Volume 36 — New York Appellate Division Reports

Appeal by the defendant,. The Standard Gas Light Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of January, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of January, 1898, denying the defendant’s motion for á new trial made upon the minutes.

. Appeal by the plaintiff, Frederic W. Rhinelander,- Jr., and by the ■defendants Mark T. Cox, as assignee for the benefit of creditors of •Charles Sands and Joseph Bond, composing the firm o'f Samuel S. Bands & Co., and Sarah de Courcey Parrish, from so much of a judgment of the Supreme Court, entered in the office of the- clerk ■of the county of New York on the 27th day of July, 1897, upon the report of a referee, as awards payment to the defendant Ayer •of any portion of…

Appeal by the plaintiffs, Miles M. O’Brien and James G. Cannon, 'as receivers of the Madison Square Bank, from a judgment of the Supreme' Court in favor of the defendant, entered in the office of the clel’k-of the county of New York on the 1st day of June, 1898, upon the report of a referee dismissing the complaint upon the merits.

Appeal by the defendant, Jabez B. Watkins, from an order of the Supreme. Court, made at the New York Special Term and entered'in the office of the clerk of the county of New York on the 5th day of August, 1898, denying his motion to vacate an order for his examination in proceedings supplementary to execution.

Appeal by the defendant, William G. Mulligan, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of May, 1898, upon the decision of the court rendered after a trial at the New York Special Term, overruling the said defend-, ant’s demurrer to the plaintiff’s amended complaint, and also (as stated in the notice of appeal) from the order directing said judgment to be entered.

<p> Commissioner of street cleaning of the borough of Manhattan—power of, to remove a member of the uniformed force. </p> <p>Under section 537 of the Greater New York Charter (Laws of 1897, chap. 378) the commissioner of street cleaning of the borough of Manhattan may, upon evidence satisfactory to him that a member' of the uniformed force of that department has been guilty of neglect of duty, dismiss him from the force.</p> <p>That section, being a re-enactment of the provisions of the Street Cleaning Act (Laws of 1892, chap. 269), chapter 119 of the Laws of 1888, as amended by chapter 67 of the Laws of 1890, and chapter 577 of the Laws of 1892, and chapter 312 of the Laws of 1884, as amended by chapter 821 of the Laws of 1896, relating to veterans, do not apply to the members of the. uniformed force of that department.</p>

Motion hy the plaintiff, Bernard Wilson, as grantor for the benefit of John Lefoy Brower, grantee, for a new trial made upon a case containing exceptions, ordered to he heard at the Appellate Division in the first instance, upon the verdict of a jury, rendered by direction of the court after a trial at the New York Trial Term.

Appeal by The Long Island Home and James Egan from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 17th day of Hovember, 1898, vacating an order which adjudged Julia H. Egan to be insane, and committed her to The Long Island Home, and discharging the said Julia H. Egan from the custody of the said home.

Appeal by the plaintiff, The New York Board of Fire Underwriters, from a judgment of the Supreme Court in favor, of the defendant, entered in the office of the clerk of- the county of New York on the 1st day of February, 1898, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case, upon a trial before the court and a jury at the New York Trial ■Term, and also from an order entered in said clerk’s office on the 25th day of January,…

Appeal by the defendant, Clarence Tucker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yew York on the 26th day of February, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of February, 1898, denying the defendant’s motion for a new trial made upon the-minutes.

Appeal by the defendant, The Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st day of March, 1898, upon the verdict of a jury for $9,000, and also from an order entered in said clerk’s office on the 7th day of April, 1898, denying the defendant’s motion for a new tidal made upon the minutes.

Appeal .by Aaron A. Fishel, surety, from an order of the Court of General Sessions of the Peace in and for the city and county of New York, entered in the office of the clerk of said court on the 24th day of Hay, 1.898, denying his motion for an order vacating the forfeiture of the recognizance given by Carlos E. Rich,, as prim cipal, and by the said Aaron A. Fishel, as surety.

Appeal by the defendants, William H. Simonson and others, from a judgment of the Supreme .Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of February, 1898; upon the report óf a referee.

Appeal by the defendant, The Atlantic Trust Company, from a-judgment of the Supreme Court in favor of the plaintiff, entered, in the office of the clerk of the county of New York on the 7th day of June, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day -of June, 1898,. denying the defendant’s motion for a new trial made upon the. minutes.

Appeal by Emita W. May and another, as executors, etc., of Lewis May, deceased, from an order or decree of the Surrogate’s ’Court in the county of Mew York, entered in said Surrogate’s Court on the 16th day of September, 1898,.requiring'the said Emita W., May and Aaron Wolff, Jr., as executors, etc., of Lewis May, deceased, to file an account of the proceedings of the said Lewis May, as executor of the estate of Herman Schlesinger, deceased, so far only as to permit Solomon…

<p>Appeal by the defendant, J. Numa Roussel, as ancillary executor of William Devlin, deceased, appearing for the purposes of the motion only, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of December, 18.98, denying the said defendant’s motion to.vacate an order for the service of the summons upon him by publication.</p>

Appeal by‘the plaintiff, John P. Everett, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of November, 1898, denying the plaintiff’s motion for an injunction pendente lite.

Appeal by the plaintiffs, Oscar'L. Richard and another, from, an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the county of Hew York on the 17th day of February, 1898, setting aside the verdict of a. jury in favor of the plaintiffs and granting a new trial. This action was brought on á contract, the defendant's having refused to accept goods tendered.

