Volume 4 — New York Appellate Division Reports

<p>Surrogate’s decrees — a failure to file exceptions to findings of fact does .not preclude their reversal on appeal — otheneise as to questions of law — mle as to undue influence in tlie case of a will—distinguished from the case of a contract—no, presumption arises from the existence of an opportunity to influence — Code of Civil Procedure, §§ 2545, 2576. ‘ "</p> <p>Where a notice of appeal states that an appeal is taken from every part of the decree of a surrogate, the facts are before the appellate court for review, although no exception to the surrogate’s decision has been filed, and, upon the hearing of the appeal, the court may, in a proper case, reverse the decree upon the facts.</p> <p>No questions of law can be reviewed upon such an appeal unless exceptions have been taken as provided by section 2545 of the Code of Civil Procedure.</p> <p>The rule that where the party to be benefited by a contract occupies a confidential relation to the other party to the contract, the court will presume that the contract was obtained through his fraud, and cast upon him the burden of proving that it is fair and just in all its provisions, and was not obtained through undue influence, has no application to the case of wills.</p> <p>The natural influence of the parent or guardian over the children, of the husband over the wife, and of the attorne}7 over the client, may lawfully be exerted to obtain a will or legacy so long'as the testator thoroughly understands what he is doing, and is a free agent.</p> <p>The fact that a person had an opportunity to exercise undue influence in procuring a will to be made in his favor does not raise any presumption that he took advantage of the opportunity, and the person who alleges that the will was obtained in that way must prove not only that there was an opportunity to exercise undue influence, hut also that it was actually exerted, and that it overpowered the will of the testator. .</p>

<p>Vendor and, purchaser — the recital of a deed in a mortgage is effective against the mortgagee, but not notice under the Becording Act—a deed lacking seals conveys an equitable title and may be recorded, arid is notice.</p> <p>In an action brought to recover the amount of a payment made on a contract for the purchase of real property, and the expense to which the plaintiff had been put in the examination of the title thereto, which he alleged was not marketable, it appeared that the defendant, who claimed under one Ely Moore, who owned the fee in December, 1827, had no deed from Moore, but he put in evidence á mortgage from Job Furman to Moore, dated December 10, 1827, mortgaging the premises to Moore and containing the following recital: “Being the same premises which were conveyed by said Ely Moore and Emmeline, his wife, by their indenture bearing oven date herewith, as by reference thereto will more fully appear.” The defendant also produced a conveyance from the heirs of Ely Moore to one Motley, recorded in 1865, and also a deed from these heirs to one Callaghan, recorded in April, 1868, also a conveyance from Motley to Callaghan, and conveyances through Callaghan and others to himself.</p> <p>The foundation of the opposing title was a deed made in 1848 by Ely Moore under a power of attorney, and recorded with the power of attorney on May 2, 1868, .to one Morton, who- conveyed, "by a deed recorded on the same day, to a person named Hawkes, who gave back a mortgage, which is still outstanding.</p> <p>Held, that the record title of the defendant was good;</p> <p>That if his title rested merely upon the recital of the deed from Móore to Furman', contained in the mortgage from" Furman to Moore, the Recording Act would ■not protect the defendant, as it could not .then be said that the conveyance1 under which the defendant claimed was notice to a subsequent purchaser of the existence of the deed from Moore to Furman;</p> <p>That the defendant, was protected, however, by the deeds from the heirs of Ely Moore, both of Which were recorded before the deed to Morton;.</p> <p>That the fact that the first Of these deeds had no seals did not make it inoperative either to. convey an equitable interest in the property or to. serve as notice to a purchaser whose deed was recorded subsequently;</p> <p>That such a. deed was good between the "parties ’and vested in the grantee an , equitable right to the property, which, entitled him to have the legal title conveyed to him by a proper instrument of conveyance, and might be lawfully" recorded, because it affected the title to real estate;</p> <p>That, this being so, Hawkes, when he took his conveyance, had constructive proof by the record that the heirs of Ely Moore had conveyed the property;</p> <p>That if there were any defect in the deed from the heirs of Ely Moore "to Motley it Was Cured by their subsequent deed to Callaghan, the grantee of Motley; and the owner of the equitable interest transferred by the heirs of Ely Moore to Motley; .</p> <p>That Callaghan, by virtue of the two deeds, had a perfect legal title which,, by the record, was good as against any conveyance from Ely Moore subsequently recorded; ■</p> <p>That the title was marketable, and that the complaint was properly dismissed.</p>

<p>Appeal by the plaintiff, Austin Finegan, from a judgment of the Superior Court of the city of Hew York in favor of the defendant, entered in the office of the clerk of said court on the 31st day of December, 1895, upon the decision of the court, rendered after a trial before the coiirt without a jury.</p>

<p>Attachment — the insanity of the .defendant is inconsistent with, Ms leaving the State With intent to defraud creditoi's — the proof required in such a case,.disiingv0héd‘ from proof as to the merits of the action.</p> <p>Upon an appeal from an order vacating an attachment Obtained by the plaintiff, it appeared that the action was brought to recover a sum of money only, and ".that the attachment .was granted upon the sole ground that the defendant had ■departed from the State of Few York with, intent to defraud his creditors. The motion to vacate was made on affidavits .upon the part of the defendant tending to show clearly that when he left the -State he was in .a condition .of insanity amounting almost to mama, and . was opposed- by new proof on the part of the plaintiff in support of his causé of action, which, although of a kind not admissible under the Code, ryas received without objection;</p> <p>Held, that although the new proof offered hy the plaintiff was of a character not admissible under the Code, yet as it was received without 'objection the court could consider the new facts which tended to sustain the plaintiff's cause of action;</p> <p>That the- question relative to the insanity of the defendant did not affect the merits of the case, and that it was the duty of the court to decide the question upon a fair preponderance of the evidence as given by the affidavits;</p> <p>That, in order to enable the plaintiff to procure a warrant, upon the ground that the defendant had left the State with the intent to defraud his creditors, he must prove that he took his departure with the actual existing intent-of defrauding his creditors;</p> <p>That where it is necessary to prove an actual intent upon, the part of a lunatic, the existence of which intent is not inferable from the act itself, the fact of lunacy may be sufficient to disprove the existence of the intent;</p> <p>That in the present case the facts justified the court in inferring that the insane man was unable to form the intent with which he was charged.</p>

Appeal by tlie defendant, William V, Reynolds, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day oi January, 1896, upon the verdict of a jury rendered after a trial at the New York Circuit, arid also from the denial of the motion for a new trial made upon the minutes.

Appeal by the plaintiff, Robert J. Mills, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Few York on the 25tli day of April, 1895, upon the dismissal of the complaint directed by the court after a trial at the Few York Circuit, and also from an order entered in said clerk’s office on the 14th day of May, 1895, denying the plaintiff’s motion for a new trial.

<p>Appeal by the defendants, The New York Elevated Railroad Company and another, from a judgment of the Superior Court of the city of New York in favor of the plaintiffs^ entered in the office of the clerk of said court on the 12-th day of July, 1895, upon the decision of the court, rendered after a trial at a Special Term thereof,</p>

<p>Brokers commissions on the sale of real estate-^- the broker must be the “procuring comise” of the sale-—what acts on his part contributing to the sale ar-e insufficient. '</p> <p>In order to entitle a real estate broker to recover compensation as the procuring cause of a ,sale he is bound to prove that he found .a purchaser and that he produced him to his principal, ready and willing to purchase the' real estate upon the terms of the principal. - ' -</p> <p>A broker -may devote time, labor and money to the interests of the owner seeking to sell his property, may call attention to the property, may bring people together who might not have met otherwise, and -may.create impressions which under later and inore favorable circumstances may assist in. the consummation of a sale, and yet not be entitled to commissions for the reason that he was -not the procuring cause of the sale.</p>

<p>Agricultural Law — the furnishing of imitation butter is a crime whether it be maimfactured in this or in. a foreign State — the purpose of the law is to preserve the public health.' ’ ....</p> <p>Upon the trial of an indictment charging the defendant, a restaurant keeper, with a violation of article 2 of the Agricultural Law (Laws 1893, chap; 338), in serving to a customer as food a substance made from animal fats and oils, and in imitation of natural butter, the defendant interposed a demurrer on the ground that section '28 of the Agricultural Law, which defined the specific offense for which the 'defendant was indicted, forbade simply the furnishing of a substance made “in violation of the provisions of this section,” and, as the indictment alleged that the substance in question had been manufactured in Kansas, where the laws of New York had no binding force, the furnishing ' was not “ in violation of this section ” and did not constitute a crime.</p> <p>Held, that the demurrer was properly overruled; that the prohibition of the statute extended to the furnishing of such a substance, whether it was made in this State, where its manufacture would be punishable, or whether it was made in anoth:r State;</p> <p>That the Agricultural Law declared such a substance injurious, and, as appeared by section 36 thereof, was passed to preserve the public health;</p> <p>That there was nothing in section 26 of the Agricultural Law which was opposed to the construction adopted; that the use in section 26 of the words “ whether such article, substance or compound shall be made or produced in this State or elsewhere,” and their omission in section 28, was not significant, as they were unnecessary, and had been used in section 26 simply to accentuate the legislative intent, which had already been sufficiently indicated.</p>

<p>Appeal by the defendants, Pauline Keppler, ITdo Keppler, Louis C. Raegener and Edward C. Stieglitz, as. executors and trustees-under the last will and testament of Joseph Kepp’er, deceased, Adolph Schwarzmann and William Ottmann and Louis Ottmann, as trustees of the estate of Jacob Ottmann, deceased, from a judgment of the Court of Common Pleas for the city and county of New York, entered in the office of the clerk of said court on the 31st day of December, 1895, upon the decision of the court rendered after a trial at an Equity Term thereof.</p> <p>The appellants, the owners of certain land on the northwest corner of Mulberry and Jersey streets in the city of New York,-on July 7, 1892, made a contract with the Carrere & Haas Iron Works, whereby the latter agreed to erect and finish a building on such land in accordance with certain 2>lans and specifications, furnishing the iron and all other necessary materials mentioned in the iron specifications. The work was to be done February 1, 1893. The seventh clause of the contract reads as follows: “ The parties of the second part herein (Carrere & Haas Iron Works) agree with the parties of the first part that the said iron work for this new building shall be finished by them in the specified time as hereinbefore mentioned, and which item (as to said time) is considered herein and under this contract a most important feature; but should they fail to complete the job up to aforesaid date, and should it be proven that the delay is caused by the said parties of the second part, then they shall be held responsible and answerable for the loss of the amount of rent caused to the parties of the first part on account of not having the building ready for renting purposes, by the first day of February, 1893.” Between the words “In witness whereof,” etc., and the signatures of the parties to the contract were inserted the words, “ Contingent upon strikes, boycotts and delays unavoidable.” The last three words were stricken out before execution, leaving the contract contingent only upon strikes and boy-'cotts. The work was .not finished by February 1, 1893, and the' appellants in an action brought by sub-contractors as lienors to enforce against the property the amount of their claim set up a counterclaim for loss of rent.</p> <p>• The plaintiffs and all |>arties other than the appellants, and the receiver of the Carrere & Haas Iron Works, which has applied for a voluntary dissolution, are sub-contractors who have filed liens against the property. ■ A stipulation was entered into by'all parties fixing the amount still due the iron works and the lienors under the ■contract and for extra work, without prejudice to the counterclaim ■of the owners. It disposes of all questions except the validity of this counterclaim, which was- dismissed by the trial court.</p>

<p>Negligence — assault by the gateman of an elevated railroad—§5,000 damages, when not excessive—hypothetical questions—evidence as to future pain—recalling-plaintiff’s expert in rebuttal — loss of time entitles one to nominal damages.</p> <p>In an action "brought to récover damages resulting from injuries caused by an ■ alleged assault made upon the plaintiff by a gateman of the defendant, an . elevated railway .company, it appeared that a misunderstanding arose between ■ the plaintiff and the .gateman, who insisted that the plaintiff should purchase . another ticket,- while the plaintiff insisted that he had already purchased one and put it in .the box; the gateman finally attacked the plaintiff and kicked him:,' the result of Which was a swelling in the groin of the plaintiff, who was ' obliged to-go to a-hospital, where’liewas operated upon,-and where he was :■ confined for six weeks. .The jury rendered a verdict in favor of the plaintiff , of §5,000. ' • ;</p> <p>Held, that the verdict was not excessive and'should not be disturbed.</p> <p>The plaintiff's physician, who performed the operation in the hospital, testified ' ás'an expéft 'on his behalf,'and stated that his testimony was based upon the1 :: facts which be had-previously related to the. jury.</p> <p>Held, that it was unnecessary, in asking the question, to repeat his testimony to him in the form of a hypothetical question.</p> <p>The court refused to strike out that part of the physician’s testimony in which he stated that there might he future pain, although the evidence showed that upon cross-examination the witness modified his views upon this point.</p> <p>Held, that notwithstanding the fact that the physician had so modified his views, his direct testimony ought not to have been stricken out, but was properly submitted to the jury for what it was worth;</p> <p>■That the utmost that the defendant was entitled to, even if the cross-examination entirely destroyed the direct testimony, was an instruction to the jury to disregard the latter.</p> <p>It is within the discretion of the court to permit the plaintiff, after the defendant has rested, to recall an expert with a view to rebutting the testimony of an expert produced by the defendant.</p> <p>Although a plaintiff does not prove his actual loss in money while disabled, if he proves a'loss of time he is entitled to at least nominal damages.</p>

