Volume 39 — New York Appellate Division Reports

Appeal by the plaintiff, Francis T. Holder, 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 26th day of November, 1898, upon the decision of the court rendered after a trial before the court, without a jury, at the Westchester Trial Term, dismissing the plaintiff’s complaint upon the merits.

Appeal by the defendant, Louis W. Spangehl, 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 decision of the court rendered after a trial at the Kings County Special Term awarding the plaintiff a separation from the defendant, her husband, and awarding the plaintiff the custody of a child of the marriage, together with alimony, costs and an extra allowance.

Motion by the defendant, Thorndike Saunders, for a reargument of an appeal by said defendant from a judgment of the Supreme Oourt in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of December, 1898, upon the decision of the court rendered after a trial at the Kings County-Special Term.

Appeal by Elizabeth G. Wheelwright, individually and as trustee-under the last will and testament of Benjamin F. Wheelwright, deceased, from so much of a decree of the Surrogate’s Court of Hew York county, entered in said Surrogate’s Court on the 12th ■day of October, 1898, as reads as follows : “ And it appearing that, by the true construction of the said Last Will and Testament of Benjamin F. Wheelwright, deceased, the said trust estate became vested at the death of the…

Appeal by the defendant, Jesse S. Nelson, from an order of theSuprerne 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 January, 1899, denying the defendant’s motion to vacate an order for his arrest, theretofore granted in the action.

Appeal by the defendant, Jesse S. Nelson, 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 January, 1899, denying the defendant’s motion to vacate an order for his arrest, heretofore granted in the action.

Appeal by The Village of North Pelham from an interlocutory judgment of the Supreme Court in favor of Harriet A. Greer, entered in the office of the clerk of the county of Westchester on the 14th day of January, 1899, upon the decision of the court, ren•dered after a trial at the Westchester Special Term, appointing commissioners under the provisions of section 159 of chapter 414 of the Laws of 1897, known as the Village Law, to assess the damage sustained by the petitioner…

Appeal by the plaintiffs, Alexander E. Brace and another, from a judgment of the Supreme Court in favor of the defendants William Holden and Charles Holden, entered in the office of the clerk of the county of Fulton on the 3d day of November, 1898, upon the decision of the court rendered after a trial before the court without a jury at the Fulton Trial Term.

Certiorari issued out of the Supreme Court and attested on the 28th day of December, 1898, directed to the board of contract and apportionment of the city of Albany, N. Y., and Thomas J. Van Alstyne and others, constituting said board, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had under Law No. 54 of the City Laws of Albany, providing for the construction of a sewer in a public street of the…

Appeal by the defendant, the Adirondack Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 7th day of November, 1898, upon the decision of the court rendered after a trial at the Albany Special Term.

Appeal by the defendants, Warren R. Wilson and another, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 11th day of October, 1898, upon the report of a referee, except from so much of said judgment as adjudges that the copartnership existing between the plaintiff and the defendants from the 1st day of December, 1892, to the 1st day of December, 1897, under the firm name and style of…

<p>Appeal by the plaintiff, Marion Cartwright, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Albany on the 27th day of April, 1898, upon the report of a referee.</p> <p>The plaintiff is the owner of a lot in the city of Cohoes upon which is erected a four-story double brick building. The plaintiff has erected at a distance of about twelve feet from said brick building a brick privy or closet some twenty-seven or twenty-eight feet in length, subdivided into eight compartments, which since its erection has been maintained for and constantly used by the tenants of such building; such privy is within twelve feet of the doors and windows of such four-story brick building, and within twenty-five feet of the doors and windows of other buildings used for residence and business purposes.</p> <p>These vaults or closets have three openings into a sewer; no water passes through them, except in times of rain, when the water from the roof of the main building in front passes through.</p> <p>Fecal and other matter accumulates in them, and it has been the custom of the plaintiff to clean them out about three times a year.</p> <p>By chapter 661 of the Laws of 1893 the Legislature has conferred upon local boards of health the power to make orders and regulations for the preservation of life and health, and the execution and enforcement of the Public Health Law.</p> <p>Pursuant to such law the board of health of the city of Cohoes, on the 7th day of August, 1895, adopted a regulation or ordinance providing in part as follows : “Ho owner, lessee, occupant or agent of any building or premises shall maintain within the city any privy vault or cesspool made or built in the earth within twenty-five feet of any door or window of any residence upon such premises, or any residence upon adjoining premises, and such maintenance of any privy or privy vault shall be declared to be a public nuisance and condition detrimental to life and health. Any or all privies, privy vaults and cesspools existing within the city shall be removed or filled up by the owner, lessee, occupant, agent or other person having charge or control of the premises on which they exist, whenever the same becomes a nuisance and condition detrimental to life and health, by rendering the soil, air or water impure, injurious, unwholesome, or constitute a condition of any kind detrimental to life and health.” This regulation was numbered regulation or rule 26, and was duly published in the newspapers published and circulated within the city of Cohoes.</p> <p>Upon the 26th day of October, 1895, notice was served upon the plaintiff by the health officer of the board of health requiring her to abate and remove such nuisance within five days after such notice.</p> <p>After receiving this notice the plaintiff caused such vaults to be cleaned out by removing all fecal matter therefrom, but continued to use them as theretofore.</p> <p>Thereafter, on the sixth day of Hovember, the board of health passed a resolution whereby it ordered that the plaintiff be cited to personally attend a meeting of the board of health on the fourteenth day of Hovember, at a time and place specified therein, to show cause why proceedings should not be taken to declare the privy a nuisance and condition dangerous to health, and also in violation of the order and regulation Ho. 26, hereinbefore referred to, and to abate the same.</p> <p>A copy of this resolution was served upon the plaintiff on the eighth day of November. The plaintiff did not appear before the board of health on the fourteenth day of November.</p> <p>The board, after an examination of witnesses in relation thereto, adopted a resolution declaring said privy to be a nuisance and detrimental to life and health, and also in violation of the order and regulation known as rule or regulation No. 26 of the board of health, and directed the health officer to notify the owner of said privy or closet of the adoption of such resolution, and required her to abate such nuisance and to comply with the requirements of rule 26 within five days, and in the event of the owner failing to abate such nuisance and to comply with the requirements of said order and regulation No. 26, the health officer was directed “ to enter upon the premises and perform such work as may be necessary to abate and suppress said nuisance, and render said privy vault no nuisance and condition detrimental to life and health, or not in violation of said order or regulation.”</p> <p>Such resolution or order was served upon the plaintiff on the 15th day of November, 1895. The plaintiff neglected and refused to comply with the order of the board of health, and on the twenty-fifth day of November the health officer of the board of health entered upon the premises of the plaintiff, opened the doors of said privy, took up the floors, threw chloride of lime into the vaults and filled them up with earth.</p> <p>The plaintiff thereupon commenced this action, demanding judgment that the defendants, their agents and servants, be forever restrained from “ removing, tearing down or interfering in any way with said brick water closet building or buildings, and closing and filling up such vault or vaults, or otherwise wasting or in juring the same, and from in any way or manner entering in and upon said land and premises to interfere with said brick water closet or vault or vaults.”</p> <p>The plaintiff obtained a temporary injunction restraining the defendants as prayed for in the complaint, and thereafter removed the earth from said vaults or closets and proceeded to use and allow them to be used as theretofore.</p> <p>The action was referred to a referee who made his report wherein, among other things, he directed judgment against the plaintiff, dismissing her complaint and vacating the injunction, and from the judgment so directed this appeal is taken.</p>

