Volume 35 — New York Appellate Division Reports

Appeal by the plaintiff, Martin Shaver, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 21st day of December, 1897, upon the verdict of a jury, as amended by an order made at the Greene Special Term and entered in the office of the clerk of tlie county of Rensselaer on the 17th day of January, 1898, with notice of an intention to bring up for review upon such appeal an ■ order entered in…

Appeal by the defendant, Jennie B. Stevens, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 17th day of December, 1897, upon the decision of the court rendered after a trial before the court without a jury at the Albany Trial Term.

<p>Appeal by the defendant, the Binghamton Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 16th day of May, 1898, upon the verdict of a jury for $1,200, and also from an order entered in said clerk’s office on the 16th day of May, 1898, denying the defendant’s motion for a new trial made upon a case containing exceptions.</p> <p>The plaintiff was employed by a contractor at work in paving a street for the city of Binghamton. On either side of each rail of the defendant’s railway which ran through that street, for a foot or so, it was paved with stones, and the cracks between the stones were filled with hot tar or asphalt. This tar was taken in a bucket from a vat which was kept hot near by, and carried by an employee and poured into the cracks after they had been freed from sand and dirt. The plaintiff was employed at this work and was struck by a car of defendant which came down the street from the east, going west. Several other men were at work with him, and that gang had been at work there for several days.</p> <p>This action was brought to recover against defendant for the injuries so received. The plaintiff obtained a verdict, and from the judgment entered thereon this appeal is brought.</p>

<p>Guaranty — evidence of a contemporaneous parol agreement to apply property of the debtor before calling on the guarantors is inadmissible—Statute of Frauds—what delay in bringing suit upon the guaranty does not constitute laches — duty of the creditor to sue for interest as it falls due — a failure to apply collateral security, as bearing on the question whether due diligence was exercised by the creditor.</p> <p>An agreement, dated January 22, 1891, to “ guarantee the collection of the indebtedness now due and owing to said Miner E. Sherman by one Edwin 0. Pedrick, which amount is five hundred and fifty-four dollars, and interest from December 27th, 1889, and said indebtedness is extended for the period of five years from the date hereof, interest thereon to be paid annually,” is a complete contract, the consideration for which is apparent upon its face, and in an action brought to recover thereon, evidence offered solely for the purpose of showing that, contemporaneously with the execution of the guaranty, Miner E. Sherman agreed, by parol, to apply property of the debtor, which he then held upon the debt, before calling upon the defendants to pay it, is inadmissible.</p> <p>Such a parol promise would be void under the Statute of Frauds, as, by its terms, it was not to be performed within a year.</p> <p>A delay in bringing suit upon the guaranty from January 33, 1896, when the period of extension expired, to March 10, 1896, cannot be said, as matter of law, to constitute a want of due diligence upon the part of the creditor, in the absence of evidence that any change in the financial condition of the debtor had occurred in the meantime.</p> <p>Under the terms of the guaranty it was the duty of Sherman to prosecute to judgment the claims for interest as they fell due, and such action not having been taken, the recovery against the guarantors upon such agreement should only include the interest accruing after January 33, 1895, Sherman not having been negligent in failing to collect it.</p> <p>Quaire, whether evidence tending to show that Sherman held collateral security for the debt in question which he had neglected to apply thereon, would, if offered for that purpose, have been admissible upon the question whether Sherman exercised due diligence in attempting to collect his debt from the principal debtor.</p>

<p>Appeal by the defendant, Herbert Knight, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chenango on the 3d day of January, 1898, upon the decision of the court rendered after a trial at the Broome Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.</p>

Appeal by the defendant, The Albany Railway, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 14th day of March, 1898, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 14th day of March, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the relators, Martin Heermance and others, from an order of the Supreme Court, made at the Columbia Special Term and entered in the office of the clerk of the county of Albany on the 2'7th day of June, 1898, denying their application for a writ of mandamus directed to Addison E. Dederick, as assessor of the city of Kingston, commanding him to place upon the assessment roll of ■said city the names of all persons, residents in his tax' district, who are depositors in…

Appeal by the plaintiffs, Aaron R. Stevens and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rensselaer on the 8th day of August, 1898, upon a remittitur from the Court of Appeals, and also from an order made at the Ulster Special Term, bearing date the 6th day of August, 1898, directing the entry of such judgment, and awarding costs and an extra allowance to the successful defendants.

Appeal by the Waverly and State Line Railway Company and its lessee, the Lehigh Valley Railroad Company, and the Erie Railroad Company, from orders of the Supreme Court, made at the Che-mung Special Term and entered in the office of the clerk of the county of Tioga on the 25th day of March, 1898, granting the applicant’s motion for a peremptory writ of mandamus compelling the said railroad companies to lay out a street across the tracks of said companies in the village of…

Appeal by the defendants, George Campbell and John Clute, constituting and comprising the firm of Campbell & Clute, from orders of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Saratoga on the 28th day of September, 1897, confirming the reports of a referee appointed in surplus money proceedings, had in each of the above-entitled actions, overruling their exceptions to said reports and directing the payment of such…

Appeal by the plaintiff, The Oity of Johnstown, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of “Fulton on the 8th day of June, 1898, denying the plaintiff’s motion for a retaxation of costs.

<p>Appeal by the defendant, The Albany Railway, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 23d day of April, 1898, upon the verdict of a jury for $10,000; also from an order entered in said clerk’s office on the 26th day of April, 1898, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 23d day of April, 1898, granting the plaintiff an extra allowance of $200.</p>

<p>Appeal by the defendants, Reuben L. Empie and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schoharie on the 22d day of April, 1898, upon the report of a referee.</p> <p>On the 20th day of February, 1882, the plaintiff and his wife Mary conveyed to the defendant George H. Empie his farm in the county of Schoharie, N. Y., worth $6,000, and the personal property thereon. Such conveyance was made subject to a certain bond on the same day executed by the grantee to the grantors for the sum of $2,000, which was the only consideration of said deed, and which, among other things, provided that said George H. Empie should support and maintain said Benjamin and Mary Empie, and furnish them medical attendance during their respective lives; on their decease, pay all funeral expenses, and erect suitable monuments over their graves. Said obligation was made a lien upon the premises so conveyed by said Benjamin and Mary Empie to said George H. Empie; and, in case of the failure of the latter to comply with its terms and conditions, the former were authorized to sell the said premises, or any part thereof, and out of the proceeds to pay all costs and expenses of such sale, and the amount that should be due for such support and maintenance, and dispose of the surplus according to the usual practice in such cases.</p> <p>Mary Empie died on the 5th day of March, 1889. Benjamin Empie lived with his son George until April 20, 1897. During this fifteen years the latter complied with the conditions of the covenants contained in said bond. At that time he had become insolvent, had executed a mortgage on said farm to the defendant Alfred J. Overpaugh for $4,000, and one to the defendant Reuben L. Empie for $1,485, and on the 30th day of March, 1897, had conveyed to the latter said premises by warranty deed, subject to the said two mortgages, the payment of which the grantee assumed. Said deed was not made subject to the lien of the plaintiff under said bond, and the covenants contained therein were not assumed by the defendant Reuben. At the time mentioned, the 20th day of April, 1897, George H. Empie informed the plaintiff that he could not carry out the obligations of said bond any longer. He testified on the trial as follows: “ I can’t tell the day when I told him, my father, I could not perform the obligations of the bond any longer. I said I would not support my father or carry out the obligations of the bond; I said it in 1897; I said it about the first of April, 1897; it was after I had given the deed of the farm to Eeuben ; I said it in our kitchen; it was true when I said I would not support my father any longer; I did not do anything for him.”</p> <p>In consequence of the refusal of his son George to further perform the contract, the plaintiff left the premises about April 30, 1897, and commenced living with one Edmund De Wire.</p> <p>The action was commenced by the service of a summons on Eeuben L. Empie on May third; on George H. Empie on May fourth, after he had left the premises in question, and on the defendant Overpaugh' on May 5, 1897, to foreclose plaintiff’s lien on said premises under said deed and bond, the plaintiff claiming that on account of the breach of the covenants contained in the bond by the defendant George, the sum of $2,000 was due to him.</p> <p>The referee before whom the action was tried directed judgment in favor of the plaintiff, determining his damages at the sum of $849.80, made up of the following items:</p> <p>“ For board, care, washing and mending, and use of</p> <p>horse......................................... $540 80</p> <p>Medical attendance, prospective..................... 30 00</p> <p>Monument for Benjamin and Mary Empie............ 100 00</p> <p>Clothing from the commencement of this action, and</p> <p>prospective.................................... 104 00</p> <p>Funeral expenses of Benjamin Empie............... 75 00</p> <p>Total....................................... $849 80”</p> <p>The referee directed a sale of said premises, and that the plaintiff be paid out of the proceeds said sum of $849.80 and the costs of the sale.</p> <p>From the judgment entered on the referee’s report the defendants Eeuben L. Empie and Alfred J. Overpaugh appeal.</p>