<p>Parties—right of an assignee for creditors to be made a party to an action brought ■on a note against his assignors — a judgment against the assignors, conclusive .upon tlie assignee in the absence of fraud.</p> <p>Upon an appeal from an order making Horace F. Hutchinson, as assignee for the benefit of creditors of the defendants Hagemeyer, a party defendant in an action "originally brought against the assignors Hagemeyer and an indorser on their note, it .appeared that the defendants Hagemeyer, under their firm name of George Hagemeyer & Son, made a promissory note dated November, 1894, of which the defendant William H. Chew was an indorser, and on'March 19, 1895, made a general assignment for the benefit of creditors to the pptitioner, Horace F. Hutchinson. On the 22d day of April, 1895, -the plaintiff began against the makers and the indorser-this action in which-the defendants . Hagemeyer interposed an answer alleging want of consideration, usury and a diversion of the note from its intended purpose.</p> <p>After the action was at issue Horace F. Hutchinson, as assignee, petitioned to be allowed to come in as a defendant, upon the ground that as assignee he was interested in the subject of the action, claiming this right under section 453 of the Code-of Civil Procedure, which provides that “ where a person, not a party to the action, has an interest in'the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, and makes application to the court to be made a party, it must direct him t.o be brought in by the proper amendment.”</p> <p>SM, that the assignee was interested in the subject of the action, and was properly made a party defendant;</p> <p>That the subject of the action was the recovery of an alleged indebtedness upon a promissory note, which indebtedness, if established, would constitute an obstruction to the other creditors of the assignors in the sense that it would diminish their dividend by so much as would be paid to the plaintiff on account of his present claim;</p> <p>That the assignee, holding the legal title to the assets, was the only person who could intervene in the matter on behalf of the other creditors;</p> <p>That the recovery of the judgment, in the absence of proof of fraud or collusion, would be conclusive upon the assignee as to the fact that the relation of creditor and debtor existed between the parties to the record, and would also be conclusive as to the amount of the indebtedness, and could be made the basis of a creditor’s bill to set aside the assignment in which the validity of the judgment could not be questioned by the assignee;</p> <p>That it was immaterial whether the judgment was recovered before or after the assignment was made.</p> <p>Van Brunt, P. J., and Ingraham, J., dissented.</p>

Appeal by the defendant, William E. Tefit, from so much of an interlocutory judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of New York on the 18th day of December, 1895, upon the decision of the court rendered after a trial at the New York Special Term, as overrules the demurrer of the said defendant as to the fust and fifth grounds thereof, and also from so much of said judgment as allows the plaintiff to amend his…

<p>Pleading — right to share in a fund the proceeds of an insurance policy — when a claimant’s answer does not allege an indebtedness.</p> <p>In an action brought to determine the title to a fund of $5,000 paid into court by an, insurance company, the plaintiff claimed under an assignment from the beneficiary and the defendant set up a prior assignment executed by the same person, and in the fifth clause of the answer alleged that before the assignment to the plaintiff the defendant, in an action to which the plaintiffs were parties, recovered judgment against the common assignor for §2,275.43,; that this was ..unpaid; that the judgment was rendered upon the foreclosure of a bond and mortgage for $4,000, made by the common assignor and delivered to the defends ant as security for the same debt- for which the assignment referred to in parar graph second of the answer was made.</p> <p>Held, that the fifth clause of the answer was the proper subject of a demurrer;</p> <p>That, taken by itself and regarded as a separate defense or counterclaim, it contained no statement that the common assignor owed the defendant anything upon the loan for which the bond and mortgage were given or that there was any deficiency after the sale in foreclosure;</p> <p>That the court, therefore, would not be authorized, upon such allegations, to award any part of the fund to the defendant.</p>

<p>Betting and gaming^ the recording of. a bet is punishable only by a civil action by the loser — Penal Gode, § 351, does not apply.</p> <p>Section 17 of chapter 570 of the Laws of 1895, providing that where one upon a racecourse, entitled, to the benefits of the' act, records a bet,or wager upon á contest of speed of horses, he shall forfeit the value of any money or property so. wagered, to be recovered in a civil action by the person with- whom the wager is made, does not violate the following provision of section 9 of article:.1 of the Constitution of 1895,. “nor shall any lottery or the sale of lottery tickets, poolselling;. bookmaking or any other kind of gambling hereafter be authorized tor allowed within this State..” The section in question does not authorize poolselling, betting or wagering, . •</p> <p>The penalty to be imposed for recording a bet or wager upon such a contest of . speed of horses is one within the discretion of the Legislature, and the Legislature ma3r always prescribe the extent to which the punishment of a particular act will be'carried, and whether or not a particular act shall be a crime.</p> <p>The penalty prescribed by said section 17 of the act of 1895 is exclusive, and the penalties imposed upon bets by section 351 of the Penal Code have no application to a case falling within section 17 of chapter 570 of the Laws of 1895.</p> <p>The effect of the amendment to section 351 of the Penal Code, made at the same time with the passage of the act of 1895, and inserting in section 351 the words, “except when another penalty is provided by law,” leaves the offense of recording a bet punishable only by a civil action.</p>

<p>Appeal by John Fallon, Warden and keeper of the city prison, and others, from an order of the Court of Oyer and Terminer of the city and county of New York, entered in the office of the clerk of said court on the 31st day of December, 1895, discharging the relator from imprisonment.</p>

Appeal by the defendants, Moses S. Levy and another, as administrators, etc., of Adolph Levy, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of March, 1896, denying the defendants’ motion to serve an amended answer in the action and denying an application for an adjournment of the motion consented to by both parties.

Appeal by the defendant, The Manhattan Railway Company, from a judgment of the Superior Court of the city of New York in favor of the plaintiff's, entered in the office of the clerk of said court on the 18th day of November, 1895, upon the decision of the court rendered after a trial at a Special Term thereof.

Appeal by the plaintiff, American Forcite Powder Manufacturing Company, from a judgment .of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 11th day of October, 1895, upon the verdict of a jury rendered after a trial at the New. York Circuit, and also from an order entered in said clerk’s office on the 1st day of November, 1895, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, James Ridgwáy, as receiver, etc,,, of Charles Casper & Co., from a judgment of the Supreme Court in' favor of the defendant, entered in the office of the cleric of the county of New York on the 31st day of October, 1895, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint upon the merits.

Application by The Empire City Traction -Company for a certificate that it had complied With the provisions of section 59 of the Railroad Law, and that the public convenience and necessity require the construction of the railroad of said-company as - proposed’-in its articles of-association: ......

Appeal by the plaintiff, Tho Gould Roofing Company, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of February, 1896, as denies the plaintiff’s motion for an inspection and discovery of the books and papers of the defendants prior to November 28, 1892.

Appeal by the plaintiff, August Wuensch, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of March, 1896, denying the plaintiff’s motion to strike out certain paragraphs of the defendant’s second amended answer as redundant, irrelevant and scandalous. The action was brought to recover damages for an alleged libel.

Motion by the defendant, Daniel G. Thompson, as receiver, etc., for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division of the Supreme Court in the first instance, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court on the 6th day of February, 1896.

Appeal by the plaintiff, John Martin Layman, from an order of the Supreme Court, made at the New York Circuit and entered in the office of the clerk of the county of New York on the 28th day of October, 1895, setting aside the verdict of' the jury and granting a new trial. The jury rendered a verdict in favor of the plaintiff for $15,000.

<p>Sale# induced by fraud — the vendor may rescind and recover the property, except from a bona fide purchaser.</p> <p>Where the sale of personal property is induced by fraud, the true owner may rescind the sale and recover the property from a person who has received possession of it from the fraudulent vendee unless such person be a bona fide purchaser of the property.</p>

Appeal by the plaintiff, James S. Manning, for himself and as surviving partner of the firm of A. C. Manning & Co., from a judgment of the Supreme Court in favor of the defendant, entered in the office-of the clerk of the county of New York on the 8th day of December, 1892, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered' in said clerk’s office on the 2d day of December, 1892, denying the plaintiff’s motion for a new…

Appeal by: the plaintiff, Jessie I. McNeven, as administratrix, etc., of John McNeven, deceased, from a judgment of the Superior Coiirt' of the city of New York in favor of the defendants, entered in the office of the clerk of said court on the 29th day of May, 1895, upon the verdict of a jury rendered by direction of the court, as amended by an order entered in the office of the clerk of said court on the 3d day of July, 1895.

Appeal by the defendant, The Long Island Railroad Company,, from a judgment of the Court of Common Pleas for the city and. county of New York in favor of1 the plaintiff, entered in the office of the clerk of said court on the 12th day of October, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of October, 1895, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, George H. Kelley and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county óf New York on the Jth day -of November, 1895, upon the decision of the court rendered after a trial at the New York Special Term setting aside a general assignment for the benefit of creditors made by Hardenbergh & Co. to Hugo Hirsh.

. Appeal by the defendant, Charles G. Patterson, from so much of an order of the Supreme Court, made at the ¿New York Special Term and entered in the office of .the cleric of the -county of ¿New .York on the 24th day of February, 1896, granting alimony, back .alimony and counsel fee, as is set forth-in portions. of said order appealed from as stated in the opinion..

Appeal by the plaintiff, Henry. L. Sayles, from a judgment of the Superior Court of the city of Hew York in favor of the defendant, entered in the office of the clerk of said court on the 9th day of April, 1895, upon the report of a referee.

Appeal by the defendants, The New York Elevated Railroad 'Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the .'county of New York on the 17th day of July, 1895, upon the decision of the court rendered after a trial at the New York Special Term, with notice of an intention to bring up for review on said1 ' appeal two ordérs made at the New York Special Term and entered in said clerk’s office…

<p>Guardian ad litem for a defendant—Ms costs in. a foreclosure suit are not recover-. • able from the plaintiff.</p> <p>The complaint in an action set forth the proceedings which had been taken in an action for the foreclosure of a mortgage in which the- plaintiff .was appointed guardian ad litem of an infant defendant, and appeared, and, when, requested to do so, by the attorney for the plaintiff, served his answer as guardian'; that the usual judgment of foreclosure and sale was entered, which provided, among other things, for the payment to the plaintiff of his costs .and disbursements, and that his services as guardian were rendered for the benefit of the plaintiff in that action, the present defendant, and upon his implied request. The sale resulted in a deficiency, and the guardian ad litem did not receive his costs.</p> <p>The defendant interposed a demurrer to the complaint.</p> <p>Held, that the complaint did not state a cause of action;</p> <p>That the present plaintiff could not recover his costs under the foreclosure judgment, as there had been no adjudication that, the costs should be paid by the mortgagee plaintiff;</p> <p>That he could not recover them under his allegation of an implied promise by the mortgagee to pay the costs, as the allegation that the guardian's services were rendered for the mortgagee plaintiff, and upon the latter’s implied request, was a mere conclusion of law not borne out by the facts, which showed that the services were really rendered for the protection of the infant;</p> <p>That the mortgagee plaintiff was an adverse party, and that the service of the answer could not in any sense be said to have been made, for his benefit;</p> <p>That the allegation that the attorney for the mortgagee plaintiff requested the guardian ad litem, to serve the answer was of no moment;</p> <p>That the complaint should have been dismissed, but not upon the merits.</p>

• Appeal by -the defendants, The New York Elevated Railroad Company and another, from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office- of . the clerk of the county mf New York on.the -25th day of April, 1894, upon the decision of the cour t .rendered after-a trial at the New York Special Term. •

<p>Appeal by the plaintiff, Frank Krzywoszynski, an infant, by Theodore Krzywoszynski, his guardian ac! litepi, from a judgment of the Superior Court of the city of New York in favor of the defendant, entered in the office of the clerk of said court on the 2d day of November, 1895, upon the dismissal of the complaint directed by the court after a trial before the court and a jury, and also from an order entered in said clerk’s office on the 10th day of December, 1895, denying the plaintiff’s motion for a new trial.</p>

Appeal by the defendants, The Manhattan Bailway Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 9th day of March, 1894, upon the decision of the court rendered after a trial at the New York Special Term. The action was brought to restrain the maintenance and operation of the defendants’ railway and to recover the damages caused to the plaintiffs’ premises thereby.,

Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of Hew York, from a judgment of the Supreme Court-in favor of the plaintiff and of certain of the defendants, entered in the office of the clerk of the county of Hew York on the 24th day of October, 1894, upon an order confirming the report of a referee.

