Volume 36 — New York Miscellaneous Reports

Application to compel the custodian of primary records of the county of Albany to comply with the provisions of the Primary Election Law in reference to the publication of the notice required by subdivision 4 of section 4 of chapter 473 of the Laws of 1899, amending chapter 179 of the Laws of 1898, and to compel the said custodian to prepare a sample ballot for the Democratic party in the city of Albany, as required by section 6 of said law.

<p>Demurrer to answer in an action for an accounting.</p>

<p>Tax — Assessment, held illegal, not to be carried into next roll — Denial, by reference to paragraphs, bad — Description in roll — D. 1896, ch. 908, § 54.</p> <p>Assessors have no power, under the Tax Law, to carry into the roll of 1900 an assessment of ‘1899, which the court has set aside as illegal.</p> <p>A return of assessors, to a writ of certiorari, issued upon a petition to review an assessment made by them, raises no issues where it denies parts of the petition by referring to, its paragraphs, as such a ■ method of pleading denies the paragraphs but does not deny the facts contained in them.</p> <p>An assessment is- not valid unless the roll contains a definite and plain description of the assessed premises, sufficiently accurate to locate them clearly or enable them to be identified beyond any question.</p>

<p>Slander — Which may impute unchastity to a woman — Demurrer to-complaint when overruled — Code C. P., § 1906.</p> <p>A complaint in slander, not alleging special damages, in which a married woman states that the defendant, her father-in-law, falsely and maliciously uttered and published words charging her with having communicated to his son, her husband, a loathsome disease through the marital relation, will not be held demurrable as failing to state facts sufficient to constitute a cause of action, and the court will leave it to the jury to say upon all the evidence whether the-words impute unchastity and, if it be found that they do, the case will be within Corle C. P., § 1906, providing that a woman need not allege or prove special damages where the words spoken oí her impute unchastity to her.</p>

<p>Action to recover on a promissory note.</p>

<p>Action of ejectment.</p>

<p>Application for a peremptory writ of mandamus against Bernard J. York, Deputy Police Commissioner for the borough of Brooklyn, city of Mew York, to compel him to remove obstructions from a certain street. The relator owns real estate on such street.</p>

<p>Application to vacate an order appointing a temporary receiver in a proceeding for the voluntary dissolution of the above-named corporation.</p>

<p>Cemetery — Removal of body from one lot to another — It. 1898, ch. 559, § 51; amd. 1900, ch. 715.</p> <p>An application to the court under the Membership Corporations Law for its consent to the removal of a body to a family plot from a general plot owned in a cemetery by a lodge, necessary statutory consents having been refused, must be decided upon equitable grounds and upon the assumption that the person having charge of the body holds it as a sacred trust for all who have an interest in it.</p> <p>Where it appeared that such person did not feel himself bound by the obligations of a certain religious belief and where he seemed to be acting in obedience to a sentiment that a husband and a wife and their children should rest together, the court overruled objections to removal based on the contentions that the rules of the lodge forbid disinterment, and that such an act was contrary to the rules of a ^religious society to which the deceased had belonged.</p>

<p>Action by the plaintiff, a creditor of Cynthia M. Randall, to enforce his debt against real estate alleged to belong to her, although held by her devisee, the defendant Ida May Randall.</p>

<p>Action for an injunction.</p>

<p>Indictment — Nullified by presence at sessions of the grand jury of special counsel to the district attorney — Code Grim. Pro., §§ 262, 263, 264, 313, subd. 2.</p> <p>A district attorney has no power to delegate to an ordinary attorney, whom he employs merely as his special counsel, his official duties as prosecutor before the grand jury and, therefore, where his special counsel was not only present during sessions while charges were under consideration but also conducted the cases, examined the witnesses and advised the grand jury in the matter, the court considered that the indictments must be set aside as, in violation of the Code of Criminal Procedure, a person had been present at said sessions other than the court, the district attorney and his duly appointed assistants, and the witnesses.</p> <p>The same charges may, however, be submitted to another grand jury.</p>

Action for the construction of the will of Edmund H. Miller. Held: upon the first hearing of the action and while Ricci was living, that Edmund H. Miller, when he made his will, regarded the $34,000 as anQ absolute obligation, that Emma could will it to Ricci, that he took it as her sole legatee, and that the provision of the ante-nuptial agreement, to the effect that if Emma died childless the…

<p>Tax — A general city sewerage act is to be upheld if possible and cannot be attacked collaterally — Police power — Estoppel — Xi. 1895, ch. 163; L. 1900, ch. 197.</p> <p>An act (L. 1895, ch. 162) designed to establish a system of sewerage in a city, a police measure in the interests of the public health, must be presumed to be constitutional and the Special Term should not declare it unconstitutional unless it clearly is so.</p> <p>Where a supplementary act (L. 1900, ch. 197) has been passed to remedy defects in the original one, a taxpayer, who never attacked either act in the courts nor the proceedings under them and who after due notice of his assessments thereunder did not protest against them on grievance day, is estopped from questioning, in an action by the city to recover his taxes, either the legislation, proceedings or assessments; and the further fact that he has persistently refused to avail himself of the benefits of the sewerage system is not material.</p>

<p>Motion to dismiss appeal from Municipal Court of Buffalo.</p>

This was a 'suit to have the sum of $650 given to the defendant Henrietta L. Baker by her mother Emeline Jenkins, now deceased, declared a part of a trust fund alleged to have been created and held by the said deceased for the plaintiff, her husband, and require the same to' be paid over to the plaintiff.

<p>State bank — N. Y. Common Pleas had power to dissolve for insolvency — Liability of stockholders for debts of a bank not issuing notes, incorporated before, but doing business after, the Banking Law of 1892 — Effect of repeal of L. 1882, ch. 409.</p> <p>In 1894 the Court of Common Pleas of the city and county of New York, a superior city court, had jurisdiction to entertain an action brought therein by the People to dissolve for insolvency a State bank incorporated under L. 1882, ch. 409, where New York city was the principal place for the transaction of its business and the summons was served there and the cause of action arose therein.</p> <p>Such an action is controlled by art. 3 and not by art 4 of title II of ch. 15 of the Code of Civil Procedure.</p> <p>The legislature has power to ordain as to the future debts of a banking corporation.</p> <p>■Section 52 of the Banking Law of 1892 imposes upon all stockholders of State banks, whether issuing notes or not and whether incorporated before or in business after the passage of that act, a liability for the debts of the bank proportionate to the par value of their shares, in addition to the amount invested therein, except where, as is provided by the Stock Corporation Law, the stock is held as collateral, or in a representative capacity, or the debt of the bank is not payable within two years after it was contracted.</p> <p>The contention, that, since L. 1882, ch. 409, imposed upon stockholders no personal liability for the debts of a bank not issuing notes, persons who became stockholders before the repeal of that statute, by the Banking Law of 1892, were thereafter exempted from personal liability by section 81 of the Statutory Construction Law. declaring that the repeal of a statute shall not affect or impair any act done or right accruing, accrued or acquired prior to the time such repeal takes effect, is not sound, as a reading of said section 31 in connection with section 1 of the same act, providing that the Statutory Construction Lajw shall apply to every statute “ unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter ”, remits the court to a scrutiny of the Banking Law of 1892 in order to ascertain the intention of the legislature, and that law indicates an intention to make the stockholders of every bank personally liable for its debts, whether they became such before or after that law took effect.</p>

<p>Indemnitors — Discharged where, against their protest, the party indemnified compromises an appealed judgment which the creditor had recovered against both parties.</p> <p>Where a city, against which and its contractor a third person has after a sharply contested trial recovered judgment for personal injuries caused by the contractor’s alleged negligence in having failed properly to light and guard a street excavation made by him under the contract, compromises its own liability upon the judgment, abandons an appeal taken' by it therefrom in good faith, the contractor having also appealed, and does this against his protest and with the intention ultimately of enforcing- against him the whole sum thus paid to the third person, (the contractor having by his original contract agreed to save the city harmless from all claims for personal injuries resulting to third persons from his work) the city cannot recover on a bond, with a surety, which it exacted of him as full Indemnity to it against the judgment, as the conduct of' the city has discharged the indemnitors.</p> <p>Accordingly, the court set aside a verdict it had directed for the city and granted a new trial.</p>

<p>Indictment — Change of venue to secure a fair and impartial trial for a New York police captain — Local prejudice — Code Crim. Pro., § 344, subd. 2.</p> <p>The trial of an indictment of a New York city police captain for willfully neglecting to suppress a disorderly house within His precinct may properly be removed from the Court of General Sessions of the Peace of said city and county to a term of the Supreme Court held in another county and department, on the ground that a “ fair and impartial trial ” cannot be had in New York city, where proof is made upon Ms part that for a year last past violent attacks have been made by citizens’ associations and by the local press upon the police department of said city, that these increased upon the recent conviction- of his “ wardman ” for accepting a bribe from the proprietress of a disorderly house in the same precinct, that the management of the police department has been made one of the principal issues in an important approaching political campaign, and that the taking of bribes by the police for willfully neglecting to suppress disorderly places was publicly intimated by the district attorney upon the trial of the “ wardman ”,</p> <p>Where prejudice or bias against a defendant exists in the locality he may apply for a change of venue before demonstrating the impossibility of obtaining an impartial jury, by an attempt and failure to get one in the county where he was indicted.</p> <p>Prejudice may exist in a community which no test -will reveal, and usually its presence can only be discovered from the circumstances and conditions which produce it.</p> <p>A defendant should not be tried in a county where a strong public sentiment exists as to his crime, as the result is likely to be an unjust conviction or acquittal, or a disagreement of the jury.</p>

Action for the construction of a will. The clause, in the will of Juliet Augusta Kemp, stated in the opinion as recited at folio 133 of the complaint, was as follows: “And all the residue of such two-fifth parts of such residuary estate of my said deceased husband George Kemp by his will devised and bequeathed to be held in trust for my benefit during my life, which shall not be required to be set apart and' held by' virtue of this my will to produce the aforesaid net annual…

<p>Application for a peremptory writ of mandamus.</p>

<p>Demurrer to amended complaint.</p>

<p>Negligence — Inconsistent findings as to cause of death — Jury cannot speculate as to how long an injured person would have lived hut for an intervening final cause of death.</p> <p>Where a jury find that a man, injured ten months before by an accident caused by the defendant’s alleged negligence, died of hasty consumption which the evidence shows had existed for only two months, they are not justified in finding that he would not have died when he did unless he had been Injured.</p> <p>In view of the finding of the jury that the man died of hasty consumption and of the established fact that tuberculosis is caused by inhaling germs into the lungs, the court, in the absence of expert evidence that any blow connected with the injury could have produced tubercles, rejected as too speculative, to support a finding for the plaintiff administratrix, a theory of her experts that the death of her intestate was caused by progressive muscular atrophy, shattering ■ the system and exposing it to sudden disease, and that but for this atrophy the intestate would not have died when he did.</p>

