Volume 34 — New York Appellate Division Reports

Appeal by the defendant, the Metropolitan Street Railway Company, from an order of the Supreme Court, made at Kings County Special Term and entered in the office of the clerk of the county of Queens on the 12th day of August, 1898, changing the place of trial of the action from the county of Queens to the county of Kings.

<p> Judgment—a modification thereof is not obtainable by order—when an easement in, and not the fee of, a street is conveyed—it may be acquired by eminent domain. </p> <p>After a judgment has been entered in an action, deciding that the plaintiff therein . is the owner of certain lands within the boundary of an avenue, and that she also possesses an easement therein of access to and from her premises, in front of which a railroad embankment has been constructed, and directing the railroad company, the defendant in the action, to take proceedings to condemn, the court has no power to grant an application to open, amend and correct the judgment so as to show that the plaintiff owned up part of the land within the hounds of the avenue, but only an easement therein.</p> <p>Semble, that a grantee, under a conveyance which bounds the land conveyed upon the exterior line of an avenue, not then existing, hut thereafter to be opened, and which contains a covenant that the avenue shall be opened as a street bounding the premises conveyed, and that the grantee, his heirs and assigns, “may enjoy the privilege of using the same as such forever,” obtains only an easement in the avenue.</p> <p>Such easement constitutes a property right, which is subject to proceedings for condemnation in invitum.</p>

Appeal by the relaton, Augustus 0. Tate, from an order of the Supreme Court, made, at the Kings County Special ■ Term and entered in the office of the'clerk of the county of Kings on the 7 th day of June, 1898, denying the relator’s motion for a peremptory writ of mandamus directed to William Dalton, commissioner of water supply of the city óf New York, commanding him to reinstate the relator in the position of water registrar for the department of water supply in the…

<p>Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 15th day of April, 1898, upon the verdict, of a jury for $500, and also from an order entered in said clerk’s, office on-the 18th day of April, 1898, denying the defendant’s, motion for a new trial made upon the minutes.</p>

Appeal by the plaintiffs, Egbert B. Ellison and J. Hujier Ellison, composing the firm of Ellison & Co., from a judgment of the Supreme Court in - favor of the defendant, entered in the office of the clerk of the county of Queens on the 2d day of March, 1898, upon the report of a referee dismissing the complaint upon the merits in an action brought to foreclose a mechanic’s lien.

Certiorari issued out of the Supreme Court and attested on .the 10th day of May,. 1898, directed to James McCartney, commissioner of street cleaning of the city of New York, commanding him to certify and return to the office of'the cleric of the county of Kings all and singular the proceedings had in regard to the reduction of' salary and the dismissal of the relator from employment in the street cleaning department of the city of New York.

Appeal by the defendant, Charles H. Kirby, from' an order of the Supreme Coiirt, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Dutchess on the 10th day of August, 1898, denying the defendant’s motion for a hill of particulars.

<p>Appeal by the plaintiff, Charles W. Daly, from an interlocutory judgment'of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 21st day of May, 1898, upon the decision of the court rendered after a trial at the Kings County Special Term sustaining the defendant’s demurrer to the plaintiff’s complaint.</p>

Appeal by David Camerick,' the judgment debtor, from an order of the County Court of Kings county, entered in the office of the clerk of the county of Kings on the 28th day of June, 1898, adjudging him in contempt for a failure to turn over his store and business to the receiver appointed in the proceeding, with notice of an intention to bring up for review upon such ajipeal an order entered in said clerk’s office on. the Ith day of June, 1898, appointing a receiver of the…

Appeal by the plaintiff, Evelina A. Meserole, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 16th day of March, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the plaintiff’s motion for a new trial made upon the minutes.- . The action was brought to recover rent.

<p>Appeal by the defendant, The City of Mount Vernon, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 23d day of March, 1898, upon the report of a referee.</p>

Appeal by the defendant, Frederick M. Littlefield, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 19th day of February, 1898, upon the decision of the court rendered after a trial at the Dutchess County Special Term, and also from an-order entered in said clerk’s office on the 10th day of February, 1898, denying the defendant’s motion for a new trial made upon the minutes, with notice of an…

Appeal by the plaintiff, William N. Dykman, as receiver of .the ■ Commercial Bank, from a judgment.of the Supreme.Court in favor' of the defendants, entered in the office of the clerk of the county of Kings on the 12th day of. April, 1898, upon the dismissal of the complaint by direction of the court after' a trial at the Kings County Trial Term.

Appeal by The Board of Education of the City of Hew York and others from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of October, 1898, granting the motion of the school board of the borough of Brooklyn that a peremptory wi’it of mandamus issue directing the board of education of the city of Hew York to forthwith apportion the general school fund among the several borough-…

Appeal by John H. Sutphin, clerk of'the county of Queens, from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 22d day. of October, 1898, and entered in the office of the clerk of the county of Queens, directing the said clerk, in preparing the ballots to be voted at the next general election in the towns of Oyster Bay-, Rortli Hempstead and Hempstead (being that part of tlie county of Queens constituting, or to constitute, the new…

Certiorari issued out of the Supreme Court and attested on the-1st day of March, 1898, directed to Daniel A. Shaw, as president, and George H. Brouwer and others, as trustees, constituting the board, of trustees of the village of Sea Cliff, in the county of Queens, commanding them to certify and return to the office of the clerk of the-county of Queens all and singular their proceedings in reference to-the application to close a portion of Dayton street in the village of:…

Appeal by the defendant, Helen Johnson, from a judgment of the Supreme Court in favor of the plaintiff, entered.in the office of the clerk of the county of Kings on the 23d day of April, 1898, upon the verdict of a jury, and also from an order entered ■ in said clerk’s .office on the 29th day of April, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by The Emerald and Phoenix Brewing Company o.f New York, assignee of the defendants Thomas C. Lyman and Henry L. Greenmail, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 27th day of May, 1898, denying its motion to vacate and set aside the interlocutory judgment of partition and sale entered in said clerk’s office on the 24th day of August, 1897, and the proceedings…

Appeal by the defendant, the Nassau Electric Railroad Conn pauy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of March, 1898, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 2d day of' March, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in -the office of the clerk of the county of Kings on the 25th day of April, 1898, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 17th day of May, 1898, denying the defendant’s motion for a new trial made upon the minutes.