<p>Appeal by the defendants, Abraham Cohen and others, as executors, etc., of Julius Lipman, deceased, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 8tli day of April, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of April, 1895, denying the defendants’ motion,for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, The Village of Warsaw, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of February, 1896, denying the defendant’s motion to change the place of trial of -the action from the county of New York to the county of Wyoming.</p>

<p>Liquor Tax Lam of 1896, constitutional — the justice of the law immaterial upon the question of its constitutionality — it is not a tax lam, but merely designed to regulate the liquor traffic — an exercise of the police poicer — a tax need not be uniform, nor the pwnish/nient — it does not appropriate public moneys and a two-thirds vote was unnecessa/ry — the classification of cities was not impyroper — it need not be submitted to mayors of cities for approval.</p> <p>On March 23, 1896, one Fred G. Einsfeld applied to the commissioners of excise of the city of New York for a license to sell wines and- liquors at retail for a period of one year; the application was rejected upon the ground that, under the provisions of chapter 112 of the Laws of 1896, known as the “Liquor Tax Law,” the commissioners could not grant a license for a term expiring later than April 30, 1896, and this ground of refusal was stated in substance in the return made to a writ of certiorari obtained by Einsfeld for the purpose of reviewing the determination of the excise commissioners.</p> <p>Held, that the Liquor Tax Law was constitutional;</p> <p>That the constitutionality of a law was not to be determined by the fact that the law was unjust, unwise, oppressive or odious ;</p> <p>That the law in question, although denominated “ The Liquor Tax Law,” was not a tax law, but one, the purpose and intent of which was to regulate the traffic in liquors throughout the State, and to provide for local option;</p> <p>That the fact that the act was not primarily designed to raise revenue was apparent from this local option feature;</p> <p>That any taxation under the law was a mere incident to the regulation of the traffic in liquor;</p> <p>That the- regulation of the traffic in liquors was peculiarly within the police power of the State, which was not impaired by the fourteenth amendment to the Constitution of the United States;</p> <p>That in the regulation of such traffic the Legislature had a right to recognize local differences and needs, and to impose taxes not uniform throughout the State;</p> <p>That the want of uniformity of punishment for a violation of the penal provisions of the act did not render it unconstitutional, as an offense punishable under a general law might be so punished with more severity in one part of the State than in another, and that an act might constitute a penal offense in one part of the State which was not punishable in another;</p> <p>That the law did not violate section 20 of article 3 of the State Constitution providing that the assent of two-thirds of the members elected to both branches of the Legislature should be requisite to every bill appropriating public moneys or property for local or private purposes;</p> <p>That the two-third share of the taxes collected, which by the terms of section 13 of the act belong to the town or city in which the traffic was carried oh -from which the revenues were received, were not public moneys within the meaning. of the Constitution; . '</p> <p>That from the beginning the two-thirds of the proceeds of the tax, belonging to the town or city,.were kept apart in ownership, and they were not made moneys of the State simply because they were collected by the machinery of the State;</p> <p>That the act was not unconstitutional because it classified cities in a different way from that contemplated by section-2 of article 12 of the State Constitution, as that, section had reference only to laws relating to the property;, affairs or government of cities and did not apply to a general law which regulated the liquor traffic throughout the whole State;</p> <p>That the only provision in the law Which could be said to relate to. the government of a city, separate and distinct from the general provisions relating to the government of the State, was that which abolished the existing excise . commissioners throughout the State, which was ;a matter of State and not of municipal governmental policy, in which general plan no one city or town had. any more interest than any other; ■</p> <p>That as the law was not a special city law relating to cities of the first class, and as it did not relate to the government or property or affairs of a particular city, there was no reason why the law should have been submitted to the mayors of the cities of the first class.</p>

Appeal by the plaintiff, Lewis A. Dmnond, from a judgment of the Supreme Court in favor of,the defendants, Henrietta Church and others, entered in the office of the clerk of the county of Albany on the 12th day of December, 1894, upon the report of a referee.

; ’ Appeal by the defendant, Elizabeth B. Denton, from a judgment, ■of the Supreme Court in favor of the plain tiff, entered in the office of the clerk of the county of Washington on the 3d day of October, 1894, uj>on the verdict of a jury rendered after a trial at the Washington Circuit.

Appeal by the plaintiffs, Lewis E. Windover and another, as administrators, etc., of Lyman Windover, deceased, from a judgment of the Supreme Court in favor of the defendant,- entered in the office of the clerk of the county of Rensselaer on the -14th day-of J une, 1895, upon the dismissal of the complaint directed by the court after a trial at the Rensselaer Circuit before the court and a j™7- This action was commenced by the plaintiffs as administrators of Lyman Windover,…

Appeal by the plaintiff, Margaret Kain, as administratrix, etc., of David Kain, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Ulster on the 13th day of September, 1895, upon the decision of the court rendered after a trial at the Ulster Circuit before the court without a jury dismissing the. plaintiff’s complaint.

Appeal by The Manufacturers’ Bank of Cohoes, bj, Y., an attaching creditor of the property of the defendant, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 23d day of January, 1896, denying its- motion to vacate ■ and' set aside a judgment by confession in favor of the above-named- plaintiffs against the abovemamed defendant and the execution issued .thereon, to- the Albany county…

Appeal by the defendant, The Village of Glens Falls,.from a judgment- of the- Supreme Court in favor -of the plaintiff, entered in the office of the clerk of the county of Warren on- the 14th day of November, 1895, upon the verdict of a jury rendered after a trial at the Warren Circuit, and also from an order entered in said clerk’s, office on the 15th day of November, 1895, denying the defendant’s-motion for a new trial made upon the minutes.

■ Appeal by the defendant, The. Central Vermont .Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 20th day of March, 1895, upon the verdict of a jury rendered after a trial at the Franklin' Circuit, and also from an order entered in said clerk’s office on the 15th day of March, 1895, denying the ■defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Lyman J. Smith and another, from a judgment of the County Court of the county of Broome in favor of the plaintiff, entered in the office of the cleric of the county of .Broome on the 26th day of September, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Broome County Court upon an appeal from a judgment rendered by a justice of the peace.

Appeal by the defendant, L. Howard Wilson, as late sheriff of the county of St. Lawrence, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of St. Lawrence on the 4tli day of September, 1895, upon the report of a referee. The action was brought to recover damages for the conversion of certain goods, alleged to have belonged to the plaintiff, which the defendant, as. sheriff of St..

Appeal by the plaintiff, Susan Baker, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 28th day of December, 1894, upon the report of a referee.

Appeal by the defendant, The Troy and West Troy Bridge Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Albany on the 3d day of June, 1895, upon the verdict of a jury rendered after a trial at the Albany Circuit, with notice of an intention to bring up for review upon such appeal an order entered in said cleric’s office on the 1st day of July, 1895, denying the defendant’s motion for a new trial…

<p>Failure to file a bond is no defense to the sureties of a trustee in an action thereon — what is a sufficient delivery.</p> <p>In an action to recover upon a bond, it appeared that Cynthia Lane, in 1863, made her will, and bequeathed to Cynthia J, Haywood (who.subseqiiently, .by marriage, became Cynthia J. Miller, and whose administrator was the plaintiff) the sum of §500, and to Alice Haywood the sum of §300, which was to be paid to them by her' executor at majority, but until that time was to be kept at" interest. The will further directed the executor to give security for the discharge of his trust. Cynthia Lane dying in 1864, letters testamentary were issued to Robert M. Townsend, and on March 15, 1865, Robert M. Townsend, as principal, and the defendants, John J. Townsend and Enoch L. Townsend, as sureties, executed a bond, conditioned for the faithful performance by Robert M. Townsend of the duties of his trust, The bond¡ however, was not filed in the office of the surrogate, but remained in the possession of Robert M. Townsend for two or three years, when it was taken from him by the defendant John J. Townsend and burned. On the 16th day of March, 1865, Robert M. Townsend delivered a copy of it to the plaintiff, attached to which copy was an affidavit, stating that it was a copy of the original filed in the office of the surrogate of Otsego county, and he thereupon received the sum of §800, moneys of the trust.</p> <p>Robert M. Townsend made default in paying over the legacy, and proceedings were taken, in which it was adjudged that he was indebted to the plaintiff, who had been appointed, in 1878, administrator of Cynthia J. Miller, in the sum of §2,324.80 by reason of her legacy; the decree remained unsatisfied to the amount of §1,755.09.</p> <p>Held, in this action against the sureties, that the administrator was entitled to recover;</p> <p>That the same strict rules relative to delivery, which are applicable to deeds, do not apply to bonds and undertakings;</p> <p>That, so far as the sureties were concerned, no delivery of the bond, beyond its delivery by the sureties to Robert M. Townsend, was necessary;</p> <p>That, the only thing left to be done, after the delivery of the bond to Robert Jf. Townsend, was, that the bond should have been filed in the surrogate’s office, and that as such a filing was solely for the benefit of the legatees, and was not for the benefit of the principal or of his sureties, the fact that this was not done was not a defense to the sureties;</p> <p>That, by signing the bond and giving it to the principal, the sureties placed it in his power to secure the money, and that, after so doing, the sureties could not ■repudiate the bond to the detriment of the parties for whose security it was given.</p>

<p>Appeal by the plaintiff, James H. Bouton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the'clerk of the county of Delaware on the 30th day of January, 1895, upon the verdict of a jury rendered after a trial at the Delaware Circuit dismissing the plaintiff’s complaint upon the merits, and also from an order entered in said clerk’s office on the 29th day of January 1895, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Railroads-.— rival applicants for a certificate of public convenience .and necessity,— the Board of Railroad Commissioners may determine to which it shall issue—to review what, a certiorari will not lie — a right of appeal or another proceeding pending is a bar to a certiorari ■—• to review what, a certiorari is proper — the prior filing of a certificate of incorporation creates no. vested right — the corporation is indioate until the commissioners’ certificate is issued to it—rival applications considered together—discretionary powers of the commissioners — burden of proof.</p> <p>In a proceeding to review by certiorari the action of the Board of Railroad Commissioners, in refusing to issue to The Depew and Southwestern Railroad Company a certificate of public convenience and necessity under section 59 of the Railroad Law (Laws of 1890, chap. 565, as amended by Laws of 1892, chap. 676), and in issuing such certificate to The Terminal Railway of Buffalo, it appeared that the relator filed its articles of association on the loth of June, 1895, and The Terminal Railway of Buffalo filed its articles on the 17th of June, 1895, and that, on the same day, each company applied to the Board of Railroad Commissioners for the certificate in question, each company proposing to build a road between the villages.’of Depew and Blasdell, in the county of Erie, upon practically the same routes and of the same length, the termini and capital stock of each road being the same Each road was of standard gauge and was to he operated by steam power, and each company had complied with the requirements of said section 59.</p> <p>Both the applications were heard together, and a certificate was refused to the relator, and one was issued to The Terminal Railway of Buffalo. The hoard of directors of the relator thereupon took proceedings, under section 59, to review the determination of the hoard; these proceedings were pending béfore the General Term of the Supreme Court for the fifth department when the writ of certiorari was granted in this matter hy which it was sought to review:, by certiorari, the determination of the Board of Railroad Commissioners, and to reverse its action in refusing to issue a certificate to the relator, and in issuing • one' to The Terminal Railway of Buffalo, or, at least, to reverse its action in issuing such a certificate to The Terminal Railway of Buffalo.</p> <p>Held, that under section 59 of the Railroad Law the Board of Railroad Commissioners had jurisdiction to determine, in a case of rival applicants, whether certificates should be issued to both, or a certificate should issue to one only, and, if only to one, to which one;</p> <p>That, so far as related to the refusal of the Board of Railroad Commissioners to grant a certificate to the relator, the action of the board could not be reviewed hy certiorari.</p> <p>Mrst. The remedy for the grievance of the relator, provided by section 59, was adequate, and, having been initiated, excluded the right to a writ of certiorari,</p> <p>Second. The action of the Board of Railroad Commissioners in refusing to grant a certificate did not finally determine the rights of the parties, as a proceeding to review it was given by the Railroad Law, and, therefore, a writ of certiorari would not lie to review the determination of the board.</p> <p>Third. The application to the General Term of the fifth department to review the proceedings of the board was a proceeding in the nature of an appeal from the decision, and for that reason a writ of certiorari should not be granted while an appeal was pending in the same matter;</p> <p>That, as no provision was made for an appeal from or a review of the determination of the Board of Railroad Commissioners in granting a certificate to a rival applicant, its review might be effected under a writ of certiorari;</p> <p>That the Board of Railroad Commissioners had j urisdiction in the proceeding, and had not violated any rule of law to the prejudice of the relator;</p> <p>That the relator obtained no vested right by reason of its having first filed its articles of association;</p> <p>That, until the certificate in question was issued, the corporation had no right to exercise the “powers conferred by law upon such corporations,” and that until ■ it could exercise its statutory powers it was an inchoate thing;</p> <p>That the Board of'Railroad Commissioners properly considered the rival applications at the same time;</p> <p>That, while some of the considerations which apparently influenced the Board of Railroad Commissioners in its decision, viz., the parties in interest (both concededly acting in good faith and having ability to build the road), the lines of railroad that were to furnish them business, whether the corporations were organized in New York or other States, and whether their capital stock was owned by residents or non-residents, were improper, there still remained, after their elimination, enough in the case to call for the exercise of their discretion as to which applicant should receive the certificate;</p> <p>That the burden was upon the relator to show that the decision of the commissioners was contrary to the clear weight of evidence, and that this did not appear.</p> <p>Parker, P. J., dissented.</p>

Appeal by Winsor Boice, a purchaser upon a partition sale of real estate, from an order of the Surrogate’s Court of the county of Saratoga, entered in said' Surrogate’s Court on the 26th day of November, 1895, denying his application to be “subrogated to the rights of the creditors of said estate (of Charles Stumpf, deceased)by the payment into this (the surrogate’s) court of' the deficiency of the proceeds of the sale in partition deposited in court, and the-amount of…

Certiorari issued out of the Supreme Court and attested on the 29th day of October, 1895, directed to James A. Roberts, Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings in regard to the settling of the amount of the capital stock of the relator employed by it in the State of New York and fixing the tax and penalty thereon for the year and ten months ending with…

Appeal by the defendant, the Shepard & Morse Lumber Company, from a judgment of the Supremé Court in favor of the plaintiffs, entered in the office of the cleric of the county of Albany on the 8th day of October, 1895, upon the report of a referee, except so much thereof as dismisses the complaint as to the first cause of action therein set forth. • The complaint alleged in substance, among other things, that the defendant wrongfully obtained possession of a large quantity…

