Volume 34 — New York Supplement

Summary proceedings by Francis A. Clark against Charles BL Greenfield to recover possession of certain premises on the ground of nonpayment of rent. From a final order in favor of plaintiff, defendant appeals.

<p>Appeal from Eleventh district court.</p> <p>Action by Robert Gair against David Auerbach. Judgment was entered in favor of defendant, and plaintiff appeals.</p>

Action by Jacob Balz, Jr., against D. McLean Shaw. From a judgment of the city court (32 N. Y. Supp. 791) affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals.

Summary proceedings by William R. Morgan and others against Edwin T. Short to recover possession of premises, for nonpayment of rent. From a final order in favor of defendant, plaintiffs appeal.

Action by Louis M. Simpson against Cornelius W. Rourke. Judgment was rendered in favor of defendant by the justice without a jury, and plaintiff appeals.

Action by Thomas Ford against Jacob Schlosser to recover $1,000, part purchase money paid on a contract for the sale of real property, and for damages for breach of such contract. The complaint was dismissed, and plaintiff appeals.

Action by Samuel Milch against the Westchester Fire Insurance Company. Judgment was rendered in favor of plaintiff by the justice, without a jury, and defendant appeals.

Action by the New York Press Club against Samuel Loyd. Defendant moves to vacate an order for his examination to aid plaintiff in framing the complaint.

<p>Action by Caroline Correll against Adele Granget. Defendant moves to set aside the service of summons and complaint as irregular.</p>

Action by Giovanni Siriani against Herman H. Deutsch. Plaintiff moves to strike out the answer “as setting up inconsistent defenses,” and part of said answer as irrelevant, redundant, and frivolous.

Action by Henry J. Fisher and others against William Gunn and others. Defendant moves to strike the cause from the special term calendar.

<p>Action by Moses Israel against Henry A. Voight and others. Defendants move to dismiss the complaint for failure to prosecute.</p>

<p>Contempt—Disobeying Injunction.</p> <p>In an action in the superior court of New York against an elevated railroad company to enjoin the operation of the road in the street on which plaintiff’s premises abut, on the ground that defendant had not acquired plaintiff’s easements in the street, an injunction was granted, unless defendant within a certain time should pay to plaintiff a certain sum for the easements. Just before the trial of the injunction action, defendant company instituted a proceeding in the supreme court to condemn plaintiff’s easements, and after the expiration of the alternative period judgment was entered for the condemnation of the easements on payment of a less sum than was awarded by the superior court in the injunction action Thereupon the money was paid, and the injunction dissolved. During the pendency of the condemnation proceeding certain stays in the injunction action were obtained by defendant, covering the period from the time when the injunction, by its terms, was to become operative, to the entry of the judgment in the condemnation proceeding; but the time given to defendant to avail itself of the alternative provision was never enlarged, and the stays did not modify the judgment of the superior court. Bellir that, though defendant acquired title to the easements through the condemnation proceeding, it was in contempt in continuing to operate its road after the injunction, by its terms, became operative, and a fine equal to the difference between the amounts awarded by the superior court and the supreme court, respectively, would be imposed.</p>

<p>Action by Stephen R. Fisk against Mary Frances Fisk to annul a marriage.</p>

<p>Usury—What Constitutes.</p> <p>Where a person to whom an application is made for a loan indorses a note for the borrower, and directs him to take it to a certain bank, where it is discounted, a charge made for the indorsement is not usury.</p>

<p>Pleading—Supplementary Answer.</p> <p>In an action against a physician for malpractice, where both parties have noticed the cause for trial, and both have filed notes of issue, defendant will not be permitted to serve a supplemental answer setting up the recovery of a judgment against plaintiff in an action for the services out of which the alleged malpractice grew, it appearing that the action for the services was instituted for the purpose of creating a bar.</p>

<p>Action by Charles M. Bagg and others against Marvin S. Robinson and others. Plaintiffs move to continue a preliminary injunction.</p>

Action by William A. Lord against Charles Spielmann and others. From an order granting plaintiff’s motion for an inspection and discovery, with leave to take copies of certain books, papers, and documents in defendants’ possession, defendants appeal.

Summary proceedings by Samuel L. Bailey against Ellen A. Crowell, as temporary receiver, to recover possession of premises for nonpayment of rent. From a final order in favor of defendant, plaintiff appeals.

Action by Leander Sparling against Louis Wack. Judgment in favor of plaintiff was rendered by the justice without a jury, and defendant appeals.

Action by Henry Feist against the Third Avenue Railroad Company. From a judgment entered on an order dismissing the complaint, and from an order opening the default, plaintiff appeals.

<p>Appeal from Eighth district court.</p> <p>Action by Ethel F. Nicholson against Kate M. Moriarty. From a judgment entered on a verdict in favor of plaintiff, defendant appeals.</p>

Action by the Hew York Small Stock Company against Fredericka Klosset. Judgment was rendered in favor of plaintiff by the justice without a jury, and defendant appeals.

<p>Street Railroads—Injury to Person on Track.</p> <p>. A judgment for plaintiff in an action for damages caused by a collision with a street car will be reversed where a number of disinterested witnesses testified that plaintiff’s driver drove on the track about 30 feet in front of a car approaching at the rate of eight miles an hour, though the driver testified that the car was a block away when he started on the track.</p>

Action by Frederick S. Myers against Moses S. Bosenback. From a judgment of the city court (31 R Y. Supp. 993) affirming a judgment entered t on a verdict in favor of defendant, plaintiff appeals.

Action by Max Kruger against Bernard G-alewski. The complaint alleges that defendant received $250 from Jacob Pfeiffer on. or about December 11, 1891, to the use of said Pfeiffer. It also alleges a demand thereof by Pfeiffer, and refusal by defendant to pay the same, and assignment to the plaintiff. The answer was a general denial. From a judgment of the city cour(t (30 N. Y. Supp. 1060) affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals.

Action by William A. Low against James A. Learned. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendant appeals. The action was brought upon a promissory note for value received, made by the Westray’s Point Land & Improvement Company, dated August 29, 1890, at three months, for $1,500, payable at the First National Bank, Tom’s River, N. J., to the order of the defendant, James E. Learned, and indorsed by him.

Action by William G-lassheim, as administrator, against the New York Economical Printing Company. 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.

Action by the Sheffield Farms Company against William H. Burr. From an order of the city court (32 N. Y. Supp. 1149) affirming an order in supplementary proceedings, Euphemia 0. Burr, in whose ' favor defendant had confessed judgment, appeals.

Action by James Kettle against John Turl and others to recover damages for the alleged negligence of defendants’ servants in driving a truck owned by defendants. The defense was a denial and an allegation that the injuries sustained by plaintiff were caused wholly by his own negligence. The complaint was dismissed at the trial, and plaintiff moves for a new trial, on exceptions ordered to be heard at general term in the first instance.

Action by Maria Isola and Paola Isola, as administrators of Agostino Isola, deceased, against John Webber and Louis Webber, doing business under the firm name of J. & L. Webber, and Michael Powers, to recover damages for the death of plaintiff’s intestate in consequence of the alleged wrongful act, neglect, or default of defendants.

Action by Paul G-. Decker against John E. O’Brien and others to foreclose a mechanic’s lien. ■ From- an order denying a motion to vacate an order of the referee reopening the case, and allowing plaintiff to produce further evidence, defendant O’Brien appeals.

Action by John Hutchinson, as executor of Bernard Mooney, deceased, against John V. Campbell, individually and as executor of John Connor, deceased, and others. From an order appointing a _ receiver of the assets of the late firm of Mooney & Connor, carrying * on the livery stable business at 137-141 West Ninety-Ninth street, defendant Campbell appeals.

Action by Laura Howe against Eugene Bobinson and others to recover arrears of salary under a contract of employment. Judgment in favor of plaintiff was rendered by the justice, without a jury, and defendants appeal.

<p>1. Trial—Objecttons to Evidence—Waiver.</p> <p>It is allowable to litigants to waive objection to incompetent evidence; and, the proof being in the case, the court must give it legal effect.</p> <p>2. Parol Evidence—Ambiguity in Writing.</p> <p>Statements of the parties at the time and in the act of executing a written contract, if they do not alter its terms or legal effect, are receivable in evidence to elucidate an ambiguity as to the subject-matter of the agreement.</p> <p>(Syllabus by the Court)</p>

Action by Josephine Mahon against Patrick Burns. From a judgment of the city court (29 Y. Y. Supp. 682) affirming a judgment dismissing the complaint, plaintiff appeals.

Proceeding by the mayor, etc., of the city of New York, against Frank A. Bigelow, to recover a penalty. Jhdgment was entered in favor of defendant, and plaintiff appeals. As a condition of the right to practice medicine in the state of New York, the statute requires that a license be registered with the county clerk; and, for practicing without such registration, a person shall forfeit $50 to the county.

<p>Appeal from district court.</p> <p>Summary proceedings by Essie M. Gallagher against the David Stevenson Brewing Company. Judgment was entered in favor of plaintiff, and defendant appeals.</p>

Action by Mary Kiernan against the Metropolitan Life Insurance Company on a life insurance policy. Judgment was entered in favor of plaintiff for §65 and costs, and defendant appeals.

<p>Appeal from trial term.</p> <p>Action by Joseph Cantor against Tattersall’s of Hew York, Limited, for conversion. Judgment was entered in favor of plaintiff, and defendant appeals.</p>

Action by Jacob Marmonstein against the Pennsylvania Railroad Company. From a judgment of the city court (32 N. Y. Supp. 1146) affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals. The plaintiff was one of a party transported at the expense of the Hebrew Charity Association from New York to Black Rock, Ark. They traveled under two party tickets issued by the Pennsylvania Railroad Company.

Action by David McAveney against Thomas H. Brush and others. From an order denying a motion to punish defendant Thomas H. Brush for contempt, plaintiff appeals.

Action by William Halladay against Harry T. Nicholas and others. From a judgment of the city court (29 2í. Y. Supp. 1144) affirming a judgment entered on a verdict in favor of plaintiff, defendants appeal.

Action by Timothy J. Kieley against the Central Complete Combustion Manufacturing Company. From an order denying a motion to vacate an attachment on the ground of a failure to serve the summons within 30 days after the issuing of the warrant, defendant appeals.

Action by Harry C. Jacobs against William O’Gorman and Herman Stursberg for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from two orders denying motions for a new trial, defendants appeal.

Action by George L. Baber, by guardian, etc., against the Broadway & Seventh Avenue Railroad Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Luman A. Soule against Victor L. Veyrac. From a judgment of the city court (31 N. Y. Supp. 1133) affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals.

Action by Michael F. Conway against the New York Central & Hudson River Railroad Company for personal injuries. From a judgment of the city court (32 N. Y. Supp. 921) affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals.

Action by Elwood S. Hand against William A. Shaw and James K. Shaw to recover $235, alleged to be due on a contract for advertising. From an order of the city court (33 N. Y. Supp. 1129, mem.) affirming an order requiring plaintiff to file security for costs on the ground that he was a nonresident, plaintiff appeals.

Two actions by Marie Fogassi against the New York Central & Hudson River Railroad Company. The actions were consolidated, and tried together. • One action was brought to recover damages for personal injuries to the plaintiff, alleged to have been received by falling from the ferryboat Kingston into the Hudson river at the Franklin street landing of the West Shore Railroad, in New York City, on the evening of the 21st day of July, 1893.

Action by John W. Dibblee, a creditor of the Metropolitan Board of Retail Trade, in behalf of himself and others against Horace Metcalf and others. From a judgment entered on an order dismissing the complaint, plaintiff appeals.

Action by Worthington D. Romaine against the Beacon Lithographic Company for breach of a contract. Judgment was entered in favor of plaintiff, and defendant appeals.

Action by Maltby K. Pelletreau, as receiver of the Brett Lithographing Company, against the United States Electric Light & Power Company, for work, labor, and services performed and materials furnished. The answer set up a general denial and the statute of frauds. Judgment was rendered in favor of plaintiff, and defendant appeals. For decision on former appeal, see 30 N. Y. Supp. 948.

Action by Richard H. Casey against Walter H. Stewart and Frederick Gillies Payne, impleaded with others. From a judgment of the city court (30 N. Y. Supp. 808) affirming a judgment dismissing the complaint as against defendants Stewart and Payne, plaintiff appeals.

Action by Alexander Pollock against the Pennsylvania Iron Works Company. From a judgment of the city court (33 N. Y. Supp. 1133) affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals.

Two actions by the German Exchange Bank against the New Jersey & San Domingo Brewing Company and others on promissory notes. From an order in each case granting a motion for judgment on the answer of defendant Kroder as frivolous, said defendant appeals.

Action by Samuel McFadden against Herbert P. Campbell and others to recover for injuries alleged to have been sustained by plaintiff in consequence of defendants’ negligence in selecting and retaining in tlieir employment an incompetent fellow servant. From a judgment entered on a vérdict in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.

<p>1. Res Judicata—Parties and Privies.</p> <p>In an action in form to foreclose a mechanic’s lien which had been discharged by the giving of a bond, plaintiff obtained leave, on condition of paying costs, to serve an amended and supplemental complaint bringing In new defendants. The new defendants answered, and judgment was rendered in favor of plaintiff. Helé, in an action on the bond given to discharge the lien to recover the amount of the judgment rendered in the foreclosure action, that the sureties were estopped to deny the validity of the order allowing the amended and supplemental complaint to be liled.</p> <p>2. Estoppel—To Deny Validity op Bond.</p> <p>Where a bond given to discharge a mechanic’s lien is treated as valid by all the parties, and the lien is discharged, a surety cannot, in an action on the bond, deny its validity.</p>

<p>Appeal from trial term.</p> <p>Action by William E. Barwick against Edgar W. Youmans. From a judgment entered on a verdict in favor of plaintiff, directed by the court, defendant appeals.</p>

Action by Benjamin G-. Sanford against the American District Telegraph Company to recover damages for the loss of a sum of money entrusted to one of defendant’s messengers in the course of its business. From a judgment of the city court (27 N. Y. Supp. 142) affirming a judgment entered.on a verdict in.favor of plaintiff, defendant appeals.

Action by Henry A. Bogert, as trustee, etc., against George Bliss and others, to foreclose a mortgage. From an order confirming the report of the referee in proceedings for the distribution of surplus moneys arising from the sale of mortgaged premises, defendant Bliss appeals.