<p>Sale—false statements made after the sale —replevying fabrics sold, made into garments by the fraudulerit vendee — measure of damages—right of possession. ■</p> <p>Alleged false statements made by a vendee of goods to the vendor long after their sale are not competent evidence in an action of replevin brought by the vendor to recover possession of such goods, which had been levied upon by the sheriff under a judgment against the vendee before the vendor had disaffirmed the sale and sought to recover the goods.</p> <p>Where the goods in question consist of fabrics in the piece, a portion of which the vendee has, in the meantime, made up into garments whereby their value is greatly enhanced by the labor and by reason of other material furnished thereto by the vendee, the vendor, under a complaint by which he does not claim the right to recover any property other than that which he had sold and delivered to'the- vendee, is entitled, under section 1730 of the Code of Civil Procedure, to recover the value of his own goods, and not the value of the manufactured garments.</p> <p>Semble, that, in such a case, if it became impossible to separate the goods sold from other property of the vendee, it might.be that the vendor would be entitled to the possession of his own goods although that involved the taking possession of what had been added to his property in the process of manufacture.; not because he was entitled to the manufactured article, but because he was ■ entitled to retake the property, the title of which was in him, and the posses- - sion of which could not be obtained without, at the same time, taking the property which the vendee had added thereto.</p>

Appeal by the defendant, The Tradesmen’s National Bank of New York, from a judgment of the Supreme Court in favor of thé plaintiff, entered in the office of the clerk of the county of New York on the 28th day of October, 1897, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 4th day of November, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Max Herman and another, from an order of the Supreme Court, made at the New York Special Term, bearing date the 17th day of November, 1898, and entered in the office of the clerk of the county of New'York, denying the. plaintiffs’ motion for leave to enter judgment upon a stipulation made between the attorneys for the respective parties.

<p>Appeal by the plaintiffs, Selig Citron and another, composing the firm ofiS. Citron & Co., from judgments of the Supreme Court in favor of the defendants, entered respectively in the office of the clerk of the county of New York on the 16th and 24th days of Hay, 1898, upon the dismissal of the complaint as to all of the defendants by direction of the court after a trial at the New York Trial Term, and also from orders entered in -said clerk’s office on the 4th day of April, and the 18th day of May, 1898, respectively, dismissing the complaint.</p>

<p>Will — devise of a life estate, with remainder to the children of the life tenant, to “go with my residuary estate ” — limitations on the rule that the intention of the testatoi' is controlling — an annuity charged upon specific real estate is not an incurra bi'ance on the testator's other real estate.</p> <p>A testator by bis will devised certain property to Ms executors in trust, to pay over the income thereof to his brother for life, and further provided “ upon his death the same shall go with my residuary estate.” The will also provided: “All the rest and residue and remainder of my property I give, devise and bequeath to the children of my brother, Schuyler Hamilton, Jr., the share of any child dying before attaining the age of twenty-one years to go to the survivor.”</p> <p>Held, that a child born to Schuyler Hamilton, Jr., after the death.of the testator,■ was not entitled to' take any interest in the real estate -so devised to the executors in trust, because of the limitation contained in the will that such remainder should go with his residuary estate, as the after-born child could not participate in such residuary estate.</p> <p>O’Brien, J., dissented.</p> <p>Semble, that it would have been otherwise had the testator provided, in respect to the remainder in the real estate devised in trust for the life of his brother, Schuyler Hamilton, Jr., that upon his death such remainder should go to the children of his brother, and such after-borq child would in that case have been entitled to participate.</p> <p>While the intention of the testator is to govern in the interpretation of a will, although it may not be in entire harmony with the language contained therein, such method of construction is not to be resorted to where the language is explicit and free from doubt or uncertainty, because the court may be of opinion that, had the testator anticipated that which happened after his death, he would have made a different disposition of his estate.</p> <p>The fact that a testator makes an- annuity a charge upon specific real estate is evidence that it was his intention that his other real estate should not be incumbered therewith, especially where such other real estate is specifically devised.</p>

. Appeal by the defendant, the Brush Electric Illuminating Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of May, 1898, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 13th day of May, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Isaac Y. Brokaw, from a judgment of the Supreme Court in favor of the defendant, entered in the • office* of the clerk of the county of Hew York upon the decision of- the-court rendered after a trial before the court without a jury at. the. Hew York Trial Term dismissing the complaint upon the* merits.

Appeal by the plaintiff, the American Grocery Company, from a judgment of the Supreme Court in favor of the defendant, Charles M. Pratt, entered in the office of the clerk of the county of New York on the 5th day of May, 1898, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the New York Trial Term.

Appeal by the defendant, The Military Club of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of December, 1898, denying the defendant’s motion to vacate a warrant of attachment theretofore issued in the • ction.

<p>Appeal by the defendant, Isaac Davidson, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Xew York on the 2d day of June, 1898, upon the decision of' the court rendered after a trial at the Xew York Special Term foreclosing a mechanic’s lien.</p>

Appeal by the defendant, Alfred Barber’s Son (a domestic corporation), from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on -the 7th day of April, 1898, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 7th day of April, 1898, denying the defendant’s motion for a new' trial made upon the minutes.

<p>Appeal by the defendants, Robert W. Paterson and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of May, 1898, upon the report of a referee.</p>

Appeal by the defendant, Hoffman House Café, from an order of the Supreme Court, made at the New York Special Term and entered .in the office of the clerk of the county of New York on the 21'st day of October, 1898, referring the issues of fact raised by the pleadings in the action to a referee.