Appeal by the appellant, Winfield TomjDkins, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 24th day of December, 1896, upon the decision of the court rendered after a trial at the Delaware Special Term.

Certiorari issued out of the Supreme Court and attested on the 14th day of December, 1898, directed to the common council of the city of Kingston, N. Y., commanding it to certify and return to the office of the clerk of the county of Ulster all and singular their proceedings had in relation to the special assessments for local improvements on Jarrold street in said city of Kingston.

Appeal by the City National Bank of Binghamton, N. Y., and others from a decree of the Surrogate’s Court of Broome county, entered in said Surrogate’s Court on the B:li day of March, 1898, directing a sale of certain real estate belonging to the decedent for the payment of his debts, with notice of an intention to bring up for review upon such appeal an intermediate order entered in said Surrogate’s Court on the 22d day of February, 1893, directing that a citation issue to…

Appeal by the claimant, Jerome S. Warner, individually and as administrator, etc., of Stebbins Warner, deceased, from a decree of the Surrogate’s Court of the county of Chenango, entered in said Surrogate’s Court on the 19th day of September, 1898, denying the claimant’s motion for a decree directing Marcia S. Bartle, as administratrix, etc., of David W. Bartle, deceased, to pay the judgment upon which the claimant’s claim is based, without prejudice to an action or an…

Appeal by the plaintiff, Alden S. Swan, from a judgment of the County Court of Sullivan county in favor of the defendant, entered in the office of the clerk of the county of Sullivan on the 4th day of August, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of June, 1896, denying-the plaintiff’s motion for a new trial made upon the minutes.

• Appeal by the defendant, Catherine Sullivan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 4th day of October, 1898, upon the decision of the court rendered after a trial at the Chemung Special Term.

Appeal by the defendants, Harriet Biglow and Louisa Wooster, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 18th day of July, 1898, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an •order made at the Clinton Trial Term, bearing date the 14th day of April, 1898, and entered in said clerk’s office, referring the issues in, the…

Appeal by the plaintiff, Israel P. Grant, as surviving partner of tlie late firm of Grant & De Waters, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 26th day of August, 1898, upon the decision of the court rendered after a trial at the Broome Special Term, awarding to the defendant the possession of a certain engine and boiler together with damages for their detention.

Appeal by the defendant, Edward ¡N. Page, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 4th day of February,. 1898, upon the decision of the court rendered after a trial at the Albany Trial Term (certain specific questions having been submitted to the jury) enjoining the defendant from proceeding with the construction of a dam in the most southerly channel or sprout of the Mohawk river, below…

Appeal by the relator, The City of New York, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 11th day of November, 1898, denying the relator’s motion for a peremptory writ of mandamus, directed to Timothy L. Woodruff, as Lieutenant-Governor of the State of Hew York, .and others, composing the Commissioners of the Land Office of the State of Mew York, requiring them to insert in letters…

■ Appeal by the defendant, Mary S. Eveline, from an order of the Supreme Court,.made at the Saratoga Special Term and entered in the office of the clerk of the county of Saratoga on the 23d day of January, 1899, denying the defendant’s motion for an order requiring the plaintiff to give security for costs.

<p>Insolvent firm —• its receipt of two drafts aggregating more than its claim — its title is fraudulent to the extent of the excess—proof that a bank is a bona fide holder for value. ' ^</p> <p>A firm, to which two drafts for §1,225.98 and $1,018.81 respectively are tendered in satisfaction of an overdraft upon it of §1,749.79, with a request that the balance of §495 be placed to the sender’s credit, may properly receive the larger draft without disclosing its insolvent condition, but is bound to make such disclosure as to the smaller draft, part of which is, in effect, a loan, and its failure to do so renders its title to the smaller draft fraudulent to the extent of the sum of §495.</p> <p>The fact that the firm could not divide the smaller draft so as to repay the sender the §495 does not alter the case.</p> <p>Proof that a bank received the smaller draft from the firm and credited it on its books in payment of ai^ existing indebtedness due to it from the firm, does not, in the absence of proof that it was expressly agreed between the firm and the bank that the draft should be received in payment and extinguishment of the firm’s debt, establish that the bank was a bona fide holder for value of the draft, in view of the rule that the burden is upon a bank claiming to be a bona tide holder for value to establish all the facts necessary to give it that character.</p>

Motion by the plaintiff, Richard F. Hutchinson, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the defendant, rendered by direction of the court after a trial at the Niagara Trial Term.

Appeal by the defendant, The Village of Lyons, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the comity of Wayne on the 1st day of September, 1898, upon the report of a referee.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 26th day of July, 1898, upon the verdict ■of a jury for $4,000, and also from an order entered in said clerk’s ■office on the 26th day of July, 1898, denying the defendant’s motion for a new trial made upon a case containing exceptions.