Action by William Pierpont against Ellen T. McGuire. A verdict was directed for plaintiff, and defendant’s exceptions were ordered to be heard at general term in the first instance.

Action by'Frederick W. Prior against Henry M. Flagler to recover on an alleged oral contract to pay plaintiff’s stipulated salary as an employé of defendant in consideration of plaintiff’s resignation. From a judgment of the city court (31 N. Y. Supp. 193) affirming a judgment dismissing the complaint for failure of proof, plaintiff appeals.

Action by Theron S. Atwater against Edward C. Wilson and others. From a judgment of the city court (30 N. Y. Supp. 1129) affirming a judgment in favor of plaintiff, defendants appeal.

Action by Luzon J. Adams against Kate S. Burr for rent. Judgment in favor of defendant was rendered by the justice without a jury, and plaintiff appeals.

<p>Appeal—Harmless Error.</p> <p>A finding by the court will not be disturbed because incompetent evidence was admitted, where sufficient competent evidence to sustain the judgment had already been admitted.</p>

<p>Contracts—Interpretation.</p> <p>Defendant employed plaintiff to try cases before commissioners at $40 per case, and guarantied two cases per week. Held, that defendant was not liable to plaintiff for any cases furnished to, but not tried by, him.</p>

<p>1. Foreign Corporations—Action by—Certificate of Authority.</p> <p>Laws 1892, c. 687, § 15, requiring a foreign corporation to obtain a certificate of authority before it can sue on a contract made in New York, affects only the remedy, and therefore compliance therewith need not be alleged and proved by plaintiff, but is a matter of defense.</p> <p>2. Pleading—Denials in Answer—District Court of New York.</p> <p>A denial of sufficient knowledge to form a belief as to an allegation contained in a complaint is not authorized in the district court of New York City.</p> <p>8. Foreign Corporations—Action by Assignee.</p> <p>A foreign corporation which was preparing a book for publication, and was securing contracts for advertising space, transferred its rights to plaintiff, agreeing that he should have the right to publish the book, and to make all contracts in connection therewith, in the name of the corporation. Afterwards, plaintiff’s agent, in the name of the corporation, but on behalf of plaintiff, obtained a contract with defendant for advertising space. Sclá, that such contract was between plaintiff and defendant, and not .between the corporation and defendant, and therefore it was immaterial, in an action thereon, whether plaintiff’s assignor had obtained a certificate-' of authority to do business in New York.</p> <p>4 Same—Incorporation—Parol Evidence.</p> <p>The fact of incorporation cannot be proved by parol evidence.</p> <p>5. Sam-e—Sufficiency of Objections.</p> <p>Where a witness is asked whether a certain concern is a foreign corporation, an objection “that it is -not the proper way to prove whether it is a corporation” is sufficient to raise the point that the fact of incorporation cannot be proven by parol.</p>

Action by James L. Miller against Isaac A. Lawrence and Edward Wilson to recover for work, labor, and services. A judgment was rendered in favor of plaintiff, and defendant Lawrence appeals.

<p>Appeal from Sixth district court.</p> <p>Action by Mary Fanton against the Coachmen’s Benevolent Union. From a judgment in favor of plaintiff, rendered by the justice without a jury, defendant appeals.</p>

Summary proceedings by Henry Constant against John T. Barrett to recover possession of real estate. From a final order dismissing the petition, plaintiff appeals.

Action by Oscar Hedin against the Long Island Railroad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, defendant appeals.

' Action by Henry A. Brookman against John Y. Stetson and others for wages and money advanced. There was a judgment in favor of plaintiff, and defendant Stetson appeals.

Action by Michael Goodmann against Abele Riceadonna for goods sold and delivered. There was a judgment in favor of plaintiff, and defendant appeals.

Action by Catherine O’Shaughnessy against the Workingman’s Co-operative Association of the United Insurance League of New York. From a judgment of the city court (32 N. Y. Supp. 1148) affirming a judgment in favor of plaintiff, defendant appeals.

<p>Appeal from First district court</p> <p>Action by Kathrina Pioppe against the Metropolitan Life Insurance Company on a policy of insurance. Judgment was rendered in favor of plaintiff, and defendant appeals.</p>

Action by George Scofield against Ella L. Warren for work and materials in repairing a house. Judgment was rendered in favor of plaintiff, and defendant appeals.

<p>1. Party in Interest—Necessity of Proof.</p> <p>Evidence that plaintiff is not the real party in interest cannot be given under a general denial, unless the case is such that plaintiff must establish ownership of the matter in controversy as an essential element of his cause of action.</p> <p>2. Money Paid for Another—Right to Recover.</p> <p>Plaintiff cannot recover from defendant money paid for defendant’s benefit, without any request from him, and without his knowledge.</p>

Action by Patrick McNamara against John P. Nolan to recover damages for the alleged unskillful medical treatment of plaintiff’s infant child by defendant, as a physician. From an order of the city court (32 N. Y. Supp. 922) affirming an order permitting plaintiff to prosecute as a poor person, defendant appeals.

Action by Johanna Kuechenmeister against Vernon H. Brown and another, impleaded, for personal injuries alleged to have been sustained- by plaintiff from a fall into an insecurely covered vault or cellar opening, which was situated in the sidewalk of certain premises of which defendant was lessee. The complaint was dismissed for insufficiency of proof, and plaintiff appeals.

Action by Maria L. Winterson against Hector M. Hitchings and John B. Sexton, as sheriff of the city and county of New York. Judgment was rendered in favor of plaintiff, and defendant Hitchings appeals. This action was, in effect, for restitution, and to restrain the sheriff from executing a deed under a sale already made by him, and to vacate and cancel such sale and the certificate thereof.

. Action by Xavier Stierle against the Union Railway Company of Xe.w York City for personal injuries. From a judgment entered on a verdict in favor of plaintiff, defendant appeals. For decision on motion to resettle order denying a motion for a new trial, see 31H. Y. Supp. 1008.

Action by Cornelius Bagley against the Consolidated Gas 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.

<p>Judicial settlement of the accounts of Meta Kane Cruger as administratrix of the estate of Edith Brevoort Bell, deceased.</p>

Action by- Thomas A. Patterson against the Ongley Electric Company to recover commissions for selling 1,500 shares of defendant’s stock. From a judgment entered on a verdict directed by the court in favor of plaintiff for $3,716.80, defendant appeals.

Action by Albert S. Moore against John A. Potter, individually and as receiver of the American Lace Manufacturing Company, to recover damages for breach of contract. A verdict was directed by the court in favor of plaintiff, and defendant moves for a new trial on exceptions ordered to be heard in the general term in the first instance.

Action by Franz Merz, suing on behalf of himself and other stockholders of the Interior Conduit & Insulation Company, against said Interior Conduit & Insulation Company and others. From an order denying in part a motion to continue an injunction, both parties appeal.

Action by Luke Higgings against Thomas Eagleton for breach of contract to convey land free of incumbrances. From a judgment for plaintiff, defendant appeals.

Application by Joseph B. Eakins for a writ of mandamus to compel Theodore Roosevelt and others, constituting the board of police commissioners, to retire relator from service in the police force of New York City with a pension, pursuant to the provisions of Laws 1882, c. 410 (Consolidation Act), § 307, as amended by Laws 1895, c. 569. Relator moves for a peremptory writ of mandamus.

<p>Appeal from Eighth district court.</p> <p>Action by Annie Reddin against James Lawlor for conversion of a dog. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal—Review—Inconsistent Judgment.</p> <p>Where plaintiff and defendant both claim damages because of a collision between their vehicles, plaintiff cannot complain of the judgment as inconsistent, because, after finding for defendant on plaintiff’s cause of action, it disallows defendant’s counterclaim.</p>

<p>Collision with Cable Car—Contributory Negligence.</p> <p>Where the driver of a wagon, which was loaded so that his view was shut off except in front, drew it up keside a cable-car track to let two cars, coming from opposite directions, pass him, and then, hearing no gong, suddenly turned bis horse onto the track, his contributory negligence will prevent recovery for collision with the wagon of a car coming from the rear, there being no law which required continuous sounding of the gong when the track was unobstructed.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Charles Nette against the New York Elevated Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

Action by Moses Maas against Louis A. Scharbach and another to recover price paid for a steamship passage ticket. From a judgment for plaintiff, defendants appeal.

<p>1. Conversion—Property Held as Security.</p> <p>It is a conversion of property where defendant, to whom it was delivered as security for a loan, exercises dominion over it inconsistent with his special right of possession.</p> <p>2. Same—Damages.</p> <p>Damages for conversion of property by one to whom it is delivered as security are to be proved by showing its value at the time of delivery, it not being disclosed as of the time of the conversion.</p>

<p>Appeal from special term.</p> <p>Action by the people against the Bankers’ Loan & Investment Company for dissolution of defendant. From an order adjudging that defendant’s board of directors had power to fix the book value of its stock, and discharging a temporary receiver, plaintiff appeals-.</p>

’ Action by Clifford L. Miller and another against Pietro Altieri and others to foreclose a mechanic’s lien. From a judgment for plaintiffs, defendants appeal.

Action by the Grand Lodge Knights of Pythias of the State of New York against the Manhattan Savings Institution. Defendant demurs to the complaint. The plaintiff was incorporated under and by virtue of chapter 376 of the Laws of 1880, with power to institute subordinate lodges. The objects were the promotion of friendship, charity, and benevolence, and to aid members in case of sickness or death.

Action by Jennie E. Kelly against Daniel J. Kelly for divorce. Plaintiff’s motion to strike out the third defense of the amended answer, as sham, and to make more definite and certain a portion of the second further and separate defense set up in the answer, denied.

Action by Kate Trimble, an infant, against Michael Kilgannon, for breach of promise to marry. Plaintiff moves for leave to sue as a poor person, and defendant moves for an order compelling plaintiff to give security for costs.

Application by William J. Hoffman for a peremptory writ of mandamus to compel Charles B. Tedcastle, as a transfer agent of the Oregon Improvement Company, a foreign corporation, to exhibit to relator the transfer book and a list of the stockholders of said company.

<p>Appeal from special term, New York county.</p> <p>Certiorari by the Knickerbocker Press against Edward P. Barker and others, commissioners of taxes and assessments for the city and county of New York, to review the assessment, of relator’s property for taxation. The writ was dismissed, and relator appeals.</p>

Action by William E. Russell and another against Sarah E. Buckhout, as administratrix of Eckford Webb, deceased, for repairing a house under a contract with decedent. Judgment was entered in favor of plaintiffs, and defendant appeals.

Action by Guissippe Mancuso, as administrator of Genaro Tricarico, against the Cataract Construction Company for personal:' injuries. There was a nonsuit, and plaintiff moves for a new trial on exceptions taken at Niagara circuit and ordered heard at general, term in the first instance.

Action by Walter H. Sherman against Julius Robertson for conversion. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Action by Marco Lucco against the New York Central & Hudson River Railroad Company for personal injuries. From an order denying a motion on the minutes to set aside a verdict for plaintiff, and for a new trial, defendant appeals.

Action by Maria Dubois, as administratrix of Isaac Dubois, deceased, against the New York Central & Hudson River Railroad Company for death of deceased. There was a verdict for defendant, and plaintiff moves for a new trial on exceptions taken at Monroe circuit and ordered to be heard at general term in the first in•stance

Action by William H. Clapp against the town of Ellington. From a judgment for plaintiff, and an order denying a motion on case and exceptions for a new trial, defendant appeals.

Action by Benjamin C. Miller against J. Wesley Bush, as sole overseer of the poor of the town of Cohocton, county of Steuben. A nonsuit was directed, and plaintiff moves for a new trial on exceptions taken at Steuben circuit, and ordered heard at general term in the first instance.

<p>Appeal from Livingston county court.</p> <p>Action by Jonathan L. Gould against Florence E. Patterson, as administratrix of George Patterson, deceased, for trespass. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Contracts—Performance—Satisfaction of Party.</p> <p>Where an actor and his manager employed a playwright to write a play which should be satisfactory to them, the question of satisfaction involves a matter of taste and fancy, and the playwright cannot recover Without showing that the play was actually satisfactory to both of the other parties.</p>

Action by John O’Loughlin against the New York Central & Hudson River Railroad Company for personal injuries received in defendant’s employ. From an order denying a motion made on the minutes for a new trial, after a verdict was rendered in favor of plaintiff, defendant appeals.

Action by the New York Life Insurance & Trust Company, as trustee under the last will and testament of Francis W. Lasak, deceased, against Margaret S. Ives and others, impleaded with others. From an order striking out portions of an answer as irrelevant and redundant, defendants Cornelia D. Chauvet and Albert L, Chauvet appeal.

Action by Andrew McKinney and Samuel' Dollner against Edward Campion to recover commissions for selling cotton. From a judgment entered on the verdict in favor of plaintiffs, and from an order denying a motion for a new trial, made on the minutes, défendánt appeals.

Proceeding for the' probate of the alleged will of Susanna Mc-Dougall, deceased. Prom a decree denying probate, proponents appeal.

<p>Master and Servant—Action for Wrongful Discharge.</p> <p>In an action for the wrongful discharge of a servant, it is no defensfethat plaintiff agreed to bring to defendant certain customers, and that after his discharge he took such customers away to the place where he subsequently obtained employment.</p>

Action by William E. Wamsley against H. L. Horton & Co., Limited. Prom a judgment overruling a demurrer to the answer, plaintiff appeals. This action was begun January 9,1893, by the personal service of the summons and complaint, to recover damages for an alleged breach of contract.

<p>Appeal from special term, New York county.</p> <p>Action by Frank Work and others against Dudley Tibbits and others to foreclose a lien on certain stocks. From a judgment in favor of plaintiffs for $4,538.75, and adjudging that plaintiffs had a lien on certain securities pledged with them for counsel fees and other expenses incurred in resisting several actions at law brought to recover a portion of the securities or the value thereof, defendant Tibbits appeals.</p>

<p>Negligence—Evidence—Happening on Accident.</p> <p>While plaintiff was assisting in erecting the frame of a house for defendant, consisting of 23 bents, 50 feet high and 10 feet apart, and after 17 of the bents had been erected, they fell, and injured plaintiff. Held, that the fact of the fall of the bents was sufficient to justify an inference that the plan was defective, unless it was shown to have been negligently executed.</p>

Action by William H. Amoux against Amy C. Phyfe and others, as executors of William Campbell, deceased, to foreclose a mortgage on premises No. 62 South Fifth avenue, in New York City. There was a judgment in favor of plaintiff, and defendants appeal.

