Volume 39 — New York Miscellaneous Reports

<p>Railroad law — Contents of return of board of railroad commissioners to a certiorari to review their certificate that public convenience requires a proposed railroad.</p> <p>Upon a review by certiorari of a certificate of the state board of railroad commissioners that public convenience and a necessity require the construction of a proposed railroad, the board need pot return any statements made to it upon the application for the certificate as to the financial ability of the promoters of the proposed railroad or as to the good faith of the enterprise, and this although the board has a standing rule requiring applicants to make such proof.</p>

<p>Demurrer of defendants Lutz to complaint.</p>

<p>Action by creditor against surety — When not premature — Demurrer to amended complaint — Construction of surety’s obligation.</p> <p>Where the defendant is surety by bond to a creditor of the principal for the performance of the latter’s contract with the creditor, running from May 8, 1901, to Jan. 1, 1902, and providing for an accounting by the principal at any and all reasonable times, and the defendant further covenants to discharge the obligation nominated in the bond at the “ termination ” of the principal’s contract, an amended complaint of the creditor, served in an action begun by him against the surety on May 22, 1902, is not demurrable where, after setting up the above facts and alleging that on Sept. 1, 1901, an accounting was had by the plaintiff with the principal and a deficiency found, it further alleges that the defendant has not complied with the plaintiff’s demand of payment or met the obligations of the bond, has not made good the plaintiff’s said loss or paid it on request, and that the plaintiff is “now” suffering a loss in a sum named, because of the defendant’s default as surety,upon the bond.</p> <p>A surety has a right to have its contract construed strictly.</p>

<p>Slander — Insufficient justifications of charges of larceny and of being a “ skin ”.</p> <p>Where the slanderous charge is that the plaintiff, a tenant of the defendant, stole a gas radiator from the demised premises, it is no justification to answer that the plaintiff wrongfully removed therefrom a gas chandelier, nor can a charge of larceny be justified by alleging a mere wrongful taking.</p> <p>A charge that a person is a “ skin ” cannot be justified by alleging that he was in arrears for rent.</p>

<p>Demurrer to answer.</p>

<p>New York city — Rapid Transit — The contractor with the city must pay the cost of constructing, in the subways, ducts for electricity, the motive power.</p> <p>In passing the acts relative to -rapid transit in the city of New York the Legislature intended that the contractor with the city should bear every expense connected with the motive power and the means of operation.</p> <p>The cost of constructing, in the side walls of the subways or tunnels, conduits, placed in ducts, for conducting electricity, the selected motive power, must be borne by the contractor as constituting “ equipment ” within the legislation and the contract, and the rapid transit commission cannot, by voting this cost to be extra work, change its character to “ construction ” payable by the city.</p>

<p>Demekbeb to counterclaim.</p>

<p>Equity — Action to determine conflicting claims to a fund which the debtor is ready to pay — Demurrer to complaint.</p> <p>A complaint, by one who alleges herself to be the sole child and administratrix of Emanuel Popper, deceased, insured in a solvent life insurance company, alleging that it is willing and ready to pay the amount of the policy provided she and the defendant Max Moses will sign a receipt for the money, that Moses refuses to sign, claiming that Popper assigned the policy to him, that the plaintiff is ignorant of the said assignment and that it is void or has been discharged, and praying for general relief, states a cause of action against Moses, and the action may be maintained as one to determine conflicting claims to a fund which, if not actually in court, is acknowledged by a solvent company to be due from it and which that company is willing to pay as soon as it be determined to whom payment should be made.</p>

<p>New York city — Grant of water lots at the foot of 42d and 43d streets, Hudson river — A city cannot grant away a public pier lying wholly within the lines of a street — Adverse possession not applicable to a public nuisance—- Permissible variation in the manner of making an enforced public improvement — The city’s rights in its water lots.</p> <p>In 1850 the city of New York conveyed' to one Lindsley water lots in the Hudson river, bounded on the north and south respectively by the center lines of 43d and 42d streets, on the east by high water mark and on the west by the westerly line of 13th ave., “the pen manent exterior line of said city ”, so much of 10th and 13th aves. and 43d and 42d sts., shown on annexed maps, as came within the boundaries being excepted, and he agreed at his own expense to-make these streets and avenues, then having no potential existence, as well as wharves and bulkheads forming a part thereof, when-ordered to do so by the city. In 1852 it conveyed to him a pier, just north of the water lots, lying wholly within the lines of 43d-street, at its foot and in 12th ave. also. In 1855 Lindsley conveyed all to one La Farge and thereafter by mesne conveyances under the latter the pier came to the plaintiff, and the water lots, which were essential to the use of the south side of the pier and were so used-after 1860, to the defendant railroad company. In 1873 the pier was extended by the city upon the plaintiff’s agreement to pay it rent for the extension and to claim no title to the extension. In 1890 the defendant, the department of docks, upon the footing of the deed.of 1850, by resolution, ordered the said railroad company to construct a bulkhead in front of its water lots between the south side of 43d street and the south side of 42d street, and as this would have had the effect of filling in the land under water south of the plaintiff’s pier, as originally constructed, it brought this action before 1892 for an injunction. In 1897 the resolution for a bulkhead was rescinded but in 1900 the board ordered the railroad company to construct 12th ave. between the middle of 43d street and the middle of 42d street — which would have been equally detrimental to the south side of the pier.</p> <p>Held, that the action could not be maintained as the plaintiff had' shown no title to the pier or the land under it.</p> <p>That the city of New York had no power to grant away a publie pier located entirely within the boundaries of a street held in trust by it for public use.</p> <p>That as to the extension of the pier the plaintiff was only a licensee of the city.</p> <p>That nearly forty years’ occupation of the pier could give the plaintiff no title thereto by adverse possession as its occupation thereof constituted a public nuisance.</p> <p>That the defendant railroad company might lawfully construct & bulkhead across the water lots where that form of construction was-required by the Legislature and where the result of it would practically be the same as if 12th ave. had been filled in.</p> <p>A- statement of the rights of the city of New York, borough of Manhattan, in its lands under water.</p>

<p>Injunction — Refused, in a common law action for money only, against a fraudulent transferee of the vendee — Effect of Ii. 1903, ch. 538, § 1 — Code C. P., § 603 — Receiver.</p> <p>In a common law action brought by a general creditor to recover a sum of money only, he cannot, upon allegations that his defendant debtor fraudulently disposed of his merchandise in bulk to the other defendant with a view to hinder, delay and defraud the debtor’s creditors, that that defendant purchased with a like intent, and that the debtor has left the State of New York and cannot be found, procure under Code O. P., § 603, a continuance of a temporary injunction restraining the said transferee from disposing of the property transferred, as that section of the Code applies only to equitable actions or to actions triable by the court. He is not entitled to a receiver of said property.</p> <p>The procedure in such a matter has not been changed by L. 1902, ch. 528, § 1, making fraudulent and void as against creditors of the seller sales of merchandise made by him in bulk.</p>

<p>Action for the determination of a claim to a piece of land situate in the city of New York.</p> <p>The nature of the action and material facts are stated in the opinion.</p>

<p>Order to show cause why a temporary injunction should not be granted.</p>

Action for damages by a passenger for alleged negligence in being thrown from a street car while getting off, by the starting up of the car after it had come to a stop to let him off. Verdict for the defendant, and motion on the minutes for a new trial.

Motion by the defendant to dismiss the complaint on the merits made at the close of the evidence on both sides and reserved until after verdict, which was for the plaintiff; and motion on the minutes to set aside the verdict as against the weight of evidence. The complaint was on quantum meruit for a balance of $900 alleged to be due on the sale of 18 street sprinklers by the plaintiff to the defendant.

<p>Business corporation — When the liability of one who signs a subscription agreement becomes absolute — Offer and acceptance.</p> <p>The signing of a paper stating that the signers “ subscribe” for the-number of shares, set opposite their names, in a corporation in process of formation under the Business Corporation Law (L. 1890, chap. 567), and that they agree to pay for their stock when called upon by the directors, followed by the filing of a proper certificate of incorporation and subsequent demands of the corporation for payment of the full subscription, make a signer liable therefor and this although the certificate does not name him as a subscriber and he never took any part in the incorporation or in the affairs of the corporation and never demanded or was tendered the stock.</p>

<p>Motion for a new trial upon the minutes.</p>

Actiobt on a policy of insurance on a building by the owners. The complaint is in the usual form on the policy, alleging a total loss, compliance with all the terms of the policy &c., and prays for judgment for $2,500, the amount of the policy.