<p>Appeal by the plaintiff, Eugene Rau, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of "New York on the 27th day. of May, 1898, upon the dismissal of the complaint by direction of the court after a trial before the court-and a'jury at the New York "Trial Term, and . also from an order entered in said clerk’s office on the 6th day of June, 1898, denying the plaintiff’s motion for a new trial made upon" the minutes.</p> <p>The policy of insurance upon which this action was brought contained two provisions relative to-the use of benzine on the insured premises, one as follows :</p> <p>“ Privilege to * * * keep and use on the premises one quart of benzine ; ” the other as follows:</p> <p>“ This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if ' * * * there be kept, used or allowed on the above described premises, benzine, benzole, dynamite, ether, fire-works, gasoline, Greek fire, gunpowder, exceeding twenty-five pounds in quantity.”</p>

Appeal by the plaintiff, Ellen M. A. Coyle, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered _ in the office of the clerk of the county of New York on the 9th day of June, 1898, upon the.decision of the court rendered after a trial at the New York Special Term overruling the demurrers interposed by the plaintiff to the separate defenses contained in the defendants’' amended answer,

Appeal by the relator, Edmond W. Bierach, from an order of the. Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of November, 1898, quashing a writ of certiorari issued in the action.

Appeal by the plaintiff, Morris Littman, as executor of and trustee under the last will and testament of Aaron Asher, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 17th day of May, 1898, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Hew York Trial Term.

<p> Negligence—a person riding in a ca/t'riage'is not .chargeable with the negligence of the driver not under her control—competency of evidence as to the consequences of . injuries to the plaintiff. </p> <p>A person riding inside a carriage, the driver of which is not under her control, nor subject to her direction, is not chargeable with the negligence of such driver.</p> <p>Where the complaint in an action to recover damages for personal injuries alleges that as a result of the injuries the plaintiff “sustained severe nervous shock and concussion of the hrain, and in j ured her eyesight, and she was for a time rendered • unconscious, and she thereby sustained permanent injuries, and was injured , for life,” testimony that as a consequence of the injury the plaintiff was suffering from neurosis, meningitis, neurasthenia, curvature of the spine and heart trouble, is admissible where it is testified that such affections were directly connected with and resultant from the nervous shock.</p>

Appeal by the plaintiff,. James Hartley, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 11th day of June, 1897, upon the decision of the court rendered after a trial at the New York Special Term, as dismisses the complaint upon the merits as to the defendant Sophia E. Murtha.

Appeal by the defendant, Honorah Kelleher, individually and as administratrix, etc.,' of Michael Kelleher, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 2d day of October, 1897, as amended by an order entered in said clerk’s office on the 13th day of ¡November, 1897, upon the report of a referee.

<p>Appeal by the defendant, John Pullman & Co., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 6tli day of October, 1898, upon the decision of the court rendered after a trial at the Kings County Special Term overruling the said defendant’s demurrer to the complaint.</p>

Appeal by the defendant, the Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the' office of the clerk of the county of Kings on the 16th 'day of August, 1898, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 3d day of August, 1898, denying the defendant’s motion for a new trial made upon the minutes, a stipulation having been made in pursuance of the order of the…

Appeal by the defendant, Anthony W. Gerstner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the .office of the clerk of the county of Queens on the 27th day of June, 1898, upon the verdict of a jury for $1,100, and also from an order entered in said clerk’s office on the 29th day of June, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Charles Pearson and others,-from so much of a- judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 30th day of July, 1898,. upon the report of a referee, as adjudges that the defendant, The Long Island Baptist Association, is entitled to receive the legacy of $10,000 bequeathed: by Joseph Wild to the orphanage founded or to be founded by The Long Island Baptist Association; also from, so much of said…

. Appeal- by the defendants, William 0. Bryant and others, from, an order of the Supreme Court, made at the Queen's County Trial Term, and entered in the office of the clerk off the county of Queens-on the 13th day of July, 1898, setting aside a verdict in favor of the-plaintiff for six cents damages-as inadequate, and granting the plaintiff’s motion for a new trial.

Appeal by the defendant, the Consolidated Gas, Electric Light, Heat and Power Company, from a judgment of the Supreme Court in favor of the plaintiff, .entered in the office of the clerk of the county of Orange on the 9th day of April, 1898, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 9th day of May, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24th day of May, 1898, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 26th day of May, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appear by the plaintiff, Theodore F. Reed, and by the defendants Benjamin -F. Reed and others, from a judgment of the Supreme Court in favor of the defendant, the Provident Savings Life Assurance Society of New York, entered in the office of the clerk of the county of Rockland on the 15th day of July, 18.97, upon the decision of the court rendered after a trial at the Rockland Trial Term, .the verdict of a jury having previously been taken upon certain . issues submitted to…

Appeal by the plaintiff, Julia A. Peterson, from a judgment of the Supreme Court, in favor of the defendant, entered in the office* of the clerk of the county of Rockland on the 6th day of June, 1898, upon the decision of the court rendered after a trial before the court without a jury.at the Rockland Trial Term.

Appeal by the defendant, Abraham. Boehm, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the. county of Kings on the 12th day of April, 1898, upon the verdict of a jury for $750,- and also from an order entered in said clerk’s office on the 12th day of April,, 1898,¡ as■-resettled, and entered as resettled in said clerk’s office on the 7th day of May, 1898, denying the- defendant’s motion for a new trial made upon the-,…

Appeal by the defendants, The Third Avenue Railroad Company and another, from a judgment of the. Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Queens on the 8th day of February; 1897, upon the verdict of a; jury for $15,000, and also from orders entered in said clerk’s office-on the 11th day of February, 1897, and on the 18th day of February, 1897, denying, the defendants’ motions for a new trial made-upon the minutes. '

Appeal by the defendants, The Third Avenue Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in' the office of the clerk- of the county of Queens on the 3d day of November, 1897, upon the verdict of a jury for $4,500, and also from orders entered in said clerk’s office on the 17th day of November, 1897, denying the defendants’ motions for a new trial made upon the minutes.

