Volume 33 — New York Miscellaneous Reports

<p>Application for the appointment of commissioners for the appraisal of certain real estate sought to be condemned.</p>

<p>Equity — Absolute transfers of property,, for only about a tenth of its real value, declared to have been made as collateral security only.</p> <p>Evidence deemed sufficient to justify a court of equity in holding that assignments, absolute upon their face, and by which a man, of drinking habits and in need of money, appeared to have transferred all his interest in his uncle’s estate for about one-tenth of its value, were really executed only as collateral security for loans made him. by the assignees at the times when the assignments were executed.</p>

Action to cancel an agreement, and to require the delivery back to the plaintiff of certain stocks and bonds. The material facts are stated in the opinion.

<p>Cebtiobabi to review an assessment for taxation.</p>

<p>Agricultural Law — Unconstitutional, in so far as it forbids the use of preservatives in dairy products — Demurrer to complaint.</p> <p>The sections of the Agricultural Law (L. 1893, ch. 338, §§ 27, 37, amd. L. 1899, ch. 435; L. 1900, ch. 534) imposing a penalty upon any person who sells dairy products containing any preservative other than certain ones permitted in the case of butter, cheese and condensed milk, is not a health law but is rather directed against fraudulent practices; and therefore a complaint, based upon these sections, is demurrable as they, not appearing to be designed as an exercise of the police power, are unconstitutional in that the prohibition of preservatives is not confined to those containing harmful or adulterative matter but includes the use of any preservative whatever, while the act itself concedes that they are necessary in butter, cheese and condensed milk.</p>

<p>Issues of law upon demurrer to complaint.</p>

Motion by purchasers upon sale under interlocutory judgment^ in an action for partition, to be relieved from their purchase.

<p>Action, in equity, to restrain continuing trespasses — Demurrer, for insufficiency in substance, to a defense that action did not accrue within ten years.</p> <p>Where a plaintiff sues a railroad corporation, in equity, to restrain continuing trespasses upon her real estate which have existed for ten years, and then demurs, for insufficiency in substance, to a defense alleging that the cause of action did not accrue within ten years immediately preceding the commencement of the action, the demurrer is bad as it revokes the allegations of the complaint in that behalf, admits that the cause of action did not accrue within ten years, and therefore admits that the trespasses have ended.</p> <p>Upon a demurrer for insufficiency, judgment must be rendered against the party first in fault of pleading.</p>

<p>1. Marketability of title — Agreement, that a title insurance company shall decide it, valid — A monument controls metes and bounds.</p> <p>Where vendors and a vendee agree that the marketability of the title to certain real estate proposed to be sold shall be decided by a title insurance company, and that the vendee shall accept the title provided the company will insure it in a certain amount, the willingness of the company so to insure it makes it obligatory upon the vendee to accept it.</p> <p>A monument in a description controls metes and bounds therein stated, and where the title company, is willing to insure only according to its own survey based upon a monument, the vendee is not aggrieved in a case where both methods unquestionably comprise the same land.</p> <p>3. Same — Adverse possession by a tenant in common.</p> <p>A tenant in common may acquire adverse possession as against his cotenants. -</p>

<p>I. Corporation — Stockholder may sue to set aside fraudulent transfer made by directors — Code C. P., § 1781.</p> <p>Where directors of a corporation, which is practically a family affair, sell all its assets to a relative for an extremely inadequate price, a stockholder may sue to set aside the transfer and may obtain the relief contemplated by subdivisions 1, 2, 5 and 6 of section 1781 of the Code of Civil Procedure.</p> <p>3. Demand of too much relief not fatal.</p> <p>The fact that the stockholder also demanded, under subdivision 3, the suspension of the directors — a matter in regard to which the Attorney-General alone can sue (Code C. P., § 1782) — will not debar relief where the claim is abandoned upon the trial.</p>

<p>Action by foreign corporation against nonresident for unpaid assessments on stock — Continued for benefit of ancillary receiver — Jurisdiction.</p> <p>In an action by a foreign corporation against a nonresident of the State of New York to recover of him unpaid assessments on the capital stock, it appeared that, before the action was brought, one B. had been appointed by the United States Circuit Court for the Eastern District of Pennsylvania receiver pendente lite of the corporation but that the corporation had not been dissolved by, that order, that, after the summons had been personally served in this State, our courts appointed B. ancillary receiver under an order which authorized him to sue and collect but which also enjoined the corporation and its agents, except B., from collecting or receiving or interfering with the property of the corporation. B. as ancillary receiver was substituted as plaintiff in this action, but that order was vacated before service of the complaint. On a motion to set aside a verdict for the corporation,</p> <p>Held, that it had legal capacity to sue.</p> <p>That, the order of the United States Circuit Court of Pennsylvania had no effect beyond the territorial limits of the district of the court, did not dissolve the corporation, nor prevent it from suing.</p> <p>That, as the action had been begun before the order appointing the ancillary receiver had been made, the action could be continued for his benefit and that the injunctive part of the said ordér did not affect this right.</p> <p>That, the court was not ousted of jurisdiction by the fact that both parties were nonresidents of this State, as the cause of action existed where the defendant could be found and served.</p>

<p>Veteran — Employed as a city watchman and, although incapacitated, carried on the pay-rolls until his death, entitled, by his assignee, to full salary — His status.</p> <p>Where a veteran, employed by the city of New York as a watchman, after having become incapacitated by illness, sends, to his immediate superior, from time to time reports as to his physical condition and is carried on the pay-rolls of the city until his death, the city must be deemed to have assented to his absence and his assignee may recover salary up to the time of his death.</p> <p>The position of such a person is analogous to that of a public officer, who, when permitted to be absent, is entitled to compensation until some action is taken in the matter.</p>

Action to recover for services rendered as blacksmith’s helper in the park department. Defense that plaintiff’s employment was in violation of local civil service regulations.

Action to recover damages for an alleged breach of a covenant against incumbrances contained in a deed made by defendant to plaintiff.

<p>Reference — Irregular, inures as an award at common law — Demurrer to complaint.</p> <p>Where parties to an action in the Municipal Court of the city of New York stipulate to refer, judgment to be entéred “ with the same-force and effect as upon a trial by the court”, and, after an order of reference made, a justice of said court refuses to enter judgment upon the report as beyond his powers, a complaint in the Supreme Court, treating the report as an award by arbitrators at common law, is not demurrable since an irregular reference inures as an award.</p>

<p>1. Foreign corporation — Its assignee may sue where it could not, because not authorized to do business in the State of New York — Demurrer to complaint.</p> <p>The assignee of a foreign corporation, which could not itself sue because not authorized under the statute to do business within the State of New York, may sue upon the demand, as the statute affects the remedy only and does not affect the right to sue upon the cause of action.</p> <p>2. Same — When the making of the assignment is not “ doing business.”</p> <p>Where the complaint does not state where the assignment of the cause of action was made, the assignment cannot be held unlawful as constituting “ business ” done within this State, since there is nothing to show that it was done within the State.</p>

<p>Issues of law upon demurrer to complaint.</p>

Action by the plaintiffs, as surviving partners, for the amount of a judgment recovered by the partnership, in the court of another State, for the wrongful conversion of two locomotives. The answer was a subsequent discharge in bankruptcy. .

<p>Aotioh by the plaintiff to recover the value of certain sand supplied by her assignor to the defendant George Daiker.</p>

<p>Appeal by the defendant from a determination of the General Term of the City Court of the city of Hew York, affirming a judgment rendered in favor of the plaintiffs after a trial before the court without a jury.</p> <p>Action by the next of kin of James Keegan, deceased, against the sureties upon the bond of his administrator.</p> <p>The material facts are stated in the opinion. The accounting of the administrator, referred to therein, was' compulsory.</p>

Appeal by the defendant, from a judgment of the General! Term of the City Oourt of the city of New York, affirming a. judgment of the Trial Term of that court, in favor of the plain-tiff, after a trial had before the court and a jury. The material facts are stated in the opinion.

Appeal by the plaintiff from an order of the General Term of the City Court of the city of New York, granting a motion made by the defendant for a set-off of judgments. See opinion of the General Term of the City Court, 32 Mise. Eep. 244.

<p>Negligence — An eye witness cannot testify as to whether a street car or a hose cart, approaching at right angles, could first have crossed the point of their collision.</p> <p>Where a fireman, who is being driven back from a fire upon a hose cart or tender, sues a street railway corporation for injuries received from a collision at a street intersection between its car and the tender, a witness for the plaintiff, who saw the accident, cannot give his opinion, based upon the relative positions and speed of the ear and of the tender, as to which of them could first have crossed the point of collision. The question is for the jury.</p> <p>Galligan v. Metropolitan Street R. Co., 32 Mise. Rep. 780, reversed.</p>

<p>Partnership — One partner may sue another at law where the debt has been liquidated between them.</p> <p>Where a so-called partnership agreement gives one partner no interest in the firm assets and imposes upon him no liability for firm debts, as between himself and bis copartner, a further provision, to the effect that he may withdraw at the end of one month and shall then he entitled to a gross sum and to a guaranteed minimum sum representing weekly net profits, entitles him to sue his copartner at law for said sums, as no accounting in equity is necessary where one partner has agreed to pay the other sums of money which have been definitely ascertained, liquidated and assented to by both.</p>

• Appeal from a judgment of the Municipal Court of the city of New York, • second. district, borough of Manhattan, dismissing the complaint herein.

