Volume 4 — Bedell

The facts, so far as material, are stated in the opinion. The commissioner of buildings has the power to appoint subordinate officers and remove them upon their being given an opportunity of making explanation. (L. 1897, ch. 378, §§ 648, 1543; People ex rel. v. Campbell, 82 N. Y. 247; People ex rel. v. Cruger, 17 App.

<p>1. Manslaughter—Evidence.</p> <p>Upon a trial for manslaughter where accused had, upon seeing his brother fighting with two persons, rushed in and stabbed one fatally, the People were permitted to prove such acts and declarations of the brother in the absence of defendant as tended to show that the former invited the fight and was the aggressor. Held error, as defendant must be judged solely with reference to the situation as it was when he first and afterwards saw it. -</p> <p>2. Same—Appeal.</p> <p>Whether it was possible or not, with the evidence out, for the jury to reach any other conclusion, is for the jury to decide. And such error calls for a reversal by the appellate division.</p>

The original plaintiff, John J. P. Read, since deceased, brought this action to recover the amount of two deposits of money made by him with the defendant, for which, upon the first deposit, the defendant gave to him a certificate in these words: “ State of Hew York, ) Marine Bank. f $1,255 “ Buffalo, Nov. 12, 1881. “ J. J. P. Read has deposited in this bank twelve hundred and fifty-five dollars to the order of himself and payable to his order hereon with interest at four…

<p>1. Trial—When Good Faith and Validity of Title a Question oe Fact. In an action upon a sheriff’s indemnity bond by the claimant of a -stock of goods levied upon, the question whether plaintiff had a bona fide title to the property as against the sheriff is for the jury, where her claim is based upon transfers from and through relatives made in transactions largely on paper.</p> <p>■ 3. Evidence of Plaintiff’s Relation to Bankruptcy Proceedings. Where in such an action it is contended that plaintiff waived her right of action hy accepting the proceeds of a sale in bankruptcy of the stock of goods levied upon, evidence is admissible that her counsel assented to the appointment of the receiver in bankruptcy and to the sale made hy him.</p>

Appeal, by permission, from a judgment, entered November 30, 1900, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, which reversed an interlocutory judgment sustaining a demurrer to the complaint and overruled such demurrer. The following question was certified: “ Does the amended complaint herein state a cause of action ? ” The nature of the action and the facts, so far as material, are stated in the opinion.

<p>1. Municipal Corporations — Notice op Obstructed Culvert — Negligence in Failing to Remove Obstruction. A municipal corporation is liable for damages to property caused by water which percolated through a basement wall from a trench excavated in a public street by an independent contractor under the supervision of an inspector appointed by the city in pursuance of a “permit” issued under a statute authorizing the contractor to open any street or avenue upon obtaining the consent of the commissioner of public works, and granted under certain conditions, including the right of inspection, by an inspector to be appointed by the commissioner, but paid by the contractor, which trench was left unprotected, so that during an unusual but not unprecedented fall of rain, on account of excavated earth and stones having been thrown into an adjoining gutter and culvert and obstructing the same, the water entered and percolated therefrom into the basements of adjacent buildings, where the city has notice, express or implied, of the obstruction and makes no attempt to open the gutter, uncover the culvert, protect the trench or provide for the water.</p> <p>2. When Notice to Inspector is Notice to the City — When Inspector Represents City. The city has notice of the obstruction where the inspector represents the city and either knew or should have known of it and the danger to be apprehended from its continuance, and although the statute does not in terms authorize his appointment as a condition of granting the permit, he is a duly authorized agent of the city, since a statute authorizing a public officer to grant as a favor and not as a right the privilege of tearing up its pavement and digging a trench in a public street, gives him by implication the right to attach to the grant reasonable restrictions for the protection of the public, including the power of inspection by himself or a duly appointed agent in order to see that they are complied with.</p> <p>3. When City Chargeable with Actual Notice. When the obstruction has existed for two days at a prominent corner near the center of the city, where the street was much traveled, and the inspector is on the spot, watching the progress of the work, witnessing the digging of the trench, the obstruction of the culvert and gutter, and seeing the danger to be apprehended therefrom, his knowledge of the situation is that of the city, which, therefore, had actual notice that the property in the neighborhood of the trench, gutter and culvert would be threatened with injury if a rain should occur, and having failed to take proper precautions, it is liable for the consequences resulting from its negligence.</p>