<p>Receiver of a non-resident bank — his right to enforce against a stockholder in the State of New York his statutory liability for the debts of the bank.</p> <p>A bank whose domicile was in a foreign State, by the law of which a contingent and secondary liability existed on the part of the stockholders of a bank for its debts to the amount of the stock held by them, such liability becoming, in ■case of the insolvency of the bank, a part of its assets to be enforced for the benefit of its creditors, after all other assets of the bank had been exhausted, became insolvent, and there was appointed by the court of the State of its domicile a receiver thereof, who, after converting the entire assets of the bank and applying them upon its indebtedness, reported the amount of the deficiency to the court of that State, which thereupon made an order finding and adjudging the amount of the several deficiencies upon the obligations of the bank, and directing that an assessment be levied upon the several stockholders of a certain percentage upon the par value of their stock to make up the deficiency of its assets to pay its indebtedness.</p> <p>Held, that such receiver might maintain an action in the State of Hew York against a stockholder of the bank to recover the amount so assessed upon his stock, it not appearing that any creditor of the bank in the State of New York had made any claim upon said stockholder, or that there were creditors in the. State whose rights would he impaired or injuriously affected by the recovery of the assessment against such stockholder.</p> <p>The receiver, in such case, is a quasi assignee of the corporation by virtue of a-, judgment of a sister State, which, so far as it is efficient in that State, is entitled to full faith and credit in the State of New York under the provisions of the Constitution of the United States, declaring that “Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State.”</p> <p>Such action is not one “to administer a punishment imposed upon an offender against the State,” but is an action simply to enforce a private right secured under its laws to an individual — the liability of the stockholder being, in its-nature, contractual.</p>

<p>Appeal by the defendant, George Gaul, from a judgment of the County Court of Erie county in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 26th day of July, 1898, upon the verdict of a jury for six cents, with notice of an intention to bring up for review upon such appeal an order bearing date the 5th day of July, 1898, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>In the plaintiffs’ complaint it is alleged that the defendant, on the 4th day of September, 1897, at the town of Hamburg, “forcibly broke into and wrongfully and unlawfully entered upon the lands occupied by and in rightful possession of these plaintiffs, and, with team and plow, wrongfully and unlawfully dug up and plowed a furrow about three hundred feet long, extending east and west upon and across the said premises occupied by and in possession of these plaintiffs.”</p> <p>The answer of the defendant alleges that he is a tenant in possession of a farm owned by Conrad Gaul, lying adjacent to the premises mentioned in the complaint; “ that there exists appurtenant to the premises so occupied by this defendant an easement to enter upon the premises in possession of the plaintiffs mentioned in the said complaint, and clear out, repair and keep in order a certain ditch thereupon, which ditch drains the premises occupied by the defendant as aforesaid; that all acts of defendant performed upon the premises occupied by the plaintiffs were done in pursuance of his rights derived from said Conrad Gaul under said easement, and defendant was fully authorized by said Conrad Gaul to so enter upon said premises and clear out and repair said ditch pursuant to said easement.”</p>

Appeal by the defendant, John F. Dorthy, from an order of the ¡Supreme Court, made at the Erie Special Term and entered in the ■office of the clerk of the county of Erie on the 12th day of August, 1S9S, imposing certain terms as a condition of granting said defendant’s motion for a resale.

Appeal by the Board of Supervisors of Erie county from an order of the County Court of Erie county, entered in the office of the clerk of the county of Erie on the 31st day of May, 1898, directing the paid' board of supervisors to refund to the petitioner the sum of forty-three dollars and fifty-four cents, being the proportionate part of taxes paid by her on property purchased by her with pension money, and exeirqit from taxation.

Appeal by the plaintiff, John Grobe, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 9th day of September, 1898, upon the decision of the court, rendered after a trial at the Erie Special Term, sustaining a demurrer interposed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

<p>Negligence — a beetle head made of green Umber in which a hard-wood handle works loose allowing the head to come off and injure a fellow-workman — mechanics who made the beetles may testify as to the fitness of the material.</p> <p>In an action brought against his employers by a workman who, while employed in a sewer trench, was struck and injured by a beetle head which came off its handle while it was being used by a fellow-workman in driving timber along the sides of the trench, evidence that the superintendent in charge of the work had directed that the beetle heads designed for such use be made of elm timber which was so green that the sap ran from it, and that the effect of seasoned hard-wood handles working in the timber would be to enlarge the holes in which they were inserted and cause the handles to become loose, is sufficient to support a verdict that the defendants did not use due diligence in furnishing proper and safe beetles, and that, in consequence thereof, the accident happened.</p> <p>Mechanics employed by the defendants to make the beetles are competent to testify whether the material used was fit for the purpose.</p>

<p>The Justice’s Court of the city of Auburn is a Justice’s Court, not a “ local court,” as defined in the Constitution — its jurisdiction extends to persons served with process anyiohere in Cayuga county.</p> <p>It was not the intention of the Legislature in enacting section 62 of the charter of the city of Auburn (Laws of 1879, chap. 53, as amd. by Laws of 1881, chap. 182) to make the court held by the justice of the peace of that city a “local court"' within the meaning of the Constitution, and to limit its jurisdiction to such persons as might be served with process in the city of Auburn, but to confer upon such justice the same jurisdiction as that exercised by the justices of the peace of towns, except as limited by the charter, which jurisdiction extends to persons served with process anywhere within the county of Cayuga. Under section 18 of article 6 of the Constitution, as amended in 1869, which was in force when the charter of the city of Auburn was enacted, it was competent for the Legislature to confer such jurisdiction upon such justice of the peace.</p>

Appeal by the defendants, Charles H. Buswell and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 20th day of May, 1898, upon the verdict of a jury for $3,500, and also from an order bearing date the 17th day of May, 1898, and entered in said clerk’s office denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Joseph Cauffman, as guardian of David Gauffman, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 29th day of July, 1898, upon the decision of the court rendered after a trial at the Monroe Special Term overruling the demurrer interposed by said defendant to the plaintiff’s complaint.

