Volume 4 — New York Supplement

Plaintiffs, John Hoops and others, leased of George W. Libby certain premises in Newark, N. J., for a term of five years, and afterwards transferred the-lease to Adolph ICocb, and George Beauermann.

Motion to vacate order of arrest. Action by Thomas J. Lennon against John Brandt, commenced by service of summons and complaint April 25, 1888, for goods sold and delivered. On April 27, 1888, plaintiff obtained an order of arrest on an affidavit that defendant had disposed of his property with intent to defraud creditors.

<p>Guardian and Ward—Sale of Realty—Bond of Special Guardian.</p> <p>Code Civil Proc. N. Y. § 2352, relating to proceedings to sell infants’ realty, provides that the court must appoint a suitable person as special guardian, who must “thereupon” file with the clerk a bond, approved by the court. Section 2354 provides that upon presentation of the petition, “and the filing of the bond, ” the court must make an order of reference, to inquire into the merits of the application. Held, that the failure of the special guardian to file his bond, previously duly executed and approved, until after the making of the order of reference, does not prejudice the infant’s rights, and is a mere irregularity, in no wise affecting the validity of the proceedings.</p>

Action by Frank W. Colwell, as receiver, against the Garfield National Bank. Defendant demurred to the complaint, on the ground that plaintiff did not have legal capacity to sue, and because it did not state facts sufficient to constitute a cause of action.

On motion to dissolve injunction. Action by C. P. Flockton against Louis Aldrich, president of the Edwin Forrest Lodge Actors’ Order of Friendship to restrain the expenditure of $500 in sending a committeee to present to congress a memorial recommending that the contract labor law be so amended as to prevent the importation of foreign actors, except stars.

Judgment creditors’ action by Green against Griswold, judgment debtor, and the Union Trust Company. Plaintiff moves to strike out an allegation in the complaint. For former opinion, see 2 1ST. T. Supp. 624.

Motion to confirm report of referee. Code Civil Proc. 3ST. Y. § 1205, is as follows: “Where the action is against two or more defendants, and a several judgment is proper, the court may, in its discretion, render judgment, or require the plaintiff to take judgment against one or more of the defendants; and direct that the action be severed, and proceed against the others as the only defendants therein. ”

Action by Frank B. Stearns against the St. Louis & San Francisco Railway Company, to recover damages for breach of contract. The contract was originally made between the Atlantic & Pacific Railroad Company and four others, viz., Henderson, Ensign, Webb, and Moore, and by it the former agreed to sell to the latter certain lands in the state of Missouri, for a price agreed, upon certain payments to be made as set forth in a written memorandum of the contract.

Action by James H. Dunham and others against Thaddeus B. Cressy and others. Plaintiffs appeal from an order setting aside service of summons upon defendants.

Action by Frederick Lange, a practicing surgeon, against Peter Kearney, for professional services in performing an operation on defendant’s son. Verdict and judgment for plaintiff. Defendant’s motion for new trial denied, and he appeals.

, Action by George H. Pride against the Indianapolis, Decatur & Western Bailway Company. -An attachment was issued on plaintiff’s affidavit that defendant was a foreign corporation, which was afterwards vacated on defendant’s motion, and from the order vacating it plaintiff appeals.

Action by Isaac Stern, Louis Stern, and Benjamin Stern, copartners doing business under the firm name of Stern Bros., against Cornelius W. James. Upon a trial by the court without a jury, judgment was entered for plaintiffs, and defendant appeals.

<p>Appeal from circuit court, New York county.</p> <p>Action by Clarence H. Clark against John Fey. Complaint dismissed, and plaintiff appeals.</p>

<p>Appeal from court of general sessions, New York county.</p> <p>Prosecution of Eugene O’Hara for an attempt to commit robbery. There was a conviction, and defendant appeals.</p>

<p>1. Appeal—Review—Weight oe Evidence.</p> <p>In an action for mason-work done, where the question litigated was whether there was a contract of employment or not, plaintiff testified to a conversation in which defendant said that he would give plaintiff a certain sum for doing the mason-work in question, and another witness testified to the same effect. Defendant testified that plaintiff had asked a certain sum for doing the work, but that he had refused to give it, and that he did not promise to let plaintiff have the work. Held, that a finding lor plaintiff would not be disturbed.</p> <p>2. Same—Matters not Apparent in Record.</p> <p>Exceptions to a refusal to make certain findings are not available where the requests to find are set out, but there is nothing to show what disposition was made of such requests, or that they were ever passed upon.</p>

<p>Appeal from special term.</p> <p>Action by Bandolph Guggenheimer against Edward Sayre, impleaded with others. From an order directing a resale of certain premises, defendants appeal.</p>

Action by Sarah M. Manchester against J. Warren Tibbetts, to recover for the conversion of certain chattels seized and sold by defendant under execution against plaintiff’s husband, Charles W. Manchester. Plaintiff had a mortgage on the property to secure her in a debt owed by her husband, evidenced by a promissory note for $1,016.06. The mortgage bore date October 28,1886, and there was a prior mortgage thereon to one King, on which about $300 was clue.

<p>G-aming—Optional Contracts—Purchase and Sale of Stock.</p> <p>A contract between two persons by which one, for a consideration paid, is allowed the privilege of buying of or selling to the other shares of stock agreed upon, if he should elect to do so before the stock reaches a given per cent, of advance or depreciation in value from the contract price, it not being intended to deliver the shares, but to settle the transaction by payment of the difference between the contract price and the value reached by the stocks, is not.gambling, within the meaning of Pen. Code N. Y. c. 9, prohibiting any one to keep or use any table, cards, dice, or other apparatus commonly used in gambling.1</p>

Action by Clara Campbell agáinst Charles Arbuckle, for breach of promise of marriage. The promise was alleged to have been made in April, 1882, and the damages were laid at $250,000- Verdict and judgment were for plaintiff for $45,000 and costs, from which, and from an order denying a new trial, defendant appeals.

John H. Graham presented to William C. Gulliver, administrator, and Maria H. Hotchkiss, administratrix, a claim against the estate of Benjamin B. Hotchkiss, deceased, which was reported adversely by the referee. Judgment was rendered dismissing the claim, from which, and from an order denying a motion to set aside the report, the claimant appeals.

Paul M. Tulane and George 0. Vanderbilt, administrators, etc., of Paul Tulane, deceased, appeal from an order of the surrogate requiring the payment of the “collateral inheritance tax” on certain securities of their intestate deposited with the Hew York Safe-Deposit Company.

Action by Bichard S. Newcombe, assignee for benefit of creditors of Isaac J. Seligman and others, against the Irving National Bank.

<p>Covenants—Running with Land—Liability op Vendee.</p> <p>Plaintiff andan adjoining owner made a party-wall agreement to run with the land, by which, when the adjoining owner or his assigns should make use of the wall, one-half its cost should be paid to plaintiff. The land of the adjoining owner was afterwards acquired by defendant through conveyances, all of which were made subject to the agreement. Defendant having made use of the wall, plaintiff was entitled to have half its cost charged on defendant’s land, and payment enforced by a sale thereof, and to a personal judgment against defendant for any deficiency.1</p>

Writ of certiorari issued on relation of the Central Park, Horth & East River Railroad Company to the commissioners of taxes and assessments of the city of Hew York, to review and correct assessments. The assessments were confirmed, the writ dismissed, and relator appeals. Laws H. Y. 1881, c. 298, amend Rev. St. pt. 1, c. 13, tit. 1, § 2, as follows, (2 Rev. St. 7tli Ed. 981, § 2:) “Sec. 2.

Writ of certiorari to the commissioners of taxes and assessments of the city of New York, to review an assessment of the capital stock of the Central Park, North & East River Railroad Company, relator. Relator appeals from an order affirming the action of defendants, and dismissing the writ.

<p>Appeal from special term, New York county.</p> <p>Certiorari, on relation of the Central Park, North & East Elver Bailroad ■Company, to the commissioners of taxes and assessments, to review an assessment. The president of relator testified that the method of valuing the company’s stock by reference to its quoted price was not just, because its personal property would not equal the amount thus arrived at by 100 per cent.; that the buying and selling value of the stock was derived in great part from the prospects of the company,—from certain rights which were supposed to be valuable, such as the right to carry freight and use steam, which would not be profitable or practicable; that the value was often inflated from cornering, or attempts to secure a controlling interest in the company; and that the road had not earned legal interest from the time it was opened, and was not earning 6 per cent, interest, and its average percentage of earnings was but a little over 3 per cent. The assessment was confirmed, the writ dismissed, and relator appeals.</p>

The assessment was confirmed, the writ dismissed, and relator appeals. See opinions on assessments for the years 1883 to 1885, ante, 41 et seq.

On December 8, 1885, a warrant of attachment against the defendants’ property was issued in each of the above actions to Alexander V Davidson, then sheriff of Hew York county, who deputized George W. Schaffer, the respondent, as his deputy, to execute the same. Under these attachments Schaffer levied on merchandise belonging to the defendants, and on debts owing to the defendants from about 19 merchants doing business in the city of Hew York, aggregating over $6,000.

<p>Appeal from circuit court, Hew York county.</p> <p>Action by John A. Kamping against John A. Horan. From a judgment for plaintiff defendant appeals.</p>

Action by TJlrice Lesser against P. E. Perkins, to recover for a lot of scrap-iron sold and delivered. Verdict and judgment for defendant, and plaintiff appeals. For opinion on former appeal, see 39 Hun, 341.

<p>1. Municipal Corporations—Public Improvements—Ratification of Expenditures.</p> <p>Laws N. Y. 1880, c. 565, making it the duty of the commissioner of public works to complete all work relating to the Morningside park, and to transmit to the board of assessors, on the completion of the work or any portion, a certificate of the amount theretofore expended, together with the expenditures thereafter incurred under that act, and declaring that the assessment should be pursuant to the laws for assessments for local improvements, is a ratification of the amount previously ex pended.</p> <p>2. Same—Reduction of Assessment—Cost of Work.</p> <p>The commissioner had power to do the work without contract, and to do it by days’ work, under Laws N. Y. 1867, c. 697; 1S6S, c. 288; 1870, c. 137; 1872, c. 872; and 1873, c. 335, and the power was continued by the charter of 1873, which exempted such work from its operation, and an assessment therefor cannot be reduced to the extent that the actual cost of that part of the work which was done by days’ work exceeded its fair value, as that method of doing the work is neither fraud nor substantial error.</p>

<p>Appeal from circuit court.</p> <p>Action by Florence A. Merrill against Peter Brunner, as surviving partner of the firm of Brunner & Moore. The defendant appeals from a judgment for plaintiff.</p>

Upon the settlement of the account of Algernon Sullivan, public administrator, etc., as administrator, etc. of Bichard Tobin, deceased, an order was made directing the payment of funds in the hands of said Sullivan to the next of kin of Richard Tobin. The comptroller of the city of Hew York appeals.

Action by Phebe N. Bloomingdale against John A. Bowman and others, to recover the amount of a mortgage. Judgment therefor was rendered against Bowman, and he appeals.

Action by Fannie Bean against George W. Carleton and others. Defendants appeal from a judgment for plaintiff and an order denying a motion for a new trial.

Action by Frederick W. Yon Stade and others against Sarah Le Compte and others. A decree of foreclosure was entered, and sale made, and from an order denying an application for a resale the defendant Le Compte appeals.

<p>1. Receivers—Actions—Revival—Irregularity in Appointment.</p> <p>An irregularity in an order appointing a receiver in supplementary proceedings is no ground of objection to the revival, against the executor of a deceased defendant, of an action by the receiver for an accounting of property conveyed to decedent by the debtor, with intent to defraud creditors.</p> <p>2. Abatement and Revival—Death op Party—Supplemental Summons.</p> <p>In such an action, against the fraudulent grantor and grantee as the only defendants, a revival will be ordered against the executor of the latter without any supplemental summons, under Code Civil Proo. N. T. § 757, which provides that, upon the death of a sole plaintiff or defendant, if the cause of action survives or continues, the court must, on motion, allow or compel the action to be continued by or against his representative or successor in interest.</p> <p>3. Same—Reference—Objections Waived.</p> <p>After such an action has been referred, it is too late, on amotion to revive against defendant’s executor, to raise the objection that plaintiff is a non-resident of the state, that his bond is void, or that the plaintiffs in the supplementary proceeding are dead, and have no personal representatives, as all such questions will be assumed to have been determined before the reference was ordered.</p> <p>4. Same—Leave to Sue.</p> <p>Nor will such revival be prevented after issue joined, because the plaintiff has not obtained, leave of court to sue, as under Code Civil Proc. N; T. § 499, an objection to plaintiff’s capacity to sue is waived, if not made by demurrer or answer.</p> <p>5. Judgment—Enforcement—Limitation.</p> <p>Code Civil Proc. N. Y. § 376, providing that, after the lapse of 20 years from the • rendition of a judgment, it is conclusively presumed to be paid, does not apply to a judgment for the collection of which special proceedings were instituted before the expiration of that period.</p>

<p>Deposition—Absent Plaintiff—Discretion of Court.</p> <p>Code Civil Proo. IT. Y. §§ 887, 888, provide that, where an issue of fact has been joined in an action, a commission may be issued-to take the testimony of a witness not within the state, where the applicant therefor makes affidavit that such testimony is material. Section 889 provides that where in such case a commission is applied for the application must be granted on satisfactory proof of the facts authorizing it, unless the court has reason to believe that such application is not made in good faith. Held, where an issue of fact was joined, that the court had no discretion to refuse an application for a commission to take the testimony of an absent plaintiff, in the absence of a showing that there was any lack of good faith; and that an allegation that plaintiff was absent from the state on account of a threatened criminal prosecution aid not show such lack of good faith.</p>

At chambers. Action by John Keenan against John O’Brien and Heman Clark. An order was made for the examination of Clark before trial, and a motion is made by the defendants to vacate the order.

<p>1. Ceiminal Law—Evidence—Conteadiction oe Foemeb Testimony.</p> <p>Where a witness called by the people states that what he testified before the grand jury was untrue, the people may cross-examine him as to the details of his testimony before the grand jury, and may show to the court the grand jury’s minutes, to show that the witness is an unwilling one.</p> <p>2. Same—Who abe Accomplices.</p> <p>On a trial of several defendants for burglary and larceny of a quantity of shoes, the people’s principal witness testified that defendants came into the room where he was early in the morning of the night of the burglary; that he went with them to a certain street corner, where were some other men in charge of 60 pairs of shoes; that he was told these shoes came from Shearer’s Hall, (the premises burglarized ;) and that he assisted in putting the shoes in a cellar. Field no evidence that the witness was an accomplice, so as to require his evidence to be corroborated. Dykman, J., dissenting.</p>

This action was brought by Eleanor T. Mitchell, as administratrix, etc., of Elijah J. Mitchell, deceased, against James T. Mitchell, before a justice of the peace.

<p>Appeal from special term, Queens county.</p> <p>Action by the Isle of Wight Co. against Frederick H. Smith, Jr. Plaintiff appeals from an order sustaining a demurrer to the complaint.</p>

Action by George McDougal, individually and as executor, against Gray and others, to construe a will. Plaintiff moves to vacate an ex parte order requiring him to give security for costs because of his non-residence. Code Civil Proc. § 3268, provides that the defendant may require security for costs to be given in an action commenced by a person residing out of the state.

<p>Appeal from Kings county court.</p> <p>Action by Charles P. Schlaefer against William Heiberger.</p>

Action for trespass brought by the town of Southampton against Edwin Post. Judgment for plaintiff, and defendant appeals. The following is the opinion rendered by the referee: “The plaintiff, in its complaint, avers its ownership of the locus in quo„ namely, ‘the old burying-ground,’ substantially as the same is now surrounded by fence.

Dor the evidence given on a former trial of this case, which is substantially the same as that given on the second trial, and on which the judgment now appealed from was rendered, see the opinion of the general term on a former appeal, reported in 1 RT. Y. Supp. 792.

Action by plaintiff, Alexander G-. Black, against the city of Brooklyn. A judgment was entered dismissing the complaint, and plaintiff appeals.

<p>1. Sale—When Title Passes—Bill oe Sale—Delivery.</p> <p>Where an accommodation indorser, on maturity of the notes, takes a bill of sale of certain property of the maker as indemnity, but the maker makes an assignment for benefit of creditors before the bill of sale is delivered, no title passes to the indorser.</p> <p>2. Evidence—Parol to Vary Writing.</p> <p>A written contract, absolute in its terms, executed to carry out an agreement for dissolution of partnership, must be taken as the final conclusion of all preliminary or previous arrangements.</p>

<p>Carriers—Injuries oe Passengers—Dangerous Premises.</p> <p>A verdict of damages to one injured by tripping on a railroad station platform, while approaching it in the dark as a passenger, will not be disturbed; it appearing that the only dispute was whether the platform and its approaches were properly lighted, and that the question was properly submitted to the jury.1</p>

<p>Counterfeiting—Distribution of Counterfeit Money—Evidence.</p> <p>On indictment under Pen. Code N. Y. § 537, as amended by Laws 1887, c. 687, which includes every device for sale or distribution of counterfeit money, it was shown that defendant requested permission to receive letters directed to the care of others; that the name to which they were directed was assumed; that the letters acknowledged receipt of letters, and contained a circular and newspaper slip which were received therewith; that the circular contained propositions to sell money, and stated that the money was perfect, as shown by an accompanying newspaper slip, which stated that government plates were in possession of some outlaw; also that defendant called for and received one of the letters, and sent for others. Reid sufficient evidence to convict,</p>

Action by Cyrus Cleveland and others against the city of Yonkers and others, to restrain defendants from imposing or confirming an assessment for work on a sewer. Plaintiffs appeal. The following is the opinion of the special term: “Barnard, P. J. The assessment in question is justified under title 7, § 17, of the charter of the city of Yonkers.

Appeals from special term, Kings county. Held: or possessed by the said railroad company for railroad or depot purposes were exempt from any assessment or charge for the said sewer constructed as aforesaid, in case the said railroad company should give and grant a right of way across the lands by it so held or possessed for the construction and maintenance of such sewer; and said…

<p>Eminent Domain—Public Use—Railroad Crossing.</p> <p>Under the rapid transit act, § 17, (Laws 1875, c. 606,) giving to companies formed thereunder the right to acquire such real estate as maybe necessary to enable them to operate their railways, such a company, which has two routes, crossing each other at right angles, whereby the danger from collision is great, may acquire the corner property at such crossing for the purpose of providing the curve necessary 0 to allow the trains on one route to turn into the street occupied by the other, and thereby to avoid such danger.</p>

<p>Eminent Domain—Procedure—Appeal erom Award.</p> <p>A commissioners’ award of damages for land taken for the purposes of a railroad company will not be disturbed on appeal unless palpably erroneous in amount.</p>

Mortgage foreclosure by Silas W. Gifford, receiver, etc., of John M. Masterton, against Father Mathew’s Total Abstinence Society No. 1 of Tuckahoe, John McCloskey, archbishop of Hew York, William P. O’Connor, executor, etc., of John McEvoy, deceased, and others. The mortgage was given by the society, and payment of it was assumed in a deed by it to McEvoy, and in a deed by McEvoy to McCloskey.

<p>Appeal from circuit court, Richmond county.</p> <p>Action by William. F, Coston against Benjamin F. Morris, to recover for services rendered by plaintiff in manufacturing a rocket gun and rockets for life-saving purposes. The defendant alleged that the price charged therefor was excessive, and not in accordance with a written estimate given to him before he ordered the goods. He also denied plaintiff’s right to recover for services rendered in attending a trial of the rocket gun, and contended that an order of reference was not proper. From a judgment for plaintiff, defendant appeals. '</p>

Case submitted on agreed statement. Action by Levi A. Fuller, as receiver of the property of the firm of C. Brennan & Co., against John Claflin, Edward E. Eames, Horace J. Fairchild, Dexter H. Force, and Daniel Bobinson, for the value of certain goods received by defendants under a bill of sale executed by Thomas K. Foster, a member of the firm of C. Brennan & Co., in the firm name. The bill of sale was executed before plaintiff’s appointment as receiver.

Action by the Dutchess County Mutual Insurance Company against the city of Poughkeepsie, to recover taxes paid. Plaintiff is a domestic corporation, engaged in fire insurance. Defendant appeals.

<p>1. Venue in Civil Cases—Change of Venue—Premature Application.</p> <p>An application for change of venue, made before serving an answer in an action for slander, on the ground that it will be impossible for a material witness to attend in the county where suit is brought, is prematurely made.</p> <p>3. Same—When Denied—Residence of Parties.</p> <p>Such application should not be granted, in an action for slander, where the complaint does not show that plaintiff is not a resident of the county designated in the complaint as the place of trial, under Code N. Y. §§ 983-984, providing for a trial in the county where one of the parties resided at the beginning of the suit.</p> <p>3. Same—Sufficiency of Affidavit—Witnesses.</p> <p>An affidaviton which such application is based, is defective when it does not state that defendant has stated to his counsel what he expects to prove by his various witnesses.</p>

<p>Appeal from circuit court, Kings county.</p> <p>Action by John W. Foulks against Jefferson H. White, to recover for wages claimed to be due plaintiff; and also to recover an amount claimed to be due on the purchase price of certain letters patent sold to defendant. Plaintiff was employed for a year at a salary of $1,500, and claimed that only $1,000 had been paid to him under the contract. He further claimed that by the agreement for the conveyance of the letters patent he and defendant were each to advance an equal amount for the purchase of machinery; that defendant had advanced the full amount necessary for the purchase, namely, §700; and that one-half of such sum—§350—he had credited on the amount due from defendant for the patents. The defendant admitted the* there was §80 still coming to plaintiff for services, but claimed that the sum of $350 above mentioned should be applied on plaintiff’s salary. The juryreturned a .verdict of §430 for plaintiff, and defendant appeals.</p>

Action by William Colin against Moses Anathan and others. Plaintiff appeals from an order denying his motion to discountinue on payment of costs.

