Volume 38 — New York Appellate Division Reports

Appeal by the plaintiff, Adolph Wiechers, 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 20th day of August, 1898, granting the defendants’ motion to examine the plaintiff before trial.

Appeal by the plaintiff, the First Rational Bank of the city of Brooklyn, from an order of the. Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 2d day of December, 1898, striking the case from the calendar.

<p>The preponderance of evidence which authorizes a nonsuit or the direction of a verdict — corroboration of an interested, witness.</p> <p>Where the weight of evidence is so decidedly preponderating in favor of one party that a verdict contrary to that preponderance would be set aside on motion, a trial judge should nonsuit or direct a verdict as the case may require.</p> <p>Where, in such a case, the testimony of an interested witness is fully corroborated, the case may be decided by the court without submitting the question as to the witness’ credibility to the jury.</p>

<p>Appeal by the defendants, John C. Sheehan and another, from :a judgment of the Supreme Court'in favor of the plaintiff, entered in the office of the clerk of thé county of New York on the 31st day of May, 1898, upon the report of a referee, and also from an order made at the New York Special Term and entered in said clerk’s office on the 27th day of May, 1898, granting the plaintiff an extra allowance.</p> <p>The plaintiff seeks to determine controversies arising in the execution of an unwritten contract, by which he was to furnish the •defendants with granite paving blocks.</p> <p>The. complaint states four causes of action: (1) To recover for the delivery of 114,688 blocks of granite, made in June and July, 1895; of 161,068 blocks in August; 231,849 in September; and 42,733 in October, at $65 per 1,000, payable in monthly bills, amounting in all to $35,532.19, with interest from the several dates amounts.w.ere due. (2) To recover $1,279.38 for the services rendered in carting 255,975 blocks, at $5.per 1,000. (3). To - recover $3,250 damages for, -defendants’ breach of contract,, in refusing to. accept-more than 550,000 of 900,000 blocks contracted for. (4) To recover $1,985.98 damages for defendants’ -failure, to pay claims for demurrage, additional freight, and for removing obstructions on the wharf. The complaint admits payment of $10,000, and allows credits for wharfage, reducing the total amount to $-34,085.05, and demands judgment therefor, with interest from the several dates.</p> <p>The answer admits that the granite blocks were furnished, as claimed, at $65 per 1,000, but denies that there was to be monthly payment in cash, claiming that payment on the whole contract was to be made in-Long Island City bonds ; admits the carting of 255,975 blocks, but alleges that $4.50 per 1,000 instead of $5 was the price agreed upon for such service ; denies any breach of contract, stating that the number of blocks contracted for was not 900,000, but 500,000; denies liability for demurrage or - other claims; and, by counterclaim, alleges certain payments made by transfer. of Long Island City bonds, and that the quality of a portion of the blocks furnished was not as stipulated. On- this latter claim no proof was presented on the trial, but, as to the former, a credit of $22,906.92 was allowed.the defendants — the proceeds of bonds sold by them for the plaintiff’s benefit.</p> <p>The referee found that the defendants had agreed to make monthly payments in cash and not in bonds; that $5 was the price accepted -for carting; that 900,000 blocks had been- contracted for, and gave judgment to the pdaintiff ■ on the three causes of action, taking for measure óf damages on the question of breach of contract the difference between $65 per 1,000, the contract price, . and $57, the highest market price. On the ,4th 'cause -of action the.referee held that the-'contract called for delivery on the wharf and no demurrage was chargeable, but found that the plaintiff had a claim of $244.18 for removing obstructions on the wharf at the request of the defendants, which with interest amounted to-$282.99.</p> <p>Crediting the defendants with money paid and the proceeds of the sale of certain bonds which the plaintiff had received, the-referee decided that the amount still due the plaintiff was $9,149.51,. with the costs .of the action. Motion was. thereafter made to the= court for extra allowance, which was granted, the sum being fixed at $800, and judgment was entered for $10,350.98.</p> <p>After filing the proper exceptions the defendants appealed from, the judgment and from the order granting extra allowance.</p>

<p>JLction against a railroad by an abutting owner who, pending the suit, has parted. with the. title —issues sent from the Special Term to the Trial Term — entry of judgment on the'verdict —period of assessment of damages.</p> <p>During the pendency of an action by an abutting owner against elevated railroad companies, the plaintiff parted 'with his interest in the property, and an order was thereupon made, .upon the motion of the defendants, transferring the case from the Special Term calendar to the Trial Term calendar,, and directing .a jury trial of the claim for past or rental damages alleged in the complaint to have been suffered by the plaintiff during his ownership of the premises; the trial judge followed the direction of the order, and judgment was entered upon the verdict of the jury as of course as in án action at law.'. •</p> <p>Meld, upon an appeal from the judgment, that, assuming that the action was still to be regarded as an equitable action,- and that it was improper to enter judgment upon the verdict as of course, instead of applying to the- Special Term, the defect, was an irregularity for which- the defendants might have moved to 'set the judgment aside, but which was waived by their failure to do so;</p> <p>That the trial court was bound to try the issue sent to it by the order, that is, to have the jury fix and assess the damages from the commencement of the action down to the time when the plaintiff -parted with the title to the property.</p>

<p>Inheritance tax — a legacy absolute in terms, impressed by extrinsic proof with, a trust — a remittitur from, the Court of Appeals examined — the judgment of the Supreme Court entered thereon is not conclusive.</p> <p>An executor who, under the will, takes a third,of the residuary estate absolutely, unincumbered by any trust imposed by the will itself, is not relieved frompay- • ing the inheritance tax imposed by the Collateral Inheritance Tax Law (Laws of 1887, chap. 713) by the fact that, in an action brought to obtain a judicial construction of the will, it is held as a result of extrinsic evidence that he took the legacy impressed with a trust in favor of the testatrix’s brother.</p> <p>The State, not being a party to the action brought to obtain a construction of the will, is not concluded as to its right to collect the tax upon such legacy by a judgment of the Supreme Court, entered upon the remittitur of the Court of Appeals, but. may, for the purpose of determining what was decided in the Court of Appeals, examine the remittitur and the opinion of the Court of Appeals where such opinion is made by the remittitur a part of the judgment of the Court of Appeals.</p>

Appeal by the defendant, The Illinois Central Railroad Company, 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 New York on the 3d day of October, 1898, upon the report of a referee.

Appeal by the plaintiff, Daniel A. Doran* from a judgment of the City Court of Yonkers in favor, of the defendant, entered in the office of the clerk of said court on the 26th day of May, 1898, upon the verdict of a jury. •

Appeal by Mary Jane Mather and Isaac E. Mather from an order -of the Supreme Court, made at the Kings County Special Term-and •entered in the office of the clerk of the county of Rockland on the '28th day of October, 1898, granting the motion of the plaintiffs in the second and third of the above-entitled actions to vacate a judgment entered by confession in favor of Mary Jane Mather and against William A. Mather, and afterwards assigned to Isaac E. Mather.

Appeal by the plaintiff, Anna Carlson, as administratrix, etc., of Franz Ludwig Carlson, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office, of the clerk of the county of 'Westchester on the 13th day'of December, 1897, upon the dismissal of the complaint at the- close of the plaintiff’s evidence by direction of the court after a trial at the Westchester Trial Term.