Appeal by the defendant, The Tioga County Patrons Fire Relief Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tioga on the 31st day of March, 1898, upon the decision of the court rendered after a trial at the Tioga Trial Term before the court without a jm7-

<p>Appeal by the defendant, Harry C. Stone, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 18th day of April, 1898, upon the decision of the court rendered after a trial at the Madison Trial Term before the court without a jury.</p> <p>The Electrical Supply and Construction Company, of Pittsburg, Penn., in September, 1895, desiring to obtain goods from plaintiff on credit, it was mutually agreed that the former should furnish to the latter a bond to secure it for goods thereafter sold and delivered, with W. H. Stone, its treasurer, H. W. Doubleday, its president, and the appellant, Harry C. Stone, as sureties. The bond was accordingly drawn and executed by-the appellant, and sent by him to W. H. Stone, who executed it for the Electrical Supply and Construction Company as its treasurer and individually, and delivered it to Mr. Doubleday. The latter signed his name to the instrument under the names of the obligors, and delivered it to the plaintiff. It is claimed by the appellant that the addition of the signature of Mr. Doubleday to the paper after the defendant executed it, without his knowledge or consent, was a material alteration of the instrument, and rendered it inoperative as against him.</p> <p>The bond named as obligors the Electrical Supply and Construction Company of Pittsburg, Penn., principal, and W. H. Stone, of Pittsburg, Penn., and H. C. Stone, of Oneida, N. Y., as sureties. It is not claimed that any alteration has been made in the body of the instrument. The signatures to the bond, as introduced in evidence, are as follows:</p> <p>“ ELECTRICAL SUPPLY AND CONSTRUCTION “ COMPANY,</p> <p>By W. H. Stone, Treasurer.</p> <p> Principals. </p> <p> </p> <p>“H. M. DOUBLEDAY.”</p> <p>The only alteration made was the signing of the paper by Mr. • Doubleday after it had been executed by the obligors named in the instrument, under their signatures.</p>

<p>Appeal by the plaintiff, Archanna Ritchie, from a judgment of the Supreme Oourt in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 7th day of June, 1898, upon the dismissal of the complaint by direction of the court after a trial at the Rensselaer Trial Term.</p> <p>The plaintiff, ip the month of March, 1895, made a verbal contract with Charles H. Cleveland, deceased, by which the former agreed to receive the latter in her- house at Lansingburgh, N. Y., and furnish him board during the balance of his life, the deceased agreeing to pay therefor by a conveyance of his house and lot in Bath, N. Y., valued at about the sum of $1,800. He agreed to' make such conveyance after he moved to plaintiff’s house. In pursuance of the contract the deceased commenced living with the plaintiff on the 10th day of April, 1895, remaining there until his death on February 6,1897, the value of his board during that period being $428.15. After Hr. Cleveland came to reside with the plaintiff several requests were made to him by her and her husband to execute the deed of his said house in Bath pursuant to the contract. While not refusing to make the conveyance at the time of such requests, and professing a willingness to comply therewith, he failed to do so, and died intestate without fulfilling the contract in that regard.</p> <p>This action was brought against the defendant, his administratrix, to recover the value of the board of deceased for ninety-five weeks, during which he lived with the plaintiff under such verbal contract.</p> <p>The learned trial court granted the defendant’s motion for a non-suit, on the ground that no refusal on the part of the deceased to convey the house and lot in Bath wag shown, and that no demand had been made upon his heirs, or refusal upon their part shown, to make such conveyance.</p>

<p>Town assessoi's—employment of an attorney to defend an assessment—audit of their claim for an amount paid to him — the allegations in the return to a writ of certiorari assumed to be true.</p> <p>Town assessors have no authority to employ an attorney at the expense of the town to defend a proceeding instituted to review an assessment made by them, where they are not required by law to defend the town in such proceedings, and where they are not instructed to do so by the town board.</p> <p>Where, on the presentation to the town board of a claim for §766.65, money paid by the assessors to an attorney for legal services rendered in such a proceeding, no evidence is offered by the claimants to show the justice or validity of the claim, the audit thereof at the sum of §200 by the town board, the members of which were acquainted with the general facts and circumstances under which the bill was contracted, will not be disturbed upon certiorari.</p> <p>In such a case the town board is not required to call witnesses to determine the value of the services rendered by the attorney, but may acquire the knowledge necessary to audit the bill by consultation with other attorneys familiar with the value of such services, or act upon the knowledge of such value possessed by the members of the board.</p> <p>The town board is not compelled to pass on each item contained in the attorney’s bill, especially where the claim presented by the assessors consisted of one item representing the aggregate amount paid to the attorney.</p> <p>Semble, that the attorney’s bill, which, although made out in items, consisted of services in one suit and under one retainer, -was in fact a single claim.</p> <p>Where allegations in the petition upon which a writ of certiorari is issued are controverted in the return, the statements in the return must be taken as true.</p>

Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.

Appeal by the defendant, John C. Shulenberg, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Fulton on the 28th day of February, 1898, upon the verdict of a jury.

Appeal by the plaintiff, Alden 8. Swan, from a judgment of the County Court of Sullivan county in f'avor of the defendant, entered in the office of the clerk of the county of Sullivan on the 8th day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of January, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Metropolitan Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 25tli day of May, 1898, upon the verdict of a jury, and also from an order made at the Rensselaer Trial Term on the 20th day of May, 1898, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, William Jones, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 20tli day of September, 1898, upon the verdict of-a jury rendered by direction of the court.</p> <p>This action was brought by the plaintiff, as administratrix of her deceased husband, to recover for milk sold by him to the defendant and delivered at his creamery in 1895.</p>

<p>Appeal by the defendant, Luzerne Westcott, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 20th day of May, 1898, upon the report of the referee.</p>

Appeal by the plaintiff, Matilda McOrea, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Clinton on the 14th day of April,-1898, upon the decision of the court rendered after a trial at the Clinton Special Term dismissing the plaintiff’s complaint.

Appeal by the defendant, Mary S. Eveline, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 5th day of February, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of February, 1897, denying the defendant’s motion for a new trial made upon the minutes.

<p>Negligence —pedestrian struck by a wagon lohile crossing a street— what evidence is insufficient to show the absence of contributory negligence.</p> <p>In an action to recover damages for injuries occasioned to the plaintiff, who, while crossing a street, was struck by the forward wheel of the defendant’s wagon and injured, the testimony of the plaintiff that, before attempting to cross, she looked both ways, seeing nothing in the street but an electric car over two blocks away, and, after crossing one of the tracks of the railroad, again looked both ways and saw nothing, and then, looking straight across in the direction in which she was going, proceeded to cross the second track, when a wagon struck her in the hip and knocked her down, is not sufficient to show the absence of contributory negligence on her part, where it appears that there was nothing to obstruct her view, and there is other evidence tending to show that she ran blindly into the side of the carriage and that the horse, which the plaintiff’s witnesses testified was going at the rate of a mile in three minutes, was said by the occupants of the carriage to have been going at a slow rate, which latter testimony was corroborated by the fact that the horse was stopped almost immediately after the accident by a man stepping from the sidewalk and catching hold of its head.</p>

Appeal by the defendants, John Mack and others, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Fulton on the 4th day of September, 1898, denying the defendants’ motion to change the venue of the action from the county of Fulton to the county of Albany.

