Volume 35 — New York Supplement

Petition by Hubert O. Thompson, commissioner of public works in the city of New York, for the appointment of commissioners of appraisers pursuant to Laws 1883, c. 490. From an order directing payment of the award to the landowner, petitioner appeals. Reversed.

Action by Ann Kenney, as executrix of Patrick Kenney, deceased, against the Livery Stable Keepers’ Association of Kings County. From an order denying a motion to dismiss the appeal, and from a judgment rendered by a justice of the peace, plaintiff appeals. Reversed.

Action by John G-ray against the Kaufman Dairy & Ice Cream Company to recover $400 rent alleged to be due to plaintiff from defendant. A verdict was directed by the court in favor of plaintiff for $214.30, and from the judgment entéred thereon, and from an order denying a motion to set aside the verdict and for a new trial, plaintiff appeals. Reversed.

Action by Simeon B. Fanning against International Seed Company. From an interlocutory judgment entered on a decision sustaining a demurrer to plaintiff’s amended complaint, on the ground that it does not state facts sufficient to constitute a cause of action, plaintiff appeals. Affirmed.

<p>Appeal from special term, Orange county.</p> <p>Action by Arthur W. Sweezy against Harry C. McBrair. The complaint was dismissed, and plaintiff appeals. Affirmed.</p>

<p>Appeal from circuit court, Dutchess county.</p> <p>Action by Charles Beardsley against George H. Cook. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendant appeals. Affirmed.</p>

<p>Action by Asa L. Rogers, as assignee for the benefit of creditors of the Rogers Manufacturing Company, against Charles E. Pell and others, to recover damages for the alleged conversion of certain lumber. The court directed a verdict in favor of plaintiff, and subsequently granted defendant’s motion for a new trial, and dismissed the complaint, and plaintiff moves for a new trial on exceptions ordered to be heard at general term in the first instance. Denied.</p>

Action by De Witt 0. Bouker, Jr., against the Long Island Railroad Company. From a judgment dismissing the complaint as to one cause of action, and from an order denying a new trial, plaintiff appeals. Affirmed.

Actions by the trustees of Union College against Dennis Coughlin and others, as school trustees of the First ward of Long Island City. From a judgment for plaintiffs, defendants appeal. Reversed.

Certiorari by Patrick J. Hughes to review the determination of Horatio S. Sanford and others, composing the board of fire commissioners of Long Island City, in adjudging relator guilty of neglect of duty, and dismissing him from the fire department.

Action by De Witt C. Bouker, Jr., against the Long Island Bail-road Company. From a judgment reversing a judgment of a justice of the peace for plaintiff, plaintiff appeals. Affirmed.

Action by Felix O’Hanlon and others, as trustees of school district No. 2 in the towm of Middleton and Southfield, against James Scott and others. Verdict was directed for some of the defendants, and for plaintiff against defendant Michael Cahill. Plaintiffs and defendant Michael Cahill move for a new trial on exceptions ordered to be heard in the first instance at general term.

Judicial settlement of the accounts of Joseph Spears, as executor of the will of William C. Spears, deceased. From a part of the decree of the surrogate (32 N. Y. Supp. 319) the executor appeals. Affirmed.

Action by George H. Passey against Horace Craighead to recover damages for the bite of a dog alleged to have been kept and maintained by defendant on his premises. Judgment was entered on a verdict in favor of plaintiff, and defendant appeals. Affirmed.

Action by Eva Joel against the Woman’s Hospital in the State of New York for personal injuries. The complaint was dismissed on the merits, and plaintiff appeals. Affirmed.

<p>Appeal from circuit court, Kings county.</p> <p>Action by Oscar Lagerquist against the United States Industrial Insurance Company on a policy of life insurance issued on the life of plaintiff’s child. Judgment was entered on a verdict in favor of plaintiff, and defendant appeals. Affirmed.</p>

Four separate actions by Patrick Hart, George Waldie, Mary Ann Wright, and Stephen Ryder, respectively, each against the Brooklyn Elevated Railroad Company and the Union Elevated Railroad Company. From an order denying a motion to send the cases to circuit, or for a stay until the determination of condemnation proceedings, defendants appeal. Affirmed.

<p>Appeal from special term, Kings county.</p> <p>Action by George Waldie against the Brooklyn Elevated Railroad Company and the Union Elevated Railroad Company. From a judgment for plaintiff, defendants appeal. Affirmed.</p>

Action by Patrick Hart against the Brooklyn Elevated Bailroad Company and the Union Elevated Bailroad Company for damages from construction of its railroad. From a judgment for plaintiff, and an order denying a motion to send the case to circuit, or for a stay pending condemnation proceedings, defendants appeal. Affirmed.

<p>Construction of Railroad—Damages—-Evidence.</p> <p>Damage from construction of an elevated railroad is not proved by evidence of depreciation, subsequent to construction, in the value of plaintiff’s property, without evidence that the loss was attributable to such construction.</p>

<p>Eminent Domain—Proof of Injuries.</p> <p>Where the damages to the fee of the property were occasioned in part by defendant’s elevated road, and in part for all other causes for which defendant was not responsible, he cannot recover if it is as probable that they were caused by the latter cause as by the building of the railroad. Brown, P. J., dissenting.</p>

Action by William Spring against Watron H. Bowne, surviving partner, for personal injuries. Judgment was entered on a verdict in favor of plaintiff, and defendant appeals. Affirmed.

Action by the Leibinger & Oehm Brewing Company against Frederick H. Ernst. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Action by Jane Hussey against the New York Recorder Company for libel. A demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action was overruled, and defendant appeals. Affirmed. The complaint, omitting the formal parts, is as follows: First.

Action by William Toumans against George H. Paine and Sherrill E. Smith for libel. From a judgment entered on a verdict in favor of plaintiff for $1,000, and from an order denying a motion for a new trial made on. the case and exceptions, defendants appeal. Affirmed.

Action by Eliza W. Randall against Arington H. Carman, as assignee for the benefit of creditors of Seward S. Smith. Judgment was entered in favor of plaintiff, and defendant appeals. Reversed. This action was brought to foreclose a chattel mortgage bearing date June 20, 1892, given by one Seward S. Smith to the plaintiff’s assignor, one Henry L. Randall, to secure the payment of a part of the purchase price of a stock of goods sold by said Randall to said Smith.

Action by James A. Baker against Albert B. Bvrn and others to set aside a judgment of foreclosure and sale of certain premises. From an interlocutory judgment overruling a demurrer to the complaint, defendants appeal. Affirmed.

Action by Aaron A. Degrauw against Samuel A. Warner for trespass on land. Judgment was entered on a verdict in favor of plaintiff for six cents damages, rendered pursuant to the direction of the court, and defendant appeals. Reversed.

<p>Mandamus—Issuance—Indefinite Affidav ts.</p> <p>Mandamus properly issues where the application and affidavits therefor contain all the allegations necessary for relief, and the counter affidavits, though attempting to controvert petitioner’s allegations, are so general and indefinite as to raise no issue of fact.</p>

Thomas Jones was convicted under the first, third, and fifth counts of the indictment, by which he was charged with selling a lottery policy to one Oram; with being a common gambler, in that he sold a lottery policy to one Oram at a certain place; and with being a common gambler in that he kept a room to be used and occupied generally, and permitted it to be so used, to wit, for selling lottery policies. From the judgment of conviction, he appeals. Reversed.

<p>Appeal from judgment on report of referee.</p> <p>Action by James F. Smith and others, partners under the firm name of Smith & Co., against the Sheltering Arms and others, to foreclose a mechanic’s lien. Judgment was rendered directing a sale of the premises of the Sheltering Arms, and payment, out of the proceeds, of the claims of plaintiffs and of defendant John Ember-son, and from said judgment the Sheltering Arms appeals. Reversed as to defendant Emberson. Modified as to plaintiffs.</p>

Applications by the Kings CountyGas&IlluminatingCompanyfor a writ of mandamus to compel Charles H. Schieren, as mayor of the city of Brooklyn, and others to pay claims for gas supplied by relator to the town of New Utrecht before its consolidation with the city of Brooklyn. The applications were granted, and defendants appeal. Reversed in part.

<p>Lease—Surrender.</p> <p>One in possession under a lease providing for weekly payments of rent made a contract for purchase of the premises, part of the price being paid on execution of the contract, the agreement providing for execution of a deed on payment of the balance. Thereafter, for over 18 months, and until refusal to pay the balance of the purchase price unless the title was perfected, no demand was made for rent, and none was paid. Held, that there was a surrender of the lease, and the relation of landlord and tenant ceased.</p>

Action by Joseph Gottlieb against the Dutchess County Mutual Insurance Company. From a judgment in favor of defendant, and from an order denying a motion for a new trial on the ground of newly-discovered evidence, plaintiff appeals. Affirmed.

Judicial settlement of the accounts of Mary C. Rogers, formerly May R. Goss, as administratrix of Guy C. Goss, deceased. From a decree settling the accounts as filed, Benjamin Tuthill, a judgment creditor of said Guy G. Goss, deceased, appeals. Affirmed.

<p>Certiorari—Assessment for Street Improvement—Acquiescence of Taxpayer—Estoppel.</p> <p>One having notice that a city, in paving a street, would change its grade, who, without objection, allows the work to be completed, cannot, on certiorari, attack the legality of an assessment for the work, on the ground that the common council in a proceeding to pave the street had altered its established grade.</p>

<p>1. Libel—Words Libelous per Se.</p> <p>The words, “It is reported about town that Rev. Mr. Johnson, the M. E. colored minister from this place, was * * * arrested. * * * It is claimed that he was too much of a family man. He is still under cover,”— are libelous per se.</p> <p>2. Same—Proof of Circulation of Newspaper.</p> <p>In an action for libel against a newspaper publisher, evidence that defendant admitted the publication, and offered, if the article was untrue, to publish a retraction, and the introduction of a copy of the paper, are sufficient to warrant submitting to the jury the question of whether the article was circulated. 6</p>

Action by James L. Reynolds against the New York Building Loan Banking Company, a building and loan association, to recover a sum of money alleged to be due to plaintiff on a withdrawal of shares of the stock of defendant. From a judgment entered on a verdict in favor of plaintiff for $1,127.10 damages, and $142.07 costs, and from an order denying a motion to set aside the verdict, and for a new trial, made on the judge’s minutes, defendant appeals. Affirmed.

Action by James H. Ryan and another against Frances Pistone. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, defendant appeals. Reversed. For decision granting reargument, see 32 N. Y. Supp. 1149.

Action by Thomas E. Donlon against Joseph English. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial; defendant appeals. Reversed.

Actions by Louise M.Beekman and by Marion B. McCullom, respectively, against the Brooklyn & Brighton Beach Railroad Company, for an injunction. The complaints were dismissed on the merits, and plaintiff in each case appeals. Affirmed.

Certiorari by Joseph E. Smith against Frederick W. Wurster, commissioner of the fire department of the city of Brooklyn, to review the decision of defendant in discharging relator. Judgment for relator. The following is a copy of the petition for the writ: “The petition of Joseph E. Smith respectfully shows: First.

Certiorari by Daniel Dougherty against Frederick W. Wurster, commissioner of the fire department of the city of Brooklyn, to review the decision of defendant in discharging relator. Quashed.

Certiorari by William Kinsella against Frederick W. Wurster, commissioner of the fire department of the city of Brooklyn, to re- • view the decision of defendant in discharging relator. Quashed.

<p>Certiorari by Frank Bernard to review the decision of Frederick W. Wurster, commissioner of the fire department of the city of Brooklyn, in discharging relator. Quashed.</p>

Certiorari by John J. Donlon against Frederick W. Wurster, commissioner of the fire department of the city of Brooklyn, to review the decision of defendant in discharging relator. Quashed.

Mandamus, on the relation of Michael J. Dady, to the supervisor of the Thirty-First ward of the city of Brooklyn, formerly the town of Gravesend. From an order denying a motion for peremptory mandamus, relator appeals. Affirmed.

<p>1. Municipal Corporations—Salary op Policemen — Liability on Exhaustion op Fund.</p> <p>Where the board of supervisors, on the certificate of the police commissioners of a town, is required to raise by taxation and pay to the commissioners the sum certified to be necessary to pay the town police force, not exceeding a certain amount (Laws 3887, c. 445, as amended by Laws 1892, c. 55), and the sum certified is raised and paid to the commissioners, policemen’s salaries are payable out of such sum, and, if it is exhausted before full payment, they have no claim against the town for the balance.</p> <p>2. Same—Power to Raise Fund by Taxation.</p> <p>Laws 1887, c. 445, provides that the police commissioners of a town shall certify to the board of supervisors the amount necessary to pay its police force, not exceeding a certain sum, and that the supervisors shall cause the amount to be raised, by taxation and paid the commissioners. Laws 1892, c. 55, increases the amount the commissioners may ask for, and provides (section 3) that the commissioners may make the certificate to the town treasurer, and that, if he has funds in his hands not otherwise applicable, he shall pay to the commissioners the amount certified to, and that then no certificate shall be made to the supervisors. Held, that all that could be collected for the expense of the police force was the amount authorized to be raised by taxation, and that, such sum having been paid to the commissioners by the town treasurer, the supervisors had no authority to raise any amount for the police force by taxation.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Leonard Knox against the town of Gravesend. There was a judgment in favor of plaintiff, and defendant appeals. Modified.</p>

Action by John Sahr against Theodore E. Scholle. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

<p>Premature Bringing of Action—Waiver of Objection.</p> <p>Objection cannot be made, on appeal, that an action by an employs to recover a deposit for honest performance of his duties was prematurely brought, even if the agreement between him and his employer was that only GO days should elapse, after termination of -the employment, before the deposit was to be returned, such objection not having been made on the trial, and the attention of the court having been called away from it by a contest between the parties as to whether the agreement provided for the lapse of 60 or 90 days before return of the deposit</p>

<p>Appeal from First district court.</p> <p>Action by John A. Eckert against Percy W. Clark. From a judgment for defendant on a counterclaim, plaintiff appeals. Reversed.</p>

<p>Appeal.from Fourth district court.</p> <p>Action by Gustav Jacobi against Tilly Haynes. From a judgment for defendant, plaintiff appeals. Reversed.</p>

Action by Nathan Fihrer against Frederick J. McKerness and another for balance due on a contract. From a judgment for plaintiff, defendants appeal. Affirmed.

<p>Appeal from First district court.</p> <p>Action by Snow, Church & Co. against Alfred Schlesinger. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

<p>Appeal from First district court.</p> <p>Action by Isaac Spiero against the Metropolitan Street-Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Appeal from Sixth dictrict court.</p> <p>Action by Roman Syuchar against the Workingmen’s Co-operative Association. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Eighth district court.</p> <p>Action by Henry Cunningham against Louis Cohen. From a judgment for plaintiff, defendant appeals. Reversed.</p>

Summary proceeding by John Boyce Smith against Vincenzo Caputo to recover the possession of land. Judgment was rendered for defendant, and plaintiff appeals. Reversed.

