Volume 36 — New York Supplement

Action by Charles L. Thorp against Solomon S. Carvalho for false imprisonment and malicious prosecution. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Dederick Hamel against Weeks W. Culver and another. From a judgment entered on a verdict in favor of plaintiff and from an order denying a motion for a new trial, defendants appeal. With a mortgage on his property overdue, and unable to pay it, plaintiff applied to defendants, as lawyers, to procure him an assignee of the-mortgage.

Action by Frederick S. Myers against Moses S. Bosenback. A judgment of the general term of the city court (31 N. Y. Supp. 993), affirming a judgment in favor of defendant, was affirmed (3á lsT. Y. Supp. 63), and plaintiff moves for leave to appeal to the court of appeals. Denied.

Action by Joseph H. Sulzbacher against J. Cawthra & Co., Limited. Prom an order granting a motion to amend a warrant of attachment, and denying a motion to reduce the amount of the warrant, defendant appeals.

Action by Charles F. Hart against Frank McSwegan and another. From a judgment of the city court (34 N. Y. Supp. 1140) affirming the judgment entered on a verdict in favor of plaintiff, defendants appeal.

<p>Appeal from trial term.</p> <p>Action by Richard Wayne Wilson against the Press Publishing Company. The complaint was dismissed on the opening, and plaintiff appeals.</p>

<p>New Parties—How Brought in—Devolution oe Interest.</p> <p>Code Oiv. Proc. § 757, providing that on the death of a plaintiff the court must, on motion, allow or compel the action to be continued by or against the representative or successor in interest, does not require an amended or supplemental complaint to bring in as plaintiffs the successors of a sole plaintiff who died pending the action.</p>

Action by Silas W. Heath against the Glens Falls, Sandy Hill & Ft. Edward Street-Railway Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Judgment—Res Judicata.</p> <p>A judgment by a justice, in an action of trespass, after hearing proof and taking time to consider it, will, as a judgment on the merits, bar a subsequent action, though he declares it a judgment of nonsuit, and it appears that liis decision on a motion for nonsuit made before the submission of proof was reserved. Herrick, J., dissenting.</p>

Action by the Wynantskill Knitting Company against Edward P. Murray and another. From a judgment for defendants, entered on a verdict, and from an order denying plaintiff’s motion for a new trial, plaintiff appeals.

Application by Peter Harris for a writ of mandamus to compel the commissioners of the land office to make an order for the refunding of certain money. From an order (33 N. Y. Supp. 1102) granting a peremptory writ of mandamus, the commissioners appeal.

<p>Taxation—Corporations—Value of Stock.</p> <p>Under Laws 1880, c. 542, declaring it the duty of a corporation, in making its report to the comptroller for taxation, to estimate and appraise its capital stock at its actual cash value, “not less, however, than at the average price at which said stock sold for during said year,” and authorizing the comptroller, if dissatisfied with the valuation so made, to make one, complaint cannot be made of the comptroller’s valuation, it being the average price paid for the stock during the year, as shown by the testimony of the corporation’s auditor.</p>

<p>1. Constitutional Law—Special Legislation—Board oe Supervisors.</p> <p>Laws 1895, e. 975, incorporating the town of C. from a portion of the town of W., though it provides for the election of members of a board of supervisors for the new town, is not an act “providing for the election of members of the board of supervisors,” within the meaning of Const, art. 3, § 18, prohibiting the passage of a special act for that purpose.</p> <p>3. Same—Justice oe the Peace.</p> <p>Nor is such act, though it provides for the election of justice of the peace for the new town, an act providing for the election of justices of the peace, within the meaning of Const, art. 6, § 17, prohibiting the passage of special acts for that purpose.</p> <p>3. Same.</p> <p>Though the provision of such act that the justices elected shall hold office for one, two, three, and four years, violates Const, art. 0, § 17, providing that justices shall hold office for four years, yet it would not render the entire act unconstitutional, but would merely entitle all the justices elected to hold office for four years.</p> <p>4. Same—Statutes—Title.</p> <p>Laws 1895, c. 975, providing for the incorporation of the town of C. from a portion of the town of W., and providing for the election of officers for the new town, is not a local bill embracing more than one subject, within the meaning of Const, art. 3, § 16.</p>

Lawrence county. Application Tby George Smith for a writ of mandamus to compel the board of supervisors of St. Lawrence county to make a. new apportionment and division of St. Lawrence county. The application was denied, and relator appeals.

<p>Highways—Establishment by Statutory Proceedings.</p> <p>Under Laws 1890, c. 568, providing (section 82) that any person assessable for highway labor may make written application to the highway commissioners of the town in which he resides to lay out a new highway, and (section 92) that when application is made to lay out a highway located in two or more towns, all notices required to be served on the highway commissioners shall be served on the commissioners of each town, a person assessable for highway labor in one town may initiate proceedings to lay out a highway located partly in that town and partly in another.</p>

Action by Grace Blanchard Sherman and another against Joseph Green, commenced in justice’s court, and taken on appeal by defendant to the county court. From an order denying a motion by plaintiffs for an amended return of the justice, and from an order reversing the judgment of the justice, plaintiffs appeal.

Action by Emma Van Wert against the St. Paul Eire & Marine Insurance Company to recover on a policy of fire insurance. From a judgment entered on a verdict for plaintiff by direction of the com% defendant appeals.

<p>Appeal from circuit court, Ulster county.</p> <p>Action by Thomas B. Belch against the New York Central & Hudson River Railroad Company to recover for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.</p>

<p>Certiorari by Charles S. Msbet against the common council of the city of Amsterdam, William A. Fisher, as mayor, and Thomas J. Hazlett, as clerk, of such city, to review the proceedings of the common council of such city in auditing the claim of relator against 'it for legal services.</p>

<p>Appeal from special term, Montgomery county.</p> <p>Petition by Charles S. Nisbet for a writ of prohibition to the common council of the city of Amsterdam, William A. Fisher, as mayor, and Thomas J. Hazlett, as clerk, of such city, to restrain defendants from using, considéring, or taking cognizance of certain testimony taken by the law committee of the common council relating to a claim of relator against such city, and prohibit-, ing such law committee from returning the same to the council, or taking any further testimony in the premises. From an order of the special term granting the writ, defendants appeal.</p>

<p>1. Taxation—Exemptions—Land Purchased with Pension Monet.</p> <p>Land purchased with money of a lunatic, received as a pension from the United States, being exempt from sale under execution, is exempt irons taxation, though the title was taken in the name of the committee of the lunatic.</p> <p>2. Certiorari—Review.</p> <p>On certiorari to review a decision of the assessors facts conceded on the hearing before them cannot be disputed.</p> <p>3. Same—Who may Make Application.</p> <p>The committee of a lunatic as the “party aggrieved” (Laws 1880, c. 209,. § 1) may apply for a writ of certiorari to review the decision of the assessors, refusing to strike from the assessment roll property of the lunatic exempt from taxation.</p> <p>4 Same—Costs on Reversal.</p> <p>Under Laws 1880, c. 269, § 6, providing that costs shall not be allowed! against assessors whose proceedings may be reversed on appeal, unless; it appears they acted with gross negligence, or bad faith, or with malice, on reversal of a decision refusing to strike from the assessment roll as . exempt land purchased by the committee of a lunatic with money of the lunatic, received as a pension from the United States, costs should not be allowed against the assessors, as the question of exemption was not free from doubt.</p>

Action by John F. Buhrmaster against Nelson Ainsworth. A verdict for 125 was rendered in favor of plaintiff, and judgment was entered thereon in the justice court. On appeal by defendant to the county court the judgment was modified by reducing the amount of damages to 118, and, as modified, affirmed. From said judgment defendant again appeals.

Action by Charles H. Sherman against Billings, King & Co. for breach of warranty. From a judgment entered on a verdict directed by the court in favor of plaintiff and from an order denying a motion for a new trial, defendant appeals.

<p>Certiorari by the Frederick A. Stokes Company against James A. Roberts, comptroller of the state of New York, to review an assessment.</p>

<p>Appeal from circuit court, St. Lawrence county.</p> <p>Action by Charles H. Judson against the Central Vermont Railroad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $2,000, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.</p>

Action by Edward Gilligan against the town of Waterford to recover money alleged to be due plaintiff for services rendered by plaintiff as bridge tender. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, made on the minutes, plaintiff appeals.

Action by Elizabeth G. Standen against the New Rochelle Water Company to enjoin defendants from obstructing the natural flow of a nonnavigable river, and diverting it from the channel thereof, except for the usual use on defendant’s premises. The complaint was dismissed, and plaintiff appeals.

Action by Isaac Freiberg and Herman Freiberg against James Moffett to recover the balance alleged to be due for merchandise sold and delivered. From a judgment entered on a verdict rendered by the court in favor of defendant, plaintiffs appeal.

Action by Patrick Diamond against the city of Brooklyn for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Railroad Crossing—Open Gates—Right to Rely on.</p> <p>One familiar with the locality, and having knowledge of the fact that-a railroad company was not accustomed to operate its gates between certain hours, who crosses the track between those hours, cannot rely on the open gate as an assurance of 'safety.</p>

Action by Charles O. Dwight against Frank A. Cutting. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Action by Peter Nugent against Jules Breuchard, Joseph B. Pennell, and Thomas O’Hern for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendants appeal.

Action by John Robert, as administrator of William Robert, deceased, against the Troy City Railway Company, to recover damages for the death of plaintiff’s intestate. Plaintiff was nonsuited, and appeals.

Lawrence county. Action by Catherine Roach, as administratrix, against the city of Ogdensburg, for personal injuries. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Action by Elie Weill and Elie Lazard against Joseph Malone and others to cancel a certain agreement, for an injunction, and for an accounting. From a judgment entered on an order dismissing the complaint, and from an order denying a motion to open the judgment, plaintiffs appeal.

Action by Sidney Bell against Patrick A. G-aynor and another to recover certain penalties for the use, possession, etc., without the consent of the owner’s agent, of milk cans bearing the name or initials of the owner, pursuant to the provisions of section 1 of chapter 401 of the Laws of 1887, entitled “An act in relation to milk cans,” and of section 4 of the same act, as amended by chapter 25 of the Laws of 1890. There was a judgment for defendants, and plaintiff appeals.

Action by Henry C. Judson against the Flushing Jockey Club to recover a sweepstake won on a horse race. A judgment was rendered by the trial court in favor of defendant, on the ground that Laws 1895, c. 570 (Percy-Gray Racing Act), under which the action ivas brought, was unconstitutional. On appeal to the general term, the two judges before whom the case was argued differed in their views, and each wrote an opinion.

<p>Action by Henry C. Judson against the Flushing Jockey Club, and by John C. Dudley against the same defendant.</p>

Action by Fannie M. Bedlow against Sarah A. Stillwell and others to recover dower in certain lands. From an interlocutory judgment entered on a decision of the special term, and from a final judgment entered on the report of a referee, awarding plaintiff dower, defendant Sarah A. Stillwell and Charles C. Keeler appeal.

<p>Wills—Construction—When Estate Vests.</p> <p>Testator gave to his widow, during widowhood, the use of certain property and an annuity. He gave the balance of his property to his executor^ in trust to pay said annuity out of the income, and to pay all the balance of the income to his two daughters, share and share alike, until the death or marriage of his widow. He further directed that, in case of the death of both daughters during the widowhood of the widow, each decedent’s share of the income should be paid to her children. He further directed the executors, at the death or marriage of the widow, to convert into personalty the real estate of which she was given the use, so that the whole estate should be personal property, and to divide the income equally between his two daughters, but if either daughter should be dead, to pay one-half of the principal to her children, and to invest the other half for the benefit of the surviving daughter for life, remainder to her children, and, if both daughters should be dead, then the principal should be paid to their children. The will finally recited that it is “my intention and will that my said daughters shall have and enjoy absolutely for their own property during their lives, respectively, each one-half of the whole income of my estate from the date of my decease, * * * and that the principal * ® * shall be equally divided between the children of said daughters absolutely for their own property.” Held, that the children of testator’s daughters took a vested estate, under the will, at the death of testator.</p>

Action by Patrick P. O’Hehir against the Middletown-Goshen Traction Company to recover for work done by plaintiff for defendant. There was a judgment in favor of plaintiff, and defendant appeals.

Petition by William Keegan for the appointment of commissioners-for the purpose of grading Fifth avenue from Sixty-Fifth street to the city line of Brooklyn, in the town of New Utrecht. The petition was filed under Laws 1892, c. 289, and commissioners were appointed thereunder September 29, 1893. They made their report May 10, 1894, which was confirmed November 15, 1894. On July 1, 1894,-Laws 1894, c. 451, annexing the town of New Utrecht to the city of Brooklyn, took effect.

Action by Andrew J. Nutting against the Kings County Elevated Railroad Company to recover money alleged to be due to plaintiff from defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by John J. Leonard and others against W. A. Whaley and others for an accounting, and for other relief. There was a judgment in favor of plaintiffs, and defendants appeal.

Action by Daniel Mahoney against James McWalters and others to establish and foreclose a mechanic’s lien. There was a judgment in favor of plaintiff, and defendant James McWalters and others appeal.

<p>Damages—Physical Examination of Plaintiff—Affidavit.</p> <p>An affidavit for the physical examination of plaintiff in an action impersonal injuries need not allege that defendant intends to use on the trial the information to be gained.</p>

Action by Paul Halpin against the Mutual Brewing Company and others.

<p>Appeal from judgment on report of referee.</p> <p>Claim by the Bank of Port Jervis against Charles T. Darling and Thomas S. Mount, as executors of Jeremiah Darling, deceased. The claim was referred under the statute, and the referee found in favor of claimant for $2,776.22, with interest from February 5, 1894, and $112.43, referee’s fees and disbursements. From the judgment in favor of claimant, entered on the report, defendants appeal; and from an order denying, costs and an additional allowance to claimant, and from part of the judgment, claimant appeals.</p>

Action by Ernest F. Bliss, Jr., and Albert E. Bliss against Frank C. Raynor, impleaded with another. From an order requiring the New York Underwriters’ Agency and the Norwich Union Fire Insurance Company to pay to the receiver of the property of defendant Raynor one-half of the amount due on a judgment in favor of one Henry Sayre, and from an order denying the application of said Raynor to vacate and set aside said order, Raynor appeals. Reversed.

Action by Philadelphia Griffith against the Staten Island Rapid-Transit Railroad Company to recover damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $500 and costs, and from an order denying a motion for a new trial, defendant appeals.

Certiorari by John A. Fuhry to review the action of the board of excise of the city of Brooklyn in refusing to grant relator a license to sell intoxicating liquors. The writ was quashed, and relator peals.

Action by Elizabeth Baldwin against William Henry Smith, individually and as executor and trustee, and others, for an accounting. A demurrer to part of the answer was overruled, and plaintiff appeals.

