Volume 33 — New York Supplement

<p>At chambers. Defendant demurs to the complaint. Sustained.</p>

Summary proceeding by Cora D. Wyckoff and others against Robert Frommer to recover possession of land. From a final order in favor of plaintiffs, defendant appeals.

Action by Clarita Dovale against Bernard L. Ackerman. A verdict was rendered in favor of defendant, and plaintiff moves for a new trial on the minutes.

<p>Landlord and Tenant—Action for Rent—Eviction.</p> <p>The eviction of defendant from premises as under-tenant of plaintiff, who had been dispossessed, is a good defense to an action for rent accruing after eviction.</p>

Summary proceeding by Augusta E. George against William Trevellyn to recover possession of real estate. From a final order in favor of plaintiff entered on a verdict rendered by direction of the court, defendant appeals.

Action by Grace Sherwood against William H. Crane. From a judgment of the city court (29 N. Y. Supp. 1149) affirming a judgment entered on a verdict in favor of plaintiff, and an order denying a motion for a new trial, defendant appeals.

Action by Helen K. Cree against John I. D. Bristol. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Harriet E. Burke against Terry J. Tindale for rent. From a judgment entered on a verdict in favor of plaintiff, directed by the court, defendant appeals.

Action by Mary 0. Bernard against the United Life Insurance Association on a policy of life insurance. The answers in the application were made part of the policy and warranties, whether written by the applicant or not; and plaintiff agreed that “the person taking this application shall be the agent of the applicant.” From a judgment of the city court (32 FT. Y. Supp. 223) affirming a judgment entered on a dismissal of the complaint, plaintiff appeals.

<p>1. Discoveby—Defects in Application—When Cubed by Oedeh.</p> <p>Too great generality in an application for inspection of books is cured by particularizing the books in the order.</p> <p>3. Same—Demand pop. Judgment.</p> <p>In an action at law a discovery is allowable in order to enable plaintiff to ascertain the amount for which he should demand judgment.</p> <p>(Syllabus by the Court)</p>

Action by Frederick Hardegg against Willards, a corporation, for injury to a picture. A judgment was rendered in favor of plaintiff, and defendant appeals.

Action by Charles Kranichfelt against John Slattery. From a judgment of the city court (29 F. Y. Supp. 687) affirming a judgment entered on a verdict in favor of plaintiff, and an order denying a motion for a new trial, defendant appeals.

Action by James Joseph Richards against George A. Hayes to recover for personal injuries caused by the alleged insecure, improper, and unskillful construction of a scaffolding on which plain-, tiff was working. From a judgment entered on a verdict in favor ■of plaintiff, and from an order denying a motion for a new trial, ■defendant appeals.

Action by Henry M. Robertson and George T. Sinclair against Peter Hay. From an order of the city court affirming an order resettling an order, and from an order affirming an order imposing a penalty for violating an order in supplementary proceedings, defendant appeals.

Application by Michael H. Gillespie to compel John Mulholland to pay over money collected by him. From an order of the city court (28 N. Y. Supp. 754) affirming an order directing a reference, defendant appeals.

Action by Sarah Frankfort against the Manhattan Railway Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Ralph Henry against Joseph Agostini and others. From a judgment of the city court (31 N. Y. Supp. 1128) affirming a judgment in favor of plaintiff, defendants appeal.

Action by John H. Wiegmann and another against Ichitaro Morimura and others to recover the value of a stock of goods levied on by a constable under an attachment issued at the suit of defendants against the firm of Curtus & Mayer, who had previously conveyed the property to plaintiff by a bill of sale. From a judgment of the city court (29 2í. Y. Supp. 1151) affirming a judgment dismissing the complaint, plaintiffs appeal.

Action by Charles C. Schildwachter against the mayor, etc., of New York, for rent. From an order directing payment to plaintiff of the claim in suit, without interest, and a discontinuance of the action, without costs, plaintiff appeals.

Action by Thomas Nevins against the Fidelity & Casualty Company. From an order granting the motion of Herbert Lea Mason to be made a party to the action, plaintiff appeals.

Action by Max Lansburgh against Thomas Walsh and others to recover on a quantum meruit for the sale and delivery of timber. From a judgment of the city court (28 N. Y. Supp. 1149) affirming a judgment entered on a verdict in favor of plaintiff, defendants-appeal.

Action by George M. Church and another against Annie C. Haeger. A temporary injunction was granted, and plaintiffs now move to continue the same, while defendant makes a cross motion to vacate it. Injunction continued on condition.

<p>Witness—Impeachment—Form oe Question.</p> <p>A witness for plaintiff, on cross-examination, denied that she had made a certain statement to one S. contradictory to her testimony. Afterwards S. was called by defendant, and, after stating the time and place of a certain conversation between such witness and herself, plaintiff not being present, she was asked to state “what that conversation was.” Held, that the testimony was properly excluded, in that-it called for the whole conversation, and not merely for so much as was necessary to prove the contradictory statement.</p>

<p>Counterclaim—Affirmance against Receiver.</p> <p>In an action by a receiver of a foreign corporation to recover a debt due it, a note made by the corporation is not a claim “against plaintiff or the person whom he represents,” so as to be available as a set-off, under Code Civ. Proc. §§ 501, 502. 30 N. Y. Supp. 263, 1132, affirmed.</p>

Action by John Howard against John A. Holler. From an order of the city court (31 N. Y. Supp. 1129) affirming an order allowing an amendment and imposing costs, plaintiff appeals.

Action by Thomas J. Canavan, an infant, by Michael Canavan, his guardian ad litem, against Robert Van R. Stuyvesant and another, for personal injuries. From a judgment entered on a verdict in favor of plaintiff, defendants appeal.

<p>Appeal—Reargument—Error in Record.</p> <p>A motion for reargument on the ground that the statement of facts in the papers on appéal is erroneous will be denied where the error will not affect the decision.</p>

Action by Isaac Rouse and another against the Printers’ Exchange Company. From a judgment in favor of plaintiffs for §70.50, damages and costs, defendant appeals.

<p>Appeal from Ninth district court.</p> <p>Action by John Brown against Patrick Fox. From a judgment in favor of defendant, rendered by the justice without a jury, plaintiff appeals.</p>

Action by James Reilly against Hiram Merritt, impleaded, etc., for trespass. From a judgment in favor of plaintiff for $25 damages, and costs, defendant appeals.

Action by Alvin M. Gage and others against Gustav Lippman and others to cancel a lease. There was a judgment in favor of plaintiffs, and defendants appeal. For decision on motion to dismiss appeal, see 31 N. Y. Supp. 1127. Amended.

<p>Settlement of order reversing an order denying a motion for a new trial. 31 N. Y. Supp. 1009.</p>

Action by Hugh J. Grant, as receiver of the St. Nicholas Bank ■of New York, against Mary J. MacNutt. There was a verdict in favor of plaintiff, and defendant moves for a new trial, by exceptions ordered to be heard in the first instance.

Action by the Neuchatel Asphalte Company, Limited, against the mayor, aldermen, and commonalty of the city of New York, to-foreclose a mechanic’s lien. The complaint was dismissed (30 N. Y. Supp. 252), and plaintiff appeals. Modified.

Action by Kate O’Brien against the Prudential Insurance Company of America on two life insurance policies. From a judgment entered on the verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by James B. Smith against the Ingersoll-Sergeant Rock Drill Company. A judgment was rendered granting an injunction to plaintiff of six cents damages, and costs. Plaintiff appeals from all the judgment except so much thereof as awarded costs, and defendant appeals from the whole judgment.

Action by Bernard Sheridan against the mayor, etc., of city of New York for personal injuries. There was a verdict in favor of plaintiff, and defendant moves for a new trial on exceptions ordered to be heard at general term in the first instance.

Action by David Boyd against Robert Boyd, Elise Boyd, Joseph J. Carberry, and John B. Sexton, sheriff of the city and county of New York.

Action by Olga J. C. Soltau, as administratrix of Robert Soltau, deceased, against the Goodyear Vulcanite Company. There was a verdict in-favor of plaintiff, and defendant moves for a new trial, on exceptions ordered to be heard at general term in the first instance.

Action by the Skinner Engine Company against the Old Staten Island Dyeing Establishment, on a promissory note made by defendant to the order of William Barnhurst, for $558.90, dated July 18, 1893, at 90 days, indorsed and delivered before maturity by Barnhurst to plaintiff for a valuable consideration, as alleged. Defendant denied the delivery, and set up an affirmative defense of failure of consideration.

Action by Ralph P. Mosher and another against the Providence Washington Insurance Company. From a judgment, of the city court (30 N. Y. Supp. 814) affirming a judgment entered on the verdict directed by the court in favor of plaintiffs, defendant appeals.

Action by Henry C. L. Peetsch against William H. Quinn. From an order of the city court (31 N. Y. Supp. 1131) affirming an order denying plaintiff’s motion that Michael H. Curran, defendant’s attorney, be directed to pay the cost of the action as the person beneficially interested therein, plaintiff appeals.

Action by Marshall Barber and another against Charles H. Rutherford and another. From a judgment of the city court (30 N. Y. Supp. 1129) affirming a judgment entered on a verdict directed in favor of plaintiffs, defendants appeal.

Action by Ernest A. Des Marets against H. Ward Leonard & Co., a foreign corporation, for commissions claimed for procuring a contract to install an electric plant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Evidence—Admissions in Pleading.</p> <p>In an action against a carrier for injuries to fruit while in transit, an averment in the answer that defendant “is a common carrier engaged in the business of forwarding and transporting goods, and that it agrees to carry goods received by it for transportation in a safe and careful manner,” merely states the legal duty of a carrier, and is not an admission of an allegation in the complaint that defendant agreed to provide suitable care and conveyances for the proper and safe transportation of the goods.</p>

<p>Appeal from Fourth district court.</p> <p>. Action by Abraham Ellenstein against Jacob Klee and another. There was a judgment in favor of defendants, and plaintiff appeals.</p>

Action by Alexander Kenney against Perrin H. Sumner. There was a judgment in favor of plaintiff, and defendant appeals. Plaintiff moves to dismiss the appeal.

<p>Appeal from” special term, Monroe county.</p> <p>Action to dissolve the Flour City Life Association. Lydia E. Post and others filed claims against the association. From an order directing payment of the claims in question the receiver of said association appeals.</p>

<p>1. Dower—Partnership Property.</p> <p>Real estate owned by a partnership will be applied to the Arm debts, before the widow of a partner is entitled to dower therein.</p> <p>2. Deed-Knowledge op Contents.</p> <p>Where the only issue is as to whether plaintiff acknowledged and delivered a deed of her dower right in certain land, an instruction that it made no difference whether plaintiff knew that the instrument was a deed is proper.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Eugenia Stowers against Thomas Gilbert. A judgment was rendered in favor of plaintiff, and defendant appeals. Modified.</p>

<p>Appeal from special term, Allegany county.</p> <p>Action by Éssa Connolly against Fred L. Newton. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals.</p>

<p>Appeal from Niagara county court.</p> <p>Action by Henry M. Davis against Benjamin Aikin. From the judgment of the county court reversing a judgment of the justice’s court, plaintiff appeals.</p>

<p>Appeal from special term, Seneca county.</p> <p>Action by Ellen Soper against Elmer Halsey, impleaded, etc. There was a judgment in favor of plaintiff, and defendant appeals. Modified.</p>

Action by Caroline Wasmuth against Edward H. Butler. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

<p>Appeal from district court, Erie county.</p> <p>Action by Jeremiah F. Sheehan against Israel Golden and another. From a judgment dismissing the complaint entered on a verdict directed by the court in favor of defendants, defendant Golden appeals.</p>

Action by Thomas J. Reynolds against the Empire Lumber Company. From a judgment dismissing the complaint, and for a counter claim in favor of defendant of $21.06 and interest, plaintiff appeals.

Action by George B. Miller against the Union Central Life Insurance Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals.

Claim by Emma C. Lee against Emeline Lee, as administratrix of John S. Lee, deceased. From an order allowing claimant to amend or supplement her claim, defendant appeals.

<p>Release and Dischaege—Binding Effect—Pleading and Pboof.</p> <p>Where an answer alleged that plaintiff, before the action was brought, released all causes of action which he might have against defendant, including the cause of action sued on, a reply that such release related to a certain cause of action other than the one in suit, of which plaintiff was ignorant at the time, is not sufficient to limit the legal effect of the release, since plaintiff, for that purpose, must show either mutual mistake, or mistake on his part and fraud on the part of defendant.</p>

Action by John B. Howe against the city of Rochester. From a judgment of the county court reversing a judgment of the municipal court, plaintiff appeals.

Action by John Van Voorhis against Hawley E. Webster, Ella A. Webster, and Hannah F. Brown. From an order denying a motion to vacate a warrant of attachment, Charles E. Bostwick, as receiver of the firm of H. E. Webster & Co., appeals.

<p>1. Adverse Possession—Evidence.</p> <p>One who claims title by adverse possession has the burden of proving that he entered into and was in the actual possession of the premises under his claim of title.</p> <p>2. Same—Color of Title.</p> <p>Where an entry is made under color of title, the possession will be deemed adverse, though the supposed title is groundless, and a grantee so entering is not required to inquire into the nature of his grantor’s title.</p>

Action by Mary J. Linneman against Charles E. Bieber and Mary J. Bieber to foreclose a mechanic’s lien. There was a judgment in favor of plaintiff, and defendants appeal.

Action by Simeon J. Weaver and others against Henry H. Brydges. From an order adjudging! defendant guilty of contempt, in failing to appear before the referee to be examined touching his property, defendant appeals.

<p>Action by William Guilford against Morris C. Mulkin. A verdict was directed in favor of plaintiff, and defendant moves for a new trial on exceptions ordered to be heard at general term in the first instance.</p>

<p>Executors and Administrators—Accountino—Allowance eor Counsel Fees.</p> <p>An administrator will not be allowed for counsel fees unless he has actually paid them.</p>

Claim by Charles S. Ellis against Mary E. Filón and others, which was referred under the statute. There was a judgment in favor of plaintiff, and defendants appeal.

Proceeding to widen South St. Paul street on the west side, north of and adjoining Court street, in the city of Rochester. From the report of the commissioners, and from an order of the county court denying a motion to set aside the report, the landowners appeal. Modified.

Action by Joseph Schlitz Brewing Company against Henry J. Ester and Christiana A. Ester. The complaint was dismissed on the merits, and plaintiff appeals.