Action by Charles Beebe against Samuel Webber Parker. Plaintiff resides in New Jersey, but has an office in New York city for the transaction of business in person, and appeals from an order requiring him to file security for costs.

Action by Yogle against Kirby on a written instrument. Defendant demurred to the complaint, and plaintiff moves for judgment. Code Civil Proc. H.T § 534, referred to in the opinion, provides that “where a cause of action, defense, or counter-claim is founded upon an instrument for the payment of money only, the party may set forth a copy of the instrument, and state that there is due to him thereon, from the adverse party, a specified sum which he claims.”

Motion by defendant, the Woman Publishing Company, to compel plaintiff to accept an answer served by it; also a counter-motion by plaintiff to vacate a stay of proceedings heretofore granted, and for leave to enter judgment for want of an answer. Defendant is a domestic corporation, and is sued for a balance of rent.

<p>Negligence—Dangerous Premises—Nuisance—Liability of Lessee.</p> <p>A lessee of the first floor of a building, who receives the benefit, as a part of the demised premises, of an awning over the sidewalk, which is there without a license from the city, maintains a nuisance, and is liable to one injured by its fall.</p>

Action by Henry M. Whitbeck against the Atlantic-Avenue Railroad Company, for injuries sustained by plaintiff while a passenger on defendant’s car. The question at folio 31, referred to in the opinion, was as follows: A witness, having been asked if the car on which plaintiff was riding was striving with another car, as to which should pass a crossing first, was asked whether he had ever seen races of that kind. An objection to the question was sustained.

Action by Robert Brown and Phcebe A. Grapel, as administrators of Ger-hard Henry Koop, against Carl L. Recknagel and Rudolph Pagenstecher. On the trial it was developed on the cross-examination by plaintiffs of one Manning that certain sums of money paid to Manning by the defendants, and which the latter claimed to have made on account of Koop, were charged on defendants’ books to Koop. Judgment was given for plaintiffs, and defendants appeal.

At chambers. On application for mandamus. Application by the people ex rel. Charles Ulrich for mandamus against the board of education of the city of Hew York, the school trustees of the Twenty-Second ward, Matthew J. Elgas, and Julia M. Elliott, to compel the readmission of relator’s son to the primary department of school Ho. 69, of which defendant Elliott was principal.

Habeas corpus on the relation of James Burns, and Anna Burns, his wife, against James Bloedel, by which relators seek to obtain the custody of the illegitimate child of relator, Anna Burns, adopted by defendant and his wife in April, 1883. The adoption papers were made out by the county judge of Erie county, on the application of the mother, who was without means of support for herself or child. At the time of its adoption the child wras about two months old.

<p>1. Municipal Corporations—Ordinances—Validity—Noise in Streets.</p> <p>A village ordinance declaring it unlawful to go about the streets beating a drum or tambourine, or making any noise with any instrument, for any purpose, without written permission of the village president, under penalty of five dollars, is authorized by the general village act, (Laws N. V. 1870, c. 291, tit. 3, § 3, subds. 2,4,14,) giving power to make ordinances for the preservation of the public peace, and to regulate and prevent on the streets any act endangering person or property, and for the apprehension of persons unnecessarily congregating on the sidewalks or corners,</p> <p>3. Same—Delegation op Legislative Power.</p> <p>The legislature had power to authorize such an ordinance, and the ordinance has the effect of an enactment of the legislature.</p> <p>3. Same—Power op Constarle—Arrest without Warrant.</p> <p>Under Laws 1885, c. 193, making it the duty of police constables to keep order iu public places, to arrest persons concerned in noisy assemblages or violating the ordinance, a police constable is justified in arresting persons engaged in the violation of such ordinance, and, the offense being committed in his presence, he may arrest without warrant.</p> <p>4. Same—Proceedings apter Arrest.</p> <p>The statute contemplates a criminal prosecution against a person violating the ordinance; Laws 1875, c. 385, providing that the magistrate before whom a person arrested by a police constable without process, under the general village act, is brought, must proceed forthwith to hear and determine the charge, and, on conviction, such person must be fined in accordance with the ordinance, and he imprisoned until the fine is paid.</p> <p>5. Justices op the Peace—Judicial Acts—Criminal Proceedings.</p> <p>The justice before whom a person charged with violating such ordinance is brought, having acquired jurisdiction, his subsequent acts are judicial, and he is not answerable in damages therefor.</p>

<p>Appeal from Kings county court,</p> <p>Action by the Ocean Pier & Navigation Company and Elizabeth Skinner against Charles L. Woolsey, to compel defendant to remove certain obstructions from a roadway. By the terms of a conveyance of property from defendant to the said company it was agreed that, for all the purposes of a road, excepting horses and vehicles, a certain way or road should be kept open through the property conveyed, and through certain property retained by the defendant. Directly in front of such road the said company had a pier, running out into the ocean, on which passengers were landed, and the land exit and entrance from and to such pier opened directly into the said road. Both plaintiff and defendant, had places of business fronting on such road, and the defendant maintained certain buildings, posts, and fences, extending out into the road from four to five feet, one post being in the center of the road; and a clothes-line, with washed clothes thereon, was extended from defendant’s land to such post. A balcony overhanging the roadway was maintained by plaintiff. Defendant claimed that the enforcement of the covenant would work great hardship to him, and be of little benefit to plaintiff. Judgment was given for the latter, and defendant appeals.'</p>

Action by Sumner E. Claggett and Charles T. Chickering, as administrators of the estate of James H. Paine, against the Metropolitan National Bank, to recover the amount of certain bank-bills issued by the Metropolitan Bank while incorporated under the laws of the state, and before it became a national bank.

Action by Joseph Meeks and others, executors, etc., against Julia A. Ring. Judgment was entered on a verdict directed in favor of plaintiffs, and defendant appeals.

Indictment against Hugh O’Neil for the arson of a wagon factory at Cortland village. The property was managed by defendant at a salary and a third of the profits, the capital being furnished by two others,— Fitzgerald and .Duffy. Being desirous of changing their location, Duffy and Fitzgerald assigned their interest in the business to defendant, who assumed the debts of the firm, and sold the entire stock to the O’Neil Wagon Company, Limited, of Springville.

<p>Chattel Mortgages—Validity—Property not in Possession.</p> <p>A chattel mortgage of property not in possession of the mortgagor at the time of executing the mortgage, and not delivered to him until afterwards, is void.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Christian Gr. Friedmann against James N. Platt and others. On defendants’ motion one Rachel Rosenberg was substituted as defendant. Plaintiff appeals.</p>

This was an action brought by Henry Chauvrant to compel Henry Mail-lard to account to him for commissions due plaintiff under a contract theretofore made between them. The following is a portion of the defendant’s answer, which sets up, or seeks to set up, a counter-claim, and to which the plaintiff demurred: “Fourth.

Action by Richard D. Harris against Aktiebolaget Separator, a foreign corporation, existing under the laws of Sweden. Plaintiff appeals from an order' denying a motion for a reference.

Action by Orlando Barrelle against the Pennsylvania Railway Company for personal injuries. Verdict and judgment for defendant, and plaintiff’s motion to set aside the verdict and for a new trial denied. Plaintiff appeals.

<p>Estoppel—To Deny Assignment—Testimony in Action by Assignee.</p> <p>One who has testified in an action by his assignee that he had assigned the claim sued on to such assignee absolutely and in good faith, cannot question a sale of the judgment obtained by such assignee, on the ground that he still has an interest in the claim.</p>

<p>Payment—Under Dubess—Action to Recover—Pleading.</p> <p>Plaintiff alleged that she was the owner of a certain lot in a block of land, formerly a portion of the estate of P., and by the latter conveyed to B.,in 1863, and by mesne conveyances to plaintiff, as to this lot, in 1881; that in March, 1886, she contracted to sell the premises, when it was discovered that her title to a narrow strip in the rear of the lot was questionable, and the purchaser refused to carry out the contract unless her. title was perfected; that she then discovered that defendant had placed on record, in January, 1884, a deed from P.’s executors to defendant, reciting that P.’s deed to B. was intended to include the narrow strip in question, (which extended through the block,) but by mistake had omitted it, further reciting that defendant “is now the owner of a piece of land, ” (another lot in the same block,) “including said strip, and conveying the same to him in order to correct the mistake; that plaintiff demanded of defendant a deed of said strip in order to perfect her title; but that defendant, “well knowing all the facts, ” refused to give such deed except on payment of 8250; that plaintiff, being under pressing necessity to have her title perfected in order to complete the contract of sale, paid defendant the 8250 for the deed, under protest. And the complaint sought to recover the 8250 as paid under duress. Plaintiff contended that defendant was a trustee, holding the title to the strip on the rear of her lot for her benefit. Held, that the complaint was fatally defective in omitting to allege that defendant knew that the design of the executors was to convey the strip in part for plaintiff’s benefit.</p>

Action by the Mutual Life Insurance Company of Hew York against Edwin B. Woods, to enforce specific performance of a contract to purchase land from plaintiff. Judgment was entered on report of a referee for plaintiff, and defendant appeals. The will of William H. Raynor, deceased, referred to in the opinion, provided, inter alia: “Fifthly.

Appeals from surrogate’s court, Hew York county. Sarah Lenita Plumb, an infant, filed a petition for the removal of her father, James H. Plumb, from his trust as the guardian of her person and estate. Pending the petition, and an order of reference thereon, an order was made enjoining said defendant from acting as such guardian until the further order of the court, and defendant appeals, as well from the restraining order as from the order of reference.

<p>1. Insanity—Estate of Lunatic—Jurisdiction of Supreme Court.</p> <p>In New York, the supreme court, as successor of the chancellor and the court of chancery, has, by virtue of its general authority over the persons and estates of idiots, lunatics, ’etc., jurisdiction to compel the committee of a lunatic, on the latter’s decease, to account to his administrator, though such committee was appointed by the court of common pleas of New York city. Whatever concurrent or exclusive jurisdiction may have been conferred on the latter court by statute over the committee, does not extend beyond the death of the lunatic, it being provided by Code Civil Proc. § 2344, that in that event the power of the committee shall cease, “ and the property of the decedent must be administered and disposed of as if a committee had not been appointed. ” 'Van Brunt, P. J., dissenting.</p> <p>2. Same—Settlement—Liability of Committee—Negligence.</p> <p>The committee is properly charged with the amount of a mortgage investment, where it appears from the evidence, including his own admission, that the entire indebtedness was lost through his inattention and negligence.</p> <p>3. Same—Improper Investments—Disobedience to Orders of Court.</p> <p>He is also properly charged with the deficiency resulting from a loan and mortgage on a leasehold interest, particularly where he had been ordered by the court to loan only on real estate, or certain classes of bonds.</p> <p>4. Same—Failure to Invest Funds—Financial Depression.</p> <p>The court was not required to accept the excuse offered by the committee for his-failure to invest the funds of the estate during certain years, that it was a period of depression in business and property; values; inasmuch as safe loans can usually he made notwithstanding such depressions.</p> <p>5. Same—Interest—Annual Rests.</p> <p>Where the evidence does not show that'the committee’s failure to make investments was due to his willful neglect, but simply that he “failed and omitted” to make them when he might have done so, he is properly charged with legal interest, hut not with annual rests.</p> <p>6. Same—Former Statement of Account.</p> <p>Defendant’s liability for such losses was not relieved by an order of the court of common pleas confirming the report of a referee appointed to take and state defendant’s accounts, and ascertain the amount which should be allowed him for services and commissions; such report merely stating the amount of money in defendant’s hands and the amount of securities, including these mortgages, and the propriety of such securities not being involved.</p> <p>7. Same—Compensation of Committee.</p> <p>Although the referee recommended, and the court of common pleas ordered, that defendant be allowed the sum of 85,000 for his services and commissions, yet, it appearing by his own admissions that before the date of that order he had appropriated for such services and commissions an amount greater than that allowed him by the order, the supreme court properly charged him with the balance of such amount, after deducting the 85,000. Van Brunt, P. J., dissenting.</p> <p>8. Same—Res Adjudicata—Jurisdiction of Common Pleas.</p> <p>The order of the court of common pleas, made on the referee’s report, closing the-accounts as they were found at that time, being, under the provisions of Code Civil Proc. §§ 2321, 2342, 2343, a matter within the exclusive jurisdiction of that court, was binding and conclusive, and the accounting in the supreme court must be limited to the transactions of the committee subsequent to that order.</p> <p>9. Appeal—Review—Harmless Error.</p> <p>A contrary ruling by the special term was harmless, where it finally held that, the order of the common pleas was conclusive.</p> <p>10. Abatement and Revivai^-Another Action Pending—Discontinuance.</p> <p>In an action by the administrator of a lunatic’s estate against his committee for an accounting, defendant’s plea that another action between the parties for an accounting was pending in the court of common pleas, where defendant was appointed, fails, where the evidence shows that plaintiff had that action discontinued on the day he brought this; that on defendant’s motion the order of discontinuance was vacated; and that plaintiff subsequently moved for leave to discontinue, which was finally, and before trial in this action, obtained on appeal to the court of appeals.</p>

Action by George C. Winchester against T.' Quincy Browne. Defendant appeals from an order directing the dismissal of plaintiff’s complaint only unless certain conditions were complied with.

Action for damages for breach of contract by Jean Joseph Eact against Eugene Duviard-Dime. Judgment for defendant for $2,921.72, with costs and allowance. Plaintiff appeals, both from the judgment and an order of the special term directing the taxation of costs. The opinion on the latter appeal may be found post, 161.

Action by Jean Joseph Fact against Eugene Duviard-Dime. From an order determining the defendant’s right to costs, and awarding him an additional allowance, the plaintiff appeals. For opinion on appeal from judgment, see ante, 156.

Action by Leland Fairbanks, Jr., against Winthrop Sargent, executor of Henry W. Sargent, deceased, to recover the value of one-third of certain bonds used and converted by said testator. There was a judgment for defendant, which was-affirmed at general term, (39 Hun, 588,) and this judgment was reversed by the court of appeals, (9 N. E. Rep. 870.) A new trial resulted in .a judgment for plaintiff, and defendant appeals.

<p>1. Assignment for Benefit of Creditors—Rights of Creditors—Estoppel.</p> <p>A creditor cannot dispute the validity of an assignment for the benefit of creditors after he has filed proof of his claim against the debtor with the assignee!</p> <p>2. Same—Foreign Assignment—Property in New York—Attachment.</p> <p>An assignment for the benefit of creditors, made under the laws of Ohio, being in the nature of a voluntary conveyance, and valid under such laws, will operate to vest in the assignee a title to personal property situate in the state of New York, superior to that of any subsequent attaching creditor.</p>

Action by Alfred A. Liscomb against Sarah Katharine Agate as executrix, and others as executors, of Frederick K. Agate. On motion, an order was made requiring the defendants to furnish a bill of particulars showing various sums alleged to have been received by the plaintiff as commissions, and for which it was claimed he should account to the defendants, and the names of the persons from whom such commissions were received. From such order defendants appeal.

Action by Francis A. Winslow, against the Staten Island Rapid Transit Company. From an order setting aside a service of summons upon the defendant, the plaintiff appeals.

Prosecution of John J. Gibson for having abducted one Emma Roshore, a female under the age of 16 years. The defendant was convicted of the crime charged, and he appeals.

On certiorari. Proceedings by the people on the relation of Hugh J. Foley to review the action of Stephen B. French and others, as police commissioners of the city of Hew York, in removing the relator from the police force.

<p>Estates—Vested Remainder.</p> <p>Under 3 Rev. St. N. Y. (7th Ed.) j>. ÍH76, § 13, defining a “vested remainder ” to be one where there is a person in being who would have an immediate right to the possession upon the ceasing of the precedent estate, a devise in trust to pay the income of a fund to D. for life, and so much of the principal as shall be necessary for his support, the residue, after the death of D., to go to J., vests a remainder in J., which does not fail by the death of J. in D.’s lifetime, but upon the termination of the life-estate goes to J.’s personal representatives.</p>

This is an appeal by the stockholders Thomas F. Coen, Jacob Huntzinger, Charles P. Helfenstein, and Edward P. Shaefer from the final order of the special term confirming the referee’s report, and granting a dissolution of the corporation known as the “Santa Eulalia Silver Mining Company,” and appropriating a receiver therefor, under title 11, c. 17, Code Civil Proc. §§ 2419-2431.

Ejectment by Thomas Martin against Lucy E. Stoddard and Mary Mulvahill for a lot in the city of Brooklyn. The defendant Lucy E. Stoddard was seised of the land, her co-defendant being her tenant, and on March 18, 1885, Matthias W. Cole, the registrar of arrears, sold it to plaintiff for unpaid taxes,' assessments, and water-rates, and conveyed it to him by deed dated April 29, 1886.

On motion to confirm appraiser’s report. Edward Leavitt by his will directed his entire estate, consisting wholly of stocks in a New York corporation, to be held by his executors in trust to pay out of the income annuities of $2,000 each to Lucy A. A. Fisher and Mary U. Fisher for their respective lives. If the income should exceed $4,000 in any year the excess was to be divided among testator’s nephews and nieces.

<p>Wills—Revocation of Probate—Construction of Will.</p> <p>Persons affected by a will, and duly cited by publication in proceedings for its probate, cannot, in a petition afterwards filed for its revocation, raise questions as to the validity and construction of its provisions, as they should have been litigated in the former proceeding, and their determination is unauthorized in proceedings under Code Civil Proc. N. Y. §§ 3647-3653, inclusive, which provide for such revocation under certain circumstances.</p>

<p>Wills—Validity—Competency of Testatrix.</p> <p>Before executing her will testatrix showed insanity, displayed especially by causeless outbursts of passion, but these occasions were alternated by continued periods of sanity. Her oral and subsequent written directions for the drafting of the will were rationally given, and the will was reasonable, and accorded with her previously expressed intentions. The subscribing witnesses, one of them a law clerk, testified to her mental capacity when the will was executed. Held, that the will should be admitted to probate, the sanity of testatrix, at its execution, being sufficiently established.</p>

Linda F. Butler offered for probate, as the will of Francis It. Baby, deceased, a paper bearing date May 23, 1870. Albert F. Baubie, decedent’s brother, contested the will, alleging that a subsequent will, already probated, wholly revoked the former one.

In the year 1873, defendant, William O’Bowke, sold to the plaintiff, John J. Hadcock, the canal-boat Jay Pettibone, together with four mules and their harnesses, for $6,000, upon a credit; executing twelvq.notes, of $500 each, for the purchase money. He also executed a chattel mortgage on it and another boat, the Kittinger, to secure the payment of the notes. In 1876, plaintiff, alleging that he had fully paid the notes, began an action for an accounting.

Action by Bernardina Hamberg against the Singer Manufacturing Company. The defendant had leased to the plaintiff one of its machines, to be paid for on installments. One of the installments became due, and the collector of the company called on the plaintiff, and demanded payment, which was refused, because, as the plaintiff stated, she had made a payment the day before to another collector, and had received a receipt.

Trial before a referee. Action for breach of a contract by which plaintiff agreed to do all the plumbing work, and furnish all the necessary materials therefor, of certain buildings in process of erection by defendant. Plaintiff was to receive a specified amount for the entire contract. When plaintiff’s work under the contract was partly performed, its completion was prevented and rendered impossible by the legal action of the board of health of New York city.

Action by the American Surety Company against Francis B. Thurber and others, composing the firm of Thurber, Whyland & Co. One Mark T. Mason became indebted to the defendants, and also became indebted to a good many other persons. The defendants recovered judgment on their claim against Mason for $256.79, and the execution was issued to the sheriff, who at the same time received a large number of other executions in favor of other creditors.

<p>Horse and Street Railroads—Injuries to Persons on Track.</p> <p>There was evidence that detendant’s ear was being driven at the rate of five or six miles an hour. Plaintiff testified that he was crossing the street, and could not see the car till he was in the middle of the track, and that he then jumped, but the car struck him. Defendant’s driver testified that he saw plaintiff when a block away; that he was crossing the street, and stopped when the car got to him; and that witness put on the brakes, and just touched him. Held sufficient evidence oí defendant’s negligence, and of absence of contributory negligence, to submit to the jui-y, and a judgment for plaintiff will not be disturbed.</p>

<p>Negligence—Contributory Negligence—Violation of Covenants.</p> <p>A covenant in a lease by which a tenant of a lower story agrees to shut off the water in the basement at night, precludes a recovery by him from a tenant of an upper floor, whose negligence has caused an overflow of water, on a night when the water was not shut off, according to the covenant.</p>

<p>Action by Lubetkin against the Henry Elias Brewing Company for rent.</p>

Action by the Newell Universal Mill Company against Jane B. Muxlow and others to recover the possession of certain chattels situated on premises owned by the defendant Muxlow, and which were occupied by a tenant of the latter. From an order denying a motion to tax costs in favor of defendant, the latter appeals.

On exceptions from circuit court, Hew York county. Action by Hannah Milhous against the Mutual Life Insurance Company of Hew York, on a policy on the life of plaintiff’s late husband for her benefit. Pending the action Elizabeth Johnson and F. A. Seborn severally intervened claiming the fund. The insurance company was permitted to pay the money into court and be discharged. There was a verdict for plaintiff, and defendants Johnson and Seborn excepted.

Action by Hugh McCulloch and others against Chauncey Vibbard, Emerson Foote, and Alexander P. Fiske, to recover money and for an injunction. The referee directed judgment dismissing the complaint, and also dismissing a counter-claim filed by defendants. The latter appeal. For opinion on plaintiffs’ appeal from a judgment dismissing the complaint on the merits, .'see 1 H. Y. Hupp. 610.

Petition by the rector, etc., of St. Andrew’s Church, to vacate an assessment. The appeal is from an order vacating the assessment.