Action by Edward McCullough against Harris Shapiro and another for work done and materials furnished. Judgment was rendered for plaintiff, and defendants appeal. Affirmed.

Action by the Progressive Power Company against the Wrought-Iron Bridge Company for work, labor, and services. Judgment was rendered for plaintiff, and defendant appeals. Reversed.

<p>Removal op Action—Refusal op Application—Review.</p> <p>Under Code Civ. Proc. § 3216, providing that under certain circumstances an action may be removed from a district court to the court of common pleas, application being made after issue, error cannot be predicated of a refusal, though the ground assigned for the refusal is untenable, where it does not appear when application was made.</p>

<p>Appeal from First district court.</p> <p>Action by Edwin C. Burhorn and another against Henry O. McDonough and another. From a judgment for defendants, plaintiffs appeal. Affirmed.</p>

<p>Street Cars—Collision with Team—Contributory Negligence.</p> <p>Recovery for collision of a cable car, bound up street, with a team which came suddenly on the track, just ahead* of such car, from behind a downward-bound car, is precluded by contributory negligence, the driver of the team having stated that he waited, before attempting to cross, for the downward-bound car to pass, and explained his failure to see the upward-bound car by saying that it was going so fast that it would be impossible to see it.</p>

<p>1. Removal from District Court to Common Pleas.</p> <p>Where defendant, in a proper case, files a bond in the maximum amount provided by Code Civ. Proc. § 3216, for the removal of certain eases from the district court of the city of New York to the court of common pleas, he is entitled, as of right, to such removal, without the entry of any order by the district court, either to fix the amount of the bond, or otherwise.</p> <p>3. Same—Refusal to Approve Bond—Review.</p> <p>The refusal of the justice, for an insufficient reason, to approve the bond on removal of a case from the district court of the city of New York to the court of common pleas, as provided by Code Civ. Proc. § 3216, is an error reviewable on appeal from the judgment.</p>

<p>Action by Thomas Martin against Harry A. Lynch. Defendant moves to vacate an order for his arrest. Granted.</p>

Action by Benjamin Tuthill, suing on behalf of himself and all others who may desire to come in and contribute towards the expenses in the action, against Mary R Goss and Mary 0. Rogers, individually and as administratrix of Guy 0. Goss, deceased, to set aside, as fraudulent and void as to the creditors of said decedent, the assignment of a life insurance policy to defendant Mary R. Goss, and for other relief. A demurrer to the complaint was overruled, and defendants appeal.

<p>Appeal from special term, Monroe county.</p> <p>Two actions, one by the Commercial Bank of Rochester and Menzo Van Voorhis against Thomas Bolton, Catherine Bolton, Frederick A. Sherwood and Hermann Behn, the other by the Union Bank of Rochester against the same defendants, to set aside a conveyance as fraudulent. From a judgment against defendants Bolton and Sherwood, they appeal. Reversed as to Sherwood and Catherine Bolton.</p> <p>The plaintiffs are judgment creditors of the defendant Thomas Bolton. The Commercial Bank recovered judgments against him September 13, 1893, for $2,115.40; September 20, 1893, for $3,032.30; October 7, 1893, for $4,035.23; and October 30, 1893, for $583.75. The plaintiff Menzo Van Voorhis recovered judgment against him October 21, 1893, for $5,185.74. Those judgments remain unpaid, except the sum of $2,863.66, which was realized by the Commercial Bank October 30, 1893, from collaterals. The Union Bank of Rochester recovered judgments against Thomas Bolton September 21, 1893, for $2,033.61; same day for $3,033.71. Frederick B. Hall recovered judgments against him November 1, 1893, for $1,025.48; same day for $4,048.64. Those judgments were assigned by Hall to the Union Bank. After executions against the property of Thomas Bolton issued upon all of those judgments were returned unsatisfied, these actions were brought to set aside a sale of property made by Thomas Bolton to the defendants Catherine Bolton and Sherwood, on the alleged ground that it was made in fraud of the creditors of the vendor; and Hermann Behn, to whom the defendant Sherwood sold his interest in the same property, was made a defendant in both actions, and in the complaint it was charged that he purchased with notice of the alleged fraud, and that he was not a purchaser in good faith. The complaints were dismissed as to Behn. As against the other defendants it was determined that the transfer of the property by Thomas Bolton to Catherine Bolton and Sherwood was in fraud of the creditors of the vendor, and subject to the right of such creditors to have the property applied to the payment of their debts; that the Commercial Bank was entitled to recover against Catherine Bolton and Sherwood $7,283.45, the amount of its judgments; that the plaintiff Van Voorhis was entitled to recover against them $5,439.55, the amount of his judgments; and that the Union Bank of Rochester was entitled to recover against them $12,765.51, the amount of its judgments. Judgments were perfected accordingly. The property in question consisted of machinery, materials, stock, etc., in an establishment for "the manufacture of shoes in the City of Rochester, in which business the defendant Thomas Bolton had for several years been there engaged.</p>

Sixth district court. Action by Robert Goelet and others against Frederick N. Roe and others, tenants and undertenants, for the possession of premises. From a final order denying them possession, plaintiffs appeal. Reversed.

Action by Augusta G. Genet against the president, managers, and company of the Delaware & Hudson Canal Company to rescind a contract, recover possession of land, and for an accounting and injunction. Judgment for defendants.

<p>Judicial settlement of the accounts of Samuel W. Hoag and Mary L. Hoag, administrators of Candace Mallory, deceased.</p>

<p>1. Civil-Service Laws—Preference of Veterans—Constitutional Law.</p> <p>Const. 1895, art. 5, § 9, declares that appointments and promotions In the civil service of the state shall be made according to merit, to be ascertained, “so far as practicable, by examinations, which so far as practicable shall be competitive”; but provides that “honorably discharged soldiers and sailors from the army and navy of the United States in the late Civil War shall be entitled to preference in appointment and promotion without regard to their standing on any list from which such appointment or promotion may be made.” Held, that the legislature has no power to exempt soldiers and sailors, as a class, from competitive examinations exacted from others, nor to declare that the practicability of an examination is to be determined solely by the amount of the compensation attached to an office, and therefore Laws 1895, c. 344, providing that, when honorably discharged soldiers and sailors are applicants, they shall be preferred for appointment and promotion, and competitive examinations shall not be deemed practicable or necessary in such cases, where the compensation does not exceed four dollars per day, is unconstitutional. 34 N. Y. Supp. 447, reversed.</p> <p>2. Same—Power of Legislature.</p> <p>The power to determine in what cases competitive examinations are practicable does not include the power to exempt or relieve one class of citizens from such examinations, and exact them from others.</p> <p>8. Same—Review of Legislative Discretion.</p> <p>‘ The judgment of the legislature upon the propriety of laws passed in the exercise of discretionary power is not final, but is subject to the review of the courts.</p>

Action by the First National Bank of Amsterdam against Elizabeth. N. Shuler and others. From a judgment for plaintiff, and from an order denying said Shuler’s motion to correct the interlocutory judgment, and to be made a party, as executrix of Isaac C. Shuler, deceased, she appeals, individually and as such executrix. Affirmed.

Four actions by Ursula McKee, as executrix of the will of John B. McKee, deceased, against Frank B. Rapp and others, to enforce material men’s liens.

<p>1. Chattel Mortgage—Consideration—Agreement not to She.</p> <p>An agreement not to sue on an overdue note is a sufficient consideration to constitute the holder a mortgagee for value, as against the vendor in a conditional sale, who failed to file a copy of the contract of sale, though the time for which the mortgagee would forbear to sue was not fixed.</p> <p>2. Same—Good Faith of Mortgagee—Burden of Proof.</p> <p>One who claims chattels under a mortgage, as against a vendor in a conditional sale, who failed to file the contract of sale, has the burden of showing that the mortgagee accepted the mortgage without notice of the vendor’s rights.</p> <p>3. Trial—Concessions of Party—Effect on Appeal.</p> <p>In an action for conversion by a vendor in a conditional sale, against one claiming the goods under a chattel mortgage, where defendant, on the trial, conceded plaintiff’s right to recover unless the mortgage was taken in good faith, he cannot, on appeal, urge that there was no proof that the vendee was in default under the contract of sale.</p>

<p>Action by Annie Hamilton against John J. Gorman. Plaintiff moves to revive the action against defendant’s personal representative.</p>

Separate actions by Thornton N. Motley and others, by the New York Insulating Paint Company, and by Abraham Abraham, respectively, agaist Charles M. Pratt, to enforce the alleged statutory liability of defendant as a director of the United States & Brazil Mail Steamship Company, for the debts of said company. Defendant demurs to the complaint for improper joinder of causes of action. Sustained.

<p>Insane Poor in State Hospitals—Tax fob Maintenance.</p> <p>Laws 1893, c. 565, § 1, imposing a tax “on each dollar of taxable real and personal property of this state” for maintenance, etc., of insane poor in the state hospitals, applies to property in New York county as well as that in other parts of the state, there being no uncertainty in the language used, though it amends Laws 1893, c. 214, entitled “An act to appropriate money for the care ® * * and transportation to state hospitals of the insane poor, under the provisions of Laws 1890, c. 126,” and Laws 1890, c. 126, providing for the sending of insane patients from county to state asylums, and for the payment of the expenses thereof, and of their maintenance, from the state treasury, but making no provisions as to how the state shall raise the money therefor, and declaring that the provisions of the act shall not apply to certain counties, including New York county.</p>

Frederick or Fritz Berthold filed a mechanic’s lien against the property of Moses K. Wallach. The owner moves to compel the claimant to commence action, or, in default thereof, that the lien be vacated and canceled of record. Granted.

Action by John A. Smith against Herbert Williams and Charles F. Gittens, as overseers of the poor of the town of Hempstead, to recover for care and nursing furnished by plaintiff to a pauper. There was a judgment in favor of plaintiff, and defendants appeal. Reversed.

Action by William Drennan against the mayor, etc., of the city of New York and others, impleaded with William J. Martin and Hewitt Boyce, to foreclose a mechanic’s lien.

Action by John C. Dudley against the Flushing Jockey Club to recover the amount of “sweepstakes” alleged to have been won by plaintiff’s horse at a certain race. Defendant demurs to the complaint. Sustained.

Application by Mary N. Jordan for a writ of certiorari and a writ of mandamus to review the decision of the board of education dismissing her from her position as a teacher, and to compel her reinstatement. Denied.

Action by George Maitland and others against Henry P. Drew and others to recover royalties under a patent. Plaintiffs demur to the separate defenses and counterclaims. Sustained.

<p>Action by Jane A. Patton against David H. Patton for a separation. Plaintiff moves for an allowance for alimony and counsel fees. Denied.</p>

<p>Motion for alimony and counsel fees. Denied.</p>

Action by James B. Powell against Harriet G. Jenkins and others to recover possession of land. The land in controversy was owned by Rebecca C, Jenkins, who executed a mortgage thereon to the Mercantile National Bank of Hartford on March 13, 1890. On April 4, 1892, an action to foreclose said mortgage was commenced, and judgment was entered on June 20th following.

Action by Martin B. Campbell against Alice Campbell for divorce. From a judgment in favor of plaintiff, entered on the report of a referee, and confirmed by the court, defendant appeals. Reversed.

<p>Executors and Administrators—Claim against Estate—Evidence.</p> <p>Where a claim against a decedent’s estate is for “investing $19,400, legal services and correspondence connected therewith, and disbursements,” amounting to a certain sum, and the executors do not require a more specific statement of the claim, evidence in relation to the services rendered by claimant will not be stricken out.</p>

Action by Frank C. Vinton, as supervisor, of the town of Persia, against the board of supervisors of the county of Cattaraugus and Henry O. Wait, to recover taxes collected upon the assessment valuation of the Buffalo & Jamestown Railroad after it was known as the Buffalo & Southwestern Railroad, in aid of which the town of Persia, in 1873, issued bonds to the amount of $29,000. There was a judgment in favor of plaintiff, and defendants appeal. Modified.

Action by the Milwaukee Harvester Company against John C. Culver and Clara D. Culver to procure an adjudication that a conveyance to defendant Clara D. Culver was made with intent to binder, delay, and defraud the creditors of her husband, John C. Culver. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.

Action by Lyman M. Otis against George M. Crouch and Frank P. Crouch. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendants appeal. Affirmed.

<p>Claim against Decedent—Next op Kin—Payment por Monument.</p> <p>Where an administrator, with the consent of the next of kin, erected a monument at a cost exceeding the allowance that the court would have made therefor, a creditor of decedent, who did not present his claim within the time limited by law after the administrator advertised for claims, cannot recover from the next of kin such excess as assets distributed to them.</p>

Action by Paterson Bros, against James G-oorley. Plaintiffs’ attorney moves for the appointment of a receiver in supplementary proceedings to enable him to collect his costs. Denied.

Action by Stephen Leach against the New York, New Haven & Hartford Railroad Company for breach of contract. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Affirmed. Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ. Henry W. Taft, for appellant. Ira B. Wheeler, for respondent.

Action by James Roarty against Edward C-. McDermott and others for partition. Prom an order denying plaintiff’s motion to be reimbursed for legal services, plaintiff appeals. Affirmed.

Action by Thomas J. Churchill against Frederick Loeser and others for an accounting under a contract by which defendants employed plaintiff to buy goods for them; agreeing to pay him, as compensation, a salary of $2,400 a year, and 10 per cent, of the profits of the department of which he was to be the buyer. From an order denying a motion for an inspection of defendants’ books, plaintiff appeals. ■ Reversed.

Certiorari by William Reilly to review the findings and determination of Avery D. Andrews and others, constituting tie board of police commissioners in the city of New York, refusing to retire relator from the police force and place him on the pension roll. Dismissed.

<p>Appeal from circuit court, New York county.</p> <p>Action by George Burk, as administrator of Charles Burk, deceased, against the Edison General Electric Company, to recover damages for alleged negligence of defendant, causing the death of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Beversed.</p>

Action by James Everard against the mayor, aldermen, and commonalty of the city of New York to recover money alleged to be due to plaintiff from defendant for laying water mains. A verdict was directed in favor of defendant, and plaintiff moves for a new trial on exceptions ordered to be heard at general term in the first instance. Granted.

Action by Édwin Van Antwerp against Edward F. Linton and others to recover damages for personal injuries. From a judgment dismissing the complaint as against defendants Linton, Chauncey, and Wallace, with costs, plaintiff appeals. Affirmed.

Action by George Waite Tubbs against Robert O. Embree, individually and as trustee, to recover damages for breach of a contract for the sale by defendant of certain real estate to plaintiff. From an order denying a motion to strike the cause from the circuit court calendar, and to place it on the special term calendar, defendant appeals. Affirmed.

