Volume 40 — New York Appellate Division Reports

Appeal by the defendants,, Frances E. Barker and another, as-surviving executors of and trustees under the last will and testament of Charles Barker, deceased, and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of January, 1899,. upon the decision, of the court rendered after a trial at the Kings ' County Special Term restraining the defendants from erecjting or ' maintaining…

Appeal by the defendant, Isaac 0. Hendrickson, from a judgment of the Municipal Court of the city of New York for the third -district of the borough of Queens in favor of the plaintiff.

. Appeal by the plaintiff, Thomas W. Radford, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 10th day of September, 1898, upon the decision of the court rendered after a trial at the Westchester Special Term sustaining the defendants’ demurrer to the complaint.

Appeal by the defendants, Lucy A. Littlejohn Leffingwell, individually and as sole executrix of DeWitt 0.

Appeal by John J. Findlay and George W. Cornelius, the respective defendants in the above-entitled actions, from judgments of the County Court of Queens county in favor of the plaintiff in such actions, entered in the office of the clerk of the county of Queens on the 15th day of November, 1898, upon the decision of the court rendered after a trial before the, court without a jury, the parties having waived their right to a jury trial.

Appeal by Jeremiah P. Robinson, individually, from so much of .-a decree of the Surrogate’s Court of the county of Kings, entered in' .-said Surrogate’s Court' on the 2d day of December, 1898, as disallowed and rejected his claim against the estate for the sum of $18,935 :and interest, and also from an order of the Surrogate’s Court of the •county-of Kings, entered in said Surrogate’s Court on the 7th day •of April, 1898, overruling said Jeremiah P. Robinson’s exceptions to…

Motion by the plaintiff, Edward Sexton, for a new trial upon a case containing exceptions,, ordered to be heard at the Ajppellate Division in the first instancé, upon the dismissal of the complaint by. direction of the court after a trial at the Kings County Trial Term.

Appeal .by the defendant, Hannah Western Thompson, from an order, of the Municipal Court of the city of New York, entered in the office of the clerk of said court on the 11th day of January, 1.899,. vacating a judgment of said court in favor of the defendant, granted upon the plaintiff’s default. - . ;

Appeal by R. Burnham Moffat, individually and as special guaidian for Charlotte Leech- and Robinson Leech, from so much of a decree of the Surrogate’s Court of Kings county in each’of the-.above-entitled proceedings, entered in said Surrogate’s Court' on the-2d day of December, 1898, as denies his application for anj allowance, out of the estate in addition to the taxable costs authorized by section 2561 of the Code of Civil Procedure, with notice of an intention to bring up…

A-ppeal by the plaintiff, David C. Porter, from- a judgment of the-Supreme Court in favor of the defendant, Julia S. Thom, entered in the office of the clerk of the county of Kings on the 30th day off December, 1898, upon the dismissal of the complaint by direction . of the court after a trial at the Kings County Trial Term, ¡and also-from an order entered in said clerk’s office on the 26tli day bf January, 1899, denying the plaintiff’s motion for a new trial made upon the…

Appeal by the defendant, Frank L. Tapscott, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of. Bichmond on the 31st day of October, ■ 1898, upon the verdict of a jury rendered by direction of the court.

<p> The liability of a member of an assessment accident, insurance association terminates with his membership. </p> <p>Where the by-laws oí an assessment accident insurance association, organized under chapter 175 oí the Laws of 1883, and transacting business under chapter 690 of the Laws of 1893, provide: “Members of this association may at any time resign, thereby relinquishing all claims upon, or privileges under, said association; provided, however, that all dues and assessments shall have been, paid to the date of the resignation,” a member of the association who terminates his membership, whether by resignation or otherwise, and who pays all premiums and assessments levied upon him up to that time, is not liable for the amount of an assessment subsequently levied by a receiver of the association, pursuant to an order of the court, to pay claims against the association which accrued during his membership.</p>

Appeal by the petitioner, Henry H. Lyman, as State ¡Commissioner of Excise, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of November, 1898, denying his application for an order revoking the liquor tax certificate issued by H. W. Michell, Special Deputy Commissioner of Excise ■for the county of Kings, to the Malcom Brewing Company.