<p>Certiorari by Philip E. Miller to review the proceeding of Frederick W. Wurster, commissioner of the fire department of the city of Brooklyn, in removing relator from membership in the fire department of said city.</p>

<p>Statute op Limitations—Payments.</p> <p>In an action on a promissory note, where payments of interest indorsed on the note are relied on to prevent the bar of the statute of limitations, the burden is on plaintiff to prove that the payments were made by, or by authority of, the defendant sought to be charged.</p>

Action by Agnes E. Coloney, and Eva L. Abel and Henry F. Abel, by their guardian ad litem, Jay C. Coloney, against Edwin Farrow. From a judgment entered on a verdict directed by the court in favor of defendant, plaintiffs appeal.

<p>1. Assignment eor Beneeit oe Creditors—Assets.</p> <p>Money collected by an agent is a trust fund in Ms hands, and does not pass to his assignee for benefit of creditors.</p> <p>S. Trusts—Following Trust Funds. .</p> <p>Where an agent who collects money for another deposits it in bank in his own name, with his.own funds, and afterwards makes an assignment for benefit of creditors, the principal may follow and establish a lien on any balance standing in the bank to the agent’s credit at the time of the assignment.</p>

Application by Patrick H. Corrigan for writ of mandamus to compel the mayor and common council of the city of Brooklyn to reinstate relator in the position of keeper of the Truant Home, from which he had been removed. From an order granting a peremptory writ to issue, defendants appeal.

Appeals from special term, Warren county. Actions by Jane Robertson against George A. Lawton and Roswell I. Lawton, and by Charles O. Husselbarth against the same defendants. Prom an order adjudging a warrant of attachment issued against defendant, in favor of one Marcus M. Terry, a prior lien to judgments and the executions thereon in favor of plaintiffs against defendants, plaintiff in each case appeals.

Action by Lillie J. Earle against George H. Eobinson, as trustee, the Phoenix Furniture Company, W. & J. Sloane, the Gorham Manufacturing Company, and F. P. Earle. There was a judgment in favor of plaintiff (33 N. Y. Supp. 606), and defendants Eobinson and the three companies appeal.

<p>Appeal from circuit court, New York county.</p> <p>Action by Henrietta Fisk against the New York Press Company, Limited, for libel. From a judgment for $6,466.31, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.</p>

Action by William Jay and others against William G. Wilson. There was a judgment in favor of plaintiffs, and defendant appeals. The facts are stated by Mr. Justice O’BRIEN, as follows: This action was brought to recover a fee for searching defendant’s title, under an agreement evidenced by a memorandum signed by the defendant, as follows: 1 “48 Wall Street, New York, Nov. 26tb, 1894. “Messrs.

Action by Orval A. Lockwood against George A. Waldorf to recover possession of certain chattels. From an order vacating so much of the judgment in favor of plaintiff as awarded to plaintiff the sum of $124.64, costs, plaintiff appeals.

Action by George-Follett and Susan F. Denslow, individually, and Van Burén Denslow and William T. Reynolds, as executors and trustees of the will of Walter P. Denslow, deceased, against the Brooklyn Elevated Railroad Company and the Union Elevated Railroad Company for an injunction. From a judgment awarding an injunction unless defendants pay plaintiffs $1,000 as fee damages, and pay $500 as rental damages, defendants appeal.

Action by Catherine Manning against the Atlantic Avenue Railroad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff,- defendant appeals.

Quo warranto by Elihu Lovett against William A. Randall to determine title to the office of commissioner of highways of the town of Warwick, Orange county. There was a judgment in favor of plaintiff, and defendant appeals.

Action by James F. Mitchell against the Niagara Fire Insurance Company on a fire insurance policy. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Rachel E. Odell against the Nyack Waterworks Company to recover damages, and for an injunction. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

<p>Master and Servant—Safe Place for- Servant to Work in.</p> <p>Evidence that a rock fell from a place where defendant had been blasting, striking one of his employes, at work below, and that a prudent examination would have detected the danger, shows a failure of the duty of defendant to provide his servants with a safe place to work.</p>

Action by John New against the Village of New Rochelle to recover the amount of assessments levied on plaintiff’s property. From a judgment in favor of plaintiff, entered on the decision of the county judge on a trial without a jury, defendant appeals.

■ Appeal from special term, Kings county. Action by George H. Heath against the New York Building Loan Banking Company, to set aside a mortgage of sale of certain premises in the city of Brooklyn, and to rescind a deed and an agreement.

<p>Appeal from circuit court, Queens county.</p> <p>Action by the Freeport Bank against George Hagemeyer and others on a promissory note. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendants George Hagemeyer and Casper Hagemeyer appeal.</p>

Action by Jane Weir against the Aetna Insurance Company on a fire insurance policy. From a judgment entered on a verdict in favor of plaintiff, defendant appeals.

<p>Appeal—Weight of Evidence—Findings of Referee.</p> <p>The findings of fact made by a referee, when supported by the evidence, will not be disturbed on appeal. '</p>

Action by Nathaniel Jarvis, Jr., against Sarah Lynch, as executrix. The complaint was dismissed, and plaintiff moves for a new trial on exceptions ordered to be heard at general term’ in the first instance.

Action by Americus F. Callahan against Moses E. Crow. From a judgment entered on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by Charles B. Jackson and Abram Vanderbilt against the Builders’ Wood-Working Company. There was a judgment in favor of plaintiffs, and defendant appeals.</p>

<p>Powers—Sale of Land by Executor—Validity of.</p> <p>An absolute and independent power given by a will to the executors to sell all or any portion of the real estate of the testator, at such times, in such manner, and on such terms as they, in their judgment, shall consider most for the interest of the estate, and to execute deeds therefor, is valid, and continues, though trusts created by the will, with which the power of sale is in no way connected, are declared void.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by William F. Cochran against Lorenz Reich to recover for the use and occupation of certain premises. From a judgment entered on a verdict directed by the court in favor of plaintiff for $44,861.4R and from an order denying a motion for a new trial, defendant appeals.</p>

Action by Conrad Geibel against James W. El well. The complaint was dismissed, and plaintiff moves for a new trial on exceptions ordered to be heard at general term in the first instance. Granted. This action was brought to recover for personal injury sustained by the plaintiff and resulting from the negligence of the defendant. The injury complained of occurred on the 11th day of April, 1884, at which time the plaintiff was between 11 and 12 years of age.

Action by M. Jacoby & Co., Limited, against George D. Payson,. executor, and Alice D. Adams, executrix, of Elisha J. Dennison. From a judgment entered on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial,, made on the minutes, defendants appeal. This action was begun April 12, 1892, against Elisha J. Dennison, to recover damages for the alleged conversion of the following check: “No. 230.

Action by Richard V. Boyd against Edward F. De Lancey. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Cemeteries—Removal oe Monument by Seller—When Unauthorized.</p> <p>Laws 1888, c. 543, gives one who furnishes any monument, etc., a lien on it for the price by filing within a year after it becomes due a notice of claim with the superintendent or person in charge of the cemetery, who shall forthwith notify the owner or owners of the plot described in the notice of the filing of such notice of lien; and, “in case the amount due be not paid within six months after the service of said notice on the plot owner as hereinbefore provided, the said person” claiming the lien shall thereafter, and within GO days, have the right, on 10 days’ notice to the superintendent or person in charge of his election so to do, to remove the monument. Held, that the claimant of a lien has no right to remove a monument in the absence of service of notice on the purchaser or owner of the lot by the superintendent or other person in charge of the cemetery.</p>

Application by Buel, Toucey & Whiting for the allowance of their claim against the Commercial Alliance Life Insurance Company for services rendered by them as attorneys and counselors in proceedings to dissolve the corporation and for the appointment of a. receiver. From an order directing the receiver to pay petitioners $500 for said services, the receiver appeals.

Action by Emil Slayton against Hans Hemken to recover damages for libel and slander. A judgment was entered on a verdict in favor of defendant, and plaintiff apppeals.

Action by Thomas P. Wood against the Third Avenue Railroad Company for personal injuries. From an order granting a new trial after a verdict was rendered in favor of plaintiff for $2,000 (34 N. Y. Supp. 698), plaintiff appeals.

<p>Negotiable Instruments—Void Contract eor Collateral Security.</p> <p>A sheriff borrowing money gave as security his note with' indorsers, and an assignment of his bills against the county, as sheriff, for services not yet performed. Held, that the fact that such assignment was invalid, as against public policy, did not affect the validity of the note.</p>

Action by George Barker against the Cunard Steamship Company, Limited. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

<p>1. Railroad Companies—Accidents at Crossings—Negligence.</p> <p>In an action against a railroad company for personal injuries, it appeared that, at a crossing, plaintiff’s foot caught in the track, and he was unable to extricate it; that he was struck by a passing train; and that the only thing that would have saved him would have been to stop the train. Held, that defendant was not negligent, even if no signal were given of the approach of the train.</p> <p>3. Same—Action for Injuries—Sufficiency of Evidence.</p> <p>In an action against a railroad company for personal injuries, it appeared that plaintiff was a roving man, whose character was unknown, whose testimony was unsupported, and who, according to the testimony of a number of witnesses, had given an account of the manner in which he was injured entirely inconsistent with that given by him on the trial, and that his testimony was outweighed by that introduced by defendant. Held, that a verdict in favor of plaintiff would be set aside on appeal.</p>

<p>Appeal from special term.</p> <p>Action by Ralph Moss, individually and as surviving executor of Solomon D. Moss, deceased, against Jacob Cohen and Fanny Cohen. Defendants demurred to the amended complaint on the ground (1) that the complaint did not state facts sufficient to constitute a cause of action; (2) that there is an improper joinder in said complaint of two alleged causes of action, to wit, one by the plaintiff individually, and one by him as executor of the will of Solomon D. Moss; (3) that the-complaint does not state facts sufficient to constitute a cause of action in favor of plaintiff individually; nor (4) in favor of plaintiff as-executor. The demurrer was sustained, and plaintiff appeals.</p>

Action by Samuel D. Folson and others against Robert C. Lewis, impleaded. From a judgment of the city court (33 N. Y. Supp. 1127) affirming a judgment entered on a verdict in favor of plaintiffs, and an order denying a motion for a new trial, defendant Lewis appeals.

Action by Marie A. Hecht against Joseph M. Hecht. From an order denying a motion to punish defendant for contempt of court in not paying alimony, as directed by the final judgment, plaintiff appeals.

Certiorari by Joseph E. McNutt to review the determination of Charles H. Mills and others, commissioners of excise of the city of Albany, in refusing to grant an hotel license to relator. From an order directing the granting of a license, defendants appeal.

<p>Appeal from circuit court, Oneida county.</p> <p>Action by Ellis R. Williams against the Delaware, Lackawanna & Western Railroad Company. From a judgment of nonsuit, plaintiff appeals.</p>

Certiorari by the Gramercy Company, a domestic corporation, to review the action oí James A. Roberts, as comptroller, assessing a franchise tax against relator.

<p>Appeal from special term, Kings county.</p> <p>Application by Thomas J. Kenna for a writ of mandamus to Henry H. Adams, county treasurer of Kings county. From an order denying a peremptory writ, relator appeals.</p>

Action by Matilda Gr. Johnson against William H. Cochrane and others to determine the validity of the probate of the will of Joseph H. Hamilton, deceased. The paper admitted to probate was adjudged not the will of decedent, and defendants appeal.

Action by Matilda G-. Johnson against William H. Cochrane and others to determine the validity of the probate of the will of Joseph H. Hamilton, deceased. A judgment was entered setting aside the probate, and defendants appealed. Plaintiff’s motion for the appointment of a receiver of the property of the testator pending the appeal from the judgment was granted, and defendants appeal.

Action by John O’Donnell against the East River G-as Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $4,000, and from an order denying a motion for a new trial, defendant appeals.

Action by Irene E. Storm by Jaques Van Brunt, her guardian ad. litem, against Jacob L. Vandenburgh and others, to set aside a sale made by said Vandenburgh, as trustee, of certain real estate in the late town of New Utrecht. Prom an interlocutory judgment overruling a demurrer to the complaint, defendants appeal.

Action by Margaret E. Purcell against Long Island City to recover damages for breach of a contract in discharging plaintiff without cause from position as janitress of the new Fifth Ward school of Long Island City: From a judgment for $584.40, entered on a verdict directed by the court, defendant appeals.

Action by Abram A. Demarest, as receiver, against Isaac E. House, James R. Comesky, Hannah B. Wool, William H. Bleeker, and others, to set aside certain deeds, and for other equitable relief. The complaint was dismissed, and plaintiff appeals.

•Appeal from circuit court, Orange county. Action by Eichard Hannigan against the Lehigh & Hudson Eiver Railway Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Henry J. Clark, as executor of the will of Eliza Clark, deceased, against Cecelia Frances Clark, to recover possession of a bank book. A judgment was entered on a verdict directed by the court in favor of plaintiff for $969.18 and costs, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Action by Henry O. Nevitt, as temporary receiver of the George C. Treadwell Company, against the First National Bank of Albany, to set aside a judgment recovered by defendant against said company for $20,163.66, on the ground that the judgment was obtained by collusion between said bank and the officers of said company. The complaint was dismissed on the merits, and plaintiff appeals.

Action by George H. H. Butler against Frederick 0. Prentiss to wind up partnership affairs between the parties. From interlocutory and final judgments, plaintiff appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Mark Davis against Julius Zimmerman and others. From an order continuing an injunction pendente lite, defendants appeal.</p>

Lawrence county. Action by Canton Lumber Company against James Spears and others. Prom a judgment dismissing the complaint as to defendants Spears and Kimball, and for separate bills of costs to each said defendants, plaintiff appeals. In May, 1889, Horace D. Ellsworth held title to sawmill property, as the trustee of Harry P. Grange, who was an alien. The property was subject to a mortgage of 85,000, of which a foreclosure was threatened.

Application by the board of street opening and improvement relative to the opening of 136th street, between Boulevard and Amsterdam avenue. From an order appointing commissioners of estimate and assessment (33 N. Y. Supp. 594), Andrew J. Connick appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Annie Naughton and another, as executors, against Ann Vion and others, to redeem certain premises in the city of New York from a sale under a foreclosure of mortgage, and to set aside a judgment of foreclosure and sale. From an interlocutory judgment in favor of plaintiffs, defendant Bridget M. Dooley appeals.</p>

Action by Kate Ryan, as administratrix of William Ryan, deceased, against the mayor, aldermen, and commonalty of the city of New York. From a judgment entered on a verdict in'favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Action by George S. Clay and others against Lucretia M. Wood and others for partition, and, incidentally,, to construe the will of William W. Clay, deceased. The complaint was dismissed, and plaintiffs appeal. The facts are stated by Mr. Justice PARKER as follows: William W. Clay died on the 21st of October, 1875, leaving a last will dated May 24, 1859. By the said will the testator devised and bequeathed his property as follows: First.

