Volume 38 — New York Miscellaneous Reports

Motion by the plaintiff for a new trial, verdict having been directed for the defendant on the evidence of both sides. Action for damage for libel.

<p>Corporation — Bight of. minority stockholder to restrain a transaction of majority stockholders clearly detrimental to his corporation.</p> <p>Where a domestic corporation, upon acquiring a controlling interest in the stock of a foreign corporation and taking a lease of its telegraph lines and property, promises to pay the latter’s stockholders quarterly a sum of money equal to two dollars per annum on every share of its present capital stock and, after transfers by and through several other companies of their franchises, assets and of this controlling stock, it comes to the hands of a corporation which, claiming that it is not bound by the aforesaid agreement, proposes to vote the controlling stock on a proposition to rescind the agreement and thus escape payment of the two per cent, a stockholder holding nearly all the minority stock of the foreign corporation, is entitled to restrain such action, not only because it is so detrimental to the interests of the foreign corporation as to lead to the inference that the interests of the majority stockholders are outside of and opposed to those of the corporation as well as to those of the minority, but also because such action is so oppressive to the minority as to amount to fraud.</p>

<p>Motion to vacate an attachment.</p>

<p>Calendar — Preference of an action for libel, in the First Department — Code C. P., § 791, subd. 11.</p> <p>The statutory preference on the calendar given an action for libel will not, in the First Judicial Department, be permitted to advance such an action over issues noticed for trial at prior trial terms, and to secure such a result some additional reason must appear.</p> <p>Such an action is, otherwise, only entitled to a preference over other issues of the same term as that for which it is noticed.</p>

<p>Calendar — Preference of an action by a trustee in bankruptcy, in the First Department — Code C. P., § 791, subd. 5.</p> <p>The statutory preference given an action brought by a trustee in bankruptcy as sole plaintiff will not, in the First Judicial Department, be permitted to advance such an action over issues noticed for trial at prior trial terms, and to secure such a result some additional reason must appear.</p> <p>Such an action is, otherwise, only entitled to a preference over other issues of the same term as that for which it is noticed.</p>

<p>Action for partition.</p>

<p>Action for accounting and for the construction of a wilL</p>

<p>Action to compel the removal of a wall alleged to encroach upon plaintiff’s premises and for damages.</p>

<p>-Motion for a preference.</p>

<p>Calendar— Waiver of preference, under Code C. P., § 791, in the county of New York.</p> <p>Where a sole plaintiff, suing as administratrix in an action triable in the county of New York, serves, for the April term, 1902, a notice of trial and a notice of motion for a preference on the calendar under Code C. P.,§ 791, and they are neither withdrawn nor acted upon at the commencement of that term, she cannot obtain a preference by. serving similar papers for the May term, 1902, as her failure to make that motion -at the commencement of the April Term operated as a waiver of her right to a preference.</p>

<p>Resulting trust.</p> <p>Where, after creditors, of a practically insolvent' debtor, have entered into a written agreement to the effect that all the proceeds of their respective claims, obligations and securities and all income and proceeds of property bought in under any foreclosure, or other sale, shall be shared pro rata among the signers, in proportion to their respective claims, as the same shall be collected or received and that, upon a foreclosure under existing mortgages or under a lien of any of the signers, the property shall be bought in for the benefit of all, one of them, who, after assuming the management of real property of the debtor for the general benefit and at all times continuing in possession and control of it, buys it in, under a foreclosure of a mortgage upon it, in the name of his brother-in-law (a nonresident who had never seen the property), although apparently furnishing the purchase money himself, will, at the suit of another signer who had stated his ability and willingness to contribute proportionately to the purchase money, and who had changed his position in reliance upon the agreement, be declared to be the real purchaser and to hold the property as trustee for the plaintiff, and for the other creditors who signed the agreement.</p>

<p>Agency — Several liability o£ agent and o£ undisclosed principal when disclosed —Demurrer for misjoinder of defendants unauthorized —Code C. P., § 488, subd. 6.</p> <p>An agent for an undisclosed principal, and the latter when disclosed, are severally liable on a contract made by the agent within the scope of his employment, and there is no misjoinder of causes of action where both are sued on such a contract in the same action.</p> <p>A demurrer for misjoinder of parties defendant is unauthorized.</p> <p>The provisions of Code C. P., § 488, subd. 6, permitting' a demurrer for a defect of parties, plaintiff or defendant, means a deficiency of, and not too many, parties. ,</p>

<p>Perjury — Not committed "by a false oath to a certificate required only by a foreign law — Penal Code, § 96.</p> <p>A false oath, taken before a notary public of and in the State of New York by an officer of a foreign corporation to a verified certificate as to the amount of capital stock paid in in cash, required by the laws of the foreign State, but not by those of this State, is not perjury within Penal Code, § 96, declaring guilty thereof any person who swears that any certificate by him subscribed is true on any occasion in which an oath “is required by law, or may lawfully be administered,” and who on such occasion willfully and knowingly states in his certificate any material matter to be true which he knows to be false.</p> <p>To make a false oath perjury within the statute it must have been taken in a judicial proceeding, or in one authorized by law, or on an occasion when an oath was required by the laws of New York, or it must have been administered in pursuance or by authority of said laws.</p> <p>As between the States of the Union their laws have no exterritorial force.</p> <p>A foreign law cannot be permitted to give a domestic notary public such authority to administer an oath here as that its falsity will constitute perjury here in a case where our laws did not require the oath.</p>

'On March 10, 1886, John Noon executed to Nicholas Greminger tiie real estate mortgage described in the complaint, covering lands situated in Madison county, to secure an indebtedness then due, which mortgage contained a covenant on the part of the mortgagor to pay such indebtedness. On January 28, 1889, the mortgagee assigned such mortgage to James Eoon, and on July 23, 1890, James Eoon assigned the same to Ann Eoon, the wife of the mortgagor.

<p>■Motion to dismiss indictment upon minutes of grand jury.</p>

<p>The action was to restrain, the defendant from excluding the plaintiff from attendance upon its law lectures.</p> <p>Motion to continue injunction.</p>

