Volume 33 — New York Appellate Division Reports

Appeal -by the plaintiff, Teresa M. Kingsley, from an order of the Supreme Court, made at the Erie Special Term and.entered-.in the-office of the clerk of thé county of Erie on the 10th day of February, 1898, denying the plaintiff’s- motion for an injunction during the pendency of the action.

Appeal by the plaintiff, John L. Wegenaar, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of' the county of Cattaraugus on the loth day of March,, 1897, upon the report of a referee. The plaintiff, Louis Wegenaar, died during the pendency of the action, but the other plaintiff, John L. Wegenaar, continued the suit as surviving partner, and no change was made in the title of the action.

Appeal by the plaintiffs, Jennie Schermerhorn and another, as administratrices, etc., of Minna Schermerhorn, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Herkimer on the 18th day of December, 1897, upon the dismissal of the complaint by direction of the court after a trial at the Herkimer Trial Term before the court and a jury, and also from an order bearing date the 15th day of December, 1897,…

Appeal by the defendant, The Western Assurance Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 21st day of October, 1897, upon the decision of the court rendered after a trial at the Erie Equity Term, and also from an order entered in said clerk’s office on the 14th day of October, 1897, denying the defendant’s motion for a new trial of the issues directed to be tried by a, jiiry and…

Appeal by the defendants, McKinnon Dash and Hardware Company, Limited, and others, from a judgment of the Supreme Court in favor of the- plaintiff, entered in the office of the clerk of the - county of Monroe on the 3d day of July, 1897, upon the verdict of a jury rendered after a trial at the Monroe' Trial Term, and also from an order entered in said clerk’s office on the' 3d day of July, 1897, denying the defendants’ motion for a new trial made upon the minutes.- The “…

Appeal by the plaintiff, Littleberry 0. Atkins, from a final judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 20th day of December, 1897, upon the decision of the court, rendered after a trial at the Onondaga Special Term, sustaining the demurrers interposed by the defendants to the third amended complaint, upon the ground that the same did not state facts sufficient to constitute a cause of action,…

Appeal by .the contestant, Laura A. Brooks, from a decree of the surrogate of the county of Genesee, bearing date the 13th day of December, .1897, and entered in said Surrogate’s Court, admitting to probate the last will and testament of said William Lampson, deceased, and deciding that certain bequests in the 7th and 8th clauses of said will to the corporation of Yale College are lawful and valid, and that they are in no way affected or impaired because; the said will was…

Appeal by the plaintiff,. Sarah J. McElwain, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Monroe on the 8th day of December; 1897, upon the decision of the court rendered after a trial at the Monroe Trial Term before the court without a jury.

Motion by the defendant, The United Refiners’ Export Oil Company, for a new trial made upon a case containing exceptions ordered to be heard at the Appellate Division in the first instance upon the verdict of a jury rendered by direction of the court after a trial at the Erie Trial Term.

Appeal by the plaintiff, Thomas Quinn, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Cayuga on the 30th day of June, 1897, upon the verdict of a jury rendered after a trial at the Cayuga Trial Term, with notice of an .intention to bring up for review, upon such appeal, an order entered in said clerk’s office on the 21st day of June, 1897, denying the plaintiff’s motion for a new trial.

Appeal by the defendant, Simon Marshall, from a judgment of the County Court of the county of Monroe in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe on the 14th day of September, 1897, upon the decision of the court, and also from the order directing the entry of said judgment. The action originated in a Justice’s Court in Monroe county.

Appeal, by the plaintiff, Howard 0. Wiggins, as .assignee óf William B. Cook, for the benefit of creditors, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 4tli day of April, 1898, . upon the-decision of the court rendered after a trial at the Oneida Special Term.

Appeal by the defendant, The Board of Education of the Union Free School District of the City of Little Falls, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the' 23d day of February, 1898, upon the decision of the court, rendered after a trial at the Oneida Special Term, overruling a demurrer to the complaint, based upon the- ground that the complaint did not state facts…

Appeal by the defendant,, Edward F. Gaynor, from a judgment of the County Court of Cayuga County in favor of the plaintiff, entered in the- office of the clerk of the county of Cayuga on the 11th day of February, 1898,i upon the'verdict of a jury convicting Mm of the crime of grand larceny in the second degree; also from an order denying the defendant’s motion for a new trial, made upon the minutes, and also from an order entered in said clerk’s office on the 9th day of…

Appeal by the plaintiff, Hiram Mount, from a judgment of the Supreme. Court in favor of the defendants, entered in the office of the clerk of the county of Jefferson on -the Jth day of May, 1898, upon the decision of the court,, rendered after .a trial at the Jefferson Special Term, dismissing the complaint upon - the merits.

Appeal by the plaintiff, Charles S. Kent, from an interlocutory • judgment of the Supreme Court in favor of the defendant Isaac S. West, as committee of the person and property of Asa K. West, entered in the office of the clerk of the county of Onondaga on the 28th day of December, 1897, upon the decision of the court rendered after a trial at the Onondaga Special Term sustaining the said defendant’s demurrer to the plaintiff’s complaint.

Appeal -by the defendant, Jesse W. Powers, Jr., from an order of the Supreme Court, made at the New York Special - Term and' entered in the office of the clerk of the county of New York on the 18th day of May, 1898, granting the plaintiff a counsel fee and alimony pending the action.

Appeal by the defendant, Eay Templeton Osborn, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York o'n the 8th day of June, 1898, denying her motion to vacate a warrant of attachment issued against her.

. Appeal by the plaintiff, Henry • H. Lyman, as State Commissioner of Excise of the State of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th. day of May, 1898, setting aside the plaintiff’s complaint and granting him .leave to serve an amended complaint. The complaint is ■ upon a bond given to secure a liquor tax certificate.

Appeal by the plaintiff, Henderson, Hull & Company, Limited,, from-an order of the Supreme Court, made at the New York Special Term' and entered in the office of the clerk of the county of New York on the 3d day of June, 1898, requiring the plaintiff, a foreign corporation, to give security for costs.