<p>Wills—Probate—Election to Take under Will.</p> <p>Plaintiff having consented to probate of a will, and thereafter taken the annual income provided by it, with full knowledge of the facts attending its execution, cannot sue to set aside the probate on the ground that testatrix had not testamentary capacity or was unduly influenced.</p>

<p>1. Estoppel—Reliance on Statements.</p> <p>Defendant told C., an officer of plaintiff corporation, that if there was to be a continuation of the contract under which defendant was selling goods for plaintiff there must be a division of the expenses. C. stated that he thought it a reasonable request, and promised to recommend it to the directors. Another officer wrote defendant that “we hope to arrive at some satisfactory agreement,” and that “while no action has been taken by our board of directors, which cannot get a quorum together, * * * the conversation * * * has all seemed to be indicative of a feeling to accept it substantially as you propose.” Held, that defendant could not claim that he was misled into supposing that the modification had been made.</p> <p>2. Interest—Allowance by Judgment.</p> <p>A judgment is erroneous in allowing interest from a time prior to that from which it is asked for in the complaint or contended for on the trial.</p>

■ Motion made May 10, 1893, by Sarah J. Wood, as executrix of Mary A; Woolsey, deceased, to vacate a judgment against said decedent entered December 24,1875, for $943.07, in an action in which said decedent was defendant, and one Henry Julian, deceased, was plaintiff. The motion was granted, and Rebecca Julian, as administratrix of said Henry Julian, deceased, appeals.

<p>Appeal from special term, New York county.</p> <p>Petition by Arianna E. Scammon, as executrix of the will of J. Young Scammon, deceased, to compel the receiver of the Adriatic Fire Insurance Company to pay certain judgments. The application was denied, and petitioner appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Thomas Adams & Co., Limited, against Nicholas Albert and others. The complaint was dismissed on the merits, and plaintiff appeals.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by Abraham Davis against the Guardian Assurance 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, defendant appeals.</p> <p>This action was begun March 4, 1892, to recover from an insurer damages caused by fire. The defendant by a written policy insured the plaintiff from June 27, 1891, to June 27, 1894, against loss or damage by fire, not exceeding $1,500, on his household furniture, clothing, stores, and supplies, situate at No. 141 First avenue, in the city of New York, where the plaintiff and his family resided. Between 6 and 10 o’clock in the evening of November 3, 1891, a fire occurred in the premises, damaging some, and destroying some, of the property insured. November 19, 1891, the plaintiff verified and delivered to the defendant proofs of loss, in which he stated that the damage caused to his property by the fire amounted to $2,154.15. Annexed to and forming a part of the proofs was a schedule of the property lost and insured, which consisted-of about 250 items. The policy contains the following provisions: “This entire policy shall be void * * * in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss. * * * In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire. The appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire, and the award in writing of any two shall determine the amount of such loss. The parties thereto shall pay the appraiser respectively selected by them, and shall bear equally the expenses of the appraisal and umpire. , * * » No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements.” November 23, 1891, the parties executed an agreement submitting to appraisers the question of the amount of damages caused by the fire to the plaintiff’s property. Marks Levy was selected by the plaintiff and Carl E. L. Hinrichs by the defendant. November 25th the appraisers took and subscribed the usual oath, and appointed, in writing, Louis Alexander as umpire. On Friday, November 27th, the appraisers met and began their work, and after appraising a number of articles they adjourned until Sunday, November 29th, when they again met and resumed work. The plaintiff on this occasion expressed dissatisfaction with the conduct of the appraisers, and Levy withdrew and refused to continue to act as appraiser, and, December 7th, executed a written resignation addressed to the defendant. The appraiser selected by the defendant went on with the umpire, against the plaintiff’s objection, and completed the appraisement, assessing the damages at $420.70.</p>

Action by Hannah M. Van Epps against Gilbert H. Harns. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on a case and exceptions, defendant appeals. After the verdict was received, answering two specific questions, the judge holding the circuit found the facts in accordance with the verdict of the jury.

Proceedings by John A. Keinz to compel an accounting by Joseph Rettig and another, executors of the will of Frank Keinz, deceased. The executors also petitioned for a judicial settlement of their accounts, and the proceedings were consolidated. From a decree adjusting the accounts of the executors and refusing to revoke their letters testamentary and to remove them, said John A. Keinz appeals.

<p>Appeal from special term.</p> <p>Action by the Granite State Provident Association against Michael E. McHugh, impleaded, to foreclose a mortgage. From an order resettling a decree of foreclosure, plaintiff appeals.</p>

Action by Marshall S. Driggs against Robert J. Dean and another. From a judgment dismissing the complaint, and an order1 denying a motion for a new trial, plaintiff appeals.

Action by Louis A. Jackson against the mayor, aldermen, and commonalty of the city of New York. From a judgment entered on a verdict in favor of defendant, directed by the court, plaintiff appeals.

Action by Andrew Gilhooly, as assignee for benefit of creditors of James Grange, against the American Surety Company. From an order requiring defendant to furnish a bill of particulars, defendant appeals. The action was brought to recover the sum of $2,100 damages for an alleged unlawful seizure under execution of personal property claimed by plaintiff as assignee. The original defendant .was John J. .Gorman, sheriff of the city and county of New York.

Action by the Central Trust Company of New York against New York Equipment Company. Judgment was entered in favor of plaintiff, and defendant appeals. This action was brought to compel the defendant to account for two-fifths of the avails of certain property which it had taken, sold, and converted into money.

Certiorari by John Gillespie against the board of fire commissioners of the city of New York, to review the decision of said board in discharging relatar from the fire department of said city.

Action by Mary O’Reilly, as administratrix of Terence 0. O’Reilly, deceased. 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 state of South Dakota against John T. McChesney, William W. Taylor, and others on the official bond of defendant Taylor as treasurer of said state of South Dakota. From an order denying a motion to strike out from the affirmative defenses in the answer of defendant McChesney certain specific denials as redundant, plaintiff appeals.

Action by John Francis Maher and another against Bella Garry and others, as executors of the will of Thomas Garry, deceased, to enjoin defendants from rescinding, annulling, terminating, or in any way modifying a contract between plaintiffs and defendants’ testator. From an order continuing an injunction during the pendency of the action, defendants appeal.

<p>Appeal from circuit court, New York county.</p> <p>Action by James McGrath, as administrator of Thomas McGrath, deceased, against the Brooklyn, Queens County & Suburban Railroad Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.</p>

Certiorari by the rector, etc., of St. Ann’s Church of Morrisania in the city of New York against Ashbel P. Fitch, comptroller of the city of New York, to review the* action of defendant in apportioning an assessment on the church'property.

Action by Count Arthur Dillon against the Commercial Cable Company and others, to recover from defendant company 4,000 shares of stock and dividends, or the market value thereof, or 266 shares of its preferred stock, to be created and issued, and for other relief. The complaint was dismissed, and plaintiff appeals.

<p>Appeal from circuit court, New York county.</p> <p>Action by Sarah Gleeson, as administratrix of William T. Gleeson, against John Brummer to recover damages for the death of plaintiff’s intestate, alleged to have been caused by falling over certain obstructions on the stairway of defendant’s premises, No. 7 Cornelia street, in New York City. The complaint was dismissed and plaintiff appeals.</p>

Action by the Aultman & Taylor Company against Frederick J. Syme. From an order denying a motion to vacate an order for the examination of defendant in supplementary proceedings, defendant appeals.

<p>Appeal from circuit court, New York county.</p> <p>Action by Nicholas Ennis against Henry Winthrop Gray, as" receiver of the Thomson-Houston Electric Company of New York, for personal injuries. From a judgment entered on the verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.</p>

<p>Contracts—Meeting oe Minds,</p> <p>Where it was agreed, after arranging the terms of the proposed contract, that the contract should be reduced to writing, and signed by the parties, and afterwards some of the parties refused to sign the writing, on the ground that it includes matters- not agreed on, it shows that the minds of the parties did not meet.</p>

Application by Rachel Purdy for writ of mandamus against Ashbel P. Fitch, as comptroller of the city of New York. A peremptory writ was granted, and defendant appeals.

Action by the Booth Bros. & Hurricane Isle.Granite Company and others against Matthew Baird and others. Judgment was entered in favor of plaintiffs for $46,117.30, and defendants Baird and Hart appeal. This action was brought to recover of the defendants a balance claimed to be due under the following contract: , ■ “New York, March 19th, 1889. “Messrs.

Action by the Eames Vacuum Brake Company against Thomas Prosser and another. Prom a judgment for plaintiff and an order granting it an additional allowance, defendants appeal.

' Action by Ella I. Baskin against Mary E. Ingalls and others for partition. From an order denying plaintiff’s motion to amend the judgment nunc pro tunc by inserting therein a provision making it applicable to certain premises, and for a new interlocutory judgment directing a sale or division of said premises, plaintiff appeals.

Judicial settlement of the accounts of Jacob A. Nottingham and another, as executors of the will of Daniel Edgar Crouse, deceased. From an order of the surrogate made therein, George N. Crouse and others appeal.

Petition for the probate of the will of Orville Elmer, deceased. Probate was denied, and the General Missionary Board of the Free Methodist Church appeals.

<p>Master and Servant—Sufficiency op Appliances.</p> <p>A railroad company was not guilty of negligence to Its employes in failing to equip its trains with air brakes instead of hand brakes at a time when the latter were considered reasonably safe and suitable.</p>

Judgment in favor of plaintiff was rendered by the justice without a jury, which, on appeal to the county court, was modified and affirmed, with costs, and defendant appeals

Certiorari by Edward A. Cans to review the decision of Leonard B Welles, police commissioner of the city of Brooklyn, in removing relator from the police force.

Action by William De Bevoise against William Ingalls and others. From a judgment directing a new trial in the justice court, defendants appeal.

Proceeding by Michael T. Daly, commissioner of public works in the city of New York, to acquire real estate, as provided by Laws 1893, c. 189. From an order confirming in part the report of the appraisers, certain property owners appeal.

Action by Mary Wiley, an infant, by John Wiley, her guardian ad litem, against the Long Island Railroad Company. From an order granting an extra allowance, defendant appeals.

Action by Edward J. Patterson, as administrator of Jennie Patterson Townsend, deceased, against the city of Binghamton, to recover an award for land condemned for a street. From a judgment for plaintiff, defendant appeals. This action was commenced on the 17th day of August, 1892.

<p>Ejectment—Right to Recover.</p> <p>Plaintiff in ejectment cannot recover where defendant’s possession and dominion over the premises described in the complaint is lawful.</p>

Action by Catharine Schoonmaker against Leonard Blass, impleaded, to foreclose a mortgage. From an order granting leave to amend the complaint, defendant Blass appeals.

<p>Reargument—Changing Theory oe Case.</p> <p>Where a judgment is affirmed on a theory different from that on which it was recovered at the trial, a reargument will be granted.</p>

<p>Intoxicating Liquors—License—Power op Excise Commissioner.</p> <p>The board of excise commissioners, being a continuing tribunal, has power, after refusing an application for a license, to reconsider its decision, and grant the license without notice to those who filed protests.</p>

Action by the Cleveland, Lorain & Wheeling Railway Company against Sheldon L. Kent and another. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals.

<p>Ajppeal Bond—Sureties—Statutory New Trial in Ejectment.</p> <p>An undertaking on appeal from a judgment for plaintiff in ejectment provided for the payment of all costs and damages which might be awarded against appellant on the appeal, and also, if the judgment should be affirmed, for the paymentof the value of the use and occupation of the premises. The judgment was affirmed, but afterwards appellant paid the costs, including the costs of the appeal, and thereupon the judgment was vacated under the statute, and a new trial ordered. On the new trial, plaintiff recovered substantially the same damages as before, together with a sum for the use pending the appeal. Held, that the vacating of the judgment discharged the sureties from all liability except the use and occupation.</p>

Judicial settlement of the accounts of Elizabeth S. Baldwin, executrix of the will of George R. Baldwin, deceased. From a decree directing the payment of $3,912.76 to William H. Jacob and Josephine F. Clason, as executors of the will of Elizabeth Carter, deceased, said Elizabeth S. Baldwin appeals.

Controversy between the Missouri, Kansas & Texas Railway Company, plaintiff, and the Union Trust Company of New York and others, defendants, submitted without action on an agreed statement of facts.

<p>Bill op Particulars—Appidayit by Attorney.</p> <p>A bill of particulars will not be ordered on the affidavit of the moving party’s attorney.</p>

<p>Action by Louis Eosen against Morris Rose for specific performance.</p>

<p>Parol Evidence—Written Contract.</p> <p>' For the purpose of rebutting the evidence as to an individual hiring of plaintiff by defendant, furnished by a letter written to plaintiff by defendant, recognizing an existing employment of plaintiff in a certain undertaking at somebody’s instance, and containing certain advice touching the subject thereof, evidence is admissible that the employment was had in the first instance through D., that the money sued for was the balance of that agreed on with D. to be paid, and that D. had no authority to hire any one in defendant’s behalf.</p>

Action by James Blass and another, as executors of the will of John W. Fuller, deceased, against Georgianna B. S. Terry. 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 by G-uisseppe Critelli, as administrator of Angelo Orlando, deceased, against Rogers & Clement, to recover damages resulting from the death of plaintiff’s intestate, alleged to have been caused by defendants’ negligence.

Action by John A. Mann and others against the National Linseed Oil Company. 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 by Catherine E. Beeman and another against Charles Bee-man and others. Judgment was entered in favor of plaintiffs, and defendants appeal.

Applications by Theodore A. Drake, Daniel O’Reilly, Frederick A. Davis, and William A. Brown, respectively, for writs of mandamus to compel John R Sutton and others, constituting the board of audit of the city of Brooklyn, to restore relators to clerkships in the board of audit. From final orders directing that peremptory writs issue, defendants appeal.

Action by Joseph A. Barr against Henry L. Fish 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, defendants appeal.