<p>life insurance — “ Statements ” as warranties — Partial answer to a question of the insurer not a breach — Effect of Code C. P., § 834</p> <p>on Code C. P., § 955 making a physician’s certificate as to the cause of death, on file for twenty years in New York city, admissible in evidence — Waiver of Code C. P., § 834.</p> <p>Written “ statements ”, contained in a proposal upon which a policy of insurance is issued and which proposal is by the terms of the policy made a part of the contract, are warranties.</p> <p>Where the applicant for insurance answers affirmatively the insurer’s question'as to whether there is now “any” insurance upon his life and, in answering the further question in “ what company ” and for “ what amount ”, states an existing insurance but omits or neglects to state another small one which he then had, there is no breach of a warranty, as the applicant does not warrant that he will not conceal facts in reference to the questions.</p> <p>Notwithstanding the provisions of Code C. P., § 955 making an official record of a department of the city of New York on file for twenty years presumptive evidence of its contents and receivable in evidence as such upon any trial in any court of this State in any controversy pending therein between any parties, Code C. P., § 834 forbids the admissibility of a physician’s certificate, as to the cause of death of the applicant’s father, on file in the city health department for more than twenty years and required by law, to prove the falsity of written statements of the applicant, made in the application, as to his father’s age at death and as to the cause of his death.</p> <p>Where the insurer has not, before the trial of an action brought apon the policy by the beneficiary after the death of the insured, taken advantage of an offer, made it by the insured when an applicant, consisting in naming a physician of whom the insurer might Inquire as to the health of the applicant before accepting the risk, the physician cannot on the trial of the said action testify as to ■the health and physical condition of the applicant in contradiction of the latter’s statements in his application, as there is no waiver Of Code C. P., § 834 excluding such evidence.</p>

'Action by a taxpayer for the annulment of an agreement made by George C. Clausen, as president of the Department of Parks of the City of New York, and Oscar F. Spate, allowing said Spate to place chairs in the parks in the boroughs of Manhattan and Richmond in said city and to make a charge for the use thereof by the public. _ ¡

<p>Ere insurance — Bight oí sole continuing partner toi recover on a firm policy although he has not complied with and has also violated certain statutes —- Demurrer admits only properly pleaded allegations.</p> <p>The facts that a sole continuing partner, who upon dissolution took over all the firm assets, did not thereafter continue the partnership under L. 1897, ch. 420, §§ 20, 21, and that the words “ & Co.”, in the firm name still used by him, represent no actual partner as they must by law (L. 1833, ch. 281, § 1; Penal Code, §§ 363, 363b), do not preclude him from recovering for a loss under a policy issued to the firm before dissolution upon firm property, as neither the change of interest between the partners during the term of the,policy, nor the failure of the continuing partner to comply with or his violation of the said statutes, can relieve the insurer from liability to him.</p> <p>A demurrer to a defense admits only such allegations as are properly pleaded and therefore a defendant canno-t assist its defense by mere conclusions of law.</p>

<p>Divorce — Reference ordered by consent, in a contested action, irregular merely — Estoppel — Code C. P., § 1013.</p> <p>Where a husband sues for a divorce and his wife obtains and is paid temporary alimony and a counsel fee, and, after a protracted trial before a referee, the husband succeeds, his motion for judgment on the report should not be denied for the irregularity, at most, that the court appointed the referee by consent of the parties and upon their written stipulation, as the wife is estopped from such an objection.</p>

<p>Attachment — Amount where a servant wrongfully discharged sues before expiration of the term — Kennedy where the amount is excessive.</p> <p>Where a servant, hired by the year and as alleged wrongfully discharged at the end of six months, sues, by an assignee, his nonresident employer one month after his discharge for breach of the contract, the measure of damages is prima facie the balance of the year’s salary and, for it, the assignee is presently entitled to an attachment against the employer’s property.</p> <p>Semble, that if, by reason of the servant’s obtaining other employment during the unexpired term, the attachment should prove to have been issued for too large a sum the remedy of the employer would be to move to.reduce the amount of the attachment but he could not have it vacated.</p>

Appeal by the plaintiff from an order of the General Term of the Oity Oourt of the city of ISTew York reversing an order of the Special Term overruling the amended answer of the defendant as frivolous and directing judgment for the plaintiff, and vacating a judgment entered pursuant to such order.

<p>Appeal by the defendants from an order of the General Term of the City Court of the city of Few York, reversing an order of the Special Term of said court.</p>

Appeal by the landlord from a final order made in the Municipal Court, second district, borough of Manhattan, in a summary proceeding taken for nonpayment of rent.

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

Appeal by the defendants from a judgment rendered In favor of the plaintiff in the Municipal Court of the city of New York, borough of Manhattan. The general ordinances of the city of New York referred to in the opinion are as follows: “ § 12. None but licensed hacks shall use the designated hack stands in the city.

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

Appeal by the plaintiff from an order made in favor of the defendant in the Municipal Court of the city of Hew York, second district, borough of Manhattan.

<p>Liquor Tax Law — Determination of a board of town canvassers as to a vote on local option conclusive on an application to cancel a certificate.</p> <p>The determination of a board of town canvassers as to the result of the vote at an election at a biennial town meeting upon the question of the sale in the town of liquor by hotel keepers is conclusive upon a justice of the Supreme Court in a proceeding taken before him to cancel a liquor tax certificate upon the ground that its holder is not entitled to hold it.</p> <p>A statement showing a different result, filed with the county treasurer, by a town clerk who came into office long after the election is a nullity.</p>

<p>Benefit Insurance — Bight of illegitimate children to recover as “ dependents ”. i</p> <p>Illegitimate children of a man insured in a benefit order, described by him in the application as his adopted children and whom he had supported for years at the home of their mother, are entitled upon his death to recover under a certificate limited as to beneficiaries to wife, children, “ dependents ” or blood relatives, as they are “ dependents.”</p>

Habeas Corpus to procure discharge of relator from custody under commitment of Court of Special Sessions. The relator was charged with the crime of grand larceny and held to await the action of the grand jury by a city magistrate. The grand jury did not indict, but indorsed the papers as follows: “ Sent to Court of Special Sessions by Grand Jury to be disposed of as Petit Larceny March 29, 1902.

<p>Money had and received — What rights are personal — Foreign will as to personalty not subject to collateral attack.</p> <p>Rights, which the ancillary executor in this State o£ Richard Garvey, who died a resident of Suffolk county, Mass., and was an heir of Andrew J. Garvey, obtained under an agreement of settlement, made after the death of Richard Garvey, of a dispute which arose here in the lifetime of the widow and life tenant of the income of the realty of Andrew J. Garvey between the remaindermen, certain charitable institutions, and the excluded heirs, who claimed that his will violated Laws 1860, chapter 360, forbidding a person from willing more than one-half of his estate to charities, etc., are personal, being derived from the agreement and not from heirship.</p> <p>Therefore where the will of Richard Garvey ljas been duly probated in the probate court of Suffolk county, Mass., his daughter, Who did not join in the agreement of settlement, cannot, as heir of Andrew J. Garvey, where she does not allege that his will was invalid, maintain an action in this State against her father’s ancillary executor to recover all the moneys, paid him as such under such rights, on the ground that her father’s will was obtained by undue influence — and this because the decree of the Suffolk county probate court cannot be attacked by her collaterally and also because her father might have owed debts and she would then be entitled only to an accounting as to the surplus of his estate.</p>

<p>Pleading — Statements of the answer merely inconsistent with the complaint raise no issue.</p> <p>Allegations of the complaint are not put in issue merely hy statements inconsistent therewith contained in the answer, and consequently where the plaintiff alleges an unlawful entry of her dwelling and a battery of her person the defendant’s answer, that he entered under authority of a chattel mortgage on the plaintiff’s goods and to assist in removing them and did not assault her, raises no issue and makes the answer frivolous.</p>

