Volume 32 — New York Miscellaneous Reports

<p>Motion to vacate an order requiring Charles W. Morse and certain other persons to appear before a referee to be examined pursuant to the provisions of chapter 690, Laws of 1899, and requiring them, to produce certain books and papers mentioned in the order. Also return of alternative writs prohibiting the execution of said order.</p>

<p>Attachment — Insufficient affidavit, made by attorney, for goods sold — Code C. P., § 635.</p> <p>A statement, in an affidavit made by an attorney to procure an attachment for his clients, that “ the grounds of said claim and cause of action” are for a sale and delivery of certain butter, at a price named, is not a statement that the butter was in fact sold and delivered, and, therefore, does not show that one of the causes of action specified in section 635 of the Code of Civil Procedure exists against the defendant.</p> <p>A further statement of the affidavit, that the affiant made a written demand of payment, and that thereupon the defendant sent him an assignment of a claim against a third party in part payment, when not accompanied by copies of the demand and assignment or by any proof that the demand stated the amount of the claim, does not show that such payment was not in full, or that anything how remains due on the debt.</p> <p>A further statement of the affidavit that a sum named therein remains due the plaintiffs “ over and above all counterclaims and set-offs known to deponent ” (the attorney) is defective, as the Code requires this statement to be made on the knowledge of the plaintiffs themselves.</p>

<p>Equity — When an encroaching wall will not be decreed to be removed.</p> <p>Equity will not decree the removal of a wall, which is alleged to encroach slightly upon an adjoining lot, where there has been a practical location of the division line between the properties that has remained unquestioned for many years, and where the plaintiff has not, as he apparently might have done, introduced in evidence a map of the locus in quo, referred to in the deeds, and which, if proved, would probably have decided whether an encroachment actually existed.</p> <p>The remedy of the plaintiff must be confined to an action at law for damages.</p>

<p>■Action to foreclose a mortgage.</p>

<p>Application for the appointment of a receiver pendente lite, in an action for a partnership accounting.</p>

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

<p>Action to recover moneys on deposit.</p>

<p>Action against acceptor of hill of exchange.</p>

<p>1. Libel — Words not charging a chief of police with assisting a criminal to escape — Eight to arrest without a warrant.</p> <p>A publication, of and concerning the chief of police of a village, that he was the last man who saw the defaulting cashier of a bank in the village, at its railroad station,, that he remarked to the cashier that he seemed in a great hurry to leave and in a joking manner</p> <p>askecl why he did not wait until a warrant came and save the trouble of following him up, is not libelous as charging the chief of police with assisting a criminal to escape, in violation of section 87 of the Penal Code.</p> <p>Semble, that the words in question contain no implication that the chief of police had violated his duty in not arresting the cashier without a warrant, nor any implication that he had reasonable cause for believing that the cashier had committed-a felony.</p> <p>That a peace officer could arrest without a warrant only where a crime had been committed in his presence or, in the case of a felony, where he had reasonable cause for believing the person to be arrested to have committed the crime.</p> <p>2. Same -— Pleader bound by the meaning he has attributed to words.</p> <p>Where the plaintiff has alleged that the words published have a particular libelous meaning, he is bound by the meaning alleged and cannot, on demurrer to the complaint, fall back on some other meaning, even though it may seem truer or more reasonable than the first.</p>

This is a proceeding supplementary to execution to examine the judgment debtor. The judgment was rendered by the Municipal Court of the city of New York, first district, borough of Manhattan, on the 26th day of March, 1900. A transcript thereof was duly filed in the office of the clerk of the county of New York, the county embracing that judicial district, and a judgment thereon duly docketed in said clerk’s office.

<p>Pleading — Denial, in hæc verba, bad and frivolous.</p> <p>A denial of a counterclaim, in Meo verba, is bad as a negative, pregnant with the substantial truth of the matter purported to be denied, and will, therefore, be stricken out as frivolous.</p> <p>The proper method of denial considered.</p>

<p>Motion by the plaintiffs to strike out matter pleaded as a defence as irrelevant.</p>

<p>Applications by the committee of an incompetent person for an accounting and discharge.</p>

<p>Motion for an injunction pendente lite.</p>

<p>1. Assignment for benefit of creditors — Retention of estate, by assignee, must be explained.</p> <p>Where a general assignee, instead of selling the trust estate, retains it for a long time, repairs it extensively, and sells some of it on credit, he must show that his delay and methods were for the benefit of the estate, or he will be charged with the resulting loss.</p> <p>2. Same — Notice in regard to claims objected to.</p> <p>Where certain of the creditors object to the claims presented by other creditors, the court will not consider the matter until the claimants have been served with notice of the objections and have had opportunity to prove their claims.</p> <p>3. Same — Preference of assignor’s personal taxes.</p> <p>Personal taxes due by a general assignor, a corporation, to the city of New York are a preferred claim against the estate.</p> <p>4. Same — Independent contractors are not entitled to a preference as “ employees.”</p> <p>Independent contractors with a general assignor, for work to be done upon materials furnished by it, are not its “ employees ” and are entitled to no preference in payment as such.</p> <p>5. Same — Rule 3 of the Rules of the First Department must be followed.</p> <p>Buie 3 of the Buies of the First Department, requiring that notice to present claims to the referee be sent to all the creditors upon the books of the general assignor, must be observed.</p>

<p>Certiorari to review the determination of the Commissioners of Taxes and Assessments of the city of New York.</p>

<p>Altebnative writ of mandamus to reinstate the relator as an assistant schoolteacher.</p>

<p>Application for interest on plaintiff’s claim.</p>

<p>Equity — An accounting, which had been demanded, waived and a money judgment granted.</p> <p>The plaintiff brought an equitable action against the defendant, who was the widow and administratrix, with the will annexed, of the plaintiff’s son, and also his sole legatee and devisee, upon allegations that the son was, at his death, indebted to the plaintiff, upon a formal account rendered, for moneys theretofore received by him in a fiduciary capacity. The plaintiff demanded an accounting, and a judgment against the defendant as administratrix for the amount which might be found to be due, further demanded an accounting in regard to certain real estate, devised by the son to the defendant, and in which the plaintiff alleged that her son had Invested her moneys in whole or in part, and, upon this claim, she asked judgment against the defendant individually, either that the property be conveyed to her, or that the son’s interest in it be sold to satisfy the debt. The defendant answered, making certain denials, but gave no evidence upon the trial of the action.</p> <p>Held, that the complaint showed a cause of action of an equitable nature, that the court would not remit the plaintiff to her remedy at law, that she would be permitted to waive the accounting which she had demanded — as having become unnecessary under the circumstances — that she might also waive the relief demanded against the defendant individually as devisee of the real estate, and would be permitted to take merely a money judgment against the defendant as administratrix for the amount conceded to be due from the son and not paid by him or by the administratrix.</p>

<p>1. New York Juvenile Asylum — Power to apprentice children voluntarily surrendered.</p> <p>The New York Juvenile Asylum, incorporated under chapter 332 of the Laws of 1851, has no power to apprentice children, voluntarily surrendered to it, for a term longer than that of their surrender, their parent not consenting.</p> <p>3. Same — Children not before the court on a writ of habeas corpus — Jurisdiction.</p> <p>The fact that the children are not before the court, they having been apprenticed by the New York Juvenile Asylum in another State* and the persons to -whom they were apprenticed refusing to surrender them, affords no reason for dismissing a writ taken out by the father to procure their custody, as the sending of the children to the foreign State was an illegal act and may be regarded as a taking of them beyond the State of New York for the purpose of avoiding jurisdiction.</p> <p>3. Same — Effect of foreign statute legalizing apprenticeship.</p> <p>A statute of the foreign State, legalizing indentures of apprenticeship made between its citizens and the New York Juvenile Asylum, can be given no extra-territorial force and cannot legalize an indenture of apprenticeship which is illegal under the laws of the State of New York.</p>

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

<p>1. Civil service — Temporary position in New York city.</p> <p>An appointment to a position in the civil service of the city of New York, made in 1898 and when no eligible list for the position existed, is temporary in its nature, and the appointee may, under the rules of July 11, 1899, be summarily discharged in one month from the latter date.</p> <p>8. Same — Construction of Regulation 43 of the Rules of March 5, 1898.</p> <p>Semble, that, under Regulation 43 of the Civil Service Rules in effect March 5, 1898, a person who was honorably dismissed from the service of the city in August, 1895, but had never passed any examination for his position in the classified service, could not, upon applying for re-employment within three years next ensuing, be appointed permanently, and could only be appointed temporarily.</p>

<p>Certiorari to review the determination of the commissioners of taxes and assessments of the city of New York.</p>

<p>Trademark — Infringement.</p> <p>A tobacco label must be deemed an infringement of that of another manufacturer where, although points of difference exist, there is such a general resemblance, in the forms, symbols, marks, arrangement and appearance of both labels, as would be apt to deceive an ordinary buyer purchasing under the ordinary conditions of the tobacco trade.</p> <p>The fact that the similarity is restricted to the top of the box, and that the wrappers on the bottom are essentially different, does not make the use of the imitating label any the less an infringement.</p>