<p>Certificate of nomination for State Senator—when it may he filed under section 59 of the Election Law — distinguished from acts affecting the rights of third parties.</p> <p>A candidate for State Senator is entitled at any hour of the day, “ at least twenty-five days prior to the holding of the election,” to file with the clerk of the county a certificate of nomination for that office, and the delivery of such a certificate to the clerk, between the hours of ten and eleven in the night of the last day on which such certificate could be lawfully filed,, is sufficient under the provisions of section 59 of the Election Law (Chap. 909 of the Laws of 1896).</p> <p>The certificate need not be filed within the hours during which the clerk is required, by statute, to keep his office open for the transaction of public business.</p> <p>The distinction between the construction to be given to a law which creates an involuntary lien and fixes the rights of third parties affected thereby, and one which seeks a method of procedure by which the nomination of candidates for office is evidenced, considered.</p>

Appeal by the defendants, Barzillai G-. Heff and others, constituting the board of assessors of the city of Brooklyn, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 15th. day of March, 1898, granting the relator’s motion for a peremptory writ of mandamus commanding the defendants to cancel all taxes levied and imposed for the years 1893, 1894, 1895, 1896 and 1897, upon property…

Appeal by the plaintiff, the Mutual Benefit Loan and Building Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 29th day of June, 189.8, upon the report of a referee.

Appeal by the Port Jervis, Monticello and New York Railroad Company, the defendant in the above-entitled actions, from judgments of the Supreme Court in favor of the plaintiff in said actions, entered in the office of the clerk of the county of Orange on the 18th day of January, 1897, upon the verdict of a jury for $1,300 in the first action, and for $300 in the second action, and also from orders entered in said clerk’s office on the 20th day of January, 1897, denying the…

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Queens on the 6th day of July, 1898, upon the decision of the court rendered after a trial at the Queens County Trial Term before the court without a jury.

Appeal by the defendant, Ernest Ochs, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of April, 1898, upon the verdict of a jury, witli notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 22d day of April, 1898, denying the defendant’s motion for a new trial made upon tlie minutes.

Appeal by the plaintiff, John Devlin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 23d day of February, 1898, upon the decision of' the court rendered after a trial at the Kings County Special Term dismissing the plaintiff’s complaint.

Appeal by the plaintiff, Charles Hagedorn, from a judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of the county of Kings on the 30th day of March, 1898, upon the dismissal of his complaint by direction of the court after a trial before the court and a jury.

<p>Statute of Frauds — delivery and, acceptance of goods sold subject to their being satisfactoi’y to the vendee — effect of their delivery by the consignor to a carrier not selected, by the consignee.</p> <p>Although merchandise Of. the value of more than fifty dollars is purchased upon the verbal understanding between the purchaser and a third party that it is to be sold to the third party, if it proves satisfactory to him, and is delivered by the purchaser in accordance with such understanding to a general carrier not. ■ designated nor selected by the third party, and is by the purchaser consigned to the third party by a bill of lading forwarded to him by the purchaser (the-consignor), there is no sufficient delivery and acceptance of the goods, and the-title thereto remains in the consignor until the merchandise has been inspected by the third party, who has, until such inspection, no leviable or attachable interest in the merchandise as against such consignor.</p>

Appeal by. the plaintiff, Mary I. Young, as administratrix, etc., of Robert Young, deceased, from an order of the Supreme Court, made at the Kings County Special Term and' entered in the office of the clerk of the county of Kings on the 12th day of September, 1898, vacating an order permitting the plaintiff to sue i/n forma,pauperis.

Appeal by the defendant., The Spring Garden Insurance Company, from a final judgment of the Supreme Ooürt in favor of the plaintiffs, entered in the office of the clerk of the county of Richmond on the 16th day of May, 1898, with notice of an intention to bring up for review upon such appeal an interlocutory judgment in favor of the plaintiffs, entered in said clerk’s office on the 16th day of April, 1898, upon the decision of the court'rendered after a trial at the Kings…

Appeal by the defendant, Edward Livingston, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Orange on the 1st day of April, 1898, upon the report of a referee.

Appeal by the defendant, The Trustees of the Exempt Firemen’s Benevolent Fund.of Long Island City, from an interlocutory judgment of the Supreme Court in favor of the-plaintiff, entered in the office of the clerk of the county of Queens on the 9th day of June, 1898, overruling the said defendiint’s demurrer to the complaint interposed on the ground that it did not state facts sufficient to contitute a cause of action.

Cross-appeals by the plaintiffs and the defendant from portions of an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 21st day of April, 1898, upon the decision of the court rendered after a trial at the. Kings County Special Term.

Appeal by the defendants, Benjamin Flagler, as committee of the estate of Jane A. Porter,¡an incompetent person, and others, relatives of the said Jane A. Porter,'from an order of the Supreme Oourt, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 4th day of October;, 1898, appointing a committee of the person of Jane A. Porter, an incompetent person ; also from an order made at the Kings.

Appeal by the defendant, The City of Hew York', from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of July, 1898, upon the decision of the court rendered after a trial at the Kings County Trial Term before the court without a jury.

Appeal by the defendant, George Ott, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of May, 1898, upon the decision of the court rendered after a trial at the Kings County Trial Term before the court without a jury.

Appeal by Henry Sammis, the judgment debtor in the above-entitled action, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 20th day of October, 1898, denying his motion to compel the plaintiff and his attorneys to file an order which, the plaintiff had procured for the examination in supplementary proceedings of the First National Bank of Hempstead, a third party, indebted to the…

<p>Contract of sale—violation of an agreement that the vendee was to sell the merchandise to a third party — a guarantor' is not thereby discharged — application of payments—proof .required of the surety.</p> <p>A surety, who has guaranteed the payment for oats sold under an agreement by 'the' vendee that they were for the use of, and to be sold only to, the Brooklyn fire department, and that all moneys received from such department were to be applied in payment thereof, is not relieved from his obligation because the vendee diverted a part'of the oats to other purposes, and did not deliver them to the fire department as provided for in the contract of sale.</p> <p>Where it appears that the vendee made other purchases from and had another account with the vendor, and that he, during the same period, also furnished other goods to the fire department, the burden rests on the surety to show that drafts' of that department, which the vendee either directly or indirectly received, were given by it on account' of goods, sold under the particular contract, for the performance of which he was surety.</p>

