Volume 37 — New York Appellate Division Reports

Certiorari issued out of the Supreme Court and attested on the 10th day of June, 1897, directed to James A. Roberts, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings in the settlement of the account for taxes against the relator for the year ending October 31, 1896, under the provisions of chapter 908 of the Laws of 1896.

Appeal by the plaintiff, James Patrick, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 9th day of June, 1898, denying the plaintiff’s motion for an order setting aside the verdict of a jury in favor of the defendant and granting a new trial.

Appeal by 0. Julia Rodger and another, administrators, etc., of William. 0.

Appeal by the defendant, Edwin Shaver, from a judgment of the Court of Sessions of Delaware county, rendered on the 6th day of November, 1895, affirming a judgment of the Court of Special Sessions in and for the town of Andes, in the county of Delaware, rendered on the 19th day of September, 1895, convicting the defendant of violating the provisions of section 31 of the Excise Law (Laws of 1892, chap. 401).

Appeal by the defendant, Marvin Holt, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 12th day of May, 1898, upon the verdict of a jury, and also from an order bearing date the 2d day of May, 1898, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

<p>Purchase of a claim by an attorney — when not within Code of Civil Procedure, section 73 — effect of a motion for a nonsuit — notice of rejection of a claim mailed, to the claimant — evidence.</p> <p>Where an attorney purchases a claim against the estate of a decedent at the request of the claimant’s attorneys, and as an accommodation to her, without deriving or intending to derive any benefit to himself, and before receiving the assignment is informed and believes that the decedent’s representatives had allowed the claim and made payments thereon, and that it would not be necessary to commence an action thereon, but merely a proceeding in a Surrogate’s 'Court to compel the decedent’s representatives to account, such action on his part does not constitute a violation of section 73 of the Code of Civil Procedure prohibiting an attorney from buying a demand with a view to bringing an action thereon — and if such claim be rejected by the decedent’s personal representatives and it becomes necessary for the attorney to bring an action thereon, the provisions of such section are not a defense thereto.</p> <p>Where upon the trial of an action the defendant, after the parties have rested, moves for a nonsuit or a dismissal of the complaint or a direction of a verdict in his favor,- and does not request the submission of any question to the jury, he is estopped from raising the point on appeal that there were questions of fact which should have been submitted to the jury.</p> <p>Where in an action upon a claim against the estate of a decedent which had been assigned to the plaintiff, it appears that the only rejection was the service of a notice thereof by mail, and the defendant calls the plaintiff’s assignor, not ■a party to the action, who testifies without contradiction that she never received such notice, the court is authorized to withhold from the jury the question whether such rejection was ever made.</p>

Appeal by the defendant-, Horatio D. Mould, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 22d day of September, 1898, upon the decision of the court rendered after a trial before the court without a jury at the Columbia Trial Term.

<p>Certiorari issued out of the Supreme Court and attested on the-25th day of June, 1898, directed to Charles R. Skinner, State Superintendent of Public Instruction, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings in removing said petitioners from office as, members of the board of education of the town of Dunkirk.</p>

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

Appeal by the defendant, E. Upton Lovejoy, from a judgment of the County Court of Chemung county, rendered on the 7th day of July, 1898, upon the verdict of a jury convicting him of the crime of grand larceny in the second degree, with notice of an intention to bring up for review upon such appeal an order entered in the office of the clerk of the county of Chemung on the 4th day of April, 1898, overruling his demurrer to the indictment, and also an order entered in said…

Appeal by the plaintiff, The New York Central and Hudson River Railroad Company, from a judgment of the Court of Claims in favor of the defendant, entered in the office of the clerk of the Court of Claims on the 7th day of December, 1897, dismissing the claim of the plaintiff to recover damages for an. appropriation of lands and for injuries to a railroad embankment. •

■ Appeal by Bartlett B. Grippen, as county treasurer of Saratoga county, from an order of a 'justice of the Supreme Court, entered in the office of the clerk of thé county of Saratoga on the 9tli day of June, 1898, made upon the return of a writ of certiorari issued in pursuance of section 28 of the Liquor Law Tax (Laws of 1896, chap. 112), directing that said treasurer issue to each of the applicants a liquor tax certificate under the provisions of subdivision 1 of section…

Appeal by the defendant, William L. Oppenheim, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 27th day of January, 1898, upon the verdict of a jury for $500, ánd' also from an order entered in said clerk’s office on the 3d day of February, 1898, denying the defendant’s motion for a new trial made upon the minutes, and also from an order granting the plaintiff an extra allowance of costs.

Appeal by Marcus D. Botsford, one of the legatees named in the last will and testament of Devillo White, deceased, and the owner by transfer and assignment of the residuary funds of said estate of said deceased testator, from portions of a decree of the 'Surrogate’s Court of the county of Chenango, entered in said Surrogate’s Court on the 21st day of March, 1898. The controversy upon this appeal relates to the 5th clause of the will of Devillo White.

Appeal by the plaintiff, Thomas Hesketh, from an order of the Supreme Court, made at the .Schenectady Trial Term and entered in the office of the clerk of the county of Schenectady on the 13th day of November, 1897, granting the defendant’s motion to set aside the verdict of a jury previously rendered in favor of the plaintiff for $20,200, upon the ground that it was excessive.

Appeal by the defendant, the Niagara Falls Hydraulic Power and Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 15th day of February, 1898, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 15th day of February, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Valentine F. Whitmore and others, from an order of the Supreme Court, made at the Monroe Trial Term and entered in the office of the clerk of the county of Monroe on the 20th day of April, 1898, denying the defendants’ motion for a new trial made upon the minutes, the jury having rendered a verdict in favor of the plaintiff for $6,000.

<p>False imprisonment — arrest of a contractor on a charge of grand la/rceny—when it is without probable cause.</p> <p>Upon the trial of an action brought to recover damages for false imprisonment of a contractor who, while engaged in removing a school building owned by the city of Buffalo, under a contract which provided that he should have “the benefit of all the materials in the same, with the privilege of using such of the old bricks as the architects deemed suitable,” was arrested on a charge of grand larceny, preferred by the superintendent of the park police, for attempting to regain a portion of such materials which the latter had removed, but who was thereafter honorably discharged, the court may properly charge that, on the question of probable cause, the plaintiff was entitled to recover, and ' that the only question for the j ury to consider was the amount of the damages.</p>

Appeal by Roland Crangle, as assignee for the benefit of creditors of John L. Kimberly, from a judgment of the County Court of Erie county in favor of John J. Lynch, entered in the office of the clerk of the county of Erie on the 2d day of August, 1898, upon the report of a referee, adjudging the claim of John J. Lynch to be entitled to a preference under the General Assignment Act.

Motion by tlie plaintiff, James Pearl Peck, as survivor of Hiram Edson Knapp and James Pearl Peck, constituting the firm of Knapp & Peck, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon a nonsuit granted by the court after a trial at the Ontario Tidal Term.

Appeal by the defendants, May C. Eeles, Boyd Packer Eeles and Ella P. Eeles, as executrix, etc., of Caroline S. Gaylord, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga on the 18th day of July, 1898, upon the decision of the court rendered after a trial at the Cayuga Special Term overruling the said defendants’ demurrer to the plaintiff's complaint.