Appeal by the defendants, The New York Suburban Water Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 6th day of June, 1898, upon the decision of the court rendered after a trial at the Westchester Special Term ; also an appeal by the defendant, The New York Suburban Water Company, from the order or direction awarding the plaintiff an extra allowance of $2,000.

Appeal by the defendant, Dennis Ryan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 14th day of June, 1898, upon the verdict of a jury, and also from an ordér entered in said clerk’s office on the 9th day of June, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by.the defendant, Edward B. Coombs, from a judgment of the Supreme Court in favor of the plaintiff, bearing date the 21st day of March, 1898, and entered in the office of the clerk of the county of Kings, upon the verdict of a jury convicting him of the crime of fraudulently presenting to a public officer for audit a false and fraudulent bill; and also from all intermediate orders in the said action, and from an order made at a term of the County Court' of the county…

Motion by Robert Dietzel, as administrator, etc.; of Theresa Dietzel, deceased, for an order of the Appellate Division resettling the case on appeal herein as heretofore settled by the referee, so as to amend said case on appeal, in. .accordance with the affidavit of the appellant’s attorney.

<p>Appeal by the defendant, Mari A. Cuming, from a judgment of the Supreme Court in. favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24th day of June, 1898, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 24th day of June, 1898, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The Third! Avenue Railroad Company, from a judgment of the Supreme Court in favor of the' plaintiff, entered in the office of the clerk of the county of Queens on the 25th day of April, 1898, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 11th day of May, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Charles Seeber, from a judgment of the.

Appeal by the defendants, Harriet 0. Sclienck and another, ad executrices, etc., of Lucia L. Kearny, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 26th day of February, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of February, 1898, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, William ■ P. Tatham and others, composing the copartnership firm of Tatham & Brothers, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of July, 1898, upon the verdict of a jury for $200, and also from, an order entered in said clerk’s office on the 9th day of July, 1898, denying the defendants’ motion fór a new trial made upon the minutes.

Appeal by George W. Smith and others, the town officers in the above-entitled proceeding, from an order made by a justice of the Supreme Court and entered in .the office of the clerk of the county of Queens on the 11th day of March, 1898, confirming the report of -experts appointed by said justice to investigate the financial affairs of the town of Hempstead, pursuant to chapter 685 of the Laws of 1892; and also declaring certain acts of the appellants, as officers •of the…

<p>.Service of an order with notice of resettlement — the time to appeal is not limited thereby — an inconspicuous notice of entry of an order is insufficient — notice naming the wrong day as the date of the entry of the order — the time to appeal from a judgment cannot be limited until the right to. a nexo trial is settled.</p> <p>"Where a party defendant has been granted a new trial, and has entered an order to that effect, and serves a copy upon the plaintiff’s attorney on the day of' the entry of the order, and also serves a notice of resettlement of the order, and the court thereafter refuses to alter or resettle the order as made, he is not in a" position to insist that, during the interval of time between the entry of the order and the refusal of the court to resettle it, the time within which" the plaintiff could appeal therefrom has run.</p> <p>A notice of the entry of an order, indorsed upon the cover of the copy order served so as, when the cover is folded, to be entirely concealed, and to make it possible to open and read the copy order without discovering the notice of its entry, where the managing clerk of the attorney, upon whom the order is served, does not, in fact, discover the existence of this notice, is not a sufficient notice to limit the time within which an appeal may be taken from the order, within the requirements of section 1351 of the Code of Civil Procedure. ... .</p> <p>‘•The notice, to be effective within the meaning of that section, must be so given that a failure to observe" it would constitute negligence upon the part of the attorney upon whom the copy order is served. •</p> <p>.A notice stating that a paper served is a copy of an order- made and entered on the 29th day of October, 1898, where the order" was, in fact, made on the 22d day of October;, 1898, is npt sufficient to limit the time within which an appeal may he taken therefrom.</p> <p>"Where an order has been made in an action, granting a new trial to the defendant, and the plaintiff has appealed therefrom, lie cannot defeat the'defendant’s right to appeal from the judgment until the right .to a new trial is.finally settled upon such appeal from the order. .. ..... ■ ,</p> <p>Cross-motions by the plaintiff and the defendant to dismiss appeals taken by each party herein. ' '</p>

Appeal by the defendant, The National Life Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the ^office of the clerk of the county of Westchester on the 23d day of July, 1898, upon the decision of the court rendered after a trial at the Westchester Special Term. '

Appeal by the defendant, Henry Both, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office, of the -clerk of the county of Kings on the 16th day of Jiine, 1898, upon -the decision of the court rendered after a trial at the Kings County ¡Special Term, directing the cancellation and surrender of certain promissory notes, except from that portion thereof which adjudges -that eight notes of fifty dollars each, made by the plaintiff, and payable to…

Appeal by the defendant, Herman Brunnings, from an order of the Supreme Court, made at the Kings County Special Term and entered in the pffice of the clerk of the county of Kings on the 13th day of July, 1898, setting aside the verdict of the jury in favor of ■the plaintiff for the sum of $150, upon the ground of its inadequacy, and granting a new trial.

Appeal by the defendant, Michael Seitz, from a judgment of the Supreme Court in favor of the plaintiff, bearing date the 9th day of May, 1898, and entered in the office of the clerk of the county of King's upon an order made at. the Kings County Special Term, bearing date the 28th day of March, 1898, and entered in said clerk’s office, affirming a judgment -of a justice of the Municipal Court of the city of New York, in and for the borough of Brooklyn.