At chambers. On motion for an injunction. The fire department of Hew York city brought an action against defendant to recover penalties for the violation of the fire and building laws. Pending this action, plaintiff applied for an injunction to restrain the defendant from continuing work on premises which plaintiff alleged were being erected in violation of the plans and specifications submitted to and approved by the fire department.

At chambers. Application to restrain the Cotton Exchange from interference with plaintiff as a member thereof. Plaintiff in November, 1887, being unable to answer to calls for margins, made during an abrupt rise in the market, had notice of failure posted. The liquidation showed that he owed members 817,765, and was owed 816,970, besides 81.500, the value of his seat.

Action by Elliot Martin against Zelobus J. Wood for damages for negligence. Judgment for plaintiff, and defendant moves for new trial.

After issue was joined in this action, and the cause was placed on the day-calendar, and several adjournments were had, the plaintiff obtained leave to discontinue, on the payment of the accrued costs. An order was entered taxing such costs, one of the items included being a trial fee of $30. Plaintiff moved for a retaxation, on the ground that such item was improper.

Action by one Wohltman against one Goff and Levi M. Bates, and the Electric Manufacturing Company and others. Plaintiff inadvertently allowed the time to amend to expire, believing that an extension had been obtained, and moves to be allowed to discontinue as to the last two defendants, and to serve an amended complaint on the other defendants. The amended complaint set forth a cause of action for damages for breach of contract to employ plaintiff.

<p>1. Wills—Construction—Description op Legatees—“Issue.”</p> <p>Testatrix, having eight children, directed that her estate be divided into as many parts, bequeathing one to each child, by separate clauses of the will, but using the same language in each case. One bequest was to her daughter S. for life, remainder to her children living at her decease, and to the issue of any deceased child, as tenants in common; such issue to take the share of his parent. If S. should die without leaving such child or issue, her share was bequeathed to the surviving children living at the death of S., ” “and the issue of any deceased child, * * * as tenants in common;” the issue of such deceased child or children to take “the share or shares only which the parent or respective parents of such issue, if living, would have taken at” S.’s death. S. died without issue, and one of the other children of testatrix was also dead, leaving grandchildren and great-grand children, but no children. Held, that the word “issue” meant “descendants, ” and was not restricted by the correlative term “ parent, ” and hence the grandchildren and great-grandchildren took the share their deceased ancestor would have taken'if living at the death of S.</p> <p><8. Descent and Distribution—Apportionment op Income.</p> <p>Though the will mentioned took effect before the passage of Laws N. 1875, c. 543, providing for the apportionment of the income of a fund between the personal representative of the life-tenant and the remainder-man, and is not affected thereby, the interest on the securities accruing before but collected after the death of S., should be apportioned between her personal representative and the remainder-man, as of the date of her death, without any statutory provision to that effect.</p>

On motion to set aside judgment. Action by Thomas F. Meton & Sons, Limited, against Isham Wagon Company. Judgment by default for plaintiff, which defendant moves to set aside.

Action by George Collins against William Adams. Defendant appeals from an order denying a motion to vacate a certificate to the effect that the title to real property did not come in question in the case.

Trial before a referee. The accounts of Michael Lenahan, surviving guardian of the infant children of William O’Brien, deceased, were filed, and referred to a referee, who filed the opinion given below, in which the facts fully appear.

At chambers. On motion to make answer more definite and certain. Action by Phoebe B. Simmons against Nellie F. Simmons, for the alienation of the affections of plaintiff’s husband, Abram G. Simmons. The complaint alleged the marriage; improper conduct of her husband and the deféndant; plaintiff’s frequent condonation of her husband’s misconduct; and his ultimate desertion of her for defendant; and his marriage with the latter after obtaining a pretended divorce.

Writ of certiorari to review the decision of Stephen B. French and others, police commissioners of New York city, dismissing John Gesser from the police force.

<p>Appeal from award of commissioners.</p> <p>Petition of the trustees of the New York & Brooklyn Bridge, to acquire the leasehold interest in real estate in the city of Brooklyn, of John Grünewald and Philip KafEenberger, impleaded, etc. Prom the award of the commissioners the owners appeal. The lease had two years to run. The tenants were carrying on a retail liquor, cigar, and billiard business. The tenants were allowed to prove that they had fitted up the saloon, but a schedule of the personal property on the premises was excluded, as were questions as to the value of such property “to take out and carry away, ” and to show that the existence of a liquor license affects the market value of a lease. The award was $200. The tenants appeal.</p>

Action by Robert W. Johnson against Ellen 0. Johnson, to obtain a divorce. An application was made to the special term, sitting at chambers, to confirm the report of the referee appointed to take testimony in the case, and who found that the material allegations of the complaint- were true. From the refusal to grant such application the plaintiff appeals.

Action by Benton McConnell against the Manhattan Construction Company and others. Plaintiff had leave to discontinue the action on the payment of costs and an extra allowance of $250, and from the order awarding such allowance the plaintiff appeals.

<p>Stake Decisis—Decision on Former Appeal.</p> <p>Where, on a former appeal, it was decided that the complaint was erroneously dismissed, the ruling of the trial court on the second trial, denying a motion to dismiss a similar complaint, will not be disturbed.</p>

° Action by Frank Keller and another against William H. Payne and another. A compulsory order of reference was made, and the defendants appeal.

<p>Appeal from special term, New York county.</p> <p>Action by Byron W. Cohen against Augustus R. Lane and others, brought for the foreclosure of a mortgage. A motion was made by James M. Hill, one of the defendants, to have the assignor of the mortgage, Andrew Dam, Jr., brought in as a party. From an order denying such motion Hill appeals.</p>

Action by James Thompson against William J. Best. On the affidavit of the plaintiff’s attorney, an order for the arrest of the defendant was issued, and from the refusal of a motion to vacate such order the defendant appeals.

Action by William 3?. Kennagh against Elizabeth McColgan, as executrix of John McColgan, deceased. An order was made overruling a demurrer to the answer of the defendant, and the plaintiff appeals.

Hermann Koehler brought an action against the Farmers’ & Drovers’ Bank of Somers, H. Y., and others, to secure the application of collaterals in the hands of the bank to the payment of plaintiff’s promissory note held by said bank. It appeared that others also claimed to be protected by the collaterals.

Action by S. Skiddy Cochran and Annie Lee against Jeannette M. Thurber, Levi P. Morton, and others, impleaded with the American Opera Company, Limited. There was an order of reference, from which defendants appeal.

Indictment of Abel M. Bontey for opening and conducting a pharmacy without license.

<p>Limitation of Actions—Running of Statute—Action against Executor.</p> <p>Where the petition, in a proceeding by a creditor of an estate to compel the executor to account, shows on its face that the right to institute such proceeding accrued more than six years before, the proceeding is barred by limitation, though the debt itself is not so barred.</p>

Petition by Max Wolf for an order directing the payment to him by Charles P. Crosby, an attorney at law, of certain moneys received by the latter. The application was referred, the report of the referee confirmed, and the order granted. Crosby appeals.

Case submitted on agreed statement. Alexander G. Black claims specific performance of a contract for the sale of realty to Francis W. Williams, defendant.

Action by Anna E. Churchman against Hannah P. Merritt and others. From an order for the examination of defendants before trial, and also from a decision refusing to vacate such order, the defendants appeal.

Action by Thomas M. King and others against Reon Barnes, John H. Post, and others, and the New York Transit & Terminal Company, to require the transfer to plaintiffs of certain shares of stock in defendant company, and other relief.

Action by John H. Thomas against Frank Coe. In January, 1884, the plaintiff entered into a written contract with one Tough, by which plaintiff agreed to deliver to Tough certain rakes and tedders, to be delivered on the cars at Springfield, Ohio, for which Tough was to give his notes whenever requested, the final and entire settlement to be made by September 1, 1884. Until payment the title to the goods was to remain in plaintiff, but Tough was to be liable to pay.

<p>Appeal—Review—Failure to Except.</p> <p>Where no motion is made in the trial court for new Mai on the facts, or to set aside the verdict for any cause, and no exception is taken to the charge, it will be assumed on appeal that the jury determined that no cause of action was established, and a verdict for defendant will not be disturbed.</p>

<p>1. Agistment—Lien—Owner of Animals—Mortgagor.</p> <p>Laws N. T. 1872, c. 498, § 1, as amended by Laws 1880, c. 145, provides that a person keeping any animals at livery or pasture, or boarding the same, for hire, under any agreement with the owner thereof, may detain such animals until all charges for their keeping shall have been paid. Held, that a mortgagor of certain horses, who, after having defaulted, in the performance of the conditions of the mortgage, but being still in the possession of the horses, entered into an agreement with the plaintiff for their keeping, was an “owner” of the horses, within the meaning of the statute.</p> <p>2. Same—Priority of Lien.</p> <p>Such statute having been in force when the mortgage in question was executed to defendant, and the required notice of the lien arising under such statute and agreement having been given to the mortgagee, such lien took precedence over the mortgage.</p> <p>8. Same—Enforcement of Lien.</p> <p>The fact that plaintiff had a mortgage interest in the horses by the terms of the same instrument under which defendant claimed as mortgagee, did not deprive plaintiff of the right to enforce his agister’s lien as against defendant, where the rights of the latter were superior to those of plaintiff under the mortgage.</p>

Action by James A. Dennison against Bice A. Brown, Andrew Booth, and Tiley Conover Morford. Plaintiff obtained an order to take the deposition of a witness, one Eva Brumfield, and after taking such deposition it was suppressed, and the order vacated, on defendants’ motion. Plaintiff appeals.

This is an appeal by the water commissioners of Amsterdam from an order of the special term confirming the report of the commissioners of assessment in the matter of the application of James 1ST. Clark and wife, petitioners, for the appointment of commissioners of assessment to appraise the damages sustained by them by reason of the diverting, taking, and appropriating the waters of the Rogers and McQueen creeks from lands of the petitioners, by the water commissioners of…

Action by the Canajoharie Hational Bank against John F. Diefendorf. Plaintiff appeals from a judgment for defendant, and from an order denying a motion for a new trial.

<p>Appeal from circuit court, Greene county.</p> <p>Action by Florence Campbell against the New York Central & Hudson Biver Bailroad Company for personal injuries. Plaintiff was nonsuited, and appeals.</p>

<p>1. Highways—Obstruction—Criminal Prosecution—Evidence.</p> <p>On indictment for public nuisance, in obstructing a highway by causing water to flow on it, defendant may show, by the highway commissioner, that he sought and acted under the advice and direction of that officer.</p> <p>2. Same—Acts of Agent—Husband and Wife.</p> <p>A husband cannot be convicted of nuisance by causing water to flow on a highway, where the farm on which he placed the obstructions causing the flow belonged to his wife and he was acting as her agent.</p> <p>8. Appeal—Objections not Raised below—Admission of Evidence.</p> <p>Evidence having been received without objection of the prosecuting attorney, it was error to strike it out after it was so received.</p> <p>O</p>

<p>Appeal from circuit court, Albany county.</p> <p>Action by John Newman and. others against Martin J. Blessing and others. Judgment was given for defendants, and plaintiffs appeal.</p>

Action by D. B. Sheil against Mary G-. Muir. Judgment was given for plaintiff, and defendant appeals. Code Civil Proc. 24.

<p>Appeal from circuit court, Yew York county.</p> <p>Action by William Benson, as surviving partner, etc., against Charles A. Gerlach. Judgment was given for defendant, and plaintiff appeals.</p>

Action by Arthur Furber against Alexander L. McCarthy and another. Judgment was given for defendants, and plaintiff appeals. Code Civil Proc. H. Y.§ 1022 provides that in trials without a jury the decision of the court must state separately the facts found and the conclusions of law.

Action by Thomas J. O’Brien, administrator, etc., of Peter O’Brien, de•ceased, against the Home Benefit Society of Hew York, on a certificate of membership issued to plaintiif’s intestate. The defense was that the insured had made false answers to questions in the application relative to his health.

<p>Partnership—Execution oe Note by One Partner—Bona Fide Holder.</p> <p>A note executed in the firm name by one member, without the knowledge or consent of the others, was delivered to an agent, with directions to get the proceeds from the payee. The agent obtained the proceeds, and appropriated them to his own use. Held, that one who took the note as collateral security for a loan to the payee, without notice of the diversion, or of the circumstances attending the execution of the note, could recover against the firm.</p>

Action by Charles A. Clegg against the New York Newspaper Union and others. The plaintiff appeals from an order denying a motion for a new trial.

<p>Appeal from special term, Greene county.</p>

Action by Francis A. Fales against Thomas B. Lawson, the Globe Knitting ■Company, and others, to foreclose a mortgage upon the Globe Knitting Mills. Judgment was entered against the Globe Knitting Company on a demurrer, and it appeals.

<p>Appeal—Review—Weight of Evidence.</p> <p>Defendant sold to plaintiff the exclusive right to sell, within a certain locality, all grades and kinds of a certain preparation manufactured by it. Afterwards plaintiff, discovering that a similar preparation was being sold within such locality by another corporation, wrote to defendant in regard thereto, and received answer that it did not know anything about such corporation. It appeared, however, that such answer was false; that defendant was manufacturing the preparation sold by such corporation, which was substantially the same as that sold by plaintiff; and that the corporation selling the competing article was managed by a brother of defendant’s president, under an assumed name. Meld, that a finding that defendant had broken its contract would be sustained.</p>

'Appeal from special term, Essex county. Action by Sarah C. Sheldon against Abraham W. Hoffnagle and others. The following opinion was rendered below by Tapp an, J., at the June term, 1886: “This is an action to recover dower; the trial was had before the court without a jury. The facts upon which the rights of the parties depend are stated in the findings of fact, upon which judgment is ordered, and are restated in this opinion.

<p>Appeal from circuit court, Columbia county.</p> <p>Ejectment by Alexander Chace against James M. Lamphere. There was a judgment for plaintiff, and defendant appeals.</p>

Action by Harriet S. Bumsey and others against the New York & New England Bailroad Company, for damages for obstructing plaintiffs’ dock and right of way. The plaintiffs own lands along the east shore of the Hudson river, which they obtained by devise from James Bumsey, their father.

Appeals from circuit court, Rensselaer county. Three actions by John B. Gale against the Troy & Boston Railroad Company. One of them was commenced in November, 1887, and the others in January, 1888. Defendant appeals.

John H. Dixon sued the New York Central & Hudson Biver Bailroad Company for damages for a horse killed on their track. The testimony and the plan introduced in evidence showed that there was an hotel across the tracks at Hyack, opposite the depot. There was at that time no fence between the track and the hotel.

John M. Pollock and A. V. Wiltsie, who had been engaged in the banking business, were indicted for larceny. Defendant asked the court to charge-that to convict the jury must believe that there was a criminal intent, which the court refused to do.

Action by William H. Strong'against Annie M. Moul to charge defendant, a married woman, with the value of certain meats delivered to tier, and consumed by her family. The plaintiff contended that such meats had been purchased by defendant on her own credit, while she- contended that she had acted merely as the agent of her husband in making the purchase. Henry H. Wolf testified that he had sold groceries to the defendant on her own credit.

<p>Appeal from special term, Kings county.</p> <p>Proceedings instituted on the application of John Mackay, a freeholder of the town of New Utrecht, for the opening of Marine avenue in said town. In a table of awards and assessments presented in the report of the opening commissioners, the numbers of the pieces of land required for the improvement or assessed for the benefit were given, and lot 167 was named in such table. On appeal by Richard Slater from an orjier confirming the report of the commissioners it was contended that lot 167a, which was not named in the table and intervenes between lot 167 and the street, should have been assessed.</p>

Condemnation proceedings by the city of Yonkers for the purpose of taking a right of way and easement for the construction, maintenance, and repairs of a sewer in North Broadway and Wells avenue from Ashburton avenue to the Hudson river, in the city of Yonkers. Appellant, W. F. Lawrence, is the owner of the fee in a portion of the street, through George Frazier, who owned the land under water in front of the street, and who dedicated it as filled in for purposes of a highway.

<p>> Appeal from circuit court, Queens county.</p> <p>Action by Jarvis S. Baker against William H. Secor for false imprisonment in causing plaintiff’s arrest on a body execution issued on a judgment obtained in an action by Charles G. S. Baker, the son of plaintiff, against plaintiff, in which action the defendant was the attorney for the son. On April 16,1886, plaintiff recovered a judgment against defendant for $5,373.77 and costs, which judgment was reversed on appeal. Pending the appeal plaintiff eomproniised his claim for damages against Charles G. S. Baker, the plaintiff in the execution, and received in consideration therefor a satisfaction of the judgment against him, on which the execution was issued, and assigned to said Charle's G. S. Baker the judgment appealed from against this defendant. A supplemental answer was filed setting up these facts, and on the trial the court charged the jury among other things as follows: “He (plaintiff) was illegally arrested and held three days in jail by the act of the defendant, and now the defendant must pay. He had not a right to arrest in this particular kind of action, although he might have had in another. He made a mistake. He has blundered. How, what shall this plaintiff recover? He is entitled to recover, of course, the loss of time; he is entitled to damages for the indignity of the arrest; but in this connection, as I have already said to you, you will bear in mind the difference between an arrest under civil and an arrest under criminal process. The indignity consists largely in the character of the charge made against him. To arrest a man, charging him with a crime involving gross moral turpitude, constitutes the grossest kind of indignity, and whether or not a person suffers anything in physical discomfort, that is but a trifle compared with the outrage upon him. This is true to a certain extent also in an arrest under civil process. But it is a very different kind of arrest from that on criminal proceedings, as I have- already stated. The plaintiff is entitled in this action to compensation for all results of this unlawful arrest, not only for loss of time and indignity, but if you find that as a result of this ‘unlawful arrest his health is permanently impaired, he would be entitled to a compensation for that. ”</p> <p>The following charges were asked by defendant, and refused: “(1) If the jury believe there has been a settlement with the plaintiff for the injury claimed in this action, the plaintiff cannot recover. (2) The son is a joint tort-feasor along with Mr. Secor, and a settlement with him of the damages in that case would operate as a release of Mr. Secor. (3) The plaintiff having received satisfaction of the judgment in Baker v. Baker, which satisfaction is ratified by Mr. Secor, in settlement of the claim and judgment of the plaintiff, the plaintiff cannot without a restoration of what was received by him maintain this action. (4) The defendant is not liable for any damages sustained by the plaintiff, by reason of his confinement in the jail or other place of confinement wherein were confined criminals and persons charged with crime. (7) The plaintiff is estopped from maintaining this action by reason of the former assignment of his claim, and the satisfaction of the judgment in Baker v. Baker. ”</p> <p>The Court. “I decline to charge your various propositions as to the effect of this satisfaction or assignment of judgment. I agree to a portion of the law, but I hold that it is not applicable here. I am of the opinion that in case of two joint tort-feasors there is no right of contribution; that, therefore, after having gone with judgment against either, the matter becomes properly capable of assignment to any person, and if it should happen to be assigned to one, or brought by one who is claimed to be a joint tort-feasor, that does not give to the assignment the character of a compromise or discharge of a tort-feasor, but is simply a purchase of a piece of property like the purchase of any other chose in action.” 8</p> <p>From judgment on a verdict for plaintiff for $1,000 and from an order denying a motion for a new trial, defendant appeals.</p>

Action by Julietta' Hyland, an infant, by James F. Hyland, her guardian ad litem, against the Yonkers Railroad Company for injuries received by being run over by a street car. The evidence showed that plaintiff was an infant about 2 years and 6 months old, living with her parents on Hepperhan avenue, in the city of Yonkers; that defendant was operating a surface street-railroad in that city, using a small car, with one man in charge.

Action by Bessie H. Blynn against Tredwell D. Smith and William G-. Beed, commenced before Thomas D. Smith, Esq., justice, in the town of Hempstead, to recover damages for the unlawful issue of an attachment in an action commenced by defendant Smith against plaintiff before Justice De Mott, in which action a bond was given by defendant Beed as surety, as required by Code Civil Proc. § 2909.

This action was brought by William Cole to obtain a construction of the will of Clarissa F. Prince, deceased, of whicli plaintiff and defendant Charles B. Frost are the executors. The other defendants are the heirs and next of kin of the deceased, except the defendant the Methodist Episcopal Hospital, in the city of Brooklyn, which claims a legacy.

Action by Tyler McNaier against the Manhattan Railway Company to recover damages for injury to plaintiff’s eye, caused, as alleged, by a hot cinder falling from an engine on defendant’s elevated railway in the city of New York.

Action by George Deller against the Staten Island Athletic Club, a corporation, to recover for meals furnished to the club. An agreement existed by which the plaintiff rented the club-house of the defendant, and was to keep and maintain a café and restaurant for the exclusive use of members of the club and their guests, to be open at such times as shall be designated by the house committee of the said club.

Action by John Danaher, as administrator, etc., of Thomas P. Danaher, deceased, against the city of Brooklyn, to recover damages for the death of the intestate, caused, as alleged, by drinking the impure water of a public well in said city. At the close of plaintiff’s evidence the court dismissed the complaint, and plaintiff appeals.

Plaintiff is a corporation organized under Laws 1873, c. 737, providing for such companies, for the purpose of supplying water to cities and villages.

Action by Orlando B. Hastings and another against the Giles Lithographic Company, for damages for slander of title. A motion to dismiss was made at the end of plaintiffs’ case, and was granted by Mr. Justice Beach.

