,, The- City of Troy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 2d day of June, 1897, upon the verdict of a jury for $1,000, and also from an order entered in said clerk?s office on the 18th day of June, 1897, denying the 'defendant’s motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court, and attested on the ■9th day of April, 1898, directed to Ashley W. Cole and others, as Railroad Commissioners of the State of New York, and constituting the Board of Railroad Commissioners of the State of New York, commanding them to certify- to the office of the clerk of the county of Albany their and its proceedings in the matter of the application of the relators to the Board of Railroad Commissioners, to compel _ the Ulster and…

<p>Party —a mortgagee, whose claim is also secured by. a second mortgage given to a third party, is a necessary party to a foreclosure thereof— a demurrable ansioer is not necessarily f rivolous. '</p> <p>In an action brought to foreclose a mortgage, given to the vendor of the mortgaged property to secure the payment by the vendee of a portion of a prior mortgage existing thereon at the time of such sale, the holder of said last-mentioned mortgage is a proper and necessary party defendant, and the vendee is entitled to have the amount realized upon the sale of the'mprtgaged premises applied in payment of the mortgage held by such third party.</p> <p>■Semble, that an answer which is insufficient, so that a demurrer thereto will be sustained, is not necessarily frivolous. . •</p>

Appeal by the defendant, Peter W. Fox, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of th'e county of Greene on the 21st' day of June, 1897, upon .the verdict of a jury, and also from an order entered -in said clerk’s office on the 8th day of July, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff^ William McGraw,- from a . judgment of the Supreme Court in favor .of the defendant, entered in the office .of the clerk of the county of Fulton on the 8th day of December, 1-897, upon the report of a:referee dismissing the plaintiff’s complaint upon the merits.

<p>. Certiorari issued out of the Appellate Division of the Supreme Court in the third judicial department, and attested on the 13th day of January, 1898, directed to Ashley W. Cole and others, composing the Board of Railroad Commissioners of the State of New York, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings in denying the application of the relator for permission to change its motive power from horses to kinetic stored steam power.</p>

Appeal by The Missionary Society of the Methodist Episcopal Church from so much of a decree of the Surrogate’s Court of Sara-toga county, entered in said Surrogate’s Court on the 5th day'of August, 1897, admitting to probate the will of Sarah D. Wheeler, deceased, as adjudgés that the appellant is not the beneficiary named in the 10th clause of such will; that said devise failed for uncertainty of the legatee; and also from that portion of the decree awarding allowances to…

Appeal by the plaintiff, Anna'Ellsworth Poste, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of St. Lawrence on the 6th day of November, 1897, upon the decision of the court, rendered after a trial before the court without a jury, dismissing the plaintiff’s complaint.

<p>Appeal by the defendants, William Sayles and others, assessors of the city of Albany, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 18th day of March, 1898, upon a writ of certiorari and the return thereto, directing that the assessment of $50,000 levied by the assessors upon the real estate of the relator in the city of Albany be stricken from the assessment roll of said city.</p> <p>The order appealed from was based upon the ground that the relator is a corporation organized exclusively for the mental and moral improvement of men and women and for benevolent purposes, and that its said real property is used exclusively for carrying out thereupon such purposes, and, therefore, is exempt from taxation under chapter 371, Laws of 1897.</p>

<p>Taxation — real property of a benevolent corporation is not exempt from taxation when used for the purposes of a public hall.</p> <p>A corporation organized exclusively for benevolent purposes and owning real estate, a portion of which is used exclusively for such purposes, and another portion óf which consists of a large public hall, rented by the corporation for exhibitions and public meetings, such rentals being applied to the purposes of the corporation, is not exempt from taxation by section 2 of chapter 518 of the Laws of 1890, amending chapter 51 of the Laws of 1870, as the repeal of the act of 1870 effected by chapter 378 of the Laws of 1892 "carried with it, by the express provision of section 54 of the act of 1892, the repeal of the amendatory act of 1890.</p> <p>SerrMe. that the General Tax Law (Chap. 908 of the Laws of 1896, as amended by chap. 371 of the Laws of 1897) was intended to establish a system which, should place exemptions of the real property of charitable corporations upon a basis of clearly-defined equity and operated to repeal the acts of 1870 and 1890, above mentioned.</p>