<p>Suit for the construction of a will in respect of a devise of real property.</p>

<p>Actios to recover a broker’s commissions upon a sale of real estate. Motion to set aside a verdict and for a new trial.</p>

<p>Action to compel a conveyance for conspiracy and fraud — Voluntary trust when valid — Evidence not to be pleaded — Parties — Demurrer to complaint.</p> <p>A complaint which states that the plaintiff had an inchoate right of dower in a house then about to be sold in foreclosure, that the defendant Roberts bought it on the sale upon the trust to carry the house for the plaintiff until she could reimburse him, that the rents he collected therefrom and her payments to him exceeded his payments on and for the house, that he refused to reconvey to her upon the terms he had agreed upon, that upon her suing him for specific performance of the said trust or agreement he caused a mortgage upon the house to be foreclosed and conspired with the defendant Hills to buy it in in Hills’ name but really for Roberts, states a cause of action against both defendants to compel them to convey to the plaintiff, and this although the complaint does not state that the trust agreement had a valuable consideration — a voluntary trust being enforcible when fully constituted — and although it is not alleged that the trust was evidenced as required by statute — it being unnecessary to plead evidence.</p>

<p>'Action to compel issue of a new certificate of deposit for one lost — Non-negotiable instrument — Security not requirable of plaintiff under Code C. P., § 1917 — Payment to depositor protected by Code C. P., § 1909.</p> <p>Code C. F., § 1917 does not apply to an action brought against a security and trust company by a person who held, but has lost or inadvertently destroyed, a certificate or receipt by which the company promised to pay her “ or her assigns ” a named sum of money, and who seeks by her action to compel issue to her of a new certificate.</p> <p>Such a certificate is not a negotiable instrument within L. 1897, chap. 612, § 20.</p> <p>Code C. P., § 1909 would protect the company in paying her the money even if she had assigned the certificate, assuming the company to have had no notice of the assignment.</p>

<p>Consideration — Forbearance to sue — Collateral liability for any deficiency on foreclosure.</p> <p>A bank, holding upon premises a mortgage, one of whose mortgagors has suddenly become bankrupt, which informs the present owner of the fee that it will under its rules at once take action in the matter unless it is given additional security for the loan, in the form of his collateral bond, and which, after receiving the same from him, forbears for three years from foreclosing the mortgage, creates for the collateral bond a valuable consideration moving to the owner of the fee, and is entitled to have the decree in foreclosure provide that he be liable for any deficiency.</p> <p>Forbearance to sue upon an overdue claim is a sufficient consideration for the promise of a third person to pay the debt — even though no definite time of forbearance be fixed — provided there is forbearance for a reasonable time. •</p>

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

<p>Action to enforce an attorney’s lien.</p>

<p>Liquor Tax Law — Cancellation of bond when enforcible.</p> <p>The liability of a surety upon a bond given under the Liquor Tax Law continues until the Statute of Limitations has barred any action upon the bond, and until then the principal cannot procure a cancellation thereof and a return of his deposit therefor where the surety resists it.</p>

<p>Contempt, civil — Failure of a son to support his mother as directed.</p> <p>Disobedience of an order, of the Court of General Sessions of the' Peace in and for the city and county of .New York, made under Code Grim. Pro., § 915, and directing a son to support his mother, is a civil, and is not a criminal contempt and therefore he may be-punished for it by an imprisonment exceeding thirty days.</p>

<p>Trial of an issue of law raised by a demurrer to the complaint on the ground that two causes of action are improperly united.</p> <p>The first cause of action is for damage for injuries to the person and the second for damage for injuries to personal property, both caused at the same time by the same tortious act of the defendants, viz., negligently running a vehicle into the plaintiff’s vehicle in the street and injuring the plaintiff in his body and also injuring his vehicle.</p>

The relator, Charles H. Clark, on March 27, 1902, in the Court of General Sessions, New York county, before Poster, J., pleaded guilty of the crime of assault in the second degree. He was thereupon sentenced to an indeterminate sentence of “not less than one year, nor more than five years,” in the State Prison at Sing Sing.

Suit in equity to compel the defendants to make and deliver to the plaintiff a deed of conveyance of certain real estate in fee. They executed and delivered to the plaintiff an unsealed conveyance, hut he claims that that does not convey title.

The Prohibitionist State convention nominated a full State ticket with the exception of a candidate for Attorney-Generals This place on the ticket was left blank and a committee was appointed by the convention to fill the vacancy. A different committee was appointed for the purpose of filling possible vacancies by death, declination, etc. Thereafter, on October 1, 1902, John Cunneen was nominated by the Democratic State convention for the office of Attorney-General.

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

<p>Attachment—Levy upon a bond, secured by a mortgage, where insufficient to support a judgment, for money only, otherwise invalid.</p> <p>An attachment cannot be deemed to have been legally levied so as to save a judgment, for a sum of money only, recovered against the defendant without personal service of the summons upon her within the State of New York, where the proof of levy is that the sheriff, instead of takipg into his custody a bond and mortgage due her (but not shown to have been within this State at the time of the levy) as he was required to do by law, merely accepted a certificate of the mortgagor that he was indebted to her upon the bond and mortgage in a sum named in the certificate.</p> <p>For such a purpose such a debt does not exist apart from the securities which represent it.</p>

<p>Lease — Bight of tenant to easements of light and air in the rear yard of her landlord — Mandatory injunction — Tenant’s right thereto saved by her timely objections and notice to landlord that she intends to sue him.</p> <p>A person in occupation of second-story premises whose rear abuts upon a yard is entitled to an easement of light and air therein, and, where, after and while the relation of landlord and tenant has arisen and is existing between the parties, the landlord builds in the yard a three-story extension of the premises, having the effect of cutting off light and air from the rear windows of the demise of the tenant, he will at her suit be directed by a mandatory injunction to remove so much of the extension as is higher than her windows.</p> <p>Where she has promptly objected to his acts and notified him of her intention to sue him, the fact that he succeeded in completing the extension before an injunction order in the action was served upon him cannot avail him.</p>

<p>Tbial, under a return to an alternative writ of mandamus, of the question whether the defendant has made a lawful distribution of the amount of tax received upon bank stocks assessed in the town of Oohleskill for the year 1901.</p>

<p>New York city — Female public school teacher entitled to the issue of a certificate of her salary (necessary to payment) despite her marriage.</p> <p>The city superintendent of schools of the city of New York cannot lawfully refuse to certify to the auditor of the board — an act necessary to payment — the salary of a woman, permanently appointed in 1891 a teacher in a public school in Brooklyn and who, while still in service, married on Jan. 21, 1902, upon the ground that the by-laws of the school board of Kings in force on Jan. 21, 1902, provided among other things: “ Should a female principal, head of department or teacher marry, her place shall thereupon become vacant ”, and this because the by-laws of a school board of the city of New York are precluded by its charter of 1897 from conflicting there- . ¡with, the charter provisions contemplate the removal of teachers only j upon charges preferred and after a trial, and the by-law cannot of itself, without affirmative action upon the part of the board, create a vacancy.</p>

<p>Equity — Marshaling assets — Merger — Trustees when protected in payments made under a trust void because tor the benefit of the donor — Subrogation — Estoppel — Academic question not discussed.</p> <p>Where a debtor expressly agrees that a particular creditor shall have a lien upon two funds, composed respectively of real and personal property, the equitable rule that a doubly secured creditor must be paid first from the fund upon which singly secured creditors have no lien does not apply and payment should be made the doubly secured creditor one-half from each fund; and particularly where other claims against the personalty — the fund upon which the singly secured creditors have no lien — would exhaust that fund.</p> <p>Merger is a question of intention and none will be presumed or declared where the parties intended none.</p> <p>To effect a merger the estates must unite in the same legal person and he must hold them in the same right.</p> <p>A deed or assignment, by which a failing debtor conveys all his property to trustees upon their simultaneous but separate agreement to convey back to him in fee upon request and in the meantime use the .income and the proceeds of any sales to support him and his family and pay his debts, is void; but where the trustees subsequently raise money on their own notes and, in reliance upon the assignment, pay a percentage of his just debts, they are entitled to reimbursement therefor in preference to subsequent liens or claims and will be subrogated pro tamio to the rights, in funds representing his estate, of the creditors whose debts they paid.</p> <p>A creditor who, after accepting and retaining a dividend under such an assignment with knowledge of all the circumstances attending it and releasing the trustees, secretly procures from the assignor his notes, and security for the balance of the claim, cannot enforce a judgment, which he entered thereon upon confession, against funds representing the assignor’s estate.</p> <p>Where a fund has been exhausted by the terms of a decision of the court in regard to its disposition, the court will not discuss the rights as between each other of other claimants to the fund — and this because the questions have become academic.</p>

<p>Specific performance — Damages recoverable, in the action, for a fraudulent breach although performance is impossible — Their measure.</p> <p>Although specific performance of an executory contract for the • sale of lands cannot be awarded, in an action brought therefor by the assignee of the vendee, because it turns out that the wife of the vendor, neither a party to the action nor to the contract or within the jurisdiction, refuses to convey, damages may be awarded therein against the vendor where he has been guilty of a fraud in regard to the title which would have prevented performance even if his wife had been willing to convey.</p> <p>The recoverable damages are the payment made on signing the contract with interest thereon, the expenses of searching the title, the difference between the market value of the premises and the contract price, and the costs of the action.</p>

<p>Bankruptcy Act of 1898 — Trustee’s action — Preference — When a transfer intended to hinder creditors avoids the whole consideration whether past or present.</p> <p>If, within four months of a debtor’s filing a petition in bankruptcy and at a time when the aggregate of his property is not at a fair valuation sufficient in amount to pay his debts, a creditor takes a transfer from him which the creditor has reasonable cause to believe is intended to give him a preference and which has that result, the trustee in bankruptcy of the debtor may avoid the transfer and recover of the creditor the transferred, property or its value.</p> <p>If the said transfer was intended to hinder, delay or defraud creditors and the preferred creditor knew this or was put on inquiry in regard to it, he loses the whole consideration he paid whether past or present.</p>