Appeal by the plaintiff, Joseph A. Byrnes, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the' 15th day of April, 1898, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Kings County Trial Term.

Appeal by the plaintiff, Alvah W. Burlingame, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 19th day of February, 1898, upon the dismissal of his complaint at the. close of the plaintiff’s evidence, by direction of the court, after a trial before the court and a jury at the Kings County Trial Term.-

Appeal by the plaintiff, John D. Cutter, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Kings on. the 18th day of August, 1898f upon the decision of the court rendered after a trial at the Kings County Special Term restraining the plaintiff from using certain trade names.

Appeal by the defendant, The City of Mount Vernon, from, a judgment of the County Court of Westchester county in favor of-the plaintiff, entered in the office of the clerk of the county of Westchester on the 7th day of September, 1898, upon the verdict of a jury, and also from an order bearing date the 23d day of June, 1898, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Nassau Electric Railroad Company, from a judgment of- the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24tli day of February, 1898, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 15th day of April, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Long Island Railroad Company,, ■from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on- the 14th day of September, 1898, denying the defendant’s motion to set aside the several judgments entered in the action in ■favor of the plaintiff, and for a restitution of the moneys paid by the defendant to the plaintiff’s attorney on said judgments.

Appeal by the plaintiff, the Electric Power Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of' Hew York on the 11th day of July, 1898, upon the decision of the court rendered_ after a trial at. the Hew York Special Term dismissing the plaintiff’s complaint. This appeal was transferred from the first department to the second department.

Appeal by the plaintiffs, William E- T. Smith and others, from ■ an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Suffolk on the 15th day of ¡November,, 189.8, refusing to set aside the decision and findings in an action of partition, to modify the same on the question of actual partition, to set aside the plaintiffs’ share in severalty, to direct that a sale of the whole of the property be had…

Appeal by the defendant, Thomas J. Ray, from a judgment of the County Court of Orange county in fayor of the plaintiff, rendered on the 14th day of February, 1898, upon the verdict of a jury convicting him of the crime of feloniously receiving stolen goods, knowing them to have been stolen.

Appeal by the defendant, Robert W. Fielding, from a judgment of the Supreme Court in favor of the plaintiff, rendered on the 26tli day of May, 1898, upon the verdict of a jury, convicting him of the crime of conniving at the auditing and allowance of a frandnlent claim against the city of Brooklyn, with intent to defraud.

• Appeal by the defendant, James Hanse, from a judgment of the 'Supreme Court in favor of the plaintiff, entered in the office of the ' clerk of the county of Queens on the 25th day of June, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21th day of June, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, George Stillwell, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 29th day of January, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of January, 1898, denying the plaintiff’s motion for a new trial made upon the minutes. The action was in ejectment.

<p>New Torh standard fire insurance policy — sufficiency of proofs of loss, when mailed! ■ by the insured, on the last day of the period prescribed therein.</p> <p>In an action brought to recover upon a Hew York standard policy of Are insurance, which provided that proofs of loss should be served within sixty days after the loss, it appeared that proofs of loss served thirty days after the loss had occurred were returned upon the ground that they were verified by the agent of the insured instead of by the insured himself; that new proofs of loss-were thereafter made out and were properly verified by the insured, which, it was claimed on the part of the plaintiff, were mailed to the attorneys of.the underwriters on the sixtieth day after the loss, although they were not received by the latter until the next day.</p> <p>Held, that, under the circumstances of the particular case, it would be a harsh rule to insist that the papers must be actually within the possession of the defendants within the sixty days, and that the question of the mailing of the proofs on the sixtieth day was one for the jury to determine, and that a dismissal of the complaint by the trial court was erroneous.</p> <p>Goodrich, P. J., dissented.</p> <p>Qucere, whether a person insured under such a policy, who mails proper proofs of loss within the time given him by its terms, forfeits his right to maintain an action upon the policy because the insurance company fails to receive such ■ proofs of loss until after the expiration of such time. ,</p>

Appeal by the plaintiff, Peter L. Van Wagenen, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 9th day of July, 1898, upon the decision of th.e court rendered after a trial at the Westchester Special Term.

Appeal by the defendant, The American Belgian Lamp Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day. of May, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of June, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Wilhelmina Gunther, as administratrix, etc., of Charles Plag, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 13th day of January, 1898, upon the dismissal of the complaint by direction of the court after a trial at the Westchester Trial Term.

Motion by the plaintiff, William E. Sabin, for a new trial upon a-case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term. This motion was transferred from the first department to the ■second department.

Appeal by the defendant, the Wabash Railroad Company, from; interlocutory judgments -of the Supreme Court in favor of the plaintiff in each of the above-entitled actions, entered in the office of the clerk of the county of Queens on the 22d day of October, 1898, upon the decisions of the court rendered after trials at the Queens County Special Term overruling the defendant’s demurrer to the plaintiff’s complaint.

•Appeal by the defendants, John W. Pelton and others, from a judgment of the County Court of Dutchess county in favor of the -plaintiff, rendered on the 11th day of July, 1898, upon the verdict of a jury, convicting them of the crime of maintaining a public nuisance.

Appeal by. the plaintiff, Catharine Bürnett, from a' judgment- of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county, of New York on the-lltli day of March, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term. ’ This appeal Was transferred from the first department- to the second department.

Appeal by the plaintiff, William Boentgen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 21st day of March,' 1898, upon the dismissal'of his complaint by direction -of :the court after a trial at the New York Trial Term,-and also from an order entered in said clerk’s office on the 29th day of March,'1898, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Tito Bini, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 30th day of March, 1898, upon the decision of the court, dismissing the complaint upon the merits, rendered after a trial before the court, without a jury, of an issue of fact properly triable before a jury.