<p>Appeal from judgment on report of referee.</p> <p>Proceeding for the dissolution of the American Steam-Boiler Insurance Company of New York City. A claim against said company was filed by the Gendron Iron Wheel Company. The claim was dismissed, and claimant appeals. A ffirmed.</p>

Action by Frederick J. Ulbricht against Alida S. Ulbricht for divorce. From an order vacating an order granting to defendant alimony pendente lite and counsel fees, defendant appeals. Reversed. On September 18, 1894, plaintiff commenced this action for an absolute divorce upon the ground of defendant’s adultery. Issue was joined on November 12th.

Action by the Manhattan Life Insurance Company against Morris Alexander and Jacob P. Solomon on a bond for $5,000, given by defendant Solomon as principal and defendant Alexander as surety for a loan made by plaintiff to Solomon. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant Alexander appeals. Affirmed.

Action by Silas F. Overton against Emily F. Barclay and others to foreclose a mortgage. A judgment of foreclosure was entered, and the property sold thereunder. William H. Hall became the purchaser, and he moved to be relieved from his purchase. From an order denying such motion said Hall appeals. Affirmed.

Action by Patrick C. O’Rourke against Margaretha Hanchett on a promissory note indorsed by defendant. A verdict was directed in favor of defendant, on the ground that she did not have notice of nonpayment, and plaintiff moves for a new trial on exceptions ordered to be heard at general term in the first instance. Denied.

Action by David V. Howell against John Schuyler Crosby to recover money alleged to be due under a contract Judgment was entered in favor of plaintiff, and defendant appeals. Affirmed.

Action by Frederick Brandt against George Schmeckenbecher and others to foreclose a mechanics’ lien. From so much of the judgment as dismissed the liens claimed by defendants Schmeekenbecher and others, said defendants appeal. Affirmed.

Application by the department of public parks to acquire title to real estate. Martha N. Sproat moves to confirm the report of the referee.

Action by Mary Manning against John B. Manning to recover ■ from defendant certain stocks, bonds, moneys, bank books, and vouchers. From a judgment granting part of the relief sought, both parties appeal. Reversed on defendant’s appeal. For former report see 33 3ST. Y. Supp. 1029.

Action by Lawrence Both against the city of Rochester for trespass on land. Judgment was entered on a verdict in favor of plaintiff, and defendant appeals. Reversed.

Proceeding by the Geneva & Waterloo Railway Company against the New York Central & Hudson River Railroad Company for lie appointment of commissioners to determine the place and manner of the crossing of defendant’s railroad tracks by plaintiff’s tracks. From an order denying a motion to vacate an order permitting plaintiff to lay its tracks across the roadbed and tracks of defendant, defendant appeals. Affirmed.

Action by Edward C. Burns, individually, and Edward C. Burns and Walter S. Harsha, as executors of the will of Charlotte 0. Black, deceased, against Augustus F. Allen and another, to obtain a judicial construction of the will of plaintiffs’ testatrix. From the judgment construing such will, Augustus F. Allen and Alfred D. Allen appeal. Affirmed.

Action by Harvey A. Sweetland against Franklin S. Buell and Kate Miller Buell individually and as executors of the will of Jonathan S. Buell, deceased, and others, to quiet title to land. There was a verdict in favor of plaintiff, and defendants move for a new trial on exceptions taken at the Erie circuit, and ordered heard at the general term in the first instance. Denied.

Application by Charles Hoffman for writ of mandamus against Charles A. Rupp, Edgar B. Jewett, and Charles F. Bishop, constituting the board of police of the city of Buffalo, to compel the appointment of relator to the office of assistant sealer of weights. The application was denied, and relator appeals. Affirmed.

Action by Daniel Hurley, as administrator of George F. Dever, against the New York Central & Hudson River Railroad Company, to recover damages for the death of plaintiff’s intestate, alleged to have been caused by defendant’s negligence. From judgment entered on a verdict in favor of plaintiff, and from an order denying a new trial, made on case and exceptions, defendant appeals. Affirmed.

Action by Lizzie Briel against the city of Buffalo for damages for personal injuries received through the overturning of a carriage, caused by a pile of earth left in the street. From a judgment entered on verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals. Affirmed.

<p>Appeal from judgment on report of referee.</p> <p>Action by Burton J. Hopkins against Frank W. Clark, as administrator of John Clark, deceased. There was a judgment in favor of plaintiff, and defendant appeals. Reversed.</p>

Action by Angus F. MacColl against the American Union Life Insurance Company of New York to recover money alleged to have been paid by plaintiff to defendant on account of stock subscription. From an order denying a motion to strike out the fifth paragraph of the answer for irrelevancy, redundancy, and inconsistency, and the entire answer as sham, plaintiff appeals. Affirmed.

<p>1. Descent and Distribution.</p> <p>Laws 1889, c. 406, § 1, directs that a widow, in addition to her dower, shall be given a life interest in the real estate of her deceased husband, not exceeding §1,000 in value. Section 2 provides that, if the interest of a widow in the real estate of her deceased husband, in addition to her dower right, together with §150, allowed by other portions of the statute, shall be of less value than §1,000, then there shall be set aside for the use of herself and children “personal property, which, together with said real estate, shall amount to §1,000 in value.” Held, that where the value of the interest in the real estate given to the widow by section 1, exclusive of her dower, does not, together with §150, amount to §1,000, then personalty equal in value to the difference between the value of such interest in the real estate (exclusive of dower) and §1,000 is to be set aside. In re Daggett’s Estate (Surr.) 9 N. Y. Supp. 652, and Daggett v. Daggett (Sup.) 14 N. Y. Supp. 182, disapproved.</p> <p>2. Limitation of Actions—When Statute Begins to Run.</p> <p>More than 20 years before decedent’s death his wife gave him money, asking him to keep it for her. No special arrangement was made as' to its use, but there was evidence that he was to use it for his own purposes, and pay his wife interest. He several times offered to repay the money, stating that he owed it, but she refused, telling him to keep it. Held, decedent was a debtor, and not a depositary for the wife, and the claim was therefore barred by the statute of limitations.</p> <p>3. Executors and Administrators—Accounting—Payment of Taxes.</p> <p>Taxes paid by an administrator on assessments made before the death of his intestate are properly allowed as credits in his accounting.</p>

Action by Joseph H. White against John Koster and Albert Bial to recover the sum of $700. From an order denying a motion to make the answer more definite and certain, plaintiff appeals. Affirmed. The amended complaint and answer are as follows: “The amended complaint of the plaintiff above-named respectfully shows-First.

<p>Appeal from circuit court, New York county.</p> <p>Action by Emanuel Lyons, as administrator of Sarah Lyons, deceased, against the Second Avenue Railroad Company, to recover damages for the alleged negligence of defendant, causing the death of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Affirmed.</p>

Action by Stillman E. Walker and Patrick Bresnan against the Phoenix Insurance Company of Hartford, Conn., on a policy of fire insurance. From a judgment entered on a verdicti directed for defendant, plaintiffs appeal. Affirmed. ’ >

<p>Certiorari by Michael Linehan to review the action of James J. Martin and others, constituting the board of police commissioners of the city of New York, in dismissing relator from the police force. Dismissed.</p>

Action by John Gray and another against the Central Railroad Company of New Jersey to recover damages for the alleged failure of defendant to perform an executory contract for the purchase of a steamboat. TYom a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, defendant appeals. Modified. For former report, see 31 N. Y. Supp. 704.

<p>Equity—Jurisdiction—Relief from Default Judgment.</p> <p>Jurisdiction of equity to annul a warrant in summary proceedings in a district court of New York City, and to open a judgment rendered therein by default, cannot be implied from the fact that the justices of the district court cannot open defaults in such proceedings.</p>

<p>Two actions by the German Exchange Bank against John Kroder. Defendant moves for consolidation of the actions. Granted.</p>

Action by Patrick J. Condon against the Church of St. Augustine and others. Plaintiff moves to vacate an order extending the time of defendant the Church of St. Augustine to serve an amended answer. Denied.

<p>Action by Alfred McCarville against Theresa Lynch to recover possession of a certificate of deposit: Judgment for plaintiff.</p>

Action by James Shanks against the Magnolia Metal Company. From an order denying a motion to vacate an attachment, defendant appeals. Reversed. The attachment was granted on the complaint and affidavits made by plaintiff and one Henry L. Miller, of which the following are copies, respectively: “The plaintiff, for his complaint, alleges, upon his information and belief: First.

<p>Corporations—Overissue of Stock—Surrender of Genuine Certificate.</p> <p>A claim against an insolvent corporation for a fraudulent overissue of stock is not affected by the fact that the receiver of the corporation, without the knowledge or consent of claimant, caused to be canceled genuine certificates of stock in such amount that, had they been surrendered before the stock was issued to claimant, his stock would not have been an overissue.</p>

Action by the Mercantile Safe-Deposit Company against Collis P. Huntington and others, as executors, and Caroline C. Martin and another, as administrators, to determine the ownership of a tin box and its contents.

Action by Mark H. Eisner against Julius H. Eisner (individually and as executor of and trustee under the last will and testament of Eliza Eisner, deceased) and others for partition. From an order directing defendant Julius H. Eisner to make Ms answer more definite and certain, said defendant appeals. Reversed.

Action by Michael B. Kenney against the Second Avenue Bail-road Company to recover damages for personal injuries. The complaint was dismissed at the close of plaintiff’s case, and plaintiff appeals. Affirmed.

<p>Appeal from special term, New York county.</p> <p>Action by Mark H. Eisner against Joseph Stern, as executor. From an order denying a motion to direct defendant Stern to make his answer moré definite and certain, said defendant appeals. Reversed.</p>

Action by Lavinia A. Du Bois against the Union Dime Savings Institution to recover certain moneys on deposit with defendant. From an order denying a motion to substitute Ellenora H. Decker in place of defendant savings institution, said institution appeals. Affirmed.

Action by Michael Bowen against Michael Sweeney and others, for partition. From an order denying a motion to set aside the verdict, and from the interlocutory judgment entered on said verdict and on a decision of the special term, and from the final judgment entered on the report of a referee appointed to sell, defendants Michael Sweeney and Catherine Gallagher appeal. . Affirmed.

Action by Henry W. Hardon, as assignee for benefit of creditors of Thomas W. Robertson, against the Ongley Electric Company, on a promissory note. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals. Affirmed.

Action by Robert A. Hollister against James M. Sinclair and Hector Sinclair, Jr., impleaded with others, to enjoin defendants from further prosecuting an action in the city court of New York against plaintiff and defendants Merritt and Tilton as alleged co-partners. The complaint was dismissed on the merits as against defendants James M. Sinclair and Hector Sinclair, Jr., and plaintiff appeals. Affirmed.

Application by the board of street opening, etc., to acquire title to real estate owned by one Giovanni Guarino. An award was made in favor of said owner, and Ms committee (he being a lunatic) _ moves to confirm the report of the referee.

Action by Thomas Crimmins against the Metropolitan Elevated Railroad Company and another to restrain the operation of defendants’ elevated railroad in front of plaintiff’s property, and for damages caused by the construction and operation of said road. There was a judgment in favor of plaintiff, and defendants appeal. Reversed. For former reports, see 33 N. Y. Supp. 984, and 34 N. Y. Supp. 1137.

Action by Bin ion Sterne against Elisha H. Talbott and Maurice Maas on an undertaking given by defendants on appeal to the court of appeals from a judgment of the general term of the supreme court affirming, with $82.45 costs, another judgment in favor of plaintiff against one Charles F. Beach, Jr., for $2,587.96.

Action by Edward D. C. McKay against Donald McKay and others, surviving partners, to recover $45,000 as the par value of certain government bonds alleged by plaintiff to have been deposited with defendants in the year 1869 as collateral security for a stock account then running between the parties. The complaint was dismissed on the merits, and plaintiff appeals. Affirmed.

Action by Adam S. Matheson and Robert C. Neal, as receivers of the American Tube & Iron Company against Clifton Wharton, Jr., as assignee for the benefit of creditors of Jacob Jamer, and the National Tube Works Company. Judgment was entered in favor of plaintiffs, and defendants appeal. Reversed.

Action by Hiram Hitchcock, as executor of Edmund R. Peaslee, against Fanny M. Peaslee and others. From an order confirming the report of the referee, both parties appeal. Affirmed.

<p>Appeal from, special term, New York county.</p> <p>Eight several actions by (1) Francis R. Upton, (2) Michael O’Leary, (3) William 0. Gantz, (4) Edgar W. Youmans, Jr., (5) Charles Klause, (6) the Ft. Wayne Electric Corporation, (7) Charles Wendt, and (8) William J. Hammer and another, as assignees for the benefit of creditors of Francis R. Upton, each against the Electric Construction & Supply Company. From an order adjusting sheriff’s fees in attachment proceedings against defendant, the receivers of defendant appeal. Reversed.</p>

<p>1. Criminal Law—Evidence—Proof of Other Crimes.</p> <p>On a trial for receiving stolen bonds, evidence that the names and numbers originally on the bonds had been erased, and other numbers substituted, is admissible for the purpose of showing defendant’s knowledge of the larceny, and the condition of the bonds when they reached defendant’s hands, though it tended to establish the commission of another crime by some one else.</p> <p>2. Same—Striking Out Evidence.</p> <p>On a trial for receiving stolen bonds, expert evidence that the signatures to the powers of attorney on the bonds, purporting to be signed by a third person, were in the handwriting of defendant, will not be stricken out because afterwards the notaries public who appeared to have taken the acknowledgments of such signatures testified that defendant introduced a man to them as the person who signed the powers of attorney, and that they took his acknowledgment, but such expert evidence will be permitted to stand for what it is worth, even though the testimony of the notaries shows that defendant did not sign the powers of attorney.</p> <p>3. Same—Evidence Admissible in Part.</p> <p>A motion, made on a single ground, to strike out several papers in evidence, is properly denied where any one of them is not subject to the objection.</p>

Action by Dennis Doyle against Mitchel A. G. Levy, for slander. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial made on the minutes, and from an order denying a motion for a new trial on the ground of surprise and newly-discovered evidence, plaintiff appeals. Affirmed.

Action by Joshua L. Baily and others against Lewis M. Hornthal, impleaded with others, to compel defendant Hornthal to account for moneys received from plaintiff’s judgment debtor. Judgment was entered in favor of plaintiffs, and defendant Hornthal appeals. Affirmed.

