Volume 32 — New York Supplement

Action by Robert A. Tucker against the Pennsylvania Railroad Company. From a judgment of the city court (30 N. Y. Supp. 811) affirming a judgment entered on a verdict in favor of plaintiff, and an order denying a motion for a new trial, defendant appeals.

, Appeal from city court, general term. Action by Henry C. Miner against Jonas Stolts and others. From a judgment of the city court (30 H. Y. Supp. 1133) affirming a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.

Action by William L. Andrews against Richard W. G-. Welling, as assignee for the benefit of creditors of Francis H. Weeks and Mary Elizabeth Goddard Williams, to recover possession of certain- bonds. The complaint was dismissed, and plaintiff appeals.

<p>Fee oe Street—Acquisition by City—Reserving Easements.</p> <p>Defendant railroad company constructed its road in a street after first obtaining legislative and municipal authority, and a grant from the abutting landowner, in whom was also the fee of the street. Afterwards the city, by condemnation proceedings, acquired title to the street, one dollar being awarded to defendant. HeldI, in the absence of evidence that defendant intended to surrender its title to the railroad structure or its easement in the street, that the city took the title subject thereto, and therefore a subsequent conveyance of such abutting property was subject to the grant from the original owner to defendant.</p>

Action by Esther Lea Davis against Simon Davis for divorce. From an order denying a motion to punish defendant for contempt, plaintiff appeals. Reversed.

Application by the United States Mortgage Company for leave to change its name to the United States Mortgage & Trust Company. The application was denied, and petitioner appeals. Reversed.

Action by Heinrich Michelsen against Amelia L. Spies on a promissory note. From an order denying a motion to open a default, to set aside an inquest, and to grant a new trial, defendant appeals. Affirmed on condition.

Writs of certiorari by Michael Doherty, Bernard Meehan, and John Hock, respectively, to the board of police commissioners of the city of Hew York, to review the proceedings of said board in dismissing relators from the police force.

Action by William M. Patterson against Samuel T. Knapp. From an order setting aside the report of the referee, and vacating a judgment entered thereon, plaintiff appeals. Affirmed. On the 4th of January, 1890, by an order duly made and entered, the issues in this action were referred to a referee to hear and determine.

Action by Mayer Kahn against Henry C. Schmidt and others to set aside the cancellation of a contract for the sale of real estate, on the ground that it was procured by fraud, and for specific performance of such contract. From a judgment dismissing the complaint, with costs, and from an order granting an extra allowance, plaintiff appeals.

Action by Patrick J. O’Brien against the mayor, aldermen, and commonalty of the city of Hew York. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendant appeals.

<p>Negligence—Evidence.</p> <p>The drawing apart of a splice in a wire rope provided by defendant for hoisting, whereby a workman is injured, is sufficient proof of negligence to make a prima facie case against defendant, where there is testimony that well-made splices do not draw apart, and that the splices in defendant’s rope were not well made.</p>

Action by Simon Kotkschild against the Kio Grande Western Kailway Company. From a judgment dismissing the complaint,, entered on a nonsuit, plaintiff appeals. Keversed.

<p>1. Copyright—How Secured—Publication.</p> <p>A copyright is not acquired by depositing with the librarian of congress the title of the book, and two copies thereof, unless the book is afterwards published within a reasonable time.</p> <p>2. Literary Property — Loss by Publication — Depositing Copy in Con-</p> <p>gressional Library.</p> <p>A deposit of copies of a book in the congressional library for the purpose of procuring a copyright, which fails by reason of noncompliance with further provisions of the law, is not a publication of the book, since the use of the copies deposited is so restricted by statute that they cannot pass into general circulation, and therefore the compiler does not lose his literary property.</p> <p>8. Same—Distribution—Restricting Use. '</p> <p>A book is not published merely by printing it and placing it in the hands of various persons under a contract restricting its use, and stipulating that it is not sold, and requiring its return to the owner.</p> <p>4. Same—Appropriation—Similarity op Errors.</p> <p>The fact that defendant’s directory contained the same errors as appeared in a similar book previously compiled by plaintiff is sufficient to show that defendant used the matter contained in plaintiff’s book.</p>

Action by Sarah Lazarus and others, individually, Agnes Marks and another, as administrators, etc., against the Metropolitan Elevated Railway Company and others, for an injunction and damages.

Action by the Metropolitan Elevated Railway Company and the Manhattan Railway Company against William H. Johnston. From an order dismissing the complaint on the pleadings, and from a judgment entered thereon, plaintiffs appeal. Affirmed.

Action by Norris Winslow, as trustee, etc., against the Carthage, Watertown & Sackets Harbor Railroad Company and others, to foreclose a mortgage. The money was paid into court by paying it to the county treasurer, and the complaint was dismissed.

Action Tby John Dohn against John Dawson and William Archer. From a judgment dismissing the complaint, with costs, plaintiff appeals. Reversed.

<p>Fraudulent Conveyances—What Constitutes.</p> <p>The lessor o£ an hotel had. begun proceedings to foreclose a mortgage given by the lessee on the furniture to secure the rent, and also to dispossess the lessee for nonpayment of rent. The value of the furniture, apart from the lease, was much less than the rent due. At a meeting of creditors, it was proposed to advance a sufficient sum to pay the rent, and that the creditors should cancel their claims against the lessee, in consideration of a conveyance to them of the furniture in and the lease of the hotel. No objection was made, though some of the creditors declined to advance any money, and the arrangement was carried out by the others. A few months later they sold the furniture and lease for enough to satisfy their claims in full. Meld, that the bill of sale and the transfer of the lease would not be set aside as fraudulent as to the creditors who refused to join in the proceeding.</p>

<p>1. Injunction—Damages on Bond.</p> <p>Where the condition of an injunction bond is that the damages are not to be payable “unless the court finally decides that the plaintiff was not entitled” to the Injunction, and the final judgment determines that plaintiff was entitled to the injunction, defendant cannot recover damages on the bond, though the temporary injunction was vacated.</p> <p>2. Judgment—Modification—What Judge must Grant.</p> <p>A motion to modify a judgment cannot be made before a judge other than the one whose judgment is sought to be modified.</p>

Action by Wylie H. Vilas, as assignee of Frank L. Froment, against the Allentown Rolling Mills, to recover the balance alleged to be due, and for goods sold. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Action by Aaron S. Bright against the Canadian International Stock-Yard & Abattoir Company, Limited, to recover money alleged to be due on a contract. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Action by Ida A. Currier against Henry W. Poor and others to recover purchase money. The complaint was dismissed, and plaintiff appeals.

Action by Jacob Blumer and another against the National Starch Manufacturing Company, impleaded, to cancel a contract, and to compel the reconveyance to plaintiffs of certain patents. The complaint was dismissed (30 N. Y. Supp. 119), and plaintiffs appeal.

Action by Peter Flanagan, an infant, by guardian ad litem, against the Hew York, Lake Erie & Western Railroad Company, to recover damages for personal injuries. From a judgment entered on. a ver- diet in favor of plaintiff for $15,903.55, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Action by William H. Starbuck against the Housatonic Railroad Company on a check.' From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>Cruelty to Animals—Poisoning—Jurisdiction op Special Sessions.</p> <p>Code Or. Proc. § 66, gives the court of special sessions exclusive jurisdiction of certain misdemeanors, including cruelty to animals, unless (section 67) it' is certified by the county judge, or by a justice of the supreme court, that the charge should be tried by indictment. Pen. Code, § 660 (contained in title 16, the caption of which is “Cruelty to Animals”) declares it a misdemeanor to administer poison to an animal. Held, that administering poison is cruelty to animals, and cannot be prosecuted by indictment, unless a certificate is obtained, as provided by Code Gr. Proc. § 67.</p>

Action by William E. Eobinson against H. Edwards Ficken. From a judgment in favor of plaintiff for $29.12, rendered by the justice without a jury, plaintiff appeals. Eeversed.

Action by the health department of the city of New York against the rector, churchwardens, and vestrymen of Trinity Church, in the city of New York. A motion for leave to appeal to the court of appeals was granted (18 N. Y. Supp. 948), and an application is now made to amend the order granting leave to appeal. Granted.

Action by Wallace, Muller & Co., Limited, against Napoleon Valentine and David H. Valentine, to recover the price of goods sold. Plaintiff demurs to a counterclaim set up in the answer. Sustained.

Action by Lydia A. Strong against the Union Transfer & Storage Company to recover for the loss of a trunk. From a judgment in-favor of plaintiff rendered by the justice without a jury defendant appeals.

<p>Appeal from Third district court.</p> <p>Action by Zadi L. Requa against the Domestic Publishing Company for rent. From a judgment in favor of plaintiff, rendered by the justice without a jury, defendant appeals.</p>

<p>1. Accident Insurance—Voluntary Exposure to Danger.</p> <p>The insured, who was cashier of a bank, called at a sawmill to have some lumber cut for a cabinet to be used in the bank. While standing near a saw he stepped on a block, which was concealed in the sawdust on the floor, and instinctively threw out his arm to recover himself. His hand came in contact with the saw, and was cut off. Held, that the insured, in entering the sawmill, was acting within the scope of his employment, and it would not be held, as a matter of law, that he voluntarily exposed himself to danger, though shortly before the accident he had been operating the saw himself.</p> <p>3. Evidence—Admissions—Offer of Compromise.</p> <p>Evidence of the admission of ah independent fact is competent, though made during a negotiation tending towards a compromise.</p>

Action by the Lamson Consolidated Store-Service Company against Michael Conyngham to recover on certain promissory notes given for the purchase price of a cash register. The answer alleged a breach of guaranty on plaintiff’s part to keep the machine in repair. From a judgment in favor of defendant for costs, rendered by a justice without a jury, plaintiff appeals. Reversed.

<p>Contributory Negligence—Attempt to Avoid Sudden Danger.</p> <p>In an action for.personal injuries, a verdict for plaintiff will not be disturbed where it appears that the accident occurred while plaintiff was attempting to avoid sudden danger occasioned by defendant’s negligence, though, if plaintiff had adopted another course, he would have escaped injury.</p>

Action by Louis Jaton against the Brentwood Hotel Company for work, labor, and services. There was a judgment in favor of plaintiff, and defendant appeals. Reversed.

<p>1. Tenancy from Year to Year—Holding Over.</p> <p>Where a tenant takes possession under lease for one year, and continues in possession after the expiration of that year, he thereby renews the letting for another year on the same terms.</p> <p>3. Principal and Agent—Eights op Undisclosed Principal.</p> <p>The fact that premises were let to the tenant by an agent without disclosing his agency, and that the tenant supposed the agent to be the owner, does not prevent the owner from recovering the rent.</p> <p>3. Witness—Credibility—Agents.</p> <p>The fact that a witness, as agent for plaintiff, made the contract sued on, does not furnish any ground for discrediting his testimony.</p>

<p>Appeal from district court.</p> <p>Summary proceedings by James Simpson and another against Marie Masson. From a final order in favor of plaintiffs, defendant appeals. Affirmed.</p>

Action by the mayor, etc., of the city of New York, against Emil Roller, to recover a penalty. From a judgment in favor of defendant, rendered by the justice without a jury, plaintiff appeals. Reversed.

Action by George H. Jones against Theodore Palumbo to recover a balance alleged to be due plaintiff for work, labor, services, and materials furnished as a plumber. The pleadings were oral, and the defenses pleaded were a general denial, payment, and nonjoinder of parties defendant. From a judgment in favor of plaintiff, rendered by the justice without a jury, defendant appeals. Affirmed.

Action by William R. Tabb against the United Electric Light & Power Company to recover for certain advertisements. From a judgment in favor of defendant, rendered by the justice without a jury, plaintiff appeals. Affirmed.

Action Tby Fritz Jagau, Jr., against Friedericka Goetz (formerly Jagau). From a judgment of the city court affirming (without opinion) a judgment entered on a verdict in favor of plaintiff, defendant appeals.

<p>CORPORATIONS—CONTRACTS—AUTHORITY OP OFFICERS.</p> <p>Where the treasurer of a foreign corporation doing business in New York, has entire charge of its business, making contracts in its behalf without interference from the directors, who had not met since organization, limitations in the by-laws on the -authority of the treasurer does not affect a person contracting with the corporation in ignorance of such by-laws.</p>

<p>Principal and Agent—Authority op Agent.</p> <p>An agent who solicits advertisements has no authority to agree to take out payment therefor in clothes to be furnished to him personally.</p>

Action by William Kennedy and John Kennedy against the Metropolitan Street-Bailway Company to recover for damages to plaintiffs’ wagon, caused by a collision with one of defendant’s cable cars at Fourteenth street, between University Place and Broadway. From a judgment entered on a verdict in favor of plaintiffs, defendant appeals.

Action by Peter Bang against Ida J. Dovey to recover money paid out for defendant. From a judgment rendered by the justice without a jury, defendant appeals.

, against the Campbell Printing-Press & Manufacturing Company, to recover money alleged to have been received by defendant for the use of plaintiff. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Edward L. Purdy against the Nova Scotia Midland Railway & Iron Company, Limited, to recover on a quantum meruit for work, labor, and services rendered, and materials furnished, at defendant’s instance and request. From a judgment of the city court (28 N. Y. Supp. 758) affirming a judgment entered on a verdict in favor of plaintiff, and an order denying a motion for a new trial, defendant appeals.

Action by Pasquale Caponigri against Pasquale Altieri and others. From a judgment of the city court affirming an interlocutory order and judgment overruling plaintiff’s demurrer to certain defenses and counterclaims alleged in the answer, plaintiff appeals.