<p>Deposition — witness subpoenaed to appear before a commissioner appointed under a foreign commission—he cannot question the sufficiency of the proof upon which the subpoena toas issued—proof of the materiality of the witness— the commissioner’s employment of an attorney.</p> <p>A witness who is required, hy a subpcena.issued by a justice of the Supreme Court, to appear and testify before a commissioner appointed in an action brought in a foreign court under a commission issued therefrom, has no standing to question the sufficiency of the proof presented to the justice issuing the subpcena.</p> <p>The “proof by affidavit” of the materiality of such witness’ testimony required hy the statute is not that- strict legal evidence required on applications made for the granting of attachments, orders of arrest and similar remedies of a severe character, hut is rather the formal proof usually called for in mere matters of practice; thus, an affidavit stating, upon information and belief, that the testimony of the witnesses named in the commission is material to the" defendants and necessary for the proper defense of the action, is sufficient.</p> <p>Even if such an affidavit is insufficient, the applicant is entitled, upon a motion by such witness to vacate the subpcena, to submit further proof of the materiality of the latter’s testimony in the case.</p> <p>The fact that a commissioner, to whom such a commission has been issued, employs an attorney to procure from a justice of the Supreme Court the sub- . pcena requiring the attendance of the witness before such commissioner, does not establish prejudice or improper action on the commissioner’s part.</p>

<p>• Appeal by The City of New York, the successor of The- Mayor,. Aldermen and Commonalty of the City of New York, from an order of the Supreme Court,, made at the New York Special Term and entered in the office of the clerk of the county of New York on the. 12th day of April, 1898, granting an extra and additional allowance to the commissioners of estimate and assessment appointed in the proceeding.</p>

Appeal by the plaintiffs, Alfred H. Lorton and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 3d day of May, 1897, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint.

Appeal by the plaintiffs, William B. White and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the.clerk of the county of New York on the 21st day of January, 1898, upon the decision of the court, rendered after a. trial before the court, without a jury, at the New York Trial Term.

Appeal by the' plaintiff, Frederic B. Yandegrift, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 16th day of November, 1897, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiff, Charles D. Haines, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of-the county of New York on the 6th day óf June, 1898, as denies the motion of the plaintiff for a temporary injunction.

Appeal by Frances A. Wotherspoon and others, appearing specially in this proceeding for the purposes of the motion and of this appeal only, from an order of the Supreme Court, made at the Rew York Special Term and entered- in the office of the clerk of. the county of Rew York on the 23d day of May, 1898, granting leave to the petitioners, Elizabeth S. Van Beuren and others, to bring an action against the said Frances A. Wotherspoon and others.

Appeal by the defendant, Anthony F. Sieghardt, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of 'New York on the 11th day of January, 1898, upon the verdict of a jury for $675, rendered after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 14tli day of January, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Metropolitan Telephone and Telegraph Company, from an order of' the Supreme Court, mgde at the New Y.ork Special Term and entered in the office of the clerk of the •county of New York on the 11th of April, 1898, granting the plaintiff leave to serve a supplemental summons and complaint, joining the New York Telephone Company as a party defendant herein.

<p>Appeal by John H. Cahill, the secretary and a director of The Metropolitan Telephone and Telegraph Company, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 13th day of April, 1898, denying a motion made on his behalf for a stay of proceedings for the examination of the defendant and its officers until the action should be continued against the representative or successor in interest of the defendant, The Metropolitan Telephone and Telegraph Company.</p>

. Appeal by the plaintiff, John H. Newman, from a judgment of the Supreme Court in favor of the defendant, entered in the offic'e .of the clerk of the county of New York on the 31st day of January, 1898, upon the dismissal of the ■ complaint, by direction of the court after a.trial' at the New York Trial Term, and also from an order entered in said clerk’s office on the 31st day of January, 1898, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Grime — ex-convict having a “jimmy” in his possession — circumstances evincing an intent to employ it in the commission of a crime.</p> <p>An ex-convict, who, on the day of his discharge from the penitentiary, in which he had served a term of imprisonment for burglary in the third degree, is observed by a policeman looking at houses, and, after watching the policeman, gets into a truck, in which, when overtaken by the policeman, he attempts to conceal a “jimmy ” under a blanket, and, when detected in so doing, attempts to escape from the officer, may properly be found guilty by the jury of the crime of having had in his. possession a tool commonly used for the commission of burglary “under circumstances evincing an intent to use or employ” it “in the commission of a crime.”</p>

Appeal by the plaintiff, Thomas J. Bishop, as administrator, etc., of Ellen 0. Maxwell, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county'of New York on the 21st day of April, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiffs, John McLoughlin and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the. county of -New York on the 9th day of May, 1898, denying the motion of the plaintiffs for an order restraining the defendants from using the trade mark or trade name and label of the plaintiffs. •

Appeal by Robert Avery from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of February, 1898, directing him to pay to the attorney for the claimant certain moneys which he had collected for her.

Appeal by the defendant, The Ocean Steamship Company of Savannah, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of February, 1898, upon the verdict of a jury for $5,000, rendered after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 28th day of February, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Thomas W. Reilly and another, from an order of the Supreme Court,- made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of May, 1898, granting the motion of the defendant to modify and amend the judgment in the action by allowing the defendant his costs as taxed by the clerk and deducting the costs, as taxed, from the' amount of the plaintiffs’ recovery.

Appeal by the relator, James J. Flood, from an order of the iSupreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day ■of March, 1898, as amended by an order entered in said clerk’s office ■on the 3d day of May, 1898, denying the motion of the relator for a peremptory writ of mandamus commanding Asa Bird Gardiner, district attorney of New York county, to restore him to his position of subpoena server in…

Appeal by Robert. McCafferty, claimant 'and owner, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day. of February, 1897, as confirms, so far as it relates to his property proposed to be taken in the proceeding, the first partial and separate report of the commissioners of estimate and assessment as amended.

' Appeal by the defendant, Alexander J. Scott, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 8th day of November, 1897, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term.