<p>Action by the People on a bond given by a depositary of court funds—transfer thereof by check — liability for moneys deposited before the bond was given.</p> <p>An action to enforce a bond given by a bank designated by the Comptroller as a depositary of the trust funds in the hands of a county treasurer, pursuant to section 746 of the Code of Civil Procedure, may be maintained by The People.</p> <p>In such an action it appeared that the county treasurer, who took office after the execution of the bond, received from his predecessor a'check covering the trust funds on deposit with the bank, some of which funds represented moneys deposited with the bank before the execution of the bond, and that the county treasurer, after indorsing the check, deposited it in the bank and received therefrom deposit books covering the amount of the trust funds on deposit.</p> <p>Held, that the force of the transaction was the same as though .the incoming treasurer had actually drawn, currency upon the check and then deposited the same to his credit as county treasurer, and that the obligors upon the bond were liable for moneys which, while included in the check given by the outgoing to the incoming treasurer, had actually been on deposit with the bank prior to the execution of the bond.</p>

Appeal by the defendant, Philander Mott, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 23d day of February, 1898, upon the verdict of a jury, for §319.59, and also from an order entered in said clerk’s office on the 25th day of February, 1898, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 11th day of April, 1898, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 5th day of April, 1898,'denying the defendant’s motion for a new trial made upon the minutes.</p>

Cross-appeals by the plaintiff and the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Erie on the 14tli day of March, 1898, upon the report of a referee stating separately the facts found and the conclusions of law.

Appeal by the relator, Edwin C. Remington, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the lltli day of March, 1898, denying his application for a peremptory writ of mandamus.

Appeal by The Silver Lake Railway Company and others from so much of the order of the Supreme Court, made at the Erie Special Term,, and entered in the office of the clerk of the county of Erie on the 20th day of September, 1898, as allows as preferred claims (1) S. C. Briggs, $450 “ for balance of salary from October 1st, 1895, to April 1st, 1896 ; ” (2) S. C. Briggs, $197, one-half of the claim of A. J. & S. C. Briggs.

Motion by the defendant, The Knights Templars and Masons Life Indemnity Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury for $2,338.47 in favor of the plaintiff, rendered by direction of the court after a trial at the Monroe Trial Term. The action was brought to recover upon a policy of insurance issued by the defendant upon the life of Augustus M. Koeth.

<p>Village of Seneca Falls—taxation — exemption therefrom of charitable corporations — it applies to milage taxes.</p> <p>The exemption of charitable corporations from taxation by chapter 498 of the Laws of 1893, and chapter 191 of the Laws of 1889, as amended by chapters 497 and 558 of the Laws of 1890, is not confined to State, county and town taxation, but is applicable to taxation imposed by a village.</p> <p>Qucere, as to the application of chapter 908 of the Laws of 1896.</p> <p>The Legislature, in enacting title 6 of.the charter of the village of Seneca Falls (Laws of 1874, chap. 318, as amd. by Laws of 1875, chap. 177), did not intend to confer upon that municipality power to tax the property of corporations exempt under the general statutes above referred to.</p>

Appeal by the defendant, The Metropolitan Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga on the 21st day of May, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of May, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Louisa Armaindo, from an order of the Supreme Court, made at the Erie Trial Term and entered in the office of the clerk of the county of Erie on the 21st day of February, 1898, setting aside the verdict of a jury in favor of the plaintiff and granting the defendant’s motion for a new trial made upon the minutes.

<p>Application by the Auburn and Western Railway Company to the Appellate Division of the Supreme Court for the certificate required by section 59 of the General Railroad Law (Laws of 1890, chap. 565), made upon a certified copy of all maps and papers filed in the ofíiée of the Board of Railroad Commissioners of the State of New York, on the application to that Board for such certificate, which application was denied by an order made at the Capitol in the city of' Albany on the 8th day of June, 1897.</p>

Appeal by' the defendants, Frank Williamson and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 21st day of March, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of April, 1898, denying the said defendants’ motion for a new trial made upon the minutes.

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

Appeal by the plaintiffs, Frederick L. Heughes and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 2d day of May, 1898, upon the report of a referee dismissing the complaint.

<p> Negligence—a child seven yews of age injured at a railroad crossing—its obligation. to exercise care. </p> <p>Upon the trial of an action to recover damages for personal injuries resulting from the alleged negligence of the defendant, a railroad company, it appeared that the plaintiff, a bright, intelligent girl, seven years and two months old, about half-past eight o’clock in the morning, was walking westerly along a. city street which was crossed diagonally by the defendant’s railroad; that she-was entirely familiar with the crossing, and stopped about twelve feet from the northerly track until a freight train, which was traveling westerly on that, track, had passed, when, looking directly ahead, she started to run until she reached the second track when she discovered a passenger train approaching from the west at the rate of from twenty to twenty-five miles an hour, and in her fright, instead of retracing her steps, she turned and ran in an easterly direction alongside of the track, when she was overtaken by the train and struck by the steps of one of the cars thereof.</p> <p>Held, that as the case was tried upon the assumption that the plaintiff was sui juris, she was properly nonsuited upon the ground that she was guilty of contributory negligence.</p> <p>Ward, J., dissented.</p> <p>How far a young child is responsible for not exercising care, considered.</p>

Appeal by the plaintiffs, Carl Meyer and another, from an interlocutory judgment of the Supreme Court in favor of the defendant William R. Haven, entered in the office of the clerk of the county ' of Erie on the 24th day of March, 1898, upon the decision of the court rendered after a trial at the Erie Special Term, with notice of an intention to bring up for review upon such appeal the decision and order upon which said interlocutory judgment was entered.

Appeal by the defendants, The Flour Oity National Bank and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 18th day of April, 1898, upon the report of a referee.

Appeal by the defendants, William M. Irish and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the’county of Cattaraugus on the 21st day •of February, 1898, upon the verdict of a jury for $400, and also from an order entered in said clerk’s office on the 21st day of February, 1898, denying the defendants’ motion for a now trial made upon the minutes.

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 26th day of May, 1898, upon the decision of the trial justice sustaining the defendant’s demurrer to the indictment, purporting to charge the defendant with the crime of auditing and allowing a false and fraudulent claim against the county of Erie.

Appeal by the defendant, Edward Eeavey, from a judgment of the Municipal Court of Buffalo in favor of the plaintiff, rendered on the 11th day of November, 1897, convicting the defendant of violating section 35 of chapter 7 of the ordinances of the city of Buffalo.

Appeal by the defendant, the Rochester Title Insurance Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 19th day of April, 1898, upon the decision of the court rendered after a trial at the Monroe Special Tern}, overruling the said defendant’s demurrer to the plaintiff’s complaint, and also, as stated in the notice of appeal, from the order overruling the demurrer and…

Appeal by the defendant, the Waterloo Wagon Company, Limited, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 22d day of January, 1898, upon the report of a referee.