Action by Ruth A. Wallace against Ferrel O. Dinniny, Jr. From a judgment of the city court (30 N. Y. Supp. 830) affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals.

Action by Louis Weiss against Edwin P. Ashman. From an order denying a motion to vacate a previous order, requiring defendant to appear and be examined in supplementary proceedings, defendant appeals.

Action by the people of the state of New York against Thomas GL Cowan, principal, and John Cahill, surety. From an order vacating and setting aside an order theretofore made, requiring defendant Cahill to appear and be examined as a judgment debtor in supplementary proceedings (31 N. Y. Supp. 427), plaintiff appeals. Affirmed.

<p>Action by Hipólito Dumois and others against William Hill and ethers for money had and received. Defendants demur to the complaint.</p>

<p>Appeal from jury term.</p> <p>Action by Abner G-. Tisdell against the New Hampshire Fire Insurance Company on a fire insurance policy. From a judgment entered on a verdict directed by the court in favor of defendant, plaintiff appeals.</p>

<p>Action by Tilly Lesser, as executrix and trustee, against Caroline Lesser and others, by guardian, to construe a will.</p>

Action by Edward Marshall against George B. Sherman to enforce the statutory liability of defendant as a stockholder of a Kansas corporation. From a judgment overruling a demurrer to the complaint, defendant appeals.

Application by David L. Follett and Alton B. Parker for a writ of mandamus to Ashbel P. Fitch, comptroller of the city of New York. The writ was granted, and defendant appeals. Affirmed.

<p>Joseph Luczak was convicted of petit larceny, and now sues out a writ of habeas corpus to discharge him from custody.</p>

<p>Appeal from special term.</p> <p>Action by Jacob Balz against Daniel M. Shaw. From an order declining to correct the case on appeal, plaintiff appeals. Affirmed. Argued before EHRLICH, O. J., and NEWBURGER, J.</p>

Action by Frank P. Perkins against the Brainard Quarry Company for broker’s commissions. From a judgment entered on a verdict in favor of plaintiff, and from two orders,—one denying a motion for a new trial on a case and exceptions, and the other denying a motion for a new trial on the minutes,—plaintiff appeals.

Action by Frank P. Perkins against the Brainard Quarry Company to recover broker’s commissions. From an order directing the clerk to retax defendant’s costs awarded to it in denying a motion for a new trial, plaintiff appeals.

<p>On reargument. For decision on appeal, see 29 N. Y. Supp. 578. For order granting reargument, see 31 2J. Y. Supp. 119.</p>

Action by George Goodman against Henry Myers to recover damages for the seizure by defendant, as city marshal, of the contents of a grocery store at 71 Cannon street. Defendant justified under an attachment against Fischel & Schwartz, alleging that they had a leviable interest in the goods. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Morris Levy against Elizabeth E. Kottman for commissions as a broker. From a judgment of the city court (28 Y. Y. Supp. 1150) affirming a judgment entered on a verdict in favor of plaintiff, and an order denying a motion for a new trial, defendant appeals. .

Action by Charles F. Winch against the Farmers’ Loan & Trust Company, as executor of the will of Benjamin F. Sherman, deceased, and Henry E. Fanshawe, to recover for breach of alleged agreement to compensate plaintiff by payment in bonds for services in imparting particular information. The complaint was dismissed, and plain- tiff appeals.

Action by Duryea, Watts & Co., Limited, a domestic corporation, against Julius Rayner. From an order of the city court affirming (without opinion) an order denying defendant’s motion to vacate an attachment on the papers on which it was granted, defendant appeals.

Action by Bridget McCabe against Frederick H. Hastens to recover damages for personal injuries. From a judgment of the city court (30 N. T. S. 832) affirming a judgment entered on the dismissal of the complaint, plaintiff appeals.

<p>Reargmnent of an appeal from an order of the city court directing restitution. Reversed.</p>

Action by John A. Henry Geiler against the Manhattan Railway-Company to recover damages for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant’s servants. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals.

6 Action by Edward Fox against the mayor, etc., of the city of New York, to recover $3,145.78, with interest, for services as an inspector of masonry. From a judgment entered on the verdict in favor of plaintiff for $121, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Action by William Kessler and others against Berthold Levy and others to recover a balance due for moneys alleged to have been advanced on certain letters of credit issued by plaintiffs for the account and at the request of the defendants. Defendants were arrested on the ground that since the making of the contracts sued on, and in contemplation of making the same, the defendants had removed or disposed of their property with intent to defraud their creditors.

Action by Campbell Printing Press & Manufacturing Company against Robert P. Yorkston. From a judgment of the city court (30 N. Y. Supp. 1130), affirming a judgment rendered on the verdict in favor of defendant, and an order denying a motion for a new trial, plaintiff appeals. Reversed.

Action by Ellen Banzer against Adam Banzer and others for partition. The complaint was dismissed on the merits (30 N. Y. Supp. 803), and plaintiff appeals.

Action by Samuel E. Dale against Louisa H. Hepburn to recover for legal services alleged to have been rendered by plaintiff for defendant. The complaint was dismissed at the close of the trial, and plaintiff moves for a new trial on exception ordered to be heard at general term in the first instance.

Action by Joseph J. Kittel against Henry Stueve for specific performance. From an order denying the motion to punish defendant for contempt of court for refusing to obey the final judgment, plaintiff appeals.

Action by Elvira Purdy against the Manhattan Railway Company and another. From an order denying defendants’ motion for leave to serve a supplemental answer, setting up matter of defense arising during the pendency of the action, defendants appeal.

Application by John Torney for a writ of mandamus against Joseph H. Stiner, as justice of the district court in the city of New York for the Eighth judicial district. The proceeding was dismissed (27 N. Y.. Supp. 913), and relator appeals.

<p>At chambers. Application for a writ of mandamus to compel De Lancey Nicoll, district attorney, to reinstate relator to a position theretofore held by him in the district attorney’s office, from which he claimed to have been</p> <p>wrongfully removed.</p>

<p>Application by William E. McDonald for mandamus, to compel petitioner’s reinstatement in office. Trial of issues on alternative writ.</p>

Action by Bernard S. McKean, as assignee of Bullard & Shannon, against Charles H. Adams, to recover the sum of $250, alleged to be due for legal services rendered to defendant by plaintiff’s assignors. From a judgment of the city court (30 3sT. Y. Supp. 1133) affirming a judgment entered on a verdict in favor of plaintiff for $50, plaintiff appeals.

<p>1. Mechanics’ Liens—Work and Material—Knowledge oe Owner.</p> <p>Where work is done on, and materials furnished for, a building with the knowledge and consent of the owner, a lien may be obtained therefor though claimant made no contract with the owner.</p> <p>2. Work and Labor—Agreement to Furnish—Compensation.</p> <p>One who agrees to furnish labor for another, no price being fixed, is entitled to a profit thereon, and is not limited in his recovery to the amount which he paid the workmen. •</p> <p>3. Counter claims—Tort and Contract.</p> <p>An action to foreclose a mechanic’s lien, being founded on contract, is not subject to a counterclaim for false representations by plaintiff that he was a competent architect, whereby he induced defendant to accept improper plans, in consequence of which defendant suffered a loss, as such counterclaim sounds in tort.</p>

Action by Mary Oakes against James M. High and others, to recover damages for an alleged breach of contract. From an order denying a motion to correct the judgment, plaintiff appeals. Affirmed.

Action by David Felter, as receiver of the copartnership assets and effects of Haddock & Steel, against Jeanie E. Haddock, George Steel, and Andrew W. Kent. From a judgment dismissing the complaint, plaintiff and defendant Jeanie E. Haddock appeal.

Action by David Boyd, as administrator of Samuel Boyd, deceased, against Robert Boyd, on a judgment. From an order of the city court (31 N. Y. Supp. 193) affirming an order granting defendant’s motion for a new trial on the ground of newly-discovered evidence, made after direction of a verdict in favor of plaintiff for $3,010, plaintiff appeals.

<p>Principal and Agent—Ratification.</p> <p>An agreement made without authority by a third person, purporting to act as defendant’s agent, to assign on a certain day a lease held by defendant in exchange for property owned by plaintiff, is not ratified by defendant’s statement on a subsequent day that the agreement was “all right.”</p>

Action by Samuel Phillips against the New York Central & Hudson River Railroad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $2,500, and from an order denying a motion for a new trial, defendant appeals. ReversBcl.

Action by Margaret E. Purcell against Long Island City for malicious prosecution, in which the damages were laid at $10,000. The complaint was dismissed, and plaintiff appeals. Affirmed.

Action by Wheeler & Wilson Manufacturing Company against Joseph W. Elberson on two promissory notes and for the price of goods sold. From a judgment entered on a verdict in favor of defendant, plaintiff appeals.

Action by John Jager against the Coney Island & Brooklyn Bail-road Company for personal injuries. The complaint was dismissed, and plaintiff appeals.

Action by Eugene Bouscher against Charles D. Larkins to recover compensation for services alleged to have been performed by plaintiff’s assignor as a broker for. defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Michael Fitzgerald against John Ceils for slander. From an order granting a motion to dismiss the complaint, and from the judgment entered on said order, plaintiff appeals. Reversed.

Action by Crant B. Taylor, as receiver of the Manhattan Mutual Fire Insurance Company of New York, against the Port Jefferson Milling Company, on a promissory note. There was a judgment in favor of plaintiff, and defendant appeals.

Action by Laura Steven against John B. Lord, as executor of the last will and testament of Thomas B. Robb, deceased, on a promissory note. There was a judgment in favor of plaintiff, and defendant appeals.

<p>Appeal from special term, Kings county.</p> <p>Action by Morris E. Brainard and another against the county of Kings, the county of Queens, Carter W. Dean, and John A. West-brook to foreclose a mechanic’s lien. There was a judgment in favor of plaintiffs, and defendants the county of Kings, the county of Queens, and others appeal. Affirmed as to some defendants, and reversed as to others.</p>

<p>Appeal from circuit court, Kings county.</p> <p>Action by Thomas L. Vickers against Sanford W. Battershall and another on a promissory note. From a judgment entered on a verdict directed by the court in favor of plaintiff for $718.25, defendants appeal.</p>

Application by William H. Smith and Thomas Cummings for a writ of habeas corpus, directing S. Taylor Emery, M. D., health commissioner of the city of Brooklyn, and others, to produce petitioners before the supreme court, that the cause of their detention might be inquired into. Petitioners were discharged, and the health commissioner appeals.

<p>Constitutional Law—Admission to Schools—Vaccination.</p> <p>Laws 1893, c. 661, § 200, providing that no person not vaccinated shall be admitted to any of the public schools of the state, is constitutional.</p>

Action by George Alger against the Metropolitan Life Insurance Company on a policy of insurance. From a judgment entered on the verdict directed by the court in favor of defendant, plaintiff appeals.

<p>Dower—Beneficial Ownership op Husband.</p> <p>Testator gave all his property to his ‘ executors in trust ■ until his youngest child should die or attain majority, on- the happening of which event he directed enough to be set apart to produce a certain annuity for his wife, the residue of his estate to be divided among his four children. His two youngest children died soon after attaining majority, and the title to their shares vested in their surviving mother, brother, and sister. No fund having been set apart for the annuity, the mother, brother, and sister agreed on a settlement of the estate, pursuant to which half of the real estate was conveyed to the brother,, and the other half to the sister; each deed providing that it did not extinguish the lien on the land for the payment of the annuity. Held, that the beneficial interest of half of the portion conveyed to the brother vested in him when testator’s youngest child attained majority, while the other half vested under the agreement and deed; and therefore half of the annuity was chargeable on the portion conveyed to the brother, and was a lien on half of his portion prior to the dower right of the widow of the brother who was married before the agreement, but was subject to such dower right as to the other half. Dykman, J., dissenting.</p>

Action by George Miller against John King and another, as receivers of the Hew York, Lake Erie & Western Railroad Company, to recover damages for an alleged unlawful ejection of plaintiff from defendants’ car. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defend- ants appeal.

Appeal, from special term, Queens county. Action by Lawrence R. Suydam and another against Frederick W. Dunton to recover damages for breach of a contract for the purchase of real estate. From a judgment for $26,474.24, in favor of plaintiffs, defendant appeals. The opinion of Mr. Justice BROWN at special term is as follows: The parties having agreed upon the facts of this case, it is necessary only that I state my conclusions therefrom.

Action by Delia Glassey against the Metropolitan Life Insurance Company on two policies of life insurance. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Certiorari by Horace K. Hill to review the action of Arthur J. Mace and others, constituting the board of trustees of the village of Williamsbridge, in removing relator from the office of street commissioner. Judgment for relator.

Action by Mary E. Bates against the Hew York Central & Hudson River Railroad Company to recover damages resulting from the death of plaintiff’s intestate. Plaintiff was nonsuited, and appeals. Affirmed.

Action by David Sandman against Horace Seaman and another . to set aside a deed made by defendant Horace Seaman to his wife, Estelle F. Seaman, on the ground of fraud; that such conveyance be declared void as against plaintiff. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.

<p>Appeal from circuit court, Queens county.</p> <p>Action by Auguste Dorn against the Town of Oyster Bay to recover damages for the death of plaintiff’s intestate alleged to have been caused by reason of a defective highway in defendant town. Plaintiff was nonsuited, and appeals.</p>

Applications by Joseph Wechsler and others, Frederick Marx and others, Jeremiah P. Robinson and others, William M. Brasher, and Joseph Wuestl, respectively, to review the proceedings of William Harkness and others, constituting the board of assessors of the city of Brooklyn, to assess the property of relators. From an order denying a motion to quash the writs of certiorari, defendant appeals.