<p>Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, eighth district, borough, of Manhattan. Action by the plaintiff, a musical director, to recover of the defendants, theatrical managers, arrears of salary, railroad fare back to New York city, and damages for failure to give him two weeks’ notice of the termination of his employment.</p>

<p>Municipal Court of the city of New York — Jurisdiction not dependent on residence of defendant.</p> <p>The record of an action in the Municipal Court of the city of New York need not, for the purposes of jurisdiction, show that the defendant was a resident of said city, and this because said court is a continuation of the former District Courts, whose jurisdiction was dependent upon the character of the action and not upon the residence of the parties.</p> <p>The objection that the record does not show residence of the defendant within said city cannot be raised in the first instance upon appeal.</p>

<p>Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Oourt of the city of New York, seventh district, borough of Manhattan. Action for a penalty under the charter of the city of New York.</p>

<p>Eviction — Constructive, in apartment-house — Laches.</p> <p>A tenant of an apartment-house is not justified in abandoning his apartment merely because he and his invalid sister have been annoyed by the talk of little children, and their playing with blocks, on the floor of the apartment above.</p> <p>A landlord is not responsible for the conduct of tenants of an apartment-house, acting within their rights, while they are in their own apartments.</p> <p>The right to abandon, under a constructive eviction, must be exercised with reasonable promptness and a delay of five months is excessive.</p>

<p>Gambling — The winner cannot recover of the loser.</p> <p>Where a loss has already been incurred in a gambling transaction, any person, other than the winner, who advances money or property to the loser to enable him to pay the loss, may, in the absence of a special statute, recover such advances; but the winner cannot recover of the loser, no matter what form the loss may take.</p>

<p>Tort — Injuries from the kick of a horse — Scienter.</p> <p>In an action for injuries received from being kicked by a horse while in its stall in a stable, the plaintiff must prove scienter upon the part of the owner of the horse, and no proof of its viciousness in the stall is afforded by evidence that the horse would kick and balk on the road while drawing a load in the snow.</p>

<p>Eviction — When the question is for the jury.</p> <p>Where, in an action for rent, the tenant justifies an abandonment of the premises by proving that a pump directly under his letting caused a disagreeable thumping noise lasting several hours each day, a verdict should not be directed for the landlord, as the jury must decide whether such a noise constituted a nuisance and hence amounted to a constructive eviction.</p>

<p>1. Municipal Court of the city of New York — An action to recover a deposit made to bind the formation of a future partnership is not equitable in its nature — Jurisdiction.</p> <p>An action to recover a deposit, not made to create a partnership but merely as an assurance of the performance of an executory agreement to form a partnership within a definite time, is not equitable in its nature, does not involve an accounting, and, therefore, may be brought in the Municipal Court of the city of New York.</p> <p>2. Same — Dismissal on the merits, when improper.</p> <p>Where a complaint is dismissed in said court at the close of the plaintiff’s case, there can be no absolute dismissal,.as there has been no trial on the merits.</p>

<p>Quantum meruit — Recovery on, where performance of specific contract has been prevented by the other party.</p> <p>Where a specific contract for work, labor and services has been only partially performed because the other party prevented completion, the party aggrieved is not confined to an action for the breach but may sue on a quantum meruit for the work done.</p>

<p>Municipal Court o£ the city of New York — Not ousted of jurisdiction of summary proceedings by plea of title — Counterclaim therein.</p> <p>The Municipal Court of the city of New York is not ousted of jurisdiction in summary proceedings by the interposition of an answer setting up facts showing that the title to real property will come in question on the trial.</p> <p>A counterclaim to such a proceeding may be interposed in said court.</p>

A judgment of foreclosure and sal© was obtained in the above-entitled action, and pursuant to such judgment the premises were exposed for sale on. the 13th day of November, 1899. At that time, Daniel Gaffey, through his attorney, hid in such premises for the sum of $21,600, he being the highest bidder therefor.

Demuebeb to a defence. The complaint alleges in the usual way that by certain specified acts of negligence by the defendant he was hurt while a passenger on one of its cars.

<p>1. Conversion — Complaint — Demand.</p> <p>, A complaint against a bank which alleges that the plaintiff was the owner and entitled to the possession of certain checks and drafts, that they came unindorsed into the possession of the defendant without the plaintiff’s authority, and that the defendant wrongfully converted them and collected their proceeds, states a cause of action for a wrongful conversion of the checks and drafts, and not one for,, money had and received.</p> <p>A demand need not'be pleaded where the conversion is, alleged as wrongful.</p> <p>2. Pleading — Denials in a defence not to be considered on demurrer to it for insufficiency.</p> <p>The sufficiency of an “ affirmative defence ” is to be determined by the test whether it contains new matter which constitutes a defence to the complaint assuming the latter to be true, and, therefore, denials in the “ defence ” of matter stated in the complaint cannot be considered on the hearing of a demurrer to the defence interposed on the ground of insufficiency in law.</p>

<p>¡Restraint of trade — Conspiracy against lawful occupation — Injunction.</p> <p>The performance of an agreement, entered into by a fire insurance exchange formed by insurers desirous of maintaining rates in a certain territory, by the terms of which the members agree to pay commissions to such insurance brokers only as had been licensed by the exchange, such brokers to agree not to give any part of their commission to their customers and not to accept a commission at rates higher than those of the exchange, cannot be enjoined by an unlicensed broker, who alleges an immemorial custom of fire underwriters to pay commissions to any broker bringing them insurance, either upon the ground that the agreement is in restraint of trade or upon the ground that it evidences a conspiracy against the unlicensed broker’s lawful occupation.</p>

<p>Fixtures — Tenant’s right to remove does not attach to a new lease to him, unless reserved.</p> <p>Where a partner erects upon demised premises a one-story extension under an oral agreement with the landlord that it shall remain the partner’s property, and after the interposition of a term during which his copartner was lessee, again becomes lessee for two/subsequent terms, he cannot, upon the expiration thereof, remove the extension, in the absence of any provision in that behalf in the leases, as his right to do so expired with the original lease.</p>

<p>Proceedings on prohate of will.</p>

Pboceeding upon the petition of claimant for an order directing that the decree of settlement heretofore made be opened and that the administrators be directed to pay her claim.

Application by the relator for a writ of peremptory mandamus, commanding the defendant officers to execute and deliver to him a conveyance of certain lands and premises, situate in the city of Buffalo, bid in by the relator upon a sale for taxes.

<p>Action for the construction of the following clause of the will ■of Christiana Bungart, deceased, viz.:</p> <p>“ I give and bequeath to my beloved friend Margaret Ludwig '* * * all my household furniture and store with contents of house known as 2STo. 29 Hamilton avenue</p> <p>The testator owned the said house and lived in it, and kept a retail cigar store on the ground floor. In the store at her death was a safe in which were $850 in money, two watches of her deceased husband and son and a few other articles of jewelry of small value. The executor has delivered to the plaintiff the entire contents of the house, and the personal apparel of the deceased, and the stock in trade of the store, and everything except the said money and jewelry, and the store fixtures. The plaintiff asks for a construction of the said clause of the will that she is entitled to these also.</p>

<p>Action for the construction of the will of Margaret Shelly. The deceased left her surviving her husband, her daughter (the plaintiff), and five grand children, her only heirs and next of kin. She made her will in 1891. It contained the following devise to her said daughter:</p> <p>“ I give, devise and bequeath my one half interest in the building known as Eumber 22 Oliver street in the 4th ward of the Oity of Eew York, unto my daughter Lizzie, wife of Emanuel Ametrano, * * and to her heirs and assigns forever ”.</p> <p>The testator and her husband owned the said land in .fee as tenants in common, share and share alike. She owned no other property at the time of making the will or thereafter. She died in 1899. After she made her said will, viz., in 1896, the Oity of Eew York acquired title to the said land by a proceeding under the eminent domain power, and paid $19,000 therefor. After payment of liens on the land there remained $9,800. This was; equally divided by the testator and her husband, and the testator deposited her part ($4,900) in a trust company in her own name. During her life time she received and used the interest thereon, and also drew out and used $400 of the principal, leaving $4,500 in the deposit at her death.</p>

Action to set aside the transfer o-f certain property by a bank rapt, and to obtain an adjudication as to his ownership of certain property, and also to obtain a decree as to his rights in certain insurance policies.

<p>Action for ejectment.</p>

Action on undertaMng given on appeal to the Appellate Division in an action wherein the plaintiff had recovered judgment against the Third Avenue Railroad Company.