Appeal by the defendant, James E. Allen, commissioner of' highways of the town of West Turin, in the county of Lewis, New York, from an order of the Supreme Court, made at the Jefferson Special Term and entered in the office of the clerk of the county of Lewis on the 14th day of June, 1898, granting the relator’s application for a peremptory writ of mandamus commanding the said commissioner to forthwith proceed to open and work and put in condition, suitable and proper for…

Appeal by the plaintiff, Harry J. Gould, from a judgment of the-Supreme Court, entered in the offiue of the clerk of the county of' Erie on the 27th day of May, 1898, upon the verdict of a jury in. favoi* of the plaintiff for forty-seven dollars, rendered by direction of the court, and also from an order entered in said clerk’s office on the 25th day of August, 1898, denying his motion for a- new trial made upon the minutes.

Submission of a controversy, upon an agreed statement of facts,, -pursuant to section 1279 of the Code of Civil Procedure. The plaintiff, at the date of the submission and for some years -previous thereto, was a domestic corporation, organized for the purpose of manufacturing and supplying gas, electric light, heat and power, having its principal office for transacting business at the village of Herkimer, in the town of Herkimer, New York.

<p>Appeal by The City of Syracuse and The Common Council thereof from an order of the County Court of Onondaga county, entered in the office of the clerk of the county of Onondaga on the 20th day of April, 1898, dismissing the proceedings for the extension of Oneida street.</p> <p>•July 6, 1897, the common council of the city of Syracuse, pursuant to section 166 of the charter of that city,* adopted by a two-thirds vote of the members of said council a resolution, which was duly approved by the mayor July 12, 1897, directing the chief engineer of the city to make a survey and map of a proposed extension of Oneida street from its southern terminus to the northern line of Tallman street. July 12, 1897, the city engineer reported that he had made a survey of the proposed extension and marked its boundaries on the ground by monuments, and presented a map of such proposed extension showing the land to be taken, from whom to be taken, and the lands which would be benefited by the extension of the street, which map was approved July 12, 1897, by the common council and was filed July 12, 1897, in the office of the clerk of the city of Syracuse and in the office of the clerk of the county of Onondaga. Thereupon, July 12,1897, said common council adopted resolutions declaring its intention to extend said street from its southern terminus to the northern line of Tallman street, and particularly described the land to be acquired for that purpose, and also the land which, in its judgment, would be benefited by the proposed improvement, which included the land of the Syracuse, Binghamton and New York Railroad Company ; and that it would apply to the County Cofirt of the county of Onondaga, at a term to be held August 27j 1897, for the appointment of three commissioners to ascertain and report the just compensation to be paid to the person or persons owning or having an interest in the property proposed to be taken, as provided by section 167 of the charter of said city, which resolutions were passed by calling the ayes and nays, sixteen of the nineteen members .of the common council voting in favor of the resolutions. These resolutions were duly approved by the mayor of said, city July 15, 1897.</p> <p>July 29, 1897, a copy of the resolutions of July 12, 1897, was duly mailed to the persons interested in the property proposed to be taken and which was affected by said extension, and among them, to the Syracuse, Binghamton and New York Railroad Company, and was published at least five' times in five successive numbers (Sundays and legal holidays excepted) in the two official newspapers of said city, being first so published July 29, 1897. August 27, 1897, the city, by its attorney, and the Syracuse, Binghamton and New York Railroad Company, by its attorney, appeared before the ■County Court, the attorney for the railroad appearing specially, and the proceedings were, by consent, adjourned until September 18, 1897, when the attorneys for the respective parties again appeared, .and the proceedings were adjourned until October .20, 1897, on which date the railroad company appeared specially and filed the following objections to the proceedings:</p> <p>“First. That at the time of the commencement of said proceedings there were two. mortgages on record in the Onondaga county clerk’s office, covering a portion of the property owned by the said Syracuse, Binghamton and New York Railroad Company, which portion was included in the property proposed to be taken by said city in these proceedings, which fact was shown by the affidavit of Peter B. Cole, presented to said court by said Jenney at the time, and that the owners of record of said mortgages had not been served with notice of the application in the above-entitled matter.</p> <p>“ Second. That there was no proper evidence that the map referred to in said notice had been filed in accordance with the provisions of ■section 166 of the revised charter of said city in the Onondaga county clerk’s office and in the city clerk’s office of the city of Syracuse.</p> <p>“Third. That there was no evidence that monuments had been placed as required by said section of the charter, indicating the lines •of said street.</p> <p>“Fourth. That the ‘ayes’ and ‘nays’ had not been called on the passage of the resolutions of the common council, as required by the ■city charter.</p> <p>“ Fifth. That the provisions of the city charter under which said proceedings were instituted are unconstitutional, because section 167 of the revised charter of the city of Syracuse does not provide for notice to the person whose land is to be taken, but permits the taking of such land by the city without due process of law.”</p> <p>Thereafter the proceedings were adjourned, from time to time,, until March 18, 1898, when they were dismissed, and from the order entered the city appeals.</p>

Appeal by The City of Utica, pursuant to section 6 of chapter 560' of the Laws of 1893, from an award of commissioners appointed pursuant to said statute, sustaining the claim of John Ehrsam, Jr. By chapter 341 of the Laws of 1891 it was provided that a new bridge should be constructed in Genesee street in the city of Utica over the Erie canal, at the joint expense of the city and of the State.

<p>Record of vital statistics — it is prima facie evidence, in an action on an insurance policy, of the cause of death — statements made to the insured, admissible on the question of good faith — hearsay evidence as to statements by doctors.</p> <p>The original record of vital statistics kept pursuant' to chapter 661 of the Laws of 1893, section 33 of which provides that certified copies of such records “ shall be presumptive evidence in all courts and places of the facts therein stated,” is admissible in evidence upon the trial of an action upon a policy of life insurance in order to prove the cause of the insured’s death, where an. objection is not taken that a certified copy is not produced.</p> <p>In such an action evidence concerning information imparted to the insured with reference to the disease with which his sister was afflicted, is competent solely as bearing upon the good faith of the insured in answering questions contained in the application as to whether the deceased’s sister had died of consumption or any pulmonary complaint, but is not competent upon the question as. to the disease with which she was afflicted.</p> <p>Evidence of third persons, as to statements made by physicians concerning the disease with which the insured’s sister was afflicted, is incompetent as hearsay, where it appears that the physicians are alive and within the jurisdiction of the court.</p>

Appeal by the defendant, James 0. Smith, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the' clerk of the county of Monroe on the 26th day of May, 1897, convicting him of the crime of arson in the second degree, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review upon such appeal the decision of…

Appeal by the defendant, Cynthia L. Stevens, as executrix, etc., of Nancy Sibbalds (substituted in place of the Onondaga County Savings Bank), from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 4th day of Hay, 1898, upon the decision of the court rendered after a trial -at the Onondaga Special Term.