<p>Appeal by the plaintiff, Joseph Monzi, an infant, by Luigi Larocca, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Yew York on the 12tli day of January, 1898, upon the dismissal of the complaint by direction of the court after a trial at the Yew York Trial Term.</p>

Appeal by the plaintiff, Julius Weiss, as administrator, etc., of Bertha Weiss, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 17th day of December, 1897, upon the dismissal of the complaint at the .close of the plaintiff’s case by direction of the court after a trial at the New York Trial Term, and also, from an order bearing date the 9th day of December, 1897, and entered in said…

Appeal, in each of the above-entitled actions, by the defendants, Lewis M. Hornthal, and Gus Lewy, as trustee of the firm of Weiss Bros., from judgments of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 29th day of June, 1897, upon the decision of the court rendered after a trial at the New York Special Term, holding the defendant Lewis M. Hornthal accountable for numerous sums of money, appointing a receiver…

<p>Motion by the defendant, Hugh McDougall, for a new trial made upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.</p>

Appeal-by the plaintiff, the Columbia Bank, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 30th day of November, 1897, upon the report of .a referee, as dismissed the compláint, upon the merits, .as against the defendant, Henry Berolzheimer.

Appeal by the defendant, the American Central Insurance Company, from an order of the Supreme Court, made at the New York Special Term bearing date the 24th day of November, 1897, and entered in the office of the clerk of the county of New York, granting the motion of the plaintiffs for a retaxation of the bill of costs of the defendant and taxing said costs at a smaller amount.

Appeal by the defendants,- The Star Company and The Morning Journal Association, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk, of the county of New York on the 24th day of March, 1898, denying the motion of the said defendants to vacate an order ' theretofore made requiring the defendant' William R. Hearst, as president of the defendant The Star Company, and Charles M. Palmer, as treasurer of the defendant The…

Appeal by the defendant, Jacob Itzkowitz,- from an order of thé Supreme Court, made at the New York Special- Term and entered in the office óf the clerk of the county of-.New York on the. 5th-day of July, 1898, awarding the plaintiff alimony and a counsel fee pending the trial of the action.

Appeal by the defendant, Henry V. Vultee, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of June, 1898, appointing a receiver, pendente lite, of-the property of the former firm of Alcott & Vultee.

Appeal by the defendant, Morris Wolf, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of July, 1898, denying the' defendant’s motion to vacate an order of arrest heretofore granted in the action.

Appeal by the defendants, Frank II. Morehouse, in Ms own right . and as. executor of the last will and testament of Hiram Morehouse,, deceased, and others, from an interlocutory judgment of the Supreme .

<p> Evidence—action for the conversion of a bicycle—a receipt stating the price paid for it is incompetent. </p> <p>Where, in an action to recover damages ior the conversion of a bicycle, no question is presented as to the plaintiff’s ownership of the wheel, nor as to the time when he paid for it, and the only issue submitted to the jury relates to its value, a receipt given to the plaintiff, dated April 3, 1896, for “the sum of @100, in full for one Relay Special, to be delivered about April 15th or 20th, 1896,” is not competent evidence in his behalf, being the unsworn declarations of a third party, and, therefore, hearsay ; and, it being calculated to seriously influence the jury in determining as to the value of the wheel, its reception affords sufficient ground for granting a new trial, although it was received by the court merely for the purpose of showing the date of the purchase of the wheel.</p>

Appeal by.the petitioners, William 'E. Jones and Frank Haley, from an order of the County Court of St. Lawrence county, entered in the office of the clerk of the county of St. Lawrence on the 25th day of May, 1897, denying their motion to open the accounting of Henry Betts, as assignee, etc., of Gilbert L. Fdote, and to make the petitioners, who are sureties on the bond of the said assignee, parties thereto.

Appeal by the defendant, Matilda McCréa, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the lltli day of January, 1898, upon the decision of the court rendered after a trial at the Clinton Special Term, adjudging that'the plaintiff is entitled to take and hold certain water rights; also from an order made at the Clinton Special Term and entered in said clerk’s office on the lltli day of- January,…

Appeal by the defendant, Winfield S. Stone, as sheriff of Broome county, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office, of the clerk of the county of Broome on the 24th day of May, 1895, upon the verdict of a jury, and also from an order made at the Madison Special Term and entered in the office of the clerk of the county of Broome on the 15tli day of February, 1898, denying the defendant’s motion for a iiew trial made upon a case…

• Appeal by the plaintiff, Henry H. Darling, from a judgment of the Supreme Court in favor - of the défendant, entered in. the office of the clerk of the county of. Rensselaer on the 26th day of June, .1896, upon the verdict of a jiiiy, and also from ap order entered in said clerk’s office on the 25th day of July, .1896; denying the plaintiff’s motion for a new trial made upon the minutes. .

<p>Town board of audit — a claim, rejected for informality may be again presented — its further rejection may be reviewed by a writ of certiorari, served within four months, but after the adjournment of the board — town auditors cannot try the official title of a claimant — the expense of conveying juvenile delinquents to a house of refuge is a town cha/rge.</p> <p>A presentation of a claim to a board of town auditors which, through inadvertence, is so informal or defective as to justify its disallowance for that reason, is not a bar to a subsequent re-presentation of the same claim in .proper form. The provision of section 2135 of the Code of Civil Procedure, to the effect that “ a writ of certiorari * * * must be granted and served within four calendar months after the determination to be reviewed becomes final,” is not solely a statute of limitations, but, by implication, grants the relator four months in which to procure a writ in a case where, although the determining body has finally adjourned after making a disposition of the matter in question, it or its successor, at its next authorized meeting, can obey any order made by the court. Herrick, J., dissented.</p> <p>Where a claim is presented to a board of town auditors for services alleged to have been rendered by the claimant as deputy sheriff, who makes out a prima facie case of his dejure title to that office, the board cannot go behind such proof, and, in a summary manner, determine, in effect, that he is not entitled to the office.</p> <p>The expense of conveying juvenile delinquents to a house of refuge, upon their, conviction and sentence by a justice of the peace of the town in which the offense has been committed, is a charge upon that town at the rates fixed by the''statute, or, if the board of supervisors has fixed different rates, then at such rates.</p>