<p>Appeal by the defendants, Joseph E. Gavin and another, from a. judgment of the Supreme Court in favor of the plaintiff, entered in. the office of the clerk of the county of Chemung on the 6th day of February, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Chemung' Circuit.</p> <p>The defendants, July 13, 1883, gave the plaintiff’s firm a chattel mortgage under seal upon the lease of the coal yard of which the defendants were in possession as tenants, and upon the horses, wagons, etc., which they used in conducting their coal business, to secure the payment to said firm of ■$1,568.'T9, being the sum of four promissory notes of the same date, aggregating the same amount, payable respectively in three, six, nine and twelve months, with interest, “which the said Joseph E. Gavin and James T. Gavin hereby agree to pay.” The mortgage contained the usual power in case of default to enter and take possession of the mortgaged property, and to sell the same at public or private sale and to apply the avails to the payment of the debt. The defendants being in default in payment the plaintiff’s firm took possession of the property in the latter part of 1884, and about a week later, leased it to the defendants, reserving to themselves some rights in the yard. The defendants remained in possession under this arrangement until December 11, 1886, when the plaintiff’s firm foreclosed the mortgage and sold the mortgaged property, realizing $255.75.</p> <p>This action was commenced in December, 1893, to recover the balance unpaid upon the mortgage, the plaintiff relying 'upon the covenant of the defendants contained in the mortgage to pay the notes or their amount.</p> <p>The defendants pleaded the Statute of Limitations, and, in effect, that the mortgagees by taking possession of the mortgaged property in September, 1884, and not foreclosing the mortgage until December, 1886, thereby became liable for the value of the property at the time they took possession of it, and they offered to prove that such value was $1,800, but upon the plaintiff’s objection the evidence was not received.</p> <p>The court directed a verdict for the plaintiff for $1,910.11, being the amount of the -mortgage debt, with interest, less $54.18 paid by the defendants, and $255.75, the sum realized upon the foreclosure sale, and $300, the rent paid by the defendants to the plaintiff’s firm from September, 1884, to December, 1886.</p>

Appeal by the petitioner, Anthony W. Dimock, from an order of the County Court of Ulster county, entered in said clerk’s office on the 5th day of April, 1895, dismissing upon the merits the petitioner’s application for a discharge from his debts, and also from an order bearing date the 11th day of March, 1895, and entered in said clerk’s office, allowing tl)e objecting creditors to introduce further documentary evidence after the testimony had been closed and the case was…

<p>Appeal by "the defendant, Egbert S. Wright, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 12th day of December, 1891, upon the report of a referee.</p>

<p>Partnership accounting—• liability where one partner sells all the assets—when the sale is not made in good faith.</p> <p>In an action brought to procure a partnership accounting it appeared, among other things, that the defendant had sold all the property of the firm for §300, and the referee to whom the action was referred found that the sale was made in good faith and charged the defendant therefor with only §800, although the property was sold to the defendant’s brother at night, unexpectedly to the plaintiff, the defendant never having asked any one else to purchase the property, ■which was worth $1,000.</p> <p>Held, that the sale-was fraudulent;</p> <p>That, assuming that the defendant had an interest in the property similar to that of a mortgagee, and that a mortgagee could sell at private sale, such sale to be valid must be fairly made.</p>

<p>Appeal by the defendant, Richard H. Gardner, from a judgment of the Supreme Court in favor of the plaintiff; entered in the office of the clerk of the county of Rensselaer on the 28th day of September, 1895, upon the decision of the court rendered after a trial, at which certain questions had been submitted to the jury, before the court and a jury, at the Rensselaer Circuit.</p> <p>This action was brought by a judgment creditor of the defendant, Richard H. Gardner, to reach the surplus income of a trust fund after providing for the support of the judgment debtor. The fund was created by the will of Jefferson Gardner, deceased, and by the judgment appealed from the trustees are directed to pay over to the plaintiff, in extinction of his judgment, so much of the annual income willed to the judgment debtor as shall be in excess of the sum of $300, which was the sum found to be necessary for the support and maintenance of the judgment debtor under his present circumstances.</p>

<p>Appeal by the defendant, The Village of Glens Falls, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 18th day of November, 1895, upon "the verdict of a jury rendered after a trial at the Warren Circuit, and also from an order entered in said clerk’s office on the . 15th day of November, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, John Graves, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Cortland on the 24th day of October, 1894, upon a nonsuit granted by the court after a trial before the court and .a jury at the Cortland Circuit, with notice of an intention to bring up for. review upon such appeal an order entered in said clerk’s office on the 11th day of October, 1894, denying the plaintiff’s motion for a new trial-made upon the minutes.</p>

<p>New trial — newly-discovered evidence that a decedent, killed at a railroad crossing,, looked and listened— discretion of triad justice.</p> <p>In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, it appeared that the intestate was killed while attempting to drive across the tracks of the defendant, a railroad company, which the plaintiff alleged did not give proper signals. Upon the trial of the action the plaintiff could not produce any witness who was able to testify as to the conduct of the decedent at the time of the accident, and the court directed a verdict for the defendant- upon the-ground that it did not appear that the intestate as he approached the crossing looked and listened for the approach of the train. Subsequently, on a motion for a new trial made upon the ground' of newly-discovered evidence, the plaintiff proved by his affidavit that a person named Gibbs saw the decedent approach the crossing, saw the collision and saw the decedent look and listen.</p> <p>Held, that the evidence of Gibbs was not cumulative and would probably have changed the result, and that a new- trial should be granted;</p> <p>That where the trial justice who heard the motion granted a new trial under such circumstances, his discretion would not be reviewed.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 24th day of April, 1895, directed to James A. Roberts, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all his acts and proceedings relative to an assessment of the relator, with all the papers, documents and records before him pertaining to such assessment, and also a statement of such facts as maybe pertinent and material to establish the legality or illegality of the assessment made by the Comptroller in the imposition of a tax on the relator, under the provisions of chapter 542 of the Laws of 1880, and the acts amendatory and supplemental thereto, together with all evidence, accounts, papers and records before him pertaining to an application for a revision and resettlement thereof.</p>

<p>Appeal by the plaintiff, Henry W., Hayden, from a judgment of the Supreme Court in favor of the défendants, entered in the office . of the-clerk of the county of Warren on the 28th day of September, 1895,-upon the decision of the court rendered after a trial at the Warren Special Term dismissing the plaintiff’s complaint upon the merits, and also from an order entered in said clerk’s office on the 28th day of September, 1895-, granting to the defendants an extra allowance of costs.</p>

<p>Appeal by the defendant, The City of Gloversville, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 12th day of June, 1895, upon the verdict of a jury rendered after a trial at the Fulton Circuit, and also from an order bearing date the 11th day of June, 1895, and entered in said clerk’s office, denying the defendant’s' motion for a new trial made upon the minutes.</p>

<p>Preference by an insolvent corporation -^-expectation of financial assistance, imma- : terial on the question of an intent to prefer— test of the validity of a payment to a,, creditor.</p> <p>In. an action brought by the receiver of a manufacturing corporation to recover from the defendants a sum of money alleged to. have been paid them as a preference, in violation of section 48 of chapter 688 of the Laws of 1893, it appeared that about the time of the payment the insolvency of the corporation was imminent. Upon the further question as to whether the payment , Was made with the intent to give a preference, the president Of the corporation testified that there was' no intent to give a preference to the defendants; and that he considered that the company could pay all its debts if he could have time to bring it around. The secretary testified that he did not intend to give the defendants a preference “if all the agreements were carried out.” What these agreements were did not appear.</p> <p>It was shown that $17,000 worth,of debts to other persons were due when the indebtedness to the. defendants (which was paid a few days before it fell due) would have matured, and that the company did not have available assets from which to pay tho other debts, although the managers of the corporation expected to get help through other persons. Within two days after the payment to the defendants two suits were brought by other creditors with the intention of obtaining a preference if possible.</p> <p>Held, that, the corporation was insolvent when it could not pay its debts in the due course Of business;</p> <p>That the defendants received an advantage; that the company meant they should receive an advantage, and that this constituted an intent to make a preference;:</p> <p>"That an, intent to prefer could not be rebutted by showing that the debtor -had . also another motive, in that he expected help by means, of future loans of money by the aid of which he hoped to be enabled to continue his business;</p> <p>That the statute did not make the validity of the payment depend on whether it was made in the ordinary course of business or on the question whether.the creditor had any reasonable grounds to believe the debtor to be insolvent, but simply on whether there was insolvency actual and imminent and an intent to prefer.</p>

<p>Appeal by Sarah J. O’Connor and three other defendants from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 3d day of October, 1895, upon the report of a referee.</p> <p>The action was commenced on April 27, 1892.' The judgment was in favor of the plaintiff for the sum of $200, with interest from the commencement of the action, besides costs.</p> <p>The action was brought to recover damages to plaintiff’s property arising from the falling of a wall that was on defendant’s property on the line between it and plaintiff’s lands.</p>

<p>Appeal by the plaintiff, Martha E. Seymour, from portions of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Broome on the 4th day of July, 1893, upon the report of a referee, as follows:</p> <p>First. From that portion of the said judgment which limits the amount of recovery of damages entered in' said judgment to the sum of $14,613.69, plaintiff claiming that such amount should be increased by the addition'of $602.37, being the amount of interest on $2,504.64 from July 1, 1889, the date of the bringing of the action, to July 4, 1893, the date of the final judgment; said sum of $2,504.64 being the accrued interest unpaid July 1, 1889, on principal which had previously become due from time to time, pay.ments of which had been demanded when due, and which payments were refused, as admitted in the answers, and found in the interlocutory judgment.</p> <p>Second. From that portion of said judgment which adjudges and decrees “ that the plaintiff is not entitled to a judgment against the individual defendants, or any of them.”</p> <p>Third. From that portion of said judgment that adjudges and decrees “ that as to the defendants, Tracy R. Morgan, Job Y. Cong-don, Benjamin De Yoe, Edward B. Stephens,'Alonzo C. Matthews, Harris Gr. Rodgers, Robert Brown and Cyrus Strong, that the plaintiff’s complaint be dismissed, so far as the same demands a personal judgment against them.”</p> <p>Also from so much of an interlocutory judgment entered in the clerk’s office of the county of Broome on the 23d day of July, 1892, as adjudges:</p> <p>“ That the plaintiff is not entitled to á judgment against the defendants, Erasmus D. Robinson, Tracy R. Morgan, Job Y. Cpngdon, Benjamin De Yoe, E. B. Stephens, Alonzo 0. Matthews, Harris Gr. Rodgers, Robert Brown and Cyrus Strong for having misappropriated the. funds so received by them, unless upon ian accounting it shall' appear that they have misappropriated said funds.”</p> <p>Also from so much of said interlocutory judgment as holds or implies that, in order for plaintiff to recover a judgment in .this action against said individual defendants, it would be necessary for it to appear upon an accounting that, they had misappropriated the funds received by them.</p> <p>Also from that portion of said interlocutory judgment which adjudges as follows:</p> <p>“ That, should it appear on said accounting ” -{i. e., the accounting ordered by the said interlocutory judgment) “ that any of the moneys; received by the defendant corporation, and which should have been paid on said bonds, have been misappropriated by defendants, then that said’ plaintiff may have a personal judgment against said defendants, Tracy R. Moigan, Job' N. Congdon, Benjamin DeVoe,, Edward B. Stephens, AlonzoO. Matthews, Harris G. Rodgers, Robert Brown and Cyrus Strong, for the same with execution, so that plaintiff, shall suffer no loss.”</p> <p>Also from that portion of the order herein entered in Broome county clerk’s office on June 30, 1891, that settles the form of the said interlocutory judgment by prescribing that said judgment shall contain the provisions and .terms that are herein appealed from by plaintiff, as set forth, in this notice. ’</p> <p>Also from so much of an order made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 4th day of July,’ 1893, which holds and orders-as -follow':</p> <p>First. From that, portion which denies “in all things” “ the motion of the plaintiff to strike out or expunge from said report certain parts of the referee’s report mentioned in- the plaintiffs notice of motion.”</p> <p>■Second. From that portion which denies “ the motion of -the plaintiff to disregard, in rendering final judgment in'this action, all the matters and things in said report of Referee Knox which were asked on ” the motion for final judgment “ to be expunged or stricken out.”</p> <p>• Third. From that portion which denies “ the application of motion of the-plaintiff, in this action that the defendant Tracy R. Morgan individually be made liable for the amount due the plaintiff in this action, and for all costs and disbursements, including the costs of the reference under the interlocutory judgment.”</p> <p>Fourth. From that portion which denies “ the application of the-plaintiff for costs against all of the individual defendants in this-action.”</p> <p>Fifth. From that portion which denies “ the application of the plaintiff for a final judgment that the individual defendants have" misappropriated the funds in question.”</p> <p>Sixth. From that portion which denies “ in all things ” “ the motion of the plaintiff to strike out portions of the referee’s report.”</p> <p>Seventh. From that portion which denies “ the motion of the-plaintiff for interest upon the sum of $2,504.64, that being the amount of interest which had accrued upon the principal sum due at the date of the beginning of this action.”</p> <p>Eighth. From that portion which denies “ the motion of the-plaintiff for judgment against the individual defendants, and for costs against them.”</p> <p>Ni/nth. From that portion which grants “ the motion of said individual defendants for judgment against the plaintiff dismissing the plaintiff’s complaint as to the individual defendants so far as-the same demands a personal judgment against them.”</p> <p>A motion was made by the defendants, The Spring Forest Cemetery Association and others, to dismiss the appeal.</p>

<p>Appeal by the defendants, Rhoda. Shultes and others, from á judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 12th day of December, 1894, upon the report of a referee.</p> <p>The action was an action of ejectment brought by the successor of theTessol under a perpetual lease against the tenants for nonpayment of rent.</p>

<p>'Attachment-Ageneral assignment Try a firm—the fraud of one partner not known ... to the others will not vitiate it facts, not opinions, must be shown-.— honesty presumed— the question as to the validity of an attachment is one. of strict legal sight.</p> <p>Upon an Appeal from.an order denying a motion made by certain judgment cred- . itors to" vacate an attachment, it appeared that the action in which the attach- - ment was. granted .was brought against the defendants named therein as a firm; that the attachment was against the- firm property, and that the transfer complained of was a general assignment made by the firm for the benefit Of cred- ' itors, as to which the.affidavits alleged that one partner named. Wallace .had .' general control of the partnership funds and had transferred some of them to pay his individual debts and had given a firm note for his personal obligation, and that he had.shortly before the assignment transferred' individual property to his wife; had deceived one of the deponents with reference to paying certain firm notes; had secreted a large amount of the firm property, and that, the . assignment was an attempt to prefer the estate of one Wilder, deceased,, to the . extent of §12,300 and to pay from the firm assets money never borrowed from Wilder’s executors, included in which $12,300 was a §4,500 note, which the deponent stated that he believed,' from an' examination of Wallace’s bank ‘ account, that the firm had had no part of, as to' which acts there was, however,./ nothing to show connivance on the part of the other partners, but it appeared .rather that the firm had been defrauded by Wallace.</p> <p>Held, that the affidavits showed no facts establishing a fraudulent intent on the part of the firm, but merely tended to show acts of fraud’ upon the-part of Wallace; . ■ .</p> <p>That the opinion of an affiant was not a fact which would sustain an attachment;</p> <p>That where facts, aré stated on information and belief, the sources.of thcinformation and the grounds of the belief must also be stated;</p> <p>That if facts stated were as consistent with an. honest as with a fraudulent intent, fratid could not be inferred from them:' ■ . '</p> <p>That where subsequent lienors attacked an attachment, each party claiming a better lien, the sole question presented was whether the affidavit upon which the attachment was granted was sufficient to sustain the attachment, and the case became one of strict legal right, and did not, as might be the case where the judgment debtor moved to set aside the attachment, call for an explanation by the moving party of the facts alleged in support of the attachment.</p>

Certiorari issued out of the Supreme Court and attested on the 22d day of October, 1895, directed to James A. Roberts, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and .singular Ms proceedings in regard to- assessing a franchise tax against the relator under chapter 542 of the Laws of 1880, and the acts amending the same.