<p>Appeal by the defendants, Henry Doherty 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 Hew York on the 29th day of April, 1898, upon the verdict of a jury, and also from- an. order entered in said clerk’s office on the 6th day of May, 1898, denying the defendants’ motion for a new trial made upon the minutes. -</p> <p>This appeal was transferred from the first department to the second department.</p>

Appeal by the defendants, The Metropolitan Elevated Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of November, 1897, upon the decision of the court rendered after a trial at the New York Special Term. This appeal was transferred from the first department to the second department.

Appeal by the defendant, The Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the SOth day of March, 1898, upon the verdict of a jury for $9,000, as modified by an order entered in said clerk’s office on the 22d day of April, 1898, and also from an order entered in said clerk’s office on the Yth day of April, 1898, denying said defendant’s motion for a new trial made…

■ Appeal by the defendants, the New Rochelle Coal and lumber Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of West-Chester on the 19th day of October, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of October, 1898, denying- the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, James F. Andrews, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk óf the county of New York on the 25th day of April, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16tli day of May, 1898, denying the defendant’s motion for a new trial made upon the minutes. This appeal was transferred from the first department to the second department.

Appeal by the defendant, The New York, New Haven and Hartford Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on.the 3d day of June, 1898, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 2d day of July, 1898, denying the defendant’s motion for a new trial made upon the minutes.

<p>Seal estate broker's commissions — when they cannot be taken from both parties to an exchange of real property.</p> <p>Where, in an action by a real estate broker to recover commissions for services rendered in effecting an exchange of real estate, it appears that the plaintiff was employed not only by the defendants, but also by the other party to the exchange, from whom he had received commissions, and it does not appear that the plaintiff’s employment by the other party to the exchange, or the fact that he was to receive compensation from that party, was known to the defendants, the complaint is properly dismissed, especially where the plaintiff testifies that his contract with the defendants required him “ to get all the property I could for them, in exchange for Long Island lots.”</p>

<p>Appeal by the defendant, Andrew Galbraith, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 29th day of October, 1898, requiring the defendant, as a condition of granting his motion, that the plaintiff’s attorney be directed to accept said defendant’s answer, to pay the plaintiff twenty-five dollars costs, and to stipulate to try the action on a day specified in the order.</p>

<p>Amendment of the record, nunc pro tunc on an application to the Supreme Court, after a final decision in the Court of Appeals, not allowed.</p> <p>After the Court of Appeals has dismissed an appeal taken to it from a judgment of affirmance rendered by the General Term, upon the ground that the. appeal being taken on the judgment roll alone and no case being made containing the evidence, exceptions t.o the findings of fact by the. trial court present no questions for review in the Court of Appeals, the Supreme Court will not grant an •order allowing the defeated party to file, nunc pi'o tunc, conclusions of law- proposed by it and refused by the trial justice, and to annex the same to the judgment roll as of the date of the entry thereof, four years previously; nor will it allow such party to file and serve amended exceptions to such decision, nunc pro tunc, as of the date of the trial.</p> <p>Qucere, whether any power exists in the Supreme Court to authorize an amendment-of its record after the final determination or disposition, of the case by the Court of Appeals.</p>

Appeal by the defendant, Christian W. C. Dreher, from an order •of the Supreme Court, made at the Kings County Special Term and •entered in the office of the clerk of the county of Kings on the 31st •day of December, 1898, denying the defendant’s motion to vacate the attachment made upon the papers upon which the same was granted.

Appeal by the petitioner, Vincent Curran, from an order of the Supreme Court, made at the Kings County Special Term, bearing date tile 20th day of December, 1898, and entered in the office of .the clerk of the county of Kings, denying his motion for a peremptory writ of mandamus directed to John Guilfoyle, ás commissioner of buildings for the borough of Brooklyn, city of New York, commanding him to approve certain plans for the erection of a building upon that part of Fourth…

Appeal by the defendant, Mary E. Simon, 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 17th day of December, 1897, upon the verdict of a jury, and also from an order entered in .said clerk’s office on the 10th day of January, 1898, denying:the' defendant’s motion for a new trial made upon the minutes. This appeal was transferred from the first department to the second department.

Appeal by the defendant, Marcellus Hartley, 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 23d day of May, 1898, upon the verdict of a jury, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 26th day of May, 1898, as amended by an order entered in said clerk’s office on the 6th day qf June, 1898, denying the defendant’s motion…

Appeal by the plaintiff, Delia Garrison, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county .of Westchester on the 20th day of October, 1898, upon the decision of the court, rendered after a trial at the Westchester Special Term, dismissing the plaintiff’s complaint.

<p>Appeal by the defendants, Morris L. Ernst 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 Orange on the 2d day of . June, 1898, upon the report of. a referee.</p>

Appeal by the defendant, Fran celia Butler, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st day of December, 1898, upon the decision of the court, rendered after a trial at the Flew York Special Term, as excludes such defendant, the decedent’s widow, from participation in the undisposed estate of such decedent.

Appeal by the defendant, John G. L. Gaedeke, as executor, etc.,, of Elizabeth Schneider Koetter, deceased,, 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 éth day of October, 1898, denying the defendant’s motion for a new trial made upon the ground of newly-discovered evidence.

Appeal by the plaintiff, William B. Pritchard, 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 23d day of January, 1899, denying the plaintiff’s motion to strike tlie cause from the calendar.

Appeal by the plaintiff, William B. Pritchard, 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 23d day of January, 1899, granting the defendant’s motion h> strike out the plaintiff’s amended complaint.

Appeal by Joseph Stern and others, judgment creditors of the relator, 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 31st day of December, 1898, discharging the relator from the custody of the sheriff of the county of New York.

<p> Prospective partner—not liable to one advancing money to the enterpi'ise. </p> <p>One who, upon the repayment of certain money, advanced by him to the lessees of a music hall, secured by a mortgage of the lease and fixtures of th^ music hall, is to become a part owner in the business of the hall, does not, prior to such repayment, occupy the position of a partner in the business and become liable for advances made to the enterprise by a third party under an agreement which contemplated the payment of the mortgage debt by the latter, but which in that respect he fails to carry out; nor can such mortgagee be prevented from enforcing his mortgage.</p>

<p>. Bill of particulars — not granted on the affidavit of the plaintiff’s attorney.</p> <p>An order requiring the defendant to serve a hill of particulars should not be granted upon an affidavit of the plaintiffs attorney stating that “such alleged credits are not within the special knowledge of the plaintiff.”</p>

Appeal by the defendant, Francis Merges, from a judgment of the Supreme Court in favor of the qolaintiH, entered in the office of the clerk of the county of New York on the 29th day of Octo- ’ her, 1898, upon the decision of the court after a trial before the • court without a jury at the New York Trial Term.

<p>Appeal by the defendants, Jacob Riger and another, 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 24th day of January, 1899, appointing a receiver pendente Vite of certain real estate.</p> <p>The action is a creditor’s action to set aside a conveyance of such premises made by the defendant Jacob Niger to the defendant Ellen Niger.</p>

Appeal by the plaintiff, Edward P. Hatch, 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 October, 1898, upon the dismissal of. the complaint by direction of the court after a trial at the New York Trial Term.