<p>Will — Eepublished by codicil — Absolute vesting of the remainder in the widow and issue of a person under a direction that his share be invested for his benefit during his life “ and for the benefit of his wife and his issue after his death ”.</p> <p>A codicil, referring to a will, and duly executed, republishes the will in so far as it is not changed by the codicil.</p> <p>The will of Harriet M. Kemp left everything to her husband but provided that in case of his death the estate was to be equally divided between her brother, John B. Mee, her sister, her nephew and her niece. It further provided: “I hereby direct that the share due my brother, John B. Mee, be invested by my executors for his benefit during his natural life and for the benefit of his wife and his issue after his death ”. After the death of her husband the testatrix made a codicil, “ In supplement of the foregoing will ”, which did not alter the provision above quoted in regard to John B. Mee. He died .intestate, after the testatrix, leaving a widow and son.</p> <p>Held, that the remainder, after his death, vested absolutely in them.</p> <p>That the contention that they had only an interest for their joint lives, with remainder to the heirs of Harriet M. Kemp, was untenable.</p>

<p>Motion by the defendant to set aside verdict of the jury and for a new trial upon the minutes for errors upon the trial and upon the grounds stated in section 999 of the Code C. P.</p>

<p>Motion to intervene.</p>

<p>Demurrer to answer.</p>

<p>Motion to redeem in an action of foreclosure.</p>

<p>Specific performance — When refused of an oral agreement to provide for a wife by will — Statute of Frauds — Fart performance.</p> <p>Specific performance of an oral contract by which a husband, since deceased, agreed for value, as alleged, to will his wife all his property cannot be enforced by her against his estate where she fails to meet the requirement that such a contract must be established by the clearest and most convincing evidence.</p> <p>Where the property in question is wholly real estate, an additional objection to her action arises in the fact that real estate cannot be conveyed by parol and, further, that her alleged payment of the consideration, or services which she alleges that she rendered her husband as part of the consideration, are not such a part performance by her as will take the contract out of the Statute of Frauds.</p>

<p>Motion by the defendants to withdraw a .demurrer to the complaint and serve a proposed answer.</p>

<p>Villages — Proposition for a village sewer system must be submitted, at an election to the qualified voters, o The Village Law (L. 1S9T, ch. 414, §§ 260, 261, 263) requires a proposition for the adoption by a village of a sewer system to be submitted, in the form required by the statute, at an election to the voters of the village qualified to vote thereat, and therefore village bonds, issued by virtue of a proposition, adopted by a majority of all the voters of the village, and which merely embodied a prior resolution passed by the village trustees authorizing them to borrow a certain sum to construct a sewer system and raise the money by tax, are void and the village may show that fact even as against a bona fide holder.</p>

<p>Motion to vacate an ex parte order for the examination of two of the defendants to enable the plaintiff to frame his complaint.</p>

<p>Examination, before issue joined, to frame a complaint — Minority stockholder’s action against her directors for an accounting—Requisites of examination — Director’s duty of disclosure.</p> <p>Affidavits of a minority stockholder of the American Tobacco Company, which allege that its directors have formed and control three analogous corporations as well as a subsequent consolidated company embracing all the corporations, that the directors have made agreements with themselves to divert the business of the American Tobacco Company to the other corporations and to the consolidated company, that they have made false reports as to the condition of the American Tobacco Company, that they have (Withheld from it dividends earned and have made for themselves and withheld from it large profits, show facts sufficient to entitle the minority stockholder to sue in her own name for an accounting by the directors of the profits and enable her .to frame a complaint, and this being so, she cannot be permitted to examine them before issue joined for the purpose of framing a complaint.</p> <p>Her ignorance of the exact terms of the agreements under which the directors managed or are managing the other corporations affords no grounds for such an examination as she need not allege the agreements accurately nor more than their purport.</p> <p>The extent of her damage is not a proper subject for such an examination.</p> <p>To justify such an examination it should a'ppear that the information sought is peculiarly within the knowledge of the defendants sought to be examined and is not accessible to the moving party in any other manner.</p> <p>The moving party does not meet this requirement where she has not even demanded the information she here seeks.</p> <p>A director of a corporation does not occupy such a fiduciary relation to a stockholder thereof as to require him, without compliance had with the rules governing such examinations, to disclose to her what he has done with the property of the corporation.</p>

<p>Nuisance — Action for a death from an explosion of chemicals resulting from a fire — Proximate cause where there are several independent (defendants.</p> <p>Where an administratrix sues in one action two independent firms for causing the death of her intestate as alleged by the maintenance of a nuisance consisting in the storage in a city of chlorate of potash, sulphur, nitrates of strontia and barium, which a fire exploded, and the proof on the trial is that the two firms and another firm not made a party to the action were occupants of a seven-story building, that they stored their property on various floors not indicated separately as to each firm by the proof, that all stored chlorate of potash — a substance which the jury might have found to be an “ explosive compound " and forbíddén by the charter to be stored within the city except under certain restrictions as to place and quantity — that a fire occurred in the building and that a quarter of an hour later there were three successive explosions, she cannot recover at all, whether or not the storage was unlawful, where she makes no proof as to the order, in time, in which the goods of the several firms exploded, nor any proof that the goods of either of the defendant firms were the proximate cause of or contributed to the death of her intestate, or how he came to his death.</p>

<p>Mechanic’s lien — Indulgence in the time of payment — Filing a lien for a monument — Effect of debtor’s bankruptcy prior to filing.</p> <p>A letter, written on Feb. 16, 1901, by creditors to a debtor in straightened circumstances in regard to a debt for a monument placed by them in a cemetery under a contract with him completed and payable as to the price on Nov. 1, 1900, in which the creditors say that they are willing to meet the debtor half way in the matter of the debt, that, if the latter is willing to pay interest from Nov. 1, 1900, and the principal with interest as soon as possible, the creditors will be willing to wait a reasonable time for the debtor to get his affairs straightened out, does not extend the time of the payment of the debt beyond Nov. 1, 1900, where the debtor accepts the proposition.</p> <p>Therefore, where the creditors do not file their lien, for the price of the monument remaining unpaid, under L. 1898, ch. 413, § 40, until more than a year after Nov. 1, 1900, nor until Dec. 6, 1901. the lien is void under section 41 of said statute.</p> <p>Where the debtor is adjudged a bankrupt on Nov. 22, 1901, the lien filed Dec. 6, 1901, entitles the creditors to no greater rights in his estate as a bankrupt than those of an unsecured creditor.</p>

<p>Action to set aside a chattel mortgage and certain transfers of personal property.</p>

<p>Action brought for specific performance of a contract.</p>

<p>Motion to discontinue action.</p>

<p>Liquor Tax Law — Complaint — Statutory exceptions as to the sale of liquors in prohibited hours need not be negatived.</p> <p>A verdict rendered in his favor, in an action brought by the State commissioner of excise against a so-called club for selling liquors between one and five a. m., in violation of L. 1896, ch. 112, § 31b, will not be set aside merely because the complaint did not negative the subsequent provision, near the end of said section, excepting from said subdivision b a corporation or association organized when and as therein prescribed.</p>

<p>Dower — Defeated by the husband’s deed before marriage — Delivery to a third person.</p> <p>An owner of two lots separately conveyed one of them to each of his two sons, they actually paying the consideration of one dollar, and he in their presence handed the deeds to an attorney requesting him to hold them during the grantor’s life, at his death record and deliver them to the grantees, the grantor during his life to receive the rents and profits. He subsequently married, thereafter died, and thereupon the attorney recorded the deeds and delivered them to the grantees.</p> <p>Held, that the title passed to the sons when the grantor delivered the deeds, in their behalf, .to the attorney, and that therefore when the widow subsequently married the grantor there was in him no estate to which dower could attach.</p>

<p>Motion by the Mutual Reserve Life Insurance Company to vacate an order for its examination.</p>

Motion by bondholders to intervene in the action as parties in interest. The action was begun in 1894. Thereafter, and in October, 1894, the firm of Coffin & Stanton failed.

<p>Corporation, foreign — Taxable if it is doing, in the State of New York, a continuous and permanent business.</p> <p>Where the evidence presented to tax commissioners, relative to the taxability of a foreign corporation, shows that' it has taken out a certificate permitting it to do business in the State of New York, that it has therein stated 70 Cortlandt street, New York city, to be its principal place of business within this State, that it maintains here an office, sales room and storage rooms, that it keeps goods for sale here and here sells them, there is an indication of an intention upon its part to do here a continuous and permanent business sufficient to justify its taxation upon the value of its goods here in process of distribution, the value of its office furniture here •and its cash on hand and in bank here.</p>

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

<p>Office — The failure of one, elected a town clerk, to take and file his oath of office in time does not create a vacancy in the office where it has not already been forfeited by judicial action.</p> <p>The provisions of the Town Law (L. 1890, ch. 569, § 51), relative to the times within which one elected a town clerk must take the constitutional oath of office and file it in the office of the town clerk, are directory' merely.</p> <p>■Where he makes and files such an oath before his term begins and before the office has been declared forfeited by judicial action no vacancy exists and the town board cannot appoint.</p> <p>Upon the same principle his failure to file in time a verified statement of his election expenses cannot ipso facto create a vacancy.</p>

This action is brought for the purpose of vacating two assessments, one for $18,482.91 for the construction of an asphalt pavement, and the other for $2,310.97 for the construction of water and gas connections and lateral sewers, and to enjoin the defendants from selling the plaintiff’s property for the nonpayment of his alleged proportion thereof.