Action by Patrick Mahoney against Cornelius Dwyer for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by William Finlayson and another against Brastus Wiman to recover a balance alleged to be due on the purchase price of 325 shares of the capital stock of the Staten Island Rapid-Transit Railroad Company. A verdict was directed in favor of plaintiffs, and defendant’s exceptions were ordered to be heard at general term in the first instance. Judgment for plaintiffs.

Action by William D. Strong and another against Richard P. Strong and others. From an interlocutory judgment overruling the demurrer to the complaint, defendants appeal. Reversed. The parties to this action are the children of Demas Strong, deceased, and the wives of the sons of said deceased.

Action by Mary Clifford against Frederick Kampfe and others, composing the firm of Kampfe Bros., to set aside a deed executed by James Clifford, plaintiff’s husband, conveying premises in which plaintiff claimed an inchoate right of dower. A demurrer to the complaint was sustained, and plaintiff appeals. Reversed.

<p>Appeal from circuit court, Rockland county.</p> <p>Action by Walter S. McAIIaster against Niagara Fire Insurance Company on a fire insurance policy. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.</p>

Action by Elizabeth A. Gray against James C. Gray for divorce. On February 6, 1894, an alternative order was entered requiring defendant, on or before February 15th, to pay alimony and counsel fees, as directed by a previous order, or have his answer stricken out. On February 16th an order was entered striking out defendant’s answer for failure to comply with the previous order. On May 26,1894, final judgment was entered in favor of plaintiff.

<p>Appeal from circuit court, Westchester county.</p> <p>Action by James W. Fox and others against Franz O. Matthiessen to recover commissions on the purchase price of certain sugar refineries. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiffs appeal.</p>

<p>Appeal from special term, Orange county.</p> <p>Application by Richard M. Cunningham for mandamus to compel William H. Osborn and others, commissioners of highways, to open and work a road. The application was denied, and relator appeals.</p>

Proceeding by Alfred C. Chapin and others to ascertain and appraise the amount of damages to property by reason of the erection of hospitals in the town of Flatbush for persons suffering from contagious diseases. Prom an order confirming the report of the commissioners, Moritz Cohn and Patrick J. Kennedy appeal. Affirmed.

<p>Appeal from circuit court, Queens county.</p> <p>Action by Edward Laufer against the Boynton Furnace Company for breach of contract. From a judgment entered on a verdict in favor of plaintiff for $4,333.12, and from an order denying the motion for a new trial, defendant appeals.</p>

<p>Building Contracts—Delay in Performance.</p> <p>Where a delay in completing a house is caused by the neglect of the contractor, the rental value for the period of delay may be deducted from the contract price.</p>

Action by James M. Pender against the Brooklyn City Railroad Company to recover damages for the death of plaintiff’s intestate alleged to have been caused by the negligence of defendant’s servant. From a judgment entered on a verdict in favor of plaintiff for $2,500, and from an order denying a motion for a new trial, defendant appeals.

<p>Manslaughter—Evidence.</p> <p>Defendant and decedent quarreled in a saloon, and were told to go outside. A third person went out. after them, and saw them struggling together, but saw no blows struck. He separated them, and they all returned to the saloon, when decedent was found to have a cut over his eye, concerning which he said “he [defendant] must have used a knife on me.” There was no evidence that defendant had a knife about him, and defendant testified that he did not strike decedent. Afterwards, decedent left the saloon, and was found the next morning dead. A physician testified that death resulted from inflammation of the brain, caused, in his opinion, by the wound over the eye. Other physicians thought that it was just as probable that death resulted from alcoholism. Held, that the evidence was not sufficient to sustain a finding that death resulted from a blow given by defendant</p>

Action by Charles E. Travis against Edward M. L. Ehlers and others, executors of last will of Bernard Travis, deceased, to recover on a covenant in a lease. There was a judgment in favor of plaintiff, and defendants appeal.

Action by the Anchor Brewing Company against the village of Dobbs Ferry for an injunction. The complaint was dismissed on the merits, and plaintiff appeals.

<p>Release and Discharge—Consideration—Part Payment.</p> <p>The payment of part of a judgment by a person other than the debtor is a sufficient consideration for agreement by the judgment creditor to cancel the judgment.</p>

Action by Phebe A. Smith against John P. Cranford and an'other for damages to a fish pond. There was a judgment in favor of plaintiff, and defendants appeal.

<p>Certiorari by Cornelius Foley to review the decision of the board of education of Long Island City removing relator from office.</p>

Action by Charles E. Maxfield against Oliver L. Carpenter to recover the price of goods sold and delivered. There was a judgment in favor of plaintiff, and defendant appeals.

Action by the First Rational Bank of Brooklyn against William T. Wallis and others on a promissory note. From a judgment entered on verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.

Action by Gerhard Fortmann against George S. Wheeler and others to recover possession of land. From a judgment entered on a verdict in favor of plaintiff, defendants appeal.

Action by the Farmers’ Loan & Trust Company against the Equity Gaslight Company of the Eastern District of Brooklyn to foreclose a mortgage. There was an interlocutory judgment in favor of plaintiff, and defendant moves at general term for a new trial on exceptions, as provided by Code Civ. Proc. § 1001.

Action by Emma Roberts against the Union Elevated Railroad Company to recover damages to plaintiff’s premises by reason of the construction and operation of defendant’s elevated railroad. Prom an order granting a motion to set aside satisfaction of a judgment rendered in favor of plaintiff, and from an order denying a motion for a reargument, defendant appeals.

<p>Executors—Reference of Claims—Disbursements.</p> <p>Laws 1893, c. 686, amending Code Civ. Proc. § 2718; provides that, on the entry of an order of reference of a claim against decedent’s estate, the proceeding becomes an action, and is governed, as to costs, by Code Civ. Proc. §§ 1835, 1836, which provide for costs in actions against executors, etc., but make no provision for disbursements. Held, that Code Pr.oc. § 317, not being inconsistent with Code Civ. Proc. §§ 1835, 1836, is not repealed by the act of 1893, and therefore, where a claim against a decedent’s estate has been referred, disbursements may be allowed to the claimant, though no costs are given.</p>

<p>Statute op Frauds—Agreement to Hold Lands in Trust.</p> <p>Plaintiff conveyed to defendant his interest in land of which they were tenants in common, under a verbal agreement that plaintiff’s interest should not be affected or destroyed thereby, but that defendant was to hold the property for the joint benefit of both. There was no fiduciary relation between the parties, and plaintiff fully understood the transaction. Held, under 2 Rev. St. p. 134, § 6, providing that “no estate or interest in lands * * * nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created unless by act or operation of law or by a deed assigning surrendering or declaring the same or by his lawful agent thereunto authorized by writing,” that such verbal agreement could not be enforced against defendant.</p>

<p>Appeal from circuit court, Kings county.</p> <p>Action by Abraham Simon and others against John H. Vanderveer to recover money paid on account of a contract for the purchase of land. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, defendant appeals. Reversed.</p>

Action by Jirah I. Foote against Lucy R. Bruggerhoff and others. From a judgment directing plaintiffs to convey the homestead to defendants, and dismissing a counterclaim, both parties appeal. Reversed.

<p>1. Appeal—Harmless Error—Probate of Will.</p> <p>Where a will devising land in another state is refused probate in that state because of defects in form, the devisee is not prejudiced by the refusal of the surrogate to admit the will to probate in New York, since, under Code Civ. Proc. § 2611, it could only be proved in New York as a will of personal properly.</p> <p>2. Foreign Judgment—Concltjsiveness as to Facts.</p> <p>A foreign judgment, though not subject to impeachment in New York, does not establish conclusively the facts and grounds on which it was rendered.</p> <p>3. Appeal from Surrogate’s Court—Review.</p> <p>An appeal from a surrogate’s court to the supreme court on the facts is substantially a rehearing in equity, and the case will be examined and determined anew.</p> <p>4. Wills—Authenticity—Evidence.</p> <p>An alleged will, giving one-third of the estate to proponent, who was not of kin to testatrix, to the exclusion of her grandchildren, will be rejected, as spurious, where it appears that testatrix had formerly been on friendly terms, with, but before her death had formed a derogatory opinion of, proponent; that the will was executed the day before testatrix died; and that, three days before, she had signed another will by her mark, because she was unable to write.</p>

Action by German-American Beal-Estate Company against Adolph Starke for breach of covenants contained in a contract for the sale of real property and in a deed conveying such property. The contract covenanted that the vendor would put the purchaser in possession of the land as against all the world, except himself. This covenant was not inserted in the deed, which contained only the usual five covenants. There was a judgment in favor of defendant, and plaintiff appeals.

Application' by Wilhelmina Deckelmann and others for an order authorizing and requiring John H. Braunsdorf, as trustee, to repair a building belonging to the trust estate. The application was granted, and the trustee appeals.

Petition by Lazerus, Bosenfeld & Lehmann for an order compelling the receivers appointed in an action by Louis Liebmann and Herman Liebmann against the Liebmann Bros. Company, a bankrupt corporation, organized under the laws of the state of Hew Jersey, to pay petitioners their claim against said corporation in full. The petition was denied, and petitioners appeal.

Action by Joseph B. Pennell and others against Charles L. Bueki to recover a balance alleged to be due under a contract, and for extra work. The complaint was dismissed, and plaintiffs appeal.

Action by Frederick A.' Archer against Lewis N. Archer for partition. The premises were directed to be sold, and William Booth became the purchaser. A few days afterwards he assigned his bid to Emanuel G-. Bach, who refused to complete the purchase on the ground that the title was defective. From, an order directing him to complete the purchase, said Bach appeals.

<p>1. Mortgages—Foreclosure—Malice.</p> <p>Where the mortgage debt is declared due, under the terms of the mortgage, on default in the payment of interest, it is no defense to an action brought to foreclose that the action was induced by malicious feelings towards defendant.</p> <p>2. Same—Agreement to Waive Default—Consideration.</p> <p>Where a mortgage provides that the debt may be declared due, and the mortgage foreclosed, on default in the payment of interest, a promise, made after default, to receive the interest if paid within a specified time, is void for want of consideration.</p>

Action by Julia M. De Forest against Theodore G-. Peck and others to foreclose a mortgage. From an order subrogating J. Harsen Halsted, a junior mortgagee, to the lien of plaintiff’s mortgage, defendants Theodore G. Peck and Gordon H. Peck appeal.

Action by George Harley against Edward Fitzgerald to recover for services as a bartender. The justice rendered judgment in favor of plaintiff, which was affirmed by the county court, and defendant appeals.

<p>Certiorari by John P. Wilson to review the action of the Medical Society of the County of Dutchess in suspending relator from membership.</p>

<p>Negotiable Instruments—Liability oe Indorsers inter Se.</p> <p>In an action on a note made by one G., payable to defendant, and indorsed by plaintiff and defendant, it appeared that G. had offered a note, indorsed by plaintiff, to a bank, for discount, which was refused unless another indorser was obtained, arid the name of defendant was suggested. The bank also objected to the form of the note because it was payable to the bank. Thereupon, another note was drawn up payable to the order of defendant, who indorsed it after plaintiff. Defendant did not know that he was named as the payee. The note was discounted, and the proceeds received by G. Afterwards, the note was protested for nonpayment, and plaintiff paid it off by installments, giving at each payment a new note for the balance, indorsed by defendant. Held, that defendant was liable only as a second indorser on the original note, and plaintiff, after payment thereof, could not recover the amount from defendant.</p>

Action by Delia F. Sheldon, as administratrix of Alexander E. Sheldon, deceased, against Isaac E. Sheldon and another. There was a judgment in favor of plaintiff, and defendants appeal.

Action by Stephen B. Sturges against John F. Hart and others to foreclose a mortgage. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.

Controversy between William A. Pitt, plaintiff, and Arthur H. Amend, defendant, submitted without action on an agreed state of facts, to compel performance of a contract for the purchase of real property.

Action by Hawley D. Olapp against William F. McCabe and others to recover possession of land. There was a judgment in favor of plaintiff, and defendants appeal. The opinion of Charles P. McClelland, Esq., the referee before whom the case was tried, is as follows: The action is in ejectment to recover the possession of an undivided one-seventh part of certain lands situate in the town of Mamaroneck, in the county of Westchester.

Action by Robert Armstrong, Jr., against the Village of Ft. Edward, to recover for services alleged to have been performed by plaintiff as a lawyer for defendant at its special instance and request. The complaint was dismissed, and plaintiff appeals. Affirmed.

<p>Appeal—Review—Weight of Evidence.</p> <p>Where three witnesses in an action for injuries received at a railroad crossing testified that the bell was rung as the locomotive approached the crossing, and another witness testified that it was not rung; that she noticed it at the time, and was listening and watching for it,—whether the bell was rung is a contested question of fact, for the jury, and their finding will not be disturbed.</p>

Action by William N. Coler and others against the Pittsburgh Bridge Company, a foreign corporation, existing under the laws of the state of Pennsylvania, the South St. Paul Belt Railroad Company, a foreign corporation existing under the laws of the state of Minnesota, and Frank P. Blair, to enjoin defendants from disposing of certain bonds issued by the city of South St. Paul, and to compel the delivery of the same to plaintiffs, and to compel defendant the South St. Paul…

Action by Louis Bourdon against Francis A. Martin, as receiver of the property of Emma Walker, a judgment debtor, substituted as defendant in place of the New York & Lake Champlain Transportation Company by an order of interpleader granted on payment into court by the transportation company of the money sued for. The action was brought to recover the sum of $243.20 for board alleged to have been furnished to the employés of the transportation company by plaintiff.