<p>Action by judgment creditor and the sheriff of New York county in aid of an attachment after judgment.</p>

<p>Bicycles — Constitutionality and construction of Side Path Law, Laws 1899, chap. 152 — Rights of abutting owner.</p> <p>The Side Path Law (L. 1899, chap. 152, § 2), authorizing the board of side path commissioners thereby created to construct and maintain side paths on public roads, designed for the exclusive use of bicycles, is constitutional.</p> <p>An abutting owner, owning the fee in the highway to its center, is not entitled to compensation for the construction of a side path in front of his premises, as a highway is impliedly dedicated to those uses which the public may require in the future, and bicycles have become a public use.</p> <p>The provisions of said section 2 that “ No side path shall be constructed upon or along any regularly constructed or maintained sidewalk, except upon the consent of the persons owning the abutting lands,” were intended to prevent the appropriation of any portion of a regularly constructed sidewalk for a bicycle path, but were not intended to forbid the construction of a bicycle path beside or adjoining any such sidewalk.</p>

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

<p>Landlord and tenant — An abandonment, for untenantability, must be prompt.</p> <p>A tenant who deems premises untenantable must abandon promptly, and where he waits more than a year before doing so, he waives his right to repudiate the hiring.</p>

<p>Attorney and client — The attorney cannot retain counsel to assist him.</p> <p>An attorney has no right to retain associate counsel and charge his client therefor, unless the latter has assented to such retainer with full knowledge of the facts.</p>

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of New Yolk, borough of Manhattan, in favor of the plaintiff, upon a trial had before the court without a jury. The action was for broker’s commissions.</p>

<p>Judgment — Admissibility, on appeal, of record evidence to support.</p> <p>Where the record of the trial of an action for negligence in the Municipal Court of the city of New York does not show that, at the time of the accident, the defendant was a domestic corporation, having its principal place of business in the city of New York — a fact necessary to jurisdiction in that court — the plaintiff may, in support of her judgment, supply the defect, on appeal, by introducing on the argument a certified copy of the certificate of the defendant’s incorporation.</p>

Motion by Louise W. Ruchte to be made a party to this proceeding, and to vacate and set aside the report of the commissioners herein, as regards parcel No. 5. The Grade Crossing Act relative to the city of Buffalo is Laws of 1888, chapter 345, as amended by Laws of 1890, chapter 255, and Laws of 1892, chapter 353.

<p>1. Municipal Court of the city of New York — Trial fee not to he exacted on default where a summons and verified complaint have keen served.</p> <p>Where in an action in the Municipal Court of the city of New York a verified complaint is served with the summons, and the defendant does not file a verified answer on the return day, the plaintiff is entitled to judgment, and a justice of the said court has no authority to exact a trial fee as a condition of entering the same. Nor can such fee be exacted in advance of an issue being joined, or as a condition of the case being called on the return day, to be returned if no issue be joined.</p> <p>3. Same — When an individual may serve summons.</p> <p>"Where a plaintiff in the said court leaves a summons to be served by a city marshal and pays the statutory fee, he is entitled to have a city marshal make the service. The justice has no right to empower an individual to make such service except on the plaintiff’s request.</p>

Motion to compel the plaintiff to accept service of an answer, which was returned on the stated ground that it was not properly verified for the defendant, a foreign corporation, in that the secretary of the defendant, who verified it, did not set forth in his affidavit of verification the grounds of bis belief as to the matters stated on information and belief in the answer.

<p>Liquor Tax Law — Rebate refused, on surrender of certificate, if any complaint for violation of statute is pending.</p> <p>Under the Liquor Tax Law (L. 1896, chap. 112, § 25), an unexpired liquor tax certificate cannot be surrendered and a rebate recovered where any complaint, prosecution or action for a violation of the statute is pending against the holder of the license whether the said violation occurred during the running of the certificate sought to be surrendered or at any time prior.</p>

Demurrer to return to an alternative writ of mandamus, on the ground that the defenses alleged in the return are insufficient in law upon the face thereof.

Action by plaintiff against the sole executrix of a last surviving trustee, to recover an undivided one-seventh part of a certain sum received by said trustee on May 4, 1854.

<p>Action under the statute to recover a fine collected by the defendant.</p>

Application by the relator for a writ of peremptory mandamus requiring the above named boards of inspectors and boards of town canvassers to reconvene and reject all votes cast in said election districts upon the subject of local option at the election of November 7, 1899.

This is an application for a writ of peremptory mandamus requiring the respondents to reconvene and reject all ballots cast by the electors of the town of Randolph at the election of 1899 upon the subject of local option in said town.

Action for damages for conversion of chattels. The New Paltz & Walkill Valley Railway Co. obtained the said chattels from the plaintiff under a written contract of conditional sale, i. e., that the title thereto should not pass from seller to buyer until the purchase price had been paid in full in specified installments. Upon delivery of the said chattels the said railway company paid the plaintiff one third of the purchase price, but never paid any of the balance.

<p>1. Attorney’s offer to arbitrate a claim — Ratification — Evidence.</p> <p>Where an attorney, retained to collect a claim for stone sold, submits it to arbitration, and his act is ratified by his client, the award and its performance by the vendee are a good defense to him against a subsequent action for the price, and it is erroneous for the trial court to exclude proof of them in such an action.</p> <p>2. Same — Scope of arbitration.</p> <p>Where the attorney’s offer to arbitrate states that the vendor is perfectly willing that a person named therein “ should go over your (the vendee’s) accounts, measurements and adjustment, and everything else which you desire to exhibit ”, the arbitrator does not exceed his authority if he considers and makes an award for disputed items of excess freight, and for measurement of the stone while in the cars by which it was shipped.</p> <p>3. Attorney’s admissions after retainer.</p> <p>A letter of the attorney, written after retainer but before action brought and apparently in the presence of his client, in which he refers to the arbitration, complains of the award as too small, and returns a check of the vendee as inadequate, is admissible against the vendor, as proof that there had been an arbitration and offer of performance, and, therefore, the exclusion of the letter upon the trial is erroneous.</p> <p>Beekman, P. J., dissented.</p>

<p>Principal and agent — Middlemen distinguished from brokers — Brokers cannot act for both sides — Complaint.</p> <p>Real estate brokers are distinguished from middlemen by the fact that the former must be faithful to their principal and have a fixed rate of compensation, while the latter may act for both sides and their compensation is dependent upon agreement.</p> <p>Although brokers have been paid nothing by the other side, they cannot recover of their principal where, without the latter’s knowledge, they have acted for both sides.</p> <p>Where brokers sue upon a complaint containing the allegations usual in pleading brokers’ services, they cannot recover thereunder as middlemen.</p>

Appeal By the plaintiffs from a judgment of the Municipal Court of the city of New York, tenth district, borough of Manhattan, in favor of the defendant.

Action for libel. Motion by the plaintiff to strike out parts of the answer as irrelevant and redundant. The body of the complaint is as follows: “ 2.

<p>Case — The title of the cause need appear but once.</p> <p>In preparing a case on appeal, the title of the action need be written and printed but once, and all papers and proceedings should then follow under proper sub-headings.</p>

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

<p>1. Crimes — Dismissal of indictment — Construction of Code Crim. Pro., §§ 313, 671.</p> <p>Section 313 of the Code of Criminal Procedure merely states those grounds upon which an indictment “ must ” be set aside upon the defendant’s motion, and the court still has power, under section 671 of said Code, in furtherance of justice, to set it aside on grounds not mentioned in said section 313, e. g., where there is no legal evidence to support it.</p> <p>2. Same — Dismissal of indictment for failure to produce any “ legal evidence ”, before grand jury, that a police captain had willfully omitted to perform his duty.</p> <p>Where a police captain is charged under section 154 of the Penal Code with a willful omission to perform a duty enjoined upon him by law, in that he did not attempt to detect or arrest the keeper of a house of ill-fame and assignation where unlawful and disorderly conduct and practices were alleged to have been committed, proof, made before the grand jury, that persons in the place conducted themselves in a disorderly manner — without stating what took place — and that women “ solicited ” the witnesses, by merely asking them to “ go out and have a good time ”— without more — affords no “legal evidence”, within the meaning of section 256 of the Code of Criminal Procedure, of any willful omission of duty, and the indictment will therefore be dismissed by the court as having no legal evidence to support it.</p>

<p>Crimes — Adjournments to procure attendance of foreign prosecuting-witnesses — Code Grim. Pro., § 191.</p> <p>Where it appears, upon the examination of a person charged with larceny in bringing stolen goods into the State of New York, that the crime was recently committed in England, that the witnesses to-it, the owners of the .property, have not yet returned from England, and the goods found in the possession of the defendant are duly identified as the property of the said owners, and the defendant fails-to explain his possession of the goods, the magistrate may, under-section 191 of the Code of Criminal Procedure, adjourn the examination from time to time, not exceeding two days at each time, until said witnesses and owners can, in the exercise of reasonable diligence,, -return to this State and testify.</p>

<p>Application on habeas corpus to discharge prisoner from imprisonment.</p>

<p>Sale in action to compel specific performance — Disposition of unexpected surplus.</p> <p>Where a sale of land, directed to be made in an action brought to make a vendee specifically perform bis contract to purchase the land, unexpectedly results in a surplus over and above the sum due the vendors, the surplus belongs to the vendee and the vendors are not entitled to it, although they have been at considerable expense, in compelling by action a third party, who bought at the sale, to take title to the land, and although the vendee had agreed with the vendors that he would bid at that sale a sum sufficient to pay their claim and the costs and expenses.</p> <p>The fact that the vendee had agreed with the vendors to contribute, but bad not paid, a small sum towards the expense of compelling the third party to take the title, imposes upon the vendee nothing more than a contract liability to pay that sum to the vendors, and does not entitle the latter to take the sum out of the surplus.</p>

Action begun November 12, 1895, on a bond, given December 8, 1886, by John H. Schilling, as guardian of the property of the plaintiff, then a minor, and upon which bond the defendants Bryant and Van Riper were sureties. Schilling lost the fund, which consisted of $500. The sureties replaced it and deposited it, to the joint credit of Schilling and themselves, in a trust company which became insolvent in 1891, and the fund was wholly lost.