<p>Appeal by the defendant, The National Accident Society of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 10th day of July, 1895, upon the verdict of a jury rendered after a trial at the Warren Circuit, and also from an order entered in said clerk’s office on the 10th day of July, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Wells & Op. (Limited), from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the plerk of the county of Broome on the 18th day of June, 1895, upon the report of a referee.</p>

Certiorari issued out of the Supreme Court and attested on the 3d day of December, 1895, directed to the board of' trustees of the village of Saratoga Springs, commanding them to certify and' ’ return to the. office of the clerk of- the county of- Saratoga all and singular their proceedings in regard to the .removal of the relator from the. office of, street commissioner of the village of Saratoga Springs.

<p>Complaint — a party demanding legal and equitable relief cannot, after obtaining an injunction, have the action stricken from the equity calendar.</p> <p>The complaint in an action alleged that the plaintiffs owned certain real estate, which was conveyed to them by two of the defendants, and was in the occupation of two other defendants, all of whom were irresponsible; that a conspiracy existed between the defendants to wrongfully hold possession of the land until the expiration of the season of 1895, so that they might wrongfully cut and ■dispose of the crops, and judgment was demanded for the possession, for a temporary injunction restraining the cutting of grass or crops, and, finally, for a permanent injunction and for damages; it was further alleged that the plaintiffs had no adequate remedy at law.</p> <p>The answer of the defendant George Decker, among other things, alleged that the plaintiffs had an adequate remedy at law. •</p> <p>The plaintiffs obtained an injunction pending the action, which was noticed- for trial and placed upon the Special Term calendar as an equity action, from which, upon the plaintiffs' motion, the cause was stricken, upon the ground that the action was an action at law and not a suit in equity.</p> <p>Held, that the decision was erroneous;</p> <p>That the action was not merely one in ejectment, as two of the defendants were not necessary parties, except under the allegation that they were conspiring wrongfully to hold possession and cut the crops, and it was alleged that all were insolvent, and that irreparable damage would be done, and that the plaintiffs had no adequate remedy at law; ■</p> <p>That the action was clearly one demanding both legal and equitable relief, and as such was not one where a jury trial could be demanded as a matter of right;</p> <p>That the plaintiffs, having demanded equitable relief, and having obtained it in part by the temporary injunction, could not now, upon their own motion and against the protest of the defendants, remove the action to a legal forum.</p>

<p>Seduction under promise of marriage — an admission by the accused of mere intercourse does not admit seduction. . . .</p> <p>Upon an appeal from a judgment convicting the defendant of the crime of seduction under promise of marriage,, the court, in its charge to the jury, said: ‘1 Upon the question of seduction you will have no difficulty in arriving at your 'decision. The prisoner admits it.” The defendant had admitted simply that he had had sexual intercourse with the complaining witness, but did not admit that he had seduced her.</p> <p>Held, that the charge of the court was prejudicial to the defendant;</p> <p>That merely having sexual intercourse with a female did not constitute seduction;</p> <p>That in order to constitute seduction the defendant must use insinuating arts to, overcome the opposition of the seduced and must, by his wiles and persuasion, without force, debauch her;</p> <p>That the question whether the defendant seduced the person in question should have been submitted to the jury.</p>

<p>Appeal by the defendant, Nellie A. Aitken, as administratrix-,, etc., of J. Scott Aitken., deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county oi Columbia on the 11th day of ÍTovember, 1895, upon the report of a referee.</p>

<p>Lease —complete except its reduction to writing—taking a nm lease from, the landlord merges the former lease — sale of the land by the landlord—pcorty.</p> <p>Where parties agree orally as to the terms of a lease of premises for one year, and nothing is left to be done except to reduce the agreement to writing, the contract is complete even though the writing is never drawn.</p> <p>Where the parties, who have acquired the existing rights of a former tenant, make a new lease with the landlord, they must be deemed to have surrendered the rig-hts which they acquired from the former tenant, and. to hold their possession thenceforth under the new lease.</p> <p>Where an action is brought to recover rent and the defendant interposes a general denial, he cannot show under it that, prior to the termination of the lease, the plaintiff had conveyed the premises without reserving the rent.</p> <p>Nor can he, under such an answer, prove that the wife of the plaintiff was a ' joint owner of the premises and had not been made a party.</p>

<p>Defenses — stricken out when false — counterclaim, not — designating facts as a “ defense” - precludes a claim that they constitute a “ counterclaim” — effect— issue that the plaintiff is not a corporation — alleging both a sale and a pledge.</p> <p>Any affirmative defense which clearly appears to be false may be stricken out as sham, but a counterclaim cannot be stricken out as sham, for it is not a defense . within the meaning of section 538 of the Code of Civil Procedure, nor can the court strike out as sham an answer which consists of a mere denial.</p> <p>A pleader.who designates facts set forth in his pleading as a “defense” cannot subsequently claim, when an emergency or liis convenience makes the change desirable, that they constitute a counterclaim.</p> <p>An allegation denying on information and belief that the plaintiff is a banking association by the name set forth in the complaint, followed by a second averment, also upon information and belief, that there is no such corporation as the First National Bank of Saratoga Springs as alleged in the complaint, is not an affirmative allegation that the plaintiff is not a corporation, and it raises no issue upon that question. '</p> <p>In an action brought to recover upon a promissory note, the answer alleged that the defendant sold and delivered to the plaintiff certain bonds for the value of which the plaintiff was still indebted to the defendant, and then followed a statement that the plaintiff had not accounted to the defendant for the value of : the bonds.</p> <p>The affidavit of the plaintiff’s cashier distinctly stated that the bonds were never sold to the plaintiff; that they were delivered to it as collateral security for an indebtedness of which the note in suit was a part, and that the.statement in the answer of the sale and delivery of bonds was absolutely false.</p> <p>Held, that the defense was clearly sham and false, and was properly stricken out.</p>

<p>Appeal by the defendant, The Glens Falls, Sandy Hill and Fort Edward Street Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 21st day .of May, 1895, upon the verdict of a jury rendered after a trial at the Washington Circuit, .and also from an order .entered in said clerk’s office, on the 16th day Of May, 1895, denying the defendant’s motion for a new tidal niade upon the minutes.</p>

<p>Witt — a judgment creditor of a devisee tinder a will may contest a codicil which supersedes the will— Code of Civil Procedure, § 2514, subd.. 11, § 2617.</p> <p>Under.the provisions of.section 2617 of the Code of Civil Procedure a judgment creditor of a devisee named in a will" whose interest as devisee is taken away by an alleged codicil, although not cited, is entitled to appear in the proceedings for the probate of the codicil, being a ‘ ‘ person interested ” in defeating the codicil within the meaning of this section.</p> <p>Such judgment creditor is not within the exception of “a creditor,” specified in subdivision 11 of section 2514 of the Code of Civil Procedure, defining who is a “ person interested.” ,. ' .</p>

<p>Appeal by Daniel Dunlay, as temporary general guardian of John Dunlay, from an order of the Supreme Court, made at .the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 8th day of February,. 1896, denying a motion made by the said Daniel Dunlay, as such guardian, for an order vacating .and setting aside as,irregular an order - which ' set aside- an order permitting the infant plaintiff to prosecute the above-entitled action • as a poor person, and for an order directing Warren McConihe, as attorney for the plaintiff, or Isaac McConihe,. the guardian ad litem of the plaintiff, to pay over to the said temporary general guardian the sum of money received by said McConilies in satisfaction of the judgment recovered in favor of the plaintiff in the above-entitled action.</p>

<p>Deceit — a writing stating that proposed borrowers tin fact insolvent) are solvent — it presents a question, of fraudulent intent or of mere opinion — sucha paper addressed generally to any one of a family protects the one loaning the money — survival of the cause of action.</p> <p>Upon, the trial of . an action brought to recover damages for deceit, it appeared that Delos and Joseph Brown desired to borrow some money of parties named Hadcock, and that, after negotiations, they communicated the fact to the defendant, who, to induce the Hadcocks to make the loan, signed an instrument, of which the following is a copy: “ Mr. Hadcock: The Browns are good for what money you let them have. L. Osmer.” One of the Haddocks, relying on these representations, loaned the money to the Browns upon their promissory note, which was not paid at maturity, and an execution issued upon a judgment recovered thereon was returned unsatisfied. The Browns were insolvent when the representations were made by the defendant and when the loan was made by Emmanuel Hadcock, whose executor brought the action.</p> <p>The jury were instructed that, if the instrument signed by the defendant contained a mere expression of opinion, the plaintiff could not recover.</p> <p>Meld, that the instruction was proper, and that the verdict should be sustained;</p> <p>That, as the cause of action was one arising out of an attempt to cheat or defraud the deceased, it was for an injury to a property right and survived to the estate of the testator;</p> <p>That it was not erroneous to admit in evidence the judgment recovered against the Browns and the execution issued upon it and the return of the sheriff nulla bona, as they showed the efforts made by the testator to collect his debt, and were competent to establish the insolvency of the Browns;</p> <p>'That, as the paper was merely addressed to “Mr. Hadcock,” it was proper for the court to leave it to the jury to say whether it was not intended to be delivered to any. one of the Hadcock family who was willing to loan the money to the Browns;</p> <p>That if the jury found that to be the case, and that the paper was not a mere' expression of opinion, and found that Emmanuel Hadcock loaned the money upon the strength of the paper, his executor was entitled to recover;</p> <p>That, while there must have been an intent upon the part of the defendant to cheat and defraud the person to whom the paper was delivered, it Was immaterial of the fact to which particular member of the Hadcock family it was delivered.</p>

<p>Appeal by the defendant, John M. Root, as executor, etc., of Humphrey George Root, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county, of Herkimer on the 26th day of August, 1895, upon the report of a referee.</p> <p>Defendant is the executor of Humphrey George Root, deceased, and the claim was presented to- him for the services of 0. 0. Lowell from October 1,1892, to December 2, 1894, 333 days at two dollars per day, making a total of $732, and credited thereon was cash $100.. The claim also contained another item-, to wit: “ To board furnished woman and boy, $3.00-. To services of wife, $2.00.” The executor rejected the claim and offered to refer it, and the surrogate of Herkimer county approved of the referee named in the agreement of the parties.</p> <p>The referee found as a fact that Humphrey George Root died on the first of December, 1893, leaving a last will wherein he appointed John M. Root, his brother, as sole executor. The will was probated and letters testamentary issued to the defendant. That -the claim above mentioned was presented in 1894 to the executor and that the same was disputed. The referee also found that Lowell performed work and rendered labor and services for the deceased at his request for which the deceased promised to pay. The services consisted principally in superintending improvements and repairs in the dwelling house of the deceased on Columbia street in Mohawk,. “ and in looking after the affairs of said deceased generally ; in caring for his lawn, his garden, his flowers, fruits, etc. ; in looking after his affairs and attending to his wants, he, the deceased, being an aged man. During the progress of the work of repairing and enlarging the said dwelling house, the said deceased was absent in the State of Michigan- visiting his brother and he left the entire management and direction of such improvements and repairs in the hands of said Lowell.” The referee also found that the deceased frequently, “ both orally and in writing,” said “ that he would see that said Lowell was ‘ adequately remunerated ’ for all his labors in his behalf.” In the sixth finding of fact the referee says: “ That the services so rendered by said Lowell for said H. George Root, deceased, were reasonably worth the sum $2.00 per day. I do not, however, find that the .said Lowell actually worked tea hours per day during the period above mentioned, but that his services as manager, general overseer, his skill, experience and good judgment, were worth to the said IT. George Root the said sum-of $2.00 per day; that said Root frequently expressed himself, both orally and in writing, as well pleased with what the said Lowell had done in his behalf and with his conduct and management of his matters and affairs.” The referee stated in his seventh finding, viz.: “ That said Lowell ivorked and performed labor and rendered services for said H. George Root, deceased, for 321 days, during the period of time from October 1st, 1892, to December 2d, 1893; that said Lowell is entitled to recover herein for the services mentioned in the foregoing seventh finding of fact, the sum of $642.00.” He finds that $150 had been paid thereon, “ leaving a balance due him, on account of such services so rendered, of $492.” The referee finds two other items amounting to $5.</p> <p>As a conclusion of law he found that “ the said claimant, Ogden O. Lowell, has a valid claim against the estate of said H. George Root, deceased for the sum of four hundred and ninety-seven ($497.00) dollars, with interest thereon from August 9th, 1894.” Exceptions were filed to the referee’s report.</p>