This was a proceeding by certiorari to review the action of the mayor and common council in making such assessment. The Appellate Division erred in holding that the highway authorities of the city of Gloversville did not have jurisdiction over that portion of South Main street in said city over which the plank road extends. (Tifft v. City of Buffalo, 82 N. Y. 204; Elmendorf v. City of Albany, 17 Hun, 81; Walker v. Caywood, 31 N. Y. 51; Matter of Rochester El. Ry.

This action was brought to recover' damages from the defendant, an unincorporated baggage express company, for breach of its contract to deliver a trunk and contents to the plaintiff. The answer was in substance a general denial.' On Saturday, Sepember 14th, 1889, the plaintiff delivered her trunk to the Mew York Central & Hudson River Railroad Company at Troy and caused it to be checked from that place to the city of Mew York.

The facts, so far as material, are stated in the opinion. The j udge at Special Term erred in holding that so-called contingent liabilities were not tO’ be taken into account in determining the taxable valuation of relator’s capital stock and surplus. (People ex rel. v. Ferguson, 38 N. Y. 89.) The amount for which the outstanding risks of the company can be reinsured in another solvent company is a measure of the amount of probable liability on outstanding risks.

8, 1901, which reversed an order of Special Term denying a motion for a peremptory writ of mandamus commanding the defendant to deliver to the relator a warrant on the chamberlain of the city of New York for the payment of an amount earned under a contract with'said city for the building of a sewer, and granted such writ. The nature of the action and the facts, so far as material, are stated in the opinion. Chapter 413 of the Laws of 1895 is constitutional.

The facts, so far as material, are stated in the opinion. The attempt of Matthew Hooker to dispose of his property by will must be adjudged futile for the reason that it attempts to suspend the absolute power of alienation for a term longer than that measured by two lives in being.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 3, 1900, which affirmed an order of Special Term requiring the plaintiff either to amend his complaint by separately stating and numbering the two causes of action alleged therein, to wit, a cause of action under section 1925 of the Code of Civil Procedure and chapter SOI of the Laws of 1892, known as a taxpayer’s action, and a cause of action…

Gross-appeals from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered September 14, 1900, reversing in part the determination of the town board of the town of Sweden, and dismissing the writ of certiorari as to the remainder of the relator’s claim upon the merits. The village of Brockport is in the town of Sweden, county of Monroe.

<p>1. Libel—Code Crim. Pro., §§ 527, 528—Appeal.</p> <p>In cases other than where the judgment is of death, the Court of Appeals can take notice only of legal errors appearing in the record or raised by exception on the trial, and the 'fact that an alleged error, in a trial for criminal libel, involved a constitutional question does not increase the power of review.</p> <p>2. Same—Jury to determine both law and fact.</p> <p>It is not an error in a trial of criminal libel tor the judge to State his opinion of the law, if he instructs the jury that it is the judge alike of the law and the fact.</p> <p>3. Same—Evidence.</p> <p>In cases of criminal libel the question of the competency of evidence offered by either party must be decided by the court in the same manner as upon other trials.</p> <p>4. Same—Penal Code, § 244.</p> <p>The pecuniary honesty of the foreman of a newspaper- office is in no sense a public affair so as to allow the defendant to excuse an attack upon the character of such foreman, by testifying as to his belief as to the truth of the statements made, under the provisions of Penal Code, § 244.</p>

defendant entered upon a dismissal of the complaint by the court on trial at Circuit. The nature of the action and the facts, so far as material, are stated in the opinion. There was sufficient testimony on the question of defendant’s negligence to make it one of fact, and it should have been submitted to the jury. (Young v. Atlantic Ave. R. R. Co., 10 Misc. Rep. 541; Meisch v. Rochester El. Ry. Co., 72 Hun, 604; Ward v. N. Y. & H. R. R. Co., 79 Hun, 390; Witte v. B. C. Ry.

The nature of the action and the facts, so far as material, are stated in the opinion. The property of the plaintiff described in the complaint and assessed by the defendant and its assessors, is not in the assessment district laid out by the common council of the city of Mount Vernon to pay the cost of this improvement.