<p>Appeal by the plaintiffs, Joseph Hamershlag 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 Hew York on the 12th day of December, 1898, upon the decision of the court rendered after a trial at the Hew York Special Term.</p>

<p>Appeal by the defendants, George Lowther and others,, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the'county of New York on the 30th day of December, 1898, upon the verdict of a jury, rendered by direction of the ■court after a trial at the New York Trial Term, as adjudges that the plaintiff recover of such defendants.</p>

Appeal by the defendant, Brock’s Commercial Agency, Limited, and Henry Brock, president and director of the defendant, and Thomas H. Wallace, secretary and director of the defendant, from a judge’s order, entered in the office of the clerk of the county of New York on the 10th day of February, 1899, directing the examination of Thomas H. Wallace, secretary and director of the defendant, Henry Brock, president and director of the defendant, and A. W. Hatton, director of the…

<p>Appeal by the defendant, Helson H. Salisbury, individually and ■as assignee of Abram Steers, etc., from an-order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 10th day of ■January, 1899, granting the plaintiff leave to amend his complaint.</p>

Appeal by the defendants, Albert H. Hatch and another, as ■executors, etc., of William.

<p>Discovery — action to recover commissions on sales—what facts'clo not establish a .' right to examine the defendants boohs.</p> <p>In an action for the "breach of a contract for the payment of commissions upon sales of merchandise made by the defendant, an order directing the defendant to deposit with the county clerk, -for six days, its salés books, cash books and all other books of account., showing the sales made by it during a certain period of time, to enable the plaintiff with his attorney to examine and take copies of the entries of such sales in said books, should not be granted where the moving affidavits show that the plaintiff already has all the information necessary to frame his complaint, and that the only pretext upon which further information could be required, is to enable him to state the amount of damages claimed.</p>

<p>Guaranty of an indebtedness for goods to be sold—when given to a firm it does not survive its dissolution—officers of the corporation which gave the guaranty cannot extend it by parol — estoppel.</p> <p>The life of a writing, by which a corporation agrees to guarantee bills for merchandise which may be sold by a firm to a third person, ends with the dissolution of the firm, and does not extend to goods thereafter spld by one of the partners to such third person.</p> <p>Such liability cannot be extended, nor can an estoppel he created in favor of such partner, by parol, by the statements of an officer of the corporation.</p> <p>Beakes v. Da Gunha (126 N. Y. 296), distinguished.</p>

Appeal by the plaintiffs, Charles H. White and another, as administrators, etc., of David G. Robertson, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 30th day of March, 1898, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term-.

<p> Principal and surety—when a creditor must first resort to the property of the principal debtor. </p> <p>To sustain the defense that a creditor, as between a surety and the principal debtor, must first resort to the property of the principal debtor, two things are necessary — a request by the surety to the creditor so to proceed, and a failure to comply therewith with resultant damages.</p> <p>An accommodation maker of a note, payable “on demand and return of the securities given,” and delivered under no agreement as to the use to be made of it, is not entitled to insist that the note shall be used as an offset to an obligation existing in favor of the principal maker against the holder of the note, who took the note with knowledge of the relation thereto of the accommodation maker—the obligation not being a collateral to secure the payment of the note.</p>

Appeal by the plaintiff, The Bank of the Metropolis, 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 10th day of August, 1898, upon the dismissal of the plaintiff’s complaint upon the merits by direction of the court, rendered after a trial before the court without a jury at the Hew York Trial Term.

Motion by the plaintiff, James A. Deering, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiffs, Emily A. Bliss and others, from am order of the Supreme Court, made at the New York Special Term, and entered in the office of the clei;k of the county of New York oh. the 27th day of December, 1898, directing the plaintiffs to separately state and number the several causes of action claimed to -be= Alleged in the complaint. . ■ ■ . . .

Appeal by the defendants, Henry Hirsch and others, 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 8th day of August, 1898, requiring the defendants to accept •service of the plaintiff’s amended complaint.

Appeal by the defendants, Herman Schiffer and another, 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 9th day of May, 1898, upon the report of a referee, and also from an order made at the Hew York Special Term and entered in said clerk’s office on the 11th day of April, 1898, granting the plaintiffs an extra allowance of $2,000. The action was brought by the executors of the will of.

<p>Appeal by the defendant, George F. Schmid, from an order of the Supreme Court, made at the Hew York Special' Term and entered in the office of the clerk of the county of Hew York on. the 6th day of February, 1899, granting the plaintiff’s motion for a temporary injunction.</p>

<p>School teacher—removal of, in New York city — it cannot be reviewed by c&'tiorari.</p> <p>A teacher in a public school in the city of New York who, after a hearing, has been removed by the board of school superintendents under section 26 of chapter 887 of the Laws of 1896, with the approval, subsequently given, of the-school inspectors of the district, and whose appeal, taken from such decision to the board of education and referred by it on January 31, 1898, to the school board for the boroughs of Manhattan and the Bronx, which came into existence on February 1, 1898, under the provisions of the new charter of the city of New York, has been dismissed by the latter body, cannot, by certiorari, review the action of the board of school superintendents or of the inspectors of the district or of the board of education or of the school board for the boroughs of Manhattan and the'Bronx.</p>

Appeal by the defendant, Bernard Mahon, 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 22d day of October, 1898, upon the report of a‘referee.

<p>Written contract to convey property which may be bought in at a foi'eclosure sale —1 construction thereof in disregard of the exact terms of the agreement — when equity will not specifically enforce it.</p> <p>After a judgment of foreclosure and sale had been entered in an action brought by a bank to foreclose a second mortgage, one Kohn, the vice-president thereof, having no interest in the mortgage except as an officer of the hank, on the day before the foreclosure sale entered into an agreement with one Finkel, under the terms of which the premisés were to be purchased at such sale by Kohn, at a price not to exceed a certain sum over the amount secured by the first mortgage and interest, and were to be held by him for a specified time, at - the. expiration of which, or at any prior time, the said Finkel Was to-have the privilege of redeeming the premises by paying to Kohn whatever sum he might have paid on or for such property, with interest thereon up to the date-of such redemption, “it being understood that said Arnold Kohn is to be paid sufficient, so that no loss whatever will enure to him or his assigns by reason of such purchase, this to include all charges he may have paid for legal services-rendered, or to be rendered, interest on first mortgage, costs of action now pending to foreclose the same, and any charge for extension of. said mortgage.”"</p> <p>Held, that, although the mortgaged premises were purchased by Kohn at the sale for less than the amount due upon the second mortgage, Kohn should not be compelled, except upon the payment of the whole amount due to the bank 'upon such second mortgage, including the expenses of foreclosure, to convey them to Finkel, it being evident from the circumstances surrounding the transaction that the agreement was intended to enable the mortgagor to again-become the owner of the mortgaged premises upon paying the amount which they had cost Kohn or the bank, and that Kohn was acting therein simply as-an officer of the bank and to protect its interests, and that, so far as the agreement provided otherwise, it did not correctly express the understanding; between the parties;</p> <p>That, as to require a specific performance of the contract, by compelling a conveyance of the property by Kohn for the amount for which it was purchased by- him, would violate the real object which was in'the contemplation of the-parties, and would produce a result not contemplated by any of them- at the-time of the execution of the agreement, the court, in the exercise of its judicial discretion, might properly refuse specifically to enforce it, leaving Finkel to his-remedy at law to recover any damage which he sustained if any valid contract-with him had been broken by Kohn or the bank.</p>