<p>Appeal from a reversal by the General Term of the City Court of the city of New York of a judgment, entered upon a verdict, in favor of the defendant.</p>

Appeal by plaintiffs from a judgment of the General Term of the City Court of the city of New York, affirming a judgment for costs in favor of the defendants, entered upon the verdict of a jury.

<p>Savings bank — Buie) as to the method of making a gift of a deposit — Gift causa mortis — Affirmative defense.</p> <p>A depositor of a savings bank is not bound by its rule, forbidding any gift of a deposit unless by an assignment or other transfer in writing signed by the depositor and duly acknowledged, where the rulé was made after she became a depositor. Her agreement to another rule that all notices as to deposits or depositors, when published by. placards in the bank, should be deemed and taken as personal notice to each depositor, although said rule as to gifts had been placarded In the bank for many years before her death, has not the retroactive effect of binding her to the first above rule.</p> <p>.Accordingly, a donee causa mortis of the depositor, in possession of the bank book by delivery from the depositor, was allowed to recover the deposit of the bank.</p> <p>Semble, that if the first above rule were in any manner available to the bank as a defense it would be matter of confession and avoidance, not available when not pleaded as an affirmative defense.</p>

<p>Appeal by plaintiff from a judgment and order of the General Term of the City Court of the city of New York, affirming a judgment in favor of the defendant Jacob A. Zimmermann, entered upon the verdict of a jury.</p>

<p>Discovery.</p> <p>■Defendants should not be allowed a discovery and inspection of the plaintiff’s books, in order to support their counterclaim, where they do not show that the books contain the entries they wish, and where, although asserting sources of information, they do not excuse their failure in not having obtained the information from the alleged informants..</p>

<p>Aureal by the defendant from a judgment and order of affirmance by the General Term of the City Court of the city of New York, of a judgment, entered upon the verdict of a jury directed.</p>

<p>Sale — Condition precedent of payment — Damages on vendee’s refusal to accept the goods.</p> <p>Under an executory contract for the sale and purchase of goods at a fixed price, also stipulating that title shall remain in the vendor until full payment of the price or payment of a judgment recovered therefor, the vendor may, where the vendee refuses even to accept the goods, recover of him the balance unpaid of the price and is not limited to damages in the difference between the price and the market value of the goods.</p> <p>Under such a contract the vendor retains title and possession of the goods until full payment of the price or payment of a judgment recovered therefor, but upon payment both title and possession pass to the vendee.</p>

<p>Master and servant—Wrongful discharge — When the reasonableness of a rule of the master is a question of law only.</p> <p>Where an employer defends his employee’s action for an alleged wrongful discharge by answering that he had disobeyed ■ orders, the court alone - must decide whether it was reasonable for the employer to make a rule, for violation of which the employee was- discharged, forbidding any smoking of cigars or cigarettes in a part of the employer’s' factory where inflammable substances were in constant use.</p> <p>Upon such facts the submission of this question to the jury is an error requiring a reversal of a judgment which the employee had-recovered.</p> <p>Senible, that such a rule of the employer is reasonable.</p>

<p>Principal and surety — Invalid levy on goods of a third person — Bond of a city marshal of Brooklyn where enforcible — Its validity.</p> <p>. A surety, of a marshal of the former city of Brooklyn, which has become bound for his faithful discharge of the duties of his office and in default thereof to pay all damages resulting "from such default, is liable to a person "where the marshal attaches and sells that person's property by virtue of process running against another person.</p> <p>The marshal must- be deemed to have been acting colore officii.</p> <p>Tlie bond may be ordered prosecuted, against the surety and the marshal, continued* in office by the charter of the city of New York, in the Municipal Court of said city, borough of Brooklyn, and the said charter (L. 1897, ch. 378, § 1428) does not limit prosecution to the County Court of Kings county.</p> <p>The validity of the bond is not impaired by the facts that it was given before, while the breach thereunder arose after, January 1, 1898, when the said charter took effect.</p>

Ajppeal by plaintiff from judgment of the Municipal Court of the city of New York, seventh district, borough of Manhattan, in favor of the defendant, for the possession of a sewing machine, etc., and for the costs of the action.

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

<p>Judgment — Measure of assignee's damages where the assignor wrongfully satisfies it and for less than its face — Insolvency of judgment debtor.</p> <p>Where an assignee of a judgment sues his assignor for breach of bis assignment covenant not., to collect or receive the judgment or any part thereof nor release or discharge it, and the proof is that the assignee paid the assignor for the judgment its face value and that ■the assignor, the assignment not having been recorded, thereafter satisfied it for one-fifth of its face, the assignee may recover the face value of the judgment where the assignor although pleading insolvency of the judgment debtor does not show that it continued down to the time of the commencement of the action for the breach.</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, fourth district, borough of Manhattan.</p>

<p>Appeal from an order made in the Municipal Court of the city of New York, tenth district, borough of Manhattan, denying defendant’s motion for an order granting a new trial herein or in the alternative for an order resettling the case herein on appeal.</p> <p>Chapter 580 of the Laws of 1902, went into effect on September 1, 1902.</p>

Appeal by Charles Kate, an under or subtenant, from a final order in summary proceedings, awarding the possession of certain demised premises to the landlord herein, granted in the Municipal Court of the city of New York, fourth district, borough of Manhattan.

Appeal by the plaintiff from an order of the Municipal Court of the city of FTew York, fourth district, borough of Manhattan, made September 18, 1902, vacating and setting aside a judgment in favor of the defendants, entered upon the default of the plaintiff in that district.

<p>Summary proceedings — Maintainable under a provision, in a lease, amounting to a limitation of the term but not being a condition of the lease.</p> <p>A provision in a lease, for two years from May 1, 1902, that if the lessor sells before the expiration of the first year of the term the tenants shall surrender the demised premises on receiving three months’ notice and the equivalent of three months’ rent, is not a condition of the lease but is a limitation of the term, ipso facto ending it when and as soon as the lessor sells, notifies and pays.</p> <p>Therefore where the lessor gives on May 1, 1902, the tenants notice of a sale made and his mesne grantee tenders them on August 1, 1902 the said payment in money, the term ends forthwith, the tenants thereafter hold over after its expiration without the permission of the landlord, within the meaning of the statute relative to summary proceedings, and the mesne grantee may dispossess them.</p>

Appeal by the defendant 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>Cities of the first and second class — Sale therein of short-weight coal.</p> <p>Where coal dealers of a city of the first or second class are sued for the penalty, imposed by L. 1900, ch. 327, § 150, for selling less than 2,000 pounds by weight to a ton of coal, and the plaintiff proves that the coal in question weighed only 1,870 pounds at a public scale, they can only meet such proof by showing that the coal when it left their yard weighed 2,000 pounds, and where they fail to do so it is erroneous to dismiss the complaint.</p>

<p>Action for reinstatement to a subordinate lodge of a beneficial association which paid death benefits out of a fund made up of dues and assessments paid by the members.</p>

Motion by respondent to limit the issues to be tried in a reference under section 28, subdivision 2, Liquor Tax Law (L. 1896, ch. 112), to those violations alleged in the petition which are supported by a probative affidavit.

<p>Motion to modify an order requiring respondent bank to issue duplicate certificate of stock.</p>

<p>Actiobt for partition.</p>

■ Action to compel the extinguishment of a judgment against plaintiffs’ intestate purchased by defendants from the judgment creditor.

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

Motion by applicant Keen for an order requiring S. Victor Constant and Linus A. Gould to turn over moneys received by them belonging to him.

<p>Motion to confirm referee’s report.</p>

<p>Deed of gift — Ref ormation — Pleading the Statute of Limitations.</p> <p>Proof that a mother who intended to give only the reversion, after her death, in her real estate to her daughter — as her daughter understood — executed and delivered a deed which, by the mistake of the scrivener, first gave the daughter a fee absolute and then attempted to cut it down by certain repugnant provisions in favor of the mother during life, presents a proper case for reformation of the deed to the end that it may correctly express the real agreement 'and intention of the parties.</p> <p>The provisions of Code C. P., § 388, that “An action, the limitation of which is not specially prescribed in this or the last title, must be commenced within ten years after the cause of action accrues ” are not sufficiently pleaded by the defendants’ allegation “ That the statutory period in which to begin such an action as is here brought, to wit, ten years, has long since expired, and that this action is consequently outlawed ”.</p> <p>Such an answer contains no averment that more than ten years have elapsed before the commencement of the action since the cause of action accrued.</p> <p>In such case the statement that the action is “ outlawed ” adds nothing.</p>

<p>Partnership — Effect, on the right to liquidate, of a dissolution agreement “ vesting ” all the assets in the liquidating partner — Replevin.</p> <p>Where a written agreement, dissolving a partnership by consent and appointing one partner liquidator, further provides that all stock, book accounts, and other assets of the firm “ are hereby vested in him for that purpose ”, he takes absolute title to them; and therefore where, before completing the liquidation, he dies intestate his administratrix takes them and the surviving partner has no right to, and cannot replevy, them.</p>

<p>Application by plaintiff for judgment of divorce upon the report of a referee.</p>

Motioh to set aside judgment by default, to permit defendants to come in and defend and to strike from the judgment plaintiff’s costs and direct costs in favor of defendants.