Appeal by the defendant, Elizabeth' S. Webb, from a .judgment, of .the Supreme Court in favor of the plaintiff, entered in the office-of the clerk of the county of Orange on the 26th day of July, 1898, upon the decision of the court rendered after a trial at the Orange Trial Term, before the court without a jury, the parties having waived their right to a jury trial.

Appeal by the plaintiff, Lulu E. Walker, from a judgment of the 'Supreme Court in favor of the defendant, entered in the office of The clerk of the county of Kings on the 12th day of November, 1898, upon the decision of the court, rendered after a trial before 'the court without a jury at the Kings County Trial Term, the parties having waived their right to a jury trial.

Appeal by the defendants, Charles H. Moses, Henry B. Fanton and William L. Dowling, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19tli day of January, 1899, upon the report ■of a referee.

Appeal by the defendants, Emanuel S. Kahn and others, from a judgment of the Supreme Court in favor of the plaintiff,; entered in the office of the clerk of the county of Kings' on the 14th day of March, 1898, upon the verdict of a jury, and also fromhn order .entered in said clerk’s office on the 11th day of March, 1898, denying tlie defendants’ motion for a new trial.

Certiorari issued out of the Supreme Court and attested on the . lath day of December, 1898, directed to Bird S. Coler, as comptroller of the city of New York, commanding him to certify and return to the office of the clerk of the county of Kings all his proceedings had in relation- to the removal of the relator from his position as inspector in the bureau for the collection of city revenue and markets in the borough of Brooklyn.

Appeal by the defendant, Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of March, 1898, upon the decision of the court rendered after a trial at the Kings County Trial Term, the parties having waived their right to a trial by jury.

Appeal by Laura Brenton McCormick, as one of the testamentary guardians of Theodora Brenton Eliot McCormick, an infant, from an order of the Surrogate’s Court of Kings county, entered in said Surrogate’s Court on the 4th day of February, 1898, denying her application to vacate a prior order of the court making an annual allowance of $1,050, or so much thereof as should be necessary, for the support of the infant, or to modify the same by directing the other testamentary…

Appeal by the defendants, Josephine M. Heyward and Charles P. Heyward, from so much of a judgment of the Supreme Court in favor'of the plaintiffs, entered in the office of the clerk of the county of Queens on the 30th day of January, 1899, upon an alleged decision of the court, rendered after a trial at the Kings County Special Term, as adjudges “ that if the proceeds of such sale be insufficient to pay the amount so reported due to the plaintiffs, with interest and costs as…

Appeal by the plaintiff, James Gallagher, from an .order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of February, 1899, denying the plaintiff’s motion to continue a preliminary injunction theretofore granted in the action.

Appeal by the defendant, The Western Assurance Company of Toronto, Canada, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the' 17th day of October, 1898, resettling the case upon appeal, and also from judge’s orders made respectively on the 1st, 24th and 30th days of December, 1898, relating to such resettlement.

Appeal by the plaintiffs, Esther A. Hnlse and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Suffolk on the 16th day of January, 1899, upon the decision of the court, rendered after a trial at the Suffolk Trial Term before the court without a jury, dismissing the plaintiffs’ complaint upon the merits. The facts are stated in the opinion of Johnson, J.

Appeal by the defendant, John H. Murphy, and the claimant,. Frederick P. Forster, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 23d day of February, 1899, upon the report of a referee, directing the partition and sale of certain premises, and also from an order made at the Westchester Special Term and entered in the said clerk’s office on the 10th day of February, 1899, denying their motion to…

Appeal by the defendant, the Dennison Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of November, 1898, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 30th day of November, 1898, denying the defendant’s motion for a new trial made upon, the minutes.