<p>'' Appeal by the plaintiff, Martha Wigton, from a judgment of the Supreme. Court in favor of the defendant, entered in the office o£ the clerk of the county of New York on the 25th day of July,. 1898, upon the verdict of a jury for $1,000.</p>

Appeal by the defendants, Moritz Hammerschlag and others, from a judgment of the Supreme Court in favor of .the plaintiffs, entered in the office of the clerk of the county of New York on the '9th day of November, 1898, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Edward S. Stokes, from an order of the Supreme Court, made at the Sew York Special Term and •entered in the office of the clerk of the county of Sew York on the 4th day of February, 1899, vacating an order granting the defendant’s motion for a- new trial unless the defendant comply with, certain conditions as to the payment of costs and the giving of an undertaking.

Appeal by the plaintiff, Henry H. Lyman, as State Commissioner of Excise of the State of New York, from an order of the Supreme Court, made at the New York Special' Term and entered in the office of the clerk of the county of New York on- the 4th day of January, 1899, denying the plaintiff’s motion for a retaxation of costs.

<p>Transfer tax on property transferred in contemplation of death — what transfer is> subject to such tax.</p> <p>Property conveyed by certain instruments, executed and delivered to a trust-company at different times between August 19, 1889, and February 3, 1893, providing that the party malting such transfer could, at any time prior to his-death, withdraw from the possession of the trust company any or all of the property transferred, and substitute other property in its place, and that he-could alter, amend or terminate the trust in whole or in part, and that, in case-of a termination, all the property should be returned to him, a further provision being inserted in some of the instruments to the effect that the income from the property, or the greater portion of it, should, during the life of the party malting the transfer, if he so desired, be paid by the trust company to him, or-to such other persons as he might direct, is subject to the transfer tax authorized" by chapter 399 of the Laws of 1893, imposing a tax upon the transfer of" any property, real or personal, of the value of §500 or over, or of any interest-therein or income therefrom, in trust or otherwise, when the transfer is effected by “deed, grant, bargain, sale or gift made in 'contemplation of the death of" the grantor, vendor or donor, or intended' to take effect in possession or enjoyment at or after such death.”</p>

Appeal by the plaintiff, Harvey A. Moyer, from a judgment of the Supreme Court in favor of the defendants Lyman G. Bloomingdale and Joseph B. Bloomingdale, entered in the office of the clerk of the county of New York on the 22d 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.-22d day of June, 1898, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal hy; the defendant, The Third Aveiiue Railroad Company,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of March, 1898, upon the verdict of a jury for $11,675, and also from an order entered in said clerk’s office on the 4th day of April, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, the Tradesmen’s National Bank, 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 8th day •of December, 1898, upon the verdict of a jury, and also from an •order entered in said clerk’s office on the 8th day of December, 1898, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by Louise Savage. Tyng, individually and as guardian of the person and property of Eleanor Margarette Hamilton, appearing in this proceeding specially and for the purpose of this appeal only,, from an order of the Supreme.

Appeal by Louise Savage Tyng, individually and as guardian of the person and property of.

Appeal by the defendant, the Metropolitan Street Railway Company, by permission, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 23d day of November, 1898, affirming a judgment of the Municipal Court of the city of New York, borough of Manhattan, eighth district, in favor of the plaintiff, entered in said clerk’s office on the 6th day of July, 1898, upon the verdict of a jury for $125., and also…

<p>Oontmat for the sale of several chattels — when entire — recovery for its breach'.</p> <p>A contract embraced in a letter, stating “I have sold you a spider phsston for §475, a brougham for §450, a sleigh for §175, total, $1,100, with the understanding that, upon resale by you of the spider phaeton, you are to pay me at once §550 cash, or, on sale of the brougham, §500 cash. The balance of the money (§550 or §600, respectively) to remain with you and be used up either in the purchase by me of carriages or repairs thereof,” is a contract for the sale of the three vehicles for §1,100, and not a sale of each vehicle separately; and where the vehicles are delivered and the phroton has been sold by the vendee, on account of which, he has paid only §300.80, the entire sum of §1,100 becomes due and payable, and the vendor is entitled, in an action to recover damages for the breach of the contract, to recover such sum of §1,100, less the amount actually paid.</p>

. Appeal by the plaintiff, Joseph Weiser, from a judgment of the Supreme Court in favor of the defendants, Philip Bing and William H. Wright, entered in the office of the clerk of the county of New York on the 22d day of June, 1898, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Nathan Kranskopf, 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 14th day of February, 1898, upon the dismissal1 of. the complaint by direction of the-court after a trial at the New York Trial Term.

Appeal by the defendant, Francis C. Welch, as executor, etc., of Sarah Lloyd Coit, late of the city of New York, 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 February, 1899, upon the report of a referee, except in so far as it provides that the securities mentioned in the complaint are subject to a lien in favor of the defendant, for the payment to him as executor of…

Appeal by the plaintiff, The; Central Trust' Company of New1 York,-as substituted trustee of the separate estate of Isabel von Linden, from a final judgment of the Supreme Court in favor of the defendants, entered in the offieé of the clerk of the county of-New York on the 22d day of September, 1898, upon the decision of the court rendered after a trial at the'New York Special Term.

Appeal by the defendant, Julius Robertson, 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 29tli 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 7th day of November, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Manhattan Eailway 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 2d day of December, 1898, granting the plaintiff leave to prosecute the action as a poor person. . ■

<p> Additional allowance—when no proper basis therefor is shown. </p> <p>An action “ brought to obtain'some sort of relief in respect to a paper in the form of a general release which had been executed by the plaintiff, including an injunction against its use,”'affords no proper basis for the granting of an additional allowance.</p>

<p>Injunction — not granted where the relief sought is contingent upon the happening of a future event.</p> <p>A temporary injunction, restraining a sheriff from paying over the proceeds of the sale of property on executions under certain judgments, should not be granted in an action .brought.by a,-junior judgment creditor of the saíne judgment debtors to set .aside the judgment's under-whiéh the sale took place ■on the ground that they are fraudulent, where the-real purpose of the action is . to tie up the property levied upon under the executions issued upon such' judgments, which are claimed-to have been confessed in violation of the Bankruptcy Law,-until at -some future time the plaintiff may. institute -proceedings in bankruptcy and have the property thus tied up transferred to a trustee, to be appointed in such proceedings, in order to secure its ratable distribution among the creditors of the bankrupt.</p> <p>A temporary injunction will not be granted where the plaintiff is not entitled in that action to the final relief sought, and where such relief is not claimed to be absolute but only contingent upon the happening of a future event and upon the termination of proceedings which may' thereafter be brought in another court. . ></p>

<p>Appeal by Charles H. Steihway and others, as executors, etc., of William Stein way, deceased, from an order of the Surrogate’s Court ■of New Tort county, entered in said Surrogate’s Court on the 14th day of December, 1898, directing the executors to file their accounts.</p>

<p>Appeal by William. M. Bulkley, substituted trustee for the benefit of creditors of the E. C. Meacham- Arms 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 31st day of January, 1899, denying a motion to amend the decree'entered upon an accounting of the receiver appointed in this proceeding, by inserting before the words “ E. 0. Meacham Arms Company ” the words “ William M. Bulkley, the Trustee of.”</p>

Appeal by the defendants, Julia M. Clyde and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Hew York on the 20th day of June, 1898, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the separate demurrers interposed by said defendants to the plaintiffs’ complaint.