<p>1. Associations—Power of Secretary to Receive Payments.</p> <p>The articles of a loan association declared that all payments to it should ' be made at its weekly meetings; that the treasurer should be present, and receive all payments, and give his receipts to the secretary for the same; and that the secretary should keep a correct account of all its proceedings, keep an accurate account of all moneys paid it, and enter the same in a book, and keep a true account between it and the shareholders, and to give them all desired information in regard to its financial affairs. Held, that the handing of money to the secretary to pay to the association at a weekly meeting was not payment to the association, he having no authority thus to receive it.</p> <p>2. Same—Implied Powers.</p> <p>The power of the secretary thus to receive money for the association . cannot be implied from the fact that he had on other and previous occasions received money from members, and paid it in at the weekly meetings.</p> <p>8. Same—Estoppel.</p> <p>The association is not estopped to deny payment because the secretary gave a pass book to the person who gave him money to pay the association, and because on each occasion the secretary returned it to him with an entry, as of the date of the regular meeting, of the amount given him to pay the association.</p>

Action by the Flour City National Bank of Rochester against Ernest D. Grover and others. From a judgment entered on a verdict in favor of plaintiff, defendants Ernest D. Grover, Albert B. Grover, and Rose E. Grover appeal. The action was brought upon three promissory notes, of date January 20, 1893, made by the defendant Ernest D. Grover, for $063.04 each, payable to the order of the defendant Albert B. Grover, at the Flour City National Bank, on or before April 24, 1893.

Action by Dennis Callahan against William L. Matthews 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, and on the ground of newly-discovered evidence, defendants appeal.

Action by Obed M. Bice against Charles A. Bruff to recover $524.50. Judgment was entered on a verdict in favor of plaintiff for $27.53, and plaintiff appeals.

Berry against Daniel Gavin and others to foreclose a mechanic’s lien. The complaint was dismissed, and plaintiff appeals.

Claim by Daisy B. Miller against John E. Richardson, as executor of the will of Lucy Schryver, deceased, referred under the statute. There was a judgment in favor of plaintiff, and defendant appeals.

<p>1. Replevin—Pleading—Recovery.</p> <p>A complaint alleging that plaintiff was the owner of certain personal property of the value of $30; that defendant seized and wrongfully took possession of it, and refused to deliver it to plaintiff, to his damage of $25; and asking judgment for recovery of possession, or, if delivery could not be had, for $30, as the value, and for $25, damages,—states facts to justify the demand for judgment, it being unnecessary to allege detention of the property.</p> <p>2. Same—Negativing Exceptions.</p> <p>A complaint in replevin need not allege that the action is not within the cases wherein Code Civ. Proc. § 1690, provides that an action to recover a chattel cannot be maintained.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Henry S. Anderson against Edward T. Dickinson. From a judgment entered in Cayuga county in favor of plaintiff, defendant appeals.</p> <p>For former report, see 25 N. Y. Supp. 533.</p>

<p>Parties—Enjoining Probate oe- Will—Executors.</p> <p>An action to enjoin the probate of a will, on the ground that testator had no right to dispose of the property as therein provided, will lie against the person named in the will as executor.</p>

Claim by Benjamin F. Wheeler against Sarah J. Eastwood, as administratrix, etc., of Josiah K. Eastwood, deceased, referred under the statute. There was a judgment in favor of plaintiff for $250, and defendant appeals.

Action by Sarah J. Cushman against Samuel N. Oothout for conversion of household goods. The action was originally brought in the municipal court of the city of Rochester, where the plaintiff recovered a verdict. It was retried in the county court, where defendant recovered a verdict. From a judgment rendered on such verdict, plaintiff appeals.

<p>Carriees—Contract with Agent os Shipper—Limitation os Authority.</p> <p>A carrier contracting with the agent of the owner of goods for their transportation is not affected by a limitation of the agent’s authority to agree on the terms of transportation. Ward, J., dissenting.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Ransford Button against Andrew Kinnitz. From a judgment entered in Seneca county in favor of plaintiff, defendant ' appeals.</p>

Action by Edward H. Throne and another against the Lehigh Valley Railway Company. Plaintiffs move for a new trial upon exceptions ordered to be heard at general term after a nonsuit at the Monroe circuit.

Action by William H. Caine against the Benevolent & Protective Order of Elks for an injunction. From an order vacating and setting aside a temporary injunction, plaintiff appeals.

Action by Frank B. Lyon against the Western New York & Pennsylvania Railroad Company. From a judgment of the county court reversing a judgment recovered in the justice’s court for $78.63, damages sustained by plaintiff by the alleged negligence of defendant in failing to deliver a quantity of eggs shipped by plaintiff on defendant’s road at the village of Cuba, defendant appeals.

Appeal front special term, Monroe county. Action by the county of Monroe against the city of Rochester and Samuel B. Williams, as treasurer of said city. The complaint was dismissed, and plaintiff appeals.

Proceeding for the probate of the will of. Eliza A. Fish, deceased. From a decree adjudging that the instrument offered for probate was not executed as required by statute, and refusing probate thereof, and also from an order denying a motion to open and vacate said decree, proponent appeals.

Action by Joseph F. Grant and another against John B. Smith for an injunction. From an order dissolving a preliminary injunction granted by the county judge, plaintiffs appeal.

<p>1. Pleading—Misjoinder of Causes of Action.</p> <p>Where the complaint in an action to set aside a judgment against defendant corporation as in fraud of its creditors alleges that the judgment was obtained by collusion of defendants H., IC., and W., who were directors of the corporation, it states a cause of action against such defendants (the directors), as they may be charged with the costs of the action, and therefore it is not a misjoinder of causes of action that the complaint also seeks to set aside a mortgage and bill of sale alleged to have been executed by the corporation with intent to defraud creditors, and to enforce the liability of defendants H„ IC., and W. for debts of the corporation by reason of their failure to file an annual report.</p> <p>2. Same—Liability of Stockholders.</p> <p>Code Civ. Proc. § 484, provides that separate causes of action cannot be joined in the same complaint unless it appears “upon the face of the complaint that all the causes of action so united * * * affect all the parties to the action.” Section 1790 provides that where an action is brought by a creditor of a corporation for sequestration and distribution of its property, and the directors “are made liable by law, in any event or contingency, for the payment of his debt, the persons so made liable may be made parties defendant * * ■* and their liability may be. declared and enforced by the judgment in the action.” Held, that a cause of action to enforce the liability of the directors of a corporation for failure to file their annual report may be joined with causes of action to set aside a mortgage and bill of sale executed by the corporation, and a judgment obtained against it by collusion with the directors for the purpose of defrauding its creditors.</p>

Action by Harry Sneck against the Travellers’ Insurance Company of Hartford, Conn., on a policy of insurance. Judgment was entered on a verdict directed by the court in favor of plaintiff for $110, and plaintiff appeals. For former report, see 30 N. Y. Supp. 881.

Action by Ellen D. Carter against William Pitcher for trespass. From a judgment of the county court affirming a judgment of a justice of the peace in favor of plaintiff, defendant appeals.

' Action by Thomas Larkin against the village of Brockport to recover for wages alleged to be due to plaintiff from defendant as bridge tender. Plaintiff moves for a new trial after a nonsuit on a second trial at the Monroe circuit, ordered to be heard at general term in the first instance. For former report, see 30 N. Y. Supp. 973.

Action by William H. Smith against Abijah Weston on a promissory note. From a judgment entered on the verdict directed in favor of defendant, plaintiff appeals.

Action by First National Bank of Friendship, N. Y., against Abijah Weston, impleaded with Orien Weston and William W. Weston, on a promissory note. The complaint was dismissed, and plaintiff appeals.

<p>1. Mutual Benefit Insurance—Notice of Assessment.</p> <p>On an issue as to whether defendant mutual benefit insurance company had given a certificate holder notice of an assessment, evidence that it was defendant’s custom to send out notices of assessment on the 1st of each month, and that, according to its books, a notice had been mailed to the certificate holder, may be considered as bearing on the question, but is not sufficient to throw on plaintiff the burden of proving that the notice was not received.</p> <p>2. Same—Waivek of Conditions.</p> <p>Where an insurance company seeks to enforce a forfeiture for nonpayment of assessment within the required time, it is for the jury to determine whether the company, by receiving on certain occasions assessments after the expiration of the time specified in the policy, led the insured to believe that such course would be followed in the future.</p> <p>8. Appeal—Matters not Apparent on Record.</p> <p>Au alleged admission on the trial, oí a disputed fact, by plaintiffs attorney, does not appear from the record, so as to enable an appellate court to pass on the effect of the admission, where the record does not show precisely what the admission was, but merely that the court gave instructions that such admissions by counsel might be considered by the jury.</p>

<p>1. Statute op Limitations—Action by Town—Sinking-Fund Law.</p> <p>A cause of action in favor of a town against a county board to recover the portion of taxes collected from a railroad in the town, which Laws 186$), c. 907, provided should be used by the county treasurer in retiring bonds issued by the town in aid of the railroad, but which was diverted from such use, is for money had and received, and arises at the time when the misappropriation of such money was made, and is therefore governed by the six-years statute of limitations. Spaulding v. Arnold, 6 N. Y. Supp. 336, 53 Hun, 631, distinguished.</p> <p>8. Counterclaim—Action under Sinking-Fund Law.</p> <p>In such case defendant is entitled to have deducted from the amount claimed by plaintiff so much as was paid to the town for town purposes.</p>

Action by Lafayette Cole against the Fall Brook Coal Company 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, made on a case and exceptions and certain affidavits, defendant appeals.

<p>Principal and Agent—Scope op Authority—Knowledge op Third Person.</p> <p>Where the agent of a corporation, who was authorized to draw checks against its bank account, gave to a broker, to pay losses arising on purchases on margins made by the broker for the agent, a check signed by him in the name of the corporation, the broker is chargeable with notice that the check so given was not within the scope of the agent’s authority, and therefore the corporation may recover the amount thereof from the broker.</p>

Certiorari by the Western New York & Pennsylvania Railroad Company and Samuel G-. De Coursey, as receiver of said company, against Mahlon D. Adams and others, composing the common council of the city of Rochester, and others, to review an assessment for the construction of a bridge over relator’s tracks on Bronson avenue, in said city of Rochester.

Action by Jeannie T. Hard against Charles O. Ashley and others for partition. 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 Arthur J. Baldwin against Marie Golde and others to recover possession of real estate. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.

Certiorari by Mary C. Hanford and another against James A. Thayer and others, highway commissioners, to review proceedings in laying out a highway in the town of Jerusalem, Tates county.

Action by Willard E. Case against the county of Cayuga and the board of supervisors of said county to enjoin defendants from consenting to the construction of a street railway in the city of Auburn. From an order vacating an injunction theretofore granted, plaintiff appeals.

Action by Edward P. Bates and others against the Salt Springs National Bank of Syracuse and others to foreclose mechanics’ liens. From a judgment for plaintiffs (27 N. Y. Supp. 951), defendants appeal.

Action by Francis E. Comstock against Benjamin Green. From a judgment of nonsuit, and from an order denying a motion for a new trial on a case and exceptions, plaintiff appeals.

Action by George F. Tillitson against Alvin B. Nye and another . to set aside certain mortgages, on the ground that they were usurious. The complaint was dismissed on the opening of the case, and plaintiff appeals.

<p>Appeal—Exception—When Necessary.</p> <p>A finding of fact without evidence presents a question of law, and cannot he reviewed unless an exception is taken.</p>

Action by James S. Glenn against Charles Rossler and Richard T. Ditzell to recover payments on a land contract rescinded for want of title in the vendors. 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, defendants appeal.

Action by Joseph Lefrois against the county of Monroe. From an order granting plaintiff’s motion to set aside a verdict on the ground that the damages awarded were inadequate, defendant appeals.

Proceeding to subject the shares of John Hall and others in the estate of Samuel Hall, deceased, to the payment of the collateral inheritance tax. From a judgment in favor of certain of the heirs and next of kin, the county treasurer appeals.

Action by Matthew Hallinan against James Murphy and Ellen Murphy to recover possession of land. A verdict was directed in favor of defendants, and plaintiff moves for a new trial on exceptions ordered to be heard at general term in the first instancé.

<p>Appeal from circuit court, Niagara county.</p> <p>Action by the W. O. Hickok Manufacturing Company against Edward W. Blackball, on promissory notes. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, madé on the minutes, defendant appeals.</p>

<p>Appeal from special term.</p> <p>Action by William H. Mandeville against Ellen K. Mackey, Lillie K. Bromley, and others to establish a lien on an insurance policy. Judgment was entered in favor of plaintiff, and defendants appeal.</p>

Action by Edward B. Moore against Isaac A. Cooley for damages for cutting certain trees. There was a judgment in favor of plaintiff, and defendant appeals.

Action by John Mullen, as administrator of William T. Guinn, deceased, against James Guinn. From an order directing that judgment be entered against plaintiff personally for the amount of a verdict in favor of defendant, plaintiff appeals.

Judicial settlement of the accounts of Margaret Callister and Henry Likly, as administrators of John Callister, deceased. From the decree, certain claimants appeal. Margaret Callister is the widow of the deceased, and the daughter of Robert Walker, deceased. She is the administratrix of the estate of Walker, as well as an administratrix of the estate of Callister. She married Mr. Callister in May, 1857, and he died -in April, 1888.

<p>Appeal from judgment on report of referee.</p> <p>Action by William C. Bryant, as executor of Joseph N. Tift, deceased, against Sarah A. Gay and others, for an accounting. The complaint was dismissed, and plaintiff appeals.</p>

Action by Anton J. Lorenz, by his guardian ad litem, against Homer T. Jackson and another, for malpractice. From, a judgment entered on a verdict in favor of plaintiff for $3,000, and from an order denying a motion for a new trial made on the minutes, defendant Jackson appeals.

Action by Betsy Butcher, as administratrix of William Butcher, deceased, against Horatio S. Butcher. 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 Benjamin H. Payne and others against the Eureka Electric Company to recover the purchase price of two engines. From an order changing the place of trial from Chemung county to the city and county of New York, plaintiffs appeal. Issue of fact was joined on the 7th of January, 1895, and the defendant’s notice of motion was served on the 12th of January, for the special term held in connection with the Chemung circuit.

Action by Frances M. Tindale against Martha F. Powell. 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. The action was brought by George A. Tindale to recover the possession of the lands described in the complaint, which are situated at Clark’s Mills, on the easterly side of the highway leading from Kirkland to Westmoreland.