The nature of the action and the facts, so far as material, are stated in the opinion. The judgment at Special Term should have been for a nonsuit and not a dismissal on the merits. (Lugar v. Byrnes, 29 Abb. [N. C.] 282; Terry v. Horne, 59 Hun, 492; Martin v. Cook, 37 N. Y. S. R. 733; Hart v. Ryer, 43 N. Y. S. R. 139; Knight v. Sackett, 19 N. Y. Supp. 712; Gates v. Canfield, 2 Civ. Pro. Rep. 255.) No allowance was proper in this case.

<p>1. Account Stated — Implied Assent. To constitute an account stated an express assent thereto need not he shown, hut such assent may he implied from the circumstances.</p> <p>2. Assent, when Question por Jury. Whether or not the defendant assented to an account charged against him upon the hooks of a corporation so as to constitute it an account stated is a question for the jury, where as one of the managing directors he was in control of the corporate business and its books, directed the bookkeeper as to the making of entries, and afterwards verified a petition for the voluntary dissolution of the corporation on the ground of insolvency, to which was annexed a schedule of the assets in which his name appeared as a debtor in the same amount shown upon the corporate ledger.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. ’ The pleadings present a material issue between the plaintiff and the defendant Miller. (Parker v. Pullman & Co., 36 App. Div. 208; Emery v. Pease, 20 N. Y. 62.) The judgment decrees the falsity of a material allegation of the complaint without a trial, and is, therefore, erroneous. (Decker v. Boice, 83 N. Y. 215; Brown v. Gallaudet, 80 N. Y. 413; Code Civ. Pro. § 503 ; Pom. on Rem. & Rem.

The nature of the action and the facts, so far as material, are stated in the opinion. The statutes enlarging the property rights of married women in force at the time the contract in question was made enabled the plaintiff’s wife to contract for her own benefit, and the contract set forth in the complaint and proved on the trial, in whole or in part, belonged to the plaintiff’s wife and not tó the plaintiff.

The nature of the action and the facts, so .far as material, are stated in the opinion. The alleged agreement being in writing, the plaintiff’s case must be sustained entirely upon the contents and effect of the writing.

The contract under which plaintiff recovered his judgment the defendants claim to be null and void because in restraint of trade, and it reads as follows : “ This agreement made this eighth day of August, by and between Charles J. Cohen, manufacturers of the City of Philadelphia, of the first part, and The Morgan Env. Co. of Springfield, Mass.; The White Corbin & Company of Rock-ville, Conn.; The Holyoke Env. Co. of Holyoke, Mass.; The Whitcomb Env.