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

<p>1. Statute of Frauds — Original promise — A consideration must move to the promisor and he beneficial to him.</p> <p>A verbal promise of an employer, made to a creditor of his employee, to the effect that he would deduct monthly a certain sum from the salary of the employee so long as he was employed and pay it to the creditor upon his claim, accompanied by a verbal agreement that the creditor would accept half the debt if paid within a month, is not enforcible against the employer as an original promise, for no consideration, beneficial to him, has moved to him from either the creditor or the debtor.</p> <p>2. Same — Memorandum must state all the material terms of the contract.</p> <p>Where the creditor also relies upon an unsigned memorandum of the said contract and upon a letter of the employer to him acknowledging that the memorandum correctly stated “ the points of settlement and the manner of payment thereof ”, the creditor cannot recover thereunder where it is apparent, from the evidence, that the memorandum does not state all the material terms of the contract.</p>

<p>1. Summary proceedings — Invalid lease by grantor of landlord — Ratification.</p> <p>A grantee of premises is not precluded from dispossessing a tenant by the fact that a lease of the premises, purporting to have been made by the landlord’s grantor, is apparently in force, where it is shown that the latter did not authorize the making of the lease, was ignorant of its terms and had not ratified it in any manner beyond accepting rent under it under a misapprehension as to the length of the term.</p> <p>2. Same — Recital, in a deed, of an invalid lease.</p> <p>A recital in a deed of the grantor that the conveyance was accepted subject'to the rights of present tenants, “ all of which expire on or before May 1, 1902 ”, is not a recognition by the grantee of the invalid lease as valid and outstanding.</p> <p>3. Same — Termination of invalid lease in the city of New York.</p> <p>An invalid lease of real property in the city of New York terminates under the Real Property Law on the first day of May next after the occupation commenced.</p>

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

<p>Appeal from a final order of the Municipal Court of the city of New York, second district, borough of The Bronx.</p>

<p>Application for an order revoking and cancelling liquor tax certificates.</p>

<p>Action to recover damages for alleged breach of contract.</p>

<p>Application on habeas corpus to be discharged from imprisonment.</p>

<p>Application on habeas corpus for discharge from imprisonment.</p>

<p>1. Equitable action for accounting of royalties — Want of consideration for license — Bight of State court to pass on a patent — Suing infringers — Licensee’s right to terminate a license.</p> <p>Where patentees sue their licensee for royalties, the defense of a want of consideration fails where it appears that the patent has never been declared invalid and that the patented article is in general use and demand and is of practical utility.</p> <p>Semble, that a State court has jurisdiction to pass upon the validity of a patent where the question is raised collaterally, but will hesitate to declare a patent invalid.</p> <p>Semble, that where patentees have expressly agreed to protect their licensee against suits for infringement, there is no implied obligation upon them to sue infringers — certainly none, unless the licensee produces proof, or reliable information, of infringement.</p> <p>Semble, that a licensee cannot by a mere notice, upon allegations, terminate the license, but must show that circumstances, not within the contemplation of the parties, have since arisen which make it inequitable that the licensee should remain bound.</p> <p>2. Same — Right of action.</p> <p>Where patentees desire an account of royalties and also a discovery of the number of their devices which have been used by their licensee, equity may properly be resorted to by them, although a discovery may, by agreement of the parties, have since become unnecessary.</p>

<p>1. Liquor Tax Law — Revocation of certificate not affected by its expiration during the proceeding.</p> <p>Where a liquor tax certificate holder has violated the statute, a proceeding by a citizen to cancel the certificate is not impaired by the expiration of the license during the pendency of the proceeding.</p> <p>2. Same — Discharge in criminal proceedings not a bar.</p> <p>The discharge of the certificate holder, in a criminal prosecution based on the very acts constituting the violation upon which a citizen now seeks under the Liquor Tax Law to procure cancellation of the certificate, is not a bar to the latter proceeding.</p>

<p>Liquor Tax Law — Consents cannot be filed nunc pro tunc.</p> <p>The Liquor Tax Law requires the necessary consents of the owners of dwellings to be filed before a certificate is issued, and the court has no power, after a citizen has applied to have the certificate revoked, to permit the holder thereof to file such consents nunc pro tunc.</p>

<p>Savings bank — Negligent payment to a stranger who made a mark unlike the depositor’s.</p> <p>Where a bank, doing business as a savings bank, and having a depositor, with a place of business in the neighborhood, who could only make his mark, pays the deposit to a stranger presenting the book, and the latter makes a mark different from that of the depositor and is merely identified by a third person as a depositor, and the bank makes no effort to ascertain for itself the truth of the situation, the question whether the bank has exercised proper care in making the payment is one for the jury and a verdict for the depositor will not be disturbed.</p>

<p>Married woman — Accommodation note made by her in contravention of foreign statute — Renewal note — Consideration.</p> <p>Where a foreign statute forbids a married woman from becoming an accommodation guarantor or surety and from being answerable for the debt of another, a note, payable in the foreign State and there made by her for her husband’s accommodation and benefit, is not enforcible against her; nor is any consideration afforded to a renewal note, executed by her alone after her husband’s death, by the creditor’s promise to her that, if she would make it, he would not press the estate of her husband for the payment of the debt represented by the first note, and upon which the husband was an indorser.</p>

<p>Negligence — When the doctrine of the negligence of fellow-servants does not apply to exonerate the master.</p> <p>A carpenter, and a laborer employed to clean up a building in which the carpenter is working, although employed by the same master, are riot engaged in the same line of business, and, therefore, where the carpenter is injured by a shutter thrown by the laborer out of an upper window of the building, the master cannot escape liability to the carpenter under the contention that he and the laborer were fellow-servants.</p>

<p>1. Negligence — Rule of recovery where an occupant of premises has ceased to be a servant and has become a tenant.</p> <p>Where a woman, who went into the occupation of premises under conditions which made her to some extent the servant of the owner, subsequently voluntarily assumes to him the relation of a tenant, she cannot, when thereafter injured by ,a defect in the premises, recover under the rules of law applicable to master and servant, but only under those relative to landlord and tenant.</p> <p>2. Same — Contributory.</p> <p>She cannot recover for injuries received as a tenant where she has voluntarily exposed herself to dangers which she knew existed at the beginning of her occupation.</p>

The action was brought to recover damages for a refusal to honor the plaintiff’s check. The restraining order forbid the bank to transfer or dispose of its indebtedness due to the judgment-debtor, Max Strauss, “ and particularly to transfer or pay out for and on account of the moneys on deposit with it to the credit of the name of and under the account name of R. Strauss, or in any manner to interfere therewith until further order in the premises.”

The action was brought to recover for legal services alleged to have been rendered to the defendant, a Colorado corporation. The principal defenses were that, before the action was brought, the defendant had been consolidated, in Colorado, with the Colorado Duel Company, that thereby the defendant was dissolved and that a new successor corporation was thereupon created, in Colorado, under the name of The Colorado Fuel & Iron Company.

Reargument of an appeal from a judgment of the City Court of the city of New York, entered upon a verdict for the plaintiff, and from an order denying a motion for a new trial on the minutes. Action by a passenger to recover damages for being excluded from a sleeping car of the defendant. The plaintiff, a newspaperman, on the morning of July 10, 1899, at Cleveland, O., secured and paid for a lower berth on the evening train for blew York.

<p>Appeal from an order made at Special Term, denying the motion of the defendant to set off a judgment obtained in his favor against the plaintiff in the Supreme Court, New York county, against the several judgments recovered by the plaintiff against the defendant in this action;-both actions being brought for the same cause, the complaint alleging the same state of facts and seeking the same relief.</p>

Appeal by the defendants from a judgment of the City Court of the city of New York, entered on a verdict of a jury in favor of the plaintiff, and from an order denying a motion for a new trial.