<p>-Appeal—what is an “intermediate order’’ renewable on an appeal from a judgment — a bill of particulars is an extension of the pleading — a judgment falls with the order on which it is based.</p> <p>An order granting a motion for a bill of particulars. cannot be reviewed as an “ intermediate order ” on an appeal from a judgment entered upon an order striking out the defendant’s answer.</p> <p>'The “intermediate order” mentioned in section 1316 of the Code of Civil Procedure, which may be brought up for review on an appeal from a final judgment, is such an order as, if reversed, would take away the foundation of the judg- ■ ment or make the trial or the j udgment entered invalid or without support.</p> <p>A bill of particulars is simply an extension of the pleading in-relation to which it is ordered.</p> <p>"Where an order striking out an amended answer and the order awarding the plaintiffs judgment upon such first-mentioned order are reversed, the judgment resting upon such orders will also be reversed.</p>

Appeal by the petitioners, Charles Whann and another, from am order of the Supreme Court, made at the Few York Special Term and entered in the office of the clerk of the county of Few York: on the 20th day of February, 1899, denying their motion for a per- * emptory writ of mandamus directed to Bird S. Coler, as comptroller of the city of Few York, commanding him to issue to the petitioners, registered stock of the city of Few York in exchange for bonds issued by the late…

Appeal by the defendants, Theodore Haebler and another, from, a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 13th day of December, 1898, upon the report of a referee.

Appeal by the defendant, Edward H. Bemis, from an order of the Supreme Gourt, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 29th day of December, 1898, denying the defendant’s motion to change the place ■of trial of the action from the county to Hew York to the county ■of Warren for the convenience of witnesses.

Appeal by James A. Roberts, Comptroller of the State of Mew York, Bird S. Coler, comptroller of the city of Mew York, and William C. Schermerhorn, sole acting executor of the last will and testament of Edmund H. Schermerhorn, deceased, from an order of the Surrogate’s Court of Mew York county, entered in said Surrogate’s Court on the SYth day of April, 1898, decreeing that an appraisal theretofore rnadein the proceeding'was erroneous,'in so . far as it related to certain…

Appeal by the defendants, Jacob Cohn 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 29th day of •June, 1898, upon the verdict of a jury; also from an order entered in said clerk’s office on'the 23d day of June, 1898, denying the ■defendants’ motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 29th day of June, 1898,…

Appeal by the plaintiff, The Suburban Electric Light Company,, from a judgment of the Supreme Court in favor of the defendant,, entered in the office of the clerk of the county of Queens on the 8th day o£ August, 1898, upon the'decision of the court, rendered after a trial at the Queens County Special Term, dismissing the plaintiff’s complaint upon the merits.

<p>Action to foreclose a mechanic's lien and to set aside as fraudulent a conveyance of' the premises — an intermediate arantee is not a necessary pa/i'ty.</p> <p>The complaint in an action, whose primary object was the foreclosure of a mechanic’s lien, alleged that after the plaintiff had performed work upon premises belonging to the defendant, Thomas B. King, the latter and his wife, with the fraudulent intent to embarrass, hinder and delay the plaintiff,-conveyed the premises to one Bailey, and that Bailey, on the same day, reconveyed them toKing’s wife; that such conveyances were fraudulent and void as against the-plaintiff, and constituted no bar or defense to hér lien; the complaint asked that the plaintiff be adjudged to have a valid lien upon the premises, and that, the same be sold, and that, if it should be adjudged - that the plaintiff had no-lien, she have judgment against the defendants personally.</p> <p>Held, that as Bailey had not, and did not claim to have, any interest in the premises or in a personal judgment against either of the defendants, he was not a-necessary party to the action.</p> <p>The rule that the debtor’s presence as a defendant is superfluous in suits brought against his fraudulent alienees to annul specific covinous conveyances, is applicable to the case of one who has been only an intermediary and has no present interest in the property.</p>

Appeal by the defendant, the Nassau Electric Railroad Company, from a judgment of the County Court of Kings county in favor of thé plaintiff, entered in the office of the clerk of the county of Kings on the loth day of December, 1897, affirming a judgment of the Justice’s Court in and for the second district of the city of Brooklyn, and also from an order of the County Court of Kings county, entered in said clerk’s office on the 1.4th day of December, 1897, affirming the…

Appeal by the defendant, Henry C. Wisner, 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 3d day of June, 1898, upon the report of a referee directing the defendant to account for the moneys, goods and property of the plaintiff, disposed of by him to his own úse and benefit, and for. all his transactions as and while president of the plaintiff.

Appeal by William H. Good, the purchaser at a foreclosure sale had in the above-entitled action, from an order of the Supreme Court, made at the Kings County Special Term on the 9th day of January, 1899, granting the plaintiff’s motion to compel him to complete his purchase. The action was brought to foreclose a mortgage fexecuted by Fanny Morris upon the lots referred to in the opinion.

Appeal by the defendant, Adam W. Beakes, as sheriff of Orange , county, from a judgment of the County Court of Orange county in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 18th day of September, 1897, upon the verdict of a jury, with notice of an intention to bring up for review upon such appeal an order bearing date the 11th day of October, 1897, and entered in said clerk’s office, denying the defendant’s motion for ■a new trial…

Appeal by the defendants, The Importers and Traders’ National Bank of New York 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 23d day of September, 1898, upon • the report of a referee. This appeal was transferred from the first department to the .second department.

Appeal by the plaintiffs, Morris L. Ernst and another, from a judgment of the Supreme Court in favor of the defendants, The Rutherford and Boiling Springs Company, otherwise called the New York, Rutherford and Suburban Gas Company, and The Knickerbocker Trust Company, entered in the office of the clerk of the county of New York on the 'Tth day of October, 1898, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the separate…

Appeal by the plaintiffs,, Ann M. Smith 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 Queens on the 13th day ■of July, 1898, upon the decision of the court rendered after a trial ' at the Kings Couiity Trial Term before the court without a jury. ,

Appeal by the plaintiff, Bridget Patterson, as administratrix, etc.,, of Mary Flannery, 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 16th day of April, 1898, upon the dismissal of her complaint by direction of the court after a trial at the New York Trial Term. This appeal was transferred from the first department to the second department.

Appeal by the defendant, Sarah Griswold Spencer, from so much of a judgment of the Supreme Court in favor- of the plaintiffs and certain of the defendants, entered in the office • of the clerk of the county of New York on the 14th day of July, 1898, upon the report of a referee,, as provides: “And it is further adjudged that the question of construction of the will of said Lorillard Spencer, deceased, presented by the complaint herein, as to whether it is right and proper…

, Appeal by the defendant, The New York Suburban Water 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 Westchester on the 9th day of November, 1898, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendant’s demurrer to the alternative writ of mandamus issued in the action.