<p>Appeal by the defendants, Edgar 0. McKallor and another, as executors, etc., of Caroline S. Knickerbocker, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 12th day of May, 1898, upon the decision of the court rendered after a trial at the Saratoga Special Term.</p> <p>, On or about the 27th day of September, 1895, Caroline S. Knickerbocker, an inhabitant of Waterford, in the county of Saratoga, died leaving a last will and testament which was afterwards duly proved and letters testamentary issued to the defendants. The 9th and 10th clauses of said will, the construction of which is involved in this action, are as follows:</p> <p>“Ninth. I give and bequeath to the trustees of the First Presbyterian Church of Waterford, N. Y., the sum of $2,000 in trust, to invest the same, and out of the income therefrom to pay annually toward the repairs and improvements of the parsonage property of said church the sum of $50, the balance of said income to be for the uses and purposes of said church. It is my wish that in the disposal thereof the said trustees will apply $20 toward defraying the expenses of one church sociable annually in memory of my deceased mother, Mary L. Scott, and to divide the remainder thereof between the Ladies’ Foreign and Home Missionary Societies connected with said church.</p> <p>“Tenth. All the rest, residue and remainder of my property and estate of every name and kind, real and personal, I give, devise and. bequeath unto the aforesaid trustees of the First Presbyterian Church of Waterford, N. Y., in trust, to receive, take charge of and invest the same, and from the income arising therefrom to expend annually so much thereof as shall be necessary to keep in good order and repair the cemetery lot of my deceased grandfather, Thomas Scott,, as now inclosed and situate in the Waterford Rural Cemetery, and. the remainder of such annual income to be applied and expended for the uses and purposes of such church, which my deceased mother cherished and loved so well many, many years. It being my wish that said trustees will be guided, in the distribution of such income,, by the officers of the Ladies’ Sewing Society connected' with said church, preferring benevolent to ordinary church expenses, hoping such use will compensate for the burden of this trust.”</p> <p>The plaintiff claimed that these clauses were valid and effectual to devise and bequeath to it the money and property therein mentioned, and asked for an accounting an(l payment.</p> <p>The defendants claimed that the plaintiff had no power to take the property in trust, and that the bequests were in violation of the. statute against perpetuities.</p>

Writs of certiorari issued out of the Supreme Court and attested respectively on the 21st and 29th days of April, 1892, directed to Frank Campbell, as Comptroller of the State of New York, commanding him to certify and return to the office- of the clerk of the county of Albany all and singular his proceedings in relation to the cancellation of a tax sale of the southeast quarter of township 24, great tract 1, Macomb’s purchase.

<p>Nonsuit—an exception thereto implied when leave to go to the Appellate Division in the first instance is given — right of one of two joint lessors to sue for rent.</p> <p>Although no formal exception to the ruling of the court granting a nonsuit is taken by the plaintiS, it is sufficient, for the purposes of its review by the Appellate Division, that the court has granted leave to the plaintiff to go to the appellate court in the first instance, thereby indicating its understanding that the counsel for the plaintiff had excepted to its ruling.</p> <p>Where, after a lease has been executed by two tenants in common of land, an agreement has been entered into between the lessors and the lessee by which the latter is to pay one-half of the rent to each of the lessors, one of the lessors, alleging that one-half the rent has been paid to his co-owner, may maintain an action for the one-half of the rent due and unpaid to himself by the lessee without joining his co-owner as a party to the action.</p>

<p>Pleading—denial that a defendant is a corporation — a defense that an adequate remedy exists at law must he pleaded— proof of extrinsic facts required to remove a cloud on title.</p> <p>Where a complaint alleges that the defendant is a foreign corporation, and the answer denies this allegation, but contains no affirmative allegation that the defendant is not a corporation, it is not necessary for the plaintiff to prove on the trial of the action the defendant’s incorporation.</p> <p>The failure of the answer to present an issue as to the defendant’s incorporation cannot be aided by any statements contained in the verification thereof.</p> <p>A defendant in an equity action cannot avail himself of the defense that an adequate remedy at law exists in favor of the plaintiff unless he pleads that defense in his answer; and where the facts alleged in a complaint are sufficient to entitle the plaintiff to relief in some form of action, and no objection has been made by such defendant in his answer or on the trial (although such defense of an adequate remedy at law has been set up by one of the other parties defendant), it is too late to raise the point after judgment or upon appeal.</p> <p>Where extrinsic evidence is necessary in order to establish the right of the plaintiffs in an action to declare a lease, which is an apparent cloud upon the plaintiffs’ title, terminated, and the plaintiffs are in.possession of the premises, they may properly resort to a court, of equity.</p>

<p>• Juror in a criminal action — disqualification of, by relationship to the complainant— not a ground, for an arrest of judgment and a new trial unless objection be made on the trial.</p> <p>'The provisions of the Federal Constitution, by which a trial by an impartial jury is secured, do not prevent a State from regulating the method of procuring and impaneling a jury; and where a person accused of a crime does not take ■advantage of the statutory provisions designed to protect his rights, he is not ■entitled to an order in arrest of judgment and for a new trial on the ground 'that the grandfather of the wife of one of the jurors was a brother of the ■father of the complainant — a fact unknown to the accused or his counsel at tthe time of the trial — where no substantial rights of the accused are shown •to have been prejudiced thereby.</p>

<p>Deed—when executed by a person non compos mentis it is void — action in equity by a judgment creditor of an heir of the deceased grantor to cancel it.</p> <p>A deed executed by a person at the time non compos mentis, is absolutely void at law, and a grantee, claiming equitable rights thereunder, has imposed upon him the burden of proving them.</p> <p>"Where such a deed is a cloud upon the title to real property, although no fraud is shown, a judgment creditor of an heir of the party by whom such deed was signed may maintain an action in equity to cancel it.</p>

<p>Sureties—indemnifying a bank for money paid to a committee of an incompetent —. validity of an agreement by which they are to hold the money until discharged from liability.</p> <p>Where sureties have indemnified a bank in paying over to a committee of an . incompetent a sum of money represented by a negotiable certificate of deposit, issued to the incompetent before she was declared such, but which could not be found, under an agreement by the committee to deliver a portion of such money to" the sureties, who promised in writing to repay it to the committee or his successors in office, with interest, whenever the sureties should be relieved or discharged from the bond, the sureties are entitled to the same protection, in an action brought by the administrator of the incompetent person to recover such money, as the law would have afforded to the bank, and may retain the money until they are indemnified against their liability upon the bond.</p>

<p>Appeal by John R. Honeywell, the county treasurer of the county of Delaware, from an order of the Surrogate’s Court of the. county of Delaware, bearing date the 8th day of November, 1897,, and entered in said Surrogate’s Court, determining the value of the estate of Erastus S. Edgerton subject to taxation under the act in relation to taxable transfers of property, and fixing the amount of the tax.</p>

<p>Appeal by the plaintiff, John C. Willis, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Delaware on the 2d day of November, 1896, upon the decision of the court rendered after a trial before the court without a jury at the Delaware Trial Term, dismissing the complaint upon the merits.</p> <p>The appeal was taken on behalf of the original plaintiff, Warren Gr. Willis, but he having died pending the appeal, John C. Willis,, the present plaintiff, was duly substituted.</p> <p>The action was in ejectment to recover the possession of certain premises in the village of Masonville in the county of Delaware. At the tidal a jury was waived and the case was submitted to the court. The court found that, at the commencement of the action, the plaintiff was the owner of an undivided seven-eighths of the main store and lot, and an undivided three-fourths of the wing part, and that the defendant McKinnon was the owner of the remaining undivided portions ; that the defendants did not actually oust the plaintiff or do-any act amounting to a total denial of his right; that the plaintiff and defendant McKinnon being tenants in common, this action will not lie unless the defendant McKinnon is estopped from asserting his-title and from disputing the title of the plaintiff. The court then in effect decided that such estoppel did not exist, and, therefore, dismissed the complaint.</p>