<p>Mandamus'— issued to compel a ministerial officer to pay where the right is clear, although there exists a remedy at law — prima facie case — what averments in an answer are insufficient — supervisory power of the comptroller of New York.</p> <p>The rule that a mandamus will not be granted where the party has a remedy by “ action is one addressed to the sound discretion of the court and is not of universal application; and where the right of a party to payment is clear and there are funds on hand applicable to such payment, the court may and will, in the exercise of a sound discretion, compel by mandamus a ministerial municipal officer to audit and pay the claim, although, if the city itself repudiated or denied the existence of the obligation, the rule would be different.</p> <p>Where, on an application by a contractor for a mandamus to compel the payment of an amount due him under a contract for the erection of a schoolhouse within the limits of Greater New York, it appears that money for the construction of the schoolhouse was raised by the issue of bonds of the school district, and that the proceeds were paid to the comptroller before the time of the application, the relator has made out a prima facie case. ■</p> <p>While the rule is strict that all facts averred in answer to an application for a ■peremptory writ, whether of an affirmative character or merely denials, must be taken as true, the rule is equally strict that affirmations which are only conclusions of law or fact, or are indefinite or general statements, are of no avail and worthless; and a denial in gross, without stating facts, is a mere conclusion.</p> <p>The comptroller of the city of New York, in the absence of fraud or illegality, has no general supervision over the conduct of other officers or departments o£ the city.</p>

Appeal by the plaintiff, diaries H. Shanley, from,a judgment of the Supreme Court in favor of the defendant, entered in the office ■of the clerk of the county of Westchester, on the 25th day of July,. . 1898, upon the decision of the court rendered after a trial at the Westchester Special Term dismissing the plaintiff’s complaint.

<p>Adopted child — right to inherit a sum payable on the death of a member of the New York Produce Exchange.</p> <p>A by-law ot the New York Produce Exchange which provides that “Should a member die * * * if he leave children and no widow, then the whole sum shall be paid to the children. * * • * Should the member die leaving neither widow nor children, then the whole sum shall be paid to. the next of kin of the deceased, within the limit of representation prescribed by the statutes of the State of New York,” passed subsequently to the enactment of chapter 830 of • the Laws oí 1873, providing that a child adopted thereunder, and the person adopting him, should thenceforth “sustain toward each other the legal relation of parent and child and have all the rights and he subject to all the duties of that relation, except the right of inheritance,” creates in favor of an adopted child of a member who died in 1898, leaving no widow or children or remote issue and- without next of kin other than such child, a right to the payment of the sum payable on the death of such member.</p> <p>It seems, that the adopted child might claim the fund under the provisions of chapter 703 of the Laws of 1887, as the next of kin, within the Statute of Distributions as modified by that act, although not considered as. the child. of the deceased member within the .meaning of the by-law — the by-law being intended to be construed under the statutes of the State as they existed at the member’s death.</p>

<p>Street railroad — effect of a condition in the consent of a municipality that connecting street railroads shall have a right to use its trades—power of a board of supervisors— acceptance of a consent subject to such condition.</p> <p>A railroad company, accepting a franchise to construct and operate its railroad in a city street, upon the express condition that any other street surface railroad company, operating tracks at least two miles in extent outside the district to which the franchise of such railroad company was limited and connecting With its tracks situated within such district, should have the right to use its tracks and enjoy equal facilities thereto in all respects, cannot deny to another railroad company — operating twenty-eight miles of track outside the district, which has begun proceedings under section 102 of the Railroad Law (Laws of 1890, chap. 565, as amended by chap. 693 of the Laws of 1894) to have commissioners appointed to determine what it should pay to the first mentioned company for the use of the tracks in question, and has secured the payment of whatever compensation,should be awarded by giving a bond, approved by the county j udge — the right to use its tracks on the ground that the last-mentioned corporation has not obtained the requisite consent from the municipal authorities, or that the conditions attached to the consents procured by the first-mentioned company are .not available to the other because void.</p> <p>It seems, that the board of supervisors of a county may grant the right to operate a railroad upon a country road within a village.</p> <p>In view of the provisions of section 102 of the Railroad Law, to the effect that any street surface railroad company may, under certain circumstances, acquire the right to use the tracks of another street surface railroad company for a ■ distance not exceeding 1,000 feet, which imply that a company, having constructed its own line, can, by granting its consent thereto,' authorize the operation of another railroad over the same tracks, a company may, by accepting the consent.'of a municipality thus conditioned, authorize such use of its tracks in advance.</p>

<p>Appeal by the defendants, Lucy A. Littlejohn Leffingwell, individually and as sole executrix, etc., of De Witt C. Littlejohn, deceased, and Elisha Dyer Leffingwell, from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 10th day of June, 1898, as denies said defendants’ motion to vacate an order of publication made in the action, and denies their motion to vacate the service of the summons under said order of publication.</p>

Appeal by the defendant, Henry 0. Eichten, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24th day of June, 1898,. upon the verdict of a jury for $850, and also from an order entered in said clerk’s office on the 1st day of July, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, James II. Conklin and Mary F. Conklin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 23d day of March, 1898, upon the decision of the court rendered after a trial at the Orange Special Term.

Appeal by the plaintiff, Mary Bullenkamp, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 5th day of July, 1898, upon the decision of the court rendered after a trial at the Kings County Special Term as adjudges: “That after the defendant received said conveyance she laid out. and expended upon the said lands, for the benefit of the plaintiff in the matters shown below, the following sums of money: $197.05…

Appeal by the plaintiff, Henry Gerlach, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 7th day of May, 1898, upon the decision of the court rendered after a trial at the Westchester Special Term dismissing his complaint on the ground that it did not state facts sufficient to constitute a cause of action^ with notice of an intention to bring up for review, upon such appeal, an order made…

Appeal by the defendant, Conrad Schopp, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county .of Orange on the 11th day of April, 1898, upon the verdict of a jury, and also from an order, bearing date the 22d day of January, 1898, and entered in said clerk’s office, denying said defendant’s motion for a new trial made upon the minutes.

• Appeal by the plaintiff, The People of the State of. Sew York, from a judgment of the Supreme Court in favor of-the defendants, entered in the office of the clerk of the county of Kings on thó 24th day of September, 1898, upon the decision of the court rendered after a trial at the Kings County Special Term sustaining the defendants’ demurrer to the indictment.

Appeal by the plaintiff, James Y. Lawrence, as sole surviving partner of the firm of Lawrence Brothers, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 25th day of .June, 1898, upon the decision' of the court rendered after a trial at the Westchester Special Term, as adjudges that the complaint be dismissed as to the defendants John Dawson and William Archer, and that the mechanic’s lien filed herein by…

Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 18th day of April, 1898, upon the-verdict of a jury for $6,500, and also from an order entered in said clerk’s office on the 9th day of May, 1898, denying the defendant’s motion for anew trial made upon the minutes.

Appeal by the defendant, The Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 14th day of April, 1898, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 26th day of . April, 1898, denying the defendant’s motion for a new trial made . upon the minutes.

Appeal by the defendant, The City of Brooklyn, from a judgment of the Supreme Court in favor, of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of May,. 1898, upon the report of a referee.