<p>1. Trial—Inconsistency between Verdict and Special Findings.</p> <p>The jury was instructed to render a general verdict, and to answer specifically the question, “Have the plaintiffs been paid in full” the claim sued on? They found a general verdict for plaintiffs for the full amount of their claim, and answered the question “Yes.” Held, that the court should have pointed out to the jury the inconsistency, and directed them to return to their room to reconsider the case, and it was error to refuse to set the verdict aside.</p> <p>2. New Trial—Affidavits of Jurors.</p> <p>Where the inconsistency of a special finding appears on the face of a general verdict, the rule that the affidavits of jurors will not be considered to impeach their verdict will not apply.</p> <p>■3. Special Findings—Correction.</p> <p>Special findings by the jury cannot be changed or set aside by the court on the ground of mistake on the part of the jurors.</p>

Action by Sue West Newell against Edward Q-. Woolfolk and another to recover damages to plaintiff’s property caused by the blasting of rock. There wras a judgment in favor of plaintiff, and defendants appeal.

Action by Michael Hickey against the Hartford Fire Insurance Company. From a judgment dismissing the complaint with costs, and from an order denying a motion for a new trial, made on the minutes, plaintiff appeals.

<p>Appeal from special term, Kings county.</p> <p>Application by Michael E. Finnigan for a writ of mandamus to Granville W. Harmon. From an order denying a motion for a writ,, relator appeals.</p>

Action by Thomas L. Hawltins against Alonzo E. Smith to recover the sum of $267.45 for work, labor, and services rendered to.,defendant from March 1, 1891, to February 1, 1895. Defendant answered by general denial, and both plaintiff and defendant serve notice of trial. At the hearing, counsel for defendant moved for a postponement, which was denied, whereupon plaintiff took judgment by default, and defendant appeals.

<p>Appeal from special term, Kings county.</p> <p>Action by August D. Porter against the Brooklyn Elevated Railroad Company and the Seaside & Brooklyn Bridge Railroad Company to recover damages to plaintiff’s premises caused by the construction and operation of defendants’ road, and for an injunction. From a judgment awarding plaintiff six cents damages and costs, and perpetually enjoining defendants from maintaining and operating their railroad in front of plaintiff’s premises unless within 30' days they pay plaintiff the sum of $1,500 and costs, defendants appeal.</p>

Action by Jeremiah Kiely and another against Mary H. McMillen to recover for work and materials furnished by plaintiffs to defendant under a contract made by defendant’s husband. There was a judgment in favor of plaintiffs, and defendant appeals.

Action by Elias Warn against the New York Central & Hudson River Railroad Company to recover damages for personal injuries caused by defendant’s negligence. From a judgment entered on a verdict in favor of plaintiff, defendant appeals.

Action by Christina Kuhn, as administratrix of the estate of Joseph Kuhn, deceased, against the Delaware, Lackawanna & Western Railroad Company, for the death of plaintiff’s intestate, caused by defendant’s negligence. From a judgment entered on a verdict in favor of plaintiff, and from an order denying its motion for a new trial, defendant appeals.

<p>Appeal from circuit court, Onondaga county.</p> <p>. Action by William Duffus against Christopher Schwinger and others. From a judgment for plaintiff, and from an order denying a motion for new trial, heard on the case and exceptions, defendants appeal.</p> <p>In the plaintiff’s complaint it is alleged that the plaintiff became the owner of three several chattel mortgages upon the boat ICenyon & Newton and the appurtenances, and that default had occurred in the terms of the mortgages, and “the said defendants, at the city of New York, on the 18th day of October, 1890, and while said property was owned by or in possession of said plaintiff, wrongfully took and converted said canal boat ICenyon & Newton and appurtenances to their own use, thereby depriving plaintiff of the possession and of the benefit thereof. The plaintiff, on that day, and for a long time before, ivas and has been entitled to the possession thereof. That said several mortgages were made for good and sufficient Considerations, and without intent on the part of said Eugene Cummings, or Daniel Cummings, or this plaintiff, of hindering, delaying, or defraudingvcreditors.” It is also alleged that the plaintiff, before the commencement of this action, demanded of the defendants possession of the said property, and delivery of the possession and that the defendants wrongfully took said property from the possession of the plaintiff, and unjustly detain the same. The defendants, in their answer, admit that a demand ivas made upon them for the possession of the canal boat called ICenyon & Newton. They allege, however, that at the time the demand was made they did not have the possession of the boat, and they allege that before this action was commenced the plaintiff took possession of the boat, “and that the same was lost or destroyed through the carelessness and negligence of said plaintiff, his agents, servants, and employes.” They also allege as a defense: “That said canal boat was sunk or destroyed by reason of a storm, while lying in the waters of New York, and' without any fault or negligence of these defendants, or while the same was not in their possession or control.” At the circuit held on the 28th of January, 1892, an order was granted allowing the complaint to be _ amended so as to demand damages in the sum ot $2,500. After a former trial, and a verdict for the plaintiff, we reversed an order refusing a new trial on the ground of a surprise, and granted a new trial “upon payment of the costs of the trial by the defendants”; and we then held that, “in case the costs are not so paid, the orders and judgment are affirmed, with costs of appeal from judgment.” 23 N. Y. Supp. 1151. Upon a second trial the plaintiff again recovered a verdict, and a motion for a new trial was made at a special term, February, 1894, and denied, and the judge who presided at the trial where the motion was denied delivered an opinion, which is found reported in 7 Mise. Rep. 499, 27 N. Y. Supp. 949. From that judgment, and the order denying the motion for a new trial, an appeal was taken to this court, and the judgment and order were reversed, and a new trial ordered, when this court held, viz.: “The fact of agency cannot be proven by the declarations or acts of the alleged agent, and upon the trial of an action the declarations of an alleged agent are inadmissible in evidence for that purpose;” and that the value of the chattel under such an action as this should be fixed according to the provisions of section 1720 of the Code at the time of the trial. The case is reported in 79 Hun, 541, 29 N. Y. Supp. 930. Near the close of the opinion in that case it was intimated that it was a question “whether, in any event, the plaintiff can recover more than the amount of his claims,” and Townsend v. Bargy, 57 N. Y. 665, was referred to. Upon the trial now brought in review, at the 'close of the evidence the plaintiff expressly stated that he was only “entitled to a judgment for damages for the value of this boat and for damages of detention up to the full amount” of the claim shown to exist upon the boat in favor of the plaintiff. At the close of the evidence the defendants asked the court to direct a verdict for the defendants upon several grounds mentioned, which request was denied, and the defendants excepted. Thereupon the defendants’ counsel asked the court “to define the questions which should be submitted to the jury. It may abbreviate my argument.” In response to that request the court observed: “The main question, of course, relates to the possession of the boat. That involves several subordinate questions, such as whether the boat was in existence at the time the action was commenced, as to the agency of Mr. Petrie, and as to whether there had been an assignment, so that the interest of the defendants had passed from them to Mr. Petrie; and, of course, as to the present value of the boat, and the amount of the damages for the detention.” The court added: “I am inclined to follow the intimation of the general term, in view of the authorities that they cite, and to instruct the jury to find what the present value of the boat is, and what the damages for detention, are, with the further instruction that the aggregate of the two cannot exceed the amount of the claim” of the plaintiff. No exceptions were taken to the intimations thus made by the court.</p>

<p>Appeal from surrogate’s court, Kings county.</p> <p>Proceeding for the probate of the will of Jesse J. Davis, deceased. From a decree admitting the paper to probate as the will of said decedent, Charles E. Davis, the contestant, appeals.</p>

Action by Lewis Tuttle against Richard W. Robinson, and others to set aside a deed as in fraud of creditors. From an interlocutory judgment entered on an order overruling a demurrer to the complaint, defendants appeal.

Action by Elliott J. Smith against William Nicoll to recover commissions on a sale of real estate. The complaint was dismissed, and plaintiff appeals.

Application by Michael J. Dady for a writ of mandamus to the supervisor of the Thirty-First ward of the city of Brooklyn. An order denying a motion for a peremptory writ was affirmed (35 N. Y. Supp. 91), and relator moves for a reargument.

<p>1. Evidence—Introducing Part of Document.</p> <p>Where plaintiff introduces in evidence one side of a book account, he cannot complain if the other side is introduced by defendant</p> <p>2. Corporations—Officers—Liability to Account.</p> <p>In an action under Code Civ. Proc. § 1781, to compel an officer of a corporation to account for fraud, neglect, violation of law, or other misconduct, an interlocutory judgment directing an accounting cannot be entered, except on a finding that the defendant is guilty of the irregularities alleged. Follett, J., dissenting.</p>

<p>Pledge—By Factor—Rights op Pledgee.</p> <p>Where a factor secures a loan made to himself by assigning a warehouse receipt for packages of goods not identified by number or mark, and afterwards substitutes, for those receipted for, other packages, which he holds as factor, the release of the original packages is sufficient consideration for the substitution, and the security of the assignee is not affected by 4 Rev. St. (8th Ed.) p. 2518, § 4, providing that every person accepting any merchandise in deposit from a factor as security for an antecedent debt shall not acquire thereby any interest therein not held by the factor at the time of making the deposit.</p>

<p>1. Acknowledgment of Mortgage—By Corporation.</p> <p>The acknowledgment of a mortgage by a corporation need be in no specified form, and it is sufficient where it is made by the secretary, reciting due authority to execute the instrument, and attesting the genuineness of the signature of the president, and of the seal thereto affixed.</p> <p>3. Payment—Surrender of Bonds to Obligor.</p> <p>Bonds secured by mortgage were issued by a corporation to its stockholders, and were afterwards surrendered by the holders for new stock of the corporation, with the understanding that they were to be guarantied by certain stockholders and sold to persons outside the company, and were so sold. Held, that the transaction did not operate to discharge the mortgage.</p>

<p>Guaranty—Release oe Guarantor—Modification of Contract.</p> <p>A guarantor of payment for goods ordered, to be paid for at a specified date, is released where, by a new agreement between the seller and buyer before delivery of the goods, the time for making payment is extended.</p>

<p>Certiorari by Parke, Davis & Co., a corporation organized under the laws of the state of Michigan, to review the action of James A. Eoberts, comptroller, in assessing a corporation tax on relator.</p>

<p>Intoxicating Liquors—Licenses—Powers of Excise Commissioners.</p> <p>The commissioners of excise have the power to limit the number of hotel licenses granted in a given territory, as well as to refuse a license on a showing of the unfit character of the applicant.</p>

<p>Appeal from circuit court, Delaware county.</p> <p>Action by Clark S. Bennett against Nelson Gray. From a judgment of nonsuit, and an order denying a motion for new trial, plaintiff appeals.</p> <p>The action was to recover possession of certain premises described in the complaint, situated in the town of Delhi, Delaware county. The complaint contained the usual allegation found in actions of ejectment, to wit, “that the defendant is wrongfully in the possession thereof, and wrongfully withholds the same from this plaintiif.” The answer contained a general denial, and an averment that the defendant is in possession and owner of the land and premises described in the complaint. The evidence indicated that the defendant was in possession under a warranty deed of the premises, which he received on the 25th day of November, 1889, executed by Calvin H. Bell to the defendant. When the defendant took the deed from Bell, Bell “said there was nothing against it” (the property). After the defendant received the deed, he went into possession of the premises. At the close of the evidence the trial judge held that there was no proof that the purchase price in the contract under which the plaintiif claimed the premises had been paid, and that, if the plaintiif has any remedy, it is by way of an action in equity to get title. Plaintiif asked to go to the jury upon all the questions in the case. That motion was denied, and an exception was taken. An exception was also taken to the nonsuit granted.</p>

Action by Lititia 0. Baker against Josephine Baynor and others to recover land sold at sheriff's sale. Plaintiff died pending the action, and the court substituted Mary C. Hargin, administratrix of her estate, as plaintiff, and added Mary C. Hargin, individually, as defendant. From a judgment dismissing the complaint, Mary Hargin, individually and as administratrix, appeals.

Action by Henry H. Sias and another, administrators of Charles H. McKee, deceased, against the Rochester Railway Company. From a judgment of nonsuit and order denying motion for new trial,, plaintiffs appeal.

Action by Sabina Carpenter against Andrew B. Miles for assault and battery. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for new trial on the minutes, defendant appeals.

Action by the Tuerk Hydraulic Power Company against Frederick W. Tuerk, Jr., and others, for injunction. From a judgment for plaintiff, entered in Onondaga county on report of referee, defendants appeal.

Action by the New Britain National Bank against A. B. Cleveland Company, Limited, and others, to set aside a conveyance by defendant corporation of its property to Conrad N. Jordan and others, and by them to the Cleveland Seed Company. The complaint was dismissed on the merits, and plaintiff appeals.

Action by Fish’s Eddy Chemical Company against Julia Stevens. From a judgment of the. county court affirming a judgment of the justice’s court in favor of plaintiff, defendant appeals.

<p>Appeal from court of sessions, Onondaga county.</p> <p>David Gr. Orr was convicted of seduction under a promise of marriage, and appeals.</p>

<p>Discovery—Inspection of Books.</p> <p>On a motion for the inspection of plaintiff's bank books, where no good reason is shown why the books should not be inspected, an order that plaintiff deliver to defendant sworn copies of the books, or a written authorization to the banks to permit defendant to take copies thereof, will-not, in the absence of an abuse of discretion, be disturbed on appeal.</p>

Action by Augustino Cristiano, by guardian, against Annie E. Millers and others, to recover for personal injuries. The court granted a nonsuit, and a motion for new trial upon a case and exceptions was ordered to be heard at the general term in the first instance.

Action by Francis De Canio against the mayor, aldermen, and commonalty of the city of New York, to recover the sum of $2,588 alleged to be due plaintiff for, salary as inspector on the new aqueduct, June 8, 1887, to December 8, 1889. A verdict was directed in favor of plaintiff, and defendant moves for a new trial on exceptions ordered to be heard at general term in the first instance. Granted, unless plaintiff stipulates to reduce verdict.

Action by Sophia W. Adams against the Manhattan Railway Company to enjoin the operation of defendant’s elevated railroad in front of plaintiff’s premises. There was a judgment in favor of plaintiff, and defendant appeals.

Action by Louis Shafarman against Max Jacobs and others to recover chattels. The complaint was dismissed, and judgment in favor of defendant Max Jacobs was directed for a return of the chattels, and plaintiff appeals.

Action by Lillie H. Gilbert against Cecelia McKenna and others to foreclose a mortgage. From an order denying a motion to strike the cause from the calendar, defendants Dempsey and Smith appeal.