<p>Appeal by Louis Schoellkopf and Alfred Schoellkopf, tenants, from a final order of the county judge of Erie county, entered in the office of the clerk of the county of Erie on the 9th day of March, 1898, directing that a warrant issue to remove the said tenants and their under tenants and all persons claiming under them from the demised premises, excluding from the decision, however, the validity of the claims of the said Louis Schoellkopf and Alfred Schoellkopf to compensation for the value of the buildings, vaults and sidewalks on said premises, and without prejudice to their rights to institute such actions at law as they may be advised to test the validity of the said claims.</p> <p>On the 30th day of December, 1897, the petitioners, the Coatsworths and Jackman, presented their petition to the county judge of Erie county instituting summary proceedings under article 1 of title 2 of chapter 17 of the Code of Civil Procedure to recover possession of certain premises in the city of Buffalo having a frontage of forty-eight feet on Main street, sixty-two feet on Washington street and two hundred and eighty-eight feet on Quay street in that city, the petition alleging that the petitioners were the landlords of the Schoellkopfs and their under tenants occupying the premises, and that they (the tenants) were holding over and continuing in possession of the said premises after the expiration of their term.</p> <p>The tenants answered in the proceeding denying the petition and alleging that they held and occupied the premises by virtue of a lease executed between Caleb Coatsworth and John Coatsworth, the persons under whom the petitioners claimed as heirs at law and devisees, and’ Thomas J. Dudley, under whom the tenants claimed and asserted the right of possession in the premises.</p> <p>Such proceedings were had before the county judge that he issued a warrant dispossessing the tenants and placing the petitioners in possession of the premises.</p> <p>From the final order made in the proceeding the said Louis Schoellkopf and Alfred Schoellkopf, tenants, on the 5th day of April, 1898, appealed to this court.</p> <p>In the lease referred to, the Coatsworths, Caleb and John, with their wives, constituted the parties of the first part and Thomas J. Dudley the party of the second part, and the lease provided :</p> <p>“ That the said party of the first part, for and in consideration of the covenants and agreements hereinafter contained, oh the part of the said party of the second part, and also in consideration of the sum of one dollar to them in hand paid, * * * have demised, let and leased, and by these presents do demise, let and lease, unto the said party of the second part and to his executors, administrators and assigns, for and during the term hereinafter mentioned (the premises, describing them), and to have and to hold the portion so excepted to the said party of the second part, his executors, administrators and assigns, from the first day of April, in the year one thousand eight hundred and forty-eight, for and during the full end and term of fourteen years thence next ensuing, fully to be completed and ended.”</p> <p>The rent was stipulated at increasing amounts per year until it reached the annual sum of $700, payable on the first of October and April in each year; and if default on the part of the second party should occur in the payment of the rent for thirty days, “ then and from thenceforth it shall and may be lawful for the said party of the first part, their heirs, executors, administrators or assigns, into or on the said demised premises or any part thereof in the name of the whole to enter, and the same premises to have again, repossess and enjoy as in their first and former estate or estates, and the said party of the second part, his executors, administrators or assigns * * * from thence utterly to expel, remove and put out, anything in these presents contained to the contrary thereof in any wise notwithstanding.”</p> <p>The party of the second part covenanted to pay the rent as provided in the lease and all taxes and assessments that might be imposed upon the premises, and the lease further provided:</p> <p>“ And the said party of the second part further covenants and agrees to and with the said party of the first part that he will within three years from the first day of April, 1847, at his own proper cost and expense, erect good substantial brick buildings, suitable for commercial and business purposes on all of said demised premises covering the premises hereby demised, or covering them as nearly as is practical for business purposes with such buildings as aforesaid.</p> <p>“ And the party of the first part covenant and agree to and with the party of the second part, his executors, administrators and assigns, that' at the expiration of the term above created, unless they give the notice hereinafter provided for, for the purpose of renewing and continuing this lease (upon the said party of the second part having kept and performed all these covenants and agreements herein contained on his part), they will pay the said party of the second part, his executors, administrators or assigns, the value of the said buildings that may then be standing upon said demised premises, with the vaults and sidewalks that shall have been constructed on said premises as the said value thereof shall then be. Such value to be ascertained in the way hereinafter provided.”</p> <p>Provision is then made to ascertain the value of the buildings, etc., by appraisal by three disinterested men.</p> <p>“ And the said parties of the first part further covenant and agree to and with the party of the second part, his executors, administrators and assigns, that in case tiiey do not give the party of the second part, his executors, administrators or assigns, at least six months notice in writing before the first day of April, 1862, of their election to take possession of the said demised premises at the expiration of this lease and to pay for said buildings, vaults and sidewalks at such appraised value, that then and in that event, they will renew and continue this present demise and lease, and such omission to give said notióe shall be deemed and taken to be a renewal and continuance of this demise and lease for five years from the said first day of April, 1862, upon the same terms and conditions hereinbefore expressed, except that the rent for the said renewed and continued term shall be seven hundred dollars per annum, payable in the same way as the last five years rents above provided for.</p> <p>“ And they also covenant and agree as aforesaid that so often as they shall fail to give said six months’ notice before the termination of such renewed term they will renew the said demise and lease, cmd such failure shall be deemed a renewal thereof for five years from the termination thereof on the same terms and conditions as the said f/rst renewal aud continuance.</p> <p>“ And the parity of the second part covenants with the party of the first part that in case of the renewal and continuance of this lease and demise as aforesaid, he will accept and continue the same on the terms aforesaid, and will pay the said parties of the first part, their executors, administrators or assigns, the rents hereinbefore mentioned on such continuance and renewal of seven hundred dollars per annum for each year of such renewal aud continuance and pay all taxes and assessments assessed as aforesaid during such renewal and continuance so long as and until such renewals and continuance shall end. * * *</p> <p>“ And the said party of the first part hereby covenants with the party of the second part, his executors, administrators and assigns, that the said party of the second part, his executors, administrators and assigns paying the rent and performing all and singular the covenants and agreements in these presents contained on his part to be performed and keyit, shall and may lawfully, peaceably and quietly have, hold, enjoy and occupy the said demised premises with the buildings thereon to be erected for and during the said term aforesaid, hereinbefore granted without any lawful let, suit, trouble, eviction, molestation, expulsion or interruption of or by them, the -said party of the first part, their heirs or assigns, or by any other jierson whomsoever lawfully claiming or to claim by, from or under them or either of them, or by or with any of their consent, privity or procurement.”</p> <p>The lease was recorded in the Erie county clerk’s office April 20, 1847.</p> <p>As provided in the lease, the lessee, Thomas J. Dudley, constructed upon the leased ¡premises substantial brick buildings, several stories high, as near as practical covering the land demised, at large expense, and the value of such buildings at the time of the eviction under the warrant of the county judge was at least $25,000.</p> <p>The lessee and his assigns and successors in interest paid promptly the stipulated rent and-the taxes assessed upon the premises, and performed all the conditions by the lessee to be performed as provided in the lease up to the time of the commencement of the summary proceedings, except the rent due October 1, 1897, which was duly tendered by appellants. And the lessors and their heirs and -devisees received-the stipulated rent, except the rent due October 1, 1897, which was refused, and have never served the notice required by the lease, but have treated the tenancy as renewed every five years under tie provisions of the lease until on the 6th of August, 1896, the petitioners served upon the Schoellkopfs a notice in writing addressed to them as follows :</p> <p>“Sirs.— You will take notice that we, ás owners of premises bounded by Main street, Quay street, Washington street and the Hamburg canal and more particularly described in a certain lease bearing date April 1st, 1847, executed by Caleb Ooatsworth and Jane ■F., his wife, John Ooatsworth and Jane Ooatsworth of the city of Buffalo, H. Y., of the first part, and Thomas J. Dudley of the •same place of residence, of the second part, and recorded in the Erie ■county clerk’s office in liber 106 of deeds, at page 356, April 20th, 1849, hereby elect to take possession of the said demised premises pursuant to .the provisions of said lease on the first day of April, 1897, and hereby notify you that said lease shall terminate on that day.”</p> <p>The last renewal of five years terminated on the 1st day of April, 1897, and a new term of five years commenced at that time as claimed by the Schoellkopfs (the appellants), because the notice was insufficient to terminate the tenancy, and the tenancy could not be terminated without payment to them for the buildings constructed on the premises.</p> <p>The counsel for the petitioners claimed before the county judge that the petitioners were entitled to the jiossession of the property,, including the buildings and improvements, without making any compensation for the buildings, and none has been made or offered, and such -was his position upon the argument of this appeal.</p> <p>The appellants went into possession of the leased premises in the spring of 1892, having obtained all the rights and privileges of the original lessee in the lease through various conveyances, transfers and assignments, and the several persons through whom such interest passed to the appellants, and the appellants paid rent to the original lessors or to their heirs and devisees (the petitioners) and were recognized by them as tenants and occupants of the premises under the lease.</p>