Appeal by the defendants, Andrew L. Bush and William B. Hal-stead, as executors, etc., of ¡Newbury D. Halstead, deceased, and William B. Halstead, individually, from air order of the Supreme Court,- made at the Westchester Special Term and entered in the office of the cleric of the county of Westchester on the 9th day of July, 1898, adjudging the defendant William B. Halstead to be guilty of a contempt of court, and ordering him to pay a fine of $150, and directing that he…

<p>Conversion of chattels by a sheriff—proof as to its effect on the owner’s customers and business — the price on an execution sale is some evidence of valué.</p> <p>Where personal property has been levied upon by the sheriff, under an execution against a party not the owner,, the'latter, in an action brought by him for its ■ conversion, is. not entitled to testify that there were customers in his store where the property was,, who saw it being taken by the sheriff ; that he had' but a small business and little capital, .and that the removal of this part of the ■ stock practically destroyed his business in the articles taken.</p> <p>The price realized upon a sale of property under an execution is some evidence of its value.</p>

<p>Appeal by the plaintiff, Joseph R. Solomons, from a judgment of the Supreme Court, in favor of the defendants, bearing date the Ytli day of April, 1898, and entered in the office of the clerk of the county of Kings, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits.</p>

Appeal by Grace E. Cattermole, a party to the above-entitled proceeding and one of the next of kin of the above-named deceased, from a decree of the Surrogate’s Court of .Dutchess county, entered in said Surrogate’s Court on the 12th day of March, 1898, settling the accounts of Matilda R. Wescott, as administratrix, etc., of Ada-line M. Wescott, deceased, allowing to the said administratrix the entire amount of the decedent’s estate, after the payment of debts, funeral…

<p>Appeal by Frank H. Parsons, the receiver of William J. Fitzpatrick, appointed in proceedings supplementary to execution, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of October, 1898, denying his motion to be substituted in the place and stead of William J. Fitzpatrick, as plaintiff in this action.</p>

Motion by the defendant, Fellie Mar Chatterton, individually and as executrix, etc., of Fathan Gr. Chatterton, deceased, for a reargument of an appeal by the plaintiff, Jennie L. Chatterton, from an interlocutory judgment of the Supreme Court in favor of the defendant, Fellie Mar Chatterton, individually, and as executrix, etc., of Fathan Gr.

Appeal by the defendant, Cornelius Hyatt, from an order of the Supreme Court, made at. the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 12th day of May, 1898, continuing a preliminary injunction theretofore granted pending the determination of the action.

Appeal by the defendant,. The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 5th day of April, 1898, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 22d day of April; 1898, denying the defendant’s motion for a new trial ma,de upon the minutes.

Appeal by the defendant, Henry T„ Chapman, Jr., .from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of February, 1898, upon the verdict of a jury rendered by direction, of the court.

Appeal by the plaintiff, James H. Hoag, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 12th day of October, 1897, .upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of February, 1898, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Broadway Ferry and Metropolitan Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk 'of the county of Kings on the 30th day of March, 1898, upon the verdict of a jury for $15,000, and also from- an order bearing date the 30th day of March, 1898, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 22d day of April, 1898, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 13th day of May, 1.898, denying the defendant’s motion for a new trial made upon the minutes. »

Appeal by the plaintiff, Joseph M. D’Arcy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 16th day of April, 1898, upon the dismissal of his complaint by direction of the court after a trial at the Kings County Trial Term.

Appeal-by the defend an t, ■ Henry J. Crawford, from .an order of the Supreme Court, máde at the Hew- York Special Term and entered in the office, of the clerk of the county of Hew York on the 29th day of July, 1898, denying the defendant’s motion to be relieved from complying, with a judgment of specific, performance of a contract'for the purchase of real estate theretofore entered in the action.

Appeal by the plaintiff, The Millie Iron Mining Company, from a judgment of the Supreme Court in favor of the defendants, entered in- the office of the clerk of the county of New York on the 1st day of March, 1898, upon the verdict of a jury rendered by direction of the court.

<p> Hegligen.ce—a passenger on a street car kitted by being -thrown ¿ver the dashboard—, a change in his testimony made by a witness on a second trial, the probable cause of the accident and the fact that the'deceased was standing on the platform, all present questions to. be decided by the jury. </p> <p>In an action brought to recover damages arising out of the death of a passenger who, while.ridingupon-the.front platform.of a street railroad car, was thrown over the dashboard, a witness testified that the jerk was as if the driver had • put the brake on- and then let it go, or as if theré was a rock or something on the car track, and this, being the sole evidence on the question of negligence, was held on appeal from a judgment in favor of the plaintiff to be insufficient to show negligence upon the part of the defendant. On a second trial the same witness testified that he saw the driver put on the brake as quickly as he could, and then suddenly let it go again; and another witness, not examined upon the first trial, also testified that he saw the driver put the brake on suddenly, and that the plaintiff’s intestate was thrown over the dashboard.</p> <p>Held, that, even if the court were of opinion that the first witness had amended his testimony to fit the opinion of the General Term upon the previous appeal, that fact would not authorize the court to take the case away from the jury, as it was simply a fact to be considered by the jury in weighing his evidence; That it was also a question for the jury whether it was a physical impossibility that the accident could have happened if the brake were suddenly put on and as quickly let go;</p> <p>That if the driver had made this sudden and unusual application of the brake, by which the deceased was thrown over the dashboard of the car, it was incumbent upon the defendant to excuse this extraordinary management of the car by showing the existence of some emergency which appeared to require such prompt and decisive action;</p> <p>That the fact that the deceased was standing upon the, front platform of the car, and that snow had previously fallen, rendering every thing somewhat slippery and slushy, did not, in view of the fact that he was smoking, and that it was the custom of the defendant to allow smoking upon the front platform, constitute, as matter of law, conclusive evidence of contributory negligence, it being a question for the jury to determine whether from the evidence any reasonable excuse had been offered for his being there.</p>

Appeal by the defendant, William Rankin, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 4th day of August, 1898, denying defendant’s motion for a new trial made upon the ground of newly-discovered evidence.

Appeal by the defendant, The Phenix Insurance Company of Brooklyn, N. Y., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of .the clerk of the county of New York on the 7th day of February, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of January, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Charles F. Fontham, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of March, 1898, upon the verdict of a jury rendered by direction of the court, and also from an order bearing date the 16th day of March, 1898, and entered in said clerk’s office, denying the defendant’s motion for a new trial made- upon the minutes.

Appeal by tlie defendants, The Third Avenue .Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of February, 1898* upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 7th day of March, 1898, denying the defendants’, motion for a new trial made upon the minutes.