<p>Principal and agent — Former not bound by admissions of the latter, unless a part of the res gestae.</p> <p>Where a customer sues a company for injuries alleged to have been received by her from the negligent manner in which her nails were manicured by its servant, it being alleged that blood poisoning ensued, admissions of the operator, made six days after the treatment, to the effect that the instruments had never been sterilized, are inadmissible against the defendant — the rule being that the admissions of an agent do not bind the principal unless they are a part of the res gestæ.</p>

<p>1. Services — An. allowance for “ expenses ”, per diem, does not include daily board.</p> <p>Where employers promise in writing to pay an employee a “ salary of $900 per annum and an allowance for his expenses not to exceed the average of $5 per day ”, he cannot recover of them, under the allowance for his expenses, his daily board or living expenses.</p> <p>2. Same — Proof of value of board.</p> <p>The employee cannot be permitted to “ estimate ” the value of his board per diem, but should give the facts and the jury should: make the estimate.</p>

<p>Action on policy of insurance.</p>

<p>Demurrers to answers.</p>

Petition of Ernest M. Welch, the attorney for the plaintiff, to set aside the satisfaction of a judgment for plaintiff herein for $10,650.76, given by the guardian ad litem and general guardian of the plaintiff; for the security and enforcement of the said attorney’s lien for his compensation herein.

Petition by H. Huffman Browne, attorney for the plaintiff, for permission to continue this action for his own benefit as such attorney, the same having been settled by the parties.

Action by plaintiff to have an attempted consolidation by it and defendant declared illegal; to enjoin defendant and its members from interfering with certain lots claimed to be owned by it in a burial-ground; to declare plaintiff the owner of such lots, also the owner of certain personal property, etc.

<p>Action to recover penalties for refusing to supply plaintiff with natural gas for lighting purposes.</p>

<p>Motion to vacate a warrant of attachment.</p>

<p>Parties — Insurers, who have paid a loss by fire, are necessary parties to an action against a railroad company which caused it — Multiplicity of suits avoided.</p> <p>A defense, interposed by a railroad company, the sole defendant in an action brought against it for the destruction of plaintiff’s premises by fire, which alleges that insurers of the premises have paid the loss in whole or in part and that they having become subrogated to the plaintiff’s rights, to the extent of such payments, are necessary parties, is good as a plea in abatement and is not demurrable.</p> <p>Where a cause of action arises out of a single tort, and the plaintiff has a direct interest therein and his insurers have an interest by subrogation, all should be joined in one action to avoid a multiplicity of suits.</p>

<p>Motion for a retaxation of costs.</p>

<p>Motion after trial and verdict to dismiss the complaint, and set aside the verdict.</p>

<p>Liquor Tax Law — Suspension of traffic — Answers of application not willfully false.</p> <p>A building, for a long time prior to and on March 23rd, 1896, occupied as a hotel (but not used for traffic in liquors on that day), was burned in September, 1897, was sold to the present owner in April, 1898, the latter in 1898 cleared the ruins and erected a barn, filled the ice-house in 1899, and in the same year completed the present hotel.</p> <p>Held, that the suspension of traffic did not work a forfeiture of the privilege, conferred by the Liquor Tax Law, a place occupied as a hotel on March 23rd, 1896, exempting it from procuring the consents of owners of buildings occupied exclusively as dwellings.</p> <p>That, upon such a state of proof, statements in the application for a liquor tax certificate, to the effect that the owner could lawfully carry on traffic in liquors, that consents were not required, and that the place had been occupied for traffic in liquors and for hotel purposes for forty years last past, were not willfully false and did not justify a revocation of the certificate upon the ground of the falsity of said statements.</p>

<p>Action for partition.</p>

<p>Action to restrain the defendants from using the plaintiffs’ docks in any manner, and from placing or mooring or permitting others to place or moor vessels alongside of such docks, or any part thereof, and for damages.</p>

<p>1. Guaranty — When insufficient.</p> <p>A letter, written to prospective vendors, relative to parties named Singer and Romanoff, who subsequently formed a partnership and bought goods of the vendors, accompanying an order by Singer for the first bill of goods stating: “ He (Singer) wishes to purchase a full line of groceries and I recommend him to you. They (Singer and Romanoff) are perfectly reliable and will pay as soon as bills mature. Any favor conferred upon Mr. D. H. Singer will be appreciated by me ”, is not a guaranty, upon the part of the writer of the letter, of the debts, present or future, of Singer or of those of Singer and Romanoff.</p> <p>2. Same — When not continuing.</p> <p>Assuming the letter to constitute a guaranty, it is not a continuing one and applies only to the first bill of goods.</p>

Action to recover a penalty because the defendant refused to issue to the plaintiff a mileage book, at two cents a mile, as required by chap. 1027, of the Laws of 1895, and acts amendatory thereof.

<p>Action for an absolute divorce.</p>

<p>1. Partnership — Dealings between partners.</p> <p>Where,one partner gives another partner his note so that the latter may individually discount it and afford capital for the firm and this is done, the general assignee of the payee cannot recover of the maker the amount of a renewal note, where there has never been any adjustment of the partnership affairs.</p> <p>2. Same — Accounting ordered in an action at law.</p> <p>Where the maker alleges such an equitable defense to the note and demands an accounting of the partnership affairs, the court will order an accounting and will not compel the maker to bring a new action in equity for that purpose.</p>

<p>Fine — When the General Sessions will not remit ,a fine imposed by the Special Sessions.</p> <p>The Court of Special Sessions in the city and county of New York has power to remit a fine imposed by it, and, therefore, the Court of General Sessions of the Peace in said city and county, although having power to do so, will not remit a fine imposed by the former court, where no application in the matter has been made to it and where no good reason is assigned why the Court of General Sessions should act.</p>

<p>Demurrer to a complaint in an action to restrain the assessors of the town of Alden from inserting in the assessment-roll of said town the valuation of plaintiff’s so-called special franchise in said-town, as fixed and determined by the State Board of Tax Commissioners.</p>

<p>Discovery — Excused, where it would tend to convict one of a crime.</p> <p>The rule that no person shall be compelled in any criminal case to be a witness against himself is applicable to civil actions; and where one of the defendants in such an action, the president of an elevating association, alleged that the discovery of certain contracts, in process of performance, made between his association and certain defendant railroads, would tend to show a conspiracy among the defendants to injure trade and commerce in violation of section 168 of the Penal Code, the court vacated an order which had directed the president to make such discovery.</p>

<p>Election Law — Compensation for publishing election notices not limited by Code C. P., § 3317.</p> <p>The rate of compensation fixed by section 3317 of the Code of Civil Procedure for the publication of certain legal advertisements, .other than the session laws, does not govern compensation for the publication of notices required to be published by the Election Law relative , to the places of registration and election in the election districts and the boundaries of said districts, and therefore the common council of a city, which has made no regulation in regard to the expense of the latter services, may lawfully agree to pay for them a sum in excess of the rate prescribed by said section 3317.</p>

<p>Motion in each case to dissolve the injunction.</p>

This action was brought to obtain specific performance on an oral agreement on the part of Joshua Healy, since deceased, to give the plaintiff the share of a child of his own in his estate. The plaintiff recovered judgment, 31 Misc. Rep. 636. A motion was made for a new trial upon the ground of newly-discovered evidence.

<p>Injunction to restrain publication of one’s portrait as an advertisement — Right of privacy.</p> <p>The unauthorized making, printing and circulation, throughout the United States, by a flour company and by a folding box company, of a large lithographic portrait of a young woman, not a public character, the portrait being surrounded by words and devices advertising mainly the business of the flour company, is such an invasion of the young woman’s rights of privacy and of property in her own likeness as entitles her to maintain an action in equity for damages and also to restrain the defendants from making, printing or circulating any picture, likeness, photograph or lithograph of her.</p> <p>A complaint alleging such facts is not demurrable upon the ground that it fails to state a cause of action,</p>

<p>Right of a person to prevent the use of his name in a business he has sold.</p> <p>Where an ice dealer, selling his route and plant to an ice company and agreeing not to engage in the ice business for a term of years, does not expressly grant a right to use his name, the company’s subsequent use of it on wagons, cards, bill heads, etc., is an invasion of a property right and entitles him to have such use restrained pending the trial of his action against the company to prevent any use of his name by it.</p>

Action by the trustee of a bankrupt to recover of creditors property which they received from the bankrupt under a preferential transfer and converted into money. The bankrupt was adjudged such, upon his own petition, on December 20, 1898. His petition was filed in the same month.