<p>Appeal by the plaintiff, David F. Wilber^ from an order of the Supreme Court, made at the Erie Special Term and entered in the; office of the clerk of the county ' of Erie on the 27th day of' November, 1895, granting the defendants an additional, allowance: of .$1,000.</p> <p>The order appealed from was granted on the affidavit of O. M. Busbnell; the answer of the defendants'; the examination of the defendants before a referee; 'the affidavits used upon the'motion' to change the pláce of trial from Otsego to Erie county, and upon the proceedings of record in this case.”</p> <p>The motion was' opposed upon an affidavit of the attorney for the plaintiff.,</p> <p>It was made to appear by the. affidavits-^ examinations, and'proceedings of record,, as the order recites, “ to the- satisfaction of the court that the sum claimed herein ivas $40.0,-000j and that said action was a difficult and extraordinary action, and that a defense was interposed thereto.” .</p> <p>The complaint contained thirty-two folios, and set out an agreement made on the 5th day of February, 1892, .between F. W. Hawley and the defendants as to a joint venture to he made in the purchase of land in Erie county, and that the contract was subsequently assigned to the plaintiff.</p> <p>The prayer of the complaint was that the plaintiff have judgment for “ The sum of $400,000.00, his said damages; also, compelling and directing a specific performance on the part of defendants of the said contract; also, compelling and directing the said defendants to account to this plaintiff for all lands purchased by them under and by virtue of the said contract hereinbefore set forth, including the said Briggs farm, and to account for such .of said lands as have been sold by them, and such other or further order or relief as the court may deem just.”</p> <p>The answer consisted of numerous denials and an admission that on the 5th of February, 1892, the defendants entered into a contract with one F. W. Hawley, set forth in the complaint, and which the complaint alleges was assigned to the plaintiff. The answer also alleges that the defendants informed Hawley on the 8th of February, 1892, “ that no lands could be purchased under said contract, and it was then and there mutually agreed by the defendants and said Hawley that no lands could or should be purchased under said contract, and that the contract should be abandoned and no further steps taken thereunder, and they did then and thereupon abandon and cancel said contract, and the said Hawley did consent to the cancellation of such contract in writing duly signed by him.”</p> <p>It was further alleged in the answer that Hawley failed to carry out and perform any of the provisions of the contract alleged in the complaint.</p>

<p>Appeal by the defendant, Elijah Thomas, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of. the clerk of the county of Chautauqua on the 9th day of September, 1895, upon the report of a referee.</p> <p>The action was brought in ejectment • to recover possession of a strip of land. The parties owned adjacent; farms, situated in the town of Hanover, in the county of Chautauqua, and the real controversy is over 'the line between the lands of the respective parties;</p> <p>Besides the recovery of. the premises described in the referee’s report there was an award of five dollars damages: to the plaintiff.</p>

<p>Agreement to pay draft “B. L. if accepted, answer” — the vendee is not entitled to inspect the goods before payment of a draft with bill of lading attached — notice to the vendee of a resale for his account—presumption from its being mailed, of its receipt.</p> <p>In an action brought to recover damages for an alleged breach of a contract entered into by telegrams between the parties, it appeared that the plaintiff, who was a produce dealer engaged in buying new potatoes in North Carolina for shipment to the north, telegraphed to the defendants, who were produce dealers in Rochester, asking whether they wanted a car of choice potatoes at “three twenty-five delivered,” to which defendants replied, "Will give three delivered choice draft B. L. if accepted answer.” The plaintiff telegraphed, back that three -twenty-five was the lowest price, to which the defendants replied by telegram, saying, “ Will accept car at your price if stock fine;. ship immediately,” whereupon the potatoes were shipped by a bill of lading indorsed to be delivered to the defendants, attached to which was a draft, which the defendants declined to pay unless they were allowed first to inspect the potatoes at the freight office in Rochester. This the railroad company refused to allow, unless the defendants produced the bill of lading. Subsequently the plaintiff, by his attorney, took possession of the potatoes and sold them for the account of the defendants.</p> <p>Jleid, that the promise to pay the “draft- B. L.” meant that the purchasers would ■ pay the amount of the draft upon presentation to them of the hill of lading properly indorsed,, and that the defendants had no right to an inspection of the .potatoes before accepting the draft;</p> <p>That the fact that the court, instead of construing the contract itself, left it to •the jury to decide what the contract meant, afforded to the defendants no ground for a reversal of the judgment in view of the fact that the jury gave to the contract the proper construction. -</p> <p>Presumption that a notice of resale of merchandise for account of a vendee, mailed to the vendee, reached him, considered.</p> <p>Qumre, whether notice to the vendee is necessary.</p>

<p>Decedent’s estate — claim by a wife, because of a' deposit left by Tier with her husband— when a demand is necessary to set the Statute of Limitations running..</p> <p>Upon the trial of "an action brought to enforce a claim against the estate of Stephen Dorman, it appeared that in 1867 Stephen Dorman’s wife Adaline . conveyed! lands to a third person, who paid to her therefor the sum of §3,800, which she deposited with her husband to be kept by him for her as a deposit until such time as she should demand it; Adaline never‘ having demanded the mone)r, her husband kept it for her until the time of his death, which took place-, in 1892; subsequently Adaline died and the plaintiff was appointed her-administrator and brought this action to recover the money from Stephen. Dorman’s executor.</p> <p>Held, that the administrator had a valid claim against the estate of Stephen. Dorman;</p> <p>That, as under the circumstances of this case there was no duty resting upon the-testator to pay over the money until it was demanded from him by his wife, and as no demand had been made, the claim was not barred by the Statute of" Limitations.</p>

<p>Negligence — that-engines emit sparks does, not of itself show, negligence-^whether allowing- grass and weeds to accumulate upon the roadbed, from which fires are communicated to adjacent lands, constitutes negligence is a question for the jury.</p> <p>The complaint in. an action alleged that the defendant, a railroad corporation, had negligently forced large quantities of live coals from its engines and permitted quantities of dried grass and weeds to accumulate upon its tracks and negligently set fire to the same, and permitted and allowed the fires thus occasioned to extend to- the plaintiff’s, land. Upon the trial of the action a nonsuit was- granted- upon the- ground that the facts proved did not com stitute a cause of action and that negligence on the part of the. defendant had not been shown.</p> <p>Held, that proof that sparks emitted; from the smokestacks of the defendant’s locomotives occasioned fires- did not of itself establish- negligence- unless the emission was- unusual in degree or character, or the- sparks were of extraordinary size and such as would not he emitted from perfectly constructed engines;</p> <p>That as the proof showed that the defendant had in part cut, and in part had " neglected to cut, the grass and weeds on its roadbed and had neglected to remove the dry grass and rubbish, the question whether this constituted negligence upon the part of the defendant should have been submitted to the jury.</p>

<p>Appeal by the defendant, George Raplee, as executor, etc., of Joshua Raplee, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of- the. clerk, of the county -of Yates on the l;3th day of May, 18,95, upon the report .pf a referee.</p> <p>The .complaint in this action is against George Raplee, as sole executor of Joshua Raplee, deceased, and against.him individually. Joshua Raplee died on the 31st day of August, 1888, in the town of Barrington, Yates county, leaving a last will and testament in which he -nominated George Raplee -one of his. -executors. . The instrument was admitted to prohate about the 1st of October, 1888, and the complaint alleges that “the above-named defendant duly qualified as such executor and was at all the times hereinafter named the sole acting executor of said estate.” The complaint also alleges that “ On or about' the 21st day of November, 1888, one Oliver Raplee duly presented to said George Raplee, sole acting -executor as aforesaid, a claim in writing for $1,115.50 and interest from November 1st, 1888, against the estate -of Joshua Raplee, deceased,” on account -.of goods and materials sold- and furnished, and for work done at the request o.f -said -Joshua. Raplee-</p> <p>The referee finds “ 3... That the greater part of said -.claim, to wit, about the sum of nine hundred and seventy -dollars, was barred by the Statute of Limitations at -the time of the -death of the said Joshua Raplee. -4. That on. the day -of -the presentation -of the .account the -said George- Raplee,,,as such -executor, subscribed a written ¡acceptance .of -said -claim.'” The referee -finds that Oliver -Raplee relied upon the-acceptance and took no 'further steps to prove the claim against-the .estate. The referee also finds: “ 6. 'That after the -said George Raplee had., -as .aforesaid, subscribed his name to said written acceptance -of said .account, he -borrowed the-aceoimt and acceptance and took it to his counsel, -the late 'Charles S. Baker, and his -counsel removed the name' so subscribed to said acceptance"; that the defendant, .as such -.executor, prior to .and .including the ,21st day of December, 1888, paid to said Oliver, to -apply on. Ins .account, the.sum-of .$125.¡00”</p> <p>-On the 15th day of 'May, 1890, counsel for the .defendant -prepared a written request that the .claim he paid -by the executors, which was, “ within a few days of its preparation, subscribed by the seven ether heirs, at law of-said deceased.” On -the 1st. day- -of • September, 1-89-1, the said Oliver Raplee assigned to the. 'plaintiS said Aim, and-payment thereof was -demanded before this action was commenced. The deceased held a note made by Oliver Raplee for $200, which the defendant set up as a counterclaim .and which the referee allowed. The defendant, as sole acting executor, admits in his answer that the claim was presented to the executors.</p> <p>The answer .set up the six years’ Statute of Limitations. The referee dismissed the complaint as to George Raplee individually without costs. The referee allowed the counterclaim and deducted the payment of $425, and found a balance in favor of the plaintiff for $675 with costs.. The defendant appeals from the judgment.</p>

<p> Negligence—injury from ifailing through an elevator shaft—duty of a storekeeper to maintain the pr.ernises in a safe condition for customers. </p> <p>In. an .action brought to recover damages resulting from personal injuries caused ; by the alleged negligence of the defendants, it appeared that the plaintiff went into the store of the defendants, who were wholesale dealers in rubber boots : and shoes, -to purchase a pair of rubbers, and, passing along an aisle which was darkened by tiers of boxes, she fell through an elevator opening, which was not guarded upon the side from which the plaintiff approached.</p> <p>TJpoii an appéal from a judgment dismissing the complaint,</p> <p>Meld, that, although it appeared that it was a rule of defendants to sell no goods at retail, yet as such sales were occasionally made, the plaintiff must be ■ deemed to have been a customer entering under an implied authority from the . defendants and rightfully upon the premises, and, therefore, the defendants were bound’to use reasonable prudence and care to,keep their property in such condition that the plaintiff, while there, should not he unnecessarily exposed to danger; •</p> <p>That the question whether the defendants had exercised such prudence, and whether the plaintiff had been free from contributory negligence, should have been submitted to the jury.</p>

<p>Appeal ©y the plaintiff, Edwin B. Fiske, from a judgment of: the Supreme Court in favor of -the defendant, entered in the office of the clerk of the county -of Monroe on the 12th day of December, 1895, upon the decision of the court rendered after a trial at the Monroe Circuit before the court without a jury dismissing the plaintiff’s complaint upon the merits.</p> <p>This was an action in replevin brought to recover possession of fifteen shares of stock of the Standard Electric Signal Company, alleged to have been delivered to 'the defendant as collateral security for the plaintiff’s -indorsement of a note made by one - Robert M. Madden-, which the- plaintiff, after, indorsing, delivered to the defendant. ' ■ •</p> <p>• The court before which the action was tried:, without a jury, found that- the promissory note in question, payable four months after daté to the order of Edwin B. Fiske, the plaintiff, for the 'sum of lj>8?5, was made and deli vered January 9, 1891, and'Was indorsed by the plaintiff and delivered to the defendant for valué before maturity. .</p> <p>That at the time of the delivery of the note to the defendant the maker delivered therewith 160 shares of the capital stock of The Scugog Medicine Company as collateral security for the payment thereof, and at the same time the plaintiff delivered to the defendant fifteen shares of the capital stock of The Standard Electric Signal Company of Rochester, which latter stock was delivered to said defendant under the following agreement:</p> <p>“ Whereas, R. M. Madden has given his promissory note for $875, dated the ninth day of January, 1894, and payable at the Alliance Bank in the city of Rochester four months from the date thereof. He has also given as collateral security 100 shares of the capital stock of the Scugog Medicine Company to secure the payment of said note, and also to secure the indorsers of said note from any harm. How, the fifteen shares of the capital stock of The Standard Electric Signal Company, hereto annexed, is given as collateral security for my indorsement of said note, and it is expressly understood and agreed that the holder and owner of said note, if the same is not paid on or before maturity, is first to exhaust his remedy as against R. M. Madden, and if the security given by him is not sufficient to pay and discharge said note, then the certificate of stock hereto annexed is for the payment of such deficiency, Whatever it may be.</p> <p>“Dated Rochester, January 25th, 1894.</p> <p>“EDWIH B. FISÉE”</p> <p>The court further held that the note Was not paid at its maturity,, and was not protested for non-payment, .and that no notice of protest was given to the plaintiff, but that after the note became due, and before the commencement of this action, the defendant recovered a judgment thereon against the maker, Robert M. Madden, on Which execution Was issued and returned unsatisfied.</p> <p>That thereafter the defendant sold the 100 shares of the stock of The Scugog Medicine Company, but that the amount realized therefrom Was not enough to pay the expenses of the sale, and thereafter the defendant caused the fifteen shares of the stock of The Standard Electric Signal Company to be sold, which sale was made upon notice and Was fairly conducted.</p> <p>The Court found as conclusions of law that, under the contract, the defendant acquired the right to sell The Standard Electric Signal Company stock for apry déficienp^-tkat might exist after the remedy against the maker of the note and the security given by him was, exhausted, and that the sale of the stock of The Standard Electric Signal Company by the defendant was properly made.</p>

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme- Court in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 26'th day of December, 1895, upon the verdict of- a jury rendered after a-trial at-the Ontario Circuit, and also from an order entered in said clerk’s office on the 26tli day of December, 1895, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Elizabeth Cohen, from a judgment' of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 28th' day of April, 1893, upon • the report of a referee dismissing thé' complaint upon the merits.