Appeal by the relator, Severin Warschauer, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of October, 1898, denying his motion for a peremptory writ of mandamus directing William Dalton, as commissioner of water supply of the city of New York, to reinstate the relator in his position as inspector of water supply to shipping in the department of water supply; or, in the…

Appeal by tlie defendants,. The New York Elevated Railroad Company and another, from a judgment of the Supreme .Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day-of February, 1898, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Thomas Kennedy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2d day of November, 1896, upon the dismissal of his complaint by direction of the court after a trial at the New York Trial Term®; also from an order made at the New York Trial Term and entered in said clerk’s office on the 28th day of October, 1896, denying the plaintiff’s motion .for a rehearing of the…

Appeal by the relator, William H. Cunliffe, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 25th day of March, 1898, upon the dismissal of an alternative writ of mandamus by direction of the court. after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 23d day of March, 1898, upon which said judgment ivas entered.

<p>Appeal by the plaintiff, Harry H. Kutner, from an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the county of Hew York on the 6th day of April, 1897, as resettled by an order entered in said clerk’s office on the 29th day of April, 1897, setting aside a verdict in the plaintiff’s favor and granting the defendant’s motion for anew trial made upon the minutes.</p>

Appeal by the plaintiff, James E. Lyon, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 22d day of November, 1897, upon the verdict of a jury (except that part which adjudges that the- plaintiff recover the sum of $2,440), and especially from that portion of said judgment which makes a deduction of $170,92, and that portion which adjudges that the defendant recover judgment against the, plaintiff on the second cause…

Appeal by the defendants, Charles S. Cary and another, from a . judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of April, 1898, upon the verdict of a jury rendered by direction of the cour£-

Appeal by the plaintiff, Alfred J. Tyrrell, from a judgment of the Supreme Court in favor of the-defendant, entered in the office of the clerk of the county of Hew York on the 3d day of February, 1898, upon the decision of the court rendered after a trial at the Hew York Trial Term before the court without a jury.

Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of April, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of April, 1898, denying the defendant’s motion for a new trial made upon the minutes.

<p> A notice of appeal, when improper — complaint in an action for libel—criticism of a picture—a libel must relate to professional character generally, not to a particular work. </p> <p>Where exceptions are ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by the court at the trial, and judgment is suspended until the hearing and decision thereon, the service of a notice of appeal is both unnecessary and improper.</p> <p>The complaint in an action for libel should set forth the words complained of as. used by the defendant, and it is not sufficient to, set out their tenor and effect with innuendoes.</p> <p>In an action for libel against the plaintiff in his profession as an artist, the complaint alleged that, in the article complained of,- published in the defendant’s newspaper, the words occurred: “What matters it if the Colonel’s ideas of color, light and shade were a trifle hazy, if his perspectives was a something</p> <p>. extraordinary, his ‘ breadth ’ and ‘ treatment ’ and ‘ tone ’ truly marvelous ? The surrender was a great, a vast picture, and it. was the Colonel’s life.”</p> <p>Reid, that, conceding that these words applied to a picture painted by the plaintiff, the natural construction of them would not make them anything more than a fair criticism of the particular picture — such as is always permitted in regard to any work of art to which the attention of the public has been invited — there ' being, in this case, no allegation in the complaint that the words were published with any malicious intent.</p> <p>Nothing can be said to-be libelous of a man in his profession unless it degrades or lowers him in his professional character generally, and it is not a libel of one in that regard to say that, in any particular work, he has fallen below the proper standard or has made a failure.</p>

Appeal by the defendant, the Gas Engine and Power Company and Charles L. Seabury & Co., Consolidated, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the *13th day of April, 1898, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, the Wood haven Junction Land Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of February, 1898, upon the verdict of a jury rendered' by direction of the court.

Appeal by the relator, Elizabeth Ordway, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the'8th day of September, 1898, upon the decision of the court rendered after a trial at the New York Special Term, overruling her demurrer to the return to the writ of habeas corpus issued in this proceeding, dismissing said writ of habeas corpus and remanding the relator to the custody of the defendant.

Appeal by the defendants, Lyman G. Bloomingdale and Joseph B. Bloomingdale, individually and as composing tbe firm of Bloomingdale Brothers, from a judgment of the Supreme Court in favor óf the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of January, 1898, iipon the verdict of a jury for $3,500, and also from an order entered in' said clerk’s office on the 20tli day of January, 1898, denying the defendants’ motion for a new trial…

Appeal by the plaintiffs, John Kohlmann and another, from a judgment of the Supreme Court in favor' of the defendant, entered in the office'of the clerk of the county of New York on the 21st day of January, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

<p>Appeal by the defendant, Margaret L. Fletcher, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office oE the clerk of the county of Mew York on the 23d day of March, .1898, upon'the report of-a referee.</p>

<p>Application for learn to issue an execution against executors — the surrogate may require an intermediate accounting by tlie executors -i—. Statute of Limitations</p> <p>On an application by a legatee to the surrogate for leave to issue execution under the provisions of sections 1825 and 1826 of the Code of Civil Procedure, on a judgment obtained against the executors of an estate, the surrogate has the power to require an intermediate accounting to determine the question as to the amount of assets in the hands of the executors where the executors allege that an accounting out of court has been had between them and the parties entitled to the estate, and that the estate has been duly distributed among the parties entitled thereto, and that at no time since the commencement of the action referred to in the petition have they been in possession of any assets of the estate.</p> <p>The fact that the Statute of Limitations has run against any application for an accounting for the purpose of compelling in that proceeding the executors to pay a legacy is not a bar to a proceeding forleave tq issue execution on a judgment against the executors.</p>

Appeal by John Fu-hrmann from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New. York on the 20th day of .August, 1898, canceling the liquor tax certificate issued to the said John Fuhrmann.