<p>Will — A bequest revoked by implication — Meaning of “ amend and “ instead of ” — Vesting of a remainder.</p> <p>The fourth item of the holographic will of a layman, who left a daughter Hattie, who has since died leaving a son, the plaintiff in this action for a construction of the will and now of age, created for her in his executors a life trust and further provided that after her death the income should be used for the support, etc., of her surviving issue, if any, during minority, the principal to be thereupon paid the issue, but that, if no issue survived or if the issue died before “ maturity ”, the principal should go equally to the testator’s “ remaining children ”. He made a second codicil as follows: “ Under section four of said will I have given to the issue of my daughter Hattie at her death the entire principal real and personal of the fund held by my executors in trust for her use and benefit during her life: This bequest I hereby amend by giving to said issue the income of said fund instead of the principal and, with this end in view, I hereby give to my executors full power and authority to act as trustees of said issue and in like manner and respect as in the case of Hattie during her lifetime ”.</p> <p>Held, that the plaintiff took only a life interest in the corpus.</p> <p>That the “ remaining children ” took the remainder, that it vested in them upon the testator’s death, and that vesting was not affected by a power given the executors to sell any property held in trust for his daughters (there were two) upon their consent, with directions to the executors to reinvest the proceeds.</p>

<p>Supplementary proceedings — A seat in an exchange may be reached even if incumbered by preferred debts to other members — Exemption as “ working tools ”. Code C. P., § 1391 — Form of an order appointing a receiver in such case.</p> <p>A seat in the Consolidated Stock and Petroleum Exchange of New York is property which will pass to a receiver, of the property of the member, appointed in supplementary proceedings.</p> <p>If the seat is incumbered by preferred debts to other members of the exchange the equity in the seat will pass to the receiver.</p> <p>Semble, that the seat is not exempt under Code C. P., § 1391 as “ working tools ” of the member, and, in any event, if worth more than $250, cannot be "exempt as to the excess above that sum.</p> <p>Form of an order appointing.a receiver where there are preferred creditors of the exchange, and the receiver must act to some extent under its rules.</p>

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

<p>Real Property Law, L. 1896, ch. 547, § 284— When the father inherits.</p> <p>The provisions of the Real Property Law (L. 1896, ch. 547, § 284), declaring that a surviving father shall inherit from an intestate, who dies without lawful descendants, unless the inheritánee came to the intestate on the part of his mother and she be living, apply only to a case where the inheritance came to the intestate directly from his mother.</p> <p>Therefore, where she died testate and left a husband and three sons, Charles, Franklin and Edward, the latter born after her will, and the shares of the first two sons never vested in them absolutely, under the terms of the will, because they successively died intestate, unmarried and without issue, the court considered that a share which passed from Charles, upon his death, to Franklin did not on Franklin’s death pass, under the statute cited, to Edward but to his surviving father, and this because Edward would not take directly from his mother and she is not living.</p>

Tins action is brought by the plaintiff, suing on his own behalf, and. on behalf of all other bondholders of the Tennessee Central Railroad Company, to recover a balance of $11,975 remaining unpaid of a hid made by one C. 0. Godfrey, as the agent of the defendants, upon a foreclosure sale in the Chancery Court of Tennessee.

<p>(Bill of particulars — When an attorney for a party may make the moving affidavit.</p> <p>The rule of practice, that a motion to procure a bill of particulars must be upon the affidavit of the party and not upon that of his attorney, is not absolute.</p> <p>Where a complaint for divorce was entirely indefinite as to the time, place, or person, when, where, or with whom, the adulteries ■charged therein were committed, and ail charges were denied by a verified answer, such a motion was granted upon the defendant’s attorney’s affidavit that he could, not safely go to trial without particulars as to the times, places and persons — the court considering that, as the case was one where a bill should be ordered and the defendant clearly could have no knowledge of the particulars superior to that of his attorney, the attorney was the better judge whether the case could safely be tided without them.</p>

<p>Application for' an award of costs, and an extra allowance upon settlement of final order.</p>

<p>Action to recover the value of certain property destroyed while in transit.</p>

<p>Action to recover the penalty of a bond for an alleged violation, of the Liquor Tax Law.</p>

Application to vacate so much of an order allowing a writ of certiorari as granted a stay of execution of respondent’s deter-urination, dismissing the relator, as chief of the fire department, after a trial had on charges duly made.

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

Pboceediitgs by writs of certiorari and habeas corpus to review the action of respondent Wyatt, a justice of the Special Sessions, in issuing a warrant for the arrest of relator upon information charging him with a misdemeanor.

[Application to review by certiorari the assessment as real estate, for the purposes of taxation, of the relator’s underground conduit system. Motion for a reference.

<p>Tax — Certiorari to review — Reference, when ordered — Capital stock, how assessed — Valuation of realty not to be increased by the aggrieved party on review.</p> <p>The court will order a reference (L. 1890, ch. 608, § 253) to take testimony in a proceeding to review an assessment by certiorari only where the application for a reduction tenders a question of fact and contains a statement of fact which, if taken as true, would require a reduction or cancellation of the assessment.</p> <p>The taxable value of the capital stock of a corporation is to be ascertained by adding together the actual value of its realty and its personalty and deducting therefrom its debts and the assessed value of its realty.</p> <p>Where the first two items amounted to $506,847, the debts to $55,000, and the assessed value of the real estate of the corporation was given by it in a preliminary written statement to the tax commissioners as “ over $400,000 ”, the court approved an assessment of the capital stock at $51,800 — its actual, value not being stated nor whether it was worth less than par.</p> <p>Where a corporation has thus declared the assessed value of its real estate to be “ over $400,000 ” and has never claimed tó the tax commissioners any other value, its statement of value must be regarded as approximately true, and therefore no consideration should be given to a subsequent value of $460,000 first alleged in a petition for a certiorari to review the assessment.</p>

<p>Crimes — Perjury — Proof necessary to a warrant.</p> <p>A magistrate has no power to issue a warrant for the arrest of a person upon a charge of perjury where it is denied by him and the complainant’s proof rests on his oath alone uncorroborated by any independent circumstances.</p> <p>The testimony before the magistrate need, not be convincing, but before he can issue a warrant for a crime he must have legal evidence that a crime has been committed.</p>

<p>Tax — Certiorari to review — Beferen.ce, when ordered — Where an assessment is void the party aggrieved is excused from making a preliminary application to “ correct ” it.</p> <p>Where city tax commissioners assess in their “ annual record ”, without locating them, a corporation’s “foundations, sub and superstructures, conduits, pipes, wires, cables, and connections ’’ and insist upon a right to tax them because they are located on private property, as the tax commissioners claim, and the corporation insists that the foundations, etc., are not taxable locally because, as it claims, they are located in or under highways and taxable only as special franchises and as such only by the State board of tax commissioners, a question of fact is presented which requires evidence to be taken for its determination and therefore a reference will be ordered to that end.</p> <p>The statutory rule that a party aggrieved by an assessment cannot review it by certiorari unless the party has timely applied to the proper officers to have it “ corrected ” does not apply where it is void because the tax officials had no right to make it.</p>

<p>¡Tax — Front-foot rule of assessment, when rejected — Proper method.</p> <p>Where the Legislature has prescribed (L. 1897, ch. 414, § 268), as the method of assessing a village sewer’s expense, that it be assessed upon the lands within the area of local assessment in proportion as nearly as may be to the benefit which each parcel or lot will derive therefrom, and has further directed that the ratio of such benefit shall be established, the village sewer commissioners cannot lawfully adopt the front-foot rule of assessment where that results In assessments which do not comply with the statutory rule.</p> <p>The commissioners should, in each case, consider the effect of the improvement upon the actual market value of the property and, in that connection, the question whether the property is vacant or improved and, if unimproved, the extent and value of the improvement.</p>