<p>Negligence of fellow servant — Accident in a mine.</p> <p>W-here a coal miner, acquainted with the perils of crossing &. foreign mine’s haulage way in which coal cars were run, was injured by a car while necessarily crossing the haulage way, the appellate-court considered that the facts that he had previously notified his-mine foreman, made by foreign law and decisions bis fellow servant, of the defects which contributed to his injury and that the mine-foreman had not repaired them, did not entitle him to' recover damages of his employer as for a neglect to furnish him a safe place for his -work.</p>

<p>Supplementary proceedings — Property claimed by a stranger is recoverable by the receiver by action, but not by an order.</p> <p>Property alleged by the receiver to belong to the judgment debtor in supplementary proceedings, but claimed as his own by a person not a party thereto, is recoverable only in an action brought by the recéiver and he cannot obtain possession of it by a mere order of the court.</p>

<p>Contempt — When a stranger may sue a receiver in supplementary proceedings without leave of court.</p> <p>A person, not a party to supplementary proceedings, is not punish, able, as for a contempt, for suing the receiver, without leave of court, for taking from him property which he claims as his own, but which the receiver claims is property of the judgment debtor.</p>

<p>Peremptory mandamus — When answering affidavits are conclusive — Elections — City nominating convention may rescind a nomination before final adjournment.</p> <p>Where, in spite of a conflict between allegations of the moving and those of the answering affidavits read upon a motion for a peremptory-writ of mandamus, the relator insists upon the issue of the writ, the allegations of the answering affidavits must be taken as conclusive upon all questions of fact disputed by them.</p> <p>Any action taken by a city nominating convention, a deliberative body, may be rescinded by it before final adjournment; e. g., a nomination for an office; and, generally, where such a convention determines a political question, the court will not reverse the determination unless it is shown to have been the result of fraud or oppression.</p> <p>An honest dispute over the vote cast on the first formal ballot is not enough to justify intervention by the. court.</p>

Hearing upon objections to report of commissioners of estimate and assessment, and upon motion to confirm report as to certain awards.

<p>Negligence — Complaint, under Code C. P., § 1902, when demurrable.</p> <p>A complaint, in an action brought by the administrator of a male decedent under Code C. P., § 1903, against a person whose negligence is alleged to have caused the decedent’s death, is demurrable, where it fails to show that the latter left him surviving either a wife or next of kin.</p>

Issue of law upon, demurrer to the complaint on the ground that it fails to state facts sufficient to constitute a cause of action. The nature of the action and the material facts are stated in the opinion.

<p>Appeal from a judgment in favor of defendants, dismissing the plaintiff’s complaint.</p>

<p>Real party in interest must sue.</p> <p>Where a title guaranty company pays, after transfer of a title, a lien which it failed to discover while making a search for the grantee, and he, although not shown to have requested the payment nor to have made any himself, thereafter seeks to recover this payment of his grantors, it is erroneous to refuse to permit them to show that the company had insured the grantee against just such a loss as, upon such proof made, he would not be the real party in interest.</p>

Appeal by the defendants from a judgment of the General Term of the City Court of the city of Mew York, affirming a judgment of the Trial Term of said court, entered upon a verdict in favor of the plaintiff.

Appeal by the defendant from a judgment of the General Term of the City Court of the city of ¡New York, affirming ,a judgment of the Trial Term of the said court, entered upon the verdict of a jury, directed by the court in favor of the plaintiff.

<p>Appeal by the defendant from a judgment of the City Court of the city of New York, entered on an order of the General Term of that court, affirming a judgment in favor of the plaintiff.</p>

<p>Replevin for fraud — Chattels may be retaken by the true owner so long as they can be identified — Their description in the complaint — Motion to dismiss, when premature — Bona fide purchaser and burden of proof — A liability too contingent to be provable in bankruptcy.</p> <p>A complaint in an action of replevin, brought upon the ground that title to the chattels sold never passed to the defendants because of their fraud, properly and sufficiently describes the chattels where it states them as “ 373 2-8 yards of cloth, whether manufactured or unmanufactured or in process of manufacture, but capable of identification ”.</p> <p>If property can be identified in the hands of a wrongdoer the true owner may replevy it although it no longer remains in its original form.</p> <p>The same particularity of description of the chattels in suit is not required in the complaint in replevin as is necessary in the affidavit to be delivered to the sheriff.</p> <p>Where a motion to dismiss the complaint, on the ground that it states no cause of action and that the opening of the plaintiff’s counsel discloses none, has been denied, and the deficiency is thereafter supplied by the plaintiff’s proof, there is no error available to the defendant in the refusal to dismiss the complaint.</p> <p>Where the plaintiff vendor charges fraud against both of the defendants in that the one, who in the first instance fraudulently obtained or purchased the chattels from the vendor, thereafter fraudulently and as a part of. the scheme sold them to the other defendant, the latter, the sole appellant here, in order to hold them as against the plaintiff, must affirmatively show himself to have been' a dona fide purchaser of them for value and without notice at the time when the purchasing defendant transferred them to him.</p> <p>A liability to the plaintiff, established by his recovery of judgment in his action of replevin, arising out of an undertaking given the sheriff by the appellant defendant, as principal, in order to procure the return of the chattels replevied, and executed in the form required by Code C. P., § 1704, subd. 2, is a liability too contingent to be provable as a debt by the plaintiff, as a creditor, in the defendant’s voluntary proceedings to have himself declared a bankrupt, and therefore his discharge, pending the replevin action, cannot constitute a defense to that action.</p> <p>Clemmons v. Brinn, 35 Misc. Rep. 844, affirmed.</p>

Appeals by the defendants from an affirmance by the General Term of the City Court of the city of ¡New York of a judgment in favor of the plaintiff and of an order denying a motion for a new trial. The mortgagor John J. Geraty resided in the county of ¡New York, and the mortgagor George H. Ball, his partner, resided in the county of ¡Kings, at the. times when they made the chattel mortgages in suit.

Appeal by the defendants from an order of the City Court, General Term, affirming an order of the Special Term, denying a motion made by said defendants for a new trial on newly-discovered evidence, and from an order denying a motion to resettle the General Term order in regard to costs.

<p>Witness — Credibility of a party not to be attacked by proof of mere accusations — When the error is harmless.</p> <p>Upon a trial, where the sole issue was whether the defendant had paid a part of the plaintiff’s claim, the latter was permitted to ask the former on cross-examination and in order to affect his credibility; “ Have you had any trouble lately about the transfer of some property that was made to you and that it was claimed you held fraudulently? ”</p> <p>Held, that the question was improper and the answer inadmissible; but that the judgment would not be reversed for that reason, as it appeared that his counsel subsequently proved by the defendant that the party who made the charge withdrew it and acknowledged that he had no cause of complaint against the defendant.</p> <p>Markgraf v. Klinge, 35 Misc. Rep. 196, affirmed.</p>

Appeals by the defendant from an affirmance by the General Term of the City Court of the city of New York of a judgment in favor of the plaintiff, and an order denying a motion for a new trial,

Appeal by the plaintiffs from an order made by the General Term of the City Court of the city of New York, affirming an order made at Trial Term imposing forty-five dollars costs on said plaintiffs.

<p>Appeal from a judgment of the General Term of the City Court of the city of Hew York, affirming a judgment of said court in favor of plaintiffs. Action for the price of goods sold.</p>

<p>Contempt — Debtor’s default in supplementary proceedings — Fine.</p> <p>Where a judgment debtor under examination in supplementary proceedings fails to appear on the adjourned day because he honestly but mistakenly believes the proceedings to have been stayed by an order which he obtained in a court of bankruptcy, and it is not shown that such failure caused the creditor any pecuniary loss, the debtor should not be fined $250 and $50 costs as for a willful contempt but only $50 and $10 | costs.</p> <p>Kreiser v. Kitaoka, 35 Misc. Rep. 842, modified and affirmed.</p>

<p>Statute of Frauds — Note or memorandum may consist of more than one writing — Offer and acceptance. '</p> <p>It is not necessary that all the elements of a contract required by the Statute of Frauds to be in writing should be found in a single instrument, and they may be contained in a correspondence had between the parties.</p> <p>A failure of the opposite party to accept an' offer within a reasonable time does not discharge the offering party where he subsequently renews the offer.</p>

Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Hew York, second district, borough of Manhattan. As to the certificate of authority of a foreign corporation see L. 1892, ch. 687, § 15; as to license tax, L. 1896, ch. 908, § 181.

<p>Common carrier — When liable for his own negligence — Burden of proof as to loss.</p> <p>A common carrier’s receipt, limiting his liability to fifty dollars unless a greater value is stated or receipted for and declaring, at owner’s risk, accidents caused by fire or water as well as all articles of or contained in glass, contains no stipulations relieving him from the consequences of his own negligence, and therefore where he loses all trace of goods, admittedly received by him, he is liable to their owner for their value.</p> <p>Where the carrier admits receipt of the goods he must show affirmatively that their loss was hot the result of his negligence and their mere disappearance cannot exonerate him.</p>

<p>Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, second district, borough of Manhattan.'</p>

<p>Appeal from a judgment rendered against the defendant by default in favor .of the plaintiff in the Municipal Court of the city of Mew York, seventh district, borough of Manhattan.</p>

<p>Order of dispossession, taken on default — When vacated by Appellate Term — Code C. P., § 3064.</p> <p>Under Code C. P., § 3064, made applicable to the Municipal Court of the city of New York, the Appellate Term has discretionary power to set aside a final order of the said inferior court, dispossessing tenants and taken on their default, where they show that manifest injustice has been done them and render a satisfactory excuse for their default.</p>

Appeal by the plaintiffs from a judgment rendered by the Municipal Court of the city of Hew York, tenth district, borough of Manhattan, in favor of the defendant.

Appeal by the defendant from a judgment in favor of the plaintiff rendered by the Municipal Court of the city of New York, second district, borough of The Bronx.