Appeal by the defendant, C. Antoinette Stewart, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 3d day of September, 1898, upon the decision of the court, rendered after a trial at the Monroe Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.

<p>Appeal by the defendant, Mayor, Lane & Co., from an order of the Supreme Court, made at the Monroe Trial Term and entered in the office of the clerk of the county of Monroe on the 4th day of August, 1898, denying the defendant’s motion for a new trial made upon the minutes, the jury having previously rendered a verdict in favor of the plaintiff.</p> <p>"In 1896, Barr, Reynolds & Co. were copartners, and as such were ■carrying on the business of plumbers at the city of Rochester, the plaintiff being a member of that firm. The defendant, a corporation, was at the same time doing business at the city of New York, ■as a jobber in plumbers’ supplies, and one Robert T. Eddy was its agent and traveling salesman.</p> <p>In March, 1896, the plaintiff’s firm required certain articles and materials in order to complete an important contract which they had for the plumbing and other work upon an apartment house which was in process of erection at the city of Rochester, and on the ■twenty-third day of the month they entered into negotiations with Eddy, as the defendant’s agent, to purchase the same, telling him that their job “ was very particular, being done for a man that wanted good work and he wanted a first-class job.” Among other articles desired for the purposes of this contract were some tanks for water closets, and a preference was expressed by one of the firm for what was known as the “ Clinton tank.” Eddy stated that the ■defendant did not sell that tank, but that he could furnish one ■equally good made by Louis Lipp & Co. of Cincinnati. Thereafter, .and on the second day of April following, Barr, Reynolds & Co. mailed the defendant an order, which included, among other things, eight water closet tanks. No particular tank was specified, but at the end of the order was added the direction : “ Make no mistake about quality.” The defendant, however, ordered the tanks of Lipp & Co., who thereafter shipped the same to Barr, Reynolds ■& Co., and sent a bill therefor to the defendant. In course of time the tanks were placed in position in the building for which they were purchased, and it was then discovered that they failed to work by reason of some latent defect, and, after a somewhat protracted correspondence between Barr, Reynolds & Co. and the defendant, the tanks were taken down and others substituted in their place.</p> <p>The uncontradicted evidence tends to show that the sale of the tanks was accomplished by a warranty by Eddy as to their quality; that had they answered such warranty they would have been worth four dollars and twenty-five cents each, but that, by reason of their defective condition, they were worth little or nothing, and on the 21st day of June, 1897, the plaintiff, as the assignee of Barr, Reynolds & Co., brought this action to recover damages for a breach of warranty.</p>

<p>Appeal by the plaintiff, Harriet J. Cogswell, from an order of the Supreme Court, made at the Monroe Trial Term and entered in the office of the clerk of the county of Monroe on the 16th day of June, 1898, granting the defendant’s motion for a new trial made upon the minutes, the jury having previously rendered a verdict for $5,000 in favor of the plaintiff.</p> <p>At the time this action was brought the defendant, a domestic corporation, was the owner of a three-story brick building situated on Caledonia avenue in the city of Rochester. The first floor of the building was reached by means of a flight of steps, which extended from the sidewalk to a hall, and in the southeast corner of this hall was a room occupied by the defendant’s president and secretary as an office. This room was separated from the hall by a glass partition, and west of it was another room used as a shop, both rooms having doors which opened into the hall. On the south side-•of the hall was a stairway leading up to the second story, connecting with which was another stairway leading to the third story, and in the northeast corner of the lower hall was an elevator which was used for the purpose of hoisting freight from one part of the build-' ing to another.</p> <p>At the time of the accident which lies at the foundation of this action, one William H. Hutchinson was a tenant of the .defendant, and as such occupied the third and a portion of the second floors of this building. Access to his rooms was obtained by means of the ■common entrance on Caledonia avenue, and the stairways leading from the first to the second and third floors.</p> <p>On the afternoon of the 5th day of December, 1895, the plaintiff started for Mr. Hutchinson’s place of business in order, if possible, to obtain employment. She was not familiar with the building, never having been there before, and upon entering the same inquired of a gentleman whom she met going out where she could find the elevator. The person to whom this inquiry was addressed was unable to answer the same, but directed her to the defendant’s office. She thereupon went to one of the defendant’s rooms where she met a Mr. Smith, who- was in the defendant’s employ in the capacity of a packing clerk, of whom she made a similar inquiry, and Smith at once left his work and started down the hallway towards the elevator, the plaintiff following him. As they walked along, the plaintiff stated to Smith that she wished to see Mr. Hutchinson, and Smith remarked that his office had recently been removed to the second floor.-</p> <p>The plaintiff testified that when they reached the end of the hall she stopped for Smith to open the door of the elevator, which lie did ; that he thereupon turned around so as to face her; that without looking up or down she then stepped through the opening, assuming that the elevator was there, and at once fell to the bottom of the well, receiving injuries which were very painful in their character, and from which it is quite probable she will never entirely recover.</p> <p>The evidence of the plaintiff as to what took place after she entered the building was flatly contradicted in several essential particulars by the defendant’s witnesses, and the issues thus presented were submitted to the jury, which found in favor of the plaintiff. A motion was thereupon made for a new trial on the minutes of the ■court. This motion was granted, and from the order granting the .same this appeal is brought.</p>

<p> Negligence—fall of a ladder, put in place on a roof by direction of a foreman, while in use by an employee ■—assumption of the risk by the employee. </p> <p>A ladder placed upon a roof by a carpenter, employed by persons engaged in altering a building, in order to enable him to adjust a smokestack, which ladder is not attached to the roof, but rests against a cleat which is securely fastened to the roof by spikes, is a mere temporary contrivance and detail of-the work; and where a co-employee, who goes upon the ladder for the purpose of placing a hood upon the smokestack, is injured in consequence of the ladder sliding over the cleat against which it rests, the employers are not liable for such injuries.</p> <p>The fact that the ladder was placed in position under the direction of the employers’ foreman, and that when he directed the inj ured employee to go upon the roof he told him that there was a ladder there and that everything was in readiness, does not alter the question of the employers’ liability, even though the injured employee had no knowledge o£ the defective position of the ladder, and had nothing to do with placing it in that position.</p> <p>Semble, that the situation was obvious, and that the injured employee assumed the risk.</p>

Appeal by the defendant, F. P. Graf, as receiver of the Ohio-Southern Railroad Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 30th day of September, 1898, denying his. motion to set aside the service of the summons in this action on him and for a stay of proceedings.