<p>1. Trust in personalty for widow’s life income — Disposition of remainder under a clause that, “ after providing for ” all previous bequests, she should take “ all the residue.”</p> <p>A will of personalty, made in 1866 when gold was above par, directed, by its first paragraph, that the testator’s widow should have an annual income for fife of $10,000 in gold, sufficient of the estate to be “ set aside ” and invested so as to produce that income. It thereafter created a trust for his only daughter and next of kin, which was to go over to the widow if the daughter died without issue, and lastly directed that, “ after providing for all the previously named bequests,” the widow should take “ all the residue ” of the estate. The daughter died, intestate and unmarried, after her father and before her mother, who brought an action to construe the will.</p> <p>Held, that the title to the fund created by the-first paragraph remained undisposed of, that under the residuary clause the widow was entitled to the remainder therein, and that the testator did not die intestate as to such remainder.</p> <p>That the words “ after providing for,” etc., were words of description and not of exclusion.</p> <p>2. Same — Bight of beneficiary to end the trust upon becoming entitled to the remainder.</p> <p>The statutes (L. 1893, eh. 452; 1896, chs. 547 and 553; 1897, ch. 417, § 3), permitting a life beneficiary of the income of a trust in personalty, upon becoming entitled to the remainder in the corpus to release her interest in the income and end the estate of the trustee by merging the trust estate in the remainder, confer no absolute right upon the beneficiary of such a trust, created before those statutes were passed, to terminate the same and obtain possession of the corpus.</p>

<p>Corporation — Maintenance of a piano school to promote the sale of a. novel instrument not ultra vires.</p> <p>The maintenance of a piano school to promote, among other things, the public sale of a novel, toneless, practice clavier, is not beyond the powers of a corporation organized for “the manufacture and sale of instruments designed for practice and instruction in the art of playing the piano and other instruments having a similar keyboard, and of any instrument, appliance or thing which may be used for such practice and instruction, whether independently or m connection with musical instruments or with instruments. designed for practice only ”.</p>

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

<p>Transfer tax — Deductions.</p> <p>In assessing the transfer tax upon the succession to property, the commissions of a temporary administrator and his expenses (where these are practically the same as if the estate had passed at once to the executors), the legacy tax due the United States, and the commissions due the executors as trustees, should be deducted by the appraiser.</p>

Action to recover the value of certain sewer pipe sold and delivered at the special instance and request of the commissioner of highways of the town of Evans.

<p>Libel — False charge of leprosy — Complaint.</p> <p>To falsely publish of one that he has leprosy is libelous, as the disease, whether properly or not, is commonly regarded as infectious or .contagious and as tending to cause the sufferer to be shunned or excluded from society.</p> <p>The complaint, in an action for the libel, need not state that leprosy is infectious or contagious as the court will take judicial notice that such a charge is libelous.</p>

Action for an accounting. The defendant, had the possession and management of all of the personal and real property of the deceased for a period of 22 years up to the time of her death, under á written power of attorney by her to him, empowering him to collect the rents and income thereof, and also to sell the same and invest the proceeds.

Motion by the plaintiff for a new trial, the complaint having been dismissed at the trial. Action for damages for the benefit of the widow and next of kin for the alleged negligence of the defendant causing the death of the plaintiff’s decedent, who was her husband. The decedent was a member of the fire department of the defendant. He was a lineman, and belonged to the force which had charge of the telegraph and fire alarm lines of the department.

<p>Principal and agent — Former defrauded by latter’s false statement of the price of land to be purchased — Restoration.</p> <p>Where an agent induces his principal to convey certain parcels of land by falsely representing to him that they are necessary to the consummation of a purchase of other real estate which the agent is buying for the principal, the latter may recover the parcels of the agent, and of confederates in the transaction to whom one parcel has been transferred, without restoring anything where the defendants have never paid nor parted with anything in return for the parcels.</p>

<p>Liquor Tax Law — False statement of a convicted felon, that he is not within the prohibited class, makes his liquor tax certificate void, unassignable, and not entitled to rebate.</p> <p>A person who pleaded guilty to receiving stolen goods, but as to whom sentence was suspended, must be deemed to have been “ convicted of a felony ” within the meaning of the Liquor Tax Law (L. 1896, ch. 112, § 23), and therefore where, in order subsequently to procure a liquor tax certificate, he swears that he is not within any of the classes prohibited by said section 23 from trafficking in liquors, the certificate issued to him, constituting a mere receipt for the tax, is void al initio, cannot be assigned and does not entitle a mesne assignee to surrender it and obtain a rebate for the unexpired term — and this although no steps have ever been taken to cancel the certificate or to recover the statutory penalties, and although more than thirty days have elapsed since the certificate was surrendered.</p>

<p>Motion to correct judgment as to allowance of interest or claim sued upon.</p>

<p>Hew York city — Irregularities in bids for removing snow — Price written on an erasure — Signatures — Member of municipal assembly offered as surety.</p> <p>A bid for removing snow and ice from the streets of the borough of Manhattan is not invalidated by the fact that the price offered is written on an erasure (not noted) where the erasure was made before the bid was verified or submitted.</p> <p>Such a bid must be verified by the bidders but is not required by the charter to be signed by them.</p> <p>Such a bid is not made void by the fact that a proposed surety is a member of the municipal assembly, as this irregularity merely gives the comptroller an option to reject the bid as void.</p>

<p>Principal and surety — Eights of cosureties, where one of them pays the whole debt.</p> <p>Where a husband and wife, and a person named A., severally pledge choses in action to the payee of a firm note in order to secure its payment and, upon the insolvency of the firm, the husband and wife, A. refusing to contribute, take up the note and have it and the collateral transferred to the wife, she may enforce the note against the firm and also hold all the collateral for her protection; and an assignee of A. cannot force her, in equity, to surrender A.’s collateral to such assignee, as A. has not paid his share of the debt represented by the note.</p>

Demubbeb to complaint. The defendant demurs to the complaint herein, for the ground that it appears, on the face thereof, that said complaint does not state facts sufficient to constitute a cause of action. The facts are fully stated in the opinion.

Action for damages for conversion, against William Walton, Sheriff of Bangs county, Alden Speare’s Sons Company, a corporation, and William E. Warland, attorney at law for the said corporation. Trial of an issue of law raised by the demurrer of the defendant Warland to the complaint that it does not state facts sufficient to constitute a cause of action against him.

<p>Marketable title — Sale of infant’s real estate — Allegations that it is made to avoid partition — Agreement of special guardian may be oral — Failure to give bond fatal — Code C. F., §§ 2350, 2352, 2356.</p> <p>A sale of infant’s real estate is sufficiently brought within that part of section 2350 of the Code of Civil Procedure, excusing a statement of the otherwise required details of the infant’s estate and circumstances in a case where the sale is sought in order to avoid partition, by allegations of the petition that executors, who have a power of sale over all the real estate of the infant’s ancestor, are about to sell it, and that the “ purchasers of said property will no doubt be strangers to said infant and apt to disregard in great measure her undivided interest, and may also bring an action against said infant to compel a partition of said property”.</p> <p>Section 2356 of said Code does not specifically require that the agreement of sale, Which must be entered into by the special guardian, should .be written and, if the same is confirmed by the court, it is sufficient, if oral.</p> <p>The bond required of the special guardian, by section 2352 of said Code, is an absolute necessity; and therefore where the court orders that a bond, theretofore given by the special guardian as guardian of the property of the infant in the court of the surrogate, shall be deemed a sufficient bond in the proceeding for the sale of the real estate, the latter proceeding is void and a purchaser of land affected by the sale need not carry out his purchase.</p>

Action to partition the real estate of Thomas W. Townsend, who died intestate April 24, 1896. The defendant Jnlia Mary Snell, who was bom July 27, 1864, denied the right of the plaintiff and his sisters, children of Townsend, to participate as heirs-at-law in his real estate.

<p>Tax — Allegations of overvaluation and inequality, upon an application to tax commissioners of the city of New York for reduction of an assessment of real estate, considered.</p> <p>An application, made under the charter of the city of New York (L. 1897, eh. 378, §§ 875, 906), to its tax commissioners for correction of an assessment of real estate upon the grounds of overvaluation and of inequality must, in order to entitle the applicant to a review by certiorari, be in writing and state the marketable value of the real estate, as well as the facts, relative to other real estate, which are deemed to show overvaluation and inequality.</p> <p>A petition held to state the market value and sufficient facts, indicating overvaluation, and a sufficient number of instances of inequality, to require the court to send the matter to a referee.</p>

<p>Municipal Court of the city of New York — Has jurisdiction, under Code C. P., § 3404, et seq., to foreclose a mechanic’s lien, as the action is not equitable — Code C. P., § 3417.</p> <p>An action begun under Code C. P., § 3404 et seq. to foreclose a mechanic’s lien in a court not of record is not equitable in its nature, the Municipal Court of the city of New York, a court not of record and a continuation of the former District Courts which had such jurisdiction, is not excluded from jurisdiction, and consequently where the lienor commences to foreclose in the said Municipal Court within thirty days of service upon him of a notice, under Code C. P., § 3417, requiring him to commence foreclosure within thirty days or show cause on a day certain why an order should not be made vacating his lien, an application to vacate must be denied as he has commenced his foreclosure in time and in a court having jurisdiction.</p>

<p>Judgment — Inter alios acta, admissible to show chain of title.</p> <p>A judgment rendered between the plaintiff and a third party is admissible, in ejectment, when offered only to establish the plaintiff’s standing in court by showing a link in his chain of title.</p>

Action to recover a deposit made by plaintiff with defendants upon the execution of a contract for the sale by defendants to plaintiff of premises ¡No. 117 Lewis street, Hew York city, together with counsel fee and disbursements incurred by plaintiff upon the examination of title to said premises, upon the ground that the title tendered by defendants was defective and unmarketable.