Appeal by the defendant, The City of Rochester, from a judgment of the Supreme Court in favor of the plaintiff as against the said defendant, entered in the office of the clerk of the county of Monroe on the 28th day of September, 1897, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 6th day of April, 1897, denying said defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Robert S. Brown and another, from a judgment of the County Court of Erie county in favor of the defendant Frederick W. Danforth, entered in the office of the clerk of the county of Erie on the 21st day of June, 1898, upon the decision of the court sustaining the said defendant’s demurrer to the plaintiffs’ complaint.

<p>Copartnership—where one partner dies and his executor conveys his interests to his copartner— acts of a landlord which operate to discharge the decedent’s estate from liability for rent of premises occupied by the firm and thereafter by the survivor — the remedy against legatees is in equity— liability of each legatee.</p> <p>After the death of one of two copartners, the surviving partner continued to occupy the premises in which the copartnership business had been carried on, and subsequently the executor of the deceased partner conveyed the interest of his testator in the business to the surviving partner, in consideration of the latter’s assuming the firm liabilities. Subsequently, the landlord of the premises in which the business of the copartnership and of the surviving partner was carried on, with knowledge of the transfer by the executor of the deceased partner, had an adjustment of accounts with the surviving partner, and included in his statement a note given by the firm before the death of the partner for rent then due, and credited thereon whatever payments had been made by the surviving partner, and also whatever accounts the surviving partner or the firm had against him; and the entire account, thus commingled, was liquidated by the surviving partner paying a part and giving his individual note for the balance. The surviving partner having failed, the landlord brought an action against him for the amount of the indebtedness, and recovered judgment therein, and, execution having been returned unsatisfied, he brought an action against the legatees of the deceased partner, without offering to surrender the note or cancel the judgment, or assailing as fraudulent the transfer from the executor of the deceased partner to the surviving partner, or the conduct of the surviving partner in giving the note.</p> <p>Beld, that the action could not be maintained, as it was- evident that the landlord intended to treat the surviving partner as his exclusive debtor.</p> <p>Sections 1837 et seg. of the Code of Civil Procedure contemplate that an action he brought in equity, to enforce a claim owing by a decedent, against his legatees; the liability of each legatee does not exceed the money received by him from the decedent's estate.</p>

Appeal by the defendant, Harlin H. Hill, from, a judgment of the County Court of Livingston county in favor of the plaintiff, entered in the office of the clerk of the county of Livingston on the 15th day of June, 1897, upon the verdict of a jury convicting him of the crime of perjury.

Appeal by the defendants, Charles F. Pond and others, assessors of the city of Rochester, county of Monroe and State of Mew York, and Theodore S. Pulver, clerk of the city of Rochester, from a judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of Monroe on the 18th day of July, 1898, on the hearing upon a writ of certiorari issued to review the assessment of $700,000 imposed on the capital stock and personal property of…

Appeal by the defendant, The People’s Building, Loan and Saving Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 8th day of June, 1898, upon the decision of the court rendered after a trial before the court without a jury at the Ontario Trial Term.

<p>Delivery of a bank book and the execution of a paper in “ part payment of the loss” by a fire caused by the son of the party making the delivery — when it constitutes neither a voluntary payment on a compromise nor a gift.</p> <p>Where the wife of a farm laborer, ignorant of her legal rights, upon being requested by her husband’s employer to make recompense for the loss of some buildings which had been destroyed by fire, copies and signs a paper left with her by the employer, reciting that her son having unintentionally set fire to the buildings, she, of her own free will, desires to make ‘ ‘ part payment of the loss ” sustained by such act, and delivers such paper, together with a bank book, to the employer, such transfer of the bank book cannot be supported on the ground of a voluntary payment, as the agreement and transfer were not made in satisfaction of a claim which could properly have been made the subject of a compromise or which was of doubtful validity, but were made because of some supposed liability where none'existed, and where no claim, of right could have been asserted.</p> <p>Such delivery of the bank book cannot be upheld as a gift, there being no evidence of any intention on the part of the owner to make a gift.</p>

<p>JDeed — what provision creates a condition subsequent and not a trust — the grantee and the person entitled to enforce the condition may mortgage the property.</p> <p>Where a deed in the usual form by its terms conveys a title in fee, ‘ ‘ subject, however, to the condition following: The second party (M. Frances Grant) is to devote, pay and use the income and profits of said premises to and for the benefit, support and maintenance of her son, Charles J. Grant, during his natural life,” such words do not create a trust, but must be construed as a conditian subsequent, the condition being one the performance of which necessarily takes place after the vesting of the title of the property conveyed.</p> <p>Such a condition may be waived or released by the person entitled to enforce it, and the latter, together with the grantee, may effectually mortgage the property.</p>

<p>Appeal by the defendant, Charles Seale & Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of New Tort on the 12th day of June, 1897, upon the decision of the court rendered after a trial at the New Tort Special Term.</p>

<p>Accommodation indorsers — when they cannot plead, a want of consideration — admission of protest and notice thereof.</p> <p>A person who accepts, in full payment of an indebtedness, part of which arose upon contract and part of which arose in tort, notes made by one of the debtors and indorsed by three other parties, and thereby relinquishes valuable remedies against the original debtors, is a bona fide holder for value against whom the defense that the indorsers received no consideration for their indorsement is not available.</p> <p>Where, upon the trial of an action brought to recover upon the notes, an instrument is offered in evidence reciting that the indorsers, for a valuable consideration, admit the presentation of the notes for payment and their non-payment, and that they have received due and timely notice of protest thereof, the court is justified in determining as matter of law that notice of protest had been mailed to the indorsers, although it appeared upon the cross-examination of the notary who swore to such mailing, that he had no present recollection as to whether he had done so or not.</p>

Appeal by the plaintiffs, Joseph T. Hull and others, composing the firm of Bafferty & Co., from a judgment of the Supreme Court in favor of the defendant John 0. Barth, entered in the office of the cleric of the county of Hew York on the 15th day of June, 1898, upon the dismissal of the complaint at the close of the plaintiffs’ case by direction of the court after a trial at the Hew York Trial Term.