<p> Grimes—a charge that an intoxicated person is presumed to have intended the probable consequences of a blow, resulting in death, is m'roneous. </p> <p>Where, on .the trial of a prisoner for killing a m'an by striking him with a club, the question presented is whether he is guilty of murder in the second degree, or of manslaughter in the first degree, a matter made dependent, by statute, upon his intent, it is improper for the court to charge the jury that “ A man is presumed to intend the natural, necessary and even the probable consequences of any act that he intently or designedly does; therefore, if you find that Martin (the prisoner) committed this act intentionally and designedly, he is pre- • sumed to intend to have accomplished and known the probable consequences of that act.”</p> <p>In.such a case the jury is at liberty to presume that the prisoner intended to accomplish the probable consequences of his act, but the law does not raise such a presumption.</p> <p>Where, moreover, the evidence renders it probable that the killing occurred during a drunken affray, when the prisoner was under the influence of liquor, and when, although he intended to strike the blow, he might not have been able to measure or appreciate its effect, as he would have been .had he been entirely sober, such a charge is objectionable under section 22 of the Penal Code, providing that ‘ ‘ Whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a particular species or degree of crime, the jury may take into consideration the fact that the accused was. intoxicated at the time, in determining the purpose, motive or intent with which he committed the act.”</p>

<p> jDelivery of a deed as collateral to a specific debt—right to use the rents of the property to pay the interest on other debts—right of subrogation to an incumbrance paid. </p> <p>The cashier of a bank'delivered to a debtor thereof, on receipt of a deed of certain property, the following paper: “ Received from Moritz Bauer (the debtor) deed dated Jany. 31, 1884, of property cor. 3d Ave. & 158th St., New York City, as collateral security for Five thousand dollars, on payment of above amount, Five thousand dollars, said deed to be returned and this receipt canceled and his note now included in his line of discounts will be canceled for said amount of Five thousand dollars.”</p> <p>By authority of the debtor, the rents of the property thus conveyed were paid by the tenant directly to the bank, which, after paying current charges on the property, applied the balance of the rents, with the knowledge and assent of the debtor, to the payment of interest upon various obligations of his to the bank.</p> <p>Meld, that the rents realized from the property remained the debtor’s throughout; that he was at liberty to pay with them any debts of his which he might select, and that his right to insist that they should be used to pay the specific §5,000 loan mentioned in the receipt had been lost through his acquiescence in the application made of the rents by the bank;</p> <p>That the bank having, in order to prevent the foreclosure of a mortgage upon the property thus conveyed to it, paid, at the debtors request, the amount due thereon, had a right to receive payment of this sum out of the moneys arising on a subsequent foreclosure sale of the property, under the rule that one who redeems a security is entitled to toe subrogated thereto, whether or not a special agreement is made to this effect;</p> <p>That this right of subrogation was not.affected By the fhet that the bank took the debtor’s note for the amount paid upon the mortgage,- of which a foreclosure was threatened.</p>

<p>Attachment — annulment of, by the entry of a judgment infa/oor of the defendant — the annulment is suspended where am, appeal is taken and a stay given.</p> <p>Under subdivision 12 of section 8343 of the Code of Civil Procedure, the annulment of an attachment, effected by the entry of final judgment in favor of the defendant, is suspended where an appeal has been taken and an undertaking staying proceedings upon the judgment, pending such appeal, has been duly given.</p> <p>So long as the appeal is pending with a stay, the annulment of the attachment is suspended; and, if the judgment be reversed, the attachment is reinstated.</p>

Appeal by the defendant, George W. Hauscheld, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8tli day of July, 1898, denying his motion to vacate an order, made after the entry of judgment in the action, granting the plaintiff alimony. ■ .

Appeal by the claimant, the Hams-Seller Banking Company, from an order of the Supreme Court, made at the New York Special Term, bearing date the 12th day of May, 1898, and entered in the office of the clerk of the county of New York, confirming the report of a referee appointed to hear and determine the validity of such claimant’s claim, which report disallowed a portion of said claim.

<p>Inheritance tax — a bequest to a bishop or his lining successor is exempt — the non-residence of the bishop is immaterial — a perpetual ecclesiastical corporation not recognized,.</p> <p>A bequest “ to Bishop William Taylor, or his living successor, to be used in his African mission work,” is, in the event of William Taylor’s death, a gift to “his living successor” personally, and not to a corporation sole in its ecclesiastical and official capacity, and is exempted from taxation under the Taxable Transfer Act of 1892 (Ohap. 899), by that provision of such act which exempts from the tax “any property heretofore or hereafter devised or bequeathed to any person who is a bishop, or to any religious corporation.”</p> <p>The fact that the “ living successor” is a resident of New Jersey and not a resident of New York, and, consequently, is not a domestic bishop, does not change the rule.</p> <p>The State of New York does not recognize the existence of any ecclesiastical office, the result of which is to give to the holders of it the right of perpetual succession, or any other rights similar to those which are enjoyed by corporations.</p>

Appeal by the plaintiffs, Justus Heilbronn and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk .of the county of Hew York on the 8th day of January, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of January, 1898, denying the plaintiffs’ motion for a new trial made upon the minutes.

Appeal by the defendant, ¡Robert A. Van Wyck, as mayor of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk, of the county of New York on the 5th day of May, 1898, directing that a peremptory mandamus issue to the above-named defendant, directing him to assign the relator to serve as a member of the board of assessors of the corporation of the city of New York.

Appeal by the defendant, the Eighth Avenue Railroad Company, from a .¡judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the Ith day of December, 1891, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 6th day of December, 1891, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant in eacli of the above-entitled actions, John A. Garver, from the following portions of an order made at the New York Special Term, bearing date the 22d day of March, , 1898, and entered in the office 'of the clerk of the county of New York, modifying the report of a referee : “ I. From that part of paragraph II of the said order which directs Edmund Stephenson to pay over to Edward J. H. Tamsen, Esq., late sheriff of the city and county of New York,…

Appeal by the defendant, Perrin H. Sumner, from a judgment of the Court of General Sessions of the Peace of the city and county of New York in favor of- the plaintiff, rendered on the 3d day of June, 1897, convicting the defendant of the crime of grand larceny in the first degree, and also from an order denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the ,18th day of March, 1898, upon the •verdict of a jury rendered by direction of the court.