Demurrer to complaint. Action by plaintiff, as receiver in supplementary proceedings of defendant Seibert, to obtain a certain fund alleged to be in the hands of defendants Hasten and Nichols, as employers of defendant Seibert.

<p>Demurrer to defenses in answer.</p>

Action by plaintiff, a veteran of the Civil war, to recover agreed compensation for services rendered, on the theory of wrongful discharge.

Action by plaintiff to cancel a mortgage for $3,000, dated Inly 20, 1895, payable November 1, 1895, to Henry Hartfield, on the ground that her name was forged to the mortgage and that the certificate of acknowledgment is false.

<p>Costs — Stenographer’s minutes taxable when necessary to prepare amendments to case.</p> <p>A disbursement for stenographer’s minutes necessary to enable the respondent to prepare amendments to a case and exceptions, and made where he could not obtain the use of the appellant’s copy, is taxable by the respondent.</p>

Norton, a justice of the peace of the town of Western, for thirty-nine dollars and ninety cents damages and costs, upon the verdict of a jury. The action is for trespass, in cutting and carrying off and converting timber. No claim was made in the complaint for treble damages. At the joining of issue defendant answered by a general denial.

This is a suit to reinstate a life insurance policy for $10,000 which the defendant company has declared forfeited. It was issued by the company through its general agent in the City of New York to Isaac Levy on August 15th, 1893, and assigned by him to the plaintiff on September 16th, 1893, by a written assignment absolute on its face. It appears in evidence, however, that the assignment was made to secure a debt of $7,000.

<p>Nuisance — Reasonable use of electric plant.</p> <p>An owner of an apartment-house in a large city cannot, upon the ground of noise and vibrations, restrain the use by an adjoining department store of an electrical plant necessary to its business, unless ihe shows that the use is not reasonable, having in view ail interests affected and also public policy.</p>

<p>Certiorari to review the action of the tax commissioners in the matter of the assessment of the personal estate of the relator for the year 1899.</p>

<p>Application by the State Commissioner of Excise for an order revoking a liquor tax certificate.</p>

<p>Motion on the part of the relator for an extra allowance.</p>

<p>Motioh to direct a retaxation of costs.</p>

<p>Certiorari to review the action of the tax commissioners in assessing the personal property of the relator for the year 1899.</p>

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

Action to foreclose a mechanic’s lien on property of the defendant Kinney for work, etc., performed and furnished by the plaintiff, under a contract between it and the defendant Robinson, as a general contractor.

<p>Demurrer to complaint.</p>

<p>Parties — A depositary not a necessary party to an action for specific performance.</p> <p>Where an action is brought for the specific performance of a contract to surrender one share out of one hundred shares of stock, pledged for the benefit of the defendant as collateral to the payment of the plaintiff’s note representing the cost of the stock, whenever and as often as the latter paid one hundred dollars on the note, a depositary with whom, as alleged in the complaint, the shares and the note have been placed as a trustee and against whom no relief is asked, is not a necessary party to the action and hence the defendant cannot demur to the complaint upon the ground of such non-joinder.</p>

<p>Action by indorsee of promissory note against the payees thereof. Defense: Statute of Limitations.</p>

<p>Action to recover extra compensation as a driver in the Hew York street cleaning department, under the aet of 1892, chapter 415.</p>

Coykendall he, and he is hereby substituted as a party defendant in this action in the place and stead of the Beverwyck Towing Company, and that the records, judgments and proceedings in this action be changed accordingly, and that the said Samuel D. Coykendall be, and he is hereby directed to pay the said plaintiffs the judgments entered herein. The clerk of this court is hereby directed to change and amend the record and judgment docket herein accordingly.”

<p>Motion by the plaintiff, Louis G. Gerlten, for a new trial on exceptions ordered to be heard, in the first instance, at General Term, after a trial, on the 15th day of February, 1900, where a verdict was directed in favor of the defendant; and the exceptions were ordered to be heard at the General Term in the first instance.</p>

<p>1. Mechanic's lien — Where the owner completes the work, upon the contractors’ failure, he may deduct the actual cost.</p> <p>Under a building contract providing that if the contractors do not complete the contract the owner may do so and deduct the cost, he may deduct the actual cost, and the contractors’ expert testimony, as to the sum for which the building could, as a matter of opinion, have been completed, is immaterial.</p> <p>2. Same — Order on owner must be filed as against sub-contractors.</p> <p>An order upon the owner, accepted by him, is void under the Lien Law of 1897 as to sub-contractors unless it, or a copy, is filed in the office of the proper county clerk.</p>

<p>Action for rent — Dispossession order an estoppel as to tenancy and occupation.</p> <p>In an action to recover rent, proof of an order dispossessing the defendant for non-payment of rent, concludes him as to tenancy and occupation, even though the order was taken by default and upon substituted service. The only question open is the amount of rent due.</p>

The issue was joined on February 7, 1900. The motion was not made until October 1, 1900. The action was based upon the alleged negligence of the defendants.

<p>1. Action, to remove cloud on title — When maintainable against Comptroller.</p> <p>An action to remove a cloud upon title to real estate caused by tax sales thereof by the State Comptroller to the State, though not maintainable against the State itself, is maintainable against the Comptroller and the Commissioners of the Land Office.</p> <p>2. Demurrer, joint.</p> <p>Where defendants demur jointly, the demurrer must be overruled if a good cause of action be stated against any of them.</p>

<p>Fisheries, Forest and Game Law — Trout caught out oí the State may be possessed in the close season.</p> <p>The prohibition oí the Fisheries, Game and Forest Law against the possession of trout during the close season relates only to trout caught in the State of New York and hence the statutory penalty is not incurred by one who exposes for sale in this- State during said season trout caught in another State.</p>

<p>Return to a writ of certiorari.</p>

<p>Action to compel the defendant to complete his contract to purchase real property.</p>

<p>Liquor Tax Law — Purchases by special agents, after prohibited hours, does not estop the State from recovering on the bond.</p> <p>A recovery upon a bond given by a liquor tax certificate holder is not invalidated by the fact that the testimony convicting her of a violation of the Liquor Tax Law was that of special agents who, by direction of the State Excise Department, lawfully entered her place to investigate and subsequently, during prohibited hours, bought liquors there in the same manner as ordinary customers, without practicing coercion, misrepresentation, fraud or deceit.</p> <p>If the purchasing of liquors was beyond their instructions, such purchases were their own acts and cannot estop the State from complaint or recovery.</p>

<p>Return to a writ of habeas corpus.</p>

<p>Application for the examination of petitioner by certain physicians.</p>

<p>Payment — Of stale demand by lapse of time.</p> <p>A certificate of deposit, not payable at any stated period, and to collect which no suit was brought for twenty-four years although the debtors were continuously within the State of New York, will be - presumed to have been paid at some time during that period, and where the holder does not rebut this presumption by sufficient evidence, the demand is barred by lapse of time irrespective of the Statute of Limitations.</p>

<p>Ueferee — Exceeds his authority where he tries counterclaims which have been ordered tried by a jury.</p> <p>Where an action for goods and services, involving the examination of a long account, is referred to a referee to try and determine, but, on an appeal from the order of reference, a jury trial is awarded the defendant as td its counterclaims consisting of loans to the plaintiff alleged to bear interest, a report in favor of the plaintiff, giving the defendant credit for the face of the loans only, does not, upon the case coming on for the jury trial, entitle the plaintiff to judgment on the pleadings including the counterclaims, as the referee has exceeded his authority in trying them and the defendant is still entitled to have the jury decide whether it should be credited with interest on the loans as well as with the loans themselves.</p>

<p>Action on promissory note made by defendants. Defense, usury and failure to apply consideration money as agreed.</p>

<p>Demuebeb by plaintiff to counterclaim set forth in defendant’s answer.</p>

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

<p>Demurrer by defendant Etta Myers to plaintiff’s complaint.</p>

Motion in behalf of one of the defendants “ that the complaint herein be made more definite and certain and that the plaintiffs state therein separately and distinctly their separate counts and causes of action and number the same, upon the ground and for the reason that said complaint contains but one count, setting up in said count several distinct causes of action against said defendants.” Upon the hearing, the moving party limited his claim to relief to an order…

<p>1. Replevin — Description of property in affidavit — Code C. P., § 1695.</p> <p>The requirement of Code C. P., § 1695, that an affidavit to be delivered to the sheriff, in replevin, must particularly describe the chattels replevied is sufficiently met by the description “ 10,090 wool pelts, the wool taken therefrom, and the skins thereof (otherwise known as slats) in pickle or lime.”</p> <p>2. Receiver — Delay in entering order granting leave to sue him.</p> <p>A delay, for two or three days after the commencement of such an action against a receiver in entering the order permitting him to be sued, is not a sufficient ground for setting aside service of the summons and process.</p>