Action by Eugene O. Sullivan against the New York Elevated Railroad Company and others. Plaintiff died pending the action, and his administrator and the committee of the property of the widow and heirs at law moved to revive the action in their names.

<p>Action by George W. Perkins against Henry H. Heert and others. Plaintiff moves for an extra allowance.</p>

<p>Certiorari by Gilbert Higgins to review the action of Abraham Tappen and others, constituting the board of park commissioners of the city of New York, dismissing relator from the park police force.</p>

Action by Margaret Elizabeth Rouge against Gabriel Mark Rouge-for personal injuries. From an order denying a motion to vacate-an attachment by reducing the amount of the attachment (35 N. Y. Supp. 836), defendant appeals.

Certiorari by Edward J. Flood to review the action of James J. Martin and others, constituting the board of police commissioners in the city of New York, in dismissing relator from the police force.

<p>1. House and Street Railroads—Crossings—Negligence.</p> <p>At crossings street cars and pedestrians have equal rights to the use of the streets, and what is proper care and precaution on the part of those in charge of cars to prevent accidents is a question of fact in each case.</p> <p>2. Same—Warning at Crossing.</p> <p>In an action to recover for injuries received by plaintiff by being struck at a crossing by a cable car it is error to charge the jury that, in the absence of contributory negligence, if the gripman “failed to exercise due and reasonable care to warn crossing pedestrians of the car’s approach, then the defendant is liable,” it being conceded that plaintiff saw the car approaching before going on the track.</p>

<p>Contract—Performance.</p> <p>In an action to recover for erecting on defendant’s premises a ventilating machine guarantied to operate “to his satisfaction,” plaintiff need only show that the work was done in a proper manner, and in a way that should have satisfied defendant, as no question of personal taste or individual preference is involved.</p>

Action by O. Lavern Ludlow against the Groton Bridge Company for injury received by plaintiff, while in defendant’s employ, through the alleged negligence of Mr. Hemmingway, foreman of defendant's shop. Judgment of nonsuit.

Action by James Dunning against Henry R. Jacobs for personal injuries. The complaint was dismissed at the close of plaintiff’s evidence, and plaintiff moves for a new trial, on exceptions ordered to be heard at said term in the first instance.

Action by Henry C. Hopkins against James F. A. Clark and others to recover a balance of $2,911.41, with interest from March 16, 1893, alleged to be due plaintiff from defendants as brokers.

Action by James M. Sinclair and Hector Sinclair, Jr., partners under thé firm name of H. Sinclair’s Sons, against Robert A. Hollister and others, partners under the firm name of William J. Merritt & Co. From a judgment of the city court (35 N. Y. Supp. 1117) affirming a judgment entered on a verdict by direction of the court in favor of plaintiffs, for $1,718.27, defendant Hollister appeals.

Action by Henry Lhowe, an infant against the Third Avenue Railroad Company, for personal injuries received by plaintiff while crossing defendant’s track. From a judgment entered on a verdict for $500 in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from Eighth district court.</p> <p>Action by Sang Shing against Benjamin Sire. Judgment was rendered in favor of plaintiff, and defendant appeals.</p>

<p>Contracts—Performance.</p> <p>A contract to publish an advertisement in a trade catalogue for 1893-94 is not fulfilled by publication in a catalogue bearing a different name than that represented, and not published until January, 1895.</p>

<p>Appeal from Ninth district court.</p> <p>Action by John Cullen against Patrick Gallagher. There was a judgment in favor of plaintiff, and defendant appeals.</p>

<p>Assignment—Existence oe Subject.</p> <p>Where rent has been paid three months in advance under a lease containing a provision that the tenant’s damages for delay in getting possession are to be measured by the number of days and deducted from the accruing rent, the lessee cannot assign his claim as a right of action until the end of the three months, for there would be no existing claim until that time.</p>

Two actions by Isaac Walker and others against William 0. Beecher. From a judgment in favor of plaintiffs in each case, rendered by a justice without a jury, defendant appeals.

<p>Appeal from Eighth district court.</p> <p>Action by Leonard J. Silber against Benjamin Sire. From á judgment rendered in favor of plaintiff, defendant appeals.</p>

Action by Henry Hahnenfeld against Bernard W. Wolff to recover the price of merchandise sold and delivered. From a judgment in favor of defendant, rendered by the justice without a jury, plaintiff appeals.

Action by Jane McKenzie and others against Loftns D. Hatton. From a j udgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiffs appeal.

Action by Frederick A. Boyden against Austin P. Baldwin and others. From a judgment of the city court (34 N. Y. Supp. 19) affirming a judgment in favor of plaintiff, defendants appeal.

Action by Matthew Smith against Andrew O’Donnell and Eliza O’Donnell, his wife, to foreclose a mechanic’s, lien. Judgment was rendered in favor of plaintiff, and defendants appeal.

<p>Appeal from Third district court.</p> <p>Action by Joshua W. Jones against Archibald Henry for broker’s commissions. Judgment was rendered in favor of plaintiff, and defendant appeals.</p>

<p>Appeal from Eleventh district court.</p> <p>Action by Ada F. Parsons Smith against William Hildenbrand. From a judgment rendered on a verdict in favor of defendant, plaintiff appeals.</p>

Action by David B. Sickels, as temporary receiver of the Harlem River Bank, of the city of New York, against George Herold, on a promissory note for $5,000, dated November 9, 1893, made by defendant to the order of the Harlem River Bank, payable on demand. From a judgment in favor of plaintiff, entered on the decision of the judge without a jury for $3,624.61 (32 N. Y. Supp. 1083), defendant appeals.

<p>Evidence—Weight and Sufficiency.</p> <p>In an action to recover $1,000 alleged to have been paid to defendant by plaintiff in 1883, and deposited in defendant’s name for plaintiff’s benefit, plaintiff’s claim was supported only by her own testimony. She could not remember the date of the transaction, but testified that it occurred on the same day that she deposited $480 in the same bank. The bank records-showed no deposit by defendant on that date, though defendant deposited $1,000 nine months before that time. The fact that defendant had $1,000 available for deposit was proved, but plaintiff’s possession of such a sum was not clearly shown; and while, in support of plaintiff’s testimony that at the time of the alleged deposit defendant had handed to her the bank book, it appeared that the same was actually produced at the bank by plaintiff in 1802, defendant proved by uncontradicted testimony that in 1888 plaintiff had shown two bank books to her brother,—each in her own name,—and had stated to him that they were the only books she had. Held insufficient, in view of the lapse of time, to support a judgment for plaintiff.</p>

Action by John Murphy against Robert McWilliam and others for personal injuries. From a judgment entered on a verdict in. favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.

<p>1. Larceny—Obtaining Money by False Pretenses.</p> <p>Defendant advertised for some one to go into business with him who had $300 to invest. He told complainant, who answered the advertisement, that he had been dealing in potatoes, and made from $25 to $50 per week. In company with complainant, he went to look at stores, but found none to suit him, and bargained for potatoes, but found the prices too dear. He took him to his mother, who told complainant that he had been in business with his father. They had drawn up articles of copartnership, which required each to contribute $300 cash. He told complainant that he had to buy 200 barrels of potatoes that night for delivery the next morning, and that he was going tó buy apples and oranges, too, and would require $475; that he had no ready money; but exhibited a check for $325. He then requested complainant to give him $275, so that he could buy the potatoes, and, when he got the money, went and bargained for 25 barrels, at $2 per barrel, and paid $5 down, to bind the bargain. Complainant demanded back the money advanced by him, because defendant had not put up any money. Defendant refused to return it, but made an appointment to meet complainant the next morning, which he failed to keep, and after that avoided complainant and did not return the money. Held, that defendant was guilty of larceny at common law.</p> <p>2. Same—Evidence—Fraudulent Intent.</p> <p>In a prosecution for larceny accomplished by fraud, evidence of similar frauds on the part of defendant is admissible for the purpose of showing intent.</p> <p>3. Criminal Law—Appeal—Failure to Take Exceptions.</p> <p>The court will not reverse for errors committed on the trial, where no exception was taken, except in the interests of justice.</p>

Joseph A. Theobold was indicted for the crime of maiming and mutilating a horse, contrary to the provisions of Pen. Code, § 655. The offense was alleged to have been committed March 9, 1895, at the city of Watertown, and to have consisted in willfully and cruelly pulling or tearing the tongue from the month of such animal. From a judgment affirming a judgment of the recorder’s court, rendered on a verdict of a jury convicting defendant, defendant, appeals.

Action by George Coppell and David Dunham Withers against Frank C. Hollins and others for an accounting. Plaintiff Withers died pending the action, and it was continued in the name of plaintiff Coppell as survivor. From a judgment entered on confirmation of the referee’s report in favor of plaintiff, and from an order confirming said report and overruling exceptions taken thereto, defendants appeal.

Action by Anna M. Michels against the city of Syracuse for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

<p>Appeal from special term, Oneida county.</p> <p>Action by Michael Kehrley against Caroline E. Shafer, as executrix of John H. Shafer, deceased. From an order denying a motion for a new trial, made on a case and exceptions, defendant appeals.</p>

<p>Appeal from court,of sessions, Orange county.</p> <p>John A. Williams was convicted of the crime of perjury, and front the judgment of conviction, and from an order denying a motion for a new trial on the minutes, and from an order denying a motion in arrest of judgment, defendant appeals.</p>

Proceeding for the appointment of an administrator of the estate of James Denick, deceased. From a decree appointing Mary J. Denick administratrix of decedent’s estate, and allowing her $85 costs and expenses of the proceedings resulting in such appointment, Jared W. Denick and others appeal.

<p>•Constitutional Law—Legalizing Assessments.</p> <p>Laws 1895, c. 817, legalizing a prior assessment for local improvements (section 1), and declaring that the same shall not be impaired because of any irregularity not fraudulent (section 8), is constitutional where the property owners had notice of the assessment, and the only irregularity therein was the omission of requirements which the legislature might have dispensed with in the first instance.</p>

Action by the people of the state of New York against the Beveridge Brewing Company for dissolution of defendant. An order for dissolution was granted in May, 1895, and Howard Thornton was appointed receiver. From an order directing such receiver to pay the claims against the corporation, except the claim of' William G-.

<p>Execution—Issuance—Computation op Time.</p> <p>The five years, “after the entry of judgment,” within which execution may issue thereon, commences on the day judgment is entered.</p>

county. Judicial settlement of the accounts of Wilbur F. Washburn, executor of the estate of Jarvis A. Waring, deceased. From an order adjudging the executor guilty of contempt for refusing to obey a decree requiring him to pay a specified sum, he appeals.

Action by Mark W. Maclay against Jeremiah P. Robinson and others for an accounting and liquidation of the affairs of the firm of J. P. Robinson & Co. From a judgment entered on the report of a referee, defendant Jeremiah P. Robinson appeals.

Certiorari by Mary B. Ó. Dwight to review the determination of Benjamin S. Platt and others, assessors of the village of Clinton, assessing the property of relator for taxation. From an order appointing a referee to take evidence, defendants appeal.

<p>Appeal from court of sessions, St. Lawrence county. Thomas N. Madill and Oscar England were indicted for the crime of bribery. A demurrer to the indictment was sustained, and the people appeal.</p>

<p>Appeal from surrogate’s court, Columbia county.</p> <p>Proceeding for the taxation of the estate of Emeline P. Eichols, deceased, under Laws 1892, c. 399. From an order and decree dismissing an appeal by the executor and certain legatees from a decree fixing a tax on the property bequeathed some of the legatees, the executor and such legatees appeal. Modified.</p>

<p>1. Carriers—Baggage oe Passenger—Stop-Over Check.</p> <p>Plaintiff purchased a ticket from defendant railway company, and obtained leave to stop over until next day at an intermediate station. He also requested that his baggage be unloaded there, but this was not assented to, and it was carried through to the point of destination named in the ticket, where it was taken charge of, pursuant to law, by the customs officers of the United States, and while in their custody was destroyed by fire. Held, that defendant was not liable for its loss.</p> <p>2. Pleading—Amendment on Appeal.</p> <p>Where a variance between the complaint and the evidence was objected to by defendant on the trial, plaintiff cannot, on appeal, for the purpose of reversing a judgment for defendant, have leave to amend the complaint to conform to the proof.</p>

Charles Young was indicted for assault in the first degree. Pending the indictment he left the state, and the bond given by him, with Charles Rieger and Elizabeth Rieger as sureties, was forfeited. From an order denying a motion for remission of the forfeiture, the sureties appeal.

<p>1. Constitutional Law—Legislative Powers—New Remedies.</p> <p>Loekport City Charter (Laws 1886, c. 120), § 207, providing that, before letting any contract for a public improvement, the contractor shall furnish a bond conditioned for the payment of all claims '“for materials furnished in and about such improvement,” is a legitimate exercise .of legislative power.</p> <p>2. Action—On Contractor’s Bond—Who may Sue.</p> <p>A bond given by a city contractor, which, after undertaking to indemnify the city for a faithful performance of the contract, is conditioned, as required by the charter, for the payment of all claims for “materials furnished in and about such improvement,” may, on breach thereof, be sued on by one who has supplied materials for the work, though he was not a party to the bond, nor mentioned therein. Cement Co. v, McNaugnton (Sup.) 35 N. Y. Supp. 453, distinguished.</p> <p>3. Principal and Surety—Liabilities of Sureties—How Ascertained.</p> <p>Where a bond recites that, whereas the principal obligors have entered into a contract in which they have covenanted, “among other things,” to grade' a certain street, and then states in the condition what the other parts of the agreement are, the liability of the sureties must be ascertained by reference, not to the recital alone, but to the bond in its entirety.</p> <p>4. City Contractor’s Bond—Extension of Credit to Principal.</p> <p>The sureties of a city contractor, who has given a bond conditioned to pay for all materials furnished in and about the contemplated improvement, are not released from liability merely because the material men, without additional security, allowed the contractor 30 days in which to pay for the material furnished.</p>

<p>Contracts—Actions on—Right of Third Person to Sue.</p> <p>Defendants, at the time plaintiff had a claim against a mutual accident association on a policy, made a contract with certain officers of the association, claiming to represent it, but who were not personally liable to plaintiff on her claim, and, outside of salary, had no interest in the association, whereby the officers agreed to transfer or attempt to transfer to-defendants the membership or risks of the association, and all interest, rights, and privileges which they had in the association, and defendants agreed to “settle and adjust all liabilities of the association,” and save said officers and all other officers of the association “harmless from any action which may be brought * * * by reason thereof.” Meld that, as^ the contract evinced no clear intention to give a right of action to third persons, plaintiff could not, by reason thereof, recover of defendants her claim against the association.</p>

Action by American Central Insurance Company against John B. Hagerty and another for damages from defendants’ failure to cancel a fire insurance policy as instructed. From a judgment entered on a verdict in favor of plaintiff for $1,056.71, and from an order denying a motion for a new trial made on the minutes, defendants appeal.