Appeal by the defendant, the Magnolia Metal Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9 th day .of March, 1898, upon the report of a referee.

Appeal by Edward B. Whitney, one of the commissioners of estimate and assessment in the above-entitled proceeding, from so much of an order, made at the Hew York Special Term and entered in the office of the clerk of the comity of Hew York on the 25th. day of May, 1898, as taxes his fees as commissioner of estimate and assessment herein at the rate of six dollars per day for services rendered after January 1, 1898, and refuses to tax such fees at - the rate of ten dollars…

Appeal by the defendant, Julius-Lewin, from an order of the Supreme Court, made at.the Hew York Special Term and entered in the office of the clerk of the county of' Hew York on the - 18th day of July, 1898, granting leave to the plaintiff to serve an amended complaint. ■

<p>Appeal by the plaintiff, William T. Gilbert, as receiver of the Commercial Alliance Life Insurance Company, from an interlocutory judgment of the Supreme Court in favor of thé defendant, Benjamin G. Ackerman, entered in the office of the clerk of the county of New York on the 8th day of July, 1898, upon the decision of the court rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to the fourth defense contained in the said defendant’s answer.</p>

<p> Appeal from a judgment where no exceptions were taken—when an exception must he taken—new trial on the ground of surprise—failure to state the fact of the surprise upon the trial. </p> <p>An appeal from a judgment brings up for review only the record and the exceptions taken upon the trial; and where the record is unimpeached and no exceptions were taken upon the trial of the action, the judgment must necessarily be affirmed; f</p> <p>An exception to. a ruling cannot be taken after the jury has been, discharged.</p> <p>In an action brought to recover damages sustained by the plaintiff from being run over by a horse and wagon in consequence of the negligence of the defendants’ driver, the defendants, in their answer, admitted that they were the owners of a certain horse and wagon which they used in their business, but denied the allegations of the complaint with regard to the accident, the negligence of their driver’ and the plaintiff’s injury, and alleged contributory neg- ' ligence on his part.</p> <p>On the trial of the action the defendants gave testimony tending to show that the driver of the wagon which ran over the plaintiff was not in their employment at the time of the accident, but was then doing business upon his own’ account under an arrangement with the defendants, whereby they sold certain merchandise to him, and furnished him with the horse and wagon, by which the plaintiff was injured, for use in his independent business of selling such merchandise upon his own account to his own customers. The plaintiff’s counsel stating that he had no further evidence on the subject, the court directed a verdict for the defendants. . ;</p> <p>On affidavits contradicting defendant’s witnesses as to the driver’s relation to the defendants, a motion was made for a new trial on the ground of surprise and newly-discovered evidence,, the motion being based also upon the exceptions and the ground that the verdict was contrary to the evidence and contrary to law.</p> <p>Held, that a new trial’could not be granted upon the exceptions, for no valid ones were taken; or because the verdict was contrary to evidence or contrary to law, because the evidence supported it; or because of newly-discovered evidence, since the evidence adduced merely impeached the defendants’ witnesses, and was accessible at the time of the trial.</p> <p>Also held, that while the testimony thus given by the defendants might have been admissible under the pleadings; it was not testimony that a practitioner of ordinary prudence would have anticipated, and that the plaintiff’s counsel ' might properly have applied for an adjournment or for leave to withdraw a juror, but having failed to do so, or to make any suggestion that he had been surprised, or to take any exception to the direction of a verdict in favor of the defendants, he was not entitled to a new trial on the ground of surprise,</p>

<p>Testamentary trustee — action by certain of the cestuis que trustent to compel an accounting — costs —contribution should not be enforced from other cestuis que trustent who are not pasties thereto — duty as to asserting title in a street — whenai renewal of a lease by a trustee to the detriment of the income of the life tenants is justified-.— omission of a trustee to advertise and employ real estate agents for ruinous buildings.</p> <p>Where; in an action brought by certain of several cesim’s que trustent to compel an accounting by the defendant, as trustee under a will, which action proceeded wholly in the plaintiffs’ interest, the other cestuis que trustent, who did not choose to become parties to the action, and did not participate in the benefits thereof, cannot be forced to contribute to the expenses of the action; and where it appears, upon appeal, that the plaintiffs have succeeded in surcharging the defendant’s accounts to the extent of nearly a thousand dollars, an award of costs to him will be stricken out.</p> <p>A trustee should not be held liable for not asserting title to land in an unestablished street bordering upon property to .which he holds the title, or for compromising a dispute in reference thereto, with a party claiming to occupy it in hostility to the rights of the trust estate, instead of continuing the prosecution of an ejectment suit for its recovery, where such street has never had a moment' of'actual'existence, and where, had the land been recovered, it is questionable whether it could have been made a source of revenue, inasmuch as it was set apart for street uses, and could not, therefore, be lawfully utilized in any manner that would diminish the quantum, of light- and air which it would furnish if retained as a street, and where the trustee has been advised by competent 'counsel not to press such action" of ejectment-to trial.</p> <p>A trustee will not be personally charged with damages on the ground that he has wastefully and improvidently granted a renewal of a lease, the obligation to renew which could have been avoided by the payment to the lessee of the value of improvements made upon the land, on the theory that the trustee could have bought the improvements at" a low figure and then haveléased the property at rents that would have-added largely to the income of the estate, where it appears that the trustee had no money of the estate with which to purchase such ' improvements, and had, at the time (prior to the passage of chapter 275 of the Laws of 1882), no authority to mortgage the fee or even the trust estate for the purpose of buying the improvements.</p> <p>Semble, that, even if the trustee had had power to raise money upon mortgage for ■ sucha purpose, it is questionable whether he would have been justified in doing so, and thereby increasing the income of the holders of life interests at the expense of those who were to succeed to the fee of the trust estate.</p> <p>A trustee will not be held negligent to a degree that will fasten upon him liability "for a loss, at best speculative, by reason of his not having secured a larger rent, in' consequence 'of his omission to advertise and employ real estate agents for old buildings in a dilapidated, worn-out and irreparable condition, and occupied by a-very low order -of tenants, which buildings, although the rent was proportioned to their ruinous condition, were never vacant, it being improbable, in the lethargic condition of the market, that a tenant, able and willing to pay a larger rent and" improve the property could have been found, and where the'power to lease for a term of years was doubtful.</p>