<p>Appeal by the plaintiffs from a judgment rendered in favor of the defendant by the Municipal Court of the city of New York, fifth district, borough of Manhattan.</p>

<p>Appeal by the defendants from a judgment of the Municipal Court of the city of Yew York, fourth district, borough of Manhattan.</p>

<p>Conversion — Creditor cannot pay himself out of his debtor’s money where he has obtained it by a trick.</p> <p>The plaintiff had a check on a bank for one hundred dollars, drawn by a third party, and needed fifteen dollars in cash- to pay a broker. The defendant thereupon said: “ Give me the check and X will cash it for you.” The defendant obtained the money on the check, paid the broker the fifteen dollars and refused on demand to return the balance, withholding it upon the alleged ground that the plaintiff owed him more than that on book account.</p> <p>Held, that the defendant was liable as for a conversion of the balance.</p> <p>That, although he had obtained possession of the check lawfully his abuse of that possession was a conversion.</p>

<p>Appeal by the plaintiff from a judgment in its favor rendered by the Municipal Court of the city of New York, eighth district, borough of Manhattan.</p>

<p>Appeal "by a tenant from a final order in favor of his landlord made by the justice of the Municipal Court of the city of New York, second district, borough of Manhattan.</p>

Appeal by the defendant from a judgment in favor of the plaintiffs, rendered by the Municipal Court of the city of New York, tenth district, borough of Manhattan.

<p>Appeal by the defendant from a judgment for the plaintiffs rendered by the Municipal Court of the city of New York, first district, borough of Manhattan.</p>

<p>Benefit order — Expulsion must be on notice.</p> <p>Where a registered letter, duly and legally notifying a member of a benefit order that he is in arrears and will be expelled unless he pays .up before the next meeting, has been returned to the secretary of the order on the next day after it was sent for the reason that the person addressed could not be found at the address, the order has no power to expel him four days later without a hearing, as he, to the knowledge of the order, has had no notice, and where a property right is involved expulsion from a society must always be on notice.</p>

Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, sixth district, borough of Manhattan.

<p>Measure of damages for breach of contract — When profits are recoverable.</p> <p>Where embroiderers contract with a house furnisher to embroider for him certain draperies made of a material specially manufactured for him and having no market value or duplicates, while knowing that he requires the completed draperies for the performance of a contract made by him with a third person, their failure to keep their contract, resulting from accidental damage to the material while it was in their hands, entitles the house furnisher to recover of them the value of the material, that of certain labor thereon supplied by him, and also the profit which he would have made had he been able to perform his contract with the third person — it appearing that that contract price was reasonable.</p>

<p>Appeal by the defendant from a judgment in favor of the plaintiff rendered in the Municipal Court of the City of New York, borough of Manhattan.</p>

<p>Municipal Court of the city of New York — Statement, in an order, of the grounds of a new trial — L. 1896, ch. 748, § 1.</p> <p>The rule requiring an order granting a new trial in the Municipal Court of the city of New York to recite the grounds upon which it is based is sufficiently complied with, where the facts w.ere disputed on the trial and the defeated plaintiff took many exceptions thereat in regard to the admission or exclusion of evidence, where the new trial is stated to be granted “ upon the ground that errors were committed upon the trial, prejudicing the above-named plaintiff.”</p> <p>Such a statement of the grounds is, however, very general and bargly sufficient under the statute.</p> <p>Appeal from an order of the Municipal Court of the city of Mew York vacating a judgment given for the defendant and granting the plaintiff a new trial.</p>

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, rendered in favor of the defendant.

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the defendants.</p>

<p>Negligence—Screws projecting from a tenement-house stairway — When a stepfather may sue for loss of services of his stepchild.</p> <p>Where the landlord of a tenément-house, after being notified by a tenant thereof that loose screws project a quarter of an inch from pieces of zinc put on each step of the stairway in order to protect the step, fails to repair, he is liable for injuries which a twelve-year-old child of the tenant sustained by being thrown down the stairs because the heel of her shoe caught on one of the projecting screws.</p> <p>A stepfather, standing in loco parentis to his infant stepchild, may recover a loss of her services caused by the accident.</p>

<p>Motion to set aside a verdict.</p>

<p>Alimony, pendente lite — Granted wife unless her adultery is almost certain — Credibility of paramour.</p> <p>Where a wife denies on oath the charge oí adultery she is entitled to alimony pendente lite unless the evidence of her guilt is so preponderating and convincing as to render it most improbable that she will succeed at the trial.</p> <p>Evidence of a witness who is willing to go into court and swear that he has had intercourse with a married woman should be received with extreme caution and only when corroborated.</p>

Action by plaintiffs as surviving partners of the firm of Turnan, Swann & Co., to obtain a statement of account with the defendant Nathaniel Baxter, Jr., and a sale of certain collateral held by them as security for an indebtedness of bis to that firm. The defendants Margaret 0.

<p>Conversion — A factor need not return to his principal the identical moneys of the sale—Complaint — Demurrer to factor’s counterclaims.</p> <p>A complaint merely alleging that the plaintiff consigned certain merchandise to the defendant, that the defendant sold the same and' reecived therefor a named sum of money and an-instrument eallingfor a named sum of money—not alleged as running to the plaintiff— and that on demand made the defendant refused to pay over the said; money or deliver the said instrument, does not show a conversion of either, as a factor having a power of sale and a limited credit is not bound to turn over to his principal the identical money or securities which he received on the sale.</p> <p>'Such a complaint alleges a debt on contract, and therefore counterclaims, for expenses incurred by the defendant upon the consignments of the merchandise, are not demurrable and this because they •are not only causes of action on contract but arise out of the . contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim.</p>

<p>Slander per se — Words not slandering a house decorator in his occupation— When innuendo cannot enlarge meaning — Allegation of special damage — Demurrer.</p> <p>It is not slanderous per se for a defendant, who has furnished one Jennings with a domestic cabinet instead of an imported one ordered by Jennings but which had not arrived in stock, to tell Jennings, ais» a customer of the plaintiff, a house decorator, in explanation, that the plaintiff had said to the bookkeeper of the defendant that it made no difference who got the imported cabinet, to send Jennings the domestic one and another customer of the defendant the imported one, and that the plaintiff “ would make everything all right with Mr. Jennings (meaning that plaintiff would use his influence with said Jennings to deceive him and to prevent any trouble), as he carried him around in his vest pocket,” since the language, if true, would neither disqualify the plaintiff nor render him less fit to perform the duties of his employment.</p> <p>The words not being defamatory, the innuendo, that the defendant meant by them that the plaintiff would deceive Jennings cannot enlarge their natural meaning nor save the complaint from a demurrer for insufficiency.</p> <p>An allegation, that “ by reason thereof plaintiff lost contracts and! customers and has been deprived of business and profits which he could have otherwise made, and was injured in his reputation to his damage $10,000 ” is too general to entitle the plaintiff to recover thereunder special damages.</p>

Bill in equity to foreclose mortgage on real property. Defense, extension of time to pay given to subsequent grantee whereby original principal debtor was discharged.

<p>Motion to compel refund of interest and to confirm referee’s report.</p>

<p>Specific performance — Adequate remedy at law, how pleaded — Insufficiency of complaint assailable on demurrer to answer — Dismissal— Specific performance of agreement to form partnership-refused — Injunction refused in the absence of negative covenants — Code C. P., § 500.</p> <p>Where the plaintiff sues in equity to compel specific performance-of an executory contract for forming and carrying on a partnership-in manufacturing clothing and to enjoin the defendant from forming any other partnership and also for damages for the breach in case-specific performance cannot be had, a statement or answer, by way off defense, “ that the plaintiff has an adequate remedy at law against this defendant, who is financially solvent and able to respond in. damages for the breach of any contract to which he is a party, and; that said plaintiff cannot maintain this action in equity by reason ol such facts,” is not demurrable for insufficiency, as the objection goes only to the remedy and unless the defendant pleads that the plaintiff lias an adequate remedy at law the defendant cannot raise that point upon the trial.</p> <p>Where the plaintiff demurs to an answer for insufficiency the defendant may, on the demurrer, attack the sufficiency of the complaint but the court will not dismiss the latter if it contains facts 'which entitle the plaintiff to some relief, legal or equitable.</p> <p>Where there has been no- part performance, the court will not enforce specific performance of a contract to form and carry on an ■ordinary partnership, and where the contract contains no' negative stipulations the court will not grant an injunction restraining the defendant from forming any other partnership.</p>

<p>Motion to confirm report of referee as to surplus moneys arising from foreclosure of mortgage.</p>

<p>Writ of prohibition. — Mere bias does not disqualify a judicial officer — One acting judicially is liable for a criminal offense — Impeachment.</p> <p>The Supreme Court will not issue a writ to prohibit a justice of the Court of Special Sessions of the city of New York from proceeding with the consideration of a criminal complaint made against the deputy police commissioner of said city for oppression of a police officer in having fined him thirty days’ pay for violation of the rules of the police department where the application is put upon the ground that the said justice is biased, as bias, unconnected with interest, does not disqualify a judicial officer.</p> <p>The said deputy police commissioner acts judicially in trying members of the police force but that fact cannot protect him from indictment nor entitle him to a writ of prohibition if it be proved, before the justice of the Court of Special Sessions, that, the said deputy while acting judicially has been guilty of oppression, an offense against the criminal law.</p> <p>The remedy by impeachment is not exclusive.</p>

<p>New York city — Status of coroner’s physician — His tenure.</p> <p>The power to remove a coroner’s physician of the city of New York is vested in the board of coroners, it can only exercise that power for cause and, hence, one coroner cannot summarily remove an incumbent even though he appointed him.</p> <p>The tenure of a coroner’s physician continues, subject to removal for cause, during the term of the board.</p>

<p>Action for the construction of a will.</p>

<p>Mortgage — Demurrable allegation, as to grantee’s assumption of the debt.</p> <p>A demurrer searches the whole record and invites inquiry as to the sufficiency of the complaint.</p> <p>A complaint by a bondholder to recover of the defendant, a successor corporation, interest on bonds of its predecessor, which, after setting out the issue of the bonds and his ownership, alleges that the defendant acquired as purchaser at certain foreclosure sales, the railroad, etc., covered by the mortgage described in. the bonds, ■“ subject ” to the debt secured by the mortgage as a prior lien and thereby assumed payment of the said bonds and became debtor to the plaintiff for the interest and principal to become due thereon according to the terms thereof and that the defendant thereafter duly covenanted to pay the bonds and interest as it matured, is demurrable, among other reasons, because it does not allege as a fact that the defendant expressly assumed payment of the mortgage, the rule being that, in order to render a purchaser of land, encumbered by a mortgage, personally liable for the debt, it must appear, first, that the grantor was personally liable for it and, second, that the grantee expressly assumed it or agreed to pay it.</p>