<p>Appeal by the relator, James Lucey, from an order of the Supreme Court, made at the Greene Special Term and entered in the office of the clerk of the county of Bensselaer on the 16th day of Hay, 1898, denying the relator’s motion for a writ of mandamus directed to the respondents, commanding them to reconvene as the board of estimate and apportionment of the city of Troy, and to make out an estimate and apportionment of the amount of money to be raised by taxes in the city of Troy, and embracing and including therein a certain additional assessment of $6,384.02, made upon the property and the owners thereof for the paving of Biver street in said city, and-to cause the same to be transmitted to the common council, to the end that the same might be assessed and charged upon and paid by the city of Troy at large and refunded to the owners of property assessed, including the relator, in order that chapter 324 of the Laws of 1897 might be carried into effect.</p> <p>Such act is as follows:</p> <p>“ Ah Act for the refunding of erroneous assessments in the city of Troy.</p> <p>“ Passed without the acceptance of the city.</p> <p>“Became a law April 23, 1897, with the approval of the Governor. Passed, three-fifths being present.</p> <p>“ The People of the State of New YorJc, represented in Senate and Assembly, do enact as follows :</p> <p>“ Section 1. The additional assessment of six thousand three hundred and eighty-four dollars and two cents, made upon the land and the owners thereof for the paving of Biver street from Hoosick street to the north boundary line of the city of Troy, as ordered by the common council of said city, September nineteenth, eighteen hundred and eighty-nine, shall he assessed and charged upon and paid by the city of Troy at large. And any owner of property so assessed who has paid said assessment, or any part thereof, or his assigns or personal representatives, shall be refunded the amount so paid without interest.</p> <p>“ § 2. This act shall take effect immediately.”</p> <p>In 1889 the common council of the city of Troy caused River street from Hoosick street to the north bounds of the city to be paved. The cost thereof was apportioned between the city at large, the abutting lot owners, and the Troy and Lansingburgh Railroad Company, whose tracks lay upon the street. The amount assessed upon the railroad company was $25,764.73. Upon certiorari to review the latter assessment, it was vacated by the late General Term. (People ex rel. Troy & L. R. R. Co. v. Coffey, 66 Hun, 160.) Before the time to appeal from the judgment of the General Term expired, the city and the railroad company agreed to compromise the matter upon payment by the railroad company of one-half of the assessment against it. This the railroad company paid. The city thereupon assessed about one-half of" the amount left unpaid by the railroad company, namely, $6,896.43, upon the abutting lot owners from Hoosick street to the north bounds of the city. The relator, one of such owners, paid his extra assessment upon his lot.</p> <p>Vanderheyden street intersects River streetnext north of Hoosick street. It so happens that $6,384.02, the amount mentioned in the above act of 1897, is the amount of the extra assessment upon the abutting lot owners between Vanderheyden street and the north bounds of the city, and is, therefore, $512.41 less than enough to pay the entire extra assessment from Hoosick street to the north bounds of the city.</p> <p>After the passage of the act of 1897 the relator applied to the board of apportionment and assessment to include this sum of $6,384.02 in their estimate of money to be raised by the city at large, to the end that it might be levied upon and collected and applied as the act of 1897 provides. The board refused. The charter of the city (Laws of 1892, chap. 670, tit. 2, § 39, as amended by chap. 575, Laws of 1893), prescribes that said board must, on or before the first day - of February in each year, make an estimate of the several sums they deem necessary to be raised by tax for the various purposes contemplated by law, specifying them, and transmit the same to the common council before the first of the following March. This is a requisite step in the procedure prescribed by the charter toward levying the taxes authorized by law.</p>

Appeal by the defendant, The Board of Trustees of the Village of Saratoga Springs, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Saratoga on the 5th day of July, 1898, granting the relator’s motion for an alternative, writ of mandamus directed to the board of trustees of the village of Saratoga Springs and J ames W. Fitzpatrick, requiring the said board of trustees of the village of Saratoga…

<p>Master and servant — the servant continuing to work after the master secretly contracts with a third person — remedy of the servant.</p> <p>In an action brought to recover wages from a railroad company by a party who had been employed in the construction of its railroad as one of its laborers up to June, 1897, it appeared that at that date a contract was made by which a contractor, in consideration of certain amounts of stock and bonds of the railroad company, agreed with it to complete the construction of the railroad, but that the contract was kept secret, and, without notice of this fact to the plaintiff, his employment was continued by a director of the railroad — who had been its agent up to the time of the making of the contract and thereafter continued in like service as agent for the contractor — the construction being continued .ostensibly after the contract in like manner as before it, and from the same office and in great part by the same agents, the railroad company giving its notes for several liabilities incurred in the construction of the railroad after June 1, 1897, which the contractor paid. The testimony on the part of the company was to the effect that it had simply loaned its name to the contractor.</p> <p>Held, that the complaint was improperly dismissed;</p> <p>That the jury might have found that the railroad company, by its acts, both of omission and commission, intended to give the plaintiff and other laborers to understand that it was continuing the construction work after June, 1897, in like manner as before that date, and that the plaintiff believed he was employed by the company, which by its action induced that belief and intended to do so;</p> <p>That the jury might have found that the contractor was in fact the mere agent of the defendant in financing, for a consideration of speculative value, the bonds and stock of the company, and that the company was the real employer of the plaintiff.</p>

<p>Negligence — sudden stoppage of a train by a passenger applying the air brake — fall of another passenger from, the platform of a car in consequence thereof.</p> <p>In an action brought by a passenger who, while standing, as there was evidence tending to show, upon the platform of a car, was thrown to the ground as a consequence of the unauthorized application of the air brake by a fellow-passenger, by which act the train, while moving at about twenty miles an hour, was, with the exception of the engine and three forward cars, which were severed from it, suddenly stopped within half a car’s length, a verdict in favor of the railroad company will not be disturbed on appeal where the evidence indicates that the injured passenger had passed from the rear car forward and was returning to the fourth car from the front, although there were unoccupied seats in three forward cars when the accident occurred.</p>

<p>Town of Tonawanda—highway improvements made without the consent required, by chapter 550, Laws of 1893— power of town officers to levy an assessment therefor under chapter 816 of 1895.</p> <p>Section 27 of chapter 816 of the Laws of 1895, conferring power upon the board of town officers of the town of Tonowanda, created by that act, to levy an assessment when a highway has been paved or otherwise permanently improved, “under any law providing for the assessment of the expense of such improvement locally,” when construed, in view of the provisions of section 28 of that act, that no new highway shall be laid out, “except upon the written petition of the owners of real estate fronting or bounding upon either side of the proposed highway,” does not embrace work done under chapter 550 of the Laws of 1893, where the consent of the owners required by the latter act has not been secured.</p> <p>The act of 1893 contemplates that the consent required thereby shall be given after the preliminary order and determination of the board, indicating the extent of the improvement, the manner of its accomplishment and the materials to be used, has been made; and a failure to obtain the consent required by the act of 1893 does not constitute a mere irregularity, but, without it, the board of town officers has no power and jurisdiction to act.</p>

Appeal by the defendants, Donato A. Crage and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 25th day of February, 1898, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 25th day of February, 1898, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, The City of Hornellsville, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 3d day of November, 1897, upon the report of a referee.

Appeal by the plaintiff, Orville M. Barkley, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 27th day of July, 1898, denying the plaintiff’s motion for an order substituting Frank C. Sargent as his attorney in this action in the place of S. K. & B. C. Williams. Plaintiff, then an infant, was injured September 18, 1882, while in the employ of the defendant, near Fairport.

<p>Action by a mortgagee upon an insurance policy — interpleader of the owner and mortgagee where the defense of usury has been interposed in an action to foreclose the mortgage.</p> <p>In an action by a mortgagee of premises covered by a policy of fire insurance payable to the owner of the premises, or to the mortgagee, “as their interest may appear,” to recover upon the policy, the insurance company should, on payment of the costs and disbursements of the action, be permitted to deposit the amount of the loss in court and to interplead the owner and mortgagee, where it appears that, the owner claims an interest in the amount due from the insurance company, and that in an action brought to foreclose the mortgage the defense of usury was interposed and that an appeal has been taken, in good faith, from the judgment' of foreclosure.</p>

<p>Appeal by the plaintiff, Catherine M. Tucker, from that part of a judgment of the Supreme Court, entered in the office of the clerk of the county of Oneida on the 6th day of August, 1898, upon the decision of the court rendered after a trial at the Oneida Special Term, which provides as follows:</p> <p>“ How, on motion of Thomas D. Watkins, of counsel for the said defendant, it is adjudged that the assessment of $99.31, made in July, 1895, by the defendant, for the construction of a pavement on Howard avenue, in front of plaintiff’s premises, is legal and valid, and defendant is entitled to enforce and collect the same.”</p> <p>And also from that part of said judgment which reads as follows, to wit: “And it is hereby further adjudged that neither party recover costs as against the other.”</p> <p>Also, an appeal by the defendant, The City of Utica, from that portion of said judgment which provides as follows:</p> <p>“ How, on motion of Geo. C. Carter, counsel for said plaintiff, it is adjudged that the tax of ten dollars and forty-one cents, made by the defendant or its officers in 1894, and levied upon plaintiff’s premises, is illegal and invalid, and the defendant is not entitled to collect the same.”</p> <p>And also from that part of said judgment which reads as follows: “ And it is hereby further adjudged that neither party shall recover costs as against the other.”</p> <p>The action was tried at the Oneida Special Term. Findings of fact and conclusions of law were made and filed, and a judgment entered thereon dismissing the plaintiff’s complaint as to the first cause of action, and awarding relief as to the second cause of action, to wit, declaring that an assessment for ten dollars and forty-one cents is illegal and void.</p>

<p>Village — condemnation proceedings instituted under chapter 680, Laws of 1894— they must he continued under that act, although not finished until after its repeal— costs.</p> <p>Proceeding's instituted under chapter 680 of the Laws of 1894, by a village, to condemn the property of a gas light company, should be continued and completed in accordance with the provisions of that, act by virtue of the authority conferred by section 31 of chapter 677 of the Laws of 1892, although the proceedings are not finished until after July 1, 1897, when chapter 414 of the Laws of 1897, repealing the act of 1894, took effect.</p> <p>The costs on an application for “an abandonment and discontinuance of the proceedings” are regulated by section 3874 of the Code of Civil Procedure.</p>

Appeal by the defendants, Mayer Eisemann and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 1st day of April, 1898, upon the decision of the court rendered after a trial at the Erie Special Term. The plaintiff’s complaint asks to have an assignment made to it of a mortgage and the judgment of foreclosure entered thereon.