Appeal by the assignee, Adolph Ludeke, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of July, 1898, confirming the report of a referee appointed to take- and state the accounts of the assignee herein; also from so much ot an intermediate order bearing date the 12th day of April 1898, and entered in said clerk’s office, as sustains the objection .to the payment by the…

<p>Oontmct providing ‘‘payments to be made on monthly estimates” — proof that monthly estímales were made is essential to a recovery tlmeon — evidence of a custom in conflict with the contract is inadmissible —parol evidence not admissible to vary añ unambiguous mitten contract. .</p> <p>A proposition to prepare plans and specifications for certain buildings, to formulate the contracts for their construction and tó supervise the work for the sum of three per cent on the total .cost of the work, was accepted in the following form: “Payments to be made on monthly estimates. Accepted, conditioned upon this agreement terminating in twenty-four months from June 1, 1896,” which acceptance was “agreed to” by the party making the proposition.</p> <p>Held, that the agreement clearly contemplated payments each month of three per cent upon the estimated cost of each month’s work, and that, in an action brought to enforce payment for services rendered, the plaintiff could not recover in the absence of evidence of any monthly estimates having been made or of any fact entitling him to payment upon this construction of the contract;</p> <p>That evidence of a custom entitling architects, under contracts of this general ■ nature, upon the completion of the plans and specifications, to two per cent of the total estimated cost of the work, being in direct conflict with the written agreement of the parties, was incompetent.</p> <p>4■Semble, that as the contract was unambiguous, testimony in regard to conversations preceding and acccompánying the execution of the contract, tending to show a contemporaneous parol agreement as to the time of payment analogous to that covered by the- custom, was inadmissible.</p>

Appeal by the plaintiff, The. American Copper Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of June, 1898, granting leave to three of the defendants to serve a supplemental answer.

Appeal by the plaintiff, the Standard American Publishing Com-, pany, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the'clerk of the county of New York on the Jtll day of July, 1898, dissolving a preliminary injunction' heretofore obtained- by the plaintiff and denying the plaintiff’s motion to continue said preliminary injunction, and also from an order made at the New York Special Term-and entered in said clerk’s office…

Appeal by the. plaintiff, James W. Kane, as administrator, etc., of Julia Kane, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 8th day of - -March, 1898, upon the dismissal of his complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendants, Theodor Gr. Lurman and Benjamin D. Williams, composing the firm of Theodor Gr. Lurman & Co.,, from a judgment of the Supreme Court in favor of the plaintiffs,, entered in the office of the clerk of the county of New York on the 25th day of March, 1898, upon the verdict of a jury, and also-from an order entered in said clerk’s office on the 29th day of March, 1898, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, Julius A. Kugelman and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the'office of the clerk of.the county of New York on the-. 17th day of May, 1898, upon the verdict of a jury, and also from an.' order entered in said clerk’s office on the 21st day of May, 1898, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the déféndants, Louise Faul Virolet and others, from an interlocutory judgment of the Supreme .Court in favor of the plaintiff and certain of the defendants, entered in the. office of the clerk of the county of Eew Vork on the 28th day of February, 1898, upon the report of a referee.

<p>Appeal by the defendant, Georgeanna Kropf, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 6th day of July, 1898, overruling as frivolous the demurrer interposed by said defendant to the plaintiff’s reply.</p>

Appeal by the defendant, The Western Assurance Company of Toronto, Canada, from a judgment of the Supreme Court in favor of the- plaintiff, entered in the office of the clerk of the county of New York on the 24th day of February, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of March, 1898, denying the defendant’s motion for a new trial made upon the minutes and upon exceptions taken at the trial.

Appeal by the defendant, Elizabeth Brenneman, from an interlocutory judgment in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of April, 1898, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to the first and second separate defenses set up in the said defendant’s amended answer.

Appeal by the plaintiffs, Cornelius George Crowley and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in. the office of the clerk of the county of Hew York on the Btli day of June, 1898, denying the plaintiffs’ motion that Margaret Wilkinson, individually. and as administratrix of Mary Murphy, deceased, be substituted as defendant, and that this cause be revived and continued against her as aforesaid in the place and stead of Mary…

• Appeal by the plaintiff, Matilda Schneider, from a judgment of the Supremé Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 23d day of May, 1898, upon the decision -of the court, stating separately the facts found and the conclusions of law,, rendered after á trial • at the MohroS Special Term. The facts are stated in the dissenting opinion of Follett, J.

Appeal by the plaintiff, Minnie M. Allen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk'of the county of Allegany on the 7th day of October, 1897, on the verdict of. a jury, and also from an order entered in said clerk’s office on the 23d day of June, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by Sidney Ossoski, the defendant in the above-entitled proceeding, from an order made by the county judge of Steuben county, and entered in the office of the clerk of the county of Steuben on the 2d day of June, 1898, 'directing the said defendant to deliver to the petitioner the books and papers belonging to the city clerk’s office of the city of Hornellsville, and also that said defendant be imprisoned in the county jail of Steuben county until he make such delivery.

<p>Base ball playing on Sunday — duty of police commissioners to arrest the players-although no warrant is issued.</p> <p>Under the provisions of section 265 of the Penal Code, prohibiting, among other things, “ public sports” upon the first day of the week, and of section 177 of" the Code of Criminal Procedure, authorizing a police officer, without a- warrant, to arrest a person for a crime committed or attempted in his presence, it. is the duty of police commissioners, whose attention is called to the matter, to suppress the playing of base ball games on Sundays, and to arrest the parties engaging in such sport and to have them taken before a proper magistrate to be dealt with as the law provides, the same as in other cases of arrest for crimes committed in the presence of an officer.</p> <p>A failure on the part of the police commissioners to so act is not excused by the fact that, in their opinion, an arrest should not be made unless a warrant was issued.</p> <p>In the present case, the referee having found that the commissioners, in respect to the matters charged against them, acted in good faith, and without any intention of violating the law, the court considered that it would not remove them at present, but would permit them to continue in office, with a plain admonition, however, as to their duties in the future.</p>