Appeal by the plaintiff, The New York Life Insurance and Trust Company, as substituted trustee under the will of James Baker, deceased, from so much of 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 24th day of March, 1898, upon the report of a referee, as adjudges that the plaintiff is chargeable with any amount whatever in addition to the securities and funds shown to be in its hands by its…

Appeal by the defendant, the Christian Press Association Publishing Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 10th day of August, 1898, upon the decision of the court rendered after a trial at the New York Special Term, with notice of an intention to bring up for review upon such appeal an interlocutory judgment entered in said clerk’s office on the 18th ■day of May, 1897,…

Appeal by Pauline W. Squire, the plaintiff in the- first above-entitled action, from a judgment of the Supreme Court in favor of the defendants, Ella Y. Greene and Maria S. Dunkin, entered in the office, of the clerk of the county of Kings on the 16th day of November, 1898, upon the decision of the court, rendered after a trial at the Kings County Special Term, ad judging tha,t the mortgage held by the said defendants is a first lien upon the moneys derived from the sale of…

Appeal hy the plaintiff, Robert Spitzer, from, an interlocutory judgment of the Supreme Court in favor of the defendant, Albert Spitzer, entered in the office of the cleric of the county of New York on the 15th. day of July, 1898, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to the said defendant’s answer. The 4th clause of the will referred to in the opinion is as follows: • ■ “ Fourth.

Motion by the plaintiff, William P. Walton, as president of the board of officers of the Eleventh Regiment of the National Guard of the State of New York, a voluntary association composed of more than seven members, for a reargument of an appeal taken by the defendant 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 20th day of December, 1897, upon the decision of the court,…

Appeal by the plaintiffs, Clara J. Brown and others, and by the defendant, Henry R. Mount,- from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of- Kings on the 14th day of February, 1899, denying their motion to compel John Potts, the purchaser at a sale had in the above-entitled action, to complete his purchase.

<p>Appeal by the defendant, Robert Owen- Jones, 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 30th day of April, 1898, upon the. verdict of a jury rendered, by direction of the court and upon the-dismissal of his-counterclaim, and also from an order entered in said, clerk’s office on the 28th day of April, 1898, denying the defendant’s motion for. a new trial made, upon the minutes.</p> <p>This appeal was transferred from the- first department to the second department.</p>

Appeal by the defendant, Francis A. Thompson, individually, and Francis A. Thompson, trustee, doing business individually under the assumed name of Francis A. Thompson, trustee, 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 loth-day of July, 1898, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 24th day of June,…

<p>Promissory note — effect of a statement by the makers that it is business paper—extra allowance granted under an agreement to waive it if no appeal be taken.</p> <p>A written declaration made by the makers of a note, a few weeks after its execution, to the effect that “ The paper issued by ourselves to "Wm. H. Chew of this city, is good business paper for value received,” is sufficient, in an action against the makers and Chew to recover the amount of the note, to authorize the jury to disregard Chew’s' statement that he gave nothing for the note, and to find that it really had its inception when it passed from, the makers to him.</p> <p>Where, after the rendition of a verdict in favor of the plaintiff, the plaintiff’s counsel moves for an extra allowance, stating that he will waive any allowance granted if the defendants do not appeal, and the clerk’s minutes recite that, “upon this statement and stipulation, the court granted an extra allowance of five per cent,” the allowance so granted will not he allowed to stand, its effect being to impose a fine of that amount upon the defendants for appealing from the judgment.</p>

<p>■ Appeal by the defendant, William H. Van Name, from a judgment of the Supreme Court in favor of the plaintiff and of the defendant, Peter Van Name, as administrator, etc., with the will annexed of Peter Van Name, deceased, entered in the office of the clerk of the county of Richmond on the 9th day of March, 1896, upon the report of a referee, and also from an order made at the Kings County Special Term and entered in the office of the clerk of the county of Richmond on the 3d day of April, 1896, denying the said defendant’s motion to set aside the referee’s report and to vacate, set aside or modify the judgment entered thereon..</p>

<p>Pleadings — admission in an answer that one installment of the purchase ¡mee of goods sold was due on the day the action was brought ■—■ it does not entitle the plaintiff to a judgment on the pleadings—when the right of action accrues.</p> <p>An allegation contained in the answer interposed in an action commenced January 6, 1896, to recover for goods sold and delivered, which denies that the term of credit given on such sale had expired at the time of the commencement of the action, and avers that th.e purchase price was to be paid in weekly installments, “the first so- to fall due "January 6th, 1896, such first payment to amount to §248.25; that such installment was the only one due at the time of the commencement of this action, and that the total balance was to become due and payable on dates subsequent to the commencement of this action,” does not entitle the plaintiff to judgment upon the pleadings for §243.25, as the admission that the first installment of §243.25 became due January 6,1896, does not involve the conclusion that the plaintiff was entitled to begin suit for such installment on that day, as the law gave to the defendant the whole of January sixth within which to make the payment, and no right of action accrued to the plaintiff until the beginning of the day following.</p>

<p>Malicious prosecution — liability of the instigator, although he does not malee the complaint — statement of the complainant that the complaint was true — excessive extra allowance. . ■</p> <p>The instigator of a malicious prosecution is liable to the person prosecuted, although the formal complaint upon which the latter was- arrested was made by some one else.</p> <p>What evidence, given in an action for malicious prosecution brought by a domestic servant, who was arrested upon the charge of stealing her master’s silverware on a formal complaint made by a police officer, is sufficient to raise a question for the determination of the jury as.to whether the prosecution of the plaintiff was instigated by the master, considered.</p> <p>The master is not relieved from liability upon the ground that the statements contained in the complaint of the police officer, were true, where the police officer swears: “ The complaint I swore to was a truthful statement of all the facts mentioned, as far as my conscience would let me state. My complaint contained nothing but the truth”'—'the intimation from such testimony being that the conscience of the police officer would not allow him to -state all the facts. An extra allowance of §1,000, in such an action, held to be excessive.</p>

Appeal by the plaintiff, John Brennan, from a judgment of the City Court of Yonkers in favor of the defendant, entered in the office of the clerk of said court on the 15th day of December, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of December, 1897, denying the plaintiff’s motion for a new trial.