<p>JUmdence— examination of witnesses in relation to newspaper articles—.privilege of an attoi'ney.</p> <p>It is not proper for counsel to read to a witness on cross-examination an article printed in a newspaper and ask him,. “Is that statement substantially a correct statement of the fact? ” when it is apparent that most of the facts stated in the article were not within the knowledge of. the witness and could not,, therefore, be either denied or admitted, especially where the direct examination of the witness had not been directed to any of the facts contained in this newspaper article.</p> <p>On the direct examination of a witness it is improper to' produce a newspaper article and ask him (reading from the article), “ Do you remember seeing that ; in the public print on July 25, 1898 ? ” and whether he had had. interviews with various reporters and had made statements to them in connection with the case. So far as an attorney is called upon simply to prove the execution and delivery of an instrument by his client or the contents of that instrument, knowledge of which he had procured by reading it, and not through any communication from his client to him, his testimony does not come within the privilege conferred by section 835 of the Code of Civil Procedure. Neither the fact of the.existence of such instrument, nor its delivery by the client, are communications made by the latter to the attorney.</p>

<p>Accident policy —injuries sustained in falling from a car platform cure not sustained “ while riding as a passenger in any passenger conveyance.”</p> <p>Under an accident insurance policy providing that if death results from injuries “sustained while riding as a passenger in any passenger conveyance using steam, cable or electricity as a motive power, the amount to be paid shall be double the sum specified in the clause under which claim is made,” a beneficiary is not entitled torecover “double the sum specified,” where the insured, while riding as a passenger upon a railroad train, Went out from one of the cars upon the open platform at the forward end thereof, from which he fell or was thrown down, and while clinging to the handrail or step of the platform was dragged for some distance by the train, until he finally lost his hold and fell from the car upon a bridge which the train was then crossing, and thence to the ground below, where he was .found dead, it not appearing by what means or from what cause the deceased fell or was thrown from the platform.</p>

Appeal by the plaintiff, Kate T. Woolsey, as executrix of Edward J. Woolsey, deceased, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 28th day of.June, 1898, denying -the plaintiff’s motion for leave to serve an amended reply to a ■counterclaim set up in the defendant’s answer.

<p>New York city—claim against it, under chapter 543, Laws-of 1894, for the unpaid salary of a District Court judge — what is not a sufficient compliance With the act. ■ . . ' •</p> <p>In the enforcement of a claim under chapter 543 of the Laws of 1894, authorizing • the board of estimate and apportionment of the city of New York to ascertain and determine the amount of the unpaid salary belonging to one Stemmler, as , a'justice of the.District Court in the city óf New York, from January 1, 1870, ■ to October 15, 1873* the claimant must allege and-prove that- every provisión of the act.has been strictly complied with. .</p> <p>The mere insertion in the tax levy of 1895 by the board of estimate and. apportionment of a provision auditing and allowing the claim at a certain sum, does . not, in the absence of any certificate of such board that the salary had not been paid, or as to the amount of the salary for the period mentioned, and in the . absence of evidence that such certificate, with the proofs, were filed in the office of the comptroller, constitute a compliance with the requirements of that .act.</p> <p>Semble, that, under such action of the board of estimate and apportionment, the claimant would not be entitled, in any event, to recover more than the. sum specified by that board, and would not be entitled to interest thereon.</p>

Appeal by the- purchaser, Robert J. King, Jr., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of August, 1898, denying his motion to be relieved from his purchase made at a sale had under judgments in the above- - entitled actions. The first above-entitled action was brought for the partition of certain real estate of which Frederick Oppermann, Jr., died seized.

Appeal by the plaintiff, William E. D. Stokes, from an order of . the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the ■ 16th day of May, 1898, granting the defendant’s motion for a new' trial made upon the grounds of mistake and surprise and because of newly-discovered evidence.

<p>Negligence —a person, not a passenger, falling upon the steps of a railway station in consequence of a banana thrown thereon —. alleged failure to sufficiently light the steps.</p> <p>- A person who had visited a railroad station for the purpose of obtaining a jneal at the restaurant (not a passenger upon the railroad, nor intending to become one),- while leaving the station with his wife at about eight o’clock in the evening by a door through which on the Same day he had already passed four or five times, opposite to which in the station there was a large electric light, and over the platform outside of which there were also two large electric lights, stepped upon a banana which had been thrown upon the steps and which, by reason of the shadow caused by their bodies, which filled up the doorway, he was prevented from seeing, and fell and was injured.</p> <p>It was not claimed that the railroad company was responsible for the presence of . this banana on the steps, the sole -ground of liability upon its part being its ■ alleged failure sufficiently-to light the steps.</p> <p>Held, that the railroad company performed its duty if it provided a safe means of egress from the station, in respect to which there was, in this case, no evidence of negligence on its part. - -</p>

Appeal by the defendant, Annie W. Gould, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of December, 1897, upon the report of a referee directing the foreclosure of a mechanic’s lien.

Appeal by the plaintiff, Thomas Dwyer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 23d day of June, 1896, upon the verdict of a jury.

Appeal by the defendant, Andrew B. Tetter, from a judgment ■of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 24tli day of February, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of March, 1898, nuncjpro tunc, as,of the 18th day of February, 1898, denying the defendant’s motion for a new trial made upon the minutes, except from so much of said order as…

Appeal by the plaintiff, John J. Crawford, from an interlocutory judgment of the Supreme Court in favor of the defendant Lillie Winston, entered in the office of the clerk of the county of New York on the 5th day of November, 1897, upon the decision of the court rendered after a trial at the New York Special Term sustaining said defendant’s demurrer to the plaintiff’s complaint.

Appeal by the plaintiff, Walker Winston, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 2d day of' March, 1898, upon the report of a referee, as adjudges and decrees that the complaint should be dismissed upon the merits, and also from so much of said judgment as adjudges and decrees that the court has no jurisdiction to make any judgment disposing of the custody of the infant, Lillian Winston, the child…

Appeal by the defendant, William M. Chapman, attorney and manager of the Capitol Fire Lloyds of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st day of March, 1898, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term.

<p>-. Appeal, by The City of New York, thé successor of The Mayor,. ■Aldermen and Commonalty of the City of New York, from an ■order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York ■on the 6th day of June, 1898, discontinuing the proceeding and directing the dismissal of - the- petition herein as to each of the persons named in the said order. . -</p>

Appeal by Warren Sage, the judgment debtor, from, an order of the Supreme Court, made at the New .York Special Term and entered in the office of the clerk of the county of New York on the 20th day of Augiist, 1898, directing said judgment debtor to pay to the receiver appointed herein certain moneys belonging to him and under his control.