Action by Anne Jay Bolton against the village of New Rochelle to enjoin a nuisance, and for damages. There was a judgment in favor of plaintiff, and defendant appeals.

<p>Appeal from special term, Franklin county.</p> <p>Action by Nathan C. Douglas and another against Daniel S. Coonley and another to enforce the right of plaintiffs to the use in common with defendants of a stairway. From a judgment sustaining a demurrer to the answer, defendants appeal.</p>

Proceeding for the probate of the will of Adrian M. Suydam, deceased. The probate was contested by Leah V. C. Naul and three others, the daughters of Peter F. Suydam, testator’s brother. The will was admitted to probate, and contestants appeal.

Action by Isaac W. Winne against David Houghtaling. From an order discharging defendant from custody under an execution against the person, plaintiff appeals.

Action by Jose Gomez and others against William Hagaman and others to set aside a bill of sale of certain personal property made by defendants Samuel Stevens and John J. Van Schoonhoven, composing the firm of Samuel Stevens & Co., to the defendants Hagaman and others, composing the firm of Frank Wooster & Co., on the ground that the same was made and accepted with intent to hinder, delay, and defraud creditors, and on the further ground that it was in violation of the law…

Action by George H. Heath against the New York Building Loan Banking Company to set aside a mortgage and rescind a deed and agreement. From an order resettling the findings in the action, defendant appeals. Reversed.

Action by Edward D. Irish against Elizabeth C. Horn to recover the price of goods sold and delivered, and for work done. Judgment ■ was rendered in favor of plaintiff in the justice’s court, and was affirmed by the county court. From the judgment of affirmance, defendant appeals.

<p>Master and Servant—Sufficiency of Appliances—Question for Jury.</p> <p>Where a railroad company uses cars with drawheads of different heights, it is a question for the jury whether, in failing to furnish crooked links suitable to the coupling of such cars, it failed to furnish reasonably safe appliances.</p>

Action by Elizabeth Kelly, by Mary Kelly, her guardian ad litem, admitted to prosecute as a poor person, against the Cohoes Knitting Company for personal injuries. From a judgment entered on the verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Libel and Slander—Privilege—Averment in Pleading.</p> <p>In an action for divorce on the ground of adultery, an averment in the complaint that the adulterous intercourse was with one L., being pertinent and material, is absolutely privileged, and therefore does not give L. a cause of action for libel, though it was false and malicious.</p>

Action by Frank N. Wright against aJohn A. Robinson & Co., a corporation, on a contract for rent and 'heating of a store at North-ville, H. Y. There was a judgment in favor of plaintiff, and defendant appeals.

Action by Fitz Boynton and another against Ophelia E. Squires and E. Frank Squires to recover for goods sold and delivered. From a judgment of the county court affirming a judgment rendered in a justice’s court in favor of plaintiffs, defendant Ophelia E. Squires appeals.

Action by August Granz against Louis Lichtenhein for services rendered by plaintiff and his wife to defendant. There was a judgment in favor of plaintiff, and defendant appeals.

<p>Counties—Liabilities—Defective Bridges.</p> <p>Laws 1892, c. 686, §§ 2, 3 (County Law), declaring counties to be municipal corporations, does not change the rule that a county is not liable for negligence of the board of supervisors in failing to maintain bridges in a reasonably safe condition for public travel.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Owen Briardy against the county of Kings and the county of Queens for personal injuries. From a judgment dismissing the complaint, plaintiff appeals.</p>

Action by John B. Kincaid against Charlotte Kincaid for specific performance of a verbal agreement by defendant to execute to plaintiff a life lease of certain real estate. There was a judg-. ment in favor of plaintiff, and defendant appeals.

Action by Katherine J. Wilbur, as administratrix of Judd L. Wilbur, against the Delaware, Lackawanna & Western Railroad Company to recover damages for the death of plaintiff’s intestate, caused by the alleged negligence of defendant. From a judgment entered on a verdict in favor of plaintiff for $5,000, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

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

<p>Reargument granted on application of respondent (plaintiff), after reversal of an interlocutory judgment sustaining a demurrer to defendant’s counterclaim.</p>

Action by Henry W. Hayden against Catharine E. Van Cortlandt to enjoin defendant from trespassing on the property claimed by plaintiff, and also to establish the boundary line between such property of plaintiff and defendant’s property. From an order allowing the discovery and inspection on the application of plaintiff of marks on a tree on defendant’s land, defendant appeals.

<p>Witness—Credibility—Inconsistent Statements.</p> <p>Where a witness testifies that a certain event occurred on a certain road “between the sluiceway and the hill,” evidence that he stated soon after the occurrence that it took place between the sluiceway and the top of the hill is admissible, as tending to show that immediately after the occurrence the witness was less certain about the precise position than when he was on the witness stand.</p>

<p>Life Insurance—False Statement as to Age.</p> <p>A statement in the application that the insured was a year younger than he really was avoids the policy.</p>

Louis county. - Action by the Hilton Bridge Construction Company against the Gouverneur & Oswegatchie Railroad Company and the New York Central & Hudson River Railroad Company to foreclose a mechanic’s lien. From an order directing plaintiff, by supplemental summons and complaint, to bring in other parties defendant, plaintiff appeals.

Richard H. Stone was indicted for offering for sale commercial fertilizers with false analyses. From a judgment overruling a demurrer to the indictment, and adjudging the defendant guilty of the crime charged, arid sentencing him to pay a fine of $100, and to stand committed to jail until such fine be paid, not exceeding 100 days, defendant appeals.

Samuel K. Hawkins was indicted for selling and exposing for sale convict-made goods without labeling them as such. From a judgment in favor of defendant, sustaining a demurrer to the indictment (31 N. Y. Supp. 115), the people appeal.

Action by George H. Newcomb and others against Augusta G. Lush and others to recover possession of real estate. From a judgment in favor of plaintiffs, entered on a decision of the court, a jury having been waived, defendants appeal.

<p>Appeal from circuit court, Washington county.</p> <p>Action by Jane E. Guy against Charles A. Langdon and Hannah, his wife, to recover the sum of $1,000 and interest, and to have that sum adjudged a specific lien on the premises described in the complaint, and to enforce it by foreclosure and sale. The complaint was dismissed, and plaintiff appeals. Affirmed.</p>

Action by John Redington, as administrator, against the New York, Ontario & Western Railway Company, to recover damages for alleged negligence of defendant, causing the death of plaintiff's intestate. From a judgment entered on a verdict in favor of plaintiff for $2,000, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by Robins M. Witherbee and Emmett J. Gray against Aubrey E. Meyer for specific performance. There was a judgment in favor of plaintiffs, and defendant appeals. Affirmed.

Action by Orlo M. Bump, as administrator of Susan G. Warren, deceased, against Mary Pratt and another, to recover of defendant three debenture bonds issued by the Iowa Loan & Trust Company, which belonged to the intestate in her lifetime, and which defendant Mary Pratt alleges were given to her by decedent. .There was judgment in favor of defendants, and plaintiff appeals. Affirmed.

Action by Lizzie Byrnes against Robert Rayner to recover .for board and lodging furnished to defendant and his wife, and for the care of a horse. A judgment rendered in the justice’s court in favor of plaintiff was reversed by the county court, and plaintiff appeals. Affirmed.

Action by Rachel A. Woolsey against the trustees of the village of Ellenville for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Action by Rachel A. Woolsey against the trustees of the village of Ellenville to recover damages for personal injuries caused by the alleged negligence of defendant in failing to remove ice from the sidewalk. From an order disallowing certain items of costs, plaintiff appeals. Affirmed.

Action by Robert W. Evans against the board of street commissioners of the city of Hudson to enjoin defendant from cutting down and removing or otherwise wasting or injuring the four trees standing and growing on plaintiff’s sidewalk in the city of Hudson, on Warren street. From a judgment entered on a decision sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

Action by Mary Kendall and another against Margaret Case for partition. From an interlocutory judgment sustaining a demurrer to the answer, defendant appeals. Reversed.

Action by Patrick Fogarty against Adam Hook and another for conversion. From a judgment entered on a verdict in favor of plaintiff, defendants appeal. Affirmed.

Action by Richard B. Hoos against Sarah O. Hempstead to recover for work, labor, and services rendered, and materials furnished, by plaintiff for defendant in the erection of a barn on premises belonging to defendant. Prom a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Five actions by Joseph Newman, a subcontractor, against Ephraim B. Levy, owner, Philip Sehring, contractor, Trueman A. Shaw and Harry Harper, composing the firm of Shaw & Harper and John Lanzer, subcontractors and material men, to foreclose a mechanic’s lien. In action No. 1 the complaint was dismissed on the merits, and it was further adjudged that defendants Lanzer and Shaw & Harper had no liens.

Action by Edwin Albert Merritt and another against Herbert P. Bissell, to recover a balance alleged to be due on a contract. There was a judgment in favor of plaintiffs, and defendant appeals. Affirmed.

<p>Trusts—Validity.</p> <p>A married woman conveyed land owned by her to trustees to pay the income to her for life, and after her death to convey the land to her husband in fee, giving the trustees power in their discretion to sell the land and invest the proceeds, and, in case of a sale during the husband’s lifetime, to pay the proceeds to him. The deed further directed that, in case of the death of the husband during the life of the grantor, the income should be paid to her children during their lives, and, on the death of any child, his or her share should be paid to his or her next of kin. Held, that the deed created a valid trust for the benefit of the grantor during her life, and at her death it was the primary intention that the husband should have the fee if he survived her, and the validity of the deed for that purpose was not affected by the subsequent limitations in favor of the grantor’s children.</p>

Action by Laura B. Ingalsbe against Julia Murphy and others to foreclose a mortgage. From an interlocutory judgment decreeing that defendant Julia Murphy is entitled to an order of reference to take proof of plaintiff’s accounts as testamentary trustee, plaintiff appeals. Affirmed.

Action by Warner E. Sprague and Antoinette Appley against William B. Cochran and others to enforce against certain land the lien of a mortgage executed by William B. Cochran in favor of Antoinette Appley, and by her assigned to Warner E. Sprague. From an order overruling a demurrer to the complaint, and from an interlocutory judgment entered thereon, defendants appeal. Affirmed.

Action by Charles A. C. Seller against Sarah Jane Antisdel and others for partition. There was a judgment in favor of plaintiff, and defendants appeal. Modified.

<p>Motion by plaintiff (appellant) for reargument.</p>

Action by David B. Ackley against George H. Welch and Etta Welch, impleaded with another. There was a judgment in favor of plaintiff, and defendants Welch appeal. • Affirmed.

Action by Seymour Bowman, as administrator of Charles Gr. Judd, deceased, against the Elmira, Cortland & Northern Railroad Company, to set aside and vacate the satisfaction executed by Jacob Schwartz, the attorney for Hurd B. Judd, of a judgment recovered by said Hurd B. Judd, as administrator of Charles Gr. Judd, deceased, against defendant. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.

Action by the people of the state of New York against Irving D. Lamb to recover a penalty for selling adulterated and impure milk to a creamery. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, made on the minutes, the people appeal. Reversed.

Action by John D. Babcock and others against William J. Kuntzsch. Prom an order denying a motion to dismiss and vacate the replevin proceedings instituted by plaintiffs, defendant appeals. Affirmed.

A.ppeal from Onondaga county court. Action by Frank McOlanathan and another against William Friedel and another. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, defendants appeal.

Action by Frederick W. Webster against the Elmira, Cortland & Northern Railroad Company to recover damages sustained by plaintiff while a passenger on one of defendant’s trains by reason of the derailment of the car in which he was riding. From an order granting a motion for a new trial, made by plaintiff on a case and exceptions after the verdict had been rendered in favor of defendant, defendant appeals.

Action by the National Cash-Register Company against Harry C. Coleman. From an order vacating and setting aside the return of the execution issued on a judgment in favor of plaintiff, plaintiff appeals.

Action by Adelbert G-. Sergent against the London & Liverpool & Globe Insurance Company on a fire insurance policy. From a judgment dismissing the complaint, and from an order denying a motion for a new trial, made on the minutes, plaintiff appeals. Affirmed.

Action by Walter Walrath and others against William H. Abbott. From an order denying a motion to require defendant’s attorney and the clerk of Herkimer county to include in the judgment roll herein his requests to find, together with the rulings of the trial court thereon, plaintiffs appeal. Reversed.

Action by Mina A. Parsons, as administratrix of J. Ives Parsons, deceased, against the New York Central & Hudson River Railroad Company, to recover damages for the death of plaintiff’s intestate. From a judgment in favor of defendant, entered on an order granting a nonsuit, plaintiff appeals.

Action by Henry L. Manning against Cornelius L. Wells. From an interlocutory judgment overruling defendant’s demurrer to the complaint, with leave to defendant to answer within 20 days after notice of judgment on payment of costs, and directing that if the costs are not paid and the answer served within the time given, judgment absolute for the amount demanded in the complaint shall be entered, with costs (29 N. Y. Supp. 1044), defendant appeals. Affirmed.

Action by the First National Bank of Syracuse against the New York Central & Hudson Biver Bailroad Company for conversion. From a judgment entered on the decision of the court on a. trial without a jury, defendant appeals.

Action by Elizabeth Wilcox, as administratrix of William Gilchrist, deceased, against Harriet E. Gilchrist, as executrix of Truman Ó. Gilchrist, deceased. Held: “First. That on or about November 23, 1880, the firm of T. G. & W. Gilchrist became liable thereafter to pay or account for said §3,000 as a deposit. Second.