<p>Crimes — Sunday base ball playing when not within Penal Code, § 365.</p> <p>Playing base ball on the first day of the week, when not amounting to a serious interruption of the repose and religious liberty of the community, is not a violation of Penal Code, section 265.</p>

<p>Action for specific performance.</p>

<p>Demurrer to complaint.</p>

<p>Application to vacate an assessment.</p>

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

<p>Motion to vacate an order of arrest.</p>

<p>New York city — Unconstitutionality of L, 1901, oh. 466, § 1560 forbidding a city pensioner to hold a city office.</p> <p>The provisions of the charter of the city of New York (Laws of 1897, chap. 378, as amended by Laws 1901, chap. 466, § 1560) forbidding any pensioner of the city or any of its departments to hold any office, employment or position under the city is unconstitutional as violative of the State Constitution of 1894, article I, section 1, providing that “ No member of this State shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers.”</p> <p>Semble, that, if it be deemed advisable to limit a city pensioner’s right to his pension upon his exclusion from city employment, the prohibition should be incorporated in the act granting him the pension.</p> <p>A pension is a mere gratuity, conferring no vested rights.</p>

<p>Foreign divorce, on service by publication, when valid in New York — A party who has invoked a court’s jurisdiction cannot subsequently attack it — Change of marriage status.</p> <p>A divorce for abandonment duly granted in the State of Washington to a wife, domiciled there for four and one-half years with her husband, upon service of the summons upon him by publication only at a time when he had left home and was alternately in New York and Philadelphia without any intention of making New York State his permanent domicile or residence, is valid as to the parties, is conclusive upon our courts .under section 1 of article IV, United States Constitution, and precludes the wife from maintaining in them against her husband a subsequent action to procure a divorce from him for adultery upon the ground that after she had divorced him he married again.</p> <p>Where a woman has invoked the jurisdiction of the court of another State and has induced it to grant her a decree of divorce she cannot afterward be heard to allege its nullity.</p> <p>Such a divorce changes her marriage status in the courts of all the States.</p>

<p>Cebtioeabi to review an assessment for 1901 upon the capital stock of the relator the Spuyten Duyvil & Port Morris E. E. Co.</p>

Motion by the defendant to punish the plaintiff for not obeying an order of this court, requiring the plaintiff to appear and be examined in supplementary proceedings before return of execution.

<p>2Tew York city — Jurisdiction of magistrates — Distinction between " disorderly conduct ” and such conduct when it tends to a breach of the peace — Construction of L. 1899, ch. 632 — Summary jurisdiction of magistrates.</p> <p>There is in the law no such offense as “ disorderly conduct ” simply, but where a woman of the city of New York is charged with “ disorderly conduct, in that she did on the 27th day of December, 1901, solicit men for the purposes of prostitution ” on a named public street of said city, there is a statement of disorderly conduct that tends to a breach of the peace, within L. 1882, ch. 410, §■ 1458, subd. 2, still in force.</p> <p>Such an offense is a misdemeanor and where the woman pleads not guilty of it a city magistrate of said city cannot convict her of the offense, as the Court of Special Sessions of said city has exclusive jurisdiction to hear and determine all charges of misdemeanor in said city except in a case where the accused is indicted before trial or the charge is ordered prosecuted by indictment in the manner prescribed by L. 1895, ch. 601, § 14. .</p> <p>The statute, L. 1899, ch. 632, permitting women between the ages of fifteen and thirty years to be sentenced to the State Reformatory at Bedford, N. Y., on being “ convicted by any magistrate * * * of being a common prostitute, of frequenting disorderly houses or houses of prostitution, or of a misdemeanor ” was not intended to and did not create offenses or confer on magistrates of said city jurisdiction of misdemeanors or enlarge their existing jurisdiction, nor is jurisdiction of misdemeanors conferred on them by L. 1897, ch. 378, § 707.</p> <p>The statutory jurisdiction of such magistrates, in regard to summary convictions, considered.</p>

Heabing on demurrer to a return to a writ of habeas corpus. The warrant of commitment is that the relator was convicted of being a “ public prostitute ”. The record of conviction, complaint and other papers are vaguely for disorderly conduct in soliciting men in the street.

<p>New York city — City magistrate has no jurisdiction of a misdemeanor — Construction of L. 1899, ch. 632 — A statutory offense, not defined as a felony, is a misdemeanor.</p> <p>A woman in the city of New York, between the ages of fifteen and thirty years, duly charged with violating L. 1882, ch. 410, § 1458, in that she was “ loitering on Mott street, that being a public thoroughfare and public place, soliciting and importuning men passing in and along said thoroughfare or place, for the purpose of prostitution, to the great annoyance of the people ”, etc., and convicted by a magistrate of the city of New York after pleading not guilty, cannot be held in custody by the State Reformatory at Bedford. N. Y., as the magistrate had no jurisdiction to try for the offense, the same being a misdemeanor.</p> <p>The contention of the people that, because the warrant recited that the information charged the woman with “ disorderly conduct and being a prostitute and soliciting men for the purpose of prostitution in the public street ”, she must have been convicted of being a “ common prostitute ”, under L. 1899, ch. 632, and that such an offense is not made by that statute and is not a misdemeanor, but is only a quasi criminal offense to be summarily dealt with, is not tenable.</p> <p>Where an offense is created by statute it must be classed as a misdemeanor unless by its definition it comes under the head of a felony. It cannot be classed as either a felony or misdemeanor but as only a quasi criminal offense to be summarily dealt with, unless the statute expressly so authorizes.</p>

<p>Action to cancel judgment — Guaranty of payment — Merger — Bate of interest.</p> <p>Where the holder of a note made in, and secured by a mortgage on land in, another State, recovers judgment in the State of New York against a guarantor of the payment of the note, the remedy of the holder against the maker and his land is merged in the judgment, bearing 6 per cent, interest, and therefore where the holder subsequently forecloses the mortgage on the land in the foreign State and buys it in at a price which covers his debt, the guarantor is entitled to maintain an action here to have the New York judgment canceled, and the holder of the note is not entitled to compute interest, on that judgment up to the time of the sale and foreclosure, at 12 per cent., the legal rate of the foreign State.</p>

<p>Discovery of books and papers — Petition — Examination before trial as a substitute.</p> <p>Discovery of books and papers will not be granted a plaintiff upon her general allegation of the necessity of their use upon the trial of her action, where her petition does not state facts from which the court can pass on the necessity, where there-is no statement in it of the precise facts without which it would he unsafe for her to go to trial and where the sources of information upon which her conclusions are based are stated only in a general way.</p> <p>An examination before trial will sometimes meet all reasonable requisites.</p>

<p>Actions by medical officers of the fire department of the city of New York for an increase of salary from and after January 1, 1898.</p>