Appeal by the defendants, Thomas L. Feitner and others, commissioners of taxes and assessments of the city of New York, from m order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of December, 1898, requiring them to file a further return to the writ of certiorari issued in this proceeding.

Appeal by the defendant, Henry L. Storke, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 15th day of April, 1898, upon the verdict of a jury, and also from an order bearing date the 11th day of April, 1898, and entered in said clerk’s office, denying the defendant’s motion for' a new trial made upon the minutes.

Appeal by the plaintiff, the Magnolia Metal Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of January, 1899, requiring its attorneys to accept service of a notice of appeal and undertaking on an appeal by the •defendants to the Court of Appeals.

<p>Appeal by the defendants, Edward A. Quintará and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of May, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of May, 1898, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Ernst G-. W. Woerz, from a judgment of the Supreme Court, entered in the office of the cleric of the county of Hew York on the 1st day of December, 1898, upon the report of a referee. Plaintiff was a trustee of the Abingdon Square Savings Bank, for which a receiver was apj>ointed in August, 1876.

Appeal by the plaintiff, John Fullerton, an infant, by Phoebe Ann Fullerton, his guardian ad' litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25th day of July, 1898, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case, after a trial at the New York Trial Term.

<p>Wegligence— a pedestrian run down by a wagon bearing the name of a brewing company — evidence to show that the wagon was used by the company’s agent and was dricen by one of its employees — scope of the redirect examination of a hostile witness—judgment on the merits, not proper on a nonsuit.</p> <p>In an action to recover damages for personal injuries sustained by the plaintiff in consequence of his being run down on March 10, 1897, by a truck bearing the defendant’s name, and driven by one Gallagher, it appeared that the defendant, a brewing company, owned a truck, which was used by one Osborne, who paid nothing for the use of it. A letter, dated May 21, 1897, and written by the vice-president of the defendant, stating that Osborne was its agent in New York, was offered in evidence, but excluded, and the secretary of the company testified that Osborne sold ales of the defendant and hilled them in its name, but that he was not an agent of the company, and that he occupied the same relation March 10, 1897, that he did in May. Another witness testified that he dealt with the defendant in February, 1897, and that it sent him two bills (which he identified), the receipts upon which were signed by Osborne; that Gallagher delivered to him the ales which were mentioned in such hills; that on March 10, 1897, Gallagher brought the witness a barrel of ale which was included in one of the bills presented and for which the witness paid Osborne.</p> <p>Held, that it was error to refuse to allow the plaintiff to put in evidence the bills thus identified by the witness and also the letter of May 21, 1897; that if such evidence had been given there would have been sufficient proof to warrant the jury in inferring that Osborne was the defendant’s agent, and that Gallagher was in its employ.</p> <p>Upon the cross-examination of the secretary and treasurer of the defendant, who bad been called by the plaintiff and appeared to be very hostile, he testified positively that the company did not employ any person in the city of New York, and that it did not pay any wages to or control or direct the person who drove the wagon.</p> <p>Held, that the plaintiff's counsel, upon the re-direct examination of this witness, was entitled to ask him whether the defendant delivered ale in the city of New York and why Mr. Osborne was referred to as its agent if it had no employees in that city, and how it was that the defendant delivered ale in the city which it billed and for which Mr. Osborne receipted; and whether the witness did not know as a fact that the defendant sold and delivered ales in that city.</p> <p>A judgment dismissing a complaint upon the merits cannot be entered upon a nonsuit granted at the close of the plaintiff’s evidence, as the nonsuit is simply a determination that, upon the evidence then presented, the plaintiff has not shown himself entitled to any relief, and does not operate as a final adjudication which would he a bar to another action for the same cause.</p>

Appeal oy the plaintiff, Frances Rudolph, as administratrix, etc., •of Herman Rudolph, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk •of the county of Hew York on the 3d day of January, 1898, upon the dismissal of the complaint by direction of the court after a trial ■■at the Hew York Trial Term.

Appeal by the defendants, Severyn B. Sharpe and another, as receivers of the. American Casualty Insurance and Security Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of May, 1898, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Meyer L. Sire, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of April, 1898, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, James B. Lippitt, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 18th day of May, 1898, upon the decision of the court rendered after a trial at the New York Special Term dismissing the plaintiff’s complaint, and also from the decision and the order for judgment thereon.

Appeal by the relator, George Batchelor, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 28th day of October, 1898, upon the decision of the court rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to an alternative writ of mandamus issued in tire proceeding, with notice of an intention to bring up for review upon such appeal an order…

Appeal by the plaintiff, Shepsel Plasterstein, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 18th day of April, 1898, upon the decision of the court rendered after a trial at the New York Special Term dismissing his complaint.

Appeal by the defendant, David Lindenborn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of December, 1897, upon the verdict of a jury, and also from an order bearing date the 20th day of December, 1897, and entered in said clerk’s -office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John Delahunty, as receiver of William Campbell and Samuel S. Stewart, as copartners, doing business under the name, style and firm of William Campbell & Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 31st day of May, 1898, upon the dismissal of his complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiff, Frank E. Kinsman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of May, 1898, upon the verdict of a jury rendered by direction of the court upon the defendants’ motion.

Appeal by the defendants, Frank Trounstine and John Trounstine, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the 'county of New York on the 16th day of June, 1898, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 18th day of June, 1898, denying the said defendants’ motion for a new trial made upon the minutes.

<p>Negligence—ahoy falling when four feet in front of the horses of a horse cm and killed — contributory negligence.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the latter, a boy about ten years of age, while attempting to cross the tracks of the defendant's railway about ten o’clock at night at a dark point where there was no crossing, fell when about four or five feet in front of the horses attached to one of the defendant’s horse cars, and that, although the car could he stopped within six feet and the distance between the collar of the horses and the rim of the front wheel was about fifteen feet, the car was not stopped until the front wheel rested upon the hoy’s leg. There was evidence that, at the time the hoy fell, the driver had his head turned to the right talking to some one.</p> <p>Held, that the complaint was properly dismissed, as the evidence did not justify an inference that the driver was negligent.</p> <p>Semble, that, as the hoy was sui juris, his attempt to cross the track at the time and under the circumstances in which he did, when the car was not more than ten feet distant, constituted contributory negligence.</p> <p>Rumsey, J., dissented.</p>