<p>Appeal from special term, Hew Tork county.</p> <p>Eor statement of facts, see former report, 1 B. Y. Supp. 248.</p>

<p>Appeal from special term, Bew York county; Beach, Judge.</p> <p>Action by Bernard Stirn and Samuel Stirn against the Manhattan Elevated Bailway Company and the Metropolitan Elevated Bailway Company for damages for past injuries to premises owned by plaintiffs, in front of which defendants operated their elevated railroad, and also for an injunction of the operation of said road. There was a judgment for plaintiffs for $8,281.66 damages, and an injunction restraining the operation by the defendants of their railroad in front of the plaintiff’s premises, unless, within a period of 30 days, the defendants cause said easement appurtenant to said premises to be taken and paid for, or to be acquired. But, in case of a tender to the plaintiffs within 30 days from the date of the judgment of the sum of $13,500, the plaintiffs were required to deliver up to the defendants a conveyance and release of all future damages by reason of the acts of the defendants. Defendants appeal.</p>

Action by George H. Crowns against James W. Vail and William Landolt. Plaintiff obtained an attachment against the property of defendants, which was vacated on motion of a subsequently attaching creditor, and plaintiff appeals.

Action by Henry Wollreich against James Fettretch, to enforce a mechanics* lien.

On exceptions from circuit court, New York county. Action by Hermann Meyer against William C. Boyd, to recover payments made by plaintiff on a contract to convey a lot in the city of New York. The court directed a verdict for plaintiff, and ordered defendant’s exceptions to be heard at general term.

O’Brien against Stephen B. French and others, constituting the board of police of Hew York city. Peremptory writ granted, and defendants appeals.

. Appeal from special term, New York county. Action by Jean Baron and her husband against Isidore S. Korn, to restrain defendant from constructing certain buildings in the city of New York. The court dismissed the complaint, and plaintiffs appeal.

<p>1. Arrest—In Civil Actions—Affidavit on Information and Belief.</p> <p>An order of arrest cannot be granted on an affidavit on information and belief, where no reason why the affiant’s informant does not make an affidavit is given, and it is insufficient that the affiant states that he was unable to obtain the affidavit of such informant.</p> <p>2. Same—Cause of Action against Broker.</p> <p>An affidavit stating that plaintiff gave to defendant, who was a broker, certain sums as margin in the sale of oil; that defendant was requested to close oil, and promised so to do, and to settle his accounts, and return such margin, but failed to do so, and has converted the same,—does not show that anything is due plaintiff, and will not sustain an order of arrest.</p> <p>3. Same—Motion to Vacate before Arrest.</p> <p>Defendant mayjnove to vacate an order of arrest before service thereof, notwithstanding that Cc‘ )e Civil Proc. § 567, which limits the time therefor, provides for a motion by a defendant who has been arrested; especially as section 568 permits the motion to be founded on the papers on which the order was granted.</p>

Action on a note by John C. Milligan against Amelia Fles. Plaintiff obtained an order of short summons, and defendant showed that plaintiff had a stated place of business in New York city, and moved to vacate the order.

At chambers. On application for an order requiring defendant to appear and proceed with his examination. Action by Thomas Keihen against J. B. Shipherd. An order in supplementary proceedings requiring defendant to appear before a referee and be examined was made, and he appeared as therein required, but the referee was absent. The parties agreed to appear on another day, and did so,.but the referee was again absent.

Action by Emma Moore against Adam .Craig. From a judgment for plaintiff, and an order denying a motion for a new trial, the defendant appeals.

<p>On motion to deny probate of an alleged will of Edward D. Phyfe, deceased.</p>

The will of Haussman De Baum was offered by his wife for probate, and contested by his sons. Pending the contest the wife died, and the contest was carried on by her personal representative.

On certiorari. Proceedings by the people, on the relation of Joseph Keegan, to review the action of the fire commissioners of the city of Hew York in dismissing the relator from the fire department..

On certiora/ri. Proceedings by the people, on the relation of William J. O’Connor, to review the action of the fire commissioners of the city of New York in dismissing the relator from the fire department.

Action by the Prince Manufacturing Company against Prince’s Metallic Paint Company to prevent the use of a trade-mark. Prom an order adjudging defendant guilty of contempt, in violating a preliminary injunction, defendant appeals.

Por facts see ManufactuHng Co. v. Paint Co., ante, 348. Defendant appealed from an order adjudging defendant and Edward Barclay guilty of contempt in violating a preliminary injunction.

<p>Appeal from special term, Kings county.</p> <p>Action by Margaretta Remsen and. others against George S. Wheeler and the city of Brooklyn, to require the said city to pay over to plaintiffs certain money paid for redemption of land from an illegal assessment, and to enjoin it from paying it to defendant Wheeler. The plaintiffs sold the land in question to one Lynch, who found that it had been sold on an assessment for water and flagging, and purchased by Wheeler. Lynch paid the money to the registrar of arrears, to redeem the property, and deducted it from the purchase money paid to plaintiffs. At the special term judgment was rendered for defendants on the ground thatthe payment was voluntary, and that judgment was affirmed on appeal to the general term. An appeal was taken to the court of appeals, where the judgment of the general term was reversed, and the cause remanded. 12 N. E. Rep. 564. Upon the second trial judgment was rendered for plaintiffs, and defendants appeal.</p>

2 of the town of Newtown, relator, the amount of a special tax levied in that district for the purchase of a school-house site, returned uncollected. John Lake, who succeeded Lawrence as collector, was afterwards substituted as relator. After trial, a peremptory writ was issued, and defendant appeals. Argued before Barnard, P. J., and Dyioian and Pratt, JJ.

■ Application by Cornelia Johnson for a peremptory writ of mandamus to Elbert Hegeman, county treasurer of Queens county, to receive certain taxes, percentages, and interest, and thereupon to discharge the same. The application was granted, and defendant appeals.

<p>Appeal from Kings county court.</p> <p>Action by Charles B. Farley, as sheriff, etc., and Alice R. Symons against Josephine A. Gibbs, to recover on an account due from the defendant to William Symons, a debtor of the plaintiff Alice Symons. On the trial Mr. Pearsall, the book-keeper of William Symons, testified that goods sold to the defendant were first entered in an order-book and the entries were transcribed from that book to a ledger every afternoon. Judgment was given for plaintiff, and defendant appeals.</p>

<p>Qm Tam and Penal Actions—Failure to Post Schedule oe Ferriage—Complaint.</p> <p>Laws N. T. 1888, c. 260, § 1, require a schedule of rates of ferriage to be posted in a conspicuous and accessible position outside of and adjacent to each entrance to certain ferries, and in at least four accessible places, in plain view of the passengers upon each boat. By section 2 any person failing to comply with section 1 shall forfeit §50 for each and every day of failure, to be recovered by any person suing therefor. In an action to recovera large sum for violating the act many days, held, that the complaint should set forth each alleged violation as a separate cause of action, and should state whether the alleged violations were in failing to post the schedule at the entrance to the ferry, or in the four places on the boat.</p>

At chambers. On motion for further bill of particulars. Action by Stephen Wray against the New York Central & Hudson River Railroad Company for violations of Laws H. Y. 1888, c. 260, a copy of which appears in Wray v. Railroad Co., ante, 354.

At chambers. On motion to confirm referee’s report. ° In May, 1859, Abel S. Peters died, leaving his widow, Harriet Peters, a daughter, Harriet A. Marsh, and several grandchildren, the issue of his two deceased sons. By his will he devised one-third of his realty to his widow for life, remainder to his grandchildren who should survive her.

<p>Action by D. Wilcox and another against William H. Payne and others, to set aside an assignment for the benefit of creditors.</p>

On exceptions from circuit court, New York county. This is a motion made by Spencer 0. and Nathan 0. Pratt, two of the defendants, for a new trial upon exceptions taken at circuit, and there directed to be heard at the general term in the first instance.

Action by the Murray Hill Bank against Elizabeth Van Antwerp and Mary L. Trotter and Theodore Y. A. Trotter, to set aside a conveyance of land made by Mrs. Yan Antwerp to Mrs. Trotter as intended to defraud the creditors of the grantor. The special term dismissed the complaint, and plaintiff appeals.

Thomas W. Pearsall filed a petition for the revocation of letters testamentary upon the estate of Samuel Wood, deceased, issued to Edward T. Schenck by the surrogate of Sew York county, on the ground that the same were issued on false suggestion of fact.

Action by the East Biver National Bank and George Leask and Julian W. Bobbins, partners in banking under the firm name of George Leask & Co., against Union Adams, Charlotte Adams, and Justus O. Woods, to set aside as fraudulent a general assignment made by said Union Adams to his co-defendant Woods. Said assignment contained preferences of debts due Mrs. Adams, wife of the assignor, and the assignee.

<p>Case submitted on agreed statement.</p> <p>Action by H. Marvine Wood, as superintendent of the poor of Delaware county, against Charles E. Simmons and others, commissioners of public charities and corrections, and t£e mayor, aldermen, and commonalty of the city of Hew York.</p>

Action for foreclosure of a mortgage by Bronk Van Loan against Mary J. Squires, Richard Squires, her husband, and others. Pending the action, in 1878, Mrs. Squires, the owner of the equity of redemption, and her husband, died, and no revival was had against her sole heir, Mrs. M. E. McKinley, and, without her being made a party, a report of a referee was had and confirmed, a judgment of foreclosure and sale rendered, and the sale made.

Action by Thomas H. Story, executor, etc., of William H. Story, deceased, against the United Life & Accident Insurance Association, on a policy of insurance issued to plaintiff’s testator. At the trial a nonsuit was ordered, and plaintiff appeals.

<p>Witness—Examination before Trial—Privilege—Corporations.</p> <p>Under Code Civil Froc. N. Y. § 837, providing that a witness shall not be required to give an answer which, shall tend to expose him to a penalty or forfeiture, the president of a bank cannot be examined before trial in an action to subject the bank to a penalty for the taking of usurious interest; the sole object of such examination being to obtain evidence as to the taking of usury.</p>

<p>Appeal from circuit court, Montgomery county.</p> <p>Action by Adelbert C. Richmond against John F. Diefendorf. Judgment was given for defendant, and plaintiff appeals.</p>

The plaintiff, Amasa R. Moore, was teller in the Manufacturers’ Yational Bank, one of the defendants herein, at the same time one Charles M. Wellington was cashier. The hitter misappropriated the bank’s funds, and an action was brought upon his bond by the bank.

Action by Thomas Ryan, as administrator of John S. Ryan, against the Long Island Railroad Company, to recover damages for the death of the decedent, caused by being knocked from the top of a freight car while passing under a low bridge. Laws 2L Y. 1884, c. 439, § 2, provides that warning signals shall be maintained at every low bridge which crosses a railroad track, if such signals are necessary for the protection of employes on top of cars.

Action by George McGibbon against Whittemore Baxter, for injuries to plaintiff’s real estate, alleged to result from defendant’s negligence in allowing fire to escape from his land to that of plaintiff. Judgment for defendant, and plaintiff appeals.

Application by Michael Coughlin for a mandamus to Patrick J. Gleason, mayor of Long Island City, to sign a warrant for payment for work done under contract with the city. Mandamus granted, and defendant appeals. Argued before Barnard, P. J., and Pratt, J.

<p>Appeal from circuit court, Kings county. «</p> <p>Action by August W. Pallez against the Brooklyn City Bail road Company for damages for personal injuries. Verdict and judgment for plaintiff for $1,000. Defendant appeals.</p>

<p>Appeal from trial term.</p>

<p>Libel and Slander—What Actionable—Charge of Swindling.</p> <p>For one competitor for a prize in a shooting contest to say of another, who claimed to have scored a certain number of points, that he did not score so many, that he was “bluffing, ” that he had “tried a bluff game before, ” and was a swindler, and that he had swindled, is not actionable, without special damages, as no crime or attempt to commit crime is charged thereby.2</p>

Action by William P. Durando against the New York & Norwalk Steamboat Company to recover for meat furnished by him and delivered on board of the steam-boats, City of Albany and City of Norwalk, belonging to the defendant, (a corporation,) and plying between the city of New York and Nor-walk, Conn. The former was a passenger and the latter a freight boat.

On demurrer to complaint. Joseph L. Spofford and Paul N. Spofford, plaintiffs, are the surviving executors and trustees of Paul Spofford, deceased, who, prior to 1867, owned in fee-simple land formerly in West Farms, and now in the city of New York.

Actidn by Edward M. Johnson against the American Writing-Machine Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, the defendant appeals.

Action by Catherine Victory against Bridget Horan, to recover for injuries received by falling down a stairway in defendant’s house. Plaintiff was a tenant of the defendant, and, while descending the stairway, her dress caught on a nail protruding from one of the steps, and she was thrown to the bottom. The defendant’s agent had notice of the condition of the stairway. Judgment was given for plaintiff in the sum of $1,500, and costs, and defendant appeals.

<p>1. Executors—Settlements and Accounting—Guardianship Accounts.</p> <p>An executor, upon settlement of bis accounts as such, will not be required to account for rents of real estate received by him in his capacity as testamentary guardian of a devisee of his testator.</p> <p>2. Same—Items Allowable.</p> <p>An executor, who necessarily incurs expense in searching the title of land belonging to his testator’s estate for the purpose of paying off and obtaining an assignment of a mortgage thereon, should be allowed the sum so paid in the settlement of his accounts.</p>

Action by Jacob R. Shipherd against Aaron B. Cohu and another. On appeal the defendants objected to the appeal-book served, and obtained an order directing other printing. From such order the plaintiff appeals.

Action by John Y. McKane against John P. Adams, as president of the democratic general committee of Kings county, to determine plaintiff's right to sit as a member of such committee. A demurrer to the complaint was sustained, and plaintiff appeals.

Action by Adolph Tode and Ferdinand Wolff against Lena Gross and others. Judgment was given for plaintiffs in the sum of $5,000, and defendants appeal.

Action by Peter Bruner and others against Michael Lewis and others as highway commissioners of the town of Westchester. Judgment was rendered dismissing the complaint, and plaintiffs appeal.

On exceptions from circuit court, Kings county. Action to recover real property in the city of Brooklyn, brought by William A. White against George S. Wheeler and others. Verdict was directed for plaintiff, and defendants’ exceptions ordered to be heard at general term. Plaintiff claims title under tax deeds based on Laws iST. Y. 1883, c. 114, relating to arrearage tax sales in the city of Brooklyn. For an abstract of that act, see Terrill v. Wheeler, 2 N. Y. Supp. 86.

Action by Joseph Stern, Mark H. Eisner, and Julius H. Eisner, executors, etc., of Elizabeth Eisner, deceased, against Samuel L. Eisner, for money loaned. By direction of the court, a verdict was returned for plaintiffs for $1,268.23, and an allowance and costs, and defendant appeals. The facts are stated in the opinion of the court and the dissenting opinion of Bartlett, J.

<p>Appeal from surrogate’s court, Hew York county.</p> <p>Charles J. Phalen presented his petition for the revocation of the probate of the will of James Phalen, deceased, and the executor, Edgar Lockwood, moved to dismiss the petition for the want of a necessary party, Mrs. Phalen, wife of the petitioner, and the petitioner moved to amend by making her a party. The surrogate allowed the amendment, though more than a year had elapsed since the will was probated, and Catherine S. Phalen and other legatees appeal.</p>

Appeal -from court of sessions, Yew York county. Indictment against John O’Yeill for the robbery of George Phillips. Verdict of guilty, and judgment thereon, and defendant appeals.

<p>1. Trusts—Liability of Trustees—Failure to Invest Fund.</p> <p>At the time a trustee was appointed a sum of money was on deposit in bank to the credit of the estate. The trustee allowed the fund to remain on deposit, as an investment, for about two years, when the bank failed. There were no recurring demands on the estate which required the trustee to keep the money on deposit. Held, that the trustee was liable for the loss, especially where the order appointing him required that “ said fund shall be securely invested by ” the trustee.</p> <p>A Same—Unavoidable Losses.</p> <p>The trustee, who was appointed in place of the executors of a will, is not exonerated by a provision in the will under which he was appointed, declaring that the executors shall not be liable fan unavoidable losses caused by insolvency of banks, since the loss in question resulted from his failure to obey the order appointing him trustee.</p>

Action by Elia M. Haynes, a daughter and heir of Elijah T. Sherman, deceased, against Catherine M. Sherman, widow and executrix, etc., of said Elijah T. Sherman, and others, to declare void a devise by said testator of certain lands, and for a partition or sale thereof. Judgment for plaintiff, and ■defendants appeal.

<p>Motion to vacate an injunction restraining the use as a stable of a building erected by defendant on property adjoining that of plaintiffs.</p>

This is an appeal from an order entered October 25, 1888, affirming the report of Hooper C. Van Vorst, referee, to whom were referred the questions at issue herein, and dismissing the writ of certiorari issued to review the action of the commissioners of taxes and assessments of the city of Hew York in respect to the valuation, for purposes of taxation of the capital stock of the relator for the year 1887.

Action by Augustus 0. Brown, administrator, etc., of Mary R. Burnside, deceased, against the Farmers’ Loan & Trust Company, to recover the value of certain bonds. There was a judgment for plaintiff, and defendant appeals.

Habeas corpus at the relation of Margaret Heery against the Sisters of St. Dominick, a corporation, for the release of James Maloney, an infant alleged to be unlawfully detained. The return showed that the defendant detained the child under commitment as a vagrant by a police justice.

<p>Appeal from special term, Westchester county.</p> <p>Action by Theodore Clarkson against Prances G. Dunning, to set aside conveyance to defendant by William B. Lang, as fraudulent as to creditors. Defendant appeals.</p>

1 This is an. appeal by plaintiff from an order made in Clarkson y. Dunning, ante, 430 requiring plaintiff’s attorney to redeposit with the United States Trust Company the sum of $12,239, which he had withdrawn from that company, and which was the principal and interest of a deposit made pursuant to the stipulation set out in the opinion.

<p>1. Corporations—Actions by—Pleading Corporate Existence.</p> <p>A complaint alleging that “the plaintiff is, and at the times hereinafter stated was, a banking association created by and organized under the laws of the state of New York, with its banking house located, and principally transacting business, at the city of New York, ” sufficiently shows that plaintiff is a domestic corporation, and therefore complies with Code Civil Proc. N. Y. § 1775, requiring a complaint by a corporation to state whether it is a domestic or foreign corporation, etc.</p> <p>2. Same—Banking Associations—Suits in Name op President.</p> <p>The words “may he brought, ” etc., in 2 Rev. St. N. Y. (7th Ed.) p. 1405, § 21, providing that “all suits, actions, or proceedings brought or prosecuted by or on behalf of” banking associations “may be brought or prosecuted in the name of the president, ” are permissive merely, and do not prevent the association from suing in its corporate name.</p>

<p>1. Party-WallsYmbtual Covenants.</p> <p>Plaintiff and defendant entered into an agreement by which the former was to be allowed to make use of the lot of the defendant for the purpose of erecting a party-wall, and the latter, or her legal representatives, was to have the use of the party-wall on paying one-half the value thereof. It was also provided that the agreement should bind plaintiff in case the defendant should first build. Held that, as the contract was under seal, the mutual covenants furnished ample consideration for the defendant’s promise, however small her interest in the land might be.</p> <p>2. Same—Use by Grantee.</p> <p>The defendant having conveyed the land, the use of the wall by the grantee was a use by the defendant within the meaning of the covenant.</p> <p>8. Same—Condition Precedent to Liability.</p> <p>Where such agreement provided that in case the parties were unable to agree as to the value of the wall, the matter would be submitted to arbitration, but the defendant declined to arbitrate, the liability of the defendant became fixed from the time of such refusal.</p>

<p>Practice in Civil Cases—Effect of Interpleader—Dismissal.</p> <p>Where, by an order of interpleader, two actions have been merged into one, it is too late to discontinue one of the original actions.</p>

Action by George W. Videtto against Francis D. Dudley. From an order vacating an order for the examination of the defendant before trial the plaintiff appeals.

Action by William Wallace and others againstFrederiek D. Blake and others. From an order directing that a commission issue to take testimony the plaintiffs appeal.

<p>Horse and Street Railroads—Liability for Negligence.</p> <p>Where one of defendant’s servants, while driving a car belonging to defendant, knocked down and injured a child, but there was no evidence that at any time was the child at a place where the driver could have seen him, and then have managed the horses so as to have avoided the accident, the defendant was not liable for the injury.</p>

Action by Sarah B. Odell, by Henry 0. Odell, her guardian, against Solomon B. Solomon and another, for personal injuries. From a judgment entered on the verdict for defendants, and from an order denying a motion for a new trial, made upon the minutes, plaintiff appeals. ®

Action by Emily Stewart against the Metropolitan Elevated Bailway Company to recover damages (loss of rental value) for an alleged obstruction to land of which plaintiff claimed to own the fee, the same being a part of Fifty-Third street in the city of New York. Judgment for plaintiff, and defendant appeals.

Action by Milton J. Roberts against Charles C. Lloyd to recover for medical services rendered defendant’s child. The first cause of action was for $350, one-half of the sum promised by defendant for one year’s treatment of the child. The second was for' $40, the cost of the construction of a mechanical contrivance to be used in such treatment. The court submitted no question to the jury save on the second cause of action, and that was found for defendant.

Action by Jasper P. Boe against the mayor, aldermen, and commonalty of the city of Yew York to recover for injuries to plaintiff’s horse, caused by the ■alleged negligence of defendants in the care of its streets. Judgment for plaintiff, and defendant appeals.

<p>Action to recover money unlawfully paid on street assessment.</p>

Action by George Pooley against the city of Buffalo to annul an illegal levy of an assessment for paving a street, and to recover back the amount paid under such assessment. Judgment for plaintiff, and defendant appeals.

On exceptions to trustee’s account. The accounts of William Pritchard, surviving trustee under the will of William D. Thompson, deceased, were before the surrogate for adjudication, and were referred to a referee. All parties excepted to the referee’s report.