Appeal by the defendant, The Baltimore and Ohio Southwestern Railroad Company, from so much of an order of the Supreme ‘Court, made at the Erie Special Term and entered in the office of the cleric of the county of Erie on the 2d day of December, 1898, us denies the motion to set aside service of the summons herein on the defendant, The Baltimore and Ohio Southwestern Railroad Company.

Appeal by the plaintiffs, William H. Conger and others, 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 Jefferson •on the 28th day of July, 1897, upon the decision of the court rendered after a trial at the Jefferson Special Term, as adjudges that the house and lot described in the complaint in the action belong to the defendant Cynthia M. Corey under an arrangement between her and her husband,…

<p>Certioran'i to review an assessment — the decision of issues of fact tried by a Special Term is governed by section 1022, Code of Civil Procedure — section 2141 is not applicable to a Special Term decision.</p> <p>Where the issues of fact, raised hy the return to a writ of certiorari issued under section 101 of the charter of the city of Buffalo (Laws of 1891, chap. 105), to review an assessment levied by that city, are tried before a Special Term of the Superior Court of the city of Buffalo, the court should determine such issues in a decision as provided in section 1022 of the Code of Civil Procedure.</p> <p>Section 2141 of the Code of Civil Procedure, providing that upon the hearing of a writ of certiorari “the court * * * may make a final order annulling or confirming, wholly or partly, or modifying, the determination reviewed, as to any or all of the parties,” which relates to the determination upon common-law writs by the Appellate Division, is inapplicable to a case in which a Special Term is required to hear and determine the facts in issue.</p>

Appeal by the petitioner, John H. Foley, from a final order of the Surrogate’s Court of the county of Monroe, entered in said Surrogate’s Court on the 23d day of August, 1898, dismissing his. petition.

Appeal by the plaintiff, Michael Fitzgerald, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oswego on the 21st day of January, 1898, upon the verdict of a jury rendered by direction of the court. The action was commenced on the 8th day of June, 1896, to recover upon a certificate or policy of insurance bearing date on the 5th day of October, 1894, which was issued by the defendant to one Francis Fitzgerald.

Appeal by the relator, Harry Sullivan, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 12tli day of January, 1899, dismissing the writ of habeas corpus issued to inquire into the detention of the relator and remanding him to the custody of the defendant. The facts are not disputed.

Appeal by the defendant, William F. Loud, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 8th day of June, 1897, upon the report of a referee.

Appeal by une defendant, The National Life Association of Hartford, Connecticut, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orleans on the 10th day of March, 1898, upon the decision of the court rendered after a trial at the Orleans Special Term.

Appeal by Mary Ann O’Toole, the purchaser at a sale had in the above-entitled action, from an order of the County Court of Erie county, entered in the office of the cleric of the county of Erie on the 1st day of November, 1898, requiring her to complete her purchase of certain premises sold in an action of partition.

Appeal by the defendant, The Catholic Relief and Beneficiary Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga on the 13th day of May, 1898, upon the verdict of a jury, and also from an order bearing date the 12th day of May, 1898, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Frank S. O’Brien, special guardian of Mary Dwyer and others, infants, from a decree of the Surrogate’s Court of the county of Wayne, entered in said Surrogate’s Court on the 5th day of November, 1898, adjudging among other things that the petitioner, Elizabeth S. O’Brien, has a valid and subsisting lien against the estate of the decedent in the sum of $1,298.01, and directing that, for the purpose of paying such sum, the real estate of the decedent be sold.

Appeal- by the plaintiff, Oora L. Hosford, as administratrix, etc., of Fred Hosford, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 17th day of November, 1898, upon the dismissal of the complaint at the close of the plaintiff’s evidence by direction of the court after a trial at the Monroe Trial Term, and also from an order entered in said clerk’s office on the 9th day of November,…

<p>Appeal by the plaintiff, The President, Managers and Company of the Delaware and Hudson Canal Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 19th day of July, 1897, upon the decision of the court, rendered after a trial at the Erie Special Term, dismissing the plaintiff’s complaint upon the merits.</p> <p>The action was commenced on the 2d day of December, 1895, to set aside and annul a local assessment levied by the defendant upon the property of the plaintiff, for dredging a section of the Buffalo river adjacent to its property in the city -of Buffalo, N. Y.</p> <p>The plaintiff alleges two grounds of complaint against the defendant, upon which it bases its right to recover in this action :</p> <p>First. That the proceedings taken and instituted by the defendant in authorizing and contracting for the completion of the improvement in question, and in levying a portion of the cost thereof upon the property of the plaintiff, were not in compliance with the requirements of the charter of the defendant, but were irregular, illegal and void.</p> <p>Second. That the amount assessed upon plaintiff’s property was excessive, was in excess of the benefits, was inequitable and was not made upon a fair, legal or proper basis, and, therefore, does not constitute a valid assessment upon the plaintiff’s property.</p>

<p>Mew trial — motion therefor on the ground that a decision has not been made within twenty days— Code of Civil Procedure, § 1010, is mandatory.</p> <p>Under section 1010 of the Code, of Civil Procedure, in case a decision is not made by a judge before whom an issue of fact is tried, within twenty days after the final adjournment of the court, either party has a right to move for a new-trial upon that ground; and, in case a decision is not made before the hearing of such motion, the court must grant a new trial unless, in the order denying the motion for a new trial, there is specified a time in which such decision shall be made and filed.</p> <p>The provisions of section 1010 of the Code of Civil Procedure must, when considered in connection with the different language used in section 367 of the Code of Procedure, which it was intended to replace, be regarded as mandatory and not directory.</p>