<p>Appeal by the plaintiff, George D. Rhodes, as administrator, etc., of Frederick Rhodes, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Montgomery on the 12th. day of. January, 1898, upon a nonsuit granted by direction of the court after a trial at the Montgomery Trial Term, and also from the order upon which said judgment was based.</p>

<p>Appeal by the plaintiff, Charles A. Stone, from a judgment of the Supreme Court in favor of the original defendants, in whose place' the present defendant has been substituted, entered in the office of .the clerk of the county of ¡Montgomery on the '7th day of July, 1897, upon the report of a referee dismissing the complaint upon the - merits. '</p> <p>, This action was. originally brought against Phíletus P. Argérsinger ánd James P., Afgersinger. Since the appeal James P. Argersinger has died, and an order has been entered continuing the action under the above title. . ,</p>

Appeal by the defendants* Robert A. Greig, and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 13th day of July, 1896, upon the decision of the court rendered after a trial before the court, without a jury, at the Sullivan Trial Term.

<p>Appeal by Isaac Purdy from a final order of the Supreme Court,- made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 22d day of December, 1896, appointing commissioners of appraisal in condemnation proceedings instituted under chapter 490 of the Laws of 1883, for the acquirement of lands for the new Croton dam in W estchester county.</p>

Appeal by Thomas Browne from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of June, 1898, denying his motion to vacate an order entered in said clerk’s office on tne 5th day of January, 1898, appointing commissioners of appraisal in the proceeding.

<p>Taxation in Brooklyn—assessment of two lots as one—made valid by chapter 1015 of 1895.</p> <p>An assessment made in 1894 for the purposes of taxation in the city of Brooklyn of two lots as one, under a single valuation, if invalid, was cured by'chapter 1015 of the Laws of 1895.</p>

Appeal by the plaintiff, John Henry Rolker, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of March, 1898, denying the plaintiff’s 'motion for an order directing the defendant to make his answer more definite and certain.

<p>Appeal by the defendants, Andrew D. Baird, individually and as president of the Free Stone Dealers’ Association of the city of Brooklyn, and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 11th day of April, 1898, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendants’ demurrer to the plaintiffs’ complaint..</p>

<p>False imprisonment—when the arrest of a trespasser, who refuses to leave the property-in question, but offers no violence, will sustain an action for false imprisonment■ — effect of section 1443 of -the New Torh Consolidation Act.</p> <p>The vice-president of a- corporation, for the purpose of obtaining possession of property belonging to it, and of placing such property in the hands of an agent-of the corporation, proceeded to a barge of the corporation, demanded posses- ' sion of the property thereon, and instructed the parties who had previously had charge thereof under authority from the corporation to leave the barge, which ■they, although they offered no force or violence to such vice-president or his-associate, refused to do. Thereupon the vice-president instructed the police-officers on a police boat in the vicinity to arrest them, and they were taken to-a police station, where they were charged by the vice-president with disorderly conduct, but were discharged by the sergeant- in charge of the station.</p> <p>Held, that the vice-president was liable to them in an action for false imprisonment as,, while such parties were trespassers and the defendant was justified in removing them from the barge, their arrest was illegal.</p> <p>Semble, that section 1443 of the Consolidation Act (Laws of 1883, chap. 410), conferring ujion the courts of the city and county of New York jurisdiction of offenses committed ill the lower hay, does not extend the provisions of section 1458 of that, act, defining what constitutes disorderly conduct in the city and county of New York, over territory in the lower bay constituting part of the: county of Kings.</p>

Appeal by the defendant, the Supreme Council of the Order of Chosen Friends, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk .of the county of Westchester on the 26th day of March, 1898, granting the plaintiff’s motion for judgment upon the pleadings, and also from a judgment entered in said clerk’s office on the 26th day of March, 1898, upon the said'order.