Appeal by the plaintiff, John Devlin, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 23d day of February, 1899, denying the plaintiff’s motion to compel the defendant to deposit with the county treasurer- of Kings county a certain sum of money, the restitution of which had been ordered by the Appellate Division of the Supreme Court in the second judicial department, or in default…

Appeal by the plaintiff, Albertina H. Fowler, from a judgment of the Supreme Court in favor of the defendants, entered! in the office of the clerk of the county of Dutchess on the 22d day of August, 1898, upon the report, of a referee.

Appeal by the defendants Hanson S. Webster and Emma A. Webster from an order of the County Court of Kings county, ■entered in the office of the clerk' of the county of Kings on the 4th ■day of February, 1899, directing the issuance of a writ of assistance to place the purchaser at the foreclosure sale had in the above-entitled action in possession of the premises.

Appeal by Charles F. Gall from an order of the Surrogate’s Oourt of Kings county, entered in said Surrogate’s Court on the 9th day of January, 1899, denying his motion for leave to issue execution upon a judgment obtained by him against Amelia Gall, as administratrix of said Joseph Gall, deceased.

<p>Appeal by the defendant, James E. Dean, as executor, ¡etc., of Eliza Ann Crowther, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the qlerb of. the county of Dutchess on the 21st day of' November,. 1898, upon the decision of the court rendered after a trial at the Orange-Special Term</p>

Appeal by the plaintiffs, William Lanalian and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester oh the 21st day of May, 1898, upon the decision of the court rendered after a ■trial at the Westchester Special Term dismissing the plaintiffs’ complaint upon the merits.

Appeal by the plaintiffs, John Morris, Jr., and another, executors of John Morris, deceased, from a judgment of the Municipal. Court of the city of New York for the first district of the borough of Brooklyn in favor of the defendants, dismissing the verified complaint of the plaintiffs, with costs, on motion of the defendants, no pleadings on their behalf being interposed.

Appeal by the petitioner, Daniel W. Purdy, from a judgment of the Supreme Court in favor of William P. Driscoll, entered in the office of the clerk of the county of Westchester on the 14th day of ¡November, 1898, denying the petitioner’s application, and also from an order made at the Westchester Special Term and entered in said clerk’s office on the 14th day of ¡November, 1898, upon which said judgment was entered.

Appeal by Radcliffe Baldwin, a third party, examined in a proceeding instituted to discover property subject to an attachment,, issued in the above-entitled action, from an order of -the Supreme-Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 23d day of December, 1898, requiring him to produce certain books and papers before the referee.

Appeal by the petitioner, F. II. Lovell & Co., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 6th day of December, 1898, denying its motion for an order directing James II. Frothingham, as receiver of the Kings County Elevated Railway Company, to pay' the claim of the petitioner as a preferred claim, from the assets of the said railway company in the hands pf said receiver.

Appeal by the defendant, the Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, •entered in the office of the clerk of the county of Kings on the 13th day of October, 1898, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 21st day •of October, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Ruskton Peabody, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 23d day of January, 1899, denying the plaintiff’s motion for leave to serve a supplemental complaint.

<p>Bailment — liability of the bailee for the destruction of'thepn'operty—when negligence may be implied from the collapse of a wa/rehouse.</p> <p>Where a bailee accounts for his failure to return the bailor’s property by showing that it was lost or destroyed through accident or - crime, it is necessary for the bailor to prove that the bailee was negligent, in order to render him liable for the value of the goods.</p> <p>. Negligence on the part of the bailee may, in a proper case, be presumed from the mere happening of the accident, as where the bailee’s warehouse, in which the property is stored, collapses while repairs, necessitated by a fire, are being made.</p>

of the Supreme Court directing the appellant, Edmund G. Sutherland, late receiver of taxes of the -town of White Plains, to turn over the books and. papers of his office to the petitioner, his successor in office. The case contains no notice of appeal, but at the end thereof appears the following statement, signed by the attorneys for the respective parties: “Notice of appeal and notice of argument waived.”