<p>Controversy between Henrietta L. Butler, residuary legatee under the last will and testament oí Jane G. Campbell, deceased, as plaintiff, and the trustees of the parochial fund of the Protestant Episcopal Church of the diocese of Western New York as defendant, submitted without action on an agreed statement of facts, pursuant to Code Civ. Proc. § 1279 et seq., to determine whether plaintiff or defendant is entitled to a certain sum bequeathed by testatrix for religious and charitable uses. Judgment for plaintiff.</p>

<p>1. Railroad Companies — Injury to Soldier Guarding Property in Yard.</p> <p>Where, during a strike of the employes of a railroad company, a militiaman was, at the company’s request, placed on guard in its yard, and the cars in the yard were not moved for 27 hours after he arrived at the yard, the question of whether defendant, in moving its cars without warning to him, so that he was struck by them, used ordinary care, was one of fact.</p> <p>2. New Trial—Newly-Discovered Evidence.</p> <p>A new trial will not be granted on the ground of newly-discovered evidence, where such evidence will not probably overcome the evidence on the trial inconsistent with it.</p>

Action by the trustees of Amherst College, the trustees of Dartmouth College, the trustees -of Hamilton College, the University of Rochester, and the president and trustees of Williams College against Thomas G. Ritch and others.

Action by David Zenner and others against George W. Dexter. From an order denying a motion to change the place of trial from Onondaga county to the county of Chenango, on the ground of convenience, defendant appeals.

<p>Appeal prom Justice op the Peace—Retrial—Pleading and Proof.</p> <p>Reply not being necessary in an action before a justice of the peace, and such action, on appeal to the county court, being triable anew on the issues formed by the pleadings in the justice court, payment of a counterclaim subsequent to such an appeal may be shown on retrial in the county court, without amendment of the pleadings.</p>

Application by G-lenside Woolen Mills to lay out a highway in the town of Skaneateles. From an order denying a motion to set aside the report of commissioners, John K. Doyle and others appeal.

<p>1. Bribery—Evidence.</p> <p>On a prosecution of a police captain for receiving baskets of peaches as a bribe for protecting a merchant in his violations of an ordinance against incumbering sidewalks, the merchant testified that, after the appointment of the captain to his precinct, T\, a patrolman, approached him- and said that he was the captain’s private man, and that the captain would take fruit in the place of money for protecting him on the sidewalk; that he acquiesced in such arrangement, and that on the following day T. brought a card bearing the captain’s name and address, and said that the captain wanted a barrel of apples shipped to the address, and he delivered the apples to the express company with such-address; that thereafter K., another patrolman, called on him and told him that the captain wanted a box of oranges sent to his address; that he said he had none; that thereafter he was reported and fined for obstructing the sidewalk; that thereafter IC. called again, and said the captain wanted four baskets of-peaches sent to his address, and that'they were sent to him; that thereafter another action for obstructing the sidewalk was commenced against him; that he went with the notice to the captain, and said, “I thought I had' an understanding with you that you would take care of my sidewalk;” that the captain said it was a mistake, and told him to leave the notice with him and he would attend -to it; that, notwithstanding this, judgment was entered against him, and he again went to the captain, and said, “You sent a man to me to say that you would take fruit from us for taking care of us on the sidewalk. We have sent you the fruit, as you have ordered it from time to time, and how is it you haven’t attended to this notice for us?” that the captain said, “Inasmuch as you have sent me the fruit, I will take care of this notice for you,” and “Any arrangement that K. sees fit to make with you, or any favor that he wants to extend to you, will be all right, and I will abide by it.” Hold, that the evidence did not connect T. with defendant, so as to render the conversation with him admissible. Follett, J., dissenting.</p> <p>2. Objection to Evidence—Exception—Motion to Strike Odt.</p> <p>Defendant having objected to evidence, and taken an exception, when it was admitted on the promise of the prosecuting attorney to connect it, need not, in order to have his objections to such evidence reviewed, move to strike it out on failure of the prosecution to connect it. •</p> <p>3. Cross-Examination.</p> <p>Permitting the prosecuting attorney, on the trial of a police captain for receiving four baskets of peaches as a bribe, to ask defendant, on cross-examination, as to the length of his service on the police force, the amount of his salary from time to time, how much he had when he went on the force, how much he had inherited, how long he had been married, the size of his family, etc., though resulting only in showing that he had §500 when he went on the force, had inherited §1,500, liad received in salary during his 17 years’ connection with the force §32,700, and had at the time of the trial §10,000 worth of property, is prejudicial error. Follett, J., dissenting.</p>

Whitcomb and by Ida S. Whitcomb, respec- - tively, against Flynn Whitcomb, as executor of Samuel Whitcomb, deceased. The claims were disputed by the executor, and were referred under the statute. The referee found in favor of claimant in each case, and defendant appeals.

Action by Joseph W. Hopper against Emma B. Hopper to declare void a marriage contract. From an order directing plaintiff to defendant’s attorneys $75 as counsel fees, and for the expense of conducting the defense, plaintiff appeals.

Replevin by George Borgfeldt & Co. against George B. Wood and others. There was a judgment, entered on a verdict directed by the court in favor of defendants, dismissing the complaint, and for a return of the goods replevied, or for their value, with damages for detention, and plaintiff appeals.

Action by Christina L. Allen and George W. Henderson; administrators of the estate of Jonah E. Allen, deceased, against the New York Central & Hudson River Railroad Company, to recover damages for the killing of plaintiffs’ intestate. Plaintiffs were non-suited, and move for a new trial on exceptions ordered to be heard at general term in the first instance.

Action by Thomas Tinsley against Elbert S. Jemison to set aside a certain contract relating to securities or obligations of the city of Houston, Tex., in which plaintiff appealed from a judgment in favor of defendant. Defendant moves to dismiss the appeal.

Action by George W. Hey against Matthew J. Dolphin and the International Postal Supply Company of New York for the revocation of a power of attorney and a partition of corporate stock. From a judgment in favor of plaintiff, defendants appeal.

Replevin by Edwin Wilcox against Wilbur H. Selleck, as sheriff of Oswego county. From a judgment entered on a verdict in favor of plaintiff, defendant appeals.

Action by Jerome R. Petrie against the trustees of Hamilton College. Defendants entered judgment dismissing the complaint on the merits, and from the order vacating the same they appeal.

Action by Truman K. Fuller against Margaret Tolman for the value of professional services. A judgment was rendered in favor of plaintiff, and defendant appeals. Henry B. Tolman, the defendant’s husband, died on the 12th of December, 1889, leaving a last will and testament, whereby he devised and bequeathed all his property, both real and personal, to her, and nominated her as executrix of the will.

Action by Charles H. Baker and another against Sanford E. Loring for goods sold. Judgment was rendered for plaintiffs, and defendant appeals. It is admitted in the answer that the plaintiffs are copartners doing business at Syracuse under the firm name and style of G. H. Baker & Go.

Action by Emma Gutman against the New York Elevated Railroad Company and another to enjoin the operation of defendants’ railroad in the street in front of plaintiff’s premises, No. 737 Third .avenue, and for damages. There was a judgment in favor of plaintiff, and defendants appeal. Reversed.

Action by Herbert L. Harding and Edward J. H. Tamsen, as sheriff of New York county, against John M. Elliott, impleaded with others, to set aside an assignment made by defendant Severance to defendant Elliott of a fund of §15,000, and deposited in the hands of defendants ICountze Bros., on the ground that such assignment was made with intent to hinder, delay, and defraud plaintiff Harding. The complaint was dismissed on the merits (33 N. Y. Supp. 1095), and plaintiffs appeal.

<p>Appeal from judgment on report of referee.</p> <p>Action by Frank W. Sanger against Thomas H. French for an accounting and other equitable relief. There was a judgment in favor of plaintiff, and defendant appeals.</p>

<p>1. Counties—Liabilites—Actions on.</p> <p>Under the statutes existing prior to 1892, no action lay against a county to recover a county charge, the board of supervisors having exclusive jurisdiction to audit and pay such claims.</p> <p>2. Same—County Charges.</p> <p>Laws 1892, c. G8G, § 3, providing that an action against a county to enforce a liability created upon it, or upon any of its officers, shall be in the name of the county, was only intended to change the law in respect to actions which the former statutes declared should be in the name of the board of supervisors; and, as those actions did not include claims for county charges, the law relating to such claims remains unchanged, and the county cannot be sued thereon.</p> <p>3. Same—Failure to Raise Objection.</p> <p>Nor can the county, by consent, failure to demur, or otherwise, validate such action. •</p> <p>4. Statutes—Construction—Terms of Former Act.</p> <p>Where a statute which has been judicially construed is replaced by a new law containing the same provisions, the former interpretation will -be adhered to in construing the substituted act.</p> <p>5. Reference—Powers of Referee—Dismissal of Complaint.</p> <p>Under Code Civ. Proc. § 1018, declaring that a referee must “dispose of any question arising upon the decision of the issues referred to him in like manner as similar powers are exercised by the court upon a trial,” a referee may, on a reference to try and determine the issues, dismiss the action as not maintainable.</p>

Action by Miranda Miller against Thomas J. Reynolds. A verdict was rendered in favor of plaintiff, and defendant moves for a new trial on exceptions ordered to be heard at general term in the-first instance.

<p>1. Judgment—Action on—Evidence.</p> <p>In an action on a judgment rendered in the supreme court, the introduction of a certified transcript of the entry in the clerk’s docket is insufficient to prove the relation of the parties.</p> <p>2. Appeal—Objections not Raised Below.</p> <p>Defendant, to avail himself of the insufficiency of evidence as to relation of parties, must raise the question on the trial.</p> <p>3. Creditors’ Bill—New Parties—Summons and Complaint.</p> <p>In an action by judgment creditors to set aside conveyances for fraud, the summons and complaint need not show that it is brought in behalf of all judgment creditors similarly situated who may choose to come in and share in the expense and results, to enable the court to permit them to do so.</p> <p>4. Appeal—Pleadings—Objections not Raised Below.</p> <p>When a plaintiff has come into a ease after issue joined, the objection that he tenders no pleadings must be made in the trial court.</p> <p>5. Secondary Evidence—Lost Instruments—Proop op Loss.</p> <p>Where a paper is produced and identified on a trial, and, at an adjourned hearing, defendant testifies that he has not seen it since it was handed to his attorney, when first produced; that he and the attorney have searched for it among the attorney’s papers belonging to the case, and have been unable to find it; and plaintiff’s counsel admit that defendant’s counsel is unable to find the paper, and no suspicious circumstances appear in the evidence, it is error to exclude secondary evidence as to the paper’s contents.</p>

Action by Perry D. Lindholm and John P. Anderson against Jennie H. Kane. From a judgment of the county court reversing a judgment of the justice court in favor of defendant, defendant appeals.

Action by Mary A. Tinker against the New York, Ontario & Western Railway Company for damages for personal injuries. From a judgment for plaintiff, and an order denying a motion for a new trial,, defendant appeals.

Action by Christopher Clarke against Richard K. Fox for slander. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Gustav Heinz, as administrator of Louis 0. Heinz, deceased, against the Brooklyn Heights Railroad Company, to recover damages for the death of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Abijah Weston and Charles Weston against Daniel G. Brown and Carrie M. Hasbrouck to recover a balance alleged to be due for lumber sold and delivered by plaintiffs to defendants. There was a judgment in favor of plaintiffs for $117,719.92, and defendants appeal.

Application by John William McClelland for a writ of mandamus to compel James A. Roberts, as comptroller of the state of New York, to draw his warrant for the payment of relator’s salary as clerk in the office of collector of canal statistics. The application was denied (34 N. Y. Supp. 641), and relator appeals.

Certiorari by Helen L. Sprague to review the determination .of the board of excise of the town of Moriah in refusing to grant her an hotel liquor license. The decision of the board of excise was reversed by the term, and defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Claim by Charles Winne against Russell A. Hills, as administrator of Charles A. Hills, deceased. From a judgment dismissing the claim, claimant appeals.</p>

Actions by Esther La Flamme against the city of Albany, and by John La Flamme against the same defendant. From a judgment in favor of plaintiff in each case, defendant appeals.

<p>1. Life Insurance—Assignment of Policy.</p> <p>An instrument reciting that “I, the * * * person insured, * * * hereby request and authorize the said company, in the event of my death prior to the death of the person hereinafter named, to pay the benefit specified in said policy to M., and the receipt signed by said person shall be conclusive evidence that such sum has been paid. * * * and that all claims under this policy have been fully satisfied,” but that “nothing herein is to vary * * * any of the provisions of said policy,” is such an assignment of a life policy payable to the executors or administrators of the assured as will authorize M. to sue thereon in' her own name.</p> <p>2. Secondary Evidence—When Admissible.</p> <p>Where the subscribing witness to a written assignment of a life policy is not within the jurisdiction of the court at the time action is brought on the policy, the execution of the assignment may be shown by secondary proof.</p> <p>3. Insurance—Proof of Loss—Waiver of Objections.</p> <p>A life insurance company, by retaining the proofs of death furnished by plaintiff until the same are produced on the trial, waives objections to their form and sufficiency.</p> <p>4. Trial—Direction of Verdict.</p> <p>Where neither party asks to go to the jury, the court is authorized to-decide the questions of fact, and direct a verdict.</p>

Action by George F. Ditmars and Abram E. Wyckoff, as executors of John V. Ditmars, deceased, against Frederick B. Sackett, W. Gilmore Sackett, and John H. Sackett. A verdict was rendered in favor of plaintiffs, and defendants move for a new trial, on exceptions ordered to be heard at general term in the first in- = stance.