<p>Landlord and tenant — provision for: re-entry should the premises become vacant — the removal by the lessee leaving sub-tenants in possession is not covered by such a provision—what action on the part of the landlord, entitles the tenant to terminate the lease.</p> <p>Where the parties to a lease contemplate that the tenant shall let furnished rooms; in the demised premises, the. fact that the tenant, intending, as she explains, to-use the demised premises for “ roomers ” only, personally removes therefrom, leaving her sub-tenants in possession, does not amount- to a vacating of the premises within the meaning of a provision of the lease authorizing the landlord, in case the demised premises, or any part thereof, should become vacant during the term, to re-enter and relet the premises for the tenant’s account and hold the latter liable for any deficiency.</p> <p>The wrongful refusal of the landlord to allow the tenant, under such circumstances, to collect rent from her sub-tenants, entitles the tenant to surrender possession and to terminate her liability under the'lease; and the fact that after such wrongful refusal on the part of the landlord, the tenant returns, to one of the sub-tenants, rent received from him, in order that such sub-tenant may pay it to the landlord, is evidence of an' abandonment of the premises compelled by the landlord’s act, and not a recognition of the landlord’s right to resume possession and still hold the tenant liable for a deficiency in the rent.</p>

<p>Appeal by the defendant, William A. Miles & Co., 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 2d day of July, 1898,'upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 29th day of June, 1898, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>This appeal was transferred from the first department to the second department.</p>

Appeal by Robert II. Arkenburgh and Eliza J. Wiggins, two of the legatees named in the last will and testament of Robert H. Arkenburgh, deceased, from the whole of a decree of the Surrogate’s _ Court of Rockland county, entered in said Surrogate’s Court on the 30th day of December, 1895, settling the account of the executors under said will, except from that portion thereof which adjudges that Robert H. Arkenburgh is entitled to receive from the estate of Robert H.…

<p>Contract for lighting the town of Jamaica —it is void where it is to be executed only after the consolidation of the town in the Greater New Yor7c — notice of the filing of a petition.</p> <p>The town board of the town of Jamaica, wliicli on January 1, 1898, was consolidated with the city of New York by chapter 378 of the Laws of 1897, had no power on the 17th day of December, 1897, to enter into a contract for lighting .a certain district in that town for a period of ten years from the date of the . contract, where- it appears that the contract could by ho possibility be of benefit to the town of Jamaica, or to the people of the district-to be lighted under its provisions, while the town of Jamaica remained a town.</p> <p>Such a contract constitutes an attempt to nullify the power granted to the municipal authorities of the city of New York by section 587 of the Greater New York charter, to make contracts for the lighting of the consolidated city. Semble, that a notice by the town board to the effect that it had received the petition for the lighting of the district in question isa substantial compliance with the statute (Laws of 1896, chap. 309, §§' 2, 3), requiring it to publish notice that the petition had been filed with the town clerk.</p>

Appeal by the defendant, Pasquale Pietro, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of-the clerk of the county of Kings on the 10th, day of June, 1898, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on' the 8th day of June, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Karolina W. Karlson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 18th day of October, 1898, upon the dismissal of the. complaint at the close of the plaintiff’s case by direction of. the court after a. trial at the Kings County Trial Term. •

Appeal by the plaintiffs, Lewelon E. Linderman, and Edmund L. Baylies, as trustee under the will of Herman 0. Le Roy, deceased,’ from a final judgment of the Supreme Court in favor of the defend-, ant John W.. Axford, entered in the office .of the clerk of the county of New York on the 12th day of July, 1898, upon the. decision of the court, rendered' after a trial at the New York-Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiffs, Charles Deutermann and others, as executors, etc., from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 14th day of October, 1898, deny-', ing their motion to resettle an order resettling the case upon appéal. Eugene Erayer, for the appellants.

<p> Agreement between two railroad companies to construct a road for joint use—either company may run cars of a leased road.over it. </p> <p>The Coney Island and Brooklyn Railroad Company, which had a right, to construct and operate its -railroad upon a certain portion of Neptune .avenue, in the town of Gravesend, which right was quite independent of, and not subordinate to, any right possessed by the Coney Island and Gravesend Railway Com- ■ pany-in said street, -entered into- air¡agreemeht-with the latter company to construct and maintain, at their joint expense, a double-track railroad upon said street, the agreement providing that said tracks so constructed were to be used jointly by the parties to the agreement, and that “ in such joint use of the said tracks each of the parties hereto shall have the jDrivilege of operating as many cars over said track as in the conduct of its business it may deem necessary and proper.”</p> <p>Held, that the Coney Island and Brooklyn Railroad Company was entitled to operate cars of a railroad company leased by it, over the tracks constructed and maintained in accordance with the agreement, where such use of the tracks would not deprive the Coney Island and Gravesend Railway Company of the same use if it chose to enjoy it.</p>

<p>Appeal by the defendant, The Berlin & Jones Envelope 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 2d day of July, 1898, upon the verdict of a jury, and also, from -an order entered in sajd clerk’s -office- on the 30tli day of J uñe, 1898,. •denying said defendant’s motion for a new trial made upon the minutes.' -</p> <p>■ ' This' appeal" was transferred from the first department' to the '.second department. ' :</p> <p>The -action was brought to recover damages resulting from the •breach by the defendants of their agreement to purchase from the plaintiff 250,0.00 -envelope's, daily, .at prices to be in conformity with • chedules to be issued from time to time by the Standard Envelope-Company, which company was recited in the agreement to be under ■the control of the defendants. The contract further provided that the plaintiff should not sell envelopes at a less price than that at which the defendants had covenanted to buy.</p>

<p>1 rust fund — its use in the business of a corporation by its secretary with knowledge— credits of payments on the earlier items—personal liability of the secretary — when the beneficiaries may sue to^nforce such liability—proof that the corpus of the fund was thus used.</p> <p>A secretary of a corporation who, With knowledge that the corporation is insolvent, and that moneys held by the vice-president and treasurer of the corporation as trustee are being used in the business thereof, actively participates in the use of the trust moneys, is chargeable as a trustee de son tort with liability for the loss sustained by the trust fund in consequence of such insolvency,., notwithstanding the fact that there was no intent to defraud the trust estate, and that the secretary acted in the transaction as an officer of the corporation. The fact that, during the period subsequent to the time when the secretary ■ acquired knowledge .of such use of the trust moneys, the amount of trust funds withdrawn from the corporation exceeded the amount of trust funds deposited with it during such period, does not relieve the secretary from liability for the balance due the trust estate at the-time he acquired such .knowledge where it appears that the trust funds had been used in the business of a firm, to whose property and business the corporation succeeded, and that the account of the trust estate with the firm and corporation constituted a continuous running account, and that the moneys withdrawn should hence be applied in discharge of the debts prior in point of time. .</p> <p>An action to enforce the liability of. the secretary may be brought by .the beneficiaries of the .trust where it is alleged in the complaint that the plaintiffs, together with certain defendants, are- the only parties in interest and that the trustee refuses to begin an action.</p> <p>Evidence that .the trustee had paid over to the cesiuis que trmtent the amount of the income of the estate is sufficient tc> authorize the court to find that the deficit was in the corpus of the estate and not in the income.</p>

Appeal by the plaintiffs, Hyman Sonn 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 New York on the 8th day of September, 1898, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merits. This appeal was transferred from the first department to the second department.