<p>ZForest fires — Recovery against town for services in extinguishing.</p> <p>Under the acts relative to fire wardens and forest fires (L. 1893, ch. 395; 1896, ch. 655), a person who assists in extinguishing a fire in the woods and fields of a town cannot force the town to pay him the statutory compensation for his services unless he shows a request from the supervisor, acting as fire warden.</p>

<p>Taxpayer’s action — Extra allowance to officials successful in their defense — “ Subject-matter involved ”— Code C. P., § 3343.</p> <p>While the courts should always be open to a taxpayer seeking to protect his rights against the waste, extravagance or corruption of officials, if he brings his action without consideration or cannot support it by necessary proof he cannot be exempted from the payment of costs.</p> <p>Where city officials succeed in a taxpayer’s action, brought to prevent them from auditing or allowing payment of an alleged illegal claim, they are entitled to an extra allowance where the case is difficult and extraordinary.</p> <p>Within Code O. P., § 3243, “the subject-matter involved” is the amount of the claim; and the fact that the claimants were not parties to the action is not material.</p>

Motion to quash the writ of certiorari herein to review the assessment of relator’s property, in the town of Pamelia, Jefferson county, upon the ground that the application for such writ was not made “ within fifteen days after the completion and filing of the assessment-roll and the first posting or publication of the notice thereof,” as required by statute.

<p>Appeal by one William K. Hawkins from an order of the General Term of the City Court of the City of Hew York, reversing an order of the Special Term allowing him to come in and defend the action, and directing the amendment of the summons and complaint in this action by making him a party-defendant, and denying such motion.</p> <p>The nature of the action and the material facts are stated in the. opinion.</p>

<p>Appeal by the defendant from a judgment of the General Term of the City Court of the City of New York, affirming a judgment of the Trial Term of that court, in favor of the plaintiff, after trial had before the court and a jury.</p> <p>The nature of the action and the material facts are stated in the opinion.</p>

<p>Bailment — Liability for negligence of one who voluntarily continues the bailment — Presumption as to condition of goods at the time when he took them over.</p> <p>Where a new bailee voluntarily assumes to continue the storage of goods and, without intervention upon the part of the bailor, assumes dominion over and moves them to a new location, proof, that the goods were in a good condition when originally stored and were partially damaged when finally returned, makes out a prima fade case of negligence against the new bailee.</p> <p>In such case it is unnecessary for the bailor to prove that the goods were in good condition when the new bailee took them over as it •will be presumed they were, the rule being that things once proved to have existed in a particular state are presumed to have continued In that state until the contrary is established by evidence either direct or presumptive.</p>

<p>Conversion — Will not lie against one out of possession and control of the thing converted.</p> <p>Where payees, in lawful possession of a check on a bank, transfer it for value to another and he retains it after payment has been refused, the maker’s subsequent payment of the debt to the payees does not entitle him to maintain conversion against them for the check, as they have lawfully parted with the possession and control ÓT it.</p>

<p>Lease — Covenant, as to a deposit for damages, survives dispossession proceedings — Liquidated damages distinguished from a penalty.</p> <p>A lease, for five years and six months at a rent of $110 payable in advance by the fifteenth of each month, contained a covenant that, if the tenant fail to perform any covenant of the lease or was for any cause dispossessed by due process of law, the landlord might retain $200, deposited with him by the tenant, without any rebate or allowance in the event of dispossession. For non-payment of a month’s rent, the landlord lawfully dispossessed the tenant when the lease had run only two years and seven months.</p> <p>Held, that the covenant survived the dispossession proceedings, that the landlord was entitled under it to retain all of the $200, and that that sum was to be regarded as liquidated damages and not as a penalty.</p>

Appeal by the plaintiff from a judgment of dismissal, rendered upon his nonappearance by the Municipal Court of the city of Eew York, borough of Manhattan, and from an order of the same court denying a motion to open such default. The material facts are stated in the opinion.

<p>Evidence — Expert may give an opinion as to how a coat should be altered.</p> <p>An expert may give his opinion as to the manner in which an old-fashioned Persian lamb coat should be altered into a short coat of later fashion, and the exclusion of such evidence is reversible error.</p>

<p>Partnership — An interest in the profits as profits makes one a partner as to third persons.</p> <p>A person interested in the profits of a business, otherwise than as compensation for his services, is a partner as to third parties and it is not necessary that he share the losses.</p>

<p>Benefit society — Forfeiture, for breach of only one of two necessary conditions of forfeiture, illegal.</p> <p>Where the forfeiture of the rights of a member of a benefit society depends, under the by-laws, not only upon his dues being thirteen weeks in arrears but also upon his failure to pay them at the next succeeding meeting, he cannot be deemed to have forfeited his rights by having been thirteen weeks in arrears where he died before any succeeding meeting had been held.</p>

Motion to vacate and set aside an execution issued upon a judgment, rendered by the Troy City Court, and docketed in Albany county, in favor of one Valentine, and the levy made thereunder. It appears from the papers herein that on the 1st of January, 1896, The Troy Steel Company executed and delivered to the plaintiff, as trustee, a certain mortgage to secure its bonds of the same date, to the amount of $1,750,000. These bonds bore negotiable interest coupons.

Action for damages for personal injuries by the negligence of the defendant, a corporation, by one of its beer wagons running over the plaintiff in a street. Verdict for the plaintiff, and motion on the minutes for a new trial.

<p>Suit to foreclose a mortgage for $6,000 given by the defendant Annie 0. Richardson to the testator to secure a bond for the same amount given by the same defendant to the testator; and judgment for any deficiency is prayed for against the said defendant. Her husband is a co-executor with the plaintiff of the will of the testator, and is joined as a defendant only because he refused to unite with the plaintiff in bringing the suit. The answer of the said wife pleads payment as a defence, i. e., that the debt of $6,000 for which she gave the said bond and mortgage was not her debt but the debt of her said husband, and that the testator by a codicil to her will discharged the said debt by the following clause:</p> <p>“ I hereby direct and provide that in case any sums of money should be owing to me or to my estate from Asa B. Richardson that such sum or sums shall not be claimed from him by my executors, but shall be treated as a bequest to him; and any evidence of indebtedness from him shall be given up and cancelled by my executors.”</p> <p>The facts are that on October 10th, 1890, the testator signed and delivered to the Produce Exchange Bank a paper authorizing it to make loans “ from time to time ” to the defendant Asa B. Richardson against 95 specified shares of stock owned by her in the said bank as security, such loans not to exceed $10,000. On September 30th, 1893, the said bank loaned to1 the said Asa B. Richardson $6,000 on his note secured by 60 of the said shares of bank stock. It does not appear what loans, if any, preceded this, or whether it was a renewal. This indebtedness remained until October 23rd, 1895, when the testator gave to the said Asa B. Richardson her three drafts on three banks aggregating $6,000, which he deposited in his bank, and thereupon drew his own checK the same day to the order of said bank for $6,019.17, and therewith paid and took up his said note for $6,000; and on the same day the defendant Annie O. Richardson executed and delivered to the testator the bond and mortgage in question. On the payment of the said note the bank returned to the testator her said bank shares. While the said note remained unpaid, viz., on June 8th, 1895, the testator executed the said codicil. She died in March, 1900, aged 84 years. Interest was regularly paid on the said bond and mortgage up to the time of her death.</p>

R. Wendel on writ of habeas corpus. Georgiana G. R. Wendel was adjudged to be insane and was committed to the care of her sister, Mary E. A. Wendel, for custody and treatment as insane. The order of commitment was made ex parte, by a justice of the Supreme Court, on September 5, 1900, upon the petition of John G. Wendel and upon a certificate of two physicians, all dated the day the order was made.

<p>Hotion for an examination of defendant before trial.</p>

<p>Motion for a certificate of reasonable doubt.</p>

Applications for the appointment of a receiver in three actions brought to foreclose three separate second mortgages upon three distinct parcels of property situated in the borough of Manhattan.

<p>1. Attorney and client — Liability of client for printing case on appeal.</p> <p>Where a client directs his attorneys to appeal and they employ a printer to print the case and points, the client is liable to the printer and the attorneys are not unless they have pledged their personal credit.</p> <p>3. Bankrupt Act of 1898 — A debt to a creditor, whose name is known, is not discharged if omitted from the schedules.</p> <p>Under section 17 of the United States Bankruptcy Act of 1898, a debt of a creditor, who had neither notice nor knowledge of the bankruptcy proceedings, but whose name was known to the bankrupt, is not discharged by his discharge where the debt has been omitted from the schedules filed, whether fraudulently or not.</p>

<p>Municipal Court of the city of New York — Is subject to Buie 34 of the city civil service rules of July 11, 1899 — Status of noncompetitive appointee.</p> <p>Rule 31 of the municipal civil service commission of the city of New York, promulgated July 11, 1809, providing that, where there is a vacancy in the competitive and no eligible list, a provisional appointment may in a case of urgency be made after a non-competitive examination, that the appointment shall continue for only one month, and that any such appointment, made before the rules of July 11, 1899, shall continue but a month longer, is a rule authorized by chapter 370 of the Laws of 1899, and applies to the Municipal Court of the city of New York and to its attendants; and, therefore, an attendant, appointed without competitive examination and before promulgation, is entitled at most to salary for only one month thereafter.</p> <p>Semble, that, under such conditions, the appointee could not receive successive temporary appointments to the same position.</p>

Application of the Syracuse and South Bay Railway Company for an order of this court, allowing it to construct its road across certain highways in the town of Cicero, made upon notice to the commissioner of highways of such town.