<p>Action to foreclose a mechanic’s lieu.</p>

<p>Demurrer to indictment.</p>

<p>Motion by defendant for a new trial upon the minutes.</p>

<p>Accident insurance — Measure of damages upon an illegal cancellation..</p> <p>Where an accident policy reserves to the insurer the right to cancel' it at any time by a written notice and the return of the membership fee, the proper measure of damages upon an illegal cancellation for an unsubstantiated failure to pay an assessment levied is only the' membership fee, as the member cannot recover the premiums paid.</p>

<p>Negligence — Foreign statute giving next of kin right of action for death enforcible although differing from our statute — Demurrer as to right to sue distinguished from one for insufficiency — Failure to allege the existence of next of kin.</p> <p>An action given by a foreign statute to the next of kin of a decedent for negligence causing his death is transitory in its nature, is not founded upon any penal liability, and is enforcible in the State of New York for a death occurring in the foreign State where the only dissimilarity between the foreign statute and ours is that the former allows a recovery for the pain and suffering of the decedent.</p> <p>A defective allegation of the complaint to the effect that the plaintiff was “ duly ” appointed administratrix of the decedent is not assailable for insufficiency, and the proper course of the defendant is to demur upon the ground that the plaintiff has not legal capacity to sue.</p> <p>Where the foreign statute gives the right of action to the next of kin of the decedent, a complaint which, after alleging that he left no widow or children, fails to allege that he left next of kin is demurrable for insufficiency.</p>

<p>Objections filed with the Bureau of Elections, by a political organization known as the “ Citizens’ Union,” to the certificates of nomination of Smith and Solomon.</p>

<p>Parties — To an action by a legatee, entitled in severalty to a share in. a corpus held by donees of a testamentary power in trust, to recover of them accrued income, legatees under other similar powers are not necessary parties.</p> <p>Where the Court of Appeals has construed a will, containing four similar distinct provisions relative to personalty given to the same trustees, as vesting in each legatee title in severalty to a certain share of the corpus of the provision applicable to him or his class, payment only being postponed and the trustees taking merely a-, power in trust to hold, manage and pay over the income in the meantime, legatees entitled under the other powers in trust are not necessary parties to an action brought by one legatee, out of several entitled under one of the powers in trust, to recover of the trustees income withheld by them and the actual interest earned thereon during the litigation over the will, without substantial allowance to them for their legal expenses, as the other legatees have no interest in the matter.</p>

<p>Bankruptcy — Insufficient allegation by a trustee that the bankrupt was “ insolvent ” when he made a preferential transfer.</p> <p>A complaint by a trustee in bankruptcy, served in his action t® set aside as a preference to the mortgagee a mortgage made by the bankrupt within four .months of the filing of the petition, is insufficient where it merely alleges that at the time of the alleged preference the bankrupt was “ in failing circumstances and unable to pay all his debts in full ”, as this does not, within the Bankruptcy Act of 1898, amount to an allegation that he was then “insolvent” and unless he was he could lawfully make the transfer.</p>

<p>Motion for a temporary injunction.</p>

<p>Action upon an accident insurance policy.</p>

Motion by the comptroller of the city of Lew York, to amend the order allowing compensation, by limiting the total allowances for the defense of the two above-named defendants to the sum of $500.

<p>Accord and satisfaction—.Tender.</p> <p>Where vendors collect a check of the vendee representing an amount agreed upon by him and the agent of the vendors as an adjustment of a disputed claim existing between the parties, there is an accord, and satisfaction of the entire claim.</p> <p>Where the vendee sends the vendors a check for the full amount of an account rendered him by them and they return him the check without stating any reason therefor and he subsequently pays the amount into court and pleads the tender as an answer to their action on the account, they should be nonsuited on the trial provided there-is no question of fact.</p>

Motion by Bertha E. Becker, judgment debtor, to vacate and set aside an order made by the county judge of Cattaraugus county, November 4, 1901, adjudging said judgment debtor guilty of contempt- of court and fining her the sum of one thousand two hundred dollars, to be paid to the sheriff of Cattaraugus county for the judgment creditors named. Finck v. Mannering, 46 Hun, 323.

<p>Motion to dismiss an indictment.</p>

<p>Lease — A complaint thereon, and not in ejectment — Belief, for possession demanded under a covenant broken — Party in possession not a party to the action.</p> <p>A complaint which alleges that, under a lease in perpetuity, the plaintiffs are owners in fee of certain described real property presently in the possession of the sole defendant, that they are entitled to its possession and rents and profits, that the defendant has occupied and paid rent under the lease, that he has now made default in payment of the rent on demand, that he has forfeited the conditions of the lease and is wrongfully and unlawfully in possession and wrongfully and unlawfully withholds it, does not state a cause of action in ejectment, but one on the lease, for rent and for possession.</p> <p>Where for the first time upon the trial of the action the defendant, after interposing a general denial and thereunder claiming title under a deed from a third party, produces an unrecorded deed showing that he had before action brought conveyed the real property to his wife and testifies that he has turned the possession over to her and the plaintiffs make out a prima facie case and no question of fact is raised, the plaintiffs are entitled to a judgment for the rent due and unpaid and also barring the defendant from possession and occupation, notwithstanding the fact that no judgment can be rendered barring the rights of the wife.</p>

<p>Action for damages for negligence. Motion to direct a verdict for the defendants made after the close of the evidence on both sides, and reserved until after verdict. Verdict for the plaintiff.</p>

<p>Contributory negligence — Accident to an operator on a stamping machine— Verdict against evidence.</p> <p>Where a foreman, an experienced presshand, a die-setter and a machinist, all familiar with a machine for stamping covers for tin pails, testify that it was in perfect condition just before an accident to the plaintiff, an inexperienced operator who had been instructed therein by the foreman, and that the die would not come down unless the foot of the operator was upon the treadle controlling the die, a verdict in favor of the operator and against the defendant employers cannot stand where it rests on her uncorroborated testimony that the die did come down when her foot was not upon the treadle, and cut off the ends of three of her fingers, as it must be assumed that the accident occurred from the plaintiff’s failure to obey instructions and not from the defendant’s failure to give them.</p>

<p>Evidence — Erroneous admission, in an action by a mother for a loss of her injured daughter’s services and for medical expenses to her, of a judgment which the daughter had already recovered for her injuries.</p> <p>Where a mother sues two corporations jointly to recover of them a loss of her infant daughter’s services and earnings resulting from injuries to her caused by their alleged negligence, and also medical and surgical expenses which the mother alleges that she incurred in the treatment of her daughter’s injuries, the admission of the complaint, in an action in which the daughter had already recovered a large judgment against one of the corporations for her personal injuries, and of the judgment itself is fatally erroneous where it does not appear that the daughter made any proof, in her action, of medical and surgical expenses.</p>

<p>Referee — Fees — Code C. P., § 3296.</p> <p>In the absence of a stipulation of the parties a referee in a special proceeding is only entitled to ten dollars for each calendar day spent in the business of the reference, and the fact that the hearings were protracted and held at unusual hours and places cannot entitle him to more.</p>

<p>The claim of the city of Hew York was for personal taxes, and attached on the second Monday of January, 1896; see S. C. 34 Misc. Rep. 318 for further facts.</p>

<p>Heabing upon return to writ of habeas corpus.</p>

<p>Motion to confirm referee’s report as to surplus.</p>

<p>Interest —As between preferred and general creditors of a dissolved corporation — When not recoverable after payment of principal — Preference, when refused an attorney.</p> <p>Under a charter providing that upon the dissolution of the corporation debts due from it as trustee, guardian, receiver or depository of moneys in court or savings bank funds shall have a preference, the preferred creditors are entitled, as against general, to legal interest on their claims although they received less while the corporation was going, and the rule must be applied even where it exhausts the fund.</p> <p>Where, however, preferred creditors have accepted and receipted for the principal of their claims, they are not entitled to interest thereon, as it in such case does not flow from the contract but is merely damages for the nonpayment of a debt.</p> <p>An attorney who has rendered general legal services to the corporation, not in an action or proceeding, nor increasing the fund in the hands of the receiver, or a lien on the fund, is not a preferred creditor.</p>

<p>Action to recover on express covenant.</p>

<p>^Fraudulent conveyance, by a debtor to a stranger.</p> <p>A conveyance by a man largely indebted to creditors of a house and furniture worth $35,000 to a woman having no claim upon him; for the consideration of one dollar, is clearly intended to hinder, delay and defraud his creditors vand must be set aside.</p>

<p>Motion to set aside the verdict in an action for negligence.</p>

<p>Action for the construction of a will.</p>

<p>Action for an injunction.</p>

<p>Principal and agent — Defense of agent that a thief stole the principal’s goods — Demurrer.</p> <p>Where the principal sues the agent for a breach of a provision in their contract requiring the agent to return samples, furnished him for use only in the trade, and it clearly appears from the contract that their relation is that of principal and agent and not that of insurer and insured, a defense is not demurrable which alleges that the samples were stolen from the agent in the night-time without his fault or negligence and, further, that before the principal was entitled to the return of the samples, under the terms of the contract, no part of them had been recovered by the agent.</p> <p>He need not go further and allege that he has used due diligence in attempting to recover the samples from those who stole them.</p>

<p>Motion for a new trial.</p>

Demubbeb to complaint in an action for libel. The article claimed to be libelous is as-follows: “ JEEOME LEADS EAID ON ‘ BEAOE ’ GAME. “ Mb. Baldwin, of the Fifteen, Saw an Advebtisement fob Man with Money to Invest. “ Justice William Travers Jerome, accompanied by Frank Creighton, a detective of the Committee of Fifteen, and Patrolman William Day, made a raid last night, at No. 134 West Seventy-ninth Street (meaning plaintiff’s said boarding-house) and arrested five men.

Action by plaintiff against the defendant as surviving member of the firm of Russell & Birkett, which, on February 15, 1899, made and delivered its promissory note to the order of Manhattan Railway Advertising Company, whereby it promised to pay on April 5, 1899, the sum of $750. The note, duly indorsed by payee prior to its maturity, was discounted by plaintiff, which, at the request of the makers before maturity of the note, extended the time of payment until April twelfth.