<p>Carriers op Goods—Delay—Repairing Cars.</p> <p>Where defendant railroad company received from a connecting line, with which it had a traffic arrangement, perishable goods, and detained them in the cars in which they were received until repairs ordered by defendant’s inspector were made, during which time the goods spoiled, defendant is liable.</p>

<p>Wills—Execution—Codicil.</p> <p>After the scrivener prepared the will, he read it to testator, who said that he intended by the tenth clause, instead of giving the residue to his “children” living at the time of his death, to give it to his living “sons.” Thereupon the scrivener appended what he called a .“codicil” to carry out testator’s wishes, and the paper was signed by the testator and the attesting witnesses at the end as it was originally written, and also at the end of the codicil. The subscribing witness testified that the codicil was written in the presence of testator, and that testator was asked if the paper (the will and codicil) was his will, and he said it was. Testator fully understood the whole transaction. Held, that the will and codicil were one paper, the execution of which constituted one transaction.</p>

<p>Trustees—Liability for Acts of Cotrustee.</p> <p>Testator gave his residuary estate to his children in equal shares, and directed his executors, who were his sols, to invest the shares of his two daughters, and pay them the interest during their lives. The will also provided that L., one of the executors, might purchase testator’s farm at a certain price. L. elected to purchase the farm, and it was conveyed to him by the other executor, the trust fund for the benefit of the two daughters being treated as part of the purchase money, but no mortgage was given to secure it. Afterwards L. mortgaged the farm, and on foreclosure the surplus was less than the trust fund. Seld, that G., the other trustee, was liable for the deficiency caused by the mortgage.</p>

Action by Abram Shaver against Nelson V. Eldred. From an order modifying and settling defendant’s bill of costs as taxed by the clerk of the county, both parties appeal. Modified.

Action by Maria A. Brinkerkoff against Amarilla B. Sartwell, as executrix of tke will of Henry J. Sartwell, deceased, and otkers, to rescind a sale of skares of stock, and to compel a transfer of said skares. Tke complaint was dismissed on tke merits, and plaintiff appeals.

Certiorari by William H. Burby against the common council of the city of Auburn and others to review the determination of defendants in removing relator from the office of city attorney.

Action by Arrowitz Wolfe and another against Edward O. Horn and others to foreclose a mechanic’s lien. There was a judgment in favor of plaintiffs, and defendants appeal.

Action by Elwood S. Hand against Francis Callaghan. There was a judgment in favor of plaintiff, and defendant appeals. Plaintiff moves to dismiss the appeal.

Action by Walter S. Drake against Weinman & Company, a corporation. From an order denying a motion to vacate an order for the examination before trial of certain of defendant’s officers, defendant appeals.

Action by Walter S. Drake against the Thompson & Deer Company. From an order denying a motion to vacate an order for the examination before trial of certain of defendant’s officers, defendant appeals.

Proceeding for the incorporation of a portion of the town of Shandaken, in the county of Ulster, as the village of Pine Hill. The certificate and other papers relating to the election were duly filed, and one of the electors appeals. Election set aside.

Action by Edward L. Oppenheim and others against James M. Waterbury, G-. Weaver Loper, and Matthew Griffin to recover the purchase price of certain stocks, and plaintiffs’ commissions on the purchase price thereof. There was a judgment in favor of plaintiffs, and defendants Waterbury and Loper appeal.

Action by Myer S. Isaacs, as assignee for the benefit of creditors of Morris Bosendorff and Louis J. Bosendorff, composing the firm of M. Bosendorff & Son, against Solomon Cohen and others, for the taking of personal property. From an order denying a motion to increase the amount of security for costs heretofore required from plaintiff from $250 to $1,500, defendants Cohen and Richards appeal.

Certiorari by the Central Stamping Company against Edward P. Barker and others to review an assessment on relator’s personal property for the year 1894. From an order reducing the assessment, defendants appeal.

court, New York county. Action by Edward H. Swan, Jr., against the Long Island Railroad Company, for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Proceeding to dissolve the Mutual Benefit Life Association of America. From an order granting the motion of the receiver compelling one Thomas C. Smith to discontinue and withdraw his action against defendant corporation, pending in the state of Connecticut, and all attachments and proceedings ending therein, said Smith appeals.

Judicial settlement of the accounts of Benjamin F. Grant as executor of the will of James Benedict, deceased. From the decree settling the accounts the residuary legatees appeal. Modified.

Judicial settlement of the accounts of John B. Fuller as executor of the will of Sarah A. Tillman, deceased. From an order opening a decree rendered on the settlement of the accounts, John B. Fuller, the executor, and Joseph H. Buell appeal.

<p>Wills—Income and Principal—Appreciation op Investment.</p> <p>A bequest to testator’s widow of “the interest, income, and profits of the sum of six thousand dollars,” which the will provides the executors “shall keep invested safely and securely * * * in good approved securities as long as my wife shall be entitled to the interest thereof,” does not entitle the widow’s personal representatives to the premiums accruing on the securities in which the money is invested.</p>

Proceeding for the probate of the will of John Murphy, deceased. The will was admitted to probate, and 19 of the heirs and next of kin of testator appeal.

Action by Gilbert Gerould against David Cronk. From a judgment of the county court reversing a judgment of a justice court, entered on a verdict in favor of plaintiff for $56.82, plaintiff appeals.

<p>Evidence—Declarations of Agent.</p> <p>In an action for the price of goods, brought after the death both of the seller and of one P., the seller’s employé, who was in charge of the business and made the sale, defendant may testify that the price agreed on between himself and P. was less than the price stated in the entries made by P. in the books of account.</p>

Action by Peter Scherer against Holley Manufacturing Company for personal injuries. From a judgment entered on a verdict in favor of defendant, directed by the court, and from an order denying a motion for a new trial, plaintiff appeals.

<p>1. Principal and Surety—Release op Surety—Extension op Time.</p> <p>Taking a mortgage as additional collateral security for a debt already secured by bond and mortgage does not extend the time of payment of the original debt so as to release the surety of the debtor.</p> <p>2. Same—Stipulation with Principal.</p> <p>A stipulation between a mortgagor and mortgagee, after commencing an action to foreclose, by which the mortgagee waives his right to a. deficiency judgment, does not release the mortgagor from his liability on" the mortgage debt, and therefore does not affect the liability of his surety.</p>

Action by the Van Camp Packing Company against James F. McGuire to recover the price of goods. From a judgment entered on a verdict in favor of plaintiff for $2,689.78, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal—Objections not Raised Below.</p> <p>In replevin for goods seized under execution, an objection that the jury fixed the value of the property as of the date of the levy, and not as of the day of trial, cannot be raised for the first time on appeal.</p>

<p>Motion for reargument.</p> <p>For decision on appeal, see 31 N. Y. Supp. 1127.</p>

Action by John Wyman, Levi P. Morton, and John Gr. Richardson, as executors of the will of Lizzie N. Perkins, deceased, against Ellen G. Woodbury and others, to obtain a judicial construction of said will. From a judgment construing the will, defendant Woodbury appeals.

Certiorari by the Hecker-Jones-Jewell Milling Company against Edward P. Barker and others, commissioners of taxes, to review an assessment of relator’s personal properly for the year 1894. The writ was dismissed, and relator appeals.

Action by John A. Holmes against Andrew Little to have a deed of real estate declared void, and recover rents received by defendant. From the interlocutory and final judgments in favor of plaintiff, defendant appeals.

Certiorari by Thomas J. Kelly against George D. Scott and others, constituting the examining board of plumbers of the city of New York, to review the decision of the defendants in relation to the application of relator for a certificate of competency to conduct the business of a master plumber in said city.

Action by Horace Anderson, as substituted trustee, against Isabell M. Blood, Fannie K. Koss, Juan Ramon Martinez Hernandez (known also as John R. M. Hernz), and Alexander Melhado, to set aside certain deeds as fraudulent There was a judgment in favor of plaintiff (29 N. Y. Supp. 1027), and defendants Blood and Koss appeal.

Controversy between the Roman Catholic Church of the Transfiguration, plaintiff, and Nathaniel Niles, defendant, submitted without action on an agreed statement of facts.

Application by Augustus Clason for a writ of mandamus to compel the Nassau Ferry Company and others to allow relator to examine the books of account and stock books of defendant company, and to take extracts therefrom. From an order directing a peremptory writ to issue, defendants appeal.

<p>Action by Henry C. Valentine against Warren H. Healey and others for rent. The complaint was dismissed, and plaintiff moves for a new trial, on exceptions ordered to be heard at general term in the first instance.</p>

Action by Louis Ullman and others against Solomon Jacobs on a promissory note. The complaint was dismissed after trial without a jury, and a motion for a new trial was denied, and plaintiffs appeal.

<p>Attorney—Compensation—Settlement between Husband and Wipe.</p> <p>A wife sued her husband for a separation, and to set aside deeds by him in which she had joined, on the ground that she was induced to release her inchoate right of dower by fraud. Afterwards they settled their differences, and resumed marital relations.. Held, that it was error to permit the attorney for the wife in the action to set aside the deeds to continue the action for his own benefit on the ground that he had a contract for one-half the recovery, where he had not filed a lien.</p>

Action by the Mercantile Trust Company against the Atlantic Trust Company and others. There was a judgment in favor of plaintiff, and defendant Atlantic Trust Company appeals.

Appraisal, under the act in relation to taxable transfers, of property of the estate of Wilson Gr. Hunt. From an order fixing the amount of the tax on the legacy given to'one Ellen D. Hunt, she appeals.

Action by Mary Phillips against Margaret Lewis to recover the sum of $650, with interest from May 1, 1888, for the alleged agreed price of board and lodging furnished by plaintiff to defendant. A verdict was rendered in favor of plaintiff for part of the amount claimed, and from the judgment entered thereon, and from an order denying a motion for a new trial, plaintiff appeals.

Controversy between Smith Williamson, as executor of the will of John L. Burnett, deceased, plaintiff, and Jessie T. Banning, defendant, submitted without action on an agreed statement of facts.

Action by Kate Ryan, as administratrix of William Ryan, deceased, against the mayor, aldermen, etc., of the city of New York, to recover for services alleged to have been performed by plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff, directed by the court, and from an order denying a motion for a new trial, defendant appeals.

Action by James 8. Beams against Howard E. Burras to recover on an alleged stated account. From an order denying a motion for the discovery and inspection of books, defendant appeals.

<p>Appeal—Review—Questions oe Fact.</p> <p>Only questions of law are presented for review where, though a motion for a new trial on the ground that the verdict was contrary to law and the evidence was made and denied, no order was entered on denial.</p>

<p>Office and Officer—Personal Liability—Contracts.</p> <p>Members of the committee appointed under Laws 1892, c. 331, to celebrate the four hundredth anniversary of the discovery of America, do not render themselves personally liable by making, on behalf of the committee, a contract which is not binding on the committee because such members exceeded their powers.</p>

Action by Charles F. Winch against the Farmers’ Loan & Trust Company, as executor of Benjamin F. Sherman, deceased, and Henry E. Fanshawe. Defendants demur to the complaint.. Thé complaint is as follows: The plaintiff, for an amended complaint, complaining of the defendants, alleges: First.

<p>Appeal from judgment on report of referee.</p> <p>Action by Raiding W. Skinner against Frederick Odenbach to recover possession of land. There was a judgment in favor of plaintiff, and defendant appeals.</p>

<p>Appeal from superior court of Buffalo.</p> <p>Action by Buffalo Press Club against James W. Green on a bond. There was a judgment in favor of defendant (26 N. Y. Supp. 525), and plaintiff appeals. The action was brought and tried in the superior court of Buffalo, but on appeal was certified and removed into the supreme court, under Code Civ. Proc. § 273.</p>

Action by the Holly Manufacturing Company against Clarence H. Venner and others. From an order directing defendants Clarence H. Venner and George P. Toby to make discovery and allow inspection of certain books of the firm of C. H. Venner & Co., and directing defendant Venner to make discovery and allow inspection of certain of his individual books of account, said defendants Venner and Toby appeal.

<p>Contracts—Construction.</p> <p>Plaintiff offered to furnish defendant with building stone at $G per cord. Defendant replied that “he would do better than that,’’ and pay $6.50 per cord, measured in the wall. Plaintiff and defendant were both experienced in the business, and knew that a cord of rough stone (128 cubic feet) makes only 99 cubic feet of masonry. Held, that it was the intention of the parties that the stone should be measured in the wall at the rate of 99 cubic feet per cord.</p>

Application by the board of street opening and improvement of the city of New York in behalf of the mayor, etc., of said city, relative to acquiring title to Audubon avenue, between 165th street and 175th street. From an order confirming the report of the commissioners of estimate and apportionment, the New York Institution for the Blind appeals.

Judicial settlement of the accounts of Charles Brenneman, as ¡surviving executor of the will of Frederick Leonhard, deceased. From a decree passing on the accounts, the executor appeals. Frederick Leonhard died July 3, 1873, leaving a last will and testament, wherein, after giving certain legacies to his children, Elizabeth Brenneman, Joseph and Augustus Leonhard, and directing that the payment of his debts should be provided for he provided as follows: “Thirdly.

Action by Cochrane Carpet Company against Henry C. Howells, Jr., and another, to recover the price of goods sold. From an order directing a reference, defendants appeal. For decision on appeal from order requiring defendants to furnish a bill of particulars, see 30 N. Y. Supp. 1029.

<p>1. Release and Discharge—Joint Contractors.</p> <p>Where a person who is liable to two or more on a joint contract settles with one of them for a part of the claim, such settlement does not discharge him from the liability to the others, but they may sue for their part without joining the one settled with.</p> <p>2. Factors and Brokers—Receiving Commissions from Both Parties.</p> <p>Where defendant employed a' broker, and agreed to pay him for his services, knowing that the broker was also paid by the other party to the transaction, the fact that the broker received payment from the other party does not relieve defendant from liability.</p>

Action by William H. Hurst against the Cresson & Clearfield Coal & Coke Company to recover a balance due on a contract between one John E. Ingersoll, plaintiff’s assignor, and defendant. From a judgment for' $5,709.25, entered on a verdict in favor of plaintiff directed by the court, and from an order denying a motion for a new trial, defendant appeals.

Action by George Bliss, Henry Parish, and Duncan Smith, as executors of Elizabeth Fogg, against Charles B. Fosdick, individually and as an executor of Elizabeth Fogg, and others. A judgment was rendered in favor of defendants Fosdick and the St. John’s Guild, and plaintiffs and defendants Hiram H. Fogg, Mary J. A. Phipps, and Benjamin Phipps, as executors of John A. Phipps, appeal.

Action by John W. Clark against Ellen A. Farrell to enjoin defendant from building a roof over a gangway, and from closing a gate, and for damages. A preliminary injunction was continued, pendente lite, and defendant appeals.

Application by Emmons J. Gardner, a stockholder of the Walker Tailoring Company, to set aside certain judgments obtained by Julius L. Cohen and others. From a judgment granting the application the judgment creditors appeal.

Action by Mary A. Van Vranken against the Village of Clifton Springs for personal injuries. From an order denying a motion for a new trial, made on the judge’s minutes, after a verdict for plaintiff, defendant appeals.