Action by Isaac P. Powers against Hiram Knapp to enforce the statutory liability of defendant as a stockholder of the Winslow & Knapp Lumber Company. From a judgment dismissing the complaint on the merits, entered on a verdict for defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Action by Augusta Jones, Jennie Jones, an infant, by Augusta Jones, her guardian ad litem, Alfred A. Jones, Frederick F. Jones, and Annie F. Jones against Ezekiel B. Hoyt, to recover possession of land. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

<p>Appeal from circuit court, Onondaga county.</p> <p>Action by Michael E. Tierney against the Syracuse, Binghamton & New York Railroad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $10,000, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.</p>

Claim by Addie S. Rutherford against Henry C. Soop, as executor of John M. Rutherford, deceased.

Action by Herman F. Inderlied and another against Nicholas Whaley. The complaint was dismissed, and plaintiffs appeal. Affirmed.

Action by Forest G. Weeks against Joseph Binns for breach of contract. From a judgment entered on a decision granting a non-suit, plaintiff appeals. Reversed.

Action by Thomas McPealc against the New York Central & Hudson River Railroad Company to recover damages for personal injuries. From a judgment entered on a decision granting a nom suit, and from an order denying a motion for new trial, plaintiff appeals. Reversed.

<p>Creditors’ Bill—Right on Plaintiff to Discontinue.</p> <p>A plaintiff who has filed a creditors’ bill in behalf of himself and others similarly situated who should come in and establish their rights cannot discontinue it after an interlocutory judgment has been entered declaring the rights and liabilities of various parties, and providing for the payment of costs, and directing the payment of certain moneys to the county treasurer, to be paid over under the final judgment to be rendered therein.</p>

<p>Appeal from special term.</p> <p>Action by the First National Bank of Carthage against Prosper L. Eaton and others. From an order sustaining a demurrer to the fifth count of the answer, with leave to answer over, defendants appeal. Dismissed.</p>

Action by Celia Salisbury and others, as administrators, against Edgar B. Strong and others. From an order granting a discontinuance, defendants appeal. Reversed.

Action by the Binghamton Savings Bank against May E. White and others to foreclose a mortgage. There was a judgment settling priorities, and defendants the Binghamton Trust Company and others appeal. Affirmed.

Action by John D. Babcock and J. Wilbur Gould against William J. Kuntzsch. From a judgment entered on a verdict in favor of plaintiffs for $472.84, and from an order denying a motion for new trial, defendant appeals. Affirmed. Plaintiffs entered into a contract with the defendant for the sale of billiard and pool tables and their appurtenances to the defendant.

Action by William D. Halsey against Ebenezer H. Hart to recover possession of personal property. From a judgment reversing the judgment of the justice’s court in favor of plaintiff, plaintiff appeals. Reversed.

Action by Susie Sheldon against Cornelia Mott and others. The complaint was dismissed, and plaintiff appealed. Afterwards an order was entered substituting Alonzo P. Strong as plaintiff’s attorney, in place of Frank H. Short, who appealed therefrom. Plaintiff now moves to dismiss the appeal from the order dismissing the complaint. Denied.

<p>Appeal from special term, Chemung county.</p> <p>Application by Jesse Bead for a writ of mandamus for the board of town auditors of the town of Smithville, county of Chenango. Prom an order denying the application, relator appeals. Affirmed.</p> <p>In December, 1870, the town of Smithville issued several town bonds in aid of a railroad. At the town meeting in 1887, a resolution was passed as follows: “Resolved, that the chairman, George W. Church, appoint a committee of three to look after the town bonds.” The resolution was carried, and the chairman appointed John P. Davis, Jesse Read, the relator, and Samuel Cline, as such committee. At the annual town meeting held in Smithville at the town hall on the 21st of February, 1888, it appears by the record thereof that: “The following proceedings were had, and resolutions were duly passed, to wit: The report of Jesse Read, committee on refunding town bonds, was duly made by Mr. Read, and, on motion made and carried, the said report was accepted and approved. Resolved, that Jesse Read be continued a committee to refund or purchase the bonds of the town of Smith-ville, issued December 24th, 1870, and that he be allowed for his services</p> <p>as such committee five per cent, on all bonds that may be or have been funded or purchased subsequently to February 14th, 1887.” On the 9th of November, 1893, to the board of town auditors of the town of Smithville, the relator presented his claim in writing, duly verified by him, “whereby he asked_ payment from the said town the aforesaid sum of $2,855 and four years’ interest thereon ($685.20), amounting to $3,540.20; that said account was received by said board, who thereafter acted on the same, and refused to allow deponent’s said claim, or any part thereof, and rejected the same.” It appears “the said board unanimously determined that the said claim of the said Jesse Read was invalid, and without merit as a claim against the said town, and duly audited the same, and unanimously rejected it, and made a minute of their rejection”; and, after stating several facts relating to the origin and history of the claim made by the relator, the auditors completed their statement in regard to said claim in tfie following language: “We do therefore certify, find, decide, and determine that the said annexed claim of the said Jesse Read is illegal and void, is not a legal charge against the town of Smithville, Chenango county, N. Y., and the same is hereby passed upon, disallowed, and rejected, and each and every part thereof.” Numerous affidavits were used at the special term relating to the claim and its rejection.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Mary J. Cross against A. Palmer Smith and others. There was a judgment in favor of plaintiff, and defendants appeal. Modified.</p>

Action by Lucy A. Smith, as administratrix, and another, against Moses H. Cross and Mary J. Cross. The complaint was dismissed, and plaintiffs appeal. Modified. In August, 1877, this action was commenced to foreclose a mortgage given collaterally to a bond executed by Moses H. Gross to one Samuel Wilson. The mortgage was given to secure the consideration stated therein, of $5,000, and. covered lands in Jefferson county.

<p>Master and Servant—Risks Assumed.</p> <p>Where appliances for closing the door of an elevator shaft in defendant’s building had become so out of repair that at times the door would not close, and a servant of defendant who was injured by walking into the shaft through the open door, there not being sufficient light for her to observe the absence of the elevator, testifies that she knew nothing about the appliances, and never saw the door open except when the elevator • was there, it is error to hold as a matter of law that the servant assumed the risk incident to such defects.</p>

<p>1. Negligence—Management of Horse in Street—Evidence.</p> <p>While defendant was going along the sidewalk of a village street leading a horse in the roadway, the horse swerved to the sidewalk, and kicked plaintiff, who was walking thereon.- Held., that it was proper to receive in evidence, bearing on defendant’s negligence, a village ordinance forbidding any one to lead a horse on a sidewalk in the village.</p> <p>2. Same—Instructions.</p> <p>Where the court was asked to charge in such case that “it was not of itself negligence for defendant to walk upon the sidewalk and lead his horse in the road at the side of the sidewalk, notwithstanding the horse occasionally and against his resistance stepped his foot upon the sidewalk,” it was not error to reply, “I leave it to the jury to say whether, under the circumstances of the case, it was negligence.”</p> <p>3. Damages—Evidence—Loss of Earnings.</p> <p>In an action for personal injuries, the value of plaintiff’s services in her business may .be considered in estimating the damages.</p>

Action by Peter V. P. Hewlett and Herbert Turrell against the Saratoga Carlsbad Spring Company and others to rescind a contract. The complaint was dismissed on the merits, and plaintiffs appéal. Affirmed.

Action by Newton E. Whiteside and others against the Noyac Cottage Association. From an order, in so far as it confirms the report of the referee in awarding defendant damages by reason of an injunction obtained by plaintiffs pendente lite, plaintiffs appeal. Reversed.

Action by Yellott D. Dechert, as receiver, etc., against Municipal Electric Light Company, to recover damages for negligence of defend- ant in placing electric wires in plaintiff’s buildings, whereby the buildings and their contents were destroyed by fire. From an interlocutory judgment entered on a decision overruling a demurrer to the sixth paragraph of the answer, and sustaining it as to the seventh, eighth, and ninth paragraphs, both parties appeal. Reversed in part.

Proceeding by the Manhattan Railway Company to acquire easements appurtenant to premises owned by August Klipstein, James Murphy, and Michael McCormack, situate on Pearl street between Wall street and Hanover Square, known as “Nos. 122, 129, 131, 133, and 135 Pearl Street.” The commissioners awarded to August Klipstein $9,250, and to James W. Murphy and Michael McCormack they awarded $62,500. The awards were confirmed.

Action by Lillie J. Earle against George H. Robinson, as trustee, and others, to restrain the foreclosure of a mortgage held by defendant Robinson on the Hotel Normandie. From an order denying a motion after supplemental answer to vacate injunction pendente lite, defendants appeal. Affirmed.

Action by William Z. Lamed and another against Daniel E. Donavan and others. From an order dismissing the complaint as to Daniel E. Donavan, and Patrick G-olding (29 N. Y. Supp. 825), plaintiffs appeal. Affirmed. This action was brought March 31, 1892, to cancel as a cloud on title a mortgage given to secure the payment of $1,130, executed January 11, 1886, by David B. Algie to Patrick Golding, and recorded February 10, 18SG.

<p>Action by Jennie Walsh against the National Broadway Bank. Defendant demurs to the complaint. Overruled.</p>

Action by Matilda Schoellkopf against Jacob Ohmeis. Plaintiff moves to amend the process and proceedings nunc pro tunc by substituting the name of Joseph M. Ohmeis for Jacob Ohmeis. Denied.

Action by Noyes F. Palmer against the city of Brooklyn to recover for services rendered by plaintiff as a surveyor. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed. The opinion at special term is as follows (CLEMENT, C. J.): “The plaintiff was employed as surveyor by the proper officers of the city, to make the necessary maps which were required in two proceedings for the opening of Railroad avenue and Barbey street.

Action by Matilda Wallace against Joseph W. Reinhart. From an order vacating an order for the examination of defendant as a witness before trial, plaintiff appeals. Reversed.

Action by Mary G. Krulder as administratrix of Cornelius Krulder, deceased, against William H. Woolverton, as president of the New York Transfer Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying the motion for new trial, defendant appeals. Affirmed.

Action by Charles Schreiber against the mayor, aldermen, and commonalty of the city of New York. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Action by James P. Witherow against John D. Slayback and others. From a judgment entered on the direction of the trial judge dismissing the complaint, plaintiff appeals. Affirmed.

Action by John Schliermann, by guardian, against the Hammond Typewriter Company. From a judgment entered on the direction of the trial judge dismissing the complaint plaintiff appeals. Affirmed.

Action by Susan Walther against the American District Telegraph Company for personal injuries. From a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Action by William J. Madden against the Equitable Life Assurance Society of the United States on a contract of employment. From an interlocutory judgment overruling defendant’s demurrer to the complaint, defendant appeals. Affirmed.

Action by Mary A. P. Draper against Nelson H. Salisbury for rent. From a judgment for plaintiff, rendered on a trial without a jury, defendant appeals. Affirmed.

Action by George Solomon, as assignee for the benefit of creditors of Henry Thoesen, against the Continental Insurance Company on a policy of fire insurance. From a judgment dismissing the complaint, plaintiff appeals. Reversed.

Action by Henry J. Fischer and Charles W. Fischer against William H. Hussey and others to foreclose a mechanic’s lien. From an order denying a motion by defendants Hussey to vacate and set aside an order canceling the lien, said defendants appeal. Reversed.

<p>Appeal from special term.</p> <p>Action by Herman Russ and others against Eliza Stratton and others. From a judgment entered in favor of plaintiffs, defendants appeal. Reversed.</p>

Action by John Zorn against Peter McFarland to recover money paid on a contract for the sale of real estate. From a judgment in favor of plaintiff (28 N. Y. Supp. 485), defendant appeals. Affirmed. Argued before SEDGWICK, C. J., and BEEKMAN, J.

Action by Anna Maria Franck against Christian A. Franck and others to set aside certain deeds. The complaint was dismissed, but not on the merits and without costs, and defendants, contending that the dismissal should have been “on the merits,” and “with costs,” appeal. Affirmed.

Action by Benedickt Fischer and others against James Hetherington and others for conversion. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, defendants appeal. ' Reversed.

Action by Mary E. Graham against Benjamin Andrews and others to recover possession of land. Defendants move to compel plaintiff’s attorney to produce evidence of his authority. Denied.

Action by Frank Wolff against Charles Hyass. Judgment was entered on a verdict in favor of plaintiff, and defendant appeals. Affirmed on condition.

Action by Clara H. Price against Stephen M. Ga Nun and George P. Parsons to recover damages for alleged negligence in the construction of a pair of eyeglasses. From a judgment entered on the verdict of a jury, and from an order denying defendants’ motion for a new trial, defendants appeal. Affirmed.

Action by Nisbet V. Davenport against George B. Hulme and the East Bay Land & Improvement Company to recover for services alleged to have been performed by plaintiff for defendants. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

Action by Cornelius George Crowley and Ellen Daly against Mary Murphy to recover the possession of land. There was a verdict in favor of plaintiffs, and defendant’s exceptions were ordered to be heard at general term in the first instance. Sustained.

Dower—Action against Husband’s Grantee—Land not Conveyed. The sufficiency of land remaining of the husband’s estate to satisfy all claim of dower is no answer to an action for dower out of the land of the husband’s alienee. (Syllabus by the Court.) Action by Louisa A. Richardson against William Harms for dower. Plaintiff demurs to a defense set up in the answer. Sustained.