<p>Specific performance — Bights and. equities as between vendor and purchaser where performance has been long delayed by legal proceedings.</p> <p>Where a vendor, then having a marketable title, contracts to sell her land at a time fixed but becomes unable to perform because of a defect which, without her fault, arose subsequently to the making of the contract of sale, the vendee may obtain specific performance from her where the defect has disappeared at the time of the trial of his action; and lapse of time, in the absence of his laches, affects the terms of the decree but not his right of action.</p> <p>Where many years have elapsed since the date when the sale should by its terms have been completed, the vendor, to be regarded as trustee of the land for the vendee, must account to him for the fair rental value of the property since the date of the completion of the sale as fixed with interest on the rental of each year from its expiration, is chargeable with all accrued penalties, over legal interest, on taxes and assessments which she did not pay in time (and which neither party paid), but not with damages alleged to have accrued from the filling up of the land where she did this under an order of the city board of health; the vendee, trustee of the purchase money unpaid, is not chargeable with interest on his cash payment, on account of the price, made at the' sale and under its terms, is chargeable with interest on the balance due, from the completion of the sale as fixed, where he has never tendered the balance to the vendor and also with ail taxes and assessments which have been levied on the land since the completion of the sale as fixed.</p> <p>The court ordered an account to be stated between the parties and directed a reference.</p>

<p>Action for an equitable lien and for an accounting.</p>

<p>Trust — A simple contract creates no fiduciary relation.</p> <p>A fiduciary relation is not created by a contract, made between parties competent to contract, by the terms of which the purchaser of the property of a corporation agrees with its majority stockholder that the latter may purchase the property upon paying the cost of it, interest and an additional sum.</p>

<p>Attorney — Xien under Code C. 3?., § 66 — Variance.</p> <p>Where a mortgagee dies before entry of judgment in actions for foreclosure and his executrix employs another attorney to continue the actions to judgment, and she buys the mortgaged property-in, the original attorney may, under Code C. P., § 66, maintain an> equitable action against her as executrix to have his services declared a lien upon the mortgaged property, and this irrespective of the question whether he has an adequate remedy at law.</p> <p>The variance, that the original attorney declared on his contract of employment and recovered as upon a quantum, meruit, is not material.</p>

<p>Application for injunction, pendente lite.</p>

<p>Supplemental summons and complaint — Permitted, in foreclosure after judgment and sale, to continue the action against a new party who-after action begun acquired an interest with notice of the plaintiff’s, rights — Laches — Strict foreclosure.</p> <p>Where a judgment in foreclosure has been after judgment and sale . set aside as to the mortgagor because the summons and notice of object of action were by mistake served only on bis son who resided with him and had the same Christian name, and the father thereafter conveyed to his son with knowledge in the latter of the facts and died and the son thereafter remained in possession, the Supreme Court, in furtherance of justice, permitted the plaintiff, in the absence of any laches prejudicial to the son, to serve on him a supplemental summons and complaint as in the original action and to continue it, considering untenable the son’s contention that the only remedy of the plaintiff was by strict foreclosure.</p> <p>Strict foreclosure is simply a form of judgment.</p>

<p>Motion to change place of trial.</p>

<p>2Tew York City — A tax payer cannot sue where the city could not — Proposed action of a city board not damnifying the city.</p> <p>A taxpayer of the city of New York cannot as such maintain an action to prevent the existing board of estimate and apportionment from rescinding or altering resolutions of the board of public improvements, which went out of existence on December 31, 1901, determining the proportion of the future expense of opening certain streets to be borne respectively by the city at large and the property to be benefited, where he does not allege that the board of estimate and apportionment intends to cast a larger portion of such expense on the city at large than did the board of public improvements.</p> <p>Whether or not the proposed action of the board, of estimate and apportionment is beyond its powers such action cannot damnify the city unless a larger proportion of the said expense is to be cast on the city at large and the taxpayer would have no interest and standing to sue unless the city, and hence its taxpayers, were being damnified.</p>

<p>Vendor and purchaser — Unless the vendee rescinds and offers to reconvey land he must pay the purchase price — Allegations in an answer merely inconsistent with the complaint do not amount to a denial. Code C. P., § 501, suhd. 1.</p> <p>A corporation, retaining possession of land, does not make out a “ defence ” to its note by answering that the payee induced it to make the note in part payment for the land upon false representations as to the quantity of spruce pulp timber then growing on the land, and that the plaintiff participates in making the representations, as a vendee of land cannot escape payment of the purchase price unless on discovering the fraud he rescinds and offers to reconvey.</p> <p>Where an answer contains no general or specific denial as required, by Code C. P., § 501, subd. 1, allegations therein, however inconsistent with those of the complaint, cannot be accepted as a substitute for such a denial.</p>

<p>Appeal by the tenant from a final order of dispossesion made in summary proceedings in the Municipal Court, Ninth District, borough of Manhattan.</p>

<p>New York city — Definition of an “ aisle ” in a city theatre as used in L. 1897, ch. 378, § 768. "</p> <p>The word “ aisle ” as used in the charter of the city of New York (L. 1897, chap. 378, § 762) means the aisle of a theatre in said city as actually constructed and as in present use and does not mean a theoretical aisle of the minimum width permissible under the Building Code of said city; and consequently the manager of a theatre in said city subjects himself to the penalty imposed by section 773 of said charter if he permits patrons to occupy stools and chairs in a side aisle, of his theatre, as constructed and refuses to remove them 'when duly notified to do so.</p>

The plaintiffs above named commenced an action in the New York Supreme Court against the defendant on the 22d day of March, 1901, on account of goods sold and delivered and on that date obtained an attachment in the sum of $2,425.54, against the defendant on the ground that it was a foreign corporation.

<p>Action to establish an equitable lien.</p>

Motion to set aside a verdict and for a new trial in an action to recover a penalty for violation of section 28 of article H of the Agricultural Law.

<p>Life insurance — Policy a non-negotiable chose in action — Bights of pledgor and pledgee — Bedemption when cut off.</p> <p>• A policy of life insurance is a non-negotiable chose in action and is subject to the legal rules applicable to that class of property, When assigned for a debt the assignee takes the legal title and the assignor has left only what remains of the policy after he has paid the debt.</p> <p>Where the debt is not paid at maturity the assignee or pledgee may sell the policy or dispose of it in a manner agreed upon and thereupon the right to redeem is cut off.</p> <p>Where the owner of a paid up insurance policy, a borrower upon it from the insurance company, sues, three months after its cancellation and a settlement made with the company, for redemption, restoration and reinstatement of the policy upon payment of the amount of the company’s loan to him as found due, a separate defense of the company is not demurrable which alleges that the plaintiff borrowed of it certain moneys on an ordinary policy which were to be applied to premiums, interest thereon and the balance in cash to the insured, with authority to the company on default in payment of principal or interest to cancel without demand or notice the policy and apply pro tanto its surrender value to the debt, that, default having been made in interest, the plaintiff exchanged his policy for the paid up one in suit, accompanied by an agreement to run another year identical in terms except that the amount of the loan was not apportioned among premiums, interest and cash and that the surrender value was slightly larger, and that the plaintiff, having failed to pay this latter debt, the company extinguished the latter policy, retained its debt and paid the plaintiff the balance in cash.</p>