<p>Change of V ende—Counter Motion—Notice.</p> <p>In an action against the state forest commission and a railroad company to annul a grant of land to the company by the commission, on the-ground that the grant was not made at a lawful meeting of the commission, where a majority of the commission, whose answer set up the-legality of the meeting, join with the company, which set up the same defense, in a motion for change of .venue to the county in which the land is situated, and the minority, whose answer denied the legality of the meeting, move to change the venue to the county where the meeting was held, the respective moving parties are required to give notice of motion to their codefendants seeking a different venue.</p>

<p>Appeal from circuit court, Jefferson county.</p> <p>Action by Hormisdas De Loge against the ¡New York Central & Hudson River Railroad Company for personal injuries. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.</p> <p>Plaintiff was riding with one Keech in a carriage, and approached the crossing, and received injuries which caused the loss of both feet and ankles of the plaintiff. An amputation thereof became necessary between the ankles and knees. Rutland street passes nearly north and south, and the railroad tracks nearly east and west. The train was due at Watertown at about 9 o’clock, and was 10 minutes late. As Keech and plaintiff approached the crossing from the north, they passed a church where there was some festivity taking place; and the evidence is somewhat conflicting as to whether the night was light or dark, and there was some evidence that the bells or whistles were not given before the train reached the crossing; and the plaintiff testified that he heard no warning until he leaped from the buggy. The engine struck the carriage about the forward wheels, and Keech was killed, and the plaintiff jumped from the vehicle, and received the injuries mentioned. Plaintiff was riding in the carriage upon the invitation of Keech, a man about 60 years of age, a farmer, who lived near Watertown, and for whom the plaintiff worked; and there is evidence that the plaintiff knew nothing of the existence of the railroad. The evidence tended to show that the train approached the crossing at a speed of over 25 miles an hour. The defendant’s engineer testified, viz.: “I won’t swear that we were not running faster than fifteen miles an hour when I crossed Rutland street.” And the fireman said: “I would not want to swear we were not running faster than twenty miles an hour.” And the defendant’s conductor testified: “We were going faster than fifteen miles an hour over Hamilton street. We were going between twenty and twenty-five, I should judge. We were not going more than probably eighteen or twenty miles over Central street. * * * I will swear we were not going twenty-five. Won’t swear we were not going twenty; might be twenty to twenty-two. I think it is about 300 feet from Central street to Rutland street. 1 will swear we were not crossing Rutland street crossing at a greater speed than fifteen miles per hour. I know very near the speed we were crossing that street that night; of course, I could not tell within a second probably. We were going faster than we ought, of course. I knew it, and didn’t try to stop it.” Plaintiff gave evidence tending to show that the city had adopted an ordinance- forbidding the running of trains within the city limits faster than five miles an hour under a penalty.</p>

Action by the Cortland Howe Ventilating Stove Company against Hezekiah Howe and others to reform a contract. Judgment was rendered for plaintiff, and defendants Hezekiah Howe, Sophia A. Howe, William Howe, and Cordelia Howe appeal.

Action by Charles Davis, as receiver of the Elmira National Bank, against Charles H. Knipp, on a promissory note. A demurrer to the answer was sustained, and defendant appeals.

<p>Principal and Agent—Authority of Agent—Question for Jury.</p> <p>In an action for breach of a contract whereby plaintiff was employed for one year as a tanner, it appeared that defendant was engaged in tanning leather; that R. had been appointed its general manager for five years, under the control of its directors, and that R. made the contract. Defendant’s directors had appointed one of their number managing director, and there was evidence that R., before consummating any arrangement for help, consulted such director, but the director never hired any one, or asked plaintiff the terms of his employment. There was also evidence that defendant held out R. as having power to hire men, and that plaintiff had no knowledge that the power was restricted. Held, that it was proper to refuse a nonsuit or to direct a verdict for defendant on the ground that no authority was shown in R. to make the contract.</p>

<p>Appeal from special term, Herkimer county.</p> <p>Juliaette L. Montgomery presented a claim against the estate of Hiram Burgess, deceased; and George H. Burgess, the executor, disputing the same, it was referred under the statute. The executor’s motion to vacate the order of reference was denied, and from the order denying the motion, and a judgment for plaintiff, defendant peals.</p>

Action by Patrick Preston against the city of Syracuse for extra work on a building. Judgment was rendered for plaintiff on a verdict directed in his favor, and defendant appeals.

Action by William Miller against the New York Central & Hudson River Railroad Company for damages from fire set by defendant’s engine. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.

Action by tbe people of the state of New York against Albin Gerber to recover a penalty of $100 for a violation of the act for the preservation of wild animals in the state of New York. From a judgment for defendant, plaintiff appeals.

Bert Forbes was convicted on a charge of resisting a police officer while in the discharge of his duty, and applies for a writ of habeas corpus, directed to John 8. Markell, superintendent of the Onondaga county penitentiary, to procure his discharge from imprisonment. From an order dismissing the writ and remanding relator, he appeals.

Action by the Meyer Rubber Company against the Lester Shoe Company and another. From an order denying it an extra allowance, plaintiff appeals. In the order appealed from are found the following words: “Ordered, that the court hereby entertains said motion for additional allowance of costs herein, and hereby denies the same, with $10 costs of the motion.”

Action by Harvey Joyce against the Rome, Watertown & Ogdensburg Railroad Company. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for new trial made on the minutes, plaintiff appeals. Action for alleged negligence in causing injuries to the plaintiff which occasioned the loss of an arm while attempting to couple cars at the Rich-land station, January 10, 1890.

<p>Mutual Benefit Insurance—Changing Terms of Policy.</p> <p>Where a life insurance company issued a policy payable in 11 years, if assured should live that time, it cannot, by afterwards adopting a bylaw that all persons holding such policies who should live the period of expectation, and become totally disabled, should be entitled to receive yearly one-tenth Of the amount of their policies, affect the right of as-' sured to collect the amount of his policy as provided therein, though, in his application, assured agreed to accept the policy subject to such regu- ■ lations of the company as then existed, or might thereafter be adopted.</p>

<p>1. Deed—Description op Grantees—Surplusage.</p> <p>A deed to a person “and associates” vests the entire title in the person named, in the absence of anything to show that there existed at any time any associates of his in the title, that he was connected with any person or persons therein, that there was any limitation of his power to convey, or any purpose for inserting or .referring to associates.</p> <p>2. Same—Power op Grantee to Convey.</p> <p>Where a deed is to a person “and associates” such person can convey a good title, even though lie holds for himself, and as trustee for others.</p> <p>3. Same—Capacity op Grantee.</p> <p>On a motion to be relieved from a purchase at a judicial sale it appeared that a deed in the chain of title was to K. in trust for a certain association; that the date of the deed and acknowledgment was prior to such association’s incorporation; that the certificate of the county clerk that the officer who took the acknowledgment was competent to take it was made after such incorporation; that the certificate of incorporation was acknowledged before such purchaser as a notary; that the certificate of the county clerk that he was such notary was made on the same day as the certificate on the deed; that both the deed and certificate were recorded the following day; and that such association immediately took possession, and it and its grantees had continued to occupy since. Held, that the facts showed that such deed took effect at a time when the association was competent to take, and vested it with legal, title, in the absence of any proof of delivery of the deed on the day of its date.</p>

Action commenced in justice’s court by Truman A. Black against Thomas A. Maitland. A judgment was rendered against the defendant, from which he appealed. From an order of the county court denying plaintiff’s motion to dismiss the appeal, and permitting the defendant to supply an omission to pay the costs of the justice’s court, plaintiff appeals.

Action by W. S. P. Prentice and others, as executors, against W. W. Goodrich, as receiver, to recover rent. From a judgment entered on a verdict directed by the court in favor of plaintiffs, and. from an order denying a motion for a new trial, defendant appeals.

Ferdon against Martha Ferdon and others •for partition. Certain defendants moved that John C. Harrigan be required to pay over moneys received by him as their attorney, and from an order granting the motion said Harrigan appeals.

<p>Appeal from special term, Onondaga county.</p> <p>Action Tby the Salt Springs National Bank of Syracuse against John O. Fancher and others to set aside a deed and a bill of sale. From a judgment for plaintiff, and an order confirming a referee’s report, defendants appeal.</p>

Proceeding by the towns of Wheatfield and Tonawanda against the Tonawanda Street-Railroad Company to restrain the construction of a surface railroad over a bridge across Tonawanda creek. From an order continuing an injunction, defendant appeals.

Action by Benjamin Estes and others against Robert J. Dean on .an account for professional services as attorneys, rendered by plaintiffs for defendant. From a compulsory order of reference, defendant appeals.

<p>Appeal from special term, Dutchess county.</p> <p>Application by Charlotte C. Seaman for a writ of certiorari to Charles R. Dickinson, as treasurer, and others, to review an assessment for the repaving of Market street, Poughkeepsie. From an order denying the writ, relator appeals.</p>

Action by William B. Reynolds against Lydia Spencer and another to recover damages for breach of contract. Judgment was entered in favor of plaintiff, and defendants appeal.

Action by Edward H. Van Ingen and another against Henry G-. Hilton. From an order striking the cause from the circuit court calendar, defendant appeals.

<p>Appeal from circuit court, New York county.</p> <p>Action by the Astoria Veneer Mills against John W. Looschen to recover the sum of $270.83 for goods alleged to have been sold by plaintiff to defendant, and also the sum of $336, the aggregate amount of two notes alleged to have been made by defendant, together with interest from the date of the alleged sale and from the time of the alleged making of the notes. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendant</p>

<p>Intoxicating- Liquoes—Sale on Sunday—Evidence.</p> <p>Testimony of an officer that defendant, with his sleeves rolled up and an apron on, stood behind the bar of a saloon whose doors were fastened; that back of the bar were bottles with labels indicating that they contained spirituous liquors; that three persons besides defendant were present; and that on the bar stood two glasses, which were removed before witness could reach them,—is insufficient to prove a charge that defendant sold, or exposed for sale, or gave away, spirituous liquors on Sunday.</p>

Action by the Reynolds Card Manufacturing Company against the New York Bank-Note Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Action by Zeicha Sweet against the city of Buffalo for personal. injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Affirmed.

<p>Constable—Failure to Return Execution—Penalty.</p> <p>Code Civ. Proc. § 3039, providing that, if a constable neglect to return an execution within live days of the return day thereof, he shall be liable to plaintiff for the amount of the execution, does not give an action for damages for the default, but prescribes a penalty; and a constable cannot, in mitigation of a recovery, prove that the execution defendant had. no property subject to levy.</p>

<p>Appeal from special term, Monroe county.</p> <p>Action by William W. Armstrong, as receiver of George S. Riley, against Hector McLean. There was a judgment in favor of plaintiff, and defendant appeals.</p>

Action by Harriet M. S. Hutchinson against the city of Eochester and Samuel B. Williams, as treasurer of the city of Eochester. Judgment was rendered in favor of plaintiff, and defendants appeal.

Action by Edwin K. Wiggins, an infant, against John King and John G-. McCullough, as receivers of the New York, Lake Erie & Western Railroad Company, to recover damages for an assault in ejecting plaintiff from defendants’ train. From a judgment entered on a verdict in favor of plaintiff and from an order denying a motion for a new trial, defendants appeal.

Action by Maria H. N. Bartlett, as executrix o£ Edward B. Bartlett, deceased, against William W. Goodrich, as assignee of the surviving partners of E. B. Bartlett & Co. and of Henry E. Nitchie and Albert C. Woodruff, to determine whether plaintiff or defendant is entitled to the proceeds of certain policies on the life of Edward B. Bartlett, deceased.

Action by Joseph Von Hatten against Louisa Scholl and others to foreclose a mortgage, in which there was a decree of foreclosure, and a sale of the mortgaged property. From an “order denying a motion by Rebecca Feldman, purchaser at the foreclosure sale, to be relieved from her purchase, she appeals.

Appeals from equity term. Two actions, by Ann Maria Winters, individually and as executrix of William A. Dooley, deceased, against the Manhattan Railway Company and others, to enjoin the operation of defendants’' elevated railroad in the street in front of plaintiff’s premises Nos. 838, 839, 840, 841, 842, 843, and 847 Third avenue. There was a judgment in favor of plaintiff in each case, and defendants appeal.

Certiorari by George Edwards to review the action of Abraham Tappan and others, constituting the board of park commissioners of the city of New York, in removing relator from the park police force after trial on a charge of having been off post.

term. Action by Michael F. Burns, as administrator, against the Houston, West Street & PaVonia Ferry' Railroad Company to recover damages for the death of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff for $5,000, and from an order denying a motion for a new trial, defendant appeals.

Action by Elizabeth Woodward against Robert Owen Jones to recover money due under a lease. From a .judgment entered on a verdict in favor of defendant, and from an order denying a motion for á new trial, plaintiff appeals.

Action by Michael Sheehy against the Utah, Nevada & California Stage Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $6,500, and from an order denying a motion for a new trial, defendant appeals.

<p>Lease—Execution—Sreimre by Lessor Only.</p> <p>A lease signed by the lessor was delivered to one of the lessees, and retained by him, but he stated at the time that he would not sign the paper until his brother should come. Afterwards a check was given in payment of the first month’s rent, and the amount necessary to secure the transfer to the lessees of a saloon license granted to a prior occupant of the premises. Held, that the conduct of the lessee did not amount to an acceptance and ratification, and will not be construed as an execution of the lease.</p>

Summary proceedings by William H. Earle, landlord, against Francis McGoldrick, tenant. From a final order in favor of the landlord, the tenant appeals. Affirmed.

Action by James R. Johnston and others against John Vinton Dahlgren and Elizabeth Dahlgren to foreclose a mechanic’s lien. Thé defendant Elizabeth Dahlgren demurs to the complaint for insufficiency.

Action by Jackson Architectual Iron Works against Henry Hurl-but and another. Prom a judgment entered on a verdict in favor of plaintiff, defendants appeal. The action was brought to recover $1,752 damages to a planing machine intrusted by plaintiff to defendants as common carriers, to be transported from the foot of West Twenty-Third street, in the city of New York, to the shop of the plaintiff in East Twenty-Eighth street, between First and Second avenues, in said city.

Action by Frederick Wandelt against David Cohen, impleaded, to foreclose a mechanic’s lien. From a personal judgment for $870.64 rendered against defendant Cohen, said defendant appeals.

Action by Bartolemy J. Olifiers against Perry Belmont and others. From interlocutory judgments entered on orders sustaining demurrers interposed severally by defendants Belmont and Chandler to the complaint (33 2T. Y. Supp. 275), plaintiff appeals.

Action by Charles Strobel against the mayor, etc., of the city of New York for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Julius Freudenheim and others against Julia Raduziner. From a judgment of the city court (33 N. Y. Supp. 1128) affirming a judgment entered on a verdict in favor of defendant, plaintiffs appeal.

Appraisal under the transfer tax law of the estate of Katharine J. S. Davis. From an order and decree of the surrogate reversing a former decree made by him, and assessing a tax against Mary H. H. Ingraham for $464.31, with interest from February 2, 1894, for a period of eight months, at the rate of 6 per cent, per annum, and after that time at the rate of 10 per cent, per annum, said Mary H. 5. Ingraham appeals.

Action by the United States Life Insurance Company in the City of New York against Charles Salmon, Moses B. Shantz, William Manning, and Charles E. Manning. The complaint was dismissed as to defendants Salmon and Shantz, and plaintiff appeals.

Action by Artemus H. Earle against Helen M. Beeman and husband. Plaintiff appeals from an order allowing defendants an inspection of the notes sued on.