<p>. Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 2, 1900, affirming a judgment in favor of plaintiff entered upon a verdict, and an order denying a motion for a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The complaint should have been dismissed on the ground that the plaintiff failed to prove the cause of action therein pleaded. (Southwick v. F. Nat. Bank, 84 N. Y. 420; Truesdale v. Sarles, 104 N. Y. 167; Day v. Town of New Lots, 107 N. Y. 148; Reed v. McConnell, 133 N. Y. 425.) The conceded cause of the fall of the building being the improper construction of the concrete foundation under pillar Flo. 3, and such construction having been a deviation from the plans and specifications for the building, and wholly the act of Parker, and in violation of his contract, and such construction having been made without the knowledge of the appellant, he is not responsible for the death of the plaintiff's intestate. (Pack v. Mayor, etc., 8 N. Y. 222; Kelly v. Mayor, etc., 11 N. Y. 432; McCafferty v. S. D. & P. M. R. R. Co., 61 N. Y. 178; King v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 181; Charlock v. Freel, 125 N. Y. 357; Engel v. Eureka Club, 137 N. Y. 100; Negus v. Becker, 143 N. Y. 303; Vogel v. Mayor, etc., 92 N. Y. 10; Herrington v. Vil. of Lansingburgh, 110 N. Y. 148; Berg v. Parsons, 156 N. Y. 109.) The judgment cannot be sustained upon the theory that the defendant violated the Building Law. (Hawke v. Brown, 28 App. Div. 37; De Kay v. Bliss, 4 N. Y. S. R. 128; 120 N. Y. 96.) The judgment cannot be sustained on the ground that the defendant is liable for the defective . construction' of the foundation under column Eo. 3. (Fox v. Ireland, 46 App. Div. 541; Woolsey v. Funke, 121 N. Y. 87; Nicoll v. Sands, 131 N. Y. 19; Kumberger v. Congress S. Co., 158 N. Y. 339.)</p> <p>The duty to pass upon and determine the sufficiency of' the bed or bottom on which the concrete was to rest devolved upon Ireland, or his agent, who had complete control over the construction at that point. (Vogel v. Mayor, etc., 92 N. Y. 18; Kelly v. Mayor, etc., 11 N. Y. 432; Pack v. Mayor, etc., 8 N. Y. 222; Goldschmid v. Mayor, etc., 14 App. Div. 135; R. R. Co. v. Hanning, 15 Wall. 649; Schwartz v. Gilmore, 45 Ill. 455; Camp v. Church Wardens, 7 La. Ann. 321; Cincinnati v. Stone, 5 Ohio St. 38; Speed v. A. Ave. R. R., 71 Mo. 303; City of St. Paul v. Seitz, 3 Minn. 297.) When it became necessary, the work of preparing or improving the bottom for the concrete devolved upon Ireland. (Mansfield v. N. Y. C. & H. R. R. R. Co., 102 N. Y. 205; Smith v. B., C. & M. R. R. Co., 36 N. H. 458.) After the defective foundation was laid, Ireland adopted it by directing an additional story to be put into the building, thus greatly increasing the weight and bringing on the collapse. (Heffernan v. Benkard, 1 Robt. 432; Gilbert v. Beach, 16 N. Y. 608; Dressell v. City of Kingston, 32 Hun, 533; Lockwood, v. Mayor, etc., 2 Hilt. 66; 2 Thomp. on Neg. 900, 901; 1 S. & R. on Neg. § 175.) Behrens was the agent of Ireland for the purpose of examining and approving the bed or bottom before the concrete was placed in it. (Del Genovese v. T. A. R. R. Co., 13 App. Div. 412; Goldschmid v. Mayor, etc., 14 App. Div. 135; Mulholland v. Mayor, etc., 113 N. Y. 631; Thomas v. Stewart, 132 N. Y. 580; Seymour v. L. D. Co., 20 N. J. Eq. 396.) The plan of the building was dangerous as applied to defendant’s land or as applied to any land, and this was one of the proximate causes of the accident. (Defond v. State, 30 Md. 179; Timlin v. S. O. Co., 126 N. Y. 514; Lilly v. N. Y. C. & H. R. R. R. Co., 107 N. Y. 575; Scandell v. Construction Co., 50 App. Div. 512; Larkin v. Washington M. Co., 45 App. Div. 6; Wood v. Town of Gilboa, 76 Hun, 175; 146 N. Y. 383; Phillips v. N. Y. C. & H. R. R. R. Co., 127 N. Y. 657; Ivory v. Town of Deerpark, 116 N. Y. 477; Kennedy v. Mayor, etc., 73 N. Y. 365; Ring v. City of Cohoes, 77 N. Y. 83.) Defendant did not prove conclusively that he committed the subject-matter of preparing the plans to the architect, and is not excused by the approval of the building department. (Rouse v. Whited, 25 N. Y. 170; Gratton v. M. L. Ins. Co., 92 N. Y. 284; People v. Buddensieck, 103 N. Y. 487; Clark v. N. Y., L. E. & W. R. R. Co., 40 Hun, 605; 113 N. Y. 670; Wohlfahrt v. Beckert, 92 N. Y. 490; Becker v. Koch, 104 N. Y. 394; Joy v. Diefendorf, 130 N. Y. 6; Pitcher v. Lennon, 12 App. Div. 356.)</p>