Application by William J. Ranton for a writ of mandamus. An order was granted authorizing an alternative writ, directing a return to the inspectors of election of the Fourth district of the First ward of the city of Syracuse of “the return and certificate of the result of the election in said district, held in said First ward of the city of Syracuse on the 29th day of January, 1895, which said return and certificate was filed with the said city clerk of said city of Syracuse…

Action by John Schulte against the Lestershire Boot & Shoe Company and others. From an order setting aside the taxation of costs, and directing a retaxation, plaintiff appeals.

<p>Appeal from circuit court, Onondaga county.</p> <p>Action by Mary Ryan, as administratrix of the estate of Ernest C. Ryan, deceased, against the New York Central & Hudson River Railroad Company to recover for the alleged negligence of defendant in causing the death of plaintiff’s intestate while riding in the cab of a freight engine. From a judgment entered on a verdict in favor of plaintiff for $5,000, and from an order denying a motion for a new trial made on the minutes, defendant appeals.</p>

<p>Appeal from judgment on report of referee.</p> <p>Claim for $214.75 by Allie Lashaw against Fred E. Croissant, as executor of Jeannette Marcean, deceased, which was rejected by the executor, and referred under the statute. There was a judgment in favor of. plaintiff for $135.40, and defendant appeals.</p>

Action by Georgie Petrie, by guardian, against Frederick Williams. From a judgment entered on a verdict in favor of plaintiff for $2,106, and from an order denying a motion for a new trial on the minutes, defendant appeals. The action was commenced in January, 1891, against the appellant and one Thomas H. Breen.

<p>Application by Thomas Coggey for writ of mandamus to William Brookfield, commissioner of public works.</p>

<p>Benevolent Societies—Expulsion op Member.</p> <p>The expulsion of a member of a benevolent society is invalid unless he is served with notice as required by the constitution of the society.</p>

Action by Solomon Feiner against Max Kobre. From a judgment entered on the direction of the trial judge dismissing the complaint, plaintiff appeals.

<p>Vendor and Purchaser—Marketable Title—Encroaching Walls.</p> <p>Where the walls of a building encroach about 2% inches on the street, and six-eighths of an inch on an adjoining lot, the title is unmarketable.</p>

Action by Christopher Malloy against the Yew York Real-Estate Association and others. A verdict was rendered in favor of defendants Porter Bros. & Co., and against defendant real-estate association. From the judgment entered on such verdict, and from orders denying motions for new trials, plaintiff and defendant real-estate association appeal.

<p>Action by Leon Michael against Louis Kronthal. Plaintiff moves to continue an injunction pendente lite.</p>

<p>Action by Diedrich Brandt, as executor of the will of Antje Hargens, deceased, against Maria Brandt to obtain a construction of the will.</p>

Action by Mary Walsh, as administratrix, etc., and another, against the Manhattan Bail way Company. Judgment was entered on a verdict in favor of defendant, and plaintiffs appeal.

Action by Benjamin Weeks against James O’Brien, as executor, etc. From an order granting leave to plaintiff to amend his complaint on payment of $50 costs, defendant appeals.

Certiorari by Thomas Cairns against Joseph Murray and others, constituting the board of excise commissioners of the city of New York, to review the decision of defendants in refusing to grant a liquor license.

Action by Peter Schaeffler against Charles Miehling. From a judgment entered on verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from equity term.</p> <p>Action by Bichard Gr. Platt against Joseph J. Zimmerman and others. The complaint was dismissed on the merits, and plaintiff appeals.</p>

<p>Action by Johanna Simis against William Brookfield, as commissioner of public works, and another. Plaintiff moves to continue an injunction pendente lite.</p>

Certiorari by the Edison Electric Light Company to review the decision of Frank Campbell, comptroller of the state of Hew York, in assessing relator’s property for taxation.

Certiorari by the Edison Electric Light Company to review the . decision of Prank Campbell, comptroller of the state of New York, in assessing relator’s property for taxation.

Action by Kittie Crosby, as administratrix, against the Eew York Central & Hudson Biver Railroad Company, for the alleged negligence of defendant in causing the death of plaintiff’s intestate. From a judgment dismissing the complaint entered on an order granting a nonsuit, plaintiff appeals.

<p>1. Foreign Corporations—Doing Business in State—Cebtificate.</p> <p>A foreign corporation which ships goods into the state on an order given it out of the state is not doing business within the state, within Laws 1892, c. 687, § 15, forbidding foreign corporations to do business within the state without a certificate.</p> <p>2. Corporations—Liability of Directors—Notes of Corporation.</p> <p>In an action to charge directors with the debts of their corporations for failure to make annual reports, an unpaid and past-due note of the corporation, held by plaintiff, will not be treated as a payment on the corporation’s indebtedness.</p> <p>8. Same—Verification of Reports.</p> <p>Under Laws 1892, c. 688, § 30, requiring the report of directors to be verified “by oath of the * * vice president and treasurer,” one oath, is enough where the same person holds both offices.</p>

Action by Samuel H. Kenyon against Lizzie Kenyon for divorce a vinculo matrimonii. Judgment was entered in favor or defendant, and plaintiff appeals.

Action by Frank Rhodes against Morris Carr. From an order denying a motion for a retaxation of costs, defendant appeals. - Plaintiff brought an action in the municipal court of the city of Syracuse, and recovered the sum of $38.71 damages. Defendant appealed to the county court of Onondaga county, where a trial was had, and a verdict was rendered for the plaintiff for the sum of $38. Judgment for that sum was entered, with $70.86 costs.

<p>Appeal from judgment on report of referee.</p> <p>Action by the Immaculate Conception Church against Charles E„ Sheffer. There was a judgment in favor of defendant, and plaintiff appeals.</p>

Action by the Vogt Manufacturing & Coach Lace Company against Carl Oettinger. From an interlocutory judgment sustaining a demurrer to the second cause of action alleged in the complaint, plaintiff appeals.

Action by the Vogt Manufacturing & Coach Lace Company against Carl Oettinger. From an order denying a motion to modify and correct the decision of the court, defendant appeals.

Action by Norris Winslow, as trustee, against the Carthage, Water-town & Sachet’s Harbor Railroad Company, to foreclose a mortgage. From an order directing the payment of certain commissions to the county treasurer the railroad company appeals.

Application by James McLoughlin for a writ of habeas corpus against Sylvester Wilson, sheriff, and another. The writ was granted, relator wás discharged, and defendants appeal.

Action by Anna Stedman against the city of Rome to recover damages for personal injuries. From a judgment dismissing the complaint with costs, and from an order denying a motion for a new trial made on the minutes, plaintiff appeals.

Action by Andrew D. Ely against the New York Central & Hudson River Railroad Company for personal injuries. The complaint was dismissed, and plaintiff appeals. The plaintiff was an employs of the defendant, and had been in its employ four or five days previous to the accident. At the time of the accident the plaintiff was engaged with 23 other men in picking up and loading onto a fíat or platform car old rails that had been replaced by new ones.

<p>Appeal from circuit court, Onondaga county.</p> <p>Action by the P. J. Sorg Company against Charles E. Crouse and another. From a judgment entered on a verdict in favor of defendants, and from an order denying a motion for a new trial, made on the minutes of the court, plaintiff appeals.</p>

Action by Theodore L. Wilcox against the New York, Lake Erie & Western Railroad Company. From' a judgment entered on a verdict in favor of plaintiff for $5,000, and from an order denying a motion for a new trial, made on a case and exceptions, defendant appeals.

Action by Nancy M. Skinner against James Steele. From an order denying a motion to vacate and set aside an order for defendant’s examination before trial, defendant appeals.

<p>1. Discovery—Reference as to Question op Fact.</p> <p>Where the court, on an application for the inspection of books and papers, directs a certain paper to be deposited with the clerk, and in other respects denied the application, with costs to abide the event, but with leave to the moving party to renew the application, and no steps have been taken to renew the application, the court has no power to order a reference to take proof as to what books and papers the other party had the power to produce for inspection.</p> <p>2. Appealable Order—Substantial Right.</p> <p>An order directing a reference to ascertain what books and papers defendant had the power to produce for inspection affects a substantial right, and is reviewable.</p>

Action by Uri C. Van Vleck and others against Emilus J. Enos and others. 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, defendants appeal.

<p>1. Claim against Decedent—Presentation of Claim.</p> <p>Proof that one of the executors was in, possession of a note executed by testator and payable to claimant, and that claimant demanded possession of the note, does not show a presentation of a claim for the amount of the note against the estate, so as to entitle the claimant to costs under Code Civ. Proc. § 1835, which provides that where a demand against a decedent’s estate was presented within the time limited by notice, and the payment thereof was unreasonably resisted or neglected, the court may award costs against the executor or administrator. Gansevoort v. Nelson, 6 Hill, 389, distinguished.</p> <p>2. Same—Disbursements.</p> <p>Code Proc. § 317, which authorizes the recovery of disbursements in a proceeding for a claim against a decedent’s estate, is preserved by Laws 1880, c. 245, repealing the Code of Procedure, and providing (section 3, subd. 8) that “the repeal effected by the first section of this act is subject to the following qualifications: * * * (8) It does not affect the right of a prevailing party to recover the fees of referees and witnesses and other necessary disbursements upon the reference of a claim against a decedent, as provided in those provisions of the Revised Statutes left unrepealed after this act takes effect.”</p>

William B. Carter was convicted of being intoxicated in a public place in the city of Syracuse, and sentenced to be imprisoned therefor in the Onondaga county penitentiary for the term of 30 days. From a judgment of the court of sessions affirming a judgment of the police court of the city of Syracuse, defendant appeals.

Action by William E. Pratt, as receiver of John Schaefer, against Charles H. Baker, Edwin R. Plumb, and John 0. Whiteside. There was a judgment in favor of defendants, and plaintiff appealed. ¡Pending the appeal an order was made requiring plaintiff to correct the printed papers, and from such order plaintiff appeals.

<p>Pleading—Bill or Particulars.</p> <p>Where the answer in an action on notes alleges that the notes were given to accommodate the payee, who was at the time selling goods to the maker, that the balance of the indebtedness was to be adjusted by an accounting, and that the maker had paid more than the amount of goods delivered, a bill of particulars of the goods delivered will not be ordered. Brown, P. J., dissenting.</p>

Action by Charles F. Goodwin against Josephine Thompson. From an order granting a motion to strike out certain paragraphs of the answer as sham and the residue of the answer as frivolous and for judgment, defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by the Kingston National Bank against Augustus H. Van Burén. Judgment was entered in favor of plaintiff, and defendant appeals.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Marcus P. Mason against Amasa Corbin for deceit. Judgment was entered in favor of plaintiff, and defendant appeals.</p>

<p>Evidence—Copies of Memoranda.</p> <p>Where a merchant keeps a book in which entries of goods returned are made, a copy of entries therein cannot be used to prove what goods were returned, without proof that the original cannot be produced.</p>

Action by Josephine Van Olinda against Mary B. Hall. From a judgment entered on a verdict in favor of plaintiff for $2,000, and from an order denying a motion for a new trial, defendant appeals. For decision on appeal from an order denying defendant’s motion for a bill of particulars, see 31 N. Y. Supp. 495.

<p>Supplementary Proceedings—Aeeidavit.</p> <p>An. affidavit filed In support of a motion before the county judge of B. county for the examination of a person in supplementary proceedings alleged that judgment was recovered and the roll filed and docketed in B. county; that the transcript of the judgment was filed in D. county, and execution issued thereon against defendant to the sheriff of D. county, where defendant then resided. Held, that the affidavit was insufficient, in that it did not state the residence of defendant at the time it was made.</p>

Action by James B. Wise and Frederick Gayer against Clinton W. Bider, brought by plaintiffs, as judgment creditors of George B. Holbrook, to set aside three chattel mortgages given by him to defendant, on the ground that they were fraudulent obstructions to the collection of plaintiffs’ debt. The complaint was dismissed, -and plaintiffs appeal.

<p>Appeal from order of Broome county judge.</p> <p>Action by John Franey against Alvin C. Smith and others. From an order holding that the county judge had no jurisdiction, plaintiff appeals.</p>

<p>Action by Martin against Bernheim. Defendant moves for leave to serve an unverified answer.</p>

Action by Georgiana Longyear against Charles H. Carter. Prom an order vacating and setting aside an ex parte order of the county judge which dismissed the appeal to the county court from the final order of a justice of the peace in summary proceedings, plaintiff appeals.

<p>Referee—Appointment—Review.</p> <p>An order appointing a referee can be reviewed only by a separate appeal therefrom, taken without submitting to a hearing on the merits.</p>

Action by Lydia Pritchard, individually and as executrix of- William Dickerson, deceased, against George S. Palmer and Selden Palmer. Judgment was entered in favor of plaintiff, and defendants appeal.

Action by Julia L. Meagley, as executrix of Bosell H. Meagley. deceased, against Joel S. Hoyt, as surviving partner of Joel S. Hoyt & Co. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on a case and exceptions, defendant appeals. - The action was for a breach of warranty on the sale of a large quantity of tallow to the plaintiff’s testator by the firm of Joel S. Hoyt & Go., of which the defendant is the…

Action by Grover C. Robinson, an infant, by his guardian ad litem,. Edwin E. Pattengill, against Ernest R. Hunt, for wages. Judgment in favor of plaintiff was entered by the justice, and defendant appealed to the county court, where a new trial was had. Front a judgment in favor of plaintiff, and from an order denying a motion, for a new trial, on the minutes, defendant appeals.

<p>Attachment—Conjectural Damages.</p> <p>In an action against a foreign corporation to recover the reasonable value of plaintiff’s services for selling defendant’s stock, there haying been no agreement as to the amount of compensation, the complaint— made on information and belief, and verified by one of the plaintiffs on his belief only—alleged that the customary charge for such services was 20 per cent, on the cash value of the stock. The papers did not disclose the source of information on which the belief was predicated, nor was there an affidavit, by any one qualified to testify, as to whether such commissions were customary or reasonable. Held, that the case was within the rule that an attachment could not be granted where the amount of damages is conjectural. 6</p>

Proceeding for the probate of the will of Sophia Moss, deceased. Proponent moves for final judgment on the verdict of a jury admitting the will to probate.

Action by Gardner H. Wheeler, as receiver of the property and effects of Alfred E. Crane, against Jewell Vanderveer. From a judgment of the county court affirming a judgment rendered by the municipal court of the city of Syracuse, plaintiff appeals.