Appeal by G. Lewis Biggs and, others from so much of a final decree of the Surrogate’s Court of the county of.

Appeal by the defendants, Esther E. Nafis and Abraham T. Nafis, her husband, from a judgnient of the County Court .of Queens county in' favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 2d day of November, 1898, upon the decision of the court rendered after a trial at a term of said County Court.

<p>Hegligence—injury caused by a Shew York city garbage cart — the duty, of removing ashes and garbage is a private, not a governmental, one — the testimony of a witness may be credited in part and in part be discredited.</p> <p>The duty imposed upon the mayor, aldermen and commonalty of the city of New York hy section 704 of the Consolidation Act (Chap. 410 of the Laws of. ' 1882, as amd. by chap. 269 of the Laws of 1892), of removing from said city all ashes and garbage, is not the governmental function of abating nuisances, but the private duty which would otherwise rest on the residents and property owners of the municipality, and, consequently, the city is liable to one who has sustained personal injuries because of the negligence of the driver of an ash and garbage cart belonging to its street cleaning department.</p> <p>In an action brought against the city by the person thus injured, the plaintiff is not concluded by the denial of the driver of the cart as to the occurrence of the accident, and may ask the jury to believe other testimony of the driver that, he was in the employ of the defendant at the time, and to disbelieve his statement that the accident did not occur. ' ,</p>

<p>Appeal by the plaintiff, Charles Meyers, as committee of the estate of Edward Crawford, an incompetent person, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 18th day of February, 1897, upon the decision of the court rendered after a trial at the New York Trial Term before the court without a WJ-</p>

Appeal by the plaintiff, Frank H. Baker, from an order of the Supreme Court, made at the Kings County Special Term, and entered in the office of .the clerk of the county of Kings on the 29th •day of August, 1898, directing said plaintiff individually and as ■receiver of the property which is the subject of the suit, to account to the defendants, George E. Baker and Caroline C. Calvin, for Tents collected by him, and restraining the defendant, William B. Davenport, public…

<p>Bank — agreement with a depositor autlwrizing the bank to retain deposits as security for liabilities of the depositor to it—appropriation-thereunder by the. bank of moneys collected, by the depositor as a factor.</p> <p>Where a firm, upon opening an account with a bank, executes an agreement authorizing the bank to retain all moneys deposited with it as security for all liabilities due or not due which the bank may have against the firm, and upon the failure of the firm to pay at maturity a'draft executed by it, the bank appropriates the balance of the account standing to the credit of the firm upon the books of the bank,-without knowledge that such credit represented moneys collected by the firm as a factor,, the principal cannot recover from the bank the amount of the balance so appropriated.</p> <p>Qucere, whether the bank could seize the balance after a receiver of the propérty of the depositor had been appointed.</p>

Appeal by the defendants, Oscar E. A. Wiessner' and Jacob W. Loch, from a judgment of the Supreme Court in favor of the plain- ' tiff and against said defendants, entered in the office of the clerk of the county of Kings on the llth day of Hay, 1898, upon, the verdict of a jury rendered by direction of - the court, and also from on order directing the entry of said verdict and granting an extra allowance.

<p>Appeal by Mary E. Roe and others from an order of the County Court of • Orange county, entered in the office of the clerk of the-county of- Orange on the 14th day of February, 1898, directing the clerk of the county of Orange to docket a judgment in favor of the commissioners appointed in the above-entitled proceeding against said Mary E. Roe and others, and also an appeal by William R. Conklin from a judgment of the County Court of Orange county in favor of said commissioners, entered in the office of the clerk of the county of Orange on the 21st day of February, 1898, pursuant to said order, with notice of an intention to bring up for review upon such appeal all the orders made in the proceeding.</p> <p>This proceeding was instituted pursuant to chapter 384 of the Laws of 1895, entitled “An act in relation to the drainage of agricultural lands.”</p>

. Appeal by the defendants, the Nassau Electric Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 8tli day of August, 11898, upon the report of á referee.

<p>Bailroad—amended certificate of incorporation -—not effective to change its route , - . . and terminus -^proper method of changing its route.</p> <p>.Section 7 of the General Corporation.Law (Chap. 565, Laws of 1890, as amended ¡by chap. 676, Laws of -1892,-and by chap. 545, Laws of 1895), authorizing the - filing of an-amended certificate of incorporation correcting an informality or •defect existing in the original' or amended or supplemental certificate of incorporation, does not authorize the .filing by a railroad corporation of an amended certificate of incorporation, which, while purporting to have been ■ filed “for the purpose of correcting an informality and defect in the original certificate of incorporation of said corporation, consisting of the omission to' . particularly state, define and describe a portion of the route of said road as well as the terminus in the town of Westhampton,’’ was intended to effect a cliangein the proposed route and terminus of the railroad; nor can such amended articles of incorporation be deemed a sufficient compliance with section 13 of the Railroad Law, authorizing a railroad company to change its route, where it appears that the certificate of change, together with the survey and map, was not filed in the county clerk’s office as required by this section.</p>

Appeal by the relator, John J. Joyce, from an. order of the Supreme Court, made at the Kings County Special Term'and entered in the office of the clerk of the county of Kings on the 17th day of November, 1898, denying the relator’s motion for a peremptory writ of mandamus directed to Gerard B. Van Wart, commanding him to certify to the comptroller of the city of New York that the delator is an assistant clerk of the Municipal Court of the city of New York for the second…

Appeal by the defendant, The Trustees of the New York and Brooklyn Bridge, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the. clerk of the county of Queens on the 27th day of December, 1898, denying in part the defendant’s motion to resettle the case upon appeal.