Appeal by the defendants, Frank M. Clement and others, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 7th day of March, 1898, denying the defendants’ motion to change the place of trial of the action from Erie county to Niagara county, on the ground of convenience of witnesses.

<p>Action upon a note by the administratrix of the payee — a surety thereon is incompetent to testify to a conversation between him and the payee.</p> <p>A surety upon a note, the payee of which has died since its execution, is incompetent, under section 839 of the Code of Civil Procedure, to testify as a witness on the trial of an action brought by the administratrix of the payee named in the note against such maker to enforce payment thereof, to a conversation between such surety and the payee at the time that the note was executed, tending to strengthen the position taken by the maker on the trial, that the note was paid under an agreement made between such payee and the maker.</p>

Appeal by the defendant, Henry H. Yoght, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 9th day of August, 1897, upon the report of a referee.

<p>Apbeal by the defendant, Daniel Hubbard, from a judgment of the County Court of Cayuga county in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga on the 17th day of December, 1897, upon the decision of the court reversing a judgment of a justice of the peace, which dismissed the complaint, with six dollars and seventy-five cents costs.</p> <p>The complaint in this action alleges that on the 25th day of March, 1896, the plaintiff was the owner of and in possession of two horses worth the sum of $190, and that the defendant wrongfully took from the possession of the plaintiff the said horses and converted the same to his own use, to the plaintiff’s damage of $190.</p> <p>The .answer denies each and every allegation of the complaint, and further alleges that at the times mentioned in the complaint the defendant was the collector of taxes of the town of Ira, Cayuga county, and that on the 25th day .of March, 1896, by virtue of a warrant duly issued to him as such collector for the collection of a tax regularly assessed against Eugene Van Nostrand (the husband of the plaintiff) by the assessors of said town, he duly levied uj)on the property described in the complaint (which was then in the possession of the said Eugene Van Nostrand), and that lie thereafter sold the same, in the manner prescribed by law, to one Elias Van Nostrand, the father of the said Eugene Van Nostrand, for the sum of $49; that, after deducting from the proceeds of such sale the amount of said tax and the fees and expenses of collecting the same, he paid over the balance of such proceeds to the said Eugene Van Nostrand, who duly received and receipted for the same.</p>

<p> j?ailroad—action by a passenger ejected from, a car upon the ground that his transfer ticket was no longer good—evidence that a third person told the conductor that the plaintiff had taken the first passing car—what is not a waiver of the objection, thereto. </p> <p>In an action by a person who had been ejected from one of the defendant’s cars, upon the ground that the time within which the transfer ticket, which he tendered for passage, was good as indicated on its face, had expired, to recover damages for the alleged illegal ejection, it is improper to permit the plaintiff to testify that a man sitting in the car told the conductor and motorman that, they had no right to eject the plaintiff from the car; that the man said that he saw the plaintiff get off another street car and take the first passing car, which was the car in question ; the statement thus testified to having been made previous to the affray, which resulted in the plaintiff being ejected from the car.</p> <p>The defendant did not waive its objection to the admission of such evidence by showing that no such statement was made by a man sitting or standing near th&. plaintiff.</p>

Appeal by the plaintiff, Mary A. Worden, from a judgment of the Supreme Qourt in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 25th day of January, 1898, upon the decision of the court rendered after a trial at the Oneida Special Term dismissing her complaint on the merits, without costs.

<p>Will — trust during two designated lives — death of a beneficiary during the continuance of the trust—subsequent disposition of the income theretofore payable to such beneficiary.</p> <p>Under the provisions of a will, by which the executors thereof are directed to hold certain real and personal estate in trust during two designated lives, and to divide the net income “among the following-named persons, share and share alike: My wife, Mary E. Philon, my niece, Emma Snap, my niece, Jerusha' Naylor, my grand-nephew, John Naylor, son of my niece, Jerusha Naylor,” and by the 31st clause of the will, after the termination of the two designated lives, “ to convert all my property, both real and personal, into money and the proceeds to be distributed among my next of kin then living, according to the Statute of Distributions of the State of New York,” the income payable during her life to Mary E. Philon, is, after her death, during the further continuance of the trust, payable, not to the other beneficiaries of the trust, but to the parties presumptively entitled, under the 21st clause of the will, to the next eventual estate.</p>

<p>Appeal by the defendant, Luther C. Benedict, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 21st day of October, 1897, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 21st day of October, 1897, denying said defendant’s motion for a new trial made upon the minutes.</p>

<p>Bond executed by a, bank under Us corporate seal—presumption of consideration and of authority in the president to execute it — when not ultra vires.</p> <p>A bond, conditioned for the payment of two mortgages on real property, executed on behalf of a bank under its corporate seal by its president, who makes an affidavit stating “that he is the president of the Yates County National Bank of Penn Yan; that the seal affixed to the foregoing instrument is the corporate seal of said bank; that the same was affixed thereto by virtue of an order of the hoard of directors of said bank, and that he subscribed the same by virtue of a like order of said board,” is by virtue of the seal attached thereto presumed to have been given upon a sufficient consideration, which presumption is not rebutted by the testimony of one of the directors that the property was not conveyed to the bank in payment of a debt which then existed in its favor; nor is the presumption of the authority of the president to execute the bond afforded by the instrument itself overcome by proof that no resolution authorizing its execution is found in the minutes of the board of directors of the bank which were kept and produced by the above-mentioned director, nor by his further testimony that he did not know that it was executed at the time it was executed; and where the hank has acquired the title to the property, which, with other parcels, is incumbered by the mortgages, to secure the payment of which the bond is given, the bond is not ultra vires.</p>

Appeal by Albert M. Mills, as receiver of the property and assets of Alfred Dolge & Son, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 12th day of July, 1898, granting leave to the petitioner, the Commercial Bank, to sue him as such receiver.

Appeal by the defendant, Frank Matty, from an order of the Supreme Court, made at the Oswego Special Term and entered in the office of the clerk of the county of Oswego on the 10th day of January, 1898, denying his motion to change the place of trial of the action from Oswego county to Onondaga county.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from an order of the Supreme Court, made at the Monroe Circuit and entered in the office of the clerk of the county of Monroe on the 10th day of August, 1892, denying its motion for a new trial made upon the minutes, after a trial at the Monroe Circuit, which resulted in the verdict of a jury in favor of the plaintiff.

Appeal by the defendants, Moses Foltz and another, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 12th day of September, 1898, determining that an undertaking, executed on behalf of Beaman Catto, on his appeal to the Court of Appeals, was insufficient to stay the execution of the judgment, and requiring a new undertaking.