<p>Appeal by the defendants, J. Esler Eckerson, individually and as ¿xecutor of and trustee under the last will and testament of James Eckersoxij deceased, and others, from an order of the Supreme -Court, . made at the Dutchess County Special Term and entered in the office of the clerk of the county of Rockland on the 14th day of June, .1898,.' enjoining the defendants, during the pendency of the action, from . digging upon or excavating any materials from the lands belonging to the defendant Eckerson or in the possession of the other defendants as tenants of the said Eckerson. ' ■ ■</p>

Appeal by the plaintiff, Jennie H. Chamberlain, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 11th day of October, 1897, upon the dismissal of the complaint upon the merits, by direction of the court after a trial at the Kings County Trial Term. The par value of the bonds- referred to in the opinion was $250 each. The price paid by the plaintiff for the two bonds was $450.

Appeal by' the plaintiff, Theodore Cocheu, from an interlocutory judgment of the Supreme Court in favor, of the defendant, The Methodist Protestant Church of the Village' of Williamsburgh, entered in the office of the clerk of the county of Kings on the 2d day of May, 1898, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining the demurrer of said defendant to the plaintiff’s complaint. • The action was brought to recover damages…

Appeal by the defendant, The Supreme Council, Catholic Benevolent Legion, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 6th day of April, 1898, upon the verdict of á jury, rendered by direction of the court for the amount of a policy of insurance, issued by the defendant upon the life of Michael Egan, deceased.

’ Appeal by the defendant, Charles- G. Reynold's,’ from an order of the Supreme Court, made at .the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 26th day-of March, 1898, setting aside the verdict- of a jury upon certain -sjDecific questions submitted to it, rendered after a trial at the Kings County Trial Term, and granting the plaintiffs’ motion for a new trial.

Appeal by the defendant, The City of Brooklyn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of. the county' of Queens on the 20th day of October, 1897, upon the verdict of a jury, and also from an ■ order entered in said clerk’s office on the 27th day of October, 1897, denying the defendant’s motion for ,a new trial made upon the minutes.

<p>Mortgage— an assignment thereof with a representation that it is a first lien binds the assignor who subsequently acquires an earlier mortgage —priority as between two mortgages held to secure the same debt..</p> <p>An attorney, representing the owner of real property on which there existed a mortgage for §>1,800, dated January 9,1884, and a second mortgage for $1,200, dated April 24, 1889, obtained a new mortgage of §3,000 from one Anderson, dated September 15,1891, for the purpose of raising money with which to pay off the two prior mortgages, and with the proceeds thereof paid to the holder of the $1,800 mortgage the amount due thereon, taking, instead of a satisfaction piece, an assignment thereof to Anderson, the holder of the §8,000 mortgage. The attorney subsequently obtained from Anderson an assignment of the §3,000 mortgage and an assignment of the $1,800 mortgage, and thereafter, while holding the §1,800 mortgage, transferred the §3,000 mortgage to a bona fide assignee for a valuable consideration, representing that it was a first mortgage on the premises. Subsequently he obtained an assignment of the §1,200 mortgage.</p> <p>Held, that the §3,000 mortgage was entitled to priority over the mortgage for §1,800, both mortgages in the hands of Anderson representing the same indebtedness of §3,000;</p> <p>That the §3,000 mortgage was also entitled to priority over the §1,200 mortgage, as the attorney' upon acquiring the latter mortgage received it subject to the representation which he had made to the assignee of the §3,000 mortgage, that the latter was a first lien on the mortgaged premises;</p> <p>That in each case the assignee of the attorney, as well of the §1,200 mortgage as of the §1,800 mortgage, acquired no greater right to enforce the same than the attorney himself had.</p>

<p> Negligence—passenger upon a trolley car injured through a collision with a car following on the same track. </p> <p>A passenger upon a trolley railroad car, who, by reason of its unexplained collision with another car which is following on the same track, is thrown against another passenger, is presumptively entitled. to recover damages for injuries thus sustained.</p>

<p>Appeal by the plaintiff, The Nassau Bank, from judgments of ' the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 10th day of May, 1898, upon the report of a referee dismsssing the complaint, and dissolving an injunction heretofore granted in the action, and also from an order made at the Orange Special Term and entered in the office of the clerk of the county of Kings bn the 10th day of May, 1898, directing that the defendants enter separate judgments and tax separate bills of costs.</p>