Certiorari on the .petition oí the attorney general to review the proceedings had before Frank Campbell, as late comptroller of the state of New York, and James A. Roberts, comptroller of the state of New York, relating to the revision and readjustment of taxes assessed against the New York Central & Hudson River Railroad Company.

<p>1. Interest—Running op—Failure op Vendor’s Title.</p> <p>Interest on damages for failure of title runs only from time of eviction where there is no liability for mesne profits.^</p> <p>2. Same—Time op Eviction.</p> <p>Though land is sold for taxes, and a tax deed given to the state, there is no eviction of a prior grantee, so as to allow running of interest on his damages, against his grantor, as long as there is no assertion of title, under the tax deeds, against such grantee.</p>

Action by Alexander Myers against the New York Central & Hudson River Railroad Company. From a judgment entered on a nonsuit, and from an order denying a motion for a neiw trial made on the minutes, plaintiff appeals.

<p>False Representations—Evidence—Scienter.</p> <p>A purchaser who seeks to avoid, on the ground' of false representations, his agreement to pay the indebtedness of the mercantile business which he purchased, must prove, not only that the representations were made, but that they were made with knowledge that they were false, and for the purpose of deceiving him, and that they had that effect.</p>

<p>Nuisance—Unauthorized Railroad Structure.</p> <p>The authority conferred on a railroad company to construct and operate its road does not authorize it to maintain, in the neighborhood of property used for residence purposes, large coal bins, with an incline trestle leading thereto, up which cars loaded with coal are drawn for the purpose of depositing the coal in the bins, in doing which the engines emit noxious, offensive gases, smoke, sparks, soot, cinders, and dust arising from the coal put in and taken from the bin; and the owner of property affected may sue the railroad company to enjoin the nuisance, and for damages.</p>

Action by Catharine C. Ellerson against Elizabeth P. Westcott and others.

Actions by Sherman B. Mosher and by William H. McDonald, respectively, against the Supreme Sitting of the Order of the Iron Hall and others. From an order denying a motion made by William H. McDonald to compel the receiver of the Supreme Sitting of the Order of the Iron Hall to pay a judgment recovered against it by him, said McDonald appeals.

<p>Appeal from circuit court, Onondaga county.</p> <p>Action by Albert P. Fowler, as administrator of George F. Com-stock, deceased, against the Union Coarse Salt Company. From a judgment entered on the decision of the court to have a trial without a jury, plaintiff appeals.</p>

Action by John Fitzgerald, as administrator of Thomas Fitzgerald, deceased, against the New York Central & Hudson River Railroad Company. From a judgment entered on a verdict in favor of plaintiff for $3,000, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Action by Roger B. Williams against Homer W. Rightmyer and others. Prom an order denying a motion to vacate an attachment, Eugene Terry, as assignee for the benefit of creditors of defendant Rightmyer, appeals.

<p>1. Attachment—Affidavit—Allegation of Nonresidence.</p> <p>The moving affidavit made by plaintiff stated that defendant “is not a resident of the state of New York, and that he resides at Forest City, in the state of Pennsylvania,” and that affiant stated the residence of defendant on information received from his attorney, to the effect that the attorney had seen a chattel mortgage which described defendant as residing at Forest City. The attorney made an affidavit that he gave plaintiff such information, and that it was true. Held sufficient to sustain an attachment on the ground of defendant’s nonresidence. Steel v. Raphael (Sup.) 13 N. Y. Supp. 664, followed.</p> <p>2. Appeal—Discretion of Trial Court—Vacating Attachment.</p> <p>The action of a judge granting an attachment on the ground that defendant is a nonresident is an exercise in plaintiff’s favor of whatever discretion the judge may have had in regard to having the fact of nonresidence proved to his satisfaction, and therefore a review of an order vacating the attachment will not be denied on the ground that such order was the exercise of his discretion in defendant’s favor.</p>

<p>Appeal from special term, Schuyler county.</p> <p>Action by Hanford M. Swan against George W. Morgan and others. The complaint was dismissed, and plaintiff appeals.</p>

Proceeding for the probate of the will of Jane G-. Campbell, deceased. From a decree made on the probate of the will, which adjudges “that the provision in said will giving to Henrietta L. Butler the sum of fifteen thousand dollars in trust, and the subsequent direction for the disposition thereof, is legal and valid,” said Henrietta L. Butler appeals.

<p>Appeal from Onondaga county court.</p> <p>Action by Simon D. Paddack against John Barnett and another. From an order allowing defendants to amend their answer, plaintiff appeals.</p>

<p>Estoppel—To Claim Land against Ancestor’s Warranty.</p> <p>The heirs of a grantor who conveyed land with warranty of title are not estopped, after the grantor’s death, to assert against the grantee a claim to the land conveyed, where their claim was under a will by which the land was devised to the grantor for her life, remainder to her children and their heirs, as in such case the heirs claim, not by descent from the grantor, but under the will.</p>

<p>1. Easements—Right op Way—Grantee op Dominant Estate.</p> <p>Where one conveys a strip through the middle of a farm reserving a right of way across it, and at the same time conveys the rest of the farm by deed describing the whole farm, and then excepting “that portion thereof this day deeded,” the grantee in the second deed is entitled to the benefit of the reservation in the first deed, though it is not mentioned in his deed:</p> <p>2. Same—Location op Way.</p> <p>The words in a deed, “reserving the right of way over the east lot to and from the wood lot,” are definite, m connection with the fact that a clearly-defined road existed at the time, and was thereafter used by the grantee.</p> <p>3. Same—Time op Use.</p> <p>Under a reservation in a deed of a right of way across the lot conveyed, “when said lot is not sown with grain, and at all times when there is sleighing,” the grantor has a right to cross at all times when the lot is not in good faith so sown with grain that the use of the roadway will result in substantial injury to the grantee.</p> <p>,4. Same—Extent op Use.</p> <p>Under the reservation of a right of way over part of a farm to a wood lot, the grantor has a right to use it for hauling stone and other products of the wood lot</p> <p>'5. Costs—Action to Establish Easement.</p> <p>Where an action to establish the existence and determine the extent of a right of way is made necessary by defendant’s denying plaintiff’s rights, the allowance of costs to plaintiff is within the discretion of the court.</p>

<p>Appeal from circuit court, Oneida county.</p> <p>Action by Jennie M. Perry against John S. Kent and another. The complaint was dismissed on the merits, and plaintiff appeals.</p>

<p>Appeal from Essex county court.</p> <p>Action by George E. Beardsley against Willis G. Pope. From.an order setting aside an execution and docket of the judgment (32 N. Y. Supp. 926), plaintiff appeals.</p>

Action by Howe’s Cave Lime & Cement Company against Howe’s Gave Association. From an order directing that plaintiff be permitted to go on the lands and premises of defendant for the purpose of making a survey and ascertaining the boundaries thereof, defendant appeals.

Action by Margaret A. Swift against Charles H. Swift and Mary Louisa Swift to recover dower. From an order confirming the referee’s report in favor of defendants on the question of damages, and offsetting defendants’ costs on' such reference as taxed, against plaintiff’s judgment as entered, plaintiff appeals.

<p>Controversy between Alice E. Rich, plaintiff, and Adelbert E. Rich, defendant, submitted without action, pursuant to Code Civ. Proc. § 1279.</p>

<p>1. Limitations—Accrual op Cause op Action.</p> <p>Where money is left with one as a deposit, and he merely gives a receipt to that effect, a cause of action therefor does not accrue till demand.</p> <p>3. Same—Note.</p> <p>The statute begins to run at once on an instrument reciting, “Due S. $178,” it being a promissory note payable immediately.</p> <p>3. Promissory Note—When Payable—Parol Evidence.</p> <p>It cannot be shown by parol that a promissory note reciting, “Due S. $178,” was not payable immediately, but, by agreement of the parties, was not to be payable till demand.</p> <p>4. Payment—Presumption.</p> <p>There is no conclusive presumption of payment of a deposit, though 30 years have elapsed since it was made, where the depositor died 8 years after the deposit was made, and no administrator was appointed for her till 21 years after her death.</p>

Action by William Francisco against the Troy & Lansingburgh Railroad Company to recover damages for personal injuries. The complaint was dismissed, and plaintiff appeals. For former report, see 29 N. Y. Supp. 247.

Action by James H. Doolittle against Melinda Gambee. In the complaint it is alleged that at divers dates from May 14, 1892, to June 8, 1893, the plaintiff sold and delivered to defendant goods, wares, and merchandise to the amount of $362.68; that payments thereon were made to the amount of $165; and judgment was asked for the balance.

Action by David Johnson- against Orange E. Kathan. 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 Frances E. Muller against Willard 0. Wilcox. From a judgment in favor of plaintiff, defendant appeals.</p>

■ Action by Caroline Gr. Ogier, administrator, against the Albany Railway. From a judgment entered on a verdict in favor of plaintiff for $2,000, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Claim by Betsey Ketchum against James A. Holden, as administrator with the will annexed of Austin H. W. Holden, deceased. Judgment was entered in favor of the plaintiff, and defendant appeals.

<p>Appeal from circuit court, St. Lawrence county.</p> <p>Action by William Henry Allen against the St. Lawrence County Farmers’ Insurance Company. From a judgment entered on a non-suit, plaintiff appeals.</p>

Claim by Susan Baker against William Moore, executor of Abel Scripture, deceased, referred under the statute. Judgment was entered in favor of defendant, and plaintiff appeals.

Action by Jessie H. Bender against Harry H. Bender, as administrator of Franklin W. Bender, deceased. From an order denying a motion for a bill of particulars, defendant appeals.

<p>Street Railroads—Collision with Vehicles Crossing Track.</p> <p>In an action for damages caused by defendant’s street car colliding with plaintiff's wagon, it appeared that plaintiff saw the car approaching on a down grade, and endeavored to cross the track in front of it, supposing that he could do so before the car reached him. Held, that plaintiff was guilty of contributory negligence, as he undertook to determine, at his own peril, whether he could cross the track in safety.</p>

Action by Mcoll against Eddy Palmer and another. Plaintiff moves for an order remanding the cause to the district court, from which it had been removed on the application of one of the defendants.

<p>Action by De Witt against Gunn. Plaintiff moves to punish defendant for contempt.</p>

<p>Appeal from circuit court, Rensselaer county.</p> <p>Action Tby Emma Smith, as administratrix, against the New York Central & Hudson River Railroad Company, to recover damages for the death of plaintiff’s intestate, alleged to have been caused by defendant’s negligence. Plaintiff was nonsuited, and appealed.</p>

Action by Isabella Merritt against Derrick W. Sparling, as receiver. From an order directing defendant to pay plaintiff $236.99, with interest thereon from May 29,1893, together with $10 costs of motion, within 20 days, or be held as in contempt of court, defendant appeals.

Action by Lemon Thomson and another against Hiram Harris. From a judgment of the county court affirming a judgment of a justice in favor of defendant, plaintiffs appeal.

<p>Appeal from court of sessions, Franklin county.</p> <p>Nellie Cowie was convicted of being a common prostitute, and appeals.</p>

<p>1. Trustee—Appointment—Jurisdiction of Supreme Court.</p> <p>The supreme court, having succeeded to the jurisdiction and power of the chancery court, has power to appoint a trustee in the place of a. trust-tee under a mortgage, who has become insolvent.</p> <p>3. Same—Removal.</p> <p>A trustee appointed by the court as successor to the original trustee under a mortgage executed to secure bondholders will not, at the instance of one representing neither the mortgagor, mortgagee, nor any of the bondholders, be removed because of irregularity in the appointment, it having been recognized and acquiesced in by the mortgagor and a large majority of the bondholders.</p> <p>B. Mortgages—Option to Declare Principal Due.</p> <p>The commencement of an action in the name of a trustee, by proper authority of its officers, to foreclose the mortgage creating the trust, is a sufficient declaration of its intention to exercise the option, allowed by the mortgage, to declare the principal sum due for default in interest.</p> <p>4. Corporations—Confirmation of Secretary’s Act.</p> <p>A resolution of the board of directors of a corporation, trustee under a mortgage, ratifying and approving the act of its secretary in giving notice that the trustee exercises its option under the mortgage to declare the principal sum due, is a sufficient confirmation of the secretary’s act, though the resolution was not passed till after commencement of the action to foreclose the mortgage.</p> <p>5. Mortgages—Gas and Electric Light Company—Filing.</p> <p>Laws 1891, c. 171, declaring it unnecessary to file, as a chattel mortgage, a recorded mortgage of “any * * * electric light * * * company” on real and personal property, applies to a mortgage of a gas and electric light company.</p> <p>6. Same—After-Acquired Property—Burden of Proof.</p> <p>Where a mortgage by its terms includes all the property of the mortgagor and all property acquired by the mortgagor after execution of the mortgage, one who, in an action to foreclose the mortgage, claims a judgment lien, superior to the mortgage, on property of the mortgagor, on the ground that it was after-acquired personalty, has the burden of proving that it was after-acquired; and the mere allegation of such claim by him in his answer in the foreclosure suit does not place the burden on the mortgagee of proving that all the property was in the possession of the mortgagor when the mortgage was executed.</p> <p>7. Same—Fixtures.</p> <p>Dynamos and exciters placed by an electric light company, after mortgaging all its property, in the building used by it for the manufacture of electricity, as part of the electric plant, with the intention that they should remain there till worn out or superseded by more suitable machines, become part of the realty, subject to the mortgage, as against judgment creditors of the mortgagor, though they can be removed without impairing the construction of the building.</p> <p>8. Same—Fraudulent Conveyances.</p> <p>A mortgage on the property of a gas and electric light company to secure its bonds is not fraudulent, as against its creditors, as to the personalty, so as to require the mortgagee to credit, as against such creditors, the value of mortgaged personalty which it allowed the company to use, dispose of, and sell, where the property was used and disposed of in the course of its business, and the proceeds of that sold were expended for supplies, repairs, and general expenses.</p> <p>9. Equity—Cross Action.</p> <p>Though Code Civ. Proc. § 217, vests in the present supreme court the jurisdiction of the old supreme court and the court of chancery, with such exceptions, additions, and limitations as have been imposed by the constitution and laws, and provides that, subject thereto, it has all the powers and authority of each of said courts, and “exercises .the same in like manner.” a cross action with the forms and procedure relative thereto does not exist, the forms of pleading in all actions being prescribed, as declared by section 518, by the chapter of which it is a part, and all distinction between actions at law and suits in equity, and the forms thereof, being abolished by section 3339, which also provides that there shall be but one form of action.,</p> <p>10. Judgment—Actions Tried Together.</p> <p>Where an action is commenced by a trustee to foreclose a mortgage, and one of the lien-claiming defendants commences an action against the trustee and certain others to vacate the order appointing the trustee, separate judgments should be entered in each case, plaintiff in the second case having been unsuccessful, though the cases were tried together.</p>

Action by Edward Palmer against the New York & Lake Champlain Transportation Company and the Lake Champlain Transportation Company to recover damages for personal injuries. There was a judgment in favor of plaintiff, and the first-named defendant appeals. For former report, see 27 N. Y. Supp. 561.