<p>Writs of certiorari by Mary E. Hovey and by Harlow Carpenter to review the determinations of Henry Leavenworth and others, constituting the board of auditors of the town of Lindley, Steuben county, rejecting the claims presented by relators for relief alleged to have been furnished a pauper. Dismissed.</p> <p>Certiorari issued on the petition of the relator to review the proceedings and determination of Henry Leavenworth, Frank Camp, and Theodore Harrison, composing the board of town auditors of the town of Lindley, Steuben county, in rejecting and disallowing an account of $71, presented to them by the relator for audit and payment. The account was for relief alleged to have been furnished to one .Terry Gleason, an indigent or suffering soldier of the war of the Rebellion. The defendants Leavenworth and Camp made return to the writ. The defendant Harrison made no return, for he had, before the service of the writ, removed from the state, and ceased to be a member of the board. The relator alleged in her petition that she caused to be presented to the defendant, on or about November 8, 1894, a claim against the town of Lindley for the care, board, and attendance of one Gleason, who was a suffering and indigent soldier of the war of the Rebellion, and that her claim was improperly and unjustly rejected and disallowed by said board; that the claim was duly proved and evidenced by the recommendation of the relief committee appointed for the town of Lindley, and was ordered to be paid by the commander and quartermaster of W. W. Angle Post No. 372, Grand Army of the Republic, located at Acf"dison, Steuben county, the nearest post to the town of Lindley, and the only post which had undertaken to care for indigent or suffering soldiers in said town. It was further stated in the petition that a notice was duly filed in the clerk’s office in the town of Lindley; that said post had undertaken the care of such soldiers, and of the appointment of a committee for their relief; that the petitioner and Gleason both resided in the town of Lindley, and that the relief furnished to Gleason was necessary; that he was at the time indigent, sick, and suffering; that he had been a soldier of the late war, had been a resident of the state for more than a year at the time the relief was furnished; that the relief was furnished pursuant to vouchers "which were attached to the petition, which vouchers consisted of two recommendations of John F. Gibson and Jerome B. Hovey, relief committee, dated Lindley, N. Y., July 28, 1893, one recommending that relief to the amount of $17 and the other that $54 be furnished to Jerry Gleason, an indigent and suffering soldier, who had served in the war of the Rebellion, and who had been a resident of the state for more than a year; and was a resident of the town of Lindley; and also two orders, purporting to be signed by B. 0. Gardner, commander, D. O’Keefe, quartermaster, W. W. Angle Post No. 372, G. A. R., on the town of Lindley, for said sums of $17 and $54 to be paid to the holders thereof. The petition was duly verified. Upon this petition a writ was issued, directing the defendants to certify their proceedings in refusing to audit and allow said claim. The defendants made a return to the writ, in effect that the claim was presented to the board; that they duly investigated and rejected it on the 9th day of November, 1894; that their rejection of the claim was founded or based principally upon the following facts: That upon the 10th day of June, 1893, a notice was filed in the clerk’s office of the town of Lindley by B. G. Gardner, to the effect that he was commander of Angle Post No. 372, mentioned, and that that post was located in the town of Addison, in said county, and that said post intended to undertake the relief of indigent soldiers, sailors, etc., as is provided for by chapter 261, Laws 1888, and that John O. Gibson, Jerome Hovey, and William E. Wilson, members of said post, but residents of said town of Lindley, had been appointed relief committee for said town; that there was no post of the Grand Army of the Republic in the town of Lindley; that no other paper was by said post filed in said clerk’s office during the year 1893, except when said board met, November 9, 1893, Jerome B. Hovey, instead of Mary E. Hovey, presented to said board the same claim hereinbefore mentioned, unverified; that in November, 1893, a certificate was filed in the clerk’s office in the town of Lindley by said Gardner, commander, and Edward P. Seaman, adjutant, of said Angle Post, that said post had undertaken the relief of indigent soldiers, etc., in said town of Lindley, and that the sum of $200 was necessary, or would become necessary, for the purpose aforesaid for the current year of 1893 and 1894, and requested the board of said town to audit said amount at their annual meeting in 1893. The relator’s claim as presented was in the words and figures following: “Town of Lindley to Mary E. Hovey, Dr., for food, care, and attendance furnished Jerry Gleason, an indigent and suffering soldier of the war of the Rebellion, during and about the month of July, 1893, upon the order of B. C. Gardner, commander, and D. O’Keefe, quartermaster, of W. W. Angle Post 372, Grand Army of the Republic, $17.00.” The bill was verified by Jerome B. Hovey only. It was further stated in the return: That the board investigated the claim, and learned that Gleason was drawing a pension of at least $10 per month at the time the relief was claimed to have been furnished. That he was a citizen of the town of Addison; was a single man, with no one but himself to support; was a blacksmith by trade, and had received in the latter part of April, 1893, the sum of $79 for work performed by him as a blacksmith. That, of the pension money Jerome B. Hovey had received $30. That Gleason was never in the town of Lindley to board or work until he came there to work as a blacksmith in February, 1893, but had a residence and settlement in the town of Addison. That the relator is the wife of Jerome B. Hovey, and lives with and keeps house for him, and has no other home or separate estate of her own; and that the claim, if any exists, is the property of her husband. That the board of auditors had no notice or knowledge of the items of the claim, or what prices were charged for the relief furnished to Gleason. That the post commander, in October, 1894, filed a notice or detailed statement, as provided by law, in which it was stated that the amount of the bills for relief to soldiers in the town of Lindley for the preceding year, and the names of the persons furnishing such relief, were Harlow Carpenter, $98; Jerome B. Hovey, $71; Dr. A. A. Aldrich, $42; in all $211; and that the amount recommended as necessary for the next year, 1894 and 1895, was $189.25. Among other items for the year 1894 was one in favor of John F. Gibson for relief furnished to soldiers, for $98. That the auditors, after rejecting said claim, completed their labors, and adjourned sine die. That the relator’s claim was fairly and honestly considered and audited and rejected by said board, both on the facts and the law.</p>

Action by the National Mahaiwe Bank against Elizabeth T. Hand, as executrix of Allen F. Hand, deceased, for breach of covenant to insure. The complaint was dismissed on the merits, and plaintiff appeals. Reversed. For decision on former appeal, see 30 N. Y. Supp. 508, 1133.

<p>Action—Who mat Sue—Persons not Parties.</p> <p>A bond, given by a city contractor, conditioned as required by a resolution of the council relating to contractor’s bonds for complete performance of their contracts, that, in case he failed to pay any persons furnishing him with labor or materials, they might sue on the bond as if named therein, is intended solely for the benefit of the city, and persons furnishing materials to the contractor cannot sue thereon.</p>

Action by Frank M. Todd, as executor of the will of Ezra Lewis, deceased, against Squire V. Vaughn. From so much of the judgment as adjudges that plaintiff is not entitled to recover the entire amount claimed in the second count of his complaint, plaintiff appeals; and from so much of the judgment as adjudges that plaintiff is entitled to recover the sum of $70.45, with costs, defendant appeals. Affirmed.

<p>Appeal from circuit court/Cattaraugus county.</p> <p>Action by Henry 0. Frick and Charles G-. Frick against William B. Hughes, as sheriff of Cattaraugus county, and Thomas R. Aldrich, as deputy sheriff, for conversion of lumber. From a judgment entered on a verdict directed by the court in favor of plaintiffs, defendants appeal. Reversed.</p>

Certiorari by Charles A. Simons to review the decision of Joseph Murray and others, constituting the board of commissioners of excise of the city of New York, in refusing to grant to relator a license to sell liquor on premises No. 98 Lexington avenue in said city.

Action by Henry M. Taber and others against the Manhattan Railway Company and another. From an order finding defendants guilty of contempt in disobeying an injunction contained in the judgment, defendants appeal. Reversed.

Action by the New York Land-Improvement Company against William S. Chapman. Judgment was entered on a verdict directed for defendant, and plaintiff appeals. Defendant moves to dismiss the appeal for want of prosecution. Denied on condition.

Action by Vito Trasselli and others against Richard H. Allen, as surviving partner. From an order directing the action to be placed on the clerk’s calendar, and from an order denying defendant’s motion to dismiss the complaint for unreasonable neglect on plaintiffs’ part to prosecute the action, and for judgment accordingly, defendant appeals. Modified.

<p>Application by Henry J. Semken for.a peremptory writ of mandamus to James M. Fitzsimons, justice of the Hew York city court.</p>

Action by Charlotte B, Hosmer against James M. G-ano and others to foreclose a mortgage. The referee appointed to make the sale on foreclosure of the mortgage moves to have his compensation fixed.

Accounting by the executor of the will of Mary J. Havemeyer, deceased. The parties to the proceeding move for an order to send back the report of the referee for correction, and to require him to state his findings of fact and conclusions of law separately. Granted-

<p>1. Principal and Agent—Compensation of Agent.</p> <p>Where plaintiff’s compensation as agent for the sale of defendant’s goods, which were-customarily paid for after delivery, was a percentage on the amount of sales, he was entitled to his commissions on goods sold before, but delivered after, the expiration of his agency.</p> <p>2. Same—Refusal of Principal to Accept Services.</p> <p>A principal cannot refuse to accept orders placed by an agent appointed to sell goods on commission before the expiration of his agency, where the refusal is merely to defeat the agent’s right to commissions.</p> <p>3. Same—Contract—Interpretation by Parties.</p> <p>Where a manufacturer hired an agent to sell his goods on commission, and, though he had not agreed in terms to send the agent price lists and samples, yet did so until he desired to terminate the agency, his obligation to do so while the agency continued was clearly within the intent of the parties, and will be enforced.</p>

Controversy between the Manhattan Railway Company, as plaintiff, the mayor, aldermen, and commonalty of the city of New York, as defendant, submitted without action, on an agreed state of facts, pursuant to Code Civ. Proc. § 1279. Judgment for plaintiff.

<p>1. Trade Names—Imitation—Intent to Deceive.</p> <p>Plaintiff put on the market a brand of hooks and eyes sewed on cards labeled, “The De Long Hook and Eye.” Another person named De Long patented an alleged improvement in hooks and eyes, and defendants put these on the market on cards very similar to plaintiff’s, and labeled, “Oscar A. De Long’s Improved,” and “De Long Hook and Bye Company, Makers, New York.” Persons asking for De Long’s hooks and eyes were often given defendant’s brand, when they desired plaintiff’s. Held, that defendant’s acts were intended to deceive the public, and to illegally gain plaintiff’s trade.</p> <p>2. Same—Giving Name to Corporation.</p> <p>A corporation cannot acquire the name of one of its incorporators, and use it to deceive the public and to defraud others who have built up a business under the same name, on the ground that such is the true name of the incorporator. 32 N. Y. Supp. 203, affirmed.</p> <p>8. Costs—Extra Allowance.</p> <p>Where there is no allegation of proof of the value of the subject-matter involved in an action, an extra allowance will not be granted.</p>

<p>Master and Servant—Injuries to Servant—Contributory Negligence.</p> <p>Plaintiff, an- experienced coachman, was ordered by defendant to harness a certain pair of horses without blinders, and bring them to the house. Plaintiff told defendant that it was unsafe for any one to drive the horses thus harnessed, but defendant said he was going to drive himself, and would risk it. Plaintiff harnessed the horses as directed, and started to drive them to the house, when they became frightened by reason of the absence of the blinders, and ran away, causing the injuries sued for. Held, that plaintiff could not recover, as he voluntarily attempted to drive the horses without blinders, though he knew the danger, instead of leading them to the house, as he could have done.</p>

Controversy between the county of Allegany as plaintiff and the town of Wellsville as defendant, submitted without action on an agreed statement of facts, pursuant to Code Civ. Proc. § 1279. Judgment for plaintiff. The facts agreed upon are as follows: During the years 1892, 1893, and 1894, and for many years prior thereto, the support of the poor of Allegany county was a county charge.

Action by Marion E. Stone against Alvah D. Pratt. From an order denying a motion to amend a warrant of attachment, and granting defendant’s motion to vacate the attachment, plaintiff appeals. Reversed.

Action by Patrick Conley against Charles C. Clay to recover penalties for wrongfully requiring plaintiff to pay toll to the East Aurora & Spring Brook Plank-Road Company. A judgment of a justice’s court in favor of plaintiff was affirmed by the county court, and defendant appeals. Modified.

<p>Action by the First National Bank of Salem and August Beck, as sheriff of Erie county, against Joseph Davis and others. Defendants Joseph Edwin-Davis and Edmonia B. Martin demur to the complaint. Sustained.</p>

<p>Appeal from circuit court, Erie county.</p> <p>Action by Hannah Smith, as administratrix of George W. Smith, deceased, against the Empire Transportation Company, to recover for the alleged negligence of defendant, causing the death of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Reversed.</p>

Action by Richard E. Townsend against Edward G-. Felthousen to recover damages for alleged false representations of defendant, by which plaintiff was induced to purchase shares of stock of the Buffalo Steam-Pump Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals. Affirmed.

<p>1. Accident at Railroad Crossing—Negligence—Question for Jury.</p> <p>While plaintiff was crossing defendant’s railroad track with his attention fixed on a train which had just passed, he was- struck by a closely following car. This car, had been detached from the train in switching, and approached without warning. Plaintiff was not aware that such switching was sometimes done at that point. Held, that the questions of negligence and contributory negligence were properly submitted to the jury.</p> <p>2. Damages—Speculative Evidence—Testimony of Physician.</p> <p>Plaintiff was in a sound physical condition before he was injured, but afterwards he was somewhat deformed, and his health was impaired. His attending physician gave evidence tending to prove that his condition was directly traceable to the injuries received. Held, that such evidence was not objectionable as speculative.</p>

<p>Appeal from circuit court, Monroe county.</p> <p>Action by William Curry against Rochester Railway Company for damages for personal injuries received through being struck by one of defendant’s cars. From judgment entered on verdict in favor of plaintiff, and from order denying motion for new trial, made on minutes, defendant appeals. Reversed.</p>

Action by William W. G-oodall against the Hew York Central & Hudson River Railroad Company for damages for personal injuries received by being struck by an engine while in defendant’s yards. Plaintiff was nonsuited, and moves for a new trial on exceptions ordered to be heard at general term in the first instance. Denied.

<p>1. Statute op Frauds—Necessity to Plead—When not Dispensed With.</p> <p>Plaintiff alleged a contract for services to be performed within one year. Defendant admitted making a contract with plaintiff, but denied that it was as alleged, and put in issue the stipulated time of performance. Held, that plaintiff was not, under the pleadings, required to prove a contract valid within the statute of frauds, but it was incumbent on defendant to plead the statute, in order to render it available as a defense.</p> <p>2. Tender—Waiver op Objections.</p> <p>One who receives and retains an answer, without objecting that defendant had not paid into court money alleged in the answer to have been tendered to plaintiff, will be deemed to have taken issue on the plea of tender, and to have waived the irregularity.</p>

Action by Angela E. Moosbrugger against Anna Walsh and Maggie L. Walsh to enforce defendants’ personal liability as stockholders of the Pleasant Valley Vintage Company, for the debts of said company. Judgment was entered in favor of plaintiff, and defendants appeal. Affirmed.