Action to recover the sum of $2,806.35, and interest for goods, wares and merchandise alleged to have been sold by the plaintiff to the defendant.

Application to confirm the findings of the sheriff’s jury upon a commission issued in the above-entitled proceeding, September 10, 1900.

<p>Benefit society•—When a member is bound by a change in the rules, relative to eligible beneficiaries, made after he joined the society.</p> <p>Where a member of a benefit order agrees while a member to comply with all its rules and requirements, a subsequent change in them, lawfully made by the grand lodge of the order and of which he was given notice, limiting beneficiaries in the future to a particular class consisting of members of the family, wife, blood relatives or dependents, excludes from any share in the fund, upon the death of the member, a beneficiary, who was lawfully such when originally designated, but who, as merely a friend of the member, was not within the class of beneficiaries as limited at the time of his death.</p> <p>The designation of the original beneficiary confers upon her no vested right in the fund.</p>

<p>1. Will — Separable illegal portions may be rejected.</p> <p>Separable portions of a will, illegally suspending the power of alienation, may be rejected and the remainder may stand.</p> <p>2. Trust — Title by implication.</p> <p>Trustees may take title to a trust estate by implication where title is necessary for the purposes of the trust.</p>

<p>liquor Tax Law — Exemption from consents not coni’err able upon an adjoining building of the certificate holder by his incorporating it into the building exempted.</p> <p>The owner of premises, occupied exclusively as a hotel on the 23d day of March, 1896, thereafter procured a liquor tax certificate for it, being exemptéd by statute from procuring the statutory consents. In 1899 after taking in a building, across an alley, acquired by him under a separate deed and which had been used as a hardware store, he applied to have the certificate transferred to the latter building and falsely stated in his application that there were no buildings occupied exclusively as dwellings within 200 feet of the hardware store.</p> <p>Held, that the privilege which attached to the hotel could not be made to inure to the benefit of the independent hardware store by incorporating the latter into the hotel, that the statement of the application was false as matter of fact, and that the certificate must, therefore, be forfeited.</p>

Action by tihe trustee in involuntary bankruptcy of the defendant Adolph Huffier to have declared fraudulent against the creditors of the bankrupt various payments aggregating $10,020.66, made by the bankrupt to the defendant Ralph Heim; or, failing in that, that $7,000 thereof he adjudged to have been so paid by way of unlawful preference under the bankruptcy law, in that the same was paid within four months prior to' .the filing of the petition in bankruptcy, and that the…

<p>1. Services — Substitution of another contract.</p> <p>Where a surgeon after agreeing to' perform a certain operation on the defendant’s wife for a sum agreed upon makes a further examination, revealing different conditions which make the proposed operation unnecessary, and require a different and much more serious-one, of all of which he informs the defendant who directs him to perform the new operation without anything being said about a charge as to compensation, he is entitled to recover what his services-are reasonably worth, as the agreement as to the first proposed operation and its price must be considered as superseded.</p> <p>2. Same — Evidence of attending surgeons as experts — Code C. B., § 834.</p> <p>The exclusion1, under section 834 of the Code of Civil Procedure, of the evidence of the plaintiff and of that of the surgeons who assisted Mm, regarding the nature and particulars of the patient’s malady or of the operation — leaving the ease without proof in that regard — does not require the exclusion of their evidence as experts as to the value of the plaintiff’s services.</p>

<p>Motion by petitioner for an alternative writ of mandamus.</p>

<p>Summons — Sufficiency of affidavit for publication, under Code of Procedure, § 135, subd. 4.</p> <p>An affidavit for an order to publish the summons in an action o£ foreclosure, in a case coming within the Code of Procedure, section 135, subd. 4, is sufficient where it states that the defendant cannot after due diligence be found within this State and “ that his residence is-unknown to this deponent, nor can the same -after reasonable diligence be ascertained by him, this deponent”.</p> <p>The attorney may -make the affidavit.</p>

<p>Consideration — Promise of a son to pay his mother’s debt.</p> <p>An agreement by which a son promises a woman, about to enter judgment against his mother, that he will render her certain services in consideration of her releasing the judgment has a valid consideration, not only in view of the son’s statutory obligation to support his mother, should she become destitute, but also because of his expectation of inheritance; and therefore, where the son has performed his part of the agreement, he may restrain the woman from enforcing the judgment.</p> <p>The mother could not maintain the action herself, but is a proper party plaintiff.</p>

<p>Application to vacate the order appointing a referee to hear and determine, in conjunction with the accounting proceeding of the permanent receiver pending before him, the services performed by the attorneys for the assignee and defendant Garrison, in various actions and proceedings concerning the company and its property, since the assignment, and the value of said services.</p>

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

<p>Costs — Extra allowance refused where there was no basis — Construction of Code C. P., § 3253.</p> <p>An extra allowance cannot he granted in an equitable action to reinstate a policy of life insurance and in which a defence has been interposed where there is nothing before the court, except the amount of the policy as that is not the “ value of the subject matter involved ”. The present or surrender value should be shown.</p> <p>In construing section 3253 of the Code of Civil Procedure authorizing an extra allowance “ where a defence has been interposed ” the word “ defence ” has come to be deemed equivalent to the word “ answer ” or “ demurrer ”.</p>

<p>Discovery — ¡Refused when sought to enable a defendant in libel to determine whether he has a defense — Laches.</p> <p>A defendant sued for libel by a life insurance company will not be granted an order of discovery of all its books and papers where the evident purpose is to enable him to determine whether he has a defense, and particularly where he waits until the ease has been placed on the preferred calendar and has been reached for trial.</p>

<p>Attachment — Not leviable upon surplus income of a trust fund.</p> <p>An attachment cannot be levied on the income of a trust fund, nor can a creditor reach the surplus thereof, over and above the proper support of the beneficiary, except in equity and after all legal remedies have been exhausted.</p>

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

<p>Application to vacate .am. execution.</p>

<p>Negligence — A recovery entitling the plaintiff to more than nominal v damages.</p> <p>Where an accident to the plaintiff, caused by the negligence oí the defendants, has resulted in his losing his thumb and in his incurring expenses for medical attendance, a verdict in his favor for six cents is unjustifiable and insufficient, as he is entitled to substantial damages.</p>

<p>Action of ejectment.</p>

<p>Trial — Refusal of court to accept, and have noted, additional requests of counsel is a fatal error.</p> <p>The refusal of a trial justice to accept additional requests of counsel for the defendant, or to have them noted by the stenographer, when so requested, constitutes a fatal error in the conduct of the trial. Minster v. Benoliel, 32 Mise. Rep. 630, reversed.</p>

<p>Appeal by the defendant from a judgment of the Municipal Oourt of the city of Meiw York, borough of Manhattan, rendered in favor of the plaintiffs upon a default.</p> <p>The nature of the action and material facts are stated in the opinion.</p>

Appeal by the defendant from, a judgment^ of the Municipal Court of the city of blew1 York, borough of The Bronx, rendered in favor of the plaintiff upon a trial had before the court and a jury.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered' in favor of the plaintiff upon a trial had before the court and a jury. The action is brought by the drawer of two checks to recover back the money paid out upon them, it being charged that the indorsements were forged.