<p>City of Auburn — charge by the sealer of weights and measures for unsolicited■ services— an ordinance allowing such charge is not authorized by its charter—power of the Legislature in this respect — delegation of such power to municipalities.</p> <p>In view of the past policy of the State of New York, as manifested by the uniform course of legislation, that sealers of weights and measures shall ' riot charge fees for unsolicited services, subdivision 86 of section 83 of the .charter of the city of Auburn (Chap. 53 of the Laws of 1879, and the acts amendatory thereof and supplemental thereto), authorizing the cormnon council of that city “ to define the dirties of the sealer of weights and measures and to regulate his compensation,” will not he construed as conferring power upon that body to pass an ordinance by which “the sealer of weights and ' measures shall be entitled to demand and receive from the person or persons for whom services are performed ” certain specified fees.</p> <p>It seems, that the Legislature, in the absence of constitutional restrictions, may authorize a recovery of fees for unsolicited services, which are necessary for the public welfare, from the person for whom they are rendered. It may delegate such legislative power to municipalities, whose ordinances, passed in compliance therewith, have the force of statutes, provided they he reasonable and not oppressive to trade or commerce. For services rendered in the compulsory inspection of weights and measures, the Legislature may create 'an indebtedness on the. part of the person for whom they are rendered.</p>

<p>Appeal by James Seymour from a decree of the Surrogate’s Court of the county of Cayuga, entered in said Surrogate’s Court on the 13th day of May, 1897, denying the appellant’s motion to surcharge the account and inventory of the respondents with the value .of a horse known as “ Ontario Chief.”</p>

■ Appeal by the heirs and next of kin- of Nathan F. Graves, deceased, by the administrator of Catherine IT.

<p>Appeal by the defendant, Eugene Warfield, from an order of the Supreme Court, made at the Ontario Trial Term and entered in the office of the clerk of the county of Ontario on the 9th day of December, 1897, granting the plaintiff’s motion to set aside a verdict in favor of the defendant, and for a new trial made upon the minutes.</p> <p>This action was tried at the Ontario Trial Term in May, 1897, and resulted in a verdict for the defendant.</p>

Appeal by the defendants, Edward M. Burns and another, from a judgment of the Supreme Court in favor of the plaintiff5 entered in the office of the cleric of the county of Herkimer on the 28th day of December, 1897, upon the decision of the court rendered after a trial at the Herkimer Trial Term before the court without a jury.

Appeal by the applicant, John Schultes, from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 15th day of September, 1898, and entered in the office of the cleric of the county of Richmond, denying his application for a peremptory writ of mandamus, commanding the clerk of the county of Richmond to publish, as part of the notice required by the Election Law to be given of the offices to be filled at the ensuing general election, the title…

<p>SiU of particulars — a party will not be compelled thereby to furnish specific evidence nor particulars of a fact not necessary to be proved.</p> <p>In an action brought to recover for services alleged to have been rendered by the plaintiff to her sister, in continuing to live with her pending certain litigation in reference to her husband’s will and property, under a promise by the defendant to pay the plaintiff §7,000 for remaining with her, superintending the household duties and aiding her in preparing the evidence and getting ready for the trial of such litigation, and counseling and advising her in regard thereto during such period, in which the answer alleged that the plaintiff lived with the defendant, but only as her guest, for some time, and not during- the entire time that the litigation was pending, the plaintiff was ordered to serve'a bill of particulars, stating, first, the time and place of the alleged services; second, when and where the request for such services was made; third, what litigation was pending, the continuance of which was to determine the term of the plaintiff’s residence with the defendant; fourth, the manner and respects in which the defendant requested the plaintiff to superintend the defendant’s household duties; fifth, the manner in which the plaintiff kept house for the defendant; -sixth, when, where ánd what demand of payment was made; seventh, the manner and particulars in which the plaintiff .advised the defendant in preparing for the trial -over the husband’s will; eighth, what evidence the plaintiff prepared; and, ninth, what was the subject of the plaintiff’s counsel and advice.</p> <p>Held, that so much of the order as was referred to in the 4th, 5th and 8th divisions was objectionable, as being within the rule as to furnishing specific evidence, and that as to the 6th division, relative to a demand for payment, since no proof of that fact was necessary, there was no necessity for a bill of particulars in respect thereto.</p>

Appeal by the defendant, The City of Brooklyn, from a judgment of the Supreme Court in favor of the. plaintiff, entered in the office of the clerk of the county of Kings on the 14th day of March, 1898, upon the verdict of a.jury for $3,500, and also from an order bearing date the 9th day of March, 1898, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Joseph H. Hoey/from an order óf the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12tli day of July, 1898, granting the defendant’s motion for a further bill of particulars.

Appeal by the petitioner, Peter E. Henderson, as executor, etc., of Stephen L. Henderson, deceased, from an order of the Sufrogate’s Court of Kings county, entered in said Surrogate’s Court on the '28th day of April, 1898, denying his petition to open a decree made on an intermediate accounting by him.

Appeal by the defendants, Loftns D. Hatton and others, from an order of the Supreme Court, made at the Kings County' Special Term and entered in the office of the clerk of the county of Kings on the 31st day of May, 1898, granting the plaintiff leave to serve an amended and supplemental complaint. This action was begun on the 26th day of December, 1896.

Appeal by the plaintiff, Frederick Klinker, and by G. Washbourne Smith, the.plain tiff’s attorney, from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 20th day of June, 1898, and entered in the office of the clerk of the county of Queens, restraining the plaintiff and his attorney from drawing from the National Park Bank a sum of money representing the amount of the judgment obtained by the plaintiff against the defendant, and also…

Appeal by the defendant, George D. Ferguson,'as. sole surviving partner of the firm of George I). Ferguson & Company, from .so much of a judgment of the Supreme Court in favor of the plaintiff, -entered in the office’of the clerk of the county of Kings on the 2.6th day of February, 1898, upon the verdict of a jury rendered by direction of the court, as awards judgment against him as sole surviving partner.