<p>Appeal by the plaintiff, the New York Bank Note Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 17th day of November, 1898, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 17th day of November, 1898, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p> Lloyds insurance policy—recovery and satisfaction of a judgment for the amount of the liability of a single underwriter against the general manager as attorney in fact for all—it is a bar to a subsequent action against the underwi'iters. </p> <p>A policy of insurance against fire provided as follows: “No action shall be brought to enforce the provisions of this policy except against the general manager, as attorney in fact, and representing all of the underwriters, and each of the underwriters hereby agrees to abide the result of any suit so brought as fixing his individual responsibility hereunder. Judgment entered in such an action shall be satisfied out of the premiums in the hands of the underwriters unexpended; if such premiums shall be insufficient, then out of the deposit made by tlie several underwriters; if both shall be insufficient, then out of the individual liability of the several underwriters, as hereinbefore expressed and limited, but in no case shall the judgment bind the property of the said general manager to a greater extent than his liability as an. individual underwriter.” Under this policy each underwriter undertook to be liable for the sum of §143.85.</p> <p>A loss having occurred, the insured brought an action against the general manager, as attorney in fact for all the underwriters, asking judgment for $143.85, which he recovered, and which -was subsequently paid and the judgment satisfied.</p> <p>Held, that the satisfaction of such judgment by the general manager as attorney in fact was a bar to any subsequent action by the insured to enforce the individual liability of the underwriters, although it appeared that in the former action the insured only demanded and obtained judgment for the amount of the liability of such attorney as an individual underwriter;</p> <p>That the fact that the complaint in the action against the general manager as attorney in fact alleged that the representation contained in the policy that it was secured by certain funds was false and fraudulent, and that, at the time of the issue of the policy, no such fund was in existence, it not being alleged that such fund was not in existence at the time of the commencement of the action, did not alter the situation,' as the only cause of action which existed against the attorney in fact, in his capacity as such, was that upon the policy of insurance, the judgment recovered in which action was to be satisfied out of a specific fund.</p> <p>Queers, whether the provision that no action could be maintained against the individual underwriters would be rendered inoperative by reason of the failure of the underwriters to provide the fund specified in the policy of insurance from which the amount of the loss was, in the first instance, to be payable.</p>

Appeal by the plaintiff, James Ertheiler, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 20th day of May, 1898, upon the dismissal of his complaint by direction of the court after a trial at the New York Trial Term upon the ground that it did not state facts sufficient to constitute a cause of action.

Appeal by the defendant, The Atlantic Alcatraz Asphalt Company, substituted for the California Asphalt Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of May, 1898, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 14th day of June, 1898, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Henry 0. Miner and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of May, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of June, 189S, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Timothy J. Sullivan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 3d day of May, 1898, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 22d day of April, 1898, denying the plaintiff’s motion to set aside such verdict, and for the direction of a verdict in his favor in accordance with- the…

<p>Bastardy proceedings—residence of the prospective mother in the borough of Manhattan gives jurisdiction to the Special Sessions — it is not affected by her subsequent removal.</p> <p>Under section 684 and subdivision 3 of section 1406 of the Greater New York charter (Laws of 1897, chap. 378), the Court of Special Sessions of the first division of the city of New York has jurisdiction of a bastardy proceeding instituted by the commissioner of public charities of the boroughs of Manhattan and the Bronx, upon the complaint of a woman pregnant of a child likely to be bom a bastard, who at the time of the commencement of the proceeding actually resided in the borough of Manhattan.</p> <p>The fact that after the commencement of the proceeding the complainant removed to the borough of Brooklyn, does not divest the court of jurisdiction.</p>

Appeal by the plaintiffs, Richard B. Kelly and another, as executors, etc., of Richard Kelly, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25th day of March, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order bearing date the 10th day of March, 1898, and entered in said clerk’s office, denying the…

Appeal by the defendant, Wilbur T. Ames, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of November, 1898, upon the decision of the court rendered after a trial at the New York Special Term overruling the defendant’s demurrer to the plaintiff’s complaint.

Appeal by the plaintiff, Margaret Riley, as executrix, etc., of James Riley, deceased, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 26th day of May, 1898, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Beal estate broker’s commissions —only one broker is entitled thereto — sale of property by the owner through one firm of brokers while another firm is negotiating• on behalf of the same purchasers.</p> <p>An owner of property may empower as many brokers to sell it as he sees fit, but only the broker who produces a purchaser ready and able to purchase on the owner’s terms becomes entitled to commissions.</p> <p>An owner of property who had authorized a firm of real estate brokers to sell it. for §800,000, was approached by another firm of real estate brokers who offered $275,000 for it, which offer was declined, the owner stating that he would take §290,000. Thereafter a member of the second firm of brokers informed the owner that he was negotiating for a sale of the property to “Frederick G-. Jennings on behalf of Mr. McCullough and for himself as one of the heirs, or-rather on behalf of his wife and other members of the Trenor Park estate,” to which the owner replied, “I have no negotiations with those people; you may go on, and if I sell them the property you will be entitled to a commission.”' At a later interview the owner informed, the same broker that §285,000 was the lowest price he would take for the property. Subsequently, however, the owner, through the first-mentioned firm of brokers, entered into a contract for the sale of the premises for §275,000 to one Edward C. Wilde, who he supposed was acting for himself, but discovered when the time arrived for the delivery of the deed that he was acting on behalf of Frederick G. Jennings and John G. McCullough, and the conveyance was made to them.</p> <p>Held, that as the second firm of brokers did not produce a purchaser who would pay §285,000 for the premises, they were not entitled to commissions in the absence of' evidence showing that the owner, in selling through the other brokers, acted in bad faith or with intent to defraud the second firm of brokers.</p> <p>Semble, that the fact that the owner knew that the second firm of brokers was negotiating with Jennings, and that he made the sale while such negotiations were pending, did not alter the situation.</p>

Appeal by the plaintiff, Marie Thill, from an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the comity of Hew York on the 25th day of October, 1898, denying the plaintiff’s motion for a new trial made upon the minutes, the court having previously directed a verdict in her favor for nominal damages.

■ Appeal by the defendants, Henry Drisler and others, as executors, etc., of Henry Drisler, deceased, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 22d day of October, 1898, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 27th day of October, 1898, denying the defendants’ motion for a new trial made upon the…

Appeal by the defendant, Edward M. Harlam, from an interlocutory judgment' of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of June, 1898, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, the Columbian Fire Insurance Company of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of October, 1897, upon the verdict of a jury-

Appeal by the defendant, Foster, Bial & Company, from an order of the Supreme Court, made at the New York Special Term, bearing date the 7th day of November, 1898, as resettled by an order made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of November, 1898, striking out in all respects the defendant’s amended answer.