Appeal by the plaintiffs, Charles. Deutermann and others, as-executors, etc., frp'm an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 1st day of December, 1898, denying the plaintiffs’ motion for a resettlement of an order filed in paid clerk’s office on the 10th day of November, 1898.

<p>Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of "Westchester on the 28th day of May, 1898, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 28th day of June, 1898, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Agreement by a landlord to repair — Tie is not liable for personal injury resulting to the tenant’s wife from his failure to do so—right of the tenant to make the repairs and deduct their cost from the rent.</p> <p>The failure of a landlord to perform a verbal agreement, made by him upon the renewal of a lease, to repair the defective cover of a cistern upon the demised premises, does not render him liable for personal injuries sustained by the wife of the tenant in consequence of such defective cover, where it does not appear but that the defect arose during the- term of the occupation of the premis.es by the tenant.</p> <p>'Qumre, whether the tenant could have made the repairs and deducted the cost thereof from the rent.</p>

Appeal by George Mohrmann from an order of the Supreme Court, made at the Kings County Special Term and entered in-the office of the clerk of the county of Kings on the 14th day of Kovember, 1898, revoking and canceling the liquor tax certificate issued to him by the special deputy commissioner of excise for Kings county.

Appeal by the plaintiff, Theodore Purdy, from a judgment of the Supreme Court in favor of the defendant, J. Irving Purdy, individually and as one of the executors, etc., of Jacob G. Purdy, deceased, entered in the office of the clerk of the county of Westchester on the 16th day of May, 1898, upon the decision of the court rendered after a trial at the Westchester Special Term;

<p> Judgment rendered by a Justice's Gourt without service of the summons upon the defendant—the County Gourt may vacate the transcript and judgmentthereon and the execution issued upon it. </p> <p>Where a transcript of a judgment rendered by a justice of the peace without service of process upon the defendant, is filed in the county clerk’s office,, the County Court may, although no appeal has been taken from the justice’s judgment, vacate the transcript, the judgment entered thereon in said County Court and the execution issued on the same; it has, however, no power to vacate the judgment entered by the justice.</p>

<p>Appeal by John P. Roosa, from a decree of the Surrogate’s Court of the county of Sullivan, entered in said Surrogate’s Court on the 11th day of April,'1898, upon the judicial settlement of the accounts of the said John-P. Roosa and others, as execulors of the last will and testament of Hannah Hammond, deceased, and especially from that portion of said decree as surcharges the account of said John P. Roosa with a certain alleged indebtedness existing against him in favor of the estate.</p>

Appeal by the defendant, Judson A. Gibson, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Chemung on the 14th day of July, 1894, upon the report of a referee; This action is brought to recover upon two promissory notes, one for $200 and the other for $300, executed by the defendant to plaintiffs’ intestate; and also upon a loan of $100, and another of ' $25, claimed to have been made by the deceased to the…

Appeal by Margaret Woods and others, the property owners in the above-entitled proceeding, from that part of an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of St. Lawrence on the 6th day of June, 1898, upon the report of commissioners appointed to assess damages under the Condemnation Law, which modifies the report of said commissioners by reducing the award to the sum of thirteen dollars.

<p>Appeal-by the defendant, The Standard Publishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cortland on the 2d day of February, 1898, upon the verdict of a jury for $600, and also from an order entered in said. clerk’s office on the 3d day of February, 1898, denying the defendant’s motion for a new trial.</p>

Appeal by the defendant, Stephen D. Hood, as chief of police -of the city of Kingston, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Ulster on the 15th day of September, 1898, granting an injunction pendente lite restraining the ' said • defendant, his subordinates, agents and servants, from in any manner interfering with the merry-go-round of the plaintiff at Kingston Point.Park in the…

Appeal by Albert Ivins Croll, a creditor herein, from so much of an order, made at the Saratoga Special Term and entered in the office of the clerk of the county of Schenectady on the 14th day of October, 1898, confirming the report of a referee appointed to take and state the accounts of the assignee, as adjudges that the allowance made in paragraph 2 thereof shall be subject to deduction by reason of any offset which may exist in favor of the assignee and as against the…

<p> Rape—evidence that a person who refused, to testify at the trial was a material witness before the grand jury, considered in connection with a statement by the district attorney as to her connection with the crime—testimony concerning the condition of the complainant four years after the alleged offense, when incompetent. </p> <p>Upon the trial of an indictment for rape, the district' attorney stated that the crime was committed in the room of, and in the presence of, one Sarah Anderson, and the stenographer who attended the grand jury hy whom the indictment was found, testified on behalf of the People that Sarah Anderson was a material witness before the grand jury. Evidence was also given to the effect that the defendant was frequently seen going into the house where the said Sarah Anderson had her rooms; that at the term of court next preceding the one at which defendant was tried, Sarah Anderson was taken away by the defendant who asked the witness testifying to these facts to marry her and go to Pennsylvania, saying that she knew a lot about the case but would not tell, and further, that Sarah Anderson and the defendant were seen driving together after the subpoena had been served upon her to attend the trial, and that she was seen going into the office of the defendant’s counsel. Sarah Anderson, when placed upon the stand, declined to give evidence in the case upon the ground of privilege. '</p> <p>Held, that the evidence given by the stenographer was incompetent, and that while it was, perhaps, harmless when given, it subsequently became extremely . damaging to the defendant, as the jury would naturally infer that the material evidence which Sarah Anderson gave before the grand jury and refused to repeat at the trial, was to the effect stated by the district attorney.</p> <p>In such a case the testimony of a doctor who, just before, or during the progress of, the trial, and some four years after the alleged commission of the offense, _ made an examination of the complainant, who admitted that, in the meantime, she had had intercourse with persons other than the defendant, should not be received as corroborative evidence tending to convict the defendant of the crime charged; nor is the error committed in the reception of such testimony ■ cured by the fact that the court, at the close of the evidence, limits the effect to be given to it as tending to corroborate the complainant’s testimony as to her condition, she having given evidence of facts, other than the acts of the defendant, from which that condition might have resulted.</p> <p>• Appeal by the defendant, Dennis Cornelius, from a judgment of the County Court of Tompkins county, rendered on the 1st day of February,. 1898, upon the verdict of a jury convicting him of the crime of rape in the second degree, and also from an order, bearing date the 1st day of February, 1898, and entered in the office of the clerk of the county of Tompkins, denying the defendant’s motion for a new trial and arrest of judgment.</p>