<p>This is a summary proceeding for the removal of defendants, pursuant to section 7 of chapter 559 of the Laws of 1902. Petitioners claim to he the owners of the premises in question by reason of having purchased them at a tax sale and by having perfected their title thereto. Defendant Louis Williams is a tenant occupying said premises, and defendant George Scott claims to be a mortgagee in possession. The respective parties have submitted their rights to this court for decision upon the following written stipulation of facts:</p> <p>“ Oneida County Coubt.</p> <p>“ Edwabd Gabel and Helen L. Gabel,</p> <p>" Petitioners,</p> <p>“Louis Williams and Geobge Scott,</p> <p>" Defendants.</p> <p>“ The parties hereto hereby stipulate by their respective attorneys that for the purposes of the trial of this action the following facts are admitted:</p> <p>“ That Daniel Waterman is and has been, since 1881, the owner of a certain house and premises known as Ho. 73 Broadway in the city of Utica, Oneida county, New York. That thereafter he leased said premises to Louis Williams, one of the defendants herein, who is, and has been for several years last past in possession of said premises.</p> <p>“ That the county and State taxes for the year 1900 were regularly levied upon said premises.</p> <p>“ That said taxes were not paid, and the county treasurer of Oneida county thereafter regularly advertised said premises for sale for said taxes.</p> <p>“ That on the 10th day of October, 1901, said county treasurer duly sold the same to Edward Gabel, one of the petitioners herein, for the sum of $25.73, and issued to him a certificate therefor, as provided by chapter 559, Laws of 1902.</p> <p>“ That on the 24th day of October, 1902, said county treasurer of Oneida county executed to Edward Gabel, one of the plaintiffs her.ein, a conveyance of the real estate so sold for said taxes, a copy of which is hereto annexed, which conveyance was recorded in Oneida county clerk’s office on the 30th day of October, 1902. That said Edward Gabel afterward conveyed to the petitioner, Helen L. Gabel, an undivided half interest in said property.</p> <p>“ That said county treasurer within the three months immediately preceding the expiration of the time allowed to redeem said premises, caused a notice to be published once in each week for three weeks successively, the last publication being at least, twenty days before the expiration of the time to redeem, in each of the newspapers designated by the board of supervisors of said county, for the publication of the Session Laws, a description of said premises sold for taxes and unredeemed, specifying the amount necessary to redeem the same, calculated to the last day in which such redemption could be made and stating that unless such lands were redeemed by a specified day, they would be conveyed to the purchaser, and also published the same notice in a newspaper published in the city of Utica. Following is a copy of the notice published:</p> <p>“‘(Explanation: Bk. signifies book; Mp. map; Blk, Block; Et. feet).</p> <p>“‘Mame. Bk. Mp. Blk. Lot, Et. front.</p> <p>u ‘ Waterman, Dan’l,</p> <p>“ ‘ 73 Broadway. 3 21 4 18 50 ’</p> <p>“ That no other, further or different notice of the expiration of the time to redeem has been published, served upon, or given to any person whatever. That there is a mortgage upon said premises held by George Scott, of Utica, New York. That the city of Utica purchased said premises at a tax sale for city taxes for the years 1896-97 and 1898, and duly filed in the Oneida county clerk’s office a certificate of sale therefor, but took no other steps to perfect its title.</p> <p>“ That after said sale for said taxes and prior to the commencement of this action, default was máde in the payment of the said mortgage to said George Scott, and possession given to him under the terms of said mortgage. That said Williams thereupon entered into an agreement with said Scott and is now in possession under the mortgage.</p> <p>“ That no personal notice to redeem was served upon the owner, occupant or mortgagee, as required by the Tax Law, and said mortgagee claims the right to possession under the terms of his mortgage and the right to redeem, and that the lien of said mortgage is not destroyed. That the occupant and mortgagee claim no sufficient or proper notice of sale or redemption was ever published describing said property.</p> <p>“ That chapter 559, Laws of 1902, is admitted in evidence and a part of this stipulation. ;</p> <p>“ The defendant Louis Williams claims the right to the possession of said premises under his lease with said Waterman, and under the agreement made with the mortgagee, upon the ground that plaintiffs have failed to serve upon either the owner, occupant or mortgagee, a personal notice to redeem, as required by the Tax Law, and that the time to redeem has not yet expired.</p> <p>“ Plaintiffs claim ownership of said premises, in fee simple, freed from the lien of said mortgage and the immediate right to possession thereof by virtue of the deed given October 24, 1902, by the county treasurer of Oneida county, under chapter 559, Laws of 1902.</p> <p>“ M. E. Robinson,</p> <p>“Atty. for Petitioners. “ E. D. Lee,</p> <p> “Atty. for Defendants.” </p>

<p>Action by a receiver to recover a debt — Attachment for a debt void where its situs is foreign — Payment to wrong party.</p> <p>A debt due from a foreign corporation to a foreign firm has no situs in the State of New York and cannot'lawfully be attached here by a creditor of the corporation in an action against it, and hence payment therein affords the corporation no defense to a subsequent action by the firm’s foreign receiver to recover the same debt, and the said payment has no greater effect than a mere voluntary one made to a third party.</p>

<p>The plaintiff, the daughter of the defendant Melinda P. Schmidt, brings this action by virtue of her interest as remainder-man in the fund set apart by the following provision of the last will and codicil of her grandfather, George Parbury Pollen, who died in 1877: “ To my daughter Melinda .1 also give the interest or income .as it accrues on Two hundred thousand ($200,000) dollars during her natural life, the said amount to be set apart in such good dividend paying stocks as may stand in my name at the time of my decease, and at the then market value of the same. And at her death I will that the said amount of Two hundred thousand ($200,000) dollars go to her legal issue in equal portions after they severally reach the full age of twenty-one years.”</p>

<p>Marketable title — Building restriction.</p> <p>In January, 1886, one Monteith, the owner of eighty-four feet on the north side of a street running east and west, conveyed to one Williams the easterly twenty-five feet with a covenant that any building erected on it should be set back from the building line at least sixteen feet, and, in February, conveyed to him the next westerly eighteen feet with a set-back covenant which expired in 1901. In 1892 Monteith’s executors conveyed to one Westervelt the remaining forty-one feet without such a covenant. No general scheme existed in the locality to set back the houses sixteen feet from the building line nor did Monteith impose any such restriction upon lots he owned upon the south side of the same street. A purchaser from the. defendant, of a plot containing seven feet of the twenty-five foot plot, refused the title as unmarketable and sued for what he had paid on account.</p> <p>Held, that the title was marketable.</p> <p>That the covenant ran only to Monteith.</p> <p>That if an easement ever existed in favor of the eighteen foot plot, it was extinguished when, in February, 1886, the title to it and to the twenty-five foot plot united in Williams, and the easement was not revived by him.</p> <p>That Monteith did not intend to reserve for the forty-one foot plot any easement over the twenty-five foot plot and that, if he did, his executors did not, by their deed to Westervelt, convey to him any easement that any building, whenever it might be erected on that plot, should be set back.</p>

Action to recover back a deposit paid upon a contract for the sale of land, and to recover the expenses incurred in examining the title.

<p>Justice’s court — Mew trial — Justice communicating with the" jury after they had retired.</p> <p>A new trial should not be granted, in an action in justice’s court in which the defendant succeeded, merely because the justice, while the jury were deliberating in his courtroom and after the counsel in the case and the defendant had gone home, returned to the courtroom at the request of the jury and there read them his minutes of the testimony of two witnesses, and the further fact that he by an oversight did not, as he might have done, request the plaintiff to accompany him to the courtroom is not material under the circumstances.</p>

<p>Pleading — Separate defense when permissible — Entire contract of sale — Effect, on duty to accept further deliveries, of a failure to rescind on the first delivery, objected to — Waiver of tender.</p> <p>Where a complaint for the price alleges a single sale of 3,000 battery cases, delivery, acceptance and payment of 1,000, tender and refusal of the balance, and the answer denies everything except the making of the contract, the defendant is entitled to interpose as a separate defense its claim that the sale was by sample and the 1,000 cases inferior to it, and this because it could not show these facts, constituting new matter, under the denial.</p> <p>The court, however, held that the separate defense did not set up ■ .facts sufficient to■ constitute a defense, considering that, as the contract was entire and executory and the defendant had not rescinded and restored at the time of the delivery of the 1,000 cases, it had acquiesced in the quality of that lot and must accept the balance if equal in quality.</p> <p>Tender of the balance is waived where the vendee notifies the vendor, upon acceptance of the 1,000 cases, that it will not accept future deliveries unless equal to the sample.</p>

<p>Appeal by defendant from a judgment in favor of plaintiff, entered by direction of the court at Trial Term, and from an order denying defendant’s motion for a new trial.</p>

<p>Surety — Liability on a bond given for an attachment later vacated — Invalidity of separate defenses alleging the misfeasance of the foreign attorneys of his principals and a pending appeal from the; order vacating the attachment.</p> <p>Where local attorneys, assignees of their non-resident clients’ rights under an attachment issued against them but afterwards vacated and an appeal from the order vacating abandoned, as the attorneys allege, thereafter sue the surety, on the undertaking given to procure the attachment, to recover the value of their services to their clients, it cannot avail him to set up by a separate defense that foreign attorneys of the plaintiffs in the attachment action were so derelict in serving on the said non-residents the summons therein that the attachment was vacated, nor is it a defense to him to allege that the appeal from the order vacating is still pending where he does not also allege a stay of proceedings or that in substance.</p>

<p>Principal and agent — When a mere selling agent is not authorized to warrant the quality of the goods.</p> <p>’ Where it is not shown that it is a custom of a trade for a mere selling agent to warrant the quality of the goods he sells and there is no proof that his principals, manufacturers of the goods, have authorized him to warrant quality, his statement to a vendee that the goods sold him by the agent are “ all wool ” does not bind his principals.</p>

<p>Account stated — When established — Implied promise to pay the balance due — Payment must be pleaded.</p> <p>Where a creditor states, in the presence of his debtor, that there has been a settlement of their differences and that the debtor has agreed to give him an assignment of a claim, which the debtor holds against a third party, for $1,670, and the debtor says nothing, an ac- • count stated exists between the parties entitling the creditor, prima facie, to recover $1,670.</p> <p>The debtor need not promise to pay this amount as the law implies such a promise from the admission of a balance due.</p> <p>Payment, being an affirmative defense, must be pleaded to be made available.</p>

<p>Appeal from a judgment dismissing the complaint.</p>

<p>Trial of an issue of law raised by a demurrer to a defence.</p>

<p>Motion to strike out portions of the answer as irrelevant and redundant.</p>

<p>False imprisonment — Complaint — Action for a “ wrongful arrest ”.</p> <p>General allegations that the defendant wrongfully and unlawfully caused the plaintiff to be imprisoned and detained for two days upon a false charge of grand larceny, to her damage, do not, where it appears that the public authorities arrested and imprisoned her after a charge made, state a cause of action, as the arrest and imprisonment must be presumed to have been legal and there is no statement of facts tending to show that they were caused by illegal means.</p> <p>Assuming that there is such an action as one for a “wrongful arrest ”, as distinguished from false imprisonment, a complaint therefor is demurrable where it fails to allege detention and damage.</p>