<p>Petition by John Vanderhoof for a writ of mandamus to compel George W. Palmer, comptroller of the city of Brooklyn, to reinstate petitioner in a clerical office.</p>

<p>1. Pleading—Alleging Conclusions Instead of Facts.</p> <p>An allegation that an agreement was made “to pay interest at a greater rate than 6 per cent, per annum for money loaned,” and was therefore usurious, without stating the facts constituting the alleged usury, states a mere conclusion of the pleader, and is insufficient.</p> <p>8. Same—Who may Plead.</p> <p>The right to set up usury is personal to the debtor and his privies.</p> <p>8. Same—Judgment Creditor of Borrower.</p> <p>Where the mortgagee, after default in a usurious chattel mortgage, takes possession under it, without objection by the mortgagor, the usury is waived, and therefore a subsequent judgment creditor of such mortgagor cannot attack the mortgage on the ground of the usury.</p>

<p>Damages—Proximate Cause.</p> <p>One who, knowing that gunpowder is an interdicted article in a foreign country, agrees to deliver it to the buyer there, and for that purpose to obtain permission from the government of such country to land it, which . he neglects to do, is liable to the buyer for the amount of a fine paid by him for attempting to land it.</p>

Certiorari by the Edison Electric Light Company against ■ Edward P. Barker and others, as commissioners of taxes and assessments of the city and county of New York, and by the Edison General Electric Company against the same defendants, to review the assessment of relators’ personal property for the year 1894. From an order in each case vacating the assessment, defendants appeal.

Action by Harry B. Hollins and others against Samuel T. Hubbard, Jr., and others, to recover damages for breach of contract. A verdict was directed in favor of plaintiffs, and defendants move for a new trial on exceptions ordered to be heard at general term in the first instance.

<p>Certiorari by John R. Krushinsky to review the .decision of James J. Martin and others, police commissioners of the city of New York, in dismissing relator from the police force.</p>

Action by Bichard H. Wright against James B. Duke, Benjamin N. Duke, Brodie L. Duke, and George W. Watts to recover damages for fraud. From a judgment-dismissing the complaint on the merits, entered after a trial by the court, a jury having been waived by the parties, plaintiff appeals.

Action by David Money against John Fisher, Jr. From a judgment reversing the judgment of the justice in favor of plaintiff for $20.40 damages and $5 costs, plaintiff appeals.

Action by the town of Windsor against the president, mánagers, and company of the Delaware & Hudson Canal Company. Judgment was entered in favor of plaintiff, and defendant appeals.

Edward Hurlburt was convicted of grand larceny in the first degree, and appeals. The larceny was alleged to have been committed in the city of Utica on the 14th day of December, 1893.

Action by Clarence A. McVee, an infant, by Frank McVee, his guardian ad litem, against the city of Watertown, to recover for injuries caused by a defective sidewalk. From a judgment entered on a verdict for plaintiff, and from an order denying a motion on the minutes for a new trial, defendant appeals.

<p>1. Insurance—Conditions of Policy—Vacant House.</p> <p>A tenant of a dwelling house placed all her furniture in one room, and went on a visit for six weeks, with intention to occupy the house on her return. The furniture was placed in such room so that the other rooms might be painted and papered during her absence. She left a key with a friend, with directions to visit the house daily, and see that the doors were locked, and the window shutters closed, etc. Held, that the house was not vacant, within the meaning of a condition in a policy on the furniture avoiding it if the building became vacant.</p> <p>3. Same—Unoccupied House.</p> <p>But such house was unoccupied within the meaning of a policy insuring the furniture contained and while contained in the building “occupied and to be occupied as a dwelling house,” and providing that the policy should be void if the building should become “vacant or unoccupied, and so remain for 10 days.”</p> <p>3. Same—Forfeiture of Policy.</p> <p>A policy insuring furniture described as “all contained and while contained in [a certain house] occupied and to be occupied as a dwelling” declared that the “entire policy,” unless otherwise provided by agreement indorsed on or added to it, should be void if the building became vacant or unoccupied, and so remained for 10 days. Held, that the effect of allowing the building to be unoccupied more than 10 days was to render the insurance void.</p>

<p>1. Contracts—Consideration—Changing Name.</p> <p>Changing a child’s Christian name is a sufficient consideration to support a promise by the person at whose request the name was changed to leave the child a certain sum.</p> <p>2. Action—Party not Privy to Contract.</p> <p>A promise by a grandfather, made to his grandchild’s parents, to leave the grandchild a certain sum if her Christian name was changed, may be enforced by the child.</p>

<p>Appeal from surrogate’s court, Oneida county.</p> <p>Petition by Larned K. Wilson for letters of administration upon the personal estate of Larned K. Wilson, Jr., deceased. From a decree awarding letters to Emma E. Wilson, decedent’s widow, petitioner appeals.</p>

<p>1. Constitutional Law—Interstate Commerce.</p> <p>Laws Tenn. 1891, c. 52, providing for the separate accommodation of the white and colored races on railroad trains, so far as it applies to interstate passengers, violates the interstate commerce clause of the federal constitution.</p> <p>2. Receivers—Liability in Another State.</p> <p>Receivers of a foreign railroad company, appointed by the circuit court of the United States in such foreign state, may be sued in the courts of New York, where permission was granted to sue them here by the court appointing them.</p>

Proceedings under a writ of habeas corpus to secure the discharge of the relators, Thomas F. Ryan and James Thompson, in custody under a warrant issued by the governor of the state of New York for their extradition to the state of Massachusetts.

<p>Appeal from special term, Onondaga county.</p> <p>Action by Edward C. Wright against the Syracuse, Ontario & New York Railroad Company and the New York Central & Hudson River Railroad Company, as lessees of the West Shore Railroad, to recover damages for the unlawful occupancy of a street with its tracks, and to enjoin its further use. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal—Action on Undertaking!—Notice op Affirmance.</p> <p>Code Civ. Proe. § 1S09, providing that an action shall not be maintained on an undertaking given on appeal* until 10 days after “service upon the attorney for appellant of a written notice of the entry of a judgment or order affirming the judgment or order appealed from or dismissing the appeal,” is complied with by the service of a copy of the order of dismissal having on the back an indorsement by the clerk showing the date of its entry and the name of the attorney for the appellee.</p>

Motion by W. H. Gardenier, as attorney for Lysander T. Millis, receiver, for an order directing said receiver to bring action against William J. Pentelow, or to permit Gardenier, as attorney, to bring such action tor his own benefit, in the name of the receiver. The receiver opposed the motion. From an order of the special term denying the motion, Gardenier appeals.

Action by David P. Lester against the Delaware, Lackawanna & Western Railroad Company for the conversion of goods. From a judgment entered on a decision of the court rendered after trial before the court without a jury in favor of plaintiff, defendant appeals.

<p>Agreement to Assign Mortgage—Damages.</p> <p>Where a mortgagee received money on an agreement to assign the mortgage, on payment of the full amount thereof, and then assign's it to another, the measure of damages is the amount so paid him.</p>

Action by William Connors against the Elmira, Cortland & Northern Railroad Company to recover damages for personal injuries. From a judgment of nonsuit, and from an order denying a motion on the minutes for a new trial, plaintiff appeals.

Action of replevin by William E. Pratt, as receiver of the property and effects of John Schaefer, against Charles H. Baker and others, to recover a hot-air furnace or its value, commenced in justice’s court, and taken on appeal by defendant to the county court. From a judgment reversing the judgment of the justice, plaintiff appeals.

Action by Ada S. De Van against the Commercial Travelers’ Mutual Accident Association of America. From a judgment entered on the verdict of the jury in favor of plaintiff, and from an order denying a'motion for a new trial, defendant appeals.

Action by the S’outh Brooklyn Sawmill Company against Richard Cronin and others to recover the sum of $101, with interest,—a balance alleged to be due for goods sold and delivered by plaintiff to defendants. From a judgment entered on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.

<p>Appeal from judgment on report of referee.</p> <p>Action by Ann Minott Mitchell, as administratrix, against the village of White Plains. There was a judgment in favor of plaintiff, and defendant appeals.</p>

Action by Minnie M. Albrecht, by J. M. Albrecht, her guardian ad litem, against Robert H. Canfield. From an order denying a motion to dismiss the action and complaint and all proceedings on the ground that the order purporting to appoint the guardian ad litem of plaintiff was the order of the Oneida county court, and made without jurisdiction, or that plaintiff be required to procure a proper appointment, defendant appeals.

Action Tby Peter A. Ward, appointed, in supplementary proceedings, receiver of Norman Petrie, against said Petrie and another. Prom a judgment for plaintiff, and an order denying a new trial, defendants appeal.

<p>Appeal from circuit court, Erie county.</p> <p>Action by Winifred Collins, executrix of the will of Lawrence - Collins, deceased, against the New York, Chicago & St. Louis Railroad Company, to recover damages for the killing of plaintiff's testator. From a judgment in favor of defendant, entered on a non-suit, plaintiff appeals.</p>

Action by William Wilcox and others against James H. Williams and others to set aside a transfer of letters patent, and for a conveyance of the same to the Ithaca Drop-Forge Company. A judgment was entered in favor of plaintiffs, and defendants appeal.

Action by Clarence G. T. Smith against Leopold Leo, to recover damages for the wrongful expulsion of plaintiff from a hall. From a judgment entered on a v.erdict in favor of plaintiff, and from an order denying a motion for a new trial made on a case and exceptions, defendant appeals.

Action by Fredericka Beitz against Adaline H. Fuller and another to rescind a contract. From an order amending a decision of the trial court and the judgment entered thereon, plaintiff appeals. This action was brought to rescind a contract for the sale of land upon the ground of fraud. The defendant Fuller, in her answer to the amended complaint, set forth certain facts constituting her defense, and demanded a specific performance of the contract.

Action by Leonor Van Etten Taylor against William J. Welsh, executor of the estate of Ann Eliza Stimson, deceased, on a claim against such estat.e for services rendered deceased. Judgment was entered in favor of plaintiff for $310 damages besides costs, and defendant appeals.

Action by David Watters against Warring S. Weed and others for damages. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal. The defendants in this action, at the time of its commencement, were engaged in the business of manufacturing lumber. Their mill was located at Glen Hazel, Pa.

Action by Lillian Cauchois against William B. Proctor. On a motion by defendant for judgment on the pleadings, a judgment of dismissal on the merits was entered, and plaintiff appeals.

Controversy between Cordelia A. Hinckley as plaintiff and William A. Mayborne and others as defendants, submitted without action on an agreed statement of facts, to determine the ownership of property devised. Judgment for defendants.

<p>Witness—Credibility—Interest in Controversy.</p> <p>The cashier of a bank who, as notary public, protests a note owned by the bank, is not a disinterested witness as to such transaction; and the credibility of his testimony, though not directly contradicted, is a question for the jury.</p>

Action by William N. Dykman, as receiver, against William J. North ridge. A judgment was rendered for plaintiff on a verdict of the jury, directed by the court, and the defendant appeals.

<p>Life Insurance—Infants—Co-operative Associations.</p> <p>Laws 1883, c. 175, § 5, providing that co-operative life insurance companies should issue policies to their “members” for the payment of money on the “decease of a member,” restricted their insurance to the lives of members only, and was construed as denying them the power to receive infants as members. Laws 1892, c. 690 (the insurance law), repealed such act, but continued such insurance companies without reorganization, subject to its provisions so far as applicable to such companies. Article 1, § 55, entitled “General Provisions,” provides that no policy shall be issued on the life of another without the application of such person, but that a person liable for the support of a child “may take a yearly renewable term policy thereon” which after a certain time may become “an ordinary life policy.” Article 6, § 201, referring to co-operative life insurance corporations, confines the business of such companies to cases where policies are issued to “members” only. Reid, that section 55 relates to cases within the general life insurance laws, and does not enlarge the powers of co-operative companies as restiicted by section 201.</p>

Action by George H. Humphrey, executor, against M. Leonora. Sweeting and another, to foreclose a mortgage. From a judgment dismissing the complaint, plaintiff appeals.

<p>Appeal from circuit court, Cattaraugus county.</p> <p>Action by Hosea Shipman against Herbert A. Learn and Edwin Booth to recover damages for an alleged malicious prosecution. At the close of plaintiff’s evidence a motion for nonsuit was sustained, on the ground that the evidence was insufficient to show want of probable cause for plaintiff’s arrest. Plaintiff appeals.</p>

<p>Appeal from special term.</p> <p>Action by Arthur W. Caziarc against Abram French Company for services. From an order requiring defendant to furnish a bill of particulars, defendant appeals.</p>

Proceeding instituted by the present general guardian of the person and property of Peter Metzger, an infant, against Matthias, Frank, and Frances Schneider, executors, to compel an accounting on behalf of Peter Schneider, deceased, a former general guardian of said infant. The account filed and objections thereto were referred, and from a decree entered upon the findings of the referee the guardian appeals.

<p>Appeal from municipal court of Buffalo.</p> <p>Action by Philip Drago against James H. Smith to recover wages for labor. From a judgment in favor of plaintiff for $18.72, defendant appeals. Reversed.</p>

<p>Appeal from special term.</p> <p>Action by the Bussey & McLeod Stove Company against David Wilkins, Jr. From an order striking allegations from the complaint, plaintiff appeals.</p>

Action by Morris Moses against the city of Key West to recover broker’s commissions. The complaint was dismissed, and plaintiff appeals.

<p>Leases—Deposit as Security—Liquidated Damages.</p> <p>Under a lease providing for a deposit as security for observance by the tenants of the conditions, to be applied to the rent for the last two months of the term, provided the tenants had up to that time fully performed their obligations, but to be forfeited as liquidated damages in case of breach of a condition, the tenants, having, by failure to pay rent for a preceding month, broken a condition, cannot have the deposit applied on the rent defaulted, but may be dispossessed for the default.</p>

Action by Thomas P. Van Allen against Alexander F. Gordon, executor of will of John H. Gordon, deceased. From a portion of the order requiring him to pay a certain amount of costs and certain disbursements to plaintiff, as a condition to the amendment of his answer, defendant appeals.

Petition by E. & G. Friend & Go. to compel George W. Dunn, as receiver of the Merchants’ Bank of Binghamton, to pay their claim against the said bank. From an order of said claim in full, the receiver appeals.

Application by the Depew & Southwestern Railroad Company, pursuant to Laws 1892, c. 676, § 59, for direction to the board of railroad commissioners to issue a certificate that public convenience and necessity required the construction of the railroad as proposed in the articles of association of said company.

<p>1. Criminal Law—Indefinite Sentence.</p> <p>A sentence of imprisonment for a period not exceeding 180 days does/ not definitely fix and declare the term of imprisonment, and is ineffectual, to continue a prisoner in custody any length of time.</p> <p>2. Court of Special Sessions—Resentence.</p> <p>After a judgment has been pronounced and a certificate of conviction-made by a court of special sessions, the court is functus officio; and it cannot afterwards be reorganized for the purpose of resentencing defendant in order to cure a defect in the original sentence.</p>

<p>Appeal from circuit court, Erie county.</p> <p>Action by Margaret Walsh against the city of Buffalo for personal injuries. Plaintiff was nonsuited, and appeals.</p>

Action by A. Smith & Sons Carpet Company against one Skinner to compel defendant to assign to plaintiffs a certain patent. From an order enjoining defendant, pendente lite, from transferring the patent to third persons, defendant appeals.