<p>Appeal—Review—Objections not Raised Below.</p> <p>An objection that the court charged as a fact matter as to which the evidence was conflicting cannot be raised for the first time on appeal.</p>

<p>1. Pleading—Striking out Answer as Irrelevant.</p> <p>In an action for libel in charging plaintiff, a judge, with having acted maliciously towards defendant, who was a party to an action theretofore tried before plaintiff, where the answer alleges that plaintiff’s brother, who was clerk of the court of which plaintiff was judge, had stated that defendant attempted to influence plaintiff’s conduct as a judge in the action tried before him against defendant, and that" defendant had good reasons for believing, and did believe, that such statement was the result of statements made by plaintiff to his brother, and v?as the result of hostile feeling of plaintiff towards defendant, who had theretofore urged the abolishment of plaintiff’s court, and opposed plaintiff’s candidacy for a certain office, it will not be stricken out as irrelevant.</p> <p>2. Same—Bill op Particulars.</p> <p>In an action for libel in charging plaintiff with prejudice and bias as a judge, in an action tried before him against defendant, a bill of particulars will not be ordered stating by what speech or conduct, or in what manner or respect, the prejudice and bias alleged in defendant’s answer in mitigation of damages were manifested by plaintiff, as it might have been by looks, tones of voice, expression, or appearance, which could not be shown by a bill of particulars.</p> <p>3. Same—Stating Separate Defenses.</p> <p>Code Civ. Proc. § 507, requiring different defenses in the same answer to be separately stated and numbered, applies only to cases where the court can see from the pleadings that more than one defense is alleged. 30 N. Y. Supp. 309, affirmed.</p>

Habeas corpus by John Ryan to inquire into the legality of his detention by Charles A. Webster, as superintendent of the Monroe county penitentiary, under and by virtue of a certificate of conviction made by a justice of the peace of the town of Perrington. Relator was discharged, and defendant appeals.

<p>Landlord and Tenant—Abandonment—Reletting by Landlord.</p> <p>Where a tenant abandons the premises without sufficient cause, and the landlord relets for a less rent, the tenant cannot, in an action against him for the deficiency, complain of such reletting, as it was beneficial to him.</p>

Action by Alphonse Kloh against the New York Fertilizer Company. From an order denying a motion to vacate an attachment made on the papers on which it was granted, defendant appeals.

<p>Appeal from special term, New York county.</p> <p>Action by the Schillinger Fire-Proof Cement & Asphalt Company against William H. Arnott and others to foreclose a mechanic’s lien. From a judgment in favor of plaintiff for $5,750.06, and from an order denying a motion to strike the cause from the equity calendar, defendants appeal.</p>

Controversy between the city of Buffalo, plaintiff, and Alfred H. Neal, defendant, submitted without action, on an agreed state of facts, pursuant to Code Civ. Proc. § 1279.

Action by Eliza Davis against Bertha K. Myers as executrix. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, and also from an order granting costs and an extra allowance, defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by William W. Allen against the Grove Springs Hotel & Steamboat Company, Limited, to recover the value of a piano. Judgment was entered in favor of plaintiff, and defendant appeals.</p>

<p>Action—-Who mat Sub—Promise to Third Person.</p> <p>Plaintiff cannot sue on a prdmise to pay him a sum of money, made to a third person in consideration of a conveyance of land to the promisor by such third person, who was not indebted to plaintiff. Lawrence v. Fox, 20 N. Y. 268, distinguished.</p>

Action by the town of Corning against Charles Head to recover the penalty for obstructing a highway. From a judgment entered on a verdict in favor of plaintiff for $5 damages and $213.99 costs, defendant appeals.

Action by the Graves Elevator Company against the Masonic Temple Association of Olean. From an order denying the application of Benjamin U. Taylor to be permitted to come in as a party defendant and defend the action, said Taylor appeals.

Action by the Flour City National Bank of Rochester against George McKay to recover a balance alleged to be due on a promissory note. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, made on the minutes, plaintiff appeals.

Action by Guy Lamkin and others against Samuel M. Oppenheim. From an order made at chambers on the original papers denying a motion to vacate an order of arrest, defendant appeals.

<p>Appeal from circuit court, New York county.</p> <p>Action by Mary Lavelle against Ellen Corrignio and others. From an order denying a motion at circuit for a new trial on the minutes, and from an order of the special term denying a motion for a new trial on the ground of newly-discovered evidence, defendants Ellen Corrignio and Mary Isabella Corrignio appeal.</p>

Action by Willoughby Weston, as trustee, against Cornelia P. Goodrich and others, to obtain a judicial construction of the will of William G. Breese, deceased. From an interlocutory judgment overruling a demurrer to the complaint interposed on the ground that the court did not have jurisdiction of the matter, defendant Ashbel P. Fitch, comptroller, appeals.

Certiorari by the United States Trust Company against Edward P. Barker and others, commissioners of taxes, to review an assessment of relator’s personal property for the year 1894. From an order reducing the assessment, defendants appeal.

Action by Leopold Zimmermann and another against Elias Heil to recover a balance alleged to be due to plaintiffs from defendant. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiffs appeal.

Action by Ann Reilly against the Manhattan Railway Company and another for an injunction and damages. There was a judgment in favor of plaintiff, and defendants appeal.

Action by John McQueen, receiver of the Powerville Felt-Roofing Company, Limited, against Tobias New and others, for conversion. From an interlocutory judgment sustaining a demurrer to certain defenses set up in the answer, defendant New appeals.

Action by Jacob Ringle and others against the Wallis Iron Works and the J. L. Mott Iron Works to foreclose a mechanic’s lien. From a judgment in favor of plaintiff, defendant Wallis Iron Works appeals.

Action by Theroh Hovey against Charles Bromley for conversion. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Action by Nellie M. Spaulding against Leonard Fierle and another to recover money paid under a contract to purchase land. There was a judgment in favor of plaintiff, and defendants appeal.

. Action by Killean Martin against the Rochester German Insurance Company. From a judgment entered on a verdict in favor of plaintiff for part of the relief asked, and from an order denying a motion for a new trial, plaintiff appeals.

<p>Appeal from circuit court, Monroe county.</p> <p>Action by Thomas H. Groves against John L. Acker and others. From a judgment entered on a verdict directed by the court in favor of defendants, plaintiff appeals.</p>

<p>Practice in Civil Cases—Motion to Strike Cause from Calendar.</p> <p>An order allowing a note of issue to be filed nunc pro tunc, though irregular because obtained by plaintiff without notice to defendant, is valid until set aside; but where plaintiff has waived the benefit of it by making a new motion on notice for leave to file the note of issue nunc pro tunc, a motion by defendant to strike the cause from the calendar will be granted.</p>

Action for specific performance of an agreement for a release. Defendants move to dismiss the complaint for nonservice of summons-on one of the defendants.

Action by John R. Foley, Jr., as administrator, against the Mercantile National Bank and others. Plaintiff moves to compel defendants to separately state and number, their defenses and counterclaims.

<p>Appeal from justice court.</p> <p>Action by Eleazar Warring against John B. Keeler. There was a judgment in favor of plaintiff, and defendant appeals.</p>

<p>Action by the Edward Thompson Company against Samuel Lobenthal. Defendant asks for an order directing plaintiff to give security for costs.</p>

At chambers. In a proceeding for the probate of the will of Lewis E. Blair, deceased, a decree admitting the will to probate was reversed on appeal (32 N. Y. Supp. 845), and the executors, having appealed to the court of appeals, now move for an order fixing the amount of the undertaldng to be given by them.

<p>1. Mandamus—When Granted—Adequate Remedy at Law.</p> <p>Mandamus will not be granted to compel the clerk of the New York city court to deliver papers in his possession to relator, as there is an adequate remedy at law by applying to a judge of such court for an order directing the clerk to deliver the papers.</p> <p>2. Stare Decisis—Rule op Practice.</p> <p>A decision by a judge of the New York city court that the papers in certain proceedings in such court shall be filed with the clerk thereof, which has been acted on for a number of years, will not be disturbed.</p>

Action by William E. Dorwin and another against John B. West-brook on a contract. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Action, in the nature of a creditors’ bill, by George Alden, as receiver, against Edward K. Clark and John La Grange. A judgment was rendered in favor of plaintiff, and defendant Clark appeals.

Action by William Goodwin against John C. Schreiber to recover damages for the conversion of goods taken by defendant under execution, and for damages to plaintiff’s premises and business. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

<p>1. Abuse of Process—Who Liable—Question for Jury.</p> <p>In an action to recover damages for personal injuries inflicted by executing a warrant of dispossession issued on the petition of defendant M., and executed by the other defendants, there was evidence that M. was near the house when the warrant was executed; that he was in consultation with the officer and with two physicians who were there at M.’s request, and took an active part in the removal; that the attorney who obtained the warrant was present, and took an active part in the matter; that M.’s orders were to put plaintiff into the road; and that he afterwards furnished the officer the money with which he paid his assistants and the physicians. Hele?, that it was a question for the jury whether M. participated in the removal of the plaintiff.</p> <p>2. Same—Calling Posse—Good Faith.</p> <p>In such case it was error to charge that the officer who executed the warrant had no right to take a posse with him unless he apprehended resistance, and that, if he took the posse there for another purpose, they were all trespassers, there being evidence that the posse was summoned in good faith, and were all necessary.</p>

. Application by Lemon Thomson and others to float logs and timber down the Moose river and its branches and over lands in townships Nos. 7 and 1, Brown’s Tract, town of Wilmurt, Herkimer county, of which Julia L. De Camp and Ela N. Merriam, as sole surviving executor of the last will and testament of Lyman R. Lyon, deceased, are the owners and persons interested.

<p>Appeal from circuit court, Otsego county.</p> <p>Action by Delos W. Matteson against Benjamin Gillett and Bruce Gillett for breach of contract. A judgment in favor of plaintiff was rendered on the decision of the court, a trial by jury having been duly waived, and defendants appeal.</p>

Action by George Bushev against William Santiff for trespass. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Action by William Youmans against Julia D. Forsyth for specific performance. Judgment was entered in favor of plaintiff, and defendant appeals.

Action by Robert J. Davis and John C. Owens, as administrators of Ebenezer Davis, deceased, against Spencer Davis and the Savings Bank of Utica. A judgment was entered in favor of plaintiffs in Oneida county, and defendant Davis appeals.

Action by Loretta McConnell against George F. Barber and Marcellie I. Barber to set aside a deed as in fraud of creditors. The complaint was dismissed, with costs, and plaintiff appeals.

Action by the Providence Steam & Gas Pipe Company against Lansing W. Connell to enforce the liability of defendant, as director of a corporation, for failure to file the annual report The court held “(1) that the plaintiff, not having made the proof required by section 16 of the general corporation law, and not having procured the certificate required by section 15 thereof, cannot maintain this action; (2) that the complaint should be dismissed, with costs.” From the…

From an order adjudging that certain property is personal property, and as such belongs to Adolphus I. Simmons, as receiver, the Standard Harrow Company appeals.

Action by Joseph Loeb and others against Frank R. Keyes and another on a note dated at Binghamton, January 12,1893, made by defendant F. R. Keyes to the order of, and indorsed by, the other defendant, for $1,442.82, payable at the First National Bank of Binghamton six months after date. The defense was payment. The recovery was for the sum of $1,382.48, with interest from July 15, 1893. Defendants appeal.

<p>Appeal from circuit court, Madison county.</p> <p>Final judicial settlement of the accounts of James Stevenson and Mary E. Blair, as executors of the will of Betsey Everts, deceased. From the order settling the accounts, Clarisse M. Harrison appeals.</p>

Action by Peter J. Doherty against John Shields for the price of goods sold and delivered. A judgment in favor of plaintiff was entered in Chemung county, and defendant appeals.

Proceeding for the distribution of the proceeds refused, etc. From a decree adjudging that the sum of $733.42 be equally distributed among Daniel Johnson and others, the next of kin of decedent, William Degaramo appeals.

Action by Levi Washburn, as sheriff of Jefferson county, against the Carthage National Bank, to recover the value of certain personal property. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by Sidney Glass Works against A. S. Barnes & Co. A judgment in favor of plaintiff was entered in Delaware county, and defendant appeals.</p>

Action by Adele N. Sanford against the Commercial Travelers’ Mutual Accident Association of America. From an order directing the issues to be referred to William R. Chamberlin, Esq., to hear and determine, plaintiff appeals. ■

Action by George A. Lance, as temporary receiver of the Sheridan Scotch-Cap Company) against Patrick J. Shaughnessy, to recover money paid. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Action by John McNaney, in behalf of himself and all other judgment creditors of Francis G-. Hall similarly situated who shall hereafter join in this action, against Francis G-. Hall, William S. Carr, and Timothy S. Pratt, as executors of Samuel S. Hamlin, deceased, and Samuel C. Taber, as assignee for the benefit of creditors of Francis Gr.

<p>Appeal from court of oyer and terminer, Niagara county.</p> <p>Joshua S. Helmer was convicted of the crime of having, as an officer of a corporation, • knowingly exposed and exhibited to a public officer duly authorized to investigate the affairs of said corporation, with intent to deceive such officer, false and forged books. Pen. Code, § 592. From a judgment of conviction, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.</p>

Action by Seneca Duell and another against Sarah R. McCraw - to recover a balance alleged to be due on a building contract From a judgment entered in Broome county, in favor of plaintiffs, for $852.84, besides costs, defendant appeals.

Action by J. Martin White and others against John C. Schreiber. From a judgment entered on a verdict in favor of plaintiffs, and from' an order denying a motion for a new trial made on the minutes, defendant appeals. The action is brought to recover the possession- of a quantity of hop sacking.

Action by the American Distributing Company against the Distilling & Cattle Feeding Company. Lawrence H. Quinn moves to vacate an order directing him to appear and be examined, under Code Civ. Proc. § 650.

Action by Patrick Dunn and Ann Dunn against Charles Wehle. From an order discontinuing the cause without costs, defendant appeals. The complaint is as follows: The plaintiffs above named, by John Whalen, their attorney, complaining of the above-named defendant, allege and aver: First.

Action by Robert Boyd against Malcolm Campbell and others. From an order amending the decision and judgment theretofore rendered by the judge, defendants appeal.

Action by Stephen H. Sturges against Isaac B. Newcombe and another on a promissory note. From an order allowing plaintiff to amend the complaint, defendants appeal.

Action by Joseph Steinert against the Metropolitan Elevated Railway Company and another. A judgment was rendered in favor of plaintiff, and defendants appeal.

Application by Townsend Wandell to be relieved from his purchase of real estate at a foreclosure sale of mortgage decreed in an action by N. Taylor Phillips and another against Kate R. Wilcox and another. The application was granted, and plaintiffs in the foreclosure action appeal.

Action by Patrick O’Connor, administrator, against Herman Schnepel for damages occasioned by negligence of defendant’s contractor. From a judgment dismissing the complaint, plaintiff appeals.

Action by Catherine Moy, as administratrix of the estate of Patrick Moy, deceased, against the Ocean Steamship Company of Savannah. The complaint was dismissed, and plaintiff appeals.

<p>Reference—When Denied.</p> <p>Where the complaint sets forth only a common-law action, and it does not appear that the trial of the issues will require the examination of a long account, a motion for a reference should not be granted.</p>

<p>1. Carriers—Duty op—Contract in View op Difficulty.</p> <p>A contract to carry goods made by a canal-boat man shortly before the period when the canal might be expected' to freeze requires him to make a special-effort to perform the contract.</p> <p>2. Same—Failure to Perform Contract—Measure of Damaoes.</p> <p>Where a carrier, by failure to exercise due diligence, is able to transport the goods only a part of the way, the shipper’s measure of damages is the difference between the contract price of transportation and the increased cost necessary to secure the delivery of the property at its destination, without any pro rata allowance to the carrier for the partial carriage.</p>

<p>Action by Charles Kummer against the Christopher & Tenth Street Railroad Company. Motion for new taxation of costs.</p>

<p>Action by Leopold Zelmanovitz against the Manhattan Railway Company. Motion for taxation of costs.</p>

Action by Joseph B. Bloomingdale and another against Henry Steubing for forcibly and wrongfully entering and taking possession of premises 160-162 East Fifty-Ninth street, in the city of New York, leased by defendant to plaintiffs. From an order of the city court (30 N. Y. Supp. 1062) reversing an order setting aside, as inadequate, a verdict in favor of plaintiffs for six cents damages, plaintiffs appeal.