<p>Corporation — Restrictions on power of religious and educational to take — L. 1893, ch. 701 —Legacy, when general — Residuary estate.</p> <p>Corporations organized under L.' 1848, ch. 319, and 1875, ch. 343, cannot take a devise or bequest from a testatrix who dies within two months after executing the will containing the devise or bequest.</p> <p>An unlimited bequest to a corporation, incorporated “ to cremate the human dead in the quickest, best and most economical manner,” and authorized to that end to take by devise or bequest “ land, tracts, buildings, machinery, rights or chattels,” may be sustained as a gift for its corporate purposes.</p> <p>A trust to purchase, with the income, books and works of art for the “ Pickering and White Library and Chime Tower,” for the care and repair of the same and to aid in playing the bells of the tower, the tower being a part of a church, may be susained, under L. 1893, ch. 701, as gifts to objects educational and religious, but a direct bequest, to the library, tower and bells, cannot be sustained as there are no such persons, natural or artificial, in existence.</p> <p>The restriction of L. 1848, ch. 319, § 6, does not affect corporations organized under L. 1895, ch. 559.</p> <p>A legacy, in so far as it consists of securities, is general and not specific.</p> <p>Under a general residuary clause illegal bequests fall into the residuum and void bequests of the residuum pass to the next of kin.</p>

<p>Demurrer to alleged defenses in defendants’ answers.</p>

<p>Street railroad — Provision as to a single fare for a continuous passage inapplicable to leased steam lines — Ii. 1884, eh. 252.</p> <p>The provisions of the general act, L. 1884, ch. 252, relative to street railroads, that no company or corporation incorporated under, or constructing and operating a railroad under the act, shall charge any passenger more than five cents for one continuous ride from any point on its road or on any road or line or branch operated by it or under its control to any other point thereon or on any connecting branch thereof within the limits of any incorporated city or village, do not apply to routes or roads which such a corporation has leased from existing steam railroad companies not incorporated under said act.</p>

Action upon a fire policy of reinsurance issued by the defendant to the plaintiff's assignor, the Virginia Fire and Marine Insurance Company of Richmond, Va. On June 30th, 1899, the said Virginia company mailed a letter to the agents of the defendant in New York city applying for a policy of reinsurance un a risk which said Virginia company had on buildings, machinery and other personal property in Virginia for one year from June 27, 1899, and enclosing forms therefor.

Motion to amend a final decree of divorce, by reducing the amount of alimony, in a case where the plaintiff-wife has remarried.

<p>Examination before trial — Of parties occupying a fiduciary relation — General Rules of Practice No. 82 — Necessity of examination — Production thereat of books and papers, and subpoena duces tecum — Possibility of incrimination — Scope of examination.</p> <p>An examination before trial of the president of a corporation and of a director, as officers and as individuals, will not be denied a minority stockholder suing to prevent consummation of an alleged fraudulent scheme to divert the corporate assets to a new corporation, of which both the president and the director are directors, merely because some of the essential allegations of the plaintiff are on information and belief where he states the grounds of his belief and the sources of his knowledge, so far as he can, and the knowledge as to which he fails is necessarily and peculiarly with the parties he seeks to examine, occupying á fiduciary relation to him.</p> <p>The declaration of Rule 82 of the General Rules of Practice that the affidavit shall specify the facts and circumstances which show the examination of the person to be material and necessary does not make it incumbent on the plaintiff to state these requirements in the words of the rule and it is sufficient that the motion papers show that the information sought is necessary and material.</p> <p>The necessity of an examination before trial is evident where the parties occupy a fiduciary relation, where the information desired and necessary to establish the cause of action is contained in many papers under the control of the defendants, and where it would delay the trial if the plaintiff had to examine all these papers on the trial in. order then to present a definite and limited issue.</p> <p>An order for examination before trial may properly call upon the defendants for the production of books and papers where these are not to be produced for inspection, but, specifically, to refresh the recollection of witnesses upon the examination; and, under an order thus limited, the plaintiff may issue a subpoena duces tecum although that process is not expressly authorized by the order..</p> <p>Where no criminal charges are involved, an order for examination before trial will not be set aside because the defendants may possibly be asked questions at the examination which may incriminate them, as that matter must be left until the examination and the defendants can then raise any questions of privilege.</p> <p>The judge granting an order for examination before trial has dis-</p> <p>■ cretion to direct that the examination be general in its scope.</p>

<p>Action for the construction of a will and codicils.</p>

<p>New York city — Award to unknown owners in street opening — Bight of abutters to maintain railroad tracks in E. 135th St.</p> <p>An award in proceedings taken by the city of New York to condemn land for a street should be made to the persons who owned the land when title to it vested in the city, but where owners of the lands on both sides of a street, running east and west, after conveying everything but the lands in the street, convey before confirmation of the report of the commissioners the lands on the south side of the street to the mesne grantee “ together with all right of any nature or kind * * * in and to the adjacent streets and avenues,” it is not so certain that the mesne grantee is not entitled to an award made for the lands taken on the north side of the street as to render it improper for the commissioners to make that award to unknown owners.</p> <p>Evidence deemed insufficient to show that certain abutting owners on E. 135th St., New York city, had a right, at the time when title vested in the city in 1896, to maintain in that street railroad tracks for the passage of steam or other carriages, under a deed from Gouverneur Morris made April 28, 1848.</p>

Action by plaintiff to restrain the maintenance by defendants of a wall encroaching on plaintiff’s land to the extent of eight inches in front and four inches in the rear.

<p>Action by the executors and trustees of the last will and testament of Cornelius V. S:. Roosevelt, deceased, for the purpose of procuring a judicial settlement of the account and proceedings by such executors and trustees since April 1, 1894, and to obtain a construction of the meaning and effect of said will in regard to various questions which have arisen in. respect thereto. The other facts sufficiently appear in the opinion.</p>

<p>Motion for an injunction.</p> <p>The facts appear sufficiently in the opinion.</p>

This is an action in which the plaintiff prays a dissolution of a partnership between him and the defendant, the appointment of a receiver of the copartnership assets, including certain lands described in the complaint, and a salé hy the receiver of the assets, property and good-will, in hulk, as a going concern, and a division between the parties of the proceeds, after the payment of the copartnership debts and costs, together with general relief.

<p>New York city — Condemnation under L. 1894, ch. 366 — Owners who have excepted to the commissioners’ report are not guilty o£ laches in neglecting to move to confirm it — Award.</p> <p>Where owners of property, condemned for St. Nicholas Park, New York city, under L. 1894, ch. 366, providing that title shall not vest in the city until the report of the commissioners is confirmed, file objections thereto upon the ground that they have not been awarded thereby just compensation, and two years elapse, after confirmation of the report as to all parties except them, without any action upon the part of the city to procure confirmation as to them, and they remain in possession in the meantime, they have not been guilty of laches and are entitled to an order requiring the commissioners to make a supplemental report awarding them compensation and under the rule laid down in Matter of Mayor, 40 App. Div. 281, and Matter of Riverside Park, 59 id. 603.</p>

<p>Bill for specific performance of contract' for sale of realty.</p>

<p>Bill by executors to pass their accounts and for instructions.</p>

<p>Indictment — Plea in abatement abolished — Code Grim. Pro., §§ 273, 321, 323, 332, 333, 334 — Objection to the grand jury.</p> <p>The Code of Criminal Procedure does not permit the interposition to an indictment of a plea in abatement, as such a plea is now unknown to our law.</p> <p>Semble, that, if the defendant desires to object to the indictment upon the ground that one of the grand jurors who found it was not a resident of the county in which it was found he must do so before issue joined, and, in any event, that a general continuance after arraignment will deprive him of this right or privilege.</p>

<p>Order of arrest — Permissible in action for a separation for cruel treatment — Code C. P., § 549, subd. 2.</p> <p>Am order of arrest may be granted in a wife’s action for a separation upon the ground of her husband’s cruel and inhuman treatment of her, as the action is one “ to recover damages for a personal injury ”</p> <p>within Code C. P., § 549, subd. 2.</p>

<p>This is an application fór a writ of mandamus against the clerk of the municipal court of the city of ¡New York for the second district of Brooklyn borough that he refund to the petitioner the sum of $2.50 which he exacted and'received of the petitioner for a trial fee in a case in the said court in which the petitioner was plaintiff. To the oral complaint in such action the defendant put in an oral answer, viz., a general denial, on the return day. The said clerk thereupon, and then, demanded and received such trial fee of the plaintiff. On the adjourned day the defendant did not appear and the plaintiff took judgment by default. He then demanded back the said trial fee, but it was refused.</p>

<p>Action by two mortgagees as to priority of lien.</p>

<p>Motion for an injunction pendente lite.</p>

<p>Motion to place cause on general calendar.</p>

Trial of issues of law. Besides the said city, Bird S. Coler, the comptroller of the said city, The United States Land and Improvement Co., The Cooperative Society of New Jersey and The Brooklyn and Jamaica Turnpike Co. (three corporations), and Alonzo E. Smith, Charles E. Twombly, John H. Eldert and William H. Boynton are defendants.

<p>Demurrer to complaint.</p>

<p>Trespass — When the owner of the dominant estate cannot remove an obstruction to his right of way without first requesting the owner of the servient estate to remove it — Treble damages.</p> <p>Where the owner of a plot of ground, on which trees are growing, deeds the front of it to one person and the rear to another person and by the same deed gives the latter a right of way over the grant of the former in order to reach the street on which the plot abuts, the owner of-the rear cannot cut down trees on the front, as obstructions to his right of way, until he has requested the owner of the front to remove them.</p> <p>If he cuts them down without such prior request he is a trespasser, and where his acts are forcible and deliberate and he has no reason to believe the land in front to be his own he is liable in treble damages.</p>

Appeal by Marcus Schnitzer from an order of the General Term of the City Court of the city of Hew York, affirming an order of the Special Term, denying a motion made by the appellant to vacate an order of substitution, and for other relief.

Appeal by the defendant from a judgment of the General Term of the City Court of the city of New York, affirming a judgment entered on the verdict of a jury in favor of the plaintiff.

Appeal by the plaintiff from an order and judgment of the General Term of the City Court of the city of New York reversing a judgment of the Trial Term and ordering a new trial.

<p>Appeal by the plaintiff from a judgment rendered in the Municipal Court of the city of New York, seventh district, borough of Manhattan.</p>

<p>Lease — Local custom inadmissible — Principal and agent — Parol lease for more than a year void — Part performance at law.</p> <p>As against a written lease forbidding underletting, the tenant cannot prove a local custom of landlords permitting tenants to sublet during the summer months of the term, nor can the naked assent of the landlord’s agent to such a subletting avail the tenant, in an action for the rent of the summer months, so as to enable turn to offset the breach of the alleged agreement permitting him to sublet, assigned to him.</p> <p>• An oral lease for seventeen months is invalid under the Real Property Law (L. 1896, ch. 547, § 224), and part performance cannot save it, as that doctrine is confined to equity.</p>

<p>Appeal by the defendants from- a judgment of the Municipal Court of the city of New York, third district, borough of Manhattan.</p>

Appeal by the plaintiff from, an order made by the Municipal, “Court of the city of New York, second district, borough of Manhattan, vacating a judgment and discharging the defendant from arrest and imprisonment.