<p>Appeal by the plaintiff from an order of the General Term of the City Court of the city of New York, affirming a judgment dismissing the complaint and from the final judgment entered thereon.</p>

<p>Partition — Equitable conversion — Practical construction of a decree — Reconversion.</p> <p>A mandatory direction to executors to sell real estate effects an equitable conversion of it into personalty and the power of sale passes to administrators with the will annexed, but a mere discretionary power does not.</p> <p>The practical construction put upon a decree, construing a will, by the parties to the decree should be followed when not unreasonable.</p> <p>In order to effect a reconversion there must be unanimity of intention among all the parties in interest and it must be shown in a manner satisfactory to the court.</p>

<p>Motion by. a certificate holder to authorize the State Commissioner of Excise to discontinue revocation proceedings.</p>

<p>Corporation — Contract between it and its president for the use of bis inventions—A partner has no right to another partner’s inventions.</p> <p>A contract, made under a resolution passed in good faith by a vote of the majority of the trustees of a manufacturing corporation, the president not voting, by the terms of which he, serving it without salary, licenses it, for five years and for a royalty found to be fair, to make and use machines containing new inventions made and patented by him and which have proved valuable to the business, is valid and is not subject to attack by a stockholder as fraudulent and void as to him and the corporation.</p> <p>The corporation has inherently no actual or implied license to use without compensation to him the inventions of its president, and the rule is not changed by the fact that the experimental work on them was done in the plant of the corporation by its employees, where the president paid for it out of his own funds.</p> <p>A partner has no right or interest in inventions made by another partner although the use of them might facilitate the business of the firm.</p>

The defendant did not move for a direction of a verdict. Action by the holder of a bank check against the drawer. The check was given on June 1st, 1900, to the order of the payees, a copartnership. It was endorsed and transferred by the payees to another, and by him endorsed and transferred to the plaintiff on June 8th, 1900.

At the general election held on the 5th day of ¡November, 1901, the plaintiff and the defendant were each candidates for the office of commissioner of highways of the town of Cairo, county of G-reene. By the certified statement of the canvassers of election of the town of Cairo, filed in the office of the town clerk of the town of Cairo, it appears that the defendant had one more vote than the plantiff for such office.

This is an application for a peremptory writ of mandamus to compel the members of the municipal civil service commission and the police commissioner of the city of New York to certify the petitioner on the monthly pay-rolls of the police department as a captain of police and entitled to the salary of that office. There were seventeen similar cases by captains of police argued at the same time.

¡Suit to require the executors of the last will of Charles P. Haughian to account, and to appoint a receiver of the estate instead of such executors, the executors being charged with neglect and waste. The executors have nothing to do with the real estate of the deceased by the will.

<p>Corporation—Power oí president to bind it—Ultra vires.</p> <p>Where the selling agents of a coal mining company make advances to it necessary to the conduct of its business, the president of a successor company, which, on a foreclosure, of the property, took it and the assets over and continued the same relations with the agents, has power to bind his company to pay the agents their advances to the old company, there being some evidence that, from other sources than its president, knowledge of the assumption of the debt had been brought home to the successor company.</p> <p>A corporation’s plea of ultra vires should not be favored where it will work injustice to its debtors.</p>

<p>New York city — Commitment of a female under L. 1886, ch. 353.</p> <p>A magistrate of the city of New York may, under L. 1886, ch. 353, commit a female, over twelve years of age, charged by her mother with wilful disobedience to her, found guilty of being in danger of being morally depraved, and who has not been an inmate of the penitentiary, to one of the three institutions named in the statute, but he cannot lawfully commit her to any other institution or to the New York Magdalen Benevolent Society.</p>

<p>New York city — Prostitution in a tenement house — Negligible error in the commitment — Release from detention under Ii. 1901, ch. 466, § 710.</p> <p>A commitment of a woman to the workhouse on Blackwell’s Island as a vagrant, for having committed prostitution in a tenement house in the city of New York, is not invalidated by an erroneous recital therein that she was committed under a certain title and section of the city charter when the same section and title of the Tenement House Act should have been named instead.</p> <p>Senible, that where such a vagrant claims, upon the hearing of a writ of habeas corpus taken out by her, that she is being illegally detained because entitled to the benefit of that provision of the</p> <p>. charter (L. 1901, ch. 466, § 710), which requires the city commissioner of corrections, within three days after her commitment, to ascertain from the records whether, within two years, she has been guilty of public intoxication, disorderly conduct or vagrancy, and, if it is her first offense, discharge her in five days, she must, in order to raise that question, traverse the return to the writ by alleging a state of facts warranting her discharge under said section.</p>

<p>Deed — Boundary.</p> <p>A conveyance of land, bounded by an existing road, is presumed to carry the fee to the center thereof and express words, limiting the grant to the margin thereof, are necessary to overcome the presumption.</p> <p>The presumption is strengthened where the deed discloses an intention upon the part of the grantor to dispose of ail of his estate in the land and where it is sold by reference to a map which shows the road as existing.</p>

<p>New York city — Interest on an award, for property condemned, where title to it vests in the city before confirmation of the commissioners’ report.</p> <p>Where .the board of public improvements of the city of New York has by resolution declared that title to property to be taken for city purposes by commissioners of estimate and apportionment shall vest in the city before confirmation of their report, the city charter (L. 1897, ch. 378, § 90), authorizes them to allow, and include in their assessment for benefit, interest on the value of the said property from the date of its vesting in the city to the date of their report.</p> <p>This declaration of the rule of damages is one within the power of the Legislature.</p>

<p>New York city — Limit of time to review, by certiorari, an assessment.</p> <p>L. 1901, ch. 466, § 906, governs a certiorari to review or correct a final determination of the board of taxes and. assessments of the city of New York and, within that section, such a proceeding is “ begun ” where, before the first day of November in the year in which the said determination was made, a petition for the writ is presented and an order for its issue is granted.</p> <p>It is not requisite that the writ should be served before the said November first.</p>

<p>Deed — Boundary — Title to “ superincumbent materials ” in a street.</p> <p>An owner of a lot bounded on the south by the north “ side ” of a street does not own the fee of that street to its center.</p> <p>Where a city paves and curbs the street and assesses the expense pro rata on the owner of the lot and thereafter repaves the street by a contractor and digs up the old curbing, it, if useful to the repaving, would not belong to the owner of the lot as “ superincumbent materials ” placed upon it even if he owned to the center of the street, as the city has a paramount right to use such materials to repave the street, and, besides, the owner of the lot neither owned the curbing nor put it in the street.</p>

Motion to require the defendant to amend her anstyer by separating the denials from the affirmative allegations therein, and allege them separately.

<p>Application for an order to revoke and cancel a liquor tax certificate.</p>

<p>Costs — Infant suing as a poor person.</p> <p>An infant, not being of ability to sue, who alleges that she has a cause of action against the defendant, may be permitted by an order of the court to prosecute as a poor person and the mere fact that her father and guardian ad litem is a responsible person affords no reason why the court should vacate the said order and require her to give security for costs.</p>

<p>Issues of law upon demurrer to separate defenses.</p>

<p>Liquor Tax Law — Consent of the holder of a certificate to its use by another — Revocation.</p> <p>Where violations of the Liquor Tax Law occur in a place ostensibly conducted under an outstanding liquor tax certificate and the person in charge is using it with the consent of the holder thereof, the statute holds the latter responsible for the violations and for the costs imposed upon a revocation of the certificate.</p> <p>Senible, that so long as the certificate remains in the name of the holder he will be liable for violations occurring in the place, whether or not he has consented to the use there of his certificate.</p>

Action by tenants under a written lease to recover $5,000 deposited with defendants, the landlords of the demised premises.

<p>Application by the State Commissioner of Excise for an order revoking and cancelling a liquor tax certificate.</p>

<p>Application for a final order of distribution of the balance remaining in the hands of the receiver appointed in an action dissolving defendant corporation as found by the report of a referee taking and stating the receiver’s account, and which balance pursuant to the terms of an order of this court previously made herein, confirming the report of said referee, is retained by said receiver.</p>

Application by a judgment creditor upon the examination of :a judgment debtor in supplementary proceedings, for the appointment of a receiver of the latter’s property, with the usual powers, and with directions to said debtor “ to assign his interest in the funds of the pilots’ association to said receiver, when appointed.”

<p>Application for an order restraining the sheriff from proceeding by a sheriff’s jury to try the title of attached property for the purpose of obtaining a bond.</p>

Motion on petition of Benjamin Barker, Jr., as the trustee in bankruptcy of Lesser Brothers, to have said trustee substituted as plaintiff in this action, in the place and stead of the Ninth National Bank of the city of New Tork.