<p>Mxpert employed by a district attorney under chapter 686 of 1892—audit of his claim.</p> <p>Although the employment by the district attorney of a county of an expert to make tests and give evidence upon the trial of an indictment for murder is authorized by section 230 of chapter 686 of the Laws of 1892, without the consent of the board of supervisors first obtained, a claim for services so rendered is subject to the adjudication of such board, and that body is not concluded by a contract entered into between the district attorney and the expert, by which the compensation of the latter is fixed.</p>

<p>Appeal by the claimant, Frederic Ullinan, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 17th day of August, 1898, denying the claimant’s motion to compel Herbert Y. McMullen, as receiver of the Luxton & Black Company, to pay the claim presented by the claimant as a preferred claim.</p> <p>From January 11, 1896, to January 26, 1897, one T. A. Glaser was in the employ of the Luxton & Black Company, a corporation engaged in the business of selling pianos at the city of Buffalo.</p> <p>Glaser’s position was that of salesman. He was a man of considerable experience in the business, and by the terms of his employment he was to receive for his services the sum of fifteen dollars, per week and five per cent upon all sales made by him. It was estimated that under this arrangement he would earn from twenty-five dollars to thirty dollars per week, which would be the amount of compensation ordinarily paid to a salesman of his years and experience ; and it is conceded that his services were easily worth that sum to his employers.</p> <p>In 1897 the Luxton & Black Company instituted proceedings for its dissolution, and on the twenty-sixth day of January in that year the corporation passed into the hands of temporary receivers. At this time Glaser had been paid his weekly salary in full, but there was due him from the company the sum of $174.95 for commissions earned by him under the terms of his contract. Subsequently he assigned his claim for these commissions to one Frederic Tillman, who brought this proceeding to compel the receiver to pay the same as a preferred claim. A motion to that effect was made at Special Term, which was denied, and from the order denying the same this appeal is brought.</p>

<p>Appeal by the plaintiff, William H. Shaffer, as administrator de bonis non of George A. Bartholick, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 26th day of February, 1898, upon the decision of the court rendered after a trial before the court without a jury at the Monroe Trial Term.</p>

Appeal by the defendants, Frank H. Brown and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 31st day of January, 1898, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 31st day of January, 1898, confirming said report.

Appeal by the plaintiff, Margaret Eddy, as administratrix, etc., of William 0. Eddy, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Cattaraugus on the 1st day of June, 1898, upon the dismissal of the complaint by direction of the court upon the opening of the case to the jury by the plaintiffs counsel.

Appeal by the defendant, Lenox Corporation, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the cleric of the county of Erie on the 8th day of September, 1898, denying the defendant’s motion for an order of reference.

Appeal by the relator, Joseph F. Cochrane, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on tile 25th day of August, 1898, denying the relator’s application for a writ of mandamus commanding the defendants to recognize the relator as the assistant overseer of the poor of the city of Rochester, and to reinstate him in said position and to rescind its action in attempting to remove him from…

• Appeal by the defendants, Henry P. Sampers and'another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of June, 1898, upon the verdict of a jury for $600, and also from an order entered in said clerk’s office on the 23d day of June, 1898, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Sarah Curran Kelly, from so much of a .'judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 16th day of Hay, 1898, upon the decision of the court, rendered after a trial at the Kings County Special Term, as adjudges that the direction to the trustees named in the will of John McGrath, deceased, to divide the residue and remainder of the estate, after payment of certain legacies,…

<p>Bivrrogate’s Oourt — it has power to construe a will containing dispositions of real and personal property inseparably connected—the practice of appealing from a decree admitting a will to probate discouraged.</p> <p>Where a will relates to hoth real and personal property, and the dispositions of both are inseparably connected, a surrogate has jurisdiction, under section2624 of the Code of Civil Procedure, to give a construction to the will or pass upon the validity of any of its parts.</p> <p>Matter of Shrader (63 Hun, 36), overruled.</p> <p>The uselessness, in view of the provisions of section 2653a of the Code of Civil Procedure, of appealing from the decree of a surrogate, admitting a will to probate, pointed out by the court, and the practice of taking such appeals discouraged.</p>

Appeal by the plaintiffs, William S. Felter and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rockland on the lltli day of July, 1898, upon the decision of the court rendered after a trial at the Orange Special Term.

<p>Application for an order disbarring Anthony Darmstadt, an attorney and counselor at law of the Supreme Court, who had, in 1887, been convicted of crime.</p>

Appeal by the plaintiff, Mary Jennings Gray, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of May, 1898, upon the verdict of a jury for six cents, and also from an order entered in said clerk’s office on the 23d day of May, 1898, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Anna M. Beecher, as sole executrix, etc., of Charles L. C. Beecher, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 2oth day of October, 1897, upon the dismissal of her complaint by direction of the court after a trial at the Queens County Trial Term.

<p>City of New York —police captain of the town of New Utrecht continued as such in Greater Neio York — chapter 898, Laws of 1898, is unconstitutional.</p> <p>Chapter 398 of the Laws of 1898, providing as follows : “ The members of the police force of the city of New York, who were officers of the New Utrecht police force before New Utrecht was annexed to the city of Brooklyn, are hereby graded in the same rank as they held on the New Utrecht force, and their pay shall be the same as paid to officers of corresponding rank on the said police force of the said city of New York,” cannot he invoked to compel the police board of the city of Greater New York to give the rights of a police captain to a patrolman who, in 1894, when the town of New Utrecht was made a part of the city of Brooklyn, was a captain of police in that town, and under section 14 of chapter 451 of the Laws of 1894 afterwards entered the police force, of the city of Brooklyn as a patrolman and acted as such until the consolidation of that city in Greater New York when he became a patrolman on the New York police force.</p> <p>Such act, as applied to such patrolman, is in violation of section 10 of article 2 of the Constitution of the State of New York, relating to the appointment of city officers, as its evident effect is to create an office not existing at the time of its. passage and to prescribe who shall occupy it.</p>

Appeal by the defendant, the Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of May, 1898, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 23d day of May, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Anna E. Tucker and another, from a judgment of the Supreme Court in favor of the plaintiff, entered' in the office of the clerk of the county of Kings on the 10th day of May, 1898, upon the report of a referee. The action was brought to recover damages for a breach by the defendants of an agreement entered into between the plaintiff and the defendants. The nature of the agreement appears from the opinion.

Appeal by the defendant, Jesse Durland, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Orange on the 12th day of January, 1898, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 4th day of April, 1898, upon the verdict of a jury for $3,750, and also from an order entered in said clerk’s office on the 18th day of April, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Donald McNeil and another, composing the firm of McNeil Bros., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of April, 1898, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the 28th day of April, 1898, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, James A. Johnson, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 7th day of April, 1898, upon the dismissal of his complaint by direction of the court after a trial at the Kings Oounty Trial Term.

Appeal by the defendant, George D. Ferguson & Co., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 14tli day of March, 1898, upon the verdict of a jury. The notice of appeal states that an appeal is also taken from an order entered in said clerk’s office on the 15th day of March, 1898, denying the defendant’s motion for a new trial, but no such order appears in the case.

<p>Appeal by Maria H. 1ST. Bartlett, as executrix, etc., of Edward B. Bartlett, deceased, from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 12th day of July, 1898, directing her to pay to Eugene ¡G. Blackford the amount of the judgment recovered by him against Edward B. Bartlett, Albert C. Woodruff and Henry E. Nitchie, composing the firm of E. B. Bartlett & Co.</p>

<p> What stipulation to release one of two joint tort feasors is ineffectual to discharge the other. </p> <p>During, the pendency of an action against a railroad company and an ice company to recover damages sustained hy the plaintiff through their alleged negligence, the attorneys for the plaintiff and the defendant, the ice company, entered into a stipulation providing that, if the plaintiff recovered judgment against both defendants, he would not enforce it against the ice company, but solely against the railroad company, and upon the' collection of the amount of it from the latter company would execute a satisfaction to the ice company, in consideration of which the ice company agreed not to enforce against the plaintiff any judgment for costs which it might obtain upon a dismissal of the complaint as to it or a judgment rendered in its favor.</p> <p>Held, that the plaintiff could not be compelled to satisfy, as to the railroad company, a j udgment subsequently recovered against both defendants, for the reason that a release of one of several joint tort feasors must, in order to be effective to discharge all, be a technical release under seal; and for the further reason that the consideration which the plaintiff received for his agreement, viz., the agreement of the defendant ice company in case of success on its part not to collect costs from the plaintiff, was in no sense a payment in satisfaction of the claim;</p> <p>That the stipulation did not constitute an absolute agreement on the part of the plaintiff to refrain from prosecuting the ice company, and that if the verdict had been in favor of the railroad company and against the ice company the plaintiff would, under the stipulation, have had the right to collect the full amount from the latter company.</p>

Appeal by Mary Ann Weeks, Louisa M. Sutton and Mary B. Sutton, claiming to be creditors of the estate of Hannah B. Merritt, deceased, from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 7th day of ¡November, 1898, denying their application for an order requiring John Merritt, as executor, etc., of Hannah B. Merritt, deceased, to render and settle his account.