<p>Wills—Probate.</p> <p>A will had three subscribing witnesses. The signature of one was illegible. One witness identified her signature, but forgot the circumstances attending its execution. The third witness identified her signature, and testified that she saw testatrix sign the will; that the three subscribing witnesses were present; that the attestation clause was read to them before they signed; that they were told it was a will, and asked to sign as witnesses in the presence of testatrix. The signature of testatrix was positively identified. Held, that the will was sufficiently proven, under Code Civil Proc. N. Y. § 2620, providing that the will may, under such circumstances, be established by proof of the handwriting of testatrix and the^ subscribing witnesses, and such circumstances as would prove the will on the trial of an action.</p>

<p>1. Will—Revocation.</p> <p>A will offered for probate had been drafted by one S., and B. was one of the subscribing witnesses. Contestants of the will sought to show the execution of a subsequent will; and two witnesses, one of whom was interested in defeating the contested will, testified that the testator had read or stated to them the provisions of a will which varied somewhat from the terms of the contested will. They also testified that the alleged subsequent will was written by S., and that one of the subscribing witnesses was B. Both S. and B. testified that they had been concerned with but one will. B. was a disinterested witness. Held, that the execution of a subsequent will was not shown.</p> <p>2. Same.</p> <p>The provisi ons of a will cannot he defeated by subsequent oral declarations of the testator that he did not understand their effect. •</p>

<p>1. Wills—Execution.</p> <p>The lawyer who prepared decedent’s will testified that he drew the will according to directions, read it to decedent, and asked him if it was right, and decedent said that it was; that a third person was then called in as a witness, and the lawyer told decedent to sign the will in their presence, which he did; that the decedent was then asked if he signed, sealed, published, and declared the paper to be his will, and requested them to sign their names as witnesses, and he said, “I do; ” that the witnesses then signed their names and residences; and that he then handed the will to decedent's wife. The other witness contradicted some of this testimony, but she manifested much hostility to the proponent, and admitted that she did not at the time regard the matter as of any importance. Meld, that the will was properly executed.</p> <p>2. Same—Undue Influence.</p> <p>On the issue of whether the execution of the proposed will was decedent’s free and voluntary act, the lawyer testified that he was called'by the family physician to go to decedent’s house and draw his will. That when he asked decedent how he wanted it drawn, and whom'the property was to go to, decedent’s wife replied: “Everything is to go to me,—every dollar. The money was earned through me as much as through him. Everything is to go to me. ” That he asked the decedent if that was so, and he said, “Tes. ” That he drew the will according to those instructions and read it to the decedent, who responded that it was right. There was evidence that decedent and his wife often quarreled, and that he had, on several occasions, in fits of anger, threatened to leave her as little of his property as possible, (they had no issue;) but it also appeared that she had for years been very active and helpful in his business, and that when his next of kin applied to him for aid he had replied that they ought to work for their money as he and his wife had done, and that he should never do any more for them. There was evidence that immediately after the execution of the will he expressed himself as dissatisfied with it, but he lived several weeks thereafter, retaining his faculties, and made no effort to have it changed. Meld, that the evidence was insufficient to impeach the will.</p>

<p>Estates by Entirety—Personal Property—Survivorship.</p> <p>In New York, where a bond and mortgagg are executed to a husband and wife jointly, they become the property of the wife on the death of the husband, by right of survivorship. The common-law rule is in force in respect to personal property as well as realty.</p>

<p>Reference—Vacation of Report.</p> <p>Where a referee’s report does not return the testimony, hut consists only of notes thereof, the order of reference will he vacated, and another referee appointed.</p>

<p>Descent and Distribution—Legacy Tax.</p> <p>Where property held in trust, under a will, for a life in being, is to be divided, on the death of the cestui que trust, among such of certain heirs as survive the life-tenant, their interests in the property passing under the will on the death of the testator are so indefinite and contingent that the property should not be appraised and reported for a legacy tax until the contingency happens, and the interests and number of the collateral heirs can be exactly determined.</p>

<p>Wills—Evidence of Execution.</p> <p>Where a testator declares to two subscribing witness that a paper to which his . name was signed is his will, and then asks them to sign as witnesses, he sufficiently acknowledges his signature.</p>

On exceptions to referee’s report. The statutes under which the exemption from taxation was claimed are 1 Rev. St. marg. p. 389, § 5, and page 419, § 3, Laws 1851, e. 176, which provide, in substance, that the agents of capitalists shall not be liable to taxation for any moneys transmitted to them for investment, and also that any bond, mortgage note, contract, account, or other demand, belonging to a nonresident, sent or deposited in this state for collection, shall also be…

<p>1. Wills—Testamentaby Capacity.</p> <p>The testimony of the three subscribing witnesses to a will, showing testamentary capacity, will prevail over the opinion of an expert, where to give credence to the latter would be to impute perjury to the former.</p> <p>0. Same—Undue Influence.</p> <p>Where testator received all his property from his wife without consideration, and several years before his death made a will giving it all to her for life, and expressed an intention at other times to give her his property, and there is no direct evidence of the exercise of undue influence over testator, undue influence will not be inferred from the fact that the will gives the property to the wife to the exclusion of testator’s relatives.1</p>

<p>1. Guardian and Ward—Accounting—Claim for Board.</p> <p>Where a ward, a girl, is employed by her guardian, who is her mother, during the guardianship, in doing coarse farm labor, and the guardian has misappropriated the ward’s personalty to an amount nearly equal to the guardian’s claim for board, such claim will be disallowed.</p> <p>2. Same—Clothing.</p> <p>Where the guardian is a parent of the ward, a claim for §284, alleged to have been expended for clothing during the 12 years of guardianship, §200 of which are charged in a gross sum, no account of the items or of their cost having been kept, will not be allowed.</p> <p>8. Same—Household Furniture.</p> <p>Such guardian cannot be allowed for articles of household furniture purchased by her, and used in her own house by her and her ward in common, the latter not being, or about to be, married.</p> <p>4. Same.</p> <p>The entire account of such guardian also should be disallowed, and commissions refused, where she purchased land of her ward, giving a mortgage for the price, §4,386, and has had the use of the land, and paid no interest, for 17 years, and has converted personalty of the value of §1,131, and where the ward’s estate, if properly cared for, would have amounted to at least §15,000.</p>

Action by Josephine G. Valentine against the Broadway & Seventh Avenue Bailroad Company, for personal injuries. From a verdict and judgment for plaintiff, defendant appeals.

<p>Appeal from trial court.</p> <p>Action by Harriet L. Bailey against Robert J3. Westcott. Verdict and judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from special term, Kings county.</p>

<p>Appeal from Dutchess county court.</p> <p>Action by John Justus against Budolph Baeckler. Defendant appeals.</p>

<p>Motion for reargument.</p>

In the matter of the application of the Niagara Falls & Whirlpool Railway Company, to acquire title to land owned by Jane S. Townsend. On motion to set aside order appropriating the lands.

<p>Appeal from special term, New York county.</p> <p>Action by Charles Donner against Clinton Ogilvie and Ida M. Ingersoll, individually, and as executrix of William H. Ogilvie, deceased. Defendants appeal.</p>

<p>Specific Performance—Contract—Fraud.</p> <p>Plaintiff contracted with defendant, a widow in feeble health, residing in Massachusetts, through her son-in-law, to exchange two houses belonging to him for income-paying real estate. A real-estate broker had informed the son-in law that one of the houses was well rented, and had procured S., a pretended purchaser for one of the houses. The broker had gone to the son-in-law in relation to the sale to S. at the suggestion of the plaintiff. The houses were not rented, but heavily mortgaged. Held, that a specific performance of the contract would not be enforced.</p>

<p>Appeal from special term, New York county.</p>

T. D. Watson sued J. Blossom as maker, and L. Collamer as indorser, of a promissory note for $510, payable to J. M. Orcutt, or bearer. The note was given for 34 bushels of Bohemian oats, at the price of $15 per bushel, and a written instrument, of which the following is a copy: “Ho—. Capital Stock, $100,000. Home Office, Ypsilanti, Mich.

Action by Samuel P. Train and Edward S. Smith, doing business under the firm name of Train, Smith & Co., against John L. Taylor, impleaded with Hugh F. Kendall and Charles B. Kendall. Judgment was given for plaintiffs, and the defendant Taylor appeals.

Action by William L. Stow against Howell Osborne, Edwin S. Chapin, and John W. Sterling, to enforce two judgments against defendant Osborne upon the income of a fund in the hands of his co-defendants, as trustees. Plaintiff moved for an injunction pendente lite to restrain the defendant trustees from paying over any of said money to said Osborne, and from an order denying such injunction plaintiff appeals.

<p>1. Gambling Contracts—Evidence.</p> <p>In an action to recover for commissions earned and losses sustained by plaintiff under a contract with defendant for the sale of a large amount of wheat, to be delivered at a future time, where the defense is set up that such contract was intended as a cover for a gambling transaction, the testimony of the defendant is admissible that he did not intend to purchase any wheat.</p> <p>3. Same.</p> <p>The intention of the plaintiff with regard to the delivery of the grain contracted for may be shown by the course of dealing between the plaintiff and his agent in whose name the contract was made.</p>

This was an action brought by George A. Sanford, as assignee of William H. Sanford, against Georgianna F. Burney and Morton Redmond, executor of the estate of William J. Barney, deceased, praying for a partnership accounting under an agreement between William H. Sanford and William J. Barney. There was a judgment directing the receiver to pay plaintiff the sum of $6,576.04 out of the proceeds of sale of the land described in the complaint. Defendants appeal.

Action by the Mutual Life Insurance Company against Thomas H. Anthony, impleaded with Henry 0. Anthony and the National Bank & Loan Company. Thomas H. Anthony appeals from an order confirming a report in favor of the National Bank & Loan Company.

<p>Appeal from county court.</p>

<p>L Insurance—Life Policy—Violent and Accidental Death.</p> <p>Plaintiff sued defendant on a policy of insurance issued to his son, whereby defendant promised to pay plaintiff §1,500 on proof that the son had sustained “bodily injuries through external, violent, and accidental means, ” within the terms of the policy, causing death. The son was insured as a farmer, and was drowned by the capsizing of a boat while rescuing the crew of a shipwrecked schooner. His body was recovered with a bruise over the left temple; how caused there was no positive proof. Held, that his death was caused through means within the terms of the policy.</p> <p>2. Same—Application—Occupation.</p> <p>Though the son was insured as a farmer, the fact that he was drowned while saving persons from a wreck does not exclude plaintiff from the benefit of the policy because of the provision that the benefit should not extend to death caused by “voluntary exposure to any unnecessary danger, ” or while employed in “wrecking, ” unless such occupation is “stated in the application, and permitted. ”</p> <p>8. Same—Insurable Interest.</p> <p>An insurance by a son on his own life for the benefit of his father is vajid.</p>

Action commenced January 8, 1887, by Maurice Plett against Fowler Willson, Jr., and the administratrix of Fowler Willson, Sr., deceased, to foreclose an unsealed contract for the sale of land by plaintiff to the Willsons in 1870. The land was to be paid for in annual installments, with interest, the last payment falling due April 1, 1880, on which date plaintiff was to execute a warranty deed.

Action by Porter B. Hatch, sole commissioner of highways in the town of Fenton, Broome county, against the Syracuse, Binghamton & New York Bailroad Company, to compel the removal of a bridge constructed across a highway. From a decree for plaintiff, defendant appeals.

Action by the Davis Sewing-Machine Company of Watertown, H. Y., against William J. Best, as receiver of the national Trust Company of the City of Hew York, to recover possession of certain coupon bonds. The case was tried by the court, a jury having been waived. The court found that defendant wrongfully refused to deliver the bonds to plaintiff, and to its agent sent to demand possession of the same before the action was brought.

Action by W. H. Gardénier against Edward Furcy and wife, to subject certain land to the lien of a judgment confessed by the feme defendant in favor of plaintiff. The confession was for legal services rendered' and to be rendered in a divorce suit then pending between Furey and wife, and recited that “the claims herein acknowledged are for my benefit, and are to be a lien and charge upon my separate estate.

This was an action by Frank E. Maxim against the town of Champion, to recover damages for personal injuries sustained by plaintiff by falling from an embankment or bridge across a ravine in defendant town; said embankment being a part of the public highway. The evidence showed that plaintiff was mot familiar with the locality, and that the accident occurred about 9 o’clock .at night. He testified: “It was very dark and rainy.

<p>1. Insurance—Conditions of Policy—Suicide.</p> <p>Where one insures Ms life with intent to commit suicide, and so provide for his family and creditors, and, while sane, carries out that intent, the policy is void though it does not stipulate for its avoidance by the insured’s suicide.</p> <p>8. Same—Beneficiaries—Appointment of Creditor.</p> <p>Under Laws N. Y. 1883, c. 175, § IS, giving the insured the right, with the consent of the company, to change his beneficiary from time to time without the consent of the beneficiary, when a creditor has been substituted as beneficiary in place of the insured, he acquires no separate standing, as assignee or otherwise, so as to exclude subsequent declarations of the insured. Until the latter’s death, the ownership of the policy is in Mm.</p>

■ Appeal from special term, Kings county. Application by the people on the relation of William Wardrop for a writ of mandamus to compel John C. Adams, commissioner of the department of city works in the city of Brooklyn, to reinstate the relator in the position of lamp clerk in such department, such position having been abolished by the defendant. The writ was denied, and the relator appeals.

Action by Stephen Johnson against Joshua Y. Yan 27ame to recover art alleged balance due from the defendant on account of oysters sold to him. On the trial the. defendant offered to show by an expert accountant that certain entries in plaintiff’s book of account were written over entries that were there before, and that other entries were made out of their proper order. From a judgment for plaintiff, defendant appeals.

<p>On reargument. 3 N. Y. Supp. 307. 1 Rev. St. N. Y. p. 744, § 4, (3 Rev. St. 7th Ed. p. 2201, § 4,) provides that “the interest of any person holding a contract for the purchase of lands shall not be bound by the docketing of any judgment or decree, nor be sold by execution upon any such judgment or decree. ”</p>

'Appeal from circuit court, Rockland county. Action by George E. Nash against the New York Central & Hudson River Railroad Company for injuries sustained by being struck by a train of defendant, at a private farm crossing. Judgment for plaintiff, defendant’s motion for new trial denied, and it appeals.

<p>Appeal from circuit court, Kings county.</p> <p>Action by Annie Leichman against William A. Jughardt. Judgment was given for plaintiff, and defendant appeals.</p>

<p>1. Highways—Obstruction by Telegraph Company—Public Easement.</p> <p>Defendant, a telegraph company authorized by legislature to use a highway in the operation of its lines, sank a stone near the traveled part thereof, to which it attached a wire, which was fastened above ground to a telegraph pole near the fence, for the purpose of holding the pole upright. The road was narrow, the wire was not easily seen, the view of it was obstructed by the foliage of trees, and a bank on the opposite side of the road forced the travel near the sunken stone. SeM, that defendant’s right to use the road was subject to the public user, and that in an action for injuries sustained by a traveler by the wire catching on his vehicle the jury were justified in finding defendant guilty of negligence.</p> <p>3. Same—Contributory Negligence.</p> <p>Plaintiff, having turned out of the road to pass another traveler only so far as was necessary to pass, was not negligent in failing to see the wire.</p> <p>8. Trial—Refusal to Charge—Questions not Supported by Evidence.</p> <p>Where the charge on the general question of negligence is plain and accurate, it is not error to refuse to charge specifically on propositions not supported by evidence, or on the effect which certain findings would have on the general question of negligence.</p>

<p>Municipal Corporations—Defective Streets.</p> <p>Plaintiff was injured by a wheel of his carriage sinking into a gutter as he sharply turned a corner. He offered testimony that the gutter was made of cobblestones, and that some of the stones had been removed, leaving a hole. Defendant city showed, by abundant testimony of such character as scarcely to admit of doubt, that the gutter was carved out of slate rock, which was a natural deposit; that it was properly formed, was in good condition, and in every respect suitable. Held, that judgment for plaintiff would be reversed.</p>

Plaintiffs Charles Mayer and William Haueisen sued Philip Heidelbach and Isaac Ickelheimer on certain drafts drawn in favor of plaintiffs on the Deutsche Bank of Berlin. Plaintiffs were merchants at Indianapolistiand defendants bankers at New York city. Plaintiffs ordered said drafts though Harrison’s Bank, at Indianapolis, their bank of deposit.

<p>Horse and Street Railroads—Liability for Negligence.</p> <p>Where plaintiff was injured by stepping in a hole between the rails of a horse-car track, owned and controlled by the defendant, but it was not shown that the construction or maintenance of the tracks was defective, nor that the defendant was within any statute making it the duty of street railroads to keep the space between the tracks in repair, the complaint was properly dismissed.</p>

<p>1. Costs—Title to Real Estate—Certificate of Trial Justice.</p> <p>The certificate of the trial justice that the title to real estate came in question on the trial is conclusive upon the taxing officer, and he therefore commits no error in entering judgment so as to include costs to’the plaintiff.</p> <p>2. Same.</p> <p>Where no order granting the motion for a certificate has been formally made or entered, defendant’s remedy, if aggrieved, is by motion to set the certificate aside, and not by appeal.</p>

<p>Appeal from jury term.</p>

<p>Application by Edward Matthews for a writ of mandamus to Charles H. Woodman and others, commissioners of excise.</p>

<p>Abatement and Revival—Delay in Moving to Revive.</p> <p>The plaintiff in an equitable action died in 1877, and nothing was done in the case until 1888, when her successors in interest moved to have the action revived and continued. The application was denied on the ground of loches, under Code Civil Proc. If. Y. § 757. Meld that, as the two decisions of the court of appeals on the proper construction of this statute are in direct conflict, and as the later decision makes no reference to the first, the order would be affirmed, so as to bring the question again before the court of appeals.</p>

<p>1. Societies—Removal oe Oeeicebs.</p> <p>The constitution of an unincorporated society provided that all charges against members must .be in writing, specifying the article violated, and signed by the accusers; that the charge thus made should be referred to the board of trustees; that the accused should have the right of challenge; that the accusers, accused, and witnesses should be summoned to attend; that the decision of the hoard should be reported to the lodge at the next regular meeting, and, if sustained, a penalty should be imposed, etc. A resolution removing defendant from the office of president was as follows: “As several of the officers, among others President Rubing, although requested to appear, did not make an appearance, and as there are several charges against the president, to replace the officers by other officers, and to declare them removed from office, therefore proceeded to elect officers, and elected as president Strempel; vice-president, Behnke. ” Defendant was not present at that meeting, and there was no evidence that he received timely written notice to attend, or that charges against him would be then and there presented and acted upon, nor did it appear that any specific charges against him had ever been formulated. Held, that the resolution was unconstitutional and void.</p> <p>2. Same—Equitable Relief.</p> <p>Plaintiff, the newly-elected president, having appealed to the tribunal provided by the association to determine his right as against defendant, he cannot, pending its decision or in disregard thereof, seek relief from a court of equity.</p>

John P. O’Connor brought this action against the National Ice Company of New York for injuries alleged to have been sustained by the alleged negligence of defendant’s servant. In November, 1884, plaintiff, who was a milk dealer, was driving his wagon in the city, when it was struck from behind by an ice-wagon approaching at a trot. His wagon was overturned and broken, and lie was severely injured.

Supplementary proceedings by James J. Martin, committee, etc., of John Gill, a lunatic, against Alice Woodhall and Harriet Woodhall, to collect a. judgment in favor of plaintiff against defendants. From certain orders relative to the examination of John Tunbridge, and directing him to deliver-certain property to the receiver, Alice Woodhall appeals.

Action for personal injuries, brought by Alois Jonasclp an infant, etc., against the Standard Gas-Light Company of the city of New York. Plaintiff had a verdict for $1,500, and judgment was entered accordingly. Defendant appeals.

<p>Appeal from jury term.</p> <p>Action by the New York Smelting & Refining Company against George Lieb. Plaintiff appeals.</p>

Action by Louis Sternberger and others against Meyer A. Bernheimer and others. The complaint alleged that plaintiff’s assignor bought as stockbroker for the defendants jointly, and thereafter carried for them, a certain number of shares of stock in a railroad corporation, and that the defendants had failed to take up the stock, whereby plaintiffs had suffered loss.

<p>'Taxation—Exemption—Almshouse—Medical Dispensary.</p> <p>The building of a corporation organized under the act of 1848, for the gratuitous medical and surgical relief of the poor, and used as a hospital for indigent sick, and as a dispensary for the relief of the poor, no fee or return being exacted therefor, is exempt from taxation; the use of the property being that of an almshouse, within the meaning of Association v. Mayor, 13 N. E. Rep. 379.</p>

Action by William H. Alden and Morris E. Sterne against William P. Earle, to recover commissions as real-estate brokers. Verdict and judgment for plaintiffs, and defendant appeals.

<p>Contracts—Agreement to Renew Promissory Note—Construction.</p> <p>Plaintiffs agreed to renew certain notes which they had taken from a firm, “except in case of unusual disaster to the said firm. ’’ It was also agreed that plaintiffs should exercise supervision over the business of the firm, by way of giving advice as to the payment of debts, as though they were partners in the firm. Meld, where the firm made an assignment for the benefit of creditors before the maturity of the notes, that plaintiffs were relieved from the obligation to renew said notes, although the plaintiffs had advised that such assignment be made, and had threatened that if it was not made they would buy up all claims against the firm that-could be purchased, and although the plaintiffs had insisted that the notes should. he paid at maturity.</p>

<p>Action by Betsey Friedman against Israel H. Eisenberg, to recover $475. Defendant appeals from the clerk’s taxation of costs.</p>

<p>Attorney and Client—Disclosing Client’s Address.</p> <p>Where a litigation has ceased with a judgment for defendant, which is affirmed on appeal, the attorney for plaintiff cannot be compelled to disclose his late client’s address.</p>

Action by Henry B. Shaen and others against Samuel Gumpert for goods sold and delivered. A verdict for plaintiffs was directed, and defendant appeals.