<p>Interest — When recoverable on past due coupons of a bond.</p> <p>Interest is not collectible upon past due coupons while they are held by the owner of the bond which they accompany, and, although an exception to the rule exists where the coupons have become separate and independent instruments, interest will not be allowed unless the claimant pleads and proves circumstances which will bring the case within the exception.</p>

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

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

<p>Appeal from a judgment in favor of the defendant, rendered in the Municipal Cburt of the city of Hew York, fifth district, borough of Manhattan.</p>

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

<p>Sale — Of boilers for heating purposes upon a condition precedent of payment — Vendor when not estopped by parting with possession ■—Caveat emptor.</p> <p>Where a manufacturer of boilers for 'heating purposes sells them on thirty days’ time to dealers in that class of merchandise, for delivery in certain buildings, by a contract of sale executed and delivered in duplicate, and upon condition that title shall not pass until full payment of the price, and the vendees thereafter place them in the buildings as contractors without knowledge upon the part of the manufacturer that they are not themselves owners of the buildings, a mesne purchaser of the buildings, although having no notice of the said condition of sale, cannot hold the boilers where the same have not become fixtures, as against the unpaid manufacturer and this because he has not estopped himself from reclaiming them.</p> <p>The rule that where one of two innocent parties must lose, he should lose who made the injury possible, does not apply to such a state of facts.</p> <p>As the manufacturer never parted with his title, the doctrine of caveat emptor controls.</p>

<p>Appeal from a judgment in favor of the plaintiff, in an action for goods sold.</p>

<p>Appeal from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial. The action was brought under Oode Civ. Pro., § 1669, for a forcible entry and detainer.</p>

<p>Appeal from a judgment entered on a verdict in favor of the plaintiff, and from an order denying a motion for a new trial.</p>

<p>Demurrer to complaint for insufficiency and for lack of jurisdiction of the subject.</p>

<p>Bills and notes — Allegations insufficient to excuse demand and notice of dishonor upon a note of a “ practically defunct ” corporation which had secured the indorser,</p> <p>A complaint against the representatives of the indorser of a promissory note made by a foreign corporation, in order to excuse a failure to demand payment of the maker and give notice of dishonor to the said indorser, alleged that at the time of the making of the note the maker transferred all its property to a trustee as collateral security for the payment of the note and also to effectually secure and indemnify the said indorser for or on account of any assignment, Indorsement or guaranty of said note. It also alleged that the maker then became “ practically defunct ”, On demurrer,</p> <p>Held, that as there was no allegation that the indorser had a right upon paying the note to have recourse to the fund at once, and as it was not shown that the maker was actually out of existence, the failure to make demand and give notice of dishonor was not excused.</p>

<p>The nature of the action and the material facts are stated in the opinion.</p>

<p>Corporation — Annual report defective as to the form of stating the assets.</p> <p>An annual report of a corporation stating that its assets, on Jan. 1, 1896, “ at least did not exceed in amount the sum of $1,400,000 ” is not a compliance with the Stock Corporation Law (L. 1892, ch. 688, § 30) requiring such a report to state “ The amount of its assets, or an amount winch its assets at least equal”; the statement is too vague and elastic, and therefore the report does not protect the directors ■from personal liability for the debts of the corporation.</p>

<p>Libel — Publication that a place was a resort for anarchists — Special damages insufficiently alleged — Demurrer.</p> <p>A publication that the plaintiff’s restaurant and boarding-house was a resort for anarchists, that bis place of business was a resort favored by them, that they were in the habit of meeting there, that a prominent anarchist was a guest of honor there, and the publication of a picture of the place with an inscription “ Resort favored by the New York anarchists ” must, on demurrer to the complaint, not admitting that the matter was published of the plaintiff, be deemed a libel upon the place and not upon the plaintiff and therefore he must allege and prove special damages.</p> <p>An allegation that by reason of the publication the plaintiff “ was held up to public scandal, ridicule, contumely and disgrace, and was thereby caused to be shunned by Ms patrons, neighbors, friends and fellow-citizens, as a hotel, restaurant and boarding house proprietor, all to his damage in the sum of $50,000 ”, is too general to constitute a sufficient allegation of special damage.</p>

<p>Action to foreclose a mechanic’s lien. The defendant, the Mapes Reeves Construction Company as party of the second part, and the defendant, the American Bonding & Trust Company as party of the third part, entered into a written contract with the defendant the board of education of the City of Hew York to do repairs and make additions to a school house for $44,800, payable in eleven installments as the work progressed. The said construction company is called principal and the bonding company surety therein, and both bind themselves together in. the same clause and words that the former will do the work. The said contractor company went into dissolution proceedings in the Supreme Court and defaulted on the said contract on November 13th, 1899, which was after the 5th installment had been paid. The building committee of the board of education gave to the said contractor and surety a notice of three days required by the contract that unless the work proceeded the contract would be forfeited. The surety thereupon offered to complete the contract and the said committee assented. The plaintiffs’ lien for work and material was filed after payment of the said 5th installment and on the same day that the contractor stopped work. The 6th installment was not yet earned. Other lienors and the city of New York are also parties defendant. Other facts are stated in the opinion.</p>

<p>Demueeees to four affirmative defenses set up in the amended answer of defendants to plaintiff’s amended complaint.</p>

<p>Easement of drainage — It exists by implied grant when it is continuous and apparent.</p> <p>Where the owner of three adjoining houses constructs one common sewer for all and they are subsequently conveyed and reconveyed by deeds which state nothing as to a right of drainage, an immediate grantee of one of the houses, who has since used the sewer continuously, has a right to continue such use, and a mesne grantee of the other two houses will be restrained from cutting off such use, the nature of the drainage of the houses being apparent to an expert.</p>

<p>Parties — When entitled to have their names stricken from the summons — Code C. P., § 723 — Collateral attack.</p> <p>■Persons who have been made parties to an action to construe a will merely because they were trustees under it, are entitled to have their names stricken from the summons and pleadings upon acceptance by the Supreme Court of their resignations as trustees, and that court may grant the application not only by virtue of its inherent power but also under section 723 of the Code of Civil Procedure.</p> <p>An order accepting such resignations cannot be attacked collaterally and can be vacated only in the proceeding in which it was made.</p>

<p>New York city — Condemnation — landowners are not entitled to produce further testimony on the hearing of objections to the abstract of estimate — Viewing premises.</p> <p>Commissioners of estimate and apportionment of the city of New York may, but are not required to, allow landowners affected by the proceeding to produce further testimony as to the value of their property at the time fixed by the commissioners for the hearing of objections to their abstract of estimate.</p> <p>-Such commissioners have a right to act upon information derived-in part froín a personal view of the premises.</p>

<p>Motion by the plaintiff to set aside the verdict of the jury in his favor for six cents’ damages, and for a new trial, npon the ground, among others, that the damages are insufficient.</p> <p>Action to recover damages for a personal injury claimed to have been sustained, in consequence of the defendant’s negligence.</p>

<p>Motion to vacate an attachment..</p>

<p>Tax — Separate trusts in personalty, when held by the same trustees, may be assessed together — Failure to name one trustee.</p> <p>Where a will creates three separate trusts in personalty and appoints the same three trustees for all of them and they are all residents of the same city, a single assessment levied for the sum total of the trusts, and against only two of the trustees, is not in violation of the Tax Law.</p>

<p>1. Alienage — Foreign Statute of Frauds must foe pleaded — Demurrer.</p> <p>Where a plaintiff sues testamentary trustees of a decedent for an unpaid balance alleged to be due him on an oral contract made by him with the decedent for the sale of land located in another State, allegations of the trustees, to the effect that their testator was, as the plaintiff knew, disqualified by alienage from holding the land and that consequently he organized a corporation to hold it, and that the payments he had made the plaintiff on account were in fact for the land and on behalf of the corporation, present no defense.</p> <p>The State alone can question the right of an alien to hold land.</p> <p>A foreign Statute of Frauds must be pleaded to be made available.</p> <p>2. Attachment — Property of executors cannot foe attached as that of trustees.</p> <p>Where a plaintiff sues the defendants as trustees, he cannot attach a fund, in the hands of third parties in this State, which belongs to the defendants as executors only, and a defense setting up these facts is not demurrable.</p> <p>3. Jurisdiction in rem, when not acquired.</p> <p>Where nonresident trustees of a deceased alien, who have as such no property in this State, are served by publication only and do not appear generally, a defense denying jurisdiction is not demurrable as there is no jurisdiction in rem.</p> <p>4. When foreign Statute of Limitations may be pleaded.</p> <p>Where a nonresident brings an action against other nonresidents upon a cause of action which does not involve the title to or possession of real property in this State, the defendants may, under Code C. P., § 390, plead in bar the Statute of Limitations of the country of their residence.</p>

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

<p>Grift of unadministered assets, illegal.</p> <p>Where the alleged sole next of kin of a decedent procures himself to be appointed her administrator, deposits her estate with a trust company to be paid out only upon checks countersigned by the • surety upon his bond, and dies without accounting, an alleged donee under him, causa mortis, of the fund can maintain no action against the trust company to recover it, as it must be deemed to be still subject to the jurisdiction of the Surrogate’s Court and to remain so until it has been duly administered upon.</p>

<p>Jurisdiction — Illegal amendment of summons by substituting a new surname for the defendant — Remedy.</p> <p>Where a justice of the peace issues a summons against William Mayville, the same not being intended as a fictitious name, and the latter makes no appearance on the return day either in person or by attorney, the justice has no power on that day and before judgment to amend the summons so as to read William Navel, as being the correct name of the defendant, and enter judgment against William Navel.</p> <p>Where the void judgment has been docketed in the county clerk’s office, the defendant may attack it by a motion to vacate and need not resort to an action.</p>

Issues of law, arising upon three demurrers, interposed by plaintiff, to three defenses contained in defendant’s answer.