<p>Appeal by the defendant, James Mitchell, from so much of a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tates on the 6th day of June, 1898, upon the report of a referee as adjudges :</p> <p>“ Third. That the defendant is entitled to have set off and counterclaimed against that amount the sum of $90.66, balance due him from plaintiff on account of his employment by the plaintiff.</p> <p>“ Fourth. That defendant’s claim and cause of action for money loaned to the plaintiff, sought to be established as a counterclaim in this action, did not accrue at any time within six years next before the commencement of this action, and is barred by the Statute of Limitations.</p> <p>“Fifth. It is adjudged that the plaintiff recover of the defendant the sum of $60.75, together with the sum of $137.62, costs as taxed herein, making in all the sum of $198.37, and that plaintiff have execution therefor, and from each and every portion of said paragraphs respectively.”</p>

Appeal by Caroline C. Murphy and others, the next of kin of Mary Ann Crane, deceased, 'from so much of a decree of the Surrogate’s Court of Ontario county, entered in said Surrogate’s Court on the 27th day of November, 1897, as adjudges that a legacy contained in the will of said decedent bequeathing to the Board of Foreign Missions of the Presbyterian Church in the United States of America one-half of the residue of her estate is valid.

Appeal by the plaintiff, Rufus JVI. Choate, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 20th day of June, 1898, upon the decision of the court rendered after a trial at the Erie Special Term.

Appeal by the plaintiff, George H. Perrior, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 16th day of December, 1897, upon the report of a referee. The plaintiff brought an action of ejectment to recover possession of lands occupied by the defendant which the plaintiff claimed to own.

<p> Action against a residuary legatee for money had and received, where the claim arose out of the sale by executors of accounts which were not partnership assets. </p> <p>A surviving partner, who had paid to the executors of the deceased partner, in a settlement of the partnership affairs, moneys for accounts which the executors had no authority to sell, brought an action at law as for, money had and received against the residuary legatee of the deceased partner, who alone had received the benefit of the moneys so paid. The action was tried as. a suit in equity, upon the stipulation of counsel that the disposition of the case should rest upon the equitable rights of the parties rather than upon the technical rules which might be applicable.</p> <p>Meld, on an appeal by the residuary legatee from a judgment in favor of the plaintiff, that the obj ection that the liability of the residuary legatee could not be determined in an action at law was untenable, in view of the stipulation and of the conduct of the trial ■—especially as an action for money had and received has many of the attributes of a suit in equity.</p>

<p>Motioit by the defendant, The New York Central and Hudson River Railroad Company, for a new trial upon a case containing •exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiff, rendered by direction of the court after a trial at the Monroe Trial Term.</p>

Appeal by the defendants, Rudolph F. Rabe and another, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 17tli day of November, 1898, denying the defendants’ motion to change the venue of the action from the county of Erie to the county of New York, upon the ground of the convenience of witnesses.

<p>Action against a firm — a defense that there are partners not made parties must he pleaded — the answer must state their names.</p> <p>In an action to recover upon a note executed in the name of B. H. Kruger & Co. by one Brown, acting under a power of attorney, bearing the signature of E. H. Kruger & Co., the complaint alleged that the defendant "‘Edward H. Kruger is the sole member of the firm of E. H. Kruger and Company.” The answer interposed by the defendant Kruger denied that he was “the sole member of the firm of E. H. Kruger & Company,” and that there ever was such a firm, but upon the trial he admitted the existence of the firm and that he was a member thereof, and that he executed the power of attorney.</p> <p>Held, that his failure to state in his answer the names of the other members of the firm, if any, coupled with his admissions upon the trial, was a practical concession that he was the sole member of the firm;</p> <p>That if there was a defect of parties, it was waived by his failure to raise the objection by answer or demurrer.</p>

<p>Appeal by the defendant, Alice L. Kobbe, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of .the clerk of the county of Jefferson on the 28th day of July, 1898, upon the decision of the court, rendered after a trial at the Jefferson Special Term, overruling said defendant’s demurrer to the plaintiff’s complaint.</p>

Appeal by the defendant, Abram L. Warner, as executor of the last will and testament of Sarah Warner, deceased, from so much of an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 12th day of September, 1898, as overrules said defendant’s answer as frivolous and directs judgment for the plaintiff for the relief demanded in the complaint.

Appeal by the defendants, Mary Mahaney and another, from a judgment of the County Court of Niagara county in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 20th day of July, 1898, affirming a judgment of a justice of the peace of the city of Lockport.

<p>Police power — a municipal ordinance prescribing the weight of loaves of bread to be sold is an unreasonable restraint of trade.</p> <p>An ordinance of the city of Buffalo, providing that all bread baked and sold, or offered for sale, by licensed bakers in that city shall be made into loaves weighing not less than one and one-half pounds, and imposing a penalty for its violation, is an unreasonable exercise of the police power of the municipality, and an unwarrantable interference with the right of individuals engaged in selling one-pound loaves in that city, where it appears that there is a demand for one-pound loaves; that their price and weiglit are conspicuously stamped upon them, and that the price is ratably the same as for larger loaves.</p>

<p>Negligence — a driver of a, covered milk wagon struck by a train at a crossing, the view of which was obstructed — the question of contributory negligence is for the jury.</p> <p>In an action to recover damages for personal injuries sustained by the plaintiff while attempting to pass over a crossing maintained by the defendant, a railroad company, it appeared that the plaintiff was driving slowly in a covered milk wagon, the doors and windows of which were open, and that he was watching for trains; but that, owing to obstructions, he could not, until he was within 30 feet from the first track, see a train approaching from the west; that at that point he could see about 100 feet to the west, and that, as he advanced, his range of vision extended until, at the track, he could see nearly half a mile to the west; that he had almost cleared the track when his wagon was struck by an east-bound train, which was moving at a speed of about 35 miles an hour and had given no signal of its approach.</p> <p>Held, that, under the circumstances, the question whether the plaintiff was guilty of contributory negligence was one of fact.for the jury.</p>

Appeal by the plaintiff, Catharine Stehle, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 7th day of February, 1898, upon the decision of the court rendered after a trial at the Monroe Special Term.