Action by Stephen Jennings against the Hew York, Hew Haven & Hartford Railroad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $750, and from an order denying a motion for a new trial, defendant appeals.

Orvis against William H. Curtiss to recover the first installment of interest due on a note. A judgment was entered in favor of plaintiff, and defendant appeals. The action was brought to recover six months’ interest, due July 3. 1893, upon the following promissory note: “$4,000. New York, Jan. 3, 1893. “Three years after date I promise to pay to the order of Chas.

Action by Frank S. Baker against James R. Thomas for broker’s commissions. From a judgment of the city court (31 N. Y. Supp. 993) affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals.

Action by Edward S. Bamberger, as receiver, against Charles B. Fillebrown and others, to determine priorities. From an order overruling their demurrer, and final judgment entered thereon, defendants Fillebrown and Stevens appeal. In an action in the superior court brought by Joseph Sawyer against Morris Lowenthal and others, plaintiff was appointed receiver of defendants’ property.

Action by Charles A. Winch against the Third Avenue Railroad Company for injuries to personal' property. From a judgment for plaintiff rendered by the court without a jury, defendant appeals. Plaintiff’s ice cart, proceeding down town upon the tracks of the defendant, was overtaken and collided with by one of defendant’s cars, and was damaged to an extent for which recovery was sought and obtained in this action.

<p>On reargument.</p> <p>For decision on appeal, see 31 N. Y. Supp. 124. For order granting reargument, see 32 N. Y. Supp. 1139.</p>

Action by Philip Hirshkind against the Private Coachmen’s Benevolent & Charitable Association for money had and received. From a judgment in favor of plaintiff, rendered by the justice without a jury, defendant appeals.

Action by Adelaide B. Styles against Joseph Blume for specific performance of a contract to convey land, and, in case title could not be made, for the purchase money paid and for damages. Judgment was entered in favor of plaintiff (30 N. Y. Supp. 409), and defendant appeals.

Action by Bartolemy J. Olifers against Perry J. Belmont and ■others. A demurrer- to the complaint was sustained (33 ¡N. Y. Supp. 275), and defendants move to settle the decision on the order sustaining the demurrer.

Action by Lena Schmidt, an infant, by Frank Schmidt, her guardian, against Valentine Cook and others. From a judgment of the city court (30 N. Y. Supp. 1135) affirming a judgment entered on a verdict for plaintiff, defendants appeal.

<p>1. Insurance—Breach of Warranty—Assignment by Insured.</p> <p>Breach of a warranty in a^ policy that the interest of the assured “in the within insurance has not been assigned, or will not under any circumstances be assigned, to any common carrier,” renders the policy void, though the insurer may not have been injured thereby.</p> <p>2. Same—What Constitutes Assignment.</p> <p>A clause in a bill of lading providing that, in case of loss or damage, the carrier should have the benefit of the insurance on the goods, and should not be answerable over to the insurer, operated as an assignment of such insurance to the carrier.</p>

<p>Master and Servant—Negligence of Fellow Servants.</p> <p>In an action for injuries caused by the fall of a derrick which had been set up under the direction of defendant’s foreman, there was evidence that one of the stay ropes was insecurely fastened, but not that the derrick was defective or unsuitable for the purpose intended if properly adjusted. Held, that defendant owed no duty to plaintiff to see that the derrick was properly set up, and was not liable for the foreman’s negligence.</p>

Action by Charles H. Beckett against Edward Place and another as sureties on a bond given by one Richard Cuff as administrator. Judgment was rendered in favor of plaintiff, and defendants appeal.

<p>Ejectment—Pasties—Occupant op Premises.</p> <p>Under Code Civ- Proc. § 1502, providing that when the complaint demands immediate possession the occupant must be made defendant, it is no defense to such action that another occupant, claiming a several right in the property, was not made defendant, as the statute is not for the benefit of the occupants who are made defendants, but only for the benefit of those who are not made defendants.</p>

Action by John Shields against John N. Robins to recover damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. The action is by a workman against his employer to recover damages for personal injuries.

Action by David Stevenson Brewing Company against Caspar Iba and others to have mortgage filed subsequent to one to defendants declared prior and superior. Judgment was entered in favor of plaintiff, and defendants appeal.

<p>Evidence—Admissions in Pleadings.</p> <p>A party may take advantage of .admissions in his adversary’s pleading, so far as they are in his favor, and disprove the residue.</p>

Action by Salvatore Cantoni against Elsa Forster to restrain defendant from prosecuting an action at law in violation of an agreement not to sue. From an order continuing an injunction during the pendency of this action, defendant appeals.

Action by the Missionary Society of St. Paul the Apostle and others against New York Elevated Railroad Company and another for damages to plaintiffs’ property caused by construction and maintenance of defendants’ railroad. A judgment was entered in favor of plaintiffs, and defendants appeal.

<p>Action by the A. L. & J. J. Reynolds Company against Frederick N. Dreyer. From an order granting an injunction pendente lite, defendant appeals.</p>

Action by Margaretlia Jung against John H. Starin for personal injuries sustained while a passenger on defendant’s ship. The complaint was dismissed, and plaintiff appeals. The action is by the plaintiff to recover $5,000, damages for personal injuries.

Action by Newbury H. Frost against the Akron Iron Company for rent. From a judgment entered oh a verdict directed by the court in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals.

Actions by Emma L. Jacquelin and others, and by Sarah E. You-mans and others, respectively, against the Manhattan Railway Company and another, for injunctive relief and damages. From an order appointing a referee, plaintiffs appeal. For decision on appeal from order suspending the injunction, see 29 N. Y. Supp. 1113.

Action by Bart Lobee against the Standard Live-Stock Insurance Company. There was a judgment of nonsuit. Plaintiff moves for a new trial, on exceptions ordered to be heard at a general term in the first instance.

<p>Appeal from municipal court.</p> <p>Action by Thomas H. McDonald against Frank P. Nuse. From a judgment for plaintiff, defendant appeals. Judgment set aside.</p>

Controversy between William E. Thorn, as sole surviving executor and trustee under the will oí William E. Garner, deceased, plaintiff, and Joseph B. Mayer and Louis Weill, defendants, submitted on agreed facts.

Action by Frank Bittner, as administrator, against the Crosstown Street-Railway Company, to recover damages for negligence of defendant causing the death of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals.

<p>Appeal from equity term.</p> <p>Action by Le Roy Parker against David E. Day for the value of professional services. Judgment was entered in favor of plaintiff. 30 ÍST. Y. Supp. 267. Defendant appeals.</p>

<p>Judbment—By Default—Fraudulent Representations.</p> <p>A default judgment for fraudulent representation cannot stand, unless the intent to defraud was alleged in the complaint.</p>

Action by Peter Faltiska against the New York, Lake Erie & Western Railroad Company. From an order denying a motion to set aside the service of summons, defendant appeals.

Action by Bessie McKenna, by Thomas McKenna, her guardian, against the Buffalo Brass Bedstead Company, for personal injuries. Judgment was entered on a verdict in favor of plaintiff, and defendant appeals.

Action by Irene B. Roberts and Nathan B. Roberts, individually and as executors of and trustees under the last will and testament of Edward Roberts, deceased, against the New York Elevated Railroad Company and the Manhattan Railway Company, impleaded with others, for damages to certain trust property caused by the construction and maintenance of defendants’ elevated railroad on a street in front of said property.

Ejectment' by Carrie E. Goodhart against Charles G. Street. Plaintiff purchased the land in controversy from one Rosa Elsas, subject to the lien of two mortgages by her executed to the United States loan commissioners, as security for a loan made pursuant to Laws 1837, c. 150, entitled “An act authorizing a loan of certain moneys belonging to the United States, deposited with the state of New York for safe-keeping.” Thereafter, on default in the payment of interest on the…

Action by Mason against Butcher. Plaintiff moves to strike out certain defenses contained in the answer, and to compel defendant to make the answer more definite and certain.

Actions by Knorr against Bates and others, and by the same plaintiff against Atkins and others. Defendants demur to the complaint.

Action by Abraham Newkirk against Walter H. Hooker and John Doe (the latter’s real name being unknown to plaintiff, the name “John Doe” being fictitious), doing business under the firm name and style of W. H. Hooker & Co. From an order of the city court (31 N. Y. Supp. 1131), affirming an order denying a motion that plaintiff be required to accept notice of appeal from a certain order theretofore made in the cause, defendant Walter H. Hooker appeals.

Action by the Socialistic Co-operative Publishing Association against Morritz Hoffmann and Ludwig Sutro. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.

Action by Emil Dieckerhoff and others against Otto Alder and another to recover back money alleged to have been paid by mistake. From a judgment entered on a verdict in favor of plaintiffs for $1,359.32, and from an order denying a motion for a new trial, defendants appeal.

Action by Ellen Meagher, as assignee of Lizzie Burke, against John W. Campbell and another, to recover the proceeds of property belonging to the assignor, sold by the defendants as auctioneers, and attached while in their possession for a debt of the assignor. From a judgment of the city court (31 2T. Y. Supp. 998) affirming a judgment entered on a verdict for plaintiff, defendants appeal.

Action by Herman Markowitz, as administrator of Henry Friedman, deceased, against the Dry Dock, East' Broadway & Battery Railroad Company for the death of plaintiff’s intestate. From a judgment entered on the verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>1. Mutual Insurance Company—Dissolution.</p> <p>Code Civ. Proc. § 1785, subd. 4, which authorizes the dissolution of an insurance company where it becomes insolvent or unable to pay its debts or has violated any law, is limited by the later provision of Laws 1892, c. 690, § 43, providing that, if it appears to the superintendent of insurance that the assets of a mutual company are insufficient, notice shall be given to its officers to make good the deficiency, and that, if it shall not be made good within a certain time after notice, it shall be subject to dissolution.</p> <p>2, Same—Insolvency.</p> <p>In determining the solvency of a mutual insurance company, account must be taken of its capital stock notes, which Laws 1892, c. 690, §§ 111. 113, provide shall be payable as the directors deem necessary for loss or incidental expenses, and shall remain security for loss and claims until the accumulation of profits shall equal the amount of cash capital.</p>

<p>Action by Knapp against Henry Valentine on a judgment rendered in favor of Edw'ard M. Voorhees against defendant and others.</p>

Action by IT. K. Fairbank Company against Blaut and others. Plaintiff moves to make the answers of some of the defendants more definite and certain.

Replevin by Steel and others against Rosenburg and others. Plaintiffs move for leave to amend the complaint by changing the cause of action to conversion.

Action by Jarvis against Brennan, as executor, and others. Defendants move to vacate an order directing plaintiff’s examination before trial.

<p>Trusts—Power or Substituted Trustee.</p> <p>Where an order is entered with the consent of the cestui que trust, directing the trustee to pay a part of the income of the trust estate to the wife of the cestui que trust, a substituted trustee will, on the application of the wife, be ordered to make such payment, and notice to the husband is not necessary.</p>

<p>Abatement of Action—Dissolution of Corporation.</p> <p>An action against a corporation for personal injuries 'abates on the dissolution of the corporation.</p>

Action by Isaac Goldsmith against the Wells Company, Limited, on a contract to act as interpreter in an action theretofore brought against defendant in the supreme court. From a judgment of the county court reversing a judgment of the city court of Albany for plaintiff, plaintiff appeals.

Action by David Curry against the Union Electric Railway Company for injuries from a collision. From a judgment on a verdict for plaintiff, and from an order denying a new trial, defendant appeals.

Action by Clarissa Miles against the Fonda, Johnstown & Gloversville Railroad Company for injuries from a collision. From ,a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for á new trial, defendant appeals.

Action by Phebe R. Kissam against the Brooklyn Elevated Railroad Company and another for injunction and damages. Judgment was entered in favor of plaintiff, and defendants appeal.

Action by John M. Andersen, as executor, against Frederick Petereit and another, to foreclose a mechanic’s lien. Judgment was entered in favor of plaintiff, and defendants appeal.

<p>Removing Cloud prom Title—When Action Lies.</p> <p>An action will lie to remove the cloud from title to land sold under execution against the apparent owner, and purchased by defendant, where the execution debtor, before the judgment was recorded in the county where the land was situated, had conveyed the land to plaintiff, but the deed was lost without ever having been recorded, and a new deed was given after the judgment was recorded.</p>

Action by William W. Rider against the city of Mt. Vernon and John Borgwald for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.

Action by Otto Hoske against Henry Gentzlinger to recover damages for an alleged unlawful entry on real estate. Judgment was entered on a verdict in favor of defendant, and plaintiff appeals.

Action by Nettie Fieseler against George H. Stege for cancellation of a judgment and chattel mortgage. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.

<p>1. Statute of Frauds—Original or Collateral Undertaking.</p> <p>An instrument reciting, “Let G. have your farm at S. for five years, and I will see you paid,” is a general letter of credit, and, on the person requested complying therewith, an original contract between him and the writer is completed, so that the provisions of the statute as to contracts to answer for the debt of another are not applicable.</p> <p>2. Same.—Pleading.</p> <p>Failure of an instrument sued on and set out in the complaint to comply with the statute of frauds cannot be availed of where defendant does not plead the statute.</p> <p>8. Guaranty—Scope.</p> <p>One who guaranties payment if an owner will let another have his farm for a certain period will be presumed, in the absence of evidence to the contrary, to contemplate a lease with the ordinary conditions of a farm lease.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Luz Diaz G-ovin against Luciana Govin De Miranda and another for admeasurement of dower. From an order denying the motion for bill of particulars, defendants appeal.</p>

Action by Luz Diaz Govin against Luciana Govin De Miranda and another. From an order denying the motion for bill of particulars, defendants appeal.

Action by David Gideon against Philip J. Dwyer for slander. From an interlocutory judgment overruling the demurrer to the complaint, defendant appeals.

Action by Charles W. Strader against the New York, Lake Erie & Western Railroad Company for personal injuries. Erom a judgment entéred on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Principal and Agent—When Relation Exists.</p> <p>A complaint alleged that, at the request of one E., defendant’s husband, plaintiff sold and delivered materials for the construction of a house on premises owned by defendant; that said materials were furnished with the knowledge of defendant, and for the benefit of her separate estate; and that at the time the materials were furnished plaintiff believed that E. was the owner, and never received any information from defendant or any other person that E. was not the owner. Eelúi, that the facts alleged did not constitute E. defendant’s agent.</p>

Action by Elisa Beck and George Beck against the Brooklyn Elevated Railroad Company and the Union Elevated Railroad Company for an injunction and damages. Judgment was entered in favor of plaintiffs, and defendants appeal.

Action by Edgar A. Briggs and another, executors, against Elizabeth C. Thompson and others, to foreclose a mortgage. From a judgment for plaintiffs, defendants appeal.