<p>Appointment by will — Suspension of power of alienation — Indefinite beneficiaries.</p> <p>The will of a testator appointed one-third of his absolute share in a trust estate, created for his mother since deceased, to his father and two-thirds to his sister during their life or lives, directed that upon their death or deaths the whole of said share should return to his estate, and provided that if his own death should find only the father or the sister living, the share of the one deceased, in the said share of the trust estate, should go to the other. Subsequently he directed that, upon the deaths of his father and sister or in case neither survived him, his executors should sell practically all his property and establish a trust fund for sending the children of the poor for vacation in the summer. Thirteen days later he conveyed all his share in the said trust estate to a trustee upon a trust to pay the settlor himself the net income for life and directed that uppn his the settlor himself the net income for life and directed that upon his own death his share in the trust estate should vest in his appointees by will, or failing such appointment, in his heirs-at-law— who were his father and sister. They asked a construction of the will.</p> <p>Held, that the will did not suspend the power of alienation for more than two lives in being.</p> <p>That the life of the testator was not to be included in the computation, as the property conveyed by him was his own and he had parted with nothing except the legal title.</p> <p>That, upon a true construction of the will, the father and sister each took, during his or her life, one-half of the testator’s share in the trust estate, that upon the death of either the share of the decedent, in the said trust share, passed instantly to the survivor, and that upon the death of the latter the title to the whole trust share vested at once in the trustee of the fund for sending the children of the poor for vacation.</p> <p>Semble, that such a trust was not void for the indefiniteness of the beneficiaries.</p> <p>Semble, that the will, although made thirteen days prior to the trust deed, was valid as an execution of the power of appointment reserved in that deed.</p>

<p>Motion upon the minutes for a new trial.</p>

This is an action by the plaintiff to have himself adjudged a creditor of said bank to the amount of certain sums paid by him to certain parties on account of deposits made by or in behalf of them respectively in said bank and for the payment of which deposits plaintiff claims he was surety. Also, that said sums so paid with interest be adjudged to be an offset against and credit upon certain past-due obligations held by said bank against plaintiff.

<p>Covenant to furnish steam power — Construction — Injunction, for extra power used, refused.</p> <p>A covenant to provide power to propel a particular amount of machinery relates to the quantity of power and does not restrict its use to the precise machinery specified in the covenant.</p> <p>Where a lessee, entitled to certain steam power from his landlord, does not exceed that amount and the machines which the lessee has added do not affect the leased building more than would the machinery specified in the covenant, the landlord cannot enjoin the lessee from using his added machines pending an action by the former to recover for extra power used.</p>

<p>Foreclosure — Receiver of rents refused where security is adequate.</p> <p>Although a mortgage contains a covenant which virtually mortgages the rents and profits and permits a receiver to be appointed without regard to the solvency of the mortgagors or the value of the premises, the court will not appoint a receiver where the security of the creditor does not require it.</p>

<p>Certiorari — Dismissal from National Guard cannot be reviewed.</p> <p>Proceedings, taken under the Military Code, resulting in the decision by a board of examination that a member of the National Guard was unfit for service therein, together with the approval of the Governor — followed by discharge from the service — cannot be reviewed by a writ of certiorari, as the proceedings generally relate to the executive department, and cannot be controlled by the judicial.</p>

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

The action was brought to establish an equitable lien on certain logs of cedar wood upon which the plaintiffs bad made advances under an agreement that they were to constitute a charge upon said logs.

<p>Motion for resettlement of an order.</p>

<p>Heaping on habeas corpus, after commitment to stand trial.</p>

<p>Application to amend naturalization certificate.</p>

<p>Motion for a new trial, and to set aside the verdict for plaintiff in an action upon a marine policy of insurance.</p>

Action for an injunction, restraining the defendant from further continuing an obstruction to a highway, alleged to constitute a nuisance.

<p>Surplus money proceedings.</p>

<p>Surplus money proceedings.</p>

Petition to the Supreme Court, by an alleged incompetent person, for an order discharging the committee of his property, restoring such property to the petitioner and vacating all proceedings under which said committee was appointed by the County Court.

Motion to vacate judgment entered upon the purported report of a referee, upon the ground that the latter was insufficient under section 1022 of the Code, and, therefore, the judgment' entered thereon is irregular.

<p>Administrator — Right of successor to sue surety of defaulting — Code C. P., §§ 449, 3608.</p> <p>A complaint by the successor of defaulting administrators, who failed to pay distributive, shares, against their surety in the court of the surrogate, is not demurrable upon the ground that the distributees should sue, as section 2608 of the Code of Civil Procedure expressly gives the successor administrator this right and he may also sue under section 449 of said Code.</p>

Motion to compel plaintiff to accept an answer served in behalf of defendants. The action was brought upon contract against the defendants as alleged copartners. The answer was verified by one of them only. It was served by mail May third, and returned upon May ninth by plaintiff’s attorneys upon the ground that it was not properly verified under the provisions of section 525, Code of Civil Procedure, relating to a verification of a pleading by one of two or more parties.

This action was brought to obtain a construction of certain clauses in the will of said Lyman' Stevens, deceased, By amendment of the original pleadings there was brought in the defendant Lyman A. Stevens, who claims that if he shall be excluded from sharing in the estate of the deceased under the terms of the residuary clause of his will, that then he shall have specific performance of an alleged contract of adoption of him by the testator, under which he was to share in…

<p>Motion for an order to submit the question of local option, under the Liquor Tax Law, to a special town meeting of the town of Prattsburg, N. Y.</p>

<p>1. Bill of particulars — Discretionary.</p> <p>Except in an action on an account, it is discretionary with the court to order a bill of particulars of a pleading.</p> <p>2. Same — Affidavit must be made by party — Insufficiency.</p> <p>The affidavit for the motion must be made by the party or the attorney’s affidavit must show why it was not so made.</p> <p>Where the answer of a railroad corporation, to an action brought against it for setting trees on fire by sparks from an engine, merely denies any knowledge or information sufficient to form a belief as to the principal allegations of the complaint, and the affidavit of its attorney does not deny negligence nor allege that the company has investigated the matter, a motion upon the part of the corporation that the plaintiff serve a bill, showing what particular train or engine did the damage, must be denied for the insufficiency of the papers.</p>

Motion to continue an injunction pendente lite. The action was brought to restrain the defendant from opening and using a private road.

<p>Suspension of power of alienation — Not effected by a gift to a church of personalty, of which the principal must be forever kept intact, with a proviso that the church, for ten years, pay the income to another church, provided the latter fulfills certain conditions.</p> <p>"An agreement by the terms of which a donor transfers to an incorporated church certain bonds, of which the principal must be forever kept intact, accompanied by a requirement that the church shaT for ten subsequent years pay the net income to another incorporated church for its mission work, provided that church fulfills certain conditions, failing which, the first-named church shall forever apply only the net income to its own mission work, does not unlawfully suspend the ownership of personal property by interposing therein a definite beneficial period not marked by the duration of life, as the title to the fund passes to the donee, it is the ultimate beneficiary, and the conditional provision for the other church may be regarded in the light of an annuity or as a mere incident to the gift.</p>

<p>Hearing on writs of habeas corpus and certiorari.</p>

<p>1. Attachment — Affidavits.</p> <p>On a motion to vacate a warrant of attachment, the merits will not be determined and it is sufficient that the plaintiff has made out a prima facie case.</p> <p>2. Same.</p> <p>An attachment cannot be sustained if an improper measure of damages has been adopted and too much has been claimed.</p> <p>3. Bills and notes — Usury.</p> <p>Where a promissory note is not usurious in the foreign State of its inception, it is not usurious anywhere.</p> <p>4. Same — Measure of damages — Interest.</p> <p>Where a promissory note for one year, after providing that it shall bear eight per cent interest per annum from its date until its payment, further states “ interest payable , and. if not so paid to be compounded, and bear the same rate of interest as the principal ”, the presumption is that simple interest is due until maturity and compound interest thereafter.</p> <p>5. Attachment — Validity.</p> <p>An attachment is a harsh remedy, but it will not be vacated, upon the papers on which it was granted, where they are sufficient and the evidence in support of it is fairly preponderating.</p>

<p>Appeal — Improper matter excluded from case.</p> <p>Remarks made by the court to the jury, after a verdict directed, rendered and recorded, are not a proper part of the proposed case on appeal, and, although inserted therein by consent, may subsequently be expunged by the court.</p> <p>Semble, that reasons assigned by the court for directing a verdict, although appearing in the stenographer’s minutes, are not a proper part of the case on appeal.</p>

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

<p>1. Separation — Husband excused from supporting wife by her adultery.</p> <p>Adultery of a wife, proven in an action between third parties tried before a jury, excuses a husband, separated from her, from further contributing to her support but he must continue to support the child of their marriage.</p> <p>2. Same — Disregarding order to support — Contempt.</p> <p>Where, however, he has been ordered, in the separation matter, to pay a monthly sum for her support and that of his child, he is not excused from further payment to her because of her adultery and must continue to pay her until the order has been modified.</p>

<p>Motion to strike out parts of answer as irrelevant and redundant.</p>

Action to recover the value of certain chandeliers, boilers, etc., placed in a club building, sold with it in foreclosure as fixtures, and subsequently transferred, under the purchaser on the sale, to the defendant.

<p>Town — An act authorizing a town board to “ construct ” a town hall does not empower it to purchase therefor a store in which it has been holding its meetings.</p> <p>Where the only authority given to a town board for procuring a town hall consists in a special statute (L. 1865, ch. 360) authorizing it to “ construct ” one for the use of the town, the board is afforded thereby no power to contract to purchase, for such purpose, a store which it has been occupying as the place for holding its meetings and which it voted $150 to shingle and repair after it had agreed to purchase it; and therefore the owner of the store cannot recover the purchase price of the town.</p>

Motion to vacate a temporary injunction granted in an action brought to restrain the erection and maintenance of a dock on the western shore of Lake Champlain.