<p>Appeal by the defendant, Louis Stoiber, as trustee of the trust attempted to be created by the fourth clause of- the first codicil to the last will and testament of Felix Stoiber, deceased, from a judgment of the Supreme Court in favor of the plaintiff and certain defendants, entered in the office of the clerk of the county of Kings on the 1st day of December, 1898, upon the decision of the court rendered after a trial at the Kings County Special Term, adjudging “ that the trust attempted to be created by the fourth clause of the first •codicil to the last will and testament of Felix Stoiber, deceased, for the benefit of his son Edward G. Stoiber, is invalid, and (that) the revocation of the devises and bequests to him contained in the seventh ■clause of said will attempted to be made in and by said fourth clause of said codicil is void, and (that) the provisions made for said Edward G. Stoiber in and by the said seventh clause of said will are valid and remain in full force and effect, and (that) the share and interest in the residuary estate of said Felix Stoiber, deceased, which he gave to his said son Edward G. Stoiber, in and by said seventh clause of said will, to wit: One equal undivided fifth part of his residuary estate (except the interest of the said Edward G. Stoiber in the proceeds of the premises known as No. 128 Essex street, in "the city of New York, which had been theretofore sold) passed to his brother, the plaintiff, Gustavus II. Stoiber, subject to the execution of the trust created in said seventh clause by virtue of the deed from said Edward G. Stoiber and wife to said Gustavus IT. Stoiber, •dated October 31. 1891.”</p>

Appeal by the plaintiff, John 0. James, from, a judgment of the-.County Court of Putnam county in favor of the defendants, entered in the office of the clerk of the county of Putnam on the 4th day of’ December, 1897, reversing a judgment in favor of the plaintiff: rendered by a justice of the peace.

Appeal dj the defendant, James Gordon Bennett, from a judgment of the. Supreme Court in favor of the plaintiff, entered in the office of the' clerk of the county of Richmond on the 29th day of October, 1898, on the verdict of a jury for $2,000, and also from.so much of an order .entered in said clerk’s office on the 31st day of-October, 1898, as denies the defendant’s motion for a new trial made upon the minutes.

-. Appeal by Josiah J. White, as guardian of the property of Fredric Hall White, and Frederic Hall White, an infant over the age of fourteen years, by Metcalf B. Hatch, his guardian ad litem, from an order of the Supreme Court, made at the Kings County Special Term bearing date the 21st day of December, 1898, and entered in the office of the clerk of the county of Kings, removing said Josiah J. White as guardian of the property of Frederic Hall White and discharging'the…

Appeal by the defendant, The Eastchester Gas Light Company, from a judgment of the Supreme Court in favor of. the plaintiff, entered in the office of the clerk of the county of Westchester on the 12th day of October, 1898, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendants, Maurice L. Muhleman and others, from an order of the Supreme Court, made at the Kings County-Special Term and entered in the office of the clerk of the county of Kings on the 24th day of March, 1899, continuing pendente lite a temporary injunction restraining the defendants from making a lease of the entire property of the defendant the Pande Basin Gold Placer Company.

Appeal by the plaintiff, Emil Greeff, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the-office of the clerk of the county of New York-on the 31st day of August, 1898, upon • the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the complaint. This appeal was transferred from the first department to the second department.

Appeal by the plaintiff, Patrick McCann, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 6th day of May, 1897, upon the report of a referee dismissing the complaint. This appeal was transferred, from the first department to the ■second department.

<p>Appeal by the defendant, the Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of October, 1898, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 25th day of October, 1898, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plantiff, Thomas Roulston, from, a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 23d day of December, 1898, upon the decision of the court, rendered after a trial before the court without a jury, on an agreed statement of facts.

Appeal by the defendant, John Welz, from a judgment of the County Court of Kings, county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on'the 9th day of February, 1899, upon the decision of the court rendered after a trial before the court without a jury.

Appeal by the defendant, George F. Brown, from a judgment off the Municipal Court of the city of New York, borough of Brooklyn,, third district, in favor of the plaintiff, entered in the office of the clerk of said court on the 4th day of February, 1899.

Appeal by the defendant, Alfred H. Cronk, from a judgment of the County Court of Rockland county in favor of- the plaintiff, rendered on the 15th day of June, 1898, convicting the defendant of the crime of burglary in the third degree and grand larceny in the second degree.