<p>1. Mechanics’ Liens — Improvements Made by Lessee—Consent oe Lessor.</p> <p>Where the owner of premises, before the execution of a lease and independently thereof, but as an inducement to it, agreed that the lessee should make certain improvements, the cost to be deducted from the rent, the lessee becomes the principal contractor with the owner as to such improvements, and he is paid by the provision that the cost shall be deducted from the rent; and persons employed by the lessee to do the work acquire no lien as against the lessor.</p> <p>2. Same—Recitals in Lease.</p> <p>A recital in a lease that the premises were intended for a certain purpose, for which they were then unsuitable, and that all improvements made by the lessee should become the property of the lessor on the expiration of the lease, is not a consent by the lessor that the lessee should make improvements, where the lease further provided that none should be made without the written consent of the lessor.</p>

Action by Herman Goossen against Kate M. Goossen. Defendant moves to strike out a counterclaim set up in the reply against a counterclaim pleaded in the answer. Granted.

<p>Mortgages—Payment—Reissue.</p> <p>A mortgage which has been paid may nevertheless, on a valuable consideration, be kept alive for other purposes, where the rights of third persons have not intervened.</p>

Action by Adam P/Dienst and others against William H: Mc-Caffrey and others. Defendants’ attorney moves to vacate an order made in supplementary proceedings requiring payment to plaintiffs of the amount of a judgment recovered by defendants against a third person. Granted.

Application by James S. Carpenter, a freeholder, to alter a highway in the town of Marlborough, in the county of Ulster. Certain property holders move to vacate the award *of the commissioners appointed to assess the damages resulting from the alteration of the highway. Denied.

Proceeding to remove from office James F. Quigley, a police justice of the city of Brooklyn, on charges preferred by the mayor, for partiality towards strikers when arraigned for assaulting policemen and for stoning cars during the strike of the Knights of Labor against the Brooklyn trolley railroad companies. Judgment overruled.

<p>Appeal from special term.</p> <p>Action Tby the Holland Trust Company, as trustee, against the Consolidated Gas & Electric Light Company of Westchester county and others to foreclose a mortgage. From an order removing Clarence D. Turney as receiver of the property of defendant gas company, and appointing James H. Moran receiver thereof, defendants appeal. Affirmed.</p>

At chambers. Action by Isidor Lazarus against John McCarthy, United States marshal for the Second district of New York, and others. Defendant Daniels moves to vacate a levy on certain property. Denied.

<p>Action by the Union Insurance Company of Philadelphia and others against the Central Trust Company and others to recover costs and expenses incurred by defendant in preparing for an arbitration. Judgment for plaintiff.</p>

Action by Frances N. Henck against William Barnes, Jr., and others for rent. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendant Barnes appeals. Affirmed.

Action by Josephine Antoinette Gambreling against Ella Ward Graham and others for partition. An interlocutory judgment was entered fixing the respective interests of the parties, and directing a sale of the premises. From portions of said judgment, defendants Ella Ward Graham and Grace Graham Gambreling appeal-Affirmed.

<p>Wills—Attestation—Signing at End.</p> <p>After a will was drawn and had been read to testator, he caused the draftsman to add a clause directing the executors to sell a certain parcel of real estate, and use the proceeds to pay legacies, if necessary. He then signed the will at the end, as originally written, and also after the additional clause. The subscribing witnesses signed immediately under the attestation clause, and before the additional clause. Held, that the signatures of the witnesses were not at the end of the will, as required by the statute.</p>

<p>Innkeefers—Baggage op Guests—When Liability Ceases.</p> <p>An innkeeper’s liability for the baggage of his guest does not cease as soon as the guest pays his bill, and leaves the inn, but continues for such a reasonable time as may be necessary to remove the baggage.</p>

-Judicial settlement of the accounts of Charles Mayer and Louis Cohen, as administrators of Margaret Mayer, deceased. From the decree judicially settling their accounts, the administrators appeal. Dismissed.

Judicial settlement of the accounts of Charles Mayer and Louis Cohen, as administrators, etc., of Margaret Mayer, deceased. From an order refusing a rehearing of a claim preferred against the estate by one of the,administrators, and rejected, the administrators and the claimant individually appeal. Affirmed.

<p>Mortgages—Foreclosure—Effect of Decree.</p> <p>A devisee for life, who, as executrix, was authorized by the" will to mortgage for certain purposes the property devised, gave a mortgage thereon for a purpose not authorized by the will, which fact appeared in the judgment roll in an action brought to foreclose such mortgage. The infant children of testator, to whom was devised the remainder after the life estate, were made defendants in such action, and appeared by their guardian ad litem. The complaint alleged that such infant defendants had, or claimed to have, some interest in the mortgaged premises, which accrued subsequently to the lien of the mortgage, and was subordinate thereto, but did not allege that such infants acquired any interest as devisees under the will. Held, that the rights of such infants under the will were not cut off by a decree of foreclosure.</p>

Action by the Prospect Park & Coney Island Railroad Company against the Brooklyn, Bath & West-End Railroad Company and the Atlantic Avenue Railroad Company for an injunction.

Action by Mayer Kahn against Chester W. Chapin for specifier performance of a contract to convey real estate. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed. September 6, 1851, Abel Harker died, seised in fee of No. 291 West Twelfth street, subject to a mortgage to secure the payment of $3,500, executed by him and his wife October 6, 1847, and recorded October 7, 1847.

<p>Appeal from special term, Kings county.</p> <p>Action by Prospect Park & Coney Island Railroad Company against Atlantic Avenue Railroad Company and Brooklyn, Bath & West-End Railroad Company for an injunction.' From an order enjoining defendants from conveying passengers between Coney Island and Thirty-Sixth Street Depot for less than the rate prescribed in the contract under which the depot was built by the parties, defendants appeal. Affirmed.</p>

Action by the Empire Warehouse Company, Limited, against Peter Mallett, as surviving partner of the firm of Peter Mallett & Co. From an order denying a motion to vacate an attachment, defendant appeals. Reversed.

Action by Johannes H. Johannessen, master of the Norwegian steamship Rayalton Dixon, against John Munroe and others, partners doing business under the firm name of John Munroe & Co., to recover the sum of $2,919.60, the amount of a letter of credit issued by defendants in favor of plaintiff, together with certain protest fees. The complaint was dismissed, and plaintiff moves for a new trial, on exceptions ordered to be heard at general term in the first instance. Granted.

Judicial settlement of the accounts of Jane Oakes and another, as executors of the estate of William Hutchison, deceased. From a decree disallowing certain charges and expenses for counsel fees paid in actions brought against the estate, in which the executors were parties defendant, they appeal. Reversed.

Application by Patrick H. Gaffney for a writ of mandamus against Frank Squier, as commissioner of the department of parks in the city of Brooklyn, to reinstate relator as a laborer in said department on the ground that he was an honorably discharged Union soldier of the late Civil War. The application was denied, and relator appeals. Affirmed.

<p>Action by Ladenburg against the Commercial Bank of Newfoundland. Defendant moves to vacate an attachment. Denied on condition.</p>

<p>1. Evidence—Documents—Church Register.</p> <p>A church register is not admissible as evidence of the facts therein recited, as it is not a book required to be kept by law.</p> <p>2. Marriage—Action to Annul—Evidence.</p> <p>In an action to annul a marriage on the ground of a previous existing marriage, alleged to have been contracted seven years before, the requirement of Code Civ. Proc. § 1753, that “the declaration or confession of either party to the marriage is not alone sufficient as proof, but other sat-</p> <p>isfactoiy evidence of the facts must be produced,” is not satisfied by the production" of a church register purporting to contain an entry of the marriage in question, without producing the clergyman who solemnized it, or the alleged husband by the previous marriage, though he was accessible.</p>

. Action by Samuel Branaugh against Theodore B. Basselin. From an interlocutory judgment sustaining a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, plaintiff appeals. Reversed.

Action by Philip Wood against Orlando M. Harper and another to foreclose a mortgage. From an order denying a motion to compel plaintiff to make his complaint more definite and certain by separately stating and numbering the several causes of action therein set forth, defendants appeal. Affirmed.

<p>Appeal from special term, Kings county.</p> <p>Action by Jacob G-. Bahr against Benjamin Boley for trespass. From an order overruling a demurrer to the complaint as frivolous, defendant appeals. Modified.</p>

Action by Charles F. Britton against Angeline Bohde to recover $800 alleged to be due on a contract. The New York Building Loan Banking Company applied to be made a party defendant, on the ground that it was entitled to the money sued for. The motion was denied, and said company appeals. Affirmed.

Vernon. Proceeding to punish Gilbert Hall for contempt of court in interposing a false answer in an action in which he was defendant From an order imposing a fine of the amount of the judgment in the action, with costs and expenses amounting to $1,172.22, said Hall appeals. Affirmed.

Vernon. Action by Henry B. Jenldns and another against Gilbert Hall and others. From an order amending the complaint by inserting the allegation that “defendant Gilbert Hall is a resident of the city of Mt. Vernon, Westchester county, N. Y.,” defendants appeal. Affirmed.

Action by James W. McDermott against the Nassau Electric Railroad Company for an injunction. A motion for a preliminary injunction was denied, and plaintiff appeals. Affirmed.

Action by John P. Persch against J. Wesley Allison, impleaded, to rescind a contract. From an order requiring plaintiff to make his complaint more definite and certain, plaintiff appeals. Modified.

Proceeding to compel the executors of Bernard Travis, deceased, to pay interest on certain legacies. The application was granted (31 N. Y. Supp. 686), and the executors appeal. Affirmed.

Action by Oliver W. Cook against the New Amsterdam Real-Estate Association and the Albany National Blank to foreclose a mortgage. From an order denying a motion to vacate an order directing plaintiff’s examination before trial, plaintiff appeals. Reversed.

Action by Caroline Meyer against Mary Mallon and another to foreclose a mortgage. Prom an order denying a motion of defendant Mallon to set aside a judgment of foreclosure and sale, and to permit her to answer, she appeals. Affirmed.

<p>Appeal from Kings county court.</p> <p>Summary proceedings by Harry Cowdrey against Lawrence A. Turner. There was a judgment in favor of plaintiff, and defendant appeals. Reversed.</p>

<p>1. Condemnation Proceedings—Measure or Damages—Value or Property.</p> <p>In a proceeding to condemn real estate for use in connection with the water supply of New York City, the fitness of the property for such use is a proper element to be considered in estimating its market value.</p> <p>2, Same—Oath or Commissioners.</p> <p>The omission of the word “faithfully” from the oath of commissioners in the condemnation proceedings is material, and invalidates the proceeding, unless it is waived.</p> <p>8. Same—Jurisdiction—Residence or Commissioners.</p> <p>Objections to the places of residence of the commissioners are not jurisdictional, and may therefore be waived.</p>

Action by Katharina Weidner against George Weidner for divorce. From an order setting aside a decree for divorce and permitting defendant to come in and defend the action, plaintiff appeals. Modified.

Application by Hubert O. Thompson, commissioner of public works of the city of New York, to acquire certain water rights in the towns of Mt. Pleasant, North Castle, Greenburgh, and White Plains, in the county of Westchester, under Laws 1877, c. 445, and the several laws amendatory thereof. From an order affirming the awards made by the commissioners, various landowners appeal. Affirmed.

Appraisal under the transfer tax laws of the property of Charles H. Edwards, deceased. From an order imposing a tax, James A. Bidden appeals. Affirmed.

<p>Interpleader—Who may Maintain.</p> <p>An action of interpleader cannot be maintained by one of several claimants of a fund in the hands of a third person, but only by the person in whose hands is the money or property to which the adverse claims are asserted.</p>

Action by Sabina R. Struthers, as trustee, against William E. Smith, on a contract. From a judgment entered on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals. Affirmed.

Action by Elias C. Benedict and others against George T. Arnoux and others to foreclose a mortgage. From an order denying a motion to open a default, and permit defendants to come in and answer, defendants appeal. Reversed.

Action by Henry P. Talmadge and others, as trustees, etc., against George W. Seaman and others, for an accounting. There was a judgment in favor of plaintiffs (30 N. Y. Supp. 304), and defendants appeal. Reversed.

Action by George Ropes against William H. Arnold. A judgment in favor of plaintiff was affirmed on appeal (30 H. Y. Supp. 997), and defendant, Ropes, moves to amend the case on appeal. Denied.

Action by Elizabeth Nesbit against Halpern Albert for rent. Prom a judgment entered on a verdict directed by the court in favor of plaintiff for $2,159.85, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by Edward McNamara against the Brooklyn City Railroad Company for personal injuries. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>Appeal from judgment on report of referee.</p> <p>Action by-Manuel F. Barranco and Benjamin J. Guerra against Roger B. Towner. There was a judgment in favor of plaintiffs, and defendant appeals. Reversed.</p>

Action by Anna C. Erickson against the Brooklyn Heights Railway Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $23,000, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by Louisa Palmer against William A. Eobinson. There was a judgment in favor of plaintiff, and defendant moves for a new trial .on the minutes. Granted.

Certiorari by Adam A. Cross to review the action of James J. Martin and others, constituting the board of police commissioners of the city of New York, in dismissing relator from the police force. Reversed.

Certiorari by George Smith to review the decision of James J. Martin and others, constituting the board of police commissioners -of the city of New. York, dismissing relator from the police force. K6Y6rS6(i

<p>Appeal from special term, New York county.</p> <p>Action by the Pacific Mail Steamship Company against the Panama Railroad Company. From a judgment entered on a decision making permanent a temporary injunction, defendant appeals. Modified.</p>

Action by Ida M. Dow-Currier against David Henderson for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by the Atlantic Trust Company, as trustee, against the Haskin-Wood Vulcanizing Company, to foreclose a mortgage. From an order denying a motion by Andrea Fontana and another to be made parties defendant in said action, they appeal. Affirmed.