Application by Charles Kruse for a writ of mandamus to Charles H. Woodman and others, commissioners of excise of the city of New York, to issue a license to relator. Defendants offered evidence of admissions by one Hillen of having an interest in the business to be carried on under the license. The writ was directed to issue, and defendants appeal. For opinion on former appeal, see 1 N. Y. Supp. 335.

<p>Motion for leave to appeal to the court of appeals. For former report, see 3 2L Y. Supp. 929.</p>

<p>Motion for reargument. For former report, see 3 N. Y. Supp. 116.</p>

<p>Appeal from Eighth district court.</p> <p>Action by Patrick Lynch against Leslie Speed, to recover for injuries to plaintiff’s horse. Judgment for plaintiff, and defendant appeals.</p>

On motion for leave to appeal to the court of appeals. A statement of the case will be found in 2 M. Y. Supp. 403, 3 M. Y. Supp. 934.

The following is the opinion of the referee: “The plaintiff, as assignee ■of Sayre & Yanderhoof, brings this action to foreclose a mechanic’s lien for $419.20 upon buildings on the south-east corner of Ninety-Eighth street and Third avenue, in the city of New York. The notice of lien was filed and docketed in the county clerk’s office on the 1st day of June, 1887, against John M. Schmidt, as owner.

<p>Action for accounting and reconveyance, brought by Mary A. Connor against Daniel T. Atwood et al.</p>

Action by Henry B. Dukes against the Eastern Distilling Company for injuries received while plaintiff was a brakeman on the Long Island Bailroad through the negligence of defendant in constructing a bridge over the railroad by which plaintiff was struck while engaged in his duties as brakeman. ■On the trial the court charged as follows: “Gentlemen of the Jury: The plaintiff in this action was a brakeman in the service of the Long Island Bailroad Company..

Action by John Lang against the New York, Lake Erie & Western Railroad Company for damages caused by a brakeman knocking plaintiff’s son, a boy 11 years old, from a freight train while in motion, whereby the boy’s foot was crushed, necessitating the amputation of the foot and a portion of the leg.

Ejectment by Jean R. Stebbins and John C. Winslow against James ICay, Patrick R. Gains, and John Given. Plaintiffs claimed the land by virtue of a tax-deed, having purchased the land at a sale for non-payment of an assessment for opening and constructing Gravesend avenue, in the town of Graves-end, Kings county. Trial by the court without a jury, and judgment for plaintiffs. Defendants elected to take a new trial under Code Civil Proe.

Catharine Sager presented a claim against Margaret E. Dorr, administratrix of Elisha Dorr, deceased, which was referred under the statute. The referee found for plaintiff, and defendant moved to set aside his report. This motion being denied, and the report being confirmed, defendant appeals. Code Civil Proc.

Mortgage foreclosure by Tewton R. Bond against Emily M. Finn and others. The issues were tried before a referee, and this appeal comes upon his findings; the evidence given upon the trial not forming part of the record. The complaint was in the usual form to foreclose a mortgage given by Augustus G. Goold and Julia, his wife, to the plaintiff to secure a debt of the former, September 2, 1885.

Action by John B. Kaye against the Bob Boy Hosiery Company. Judgment, on a verdict for plaintiff, for $3,000, defendant’s motion to set the verdict aside denied, and defendant appeals. The action was for injuries alleged to have been received by plaintiff by the fall of an elevator in defendant’s factory. Plaintiff was in defendant’s employ as operator of the elevator. His duty required him to ascend and descend with it.

Henry Elsworth and another, executors of the will of Edward Elsworth, deceased, filed a complaint for an account of their testator’s transactions as trustee under the will of Henry Elsworth, deceased, to which Mrs. Sarah Hinton and other beneficiaries under said will were parties.

Application to a judge of the supreme court in chambers to compel Robert A. Maxwell, the superintendent of insurance, to pay the plaintiff, Raphael J. Moses, Jr., $750, alleged to be due him as a balance of a fee for legal services rendered in the collection of a deficiency. Judgment rendered after the foreclosure of a mortgage executed by Edward Rowe and Benjamin E. Beekman, and deposited by an insurance company with said superintendent.

Action by William P. Bailey against Nicholas Murphy. From an order setting aside a satisfaction of judgment rendered in such action, and permitting plaintiff’s attorney to enforce a lien for costs and attorney’s fees, defendant appeals.

Action by Daniel Keeler against .Mary Keeler. The plaintiff, by Doyle & Kitts, his attorneys, commenced this action in favor of the plaintiff to recover for services rendered the defendant. The attorneys made an agreement with the plaintiff that for their services they should have one-half of the recovery and all the taxable costs.

Action by P. Elbert Kostrand against Mary T. Knight and others to compel specific performance of a contract by defendants to convey to plaintiff’s assignor “all that certain grist-mill and water-power known as the ‘ 0. B. Knight Grist-Mill ’ property, including a tract of land with tenant-house at Bound pond, and the outlet to said pond, together with all the rights and privileges to the water in Bound pond that the late 0.

Action by James O’Lauglilin against George H. Hammond & Co. From a judgment for plaintiff, and an order denying a motion for a new trial, the defendant appeals.

Action by George. McArthur, as committee of Ebenezer Larmouth, a person of unsound mind, against Henry Gordon and Eoberd Davis and wife.

<p>Appeal from special term, Hew York county.</p> <p>William Laimbeer presented to Robert W. Tailer and others, executors of the will of Mary Bradhurst, deceased, a claim against decedent’s estate, which was referred, as provided by 3 Rev. St. N. Y. (7th Ed.) p. 2299, § 36. Judgment was entered confirming the referee’s report, and rejecting the claim, and Laimbeer appeals.</p>

<p>Appeal from circuit court, Columbia county.</p> <p>Action by Frederick S. Y. Malone, a minor, by George P. Malone, his guardian, against the Boston & Albany Railroad Company for injuries received by plaintiff through defendant’s alleged negligence.</p> <p>Plaintiff, a child three years and ten months old, on the 2-5th day of June, 1885, had his foot crushed by the wheel of a freight car on defendant’s side track in its switch yard, about 1,200 feet=beyond its upper station, in the city of Hudson. The defendant, by means of an engine, “kicked” nine freight cars from its main track westerly upon this side track, and left them standing there. As they were slowly moving to a rest the plaintiff,' unobserved by any one, in some way had his right foot run over by the forward wheel of the forward car,—that is, the car furthest from the engine. A brakeman was upon that end of that car, and remained there until the car was about stopping, when he jumped off on the south side, crawled under this or one of the other cars, and got on the engine, which, after kicking the freight cars, moved along the main track, and stopped opposite the place where the freight cars stopped. The brakeman did not observe the child. When the child was first observed by any one it was lying with its crushed foot on the track, and its body extending southerly on the south side of the switch track. Several children (thé plaintiff’s sister among them) were playing in the bushes on the south side of the switch tracks, and just down the embankment from the place where the plaintiff was found. Other facts are stated in the opinion. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Witness—Competency—Transactions with Decedents.</p> <p>Under Code Civil Proo. IT. Y. § 829, rendering a party to an action against an administrator incompetent to testify as to a personal transaction had with the intestate, unless the administrator testifies in his own behalf concerning the same transaction, the testimony of an administrator, in an action against him for a debt, that his intestate showed him an acquittance in the handwriting of, and signed by, plaintiff, will not render the plaintiff competent to testify that he never gave the intestate such a paper.</p> <p>2. Same—-Harmless Error.</p> <p>Though in such case the plaintiff may testify that he never wrote such a paper, the error in excluding his testimony is harmless, when he is afterwards allowed to testify that there never was such a paper signed by him.</p> <p>3. Powers—Construction—Attorney in Fact.</p> <p>Where such an action is based on money paid for the defendant’s intestate, and for her indebtedness assumed by plaintiff, the latter is not prejudiced by the exclusion of a power of attorney, executed by intestate, authorizing plaintiff to collect rents and claims due intestate, and to pay any debts she might owe, as the presumption from such a power, in the absence of other proof, is that plaintiff paid intestate’s debts only with money collected for her.</p>

Action by the Metropolitan Exhibition Company against John Mewton, commissioner of public works, and John Richardson, superintendent of the bureau of incumbrances, of Mew York city, to restrain defendants from removing or interfering with certain fences alleged to belong to plaintiff at One Hundred and Eleventh street, and Fifth and Sixth avenues.

<p>Appeal from circuit court, New York county.</p> <p>Action by James Donohue against the Houston & West Street & Pavonia Ferry Railway Company for injuries received by the alleged negligence of defendant. Judgment for plaintiff for $2,772.86, and defendant appealed. Pending the appeal plaintiff died, and the action was revived in the name of Maria Farrell, his administratrix.</p>

<p>Appeal from special term, Hew York county.</p> <p>Action by Importers’ & Traders’ Bank of Hew York against William H. Peters, as receiver of the Exchange Hational Bank of Horfoik, Va., and Everett Bros., G-ibson & Co. Judgment was rendered for the last-named defendant, and the receiver appeals.</p>

Petition by Priscilla Gibson Gay for the appointment of a trustee of the Columbian Insurance Company. There were appeals from an order appointing a trustee, and from an order confirming the appointment of John Y. A. Griswold as such trustee, and from an order vacating the appointment of John D. Paulison as trustee.

<p>Appeal from special term, Hew York county.</p> <p>Partition suit brought by Margaret Foster against Theodore M. Boche, trustee, and the United States Trust Company of Hew York. Defendant Boche appeals from certain portions of the final judgment, which appeal brings up for review the interlocutory judgment. The trust company also appeals from the final judgment.</p>

<p>Principal and Surety—Release of Surety—Official Bonds.</p> <p>A bond recited that “if the above bounden, [principal,] who has been appointed clerk of said Union Dime Savings Institution, * * * shall faithfully and honestly discharge his duties as such clerk, or in whatever capacity he may serve said bank, and shall faithfully apply and account for all such moneys, funds, valuables, and property which may come into his hands, or under his control, as such clerk, then this obligation to be void, ” etc. Held, that the sureties were liable for defalcations of the principal in his capacity as teller, to which position he was subsequently appointed. Brady, J., dissenting. Following Savings Inst. v. Neppert, 3 N. Y. Supp. 797.</p>

Petition by Mary Ann Willsey, formerly Mary Ann Turnbull, for a revocation of the probate of the will of John D. Turnbull, Jr., deceased, on the ground, among others, that no citation was served on the petitioner.

This is an appeal from an order dismissing an appeal from a judgment of a court of special sessions, held by the recorder of the city of Amsterdam, convicting the appellant, Philo Baldwin, of assault in the third degree. September 29, 1888, a complaint was made to the recorder, charging defendant with the crime of assault in the third degree, and a warrant for his arrest was thereupon issued.

<p>Appeal from Third district court.</p> <p>Action by Charles L. Weeks and Benjamin Parr against Henry C. Zimmerman. Judgment was given for plaintiffs, and defendant appeals.</p>

Actions by the Armstrong Manufacturing Company and by the Hew Haven Web Company against Francis J. C. Ferris. A motion by defendant to vacate an order of arrest was denied, and he appeals. Code Civil Proc.

Action by Hermann Koehler against Joseph Scheider to recover rent for months of March and April, 1886, under a yearly letting from May 15, 1885. The defense was a general denial and a constructive eviction. The rent for February, 1886, not having been paid, plaintiff sued for it, alleging a letting to defendant for a year from May 1, 1885, at $6,000 a year, payable monthly, at end of month, demand and refusal to pay rent for February, 1886. The answer was a general denial.

This was a summary proceeding instituted by William Kramer, landlord, against Gustav Amberg, tenant, to obtain possession of the premises known as the “Thalia Theater,” 46 and 48 Bowery, Hew York City. Defendant’s lease would not have expired by limitation until May 1, 1891, but plaintiff claimed the right to possession on the ground that defendant had violated one of the conditions of his lease, in subletting the premises. Judgment for plaintiff, and defendant appeals.

<p>On motion for reargument.</p>

<p>Appeal from judgment on report of referee.</p> <p>Actions by William Schmaltz, Andrew Schmaltz, and Gilbert Wood against Sarah F. Mead, George W. Mead, and others. From the judgment given Sarah F. Mead appeals.</p>

<p>1. Liens—Priority.</p> <p>The plaintiff sold certain property partly on credit, and took a chattel mortgage for the unpaid purchase money. Afterwards the vendee gave a writing by which she transferred all her interest in the property to the defendant as security for the payment of a board bill due the latter. The defendant had no notice of the mortgage given to plaintiff, which was not recorded until after the execution of the writing to defendant, and after the indebtedness for which she claimed a lien was contracted. Held, that the lien of the defendant as a boarding-house keeper took precedence over that of the plaintiff.</p> <p>2. Same—Waiver.</p> <p>The fact that when plaintiff demanded possession of the property from the defendant, the latter did not assert her lien as a boarding-house keeper, did not constitute a waiver of such lien, especially as she did not give any other reason why she refused to deliver the property to plaintiff.</p>

Action upon a policy of fire insurance, brought by Mark Mayer against the American Insurance Company. The action was commenced in the city court, and was tried before Mr. Justice Pitshke and a jury. A verdict having been rendered in favor of plaintiff, defendant’s exceptions were directed to be heard, in the first instance, at the general term; entry of judgment being meanwhile stayed.

Action by Patrick Flaherty against Henry 0. Miner and others for $2,600, with interest from October 1, 1881, balance due for excavating the cellar for a building of defendants, and for $500 for extra work under verbal contract.

<p>Appeal from district court.</p> <p>Action by Frank McNamara against James McEntee and another. Defendants appeal.</p>

Action by the Phenix Insurance Company against Parsons & Loud for a breach of warranty arising out of the assignment of certain claims. Complaint dismissed, and plaintiff appeals.

<p>Appeal from trial term.</p> <p>Action by Catherine M. Hewison against Mary Hoffman to recover $106 paid by plaintiff on a contract for the sale of real estate by defendant to plaintiff, and for $186 expended in examining title. Judgment for plaintiff, and defendant appeals.</p>

Action by Otto Buhl, as president of the National Cross Country Assocíá-tian of America, against Frederick A. Ware, as president of an alleged association using the name “National Cross Country Association, ” to restrain the defendant and the alleged association from using the name “National Cross Country Association.” From an order denying plaintiff’s motion to require defendant to elect by which of certain parts of his answer he will abide, plaintiff appeals.

<p>Appeal from special term.</p>

Action by Friedrick Fricke against the German Savings Bank to recover money deposited. Verdict and judgment for plaintiff, and defendant appeals. Under defendant’s by-laws, as set forth and printed in the pass-book issued by it to each of its depositors, the payment of money on an order purporting to be signed by the depositor fully discharged and relieved it from any further liability. The money for which plaintiff sues was paid out on a forged check.

Action of ejectment by Morgan Jones and others, as heirs of John Jones, deceased, against Joseph H. Hawes and others, and Adelaide Jones, to recover land held by the defendants, except Adelaide Jones, adversely to plaintiffs. Plaintiffs sued as the heirs of John Jones, deceased, for the benefit of Morgan Jones, to whom the deceased had conveyed the land.

<p>Appeal from special term.</p> <p>Action by Oswald Ottendorfer and others against Maicho Fortunato to enjoin the prosecution of certain street grading, etc. From an order dissolving a preliminary injunction and denying motion for the continuance of an injunction, plaintiffs appeal.</p>

<p>Judgment—Res Adjudicata—Pleading.</p> <p>In an action for work and materials furnished to defendant for a certain yacht, the defendant asked leave to file a supplemental answer, setting out that since defendant had filed his answer a suit brought by plaintiff in the federal court for the same cause of action had terminated in favor of the defendant. Held, that leave was properly denied, where it appeared that the adjudication in the federal .court was that, although plaintiff might have a personal claim for work and material, he had no lien upon the vessel.</p>

Case submitted on agreed statement. The complaint contains two causes of action,—one for $1,125, balance of contract price for grading One Hundred and Twelfth street; another for $5,000 damages for delaying plaintiff and his assignor in the performance of the contract for the grading.

<p>1. Taxation—Notice to Redeem fbom Sale—Time op Giving.</p> <p>A notice to redeem from tax-sale must be served upon the owner of the premises, and upon the person in actual possession, after the execution and delivery of the tax-sale lease. Service before such delivery is premature and ineffective. Following Donahue v. O’Conor, 45 Super. Ct. Rep. 301.</p> <p>2. Same—Sale—Descbiption op Pbopebtt.</p> <p>Where the pamphlet containing a catalogue of the property advertised to be sold for taxes contains no other description than the designation of a number on a map, which map merely gives the bounds of the property, the sale is void.</p>

Action by Augusta G. Genet against the Delaware & Hudson Canal Company. Plaintiff appeals from an order suspending the operation of an injunction pending an appeal to the court of appeals.

<p>On trial before referee.</p> <p>Action by Asa Cr. Trask against Edgar W. Hazazer, for money advanced.</p>

Action by the Fort Edward Water-Works against Margaret McIntyre and husband for damages for interfering with plaintiff’s water-pipes, and to restrain further interference.

<p>Injunction—Pleading and Evidence—Waste by Executors.</p> <p>An executrix was entitled by the will to the possession of realty as personalty, and had power to sell in such parcels as seemed to her best. A complaint, seeking to enjoin her from cutting and selling timber, alleged that it was very doubtful whether there was sufficient property to pay plaintiffs’ legacies after paying prior ones, and that the cutting and sale of the timber had reduced the value of the land, and made more doubtful the sufficiency of the estate to pay such legacies. It was not alleged that the timber was sold for less than its value, or that the proceeds had been improperly disposed of, or that the estate had lost thereby, or that defendant was insolvent; but the allegations tended to show her ability to respond for any damage to the estate. Meld, that the complaint showed no ground for an injunction.</p>

Action by Daniel Harrington against the New York Central & Hudson Biver Bailroad Company. Defendant' appeals from a judgment on a verdict for plaintiff, and an order denying a motion for new trial on the minutes.

Action byM. Fleischmann and another against Simon Newman, to restrain the use of the label, and the imitation of the packages, of plaintiffs’ compressed yeast. On plaintiffs’ label the several dates of registry are printed in a circle, in small type. Within the upper semi-circle are the words “Fleischmann & Co.’s,” printed circularly, and in the lower are the words “Compressed Yeast,” each word forming a line. These five words and characters are in comparatively large type.

Action by Henry Hungerford against the Syracuse, Binghamton & New York Railroad Company, to recover for the killing of four horses which escaped from plaintiff’s barn-yard onto the defendant’s track. The defendant claimed that the horses had entered upon the track through a bar-way at a farm crossing. Judgment was given for plaintiff, and defendant appeals.

Action by Josiah D. Payne, one of the executors of George 0. Freer, deceased, against Elizabeth H. Freer, individually, and as executrix of said will, to set aside certain transfers of personal property made by testator in his life-time to defendant, who was his wife. From a judgment dismissing the complaint plaintiff appeals.

Petition by Frederick Liddington and others to revoke the probate of the will of Valentine Liddington, deceased. From a decree of revocation Charles D: FTixon, executor and residuary legatee under said will, appeals. Code Civil Proc. FT. T. § 2648, requires a petition for revocation of probate of a will to be filed within a year after such probate.

Action by John Galway and others against Jacob D. Nordlinger and another. Judgment was given for plaintiff, and the defendant Nordlinger appeals.

Action by Llewllyn 27. Crigler and Robert L. Crigler against Ezra M. Be-dell and others. From a judgment dismissing the complaint as to the defendant Bedell, the plaintiffs appeal.

Action by Patrick Devereux and the Oneida Savings Bank against the Sun Fire Office, of London, to reform an insurance policy. Judgment was given awarding the relief asked, and the defendant appeals.

Action by Jesse W. Billington against Michael Cahill for damages for breach of a contract of hiring. Verdict and judgment for plaintiff. Defendant appeals.

Appeals from Onondaga county court. Betsy Ann Mason appeals from two orders made in proceedings against her as a lunatic, pending in the county court of Onondaga county. She also applied to the supreme court for and obtained an alternative writ of prohibition against said court, the judge thereof, and Alapson -Hicks, the petitioner, who began the proceedings, to restrain them from further proceedings therein.

Action by Henry J. Mowry and George M. Barnes against the Western Union Telegraph Company, for damages caused by delay in transmitting a telegram. Judgment for plaintiffs. Defendant appeals.

Action by John W. Smith against Martha Smith and Mary Lilly to set aside a conveyance of certain lands to defendant Smith, and to charge said land with an equitable lien for improvements built thereon. Judgment for plaintifl establishing the lien, and defendant Martha Smith appeals.

Action under the civil damage act by Catharine McCarty against Alvin IT. Wells. Verdict for plaintiff, and motion for new trial on the minutes denied. Defendant appeals, the case containing all the evidence.

<p>1. Mortgages—Foreclosure—Service of Notice—Affidavit.</p> <p>Although an affidavit of service of notices of foreclosure, which states the residence of the persons served on the information and belief of the affiant, does not furnish presumptive evidence of service, yet the defect does not render the affidavit inadmissible, common-law evidence being competent to show the fact of service.</p> <p>• 2. Same—Sale—Validity.</p> <p>The insufficiency of service of notice of foreclosure, as to certain parties other than the mortgagor, renders the sale irregular or invalid as to such parties only, and those claiming under them.</p>

Action by Jay Anthony against Joseph Leeret and Hannah Blaisdell. Verdict and-judgment for plaintiff. Motion for new trial on the minutes denied. Defendants appeal. Heard on a case containing all the evidence.

On motion by defendants, Karoline Kroll and others, to sustain exceptions to the report of a referee, made under an order of the general term, on defendants’ application for restitution to the surplus of proceeds of foreclosure sale. For a report of the appeal, referred to in the opinion, see 43 Hun, 328.

Action by Arthur H. Hasten, receiver of the property of Richard Amerman, against Richard Amerman and others, to recover certain sums paid as premiums on life insurance. Judgment overruling defendants’ demurrer to the complaint. Defendants appeal.