<p> Police officer—proceedings for his removal■—effect of a failure of the record to show< that witnesses were sworn•—testimony of the officer which establishes the charges made against him. </p> <p>Semble, that the mere fact that the record of the conviction of a police officer and the stenographer’s minutes do not show that certain witnesses examined in the-proceedings before the police commissioners for his removal' were sworn (there being nothing in the record to show that they were not) is not sufficient to-require, on a review of such proceedings under a writ of certiorari, that they be set aside, the legal presumption always being 'that a public official having jurisdiction to act has acted legally until the contrary appears;</p> <p>Testimony under oath by the officer himself that he went off his post for a short, time on two different occasions, and that when ordered to the station house he said to the roundsman, who there made a complaint against him, “You lie,” amounts to a confession of the charges of using disrespectful language to his. superior officer, and that he did not properly patrol his post, and that he was absent therefrom.</p>

<p>Appeal by John Duryea, the defendant in each of the above-entitled actions, from judgments of the Supreme Court in favor of the plaintiffs in each of said actions, entered in the office of the • clerk of the county of New York on the 19th day of January, 1898, upon the verdict of a jury rendered by direction of the.court, and also from orders entered in said clerk’s office on the 10th day of February, 1898, denying said defendant’s motion for a new trial made upon the minutes in each of said actions:</p>

<p>Failure to record, an assignment for creditors, executed .Saturday afternoon, until after a creditors' meeting held the following Mondap at two P. M.— it does not esiab- ■ lish fraud—cash sales made by the assignee before filing his bond — neglect of the assignee to perform his statutory duties.</p> <p>The fact that a general assignment for the benefit of creditors, executed Saturday afternoon, when the county clerk’s office is closed, is not recorded until after a meeting of the creditors is held at two o’clock on the following Monday, does not establish fraud in the assignment, nor, where it appears that the creditors at the meeting requested the assignee not to record it, and that he only did so because an attachment was obtained by one of them on the ground that the assignment was fraudulent, is the neglect of the assignee to record the assignment even a subject of criticism.</p> <p>The fact that the assignee has sold small articles of property for cash before he has filed his bond,-the sales having been made with the consent of the creditors attending a meeting at which the party subsequently objecting thereto was present, does not afford a just ground of complaint.</p> <p>Semble, that the neglect of an assignee to record an assignment, or to do any other act required by the statute, simply fufnishés a ground for his removal-,, and does not impair the title to the property assigned or affect the validity of the instrument in any way.</p>

<p>Appeal by the plaintiff, Jacob Ruess, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the. clerk of the county of New York on the 29th day of March, 1898, upon the report of a referee directing the dismissal of his complaint.</p>

Appeal by the defendant, Ernst Will, from a judgment .of the ■ Supreme Court in favor of .the plaintiff, entered in the office of the clerk of the county of Hew York on the 28tli day of February, . 1898, upon the verdict of a jury rendered, by direction, of the court.

Appeal by the plaintiff, John R. Auld, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Bungs on the 26th day of January, 1898, upon the dismissal of his complaint by direction of the court after a trial at the New York Trial Term. ■

Appeal by the defendants, James 0. Mack and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of September, 1897, upon the decision of the court rendered after a trial at the New York Special Term setting aside certain instruments on the ground of fraud.

Appeal by the defendant, Hugh O’Neill, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the • 8th day of January, 1898, upon the verdict of a jury for $3,250, and also from an order entered in said clerk’s' office on the 7th day of January, 1898, denying the defendant’s motion for a new- trial made upon the minutes.

Cross-appeals by James A. Deering and John Sehreyer from so much of an order of the Supreme Court, made at the New York ■ Special Term, and entered in the office of the clerk of the county of New York on the 8th day of August, 1898, as denies their respective motions for a retaxation of costs.

Appeal by the plaintiff, Frederick B. De Berard, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of' Hew York on the 27th day of May, 1898, appointing a referee to assess the damages sustained by the defendants upon the undertaking on an injunction issued herein.

Appeal by the plaintiff, Louis L. Zimmer, from a judgment of the Supreme Court in favor of the defendants George Hagemeyer ' and others, entered in the office of the clerk of the county of New York on the 22d day of March, 1898, upon the dismissal of his complaint as to such defendants by direction of the court after a trial at the New York Trial Term.

<p>Appeal by the relator, Clark H. McDonald, from an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of ¡New York on the 21st day of Sejitember, 1898, denying his motion for an alternative writ of mandamus directed to President George C. Clausen, park commissioner for the boroughs of Manhattan and Richmond in the city of ¡New York, and the Department of Parks in the City of ¡New York, commanding them to reinstate the relator in the position of superintendent of the ¡Harlem River Driveway.</p>

Appeal by the plaintiff, Thomas 0. Stewart, as administrator, etc., -of Andrew 0. Stewart, deceased, from a judgment - of the . Supreme Court in favor of the defendant, entered in the office of the clerk of the county of • ¡New York ..on the 23d day of June, ■1898, upon the dismissal of .his complaint by direction of- the court after a trial at the Hew York Trial Term.

.Appeal by the defendants, Friend C. Haight and another, from, an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 6th- day of October, 1898, denying the defendants’ motion to vacate an order for their examination before trial.

Appeal by the plaintiff, Sarah Rappaport, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 21st day of June, 1898, striking the cause from the calendar.

<p>Appeal by the defendants, Louis Bauer and others, as executors, ■etc., of Challes Bauer, deceased, from.a, judgment- of the Supreme' ■Court in favor of the plaintiffs,, entered in the office of the clerk of the county of blew York on the 31st day óf -May, 1898, upon the ver-' diet of a jury, and also from an order entered in said clerk’s office, on the 1st day of June, 1898, denying the defendants’ motion for a new trial, made upon the minutes.</p> <p>The amount of the policy in question in this action, which was issued by the Mutual Life Insurance Company of New York on the life of George Lisner, was $8,000, and the verdict rendered was for .$8,164.32, that amount, with interest from the date of surrender.</p>

AppEAL'by the defendant, Yette Friedman, from a judgment of the Supreme Court in favor of the ¡ilaintiff, entered in the office of the clerk of the county of New York on the 24th day of March, 1898, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Evidence—a determination of police commissioners is. not a “ conviction ” under section 883 of the Gode of Oivil Procedure, and section 714 of the Penal Gode.</p> <p>The determination of police commissioners, in proceedings before them, imposing a fine or other punishment for dereliction of duty on the part of a member of the police force, is not a “conviction” within the meaning of section 833 of the Code of Civil Procedure, and section 714 of the Penal Code, which may, on his trial in a criminal action in which he' is convicted of an assault in the third degree, be proved on his cross-examination in order to affect his credibility.</p> <p>The conviction referred to in these sections is the same as that which would formerly have disqualified a.person from testifying, and such as is reached after an orderly trial in a court of law, before a judge or petit jury.</p>

Appeal by the plaintiff, John F. Ghee, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of June, 1898, denying the plaintiff’s motion to continue a preliminary injunction theretofore granted in the action, and vacating said injunction.'

Appeal by the plaintiff, Charles C. Dickinson, as assignee of Eugene M. Earle, individually, for the benefit of creditors, and as assignee of Eugene M. Earle and William Pitt Earle, as copartners, for the benefit of creditors, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of May, 1898, continuing an injunction restraining the plaintiff from selling' or advertising for…

Appeal by the defendant, The American Credit Indemnity Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of April, 1898, upon the report of a referee.