Action by Hector De Castro against the Compagnie Francaise du Telegraphe de Paris h New York. A verdict was directed by the court in favor of defendant, and plaintiffs' excéptions ordered to be beard at general term in the first instance. Overruled. In this action it Is sought to recover upon an agreement alleged to have been entered into between the parties, and which is embodied in the letters or correspondence between them.

Action by Theresa Boas against the mayor, aldermen, and commonalty of the city of New York to recover an assessment paid by plaintiff. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.

Action by James Hedges against William H. Payne and another to recover possession of personal property. Prom an order allowing a supersedeas and relieving defendant William H. Payne from imprisonment under an order of arrest and execution against Ms person, plaintiff appeals. Reversed.

Certiorari by Patrick T. Morris to review the action of James J. Martin and others, composing the board of police commissioners of ¿the city of New York, in adjudging the relator guilty of conduct unbecoming an officer, and dismissing him from the force. Dismissed.

Action by Thomas W. Reilly and John O’Connor against John R. Lee. From a judgment in favor of plaintiffs for $2,378.27, and dismissing defendant’s counterclaim, defendant appeals. Affirmed. For former report, see 16 N. Y. Supp. 313.

Action by Joseph C. Hand against Ferral C. Dinniny, Jr., on a promissory note. From a judgment entered on a verdict directed by the court in favor of plaintiff for $5,608.27, and from an order denying a motion for a new trial, defendant appeals. Reversed.

<p>Appeal from special term, New York county.</p> <p>Action by Franz G. Matthiessen against G. N. Bartlett and others. From an interlocutory judgment overruling a demurrer to the complaint, defendant Bartlett appeals. Affirmed.</p>

Action by John 0. Wilmerding and others, composing the firm of Wilmerding, Morris & Mitchell, against Sender Jarmulowsky, Philip Bernstein, and Louis M. Kommel, to set aside a deed from defendant Bernstein to defendant Jarmulowsky, and a general assignment from said Bernstein to defendant Kommel, on the ground that the deed and assignment were given with intent to defraud the creditors of said Bernstein.

Action by John L. McCullough against Harvey L. Pence to recover one-sixth interest in certain royalties. From an interlocutory judgment ordering an accounting, and from a final judgment on the referee’s report, defendant appeals. Reversed.

Action by Juliet M. Myers against the Commercial Travellers’ Mutual Accident Association of America on a certificate of membership. From a judgment dismissing the complaint, entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals. Reversed.

Certiorari by the Bleecker Street & Fulton Ferry Railroad Company against Edward P. Barker and others, commissioners of taxes and assessments of the city and county of New York, to review an assessment of relator’s personal property in the year 1891. The assessment was vacated, and defendants appeal. Affirmed. This is a certiorari to review an assessment for taxation on the personal property of the relator upon a valuation of $133,050.

<p>Summons—Service on Foreign Corporation—Managing Agent.</p> <p>An agent in New York of a Chicago newspaper company, whose business is the soliciting and obtaining of advertisements and making contracts therefor on a prescribed schedule of rates, and who is subject to no other direction than such as he receives from the Chicago office, is a “managing agent,” within Code Civ. Proc. § 432, subd. 3, providing that summons may be served on a-foreign corporation by delivering a copy to a managing agent of the corporation within the state.</p>

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

<p>Principal and Surety—Liability or Surety—Loss or Collateral Security.</p> <p>Where notes discounted by plaintiff bank were made by defendants for the accommodation of W. & B., the payees, who were also indebted to plaintiff’s president, the fact that the president, in effecting a settlement of the claims against W. & B., procured a prior lien for his individual claims on their property, does not render plaintiff chargeable with the amount of preferences obtained by the president as for property negligently lost, which might have been applied in satisfaction of the note on which defendants were liable as accommodation makers.</p>

Action by Wood Gibson against Samuel G. Blakley, individually and as administrator of James Blakley, deceased, impleaded with others. From an interlocutory judgment overruling a demurrer to the complaint, defendant Blakley appeals. Affirmed.

■ Appeal from circuit court, New York county. Action by Charles C. Mayer against Emanuel Frankfeld on a •contract. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

<p>Appeal from special term, New York county.</p> <p>Action by Alice B. Bullock against Thomas S. Bullock for divorce. From an order denying a motion for a bill of particulars, defendant appeals. Affirmed.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Jacob Ringle and George Ringle against the Wallis Iron Works and the Terminal Warehouse Company to foreclose a mechanic’s lien. There was a judgment in favor of plaintiffs, and defendant the Wallis Iron Works appeals. Affirmed.</p>

<p>1. Attorney and Client—Substituting Attorney—Extent of Right.</p> <p>A client has the right, without assigning any cause therefor, at any time to change his attorney, on paying or securing the attorney’s fees.</p> <p>2. Same—Compensation of Attorney—Set-Off.</p> <p>On an application for substitution of attorneys, an indebtedness to the client of the attorney sought to be removed will be set off against the fees to which the attorney is entitled.</p>

Action by Charles W. Packard against Alphonse J. Stephana to recover for services rendered by plaintiff’s assignor as a physician. A verdict was directed for defendant, and plaintiff moved for a new trial on exceptions ordered to be heard at general term in the first instance. Denied.

<p>1. Trusts—Appointment in Place op Deceased Trustee.</p> <p>Under 1 Rev. St. p. 730, § 68, providing that, on the death of the surviving trustee of an express trust, the trust shall vest in the court of chancery, and shall be executed by some person appointed for that purpose under the direction of the court, the court has no power to appoint a new trustee in place of one deceased, but the attempt by the court to exercise such power will be sustained as the appointment of a person to execute the trust under the direction of the court.</p> <p>3. Same—Commissions—Person Acting as Executor and Trustee.</p> <p>Where the same person is both executor and trustee, and has settled his accounts, and been discharged as executor, and left acting as trustee, he is entitled to commissions as trustee.</p> <p>3. Contracts—Consideration .</p> <p>An agreement by a cestui que trust to pay the trustee commissions on the income received and paid out by him, by which no duties are imposed on the trustee other than such as he is bound to perform by virtue of his office, is without consideration.</p>

<p>Street Railroads—Injuries to Passenger—Crowding by Fellow Passenger A street-car company is not liable to a passenger who is injured by being pushed by other passengers from the edge of the platform, where he was standing preparatory to alighting, when it appears that the pushing was not caused by the crowded condition of the car. Lehr v. Railroad Co. (N. Y. App.) 23 N. E. 889; Saltzman v. Railroad Co. (Sup.) 26 N. Y. Supp. 311, distinguished.</p>

Action by Berthold Levy and others against Walter Carr and others to recover possession of certain personal property. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, defendants appeal. Reversed.

Action by Martin L. Rickerson against the German-American Insurance Company of New York and another on an insurance policy. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant .above named appeals. Reversed.

<p>Appeal—Review—Weight op Evidence.</p> <p>A finding on conflicting evidence that defendant in an action for divorce was guilty of the cruelty alleged will not be disturbed on appeal. Van Brunt, P. J., dissenting, on the ground that the acts alleged were provoked by plaintiff, acting under advice of counsel.</p>

Application by Horace H. Chittenden, as assignee for the benefit of creditors of A. S. Hatch & Co., to compel Hugh J. Grant, as temporary receiver of the St Nicholas Bank of New York, to pay certain dividends, etc., to the petitioner. The application was denied, and petitioner appeals. Reversed.

<p>Contracts—Consideration—Compromise of Doubtful Claim.</p> <p>A note given by the treasurer of a corporation in consideration of discharge of disputed claim against the corporation is valid.</p>

<p>Appeal from circuit court, Hew York county.</p> <p>Action by M. Jacoby & Go., Limited, against George D. Payson, executor, and Alice D. Adams, executrix, of Elisha J. Dennison. From a judgment entered on a verdict in favor of defendants, and from an order denying a motion for a new trial, made on the minutes, plaintiff appeals. Keversed.</p> <p>This action was brought to recover damages for the alleged conversion of the following check:</p> <p>“No. 230. New York, Nov. 20th, 1890.</p> <p>“Bank of America: Pay to the order of M. Jacoby & Co. forty-six hundred and thirty-nine 27/100 dollars. The H. B. Claflin Company,</p> <p>“84,639.27. By D. N. Force.</p> <p>“[Indorsed:] M. Jacoby & Co., E. J. Dennison.</p> <p>“[Stamped on face:] 8. 21 Nov., 1890.</p> <p>“[Stamped on left-hand margin:] C. The Bank of America. Certified. Payable only through N. Y. clearing house.”</p> <p>The plaintiff is a foreign corporation, existing under the laws of the United Kingdom of Great Britain and Ireland, and having its chief place of business at Nottingham, England, and is engaged in the manufacture and sale of lace curtains. August 1, 1888, the plaintiff and H. L. Fesler & Co., of New York, entered into a contract by which the latter were appointed for three years the plaintiff’s sole agents In the United States and Canada for the sale of the goods manufactured by the corporation. The contract contains, among others, the following provisions: “Messrs. Jacoby & Co. will not pay any commission for goods sold by them to the following houses: * * * [Wight & Co. is not one of the excepted firms.] Excepting the above-named firms, a commission of five per cent, on the net amount of all sales made in sterling on our goods to be paid by Messrs. M. Jacoby & Co. to Messrs. H. L. Fesler & Co.</p> <p>* * * A monthly statement to be rendered by Messrs. M. Jacoby & Co. of all sales, and a fly-sheet copy of each invoice to be sent to Messrs. H. L. Fesler & Co.” By a subsequent contract, extending the one originally made, it was provided: “Messrs. Fesler & Co. to advance the freight, duty, and other incidental expenses, adding same to the sterling prices, which they will so calculate to return Messrs. M. Jacoby & Co., Limited, the net amount in sterling, sending a/c sales showing the transactions in detail. Remittances to be made by Messrs. Fesler & Co. in accordance with the terms stated by them in the original orders.” In November, 1890, Wight & Co., of the city of New York, were indebted to the plaintiff in a considerable sum, and in that month they became embarrassed and unable to pay their debts in full. November 8, 1890, H. L. Fesler & Co. cabled the plaintiff as follows:</p> <p>“Have private information. Wight & Co. failing very soon. Shall I act?</p> <p>“Fesler.”</p> <p>The plaintiff replied by cable:</p> <p>“Nottingham, Nov. 8, 1890.</p> <p>“Fesler & Co.: Act promptly, Wight & Co. Can you obtain goods?. Remittances required. Will write you full particulars. Will power of attorney be required? Reply immediately by code addition.”</p> <p>On the same day, Fesler replied by cable as follows:</p> <p>“Impossible to determine without knowing the amount. Power of attorney will not be required. Fesler.”</p> <p>The plaintiff replied:</p> <p>“Fesler, New York: 1,087 pounds. Have omitted the count, $5,768.82.”</p> <p>“Nov. 11, 1890. interest in the ac-</p> <p>Thereupon a suit to recover the amount was begun at the instigation of H. L. Fesler & Co.</p> <p>On the 11th of November, 1890, the plaintiff executed and delivered the following power of attorney to Fritz Reinhold, of Nottingham, England.</p> <p>“To All to Whom These Presents shall Come, We, John Henry Jacoby and Arthur Joynes Butler, Directors of M. Jacoby & Co., Limited, Nottingham, England, Lace Manufacturers and Merchants, Greeting: Whereas, we, the aforesaid John Henry Jacoby and Xrthur Joynes Butler, having reason to believe that several firms in New York, in the United States of America, are not in a position to meet their indebtedness to the firm of M. Jacoby & Co., Limited, desire to give a general power of attorney to Fritz Reinhold to act for them in such manner as he, in his discretion, may think the circumstances of each case may require, and to adjust any claims or differences in account that may arise with these New York firms: Now, these presents witness that the said John Henry Jacoby and Arthur Joynes Butler do hereby make, ordain, constitute, and appoint Fritz Reinhold, of Nottingham, in the United Kingdom of Great Britain and Ireland, their true and lawful attorney and agent for them, and in their name or otherwise, and on their behalf, to ask, demand, receive, and recover all and every sum or sums of money whatsoever that are or is now due and owing to the said company, of and on our behalf to investigate, adjust, settle, and to compromise all accounts, debts, claims, disputes, and matters which are, shall, or may subsist or arise, and also, if necessary, to commence and prosecute and defend all actions, suits, claims, demands, and proceedings touching the premises, and in any way connected therewith, and also to receive and give effectual receipts and discharges for all sums of money, claims, or demands by the said company, and to prove and receive dividends, and to give receipts for the proceeds arising from all, also to give effectual receipts in full discharge of all claims, and generally to do, perform, and execute all and every such act and acts, duty and duties, in and about the premises, as he, the said Fritz Reinhold, shall think proper, as fully and as effectually, to all intents and purposes whatsoever, as the said John Henry Jacoby and Arthur Joynes Butler might or could do if personally present, and also to substitute and appoint any person or persons to act under or in the place of the said Fritz Reinhold in all or any of</p> <p>the matters aforesaid, and every such substitution at pleasure to revoke; the said John Henry Jacoby and Arthur Joynes Butler hereby agreeing to ratify and confirm whatsoever the said Fritz Reinhold or his substitute or substitutes shall lawfully do, or cause to be done, in or about the premises by virtue of these presents. In witness whereof, the said John Henry Jacoby and Arthur Joynes Butler have hereunto set their hands and seals, and also affixed the common seal of the said company, the 11th day of November, in the year of our Lord 1890.</p> <p>“For M. Jacoby & Co., Ltd.,</p> <p>“John Henry Jacoby, Director.</p> <p>“For M. Jacoby & Co., Ltd.,</p> <p>“Arthur Joynes Butler, Director.</p> <p>“Signed, sealed, and delivered in the presence of;</p> <p>“Geo. Richards.</p> <p>“J. H. Warner.”</p> <p>On the 19th of November, 1890, Fritz Reinhold arrived In New York, bringing With him his power of attorney. On the next day he indorsed the following substitution on the power which he delivered to H. L. Fesler:</p> <p>“I herewith transfer this powa- of attorney to Mr. H. L. Fesler, of 464 Broome St, New York. Fritz Reinhold.</p> <p>“Nov. 20th, 1890.</p> <p>“[Seal of M. Jacoby & Co., Limited.]”</p> <p>On the 20th of November, Mr. Fesler called on Wight & Co., taking with him the power of attorney and the substitution, and on that day effected a settlement of the plaintiff’s claim against the firm, and received the above-mentioned check in payment, and at the same time receipted the bills. H. L. Fesler thereupon indorsed the check “M. Jacoby & Co.,” and delivered the same to Elisha J. Dennison, defendants’ testator, for the purpose of paying the indebtedness of Fesler to said testator of $1,050, and of receiving a check of Dennison’s for the balance, $3,589.27, payable to the order of H. L. Fesler & Co. The check given by Fesler to Dennison was paid the next day after it was given, and Dennison’s check to Fesler was duly paid on presentation.</p> <p>Upon the trial, requests for direction of verdicts were made; but the court submitted the question to the jury whether or not, in advancing this money, Mr. Dennison, the defendants’ testator, relied upon an apparent authority, and acted in good faith.</p>

Action by Margaret B. Edson, as executrix of Marmont B. Ed-son, against John E. Parsons, John A. Bartow, and Charles S. Fair-child, executors of Mary A. Edson, impleaded with others, to compel defendants to administer their testator’s estate in accordance with the contract contained in the mutual wills of the said Mary A. Edson and of Susan M. Eidson, the two sisters of plaintiff’s testator. The complaint was dismissed on the merits, with costs, and plaintiff appeals.