Appeal by the defendant, Charles Wright, from an order of the Supreme Court, made at the Albany Special Term, and entered in the office of the clerk of the county of ■ Schoharie on the 12th day of August, 1898, denying his motion 'to vacate the taxation of costs in favor of the plaintiff by the clerk of the county of Schoharie, and for a certificate that the title to real property came into question upon the trial.

<p>Appeal by the defendant, Jed H. Griffin, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of Franklin on the 15th day -of August, 1898, overruling and striking out as frivolous subdivision Wo. 5 of the defendant’s answer.</p> <p>The complaint in this action alleges as a cause of action that the defendant unlawfully evicted the plaintiff and his family from the premises lawfully occupied by them, under the color of legal proceedings. The answer of the defendant alleges, first, a justification by virtue of proceedings legally taken under the lease; second, an ' affirmative defense of unpaid rent and taxes alleged to be due by the plaintiff to the defendant, by the terms of his lease; third, alleged as a counterclaim the same matters set up as the second defense; fourth, alleged that he instituted the summary proceedings in good faith; his fifth answer is as follows : “ On information and belief, he denies each and every allegation set. forth in said complaint, except as herein admitted, qualified or explained.” On application to the Special. Term this fifth answer of the defendant was stricken out. From the order so made, the defendant appeals ■to this court.</p>

Appeal by the defendants, Catherine Ver Nooy, as administratrix, and Aim on H. Sanders, as administrator, with the will annexed of Hiram Crandall, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cortland on the 20th day of March, 1897, upon the verdict of a jury, with notice of an intention to bring up for review upon said appeal an order made at the Chemung Special Term and entered in the office…

<p>Appeal by the defendant, Benjamin J. Slade, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office. of the clerk of the county of Saratoga on the 26th day of April, 1898, upon the report of a referee appointed in condemnation proceedings, with notice of an intention to bring up for review upon ■such appeal an order made at the Montgomery Special Term bearing date the 23d day of April, 1898, and entered in the office of the clerk of the county of Saratoga confirming said report; and also an order made at the Montgomery Special Term, bearing, date the 26th day of March, 1898, and entered in the office of the clerk of the county of Saratoga, referring the issues to a referee to hear and determine.</p>

Appeal by the defendant, Harrison Wells, from a judgment of the County Court of Cortland county in favor of the plaintiff, entered in the office of the clerk of the county of Cortland on the 26th day of May, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of June, 1897, denying the defendant’s motion for a new trial- made upon the minutes.

<p>Tax— a New Jersey corporation, a part of whose business in the State of New York is confined to the selling of original packages of imported goods, and a part to the sale of broken packages and domestic goods, is liable to a State tax on its business.</p> <p>A corporation organized under the laws of the State of New Jersey, six-sevenths of whose business, carried on in the State of New,York, consists of importing from countries in Europe chemicals and dye, stuffs and selling the same in the original packages, and the balance in selling broken packages of its imported goods, and also some domestic goods of like character, is taxable under chapter 543 of the Laws of 1880, and under chapter 908 of the Laws of 1896.</p> <p>Such a corporation, being engaged partly in domestic or interstate commerce, the power of taxing and the regulation of the privilege of doing which business in the State of New York is within the competency of the State, as is also the power to prescribe the basis of its measurement, the statutes imposing and measuring such tax cannot be considered as transcending the legislative power of the State.</p>

Appeal by the plaintiff, Dr. David Kennedy Corporation, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ulster on the 30th day of August) 1898, upon the report of'a referee dismissing the complaint upon the merits,. and also from an order made at the Dutchess Special Term and entered in the office of the clerk of the county of Ulster on the 30t,h day of August,-1898, granting the defendant an extra allowance…

<p>Appeal by the defendant, De Witt 0. Hanfield, from a judgment -of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 3d day of October, 1898, upon the decision of the court rendered after a trial before "the court without a jury at the Washington Trial Term, adjudging that certain contracts for the construction of the plaintiff’s railroad are void, and that the defendants deliver to the plaintiff 1,500 shares -of the capital stock of the plaintiff and $175,000 of its bonds.</p>

Appeal by the defendant, 'Alexander H. Weed, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Essex on the 22d day’of November, 1897, upon the decision of the court, rendered after a trial at the Essex Special Term adjudging that the real éstate described in the complaint is partnership property belonging in equal shares to the plaintiffs and defendant, that the accounts be stated and a…

<p>Appeal by tne defendant, Antonio Knauth, from an. interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 26th day of August, 1898,'upon the decision of the court, rendered after a trial at the Warren Special Term, overruling the said defendant’s demurrer to tlie plaintiff’s complaint, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 18th day of August, 1898, overruling said demurrer.</p>