Appeal by the plaintiff, Gertrude Walker, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 3d day of June, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiff, Jacob Marks, as receiver of Albin Wibom,. judgment debtor, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25th day of May, 1898, upon the verdict of a jury rendered by direction of the court, and also from an order--entered in said clerk’s office on the 20th day of May, 1898, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal- by the defendants, Hyman Hein and David Fox, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of September, 1898, upon the decision of the ■court rendered after a trial at the New York Special Term overruling the said defendants’ demurrer to the plaintiff’s complaint, ■and also from the order upon which such judgment was entered.</p>

<p>Equity — encroachment of the foundation of a wall upon adjoining premises — what is sufficient to justify equitable relief.</p> <p>The encroachment of the foundation of a brick wall, to the extent of three or four inches, upon the land of an adjoining owner, is sufficient to entitle the latter to equitable relief.</p> <p>Qumre, whether an encroachment of half an inch, by the brick wall itself, is too slight to entitle the adjoining owner to such relief.</p>

Appeal by the plaintiff, James O’Bierne, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25th day of October, 1898, upon the dismissal of the complaint^by direction of the court after a trial at the New York Trial Term. The plaintiff was injured on April 4, 1894, on Eleventh avenue in the city of New York. He was driving a wagon and turned south into Eleventh avenue from Thirty-third street.

Appeal by the defendant, Louis A. Goldstein, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of January, 1899, granting the relator’s motion for a peremptory writ of mandamus, directed to the defendant, commanding him to produce the stock book of the J. M. Gunst Disinfecting Company, and allow the relator and his attorney to inspect the same, and torn ake extracts therefrom.

Appeal by the plaintiff, William E. Wamsley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 30th day of June, 1898, upon the dismissal of the complaint upon the merits, by direction of the court after a trial at the Hew York Trial Term.

Appeal by the defendants, Everett O. Baker and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th -day of November, 1898, upon the verdict of a jury rendered by -direction of the court.

Appeal by the plaintiff, the Citizens’ Savings Bank of Stamford, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 8th day of April, 1898, ujion the verdict of a jury rendered by direction of the court.

Appeal by the plaintiffs, Milton S. Arnold, as surviving partner of the firm of M. Arnold & Co., and Jeanette Arnold and others, as executors, etc., of Morris Arnold, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of October, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said…

Appeal by the plaintiff, Elise Fischer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 21st day of November, •1898, upon the verdict of a jury, and also from an order bearing date the 23d day of November, 1898, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial. .

Appeal by the defendant, Jonas Langfeld, from a judgment of ilie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of April, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of April, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Mayor, Aldermen and Commonalty of the city of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 21st day of April, 1898, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 25th day of April, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The Clinton National Bank, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 28th day of May, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of May, 1898, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, the J ohn H. Woodbury Dermatological Institute, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the lYtli day of October, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day •of October, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Susan Moan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 11th day of May, 1898, upon the decision of the court rendered after a trial at the New York Special Term adjudging the defendant to be entitled to the fund in controversy, with the exception of twenty-five dollars, representing the amounts paid by the plaintiff as assessments, on the certificate of insurance…

Appeal by the plaintiffs, Oscar G. Rafferty and others, from an order of the Supreme Court, made at the Yew York Special Term bearing date the 27th day of December, 1898, and entered in the office of the clerk of the county of iSTew York denying the plaintiffs’ motion to continue a preliminary injunction theretofore granted,, and vacating said injunction.

<p>Judgment of conviction affirmed.</p>

Judgment affirmed, with costs.—Appeal from a judgment entered upon the report of .A referee in favor of the plaintiff for $461.19 damages and $736.44 costs, in an action begun may 25,1885.

Order affirmed, with ten dollars costs and disbursements.—Appeal from an order of the Oswego Special Term, made on the 24th of December, 1896, That the plaintiff have and recover of said defendants the costs of this action; and said plaintiff’s costs and disbursements in this action are hereby awarded to said plaintiff and against said defendants, to he included in the judgment for damages entered upon the report of said referee, and collected therewith out of the property…

Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.—Appeal from a judgment dismissing the complaint on the merits, with costs, entered on a nonsuit. fronted at the close of the plaintiff’s evience, and from an order denying a motion ior a new trial made on the minutes.—

<p>Judgment and order reversed and a new trial ordered, with costs to the appellants to abide the event.— Appeal from a judgment entered in Cattaraugus county on the 4th day of January, 1898, upon a verdict rendered at Trial Term, and from an order denying plaintiffs’ motion for a new trial on the minutes.—</p>

<p>Judgment affirmed, with costs, on opinion of Nash, J., delivered at the Equity Term.</p>

Judgment and order affirmed, with costs.&emdash; Appeal from a judgment entered upon a verdict directed for the defendant at a Trial Term held in Monroe county, and from an order denying plaintiff’s motion for a new trial upon the minutes.

<p>Finalorder of the Municipal Court-of Buffalo reversed, with costs.—Summary proceedings to recover possession of real property were instituted in the Municipal Court of Buffalo on the petition of Thomas. Cary. September 7, 1894, a final order was. granted. October 11, 1894, an appeal was taken from said order to the Superior Court of Buffalo by Fred W. Navagh and Samuel B. Hard, which order awarded to Thomas Cary the possession of the premises described in the petition by virtue of the title conveyed by the tax deed executed according to> law by the officers of the city of Buffalo, ír * * and that such deed is conclusive upon the court in these proceeding*, and that said respondent Fred W. Navagh holds over and continues in possession of said premises without the permission of said petitioner. Thomas Cary. It is further ordered that the possession of said premises be delivered to said petitioner; that a warrant be issued to put him in possession of said premises, and that he recover against said Fred W. Navagh the sum of three and 75/100 dollars for the cost* of this proceeding.” The order was signed by Charles W. Hinson, judge of the Municipal Court of Buffalo. When the Superior Court was abolished, the appeal was transferred to this court. Samuel B. Hard owned premises for many years in the first ward of Buffalo, and he leased them to Fred W. Navagh, who was in actual possession thereof when the taxes were assessed which are mentioned in this proceeding. The city levied certain taxes for the year 1885, general tax §5180.40. Local assessment roll of May 10,1884, No. 15,332, $5. Local assessment roll No. 35,347, for the year 1884, $.67. Local assessment roll No. 15,049, for the year 1884, $10.10. The tax and assessments were not paid, and on April 29,1886, the city of Buffalo sold the lands described in said tax and assessment rolls to Thomas Cary, for the amount of the tax and assessments, with addition of interest, and the comptroller gave a certificate to Cary. The land was not redeemed from said sale, and on the 27th of June. 188$, the city, by its comptroller, executed and delivered to Cary a conveyance in which it purported to convey the lands so-owned by Hard and occupied by Navagh, which deed contained the following description : “Parcel of land in the First Ward of the City of Buffalo to wit: part of Outer Lot 38 one hundred and thirty-one (131) feet front to Buffalo river deep on the easterly side of the City Ship Canal commencing five hundred feet and forty-seven one-hundredths (500 47/100) feet northerly from Peck Slip.” The petition contained a similar description. The petition stated that the petitioner was the owner in fee, and. entitled to possession, of the lands so described. “ That said premises were conveyed to your petitioner by deed from the City of Buffalo, which deed is dated June 27th, 1888, pursuant to an act of the Legislature of the State of New York, * * * passed May 12th, 1880, and the acts amendatory thereof. * * * That said Fred W. Navagh is the occupant of such real estate, and in possession of said premises, and holds over and continues in possession of said premises after the expiration of his term, without permission of his landlord, your petitioner.” No other facts were stated in the petition.—</p>