Appeal by the plaintiff, the Anchor Brewing Company, from a final judgment of the City Court of Yonkers in favor of the defendant George Ringler & Co., entered in the office of' the clerk of the City Court of Yonkers on the 3d day of May, 1898, upon the decision of the judge of the City Court .of Yonkers rendered after a trial at a term of said court before the court without a jury,, dismissing the plaintiff’s complaint upon the merits, and also from an. interlocutory…

<p>Justice of the peace — he may maintain an action at law to recovei' his fees— they may •be taxed as costs.</p> <p>A justice of the peace, although, entitled to require payment of his fees in advance, may , where they have not been paid, recover them in an action at law against the party at whose request the services represented thereby have been .rendered; but one party to the action is not liable for fees for services rendered at the instance of the other party, although the former may pay them under section 3329 of the Code of Civil Procedure, and recover the amount ■thereof as a part of his costs in the action.</p>

Appeal by the defendant, the Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of March, 1898, upon the verdict of a jury for $1,100, rendered after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 27th day of April, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Cypress Hills Cemetery, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of-June, 1897, upon the verdict a jury for $3,500, and also from an order entered in said clerk’s office on the 24th day of May, 18'97, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Hugh Y. Roddy, Jr., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 24th day of May, 1898, denying the plaintiff’s motion for an injunction pendente lite. ....

Appeal by the defendant, The Rational Shoe and Leather Bank of the city of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of March, 1898, upon.the decision of the court rendered after a trial at the Kings County Trial Term, before the court without a jury.

Appeal, in the first above-entitled proceeding, by Thomas Rogers, one of the trustees under the last will and testament of Jason Rogers, deceased, from a decree of the Surrogate’s Court of the county of Westchester, made on the 21st day of February, 1898; and entered in said Surrogate’s Court, charging the trustees under the last will and testament of Jason Rogers, deceased, with the sums found due the estate under a former decree of said Surrogate’s Court, made on the 16th…

Appeal by the defendant, The Staten Island Midland Railroad .Company, from an order of the Supreme Court, made at the Richmond Trial Term and entered in the office of the clerk of the county of Richmond on the 11th day of January, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, George Miller, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 21st day of February, 1898, denying the plaintiff’s motion for a retaxation of the costs.

Appeal by the defendant, John Sherry, as county treasurer of Suffolk county, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 29th day of November, 1897, upon the decision of the court rendered after a trial before the court without a jury at the Suffolk Trial Term. .

Appeal by the relator, Robert H. Lee, from ah order of the Supreme Court, made at the Queens County Special Term and entered in the office of the ■ clerk of the county of Queens on the 26th day of Juhe, 1897, denying his motion for a writ of peremptory mandamus commanding the respondents to reinstate him in the position which he formerly held in the fire department of Long Island City.

<p>Penalty—action for the penalty imposed for possession and use of milk cans without the consent of the owner— the cans must be capable of use.as milk cans.</p> <p>A corporation engaged in the business of asphalt roofing does not render itself liable, under chapter 401 of the Laws of 1887, ás amended -by chapter 25 of the Laws of 1890, to the penalty imposed for having the possession and use of milk or cream cans without the consent of the agent of the owner or .owners' or shipper or shippers thereof, where it appears that it has used, for the purpose of holding tar and oil, old, rusty, dilapidated milk cans, with holes in them, so that they could not hold milk and were useless for milk cans or for dairy purposes, and which have been lined with hard asphalt in order to make them capable of retaining the oil and tar with which they were filled.</p>

Appeal by the plaintiffs, Maude E. Barker and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 9th day of March, 1898, upon the decision the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits.

Appeal by the defendant Sarah Frances Mehan Greene from so much of a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 14th day of February, 1898, upon the decision of the court rendered after a trial at the Kings County Special Term, as construes the clause “ Eighth ” of the will of said William H. Allen, deceased, in favor of, and directs a distribution of the residuary estate of said deceased…

Appeal by the defendant, George B. Adams, from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of May, 1898, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term.