Action by Sarah Gr. Smith against John B. Smith for divorce. There was a judgment in favor of defendant, and plaintiff appeals. Affirmed in part and reversed in part.

Action by Pascal P. Pratt against the New York Central & Hudson River Railroad Company, the city of Buffalo, and others, to recover damages to plaintiff’s premises, caused by the construction and operation of defendants’ railroad tracks. From an order refusing to continue and vacating a temporary injunction, plaintiff appeals. Affirmed. For former report, see 28 N. Y. Supp. 463.

<p>Contributory Negligence—Accident at Railroad Crossing—Evidence.</p> <p>In an action for injuries to plaintiff, who was struck by defendant's train at a railway crossing, it appeared that the highway crossed the track at an angle of about 45°, making the distance between a switch track, on which box cars were standing, and which was distant from the main track about 8 feet, and the main track rails, measured along the highway, 14 feet. Plaintiff’s view of the approaching train was obstructed by the box cars. However, after passing the switch track, she had an unobstructed view along the track for 400 feet. The morning was stormy, with about a foot of snow on the ground, but plaintiff testified that she saw a workman with a shovel in his hand 65 feet off, and the other evidence tended to show that it was not snowing. On cross-examination plaintiff testified that she looked for the approaching train, which she expected to take at the station, after she passed the ears on the switch track. Her husband, who testified that he watched her until she was struck by the train, failed to testify that he saw her look. Held, that the evidence was insufficient to show plaintiff’s freedom from negligence. Ward, J., dissenting.</p>

<p>Appeal from Allegany county court.</p> <p>Action by Samuel G. Dey against Minnie Prentiss to recover the amount expended by plaintiff in building defendant’s portion of a division fence. From a judgment entered on a verdict in favor of defendant, rendered by the direction of the court, and from an order denying a motion for a new trial, made on the minutes, plaintiff appeals. Affirmed.</p>

<p>1. Corporations—Contracts—Rescission by Stockholders.</p> <p>A minority of the stockholders of a railroad company cannot disaffirm a lease of the corporate property to another company, merely because the directors of the lessor were also directors of the lessee.</p> <p>2. Same—Laches.</p> <p>Bondholders or stockholders of a corporation, after the lapse of six years, cannot sue to disaffirm such a lease.</p> <p>8. Same—Action by Stockholders.</p> <p>To warrant the interference by a court of equity with the management of a corporation, on the application of a minority of the stockholders, it must be shown that the action of the governing body complained of has been so clearly against the interest of the minority as to amount to a wanton and fraudulent destruction of the rights of such minority.</p> <p>4. Same—Pleading.</p> <p>A complaint by a minority of the stockholders of a railroad company for an accounting, and to recover the interest of their company in certain boats, alleged that their company was the owner of certain boats under a conditional contract of purchase; that defendant railroad company, after it had obtained control of plaintiffs’ company, wrongfully allowed a payment on the contract to be omitted, whereby its interests became forfeited; and that another corporation was formed, whose stock was owned by defendant, which purchased the boats, being allowed by the seller the amount previously paid by the plaintiffs’ company, on its contract. Held, that the complaint was demurrable, as it did not show whether the contract of purchase by plaintiffs’ company should have been carried out, or whether it had money to make the payment omitted.</p> <p>5. Same.</p> <p>A complaint by a minority of the stockholders of a railroad company, attacking its consolidation with defendant company, alleged that the consolidation was disadvantageous to the interests of plaintiffs’ company; that its road was of great value; that defendant company had never paid a dividend, and that its stock had no market value, yet the articles of consolidation provided that 1 share of the stock of the new company should be given for 10 shares of plaintiffs’ company, while one share of the new company should be exchanged for one share of defendant’s stock. Held, that the complaint did not sufficiently show the respective values of the stock of the two companies.</p>

Action by Berwind-White Coal-Minirig Company against George S. Ewart to enforce the statutory liability of defendant as a stockholder of the Livingston Salt Company, Limited, for the debts of said company. The complaint was dismissed (32 H. Y. Supp. 716), and plaintiff appeals. Affirmed.

<p>1. Tenants in Common—Liability inter Se for Rent.</p> <p>Where property leased to and in possession of a firm is afterwards devised by the lessor to the partners individually and to others, such partners must account to the other devisees for the rents accruing under the lease after the death of the lessor.</p> <p>2. Contracts—Construction by Parties—Lease.</p> <p>Testatrix, after leasing right to cut ice from a pond, leased the land containing the pond to defendants, but did not mention the previous lease of the right to cut ice. Defendants were testatrix’s agents to collect rents, and, after the lease to themselves, they continued to account for rents collected from the lessee of the right to cut ice. Held, that such course of dealing showed that the parties did not intend to include the ice pond in the lease to defendants.</p> <p>8. Accounting—When Action Lies—Right to Sue at Law.</p> <p>An action for the recovery of such a sum of money as may be found due on an accounting will not be dismissed because an action at law might have been maintained to recover the sum demanded.</p>

Action by Roger Kane, as administrator of Edward O’Toole, deceased, against the Mitchell Transportation Company, to recover damages for the death of plaintiff’s intestate alleged to have been caused by the negligence of defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>Appeal from special term, Monroe county.</p> <p>Action by Mary Griffith against Charles É. Dickinson and another. Judgment was rendered in favor of plaintiff, and defendants appeal. Reversed.</p>

Application by the Erie Malleable Iron Company, Limited, to take the deposition of the Gould Coupler Company, to enable petitioner to frame its complaint in an action about to be brought by it against said coupler company. The application was granted. Afterwards a motion to vacate the order granting the application was denied, and the Gould Coupler Company appeals. Affirmed.

<p>1. Negligence—Common Carriers—Elevators. •</p> <p>In an action for damages for the death of plaintiff’s intestate, a child 9Vi years old, which occurred while she was riding in the elevator in defendant’s office building, it appeared that the doorway of the car was unusually wide, and was constructed without a door. Between the sides of the car and the walls of the shaft there was a space of 3y2 inches. The front of the elevator shaft was constructed of light iron work, which bulged outward with slight pressure. The elevator moved at the rate of 8 feet per second, and, when started, passengers were liable to lose tlieir balance. Decedent was killed by falling and having her head caught between the floor of the elevator car and the front of the elevator shaft. Held, that the question whether defendant was negligent in failing to provide the car with a door was for the jury.</p> <p>2. Same.</p> <p>Where it also appeared in such an action that decedent was the only passenger on the car, the question whether the person in charge of the car was negligent in starting it without having first warned the child, and instructed her how to protect herself from falling, was for the jury.</p>

Action by the Aurora & Buffalo Plank-Road Company against Louis Schrot to recover money alleged to be due from defendant as tolls for the use of plaintiff’s plank road. A judgment of a justice’s court in favor of defendant was reversed by the county court, and defendant appeals. Reversed.

<p>1. Costs—-Security for—Ex parte Order.</p> <p>An order requiring plaintiff to give security for costs may be made without notice. Churchman v. Merritt (Sup.) 2 N. Y. Supp. 843, followed.</p> <p>2. Same—Laches.</p> <p>Where defendant delayed applying for an order to compel plaintiff to give security for costs until after he had served his answer, though he knew that he was entitled to security, the motion will be denied on the ground of loches. Stevenson v. Railroad Co. (Sup.) 1 N. Y. Supp. 670, followed.</p>

<p>Appeal from Monroe county court.</p> <p>Action by Jacob F. Franzen, as assignee, etc., against Frederick Zimmer. From a judgment of the county court-reversing a judgment of the municipal court of the city of Rochester for defendant, defendant appeals. Affirmed.</p>

Ejectment by Edwin Smith, as executor of the last will and testament of Eliza A. Evans, deceased, against Mary A. Chase and others. There was a judgment for defendants, and plaintiff appeals. Affirmed.

Action by M. Fillmore Brown against Harvey F. Remington. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals. Reversed.

Action by Michael Bellappi against Belle Hovey. From a judgment of the county court affirming a judgment in favor of plaintiff, rendered by a justice of the peace of the town of North Collins, defendant appeals. Reversed. The action is one for labor and services, claimed to have been rendered by the plaintiff for the defendant. Issue was joined before the justice of the peace upon the 4th day of August, 1894, at which time the defendant demanded a trial by jury.

Action by Mandeville J. Barker and another, as executors of the last will and testament of Enos G-. Laney, deceased, against Mary K. Laney. From a judgment entered on the report of a referee directing that a judgment in favor of plaintiffs be set off against a decree in favor of defendant, the latter appeals. Affirmed.

Action by James W. Stanton against the United Stales Pipe-Line Company, a foreign corporation, to recover the value of services alleged to have been rendered by plaintiff to defendant. From an order setting aside the service of the summons and complaint, on the ground that the service was on one of the directors of the defendant in New York, and that defendant did not have at the time any office, or place of business, or property in New York, plaintiff appeals. Reversed.

. Action by Abigail Du Puy against Jane Cook to recover damages for the death of plaintiff’s son, who was drowned while intoxicated with liquor sold to him by one George Miles, who was a tenant of a saloon rented to him by defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Affirmed.

<p>Appeal from special term, Erie county.</p> <p>Action by Christopher Smith against the city of Buffalo. From a judgment dismissing the complaint, plaintiff appeals. Affirmed. Argued before LEWIS, BRADLEY, and DAVY, JJ.</p>

Action by Henry Miller against William 0. Young to enjoin the diversion and obstruction of water flowing from a certain spring-belonging to plaintiff. Defendant died pending the action, and plaintiff moves for leave to continue it in the name of Mary L. Young, individually, and as executrix of the will of William C. Young, deceased. The motion was denied, and plaintiff appeals. Reversed.

Claim by Frederick Zinke against the estate of Elizabeth Zinke,. deceased. The claim was disputed by the executor and referred under the statute. The referee reported in favor of claimant, and the executor appeals. Affirmed.

Action by Thomas A. H. Hay and William O. Hay, as survivor of Jacob Hay, deceased, against Jacob Jackele and others on a promissory-note. From a judgment entered on a verdict in favor of plaintiffs for $678.78, defendants appeal. Affirmed.

Action by George Lewis Prentiss, guardian, against Ellen Bowden. An application by defendant for an award of costs and an allowance other than the costs awarded in the court of appeals was denied, and defendant appeals. Plaintiff moves to dismiss the appeal. Granted.

<p>Pleading—Bill of Particulars—Divorce.</p> <p>Where the complaint in an action for divorce on the ground of adultery names the places where the alleged acts of adultery were committed, and gives the name of one of the persons with whom such acts were alleged to have been committed, though the dates are somewhat indefinite, a bill of particulars will be denied, as the facts are peculiarly within the knowledge of- defendant.</p>

Proceeding in the nature of a quo warranta by Oscar Thorn against Jeremiah Pangburn, Jr. Judgment for relator. Held: pursuant to the by-laws of said corporation, for the selection, among others, of a secretary of the corporation, to hold office for one year thereafter. The regular ticket, containing the names of candidates, one for each of the offices to be filled, was furnished to all members who desired to vote.

Certiorari by Thomas Muckle to review the determination of the board of excise of the town of Brunswick denying relator’s application for a license to sell liquor.

<p>Street Cars—Collision with Wagon Crossing Tragic.</p> <p>In an action for injuries caused by defendant’s electric car colliding with plaintiff’s wagon, the motorman testified that plaintiff had attempted to drive across the track when the car was about 20 feet distant, moving at the usual rate of speed; and on cross-examination he stated, in answer to the question what is the greatest distance, and what is the shortest, within which a car could be stopped, “You can stop a car in fifteen feet or less.” Held, that it was error to charge that there was no evidence which would warrant a finding that the car could have been stopped within 15 feet.</p>

<p>Mechanics' Liens—Foreclosure—Effect of Judgment in Action for Debt.</p> <p>Code Civ. Proc. § 1630, providing that an action to foreclose a mortgage “shall not be commenced or maintained,” where a judgment has been recovered at law for the mortgage debt, until execution issued on the judgment is returned unsatisfied, applies to actions to foreclose mechanics’ liens by Laws 1885, c. 342, § 8, which declares that the manner and form of instituting and prosecuting actions to foreclose mechanics’ liens “shall be the same as in actions for the foreclosure of mortgages on real property,” as the provision of said section 1630 is merely a rule of procedure; the right to sue not being abolished thereby, but only suspended.</p>

Summary proceedings by Robert F. Bixby, individually and as. trustee, against the Casino Company, for the recovery of possession of land. From a final order in favor of plaintiff, the landlord, on a trial without a jury, the tenant appeals. Reversed.

<p>Motion for a reargument. Denied.</p> <p>For opinion on appeal, see 30 N. Y. Supp. 937.</p>

<p>Appeal from Eighth district court.</p> <p>Action by Frank Manfredi against Morris Wiederman and others for trespass. There was a judgment for plaintiff, and defendants appeal. Reversed.</p>

<p>Appeal from Sixth district court.</p> <p>Action by Irene A. Hyde against James A. Wilmore. There was a judgment for plaintiff, and defendant appeals. Reversed.</p>

Action by Minna Wechselmann against David Trottina. From a judgment for defendant on his counterclaim, and against plaintiff on her alleged cause of action, plaintiff appeals. Reversed.

Action by the Thomas Roberts Stevenson Company against William J. Tucker and others. Judgment was entered on verdict in favor of defendants on a counterclaim, and plaintiff appeals. Affirmed.

Action by James McLaughlin against John F. Harriot, as property clerk of the police department of the city of New York. From a judgment for plaintiff rendered on a trial before the justice, without jury, defendant appeals. Reversed.

Action by Henry Dater against Thomas Fletcher. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by Henry Hess & Co., a corporation, against Frederick Baar and another to recover the agreed purchase price of merchandise. From a judgment of the general term of the city court (32 N. Y. Supp. 918) affirming a judgment for plaintiff rendered at trial term on a verdict, defendants appeal. Affirmed.

<p>Corporations—Diversion op Funds—Recovery por Creditors.</p> <p>Ail the stockholders of a corporation having assented to the use of corporate funds for the payment of premiums on a policy on the life of one of the stockholders, payable to his wife, another stockholder, and the payments having been made while the corporation was solvent, its receiver cannot, because of such diversion of funds, maintain an action to have the policy declared his property.</p>

Application of Mary McBride, administratrix, against Henry G-. Harris. From an order directing defendant to deposit a sum of money in court, and denying a motion for reargument, defendant appeals. Affirmed.