Cases submitted on agreed statement. The plaintiffs, William M. Kingsland, as sole surviving trustee, etc., and Henry K. S. Williams, sought to recover the value of water-front property taken by defendants without compensation, under a claim of right based upon acts of 1870 and 1871 relating to the department of docks. The cases were referred to a referee.

On motion for additional allowance for costs under Code Civil Proc. § 3253. For opinion on the merits of the case, see ante, 682.

Action by Kannie L. Vaughn against Mary M. Strong, as administratrix of Thomas J. Strong, deceased, to recover moneys received by the intestate as trustee or friend for plaintiff, she being then an infant. The report of Robert Armstrong, Jr., referee, in favor of defendant, was confirmed, and judgment entered thereon, and plaintiff appeals.

Action by Thomas S. Vaughn against Mary M. Strong, administratrix of Thomas J. Strong, deceased, to recover money received by intestate as trustee or friend for plaintiff, he being an infant. Report of referee in favor of defendant was confirmed, and from a judgment thereon plaintiff appeals..

Henry Drisler and Cornelius E. Swope, guardians of Richard F. Carman, an infant, upon filing their final accounts, were allowed $250 as and for the expense of accounting, and the infant appeals from that portion of the order.

Action by John W. Pirsson, in his own right, and ás executor, etc., of Lucille Hall Bow, against Mary A. Gillespie and others, for a construction of the will of plaintiff’s testator, for the appointment of a trustee, and for other relief. A decree was rendered in favor of defendants, and plaintiff, as executor, appeals.

Proceeding by Mary E. Hines, general guardian of her infant children, to sell their land to pay debts. John L. Brower presented a claim for attorney’s fees, which was allowed, and the judgment of allowance affirmed at general term, (42 Hun, 659, mem.,) and by the court of appeals, (12 F. E. Bep. 60.) The case being remanded, the land was sold, and an orderwas made reducing Mr. Brower’s allowance, from which he appeals.

Action by Thomas H. Thorn and Oscar Thorn against James Sutherland and Herman T. Winter, to recover damages for defendants’ alleged conversion of and refusal to deliver to plaintiffs certain fixtures left upon real estate by plaintiffs upon their surrender of such premises to Jemima Payne, as executrix of William Payne, deceased, upon a judgment dispossessing them as tenants.

Action by John A. Conquest and another against Frederick E. Barnes and another. Defendants appeal from an order striking out an amended answer, with costs, on the ground that it was made for the purpose of delay, whereby plaintiffs would lose the benefit of a term. The provision of the Code in question will be found in section 542. Argued before Van Brunt, P. J., and Daniels and Bartlett, JJ.

<p>Factors and Brokers—CommisBions—When Right Accrues.</p> <p>In an action for commissions on a contract procured by plaintiff for defendant to place electric apparatus in a certain building, it appeared that while negotiations had been entered into for the placing of such apparatus in the building, defendant’s proposition to that end had not been accepted. Held, that plaintiff was not entitled to commissions.</p>

On exceptions from circuit court, Hew York county. Action by John A. McIlhargy, as assignee for benefit of creditors of Conrad W. Wennberg, against James Chambers and others, for wrongful seizure of property of the assigned estate on execution against the assignor. Motion by plaintiff for judgment on verdict, and by defendants to set aside the verdict, the exceptions having been ordered to be he^rd in the first, instance at general term.

<p>Appeal from surrogate’s court, New York county.</p> <p>Theodore B. Hazard was required by order of the surrogate to account as administrator of Jabez H. Hazard, a deceased trustee, and appeals.</p>

Action by Frederick P. Olcott, receiver of the Wall Street Bank, against Thomas W. Evans, its president, to recover damages occasioned by his negligence. Upon motion of plaintiff a commission to take the deposition of one John P. Dickinson was awarded over the objection of defendant, who appeals.

<p>On application to discharge judgment.</p>

<p>Master and Servant—Injuries to Servant—Risks of Employment.</p> <p>Plaintiff, while in defendants’ employ, was injured by the turning of a rung of a ladder which he was ascending. He testified that he had ascended the same ladder 20 times an hour before the accident. There was evidence that two or three rungs were loose. Held, that defendants were not liable, whether or not the defect was patent.</p>

<p>Factors and Brokers—Commissions.</p> <p>Plaintiff had a contract with defendant by which, in consideration of special efforts of the former to sell a house belonging to the defendant, and of advertising the house in a circular which plaintiff was to publish, the defendant agreed to pay a certain commission on the sum for which the house should be sold if the sale was made by either of the parties to the contract, and a less rate if the sale should be made by any other broker. A minimum price was fixed at which the property was to be sold. Held, that the plaintiff was not entitled to any commission where the house was subsequently sold through another broker, by the acceptance of a standing offer made through such broker several months before the contract with plaintiff was entered into, and the sale being at a less figure than that named in the contract with plaintiff.</p>

Action by Walter F. Kilpatrick, as general assignee of Peter Haulenbeck, against B. J. Dean & Go., to recover for the conversion of 184 bags of coffee. The defendants were warehousemen, and Henry A. Morris, the general owner of the coffee, had stored it with them, and received certain advances upon it. Afterwards Morris gave to Haulenbeck an order for the delivery of the coffee, subject to said advances.

<p>Appeal from special term.</p>

Action by Nellie L. Dexter against Edward Dexter, assignee for the benefit of the creditors of John W. Dexter, for the conversion of certain goods. From an order dismissing the complaint, plaintiff appeals.

Action by Charles Cords, Jr., by guardian, etc., against the Third Avenue Railroad Company. J udgment on a verdict for plaintiff, from which, and from an order denying a motion for a new trial on the minutes, defendant appeals. For opinion in action by plaintiff’s father, see ante, 439.

. Appeal from jury term. Action by Thomas Adams.& Co.,, Limited, against Saly I. Mayer and others.

Action by the Lidgerwood Manufacturing Company against John C. Rogers and others. Plaintiff’s motion to set aside the verdict and for a new trial was denied, and it appeals.

Action by John Hutchinson and others against Franklin G. Wall and others, to foreclose a mortgage. J udgment was entered against defendants by default. The purchaser, John B. Foley, refused to complete the purchase, and appeals from an order directing him to do so.

<p>1. Appeal—Review—Harmless Error.</p> <p>A record of baptism contained a statement of the time of birth of the person referred to in it, but none of the day on which the baptism itself took place. Held that, as such registry can only be relied on as evidence of the date of the baptism, and not of the date of the birth, its admission was harmless error.</p> <p>3. Insurance—Application—Misrepresentations as to Age.</p> <p>An application for insurance provided that the application should form the basis of the contract, and the answers and statements should be taken to be strict warranties, and the policy provided that in case of untrue statements in the application the company should he liable only “for the amount of the paid-up insurance to which the owner of this policy would at the date of the death of the said insured be entitled, according to the provisions hereinafter set forth. ” By the succeeding provisions neither the insured nor the beneficiary was entitled to a paid-up policy at the time of insured’s death. Held, that the effect of warranting the age of the assured to be three years less than his actual age rendered the policy inoperative.</p> <p>3. Same—Mistake of Agent.</p> <p>The application provided that “it is also agreed and warranted that this application has been made, prepared, and written by the applicant, or by his own proper agent, and that the assurer is not to he taken to be responsible for its preparation, or for anything contained therein or omitted therefrom. ” Held, that the acts of the insurance agent in filling out the application were those of the applicant: and the company was not liable for the misconduct or misapprehension of the agent, through which the answers were incorrectly made a part of the application.</p>

Action by the Whitehall Lumber Company, Limited, against Walter J. Ed-mans, for fraudulent representations, whereby plaintiff was induced to sell defendant three car-loads of lumber. The alleged representations were that defendant was solvent, and was worth $1,700 over and above his liabilities, except his liability to plaintiff. Defendant answered, admitting the sale, but denying generally and specially the false representations.

Laws N. Y. 1875, c. 79, § 2, provide: “Whenever a trustee elected under the provisions of said section three of the above-mentioned act [‘An act to provide for the incorporation of religious societies,’ Laws 1813, c. 60,] ceases to be a member of the church, congregation, or society, by removal or otherwise, or ceases to statedly attend upon and support its services, he shall at the same time, and for such cause, cease to be a trustee, and his place shall be declared vacant…

Action by the Toronto General Trust Company against the Chicago, Burlington & Quincy Railroad Company and the Hational Bank of Commerce to compel defendants to issue to plaintiff, as trustee of the estate of a decedent, certificates for certain shares of stock. The complaint was dismissed, and plaintiff appeals. Patterson, J., rendered the following decision at special term: “I am of opinion that the plaintiff cannot maintain this action.

'Smith, Beferee. Action by the people against Clinton T. Backus, Manson 3?. Backus, James Kerr, and William 35. Held: were composed, in the main, of contract earnings, with some small additions, consisting of moneys placed by individual convicts with the agent and warden for safekeeping or the proceeds of the sale of refuse from the prison.

<p>Appeal from circuit court, Albany county.</p> <p>Action by George W. Ellis against Theodore Houston and Horace Russell, receivers of the Yew York, West Shore & Buffalo Railway Company. Verdict and judgment for plaintiff, defendants appeal.</p>

Action by Jacob Ouderlrirk against the Central National Bank of Troy, for the conversion of bonds. The plaintiff, being the owner of the bonds in question, gave them to the bank in 1884 as collateral security to a note of his discounted by it. This note, after having been renewed, was finally paid. Subsequently the plaintiff had another note discounted by the bank, and these bonds remained as collateral to that note, which was finally paid January 26, 1887.

Action by William H. Hollister against the Central National Bank of Troy, for the conversion of certain bonds. Judgment for plaintiff, and defendant appeals.

This action was commenced by Alfred D. Bump against William Gilchrist and others, makers and grantor of a promissory note of $1,000 and interest, payable to Margaret M. Bump, executrix of Warren S. Bump, or bearer, alleged to have been transferred to plaintiff. Two legatees under the will of Warren S. Bump, viz., William J. Bump and Alfred W. Bump, applied to be made defendants, and plaintiff, against her will, was ordered to bring them in.

<p>Partnership—Dissolution—Rights and Remedies of Partner.</p> <p>After the dissolution of a partnership, its members, together with others, formed a corporation to do the same kind of business in which the partnership had been engaged, the assets of the partnership being transferred to the corporation, and it being agreed that S. should cause said corporation to assume the liabilities of the partnership if the assets transferred should exceed such liabilities. Held, that plaintiff, who had been a member of the partnership, and had been obliged to pay a judgment against it, could not recover from the corporation on account of such payment, where it was not shown that the corporation took any steps towards assuming the liabilities of the partnership, nor that such liabilities were less than the assets.</p>

Action by Isabella K. Lombard against the Central national Bank of Troy, for ths conversion of a bond. The plaintiff, prior to April 24, 1877, was the owner of a Troy & Boston Railroad bond for $1,000, which she had left with her brother, Justin Kellogg, for safe-keeping. That is the fair construction of her testimony, although in some places she uses language inaccurately, and so the fact is stated in the brief of defendant’s counsel.

<p>Appeal from special term, Oneida county.</p>

This is an appeal by the defendant Mary B. Beid individually and as executrix, etc., of William Beid, deceased, from a judgment of foreclosure entered in favor of the plaintiff, John Buyter.

The referee delivered the following opinion in connection with his report: “The complaint in this action is to recover against the defendant, a municipal corporation, for having caused an alleged nuisance upon the premises of the plaintiffs for six years previous tó the commencement of this action, by reason of the overflow of defendant’s sewer, which action was commenced the 2d day of October, 1885.

The plaintiff has been the owner of a farm since 1851. Through this ran a small brook. He widened and deepened the channel, and drained his flat land into it, so that the flat, which had been boggy and useless land, has become valuable meadow land. In 1871 defendant constructed quits own land a dam on this stream above plaintiff’s land.

Lawrence county court; J. M. Kellogg, Judge. Accounting of G-. H. Dorr, assignee for the benefit of creditors of Felt & Bell. Appeal by Dorr from the decree of the county court.

<p>Certiorari to review the proceedings of the board of excise of Canton, St. Lawrence county.</p>

This is an action by a receiver appointed in supplemental proceedings, to set aside a general assignment made by defendants Wood and Merrill to defendant McDonnell. The case was tried before Justice Edwards and a jury. The jury found a verdict for defendants, and judgment accordingly was granted thereon. From this judgment, and the order denying the motion to set aside the verdict, the plaintiff appeals.

Webster Wagner died in January, 1882, leaving surviving his widow, Susan Wagner, and his five children, Norman L. Wagner. Emma C. Taylor, Anna P. Van Vlack, Clara E. Stetson, and Annetta C. Wagner.

Action by Francis A. Jewett against Simeon Brownell on an agreement. On demurrer to the complaint, Justice Potter delivered the following opinion: “The complaint sets forth a contract between the parties, and is claimed to be the basis of a right to recover the sum of $2,400. The contract set forth in the complaint is peculiar, if not incomprehensible. It is not apparent from its terms just what the intentions and purposes of the parties to it were.

Action by Henry Du Bois against William M. Decker, a surgeon, for the negligent treatment of plaintiff’s leg. Verdict and judgment for plaintiff for $800 and costs, and defendant appeals.

<p>Railroad Companies—Injuries to Persons on Track—Province op Jury.</p> <p>Plaintiff, a woman, was riding alone towards defendant’s railway crossing, and, according to her testimony, she looked both ways for trains, and, seeing none, rode on, and was struck by a hand-car, and injured. The foreman in charge of the car testified that he saw plaintiff at some distance, and she was apparently looking at the car; that he might have stopped the car; and that it was moving at about five miles per hour. The view of the track from the road was somewhat obstructed. Held, that the questions of the negligence of defendant’s servants and of plaintiff’s contributory negligence were for the jury.</p>

Action by Charles Hauselt against Elizabeth Patterson, Christopher Pine, and others, to enforce a deficiency judgment recovered by plaintiff against the executors of John H. McCunn, deceased, upon the foreclosure of a mortgage executed by the said McCunn to plaintiff against defendants, the heirs of said McCunn, and their grantees. Judgment dismissing the complaint, and plaintiff appeals.

Action by Stacia Cullen, administratrix, against Frederick 0. Morton. The plaintiff’s intestate. James Cullen, was killed on the 4th day of June, 1887, by the falling rock from an unexpected discharge of blast in the defendant’s cement quarry in the town of Bosendale. Cullen was a quarry-man or miner in the employ of the defendant. Eleven holes had been drilled and charged in a perpendicular breast of rock. They were fired at one time, but only 10 exploded.

Lawrence county. Action by Charles Belanger against Harvey Dana, to recover for the conversion by the defendant of money which be received for the benefit of both parties, and which he agreed should be applied in payment of certain outstanding joint notes of the parties. The facts were as follows: In March, 1887, plaintiff and defendant bought a steam saw-mill jointly, and agreed to share equally in the profit or loss which might accrue from the venture.

Appeal by Timothy Moore and others, the assessors of the city of Cohoes, from an order of the special term denying their motion to quash a writ of certiorari, and directing, upon the certiorari, return thereto, and testimony taken, and other proceedings had, that the assessment of $20,000 valuation of the relator’s personal property be stricken from the assessment roll, upon the ground that she was a non-resident of said city on and after the 30th day of May, 1886.

<p>Appeal from court of sessions, Warren county.</p> <p>Prosecution of Liscomb B. Page for obtaining goods by means of false pretenses. From a judgment of conviction the defendant appeals.</p>

Suit by E. D. Bansom et al. against Willard E. Hasten. Appeal by defendant from the judgment of the Albany county court entered upon the verdict of a jury after trial upon appeal from a judgment of the city court of Albany. The action was to recover overcharges made by the defendant and paid by the plaintiffs for lamp-black sold from time to time by the defendant to the plaintiffs. The lamp-black was in half-pound packages.

Suit by John W Van Valkenburgh against the Thomasville, Tallahassee & Gulf Railroad, to recover for services alleged to have been rendered the company under a contract with John E. Page, acting president. Prom a judgment for plaintiff, entered on report of a referee, defendant appeals.

<p>Appeal from circuit court, Ulster county.</p> <p>Action by Elizabeth B. Bruyn against Benjamin Bussell and James B. ICeeler, executors, etc., of Jacob De Witt, deceased, on a promissory note. Verdict and judgment for plaintiff for $5,445, and defendants appeal, as well</p>

Defendant, Frank Rose, was convicted of robbery in the first degree, and appeals from the judgment, and also from three orders,—one refusing to set aside the indictment, another overruling a demurrer to the indictment, and the third denying a motion for a new trial.

Fatherty owned and was captain of a schooner on the Hudson river. On the night of the 8th of June, 1886, when there was no wind, she was floating down the river on an ebb-tide, laden with a cargo of brick. She had the usual red and green lights upon her port and starboard sides. These were not visible from her rear. She was about 150 feet from the west shore.

The action was to recover for injuries sustained by the plaintiff by falling upon an icy sidewalk. On the afternoon of the 11th of February, 1884, the plaintiff, while walking upon the westerly sidewalk of Harrison place, stepped upon some rounded or oval ice, which was partly concealed by a light flurry of snow then falling, and she slipped and fell, and her hip was broken.

Action by James W- Chrystal, an infant, by John W. Kenny, his guardian ad litem, against the Troy & Boston Railroad Company. From a judgment entered on a verdict for plaintiff, and from an order denying a motion made upon the minutes for a new trial, defendant appeals.

<p>Appeal from judgment on report of referee.</p>

Action by James Perrow against David A. Lindsay. Prom an order directing defendant to allow the plaintiff to inspect an agreement between the parties to the action, defendant appeals. Code Civil Proc. § 806, provides that an order for discovery may be vacated upon satisfactory proof by affidavit “ that the party required to make, discover, or permit the inspection has not the possession or control of the book, document, or other paper directed to be produced or inspected.”

<p>1. Life Insurance—Surrender of Policy—Forfeiture.</p> <p>A policy of life insurance, issued upon the life of plaintiff’s husband, in her favor, was surrendered by him without her authority, he having forged her name. Held, in an action to revive the policy after the death of the husband, plaintiff not knowing of the existence of such policy during bis life, that it was no defense that a cSrtain installment of the premium had not been paid, where the surrender, though made after notice for the payment of such installment was received, was made before default in the payment thereof.</p> <p>2. Same.</p> <p>Nor was it a defense that plaintiff had collected a paid-up policy issued by the insurance company in place of the one surrendered.</p>

Action by the Hoboken Beef Company, Limited, against Carl Loeffel, for goods sold and delivered. The defendant was taken into custody on an order of arrest.

<p>1. Evidence—Documents—Copt op Judgment.</p> <p>A copy of a foreign judgment is admissible in evidence, when authenticated by the certificate under seal of the prothonotary of the court in which the judgment was rendered, and the certificate is certified by the presiding judge of the court to be in due form of law, and made by the proper officer, and the certificate of the judge is further authenticated by another certificate of the prothonotary under the seal of the court.</p> <p>2. Judgment—Action on—Presumption.</p> <p>In an action on a foreign judgment, where the exemplification of the judgment shows that all proceedings to and including the entry of the judgment and the issuing of executions followed in due order, it will be presumed that the court had authority to entertain and consummate the proceedings, and the burden is on defendant to allege and prove the contrary.</p>

Judgment was recovered herein January 31, 1889, for $1,672.49, and on the same day an execution was issued to the sheriff of the city and county of FTew York, who still holds it.

Action by the mayor, etc., of the city of New York, against Mary Kent and others.- The complaint was dismissed as to Mary Kent, and plaintiff appeals.

<p>Hegligence—Evidence.</p> <p>In an action by an infant under five years of age for injuries received by being run over by defendant’s car, it appeared that plaintiff had gone from the court before her mother’s house, where she was playing with her mother’s permission, to the other side of the street, and was run over while returning. Plaintiff was accustomed to play in the court. Held, that it was properly submitted to the jury to determine whether the mother was guilty of negligence in allowing plaintiff to play in the court.</p>

Action by Annie M. B. Halsey, in her own right, and as executrix of Anthony Halsey, deceased, against the Tradesmen’s national Bank of the City of Hew York and William M. Hoes, for certain valuable securities alleged to have been obtained from plaintiff by the fraud of defendants. Judgment was entered for plaintiff, and the bank appeals.

Action by Sophie Hillesum to recover damages for personal injuries caused by falling on a sidewalk in defendant city, alleged to have been defective. There was a verdict for defendant, but the court granted plaintiff’s motion for a new trial, and defendant appeals.

Action, of partition by William Scholle against Jacob Scholle and others. Plaintiff appeals from an order denying his application to compel one of the purchasers to take title, and from an order relieving another purchaser from his bids. The following is the opinion of Freedman, J., at special term, handed down May 8, 1888: “This is an action of partition. An interlocutory judgment of partition and sale was entergd in this action in May, 1885.

Action by John Betjemann against Mary E. Brooks for goods sold and delivered. There was a judgment for plaintiff on a report of a referee, which was reversed. 39 Hun, 649. The defendant having died, the action was revived against her executors, Emerson Brooks and Herman E. Cabot, who, when the action was remanded, moved for another reference, which being refused they appeal.

Action byHoeninghaus & Curtiss against Chaleyer & Monnier for a breach of a contract by the defendants to procure consignments for plaintiffs.

Mortgage foreclosure by Harry S. Waugh against Charles O. Bailey and others. A sale was had, from which the purchaser, Uoah B. Shute, moved to . be relieved. Motion denied, and the purchaser appeals.

Leonard Labalt obtained an attachment against Josef Schulhof and others, and defendants appeal from an order denying a motion to vacate the attachment.