<p>Action by Walter L. Kent against Susan W. Hopkins and others. Plaintiff moves for a new trial on exceptions at general term, pursuant to Code Civ. Proc. § 1001.</p>

Action by Richard B. Rock against James D. White, Edward C. White, and Mary J. White to recover the value of a quantity of ice cut by plaintiff and placed by him in defendants’ ice house under a contract with them. From a judgment for $1,053.04, entered on a verdict in ijavor of plaintiff, and from an order denying the motion for a new trial, defendants appeal.

<p>Appeal from Montgomery county court.</p> <p>Action by Charles N. Smith against John Kiniry. From a judgment entered on a verdict in favor of defendant, plaintiff appeals.</p>

<p>Appeal from Sullivan county court.</p> <p>Action by Webster Sherwood and another against the New York, Ontario & Western Railway Company to recover damages for delay in transportation of one car load of calves from Livingston Manor to New York City. From a judgment entered on a verdict in favor of plaintiffs, defendant appeals.</p>

Action by Lucinda J. Wiley against the village of Rouse’s Point for personal injuries. The second paragraph of the answer was as follows: “Second.

Action by Anthony H. Lawatsch against John J. Cooney for alleged wrongful conversion of a draft for the sum of $1,000, payable to the order of plaintiff, defendant, and another. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Action by the First National Bank of Champlain against Orville K. Wood and others to set aside certain general assignments as made with intent to hinder, delay, and defraud creditors. Judgment was ■entered in favor of defendants, and plaintiff appeals.

Action by Catherine E. Pawling, as administratrix of Henry Haskell Pawling, deceased, and others, against William M. Pawling and Margaret Pawling, individually and as administrators of Henry Pawling, deceased, and Mary Jane Herrick, for specific performance of a contract for the sale of land. Judgment was entered in favor of plaintiffs, and defendants appeal.

Action by the village of Fort Edward against Wilbur W..Fish to recover the sum of $1,750, paid by plaintiff to defendant. The complaint was dismissed, and plaintiff appeals.

Lawrence county. Action by Ledyard Hale, as receiver of St. Lawrence Manufacturing Company, against Marcus P. Mason, to recover the sum of $50,000, as damages for breach by defendant of his duty as one of the directors of said company. From an order requiring plaintiff to file an undertaking in the sum of $3,000, as security for defendant’s costs, and staying all proceedings until such undertaking should be filed, plaintiff appeals.

. Action by Mary Egan, as administratrix, etc., of Edward Egan, deceased, against the New Jersey Steamboat Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for new trial, defendant appeals.

Action by Abram Meddaugh, as administrator, against the New York, Ontario & Western Railway Company, to recover damages for the alleged negligent killing of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

<p>1. Trusts—Following Trust Funds—Deposit in Bank.</p> <p>Where a person deposits in bank money held by him in a fiduciary capacity, mixing it with his own moneys, and afterwards draws checks-against his account, such checks will be applied first to the moneys belonging to the drawer, and in such case the rule that checks will be applied to-the deposits in the order in which the deposits were made does not apply. Bank v. Peters (N. Y. App.) 25 N. E. 319, followed.</p> <p>2. Set-Off and Counterclaim—Unmatured Claim.</p> <p>Defendant bank discounted for W. a draft, which was subsequently paid by the drawee, and placed the proceeds to W.’s credit, not knowing that plaintiff was entitled thereto. Afterwards, and while part of the proceeds remained to W.’s credit, plaintiff notified defendant of his claim. Held, that defendant could not set off against plaintiff’s claim to such balance a claim against W. on paper discounted before the draft, but maturing after the notice of plaintiff’s claim.</p> <p>3. Banks and Banking—Lien of Banker—Unmaturbd Claim.</p> <p>A bank has no right to retain the balance of a customer’s deposit to apply on an indebtedness of the customer of the bank not yet matured, unless it is authorized to do so by contract.</p> <p>4. Election op Remedies—What Constitutes.</p> <p>Plaintiffs gave one W. credit with their correspondent for the purchase of goods in Europe. The invoices and bills of lading for the goods so purchased were sent to plaintiffs, who sent them to W., taking from him a receipt, which recited that W. agreed to hold the goods in trust for plaintiffs until the proceeds thereof should be actually paid over, and that the goods and proceeds thereof should be plaintiff’s absolute property until his claim should be paid. W. sold the goods, and appropriated the-proceeds to his own use. Held that, under the receipt, plaintiffs might sue W. for the goods, and might also follow the proceeds into whosesoever hands they should come with notice of plaintiffs’ claim, and an action against W. -for the goods was not an election of remedies, so as to-preclude plaintiffs from pursuing the proceeds.</p>

<p>1. Conflict op Laws—Fraud Committed in Another State.</p> <p>An action may be brought in New York, against a resident thereof, to recover damages for a fraud committed in another state.</p> <p>.2. Same—Confession of Judgment by Corporation—Preference of Creditors.</p> <p>A judgment confessed by a New York, corporation in another state is governed by the laws of New York, and, if intended to prefer creditors in violation of such laws, will be declared void by the courts of New York, without regard to the laws of such other state. 30 N. Y. Supp. 977, reversed:</p>

<p>Settling Order—Recitals as to Papers Read.</p> <p>Under Gen. Rule Prac. 3, which requires every order entered on a nonenumerated motion to specify all the papers used or read on the motion, an order is defective where it recites that it was made on the reading of certain papers, “and on all the papers and proceedings herein.”</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by Hannah Springer against Robert E. Westcott, as president of the Westcott Express Company. From a judgment entered on a verdict in favor of plaintiff for $2,425.69, defendant appeals.</p>

Action by Edward D. Dunlop against George Wilken to recover damages for false representations. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Action by the Harlem Bridge, Morrisania & Fordham Railway Company against the town board of Westchester and others for an injunction. From orders granting extra allowances, plaintiff appeals.

<p>Appeal from special term, ¡New York county.</p> <p>Action by David Thomson, as trustee of the estate of Benjamin Lord, deceased, and Mary Hanson against Emma C. Hill and others, to obtain a construction of the will of said decedent. From a judgment construing the will, plaintiff Mary Hanson and defendants Emma C. Hill and others appeal.</p>

Actions by Martha Haines and another against William A. Patterson and others; by Elizabeth Patterson against. Jane W. McCunn and others; and by James M. Gano, as executor, against Thomas McCunn, as-executor, and others. From an order denying a motion to amend an interlocutory judgment, plaintiffs appeal. The cause first above entitled was commenced December 7, 1892, its object .being to partition certain real estate.

Action by Monroe L. Simon and Owen Doran, as administrators of Patrick Doran, deceased, against James O’Brien, as administrator of Lizzie F. Doran, deceased. The complaint was dismissed, and plaintiffs appeal.

<p>Evidence—Opinion oe Court in Another Action.</p> <p>A coal company insured with plaintiff insurance company a quantity of coal which it had sold to defendants, the insurance to cover the coal while on board a certain vessel. The Coal was lost during the voyage, and plaintiff paid the amount of the policy to the coal company, who paid it to defendants. Plaintiff then sued the owner of the vessel, alleging the loss was caused by his negligence. The court of admiralty held that the loss was not occasioned by the negligence of the owner of the vessel, and in its opinion stated that defendants had entire control of the vessel, and that they were chargeable with the negligence of the crew, by which the coal was lost. Bcld, in an action by plaintiff to recover from defendants the amount so paid to the coal company, the opinion of the court of admiralty was not admissible in evidence against defendants, who were not parties to the suit therein.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Adolph Ladenburg and others against the Commercial Bank of Newfoundland. From an order denying a motion to vacate an attachment (32 N. Y. Supp. 873), the New York Produce Exchange Bank, a junior attaching creditor, appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Adolph Lewinsohn against the Kent & Stanley Company. From an order denying a motion to vacate a warrant of attachment, William G. McGrath, a junior attaching creditor, appeals.</p>

<p>Larceny—Evidence—Yalue oe Goods Stolen.</p> <p>A finding as to the value oí the goods stolen, for the purpose of fixing the degree of the crime, will not be disturbed, where the court charged that the jury were not bound by the testimony of the people’s witnesses, but could judge of the value for themselves, and at the same time directed their attention to the importance of such determination.</p>

Judicial settlement of the accounts of Henry Heuser, as administrator of the estate of Magdalena Heuser, deceased. From the decree settling the accounts, and from an order denying a motion for a new trial, the administrator appeals.

Proceeding for the dissolution of the American Steam-Boiler Insurance Company of New York City. From an order requiring the superintendent of insurance to pay certain moneys to the receiver, the insurance department appeals.

<p>1. Trover and Conversion—What Constitutes Conversion.</p> <p>Defendant purchased a car load of hay, which was shipped to him, and a draft, with the bill of lading attached, was drawn on him by the seller. Defendant refused to honor the draft on the ground of delay in shipping the hay, and wrote to the seller stating that he would not accept it at that late day at the contract price, but that he was willing to pay a less price. The seller did not answer defendant’s letter, but immediately sold the hay to plaintiff, who resided at the same place as defendant, and the bill of lading was delivered to her. Afterwards the hay arrived, and the freight agent notified defendant, to whom the hay was addressed, and defendant received and sold it, supposing that the seller had accepted the offer contained in his letter. Held, that defendant was liable for conversion of the hay.</p> <p>2. Same—Who may Sue—Title.</p> <p>Goods were shipped by one R. to defendant under contract of sale, and</p> <p>. a draft for the price, with a bill of lading attached, was forwarded for collection. Defendant refused to accept the draft, and it was returned. R. then sold the hay to plaintiff. Held that, though plaintiff never had possession of the hay, she held the title, and could maintain an action for conversion against defendant, who took possession of the hay when it reached its destination.</p>

Action by Jacob S. Rogers and Thomas Denny against the New York & Texas Land Company, Limited, Thomas W. Pearsall, Albert H. Vernam, Charles A. Miller, Ira H. Evans, Williams E. Bond, and Jacob S. Wetmore. Judgment was entered in favor of plaintiffs (32 N. Y. Supp. 209), and defendants move for a new trial on a case and exceptions.

special term, New York county. Action by Henry N. Market against the Manhattan Railway Company and another for an injunction and damages. Judgment was rendered in favor of plaintiff, and defendants appeal.

Ejectment by Deborah L. Mangam against the president and trustees of the village of Sing Sing. From a judgment in favor of plaintiff, entered on the decision of the court on a trial without a jury, defendant appeals.

Action by John J. Butler against the Steinway Railroad Company of Long Island City for personal injuries alleged to have been caused by an assault on plaintiff by a servant of defendant. From a judgment entered on a verdict in favor of plaintiff for $1,000, and from an order denying a motion for a new trial, defendant appeals.

Actions by Adeline H. Terry against William T. Moore, and by Parker Syms and others against Gasimer de R Moore, to declare void a certain renewal lease, made in 1887, of premises in West Twenty-Third street, between Ninth and Tenth avenues, known as “London Terrace.” From a judgment in favor of defendant in each case, plaintiffs appeal.

Action by Edward Hawk, an infant, by Henry S. Hawk, Ms guardian ad litem, against the American News Company, for libel. Plaintiff demurs to a partial defense. The complaint alleged that on February 14, 1894, defendant falsely and maliciously published and disseminated the libelous matter complained of, concerning the plaintiff; and that such libelous matter was printed in a publication named the “World, which was distributed and disseminated by defendant.

<p>Injunction—Breach of Contract.</p> <p>Where the seller of a business, with the good will thereof, agrees, as an inducement to the sale, and to protect the good will, not to re-enter the same business for a period of four years within a certain territory, injunction will lie against the breach of such covenant</p>

Action by William H. Van Arsdale against George King. In April, 1894, defendant moved to vacate an order made on December 6, 1890, granting leave to sue on a judgment rendered in favor of plaintiff against defendant in November, 1880.

Action by Maria O. Simms, as executrix of Henry 0. Simms, deceased, against the city of Brooklyn, to recover an award made for land taken for street purposes. Judgment was entered in favor of defendant, and plaintiff appeals.

Action by Rose Corley against James- McElmeel and others for partition.

Action by William H. Burroughs against the Tradesmen’s National Bank of the City of New York to recover damages for the failure of defendant to pay, on presentation, a check drawn by plaintiff on defendant. A verdict was rendered in favor of plaintiff for 34 cents, and from the judgment entered thereon in favor of defendant for the sum of $109.39 costs, less the amount of the verdict, plaintiff appeals.

Action by Valentine Cornwell, who sues for himself and for the other heirs of John Cornwell, deceased, against Charles H. Clement. A demurrer to the complaint was sustained, and plaintiff appeals.

Proceeding by the city of Brooklyn against Charles Franz for violation of the city ordinance. The proceeding was instituted in the city court of Brooklyn, whence it was removed to the supreme court. Judgment was entered in favor of petitioner, and defendant appeals.

Action by Mary A. Pidgeon against the Long Island Railroad Company to recover damages for alleged negligence of defendant causing the death of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Action by James Finlay and Jeannette M. Finlay against John J. Leary to annul certain settlements and agreements. Judgment was entered in favor of defendant, and plaintiffs appeal.

<p>1. Witness—Communication to Physicians—Waiver of Privilege.</p> <p>A clause in an application for life insurance waiving the provision of Code Civ. Proc. § 834, which forbids physicians to disclose any information acquired while attending a patient, is authorized by section 836, which excepts cases from the prohibition of section 834 when “the provisions thereof are expressly waived upoh the trial” by the patient, as it is a reasonable construction of the statute that its provisions are “expressly waived upon the trial” by producing thereat a proper stipulation to that effect.</p> <p>2, Same—Validity of Waiver—Public Policy.</p> <p>It is not contrary to public policy to permit an applicant for life insurance to waive the provision of Code Civ. Proc. § 834, prohibiting physicians to testify as to communications from their patients, as the privilege is personal to the patients and is of no interest to the general public.</p>

<p>Appeal from special term, Westchester county.</p> <p>Action by Marie J. Fitzmahoney (formerly Marie J. Cody), as administratrix of the estate of Michael J. Cody, deceased, against George Caulfield and others, to foreclose a mortgage. The complaint was dismissed, and plaintiff appeals.</p>

<p>Contracts—Interpretation.</p> <p>Plaintiffs sold defendant property, and took in part payment certain lots. Defendant agreed that at the expiration of the year he would repurchase the lots at a specified price if plaintiff in the meanwhile failed to sell them at that price; and that, if plaintiff sold the lots within the year, but did not realize the specified price, defendant would pay the deficiency. Held, that plaintiff could not, after the expiration of the year, sell the lots, and hold defendant liable for the deficiency, but his remedy was either to sell within the year, and hold defendant for the deficiency, or, after the expiration of the year, to sue defendant for specific performance of his agreement to take back the real estate, or for damages for his breach of contract to do so.</p>

<p>Payment—Application.</p> <p>A contractor received money from one W., for whom he was building a house, and paid it to a material man, who had filed a lien against the house, and to whom the contractor was indebted on several accounts. At the time o£ making the payment the contractor stated that he received the money from W., and that “I give it to you on account.” The material man applied it to an account other than that for materials furnished for W.’s house. Held, that a claimant who had filed a subsequent lien against such house was not entitled to have the payment applied to the account for the materials furnished for W.’s house, merely because the money came from the owner.</p>

<p>Appeal from special term, Kings county.</p> <p>Petition by the Brooklyn Elevated Railroad Company relative to acquiring title to real estate or a right of way over premises owned by Isaac Lewis and others, known as “Parcel No. 17,” on Myrtle avenue, in the city of Brooklyn. From an order setting aside the report of the commissioners, and directing a second appraisal before new commissioners, petitioner appeals.</p>

Action by Theodore V. Smalley against the Fulton Bank to recover money deposited with defendant. The complaint was dismissed on the merits, and plaintiff appeals.