Appeal by both parties from a judgment in an action of replevin, rendered by the Municipal Court of the city of New York, tenth district; borough of Manhattan. .

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of New York, seventh district, borough of Manhattan.</p>

Appeal by the plaintiff from a judgment in favor of the defendant rendered by the Municipal Court of the city of New York, . third district, borough of Manhattan.

Appear by the defendant from a judgment in favor of the plaintiff in an action brought to recover chattels rendered in the Municipal Court of the city of New York, eighth district, borough of Manhattan.

<p>Appeal by the defendants from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, eleventh district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, first district, borough of Manhattan.</p>

<p>Common carrier—Notice to consignee’s wife of arrival of goods — Carrier, as warehouseman — Delay of consignee in removing goods.</p> <p>Where a common carrier notifies the wife of the consignee, in apparent charge of his place of business in his absence, that the goods have arrived, and she requests the carrier to leave them on its local dock as her husband is not ready for them, and the husband is given a reasonable time to remove them, the carrier is discharged as such, becomes liable as a warehouseman only; and then only in case of its. negligence. •</p> <p>A delay by the consignee of three days in removing the goods is unreasonable, and where they are stolen without fault of the carrier from its storehouse at the end of that period neither the consignee nor his assignee can recover their value of the carrier.</p>

<p>Transportation Corporations Law, L. 1890, ch. 566, § 103 — Penalty not enforcible for mere delay in transmitting a telegraphic despatch.</p> <p>Under the Transportation Corporations Law (L. 1000, ch. 566, § 103), a penal statute, imposing a penalty upon a telegraph company for its neglect or refusal to transmit despatches “ with impartiality and good faith and in the order in which they are received”, there can be no recovery against the company for its mere delay in transmitting a message to another State, and the fact that the sender paid extra to have it repeated to the sending office is not material.</p>

<p>Action to recover certain sums alleged to be due upon a written agreement made by the plaintiff and the defendant.</p>

<p>Metropolitan Elections District Law of 1898 — Indictment for hindering and delaying a deputy “ in the performance of his duty ” — Eight of suffrage not to be invaded by arrest, violence or threats — Eight to arrest without a warrant — Defendant must have been called on by the deputy for assistance — L. 1896, ch. 909, § 108; Penal Code, §' 41, subds. k and s; Code Grim. Pro., §§ 177, 183.</p> <p>In order to make out the criminal offense of hindering or delaying' an officer “ in the performance of his duty ” it must first be proved that.he was in the performance of his duty and if, instead, he was committing a trespass upon the sovereign rights of a citizen, the officer, may lawfully be resisted in the same manner as if he were a private person.</p> <p>A registered elector is entitled to vote if willing to take on challenge the statutory qualification oath.</p> <p>A person or officer who attempts to arrest him while offering to vote, or voting, in order to prevent his so doing, is guilty of assault and battery and also violates Penal Code, § 41, subd. k.</p> <p>Any violence or restraint or threats thereof; employed to prevent voting, violate Penal Code, § 41, subd. s.</p> <p>An officer cannot without a warrant lawfully arrest a person for a felony unless it has been actually committed; he cannot act upon information or reasonable grounds of belief as to whether it has been committed, but, if it has in fact been committed, he may act on such grounds as to whether the one to be arrested committed it.</p> <p>He may arrest without a warrant for any criminal offense committed in his presence and, if a felony be committed out of his presence, may without a warrant arrest any person he has reasonable cause to believe committed it.</p> <p>A person cannot be convicted, under L. 1898, ch. 676, § 7, as amd. by L. 1899, ch. 499, of hindering or delaying an officer in the “ performance of his duty ” unless he has first been called on by the officer ” to render such assistance as may be required ”.</p> <p>The offense is not the same as the misdemeanors covered by Penal Code, §§ 46, 47, 124.</p>

Suit commenced in 1895 to remove clouds upon title to real property situated in the former town of New Utrecht, in Kings county, made a part of the city of Brooklyn by an act passed in 1894 (ch. 451). The suit is against the state officials who are the commissioners of the land office, and also against the state comptroller.

Action on two certificates issued by the defendant to the plaintiff Council by which the defendant became surety to the plaintiff Council against “ the fraud or dishonesty ” of Francis O. T.i-n^ the collector of such Council, “ amounting to embezzlement or larceny.” One certificate was issued January 1, 1899, and the other January 9, 1900; and each was to expire with the year in which it was issued; and the said collector’s term of office as such collector expired each, year…

Action against the Manhattan Life Insurance Company to recover the amount due on a policy of insurance, including a mortuary dividend, amounting in all to the sum of $4,036.80.

<p>Corporation — Issue of preferred stock — Option for its retirement at par — Bights of a holder — Exercise of the option — Not an organic change — Injunction refused where there is a remedy in damages.</p> <p>Where a foreign railway corporation is authorized by law to issue, upon a vote of a majority of its stockholders, preferred stock, without any conditions or restrictions, the corporation may upon due issue thereof for value attach thereto such conditions as it chooses, these conditions when assented to by holders become the contract between it and them and their acquiescence follows their acquisition of the stock.</p> <p>A condition of the issue, that the corporation may, on any 1st day of January prior to 1917, retire the whole or any part of the preferred stock at par, is valid; and where the act of incorporation also provides that the preferred may be made convertible into common stock at the option of the corporation, it may lawfully carry out a plan to retire the preferred stock at par, issue common stock instead, and give present holders of the common stock the privilege of acquiring all the additional common stock.</p> <p>Holders of the preferred have no other rights than to have the ■option exercised legally and receive par for their stock and, therefore, will not be permitted to enjoin such a plan upon the ground that it will reduce the capital of the corporation, for, assuming the ■contention to be true, the reduction will come after they have ceased to have any interest in the corporation.</p> <p>Where its charter provides that all its affairs shall be managed by a board of directors and they are invested with all the powers of the corporation “ except as hereinafter provided ”, a resolution of the board, retiring all the preferred stock at par on Jan. 1, 1902, is a valid exercise by the corporation of the option.</p> <p>The exercise of such an option does not effect an organic change in the composition or business of the corporation.</p> <p>Assuming that the holders of the preferred have a right to exchange it for the new common stock and that the right has bee» wrongfully denied them, their remedy is in damages, the corporation, being solvent, and they are not entitled to an injunction.</p>

<p>Hew York city — When an assessment is “ levied and assessed ” within Jj. 1896, ch. 618, $ 1 — Statutory construction.</p> <p>The rule, that, while a liability to be thereafter assessed accrues when the city of New York takes title to property condemned for public use, the assessment itself is not deemed made or levied until the commissioners’ report is filed and that the amount to be assessed upon a piece of the property depends on the law then in force, as well as the question whether it is to be. assessed at all, held to apply to L. 1890, eh. 018, § 1, and to have the effect of depriving the real estate of a religious corporation, used by it exclusively as a place of public worship in the 23d and 24th wards, of the exemption afforded it by that statute from assessment for public improvements “levied and assessed” thereon during three years from Jan. 1, 1896 — the city having taken title on Oct. 28, 1896, and the report of the commissioners not having been filed until Feb. 6, 1899, nor confirmed until April 24, 1901.</p> <p>A statute which exempts a particular class of property from public burdens, imposed on other classes, is to be construed fairly but strictly, and the exemption is not to be extended by any strained or fanciful interpretation of the language of the statute.</p>

Writ of certiorari to review an assessment against the relator’s real estate which the assessors, on grievance day, refused to strike from the assessment-roll.

<p>Constitutional law — Commissioners to build a courthouse are not, county officers — Legal deprivation of supervisors of some of their duties — Local bill embracing more than one subject — Ministerial duties enforcible by mandamus — Peremptory writ — Constitutionality pf L. 1901, eh. 89.</p> <p>A special act (L. 1901, cb. 89), constituting certain residents of a county commissioners with power to acquire a site for and furnish a new courthouse and sell the old one and also requiring the county board of supervisors to borrow money and issue bonds to pay the expense, does not make the commissioners county officers within the Constitution of 1894, art. X, § 2, requiring county officers, whose election or appointment is not provided for by the Constitution, to be elected by the county electors or appointed by the county authorities.</p> <p>The act does not unduly deprive the county board of supervisors of its legitimate duties, merely effects a permissible modification of them and lawfully directs that certain of them shall be performed by agents selected by the Legislature.</p> <p>The act does not violate the said Constitution, art. Ill, § 27, enacting that the Legislature shall “ by general laws ” confer upon boards of supervisors such further powers of local legislation and administration as the Legislature may from time to time deem expedient.</p> <p>The Legislature may by special act deprive a board of supervisors of the right to büild a courthouse.</p> <p>The act is not unconstitutional as requiring the county to contract against its will, i. e., issue bonds when the board of supervisors is unwilling to do so, for, the Legislature has power to compel the board to issue them.</p> <p>The act is not unconstitutional as a local bill embracing more than one subject, in that it also authorizes the sale of the old courthouse, as that sale is a proper adjunct of the main purpose of the bill, the building of a new courthouse.</p> <p>A writ of mandamus is a proper remedy to compel/ performance by a board of a ministerial duty plainly prescribed by statute.</p> <p>In determining whether a peremptory writ should issue, all relevant facts, stated in opposition to the application, must be deemed to be true.</p> <p>Where a valid statute plainly imposed upon a board of supervisors a ministerial duty to borrow money and issue bonds and the conduct of the board indicated its intention to disregard the statute, the court compelled it to act by issue of a peremptory writ of mandamus.</p>

<p>Application for a peremptory writ of mandamus directed to the county clerk of Monroe county to compel him to issue a certificate of nomination as alderman of the second ward of the city of Rochester, N. Y., to Matthias J. Caliban, in accordance with the Republican primary election, held in said ward September 17, 1901, or show cause to the contrary.</p>

<p>Words — Definition of a “ copy ” of a book.</p> <p>In the book trade the word “ copy ” does not usually mean a single volume of a work but a reproduction of the whole of it, without regard to the number of volumes.</p>

Action in equity to restrain defendants from using plaintiff’s trade-marks and for an accounting to ascertain damages. Motion for a compulsory reference.