<p>Ejectment — Demurrer to complaint — Tax sale in New York city in 1883 — Publication of notice of sale and of notice of redemption.</p> <p>Where a plaintiff elects to frame his complaint in ejectment so as to set out in detail the facts upon which his claim of title rests, the defendant may demur, for, unless the facts support the plaintiff’s claim, his subsequent allegation of ownership, or of title, is merely' an unwarranted conclusion of law.</p> <p>The Consolidation Act (L. 1882, ch. 410) did not operate to arrest •proceedings then pending to sell property in the city of New York for non-payment of taxes nor did it take from the city comptroller the power to proceed to carry out the sale.</p> <p>A complaint, in ejectment, by one claiming under a sale of New York city property for unpaid taxes, conducted under L. 1871, ch. 381, first advertised for March 5, 1883, and made on May 8, 1883, is demurrable where it fails to allege that the notice of the sale was published in the official journal established by L. 1871, ch. 574 and that notice to redeem therefrom was published by the clerk of arrears either in the City Record or In a specially authorized newspaper, as required by L. 1882, ch. 410, § 66.</p>

<p>Negligence — Domestic corporation when not bound to take notice of a foreign law.</p> <p>A domestic trust company, performing a domestic trust agreement, making it the depositary of the stock of four railroads, about to be consolidated, and charging it with the duty of issuing new stock to the holders of the original stock, is not, without actual knowledge thereof, chargeable with knowledge of a foreign law — different from our own — providing that no sale, assignment, or transfer of the stock of a railroad corporation should affect the rights of an attaching creditor until recorded on the books of the corporation or until a new certificate is issued to the person to whom the stock has been transferred, and, therefore, where, in the foreign State, a creditor of a depositor of foreign stock is enabled to attach and sell it because the trust company has not had it transferred to itself, no negligence is imputable to the trust company.</p>

<p>Heabing on a demurrer to the returns to writs of habeas corpus and certiorari.</p>

<p>Demurrer to complaint.</p>

<p>Action for salary.</p>

<p>Action against stockbrokers.</p>

<p>Actiox to establish a will and for other relief.</p>

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

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

<p>New York city — Municipal grant of lands under water on the Harlem river.</p> <p>In 1865 the city of New York granted to the plaintiffs’ mesne grantors, as owners of the adjacent upland, lands under water on the Harlem river extending from high water mark to the bulkhead line as established in 1859, and the grant made that line the easterly boundary of the premises. Along that line the city had before 1859 laid out an exterior street but never has constructed it. The grant reserved to the city streets and avenues existing, or shown on an annexed map, but required the grantees to construct them, as well as wharves and bulkheads, on three months’ notice. The city granted to the grantees all wharfage etc. from “ that part of the exterior line of the said city lying on the easterly side of the hereby granted premises fronting on the Harlem river ”, In 1873 Seventh avenue, an avenue within the boundaries of the grant, was made at the expense of the abutting owners and was lawfully carried out to the bulkhead line. The city licensed certain structures, floating or on piles, to be placed within the boundaries of the grant along and outside of the bulkhead line; and in 1867 of its own motion built at the foot of Seventh avenue along the bulkhead line a permanent bulkhead platform and began and has since continued to collect wharfage etc. therefrom.</p> <p>Held, that the plaintiffs were entitled to the removal of any of the said structures, floating or on piles, located on lands lying between the streets and avenues and to have the city enjoined from granting any similar licenses hereafter, but that, so long as the exterior street remained unconstructed, they were not entitled to the removal of any structures (excluding from consideration the bulkhead platform at the foot of Seventh avenue) which laid wholly within the lines of the projected streets.</p> <p>That the words of the grant gave the plaintiffs the right to wharf-age etc. from the exterior street when constructed, and that, as the city had elected to construct the bulkhead platform, at the foot of Seventh avenue, without requiring or permitting the plaintiffs to do so, the city must account to them for the wharfage collected there by it or pay them the permanent value of their rights, if the city should elect to retain the bulkhead platform for its own use.</p>

<p>Devise — When devisees do not take by survivorship as a class.</p> <p>Where a testator devises his residdary estate to his sister and his two brothers, to be equally divided between them share and share alike, the share of a brother, who died before the testator, does not pass to the survivors as a class but lapses and goes to the testator’s next of kin.</p>

<p>Trust — Beneficiary dealing with the corpus — Written statement of the trustee, as to the corpus, binding the beneficiary.</p> <p>After a foreign will had been declared, in an action in the proper foreign court, to establish, in the husband of a child of the testator, a valid active trust for her benefit and that of her children, with remainder to them in fee after her death, the husband and wife, residents of the State of New York, ignored the trust, dealt with the corpus as if presently belonging to the wife and the children and as if he were its manager, soon put many trust securities in her name, bought with trust moneys new securities running in her name, kept a joint bank account and had equal access to the trust securities, which were kept in a box of the defendant depositary. After his death, which preceded hers by about ten months, a statement of his account as trustee was found in his safe and this showed the amount of the corpus, that his commissions and expenses had been paid, and that old and new securities, kept in said box, belonged to the trust. The box also contained a note given by her to him as trustee which balanced the account.</p> <p>Held, that the statement was competent evidence against her and her estate to show the true ownership of the securities found in the box and that it was not excluded by Code C. P., § 829.</p>

<p>Contract.— Belief from a mistake made in splitting an entire demand.</p> <p>Where a dispute has arisen, under a contract permitting a corporation to cut timber from lands, as to the amount cut up to Oct. 1, and the owners of the lands sue the corporation, on Dec. 22, for the value of so much timber as they allege had been cut up to Oct. 1, and recover judgment therefor withoiit a contest, the court will, on their motion, vacate the judgment and consolidate a second action, brought by them, after Dec. 22, for the value of the timber cut by the corporation on the same lands in Oct. and Nov., to the end that the judgment in the first action may not be a bar to the second action — it appearing that the plaintiffs supposed, when they brought the first action, on Dec. 22, at a time when payment was also due for the timber cut in Oct. and Nov., that there was no dispute as to the amount of that timber and that the corporation would pay for it without any controversy.</p>

<p>Escape — Effect of the prisoner’s discharge in bankruptcy — Sheriff. Where a debtor, held by a sheriff within the liberties of a jail upon a body execution on a debt provable in bankruptcy, files a petition therein, procures a discharge and thereupon, of his own motion, goes and remains beyond the liberties, the sheriff is not liable to the creditor in the execution as for an escape.</p>

Appeal by defendants from a judgment and order of the General Term of the City Court of the city of Kew York, affirming a judgment in favor of the plaintiff, entered upon the verdict of a jury, directed by the court, and also affirming an order denying defendants’ motion for a new trial.

Appeal by the plaintiff from an order of the General Term of the City Conrt of the city of New York, reversing a judgment rendered by a jury at a trial term of said court and ordering a new trial.

Appeal by the plaintiff and by the defendant Fischer from a judgment of the Municipal Court of the city of New York, eighth district, borough of Manhattan, in favor of the defendant, in an action to foreclose a mechanic’s lien.

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

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

<p>Appeals from final orders 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 plaintiff from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, sixth district, borqugh of Manhattan.

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

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

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

<p>Appeal from an order of the Special Term of the City Court of the city of New York, granting plaintiff’s motion for a re-argument of a motion made by the defendant, which motion had resulted in the vacation of the order of arrest, and setting aside the order vacating the order of arrest, reinstating the arrest and denying defendant’s motion to vacate.</p>

<p>Appeal by defendant from judgment and order of the General Term of the Oity Court of the city of New York, affirmiug a judgment in favor of the plaintiff, entered upon the verdict of a jury.</p>

<p>Appeal from an order of the Special Term of the City Court of the city of Flew York, granting the motion of William FI. Eunk to compel plaintiff’s attorney to accept service of his notice of appearance and answer.</p>

Appeal by plaintiff from interlocutory judgment of the City Court of the city of New York, and the order on which it was entered, sustaining the demurrer to plaintiff’s complaint interposed by defendant as executrix.

<p>Appeal from a judgment of the City Court of the city of New York, entered on an order of the General Term of the said court, affirming a judgment in favor of the defendant, entered on the verdict of a jury, and an order denying a motion for a new trial.</p>

<p>Appeal from a judgment of the City Court of the city of New York, entered on an order of the General Term of said court, affirming a judgment in favor of the plaintiff, entered upon the direction of a verdict.</p>

Appeal by the defendant from a judgment of the City Court of the city of New York, entered on the verdict.of a jury, in favor of the plaintiff.

Appeal by the defendants from an order, interlocutory judgment, and final judgment entered thereon in the City Court of the city of ¡New York, sustaining a demurrer interposed by plaintiff to defendants’ answer in an action on a promissory note.

<p>Appeal from an interlocutory judgment, City Court, Special Term, sustaining a demurrer to separate defenses in defendants’ answer.</p>

<p>Appeal from an interlocutory judgment, Special Term, City Court, sustaining defendant’s demurrer to the amended complaint.</p>

<p>Appeal from a judgment of the City Court, 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 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.

Appeal by the plaintiff (a landlord) from a judgment of the Municipal Court, tenth district, borough of Manhattan, dismissing his petition in a dispossess proceeding.

<p>Appeal from a judgment of the Municipal Court, second district, borough of The Bronx, in favor of the defendant.</p>

<p>Appeal from a judgment of the Municipal Court, tenth district, in favor of the defendant after trial by the court without a jury.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, entered in favor of the defendant upon the dismissal of the complaint.

<p>Appeal by plaintiff from an order retaxing costs on a demurrer.</p>

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

Appeal by defendant from a judgment entered in favor of plaintiff, on the verdict of a jury, and from an order denying defendant’s motion for a new trial.

Appeal by plaintiff from a judgment in favor of defendants, •entered on a direction of the court at Trial Term, dismissing the complaint herein.

<p>Appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff.</p>

<p>Appeal from judgment entered upon the 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 an order, directing a verdict in favor of plaintiff.</p>

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