<p>1. Negligence—Notice to Municipal Corporation op Dangerous Areaway. While a deep areaway along the line of the sidewalk, on a busy and much frequented street in a large city, is not necessarily an unlawful encroachment and a nuisance per se, its presence, when insufficiently guarded, neccssaiily creates and isa source of danger to persons on the street, and where it has so existed for a long period of time, the officers of the municipality arc chargeable with knowledge of the danger.</p> <p>2. Whether an Areaway Was Suppiciently Protected a Question op Fact. In an action against the city to recover damages for the death of plaintiff’s intestate caused by his slipping on the sidewalk and being precipitated over a railing two and a half feet high into the areaway, the question whether or not the railing was a sufficient protection to passers-by is for the jury.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The general assignment for the benefit of creditors, made by the insured, is. such a change of title as would render the policy void under the provision of the policy. (Perry v. L. F. Ins. Co., 61 N. Y. 214; Orr v. H. F. Ins. Co., 151 Ill. 149 ; Dube v. Ins.

The nature of the action and the facts, so, far as material, are stated in the opinion. Covenants against incumbrances run with the land. (Clarke v. Priest, 18 Misc. Rep. 501; 21 App. Div. 174; Coleman v. Bresnaham, 54 Hun, 619 ; Boyd v. Belmont, 58 How. Pr. 513; Ernst v. Parsons, 54 How. Pr. 163; Andrews v. Appel, 22 Hun, 429 ; Colby v. Osgood, 29 Barb. 339 ; Rawle on Cov. [5th ed.] § 212; Roberts v. Levy, 3 Abb.

The nature of the action and the facts, so far as material, are stated in the opinion. This is not a case wherein the cestui que trust is entitled to have income as such paid over to him, nor where the amount the cestui que trust is to receive each year is specified in' the will, or ascertainable by any process of computation.

The plaintiffs recovered a judgment, which adjusted the amount of their lien against the defendant and directed a sale of the property in the usual form in such cases, and the judgment has been unanimously affirmed by the Appellate Division, in the second department. The case was tried before a referee.

<p>Appeal from a judgment of the appellate division of the supreme court in the third judicial department, entered November 28, 1900, affirming a judgment of the Chenango county court convicting the defendant of the crime of criminally receiving stolen property, knowing it to have been stolen, and an order overruling a demurrer to the indictment.</p> <p>The indictment is as follows:</p> <p>“ The grand jury of the county of Chenango, in the state of New York, by this indictment accuses William M. Campbell, Wellington Barber, Della Hartwell and Louisa Marvin, of the crime of ‘ knowingly receiving ’ stolen property, committed as follows, to wit:</p> <p>“ That the said William M. Campbell, Wellington Barber, Della Hartwell and Louisa Marvin, on, or about the 5th day of January, 1899, at the town of Smyrna, in the county of ■Chenango and state of New York, committed the crime aforesaid, by wrongfully, unlawfully and feloniously receiving stolen property, consisting of articles of personal property, to wit:</p> <p>“ Teaspoons, bedding, horse blankets, ladies’ clothing, dishes, lamps, curtains, portieres, a new one-horse harness, a, New-market wrap, and many other and various articles of personal property to the grand jury aforesaid at this time unknown, .and which said property belonged to and was the property of John E. Smith, G. Wells Smith, Mrs. Abbie Lewis, Horace J. Newell, and of other persons the names of whom are at this time to the grand jury aforesaid unknown, and which said articles of personal property had been wrongfully, unlawfully •and feloniously appropriated in such a manner as to constitute larceny from the above-named John E. Smith, G. Wells Smith, Mrs. Abbie Lewis, Horace J. Newell and other persons, to the grand jury aforesaid at this time unknown, by such property '.having been taken from the possession of said above-named •persons, they being the true owners thereof, with the wrongful, unlawful and felonious intent of depriving such • true owners of their said property as described aforesaid, and which was so taken and appropriated by one Frank Hartwell ■and other persons whose names are at this time to the grand jury aforesaid unknown, and which said wrongful act or acts -of so taking and appropriating said property was committed in the county of Chenango and Madison and state of New York, and after having been so taken and stolen as aforesaid, the ■above-named William M. Campbell, Wellington Barber, Della Hartwell and Louisa Marvin, in the said town of Smyrna, in the county of Chenango, N. Y., knowing the same property to have been stolen, concealed, withheld, and aided in con■cealing and withholding, such property, well knowing at the time that same had been stolen as aforesaid, and so wrongfully appropriated same in such manner as to constitute larceny, with such wrongful, unlawful and criminal intent received and aided in concealing and withholding such property at the place occupied by said Frank Hartwell, in the said town of Smyrna, on the 5th day of January, 1899, and at other places in said county of Chenango, N. Y., to the grand jury aforesaid at this tape unknown.</p> <p>“All of which was done contrary to the provisions of the statutes of the state of New York, in such case made and provided.”</p>