Action by Bridget Moran against Harris Friedman for assault ■and battery. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial on the ground of newly-discovered evidence, defendant appeals.

<p>1. Costs—Ownership of—Attorney. •</p> <p>A judgment for costs is presumed to belong to the attorney of the successful party, unless there is an agreement to the contrary.</p> <p>2. Rescission of Contract—Return of Consideration.</p> <p>One who pays a judgment for costs to the attorney of the judgment creditor, on his agreement to have the judgment satisfied and discharged of record within a reasonable time, cannot rescind the contract, and recover back the money paid, without returning to the attorney his agreement to procure a discharge of the judgment.</p>

Action by Harvey J. Hurd and another against the Johnson Park Investment Company and others. There was a judgment in favor of plaintiffs, and some of the defendants appeal. Modified.

Action by John Bowe against Valentine Brunnbauer. From an order directing plaintiff’s attorney to produce the person of plaintiff before a special term of the court for the purpose of then and there having a physical examination of the person of plaintiff by physicians, and for an oral examination, plaintiff appeals.

<p>Damages—Personal Injuries—Medical Testimony.</p> <p>In an action for personal injuries, plaintiff may give evidence of bis present physical condition and bodily sufferings, with the opinions of physicians as to whether such condition could have resulted from the accident.</p>

<p>Appeal from trial term.</p> <p>Action by the Detroit White Lead Wqrks against Frank A. Knaszak. There was a judgment in favor of defendant, and plaintiff appeals.</p>

<p>1. Statute op Frauds—Pleading.</p> <p>Where the contract sued on does not appear, on the face of the complaint, to be within the statute of frauds, defendant, in order to raise the defense, must plead it.</p> <p>3. Same—Original or Collateral Undertaking.</p> <p>In an action to recover the value of work, materials, and labor, It appeared that plaintiff had contracted with a third person to do certain work in defendant’s house; that the contract was partly performed, when it was violated by such third person, in omitting to make payment according to its terms; that thereupon plaintiff refused to proceed, when defendant requested him to finish the work, and said that if plaintiff would finish the work he (defendant) would pay him. Held, that the promise of defendant to pay plaintiff was an original promise, and not within the statute of frauds.</p>

<p>Railroad Companies—Accidents at Crossings—Negligence.</p> <p>In an action for injuries received at a railroad crossing, plaintiff gave evidence that ears standing on the track obstructed his view in the direction from which the train came, that no signal was given by the train on approaching the crossing, that it was going eight or ten miles an hour, that he looked for train before going on the track, but did not see- any, and that after he got on the track he saw the train coming, and was struck by it before he could get off. Defendant gave evidence tending to show that plaintiff was drunk at the time of the accident, which plaintiff denied. Held, that the questions of negligence and contributory negligence were properly submitted to the jury.</p>

<p>Principal and Agent—Undisclosed Principal.</p> <p>In an action for tne price of goods sold, it appeared that defendant was the owner of premises where liquors were sold, and of the fixtures and stock therein; that the license was issued to and paid for by her. It also appeared that the business was managed by defendant’s husband, who bought liquors and sold the same over the bar, but that he had no license to sell liquor in his own name, and that everything that he di'd was done under the license held by defendant. Held, that defendant was liable to plaintiff for the price of liquors purchased by defendant’s husband, for the business conducted on defendant’s premises, as undisclosed principal, though the husband claimed that the business was his.</p>

Action by Mary Anna Huda, as administratrix, etc., against the American Glucose Company. From an order setting aside the verdict in favor of plaintiff, and granting a new trial, plaintiff appeals. The action arises out of the burning of defendant’s factory building, by which plaintiff’s intestate lost his life.

Action by Emma J. Snyder against Susie A. Gardner for price of goods sold. There was a judgment in favor of plaintiff, and defendant appeals.

<p>Appeal from municipal court.</p> <p>Action by Charles E. Walbridge and another against Andrew Simon. There was a judgment in favor of plaintiffs, and defendant appeals.</p>

Henry J. Warren was convicted of violating Laws 1870, c. 385, § 2, as amended by Laws 1894, c. 622, which makes it a crime for a contractor with a municipal corporation for the construction of public works to employ an alien as a laborer on such work, and from the judgment of conviction he appeals.

<p>Appeal from municipal court.</p> <p>Action by city of Buffalo against Maurice Marion to recover damages. Complaint was dismissed, and plaintiff appeals.</p>

Action by Michael Bubino, an infant, by Anthony Bubino, his guardian ad litem, against William H. Force and others. From a judgment entered on.a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

<p>Evidence—Admissions in Pleadings.</p> <p>The rule that a defendant who admits in his answer that which establishes plaintiff’s right cannot deny the fact so admitted, or prove any state of facts inconsistent with the admission, does not apply where the admissions in the answer are ambiguous and are immediately preceded by an express denial of plaintiff’s claim.</p>

<p>1. Landlord and Tenant—Appraisement or Building Erected by Tenant.</p> <p>Where a lease provides that on the expiration of the term an appraisement of the land and of the building thereon erected by the tenant shall be made, and that the lessor shall then have the option of renewing the lease or paying the appraised value of the building, an appraisement made without evidence cannot be impeached for that reason, where no one proposed to give evidence as to value, as the appraisers will be assumed to be competent judges of the value of lands in the vicinity,</p> <p>z. Same—Statement by Appraisers.</p> <p>Such appraisement is not rendered invalid because one of the appraisers stated to the others some facts regarding values of real estate in the neighborhood which had not been stated while the tenant was present, such statement being a mere narrative of the appraiser’s experience;</p>

Application by Maurice P. Quinlan for an injunction to restrain Peter Conlin, acting chief of the police department of the city of New York, from having petitioner arrested for selling soda water, sarsaparilla, etc., on Sunday.

Action by Theodor Beiehmann against Jesse S. Nelson. Judgment was entered in favor of plaintiff, and defendant appeals. The complaint is as follows: Plaintiff complains of defendant, and respectfully shows to this court: (1) That at the times hereinafter set forth the plaintiff was the owner of the premises Nos. 7 and 22 St. Mark’s Place, in the city of New York.

Action by Harvey M. La Follette against William Noble and others to rescind a contract. A preliminary injunction was granted, and plaintiff now moves to continue the same. The Mercury Publishing Company is a corporation created under the laws of the state of New York, August 4, 1894, and engaged in the business of printing and publishing the newspapers known as the Daily America and Mercury, Sunday Mercury and America, and New York Mercury.

<p>Appeal from special term, Cortland county.</p> <p>: Action by Thomas Quinn against Frank B. Jenks and others. The complaint was dismissed, and plaintiff appeals.</p>

Action by Ruth E. Barber and another against the town of Hew Scotland. There was a judgment in favor of plaintiffs, and defendant' appeals.

Action by Isaac Teetsel against William H. Simmons and others, to recover damages for personal injuries caused by the breaking of a platform or switch board on which plaintiff stood while working a switch in order to switch the course of the ice which was being put in defendants’ ice house. Judgment was rendered in favor of plaintiff, and defendants appeal.

<p>Appeal from circuit court, Franklin county.</p> <p>Action by the people against James H. Bean to recover a penalty for violating the game law. 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.</p>

<p>Appeal from court of sessions, Rensselaer county.</p> <p>Eugene E. McClure was convicted of receiving stolen goods, and appeals.</p>

<p>Appeal from order of Saratoga county judge.</p> <p>Action by Samuel D. Kendrick and another against George L. Wandall. From an order denying a motion to punish defendant for contempt, plaintiffs appeal.</p>

<p>L Accident, at Railroad Crossing—Failure to Give Signal—Evidence.</p> <p>In an action for injuries received in collision with a train at a highway crossing, one G., who was in the wagon with plaintiff’s intestate and was driving, testified that he looked and listened, and heard no signal as the train approached the crossing. Two other witnesses who witnessed the accident testified that they heard no bell or whistle, but that they were not listening for any signal, and their attention was not specially called to that fact at the time. Nine witnesses for defendant testified that the bell was rung and the whistle was sounded as the train approached the crossing. Melé, that there was an overwhelming preponderance of evidence that the bell was rung and the whistle sounded as the train approached the crossing, and a finding to the contrary could not be sustained.</p> <p>2. Same—Instructions.</p> <p>An instruction, in an action for injuries received at a railroad crossing, that the repeal of the statute which required signals to be given on the approach of a train to a highway crossing by the ringing of a bell or blowing of a whistle did not dispense with such warnings as might afford reasonable notice to travelers on the highway of the approach of a trcfin, was not erroneous or misleading.</p> <p>8. Same—Contributory Negligence.</p> <p>In an action for injuries received at a railroad crossing, it appeared that plaintiff’s intestate and one G. were riding in a wagon belonging to intestate, drawn by G.’s horse, and that G. was driving. From the point where the train first came in sight to the wagon was a distance of 50 feet, and on either side of the highway was an unobstructed surface on which the horse and buggy might have been turned; and proper care and attention on the part of G. and the intestate, had they looked and listened, would have enabled them to have turned aside and avoided the collision. There was evidence that G., on approaching the crossing, looked and listened, but there was no proof that intestate took that precaution, and there was also evidence that intestate and G. were driving leisurely along and talking at the time of the collision. Melé, that there was no evidence showing that intestate was free from contributory negligence, though it was claimed that, in consequence of the failure of the trainmen to signal the approach of the train, the horse became unmanageable and ran on the track.</p> <p>4. Witness—Credibility—Servant of Party.</p> <p>The fact that, of nine witnesses who testified for defendant railroad company that the bell was rung and whistle sounded on the train by which plaintiff’s intestate was injured at a crossing, the greater part were employés of defendant, is not alone sufficient to discredit them, where the only testimony to the contrary was that of three witnesses who testified that they did not hear any signal.</p>

<p>Receivers—Title—Priority by Relation.</p> <p>The rule that when a receiver qualifies his title relates back to the date of his appointment does not apply so as to defeat the lien of an execution issued on a judgment recovered after the appointment of a receiver, and levied before he qualified, where the debtor had no defense to the creditor’s claim, and prevented him from obtaining judgment before the appointment of the receiver by interposing a frivolous demurrer.</p>

Two actions by the German-American Bank of Tonawanda, New York, against Cornelius Daly, impleaded with John Charlton and another. From a judgment entered in each case on a verdict in favor of plaintiff rendered by direction of the court, Cornelius Daly appeals. The actions were brought to recover upon two certain promissory notes.

<p>Collateral Securities—Proportional Discharge op Lien.</p> <p>Plaintiff deposited bonds with the M. Bank as collateral security for three notes discounted by it. Afterwards the M. Bank, without plaintiff’s knowledge, delivered one of the notes together with some of the bonds to the S. Bank as security for a note made by it to the S. Bank. Meld that the M. Bank, by parting with such bonds, voluntarily apportioned its security, and therefore plaintiff might redeem the bonds so in the hands of the S. Bank by paying the amount of the note pledged to it by the M. Bank.</p>

Action by Peter Mulligan and others against Luther C. Vreeland and others. From an order allowing plaintiffs to make certain other persons defendants, defendant Vreeland appeals.

Application of the city of Brooklyn for authority to acquire the property and franchises of the Long Island Water-Supply Company. From an order (32 N. Y. Supp. 182) granting an extra allowance to the company, the city appeals.

Petition by the Auburn City Railway Company for the. appointment of commissioners to determine whether petitioners’ proposed. road ought to be built. The report of the commissioners in favor of petitioner was confirmed by the general term, and contestants moved for a reargument.

<p>Appeal from special term, Kings county.</p> <p>Action by Esther Hayes against St. Mary’s Lodging House to recover money alleged to have been loaned by plaintiff to defendant. Plaintiff’s motion for bill of particulars was granted, and defendant appeals.</p>

Action by Valentine Cornwell against Charles H. Clements. Defendant applies for leave to appeal from judgment of general term (33 N. Y. Supp. 866) affirming a judgment of the special term sustaining a demurrer to the complaint

Petition of James M. Hanly, guardian of Joseph F. Hanly, for an order requiring Dennis Murphy, administrator of Anna T. Murphy, deceased, to render an account of the proceedings of Anna T. Murphy as guardian of Joseph F. Hanly. From such an order, Dennis Murphy appeals.

Action by Andrew Cosgriff and others against William Dewey for an accounting of the rock quarried by defendant on premises belonging to the parties as tenants in common. From an order, defendant appeals.

Certiorari by Ernest Van Bergen to review the decision of Leonard B. Welles, as commissioner of police and excise of the city of Brooklyn, in dismissing relator from the police force.

<p>Appeal from judgment on report of referee.</p> <p>Action by Charles W. Reeve against Jeremiah Gallivan for breach of contract. From a judgment for plaintiff, • defendant appeals.</p>

Proceeding by the trastees of the Hew York & Brooklyn Bridge to acquire title to land owned by Thomas J. Leary and others. The amount of the award for the land of said Leary was paid to him pursuant to a decision that his wife’s inchoate right of dower could not be recognized as against him in the award. Said order was afterwards reversed, and the trustees now move to compel said Leary to make restitution.

Action by Archibald N. McBean against William M. McOallum for breach of contract. From a judgment rendered by the court on a trial without a jury, plaintiff appeals, on the ground that the court adopted an erroneous measure of damages.

<p>Appeal from special term, Rockland county.</p> <p>Action by Peter 8. Van Orden against Charles Krouse. A demurrer to the complaint was sustained, and plaintiff appeals.</p>

Action by John R Drake against the 2Tew York Iron Mine and others to establish and enforce an equitable assignment of, or lien on, a certain fund. The complaint was dismissed on the merits, and plaintiff appeals.