<p>Appeal from special. term.</p> <p>Action by the Farmers’ National Bank of Annapolis against William H. Underwood, impleaded with Clarence H. Venner. From an' order denying motion to strike out complaint and dismiss the action,. and requiring answer within 10 days, defendant Underwood appeals. Reversed. 1</p> <p>Appeal from order denying motion to strike out the complaint and dismiss the action. The order appealed from not only denied any relief asked by defendant, but extended relief to the plaintiff by requiring the defendant to serve his answer within 10 days from the entry and service of the order appealed from. This action was commenced by the service of a summons and complaint on the 9th day of November, 1894. The plaintiff is a resident of Annapolis, Md., where its president resides. On January 9, 1895, defendant obtained ex parte an order to examine the president of plaintiff as an adverse party, and an inspection and discovery of plaintiff’s books, which order was vacated on plaintiff’s motion. Subsequently, two other orders, requiring plaintiff to give certain information, were obtained, one of which was granted in part and in part denied, and the last one of which was vacated on plaintiff’s application. This being the situation of the proceedings, defendant, on June 1, 1895, obtained an order for the examination of the president as an adverse party, directing him to appear for such examination in New York City. As this could not be served within the state, 'an order for service without the state was secured, and thereafter the service was made in Annapolis on the president and on the plaintiff’s attorney. By reason of certain defects, two other orders were obtained; and finally, on June 18th, an order was secured extending the time for the taking of the deposition and examination, as provided for in the order of June 1st, until the 20th day of June, 1895, and further providing for service of the orders, and a copy of the last order and the affidavit upon which it was granted, “upon the attorneys of said plaintiff, and upon the president of the plaintiff, within or without the state, on or before the 19th day of June, 1895.” This order was served, in accordance with its provisions, upon the attorney and the president, but on the return day the latter did not appear. Thereupon the defendant moved to strike out the complaint and dismiss the action and for other relief, which motion was denied, and an order was thereupon entered which, besides denying the motion, contained this provision: “Ordered peremptorily that the defendant serve his answer upon the plaintiff’s attorney within ten days after service of a copy of this order.” The questions presented for consideration arise upon the appeal from this last order.</p>

<p>Action by Miguel Camacho Roldan and another against Andrew F. Power and another. Plaintiffs demur to defendants’ counterclaims. Demurrer sustained.</p>

Action by Margaret Shea against the Sun Printing & Publishing Association for libel. Defendant demurs to the complaint on the ground that it does n.ot state facts sufficient to constitute a cause of action. Overruled.

Action by Charles F. Mattlage against the New York Elevated Railroad Company and the Manhattan Railway Company to enjoin defendants from maintaining and operating their elevated railway in the street .in front of and contiguous to plaintiff’s premises, defendants not having acquired the right to maintain their railway either by purchase or by the exercise of the power of eminent domain.

Action by John Murtha against the Metropolitan Elevated Railway Company and the Manhattan Railway Company to enjoin the maintenance and operation of defendants’ elevated railway in the street in front of plaintiff’s premises. From a judgment in favor of plaintiff for injunctive relief, and damages for the loss of rental value, defendants appeal. Reversed.

Action by Job E. Hedges, receiver in supplementary proceedings, against Horace G. Polhemus and others, to have a chattel mortgage given to defendant John Polhemus by defendant E. E. Kenney declared null and void as against the mortgagor’s creditors, and to subject the property mortgaged, or the proceeds thereof, to the payment of the judgments under which plaintiff was appointed receiver. There was a judgment in favor of plaintiff (30 N. Y. Supp. 556), and defendants appeal.

Action by Joshua Samuel Piza against Elliott L. Butler, individually and as treasurer and member of the New York Fur Cutting Company, and others, to compel defendant Butler to account for his official acts as treasurer of said company, and to pay over certain moneys to said company, etc. From an order granting an injunction and appointing a receiver, defendant Butler appeals. Affirmed.

Action by the American Aquol & Pyrodene Paint Company against James B. Smith and John W. Smith, impleaded as “Smith & Bro.,” partners. Judgment was rendered against defendants after personal service of summons and complaint on James B. Smith, and after service of a general notice of appearance for both defendants by an attorney.

Action by Robert J. Dean and others against August Marshall and others. From a judgment, after trial without a jury, for plaintiffs, defendants appeal. Reversed.

Action by Emily L. Harris against Archibald M. Graham to cancel a judgment for the deficiency on the foreclosure of the mortgage on plaintiff’s premises as a cloud on her title. There was a judgment in favor of plaintiff, and defendant appeals. Modified.

Action by Anna Brown against John C. Moore for slander. From a judgment of nonsuit, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Action by Adelbert Moot, as trustee, against the Business Men’s Investment Association. A judgment was rendered in favor of plaintiff for $1,642.32, and defendant appeals. Affirmed.

<p>1, Innkeepers—Guest's “Jewelry and Ornaments”—Watch and Chain.</p> <p>A watch is not within Laws 1855, c. 421, amended by Laws 1883, c. 227, requiring a guest of an hotel, in order to charge the proprietor with their loss, to deposit “money, jewels, or ornaments” with the clerk for safekeeping.</p> <p>2. Same—Contributory Negligence.</p> <p>Plaintiff occupied a room on the ground floor of defendant’s hotel, with a window opening three feet above the public street. He retired about 1 o’clock at night, and there was some evidence that he was then under the influence of liquor. He left the window open, and the light burning in his room. While he was asleep, some of his effects were stolen from his room. Held, that the question of contributory negligence was for the jury.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Percival R. Irving and others against Walter Irving on a promissory note. A reference was ordered, and defendant appeals. Affirmed.</p>

<p>Appeal from special term, Yew York county.</p> <p>Action by the McCaslin Machine Company against George W. McCaslin to compel him to assign certain letters patent claimed by reason of a prior contract with the inventor while in plaintiff’s employ. The complaint was dismissed, and plaintiff appeals. Reversed.</p> <p>This action was begun February 16, 1893, to compel the defendant to assign to the plaintiff two letters patent, No. 486,789 and No. 486,809, issued by the United States to the defendant February 22, 1892, for “certain improvements in conveyers,” to compel the defendant to account for the rents and profits received under said letters, perpetually to enjoin defendant from incumbering or assigning said letters, and for the recovery of damages. October 20, 1888, the plaintiff was incorporated with a capital stock of $20,000, under the statutes of this state, by Charles W. Hunt, John Allen, Charles C. King, George Martin Luther, and George W. McCaslin, for the purpose of manufacturing chain conveyers for conveying coal, grain, and such articles. December 8, 1885, letters patent No. 331,961 were granted by the United ■States to William Griesser for a new and useful conveyer; August 7, 1888, letters patent No. 387,241 were granted to George W. McCaslin for an improved conveyer; August 20, 1889, letters patent No. 409,330 and No. 409,612 were granted to George W. McCaslin for improved conveyers,—which four patents were assigned to the plaintiff. October 27, 1888, the persons who organized the corporation entered into a contract, of which the following is a copy:</p> <p>“For and in consideration of one dollar, each to the other of us in hand paid, and in consideration also of the sum of one dollar to each of us paid by the McCaslin Machine Company, we do hereby severally agree that if we, or either of us, shall (during the time we shall be interested as stockholders, trustees, officers, or employes of the McCaslin Machine Company) invent or discover any improvement upon or new method of making any machine or machinery relating to or to be used in’making the chain conveyer now owned ■and used by said company, or any other machinery manufactured or to be manufactured by said company, that we will at once assign the invention or discovery, and any application for patents, and any patents issued thereon, to said company. Dated October 27,1888.”</p> <p>Upon the organization of the corporation the defendant became and remained a shareholder therein until January, 1891, and was employed as its general manager from the date of its organization until May 19,1891, when he resigned. November 22, 1892, letters patent No. 486,789 were issued by the United States to the defendant upon his application for “certain improvements in conveyers,’.’ and on the same day (November 22,1892) letters patent No. 486,809 were issued by the United States to the defendant upon his application for “certain improvements in conveyers.” It is alleged in the complaint that the inventions secured by these letters were devised and made by the defendant while he was a stockholder and employé of the plaintiff, and that they, and all the rights secured by the letters, belonged to the plaintiff. The defendant denies this allegation in his answer, and alleges that the inventions secured by the letters were made after he ceased to be a shareholder in and an employé of the plaintiff. February 11, 1893, the defendant assigned said two letters patent to Robert McCaslin in consideration of $2,000, which was recorded in the United States patent office May 19, 1893, who in May, 1893, assigned said letters patent to the McCaslin Conveyer & Trust Company, of Cleveland, Ohio.</p>

<p>Mandamus—Appointment to Office—Preference of Veterans. . .</p> <p>. Under Laws 1894, c. 716, § 1, providing that veterans of the _ Civil War shall be entitled to preference of appointment to certain positions under the state and city governments, and that in all cases of refusal to allow such preference they shall have a right of action as for an act wrongfully done, “in addition to the existing right of mandamus,” the appointment of a veteran to an office as to which he is entitled to preference may be compelled by mandamus, though another person has been appointed and is in possession of the office. Per Ward, J., dissenting.</p>

Action by the National Park Bank of New York against the Eldred Bank to compel the repayment of a draft which had been raised from $8 to $1,800, and paid by plaintiff to defendant as principal. There was a verdict for plaintiff, and defendant moves for a new trial, on exceptions ordered to be heard at general term in the first ijist^uco

Action by John McCormack against the mayor, aldermen, and commonalty of the city of New York. Judgment for defendant. The action is to recover $246.86 for services alleged to have been rendered by plaintiff, as district superintendent in the department of street cleaning, between April 26, 1894, and March 5, 1895, both dates inclusive.

Action by James T. Doyle against J. Gilbert White to recover damages for injuries sustained while in defendant’s employ. The complaint was dismissed, and plaintiff moves for a new trial. Denied.

Action by John Canavan and others, subcontractors, against Thomas Dwyer and others, to foreclose a mechanic’s lien on funds in the hands of the comptroller of the city of New York, due to defendants by virtue of a contract entered into between them and said city. Laws 1878, c. 315, and amending acts; Consolidation Act, §§ 1824, 1838. There was a judgment in favor of plaintiffs, and defendant Dwyer appeals. Reversed, unless plaintiffs remit part of recovery.

Action by Lena Kopetzky against the Metropolitan Elevated Railway Company and another, to enjoin the operation of defendants’ elevated railway in front of plaintiff’s premises. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.

Action by Edward Spencer Hall against Herter Bros., a domestic corporation, to recover commissions under an oral contract. From a judgment on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>1. Wills—Action to Determine Validity of Probate—Parties.</p> <p>The “persons interested in a will,” who may bring an action to determine the validity of the probate thereof (Code Civ. Proe. § 2653a, added by Laws 1892, c. 591), are not only those named as beneficiaries in the will, but may be heirs excluded from its provisions.</p> <p>2. Same—Wills of Both Realty and Personalty.</p> <p>Code Civ. Proe. c. 18, tit. 3, art. 2, §§ 2647-2653, provide for a proceeding in the surrogate’s court, to be commenced within one year, to revoke probate of a will of personal property; and unless revoked in such proceeding the probate is conclusive as to personal property, but only prima facie so as to real property. Laws 1892, c. 591, added section 2653a, providing that “any person interested in a will” may bring an action, within two years, to determine the validity of the probate thereof; that “all devisees, legatees and heirs of the testator and other persons interested * * * must be parties”; and that the verdict therein “shall be conclusive as to real and'personal property.” Held, that section 2653a relates to wills of both real and personal property, and so far as it modifies and extends the remedy provided in other sections the amendment controls.</p>

Application by Lizzie Ryan O’Connor to compel payment to her of a legacy contained in the will of Mary A. Edson, deceased. From an order directing the payment, the executrix appeals. Affirmed.

Action by Charles I. Berg against Henry Parsons. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed. For former report, see 31N. Y. Supp. 1091.

<p>Appeal from surrogate’s court, Erie county.</p> <p>Proceeding for the collection of the collateral inheritance tax on the estate of Caroline C. Moore, deceased. From a decree requiring the payment of $6,055.65 and interest, the executors appeal. Modified.</p>

<p>Appeal from special term, Monroe county.</p> <p>Action by Matilda Schneider against the city of Rochester. From an order enjoining defendant from proceeding to have commissioners appointed to appraise plaintiff’s damages by reason of the condemnation of certain property for street purposes in said city of Rochester (29 N. Y. Sunp. 1005), defendant appeals. Reversed.</p>

<p>At chambers. Motion by plaintiff for a preliminary injunction. Denied.</p>

From a decree refusing to admit the will to probate, Annie C. Whitney, decedent’s widow, and others, proponents of the will, appeal. Reversed.

Certiorari by the Bleecker Street & Fulton Ferry Eailroad Company to review the action of Edward P. Barker, and others, commissioners of taxes and assessment of the city and county of New York, in assessing the personal property of relator for personal taxation for the year 1891. A decision vacating the assessment was affirmed (32 N. Y. Supp. 990), and relator moved for a retaxation of costs as taxed by the clerk.

Action by Harvey H. Savage, an infant, by James H. Laird, his guardian ad litem, against William D. Faulhaber, for personal injuries. Judgment was rendered on a verdict in favor of plaintiff, and defendant appeals. Affirmed.

Action by Susan Hamilton, as administratrix, against Catherine Brennan on a promissory note. From a judgment dismissing the complaint, entered on the decision of the judge after a trial without a jury, plaintiff appeals. Affirmed.

Action by the New York Central & Hudson River Railroad Company against Louis F. Haffen, as commissioner, and William L. Strong, mayor, and others, forming the board of street opening and improvement of the city of New York, to enjoin defendants from filing certain maps showing a proposed laying out of certain streets and proposed widening of 161st street. From an order denying a motion to continue a temporary injunction, and vacating the same, plaintiff appeals. Affirmed.

Action by Hannah Nirdlinger and others against Meyer A. Bernheimer and others to enforce certain trusts arising out of sales made by defendant Isaac Bernheimer of certain trust lands in the state of Minnesota. Judgment was entered in favor of defendants, Meyer A. Bernheimer and others, and defendants Augusta Nirdlinger and others appeal. Affirmed.

Certiorari by James O’Brien to review the action of Henry H. Porter and others, composing the board of charities and correction of the city of New York, in removing relator from the position of day keeper in said department after charges preferred. Dismissed.

Action by William S. Williams against Robert Lindblom and others. From an order confirming the report of a referee appointed to assess damages, and from a judgment entered on said report and order, plaintiff appeals. Affirmed. This action was begun June 17, 1890, for an accounting between partners, and was referred to a referee to hear and determine.

<p>Action by Francis Higgins, as receiver of the North River Bank, against Charles C. Worthington, as indorser of certain notes held by said bank at the time plaintiff was appointed receiver. A verdict was rendered in favor of plaintiff, and defendant moves for a new trial on .exceptions ordered to be heard at general term in the first instance. Granted.</p>

Application by Augustus M. Field for a writ of mandamus to compel the board of aldermen of the city of New York to reconvene, and reapportion the assembly districts of the city and county of New York. The writ was refused, and relator appeals. Affirmed.