<p>State Board of Charities — Status — Public moneys cannot be paid a correctional institution for the care of inmates unless they were received and retained under the rules of the State Board — Const, of 1894, art. VIXI, § 14.</p> <p>The State Board of Charities is a constitutional body created by the State Constitution of 1894 and is not an inferior board or body, to which the Legislature has attempted to delegate powers possessed by itself.</p> <p>Inasmuch as the said Constitution, art VIII. § 14, forbids payment of public moneys to a correctional or reformatory institution for any inmate thereof not received and retained therein pursuant to rules established by said board, the New York Juvenile Asylum, an institution of that character, authorized by its-charter in force before said Constitution to receive, and be paid a fixed sum by the city of New York for the care of a child merely voluntarily surrendered to its custody by the mother, can no longer compel the city to pay it for the care of the child where it was not received and is not retained by the Asylum pursuant to rules which were adopted by the board before reception of the child.</p> <p>The said rules do not unlawfully deprive the Asylum of a property-right secured to it by its charter.</p>

<p>Appeal from a judgment in favor of plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial.</p>

<p>Appeal from a judgment in favor of plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial.</p>

<p>Appeal from an order denying defendants’ application to vacate an order which directed defendants to appear for examination before trial.</p>

<p>Appeal from judgment entered upon a verdict and from order denying defendant’s motion for a new trial on the minutes.</p>

<p>Corporation"—Plan, to surrender majority control of it, sought to be enjoined — Complaint — Stockholder’s right to sell his stock not controllable by the corporation — Injunction.</p> <p>A stockholder has, unless his own action has prejudiced it, an undoubted right to sell his stock in the corporation and it cannot prevent him from doing so.</p> <p>Where the complaint, in an action brought against a corporation by certain of its stockholders in order to enjoin consummation of a plan for the purchase of a majority of the stock by another corporation (not a party), prevent other stockholders (not parties) from selling their own and the proposed purchaser from buying, contained nothing to show that the officers of the defendant had unlawfully conspired to turn over the control of it for personal emolument or in defiance of legal duty and merely alleged that should the proposed purchaser acquire a majority of the stock it might use its advantage to the detriment of the minority stockholders of the defendant, the court considered the complaint demurrable for insufficiency and held that as the stockholders, other than the plaintiffs, had a right to sell any of the stock which they held privately, no injunction could lie against the defendant to prevent acts which it had no power to stop.</p> <p>It was also held that if the plaintiffs’ stock had been deposited with a trust company for an unexpired term of years and they were thereby prevented from accepting the offer of the proposed purchaser, limited as to time, that fact did not entitle them to enjoin other stockholders from selling their free stock.</p> <p>An injunction must rest on overt acts affording a presumption of future injury and cannot be granted on the ground of possible waste.</p>

<p>Action by legatee to establish a will — Change of domicile of choice — Overt acts and declarations — Intent — Motive — Collateral attack, on a prior foreign decree of probate of the same will, when permissible — IT. S. Const., art. IV, § 1.</p> <p>The domicile of a person is where he has bis permanent home and principal establishment, to which, whenever he is absent, he intends to return.</p> <p>To effect a change of it, for the purposes of succession, there must be not only a change of residence but also proof, other than by mere declarations, of an intention to abandon the former domicile and acquire another as a sole domicile.</p> <p>Every case of domicile is to be determined upon its own facts.</p> <p>Consummation of a frequently expressed intention upon the part of a person, domiciled by choice and resident in the city of New York for twenty-five years and up to six days before his death, to change his domicile to Connecticut, his domicile of origin, is not shown by mere proof that he was engaged up to the time of his death upon an unconsummated plan to centralize all his property in a Connecticut corporation bearing his name, nor by his making arrangements in New Haven, Gt., while there for a part of a day, three days before his death •in New York, to board, with a person in New Haven at some future time, nor by his examining on the same day a house in New Haven with a view to purchasing it in the future.</p> <p>A person’s declarations, whether written or oral, as to where his domicile is, are evidence inferior to his acts in that regard and are to be rejected where they conflict with his acts.</p> <p>A domicile of choice, required to be gained animo et facto, can be relinquished only in the same manner, and both the animus and factum must be expressive óf a present intention to reside presently and permanently in the new domicile.</p> <p>Where the manner and facts of a person’s return to his domicile, after a one-day’s visit to the alleged new domicile, indicated that he had no present intention of remaining permanently in the alleged new one and also-that he had never left his present one without intending to return to it, the court considered that his domicile remained unchanged.</p> <p>In determining the tona fides of the intent to change one’s domicile motive may sometimes be considered, as where a person has made a will and codicils which illegally suspend the power of alienation as limited by the laws of his domicile, or where it appears that he desired to escape taxation imposed by those laws.</p> <p>An action by a legatee under a will, alleged to be that of a New York testator, to procure a judgment establishing it and its codicils upon the ground that they are in Connecticut under such circumstances that they cannot be obtained for probate in the proper Surrogate’s Court of the State of New York, and also upon allegations that its last codicil, executed in Connecticut three days before the testator’s death and describing him as a resident of New Haven, Ct., was thus made and executed to evade the laws of the State of New York and because the will and codicils illegally suspended the power of alienation as to property, the major part of which then was, and some of which still is, in the State of New York, is not barred by the fact that the said legatee had already upon her own petition as widow procured the will and codicils to be probated in the Probate Court for the District of New Haven, Ct., having general jurisdiction of the probate of wills, by a decree, not directly attacked, declaring, after proof made in regard thereto, that the testator was at the time of his death a resident of New Haven, Ct.</p> <p>The supreme court of Connecticut having decided that the fact of residence is purely jurisdictional in probate proceedings, that its courts of probate are inferior courts of limited jurisdiction, and that a decree made in them, ex parte or inter- parties, after proof made in regard to the question of residence, may be attacked directly or collaterally as to the decision reached upon that question, the said legatee may attack collaterally the Connecticut decree, probating the testator’s will and codicils, in regard to the recital made therein as to his residence, may prove in her present action that his domicile and residence at the time of his death were in the State of New York and upon sufficient proof thereof is entitled to have the will and codicils established- in the State of New York as that of a New York testator.</p> <p>The provision (U. S. Const., art. IV, § 1) requiring each State to give full faith and credit to the records and judicial proceedings of every other State does not exclude the proof.</p>

<p>Motion by relator for an order directing the town clerk of the town of Fleming, Cayuga county, to call a special town meeting for the purpose of resubmitting to the electors of that town, the propositions set forth in the Liquor Tax Law, under the provision for local option.</p>

<p>Contract — ^Restraint of trade — Public policy — Injunction.</p> <p>Where a sole manufacturer of a certain kind of quilting machine, the patents on which have expired and the designs and patterns for which are obtainable by any manufacturer, agrees with a customer upon his buying all the machines in stock, numbering eight, that he will make no more like them, the agreement is valid and enforcible, if broken, by injunction.</p> <p>The agreement does not amount to an attempt to regulate the market. since the manufacture remains open to all others, and is not against public interest as depriving the public of a useful machine since, if it is useful, the public presumably can buy it of others at liberty to and who will probably enter upon its manufacture.</p>

<p>Motion for a new trial on the ground of excessive damages, in an accident case.</p>

<p>Evidence — Custom — Nature of an action when not changed hy the proof.</p> <p>To make custom and usage operative in the interpretation of a general or ambiguous clause in a bill of lading it must be shown to be reasonable, uniform, well settled, not in opposition to fixed rules of law, not in contradiction of the express terms of the contract, and of such a character as will he deemed to have entered into the contemplation of the parties.</p> <p>Where the plaintiff sues a common carrier upon its common-law liability for negligence in having permitted the goods of his assignor to be destroyed by fire while in its possession as a carrier, the fact that the plaintiff put the bill of lading in evidence on the trial does not require him to recover, if at all, upon contract.</p>

In 1845 one Alfred Lyon went into possession of the premises southeast corner of Bloomingdale road and One Hundred and Thirtieth street, Hew York city, under a deed which, by error of description, only conveyed the.southerly portion of said premises and a portion of adjoining premises which it was not intended by the parties to convey. In 1870, Hannah Lyon, his widow and devisee, mortgaged said corner premises by correct description.

<p>Motion for an injunction pendente lite made by the plaintiff, a'judgment creditor of the defendant Abraham Bechewati, in an action to obtain a judgment declaring fraudulent and void, as against the plaintiff, a mortgage executed by Bechewati to the defendant Majeeb T. Basha on lands of Bechewati in the State of Mew Jersey, compelling Basha to satisfy and deliver satisfaction of the mortgage, and also restraining Bechewati from alienating or incumbering said lands pending an action instituted by the plaintiff in the courts of New Jersey to obtain satisfaction of his judgment out of the lands.</p>

Motion by the relator for his reinstatement as senior clerk in the department of public buildings, lighting and supplies of the city of Mew York.

Proceedings instituted for the purpose of reviewing the determination of the Board of Elections that Perry Belmont was duly and legally nominated as the candidate of the Democratic party for the office of Representative in Congress for the Seventh Congressional district.

Application by Christopher Ward for a writ of mandamus, directing the Board of Elections to print his name on the official ballot as the candidate of the Social Democratic party for the office of Congressman from the Seventh Congressional district.

<p>Motion for a bill of particulars.</p>

Application under Code of Civil Procedure, § 66, as amended in 1899, by Thomas S. Bassford, an attorney, to determine and enforce his lien as such attorney upon an award made to his client, George F. Johnson, in a special proceeding to open Leggett avenue, in the city of New York.

<p>Administrator — Cannot bind the estate of his intestate by a new executory contract — Parties.</p> <p>An amended complaint which alleges that the plaintiffs rendered legal services to the estate of a decedent, domiciled at her death in Mexico, under a contract made with a former deceased Mexican administrator, that the latter by will appointed there personal representatives of his estate but that none have been appointed in the State of New York, that he left no property here except a possible -interest in the estate of which he was such administrator, and that his representatives are about to surrender to those of the intestate all his claim to the assets here in return for the surrender by the defendant and other heirs of the intestate of any claim which he or they may have had on the Mexican estate of the administrator, states no cause of action and contains no allegation which excepts the case from the general rule that personal representatives cannot, by executory contracts for a new consideration and although made in the interest of the estate they represent, bind that estate and thus create a liability not founded on the contract of their decedent.</p> <p>Semble, that even if the complaint were sufficient, it would be demurrable where persons, appearing on its face to have a vested interest in the,_property of the intestate, were not made parties to the action.</p>

<p>Motion to confirm referee’s report of sale and for final judgment of distribution in an action in partition.</p>

<p>Application by a receiver in supplementary proceedings for an order directing the payment to him by Henry H. Lyman, State Commissioner of Excise, of the amount of the rebate of liquor tax certificate No. 18,602, issued to defendant June 14, 1900.</p>

<p>Appeal by the defendant from a judgment of the General Term of the City Court, affirming a judgment of the Trial Term of the City Court entered upon a verdict for the plaintiff after a trial by a jury.</p>

Appeal by the defendant from a judgment in favor of the plaintiffs, rendered in the Municipal Court of the city of New York, ninth district, borough of Manhattan.