Action by Myra L. Wood, as executrix of Horace G-. Wood, against Emma Richardson, as executrix, and others. From an order allowing Joseph B. Richardson and others to intervene, plaintiff appeals.

Certiorari, on relation of Patrick McCanna, to review the action -of the board of commissioners of charities and corrections of the -county of Kings in abolishing the office of chief engineer of said board.

.Action by Isaac E. Dean, as president of the Ontario Improvement & Q-as Company, Limited, against William H. Gilbert and others. From an order denying a motion to amend the complaint by striking out the words “Isaac E. Dean, as president of,” and thus reducing the name of plaintiff to that of the Ontario Improvement & Gps Company, Limited, plaintiff appeals.

Action by Mary A. Dinlay, administratrix, against Johnston Mc-Cullagh, to recover a deposit made by plaintiff’s intestate in the Erie County Savings Bank in her lifetime. From a judgment on a verdict directed for plaintiff, and from an order denying a motion for a new trial, defendant appeals. This action was originally brought by the plaintiff against the Erie County-Savings Bank to recover a deposit made by the plaintiff’s intestate in her lifetime.

<p>Appeal from special term, Kings county.</p> <p>Action by John Petterson against Gerard B. Van Wart. From an ■order of the special term, the plaintiff appeals.</p>

Action by John O’Malley against the People’s Building, Loan & Savings Association to recover the sum of $500, alleged to be due on a certificate of five shares of stock issued by defendant to plaintiff. From a judgment in favor of plaintiff (35 N. Y. Supp. 14), defendant appeals.

Action by Alvey A. Adee against Thomas C. Arnow and the town of Westchester to cancel a tax lease made by such town to defendant Arnow as a cloud on plaintiff’s title to certain land. From an order requiring plaintiff’s attorney to accept the notice of appearance by Seward Baker for the town of Westchester, plaintiff appeals.

<p>Appeal from circuit court.</p> <p>Action by Adela McNish against the village of Peekskill for personal injuries. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.</p>

Action by William Brigden, as executor of Marania A. P. Brigden, against Charles H. Osman. On a trial a verdict was rendered for defendant, which was set aside, and a new trial ordered. 32 N. Y. Supp. 782. Defendant appeals.

<p>J udgment—Reversal.</p> <p>An order denying plaintiff’s motion to set aside a judgment by default for defendant on appeal to the county court from a judgment of the municipal court for plaintiff will be reversed: it appearing that plaintiff’s showing of excuse for nonappearance was not considered, but that the court based its denial of the motion on the ground that defendant was entitled to a reversal for the reason that the municipal court had given judgment for plaintiff for costs when his recovery had been less than defendant’s offer of judgment, and it further appearing that defendant’s offer of judgment was in fact less than plaintiff’s recovery, and no other error of the municipal court appearing to uphold said order.</p>

<p>Appeal from Chautauqua county court.</p> <p>Action by Frank J. Helmick against Lester Churchill for work done and for breach of contract. From a judgment for plaintiff, defendant appeals.</p>

Action by Susan Magennis, as administratrix of Edward Magennis, deceased, against Nicholas A. Scheid, for the dissolution of a firm and an accounting. From an order establishing a partnership, and referring the question of the partners’ interests in the firm assets, defendant appeals.

<p>1. Contract—When an Entirety—Performance.</p> <p>One who contracts, for an expressed consideration, to furnish the materials and complete certain improvements on the land of another, cannot recover for loss or injury to the uncompleted work occurring without fault or negligence of the owner, which he was obliged to make good to complete his contract.</p> <p>3. Costs—When Recoverable of Course.</p> <p>Code Civ. Proc. § 3228, subd. 4, providing that a plaintiff, on recovery of 850 or more in an action for the recovery of money only, is entitled to costs of course, leaves no discretion in the court, and applies equally to actions at law and in equity.</p> <p>8. Same—Appeal—Review of Taxation of Costs.</p> <p>The action of a court in refusing to allow costs to which plaintiff is entitled by statute in an action at law is reviewable on appeal.</p>

Caroline Kraft was convicted of manslaughter in the first degree, •and appeals.

Action by Jacob Snyder and others against Carmi V. Lindsey and others. There was a judgment in favor of plaintiffs, and defendant Lindsey appeals.

<p>1. Account Stated.</p> <p>An account stated, acknowledging, absolutely and unqualifiedly, an amount due plaintiff’s assignor, is not affected by a memorandum, at the foot thereof, “The above account is subject to an attachment” for a certain amount, in the suit of a third person against the assignor, where, at the time action is brought on the account, the attachment had been discharged.</p> <p>2. Set-off—Joint and Separate Claims.</p> <p>A joint debt cannot be set off against a separate debt, in an action at law.</p>

Action by Gilbert M. Husted against Edward Van Ness and David Thomson, trustee of the estate of Benjamin Lord, deceased, to 'cancel or reform a release. The complaint was dismissed, as to Van Ness, without costs, and judgment rendered against Thomson for reformation of instrument, and both defendants appeal.

Action by William H. Schaffer against the Second Avenue Railroad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $1,197.76 damages, and costs, and from an order denying a motion for a new trial, defendant appeals.

<p>Judgment—Correction—Mistake in Entry.</p> <p>A judgment entered by consent oí defendant, but which was broader than the consent authorized, will not be vacated, where plaintiff agrees to its modification to conform to the real intention of the parties.</p>

<p>Appeal from special term, Oswego county.</p> <p>Action by A. D. Merry, as receiver of the property of Dwight Wilcox, against Dwight Wilcox and others. The complaint was dismissed on the merits, with costs, and plaintiff appeals.</p>

Action by George Lowenthal against Maria E. Lowenthal for divorce. Prom a judgment in favor of plaintiff, and from an order denying a motion, and also an order setting aside an answer oí the jury to the thirteenth interrogatory, defendant appeals. Affirmed.

Action by Mary Beier against Nellie N. Spaulding. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, made on the minutes, plaintiff appeals.

Proceeding by the attorney general of the state of New York to-dissolve the Life & Reserve Association of Buffalo, N. Y., and to distribute its assets. A receiver was appointed, and questions in controversy between certain claimants were tried by a referee. From an order on referee’s findings, claimants Frank Spooner, Ella Royce, and John P. Riley appeal. The receiver was also directed to appeal.

Certiorari by the Grroton Bridge Manufacturing Company against the town board of the town of Campbell, Steuben county, hi. Y., as a board of audit, to review the action of such board in refusing to audit and allow to the full amount a bill and claim of relator for the construction of a bridge, pursuant to a contract with the highway commissioner of such town.

<p>Appeal from judgment on report of referee.</p> <p>Action by Ellen S. Luce against Arthur S. Gray and others. From a judgment for plaintiff, defendants Arthur S. Gray and Charles Laferty appeal.</p>

<p>1. Receivers—Appointment op.</p> <p>A receiver is properly appointed during the pendency of an action to recover the amount of commissions in '.which it is alleged plaintiffs are entitled to share, but some of which, with a mortgage securing the remainder, are in the hands of defendants, who have fraudulently concealed their receipt from plaintiffs; and the court may, by order, direct defendants to turn over to the receiver all sums received by them as commissions in the transaction set out in the complaint</p> <p>2. Same—Solvency op Dependant.</p> <p>It is not an abuse of discretion to appoint a receiver of a fund in litigation which is in the hands of defendant, though he is financially responsible, when he is charged with fraudulent conduct, and is shown to be attempting to dispose of his property in the state.</p> <p>Appeal from special term, Monroe county.</p> <p>Action by Charles A. Bird, in Ms own behalf and on behalf of all others similarly situated who may desire to join, against Erwin H. Lanphear and others. From an order appointing a receiver pendente lite, defendants appeal. Affirmed.</p>

<p>1. Nuisance—Measure oe Damaqbs—Injury to Use.</p> <p>The measure of damages for injury to a tenant’s use of premises resulting from a nuisance is the difference between the rental value of the premises with the nuisance existing and their rental value in the same condition as when the tenancy commenced.</p> <p>3. Same—Landlord and Tenant.</p> <p>Where a tenant knows of the existence of a nuisance affecting the value of the use of property when he leases it, and the injury is not increased during his term, he cannot recover damages therefor.</p>

<p>Exbcütobs and Administrators—Citation—Powers of Surrogate.</p> <p>Code Civ. Proe. § 2722, providing for the citation by a surrogate of an executor or administrator to show cause why he should not pay the claim of a petitioning creditor or legatee, but requiring the surrogate to dismiss the petition on the filing of an answer setting forth facts rendering the validity or legality of the claim doubtful, and denying the same, is intended to require the litigation of such issues before a court having general law or equity powers; and a dismissal without allowing a petitioner to reply is not error.</p>

Action by William B. Cogswell against Percy Chubb and others on a policy of marine insurance. From a judgment entered on a verdict directed by the court in favor of defendants, plaintiff appeals.

Action by Paul G-. Decker against John E. O’Brien, brought in the court of common pleas in the city and county of New York, to foreclose a mechanic’s lien. There was a judgment in favor of plaintiff, and defendant appeals.

Claim by Phillip E. Gallagher against the estate of Nathan Brewster, deceased. From a judgment entered on the report of a referee to whom the matter was referred, under the statute, dismissing the claim on the merits, with costs, claimant appeals. The reference was of a disputed claim against an estate. The claim was-for §500 for services rendered the deceased by the plaintiff since June, 1888.

Action by Joshua L. Baily and others against Lewis M. Hornthal. There was a judgment for plaintiffs. From an order denying a new trial on the ground of newly-discovered evidence, defendant appeals.

Action by Charles G-ruebler against the mayor, aldermen, and commonalty of the city of New York for injuries received from a fall on a sidewalk. From a judgment on a verdict for plaintiff, and an order denying a new trial, defendant appeals.

Final accounting by James Morgan, as assignee for benefit of creditors of Walter Jones. From a decree confirming the repeal of the referee, the assignee appeals.

John O’Connell was convicted in the court of special sessions of an alleged misdemeanor in violating statutory provisions as to master plumbers. From a judgment affirming the conviction, defendant appeals.

Action by Hyman Bernstein against Joseph Singer to recover damages for the speaking of slanderous words. The answer denied the speaking of the words, and that the plaintiff had always maintained a good reputation and character, and had suffered damages as alleged, but set up no justification, nor anything by way of mitigation. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Edward J. Roberts and another against the Safety Buggy Company for breach of a contract. From an order denying a motion to compel plaintiffs to furnish a bill of particulars, defendant appeals.</p>

<p>Appeal from Monroe, county court.</p> <p>Action by John E. Walls, administrator of Catharine Walls, deceased, against the Rochester Railway Company. From a judgment for plaintiff, defendant appeals.</p>

Action by Giacomino Vitto against Patrick Parley to recover damages for the loss of a hand occasioned by the explosion of a charge which he was attempting to extract from a rock. A verdict was rendered in favor of plaintiff, and defendant moves for a new trial.

Action by Herman Fromme and Abraham Fromme against William E. Gray and another. From an order of the city court affirming an order adjudging defendant William E. Gray guilty of contempt of court, and fining him $2,154.13, and condemning him to close custody until he shall pay the said sum, with interest and costs, said William E. Gray appeals.

<p>At chambers. Motion to punish defendant for contempt of court in interposing a false answer.</p>

Action by Lawrence P. Farley against the mayor, aldermen, and commonalty of the city of New York for personal injuries. From a judgment for $7,897.16 damages and costs, entered on a verdict in favor of plaintiff, defendant appeals.

Certiorari by Patrick H. McCullough to review the action of J. Sargeant Cram and others, constituting the board of dock commissioners of the city of New York, dismissing relator from the service of the department.

Application by Andrew Beattie for the discharge and vacating of a mechanic’s lien of Isabella M. Burton on the property and premises known as “Lots 1 and 2, in block 12, on map of Mt. Vernon Heights in the City of Mt. Vernon.”

<p>Action by John D. Barrett against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Cecilia Beebe against the New York & New England Railroad Company.</p>

<p>Action by Charles M. Bicrschenk and another against John Dunphy.</p>

Action by Mary E. Beckwith, as administratrix of the goods, chattels, and credits of James S. Beckwith, deceased, against the New York, Ontario & Western Railway Company. Howard D. Newton, for appellant. 01-ney & Wiggins, for respondent.

<p>Petition by William C. Gamp and others for an accounting by Nelson Gross, as executor of the will of Calvin B. Camp, deceased.</p>

Action by Charles B. Crowell against Lidie S. Crowell for divorce. From an order placing the cause on the circuit court calendar for the month of June, 1895, to be heard in Queens county, defendant appeals.

<p>Action by Margaret Fox against Mary P. De Graaf.</p>

<p>Actions by William A. Farrell against Anna G. Haeger, and by Sigmund Fliegman against Samuel Mendel.</p>

<p>Action by John L. Gross against William L. Moore and another.</p>

<p>Action by Charles E. Hadden against Edward B. Hall.</p>

<p>Action by William P. Heath against Arthur Knapp and N. J. Boyce.</p>

<p>Action by William Hanrahan against the mayor, etc., of the city of New York.</p>

<p>Action by William Hollingsworth against the Long Island Railroad Company.</p>

<p>Action by George O. Montgomery against William J. Ryan and another.</p>

<p>Action by John Moore against the Long Island Express Company.</p>

<p>Action by Albert Most against John MeArdle.</p>

<p>Action by Edward C. Murphy against William Schnitzspan and others.</p>

Edward C. Van Houten was convicted before a police justice of violating an ordinance of the village of Nyack. For decision of the court of sessions, see 35 N. Y. Supp. 186.

<p>Action by the people against, William Nooney,</p>

<p>Application by Roswell W. Keene for a writ of mandamus to compel the board of supervisors of Kings county and the board of supervisors of Queens county to construct a bridge across Newtown creek.</p>

<p>Action by William Sauer and another against the Angle Lamp Company.</p>

<p>Action by Catherine Sehoonmaker against Leonard Blass.</p>

<p>Action by Sarah C. Smith against John B. Smith.</p>

<p>Action by Matilda A. Simons against the city of Brooklyn.</p>

<p>Action by S. Fleet Speir against Frank Little. Niles & Johnson</p>

<p>Action by Sarah G. Thalman against Samuel Thalman.</p>

<p>Action by Orpha D. Van Houten against Isaac E. Pye.</p>

<p>Action by Eliza W. White and others against Edward M. Benjamin and others.</p>