<p>1. Will—When Equity Has Jurisdiction of Action for Construction. Equity has jurisdiction of an action to determine the validity of a will when the construction of a trust is involved and there is an intervening life estate under which the life tenant is in possession.</p> <p>2. When Intestacy May Be Avoided. When invalid provisions of a will may he eliminated so as to leave intact the parts that are valid and to preserve the general plan of the testator, such a construction will he adopted as will prevent intestacy, either partial or total, as the case may he.</p> <p>3. Perpetuities—Unlawful Accumulation of Bents and Income. A testamentary direction that upon the-death of a life tenant the executors hold the property in trust with the power to collect the rents, issues and profits, and after the payment of taxes, charges and specified annuities invest the surplus in real estate, and that the estate shall not he settled for a period of five years after the death of the life tenant, final settlement to be made as soon thereafter as in the opinion of the executors will he for its best interests, is void as contravening the statutes against perpetuities, since the indefinite period named for the continuance of the trust may exceed two lives in being; and is also void as violating the statute against unlawful accumulations of rents and income where the beneficiaries are of full age.</p> <p>4. When Yoid Intermediate Trust May Be Expunged without Total Destruction of Will. In a will which gives the testator’s widow a valid life estate, a subsequent clause providing for the void trust may he expunged without destroying the will as a whole, or creating partial intestacy, when it is succeeded by a valid ultimate trust and good remainders in favor of the same h gatees for whose benefit the void intermediate trust was created and under which they will take in the same proportions.</p>

order of the Appellate Division of the Supreme Court in the second judicial department, entered May 2, 1899, which reversed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial and granted a new trial. The nature of the action and the facts, so far as material, are stated in the opinion.

This action was brought to recover damages against a railroad company for a breach of contract of carriage; it appeared on the trial that the plaintiff, after being informed by one of defendant’s ticket agents that a certain train stopped -at a station to which he desired to go, purchased a ticket and boarded the train; that the ticket was thereafter examined, punched and returned by a conductor who left the train at an intermediate station, another conductor taking his…

Delack to intervene, and directing the plaintiff to make him a party defendant and to serve a supplemental summons and complaint. The action was brought by the plaintiff as assignee of a claim of C. H. Diamond to recover twenty-five hundred dollars, the amount agreed upon between the defendant and Diamond as compensation for the latter’s services as a real estate broker.

The nature of the action and the facts, so far as material, are stated in the opinion. . Under this will the remainder vested upon the death of the testator. (Areson v. Areson, 3 Den. 458; Tomlinson v. Dighton, 1 P. Wms. 149; Sage v. Wheeler, 3 App.

This action was brought to recover and redeem certain personal property, of which defendant, upon the death of plaintiff’s intestate, took possession, claiming to be entitled to the same under an alleged bill of sale. The facts, so far as material, are stated in the opinion. The defendant acquired a defeasible title to the mortgaged property which became absolute upon the failure of Hughes to pay the sum secured thereby at the specified time.

The facts, so far as material, are stated in the opinion. Relator’s appointment without civil service examination was proper. (L. 1882, ch. 410; L. 1883, ch. 354; L. 1884, ch. 410; L. 1894, ch. 354; L. 1895, ch. 569 ; People ex rel. v. Knox, 48 App. Div. 477.) Subsequent legislation fully protected the relator’s rights to be promoted from the position of patrolman to that of rounds-man for heroic and meritorious service, without a competitive examination.

The facts, so far as material, are stated in the opinion. In the face of the remonstrance of the Board of Docks, the Commissioners of the Land Office were without power to issue the grants. (L. 1897, ch. 378, § 86; People ex rel. v. Woodruff, 39 App.

The Supreme Court issued its writ of certiorari to the respondents, commanding them to return their proceedings concerning the examination, findings, removal from office and discharge of the relator from military service as major of the Seventy-first Eegiment of the National Guard of this state.