<p>1. Forgery—Attempt to Defraud.</p> <p>Where defendant drew a check, as he was authorized to do, in the name of his employer, payable to a creditor of the employer, and indorsed the payee’s name on the check, and appropriated the proceeds to his own use, a charge of forgery cannot be sustained by proof of an attempt to defraud the employer, as the intent to defraud him was in the drawing of the check, and defendant’s object in making the check payable to the creditor was merely to conceal the appropriation of his employer’s money to his own use. Follett, J., dissenting.</p> <p>2. Partnership—When Relation Exists—Intent.</p> <p>An agreement between one D. and defendant and others for carrying on a business owned by D. provided that the business should be conducted</p> <p>under the name of D. & Go., but that it and the property pertaining thereto should still belong to D.; that defendant and his associates should devote their whole time to the business; that for their services D. would pay them a sum equal to a certain per cent, of the net profits; that such method of payment was adopted to stimulate defendant and his associates in extending the business; that the association might be terminated at the will of any party thereto, and that it should be terminated by the death of a party; that neither defendant nor his associates should use the firm name in making, signing, drawing, or indorsing any note or other evidence of debt except for the purpose of depositing the same to the credit of the associates. Thereafter D. took but little part in the management, and it was conducted almost .entirely by defendant and his associates, they drawing checks, and doing all other necessary acts. Held sufficient to present a question for the jury as to whether the parties intended, as between themselves, to become partners. Per Van Brunt, P. J.</p>

<p>Elevated Bailroads—Damages to Abutters.</p> <p>A judgment against an elevated railroad company for injuries to abutting property cannot be sustained where plaintiff merely shows that he bought the property for a certain sum after the road was built, and states the rental value, which had not changed, but does not show what the property rented for before the building of the road, or that he was unable to rent portions of the building because of the road.</p>

Action by Howard Cooper against the Manhattan Railway Company and others for an injunction and damages. There was a judg- meat in favor of plaintiff, and defendants appeal. Affirmed on condition.

Action by Frederick Eder against Seth H. Gildersleeve and others to recover money which defendants, as sureties on an undertaking, had agreed to pay in a prior action between other parties. From a judgment entered on a verdict in favor of plaintiff, defendants appeal. Affirmed.

Action by Otis Corbett against the Spring Garden Insurance Company on a fire insurance policy. Prom a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed. This is an action upon a policy insuring the plaintiff against loss and damage by fire on his lease of a building.

Action by Thomas Holán against the Eockaway Park Improvement Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by Emiline Lee against Mary A. Timken. From an interlocutory judgment, and from an order directing an entry of said judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

<p>Appeal from special term, Rensselaer county.</p> <p>Claim by Warren B. Agan against Hiram File and Eliza M. Agan, as executors of Lyman B. Agan, deceased. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.</p>

<p>False Imprisonment—Conviction op Plaintiff.</p> <p>An action for false imprisonment cannot be maintained against a peace officer for arresting plaintiff without a warrant on the ground that he was intoxicated in a public place (Laws 1892, c. 401, § 35), where the minutes of the justice before whom plaintiff was brought show that he was adjudged guilty of the charge, though no formal record of conviction was made out, and it is not claimed that the conviction was procured by fraud or collusion.</p>

Action by Frank B Abbey, an infant, by Theodore L. Frothing-ham, his guardian ad litem, against Jerome B. Wheeler and others. From an interlocutory judgment overruling a demurrer to the complaint (30 N. Y. Supp. 874), defendant Wheeler appeals. Beversed. The complaint alleges, in substance: That in 1884 one Charles F. Abbey died, leaving a will wherein, after directing the payment of his debts, he provided: “Second.

Action by Albert Ritchie, as receiver, against the Seaboard National Bank. From so much of an order as denied plaintiff’s motion for a preference of the cause, plaintiff appeals. Affirmed.

Action by Hoses Zimmermann and others against Charles Bloch. From a judgment in favor of defendant, rendered by the justice without a jury, plaintiffs appeal. Dismissed.

Action by Joseph Lamb and another against Benjamin D. Traitel and others for the price of goods sold and delivered. From a judgment in favor of plaintiffs, rendered by the justice without a jury, for a part only of the amount sued for, plaintiffs appeal. Affirmed.

Action by Andrew Freedman, as receiver, etc., against Frank ■ Loomis. From a judgment in favor of defendant, rendered by a justice without a jury, plaintiff appeals. Reversed.

Action by Ralph Moss, individually and as surviving executor, against Jacob Cohen and others, on a bond given by defendants to indemnify plaintiff against loss which might result from the diversion of a trust fund. Plaintiff demurs to parts of the answers. Complaint dismissed.

Action by Charles S. Halsted against Sarah Halsted for divorce. Defendant moves to compel plaintiff to pay counsel fees to enable her to prosecute her appeal from the judgment against her.

Action by Bernard Cohen against Carrie Cohen for divorce. Defendant moves for an allowance for counsel fees to enable her to defend the action. Granted.

<p>1. Contract—Consideration.</p> <p>Forbearance by the banking department, at the request of a shareholder and depositor, to close an insolvent bank, is a good consideration for a promise by such shareholder and depositor to make good the capital of the bank.</p> <p>2. Same—Estoppel to Dent.</p> <p>In any event, defendant is estopped to contest the validity of such promise for want of consideration.</p> <p>8. Same—Who mat Sue.</p> <p>A note given to the bank in fulfillment of such promise is enforceable at the suit of the bank.</p> <p>4. Banks and Banking—Powers oe Banking Department.</p> <p>Such agreement by the banking department, not to close the bank, is-not ultra vires, or against public policy.</p> <p>5. Same—Agreement to Replace Lost Capital.</p> <p>An offer to a bank to replace its lost capital if it will continue business, upon acceptance, becomes a binding contract, and may be enforced by the bank.</p> <p>6. Same—Assets.</p> <p>A note payable on demand, given in pursuance of such cofitraet to replace the lost capital of the bank, is an asset of the bank, and is enforceable before exhaustion of other assets.</p> <p>(Syllabus by the Court)</p>

Action by Bobert Kenny in behalf of himself and others similarly situated against James J. Martin and others, police commissioners of the city of New York. Plaintiff moves for a new injunction. Denied.

<p>Payment—Giving Check.</p> <p>Where a debtor delivers to his creditor’s agent, who is duly authorized to receive it, a check payable to the creditor for the amount of his debt, and the check is subsequently paid by the bank on which it is drawn, the debtor’s liability to the creditor is thereby discharged, though the agent without authority indorsed the check, and applied the proceeds to his own use. Putnam, J., dissenting.</p>

Action by the New York Insulated Wire Company against the Westinghouse Electric & Manufacturing Company to recover money alleged to be due under a written contract. From an order denying a motion for the severance of the action and entry of judgment for the amount claimed to be admitted to be due by the answer, plaintiff appeals. Affirmed.

<p>Appeal from Eleventh district court.</p> <p>Action by Julius Falk and others against Leo Kareski and others for false representations. From a judgment in favor of plaintiffs,</p> <p>rendered by the justice without a jury, defendants appeal. Affirmed.</p>

Action by Nathan Sonenberg against Meyer Levy. From a judgment in favor of plaintiff, rendered on defendant’s default and after-inquest, defendant appeals. Reversed.

Action by Joshua Gregg and others against Jacob F. Wittemann and others to recover damages for the conversion of mortgaged chattels. From a judgment in favor of plaintiffs, rendered by the justice without a jury, defendants appeal. Reversed.

Replevin by John Stewart against Max Stern and others. From a judgment in favor of defendants, rendered by the justice without a jury, plaintiff appeals. Affirmed.

<p>Appeal from Fifth district court.</p> <p>Action by Bernard Henrich against Peter Murray. From a judgment in favor of defendant, rendered by the justice without a jury, plaintiff appeals. Affirmed.</p>

<p>Appeal from Second district court.</p> <p>Action by Jacob F. Wyckoff against Oscar H. La Grange. From a judgment rendered by the justice without a jury in favor of defendant, plaintiff appeals. Affirmed.</p>

<p>Motion by plaintiff (appellant) for reargument. Denied.</p>

<p>Action by Herman B. Bartels against Benediekt Fischer and others.</p>

<p>Action by Samuel L. Bailey against Ellen A. Crowell, as receiver.</p>

<p>Action by Birch and another against Loyd.</p>

Application of the Buffalo Mutual Gaslight Company for an order directing the board of supervisors of Erie county to correct the assessment roll of the Third ward in the city of Buffalo for 1893.

Action by the Central Park Baptist Church, on the petition of John R. Frazer, against C. Venton Patterson and others. Defendants (appellants) move in the alternative for a reargument, or for leave to appeal to the court of appeals. For decision on appeal, see 30 N. Y. Supp. 248.

<p>Action by Matilda Clark against the city of Newburgh.</p>

<p>Action by Adolphe Casóla against Francisco Vasquez, impleaded, etc. From an order denying a motion to vacate an attachment, defendant appeals. Affirmed.</p>

<p>Action by George W. Church and others against George W. Montgomery.</p>

<p>Action by Dawson against Harrison.</p>

<p>Action by Corbett, administratrix, against the Brooklyn, Bath & West End Railroad Company.</p>

<p>Action by John W. De Peyster against the Metropolitan Elevated Railway Company and others.</p>

<p>Action by Collins against Burroughs.</p>

<p>Motion to correct order entered on decision rendered on appeal from decree.</p>

<p>Appeal from special term, New York County. Application by Warren H. Dixon, as receiver of the A. C. Brady Lumber Company, to punish Arthur C.</p>

<p>Action by John W. Dibble against Jeremiah W. Dimmick.</p>

<p>Action by Mathew S. Frazier against James Stewart and another on an account.</p>

Proceeding by Henry Talmadge and Henry P. Talmadge to compel Chester M. Foster, an executor of the will of Harriet M. Foster, deceased, to pay a claim against the estate of said Harriet M. Foster, deceased.

<p>Action by William A. Harding, as administrator, etc., against Walter H. Field.</p>

<p>Action by Arnold Heerwagen and James W. Ketcham, as copartners, composing the firm of A. Heerwagen & Co., against Charles L. Ritzman.</p>

<p>Action by James Hynes, as receiver, etc., against Sarah Adler and David Adler and the New York Stock Company.</p>

<p>Ac-, tion by James E. March against John Gleason.</p>

<p>Action by Lena Kunzmann against the New York & Rockaway Beach Railway Company.</p>

<p>Action by Muldoon against Canavello.</p>

<p>Action by George W. Miller and others, executors, against William J. Larmer.</p>

<p>Action by Margaret O’Rourke against the John Hancock Mutual Life Insurance Company.</p>

<p>Motion by plaintiff (respondent) for reargument. Granted. For decision on appeal, see 28 N. Y. Supp. 728.</p>

Action by the New York & Eastern Telegraph & Telephone Company tor writ of mandamus to compel George W. Plympton and Frederick R. Lee, composing the board of commissioners of electrical subways of the city of Brooklyn,to grant to relator a permit to suspend electrical wires along and through Fulton street, in the city of Brooklyn, and to place electrical conductors in subways and other streets.

<p>Action by the people of the state of New York against the Life Union.</p>

<p>Action by Tyndale Palmer against the Chicago Herald Company.</p>

<p>Action by Anthony Solarz against the Manhattan Railway Company.</p>

<p>Action by Jacob Werlein against the Tower Blanufacturing & Novelty Company.</p>

Motion by defendant (appellant) in the alternative, for reargument of the appeal, or for leave to appeal to the court of appeals from the judgment of affirmance. 32 N. Y. Supp. 159.