'Appeal by the plaintiff, Charles A. Bloomingdale, from a judgment of the Supreme Court in favor of the defendants, entered in ■the office of the clerk of the county of Kings on the 6th day of September, 1898, upon .the report of a referee.

<p>Appeal by the plaintiff, Kate Cunningham, from an order of the Municipal Court of the city of New York, borough of Brooklyn, first district, bearing' _date the 18th dpy of March, 1899, and entered in the office of the clerk of said court, granting the defendant’s motion to set aside a verdict previously rendered in favor of the plaintiff, and for a new trial.</p>

Appeal by the plaintiff, Henry L. Wieland, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 5th day of January, 1898, granting the defendant’s motion to set aside a verdict previously rendered in favor of the plaintiff and directing a new trial.

Appeal by the relator, J. Warren Lawton, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 12th day of January, 1899, denying the relator’s motion for a peremptory writ of mandamus commanding the- defendants to cause to be removed the bridge and bridge abutments and steps at and upon Centre' avenue where said avenue crosses the tracks of the New York, New Haven and Hartford…

<p>Presentation /or payment and protest of a series of notes, all of which become due on the non-payment of one—rights of a foreign corpoi'ationnoi homing a certificate authorizing it to do business in the State of New Yorlc — assignment to an attorney with intent to have him sue on the note.</p> <p>A compromise agreement entered into by the creditors of a corporation provided that each creditor was to accept in payment of his claim, notes of the corporation indorsed by the president and vice-president thereof, payable three, six, nine and twelve months after date, and concluded with these words: “ This agreement is made by us (the creditors) and each of us upon the understanding that if default be made in the payment of any of the notes constituting a particular series as above provided, all notes of subsequent series held .by us, and all portion of our several claims then unpaid, shall be due and payable immediately, and the making of this agreement shall in no way prejudice our right to the immediate enforcement of our said claims.”</p> <p>Seld, that the contract was to be construed as an agreement that the dishonor and. notice of dishonor of the first note was to have the same effect upon the makers- and indorsers as the dishonor and notice of dishonor of all the notes, if duly and seasonably presented for payment, would have had; or as an agreement, that after the dishonor and the service of notice of dishonor of the first-note, the payee was to have a reasonable time to present the other notes for payment, and that, if they were then dishonored, notice of non-payment, if' promptly given, should he sufficient to charge the indorsers;</p> <p>That where the first of a series of notes given to a creditor of the corporation! under such agreement became due on March 17, 1898, and not being paiá was-protested for non-payment and notice thereof was seasonably given to theindorsers, and such creditor not learning of the dishonor until March 19, 1898, which was Saturday, and being unable to get to the place where the notes were-payable before the close of business hours on that day, presented the other three notes for payment on the following Monday, when they were protested for " non-payment, the maker and indorsers of the notes were liable;</p> <p>That the fact that a creditor to whom the notes were delivered was a foreign corporation having no certificate authorizing it to do business in the State of' New York as required by section 15 of chapter 687 of the Laws of 1893, did not preclude its assignee of the notes fi-orn maintaining an action against the maker and indorsers of the notes to recover the amount thereof, where it did not appear that the creditor (the foreign corporation) was doing business in the State of New York within the meaning of the statutory prohibition;</p> <p>That the fact that the corporate creditor had first assigned the notes to an attorney who, after bringing in his name, and discontinuing, an action thereon, retransferred them to the creditor, did not affect the title of the plaintiff, who derived, his title directly from the creditor, notwithstanding the fact that the assignment to the attorney was claimed to be such, as is forbidden by section 78 of the Code of Civil Procedure, prohibiting- an- attorney or counselor from buying any promissory note or other chose in action with the intent and purpose of bringing a suit thereon.</p>

• Appeal by the plaintiff, Augustin Daly, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Eew York on the 24th day of September, 1897, upon the decision of the court rendered after a trial at the New York Special Term. - This appeal was transferred from the first department to the second department.. -

Appeal by Ralph Lipsohitz, one of the purchasers at the partition sale had iu the above-entitled action, from an order of the County •Court of Kings county, entered in the office of the clerk of the •county of Kings on the 20tli day of January, 1899, requiring the said purchasers to complete théir purchase and take a title founded solely on a claim of adverse possession to a portion of the premises sold.