<p>Motion to continue a temporary injunction until the trial of the action.</p>

<p>Motion to change the place of trial from Albany to New York county.</p>

Action to recover salary under an alleged contract with the defendant to perform certain surgical and medical services to the poor.

<p>Bills and notes — Holder for value — Inquiry as to firm note — Notice.</p> <p>Before accepting for value an unmatured firm promissory note made and signed by only one of several partners, the agent of the holder asked the payee and transferror how he got the note and he replied “for merchandise”. The said agent also went to the office of the makers, observed from the sign over the door that they advertised themselves as in the transportation business, but he did not find any of them, obtained no information about them and saw no merchandise in their office. The defense was that the note was not given by the firm in its business, but solely for the benefit of the partner who signed it.</p> <p>Held, that the plaintiff was a bona fide holder of the note and had made sufficient inquiry before accepting it.</p> <p>That the fact that the makers were discovered by the plaintiff to be engaged in the transportation business did not, of itself, charge the plaintiff with notice that a note “ for merchandise ” could not have been made within the scope of that business.</p>

Appeal by the plaintiffs from a determination of the General Term of the City Court of New York, affirming a judgment rendered in favor of the defendants after a trial before a jury. The nature of the action and the material facts are stated in the opinion.

<p>Husband and wife — Invalid separation agreement — City Court of New York has no equitable jurisdiction.</p> <p>An agreement made in 1888, without the intervention of a trustee, by a husband and wife between whom an action of divorce was then pending, but who were not then living apart, by the terms of which the husband agreed to make her certain payments for her support and that of their children, is not authorized by chapter 881 of the Laws Of 1884 and is absolutely void at law.</p> <p>Where the wife sues at law upon the agreement in the City Court of the city of New York, she cannot invoke equity to assist a recovery, not only because that court has no equitable jurisdiction, but also because no equitable consideration for the agreement appears.</p>

<p>Appeal from judgment and order of the General Term of the City Court of the city of New York, affirming a judgment rendered at Trial Term.</p>

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

<p>Principal and agent — Broker’s commissions not forfeited by execution of deed in name of third party.</p> <p>A broker, who is shown to have been the procuring cause of a sale of real estate, cannot be deprived .of' commissions by the fact that the actual purchaser subsequently elected to have the contract signed by, and the deed taken in, the name of a third party who was associated with the said purchaser in the said transaction.</p>

Action by a trustee in bankruptcy to recover chattels in which the bankrupts were alleged to have had an interest when the petition was filed.

Action by the committee of a lunatic to recover moneys, had and received of the lunatic, by attorneys who were to bring for him an action of divorce.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered in favor of the defendant, upon a trial had before the court, without a jury. Action against the indorser of a promissory note payable on demand. The defense was that the note was not presented within a reasonable time after the making of the same.

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

<p>Motion for an injunction pendente lite.</p>

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

<p>1 Liquor tax law — Costs, for making case on appeal, refused where appeal was heard on certified papers.</p> <p>Where an appeal from an order cancelling a liquor tax certificate is heard by the Appellate Division on papers which have been stipulated by the attorneys to Be copies of the originals on file in the proper clerk’s office and no formal case on appeal has been made and duly signed by the proper judge, the party prevailing on the appeal will not be allowed to tax costs for making and serving a case.</p> <p>2. Same — Revocation of certificate a special proceeding.</p> <p>Semble, a proceeding to revoke a liquor tax certificate is a special proceeding.</p>

order cancelling and discharging a judgment for deficiency entered herein; also vacating and setting aside the foreclosure sale, and directing a resale of the premises described in said judgment, on the ground that no notice of sale was served upon the attorney for defendants Dunston.

Motion to strike from a writ de lunatico inquirendo a clause directing an inquiry as to the condition of the alleged incompetent for six years last past.

<p>Application for a certificate under section 3234 of the Code of Civil Procedure.</p> <p>The complaint. states two causes of action. The first is for the amount claimed due upon the withdrawal of ten shares of stock issued by the defendant to the plaintiff.</p> <p>The second cause of action is for the balance due upon the withdrawal of twenty-five shares of stock of the defendant issued to a third person, who has since the issuance thereof died, and the balance claimed to be due upon such shares assigned by the administrator of the estate of such third person to this plaintiff.</p> <p>Upon the trial the court directed the jury to find a verdict for the defendant upon the second cause of action, and submitted the first cause of action to them for their consideration; the jury found, a verdict for the plaintiff upon such first cause of action.</p>

This action is brought to recover damages for an alleged breach of covenant of warranty contained in a deed executed by defendant’s testator, one Howell Cooper, on April 7, 1858, to one Alice Farley, through whom plaintiff derives his title to the premises in question which are situated in the city of Watertown.

<p>Partition. — Construction of a will containing a power to executors to allot shares to the testator’s children, followed by a valid trust in them to hold the shares for the life of each child and receive and pay over the rents and profits to him or her, and a further direction to distribute the share of a child who dies — A failure to allot or distribute does not divest the trustees of the legal title.</p> <p>Under a devise and bequest to executors of the whole of a testator’s residuary estate, in trust, to allot the same to his children in equal shares but to continue seized of each share during the life of each child, collect the rents and profits thereof and income and pay over the net annual income to him or her for life, and upon the death of each child to distribute the corpus of its share among its lawful issue or, failing such issue, among the children then jiving of any surviving brothers and sisters of the testator, the failure of the executors and trustees to exercise the power in trust to allot shares among the testator’s children, and their neglect to distribute the share of a child who had died, do not divest the trustees of the legal title to the realty vested in them by the valid trust to receive and pay over the rents and profits of each share to each child during lifetime, and, therefore, a grandchild of the testator, whose mother is living, has no interest in the realty sufficient to support an action to partition it.</p>

<p>Statute of Frauds — Contract for the sale of land — Offer and acceptance — Delivery.</p> <p>After the attorney for a proposed purchaser of real estate had made an offer for it and had submitted to the vendor a written unexecuted contract of sale, the purchaser changed his mind and when, eleven days later, the vendor tendered the contract, executed upon its part, to the attorney for the purchaser, the attorney took it, after stating that his principal would not purchase the premises.</p> <p>Held that, assuming the contract to be one for the sale of land only, there was no sufficient delivery of a written contract, subscribed by the party by whom the sale was to be made, as the offer to buy had been withdrawn by the purchaser before the vendor had accepted it.</p> <p>That when the contract was tendered by the vendor, the attorney for the vendee had no authority from his principal to accept the delivery.</p>

<p>Action for an accounting.</p>

<p>Mechanic’s lien — Liability of executory vendor where it consents to the erection of a building on the land sold.</p> <p>Where the vendor, under an executory contract for the sale of real estate, consents that the vendee take immediate possession of, and erect a permanent structure on, the premises, lienors who have rendered work, labor and' services to such structure may, after the vendee’s default, enforce their liens against the premises to the extent of the market value of the labor and materials done and furnished.</p>

Action to recover damages for injuries occasioned by reason of the alleged negligence of the defendant and by a continuing nuisance.

<p>Action for causing death of intestate by negligence of defendants in respect to a freight elevator on their premises.</p>

<p>Demurrer to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action.</p>

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

<p>1. Bills and notes — A demand capital stock note given to a domestic mutual life insurance company and made subject to future assessments is not due until the liability has become fixed — Statute of Limitations.</p> <p>The Statute of Limitations is not a defense to the makers of a capital stock note, given in 1894 to a domestic mutual life insurance company and now held by its receiver, payable on- demand and therefore presumably due at once, where the statute, under which it was given and which was incorporated in the note by reference thereto, provides, in substance, that such a note should remain as security for losses and claims of the company until the accumulated profits should equal the cash capital required by statute, the liability decreasing as profits accumulated, and further providing that the note-should be assessable for losses, that notice of assessment and demand therefor should be given and made of the makers, and that, upon their failure to pay in thirty days, suit might be maintained against them.</p> <p>Where the receiver, in 1896, levied an assessment for losses and properly gave notice and made demand, it was held that, not until thirty days thereafter did the action accrue, and therefore the six year Statute of Limitations was not a defense to an action brought by him in 1900.</p> <p>2. Same — Negotiability.</p> <p>Such a note is payable upon a contingency and is not negotiable.</p>

<p>Bills and notes — Service of notice of protest.</p> <p>Where the indorser of a negotiable promissory note, residing in the borough of Manhattan, of the city of New York, has added no address to his signature, notice of protest should, under the Negotiable Instruments Law (L. 1897, ch. 612, § 179), be mailed to him at the said borough or even at the “ City of New York ”.</p> <p>A notice of protest, never received by him, but mailed to him at “ No. 74 East Houston street, New York city ”, a place where he did not reside or have a place of business or get his mail, although he owned the house and his sons did business there, is insufficient to charge him as indorser.</p>

<p>Cities of the second class — Annual tax budget must be passed by the votes of three-fourths of all the members of the common council.</p> <p>The charter of cities of the second class (L. 1898, ch. 182, §§ 19 and 96, as amd. by L. 1899, ch. 681, § 7) requires the annual tax budget of such a city to be passed by a vote of three-fourths of all the members of its common council and where less than that number vote for the 'budget it is illegal and must be resubmitted to the common council.</p>

<p>Place of trial — Change to proper county — Estoppel — Code C. P., § 984.</p> <p>Where a foreign corporation brings, in a county of its own selection, an action against residents of the State of New York, an order extending for fifteen days their time “ to plead or otherwise move ” in the action and also containing a clause “ Defendants to accept ten days’ notice of trial by mail. The case to go on calendar,” will not, because of such clause, be construed as binding the defendants to try the case in the county of the venue and they are still entitled timely to move to change the venue to the proper county — that of their residence.</p>

<p>Objections filed to the certificates of nomination of Joseph P. Hennessy and of Richard H. Mitchell, for State Senator for the twenty-first Senatorial District.</p>

<p>Proceeding to revoke and cancel tax certificate.</p>

Action by the plaintiff, as assignee, after maturity of two checks made by the defendant and given to the payee in exchange for the check of a third person. The defendant pleaded that there was no consideration, for the checks in suit, because the check given, in exchange to the defendant was not paid.