<p>Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, seventh district, borough of Manhattan.</p>

'Appeal by the defendant from a judgment, rendered in favor of the plaintiff in the Municipal Court of the city of New York, first district, borough of Manhattan.

<p>Appeal by the plaintiff from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, eighth district, borough of Manhattan.</p>

Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, eleventh district, borough of Manhattan.

Appeal by the defendants from an affirmance by the General Term of the Oity Court of a judgment entered on a verdict in favor of the plaintiffs, and of an order denying a motion for a new trial.

Appeal by defendants from affirmance by the general term of the City Court of a judgment entered on a verdict in favor of plaintiff, and an order denying motion for a new trial.

<p>Appeal by plaintiff from judgment of the Municipal Court of the city of New York, first district, borough of Manhattan.</p>

<p>A ebb at. by the defendant from a judgment in favor of the plaintiffs rendered by the Municipal Court of the city of New York, second district, borough of Manhattan.</p>

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of New York, tenth district, borough of Manhattan, in favor of the plaintiff.</p>

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of New York, second district, borough of Manhattan, in favor of the plaintiff.</p>

Appeal by the plaintiff from a judgment rendered in the Municipal Court of the city of New York, tenth district, borough of Manhattan, dismissing the complaint.

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, fourth district, borough of Manhattan, in favor of the defendant Kors.</p>

Appeal by the defendants from a judgment of the Municipal Court of the city of New York, seventh district, borough of Manhattan, in favor of the plaintiff.

<p>Arread by defendant from a judgment of the Municipal Court of the city of New York, first district, borough of Manhattan.</p>

<p>Appeal by the defendant from a judgment of the General Term of the City Court, of the city of New York, affirming a judgment of the Trial Term, entered on the verdict of a jury, in favor of the plaintiff.</p>

<p>Appeal by the defendants from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered in favor of the plaintiff.</p>

Appeal by the defendant from a judgment rendered in the Municipal Court of the city of New York, borough of Manhattan, in favor of the plaintiff.

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, from a judgment rendered in favor of the plaintiff.</p>

<p>Appeal by the plaintiff from a judgment in favor of the defendant rendered by the Municipal Court of the city of New York.</p>

<p>Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, borough of Manhattan.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered in favor of the plaintiff.</p>

Appeal by the defendant from a judgment in favor of the plaintiff rendered in the Municipal Court of the city of New York, borough of Manhattan.

<p>Appeal by the plaintiff from a judgment in favor of the defendants rendered in the Municipal Court of the city of New York, borough of Manhattan.</p>

Appeal by the defendant from an order of the General Term of the City Court of the city of New York, reversing a judgment in favor of the defendant entered on a dismissal of the plaintiff’s complaint on the merits.

Appeal by the plaintiff from a judgment and order of the General Term of the City Court of the city of New York, reversing a judgment entered on a verdict in favor of the plaintiff.

<p>Appeal by the defendant from an affirmance by the General Term of the City Court of the city of New York of a judgment entered on a verdict of a jury in favor of the plaintiff, and from an order denying a motion for a new trial.</p>

<p>Appeal by the landlord from a final order made by the Municipal Court of the city of New York, third district, borough of Manhattan, in summary proceeding for nonpayment of rent, on the ground that an insufficient amount was found due, to the landlord’s-prejudice.</p>

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of New York, second district, borough of Manhattan.</p>

Appeal by defendant from judgment in favor of plaintiff, rendered in the Municipal Court of the city of New York, third district, borough of Manhattan.

Appeal by the defendant from a judgment in favor of plaintiffs, rendered by the Municipal Court of the city of New York, tenth district, borough of Manhattan.

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of New York, second district, borough of Manhattan.</p>

Appeal by the defendant from a judgment for the plaintiff, rendered by the Municipal Court of the city of New York, seventh district, borough of Manhattan.

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, sixth district, borough of Manhattan, dismissing the plaintiff’s complaint;</p>

<p>Appeal by defendants from a judgment of the Municipal Court of the city of New York, first district, borough of Manhattan.</p>

<p>Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, fifth district, borough of Manhattan.</p>

<p>Appeal by the plaintiff from a judgment, for the defendant Silverstein, rendered by the Municipal Court of the city of New York, fourth district, borough of Manhattan.</p>

Appeal by the defendant from a judgment of the General Term of the City Court affirming a judgment entered upon a verdict in favor of the plaintiff.

Appeal by plaintiff from an order of the General Term of the City Court of the city of New York affirming an order at Special. Term, denying a motion to place the above entitled action upon the day calendar.

Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, fifth district, borough of Manhattan.

Appeal by the defendants from a judgment in favor of the plaintiff rendered in the Municipal Court of the city of New York, second district, borough of Manhattan.

Appeals by the plaintiffs from two judgments in favor of defendant rendered in the Municipal Court of the city of New York, fourth district, borough of Manhattan.,

Appeal by the plaintiff from a judgment dismissing the complaint, rendered in the Municipal Court of the city of New York, fifth district, borough of Manhattan.

Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, second district, borough of Manhattan.

Appeal by the plaintiff from a judgment in favor of the defendants rendered in the Municipal Court of the city of New York, tenth district, borough of Manhattan.

<p>Appeal from an order of the general term of the City Court of the city of New York, reversing an order of the Special Term and adjudging the defendant guilty of contempt of court.</p>

<p>Appeal from a judgment of the general term of the City Court of the city of New York, affirming a judgment, dismissing the complaint rendered at a trial term of said court.</p>

<p>Appeal from a judgment, rendered in favor of the plaintiff in the Municipal Court of the city of New York, tenth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of tire defendant in the Municipal Court of the city of New York, second district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, eleventh district, borough of Manhattan.</p>

<p>Appeal from a .judgment, rendered in favor of the plaintiff in the Municipal Court of the city of New York, eighth district, borough of Manhattan.</p>

<p>Appeal from a judgment, rendered in favor of the defendant in the Municipal Court of the city of New York, second district, borough of Manhattan.</p>

<p>Appeal from a judgment, rendered in favor of the defendant in the Municipal Court of the city of New York, seventh district, borough of Manhattan.</p>

<p>Appeal from a judgment, rendered in favor of the plaintiff in the Municipal Court of the city of New York,. second district, borough of Manhattan.</p>

<p>Appeal from a judgment, rendered in favor of the defendant in the Municipal Court of the city of New York, ninth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, sixth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, second district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, sixth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendants in the Municipal Court of the city of New York, fifth district, borough of Manhattan.</p>

<p>Appeal from an order of the Special Term denying the plaintiff’s motion to place on the day calendar this action, which stood “ reserved generally ” on the general calendar.</p>

Appeal by the defendant from a judgment for the plaintiff and from an order denying the defendant’s motion for a new trial.

<p>Appeal from a judgment for the plaintiff entered upon a verdict and from an order denying the defendant’s motion for a new trial upon the minutes. Action to recover damages for personal injuries caused by the alleged negligence of the defendant.</p>

<p>Appeal from an order vacating an order of arrest upon the papers upon which the same was granted.</p>

Appeal by the defendant from an order directing him, the plaintiff, to furnish a bill of particulars of his counterclaim for the alleged purpose of the plaintiff’s preparing for trial-.

<p>Appeal from a judgment in favor of plaintiff, and also from an order denying a motion for a new trial. Action for services.</p>

<p>Appeal from an order vacating an order for the examination of the defendants before trial.</p>

Appeal by the defendant from an order taxing the plaintiff’s bill of costs, as presented after a third trial of the case. The main appeal in the case was from the judgment. Upon the second trial the plaintiff recovered judgment. This .was affirmed on appeal to the General Term of the City Court, with costs, but the Appellate Term reversed it “ with costs to appellant (defendant) to abide the event.”

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.</p>

<p>Appeal from a judgment entered upon a verdict in favor of defendant.</p>

<p>'Appeal from a judgment in favor of defendants, entered upon a verdict.</p>

<p>Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial.</p>

<p>Appeal from a judgment in favor of plaintiff, rendered upon the verdict of a jury.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment, entered upon a verdict, directed by the court, and from an order denying a motion for a new trial.</p>

<p>Appeal from a judgment, entered upon a verdict, and from an order denying a motion for a new trial.</p>

<p>Appeal from a judgment, entered upon a dismissal of the complaint by the justice presiding at the Trial Term.</p>

<p>Appeal from a judgment, of the trial term, entered upon the direction for a verdict, and from an order denying a motion for a new trial.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a. jury, and from an order denying a motion for a new trial.</p>

<p>Appeal from an order of the Special Term, which denied a motion to vacate an order theretofore made for the examination of' plaintiff before trial.</p>

<p>Appeal from judgment upon verdict and order denying a new trial.</p>

<p>Appeal from an order directing the defendant to furnish a bill of particulars of his alleged counterclaims.</p>

<p>Appeal from an order of the Special Term, dated and entered September, 9, 1901, assuming to relieve the defendant from the effect of a judgment, while another order of the Special Term, dated and entered on or about January 2, 1901, granting the defendant’s application opening the default upon which the said judgment was entered, upon certain terms therein imposed, is still undisturbed of record.</p>

<p>Appeal from judgment on verdict and order denying new trial.</p>

<p>Appeal from an order denying appellants’ motion to require the plaintiff to receive their answer herein as served in time.</p>

Appeal by plaintiff from a judgment in favor of defendant, entered upon the verdict of a jury, and from an order denying a motion for a new trial.

<p>Appeal from an order punishing the plaintiff, as guardian ad litem,, "for contempt, in refusing to pay the costs imposed upon him by a dismissal of the plaintiff’s complaint.</p>

<p>Appeal from judgment entered upon the verdict rendered by a jury, and from an order denying a motion for a new trial, made upon the minutes.</p>

Smith, guilty of contempt of court, and fining him the sum of $453.70, with interest and costs, said amount being the amount of the judgment.

<p>Appeal from a judgment dismissing the complaint herein.</p>

<p>Appeal from judgment dismissing plaintiff’s complaint.</p>