<p>Ch'eater New York charter — right of the mayor to remove an aqueduct commis- ■ sioner — it is not affected hy section 518 of the charter.</p> <p>Under section 95 of the charter of Greater New York (Ghap. 378 of the Laws of 1897), which by section 1608 thereof is made a continuation of section 1 of chapter 11 of the Laws of 1895, an aqueduct commissioner, appointed under the provisions of section 1 of .chapter 490 of the Laws of 1883, as amended by section 1 of chapter 584 of the Laws of 1888, may be removed by the mayor at pleasure Within six months after the commencement of the mayor’s term of office, and the right of the mayor to exercise this power is not affected by sec- • tion 518 of the charter, providing that “ the term of office of the commission appointed and existing under the aforesaid act shall cease and determine on the first day of January, nineteen hundred and one,” as such latter act relates to “the term of office of the commission” and not to the term of office of the individual commissioners.</p>

Appeal by the defendant, Louis Leubiseher, and Clarence H. Venner, the party at whose instance the relator was arrested, from an order of the Supreme Court, made at the blew York Special Term and entered in the office of the' clerk of the county of blew York on the 12th day of May, 1898, discharging the relator from custody.

Appeal by the plaintiffs, Ottilie Seibert and another, by George II.

<p>Appeal by the defendants, Fred Gates and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered-in the office of the clerk of the county of Cortland on the 3d day of March, 1898, upon the decision of the court rendered . after a trial at the Cortland Special Term overruling .the said defendants’ demurrer to the plaintiff’s complaint. ' ■ .</p> <p>The complaint in. this action alleges, among other things:</p> <p>“ That on or about the 1st day of Jan. 1862, this plaintiff then being an infant of the age of two years, his father being dead and ' his mother being the sister of the said Alonzo W. Gates’ wife, the said Alonzo W. Gates, with the consent of his said wife, entered into a contract with the said Sophia Carr, this plaintiff’s mother, whereby the said Sophia Carr, this plaintiff’s mother, agreed to surrender up forever this plaintiff to the said Alonzo W. Gates, and to surrender and release all claims or rights of every name and nature which she had over said child by reason of being its mother, to the said Alonzo W. Gates, and whereby and in consideration of the said agreement of the said Sophia Carr the said Alonzo W. Gates agreed to take this plaintiff and to adopt him as his child, to rear, educate and maintain him, and to treat him as a member of his own family, and as a son in all respects, and to make this plaintiff an heir of the said Alonzo W. Gates, and to give to him the same interest which a son would have in whatever property he owned or might have at the time of his decease.</p> <p>“ That said agreement was fully understood and consented to by the wife of said Alonzo W. Gates, and was fully understood and agreed to by the said Alonzo W. Gates and by the said Sophia Carr, the mother of this plaintiff, and that immediately thereafter and in pursuance to said agreement the said Sophia Carr did surrender and give over to the said Alonzo W. Gates, this plaintiff, and released to the said Alonzo W. Gates, all rights or claims of .every name and nature which she had to this plaintiff by reason of being his mother, and the said Alonzo W. Gates took and adopted this plaintiff as his child, took him into his family, and thereafter this plaintiff lived as a member of the said Alonzo W. Gates’ family, took the name of the said Alonzo W. Gates and performed all the duties and obligations which a son owes to his parents to the said Alonzo WV Gates and his wife, and lived continuously with the said Alonzo W. Gates as his son and as a member of his family, and lived as a member of his household, except during temporary absences, continuously to the time of the marriage of this plaintiff, and thereafter, although this plaintiff, after his said marriage, which occurred on the 19th day of September, 1889, took up a residence apart from .the said Alonzo W. Gates, he nevertheless continued to perform and discharge his duties as a son to the said Alonzo W.-Gates in all respects, and was treated as a son by the said Alonzo W. Gates up. to the time of his decease, and that frequently during said time the said Alonzo W. Gates promised and agreed to so fix, arrange and dispose of his property so that at the time of his death this plaintiff should have the same interest in whatever property the said Alonzo W. Gates died possessed of as a son, but the said Alonzo W.- Gates died , intestate and without making any provision whatever as to the . disposition of his property, and the plaintiff further alleges that he was, on or about the said first day of January, 1862, legally and formally adopted as the son of the said Alonzo W. Gates, and thereafter and up-to the time of the death of the said Alonzo W. Gates said adoption was repeatedly and continuously affirmed and ratified by the said Alonzo W. Gates, and the said Alonzo W. Gates agreed to give to this plaintiff at the time of his death' the same interest in whatever property he then had which a son would be entitled to, and the plaintiff alleges that, by reason of the facts aforesaid, he is the only heir now living who is entitled to share in the estate of the said Alonzo W. Gates, subject, however, to the rights and interests of the said defendant Alvira B. Gates, the widow of the said ■Alonzo W. Gates, deceased, and is entitled both in law and in equity to share in said estate as aforesaid.</p> <p>“ The plaintiff further alleges that, notwithstanding the facts aforesaid, the said defendants claim to be the only heirs, and next of kin of the.said Alonzo W. Gates and claim the right to his estate to the exclusion of. this plaintiff.</p> <p>“ That when letters of administration were issued, as aforesaid, no citations whatever were issued to or served upon this plaintiff.”</p> <p>Judgment was demanded:</p> <p>■ “ 1st. That he be adjudged and decreed to. be the son and heir at law of the said Alonzo W. Gates, deceased, and owner in fee simple of the lands and tenements hereinbefore described, subject to the right of dower of the said Alvira B. Gates.</p> <p>“ 2nd. That this plaintiff be adjudged and decreed tb be entitled to a specific performance of the contract herein set forth.</p> <p>“ 3rd. That this plaintiff have an order of this court, .ordering and directing that the-said defendants. Frank H. Sears and Alvira B. Gates, as administrator and administratrix of the estate of Alonzo W. Gates, deceased, and Berintha E. Owen, Olive M. Kelley, Clara Kimball, Lottie Anderson, Ella Gates, Anna Miller and Fred Gates be required to make, execute and deliver to this plaintiff a quitclaim deed-of said premises, and'fór such other or further relief as to the court shall seem just and equitable, together with the costs and disbursements of this action.”</p>

Appeal by the defendant, The Kavanaugh Knitting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 9th day of February, 1898, upon the verdict of a jury rendered by direction of the court.

Appeal, by the defendant, The President, Managers and Company of the Delaware and Hudson Canal Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 15th day of February, 1898, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 13th day of December, 1897, denying the defendant’s motion for a new trial made upon the minutes.