Action by Bernard McLain against the British & Foreign Marine Insurance Company, Limited, on a policy of marine insurance. From a judgment entered on a verdict in favor of plaintiff for the full amount of the policy, defendant appeals. Affirmed.

Action by Philip Bello, as administrator, against the Metropolitan Street-Railroad Company to recover damages for alleged negligence causing the death of plaintiff’s intestate. The complaint was dismissed, and plaintiff moves for a new trial on the minutes. Denied.

<p>Action by Elie Weill and others against Henrietta Hecht on a guaranty. Judgment for plaintiffs.</p>

Action by Margaret Elizabeth Rouge against Gabriel Mark Rouge to recover damages for the alienation of her husband’s affections. Motion to vacate the attachment against property. Denied.

Action by Edward H. Van Ingen against the Mail and Express Publishing Company for libel. From a judgment entered on a verdict in favor of plaintiff for $4,000, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by Adolf Green against John R. Martinez Heruz, as executor, and others, to recover the amount of a deposit made on a contract for the sale of certain real estate, situate on the south side of 107th street, between 2d and 3d avenues, and known as “No. 212 Bast 107th Street,” in the city of New York, and counsel fees incurred in the examination of the title; the ground alleged being that defendant could not give a good and marketable title to the premises.

Action by Anna S. Seguine against George Spaeth on a contract between plaintiff’s assignor and defendant providing for the payment of certain commissions, provided that such arrangements were made as would allow work to proceed on the construction of plaintiff’s building, which had been suspended for want of funds, and in consequence of liens, judgments, etc., on the building. From a judgment for defendant, rendered by the justice without a jury, plaintiff appeals. Reversed.

<p>Appeal from city court, general term.</p> <p>Action on a note by the Western National Bank of the City of New York against William W. Flannagan. From a judgment of the general term of-the city court (32 N. Y. Supp. 1151) affirming a judgment for plaintiff rendered on a verdict directed by the court, defendant appeals. Affirmed.</p>

<p>1. Entry op Judgment—Clerical Error.</p> <p>A justice of the peace entered judgment for defendant for damages for 85.05; costs, 35 cents. In the return on appeal from the judgment, it was stated that the amount entered as damages was in reality costs, and the items making up the amount were given. Held, that the entry, “damages, 85.05; costs, 35 cents,” was a mere irregularity or clerical defect, which could be disregarded.</p> <p>3. Justice op the Peace—Judgment—Entry Forthwith.</p> <p>Entry of judgment within 24 hours after verdict is an entry “forthwith,” as required by Code Civ. Proc. § 3015.</p>

Action by Willcox & Gibbs Sewing Machine Company against Jehiel W. Himes to recover for the use of certain machines let to the firm of Himes & Vail, whom defendant succeeded. A verdict was directed for plaintiff, and defendant moves for a new trial on exceptions ordered to be heard at general term in the first instance. Granted.

Action by Caroline B. Van Bokkelen against the Massachusetts Benefit Life Association to procure an adjudication that certain certificates of membership issued to one Spencer D. C. Van Bokkelen, plaintiff’s father, and by him assigned to plaintiff, are valid and subsisting obligations of defendant, and to compel defendant to reinstate said Spencer D. C. Van Bokkelen in his membership, which had been declared forfeited for nonpayment of assessments.

Action by Andrew L. Fennessy against William F. Ross to recover damages for breach of contract. From a judgment overruling a demurrer to the complaint, defendant appeals. Reversed.

Action by the Union Square Bank of the City of New York against Charles Hellerson and others on a promissory note. From a judgment entered on a verdict in favor of plaintiff, rendered by direction of thé court, defendant Hellerson appeals. Affirmed.

Action by Stevens Yoisin against the Commercial Mutual Insurance Company on a policy of marine insurance. From a judgment dismissing the complaint, entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals. Reversed.

<p>Decree op Separation—Revocation.</p> <p>A decree of separation is not revoked by a reconciliation of the parties, without an order of revocation from the court rendering it, as provided by Code Civ. Proc. § 1767.</p>

<p>Attachment—Affidavit.</p> <p>An- affidavit for attachment, merely alleging what a third person had told affiant, is insufficient; it not being stated that he had attempted to get the affidavit of such person, and that he had refused, but merely that he was a friend of defendant, and would not voluntarily make an affidavit.</p>

Action by Laura Cunningham against John Scott on a promissory note. A verdict was rendered in favor of plaintiff, and defendant moves for a new trial on exceptions ordered to be heard at general term in the first instance. Granted.

<p>1. Statutes—Repeal—Omission fbom Amending Act.</p> <p>Laws 1895, c. 416, amending Laws 1890, c. 568, § 130, by omitting from the amended section a provision making a county liable for a part of the expense of constructing and maintaining bridges in its several towns, unconditionally repealed such provision.</p> <p>2. Bridges—Liability of County to Towns.</p> <p>Certain towns tiled claims against their county under Laws 1890, c. 508, § 180, providing that when the whole expense in any town for any one year should exceed one-sixth of 1 per cent, of the assessed valuation of the property of the town, the county should pay not less than one-third of the excess. The claims were rejected by the county supervisors, and an agreed submission of facts for a test case was not tiled till after such provision of section 130 had been unconditionally repealed. EM, that the claims were not perfected within Laws 1892, c. 677, § 31, providing that the repeal of a statute shall not affect any right accrued, or action or proceeding commenced, thereunder, prior to its repeal.</p> <p>3. Same—Proceedings before Supervisors.</p> <p>Where the representatives of such towns participated in the proceedings of the county board postponing, without prejudice, the consideration of such towns’ claims against the county, and adopting on the same day a resolution asking the legislature to repeal the statute under which such claims arose, the towns will be presumed to have had notice of the proceedings.</p> <p>4. Statutes—Repeal—Revival by Construction.</p> <p>Laws 1890, c. 568, § 130, made a county liable for the construction of bridges in its towns as well as for those across its boundary lines, and provided one procedure for securing the allowance of claims in both cases. Laws 1895, c. 416, repealed the first ground of liability, left the county liable for bridges over its boundary lines, and retained the old procedure as necessary to carry out this provision. EM, that the retention of the provisions for the allowance of claims did not save those arising under the portion of the act omitted which were not perfected before its repeal.</p>

<p>Wills—Of Married Women—Revocation by Subsequent Marriage.</p> <p>Married women having, under Laws 1807, c. 782, the same power as men to dispose of their property by will, a will executed by a married woman during coverture is not revoked by her subsequent marriage.</p>

Action by Richard K. Fox against the Rural Home Company, Limited. A verdict was rendered in favor of plaintiff, and defendant moves for a new trial on exceptions ordered to be heard at general term in the first instance. Granted.

Action by Hathan Fernbacher against Theodore Roosevelt and others, constituting the board of police commissioners of the city of Hew York, to enjoin them from printing names of candidates for state offices in any column upon the official ballot under the name or emblem of the “Hew York State Democracy.” An injunction was granted, and defendants appeal. Affirmed.

Action by the Edison Electric Illuminating Company and others against William B. Biker, impleaded, to set aside certain transfers of moneys, notes, and accounts, made by the defendant William H. Biker to his father, the other individual defendant, on the ground of fraud. Judgment was entered in favor of plaintiffs, and defendant William B. Biker appeals. Affirmed.

<p>Application by John P. Madden for an injunction to restrain the county clerk of Queens county from printing the names of the nominees of the Democratic party for state offices in the party column of the Gleason faction in Long Island City, which nominated a local ticket under the name of the “Regular Democratic Party,” and adopted the emblem of an ax. Denied.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Julia A. Shaw against Agnes Clare Bryant, Amanda I.. Bryant, and Carolan O’Brien Bryant. Judgment was rendered in favor of plaintiff, and defendants appeal. Modifie'd.</p>

Action by James Bradley, as administrator of the estate of James Bradley, deceased, against the Second Avenue Bailroad Company, to recover damages for injuries causing the death of plaintiff’s intestate. From a judgment for $3,313.25 entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, ^defendant appeals. Beversed.

Application by the New York & Long Island Bridge Company against Lenox Smith and others, relative to acquiring title to certain real property. From a judgment of condemnation and an order appointing commissioners of appraisal the property owners appeal. Affirmed.

Action by the National Wall Paper Company against Robert F. Hobbs to restrain defendant from violating an alleged contract made by him with plaintiff. From an order continuing a temporary injunction, defendant appeals. Affirmed.

<p>Appeal from special term, New York county.</p> <p>Action by the National Shoe & Leather Bank of the City of New York against Amelia F. Baker and Robert B. Merritt. An order of. reference was granted, and defendants appeal. Affirmed.</p>

Action by Max Cohen, as administrator of the estate of Solomon Cohen, deceased, against Herman Jarecky, impleaded with others, to recover damages for negligence causing the death of plaintiff’s intestate. From an order denying a motion to make the complaint more definite and certain, defendant appeals. Reversed.

Action by Daniel Crowell, as administrator of Elizabeth Crowell, deceased, against Howard Thomas, to recover damages for alleged negligence causing the death of plaintiff’s intestate. Plaintiff was nonsuited, and moves for a new trial on exceptions ordered to be heard at general term in the first instance. Granted.

Action by Abbié S. Nash, Anna S. Nash, and Charles F. Ulrich, suing on behalf of themselves and all other stockholders of the Hall Signal Company who shall come in and contribute to the expenses of this action, against the Hall Signal Company and others, to compel defendants to account for and pay the damages resulting from ■certain wrongful acts of defendants. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiffs appeal. Affirmed.

<p>Appeal from circuit court, New York county.</p> <p>Action by Francis Higgins, as receiver-of the North River Bank, in the city of New York, against James J. Ridgway, on a promissory note. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, made on the minutes, plaintiff appeals. Affirmed.</p>

Petition by Charles H. Corbett and William H. Hart, judgment creditors of Ghauncy L. Sheldon, deceased, for an order directing A. J. Graham, as executor of the will of said Sheldon, to pay petitioners’ judgment. The application was granted, and the executor appeals. IÍ6V6rS6CL

Action by John H. Millard against the Holland Trust Company for breach of contract. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Affirmed.

Action by Thomas Hay against Pamelia B. Cole. A judgment entered by confession in favor of plaintiff was set aside on the motion of Frederick G. Schulze, and plaintiff appeals. Reversed.

Action by Edith Mason Faxon against John Mason and another to set aside a general assignment made by defendant John Mason to defendant John Oscar Ball. A judgment setting aside the assignment was modified and affirmed. 27 N. Y. Supp. 1025. An order was afterwards made directing the receiver, William H. Ricketts, to pay over moneys in his hands, and defendant Mason appeals. Affirmed.

<p>’ 1. Contracts—Conditions Precedent.</p> <p>A provision in a building contract, that the contractor shall furnish to the owner satisfactory evidence that materials furnished are fully released from all liens before he shall receive the sums due on final payment, is a condition precedent to a recovery under the contract.</p> <p>2. Same—Action on—Performance of Conditions.</p> <p>In an action for money alleged to be due under a contract containing a condition precedent, where plaintiff fails to allege performance of the condition, or to show facts excusing it, defendant may show a breach of the condition without having pleaded it.</p> <p>8. Same—Waiver.</p> <p>Defendant, in an action on a contract, does not waive performance by plaintiff of conditions precedent by pleading payment.</p>

Application by Theodor Gr. Lurman for mandamus to the Coffee Exchange of the City of New York to restore petitioner to full membership in said exchange. From an order denying the writ, petitioner appeals. Reversed. In July, 1894, the petitioner’s firm entered into a contract with Messrs. W. H. Grossman & Bro. for the purchase of coffee of certain average grade.

Summary proceedings by John Q. A. Ward against Homer Burgher. A final order in favor of plaintiff was affirmed by the county court, and defendant appeals. Affirmed.

Ejectment for nonpayment of rent by Caroline Overbagh and another against Minard Oathout. From an-order in part denying defendant’s motion to have the complaint made more definite and certain, and to have the separate causes of action therein separately stated, defendant appeals. Modified.

Application by Lott Delaney for a writ of certiorari to the board of fire commissioners of the village of Saratoga Springs to compel the reinstatement of relator as a member of the fire department of said village. Judgment for relator.

<p>Corporate Stock—Taxation in Foreign State.</p> <p>A New Jersey corporation was organized to purchase and did purchase a large part of the stock of an Illinois corporation. It had an office in New York, where it received dividends declared on the stock of the Illinois corporation owned by it. Its directors met at such office, and dividends declared on its own stock by its directors were distributed to its own stockholders. It was entirely independent of the Illinois corporation. Reid, that it was, as a foreign corporation, subject to taxation in New York.</p>

<p>Appeal from special term, Montgomery county.</p> <p>Action by T. H. Benton Crane, as receiver of the property of Isaac C. Shuler, against Elizabeth N. Shuler and others. Judgment for defendants, and plaintiff appeals. Affirmed.</p>

Action by John H. Titus, administrator of Alexander Whitford, deceased, against the town of New Scotland. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed.

Action by Sarah Kirby against the president, managers, and company of the Delaware & Hudson Canal Company and Dell Brown for personal injuries received in consequence of the explosion of a hot-water heating apparatus in an hotel of which defendant Brown was owner and proprietor, and in which defendant railroad company, by permission of defendant Brown, had a ticket office; plaintiff being at the time of the accident in the sitting room of the hotel, which was from time to…

Lawrence county. Action by the Hilton Bridge Construction Company against the Gouverneur & Oswegatchie Railroad Company and the New York Central & Hudson River Railroad Company to foreclose a mechanic’s lien. From a judgment entered on an order sustaining defendants’ demurrer to the. supplemental complaint to bring in other parties defendant, plaintiff appeals. Reversed.

<p>.Appeal from special term, New York county.</p> <p>Action by the United States Cordage Cotnpany against the William Wall’s Sons Rope Company and others to enjoin the defendants from using the name of William Wall’s Sons separately or conjunctively with other words. From an order granting an injunction pendente lite, defendants appeal. Modified.</p>

Action by Robert M. Curtiss against John C. Mott to recover $600 alleged to be due to plaintiff for services rendered by him as a real-estate broker. Prom a judgment in favor of plaintiff for $691.64, entered on a verdict, defendant appeals. Reversed.

Action by John Dohn against John Dawson and William Archer to recover damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal. Affirmed. For decision on appeal from an order dismissing the complaint, see 32 N. y. gupp. 59.