<p>Appeal by the defendant, Jacob Sauer, from a judgment of the County Court of the county of Oneida in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 13th day of November, 1895, upon the verdict of a jury rendered after a trial at the Oneida County Court, with notice of an in tention to bring up for review on such appeal an order entered in said clerk’s office on the 5th day of December, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was originally commenced in the court of a justice of the peace.</p>

<p>Appeal by the plaintiff, the Warsaw Water Works Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of "Wyoming on the 14th.day. of December, 1895, vacating a temporary injunction theretofore granted, in the action. •</p> <p>The complaint in this action alleged that the plaintiff was a domestic corporation existing, by virtue of chapter 394 of the Laws of 1869, incorporated for the purpose of supplying water to the defendant, The Village- of Warsaw; and had constructed water works, etc., and been engaged in supplying water to the village and the inhabitants thereof;. .that after its incorporation, and on the 29th day of April, 1875, the Legislature of the. State of New York passed an act entitled “ An act to authorize villages of the State of New York to furnish pure and wholesome, water to the inhabitants thereof,” constituting .chapter 181 of the Laws of 1875, and that under the said act the defendants alleged and claimed that they were authorized, after having constituted themselves water commissioners for the village of Warsaw as therein provided, to construct a system of .water works for said village paralleling the plaintiff’s mains and to have the right and authority to remove the hydrants that had been attached to the mains of the plaintiff, and that the defendants refused to negotiate for the purchase of the plaintiff’s works or to purchase or acquire the same by condemnation.</p>

Appeal by the defendant, The Delaware,- Lackawanna and Westeró. Railroad! Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of- the county of Oneida on the 11th day of June, 1895, upon the verdict of a jury-rendered after a trial at the Oneida Circuit, -and also from an order entered in said clerk’s office on the 27th day of May, 1895, denying the -defendant’s motion for a new trial made upon the- minutes.

<p>Insurance — an oral executory contract by an agent to renew a fire insurance policy is beyond the powers of an agent—it creates an individual liability only.</p> <p>In an action brought to recover the value of a dwelling house destroyed by fire, alleged to have been insured by the defendant, it appeared that Calvin Coburn was appointed an agent of the defendant in 1869 with power to receive proposals for insurance and to fix the rates of premium, to receive money, to countersign, issue 'and consent to the transfer of policies of insurance which had been signed by the president and attested by the secretary of the defendant, and that on April 12,. 1893, Coburn countersigned a policy in the New York standard form which insured the plaintiff’s dwelling and barn, for one year from April 12, 1893, the policy. providing for its renewal under certain conditions, and also that no agent should have the power to waive any of its conditions except such as might be the subject of an agreement indorsed upon the policy in writing. The plaintiff testified that about the time the policy was issued she had a conversation with Coburn during which he advised her to take a three-year policy., and she told him that she was unable to take a policy for more than one year as she could not pay the premium for more than one year, but that she did not want it to run out,, but wanted it renewed yearly; and that thereupon Coburn consented to keep the policy renewed and assured her that she need pay no further attention to it.</p> <p>Upon August 5, 1894, three months and twenty-three days after the expiration of the term of the policy, part of the premises described in the policy was destroyed by fire, and the plaintiff sought to recover upon the promise of Coburn that he would keep the policy renewed as being in effect the promise ' of the defendant. •</p> <p>Held, that the position of the plaintiff was untenable;</p> <p>That the powers of Coburn were clearly defined by the instrument which appointed him and by the policy itself, and that neither contemplated or authorized an executory oral contract to insure property in the future;</p> <p>That the promise in question was nothing more than the promise of Coburn that when the policy expired he, as an individual, would see that it was renewed; that it was his promise and not the promise of the company.</p>

Appeal by the defendant, Bruce S. Aldrich, from a judgment of the County Court of the county of Onondaga in favor of the plañir tiffs, entered in the office of the clerk of the county of Onondaga on the 19th day o.f July, 1895, upon the verdict of a jury rendered after a trial at the Onondaga County Court, and also from an order entered in said clerk’s office on the 17th day of April, 1895, denying the defendant’s motion for a new trial .made upon the minutes.

<p>Appeal by the defendant, Frederick A. Bell, from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office: of the clerk of the county of Erie on the 3d day of July, 1895, upon the report of a referee.</p> <p>The action was brought to obtain a divorce on statutory grounds.</p> <p>December 22, 1894, this, action was begun by the personal service of the summons and complaint on the defendant at the city of Buffalo for the purpose of obtaining a judgment of divorce on the ground of his alleged adultery. The defendant appeared and filed an answer in which he denies the commission of the acts of adultery alleged in the complaint, and sets up two affirmative defenses: (1) That on the 8th of January, 1895, the marriage of the parties was dissolved by the Court of Common Pleas of the county of Jefferson, in the State of Pennsylvania; (2) that at a time and place mentioned the plaintiff committed adultery, which is set up as a defense and as a counterclaim. The plaintiff replied- to the answer denying the allegations of adultery therein, and alleged that neither she nor her husband was ever a resident or citizen of the State of Pennsylvania; that she was not served with process in the action.in Pennsylvania, did not appear therein ; that the court never acquired jurisdiction of the parties, and that the judgment entered was void and of no effect as between them for the want of jurisdiction.</p> <p>The issues were referred to a referee to hear and determine, who reported that the defendant had committed adultery as alleged in the complaint, but that the plaintiff had not, as alleged in the answer. It was also found that when this action was begun both of the parties were residents of this State, and that the defendant in this action was not a resident of the State of Pennsylvania while his action was being prosecuted in that State, but was a resident of New York, and that the defendant in that action, the plaintiff in this, was not served with the process in Pennsylvania and did not appear in the action. Upon these facts and on evidence of the value of the defendant’s estate and the amount of his annual income, a judgment of divorce was granted to the plaintiff with alimony at the rate of $3,000 per year.</p> <p>January 24, 18Y8, the litigants were married at Bloomington, 111., at which time the plaintiff resided at that place and the defendant at the city of Rochester, N. Y. For about two years after their marriage they resided at Rochester and then moved to Buffalo; where they lived as husband and wife until September, 1882, when the plaintiff left the residence of the defendant and returned to the home of her mother at Bloomington, 111. From September, 1882, until November, 1894, she lived with her mother at Bloomington, except that during that period she went on three occasions to Europe, at one time remaining thirteen months. In November, 1894, she and her mother went to Brooklyn, where they remained until March, 1895, when the plaintiff took up her residence at The Cambridge, in the city of New York, where she has since resided.</p> <p>April 9, 1894, the defendant in this action began an action in the Court of Common Pleas of Jefferson county, Pa., against the plaintiff,in this action for a divorce, alleging as a ground that he was a resident of that State, and that she had deserted him. An original subpoena was issued on the 10th of April, 1894, to the sheriff, who made return that the defendant could not be found. On the lYth of May, 1894, an alias subpoena was issued and delivered to the sheriff, who, in September, 1894, returned that the defendant could not be found. On the 14th of September, 1894, a pluries subpoena was issued, requiring the defendant to show cause on the second Monday (10th day) of December, 1894, why a divorce should not be. granted. This subpoena, pursuant to the order of- the court, was published for four successive weeks in the Brookville RepubMccm. in the issues of October 17, 189!, October 20, 189!, October 31, 189! and November 7, 1891. December 1, 189!, the pluries subpoena was inclosed in a post-paid envelope, and addressed, Mrs. Mary 0. Bell, Bloomington, Ills.,” and deposited in the post office at Keynoldsville, Pa., which was duly received at Bloomington, 111., and forwarded by the post office authorities to-the plaintiff .at Brook* lyn, N. Y., where she received it December !, 189!. The same day on which the pluries subpoena was mailed to the plaintiff, the examiner appointed to take the evidence in the-case mailed a notice to her at Bloomington, 111., that he would attend to the duties of his appointment December !, 189!, which notice she received at Brook* lyn, N. Y„ December !, 189!, the day appointed to take the evidence,</p> <p>In December, 189!, the evidence offered by the plaintiff in that action was taken before the examine!’, who reported it to. the court, .and January 8, 1895, a judgment was entered by the'Court of Conn mon Pleas of Jefferson county divorcing the litigants. . This judg:ment was entered seventeen days after the service - of' the summons :and complaint in the case at bar.</p>

<p>Tit® collector — levying on furniture in the room, of a hoarder—excessive sale.— ■credibility of a party or interested witness—1 S.,8. 397, § 2; Laws 1864, chap. 555, §§ 81, 84; 1890, chap. 526, § 1; 1894, chap. 556, §§ 78, 81.</p> <p>In an action brought to recover damages for the conversion of certain property, it appeared that- the plaintiff owned an ingrain carpet, a rag carpet and a washstand upon which the defendant, a collector of school taxes, levied, and which he sold at public auction; selling first the ingrain carpet for seven dollars, then the rag carpet for one dollar and fifty cents, and finally the washstand for sixty-five cents, for a tax assessed against Olive Bigelow, who boarded with the plaintiff, and occupied a sleeping room in the plaintiff’s house. The tax and the.defendant’s fees amounted to three dollars and thirty-one cents.</p> <p>Held: that the possession which a boarder has of the furniture in a room which he occupies does not authorize a tax collector to seize it' for a tax assessed against the boarder; ■</p> <p>That, even assuming that Olive Bigelow was in possession of the furniture, the defendant was liable for selling the rest of the furniture, after he had sold the ingrain carpet for a sum which was nearly double the amount of the tax and the expenses of the sale;</p> <p>That a jury is not authorized to disbelieve the uñcontradicted evidence óf a patty, in nowise impeached and the truth of which is highly probable, simply ■ because the person is a party to or has an interest in the action.</p>

Motion by the plaintiff, Mary J. Teckemeyer, for a new trial oft a case containing exceptions, ordered to be heard at the General Term in the first instance upon the-verdict of a jury in favor of the defendant, directed by the court after a trial at the Erie Circuit oft the 14th day of January, 1895.

<p>Highway Law — an oi'der of a County Court confirming the report of commissioners cannot be reviewed by certiora/ri nor by appeal.</p> <p>An order of a County Court confirming the report, of commissioners appointed under the Highway Law (Chap. 568 of 1890, as amended by chap. 686 of 1893), to lay out and open a highway, cannot be reviewed by a writ of certiorari.</p> <p>Under the provisions, of section 89 of the Highway Law, enacting that “the decision of the County Court shall be final, excepting that a new hearing- may be ordered,” the right of appeal is taken away.</p>

<p>Appeal by the defendant, Irwin W. Fargo, from an order of the county judge of the county of Cattaraugus, entered in the office of the clerk of the county of; Cattaraugus.' on the :17 th day - of January, 1896, discharging the relator from imprisonment on an execution issued against his person.</p>

<p>Appeal by the plaintiff, Catherine Waldele, as administratrix, etc., of Philip J. Waldele, deceased, from an order of the Supreme Court, made at the Monroe Circuit and entered in the office of the clerk of the county of Monroe on the 15th day of November, 1895, denying the plaintiffs motion for a new trial made’ upon the minutes, upon a nonsuit granted at the Monroe Circuit after a trial before the. court and a jury.</p> <p>Philip J. Waldele was an educated deaf mute, forty-seven years' of age, residing on Madison street in the city of Rochester. Just at daybreak, and between six-thirty-five and six-forty a. m. of January 30j 1895, at the Brown street crossing in that city he was struck by an engine of defendant and instantly drilled. --At that, point defendant’s four main tracks cross the street "at' gradp. The track's of the Rochester and Pittsburg railroad also cross Brown stréet immediately south of and parallel with the Central tracks. The trains of the Charlotte branch, Falls branch, and the direct road of the Central and of the West Shore pass over this crossing, which is in a thickly populated portion of the city, and is much used by pedestrians and others. Four other streets center-6at. that, point. The defendant employed.one flagman at-this crossing from six at night until seven in the morning, and one from seven in the morning until six at night. This it had done for some time previous to, and they were so employed at the time of, the accident. At ten minutes to six on the morning of the accident Thatcher, one of those flagmen, was seen on duty at the crossing. There was a large electric light, twenty feet from the ground, south of the Central tracks and- at the westerly curb of Brown street, and this light was burning at the time of the accident. At that time also a number of box cars were standing on the Rochester and Pittsburg tracks just west of this crossing;</p> <p>Plaintiff’s intestate liad for many' years lived near this crossing and was-perfectly familiar with it. On the morning of the accident he left home about six o’clock, went over this crossing to a saloon 150 feet north of the tracks.. He remained until six-thirty-three or six-thirty-four o’clock, when he came out and went toward the tracks. At that time a freight train of forty or fifty cars on track No. 3 was approaching the crossing, moving to the west.' While this freight train was passing over tire crossing a man with a lantern was there acting as flagman. He stood at the southerly side of defendant’s tracks, and immediately after the freight passed swung his lantern, indicating that the tracks were clear, and then started towards the flagman’s shanty on the north side of the tracks. He gave no sign that another train was coming. Plaintiff’s intestate started across the tracks just after the freight train had passed, and, as he reached track No. 1, was struck by the engine of a fast express train from the west, running at the rate of forty miles an hour. Waldele was thrown into the air, and his body struck track No. 3 or 4 twenty feet east of the crossing. The wounds upon his body were on the right side ; he was thrown to the east and north, indicating that when struck he had just reached- the north rail of track No. 1. At the time of the accident the regular flagman, who had been on duty at the crossing a short time before, had gone to a saloon about 200 feet away. Just after the accident he was seen on Brown street coming from the direction of the saloon towards the crossing.</p>

Appeal, by the defendants, James Mooney and others, constituting the board of public works of the city of Buffalo, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the ’ clerk of the county of Erie on the 31st day of January, 1896, directing that a peremptory writ of mandamus issue commanding the defendants to execute and deliver to the relator a certain contract for the paving of Koescli avenue, in the city of Buffalo.