Appeal by the defendants, John King and John G. McCullough, as receivers of The New York, Lake Erie and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Orange county on the 5th day of February, 1898, upon the verdict of a jury for $500 rendered after a trial at the Orange Trial Term, and also from an order entered in said clerk’s office on the 5th day of March, 1898, setting aside the verdict and…

<p>Appeal hy the defendant, Michael Connelly, Jr., from a judgment of the County Court of the county of Dutchess in favor of the plaintiff, entered in the office of the clerk of said county on the 11th day of January, 1898, affirming a. judgment rendered by a justice of the peace.</p>

Appeal by the New York, New Haven and Hartford Railroad • Company, a party to the proceeding, from a decision and determina: tion of the common council of the city of Mount Vernon, made November 29* 1897, that the extension of North Third-avenue, in the said city, across the railroad tracks of the New York, New Haven and Hartford Railroad Company to First street, directly opposite South Third avenue, in said city, is necessary.

<p>Party wall — right to maintain windows in it — easement of light, when not presumed.</p> <p>Where an owner of a dwelling and flat house separated by a party wall, in an extension of which, beyond the depth of the dwelling house, are a number of windows through which light and air come from the vacant yard behind the dwelling house into the flat house, conveys the dwelling house by a deed which describes the easterly line as running through the center of the party wall, and thereafter sells the flat house, the purchaser of the dwelling house may close up the windows in so much of the party wall as stands on his land, but the owner of the flat house is not entitled to All up flues (used by the owner of the dwelling house) existing in the party wall prior to the time of the conveyance of the property by the original owner of both buildings.</p> <p>When, in such a case, two sides of the flat house front on open streets, there arises no presumption of a right to an easement of light and -air in its favor from the dwelling house lot, such easement not being strictly necessary for its use.</p>

Appeal by the defendant, the Knickerbocker Phosphate Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of March, 1898, upon the decision of the court rendered after a trial at the Kings County Special Term ; also from a final judgment entered in said clerk’s office on the 28th day of April, 1898, upon said interlocutory judgment.

Appeal by the defendants, Philip Horowitz and-another, from a judgment of the. County Court of the county of Orange in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the lltli day of November, 1897, upon the verdict of a jury, and also .from an order entered in said clerk’s office on the 1st day of November, 1897, denying the defendants’ motion for a new trial, made upon the minutes.

<p> Municipal corporation—it is liable for afire caused by the slaking of lime in a cellar flooded by water from an overburdened city sewer—raising the grade of an opposite sidewalk. </p> <p>A municipal corporation which has constructed a street sewer which is inadequate to carry off the rainfall and becomes flooded, and, by reason thereof, forces a large quantity of water into a building where lime is stored, causing the lime to slake and set Are to the building, is liable for the injury thus done, where it appears that the sewer has often before, in cases of heavy storms, been so overburdened as to force up the manhole covers in the street and let out large quantities of water upon the surface, which has sometimes flowed upon the adjoining lots.</p> <p>The fact that the owner of property opposite the building thus set on Are has, in order to protect himself against such floods, raised the grade of the sidewalk, does not relieve the city from liability in the premises.</p>

Appeal by the defendants, J. Sergeant Cram and others, as commissioners of the department of docks and ferries of the city of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of 'Kings on or about the 15th day of April, 1898, granting the relators’ motion for a peremptory writ of mandamus, directing the defendants to reinstate the relators as dockmasters in the department of docks arid…

Appeal by the defendant, the New York and Queens County Kail way Company, '• from a ¡judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 14th day of January, 1898, upon the verdict of a jury for $5,000, rendered after a trial at the Queens County Trial Term, with notice of an intention to bring up for review, upon such appeal, an order entered in said clerk’s office nuno jpro tuno as of the. 11th day of…

' Appeal by the defendants,. Mary D. Wadsworth and others, from, a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 4th day of February, 1898, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal By the plaintiff, John. M. Ward, from a judgment of the. Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 29th day of April, 1898, upon the decision-of the court, rendered- after-a trial at the Kings' 'County Special Term, dismissing the complaint upon the ¡merits.