<p>1. Village — Persons qualified to vote at a reincorporation election.</p> <p>The persons who may vote on a proposition to reincorporate, under the Village Law (L. 1897, ch. 414), a village already incorporated under a special law, are those who would have a right to vote under the special law.</p> <p>2. Same — Appeal does not lie to County Court from certificate showing result of election — Review.</p> <p>Article XII of the Village Law confers upon the County Court, of the county in which the village is situated, no jurisdiction to hear and determine an appeal from a certificate, filed by the village election officers who conducted the election relative to reincorporation, showing the result of the said election.</p> <p>Semble, that, such an election must be reviewed in the same manner in which other elections are reviewed.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon a verdict in an action to recover damages for personal injuries caused by the alleged negligence of the defendants.</p>

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

<p>Appeal from a judgment of the City Court of the city of New York, in favor of the defendant.</p> <p>Action against a warehouseman to recover possession of goods stored with him.</p>

Appeal by plaintiff from an order of the Special Term of the City Court of the city of New York, affirming the clerk’s taxation of costs.

<p>Negligence — Surface ears have, in city streets, no greater rights than vehicles.</p> <p>Where the evidence in an action predicated upon the negligence of a street surface railway company tends to show that a street car was nearly a block away when the plaintiff’s driver attempted to cross the track, and that, although the wheels of his wagon became caught in the track and somewhat retarded his progress, the person in charge of the car permitted it to collide with the wagon without giving any warning, a dismissal of the complaint is erroneous, as the matter should be submitted to the jury, the rule being that surface cars have no superior rights in the streets and avenues of a city over any other vehicle.</p>

<p>Appeal from a judgment of the City Court of the city of New York, directed in favor of the plaintiffs against their objection and exception, and also from an order denying a motion for a new trial.</p>

<p>Demurrer — Will not lie to matter pleaded in mitigation of damages — Code C. P., § 494.</p> <p>A demurrer will not lie to matter pleaded in an answer in mitigation of damages, as, under the Code of Civil Procedure, § 494, only matter pleaded by way of counterclaim or defense is demurrable.</p>

He had been lessee of the greenhouses of Julia A. Germond and sold cut flowers from them. After she sold him out under the judgment referred to in the opinion, the plaintiff leased the greenhouses of her and shipped cut flowers from them, referred to in the opinion as merchandise,” to the defendant, who sold them for the plaintiff on commission.

Action by an employee to recover damages of his employer for personal injuries received from being kicked, as alleged, by a “ green ” horse, negligently placed in the stable where the employee worked, and known to be vicious.

<p>Chattel mortgage — When void as to judgment creditor.</p> <p>A chattel mortgage, not filed until after issue of execution against the mortgagor, is void as to the judgment creditor even though he had actual notice of its existence before entry of his judgment.</p>

<p>Chattel mortgage — Form — When void as to judgment creditor — Notice.</p> <p>A writing in the words “ To secure the' payment of a note of $200, given this day to Patrick McDonald, payable on demand, I hereby sell and assign ten of my carriage horses now in my possession in my stable, 163 and 165 West 132d St. The use of said horses I am to have and enjoy until I fail to pay the note, upon three days’ notice or grace of payment ”. (Signed) “ John F. Cammann ”, does not identify the mortgaged property sufficiently, and, when not accompanied by a change of possession and not filed, is void as to subsequent judgment creditors of the mortgagor even where they have knowledge of its existence.</p>

Action for damages, in the nature of demurrage, brought by the owner of a canal-boat against the consignors. The questions referred to in the opinion as “ shown on page 16 ” were intended to prove that the plaintiff had already sued the consignee, alleging that the delay was his fault, and that when the present action was brought the consignee had become insolvent, and that the Statute of Limitations had nearly run.

<p>Settlement of a case on appeal from an order of the trial judge setting aside the verdict for the plaintiffs and granting a new trial on the judge’s minutes.</p>

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

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

<p>Appeal — Abandoned by failure to file case under General Rules of Practice No. 35 — Remedy.</p> <p>An appeal must be deemed abandoned where the case is not filed within ten days after its settlement — no extension of time having been granted.</p> <p>The remedy of the party failing to file is to move to have his default opened and, if this is granted, he will then be in a position to file his ease regularly.</p>

<p>Action on capital stock note made by defendants. Motion by defendants for new trial on minutes after direction of a verdict in favor of plaintiff.</p>

Motion by the plaintiff on the judge’s minutes for a new trial on a verdict for defendants. This action was brought against the sheriff of Queens county for the alleged wrongful taking and conversion of chattels, i. e., the stock and fixtures of a retail grocery store. The plaintiff and In's two indemnitors in the action in which the sheriff took the said chattels under a writ of attachment, as is alleged in the complaint, have been substituted as defendants.

Action of ejectment. Defence, adverse possession under a claim of title. Both sides moved the court to direct a verdict.

<p>Action by a widow for admeasurement of dower. Her husband devised his realty in specified parcels to his four children, charged, however, in each case, with the payment of a specified annuity to the widow for her life; except in the case of one parcel devised to one of the children. The widow did not elect to take dower, and the time for such election has passed.</p>

Motion by the plaintiff for a new trial, the complaint having been dismissed on the trial for not stating a cause of action.

Action of replevin. The plaintiff made at Chicago, Illinois, a conditional sale of six locomotive railroad engines to the Brooklyn & Brighton Beach Railroad Company. The agreement of conditional sale was in the form of a lease, and provided that the title was to remain in the lessor until the purchase price was fully paid in certain specified installments called rent, whereupon title was to pass to the lessee.

<p>Negligence — Proximate cause of injury.</p> <p>Where the proximate cause of the fall of a brick from a chimney, which struck and injured a passerby, was the fact that a telephone wire forty feet above the ground and passing around the chimney, was struck by the arm of a derrick operated by workmen engaged in constructing a building on the opposite side of the street and not employed by the telephone company, the passerby cannot recover damages of the company, as the arm of the derrick, and not the presence of the wire, caused the chimney to break and the brick to fall.</p>

Appeal by the plaintiff from a judgment, dismissing the complaint, rendered by the Municipal Court of the city of New York, borough of Manhattan. The nature of . the action and the material facts are stated in the opinion.

<p>Landlord and tenant — Landlord may show that a new lease, alleged as a surrender, was, in fact, a reletting for account of the tenant.</p> <p>In an action for rent under a written lease, the tenant pleaded a surrender before the rent accrued and, in support of it, relied upon a new lease of the premises, which the landlord had given to a third party for the balance of the same unexpired term for which the landlord was demanding rent, and for whose performance he had taken a guaranty.</p> <p>Held, that the landlord might show that the reletting was done under a clause of the original lease providing “that, in case of the default of the tenant, the landlord might relet the same for his account.</p> <p>That such evidence did not tend to vary or contradict the second lease or its guaranty.</p>

<p>Tender — By indorsers of a note, conditional upon its surrender— Effect of conditional tender.</p> <p>A conditional tender, not kept good, is valid and operates to discharge a lien upon collateral security where such security exists for the debt; but nothing, except payment into court, can make such a tender effectual to discharge the debt itself.</p> <p>Where indorsers of a promissory note tendered, before answering the complaint thereon, the amount due and interest and costs upon condition that the note should be surrendered to them, and the tender was refused, the court considered that their subsequent plea of tender was ineffectual to prevent a judgment against them where they had not paid, nor pleaded that they had paid, the money into court, or alleged that they were ready to pay on delivery of the note, or offered upon the trial to pay the note and take it up.</p>

<p>Negligence — Master liable to janitress for the fall of a cracked ceiling.</p> <p>The relation which exists between a janitress, receiving the use of certain rooms in a building as part payment for her services, and the owner of the building, is that of master and servant and is not that of landlord and tenant; and, therefore, where she is injured by the fall of plaster from a ceiling of one of her rooms which was. cracked when she began to occupy, and after the landlord had promised, but failed, to repair the ceiling, she is entitled to recover of him damages for her injuries.</p>

Action to recover damages for personal injuries caused by the alleged negligence of the defendant. A truck was standing in the street, some twenty or thirty feet ahead of the car. The plaintiff claimed that, before he could get up the step and into the car, he was carried along, and struck his right side and leg against the truck.