■ Appeal by the defendant, Arthur E. E. Laning, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 10th day of December, 1898, upon the decision of the court rendered after a trial at the Queens County Special Term overruling the defendant’s demurrer to the complaint.

Appeal by the defendants, William H. Martens and others, as •executors of and trustees under the last will and testament of Gerd Martens, deceased, from a judgment of the Supreme Court in favor -of the plaintiff, entered in the office of the cleric of the county of Westchester on the 31st day of October,' 1898, upon the verdict of ■a jury, and also from an order entered in said cleric’s office on the 4th day of November, 1898, denying the defendants’ motion for a .new trial…

Appeal by John Devlin, defendant in the first above-entitled . action and plaintiff in the second above-entitled action, from an order of the Supreme Court, made at the Rings County Special Term and entered in the office of the clerk of the county of Rings on the 17th day of March, 1899, confirming the report of a referee and requiring the appellant to pay to Horace Graves,- his attorney, $5,250 as a condition of allowing him to obtain a substitution of attorneys, and also…

Appeal by the petitioner, Ramon L. Dority, from an order of the Surrogate’s Court of Kings county, entered in said Surrogate’s Court on the 4th day of January, 1899, denying his motion to strike out -the answers interposed to his petition by Charles E. Dority and James S'.

Appeal by the defendant, the Staten Island Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of January, 1899, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 9th day of January, 1899, denying the defendant’s motion for a new trial made upon the minutes

Appeal by the plaintiffs, John P. Waldmuller and another, front a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 29th day of June, 1898, upon the decision of the court rendered after a trial at the Kings County Special Term.

<p>•Appeal by the plaintiff,'Joseph. W. Balet, from an order of -the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 25th day ■of July, 1898, dismissing the complaint “ on the ground that the plaintiff has not proved employment or ratification thereof,” and directing the exceptions to be heard at the Appellate Division in the first instance.</p> <p>This appeal was transferred from the first department to the second department.</p>

<p>Appeal by Frederick Beltz, as substituted trustee under the last will and testament of Sarah FT. Eagleton, deceased, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the" clerk of the county of Kings on the 19th day of December, 1898, denying his motion to/amend the final judgment entered in the action by inserting a provision directing the referee to pay to him a certain sum alleged to be due him under a decree of the Surrogate’s Court.</p>

<p>■ Appeal by the plaintiff, Charles A. Terwilliger, from a judgment of the County Court of Orange county in favor of the defendant, entered in the office of the clerk of the county of Orange on the 13tli day of July, 1898, reversing the judgment of a justice of the peace rendered in favor of the plaintiff.</p>

Appeal by the plaintiffs, Frank Holder and others, from an interlocutory judgment of the Supreme Court in favor of the defendants, Charles Walthew and John Harvey, as executors, etc., of Charles Holder, deceased, and others, entered in the office of the clerk of the county of Westchester on the 21st day of December,. 1898, upon the decision of the court, rendered after a trial at the Westchester Special Term, sustaining said defendants’ demurrer to the complaint.

Appeal by the plaintiff, Fred E. Guy, from a judgment, of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 7th day of Uovemher, 1898, upon the decision of the court, rendered after a trial at the Westchester Special Term, dismissing the complaint upon the merits.

Appeal by the defendants, William T. Black, individually,. and William T. Black and James Appleby,, as administrators - with the will annexed of William Appleby, deceased, and others, from an interlocutory judgment of the Supreme Court in favor of the -plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 4th day of March, 1899, upon the report of a referee.

Appeal by the plaintiff, the Atlantic Construction Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 27th day of January, 1899, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by Hector M. Hitchings, as assignee for the benefit of creditors of Orlo Atwood & Sons, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 9th day of August, T898, confirming the report of a referee appointed to hear and determine the validity of a claim against the assigned estate.