<p>Money paid over by a bank upon the faith of a bond conditioned to repay money withdrawn from, the obligors bank account by its authorized agent, if it were not collected from the agent by the bank — the bond 'is a primary obligation and not a mere guaranty of collection. -</p> <p>The Travelers’ Insurance Company deposited with the Third National Bank of the city of New York a sum of money to the credit of its agent, the Bank of Salt Lake, to be used for certain purposes, without notifying the bank of any restrictions upon the agent in the use of the money The Bank of Salt Lake having become insolvent after drawing, in violation of its duty, §1,822.31 from the Third National Bank, the insurance company applied to the Third National Bank for the payment to it of the entire amount of the deposit, including the amount thus, wrongfully withdrawn by its agent, which request the Third National Bank complied xvith upon the execution by the insurance company of a bond of indemnity, conditioned for the payment to the Third National Bank, “upon demand, such portion of the said sum of §15,555.03, not exceeding §1,822.31 and interest, as the said Third National Bank of the city of New York may not, in fact, collect, within twelve months from the date hereof, from the said Bank of Salt Lake, or from the said collateral securities.” The Third National Bank' having failed to collect any part of the sum of $1,822.31 within the time specified in the bond, made a demand upon the insurance company for that amount, and such demand having been refused, brought an action upon the bond in which the defendant contended that the instrument was a . guaranty of collection and that lack of diligence having been shown in collecting the sum mentioned therein, the defendant was discharged from liability thereunder.</p> <p>Meld, that the undertaking on-the part of the defendant was a primary obligation to pay the $1,822.31 if that sum were not collected within the time specified in the bond, and was not a mere guaranty of the collection thereof.</p> <p>Semble, that if the plaintiff, after obtaining payment under the bond, should receive payment from the Bank of Salt Lake, the latter payment would inure to the benefit of the defendant.</p>

Appeal by the defendant, The Morning Journal Association, from a judgment of- the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of February, 1898,. upon the verdict of a jury, 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.

Appeal by the defendants, James McClenahan and others, executors, etc., of David Stevenson, deceased, 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 13th day of July, 1898,. upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of- July, 1898, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Julius Scharmann, 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 óf Máy,' 1898, upon the decision of the court rendered after a trial .'at the New York Special Term dismissing the complain t.- This appeal was transferred from tile first department to the second department.

Appeal by the defendants, William H. Jacob 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 Hew York on the 14th day of October, 1898, upon an order made at the Hew York Special Term adjudging the defendants’ answer to be frivolous and striking it out, and also from the order upon which such judgment was. entered. This appeal was transferred from the first department to the second department.

Appeal by the defendant, Hannah Hall, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of June, 1898, upon the decision of the court rendered after a trial at the Kings Comity Trial Term adjudging certain' deeds to be null and void, and that the plaintiff is the owner in fee of one undivided third part of the premises described in said deeds.

Appeal by the relator, Charles Earwicker, from a final order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 15th day of December, 1898, denying the relator’s application for a peremptory writ of mandamus commanding Michael J. Dillon and others, constituting the town board of the town of New Rochelle, to forthwith meet and appoint a justice of the peace of the said town of New Rochelle to…

Appeal by the defendant, Charles A. Coutant, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county,of New York on the 6th day of July, 1898, upon the verdict of a jury rendered by direction of the court. This appeal was transferred from the first department to the second department.

Appeal by the defendant, Siegel-Cooper Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the comity of Hew York on tile 18th day of April, 1898, upon the decision of. the court, rendered after a trial at the Hew York Special Term, sustaining the plaintiffs’ demurrer to the counterclaim set forth in the defendant’s amended answer.

Appeal by the defendant, Frederick L. Colver, 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 March, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of April, 1898, denying the defendant’s motion for a new trial made upon the minutes. This appeal was transferred from the first department to the second department.

Appeal by the defendant, William Herod, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of ÜSTovember, 1898, upon the decision of the court, rendered after a, trial at the Kings County Special Term, overruling the defendant’s-demurrer to the complaint.

Appeal by the defendants, Joshua M. Yan Cott, Jr., and others, as executors, etc.,' of Joshua M. Van Cott, deceased, from a judgment of the Supreme Court .in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 9th day of June, 1898, upon the decision of the court, -rendered after a trial at the Orange Special Term, dismissing the counterclaim set forth in the defendants’ answer

Appeal by the defendant, Jesse Torrence Magoun, from a judgment of the Supreme'Court in favor of the plaintiffs and certain of the defendants, entered in -the office of the cleric of the county of Queens on the 21st day of February, 1898, upon the .report of .a referee. The action was brought to foreclose a mechanic’s lien upon premises now belonging to the defendant Magoun for building materials-furnished to the firm of Arthur Johnson & Brother.

Appeal by the plaintiff, Maud Cruikshank, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 21st day of .December, 1898, denying the plaintiff’s motion to set aside the verdict of a jury.

. Appeal by the defendant, The Village of New Rochelle, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 15th day ■of October, 1898, upon the verdict of a jury for $5,000, and also from .an order entered in said clerk’s office on the 19th day of October, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant-, the New York Baptist Union for Ministerial Education, from so much of a judgment of the Supreme ■Court in favor of the plaintiffs and certain of the defendants, entered in the office of the clerk of the county of Kings on the 30th day of July, 1898, upon the report of a referee, as disallows and dismisses .the counterclaim interposed by said defendant.

Appeal by James C. Bushby from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of November, 1898, as orders and directs the said James C. Bushby to pay to Ezra A. Tuttle the sum of eighty-three dollars and forty-eight cents.

Appeal by the plaintiff, Bella Cardonner, as administratrix, etc., of John C. Cardonner, 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 2d day of August, 1898, upon the dismissal of the complaint by .direction of the court after a trial at the New York Trial Term, and also (as stated in the notice of appeal) from an order denying the plaintiff’s motion for leave to go to the jury…

Appeal by the plaintiffs, Louis S.- Sterritt and another, as executors, etc., of David Beveridge, deceased, and by the defendant Frances R. Emerson, from a judgment of the '.Supreme Court in favor of the defendant Martin L. Lee, as administrator, etc., of Marion Beveridge, deceased, entered in the office of the clerk of the ■county of New York on the 11th.day of August, 1898, upon the decision of the court rendered after a trial at the New York Special Term, adjudging that…

Appeal by the relator, the Crystal Water Company of Edg.ewater,, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Richmond on the 3d day of January, 1899, vacating and setting aside a writ of certiorari issued to review the action of the' defendants in assessing the personal property of the relator for the year 1897.

Appeal by the petitioner, James F. Longbotham, from an order of the Surrogate’s Court of Kings county, entered in said Surrogate’s Court on the 8th day of February, 1899, .dismissing the proceedings instituted by the petitioner to compel an accounting by Joseph 0. Longbotham, as administrator, etc., of Sarah E. Longbotham, deceased.

Appeal by the defendant, L. Napoleon Levy, from an order of the County Court of Queens county, entered in the office of the clerk of the county of Queens on the 15th day of November, 1898, directing the distribution of the surplus moneys realized on a foreclosure sale had in the above-entitled action.

<p>Appeal by the defendant, Simon King, from a judgment of the County Court of Dutchess county in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 29th day of October, 1898, affirming a judgment- of a justice of the peace.</p>

Appeal by the defendant, William H. Masterson, 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 17th day of' February, 1898, upon the - verdict of a jury,, and also from an order entered in said clerk’s office on the 21st day of February, 1898, denying the defendant’s motion for a new trial made upon the minutes. This appeal was transferred from the first department fo the second department.

Appeal by the defendants, Bird S. Coler, as comptroller of the city of New York, and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 27tli day of January, 1899, granting the relator’s motion for a peremptory writ of mandamus, directed to the defendants, requiring the defendant James.