Action by a creditor against the stockholders of the St. Bichólas Bank to enforce their statutory liability as such stockholders, to answer for all debts of said bank, properly brought to judgment, to the amount of its stock held by each of them equally and ratably at par. :

<p>New York city — Civil Service — Bight of a veteran, volunteer fireman, upon abolition of his position, to be transferred to another position newly created with similar duties.</p> <p>A veteran volunteer fireman, who has risen by competitive examinations to the position of chief engineer of highways and sewers of the borough of Richmond in the city of New York, who remained such until abolition of that position on or about February 1, 1902) and. who was at once placed by the city civil service commissioners at the head of the list of persons eligible to appointment to the position of chief engineer in the county of New York, is, upon the creation on or about the same day of the position of chief engineer in the bureau of highways in the office of the commissioner of public works of the borough of Manhattan, with the same salary and similar duties, entitled in view of the statutes (L. 1897, chap. 378, §§ 127, 1543; 1902, chap. 270, § 21) to a peremptory writ of mandamus requiring said civil service commissioners to certify his name to the borough president for appointment to said position and to certify it upon the payroll as of February 1, 1902, where the said president has attempted to appoint to the position a person not a veteran soldier, sailor or fireman, and one who was not certified by said commissioners for appointment to that position or any other.</p>

<p>Motion to vacate au order of arrest. The material facts are stated in the opinion.</p>

<p>Discovery — Refused in the case of commissioners not required by law to keep minutes, records or maps — Peremptory mandamus.</p> <p>Commissioners appointed under statutes (L. 1867, chap. 489; 1875,' chap. 595) to designate in the city of New York a route for the New York Elevated Railroad Company are public officers in whom taxpayers of the city have an undoubted public interest, but, ás no provision of law requires the commissioners to have an office, keep minutes or file or record maps or documents, the court cannot compel them to make discovery of those papers.</p> <p>A writ of peremptory mandamus will not issue in a doubtful case.</p>

<p>Action for a divorce.</p>

Motion to vacate and set aside a judgment of this court, in favor of defendant Wiekes, receiver, an intervening party defendant, on a counterclaim against the plaintiff herein, entered upon default.

<p>Vendor and purchaser — After a contract for the sale of land has been made easements appurtenant thereto belong to the vendee and the vendor must account for their value.</p> <p>Where owners of land abutting on an elevated railroad contract to sell It, moneys which they receive, intermediate the making of the contract and the delivery of the deed, from the railroad for easements appurtenant to the land belong to the purchaser and- his assignee may maintain an action against the venders to impress a trust therefor upon such moneys.</p>

Appeal by defendants from an order and judgment of the General Term of the City Court affirming a judgment entered against them upon the verdict of .a jury, and affirming an order denying defendants’ motion for a new trial.

<p>Appeal by the defendant from a judgment rendered in favor of the plaintiff for the sum of $50 in the Municipal Oourt of the city of Mew York, eleventh district, borough of Manhattan.</p>

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

Action by one of the legatees under the will of Mrs. Anna Sutherland, deceased, to set aside a contract made by her testatrix with defendant Soné. The contract was made April 30, 189'6» Mrs. Sutherland died in September, 1897.

<p>Corporation — Eights of minority stockholders.</p> <p>Where two corporations, competitors in the same business, occupants of the same offices, having practically the same agents, and under the same voting control, are conducted, by that control in such a manner as to sacrifice tlie interests of one corporation in order to advance those of the other, a minority stockholder of the corporation damnified is entitled to equitable relief against the situation.</p>

<p>Negligence — Contributory — Terms, on granting a new trial where the plaintiff’s verdict was against the weight of evidence.</p> <p>A driver, with his horse under control and approaching from a cross-street, a street railroad track in the city of New York, who in the daytime sees, a block distant from the railroad crossing and again at a distance of one hundred feet from it, a motor car approaching at the rate of twenty miles an hour with its motorman not looking ahead is guilty of contributory negligence if he persists in attempting to cross the track when the motor car was not more than thirty feet away from him and is injured by the ensuing collision.</p> <p>A defendant corporation, granted a new trial in a case where a verdict against it is set aside as against the weight of evidence, must stipulate that upon its final recovery its costs shall not be taxed against the plaintiff and that if the plaintiff finally recovers entire costs shall be taxed in his favor.</p>

<p>Motion for a new trial in an action for libel.</p>

Motion of plaintiff upon special finding of the jury to direct judgment for the plaintiff, and a like motion upon the part of the defendant to direct judgment for the defendant.

<p>Motion to vacate injunctions.</p>

<p>Idiot — Cannot be sued personally for her maintenance.</p> <p>An idiot from birth cannot be sued in an action on contract for her past maintenance.</p> <p>The interposition of an answer, in the form used in the case of an infant, by an attorney designated by the county judge as one to whom the summons and complaint must also be delivered in behalf of the idiot and that attorney’s consent to a judgment, proposed to ■be enforced against the land of the idiot constituting her only property and insufficient to pay the debt, does not assist jurisdiction or validate the proceeding.</p> <p>Qucere, whether a committee appointed in lunacy proceedings could pay for past maintenance.</p>

<p>Liquor Tax Law — Small and cheap buildings designed solely to defeat an application for a certificate and intended to constitute a “ church ” and a “ dwelling.”</p> <p>In a proceeding to cancel a liquor tax certificate for alleged false statements contained in the application, a building, ten feet by sixteen, located on an alleyway, occasionally used by a voluntary unincorporated religious association which had other regular headquarters, and erected and used to defeat the granting of the certificate in question is not, within the meaning of the statute (L. 1896, chap. 112, § 17 as amd.), to be deemed “ a building occupied exclusively as a church,” nor is a house, costing thirty-five dollars, consisting of one room, and hurriedly removed to its present location on the day of the application and in order to defeat it, to be deemed “ a building * * * occupied exclusively for a dwelling.”</p> <p>The court will not permit a building, insufficient to furnish a basis for such an application, to be used to work a revocation of it.</p>

The defendant is a foreign corporation organized pursuant to the Laws of the State of Michigan. Its objects are to unite people fraternally, to provide for death, sick and accident disability benefits, to give moral and material aid to its members, to educate them socially, morally, and intellectually, to create a fund for the relief of sick and distressed members, and for payment to their dependents upon their death.