Appeal by the plaintiff, Henry D. McCord, from a judgment of the Supreme Court in favor of the defendant, Ida M. McCord, individually, entered in the office of the clerk of the county of New ,York on the 23d day of .November, 1898, upon the decision of the court rendered after a trial at the New York Special Term, awarding to said defendant a certain sum ($9,823.34) payable from the gratuity fund of the New York Produce Exchange.

Motion to confirm the report of the commissioners of estimate appointed in the above-entitled proceeding. The commissioners were appointed under chapter 56 of the Laws of 1894.

. Appeal by the plaintiff, Maurice J. Sullivan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of March, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

: Appeal by the defendants, Edgar Lockwood, as trustee, and others, from a judgment of. the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Néw York on the 23d day of April, 1898, upon the report of a referee, and also' from an order made at the New York Special Term, and entered in said clerk’s office on the 20th day of April, 1898, granting the plaintiff an extra allowance of $200.

Appeal by the plaintiff, James Day, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of Juné, 1898, upon the dismissal of the complaint by direction of the court -after a trial at the New York Trial Term.

<p> Wegligence—relative rights of a street car and a wagon in a public street—requests to the court to charge. </p> <p>While a street car has a right of way superior to that of other vehicles over the space included between its tracks, except at a crossing; it has not an exclusive right therein.</p> <p>Where the driver of a wagon, desiring to cross a street car track, approaches the •track at such a distance'from an approaching car that he has reasonable ground to suppose that he may cross in safety, it is the duty of the car driver to afford him a reasonable opportunity to do so, although the car driver may be obliged to check the speed of his car or to stop it, and the driver of the wagon may properly assume that the car driver will perform his duty.</p> <p>■In an action brought to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the latter, who was driving a heavily-laden truck northerly along the east side of an avenue upon which the defendant operated a street surface railroad, desired to turn westerly into a side street; that for this purpose he started from a point, about twenty-seven feet from the intersection of the side street, to drive diagonally across the avenue; that when the truck reached the south-bound track of the railroad it was struck by one of the defendant’s south-bound horse cars, the. intestate receiving injuries which resulted in*his death. There was- evidence tending to show that when the intestate, Whose horses were walking,, reached the south-bound track the car.in question was about fifty feet away, and that the driver of the car and the intestate were in plain view, of each other and that there would have been no difficulty in stopping the car or in checking its progress so as to avoid the collision.</p> <p>Held, that upon the evidence the question whether the driver of the car was negligent, and whether the intestate was free from contributory negligence, was for the jury, and that a verdict in favor of the plaintiff should not be disturbed.</p> <p>A judge presiding at a jury trial is not bound to repeat, in the language suggested to him by counsel, a proposition which he has already charged in a different form.</p> <p>A counsel making a réquest to charge is bound, at bis peril, to be correct in,his statements; if he states a proposition of law too broadly, or assumes as a fact anything which is not a fact, or which may not be fairly inferred from the testimony, the court may properly decline his request.</p> <p>Van Brunt, P. J., and McLaughlin, J., dissented.</p>

Motion by the plaintiffs, Fred. Schumacher and another, for a new trial upon a case containing exceptions, ordered to be beard at the Appellate Division in the first instance upon the . dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendants, The Tribune Association and'John A. Glennon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of November, 1893, upon the verdict of a jury for $5,000, and also from orders entered in said clerk’s office on the 29th day of November, 1898, and the 2d day of December, 1898, respectively, denying motions made on behalf of each of said defendants for a new trial…

Appeal by The Mayor, Aldermen and Commonalty of the City of New York, the defendant in each of the above-entitled actions, from' an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county- of New York on the 23d day of November, 1898, denying the defendant’s motion to set aside judgments entered in each of said actions in favor of the plaintiffs, upon offers of judgment made by Francis M. Scott, corporation counsel.