Certiorari to review the proceedings of the commissioners of docks by which relator was removed from the position of book-keeper in said department

Action by Victoria A. Jones and another against William Slocum. The defendant entered into a contract for the purchase of certain real estate, agreeing to pay therefor about $15,000. The defendant was to pay a certain sum every year until the amount due for purchase money was reduced to $10,000, when he was to receive a deed of the land, and was to execute a bond and mortgage for the balance of the purchase money.

<p>Wills—Probate—Evidence.</p> <p>Where probate is resisted on the ground of mental incapacity of testator, and • proponents offer clear and satisfactory evidence that testator was in full possession of his mental faculties when the will was executed, and was under no restraining influence, the will should be admitted to probate.</p>

Action by James C. Bell against Samuel S. Hepworth, .the Garfield National Bank, O. H. De Lamater, and others, to foreclose a mortgage executed by said Hepworth, as surviving partner of the firm of S. S. Hepworth & Co. The other defendants are the executors of the estate of Joseph Colwell, the deceased partner of Hepworth, and subsequent mortgagees of the firm property. Judgment for plaintiff, and defendants appeal.

Action by Conrad Bantle to recover of the defendant, Barbara Krebs, the amount of two judgments recovered by him in the court of common pleas. The actions were commenced in a district court, and, the claims being more than $100, application was made to remove them to the court of common pleas. On the application the defendant and one Ignatz Martin executed an undertaking to procure the removal. The actions were removed, and plaintiff recovered judgment.

This was a proceeding on the relation of William L. Waterman for a writ of mandamus against the board of school trustees of the Twelfth ward of the city of ¡New York. Itelator appeals from an order denying a peremptory writ and directing the issuance of an alternative writ if the relator should so desire.

Action by Richard H. Bull against Maier Rothschild for rent. A motion for leave to file a supplemental complaint was denied, and plaintiff appeals.

<p>Appeal from special term, New York county.</p> <p>Action for specific performance, brought by Edward Uhl against Thomas Loughran. Judgment for plaintiff, and defendant appeals.</p>

» Appeal by James N. Plumb from an order directing him as guardian of the estate of his ward, Sarah L. Plumb, to pay certain bills for her benefit. The facts and previous history of the litigation may be found in opinions on former appeals, ante, 135.

<p>On motion for reargument. For opinion on former hearing, see 3 H. Y. Supp. 242.</p>

<p>On motion for reargument or -for leave to appeal to the court of appeals. Ho opinion on former hearing.</p>

On motion for reargument. The case is stated in 2 H. Y. Supp. 729. An appeal by defendant to the court of common pleas was dismissed because the order was not appealable, (no opinion being written) and appellant makes this motion.

<p>Appeal from trial term.</p> <p>Action by Francis A. Williamson against the New York, New Haven & Hartford Railroad Company, to recover the value of certain goods, including articles of wearing apparel, alleged to have been lost by the negligence of the defendant. The latter objected to testimony of the plaintiff as to the value of such wearing apparel, on the ground that he was not shown to be an expert. From a judgment for plaintiff, and from an order denying a motion for a new trial, the defendant appeals.</p>

Petition by Moses P. Prout, son of and residuary legatee under the will of Robert T. Prout, deceased, who was an heir and distributee of the estate of William F. Prout, deceased, to require Moses P. Prout, son of Jacob Prout, George Pisnie, and James McHab, administrators, etc., of said William F. Prout, to file their account. It was objected that the petitioner was not “a creditor or person interested in the estate, ” within Code Civil Proc. 1$.

<p>Appeal from special term, Erie county.</p> <p>Action by Jennie M. Thompson and John C. Thompson, executors of John B. Thompson, against Charles R. Thompson, Patrick H. Kennedy, and E. W. Kingsland, to recover $5,000 loaned to defendants by William D. Thompson, deceased, who bequeathed it to plaintiff’s testator as his residuary legatee. Trial was had at circuit before Mr. Justice Childs and a jury. A verdict was directed for plaintiffs, and the exceptions were ordered to be heard in the first instance at general term. Through a misapprehension, judgment was entered on the verdict, and defendants made a motion at the Erie special term, before the trial justice, to set aside the judgment and amend the order. The motion was granted, and plaintiffs appeal.</p>

Action by Emanuel Silberstein, by David Silberstein, his guardian ad litem, against the Houston, West Street & Pavonia Ferry Railroad Company. Judgment on a verdict for plaintiff, defendant’s motion for new trial denied, and defendant appeals.

Action by David M. Johnson against the Manhattan Bail way Company, for personal injuries. Defendant appeals from a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial.

<p>Assumpsit—When Lies—Deed—Mistake.</p> <p>A conveyance of several lots by mistake excluded a strip of land 3 feet 10% inches wide in the rear of them. Plaintiff and defendant each became the owner of one of the lots. Defendant obtained from the grantor a deed reciting the intention to include such strip, and that defendant was the owner “of a piece of land * * * including said 3 feet and 10% inches, ” and conveying the entire strip to him. Plaintiff demanded of defendant a conveyance of that part of the strip in the rear of her lot, but obtained it only on payment of $250. Held, that defendant was under no obligation to convey to plaintiff, and plaintiff could not recover the money, so paid.</p>

Action by John E. Gomey against Julia A. Clark and Cyrus Clark, her husband, Mary J. Clark, individually and as executrix of the last will and testament of Lemuel B. Clark, deceased, Horace Clark and Sarah C. Clark, his wife, Jennie W. Clark and Walter Clark, her husband, James Cassidy and Sarah Cassidy, his wife, Horace C. Skinner, Latimer E. Jones, Horace Secor, Jr., George W. Berger, and Charles B. Page, to foreclose a mortgage made by Julia A. Clark and husband and…

<p>Appeal from circuit court, Yew York county.</p> <p>Action by John O’Brien, a minor, by John O’Brien, his guardian ad litem, against Louis Greenbaum. Complaint dismissed, and plaintiff appeals.</p>

<p>Appeal from circuit court.</p> <p>Action by Hiram B. Aylsworth against James Gallagher. Judgment was given for plaintiff, and defendant appeals.</p>

<p>Appeal from circuit court.</p> <p>Action by the mayor, etc., of the city of New York against Matthew H. Moore and others. Judgment was given dismissing the complaint, and plaintiffs appeal.</p>

<p>Appeal from special term, Hew York county.</p> <p>Action for divorce on the ground of alleged cruel and inhuman treatment by Esther 0. Bose against Warren H. Bose. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from special term, Queens county.</p> <p>This is an application by the respondent, James W. Lamb, to have canceled certain taxes levied on property in Long Island City.</p>

Petition by Lydia ICane against Mary J. Odell and James J. Burnet, trustees under the will of Lawrence Odell, deceased, to require them to pay the petitioner certain money alleged to be due her. The surrogate refused to make the order requested, but directed the trustees to render an intermediate account. From this order the trustees appeal. For former reports see 2 K. Y. Supp. 752, and ante, 463.

<p>Appeal from special term.</p> <p>Action by the Watertown Thermometer Company against Julia A. Fool, Herbert W. Fool, and John L. Fool, to recover damages for breach of contract. There was an interlocutory judgment overruling defendants’ demurrer to the complaint. Defendants appeal.</p>

<p>Appeal from special term.</p> <p>Action by Virginia J. Quinn against John Winter. From an order setting aside judgment in favor of the plaintiff, and awarding costs to defendant, plaintiff appeals. Code Civil Proc. § 3228, subd. 1, provides that the plaintiff is entitled to costs of course, upon the rendering of a final judgment in his favor in an action triable by jury, in which a claim of title to real property arises on the pleadings.</p>

<p>Appeal from trial term.</p> <p>Action by Barbara Zenner against Thomas J. Blessing. From a judgment on a verdict directed in favor of plaintiff, defendant appeals.</p>

Action by Elizabeth M. Levin against the Standard Fashion Company for damages incurred by her discharge from defendant’s employment. Judgment for plaintiff, and defendant appeals.

Certiorari by Louis Ullrich to review the proceedings of James D. Bell, police commissioner of the city of Brooklyn, in discharging him from the police force of the city.

<p>Appeal from trial term.</p> <p>Action by Patrick Gallagher against the Coney Island & Brooklyn Railroad Company. Judgment was entered for plaintiff, and defendant appeals.</p>

Action by Isidore M. Bon against George V. Watson for the rent of a house. Laws H. T. 1860, e. 345, provides that a lessee of a building which shall, without any fault or neglect on his part, “be so injured by the elements, or by any other cause, as to be untenantable, and unfit for' occupation, shall not be liable” for rent after such injury, and may thereupon quit and surrender the possession. A verdict was directed for plaintiff, and defendant appeals.

<p>Attachment—Affidavit—Conclusions.</p> <p>An affidavit is insufficient to authorize an attachment which, with reference to the cause of action, simply alleges that there has been a breach of warranty of the quality of goods sold by the defendant to the plaintiff, and that, by reason of such breach, the plaintiff has sustained damages to a certain amount, but which does not set out any facts showing that plaintiff has sustained more than nominal damages.</p>

<p>Appeal from special term.</p> <p>Action by Margaret Wells against Francis Alexandre and others. Judgment was given for plaintiff, and defendants appeal.</p>

Action by the New York Life Insurance Company against James Aitkin, executor of Helen E. Aitkin, deceased. The complaint was dismissed at the trial, and plaintiff appeals.

Action by Augusta G. Genet against the Delaware & Hudson Canal Company for damages, and for an injunction. The referee dismissed the complaint as to the first cause of action, awarded damages to plaintiff as to the second cause of action, and found that plaintiff was entitled to an injunction. Judgment was entered on the report of the referee, and both parties appeal.

Action by Henry He Forest Weekes, as administrator of James Garvey, against John Garvey, impleaded, etc., seeking subrogation to the rights of a mortgagee. The court dismissed the complaint, and plaintiff appeals.

<p>Appeal from equity term.</p> <p>For a statement of the facts, see the preceding case, ante, 890.</p>

<p>Trusts—Burden of Proof.</p> <p>In an action by a judgment creditor for money deposited with defendant by plaintiff’s judgment debtor, where it appears that the account was kept by defendant in the name of the judgment debtor, with the addition to his name of the words “in trust, ” but no kind of trust or beneficiary is designated, one who intervenes, claiming that the money was deposited in trust for her, must affirmatively establish that fact, and a finding by the trial judge that the money belongs to the judgment debtor will sustain a judgment for plaintiff.</p>

<p>Contracts—Interpretation — Author and Publisher — Destruction of Subject-Matter.</p> <p>Plaintiff, an author, made an agreement with defendants, publishers, by which plaintiff was to furnish the stereotype plates and pay the cost of printing his book, and furnish a sum towards expense of paper and binding, and was to charge defendants with 50 per cent, of the price of the book. Defendants were to undertake the publication, furnish paper, and bind the edition of 1,000 copies, to guaranty sales, and account once in six months, and settle on the basis of 50 per cent, from the price. Plaintiff was to pay a certain sum for every copy he received. Defendants were regarded as the owners of the books, and had possession and the right of possession. Held, that plaintiff was entitled to recover 50 per centum of the price of books burned while in defendants’ possession.</p>

Action by Horatio P. Allen against Henry Trisdorfer. The general term of the city court reversed a judgment of the special term, and plaintiff appeals.

On motion for leave to appeal to the court of appeals. A statement of the case appears in 1 H. Y. Supp. 15. The order of the city court, affirmed at the general term thereof, vacating the order of arrest unless the affidavit on which it was granted should be amended, was reversed, the order was vacated in the court of common pleas, (no opinion written,) and plaintiff makes this motion.

<p>Abatement and Revival—Death of Party—Substitution qf Representative.</p> <p>Under 2 Rev. St. N. Y. pp. 447,448, §§ 1,2, providing that actions for wrongs to the property, rights, or interests of another may he brought against the personal representatives of the tort-feasor the same as actions for breaches of contracts, except in cases of slander, assault, and some other personal injuries, an action by a receiver of a corporation against its trustees for an account of the assets of the company alleged to have been misapplied by them does not abate by the death of one of the defendants, but may be revived against his administratrix.</p>

<p>1. Deceit—Action fob—When Lies.</p> <p>The defendant, who was a director of a certain corporation, induced plaintiff to purchase some of its bonds, asserting that it was in good financial condition, and that the bonds were “ as good as government bonds. ” The plaintiff had told the defendant that he knew nothing of the condition -of the corporation, but that if he would assure him that the bonds were all right he would take them. Held, that plaintiff had a right to rely on such representations, and on their proving false could bring deceit.</p> <p>2. Same—Fkoof.</p> <p>Where there was evidence that the corporation was insolvent at the time of the sale of the bonds, it was for the jury to say whether the defendant made such representations with intent to deceive.</p>

<p>Appeal from special term, Hew York county.</p> <p>Action by Robert B. Roosevelt againt James A. Roosevelt, Alfred Roosevelt, and William Emlen Roosevelt, executors and trustees under the will of Cornelius V. S. Roosevelt, deceased, and others, to obtain a construction of said will. Judgment dismissing the complaint, and plaintiff appeals.</p>

Upon the judicial accounting of Samuel D. Babcock, George De Forest Lord, and Daniel Lord, executors, etc., of Christian E. Detmold, deceased, the surrogate decreed that certain taxes on real estate should be charged to the life-tenants under the will. The opinion of the surrogate may be found in 3 H. Y. Supp. 555. The executors appeal.

<p>Appeal from circuit court, New York county.</p> <p>Action by William Berke against the Twenty-Third Street Railway Company for personal injuries. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from special term.</p> <p>Action by the Northampton National Bank against W. Grill Wylie and others. Judgment was given for plaintiff, and defendants appeal.</p>

Action by Timothy Slatterly against the New York, Lake Erie & Western Railroad Company for injuries received while in defendant’s employ. Defendant appeals from a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial.

<p>Accident Insurance—Consteuction of Policy.</p> <p>Under an accident insurance .policy, issued as an indemnity against a particular class of bodily injuries, and providing that it should not cover injuries “resulting wholly or partly, directly or indirectly, from intentional injuries, inflicted by the insured or any other person, ” the insured cannot recover for injuries intentionally inflicted by another person, although the insured himself did not intend the infliction of such injuries.</p>

<p>1. Mortgages—Lien—Priorities—Judgment.</p> <p>Where it is agreed that a conveyance shall he made, and that a mortgage of the property shall be given to secure the price and an advance by the vendor, and a mortgage, reciting that it is for purchase money, is given by the vendees, and a deed is not given until a year after the record of the mortgage, and the deed contains covenants of seisin and for quiet possession, and against incumbrances, the mortgage is valid as against a judgment confessed by the vendees to secure a loan.</p> <p>2. Same—Waiver—Evidence.</p> <p>Two witnesses testified that the mortgagee had informed the judgment creditor, before the loan was made, that he had put the money which he had advanced into the mortgagors’ business, and that it was at the risk of that business; that a statement of the condition of the mortgagors’ business, not including the debt, was made by the mortgagors; that the loan was made on the statement; and that the statement was appro red by the mortgagee. The mortgagee and one of the mortgagors contradicted this. 'Held, that a finding in favor of the mortgagee would not be disturbed, especially as it was not certified that all the evidence was contained in the case.</p>

<p>Appeal from special term, Hew York county.</p>

<p>1. Contracts—Actions—Assignment for Benefit of Creditors.</p> <p>An action by the assignee for the benefit of creditors of H. Bros., agents, may be maintained upon a contract executed in the name’ of H. Bros., where it appears that it was executed by and for, and the dealings were had with, the .former firm.</p> <p>3. Set-Off and Counter-Claim—Pleading—Admission by Failure to Reply.</p> <p>In an action for the price of goods and materials sold and furnished under a contract, the amended answer set up as counter-claim money paid by defendant to supply deficiencies and damages for 130 days’ delay in delivery, which were as alleged liquidated by the contract at S10 per day. The contract provided that these damages should be by way of forfeiture. Code Civil Proc. N. Y. § 501, provides that any cause of action in favor of defendant, which tends in any way to diminish or defeat plaintiff’s recovery, may be set up as a counter-claim, and under sections 514, 515, a reply is necessary to put in issue the facts alleged. By sections 419, 515, 1315, where the amount claimed is not fixed by the contract, or ascertainable therefrom, the amount claimed is not admitted by failure to reply. Held that, while defendant’s counter-claim, except as to the amount, was admitted by the failure to reply, he could not avail himself of the advantage by a motion on the pleadings, and at the close of the evidence for the direction of a verdict for the excess of his counter-claim over plaintiff’s claim, no evidence as to the amount of his damages having been offered.</p>

Action by Eliza Sidway against Isabel Sidway for the admeasurement of dower. From a judgment confirming the report of a referee fixing a gross sum in lieu thereof, defendant appeals.

Action by Lydia Patterson against Alfred E. Burnett and others, trustees, etc., for an accounting. From an interlocutory and a final judgment, and from two orders relative to the taxation of costs, plaintiff appeals.

Action by Walter D. Holt, assignee for the benefit of creditors of Hiram J. D. Miner, to wind up the assignment. From a report of the referee, holding that the estate of Edwin Isham, assigned to George P. Isham, was liable to Bertie Allenbrand and others, creditors of a banking firm, which was held to have been composed of Miner and Edwin Isham, Isham appeals.

Action by George G. Carpenter and another against the German American Insurance Company of Hew York. Defendant appeals from a judgment on a verdict, and from an order denying a motion for new trial on the minutes.

Ejectment by Orrin H. More, executor of Jesse B. More, deceased, against Andrew More. From a judgment entered on the findings and decision of the judge, a jury being waived, plaintiff appeals.

<p>1. Reference—Exceptions to Report.</p> <p>Code Civil Proc. N. Y. 0 992, in terms precludes an exception to a finding of fact by a referee as such. Section 993 declares a finding of fact without any evidence tending to support it, or a refusal to make a finding when reasonably requested, to be a ruling upon a question of law. Meld, that the only mode of reviewing a finding of fact by a referee as being against the weight of evidence is by a request to find, and an exception to the refusal.</p> <p>2. Evidence—Opinion.</p> <p>In an action for the foreclosure of a mechanic’s lien, where the point in controversy is as to whether the ceilings were as high as required by the specifications, a question asked a witness, “In measuring for a nine-foot ceiling from what points do you measure?” does not call for a matter of opinion, but for a custom or rule of the trade.</p>

Action by John Fletcher against Chauncey S. Butler for damages for a breach of a contract to convey land. Judgment for plaintiff, and defendant appeals.

Action by Henry C. Shoemaker against the New York Central & Hudson River Railroad Company for personal injuries. Verdict for plaintiff, and defendant appeals.

Application by the Ithaca Agricultural Works for leave to issue an execution upon a judgment after five years had elapsed from the time it was docketed. Application^denied, and plaintiff appeals.

Action by Samuel Flynn, assignee of Rufus Diefendorf, against Cornelia A. Diefendorf, executrix, etc., of John H. I. Diefendorf, deceased, upon a claim against the estate of said testator. Judgment entered by direction of the special term on the referee’s report in plaintiff’s favor, and defendant appeals.

Action by Ella Upton against Daniel Upton and Lovina, his wife, for slanderous words spoken by the latter. From a judgment entered upon a verdict, and from an order denying a motion for new trial, defendants appeal.

Action by Abijah S. Wakeman, as an individual, against Sylvia A. Wilbur and Jacob Wilbur, to procure the removal of a fence built by defendants along an alleged highway, and to perpetually enjoin them from obstructing the said highway. From a judgment for plaintiff, defendants appeal.

Action by Ellen J. Ballard, as executor of William P. Ballard, deceased, against the Hitchcock Manufacturing Company, for negligently causing the death of plaintiff’s decedent. Defendant appeals from a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial.

<p>Horse and Street Railroads—Franchise—Occupation op Street.</p> <p>A municipality sold to a street railroad company, for value, the right to construct a street railroad from the road of a railroad company along a route specified, the company being allowed one year to complete its road. Its track, as constructed, terminated 12 feet from the track of the railroad company instead of extending to it, but this space would be occupied by the part of the car forward of the forward truck, and the horses. The cars were stopped at the end of the track, the horses were transferred to the other end of the car, and the car and horses remained there in the street, until the time for beginning the trip. If the rails were carried to the railroad track, they would connect nearly on the line of the street. The street was 65 feet wide, 44 feet between the curbs, and was one of the principal thoroughfares. In an action brought within the year to restrain such use of the road, and the making of the terminus at the place mentioned, and waiting there to change horses and take passengers, held, that the municipality was not entitled to such relief.</p>

<p>Appeal from court of General sessions, Hew York county.</p> <p>Albin Fulda appeals from a conviction of practicing medicine without license.</p>

Two actions by Catharine T. Carpenter, widow of John D. Carpenter, deceased, against Ellen C. Commings and against Albert C. Carpenter and others, to set aside certain conveyances executed by John D. Carpenter as in fraud of the dower rights of plaintiff. Complaints dismissed, and plaintiff appeals.

Action by Mark Skepp against the New York Central & Hudson River Railroad Company for damages caused by fire from defendant’s locomotive. Defendant appeals from a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial.

Action to annul a marriage brought by Gustave Kuhn, by his guardian ad Utkin, Otto Kuhn, against Annie J. Kuhn. From an order directing plaintiff’s arrest and commitment for contempt of court, in case of his failure to pay certain arrears of alimony, he appeals.

Action by the Eighth Avenue Bailway Company against the mayor, etc., of New York to restrain defendants from interfering with plaintiff’s use of snow-plows for removing snow from their railroad tracks, and to restrain the enforcement of an ordinance to regulate the use of snow-plows and sweeping machines, etc. A preliminary injunction was granted, and defendants appeal.

Action by the Hydrogen Company of the United States against Henry G. Beatley. Defendant appeals from an order directing him to furnish a bill of particulars of certain matters alleged by way of counter-claim.

<p>Appeal from circuit court, Suffolk county.</p> <p>Action for trespass to real property by William J. Weeks against John F. Becken. Verdict and judgment for defendant, and plaintiff appeals.</p>