Appeal by the plaintiff, Edward O’Hara, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 10th day of August, 1898, upon the dismissal of his complaint by direction of the court after a trial at the Erie Trial Term.

Appeal by the defendant, The Electric Storage Battery Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of December, 1898, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint.

Appeal by the defendant, John Rivello, from a judgment of the Court of General Sessions of the Peace of the city and county of Mew York in favor of the plaintiff, rendered on the 21st day of June, 1898, upon the verdict of a jury convicting the defendant of the crime of receiving stolen goods.

<p>Appeal by the plaintiff, Bernhard Koenke, 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 1st day of July, 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 defendant, the Fidelity and Deposit Company of Maryland, 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 27th day of October, 1898, upon the verdict of a jury rendered by direction of the court. The action is upon an excise bond given by a corporation known as the Shenandoah Social Club as principal, and this appellant as surety, to the People of the State of New York.

Appeal by Laura A. Talmage, individually and as executrix, etc., of Yan blest Talmage, deceased, and others, from portions of an order of the Supreme Court, made at the blew York Special Term and entered in the office of the clerk of the county of blew York on the 1st day of July, 1898, confirming the report of a referee appointed to take and state the account of Joseph Gillet, as assignee under a general assignment by the members of the firm of Dan Talmage’s Sons for the…

Appeal by the plaintiff, the Schwarzschild & Sulzberger Company, from a judgment of the Supreme Court in favor of the defendant, John J. Mathews, entered in the office of the clerk of the county of Hew York on the 19th day of May, 1898, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the plaintiff’s complaint.

Appeal by the defendant, The Standard Gas Light 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 12th day of December, 1898, upon the decision of the court,, rendered after a trial at the New York Special Term, enjoining and restraining the defendant from so operating its gas works as to emit noxious or offensive odors upon or into plaintiff’s premises, or to-suffer such odors to be…

Appeal by Henry Bischoff, Jr., and Kate M. Jenkins, testamentary guardians under the last will and testament of Benjamin ■L. Brigg, deceased, from so much of a decree of the Surrogate’s Court of ¡New York county, entered in said Surrogate’s Court on the 23d day of June, 1898, as adjudges that said testamentary guardians have no standing in ' court as parties to the proceeding, and strikes out the objections interposed by them to the account herein; also from so much of said…

<p>Appeal by the plaintiff, Yellott D. Dechert, as receiver for the benefit of the creditors of Joseph Ryan, 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 July, 1897, upon the verdict of a jury.</p>

<p>Appeal by the plaintiff, John W. Dunicaa, from a judgment of the Supreme Court in favor of the defendant, entered-in the office of the clerk of the county of Few York on the 21st day of June, 1898, upon the dismissal of the complaint by direction of the court, after a trial at the Few York Trial Term.</p>

Appeal by the plaintiff, Emily Brugher, 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 26th day of October, 1898, ujion the dismissal of the complaint, by direction of the court, after a trial at the New York Trial Term.

Appeal by the plaintiff, William K. Hawkins, 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 17th day of February, 1899, granting the defendant’s motion to vacate an attachment issued in the action, made upon the papers upon which the attachment was issued.

Appeal by the defendants, Samuel Lazarus 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 14th day of March, 1899, denying the defendants’- motion to vacate a requisition in replevin, and granting the plaintiff leave to amend the description of the property contained in the affidavit accompanying the requisition.

<p>Appeal by the petitioners, Thomas J. Dunn, as sheriff of the county of New York, and another, from an order of the Surrogate’s Court of Rew York county, entered in said Surrogate’s Court on the 4th day of October, 1898, denying their application to compel said Paul Fuller, as ancillary administrator, etc., of Jean Fernand Auguste Pons, to account for the assets of his decedent.</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 New York on the 23d day of November, 1897, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 23d day of November, 1897, denying the defendant’s motion for a new trial made upon the minutes. The action was brought by John II.

<p> A confession of judgment in excess of the indebtedness is void. </p> <p>A judgment confessed for an amount exceeding the debt due to the judgment, creditor is void, notwithstanding the fact that the error was unintentional.</p>

<p>Appeal by the plaintiff, John Robinson, from so much of an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of December, 1898, upon the decision of the court rendered after a trial at the New York Special Term, as overrules the demurrer interposed by the plaintiff to the third defense set up in the defendant’s answer.</p> <p>The action is to recover damages for a libel alleged to have been published by the defendant, which, in brief, charged that the plaintiff had been sold by his wife for twenty-five dollars. For a second separate and distinct defense the defendant alleged in mitigation of damages “ that it received the matter complained of in the complaint in the usual course of its business from the Associated Press, a reputable news agency then engaged in the business of supplying daily newspapers in the city of New York and elsewhere with news items, such article having been prepared by a regular news reporter of such Associated Press, who is a competent and experienced man, and that the information upon which the said article was prepared by such news reporter was communicated to him in the usual course of his business of obtaining news for the newspapers constituting such Associated Press.” The plaintiff demurred to this defense, but his demurrer was overruled, and the question presented on this ajipeal is whether the facts in the form alleged are in mitigation or are relevant or material to the issue between the parties.</p>

Appeal by the defendants, Leonard R. Kerr and others, from so much of an order of the Supreme Court, made at the New York.