Appeal by the defendant, Maria H. N. Bartlett, as executrix of the last will and testament of Edward B. Bartlett, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of December, 1897, upon the verdict of a jury rendered after a trial at the Kings County Trial Term; also from an order entered in said clerk’s office on the 14th day of January, 1898, granting the motion of the…

'Appeal by the defendant, John Merritt, as executor of the last will and testament of Hannah B. Merritt, deceased, and as administrator with the will annexed of John J. Merritt, deceased, from a judgment of the Supreme Court in favor of the plaintiff and the defendants Mary Ann Weeks and others, entered in the office of the clerk of the county of Kings on the 19tli day of March, 1897, upon the report of a referee.

Appeal by the defendant, The City of -Brooklyn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the-county of Queens on the 18th day of October, 1897, upon the report of a referee, as amended by an order entered in said clerk’s office on the 26th day of October, 1897.

Appeal by the relator, Alonzo Brymer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the Yth day of June, 1898, upon the decision of the court rendered .after a trial at the. Kings County Trial Term, a jury having been waived. .

<p>Libel — the dictation of a letter by the manager of a coipoi'ation to -its stenographer is not a publication thereof.</p> <p>The fact that a letter, having reference to the business of a corporation and containing libelous matter, is dictated by the manager of the corporation to a stenographer employed by it, who writes it out in shorthand, typewrites it and mails it, both servants of the corporation being engaged in the performance of duties which their respective employments require, does not constitute such a publication of the libelous matter contained in the letter as will support an action of libel against the corporation.</p>

<p>Who may enjoin a street railroad constituting a public nuisance — special damage must be shown by one not owning the fee of the street— discretion of the court in granting the injunction — extra allowance ■—•practice — records on appeal.</p> <p>Although the unauthorized maintenance of a railroad in a city street constitutes it a public nuisance, an owner of property bounded by the exterior'line, of the . street, not owning the fee thereof, is not entitled to enjoin such maintenance and operation óf the railroad, in the absence of proof that he has suffered special damage therefrom.</p> <p>Even where it appears, in such a case, that special damage has resulted to the owner, and that the railroad was constructed without the necessary consents having been obtained, it rests within the discretion of the court either to grant an immediate injunction or to give the railroad company a reasonable time within which to obtain such consents.</p> <p>In such a case, in order to justify the granting of an additional allowance, proof must be given, or it must appear what the value of the subject-matter of the action- was.</p> <p>Where separate appeals are taken by the plaintiff and defendant respectively, each of whom makes up a separate record for the presentation of his appeal, each must stand upon the particular record so made by him for the' assertion of the legal rights to which he claims to.be entitled. '</p>

<p>Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the plaintiff, Kathrina Kaab, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 5th day of April, 1898, denying her motion to vacate an order obtained by the defendant for her examination, before trial, and for her physical examination by a physician.

Appeal by the defendant, Mary A. Kearns, as administratrix of Ellen Donnelly, deceased, from a judgment of the Supreme Court in favG.yqf the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of January, 1898, upon-the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term, the court reserving the final decision until thé presentation of findings; and subsequently, having found certain facts and…

Appeal .by the plaintiff, Mel-vi-n H. Taylor, from a judgment of ' the Supreme Court in favor of tiie defendant, entered in the office of the clerk of the county of Kings.on the 23d day of March, 1898, upon the dismissal of the complaint by direction of the court after a trial,, at the Kings County Trial Term.

Appeal by the defendant, The Congregational Church of Greenfield, L. I., from á judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of February, 1898, upon the decision of the court, rendered after a trial at the Kings County Special Term, adjudging that a mechanic’s lien filed in said clerk’s office on the 10th day of - May, 1892, by one Andrew Mortenson, was a good and valid lien, to an extent…