Appeal by the plaintiff, Clara E. Nolan, from a judgment of the Supreme Court in favor of the defendants Catharine L. F. Nolan and others, entered in the office of the clerk of the county of Kings on the 26th day of April, 1898, upon the dismissal of the complaint at the close of the evidence for the plaintiff, by direction of the court upon a trial at the Kings County Trial Term.

Appeal by the defendants, Carroll Dunham, Theodore H. Dinkel and Philip Jewell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 5th day of March, 1898, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 5th day of March, 1898, denying the defendants’ motion for a new trial made upon the minutes.

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the defendant, Supreme Lodge, Knights of Honor, front a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 7th day of April, 1898, upon the verdict of a jury, and also from an order bearing date the 6th day of April, 1898, and entered in said cleric’s office denying the defendant’s motion for a new trial made upon the minutes.

<p>Attachment in an action on a contract for the sale of goods —■form of affidavit required, by Code of Civil Procedure, section 636.</p> <p>An affidavit stating that “on or about the 22d day of April, 1898, the plaintiff and the defendants entered into a contract or agreement whereby the defendants agreed to sell and deliver to the plaintiff six carloads of potatoes at an agreed price of seventy cents (§.70) per bushel. That the defendants have failed and refused to ship and deliver to the plaintiff the said six carloads of potatoes as agreed upon, and that because of the failure of the defendants to deliver to the plaintiff the said six carloads of potatoes, as they had agreed to do, this plaintiff has suffered damage by reason of the breach of the contract on the part of the defendants in the sum of twelve hundred and seventy-four and 92/100 dollars,” is insufficient as the basis for an attachment, under section 636 of the Code of Civil Procedure, in that it fails to show that the plaintiff is entitled to recover a sum stated therein, over and above all counterclaims known to him.</p> <p>Semble, that in such a case it is necessary that the'affidavit should show the price of the potatoes, the number of bushels involved, and the market price of such potatoes at the proposed time and place of delivery.</p>

<p> Long Island Gity—assessments for taxation are not governed as to their form by the General Tax Law and need not state the quantity of land assessed. </p> <p>Assessments for taxation on property in Long Island City are governed by special laws and not by the provisions of the General Tax Law (Laws of 1896, chap. 908), and although no original authority is shown for the form of assessments adopted in that city from the date of its organization, yet, in view of the subsequent legislative recognition of the system, particularly of chapter 656 of the Laws of 1886, which is still in force, and by which a presumption of regularity is created in favor of previous assessments made in accordance with that custom, and also of the fact that the charter of Long Island City was, by chapter 548 of the Laws of 1889, modified in its relation to the General Tax Laws of the State, an assessment made in such accustomed form in 1897 is valid, notwithstanding its omission to state the quantity of land assessed as provided in section 21 of article 2 of the General Tax Law.</p>

Appeal by the relator, Patrick McKay, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of September, 1898, denying his motion for a peremptory writ of mandamus directed to the respondents, commanding them forthwith to reinstate the relator in the position of doorman in the police department of the city of New York.

<p>Executory contract for the sale and manufacture of goods — acceptance presumed from the retention of the goods by the vendee— implied warranty that the goods are free from latent defects.</p> <p>In an action brought to recover under an executory contract for the sale of 100 sewing machines to be manufactured in accordance with a certain model, the vendee set up an affirmative defense that the machines would not do the work, and that it became necessary to make repairs upon them to the extent of $175, which he set up as a counterclaim.</p> <p>Upon the trial of the action it appeared that the machines were manufactured and delivered, and that although they were manufactured in accordance with the model, they would not do the work required, and that the vendee, instead of returning the machines or giving notice to the vendor to take them, retained them in his possession.</p> <p>Meld, that, in the absence of evidence of any latent defect, the vendee, having failed to return the machines or to give notice to the vendor to take them, must he assumed to have accepted them, and that a verdict should have been directed in favor of the plaintiff.</p> <p>Semble, that in the case of an executory contract for the manufacture and sale of goods of a particular description, there is an implied warranty that they are free from any latent defect growing out of the process of manufacture, and that this is the sole warranty that attaches to such a contract.</p>

Appeal by the defendants, Robert H. Ingersoll and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of October, 1898, dismissing the defendants’ motion to have the amendments to the proposed case on appeal allowed by the referee before whom the case was tried, disallowed, and to have certain proposed amendments to such case granted upon affidavits presented to the…

Appeal by the plaintiff, Ferdinand Bohmer, Jr., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of New York on the 15th day of March, 1898, upon the decision of the court rendered after a trial at the New York Special Term dismissing his complaint.

Appeal by the plaintiff, Eliza M. 0. A. Lawton, individually and as executrix, etc., of James M. Lawton, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the. office of the clerk of the county of New York on the 9th day of April, 1898, upon the report of a referee, except from so much of said judgment as decides that the payments made by James M. Law-ton, deceased, as executor and trustee, out of the principal for the expenses of the…

Appeal by the plaintiff, Charles B. Throckmorton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of April, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, James 0. Mack and another, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of April, 1898, confirming the report of a referee appointed by the interlocutory judgment entered herein.

Appeal hy the relator, William J. Rodgers, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 5th day of August, 1898, denying the relator’s motion for a peremptory writ of mandamus directing and commanding the respondent James P. Keating, as commissioner of highways of the city of Hew York, to return to the respondent Bird S. Coler, as comptroller of the city of New York, the bid made…

Appeal by the defendant, John C. Yorston, doing business under the name of “ John C. Yorston & Company,” from an order of the-Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of September, 1898, overruling the defendant’s answer as. frivolous.

Appeal by The City of New York, as successor to The Mayor,. Aldermen and Commonalty of the City of New York, from so-much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of July, 1898, as reads as follows; “ It is ordered, adjudged and decreed that the comptroller of the city of New York, in behalf of the city of New York, pay into this court, to be secured, disposed of and…

Appeal by the defendant, John R. Everitt, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 23d day of August, 1898, granting an injunction pendente lite, eñjoining the defendant from engaging in a certain business in violation of an agreement made with the plaintiff Ru Ton, upon the sale to Ru Ton of certain stands in West Washington Market, Rew York city.

Appeal by the defendants, Rachel W. J. Moore and John 0. Shaw, individually, and Archibald T. Moore, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of November, 1898, denying their motion to vacate an attachment.'

Appeal by the defendant, the Walker Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of October, 1898, directing a compulsory reference of the action and all the issues therein.

Certiorari issued out of the Supreme Court and attested on the 1st day of February, 1898, directed to Bernard J. York and others, composing the board of police commissioners of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings in regard to the dismissal of the relator from his position as a member of the police force of the city of New York.

Appeal by Edward C. Underhill and Juliet Underhill, as executors, etc., of Abraham Underhill, deceased, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 29th day of July, 1898, granting the petitioner’s motion to compel the appellants to pay to him the amount of a legacy bequeathed to him by the will of the said Abraham Underhill, deceased.

Appeal by the defendant, The Chinese Charitable and Benevolent Association of the City of New York, from an order of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of October, 1897, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, The United Press, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 18th day of May, 1898, upon the verdict of a jury rendered by direction of the court for the sum of six cents damages.

Appeal by Julius Helburn and Hannah Helburn from an order of the Surrogate’s Court of New York county, entered in said Surrogate’s Court on the 25th day of October, 1898, ordering the appellants to appear at the Chambers of the said Surrogate’s Court and he examined concerning the personal property of Theresa Peyser, deceased, alleged to be in their possession in pursuance of section 2707 of the Code of Civil Procedure.

Appeal by the defendant, Thomas J. Gallon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of June, 1898, .upon the verdict of a jury rendered by direction of the court.

Appeal by the plaintiff, Elizabeth Emmerich, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 24th day of March, 1898, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term, and also from an order entered in said clerk’s office on the 20tb day of April, 1898, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the relator, The Consumers’ Brewing Company of New York, Limited, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of July, 1898, denying the relator’s application for a peremptory writ of mandamus directed to the defendant commanding him, upon tender and payment of his fees and of the tax required by the War Revenue Law •of 1898, for certificates, to accept and…

Appeal by the defendant, William 0. Lesster, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 5th day of July, 1898, denying his motion to compel the receiver of the rents of the mortgaged property to pay him out of the moneys in his hands the sum of $773.98 in satisfaction of the balance due the said defendant for principal and interest on the mortgage held by him upon the premises…

Appeal by the defendant, Margaret K. Douglass, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of June, 1898, appointing a referee to take an account of the rents of certain property collected or received by'the defendant Margaret K. Douglass, through James S. Douglass, her agent and attorney or otherwise, or by the said James S. Douglass during a certain period, and of the…

Appeal by the defendant, the Second Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of March, 1898, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 23d day of March, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, James R. Whyte and another, from a-, judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 10th-day of May, 1898, upon the decision of the court rendered after & trial at the Hew York Special Term.