Appeal by the plaintiff, The Delaware, Lackawanna and Western Railroad Company, from a judgment of the Supreme-Conrt in favor of the defendants, entered in the office of the .clerk of the county of Erie on the 13th day of May, 1895, upon the decision of the court rendered after a trial at the Erie Special Term dismissing the plaintiff’s complaint.

■ Appeal by the plaintiff, Adalbert P. Little, from a. judgment of-the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 7th. day of March, 1895, upon the decision of the .court, rendered after a trial át the Monroe Equity Term, dismissing the plaintiff’s complaint upon the merits. ■ The action was brought to restrain the defendants from using or disclosing secrets of trade or manufacture which .'belonged to thp…

<p> Bills and notes—payment made for the loan of an indorsement—when it is a question for the jury whether it is a mere cover for usury. </p> <p>In an action brought to recover upon a promissory note to which the defense of usury was interposed, it appeared that the defendant applied to David J. Cushman for a loan of fifty dollars and asked what he would charge for the use of that sum for three months, to which the defendant replied ten dollars. David J. Cushman was the husband of S. J. Cushman, wrho was in the habit of loaning money and indorsing paper, and had furnished the plaintiff with collateral security to indemnify it' for discounting paper which bore her indorsement under an arrangement by which such paper was to be discounted for the benefit of the maker, who was to be paid the proceeds of such discount by “ discount checks ” signed by the maker. *</p> <p>The defendant made a note for sixty dollars payable to the order of S. J. Cushman at the Union Bank, which was indorsed by the payee, and as the defendant was in need of money and the Union Bank was closed for the day, twenty-five dollars was loaned to the defendant by David J. Cushman, who, upon the next business day, went with Cushman to the Union Bank where the note was discounted, Cushman retaining the twenty-five dollars advanced by him and the ten dollars for his wife’s indorsement.</p> <p>The defendant was unable to meet the note at maturity and it was renewed several times, ten dollars being added to the note for each renewal; finally the note in question was given which was discounted by the plaintiff in the mam ner above stated.</p> <p>No affirmative evidence was given that the plaintiff discounted the note in good faith.</p> <p>Beld, that while the payment of a sum of money, in excess of the legal rate of interest, to an accommodation indorser as a compensation for the loan of her credit did not infect the note with usury in the hands of one to whom the maker subsequently negotiated it for value, yet upon the facts of this case, and in view of the manner in which the note was discounted, it was properly left to the jury to say whether or not the transaction was a mere cover for usury, of which the plaintiff had actual knowledge or ample means of informing itself before discounting the note.</p>

<p>: Appeal by the. defendant, Johnston Livingston, as president of Tiie National Express Company, from a judgment of the Supreme Court in favor, of the plaintiffs, entered in the office .of the clerk of the county of Erie on the 22d day of May, 1895, upon the verdict of a jury rendered after a-trial at the Erie. Circuit, and 'also from an order entered in said clerk’s office on the 22d day of May, 1895; denying -the defendant’s motion for a new trial made upon the minutes.-</p> <p>The plaintiffs herein are co-partners in the business of purchasing and selling horses at East Buffalo in this State, and they-are -all' residents of the State. The National Express Company, a joint stock association, is a common carrier of goods, chattels, merchandise and live stock for hire, and has- offices in various towns and cities -of the different States, and, among others, one. in the city <pf Buffalo in the State'of .New York, and one in the city of Boston in the State of Massachusetts. The defendant is the president of such association and a resident of the city of New York, at which placet's ilo'cated" the principal office of the company. -</p> <p>Upon thé:4th day of November, 1894, the plaintiff Douglas H: Grand delivered to the defendant at the -city of Boston a quantity •'of 'horses to be by it transported and delivered .to his firm in the city of Buffalo, in consideration of.the sum of $125 to be paid fheréfqr. The horses were carried to Buffalo, two representatives ©f the plaintiffs accompanying them upon the ears, and were there delivered to the consignees. But it is claimed that, in consequence of the negligence of the defendant, they were seriously injured while in transit, to the great loss and damage of the plaintiffs.</p> <p>At the time of delivering the horses to the defendant for shipment the shipper was required to • sign a contract or release which reads as follows:</p> <p>“ Live Stock Taken Only at Owner’s Risk. National Express Company. Live Stock Contract.</p> <p>“Agreement made at Boston, Hass., on the 4th day of November, 1894, between the National Express Company and D. H. Grand of Buffalo, N. T.</p> <p>“ Whereas, Said D. H. Grand has this day delivered to said Company at Boston, Hass., the following animals, value agreed at $75 per head, 22 horses, of which he declares himself to be the owner, consigned to' D. II. Grand & Go.' at Buffalo, N. V.,</p> <p>“ Now it is agreed, That said company undertakes as forwarders only, to forward said property to the nearest point of destination reached by said company.' It being understood that said company relies upon the various railroad and steamboat lines of the country for its means of forwarding property delivered to it to be forwarded, it is agreed that it shall not be liable for any damage to said property caused by the detention of any train of cars,, or of any steamboat upon which said property shall be placet!; for transportation, nor by the neglect or refusal of any railroad company or steamboat to receive and forward the same. * - *</p> <p>“ In consideration of the undertaking of said company to forward said property as above mentioned, and of the reduced rate of compensation at which said property is to be so forwarded, said shipper agrees that said company, its agents or any railroad, or transportation company or carrier over whose lines the said property may pass, shall not under any circumstances nor for any cause be liable for any injury or damage to or loss of said property, .whether or not the said injury; damage or loss happen or arise from any fault, negligence or carelessness, gross or otherwise, on the part of said company, its agents or servants. It being the intent of this contract' that said property shall be forwarded entwel/g at the owner’s rislc.</p> <p>“ For NATIONAL EXPRESS CO., :'.</p> <p>“ W. G. Hamlin, Agent.</p> <p>“ (Shipper will sign here.)</p> <p>“ D. H. Grand, Shijwer.”</p>

<p>Susband and wife — an agreement by the husband in consideration-of their living separate to make certain payments is against public policy.</p> <p>The complaint in an action alleged that the parties were husband and wife, and that after their marriage they entered into a contract to live apart as if they were unmarried, in consideration of which agreement the defendant promised to pay the plaintiff the sum of eight dollars a week during life, which he had refused and neglected to do. A demurrer was interposed to the complaint.</p> <p>Seld, that the contract was against public policy in that its consideration was a practical dissolution of the obligation of marriage.</p>

<p>Motion by the plaintiff, the Rochester and Kettle Falls Land Company, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance upon the verdict of a jury in favor of the defendant, rendered by direction of the court after a trial at the Monroe Circuit on the 16th day of October, 1895.</p> <p>The action was brought to recover assessments upon assessable stock issued by the plaintiff. The plaintiff is a domestic corporation incorporated pursuant to the provisions' of the act of 1848 (Chap. 40) authorizing the formation of corporations for manufacturing, mining, mechanical or chemical purposes, and of the several acts amending the same.</p> <p>In contemplation of the incorporation of the plaintiff, in the month of August, 1890, the defendant and certain other persons, being desirous of forming a corporation for the purpose of purchasing and dealing in real estate, made an agreement whereby the capital stock of the proposed company should be $500,000 in shares of $100 each, $200,000 of said stock to be assessable and the balance non-assessable.</p> <p>The purpose of the incorporation was to purchase from John W. Goss, of Spokane Falls, Washington, the town site and lands controlled by him at Kettle Falls, Washington, consisting of about 1,000 acres, and pay therefor the sum of $450,000, $30,000 to be paid in cash and the balance to be paid in the stock of said company secured by bond and mortgage on the property.</p> <p>In pursuance of said agreement the defendant and certain other persons, being subscribers to the agreement, on the 22d day of November, 1890, did organize the plaintiff as such corporation as specified and for the purposes aforesaid; the defendant subscribed for twenty shares of said assessable stock; one George Hannigan subscribed for ten shares of the same; this was done in August or September, 1890.</p> <p>The defendant and Hannigan made the cash payment of thirty per cent, and the plaintiff also a further assessment of seven and one-half per cent made prior to the transfer of the certificates of stock as hereinafter stated; Hannigan duly assigned his stock to one Fred W. Zoller and surrendered his certificate to the plaintiff, and the plaintiff issued to said Zoller its certificate for ten shares of its assessable stock, certifying that the said Zoller was the owner of such ten shares of - its • assessable stock. Zoller paid an assessment of seven and one-half per cent on the par value of said ten shares made by the plaintiff; and after such payment Zoller, by an indorsement • in writing on such certificate, so issued_ to him, duly. sold, transferred and assigned the said shares of stock to .the defendant on the 27th day of February,. 1892,.for a consideration of five dollars and the said certificate was surrendered to the plaintiff - and canceled and the said . ten shares were at. the defendant’s request duly transferred on the books of the plaintiff to the defendant, and the plaintiff issued and delivered- to the, defendant its certificate of such ten shares of its assessable stock, certifying that the defendant was the owner of the same, which.was: duly registered on the plaintiff’s books. - .......</p> <p>On the 4th of March, 1892, the defendant duly sold-,, assigned, transferred and delivered to one Frank Yan-Every each and every of the certificates of stock mentioned above* and on.the same day the said Yan Every surrendered the said certificates of stock to- the plaintiff to be canceled by the plaintiff, and the plaintiff ' duly-accepted and canceled the same, and thereafter and on the said day duly issued to the said Frank Yan Every its proper certificates of stock, showing that the said Yan Every was and should :be from and after the said 4th day of March, 1892, the owner and holder of. all of- said shares of stock. At that, time all previous calls upon the stock had been fully paid in. Thereafter an assessment was made upon the said stock as against the said Yan Every, and upon his failure to pay such assessment the plaintiff brought, an action to recover the same in the-' Municipal Court of the city of Rochester, which court had jurisdiction of the subject-matter of the said action and of'the person of the said Yan Every and obtained a judgment for $439.65, which judgment was duly docketed in. Monroe: county. The last-mentioned action was commenced the latter part of October, 1893. Yan Every received notice from the plaintiff after the assignment- of the stock to him to attend its annual meeting and notices of assessment upon the stock assigned to him.</p> <p>In September, 1894, the plaintiff, by a resolution qf its trustees, directed that the president be directed to satisfy the said judgment against Van Every, which was done prior to the commencement of this action, although in fact nothing was paid by Van Every upon the judgment.</p> <p>At the time of the transfer of the stock to Van Every the corporation was hopelessly insolvent and its stock worthless. The con7 sideration in fact paid by Van Every to the defendant for the stock assigned to him was three dollars. Van Every was-irresponsible. It does not appear that any representations were made by the defendant at the timé of the transfer of the stock to Van Every as to his responsibility or as to the bona fides oí the transfer of the. stock from defendant to Van Every. The transfers of stock alluded to herein were made as prescribed by statute -and were a complete and perfect transfer upon the face thereof and upon the books of the plaintiff, and the certificates, that were surrendered upon the several assignments were marked “ canceled.”</p> <p>The following is a copy in blank of the certificates referred to i</p> <p>“Incorporated under the laws of the State of New York.</p> <p>“Number...... ......Shares.</p> <p>“ Rochestee & Kettle Falls Land Co., of Rochestee, N. Y,</p> <p>“ Capital, $500,000 5,000 shares. $100 each.</p> <p>•“ This certifies that................is the owner of........ shares, of $100 each, assessable, in the 'capital stock of Rochester &. Kettle Falls Land Co., of Rochester, N. Y. Transferable only in person or by attorney, on the books of said company on the surrender of this certificate properly indorsed.</p> <p>“ Rochestee, N, Y.,............, 1890.</p> <p>“ GEORGE W. WEAVER, President.</p> <p>“W. C. WAIT, Secretary.”</p> <p>Indorsed across face : “ Canceled — W. C. Wait, Secretary.”</p> <p>Indorsed on back:</p> <p>“For value received ......hereby sell, transfer and assign unto-....................shares of stock within mentioned, and authorize................to make the necessary transfer on the books of the company.</p> <p>“Witness: ............ hand and seal this ...... day of ..........,189..”</p> <p>The plaintiff seeks to recover in this action two assessments (being, twenty-two and one-half per cent on the par value of the stock), one made in July, 1892, and the other in the fall of 1898, made upon the said twenty shares of stock originally held by the ■defendant, and also upon the ten shares of stock that was originally ■assigned to the defendant by Hannigan. The plaintiff now claims (though it is not set forth in the-complaint) that the transfer- of the stock to Van Every was fraudulent and void as against the plaintiff, as the transfers to Yan Every were not made in good faith,, and he being irresponsible, and 'the plaintiff not having discovered the fraud jiracticed upon it 'until after it had obtained the judgment against Yan Every, which the plaintiff satisfied, and which it now ■seeks to repudiate.</p>