<p>Appeal oy the relator, Charles Rockland Tyng, from an order of the Supreme Court, made at the New York Trial Term, bearing date the 20th day of February, 1899, as amended by an order bearing date the 21st day of February, 1899, and entered in the office of the clerk of the county of New York, denying the plaintiff’s motion to place the case upon the preferred calendar.</p>

Appeal by the plaintiff, Francis Higgins, as receiver of the North River Bank in the City 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 16th day of February, 1899, relieving the defendant, John H. Starin, from a stipulation by which said defendant agreed to withdraw an appeal taken by him from an order made in the action, and relieving him from his default in failing…

<p>Negligence —fall of a passenger from the platform of a street ccm\ caused by the act of" the conductor.</p> <p>In an action brought to recover damages for personal injuries, it appeared that the plaintiff, a boy sixteen years of age, boarded one of the defendant’s street cars, and owing to its crowded condition was obliged to stand with one foot upon. the front platform, and one on the step holding on to the dashboard rail; that, after the car started, the conductor ran alongside of the car, collecting fares, and that the plaintiff gave him his ticket; that the conductor then attempted to board the crowded platform by forcing himself between the plaintiff and another passenger, and that his first attempt being unsuccessful, he made a . second attempt, in which he elbowed the plaintiff and the other passenger and again slipped from the car, and that, at the same time, the plaintiff fell, or was . pushed, from the car, and was injured.</p> <p>Held, that the question of the defendant’s negligence and of the plaintiff’s contributory negligence was properly submitted to the jury, and that a verdict ■ in favor of the plaintiff would not be disturbed; '</p> <p>That the conductor of the car, by accepting the plaintiff’s ticket, assented to his riding upon the car in the position in which he was at that time, and that the evidence was sufficient to warrant a finding that the fall of the plaintiff from the car was caused by the act of the conductor in forcing himself upon the : crowded platform while the car was in motion.</p> <p>McLaughlin, J., dissented.</p>

<p>Appeal by the defendant, The Post Steamboat Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 10th day of February, 1899, granting the plaintiff’s motion for a preference.</p>

Appeal by the plaintiff, John Hodges, an infant, by Elizabeth Hodges, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 22d day of July, 1898, upon the dismissal of his complaint by direction of the court after a trial at the Hew York Trial Term.

Appeal by the defendants, Mary Hawes and others, from a judgment of the Supreme Court in favor of the plaintiff, and of the defendants Agnes Hawes, and James Staples, as executor, etc., of David Wakeman, deceased, entered in the office of the clerk of the-county of Hew York on the 11th day of Hovember, 1898, upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by the plaintiffs, Grace H. Franklin and another, 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 3d day of November, 1898, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merits. The action was brought for the partition of certain real estate situate in the city of New York, of which Richard G. Barcalow died seized.

Appeal by the plaintiff, the Southwark National Bank, 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 13th day of January, 1899, allowing the defendants to pay to the chamberlain of the city of New York $858.43, less $10 costs of motion, and directing that, upon such payment being made, the sheriff of the city and county of New York, Maurice O’Meara and Catherine Joyce be…

Appeal by the plaintiff, James Mills, from a final 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 March, 1899, upon the plaintiff’s failure to amend his complaint as permitted by an interlocutory judgment; and also from the interlocutory judgment in favor of the defendant, entered in said clerk’s office on the 23d day of December, 1898, upon the decision of the court rendered after a…

Appeal by -the plaintiff, Elizabeth Weiss, as administratrix, etc., of Frederick Weiss, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of tlie clerk of the county of New York on the 14th day of June, 1898, upon the dismissal of the complaint at the close of the plaintiff’s case by direction of the court after a trial at tlie New York Trial Term.

<p>Appeal by the defendant, The National Slavonic Society of the United States of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of July, 1898, upon the decision of the court rendered after a trial at the New York Special Term.</p> <p>The supreme assembly of the defendant’s society notified the lodge of which the plaintiff is the president that one of the members of that lodge had been expelled from the society and called upon the lodge to expunge his name from the rolls. Upon the refusal of the lodge to comply with this request the supreme assembly suspended the lodge and the individual members thereof, and also preferred a charge against the lodge before the grand jury of the society, which body finally expelled the lodge and the members thereof from the society.</p> <p>The plaintiff thereupon brought this action to obtain an adjudication that the attempted expulsion of the plaintiff’s lodge was void and to secure a reinstatement of such lodge and the individual members thereof.</p>

<p>Appeal by Charles W. Richardsj as permanent receiver of the Simonds Manufacturing 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 3d day of October, 1898, sustaining exceptions taken to the report of a referee appointed to take and state the receiver’s account, and sending the account back to the referee for a further hearing, except from that portion of the order which authorizes the receiver to pay the expenses already incurred in the reference.</p>

Appeal by the defendants, Angela M. Devlin 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 1st day of February, 1899, amending the judgment heretofore entered in the above-entitled action by adding thereto the following provision : “ 45-¡¿-.

Appeal by the plaintiff, Joseph L. Moss, Jr., from an interlocutory judgment of the Supreme Court in favor of the defendant Robert Lindblom, entered in the office of the clerk of the county of New York on the 9th day of February, 1899, upon the decision of the court rendered after a trial at the New York Special Term sustaining said defendant’s demurrer to the complaint.

Motion by the Consolidated Gas Company of Hew York to confirm the report of commissioners appointed to appraise the value of lands taken in the above-entitled proceedings.

Appeal by the plaintiff, Joseph Clark, as administrator, etc., of Joseph L. Clark, 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 14th day of June, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, Smith M. Weed, 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 5tli day of July, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of June, 1898, denying his motion for a new trial made upon the minutes.

Appeal by the plaintiff, Lazarus Levy, and the National Surety 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 15th day of February, 1899, substituting the National Surety Company as a party defendant in the place and stead of the defendant, Thomas J. Dunn, as sheriff of the county of New York also an appeal by the National Surety Company from an order made at the New York…

Appeal by John B. Fitch, executor, etc., of Emily M. Fitch, •deceased, from an order of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 27th day. of February, 1899, denying said executor’s motion to dismiss the above-entitled proceedings.

Appeal by Jacob Hirshfeld, suing on his own behalf and on behalf of all other creditors of The Madison Square Bank, the plaintiff in the above-entitled action, and by the Lager Beer Brewers’ Board of Trade of New York and Vicinity, and Emil Schaefer, as treasurer of the Brewers’ Exchange of New York, the petitioners in the above-entitled proceeding, 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…

Appeal by the plaintiff, The Barber Asphalt Paving Company, from a judgment of the Supreme Court in favor of the defendant, ■entered in the office of the clerk of the county of New York on the Utb day of January, 1899, upon the report of a referee.

Appeal by the plaintiff, Helen D. Ward, 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 March, 1898, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 17th day of March, 1898, denying the plaintiff’s motion for a new trial made upon the minutes.