Appeal by the relator, Danford N. Barney, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 12th day of April, 1898, dismissing a writ of certiorari issued to review the proceedings of the defendants in relation to the relator’s assessment for taxes during the year 1897, with notice of an intention to bring up for review upon such appeal an order made at the New York Special Term and entered…

Appeal by the relator, Alfred Leroy, from an order of the-Supreme Court, made at the New York Special Term and entered m the office of the clerk of the county of New York on the 23d day of May, 1898, denying the relator’s application for a peremptory writ of mandamus directed to the defendants, commanding them to hear and consider upon the merits the application of the said relator for the correction, remission and cancellation of the assessment of the personal property of…

Appeal by the relator, John W. Terry, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 16th day of Rovember, 1898, denying the relator’s motion for a writ of mandamus commanding the respondent to reinstate him in his position of superintendent of the almshouse.

Appeal by the defendant, Francis D. Carley, from a judgment of the Supreme Court in favor of the plaintiff, bearing date the 24th day of June, 1898, and entered in the office of the clerk of the county of Hew York upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 14th day of July, 1898, denying the defendant’s motion to set aside the direction of the court pursuant to which the verdict was rendered.

Appeal by the defendant, Edward Rafter, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew Fork on the 24th day of June, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of June, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Ida M. Haines, as administratrix, etc., of William D. Haines, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 26th day of April, 1898, upon the dismissal of the complaint by direction of the court after a trial .at the New York Trial Term, and also from an. order entered in said clerk’s office on the 10th day of May, 1898, denying the plaintiff’s motion for…

Appeal by the defendants, Samuel Wine and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of April, 1898, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendants, John Munroe and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of July, 1898, upon the decision of the court rendered after a trial at the New York Special Term sustaining the demurrer interposed by the plaintiff to the third defense set up in the defendants’ amended answer, and also (as stated in the notice of appeal) from the…

Appeal by the defendants, Simon Arendt and others, individually and as executors, etc., of Julius Lipman, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of June, 1898, upon the decision of the court rendered after a trial at the New York Special Term overruling the said defendants’ demurrers to the complaint, and also (as stated in the notice of appeal) from…

Appeal by Adolphus Ottenberg, the purchaser at the sale had in the above-entitled action, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30tli day of July, 1898, denying his motion to be relieved from his purchase.

Appeal by the defendants, Sarah A. Stillwell and Charles C. Keeler, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 2d day of January, 1894, upon the decision of the court rendered after a trial at the New York Special Term, a trial of certain issues in the action having previously been had at the New York Circuit and the verdict of a jury taken thereon ; also from an order made at the New…

Appeal by the defendant, Giles M. Stoddard, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of October, 1898, denying the defendant’s motion to. change the venue of the action from the county of New York to. the county of Tompkins.

<p>Surrogate’s Court —proceedings in the Supreme Court upon a reversal of a surrogates decree and the trial of the issues at a Trial Term — they must he rega/rded as taken upon the appeal from the surrogate’s decree—judgment upon issues found by the jury, how entered.</p> <p>Where, upon the reversal, on the facts, of the decree of a surrogate refusing to admit a will to probate, the Appellate Division directs certain issues to be tried before a jury in the Supreme Court, all subsequent proceedings in the Supreme Court must be regarded as taken upon the appeal from the decision of the surrogate; and when the verdict has been rendered and the proceedings by which it has been reached have been finally determined, the papers are to be remitted to the surrogate in pursuance of section 2585 of the Code of Civil Procedure in order that his decree may be entered.</p> <p>The Supreme Court has no power at a Special Term thereof to render a judgment upon the issues found by the jury.</p>

Appeal by the plaintiff, William W. Goodrich, as receiver of the Union Warehouse Company, from a judgment of the Supreme Court in favor of the defendant, Oswald Sanderson, entered in the ■office of the clerk of the county of New York on the 16th day of August, 1898, upon the report of a referee.

Appeal by the plaintiff, Alice Maud Biddiscomb, as administratrix, etc., of William Biddiscomb, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 25th day of January, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, John Shanley, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 17th day of March, 1898, overruling the answer interposed by said defendant as frivolous, and referring the action to a referee to ascertain and compute the amount due upon the mortgage in suit.

<p>Life insurance ■— interpleader of the decedent’s executor with the beneficiary named in the policy—scope of a provision protecting the company in paying to certain persons.</p> <p>In an action brought against a life insurance company to recover upon policies of insurance issued by it, it appeared that in the application for the policies, made by the express terms of the policies a part thereof, the plaintiff was stated to be the beneficiary, and that at the time the insurance was effected the insured informed the agent that she wished to have the amount of the insurance applied to the payment of her funeral expenses and named the plaintiff as the person to whom the insurance should be paid. Upon the death of the insured, her husband, who was appointed executor of her last will and testament, surrendered the policies of insurance to the company and claimed the amount thereof.</p> <p>On a motion by the insurance company to substitute the husband as executor of the insured in its place as a party defendant, it was</p> <p>Held, that the objection that the plaintiff was a trustee in favor of the estate by her own agreements or acts did not deprive her of the right to receive the money, she being the person to execute the trust, if any existed ;</p> <p>That a provision in the policy to the effect that “ The production by the company of this policy and of a receipt for the sum assured, signed by any person furnishing proof satisfactory to the company that he or she is the beneficiary, or an executor, or administrator, husband or wife, or relative by blood, or connection by marriage, of the insured, shall be conclusive evidence that such sum has been paid to and received by the person or persons lawfully entitled to the same, and that all claims and demands upon said company, under this policy, have been fully satisfied,"’ did not establish that the executor, being in possession of the policies and having surrendered them to the company, was the person designated by the policies as beneficiary;</p> <p>That such condition was designed simply to protect the insurance company in the payment of the insurance to any of the persons named in such provision.</p>

Appeal by the plaintiff, William G-. McCrea, from a judgment of the Supreme Court in favor of the defendant, Isaac A. Hopper, as trustee, entered in the office of the clerk of the county of Hew York on the 24th day of December, 1897, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the plaintiff’s complaint and foreclosing the defendant Hoppér’s mortgage, except from so much of said judgment as adjudges the plaintiff’s mortgage…

<p>Appeal by the defendant, The Hastings Pavement Company, from a judgment of the Supreme Court in favor of the plaintiff, and the defendant, The City of New York, entered in the office of the clerk of the county of New York on the 22d day of June, 1898, upon the verdict of a jury, and also from so much of an order, entered in said clerk’s office on the 24th day of June, 1898, as denies said defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover damages resulting from the death of the plaintiff’s intestate, caused by the alleged negligence of the defendants.</p>

Appeal by the plaintiff, Daniel J. Carroll, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 6th day of December, 1898, relieving William J. Browne from his purchase at the sale had under the judgment of foreclosure entered in the action. Upon the 12th of March, 1891, Edward McKaharay conveyed the property in question to Alice, liis wife.

Appeal by the defendant, Harry Lewis, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 2d day of Hovember, 1898, denying his motion to vacate an order appointing a temporary receiver of the rents and profits of the premises in suit.

Appeal by the plaintiff, Clifford L. Milíer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of June, 1898, upon the decision of the court rendered after a tidal at the New York Special Term.

Appeal by the defendant, Marcus Buchner, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 8th day of March, 1898, upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by the defendants, Tobias Lesser and others, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the lltli day of April, 1898, upon the decision of the court rendered after a trial at the New York Special Term, and also an appeal by the plaintiffs, Mantón B. Met-calf and others, from so much of said judgment as adjudges that the instruments, acts and deeds of the defendants Tobias Lesser, Israel Lesser and Simon…

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of April, 1898, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 12th day of April, 1898, denying the defendant’s motion for a new trial made upon the^ minutes.

Appeal by the plaintiff, Moses L. Greenberg, as administrator,, etc., of Julius Greenberg, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of January, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.