The facts, so far as material, are stated in the opinion. The ordinance was a valid exercise of the legislative power vested in the common council by the charter of cities of the second class. (L. 1898, ch. 182, art. 2, § 12; Duryee v. Mayor., etc., 96 N. Y. 477; Rathbone v. Wirth, 150 N. Y. 470.) The power of the common' council to pass the ordinance in question can be exercised as against the members of the department in office January 1, 1900.

This appeal involves the validity of chapter 614 of the Laws of 1900,-entitled1 “An act for the relief of William 0.

Haug, deceased. The nature of the action and the facts, so far as material, are stated in the opinion. It was clearly the intent of the testator to treat both of his sons and their issue equally and alike; and that he did not intend to work a disinheritance of and a discrimination against either of the sons or the issue of either.

The purpose of the action was to obtain a construction of the ninth clause of the testatrix’s will. It was. alleged in the complaint that she did not specifically direct what disposition should be made of the property mentioned in that clause in case Mason R. Jones should die leaving his wife but not Ms son Renshaw M. Jones surviving.

The nature of the action and the facts, so far as material* are stated in the opinion. The plaintiff, under the admitted facts in the case, has not located subdivision TO of great lot 68 upon the ground where the logs in question were cut. (L. 1827, ch. 2; L. 1829, cli. 30 ; 21 Am. & Eng.

The defendant is a city of the second class, to which chapter 182, laws 1898, and acts amendatory and supplementary thereto apply. In Uoveniber, 1899, James Johnston ivas elected comptroller of the city of Rochester, duly qualified, and has since performed the duties thereof. On March 1, 1900, he appointed the appellant deputy comptroller, who immediately filed his oath of office and entered upon the discharge of its duties.

Motion to substitute T. Ellett Hodgskin as substituted assignee for the benefit of creditors of the Rogers Manufacturing Company as plaintiff and respondent in the place of Asa L. Rogers, deceased.

<p>1. Murder—Evidence.</p> <p>Review of evidence presented upon a trial for murder where the evidence or the question of motive was somewhat meagre, - examined and found sufficient to convict.</p> <p>2. Same—Trial—Drawing jury—Code Civ. Pro., § 1035—Code .Crim. Pro., § 358.</p> <p>The concluding clause of section 1035 Code Civ. Pro. indicates that the clause fixing time for the meeting for the selection of jurors is directory, and if for any reason the duties should not be discharged by these officers at the time designated, they can discharge the duty-at any time thereafter, and where certain officers made up a list of jurors at the timé required by the Code for the whole city, but four months after, upon discovery that their proceedings were irregular, again met and filed separate lists for each town, Held that by proceeding to discharge their duty upon discovering that they had failed in regard to the method, they acted properly and the' jurors composing the latter list were properly selected.</p> <p>3. Same—Evidence.</p> <p>Statements made by defendant’s brother in his presence in answer to inquiries mostly addressed to defendant himself by an officer in discharge of his duty, and the remark by such officer to the 'sheriff “ this is our man,” merely identifying defendant as the person for whom they were looking with no statement to the effect that this was the murderer or the guilty man, where the defendant was at liberty to answer1 or correct such statements, are admissible upon the prosecution, of the latter for murder.</p> <p>(Martin, J., dissenting.)</p>

<p>Appeal — When Question Raised Does not Merit Consideration. Where a return to a writ of certiorari to review the proceedings of police commissioners of a city, in dismissing the relator from the police force, shows affirmatively that the dismissal was improper, a contention that the writ must fail for the reason that the relator did not allege, in his petition, the invalidity of a claim, not made until nearly two years after the petition was filed, and which had no connection, actual or pretended, with the act charged and for which the relator was dismissed, is totally without substance and does not merit consideration.</p>

Appeal, by permission, from a judgment entered upon an order of the Appellate Division of the Supreme Court in the first judicial department, made June 8, 1900, affirming an interlocutory judgment overruling a demurrer to the amended complaint. The following question was certified: “ Does the amended complaint herein state facts sufficient to constitute a cause of action \ ”

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 11, 1899, affirming a'judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term.</p>