<p>Evidence—Declaration- of Assignor of Chose in Action.</p> <p>In an action on a promissory note by the holder thereof, the declarations of the payee are not admissible to the prejudice of plaintiff’s title.</p>

<p>1. Railroad Companies—Fires—Proof op Negligence.</p> <p>In an action against a railroad company for damages caused by fire alleged to have been set by defendant’s engine, a witness testified that he saw a freight train go up the road, and soon saw a fire start on plaintiff’s land, and that the fire extended to the railroad lands. Another witness testified that he first saw the fire near the railroad. There was no evidence to indicate any particular engine from which the fire escaped, and it appeared that at the place of the fire there was a steep grade, in ascending which engines necessarily emitted more sparks than at other places. Held, that the evidence did not show any negligence on the part of defendant.</p> <p>2. Same—Grade op Railroad.</p> <p>In an action for damages caused by fire alleged to have escaped from defendant’s locomotive, evidence that the grade of the road at the place of the fire was steep, and that engines drawing trains up such grade are obliged to labor hard, and on account of such labor emit more sparks, is material.</p>

Action by the Meyer Rubber Company against the Lester Shoe Company and the Lestershire Boot & Shoe Company.

Action by Thomas P. Higgins against E. M. Dakin for wrongfully using a label. From a judgment of the county court affirming a judgment of the justice court in favor of plaintiff for the sum of $200, besides costs, defendant appeals.

Action by Benjamin F. Edsall against John L. Howell for destroying a shade tree. From a judgment entered on a verdict in favor of plaintiff for $50 damages, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by George J. West, as executor of John G. West, deceased, against George H. Wright, Conrad J. Fisher, and James 0. Bennett. Judgment was entered in favor of plaintiff, and defendants appeal.</p> <p>The action was brought December 15, 1888, by the deceased, to recover money alleged to have been paid on a wager contract. The answer contained a denial of the allegations of the complaint. ■ On the 18th of September, 1888, West, the original plaintiff, entered the Binghamton office ■of the Central City Stock & Grain Exchange of Syracuse, Limited, and gave an order to sell 200 shares of St. Paul, and took a ticket, which stated that he had sold to the Central City Stock & Grain Exchange of Syracuse, Limited, 200 shares of St. Paul. The same day he sold another 100 shares of St. Paul. The 200 shares ' were sold at 62(4 and the 100 shares at 62%. At the time of the transactions just mentioned he had no stock. It is claimed that the $1,800 which he paid was deposited to the credit of George H. Wright, treasurer of the Central City Stock & Grain Exchange of Syracuse, Limited. The papers which were used by the parties represented that George H. Wright was secretary and treasurer. Subsequently West demanded back the $1,800, and the demand was refused, and he brought this action to recover' the same. Defendants Bennett and Fisher allege that in September, 1888, at the time of the transactions had with West they were not members of the Central City Stock & Grain Exchange of Syracuse, Limited. The referee found as matter of fact “that during the month of September, 1888, the defendants Conrad J. Fisher and James O. Bennett were not members of the Central City Grain & "Stock Exchange of Syracuse, Limited, and had not been such members for a considerable time prior thereto.” Among his conclusions of law he found, viz. “that, as to plaintiff, defendants were partners in September, 1888, when transactions in suit took place”; and he ordered judgment in favor of the plaintiff against all of the defendants for the sum of 81,800, with interest from December 17, 1888. Exceptions were taken to several findings of fact and to conclusions of law stated by the referee.</p>

Action by William A. Dexter against the village of Fulton to recover damages for the alleged negligence of defendant in leaving one of its bridges in an unsafe and insecure condition, by reason whereof plaintiff’s horse stumbled and fell, receiving injuries, and also causing injuries to plaintiff’s infant son, of the age of eight years, causing an expenditure by plaintiff of $40 for nursing, and of $41.50 for medical services.

Action by Charles L. Blakeslee against Jean B. Cattelain and others. From an order denying a motion to vacate an attachment on the application of a party acquiring an interest after the levy, defendants appeal.

<p>Appeal from court of sessions, Warren county.</p> <p>James Altman was convicted of forgery in the second degree, and appeals.</p>

Proceedings for the probate of the will of Ephraim H. Bender, deceased. Probate was refused, and the executors were allowed their costs and disbursements in the probate proceedings out of the estate, and testator’s widow and others appeal.

Action by William Ramsay against William Robinson for the conversion of a sheep. Judgment was entered in favor of plaintiff, and defendant appeals.

Action of interpleader by the Travellers' Insurance Company against Ann Healey and others. Judgment was entered in favor of defendants Peterson & Packer (28 N. Y. Supp. 478), and defendant Healey appeals.

Action by Osmer B. Wheeler against Edward F. Eobinson and the Merchants’ & Manufacturers’ National Bank of Middletown to foreclose a mortgage given by defendant Eobinson to plaintiff, to secure purchase money upon the lands described in the complaint. Said bank was brought in as a party defendant, on the application of plaintiff, after the action was commenced. The defense sets up false representations made by plaintiff at the time of the purchase.

<p>Taxation—Certiorari to Review Assessment—Return.</p> <p>Under Laws 1880, c. 269, providing that on the hearing of certiorari to review a tax assessment the court may take evidence or may appoint a referee for that purpose, and that “such testimony shall constitute a part of the proceedings on which the determination of the court shall be made,” the return made by the assessors is not conclusive; but where the assessment is attacked on the ground that it was unequal, and the return states that the property was assessed at its fair cash value, they may show that it was in fact assessed far below its value.</p>

<p>Appeal from special term, Onondaga county.</p> <p>Condemnation proceeding by the city of Syracuse against Richard M. Stacey, Mary R. Stacey, Leonard H. Earll, Harriet E. Earll, the G-lenside Woolen Mills, the Central New York Electric Light & Power Company, Simon D. Paddock, George Barrow, Caroline M. Barrow, the Skaneateles Paper Company, the Lakeside Paper Company, Forest G. Weeks, and Sarah A. Weeks, impleaded, etc. An order was entered “confirming the award of the commissioners of appraisal herein, and directing compensation to be made to the several defendants as therein stated, and from the whole of said order, except that part thereof which directs that certain of the defendants who appeared, answered, and defended herein recover of the plaintiff, each, a bill of costs, * * * and that each of said defendants be allowed the sum of five per cent, on the amount of the award.” From said order the defendants above named appeal, specifying in the notice of appeal “that there will be brought up for review upon this appeal by said defendants the judgment of condemnation entered in this proceeding in the clerk’s office of Onondaga county on January 28,1893, and the order appointing commissioners of appraisal, etc., herein, entered in said clerk’s office on January 30,1'893, together with all the proceedings herein antecedent to said judgment and order, including the decision herein on which .said judgment was entered, and from which said judgment and order, and each of them, said defendants hereby appeal.”</p> <p>The plaintiff, by the Syracuse water board, made its petition, bearing date the 14th day of November, 1892, for the purpose of instituting condemnation proceedings against the property of the appellants and several others, and annexed to the petition were 19 schedules, in which were described the properties of the defendants. Accompanying the petition was a notice bearing •date November 14, 1892, signed by the attorneys for the Syracuse water-board, “representing the city of Syracuse upon said application,” to the effect that the petition would be presented to a special term in Onondaga county on the 3d day of December, 1892. On that day parties appeared in said term, and, on motion of the attorneys for the petitioners, several amendments and corrections to the petition were made by an order that the court granted on that day; and on the 4th day of January, 1893, in said term, a further-amendment was allowed to the amended petition by inserting after the word “watershed” the words, “not required by the state of New York for the Erie •Canal,” and by adding the same words, “not required by the state of New York for the Erie Canal,” after, the word “watershed,” where the same first -occurs, and immediately preceding the words, “as the same flow, or might •otherwise flow,” in each of the several schedules annexed to the petition. Numerous objections were taken to the petition, and overruled by the special term, and several answers were filed by the defendants to the petition, and the proceedings were adjourned from time to time. The special term found, after hearing the parties, among; other things, as matter of fact: “In order to accomplish the purpose indicated, it is necessary that the city of Syracuse should condemn and acquire all the property, rights, title, and interest of the defendants, and each of them, of, in, and to the waters of Skaneateles Lake and its watershed not required by the state of New York for the úse of Erie Canal, and which shall not be discharged for such use from said lake into the outlet thereof, and which may not in times of high water, or from other causes, actually escape from said lake and be discharged into the outlet thereof.” Also: “That in the year 1843 the state of New York, under the resolutions of its canal board and canal commissioners next hereinafter recited, appropriated the waters of Skaneateles Lake and its outlet as a reservoir and feeder for the Erie Canal.” Also: “The Erie Canal, upon this level, is open for navigation from about the 1st day of May until the 1st day of December in every year; varying a few days from the dates mentioned, according as the weather may be at the time. These periods of navigation average seven months in a year. During the five months of December, January, February, March, and April of every year, the canal is closed to navigation, and there is no water supplied or required therefor from Skaneateles Lake.” Also: “During the season of canal navigation, covering an average period of seven months in each year, the quantity of water heretofore discharged by. the state from the lake for the use of the canal has varied more or less according to the condition of the lake. The average quantity thus taken from the lake for the uses of the canal during these seasons has been seventy million (70,000,000) gallons per day. Except at times of high water and overflow of the dam, the quantity thus permitted to flow has at all times been regulated and determined by the gate tender, under direction of superior state officers in charge of the canal.” Also: “During the seasons of closed navigation, averaging five months in every year, with the exception of times when, by reason of low water in the lake, or apprehensions of such, the state officers in charge of the canal have withheld the water wholly, for the purposes of storage, the state authorities have permitted a flow and discharge from the lake, through the outlet, upon an average, about forty-eight million (48,000,000) gallons per day.” Also: “The water thus discharged from the lake into the outlet during the seasons or periods of canal navigation, together with that supplied by the watershed of the outlet during the same periods, has ordinarily been more than sufficient to supply the mills upon the outlet with the water used for their machinery and other purposes. A considerable quantity, the amount of which cannot be definitely ascertained, ordinarily flows over the crest or spillways of the dams at the several mills upon the outlet, and, so far as the millowners are concerned, has gone to waste, not being used by them.” It was also found that: “The available supply of water from the entire watershed of Skaneateles Lake, which finds its way into and becomes a part of the lake, upon the average, for a series of years, is an amount equivalent, if equally distributed, to sixty-one million (Ul,000,000) gallons every day. The maximum carrying capacity of the proposed thirty-inch conduit from Skaneateles Lake to the reservoir at or near Syracuse is fifteen million gallons per day. A draught of fifteen million gallons daily from Skaneateles Lake would lower the level of the lake at the rate of two inches per month, or twenty-four inches in a year, provided no supply was in the meantime furnished or discharged into the lake.”</p> <p>Among the conclusions of law, it was found that the state of New York “has acquired the use, and the right of use, of Skaneateles Lake, as a reservoir, and of its outlet, as a feeder, for the purpose of supplying the Erie Canal with water. It has the right to, at any and all times, withhold within the lake, for storage purposes, so much of the waters thereof as may be reasonably necessary to provide for the requirements of the canal. It has the right to discharge therefrom, during the seasons of navigation, so much thereof as may be reasonably necessary for the supply of the canal. This right of storage on the part of the state is not inconsistent with the right of storage sought by the city of Syracuse in this proceeding. Upon making compensation therefor, the city of Syracuse is entitled, in this proceeding, to condemn and acquire or extinguish all the right, title, and interest which the defendants, and each of them, respectively have, of, in, and to the waters of Skaneateles Lake and its watershed, and to any and all use and enjoyment thereof, by reason of their ownership of or interest in the premises severally described in the amended petition herein, and as appurtenant or incident to</p> <p>said premises, for the purpose of supplying said city and Its inhabitants with water, excepting only such and so much water from said- lake as may be permitted or caused to flow from said lake into the outlet thereof, from time to time, by the state of New York, its officers and agents, for the purpose of supplying the Erie Canal with water. And excepting also such water as may from time to time, from any cause, escape from such lake, and be discharged therefrom into the outlet.” The special term further found and decided, as conclusion of law, “that the acquisition and extinguishment of the defendants’ rights, as above defined and set forth, is the acquisition or ex-tinguishment contemplated and required by chapter 314 of the Laws of 1890; that the condemnation hereby authorized is for a public use, and for the purposes contemplated by the laws hereinbefore referred to.” It was also found that the plaintiff was entitled to the appointment of three commissioners, “who shall ascertain, determine, and report the compensation which ought justly to be made to the owners and persons interested in the property and rights to be taken for the public use specified.” The findings of fact and law were signed on the 26th day of January, 1893, and on the 28th of January a judgment thereon was entered, among other things, adjudging that upon making compensation therefor the city is entitled, in this proceeding, “to condemn and acquire or extinguish all the rights, title, and interest which the defendants, and each of them, respectively have, in and to the waters of Skaneateles Lake and its watershed, and to any and all use and enjoyment thereof, by reason of their ownership of or interest in the premises severally described in the amended petition herein, and as appurtenant or incident to said premises, for the purpose of supplying said city and its inhabitants with water, excepting only such and so much water from said lake as may be permitted or caused to flow from said lake into the outlet thereof from time to time by the state of New York, its officers and agents, for the purpose of supplying the Erie Canal with water. And excepting only such water as may from time to time, from any cause, escape from said lake, and be discharged therefrom into the outlet.” And it was adjudged that the city is entitled in this proceeding, as against the defendants, “to condemn and acquire the right to increase the storage capacity of Skaneateles Lake sufficiently to retain therein all the ordinary flow from the watershed, and to at all times store and retain therein so much thereof as shall not be required for the Erie Canal, and, subject to the rights of the state to use the same for the supply of the Erie Canal, to divert therefrom at all times so much thereof as may be necessary to supply the city of Syracuse and its inhabitants with water.” And it was also adjudged “that the acquisition and extinguishment of the defendants’ rights, as above defined and set forth, is the acquisition or extinguishment contemplated and required by chapter 314 of the Laws of 1890.” And it was further adjudged “that the plaintiff is entitled to condemn and acquire and extinguish, all and several, the rights, title, and interest of the defendants * * * of, in, and to the waters of Skaneateles Lake and its watershed not required by the state of New York for the Erie Canal, as the same flow, or might otherwise flow, in the outlet of said lake, and upon, along, over, contiguous, and appurtenant to the lands and premises adjacent to said outlet, described as follows.” Similar language is used as to each parcel, and following the language is a description of the premises owned by the defendants. On the 30th of January, 1893, the special term granted an order designating the commissioners. That order was amended by the special term on tfle 8th of February, 1893, by striking out the name of Dyer, as one of the commissioners, and inserting the name of Palmer, as one of the commissioners, instead thereof. The commissioners qualified, and proceeded to hear the parties and take voluminous proofs in respect to the several rights and ownerships of the parties, and on the 7th of May, 1894, executed and delivered their report, in which they certify that having viewed the premises, and heard the proofs and allegations of the parties, after the testimony -was closed, all being present they did, “without any unnecessary delay, ascertain and determine the compensation which ought justly to be made by the city of Syracuse to the owners of such property and water rights, and the persons interested therein:” and in their report stated the amount which should be paid to the several owners of property, as will more fully appear by reference to their report.</p>

<p>Appeal from special term, Onondaga county.</p> <p>Proceeding by the city of Syracuse against the Skaneateles Paper Company, the Lakeside Paper Company, Forest G. Weeks, Sarah A. Weeks, Richard M. Stacey, Mary R. Stacey, Leonard H. Earll, Harriet E. Earll, the Glenside Woolen Mills, Central New York Electric Light & Power Company, Simon D. Paddock, Charles Barrow, and Caroline M. Barrow, impleaded, to condemn real estate. From an order made on the 19th of May, 1894, “denying the motion of said defendants and others to vacate and set aside the decision, judgment, and order in said proceeding, and the appointment of commissioners therein, and dismissing the proceedings and petition therein, and for other and further relief, and from the whole of said order,” defendants appeal.</p>

Proceedings by the city of Syracuse against Richard M. Stacey, the Skaneateles Savings Bank, and others, to condemn real estate.