<p>Tax — assessment against two administrator's who have transferred, the control of the estate to a third administrator— a depositor in a savings hank is not exempt ■ from taxation on Ms deposit.</p> <p>'An assessment for taxation against two administrators of a decedent, made to the extent of two-thirds of his personal property by the assessors of the town in which they resided and in which the decedent resided at the time of his death, is proper, notwithstanding the fact that such• administrators have, .“for the sake of convenience and expediency, and to relieve themselves from the cares of management,” agreed with a third administrator, living in another town that the latter “should have sole control.and possession of the assets and estate” of said decedent, and that said third administrator actually took and assumed the sole control and possession of the property.</p> <p>A depositor of money in .a savings bank in the State of New York is not exempt from taxation thereon by subdivision 14 of section 4 of the Tax Law (Chap. 908, Laws of 1896).</p>

<p>Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of February, 1897, upon the verdict of a jury for $25,000, rendered after a trial at the Kings' County Trial Term, and also from an order entered in said clerk’s office on the 17th day of March, 1898, denying the motion of the defendant for a new trial made upon the minutes. ■</p>

Motion by the defendants, Lewis Nixon and others, for a new trial made upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term.

Appeal by the defendant, Catherine L. Meeks, as executrix, etc., of Joseph W. Meeks, Jr.,, deceased, substituted in place of the defendant Wilmot M. Smith, as committee of the person and property of Joseph W. Meeks, from a judgment of the Supreme Court in favor of the other defendants, entered in the office of the clerk of the county of Suffolk on the 18th day of January, 1896, upon the decision of the court rendered after a trial at the Suffolk Special Term.

Appeal by the defendant, The' Bellevue Land and Improvement Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 8th day of January, 1898, upon the decision of the court rendered after a trial.at the Erie Special Term.

Appeal by the plaintiff, Warren 0. Miller, from a judgment of the Supreme Court in favor .of the defendants, entered in the office of the clerk of the county of Monroe on the 15th day of December, 1897, upon the dismissal of the complaint by direction of the court, after a trial at the Monroe Trial Term, upon the grounds : First, that no negligence was shown on the part'of the defendants, and, second, that if negligence were shown, . still the plaintiff had no right to…

Appeal by the defendants, Chauncey H.. Lum and others, from an interlocutory judgment of the 'Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orleans off the 2d day of March, 1898, upon the decision' of the court rendered after a trial at the Orleans Special Term, overruling the said defendants’ demurrer to the plaintiff’s amended complaint.

Appeal by the defendants, Stephen W. Van Deventer and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yates on the 5th day of November, 1897, upon the decision of the court rendered after a trial at the Yates Special Term.

Motion by the plaintiff, the Lawyers’ Co-operative Publishing Company, for a new trial, made upon a case containing exceptions, ordered to be heard. at the Appellate Division in the first instance upon the verdict of a jury, in favor of the defendant, rendered by. direction of the court after a trial at the Monroe Trial Term. This action was begun May 19, 1897, to recover damages-for the publication of an alleged libel.

Appeal by thé defendant, E. Webster, Son & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 20th day of May, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of May, 1897, denying the defendant’s motion for a new trial made upon the minutes. .

' Appeal by the defendant, The, Standard Oil Company, from an order of the Supreme Court, made at the Cayuga Trial Term and entered in the office of the clerk of the county of Cayuga on the 27th day of May, 1898, denying the defendant’s motion for a new trial made upon the minutes, the jury having rendered a verdict in favor of the plaintiff for $402.66.

Motion .by the defendants, Alonzo Porter and John M. Goodwin, for a new trial, made upon a case containing exceptions, ordered to be heard at the Appellate Division . in the first instance upon the verdict of a jury in favor of the plaintiff for $1,125, rendered by direction of the court after a trial at the Allegany Trial Term.

Appeal hy the defendant, Thé New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court' in favor of the plaintiff, entered in the office of the clerk of the county of. Onondaga on .the 22d day of October, 1897, upon the verdict of a .jury for $3,000, and also from an order entered in said clerk’s office on the 21st day of October, 1897, denying the defendant’s motion for a new trial made upon the minutes. ■

■ Appeal by tbe defendant, Tbe Solvay Process Company, from a judgment of the County Court of Onondaga County in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 11th day of November, 1897, upon the verdict of'a jury, and also from an order dated the 1.1th day of November, 1897, and ■entered in said clerk’s office, denying the defendant’s motion for a .new-trial made upon the minutes.