<p>Appeal by the defendants, Edward F. Leber and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 22,d' day of September, 1898,. denying the defendants’ motion, ■ to require the plaintiff to furnish a bill of particulars.</p>

<p>Appeal by the defendant, The Atlantic Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of November, 1897, upon the verdict of á jury for $3,500, and also from an order entered in said clerk’s office on the 23d day of November, 1897, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal, by the defendants, The Claus-Lipsius Brewing Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of February, 1898, upon the verdict of a jury, and also from an order made at the Kings County Trial Term, and entered in said clerk’s office on the 11th day of February, 1898, denying the defendants’ motion for a new trial made upon the minutes, and also upon the…

Appeal by the defendants, Bernard J. York and others,, as police commissioners, of the city of Hew York, and comprising the police board of said city, from an order of the Supreme Court, made ..at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 2d day of May, 1898, granting the application of the relator, Frederick Wohlfarth, for a peremptory writ of mandamus requiring the appellants to restore the relator, Frederick W…

Appeal by the defendant, Augustin Walsh, from an order of the Supreme Court, made at the Kings County Special Term and. entered in the office of the -clerk of the county of Kings on the 17th day of -June, 1898, denying the defendant’s motion to vacate an order obtained by the plaintiff permitting her to discontinue the action on payment of costs, and also from an order made at the Kings County Special Term and entered in the office of the clerk of the-county of Kings on the…

<p>Negligence — duty of a railroad, company to a person who through his own negligence has been struck by its cm' and has fallen upon the fender — custodian of a fme-yearold child permitting it to cross a street while within her sight —proof as to how quickly a car could be stopped with the appliances commonly in use.</p> <p>A child five years of age, upon being struck by an electric street car, fell upon the fender and was carried along for a distance of from 32. to 150 feet, when he rolled from the fender in front of the advancing car and was run over and killed.</p> <p>Held, that, assuming the child to have been sui juris and that his falling upon the fender resulted from his contributory negligence, it was the duty of the railroad company, when the child had reached a position upon the fender, to have , prevented the injury and death of the child, if it had time, and could have done so by the exercise of reasonable care, and that the question whether or . not the railroad company discharged this duty should have been submitted to the jury;</p> <p>That a charge to the jury that “ the accident, if it happened, and the damage, if it was occasioned, and the actionable injury, if there is one, came at the time the railroad car struck his person, and no matter what happened afterwards, while that may have increased the injury, it has not increased the liability of the company. * * •* The whole charge is negligence, and if the defendant was negligent and the plaintiff or the child was free from negligence at the time the actual collision occurred, you are not to render a verdict in this case because of another negligence which you may find the motorman committed after the actual collision; Their right of action was made out then, if it "was made out at all, and there can be no case here of the picking up of the child upon the ■ fender giving a right of action, or a right of action arising by reason of something that occurred afterwards; that would be entirely illegal and you must dismiss it from your minds,” was erroneous;</p> <p>That, assuming that the child was non sui juris, it was a, question for the jury to decide whether the custodian "of the child, an adult sister twenty four years of age, was guilty of negligence .in permitting the child to cross the street unattended, although within her sight.</p> <p>Semble, that proof offered on behalf of the plaintiff, by an expert motorman, who had not made an examination of the particular apparatus in use by the defendant, that the car, if equipped with the appliances commonly in use, could have been stopped within a space of twenty feet, was competent and should have been received.</p>

<p>Appeal by the plaintiff, the Wyandanch Club, from that portion of a judgment of the Supreme Court, entered in the office of the clerk of the county of Suffolk on the 20th day of November, 1897, which adjudges that the defendant is the owner in fee simple of the mills, ponds and dams therein referred to, and the lands thereunder, and that the plaintiff has no right, title or interest therein, or in any part thereof, and which adjudges that the defendant is entitled to the uninterrupted flow of' the .streams therein referred to.</p> <p>Also, an appeal by the defendant, Lewis W. Davis, from' that portion of said judgment as adjudges “ that the plaintiff is the owner of such streams -and the .lands thereunder in fee, to the extent of the boundaries of the lands owned by Theodoras Smith at the time of his death, subject to' said right of flowage of the defendant, Lewis W. Davis, who has no interest therein except such right of flowage, and no costs are awarded to either party.”</p>

<p>Appeal by the defendant, Paul Lichtenstein,, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of' the clerk of the county of Kings on the 30th day of June, 1898, granting the defendant’s motion to vacate and set aside an inquest taken and the judgment entered therein and the supplementary proceedings thereunder, upon condition that the defendant should give an undertaking in the sum of $15,000 for the payment of any judgment that the plaintiff might recover in this action against the defendant.</p>

Appeal by the defendant, Sarah Cunningham, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 7th day of July, 1898, directing that the defendant Sarah Cunningham ■ and her attorneys return to the referee her distributive share of the real estate of Catharine Shields, deceased, which was paid to her under a final judgment in the action, and directing that it be referred to a referee…

Appear by Catherine D. Bennett and Tennis Schenck Remsen from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 6th day of July, 1898, relieving the petitioner from two purchases made by him upon foreclosure' sales.

Appeal by the defendant, George D. Patten, Jr., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of June, 1898, upon the decision of the court rendered after a trial at the Kings County Trial Term before the court without a jury.

Appeal by the petitioner, George Stewart Hopkins, an infant, from an order of tlie Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens - on the 15th day of July, 1898, denying the petitioner’s motion to compel Henry A; Van Allen, the purchaser at the sale had in the above-entitled proceeding, to complete his purchase.

<p>Appeal by Bird S. Coler, as comptroller of the city of New York, from an order of the Supreme Court, made at the Kings County Special Temí and entered in the office of the clerk of the county of Kings on the 17th day of June, 1898, directing that a peremptory writ of mandamus issue to Bird S. Coler, comptroller of the city of New York, commanding, him to draw a warrant on the chamberlain of the city of New York to the order of the relator, Rudolph 0. Fuller, for the salary of said Fuller as inspector of construction, alteration and repairs of county buildings in Kings county for the months of January, February, March and April, 1898, and further directing. Robert A. Van Wyck, mayor of the city of New York, to countersign said warrant.</p>