Proceeding by the city of Syracuse against the Skaneateles Paper Company, tile Lakeside Paper Company, Forest G. Weeks, and Sarah A. Weeks, impleaded with Richard M. Stacey and others, to condemn real estate. From so much of an order as amended the petition and schedules, defendants appeal.

Proceeding by the city of Syracuse against Richard M. Stacey, Leonard H. Earll, the Glenside Woolen Mills, Central New York Electric Light & Power Company, Simon D. Paddock, George Barrow, and others, to condemn real estate.

Proceeding by the city of Syracuse against Sidney L. Benedict and others. From an order in favor of plaintiff, defendants Benediet and Martin appeal, specifying in the notice of appeal that they intended to bring up for review the judgment, and all proceedings antecedent, as well as subsequent to, said judgment.

Proceeding by the city of Syracuse against the Skaneateles Paper Company and the Lakeside Paper Company to condemn real estate. From an order denying a motion to amend the notice of appeal from final order of confirmation nunc pro tunc as of July 9, 1894, defendants appeal; and from other parts of the order, amending the notice of appeal from the final order of confirmation, plaintiff appeals.

<p>Municipal Corporations—Action against—Notice of Claim.</p> <p>A notice of a claim against a city for injuries caused by falling on a defective sidewalk stated that, “while walking eastward on the plank sidewalk on the north side of East Washington avenue, between Oak and Pratt streets, in said city, I [plaintiff] stepped into a hole in the said sidewalk, which had been negligently permitted to be and remain therein, and the said sidewalk then being in a defective, unsafe, and dangerous condition,” is sufficiently definite under the city charter (Laws 1884, e. 535), requiring such claims to be presented in writing, “describing the time and location of the place where the injury occurred.”</p>

Action by the village of Flushing against Patrick Carraher to recover the penalty for violating a health ordinance. Judgment was entered in favor of plaintiff, and defendant appeals.

<p>Railroad Companies—Accident at Crossing—Contributory Negligence.</p> <p>It is contributory negligence to go on a railroad, wh’ere there are double tracks, after a train has just passed, without waiting until it had gone sufficiently far to give a view of the other track.</p>

Action by George Reid against Wilson L. Defendorf. From an order declaring the service of defendant’s notice of appeal valid and made in time, plaintiff appeals.

Action by Emma Bryant against Louis J. Grant and others for damages to plaintiff’s property. From an order substituting Sterling Wallace as plaintiff in the place of said Emma Bryant she appeals.

Action by John Sutherland against the city of Brooklyn to recover surplus money arising from the sale of land in the city of Brooklyn. Judgment was entered in favor of plaintiff, and defendant appeals.

Action by Lizzie J. Canda against John Totten to compel defendant to convey real estate. Judgment was entered in favor of plaintiff, and defendant appeals.

Action by the Interstate Steamboat Company against the First National Bank of Syracuse and others for the recovery of certain chattels. Plaintiff was nonsuited, and appeals.

Petition by William H. Janes to revoke the probate of certain clauses of the last will and testament of Eckford Webb, deceased. The petition was dismissed, and petitioner appeals.

Controversy between Ann Matilda Herriot, as sole surviving executor and trustee, under the will of Warren Herriot, plaintiff, and Alanson J. Prime, defendant, submitted without action.

On reargument. Action by John Raven against William R. Smith to recover the sum of $1,931.40, with interest from June 1, 1892, for services performed under a contract, and for breach of contract. The cause was first tried on November 5, 1892, before- Mr/ Justice Dykrnan, who rendered judgment in favor of plaintiff for $1,306.90, with costs. This judgment was reversed, and a new trial ordered. 24 N. Y. Supp. 600.

Petition by the Brooklyn Elevated Railroad Company relative to acquiring title to real estate, or a right of way over premises owned by John Flynn, known as “Parcel No. 26,” on Myrtle avenue, in the city of Brooklyn. From an order confirming the report of the commissioners awarding to said Flynn the sum of $500 as compensation for the taking of his easements, and directing the payment by petitioner of the sum of $50,. extra allowance, and costs, petitioner appeals.

0 Action by Wilford Linsly, as executor of John H. Linsly, deceased, against Stephen G-. Held: invested, and accounted for as a part of the principal of the trust estate for the benefit of the reversioners; and, in addition thereto, such part, if any, of the interest upon such bond, theretofore _by them received and deposited as a reserve or sinking fund as aforesaid, as may be necessary to make the proceeds of such bond equal…

Action by Thomas Crimmins against the Metropolitan Elevated Railway Company and another for an injunction and damages. Judgment was entered in favor of plaintiff, and defendants appeal.

Action by John Burk, as administrator of Edward Burk, deceased, against the president, managers, and company of the Delaware & Hudson Canal Company for the alleged negligence of defendant whereby plaintiff’s intestate was killed. From a judgment entered on the decision of the trial judge dismissing the complaint, plaintiff appeals.

<p>1. Larceny—Alleging Ownership.</p> <p>An allegation in a complaint charging larceny, that defendant took “from the money drawer of said deponent’s store” a certain sum, is equivalent to a statement that defendant took the money out of the possession of deponent, who, as against a wrongdoer, must be deemed the owner, within Pen. Code, § 528, providing that a person who, with intent to deprive or defraud the true owner of his property, steals the same, is guilty of larceny.</p> <p>2. Same—Competency of Child.</p> <p>It is discretionary with the court to permit a child under the age of 12 years to testify in a criminal ease.</p>

Action by Julia Caldwell against the Erie Transfer Company for injury to plaintiff’s baggage. Judgment was entered in favor of plaintiff, and defendant appeals.

Action by Howard T. Marston and David Eilau against Gustave A. Baerenklau. From a judgment of the city court (32 N. Y. Supp. 785) affirming a judgment entered on a verdict in favor of defendant, plaintiffs appeal.

Action by Carrie Isabelle Bacon against Frederick F. Proctor and Philip T. Turner. From a judgment entered on a verdict in favor of defendants, and from an order denying a motion for a new trial, plaintiff appeals.

Action by Simon M. Bondy and another against Abraham Collier. From an order of the city court (32 N. Y. Supp. 221) affirming an order denying a motion to vacate an order of arrest, defendant Collier appeals.

Action by Jennie Walsh, as trustee, etc., against the National Broadway Bank. From an interlocutory judgment overruling a demurrer to the complaint (32 N. Y. Supp. 734), defendant appeals.

Certiorari by William S. Devery to review the decision of James J. Martin and others, constituting the board of police commissioners of the city of New York, in dismissing relator from the police force. Commissioner John C. Sheehan voted against the dismissal, on the ground that relator was unable to be present at the trial.

Policemen—Certiorabi to Review—Discharge. On certiorari the general term has jurisdiction to review the decision of the board of police commissioners in denying an adjournment of the trial of a policeman; and, if it be found that such denial involved an abuse of discretion, the order of the board upon such trial, dismissing the policeman from the force, will be reversed, and the policeman reinstated.

<p>Application by the Amsterdam, Johnstown & Gloversville Railroad Company for a certificate that petitioner had complied with the railroad law.</p>

Action by Charles W. Denike against Henry P. De Graaf to recover damages for deceit • From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Judicial settlement of the accounts of Mary A. McGuire, as executrix of the will of John Callahan, deceased. From the decree settling the accounts, and directing payment of a creditor’s claim, the executrix appeals.

Actions by Cornelius N. Bliss and others against Lewis M. Hornthal and others, and by Clement A. Auffmordt and others against the same defendants, and by Thomas A. Wicher and others against the same defendants. From orders granting plaintiffs’ motion for open commissions herein, defendant Hornthal appeals in each case.

<p>Covenants—Restraining Use of Land.</p> <p>A covenant restraining the use of certain lots to dwelling houses or private stables, and providing that the owners shall not “erect or permit upon such lots, or any part of the same, any livery stable, slaughterhouse, smithshop * * *, or any other manufactory of gunpowder, glue, vitriol, ink, or turpentine, or tanning, dressing, or preparing skins, hides, or leather, or any brewery, * * * place for the exhibition of wild animals, or any other erections known as nuisances in the law,” does not forbid the use as a dressmaking establishment of a house erected for a private dwelling.</p>

Action by Frank Frisbie against William W. Averell on a promissory note made by defendant to the order of Mortimer A. Frisbie, plaintiff’s husband, who assigned it after maturity to plaintiff. From an order granting leave to plaintiff to file a supplemental complaint on payment of $10 costs to defendant,, and giving defendant 20 days’ time to answer the same, defendant appeals.

<p>Necessary Parties—Action against Heirs.</p> <p>In an action to enforce the statutory liability of the heirs of a deceased debtor, the purchasers at a partition sale of the property descended, who purchased with notice of the pending action against the heirs, are necessary parties.</p>

<p>Appeal from special term, New York county.</p> <p>Action by William E. D. Stokes against Edward S. Stokes and others. From orders of reference, defendant Stokes appeals.</p> <p>The facts are stated by Mr. Justice FOLLETT as follows:</p> <p>This action was begun December 28, 1892, by a stockholder, in behalf of himself and of other stockholders, against the Hoffman House (a corporation) and its officers, for an accounting as to their conduct in the management of the business of the corporation, and the possession of its funds and property. The Hoffman House was incorporated August 18, 1890, under the laws of New Jersey, with a capital stock of $750,000, divided into 2,500 shares of 8 per cent, preferred, cumulative stock, of $100 each, and 5,000' shares of common stock, of $100 each. The plaintiff and Edward S. Stokes, one of the defendants, are the principal owners of the shares. It is alleged in the complaint that the individual defendants have mismanaged the affairs of the corporation and misappropriated its funds; and a judgment is prayed for that the defendants be required to account, and pay to the corporation all money and the value of the property which they have acquired, transferred, lost, or wasted by fraud and negligence. Also, that all alienations of property contrary to law be set aside; that a receiver be appointed of the funds of the corporation, and the individual defendants restrained from acting as directors or officers thereof. All of the defendants answered, denying that the affairs of the corporation had been mismanaged. The Hoffman House and Edward S. Stokes answered separately, and the other defendants jointly, the same attorney appearing for all of the defendants. Upon the issues so joined the action came on for trial May 25, 1894, at a special term, all of the parties appearing. Evidence was given in behalf of all of the litigants, and at the close the defendants moved that the complaint be dismissed,—no grounds stated. The motion was denied, and an exception. taken;-and thereupon the following order, except the italicized paragraphs, was granted, and entered on the day of its date:</p> <p>“At a Special Term of the Supreme Court of the State of New York held at the County Courthouse in the City of New York on the 20th day of June, 1894. Present: Hon. George L. Ingraham, Justice.</p> <p>“[Title of Cause.]</p> <p>“Order.</p> <p>“This being an action brought by the plaintiff, as a stockholder and a creditor of the Hoffman House, against the defendant, and proofs on the part of the plaintiff having been taken, and proofs having been taken on the part of the defendants, and it appearing that the defendant Edward S. Stokes has had certain transactions with the corporation, which appear upon the books of said corporation in three accounts therein, known as the ‘Edward S. Stokes Account,’ the ‘Fenwick Hall Account,’ and the ‘Yacht Account,’ and it appearing that the taking of an account of the transactions embraced in the said three accounts is necessary for the information of the court before a final judgment herein may be decreed and entered, it is, on motion of Holmes & Adams, attorneys for the plaintiff—</p> <p>“Ordered, that it be referred to Middleton S. Burrill, Esq., as referee:</p> <p>“First. To take and state an account of, all and singular, the dealings and transactions between the said Edward S. Stokes and the said Hoffman House embraced in the said three accounts. And also any other sum or sums of money that have been received by the said Edward S. Stokes from the defendant corporation, the Hoffman House, or paid by the Hoffman House on ac ount of said Edward 8. Stokes.</p> <p>“Second. That the said referee shall, in taking and stating said account, make all just allowances to the said Edward S. Stokes for any just claims or demands that he may have against the said Hoffman House, and also any not appearing in said three accounts.</p> <p>“Third. That said referee shall report what sums, if any, shall appear to be due from the said Edward S. Stokes to the Hoffman House, or from the said Hoffman House to the said Edward S. Stokes; and said referee is at liberty to state and report any special circumstances, as well as his reasons for allowing or disallowing any claim or allowances that may be claimed by either party. And it is further—</p> <p>“Ordered that the question of costs, as well as all other questions, be reserved until the coming in of the report of the said referee, and the hearing thereon.</p> <p>“And it is further—</p> <p>“Ordered that either of the parties, plaintiff or defendants, have liberty to apply to the court for a further order or direction in the premises as he or they may be ordered.</p> <p>“ Ordered, that the defendant Edward S. Stakes produce and file with the referee appointed by said interlocutory decree of June SO, 1894, all books of account in his possession, or under his control, relating to the business of the said corporation, the Hoffman House, and leave the same in the custody of the referee for such times and under such terms as the referee may direct. ”</p> <p>On the 8th of October, 1894, all the parties appeared' before the referee, and a hearing under the order was begun, without an objection being interposed by any of the parties, and was continued without objection from day to day until May 23,1894. On the 26th of November, 1894, the referee made the following report: 1</p> <p>“I, Middleton S. Burrill, the referee to whom it was referred by the interlocutory judgment herein, dated the 20th day of June, 1894, to take and state an account between the defendant Edward S. Stokes and the Hoffman House, do hereby report and certify that, pursuant to the said judgment, I proceeded to a hearing of the matter so referred, at my office in the city of New York, on October 8, November 14, November 19, and November 23, 1804, and on all of such hearings the plaintiff appeared and attended by his attorneys, Messrs. Tracy, Boardman & Piatt, and the defendant Edward S. Stokes by his attorney, John J. Adams, Esq. Pursuant to my direction contained in the minutes of the hearing of October 8, 1894, the defendant Edward S. Stokes did file an account, and the plaintiff filed objection ¿thereto, both of which are now on file with me. At the hearings of November 14th, 19th, and 23d, the defendant was examined upon said account by counsel for the plaintiff. At the hearing of November 3, 1894, the defendant had present, in his custody and possession, the books and papers mentioned in the proceedings of that date; and I then ordered him to deposit such books and papers with me, as referee, for inspection by the plaintiff’s attorneys, which he refused to do, by the direction and advice of his attorney, John J. Adams, Esq. I further certify that the annexed is a true copy of the record of the proceedings before me upon such hearings.</p> <p>“Dated New York, November 26, 1894.</p> <p>“[Sgd.] Middleton S. Burrill, Beferee."</p> <p>Annexed to this report is the evidence taken before him. On this report, and on all the papers and proceedings in the action, an order to show cause was granted on the application of the plaintiff, on the return of which (November 30, 1894) the order of June 20, 1894, was amended by adding thereto the italicized paragraphs. January 25, 1895, Edward S. Stokes appealed from both orders, the other defendants not appealing.</p>

Action by Mary Manning against John B. Manning for an accounting. From an order granting a motion to set aside the referee’s report, and the interlocutory judgment entered thereon, defendant appeals.