<p>■ Action for slander. Motion for a preference and also motion for a rehearing.</p>

<p>Action upon a policy of life insurance.</p>

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

<p>Action for an accounting. Demurrers to complaint.</p>

<p>Action brought to determine the title to five savings bank deposits made by Mary S. Miller, in trust for William R Miller.</p>

<p>Cebtiobabi to review action of tax commissioners.</p>

<p>Hedge — Redemption by second pledgee — Bona fide purchaser of patents.</p> <p>Where a patentee pledges his patents for advances made him by one who intended promoting the patents, and they proved to be failures, and the pledgee thereupon refused to make any further advances, the court permitted a second pledgee for value, under the patentee, to acquire the patents ■ upon repaying the first pledgee his advances.</p> <p>Although assignments of patents have not been recorded within three months of their date, as required by TJ. S. R. S., § 4898, a subsequent purchaser of them cannot be deemed oné “ for a valuable consideration, without notice ”, where he had had notice of the prior assignments and had paid no new consideration for his own.</p>

<p>Demurrers to complaint.</p>

<p>Attachment — Affidavit — Positive averments where actual knowledge or information was impossible — Selling, as pure oxygen, a poisonous gas.</p> <p>The rule in the first judicial department is that no implication that an affiant had personal knowledge arises from an unqualified allegation of facts.</p> <p>The fact, that an affidavit to procure an attachment against a foreign corporation in an action for damages for selling to the plaintiff, through intermediaries, as pure oxygen, a tank of gas which poisoned her. states definitely the various hands through which the tank had passed before it reached her immediate vendor, affords no sufficient proof thereof where it is apparent that the affiant had no actual knowledge or information of the facts alleged.</p> <p>An essential element of such an action is the putting of the gas on the market and therefore the affidavit must allege it.</p>

Bergman as for a contempt of court, for the making of a false affidavit as to his sufficiency as a surety upon a bond given to discharge a mechanic’s lien.

<p>Discovery — Cannot be invoked to inspect real property — Code C. p., §§ 17, 803 — General Buies of Practice No. 14, subd. 3.</p> <p>The remedy of discovery and inspection cannot be invoked to compel the defendants in an action to permit the plaintiff to enter upon and examine a part of their premises.</p> <p>Rule 14, subd. 3 of the General Rules of Practice has no force in so far as it may seem to permit discovery and inspection of any “ property ” which is not evidence in the ease.</p>

<p>Costs — Attach to any recovery in an action brought under Code C. 3?., § 1903 for causing death by negligence — Code C. F., §§ 3863, subd. 3, 3338, subd. 3.</p> <p>Where, in an action brought under Code C. P., § 1902, to recover damages for the death of a decedent caused by the negligence of the defendant, the plaintiff recovers six cents damages, she is entitled to tax a full bill of costs.</p>

<p>Bills and notes — Consideration for a discount for an indorser — Bank president’s naked promise to him, that he shall not be liable, is void.</p> <p>Where the indorser of a renewal note procures its discount by a bank and with the proceeds voluntarily pays another similar note held by a third party and upon which he is an indorser, a consideration moves to the indorser which enables the bank to recover of him upon the renewal note.</p> <p>The president of a bank has no power to make a naked promise to the indorser of a note, which he is about to discount for the bank, that the indorser shall not be liable to the bank upon it.</p>

<p>Appeal from a judgment dismissing a complaint on the ground, first, that the court has not jurisdiction of the cause of action set forth in the complaint, and second, that the complaint does not state facts sufficient to constitute a cause of action.</p>

<p>Appeal from an order granting the plaintiff leave to discontinue this action, without costs.</p>

<p>Motion by defendant for a new trial.</p>

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

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

<p>Appeal from a determination of the General Term of the City Oourt of the city of Few York, affirming a judgment of the Trial Term, rendered on the verdict of a jury in favor of the plaintiff.</p>

<p>Appeal from a judgment of affirmance in favor of the defendant, rendered by the General Term of the City Court of the city of New York.</p>

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

<p>(Appeal from a judgment in favor of the defendant, rendered in the Municipal Court of the city of Hew York, ninth district, borough of Manhattan.</p>

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

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

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

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

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

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

<p>Appeal by the tenant from a final order made by the Municipal Court of the city of New York, borough of Manhattan, awarding to the landlord the possession of certain premises for nonpayment of rent.</p>

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

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

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

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

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

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

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

Appeal by the plaintiff from a judgment in his favor of $115.22 damages and costs, by the Municipal Court of the city of Hew York, borough of Manhattan, after a trial had before the court without a jury.

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

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

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

Appeal by the defendants from a judgment of the Municipal Court, borough of Manhattan, rendered in favor of the plaintiff after a trial had before the court without a jury.

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

<p>Appeal from a judgment of the Municipal Court of the city of blew York, borough of Manhattan, rendered in favor of the plaintiff upon a trial had before the court, without a jury.</p> <p>Action for work, labor and services performed, and for material furnished.</p>

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

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

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a final order in summary proceedings of the Municipal Court of the city of New York, sixth district, borough of Manhattan.</p>

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

<p>Appeal from an order of the General Term of the City Court of the city of New York, affirming an order dismissing the complaint as to the defendant De Azevedo.</p>

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

<p>Appeal from an order of the General Term of the City Court of the city of ETew York, and from a judgment entered thereon affirming a judgment in favor of the plaintiff entered upon the verdict of a jury and affirming an order denying defendant’s motion for a new trial.</p>

Appeax from an order of the General Term of the City Court of the city of New York, and from a judgment, entered thereon, affirming a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and affirming an order denying defendants’ motion for a new trial.

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

<p>Appeal from an order of the General Term of the City Court of the city of Eew York.</p>

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

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

<p>Appeal from a judgment and order of the General Term of the City Court of the city of Eew York, affirming a judgment of the City Court in favor of the plaintiff.</p>

<p>Appeal from an order of the General Term of the City Court of the city of Hew York, and from a judgment entered thereon, affirming a judgment in favor of the plaintiff, entered upon -the verdict of a jury and affirming an order denying defendants’ motion for a new trial.</p>

<p>Appeal from an order of the General Term of the City Court of the city of Hew York, and from a judgment entered thereon, affirming a judgment of dismissal of the complaint.</p>

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

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

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

<p>Appeal from a judgment in favor of the plaintiff, rendered in the Municipal O'ourt of the city of Hew York, tenth district, borough of Manhattan.</p>

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

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

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

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

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

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

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

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

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

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

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

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

<p>Appeal by the defendant from a judgment of the General Term of the City Court of the city of New York, affirming a judgment of the Trial Term of that court, in favor of the plaintiff, after a trial had before the court and a jury.</p>

<p>Appeal by the defendant from a judgment, rendered by the Municipal Court of the city of Rew York, borough of Manhattan, in each of these actions, which were tried together, in favor of the plaintiffs, upon a trial had before the court without a jury.</p>

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

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

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

<p>Appeal from a judgment in favor of the plaintiff, and from an order denying the defendants’ motion for a new trial, made on the minutes.</p>

<p>Appeax from a judgment in favor of the plaintiff, and from an order denying the defendant’s motion for a new trial.</p>

<p>Appeal from a judgment in favor of the plaintiff, and from an order denying the defendant’s motion for a new'trial.</p>

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

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

<p>Appeal from a judgment entered on a verdict in favor of the plaintiff and from an order denying a motion for a .new trial.</p>

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

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

<p>Appeal from an order denying a motion made on behalf of William J. Fryer, by his attorney, John J. Gleason, for leave to withdraw a notice of appearance for the defendant, alleged to have been served by mistake by said (Gleason) to vacate the judgment roll herein, and to vacate the service of the summons herein.</p>

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

<p>Appeal from judgment entered upon verdict of a jury, under direction of the court.</p>

<p>Appeal from judgment entered on a verdict directed by the court.</p>

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

<p>Appeal from a judgment entered npon a verdict in favor of the plaintiff and from an order denying a motion for a new trial.</p>

.Appeal from a judgment entered upon a verdict directed by the court in favor of the plaintiff and from an order denying a motion for a new trial.

<p>Appeal from a judgment entered on a verdict directed by the court.</p>

The defendant was the general assignee of William J. and Peter Bagot, a firm, to whom the goods in suit, consisting of nine capes, had been consigned by the plaintiffs on memorandum, the goods or their value to be returned on ¡November 1, 1896.

<p>Appeal from an order granting the defendant a new trial after a verdict in favor of the plaintiffs.</p>

The action was by the plaintiff, as assignee of Sarah Ufland, as upon an account stated between her and the defendant. Sarah Ufland had placed goods on sale with the defendant, who was to render weekly statements to, and pay on demand the balance due to Sarah Ufland. The defendant having failed to do so, Sarah Ufland removed her goods.

57, in favor of the plaintiff and against the defendant on a verdict rendered by a jury, and from an order denying a motion for a new trial.

<p>Appeal from a judgment entered on a verdict, rendered by the jury, and from an order denying a motion for a new trial made on the minutes.</p>

<p>Appeal from a judgment, entered on a verdict, rendered by a jury, and from an order denying the defendant’s motion for a new trial on the minutes.</p>

<p>Appeal from order referring this action to Harry W. Bookstaver to hear and determine the same.</p>

<p>Appeal from a judgment, entered upon a verdict in favor of the plaintiff, and from an order denying a motion far a new trial.</p>

<p>Appeal from a judgment, after a trial before the court without a jury, in favor of the defendant, dismissing the complaint, with costs.</p>