<p>Motion for a peremptory writ of mandamus directing the respondent to reinstate the relator as a clerk in his department.</p>

<p>Supplementary proceedings — Motion .to subordinate original proceedings — How made — When refused.</p> <p>Where a junior judgment creditor moves to subordinate supplementary proceedings, in which a receiver of the debtor’s property has been appointed, to his own similar proceedings, he may lawfully entitle his motion in either action.</p> <p>Although twelve years had elapsed since the receiver was appointed and neither the original moving creditor nor others over whose judgments the receivership had been extended had taken any further action, the court denied the motion of the junior judgment creditor (who had acquired the judgment under which the receiver was appointed) to subordinate those proceedings to his own newly taken, where it was not denied that he was the judgment debtor’s relative, where he was seeking to cut off intervening, judgment creditors and get the sole benefit of any property of the judgment debtor acquired or discovered after the original examination, and where the junior judgment creditor was proceeding on knowledge derived from relationship and favor rather than from diligence and investigation.</p>

<p>Contract — Bescission for mutual mistake.</p> <p>A mutual mistake as to material facts of a contract, disappointing the intention of both of the parties to it, is a sufficient ground for its rescission and for. the restoration of the parties to their original positions.</p>

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

<p>Action by plaintiff to recover compensation from the city for the days he was laid off and did not work.</p>

The plaintiff and defendant intermarried in this State, in the year 1878. Two children, the issue of such marriage, were born, one now of the age of twenty years, and the other of the age of six years. What are claimed to be irreconcilable differences arose between the parties, and in June, 1895, they separated, and have ever since lived separate and apart.

<p>Benefit society — Death before membership becaime complete — Waiver and estoppel.</p> <p>Where membership in a benefit society is stipulated not to be in force until a certificate of membership has been delivered to the ■applicant during his life and while in' good health, his death before such a certificate has even been mailed to him by the society absolutely precludes him from ever having been a member in contemplation of law.</p> <p>Where a contract of membership has never had a valid inception</p> <p>the doctrines of waiver and of estoppel "cannot apply to it.</p>

<p>Action of foreclosure.</p>

<p>Legacy — When not charged upon realty.</p> <p>A legacy to a brother of a married testatrix, not expressly charged by her will upon her land, will not be deemed to have been intended by her to be so charged where her equity of redemption therein was slight and she had not only devised the land to her husband but had also made him her residuary legatee under the customary form of words.</p>

<p>Indemnity — Rights of indemnitors.</p> <p>Where persons indemnified against the charges of a third party, after agreeing with their indemnitors that they shall have full liberty of action to object to all of the charges which are illegal and defend any action brought upon the charges, settle them so that the third party subsequently recovers on them, as upon an account stated, against the indemnitees, the latter cannot recover over of their indemnitors as the indemnitors have not been given adequate ' opportunity to object to and contest the charges, within the meaning of the agreement.</p>

<p>Motions- to continue preliminary injunctions. The opinion states the material facts.</p>

<p>Motions for writs of mandamus. The opinion states the facts.</p>

<p>Motion for the taxation of a bill of expenses for the services of a clerk to commissioners of estimate.</p>

<p>Injunction — Breach, of a contract to employ none but the members of a certain union — Remedy at law.</p> <p>The court will not interfere by injunction in the case of a builder’s breach of his agreement with a labor union to employ none but its members for the cleaning and pointing of stone on his jobs. The labor union has an adequate remedy at law and that remedy is the same as that of any employee wrongfully discharged.</p>

<p>Action upon a verbal guaranty. Motion for -a new trial.</p>

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

<p>Action to recover a penalty provided by section 1222 of the Greater New York charter (L. 1897, ch. 378), for violation of section 134 of the Sanitary Code.</p>

<p>Replevin — Defendant’s undertaking on reclaiming chattel covers plaintiff’s costs.</p> <p>An undertaking given in replevin by the defendant, in order to retain the chattel, and conditioned among other things for the payment to the plaintiff of such sum “ as may for any cause be recovered ” against the defendant covers the plaintiff’s costs of the action.</p>

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

<p>Injunction — Refused taxpayer when inequitable.</p> <p>Although the rapid transit commissioners of the city of New York have, in constructing the rapid transit tunnel in Park avenue between 34th and 42d streets, unjustifiably deviated from the routes and general plan of construction theretofore adopted by them and have built the eastern branch tunnel within seven feet of the house line instead of thirty-seven feet as shown on the plan, a taxpayer will not be permitted to enjoin their operations, pending his action, where it is apparent that, because of the advanced stage of the work, it will cost the city no more to complete the tunnel than it would to fill it up properly if abandoned, and that to abandon it would necessitate! building another tunnel, farther west, which would cause taxpayers in general an enormous loss.</p>

<p>This action is brought to compel the defendant to reassign to the plaintiff the three-fourths interest in certain patents obtained through an assignment by the plaintiff to him, of that interest in an invention; and also for damages claimed to have been suffered by the plaintiff, because of the defendant’s neglect and refusal to perform his contract to form a company of $200,000 stock, and to provide $50,000 worldng capital for the manufacture of folding paper starch boxes under said patents.</p>

Action of interpleader. The plaintiff had on deposit a fund of $7,067.32, Belonging to the Supreme Council of the Order of Chosen Eriends, a fraternal beneficiary association originally incorporated in 1879, and subsequently reincorporated in 1899, under the laws of the State of Indiana. This fund, being a part of what was known in- said order as the “ Belief Fund,” has been deposited in court, and the claims of the several defendants thereto await determination.

Action to compel the determination of a claim to real prop* irty, pursuant to the provisions of the Code, section 1638, etc.

<p>Motion to continue an injunction pendente lite.</p>

<p>New York city — Civil Service — Buie 35.</p> <p>A person, who had stood at the head of the eligible list for appointment as searcher in the tax department of the city of New York was summarily discharged at the end' of his probationary term, although his conduct, capacity and fitness were satisfactory to the department, while another searcher, appointed a month later and performing similar duties, was not discharged at -the end of bis probationary term.</p> <p>Held, that in view of Rule 35, of the city civil service rules, the discharge was unauthorized.</p>

Motioit by defendant security company for an order staying and enjoining plaintiff from noticing the action for trial, and from taking any other proceedings until she shall have brought in court the defendant Farrell. The opinion states the nature of the motion.

This action is brought by the plaintiffs to obtain an injunction restraining the defendant from executing a warrant of dispossession obtained by him, as landlord, in summary proceedings against these plaintiffs as tenants.

Action brought to set aside the award of an arbitrator on the alleged ground that he has erred in his conclusions of law. The defendant demurs, on the ground that the complaint does not state facts sufficient to constitute a cause of action.

<p>Condemnation — Terms o£ discontinuance as affected by Code C. P., ■ § 3374.</p> <p>Where a county discontinues its proceeding to condemn lands for a site for a new courthouse before commissioners have been appointed to ascertain the compensation to be made to owners of the property taken therefor, the court can impose upon the county only the taxable costs of the parties who appeared, the costs of motions and the compensation of an infant defendant’s guardian a4 litem.</p> <p>The phrase in Code C. P., § 3374, relative to a discontinuance, “ and upon such other terms and conditions as the court may prescribe”, does not authorize it to compensate parties who, while the proceeding was pending during a period of three months, incurred counsel fees and expenses, lost tenants and rents, and in some cases hired other property in expectation of .being compelled by the county to vacate.their own.</p>

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

Motion to punish respondent for contempt in failing to reinstate the applicant, pursuant to peremptory writ of mandamus.