<p>Appeal from circuit court.</p> <p>Action by Willis T. Honsinger and others against John Mulford. There was a judgment in favor of plaintiffs, and defendant appeals. Affirmed.</p>

<p>1. Street-Car Company—Failure to Run Cars—Violence as Excuse.</p> <p>A street-car company cannot excuse a failure to run its cars on the ground that it has been prevented by violence from doing so, where it does not appear that the civil authorities have failed to protect it fully in its efforts to operate its road.</p> <p>2. Same—Failure to Get Employes.</p> <p>The fact that a street-car company cannot get employés to accept its terms gives it no right to stop running its cars.</p> <p>8. Mandamus—Answer—Alternative Writ.</p> <p>Under Code Civ. Proc. § 2070, relative to writs of mandamus, when the answer to the application raises an issue of fact an alternative writ only can be granted in the first instance.</p>

Action by James E. Clement against the Congress Spring Company to recover damages for having been discharged from defendant’s employment before the expiration of the term for which plaintiff was hired. From a judgment entered on a verdict in favor of plaintiff, defendant appeals. Affirmed.

Action by Edward Butcher, Jr., against John L. Henning and another, to recover money paid to defendants as attorneys. From a judgment for defendants, plaintiff appeals. Affirmed. This action arose out of a previous suit brought by Bullard & Howe, plaintiff’s assignors, against James H. Kenyon and Ellen M. Kenyon, in which the Kenyons recovered judgment, which was affirmed on appeal to the general term, and a motion for leave to go to the court of appeals was denied.

Action by David Van Schaick against Joseph H. Ramsey to recover for the alleged conversion of corporate stock. From a judgment for plaintiff, an appeal was taken by defendant, pending which he died, and thereupon Charles H. Ramsey, as executor, was substituted as defendant in his place. Reversed.

<p>1. Cbiminal Law—-Instbuctions— Credibility op Witness.</p> <p>An instruction in a criminal case that one of two witnesses whose evidence is contradictory has told a falsehood, is erroneous, as invading the province of the jury.</p> <p>2. Same—Assuming Pact.</p> <p>In a criminal case, where a witness, after testifying that defendant used a certain expression, corrects his testimony by stating that he does not remember that he used that exact expression, it is error to instruct that he used such expression, and that it means a good deal.</p> <p>8. Same—Comments on Testimony.</p> <p>In a criminal case, where witnesses for the prosecution testify to a criminating admission by defendant, but state that at the time they believed he was joking, and defendant testifies that he was joking, it is error for the court, by comments on the evidence in charging, to show that he believes that it was not in joke.</p> <p>4. Evidence—Documents.</p> <p>In prosecution for abduction, a record kept by a former teacher of the complainant is admissible to, prove the complainant’s age, after the teacher has testified that when pupils came to her she entered their ages as given by them in the record, and that on looking at it she is unable, independently of it, to remember what complainant said her age was.</p> <p>5. Witness—Examination—Assumption op Pacts.</p> <p>The admission of a question to a witness, which assumes as proven by the evidence a material fact not proven, is error.</p>

<p>Deed—Possession—Presumption oe Delivery.</p> <p>The execution of a deed, and its possession by the grantee, raise the presumption that it was delivered on the day of its acknowledgment; and where there is no direct evidence that it was not delivered, or that the delivery, if any, was procured by the undue influence of some one interested in the grant, it is error to submit the question of delivery to the jury.</p>

Action by Louise Hoff, as administratrix of Philibertha Legry, deceased, against Jean Coumeight for conversion. From a judgment of the general term of the city court (32 H. Y. S. 1144), affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals. Affirmed.

Action by John M. Canda and John P. Kane against John Casey on a quantum valebat for building material sold and delivered. Defendant interposed a counterclaim for damages for breach by plaintiff of an alleged express contract for the sale and delivery of such building material. There was a judgment in favor of plaintiffs, and defendant appeals. Reversed.

Action by Maud A. Griswold against Meta J. B. Caldwell, individually and as trustee under the will of Stacy Pitcher, deceased, and others, to foreclose a mortgage. Pending the action Meta J. B. Caldwell resigned the office of trustee, and Franklin Bien was appointed by the court as substituted trustee. From an order granting the motion of the substituted trustee to be brought in as a party defendant, plaintiff appeals. Reversed.

Action by Louise Knorr against Andrew J. Bates and others. From a judgment and order overruling a demurrer to the complaint (33 Ff. Y. Supp. 691), defendants appeal. Affirmed.

Action by Sarah Emily Smith, administratrix, against the Metropolitan Street-Railway Company for damages for death of her intestate. Defendant moves to reduce damages in the complaint. Denied.

Action by Henry H. Heert and another against Stephen V. R. Cruger to reform a lease. There was a judgment in favor of plaintiffs, and defendant appeals. Modified.

Action by Charles Kummer against the Christopher & Tenth Street Railroad Company for personal injuries. From a judgment entered on the verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by Patrick Baftery a'gainst the Central Park, North & East Biver Bailroad Company for damages for personal injuries. From a judgment on the verdict for the plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by Hubert W. Martin against Mary E. Coleman. From a judgment of the city court (34 H. Y. Supp. 1143) affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals. Affirmed.

Action by Frank N. Dodd against Permelia M. D. Averill. From an order of the city court affirming an order vacating an attachment issued on the ground of the nonresidence of defendant, plain tiff appeals. Dismissed.

<p>Summons—Service on Corporation—Officer de Facto.</p> <p>Service of summons on the president de facto of a defendant corporation gives the court jurisdiction of such defendant corporation; and a subsequent adjudication, in a proceeding to which plaintiff was not a party, that the person served was not president de jure, is ineffectual to divest or defeat jurisdiction.</p> <p>(Syllabus by the Court.)</p>

Action by Jacob Kantrowitz against Isaac Levin and Hyman Levin, copartners under the firm name of H. & I. Levin, on two promissory notes for $600 each, made and issued by defendant Hyman Levin in the firm name.

Action by Lyman G-. Bloomingdale and others against Henry Steubing for trespass to real property. From an order of the city court reversing the clerk’s taxation of costs, defendant appeals. Reversed.

Action by William E. Wamsley against Thomas A. Darragh on a promissory note. From a judgment of the city court, affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.

Action by Kate Lawlor, as administratrix, against Thomas Henry French, to recover damages for the wrongful death of plaintiff’s intestate. There was a verdict in favor of plaintiff, and defendant moves for a new trial on exceptions ordered to be heard at general term in the first instance. Denied. In the exhibition of the “Prodigal Daughter” play, a number of horses took part. From one of them, plaintiffs intestate received a kick, which it is alleged, killed him.

Action by the Christie Manufacturing Company against the Travers Bros. Company to recover a balance alleged to be due plaintiff for work, labor, and services, and materials furnished. The pleadings were oral, and the defenses pleaded were a general denial, payment, and damages for breach of contract. A judgment in favor of plaintiff was rendered by the justice without a jury, and defendant appeals. Reversed.

Action by Mary L. Gilbertson against the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Reversed.

Action by Edith Vowell against the Twenty-Third Street Railway Company for damages for injuries resulting from defendant’s negligence. From orders denying defendant’s motion to amend the clerk’s minutes by inserting, after the word “dismissed,” the words “on the merits,” and granting plaintiff’s motion to vacate the judgment, defendant appeals. Reversed.

Action by Emil Forster and another against John Wilshusen to> rescind a contract for the purchase of real property on the ground of fraudulent misrepresentations as to the amount of rentals and to recover payment under the contract. There was a judgment in favor of plaintiffs, and defendant appeals. Affirmed.

Application by Joseph B. Bakins against Theodore Roosevelt and others, as police commissioners of the city of New York, to convene and order that relator be relieved and dismissed from the police force, and placed on the roll of the police pension fund. The application was denied (34 N. Y. Supp. 228), and relator appeals. Affirmed.

<p>Mechanics’ Liens—Joint Contract—Separate Liens.</p> <p>Where two contractors jointly undertake mason and carpenter work, and subsequently agree, with the owner’s assent, that they will divide the compensation and the work, and each pay his own men, each may enforce a separate lien as a subcontractor.</p>

Action by Henrietta Hecht against Edward O. Heerwagen for rent. The rent was payable in advance on the 1st day of each month, and on the termination of the tenancy, on August 12th, plaintiff sued for the entire rent of that month.

Action by Johanna Mahoney against Emma Mahoney on an alleged agreement of the defendant to pay to plaintiff the sum of $50 per month for and during plaintiff’s life. A judgment in favor of defendant was rendered by the justice without a jury, and plaintiff appeals. Affirmed.

Summary proceedings by Henry Constant against John F. Barrett. A final order dismissing the petition was reversed (34 N. Y. Supp. 163), and defendant moves for leave to appeal to the court of appeals. Denied.

Action by Patrick Dunn and Ann Dunn against Charles Wehle. An order discontinuing the case without costs was affirmed by the city court (33 N. Y. Supp. 555), and defendant appeals. Reversed.

Action by Lucy E. Blake and Francis A. Williams against Nathan J. New witter to foreclose a mechanic’s lien. From an interlocutory judgment in favor of plaintiffs, defendant appeals. Affirmed.

Action by George W. Everitt against the New York Engraving & Printing Company to recover commissions alleged to be due for securing orders for work for defendant. A judgment in favor of plaintiff was rendered by the justice without a jury, and defendant appeals. Affirmed.

Action by Frederick Akers against the mayor, etc., of New York. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by James Kettle against John Turl and others. A motion by plaintiff for a new trial on exceptions ordered to be heard at general term in the first instance was denied (34 H. Y. Supp. 75), and plaintiff now moves for a resettlement of the case. Denied.

<p>Action by Allen J. Arnold and others against James Fee and others.</p>

<p>Action by Henry S. Anderson against Edward P. Dickenson.</p>

<p>Action by William A. Barwick against Edgar W. Youmans. Motion for leave to appeal to the court of appeals. See 34 N. Y. Supp. 140, 143.</p>

<p>Action by the Boston & Providence Dispatch Express Company against the Metropolitan Street-Railway Company for injuries to plaintiff’s horse. A judgment in favor of plaintiff was reversed (35 N. Y. Supp. 134), and plaintiff moves for a reargument.</p>

<p>Action by Edward K. Clark against the city of Binghamton and the board of street commissioners of the city of Binghamton.</p>

<p>Action by Nathan Corwith, Jr., Arthur W. Blake, John P. Marquand, Joseph E. Brown, George R. Harris, Howland Davis, Clarence F. Birdseye, Joseph Gillet, and Elliott F. Driggs against Frederick M. Stetler and Henry I. Stetler.</p>

<p>Action by Frederick L. Colwell against Genevieve R. Col-well.</p>

<p>Action by William A. Copp, as executor, etc., against the Home Insurance Company.</p>

Action by Emily A. Emerson against Jesse M. Emerson, Jr., for divorce. From an order denying plaintiff’s motion for an allowance for counsel fees, to resist a motion made by defendant for a reduction of alimony, plaintiff appeals. For former reports, see 22 N. Y. Supp. 684, and 26 N. Y. Supp. 291, 292.

<p>Action by Israel Gerstein against Robert W. Fisher. From an order denying a motion to serve a supplemental answer, defendant appeals. Affirmed.</p>

<p>Action by Isabella Georgi against Frank Alexe and another.</p>

Action by William Halladay against H. I. Nicholas and others. A judgment of the general term of the city court (29 N. Y. Supp. 1144) affirming a judgment entered on a verdict in favor of plaintiff was reversed (34 N. Y. Supp. 104), and plaintiff moves for leave to appeal to the court of appeals.

<p>Action by Arnold Heerwagen and another against Charles L. Ritzmann. Motion for reargument of appeal.</p>

<p>Action by John Heerdegen against the American Surety Company of New York.</p>

<p>Action by Charles F. Holm against Parmele-Eccleston Lumber Company.</p>

Action by Thomas F. Huffington, as assignee, etc., of William T. Cunningham and others, against John Farrel and John J. Coger, as executors, etc., of Benjamin F. Judson, deceased. Appeal from judgment entered on verdict, and from order denying motion for new trial.

<p>Action by Betsey ICetchum against James A. Holden, as administrator with the will annexed of Austin W. Holden, deceased.</p>

<p>Action by James Kettle against John Turl and others. Motion for reargument of appeal. . See 34 N. Y. Supp. 75.</p>

<p>Action by Frank McClanathan and another against William Friedel and another.</p>

<p>Action by Berhard Kreizer against John T. Allaire and Thaddeus H. Allaire.</p>

Action by the mayor, etc., of city of New York, against Frank A. Bigelow. A judgment for defendant was affirmed (34 N. Y. Supp. 92), and plaintiff moves for leave to appeal to the court of appeals.

<p>Action by the Mason Stable Company, Limited, against Margaret Lewis.</p>

<p>Action by Julia T. Munroe against Jacob Crouse and others.</p>

<p>Action by Anna B. Neal against the city of Rochester.</p>

<p>Appeal from special term, New York county. Action by the New York Bank-Note Company against the Hamilton Bank-Note Engraving & Printing Company and others to restrain defendants from using a printing press bought by it from the Kidder Press Manufacturing Company. From an order denying a motion for leave to renew a motion for an injunction pendente lite, and from such an injunction, plaintiff appeals. Affirmed. For former reports, see 30 N. Y. Supp. 1133, and 31 N. Y. Supp. 1060.</p>

<p>Action by Frank D. Perry and another against the Lehigh Valley Railway Company.</p>

<p>Action by Joseph Sawyer, Joseph D. Sawyer, John B. Manning, and Thomas F. Patterson against Daniel E. Sickles, as sheriff of the city and county of New York.</p>

<p>Action by Robert A. Serrell against John Brady.</p>

<p>Action by Abraham Schwarz against the Brooklyn Heights Railroad Company.</p>

<p>Action hy Thomas Shaw against Tabernickle Baptist Church.</p>

Action by Susie Sheldon against Cornelia Mott apd others. From an order substituting Alonzo P. Strong as attorney of record for the plaintiff in the action, in the place and stead of Frank H. Short, said Frank H. Short appeals.

<p>Action by Allan Lee Smidt against Leo C. Dessar. Motion for reargument of appeal, or for leave to appeal to the court of appeals. See 34 N. Y. Supp. 158.</p>

<p>Action by James M. Sinclair and others against Robert A. Hollister, impleaded, etc.</p>

<p>Action by the Western National Bank of the City of New York against William W. Flannagan. Motion for reargument. For decision on appeal, see 35 N. Y. Supp. 848.</p>

<p>Actioii by Joseph H. Sulzbacker against J. ■Cawthra & Co., Limited.</p>

<p>Action by William E. Uptegrove and Jerome P. Uptegrove against the Central Railroad Company of New Jersey.</p>

<p>Action by Fred H. Williams against Charles C. Dodge.</p>

<p>Action by Maria L. Winterson against Hector M. Hitchings and another. Motion for resettlement of judgment rendered at general term. See 34 N. Y. Supp. 183.</p>

<p>Action by Charles A. Winch against the Third Avenue Railroad Company. Motion for reargument or for leave to appeal to the court of appeals. See 33 N. Y. Supp. 615.</p>