Action by Genevieve Phillips Powers against H. O’Neill and others to recover value of plaintiff’s pocketbook and contents. The complaint was dismissed, and plaintiff appeals.

Action by the people of the state of New York against Henry C. Fish to recover a penalty for violating the fish law. A demurrer to the complaint was sustained, and the people appeal. The opinion of Mr. Justice GAYNGR at special term is as follows: I think the complaint does not state a cause of action.

Application by the Nonmagnetic Watch Company of America for a voluntary dissolution of a claim by the Eidgenoessische Bank against the temporary receiver of the corporation for certain property was decided against bank, and it appeals.

<p>Appeal from special term, Kings county.</p> <p>Action by Grace A. Keyes against William H. Manning and others. From a judgment constructing the will of Seth C. Keyes, plaintiff appeals.</p>

Action by Michael J. Ahem against the county of Kings and the county of Queens for personal injuries. The complaint was dismissed, and plaintiff appeals.

<p>Appeal from circuit court, Kings county.</p> <p>Action by John McAvoy against the counties of Kings and Queens. Plaintiff was nonsuited, and appeals. Affirmed.</p>

<p>Appeal from special term, Rockland county*</p> <p>Action by Ellen E. Weed against Boltus M. Brush for trespass. There was a judgment in favor of defendant, and plaintiff appeals.</p>

Action by James E. Boyd and others against Joseph H. Miller and others. From an order denying a motion to dissolve an attachment made by a judgment creditor of defendant, said judgment creditors appeal.

Final accounting by William E. Scott and Alexander T. Brown, as assignees of William A. Drake. From an order denying a motion by Laura C. Aber to have her claim allowed as a preferred claim, she appeals.

Action by Hester A. Tompkins against William H. Tompkins and Martha Tompkins. 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, defendants appeal. For former report, see 28 N. Y. Supp. 903.

<p>Justices of the Peace—Personal Liability for Official Acts.</p> <p>In an action before a justice of the peace, the constable neglected to serve the venire for a jury, issued on defendant’s demand; and on the day before the venire was returnable the justice, at plaintiff’s request, issued another venire, returnable several days later, and the trial was adjourned to that day. Defendant did not appear on the return day of the second venire, and the jury rendered a verdict for plaintiff, and the justice issued execution thereon. Held, under Code Civ. Proc. § 3013, providing that, if plaintiff in a justice’s court fails to appear within one hour after the time to which the trial has been adjourned, judgment of nonsuit must be rendered against him, that the action was, ipso facto, discontinued by the failure of plaintiff to appear on the return day of the first venire, and the subsequent acts of the justice were without jurisdiction, and he was liable to defendant for damages sustained by the issuance of the execution. Pratt, J., dissenting.</p>

<p>Wills—Validity op Probate—Limitation op Actions.</p> <p>Where a decree admitting a will to probate is reversed within two years, and the will is afterwards again admitted to probate, the two years within which Code Civ. Proc. § 2653a, provides an action may be brought in the supreme court to determine the validity of the probate of a will, begins to run from the time of the second decree admitting the will to probate.</p>

Action by John G. Murphy against James F. Carey 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 Carey appeals. For former report see 24 N. Y. Supp. 585.

<p>■Carriers op Passengers—Limiting Liability—Knowledge op Contract.</p> <p>The fact that a person in charge of his employer’s horses, who takes passage in the car in which the horses are being transported, without having made any personal contract with the railroad company, knows that his employer made arrangements with the railroad company for his transportation, does not charge him with knowledge that the contract between his employer and the company exempted the company from liability' for any injuries that might be received by him while traveling in such "car.</p>

Summary proceedings by William H. Kent, as administrator, and by Jane Learey, to compel William Rockwell and Charles J. Pier-son, attorneys at law, to pay over certain money of petitioner alleged to be in defendants’ hands. Orders were entered in favor of petitioners, and defendants appeal.

<p>Appeal from special term, Kings county.</p> <p>Action by Oliver W. Ingersoll against Nassau Electric Railway Company for an injunction. There was a judgment in favor of defendant, and plaintiff appeals.</p>

<p>Certiorari by Richard M. Winfield to review an assessment against his property, made by Charles F. Bruning and others, composing the common council of the city of Mount Vernon.</p>

<p>Negligence—Defective Pkemises—Notice.</p> <p>An elevated railway company is not liable for injuries caused by the defective condition of the rubber covering its stairs, where the defect did not exist long enough before the accident to charge the owner with knowledge thereof.</p>

Action by William F. Stokes against tire Atlantic Avenue Railroad Company of Brooklyn. From an order denying a motion to amend the judgment by inserting after the word “dismissed” the words “upon the merits of the action,” defendant appeals.

Action by William A. Godfrey against the county of Kings and the county of Queens. The complaint was dismissed, and plaintiff appeals.

Action by Jeremiah Mead against the National Bank of Pawling. Judgment was entered on a verdict directed by the court in favor Of defendant, and plaintiff appeals.

Action by James H. Birdsall against Harry F. Emmons and another. From an order denying a motion to vacate an attachment, defendants appeal.

<p>Appeal from surrogate’s court, Rockland county.</p> <p>Action by John H. Smith, as executor of John T. Smith, deceased. From a decree resettling and amending a former decree, Anna Maria Smith and others appeal.</p>

<p>Appeal from Suffolk county court.</p> <p>Action by Henry R. He Milt against Sarah Hill and Francis C. Hill to foreclose a mortgage. There was judgment in favor of plaintiff, and defendants appeal.</p>

Action by Jeremiah Mead against George W. Chase for diverting . a note from the purposes for which it • was intended. The complaint was dismissed, and plaintiff appeals.

Action by James H. Perkins against the Commercial Advertiser Association for libel. Plaintiff and defendant both reside in the city of New York, but the venue was laid by plaintiff in the county of Queens. Summons and complaint were served on January 19, 1895, and the answer was due February 8,1895.

<p>Appeal from special term, Kings county.</p> <p>Action by the Donlon & Miller Manufacturing Company against Joseph Cannella. From an order made on the application of Paul Eugene Jones, as receiver in supplementary proceedings, and the defendant, permitting a tenant of real estate belonging to defendant to pay $50 rent to said receiver, and restraining him from paying the same to any other person, Frank Mann, as receiver of said real estate, and defendant in foreclosure action, appeals.</p>

<p>Assumpsit—Pleading—Averment op Fraud.</p> <p>A complaint which alleges that defendants, as stock brokers, received from plaintiff money and property, solely by way of security or a partial payment on supposed actual purchases and sales of stocks, but that in fact no such purchases or sales were made, and demands judgment for the amount of such money and property, states a cause of action for money had and received, and is not rendered insufficient by reason of an additional allegation that defendants obtained the money from plaintiff by false statements that purchases and sales had been actually made; and therefore it is error to dismiss the complaint on the ground that there was no evidence of fraud.</p>

Action by William H. Flannery and Thomas Flannery against the Cornell Steamboat Company to recover damages to plaintiffs’ steam tug caused by collision with defendant’s steam tug. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, defendant appeals.

<p>1. Carriers—Injury to Passenger—Contributory Negligence.</p> <p>A passenger on a Sleeping car. while groping in the dark for the water* closet, opened the door in the vestibule between two cars, and fell out. Belli, that he was not, as.a matter of law, negligent in. not calling the porter and waiting for a light.</p> <p>2. Appeal—Exceptions.</p> <p>An exception “to each of the charges made * * * at the request of plain till, and to each qualification of those requests [made by defendant], and to each refusal to charge either of the propositions requested by defendant,” is insufficient.</p>

Action by John Adamson against the Nassau Electric Railroad Company and others to have declared void a certain franchise granted to defendant corporation by the common council of the city of Brooklyn. There was a judgment in favor of plaintiff (33 N. Y. Supp. 732). and defendants appeal.

<p>Appeal from special term, Kings county.</p> <p>Action by Edward B. Lynch against George W. Lynch. From a judgment overruling a demurrer to the complaint, defendant appeals.</p>

<p>Appeal from judgment on report of referee.</p> <p>Ejectment by Stephen D. Arents against the Long Island Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

Action by John B. Peirano against John L. Merritt, tried before a justice of the peace and appealed to the county court, and there retried. From an order taxing plaintiff’s costs, defendant appeals.

Action by Robert L. Howery against the Lake Shore & Michigan Southern Railway Company for personal injuries. Judgment was rendered for plaintiff, and defendant appeals.

<p>Habeas corpus by James E. Peck to Philip Schantz, sheriff of the county of Ulster.</p>

<p>Appeal from justice court.</p> <p>Action by the Kingston Carriage Company against Alexander Hutton. There was a judgment in favor of plaintiff, and defendant appeals.</p>

Action by Fannie Sprague against the city of Rochester for personal injuries. A nonsuit was granted at the close of plaintiff’s evidence, and plaintiff moves for a new trial on exceptions ordered to be heard at general term in the first instance.

<p>Mandamus—Title to Public Office.</p> <p>The right of a person to the office of supervisor cannot be tried by mandamus, where another person in possession of the office is performing the duties thereof.</p>

<p>Deeds—Building Restrictions—Estoppel.</p> <p>Where the porches, and bow windows in. some instances, of all the houses built on several of a block of lots, conveyed subject to a restriction not to build within 30 feet of the front line, were built within such distance, the building of a house on one of the lots by the grantor of the rest of the lots, so that the bow window and porch thereof will extend over said line, cannot be enjoined.</p>

<p>Pubchasing Agent—Mistake—Liability.</p> <p>Defendant was employed to represent plaintiff in acquiring title to lot 125, subject to a mortgage of $9,000, but, instead, through negligence, took a deed to lot 123, of equal value with lot 125, and also subject to a mortgage of $9,000, paying therefor the $4,000 which had been received from plaintiff with which to buy lot 123. Plaintiff, on discovering the error, by suit had the deed corrected. But lot 125 was then subject, in addition to the $9,000 mortgage, to a second mortgage of $5,000, under which plaintiff was thereafter evicted. Held, that defendant was liable for the $4,000, with interest.</p>

<p>Action by Louisa Becker against the Manhattan Railway Company and others.</p>

<p>Action by Eliza Beck and others against the Brooklyn Elevated Railroad Company and others.</p>

<p>Action by Ignatz Bleich and others against Joseph Sterzelbaeh and others.</p>

<p>Action by Herman Bradshaw against Ciement C. Moore.</p>

<p>Action by Hymen Bloom and others against the National United Benefit Savings & Loan Company.</p>

<p>Action by Mary B. Burns, by Edward McNichol, her guardian ad litem, against the City of Yonkers.</p>

<p>Action by George W. Burrows against James McMurray and others.</p>

<p>Action by Harriet E. Burke against Terry J. Tindale.</p>

<p>Action by Alexander M. Conway against Edward O. Carpenter.</p>

<p>Action by William Chandler against John A. Knox.</p>

<p>Action by Christian Cook against Josephine Rowell.</p>

<p>Action by Henry W. Cromwell, as administrator, etc., of Henry T. Cromwell, deceased, against Henry Hall.</p>

<p>Action by Mary Ann Durland against Jesse Durland, as executor, etc.</p>

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

<p>Action by Franklin P. Eastman against the mayor, aider-men, and commonalty of the city of New York. Both parties appeal.</p>

<p>Action by Frances L. Glover against the Manhattan Railway Company and others.</p>

<p>Action by Edward D. Farrell against the Manhattan Railway Company and others.</p>

<p>Action by John W. Hasbrouek and another against Silas H. Dickinson and another.</p>

<p>Action by Lawrence Green against the Northern Steamship Company.</p>

<p>Action by Charles Hoffman and others against the Manhattan Railway Company and others.</p>

<p>Action by Squire Hill against Robert W. Westcott.</p>

<p>Action by Marie A. Jahn against Patrick J. Gleason and others.</p>

<p>Action by Daniel N. Hurl-but against the Interior Conduit & Insulation Company.</p>

<p>Action by Johan Helmprecht against Jason Marvin Bowen.</p>

<p>Action by Corydon P. Karr and another against one Baxter and others.</p>

<p>Action by Charles L. Littlewood against W. H. Riley and others.</p>

<p>Action by Newbold T. Lawrence and others against the town of Hemp-stead.</p>

<p>Action by James E. McCarty against William Tracey and others for broker’s commissions.</p>

<p>Action by Bern-hard Metz against the American Credit Indemnity Company.</p>

<p>Action by Frederick Neff against Benus Klopfer and another.</p>

<p>Action by Alexander Neill against the Brooklyn Elevated Railroad Company.</p>

<p>Action by the people on the relation of Robert Lee and others, against the village of College Point and others.</p>

<p>Action by Annie C. Pell and others against the Manhattan Railway Company and others.</p>

<p>Appeal from special term, New York county. Action By Michael ■O’Brien against Robert J. Smith.</p>

<p>Action by John R. Potts avainst Richard Cuff and others.</p> <p>George W. Glaze, for appellant.</p>

<p>Action by William L. Rich, as administrator of Josiah Rich,, deceased, against the New York Central & Hudson River Railroad Company.</p>

<p>Action by August Roediger against Patrick J. Gleason and others.</p>

<p>Action by Minnie Rinaldo against the Manhattan Railway Company and others.</p>

<p>Action by Peter S. Schutt against the Manhattan Railway Company and another.</p>

<p>Action by William H. Sherwood against Tjark J. Houtman.</p>

<p>Action by Julia B. Shearwood against Eleanor Shearwood.</p>

<p>Action by Theodore V. Smalley, plaintiff, against the Fulton Bank.</p>

<p>Action by Charles G. Stevens against John L. Melcher.</p>

<p>Action by the town of Newtown against Thomas Auld.</p>

<p>Action by Wilson B. Taylor against Jackson T. Roe.</p>

<p>Action by Abram Travis against Robert Post.</p>

<p>Action by John Sutherland against the city of Brooklyn, impleaded with others.</p>

<p>Action by Orazio Valenti and another against Richard B. Constantine and another.</p>

<p>Action by Albert J. Wheeler, as substituted plaintiff in ■ place of Mark H. Irish, against John Bell and 1 Van Horn Ely.</p>

<p>Action by William W. Van Keuren, as executor of the estate of Rachel Van Keuren, deceased, against Peter Van Keuren.</p>

<p>Action by William S. Wyse against Marie S. Wyse and others.</p>