<p>New York city — Its lands may be assessed for benefit, but not more than other lands.</p> <p>Under the charter of the city of New York (L. 1897, ck. 378, § 995)' its lands may be assessed for benefit in the same manner as those of other owners but, where no part of an assessment for a street opening is assessable on the city at large, an assessment cannot stand where park lands of the city, not fronting on the street and only indirectly benefited, are assessed according to their area much more than other lands which by the improvement have acquired new or increased easements of light, air, and access.'</p>

<p>New York city — Special hack stands, when, a nuisance.</p> <p>In view of the fact that a public hack stand has existed for some years in front of “ Rectors ” hotel in that part of Broadway, Manhattan, known as Long Acre square, the city of New York has no power, upon the consent of the hotel proprietors, subsequently to license three special hack stands in front of the hotel and along the curb.</p> <p>Such an additional obstruction of the street is under the circumstances not justified by public convenience, and is a nuisance.</p> <p>The rights of the hotel proprietors in the street are no greater than those of the special hackmen.</p>

<p>Action- by receiver of insolvent national bank against a stockholder to recover upon statutory liability.</p>

<p>life insurance — Proof under a general denial — Endowment policy —■ Delivery of an assignment—Assignee not presumed to be fictitious — Consideration.</p> <p>Under an answer by which a life insurance company denies that it has any knowledge or information sufficient to form a belief as to whether the plaintiff’s intestate was the owner of the endowment policy upon which her administrators sue, the company may show 'as a defense that the policy was assigned by the insured to a third person before the intestate had acquired any rights in it.</p> <p>An endowment policy, payable to the wife or children should the insured die before a period of thirty years but payable to him should he survive the period, is to the extent of his interest assignable by him; and he may assign it to one having no insurable interest in his life and the policy itself need not be delivered with the assignment.</p> <p>Assignments filed with the company held to amount to a delivery to the 'assignee.</p> <p>In the absence of any proof the court will not assume that the assignee was a fictitious person.</p> <p>Assignments, having scroll seals and reciting that they were made for value received, must, in the absence of proof to the contrary, be deemed to have been made for a good consideration.</p>

<p>Action in ejectment.</p>

<p>This is an action brought by the plaintiff as assignee by mesne conveyance from the trustee in bankruptcy of William J. Madden, to declare void, as made in fraud of creditors, and to set aside, as made by way of preference, an assignment by William J. Madden to Matilda L. Madden, his wife, within four months prior to his adjudication as a bankrupt, of three contracts entered into by him (Madden) with the Equitable Life Assurance Society of the United States.</p> <p>On or about the 3d day of February, 1893, 15th day of May, 1899, and the 18th day of December, 1899, William J. Madden entered into three certain contracts with the defendant The Equitable Life Assurance Society of -the United States, under the terms of which he became entitled to renewal commissions accruing in each year during the life of the many policies of life insurance, written by him thereunder. On the 19 th day of July, 1900, said William J. Madden, who was indebted to his wife, the defendant Matilda L. Madden, in the sum of $2,585, assigned to her his right and interest in the aforesaid contracts and to the renewal commissions accrued and thereafter to accrue thereunder.</p> <p>On the 3d day of August, 1900, said William J. Madden was on his own' petition to the United States District Court, Eastern District of New York, adjudged a bankrupt and Edward Butcher, Jr., was on the 23d day of August, 1900, appointed trustee of his estate. William J. Madden assigned said contracts to his trustee in pursuance of an order of the said District Court, dated December 29, 1900, which directed him so to do, and made the following reservation: “And the court not passing upon or de-</p> <p>termining the alleged right or interest, if any, of the said Matilda L. Madden in the said three contracts.” On appeal this order was affirmed (49 O. O. A. 83). On the 14th day of October, 1901, the trustee in bankruptcy sold at public auction the interest of the defendant William J. Madden in said contracts to one James S. Clem who in turn assigned to the plaintiff.</p> <p>The complaint in the action set out that the assignment by William J. Madden to the defendant Matilda L. Madden was made “ with the intent and purpose on his part to hinder delay or defraud his creditors,” and was therefore void; and in the same count the complaint further set forth that the assignment was made within four months of the adjudication in bankruptcy of said William J. Madden “ to the defendant Matilda L. Madden, his wife, who was then one of his creditors,” and was therefore voidable as a preference.</p> <p>Before any proof was put in, the defendant Matilda L. Madden moved to dismiss the complaint on the ground that the inconsistency between the two or more material allegations contained in the alleged single cause of action in the complaint was fatal, since both could, not be true as matter of fact and either was essential to make out a sufficient case. On the trial the court ruled that the plaintiff had shown that the assignment was not made in fraud of creditors.</p>

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

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

<p>Action for a balance of salary.</p>

<p>Partition — Bights determinable therein — Irregularities in a sheriff’s sale of realty cured by lapse of time — Inchoate right perfected under the doctrine of relation.</p> <p>Since the passage of Code C. P., § 1543, the Supreme Court may, in an action of partition, determine not only the rights of cotenants as between themselves, but also those of a stranger to the title, claiming as assignee of a sheriff’s certificate of a sale of the premises made under an execution.</p> <p>Where forty-five years have elapsed since the sale it will not be permitted to be invalidated by the fact that the sheriff sold under an executipn which incorrectly stated the date when the judgment against the premises was docketed in the county where they were situated, nor by the further fact that he sold the premises as a whole when he° should have sold them in parcels.</p> <p>Where more than forty years have elapsed since the sheriff issued a certificate of sale to the purchaser and since the death of the latter intestate, and no administrator of his has ever demanded a deed, the sheriff’s successor in office may within Code O. P., §§ 1472, 1473, lawfully execute a deed to the assignee of the heirs of the owner of the certificate and that deed will relate back to the time of the sale.</p>

<p>Habeas corpus proceedings.</p>

<p>Motion to compel a party to accept a notice of appeal.</p>

<p>Motion for peremptory mandamus.</p>

<p>Contempt, criminal — "Violation of an injunction.</p> <p>Where an owner and bis contractor have been enjoined pendente lite by the Supreme Court from interfering with or tearing down the leasehold of the tenants of the owner, his subsequent recovery of possession in dispossession proceedings in the proper Municipal Court does not authorize him to proceed with the work, and where he does so both he and his contractor are guilty of a criminal contempt under Code C. P., § 8,- subd. 3, in having willfully disobeyed the lawful mandate of the Supreme Court.</p> <p>In eases of criminal contempt it is unnecessary to show injury to any right or interest of plaintiff. „</p>