<p>Master and servant — Employee, hired by the day, cannot, under the eight-hour law, recover for overtime.</p> <p>An employee, hired by the day, cannot, under the acts constituting eight hours a legal day’s work, recover for overtime unless the contract of employment contains a stipulation to that effect.</p> <p>A contract for work at five dollars a day “ and proportionately thereto for parts of a day ”, contains no stipulation for compensation for overtime, as the words quoted merely fix the rate of compensation where the employee has worked only a part of a day.</p>

<p>Fire insurance — Property insured, as in a house cannot be recovered for, when destroyed by a fire in another house in the rear, while hanging on a clothes line between the houses.</p> <p>A description of the place of deposit of insured personal property, written into a policy and accepted by the insured, is a warranty of its location, whose truth is a condition precedent to any liability upon the part of the insured.</p> <p>Where, therefore, household linen and wearing apparel were described in a policy as located in a certain brick building occupied as a dwelling, it was held that the insured could not recover for these articles where they were destroyed by a fire, in another building in the rear, while hanging on a clothes line running between the two buildings.</p>

<p>1. Corporation. — Its general denial does not put its incorporation in issue.</p> <p>A general denial, interposed by a corporation to an action for goods sold to it, does not put in issue its incorporation and the plaintiff need not prove it.</p> <p>2. Same — Acts of officer provable as raising a presumption of authority.</p> <p>The vendor may prove acts of an alleged officer of the corporation, who himself ordered and received the goods sold, in order to show that he was such officer, for, if the contract be within the apparent scope of his powers, a presumption of authority may thus be created which the defendant must rebut by evidence.</p>

<p>Appeal from an order of the Municipal Court of the city of New York, borough of Manhattan, dispossessing tenants.</p>

<p>General release — Not to be varied by parol evidence.</p> <p>Parol evidence is inadmissible to show that a certain demand, made the subject of an action by a party releasing against the party released, was intended to be excepted from the operation of a general release theretofore executed between the parties.</p>

<p>Municipal Court of the city of New York, borough of Manhattan — Has jurisdiction of nonresident of the county.</p> <p>The Municipal Court of the city of New York, borough of Manhattan, has jurisdiction of a defendant although he does not reside within the county of New York.</p>

<p>Inquest — Rights of defendant’s counsel.</p> <p>Upon an inquest, the defendant’s counsel may object to incompetent or illegal evidence and cross-examine the plaintiff’s witnesses, but he cannot, even by his cross-examination, attempt to establish a defense.</p>

<p>Measure of damages — On failure to deliver chattels.</p> <p>The measure of damages for a failure to deliver personal property is the difference between the contract price and that in open market.</p> <p>Proof, that the plaintiff had to pay more for the goods than the defendant had contracted to sell them for, does not establish any measure of damages.</p>

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

<p>Negligence — Improper navigation of a towboat, causing a collision with a fisherman.</p> <p>Where the pilot of a towboat, steaming on a moonlight night a little west of north and about the middle of a river half a mile wide, sees a fishing boat, showing proper lights and nearly stationary, a mile ahead in the middle of the river, and, after keeping his course until within two hundred feet of the fishing boat and then discovering that her crew are pulling in a net which runs to the eastward, unnecessarily changes his own course to the eastward, thereby runs into the net, cuts it in two, and runs up to within two feet of the stern of the fishing boat, the pilot is guilty of negligence and his owner is liable to the owner of the fishing boat for the injury done to the net.</p>

<p>Motion for a nonsuit, the decision thereof having been held pending the submission of certain questions to the jury in-accordance with the provisions of section 1187, Code.</p>

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

83, rendered in favor of the plaintiff after a trial before Hon. Theodore E. Hascall and a jury. The action was brought to recover damages for injury to the team of the plaintiff.

<p>Appeal from a judgment of the Municipal Court of the city of New York, eleventh district, rendered on May 3, 1900, in favor of the plaintiff.</p>

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

<p>Appeal from a judgment of the General Term of the City Court of the city of New York, affirming a judgment for the plaintiff and an order denying the defendant’s motion for a new trial.</p>

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

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

<p>Appeal from a judgment of the Municipal Court of the city of New York, tenth district, for the sum. of $371 and costs, in favor of the plaintiff.</p>

<p>Appeal from a judgment of affirmance of the General Term of the City Court of the city of New York, affirming a judgment entered on the verdict of a jury.</p>

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

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

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

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

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

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

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

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

<p>Appeal from an order of the Municipal Court of the city of New York, eleventh district, borough of Manhattan, opening defendant’s default.</p>

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

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

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

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

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

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

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

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

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

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

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

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, entered upon the verdict of a jury, in favor of the plaintiff. The nature of the action and the material facts are stated in the opinion.</p>

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

<p>Appeal by the defendants from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered in favor of the plaintiffs upon a trial had before the court, without a jury. Action for conversion.</p>

Appeal by the plaintiff from a judgment dismissing the action, rendered by the Municipal Court of the city of New York, borough of Manhattan.

<p>Appeal from a judgment of the Municipal Court of the city of New York, fifth district, borough of Manhattan. Action for goods sold.</p>

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

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

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

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

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

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

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

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

<p>Appeal from a judgment and order of the General Term of the City Court of the city of New York, affirming a judgment, rendered at Trial Term.</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p>Appeal from an order denying plaintiffs’ motion to vacate and set aside a satisfaction price for a sum less than the amount of the judgment in said action.</p>

<p>Appeal from an order denying an application for a discovery and inspection of certain checks and orders.</p>

<p>Appeal from an interlocutory judgment overruling a demurrer to an amended complaint.</p>

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

<p>Appeal from a judgment of the City Court of the city of New York in favor of plaintiffs.</p>

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

<p>Appeal from a judgment, after trial, before a jury, and from an order denying a motion for a new trial.</p>

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

<p>Appeal from a judgment dismissing the complaint, and from an order denying a motion for a new trial.</p>

<p>Appeal from a judgment, after trial, before a jury, and from an order denying a motion for a new trial.</p>

<p>Appeal from an order taxing a bill of costs and disbursements incurred by the sheriff on levy and sale.</p>

<p>Appeal from an order denying a motion made to set aside a verdict on the ground of newly-discovered evidence and surprise.</p>

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

Appeal by plaintiff from a judgment for defendant on verdict in plaintiff’s favor for six cents damages, and also from order denying motion for new trial on the minutes. .

<p>Appeal from order of Special Term, directing payment to sheriff by third party in proceedings supplementary to execution, etc.</p>

<p>Appeal from order of Special Term letting in one Hawkins as party defendant.</p>

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

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

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

<p>Appeal from a judgment of the City Court of the city of New York in favor of defendant.</p>

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

Appeal by defendant from an order striking out certain parts of the answer interposed by him as irrelevant and scandalous, and charging the costs upon the attorneys personally.

<p>Appeal from a judgment of the City Court of the city of New York dismissing the complaint at Trial Term.</p>

<p>Appeal from an order giving leave to plaintiff to inspect and take a copy of the books of account of the defendant, including his order book, stock book, cash book, journal, ledger and day book.</p>

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

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

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

<p>Appeal from a judgment of the City Court of the city of New York, entered upon a dismissal of the complaint at Trial Term.</p>

<p>Appeal from a judgment of the City Court of the city of New York in favor of defendant.</p>

<p>Appeal from a judgment of the City Court of the city of New York, entered upon a verdict, and from an order denying a motion for a new trial.</p>

<p>Appeal from a judgment of the City Court of the city of New York for the plaintiff, after a trial by a jury, and from an order denying a motion for a new trial.</p>

<p>Appeal from a judgment of the City Court of the city of New York, entered upon a verdict, and from an order denying a motion for,a new trial.</p>

<p>Appeal from a judgment of the City Court of the city of New York after a trial of the issues before a jury.</p>

<p>Appeal from an order made at Special Term of the City Court of the city of New York, denying defendant’s motion for leave to serve an amended answer.</p>

<p>Appeal from an order of the City Court of the city of New York, referring this action'and all the issues, therein to a referee to hear and determine.</p>

<p>Appeal from an order of. the City Court of the city of New York, refusing a new trial after judgment by default, except upon conditions therein imposed.</p>

<p>Appear from order of the City Court of the city of New York vacating a stay, etc.</p>

<p>Appeal from a judgment of the City Court of the city of New York upon verdict and order denying motion for a new trial.</p>

<p>Appeal from a judgment of the City Court of the city of New York, upon a verdict directed by the court.</p>

<p>Appeal from a judgment of the City Court of the city of New York, entered upon verdict and order denying new trial.</p>

<p>Appeal from a judgment of the City Court of the city of New York, entered on verdict and order denying new trial on the minutes.</p>

<p>Appeal from ah order of the City Court of the city of New York, opening a default taken at Trial Term and restoring the cause to the calendar, without costs.</p>

<p>Appeal from an order of the City Court of the city of New York.</p>

<p>Appeal from a judgment of the City Court of the city of New York in favor of plaintiffs.</p>

<p>Appeal from an order of the City Court of the city of New York, demanding a bill of particulars.</p>