Action by Henry L. Herbert and others against John Duryea to charge defendant as a stockholder of the Consumers’ Gas Company, an insolvent corporation. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, defendant appeals.

Action by Samuel W. Gastner and others against John Duryea to charge defendant as a stockholder of the Consumers’ Gas Company, an insolvent corporation. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, defendant appeals.

Action by the National Pipe-Bending Company against George E. Fisher to recover the value of goods sold. From an order denying an application for leave to serve an amended answer, defendant appeals.

<p>1. Fraudulent Conveyances—Confession of Judgment.</p> <p>2 Rev. St p. 137, § 1, provides that “every conveyance or assignment ■ * * * made with intent to hinder, delay or defraud creditors * * * and every * * * judgment suffered with the like intent as against the person so hindered, delayed or defrauded, shall be void.” Section 8 provides that “this chapter shall not be construed in any manner to affect or impair the title of a purchaser for a valuable consideration,” unless such purchaser had notice of the fraud. Held, that a judgment confessed in favor of one creditor for the purpose of defrauding another creditor is void as to the creditor intended to be defrauded.</p> <p>2. Same—Knowledge of Judgment Cbeditor.</p> <p>A debtor against whom plaintiff had brought an action obtained an extension of time to answer by promising to pay plaintiff’s claim, and that in the meantime there should be no change in his property, and no judgment should be entered against him, and that plaintiff should not in any way be prejudiced by the delay. Plaintiff granted the extension. Thereupon the debtor confessed judgment in favor of other creditors. Held, that the judgments so confessed were fraudulent and void as to plaintiff, though the persons in whose favor they were confessed did not participate in the fraud.</p>

' Certiorari by Frank Schaeffler against Edward P. Barker, John Whalem, and Joseph Blumenthal, commissioners of taxes and assessments of the city of New York. From an order quashing the writ, relator appeals. Joseph Schaeffler, in his lifetime, was the owner of 20 shares of the stock ■of the German Exchange Bank in the city of New York.

Action by Joseph Mitchell against Sara J. Keane for personal injuries. From'a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Charles L. Eidlitz against Jacob Rothschild and others to foreclose a mechanic’s lien. From an order denying a motion to strike out a portion of the reply, defendants appeal.

Action by the American Distributing Company against Edward W. Ashley for the price of goods sold. From a judgment entered on a verdict in favor of plaintiff for part of the sum sued for, and from an order deifying a motion for a new trial made on the minutes, plaintiff appeals.

<p>Equity—Rescission of Contract—Release of Dower.</p> <p>In an action for admeasurement of dower, plaintiff cannot impeach for fraud an agreement made during the lifetime of her husband, by which, in consideration of a certain sum of money, she gave a general release from all claims and demands which “she or her heirs or assigns had or might have against the said” husband or his property, unless she first refunds or offers to refund the amount paid to her in consideration of such release.</p>

<p>Appeal from special term, New York county.</p> <p>Action by the Empire City Subway Company, Limited, against the Broadway & Seventh Avenue Railroad Company and Houston, West Street & Pavonia Ferry Railroad Company. From a judgment dismissing the complaint on the merits, and from an' order granting an extra allowance of costs, plaintiff appeals.</p> <p>This action was begun July 11, 1893, to enjoin the defendants from maintaining a conduit for the reception - and operation of a telegraphic and telephonic conductor on the line of the defendants’ road, and to restrain them from using any electrical conductor not placed in the plaintiff’s subways and conduits. The defendants were incorporated under chapter 252 of the Laws of 1884, for the purpose of constructing, maintaining, and operating surface railroads in certain streets of the city of New York. The Broadway & Seventh Avenue Railroad Company owns the road extending from South Ferry, through Whitehall street, Broadway, and Seventh avenue, to Central Park, at the intersection of that avenue and Fifty-Ninth street. Formerly the Broadway & Seventh Avenue road was operated with horses, but, by chapter 531 of the Laws Qf 1889, it was authorized, upon obtaining certain consents, to move its cars by a cable, and make such changes in its road and the bed thereof as should be necessary so to operate its line. Afterwards the consents of the owners of more than one-half in value of the property on this line were obtained that the corporation might substitute a cable for horse power; and November 12, 1889, the common council of the city consented that the corporation might operate the road by a cable, on terms and conditions agreed on, which were expressed in a preamble and resolutions adopted on that day, and approved by the mayor November 13, 1889. By chapter 259 of the Laws of 1890, the aforesaid acts of the authorities of the city were validated and confirmed. On the 13th' of May, 1890, the roads owned by the Broadway & Seventh Avenue Railroad Company were leased to the Houston, West Street & Pavonia Ferry Railroad Company, since which date the leased lines have been operated by the lessee. On the 31st of July, 1890, the board of railroad commissioners of this state approved of the proposed change of power, and of the terms and conditions agreed to between the city and the corporation, and imposing certain other conditions, which were expressed in their determination on file in the office of said board, among which is the following: “The counsel of the company agreed that every provision that ingenuity could suggest would be adopted to operate the cable with safety to the traveling public, particularly in the form of grip and system of signaling to the central house to stop the engines in case of accident.” Pursuant to the authority so obtained, cable power was substituted for horse power for propelling the cars. To effect the change, a central or power house was erected, where power was generated and applied to the cable, and a subway constructed in the roadbed for the cable; and an iron pipe 2y2 inches in diameter was laid, wherein were placed electrical wires for the purpose of transmitting signals between the power house and signal boxes placed along the line and about 600 feet apart. These wires are used solely for communicating between the power house and the various signal boxes intelligence relating to the operation of the road, and especially for the purpose of stopping the movement of the cable in ease of an accident on the line. Prior to July, 1886, the Consolidated Telegraphic & Electrical Subway Company was incorporated under the laws of this state for the purpose of building and maintaining subways in the city of New York, and renting space in such ways to the owners of electrical conductors. In July, 1886, and in April, 1887, the board of commissioners of electrical subways entered into contracts with the Consolidated Telegraphic & Electrical Subway Company by which this corporation was granted the right to construct subways in accordance with plans thereafter to be agreed on, manage and operate the same, and charge and receive compensation for the use of space in such subways. By chapter 716 of the Laws of 1887 the board of electrical control in the city of New York was created and invested with the power previously conferred upon the board of commissioners of electrical subways in said city; and by the sixth section of the act the contracts of July, 1886, and of April, 1887, were ratified and confirmed. On the 26th of April, 1890, the Empire City Subway Company, Limited (the plaintiff), was incorporated, pursuant to chapter 611 of the Laws of 1875 and the acts amendatory thereof and supplemental thereto, for the purpose of constructing, maintaining, and operating electrical conductors, subways, and conduits, and to lease space in the subways and conduits so constructed to persons and corporations having the right to operate electrical conductors in this city. In December, 1890, the Consolidated Telegraphic & Electrical Subway Company, with the consent of the city, conveyed to the plaintiff all subways and conduits for telegraphic and telephonic conductors of the Edison Electric Illuminating Company of New York. May 15, 1891, the board of electrical control and the plaintiff entered into a contract by which the latter agreed to construct, equip, maintain, and operate subways, conduits, and ducts for telegraphic and telephonic conductors, and for low tension electrical light and power conductors of the Edison Electric Illuminating Company in certain streets and avenues in the city of New York. By the fourth article of this contract it is provided: “This contract to be without prejudice to the right of the parties of the first part [the city authorities] to enter into such other, further, or different contracts as shall be necessary to carry out the intent and purpose of chapter 716, Laws of 1887.” The fifteenth article of this contract contains this provision: “Nothing in this contract shall be construed as granting to the party of the second part [the plaintiff] any exclusive privileges, immunity, or franchise whatsoever.” Pursuant to the statutes and contracts referred to, the plaintiff has constructed and maintained subways and conduits for electrical conductors in the streets occupied by the defendants’ roads, and is engaged in renting space to the owners of such conductors.</p>

Action by the Empire City Subway Company, Limited, against the Columbus & Ninth Avenue Railroad Company. From an order denying a motion for an injunction pendente lite, plaintiff appeals.

Action by Emma C. Smith against Isabella H. Fisher to have a certain deed and a contract reformed to be a mortgage, and, when so reformed, foreclosed. George C. Smith was named as a plaintiff with Emma C. Smith when the action whs brought, but he died during the pendency of the action and his name was stricken out, and the trial proceeded in the name of Emma C. Smith as sole plaintiff. Judgment was entered in favor of plaintiff, and defendant appeals.

Action' by Amelia Sieburg against the Massachusetts Benefit Life Association to recover the amount due on certain policies of life insurance. A verdict was directed in favor of plaintiff, and defendant moves to set aside the same, and for a new trial, on exceptions ordered to be heard at general term in the first instance.

Action by Edward Wright against Robert W. Chapin. From a judgment in favor of plaintiff for the sum of $26,750.61, defendant appeals.

Action by Catherine S. Baker, as administratrix of Warren M. Baker, deceased, against John H. Sutton and Conrad F. Suderley, Jr., for the death of plaintiff’s intestate, alleged to have been caused by the negligence of defendants while intestate was in their employ, drawing sand on their premises. From an order denying a motion to require plaintiff to furnish a further bill of particulars, defendants appeal.

Appeal'from special term, New York county. Action by Thomas H. O’Connor against Peter W. Felix and others to foreclose a mortgage. From an order confirming the referee’s report, and directing the purchaser at the foreclosure sale, one Michael H. Hagerty, to complete his purchase, said purchaser appeals.

Two actions by Stanley H. Bevins against Annie Albro. Both actions were brought for the same cause of action, viz. for the services and disbursements of plaintiff as attorney for said Annie Albro in an action wherein one Sheehy was defendant and said Albro plaintiff. In action No. 1 a judgment for costs was rendered against plaintiff, amounting to §81.80; in the other action, No. 2, judgment was rendered in his favor for $163.55 damages and costs.

<p>1. Public Lands—Refund mu Purchase Money—Limitation.</p> <p>Under 1 Rev. St. p. 198, § 6, providing that, on failure of title to land granted by the state, the purchase money shall be repaid on the warrant of the comptroller, the statute of limitation against such claim does not begin to run, if at all, until the decision of the comptroller setting aside ' the sale.</p> <p>2. Same—Assignee of Purchaser.</p> <p>1 Rev. St. p. 198, § 6, providing that whenever the title to lands granted by the state shall fail, and a legal claim for compensation on account of such failure shall be preferred by any person entitled thereto, it shall be the duty of the commissioners of the land .office to- direct the payment of the original purchase moneys which may have been paid to the state by “such person,” includes the assignee of a purchaser, and is not, by the use of the words “such person,” restricted to the purchaser.</p> <p>8. Same—Refusal of Claim—Ministehial Act.</p> <p>The refusal of the commissioners of the land office to order the repayment of the purchase money in such, case is a ministerial act.</p>

Action by Israel Gerstein against Robert W. Fisher to recover damages for the loss of the services of plaintiff’s son. Defendant moves for leave to serve a supplemental answer.

<p>Motion for a reargument.</p>

<p>Action by one Butler against one Brown.</p>

<p>Action by David Aldridge as superintendent of the poor, etc., against Mary Walker.</p>

<p>Action by William Dempsey against the New York Central & Hudson River Railroad Company.</p>

<p>Action by John Cassidy against the Atlantic Avenue Railroad Company.</p>

<p>Action by Ida M. Dow-Currier against David Henderson.</p>

<p>Action by Thomas F. Dowd, as administrator, etc., against the Brooklyn Heights Railroad Company.</p>

<p>Action by Samuel D. Folsom and others against Robert C. Lewis, impleaded, etc.</p>

<p>Action by George Goetting against the Blanhattan Railway Company and others.</p>

<p>Action by Morris Frohmaim against the Manhattan Railway Company and another for an injunction and damages.</p>

<p>Action by Julius Freudenheim and Isidore Abramson against Julia Raduziner.</p>

<p>Action by the German-American Investment Company against W. J.- Hayes and others.</p>

<p>Action by J. Theodore Knox against Warner Johnson.</p>

<p>Action by Fritz Jagan against Fredericka Goetz.</p>

<p>Action by Charles L. Levey against the Kiernan News Agency.</p>

<p>Action by Bernard S. McKean against Charles H. Adams.</p>

<p>Action by Frederick Mead against the New York Elevated Railroad Company and the Manhattan Railway Company.</p>

<p>Action by John McQueen, receiver, etc., against Tobias New, impleaded, etc.</p>

<p>Action by one Mulrein against one Miller.</p>

<p>Action by the New York Board of Fire Underwriters against Metropolitan Lloyds of New York and another.</p>

<p>Action by Joseph H. Newins and another against H. Eckford Rose.</p>

<p>Action by the people of the state of New York against Emily C. Kaufman Hall.</p>

Certiorari by the Manhattan Railway Company against Edward P. Barker and others, commissioners of taxes and assessments, to réview an assessment on relator’s personal property of taxes for the year 1894.

<p>Action by the people, on the relation of William P. Douglas, against David L. Van Nostrand, supervisor.</p>

<p>Action by the people, on the relation of Garret Sarvent, against George C. Stephens and others, assessors.</p>

<p>Action by Ernest Plath against the Manhattan Railway Company and others.</p>

<p>Action by Jennie M. Perry against John P. Hughes.</p>

<p>Action by John Peter Pils against the Manhattan Railway Company and others.</p>

<p>Action by Benjamin F. Romaine and others against Thomas T. Brewster.</p>

<p>Action by John H. Smallwood and others against Herman H. Schwietering and others.</p>

Action by the Union Insurance Company of Philadelphia and the Insurance Company of the State of Pennsylvania against the Central Trust Company of New York, the Continental Insurance Company of the City of New York, impleaded with Kate E. Dimick, as executrix under the last will and testament of Lorenzo Dimick, deceased.