<p>Motioh for a writ of habeas corpus.</p>

<p>Motion to compel payment of insurance money to sheriff to be applied on an unsatisfied judgment against beneficiary.</p>

<p>Pleading — Denial of any knowledge sufficient to form a belief not sham.</p> <p>An answer, denying any knowledge or information sufficient to form a belief as to a material allegation of the complaint, raises an issue and cannot be stricken out as sham.</p> <p>The court cannot say that such a denial is untrue merely because the party making it presumably had sufficient knowledge absolutely to deny the allegation if untrue.</p>

<p>Bill of particulars — Divorce.</p> <p>A wife, charged by her husband with adultery, is entitled to a bill of particulars showing with precision the time, place and circumstances of each of her alleged acts of adultery.</p>

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

<p>Motion to vacate and set aside a judgment and the decision on which it was entered.</p>

<p>New York city—Appointment and term of a coroner’s physician.</p> <p>Each coroner of the city of New York has a right to appoint a coroner’s physician and. his term is the same as that of that coroner.</p> <p>Therefore, where the position of the coroner is abolished by law the term of the physician ends and the municipal civil service commissioners have no right or power thereafter to place his name on the preferred list of suspended employees or certify it for an appointment to a vacancy.</p>

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

This is an action for libel. The defendant demurs on the ground that the complaint fails to state facts sufficient to constitute a cause of action.

<p>Attorney — Has no lien in supplementary proceedings for his costs therein — Proceedings when not continued that he may recover costs—Effect upon a judgment of not appointing a guardian ad litem for an infant defendant.</p> <p>An attorney for a creditor in proceedings supplementary .to an execution upon a judgment has no lien for costs.</p> <p>Where the judgment is satisfied pending such proceedings and the judgment creditor is not shown to be insolvent, the proceedings will not be kept alive to the end that the attorney for the said creditor may recover his costs of the judgment debtor.</p> <p>A failure to appoint a guardian ad Utem, for an infant defendant makes a judgment subsequently recovered against him voidable but not void.</p>

This is an action to partition a farm in Ancram, H. Y., which was owned by Catharine Pinkie at the time of her death in-1879.

Tin's is an application for a peremptory writ of mandamus, requiring John ET. Partridge, as police commissioner of ETew York, to reinstate the relator as a detective-sergeant in the central office bureau of detectives, and to certify and transmit to the municipal civil service commissioners the pay-roll for the month of July, 1902, containing the name of the relator, and showing his right to a salary as such detective-sergeant for that month.

<p>Motion to compel the purchaser upon a judicial sale to complete his purchase.</p>

Action for money deducted by the board of education from the salary of a teacher in the public shools of the city of New York on account of absence from duty on school days.

Action brought by the plaintiff against the defendant, a mutual life insurance association conducting business upon the co-operative or assessment plan, to recover $2,500 damages which it is alleged have been sustained by the plaintiff as the result of the defendant’s cancellation of the certificate of membership, upon his refusal to pay the bi-monthly assessment, known as mortuary call, Eo. 96, dated February 1, 1898.

Suit to foreclose a mortgage. The mortgage covered a tract, and after it was given the mortgagor made -a map of the tract, dividing it into numbered plots and laying out upon it a system of streets or roads. Subsequently the mortgagor entered into a written agreement with the defendants Hudson or their predecessors in title to convey to them plot No. 6 as shown on the said map.

<p>Appeal from judgment and order of the General Term of the City Court, affirming a judgment of the Special Term upon a demurrer to defendant’s answer.</p>

<p>Appeal from judgment of the General Term of the City Court, affirming a judgment in favor of the defendant, entered upon the verdict of a jury and an order denying plaintiffs’ motion for a now trial.</p>

<p>Appeal by defendant from a judgment of the General Term of the City' Court, affirming a judgment in favor of the plaintiff, entered upon the verdict of a jury, and affirming an order denying defendant’s motion for a new trial.</p>

<p>Appeal by the defendant from a judgment and order of the General Term of the City Court of the city of Few York, affirming a judgment of the Trial Term of said court.</p>

<p>Appeal by the defendants from an affirmance hy the General Term of the City Court of the city of Eew York of a judgment rendered by a jury at a Trial Term of said court.</p>

Appeal by the defendants from an order of the General Term of the City Court of the city of New York, affirming an order of the Special Term, denying a motion to vacate an order for the examination before trial of two of the defendants.

<p>Appeal by the plaintiff from a judgment and order of the General Term of the City Court of the city of New York, reversing a judgment rendered by a jury at a Trial Term of said court.</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p>Appeal from a judgment and order of the General Term of the City Court of the city of New York, affirming the judgment of the Trial Term, in favor of the plaintiffs.</p>

<p>Appeal from an order and judgment of the General Term of the City Court, affirming a judgment of the Trial Court, rendered in favor of the plaintiff.</p>

Appeal by the defendants from an affirmance by the General Term of the City Court of the city of Rew York, of a judgment rendered by a jury at Trial Term of said court.

<p>Appeal from a judgment rendered in favor of the plaintiff, for the' sum of $49.55, in the Municipal Court of the city of Eew York, second district, borough of Manhattan.</p>

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

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

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

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

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

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

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

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

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

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

<p>Appeal from a judgment in favor of the plaintiffs, rendered in the Municipal Court of the city of Xew Tork, second district, borough of Manhattan.</p>

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

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

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

<p>Appeal from a final order and judgment in favor of the landlord, rendered in the Municipal Court of the city of Eew York, third district, borough of Manhattan.</p>

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

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

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

<p>Appeal by both parties from an order made herein by the Municipal Court of the city of Mew York, eleventh district, borough of Manhattan.</p>

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

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

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

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

<p>Appeal from an order of the Special Term, denying plaintiff’s motion to compel the defendant to accept a notice of appeal served, as it is alleged, too late.</p>

<p>Appeal from so much of a judgment as dismisses one of two causes of action.</p>

<p>Appeal from an order setting aside a verdict in favor of plaintiff and granting a new trial.</p>

Appeal from a judgment entered in favor of plaintiff, rendered upon the verdict of a jury, and from an order denying a motion for a new triah

<p>Appeal from a judgment in favor of plaintiffs, rendered upon a verdict directed by the court at Trial Term, and from an order denying defendant’s motion for a new trial.</p>

<p>Appeal from an interlocutory judgment overruling demurrers to a complaint.</p>

<p>Appeal from judgments in favor of plaintiffs, entered upon verdicts of a jury, and from orders denying motions for a new trial.</p>

<p>Appeal from a judgment entered upon the decision of a justice at a trial without a jury in favor of the plaintiff, and from an order denying a motion for a new trial.</p>

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

<p>Appeal from a judgment entered upon the decision of the court at a trial had without a jury; the decision in favor of the plaintiff.</p>

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

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

<p>Appeal from a judgment entered upon a verdict.</p>

<p>Appeal from three several orders of the Special Term, the major one of which was entered March 14th prox., the other two being an order resettling an order, and the order as resettled.</p>