Cross-appeals by the plaintiff, Mary J. Lewis, and by the defendants, The New York and Harlem Railroad Company and The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court, entered in the office of the clerk of the= County of New York on the 26th day of October, 1898, upon the-decision of the court rendered after a trial at the New York Special Term awarding damages to the plaintiff and granting an injunction, against the said defendants.

Appeal by the defendants, Leonard R. Kerr and others, from a final judgment of the Supreme. Court in favor of the plaintiff- and certain of the defendants, entered in the office of the cleric of the; county of Hew York on the 29th day of October, Í898, upon the report of a referee appointed pursuant to an interlocutory judgment heretofore entered in the action.

Appeal by the plaintiff, Charles P. Stevenson, from a judgment of the Supreme Court in favor of the. defendant, entered in the office of .the clerk of the county of New York on the 18th day of June, 1898, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term.

Appeal by the defendant, Herman Hubbard, Jr., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 22d day of Hovembeiy 1898, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, Frederick S. Magnus, from an order of the Supreme Court, made at the New York Special Term and. entered in the office of the clerk of the county of New York bn the 5th day of April, 1899, requiring the said defendant to withdraw a demurrer interposed by him to the plaintiff’s complaint, upon condition that the plaintiff pay to him or to his attorney ten dollars-costs, and at the same time serve a consent to discontinue the action as against him.

Appeal by the defendants, George B. Hopkins and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of March, .1899, denying their motion for an injunction restraining the plaintiff from disposing of the assets and property of the firm of Kennett, Hopkins & Co.

Appeal by the defendant, Louis H. Blakeman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 27th day of December, 1898, upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by the defendant, The Long Island- Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, •entered in the office of the cleric of the county of New York on the 22d day of November, 1898, upon the verdict of a jury for $13,500, .and also from an order entered in said clerk’s office on the 25th day of November, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Home Insurance Company of the City of New York, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 24th day of December, 1898, upon the verdict of a jury rendered by direction of the court; also an appeal by the plaintiffs from so much of said judgment as refuses to allow them their counsel fees and costs.

Appeal by the plaintiff, Charles S. Clsp’k, from an order of the Supreme Court, made at the New-York Special Term and entered in the office of the clerk of the county of New York on the 9th day of February, 1899, denying the plaintiff’s motion for an injunction restraining the defendant from transferring or making any disposition of its property during the pendency of the action, and for the appointment of a receiver pendente lite.

Appeal by the plaintiff, Edward Keyes, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 3d day of March, 1899, . upon the decision of the court rendered after a trial before the court . without a jury, at the New York Trial Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, William Rhall, an infant, by John Rhall, his, guardian acl litem, from a judgment of the Supreme Court in favor of the' defendant, entered in the office of the clerk of the county of New York on the 23d day of March, 1898, upon the dismissal of the complaint upon the pleadings and upon the opening of counsel at a trial at the New York Trial Term; also, from an order entered in said clerk’s office on the 23d day of May, 1898, denying the plaintiff’s…

Appeal by the defendant, John T. Rowland, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 5th day of December, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of December, 1898, denying the defendant’s motion for a new trial made upon the minutes. '

Appeal by the defendant, Charles Buek, from an order of the '■Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the county of Hew York on the 21st day of Hóvember, T898, granting the plaintiff’s motion to set aside the verdict of a jury on the first cause of action alleged in the complaint and granting a new trial with respect to such cause of action.

Appeal by the plaintiff, Simon Davis, from a judgment of the Supreme Court in favor of the defendant, Congregation Beth Tephila Israel, entered in the office of the clerk of the county of New York on the 18th day of November, 1898, upon the decision of the court rendered after a trial at the New York Special Term, dismissing the complaint upon the. merits.

Appeal by Joseph Ullmann, a creditor, from so much of an order of the Supreme Court, made at the New York Special T.erm and entered in the office of the clerk of the county of New York on the lith day of January, 1899, as overrules the exceptions filed by him to the report of a referee appointed to pass upon his accounts, and confirms said report.

Appeal by the defendants, George Scott and others, from a judgment of the Supreme Court in favor of -the plaintiff, entered in the office of the clerk of the county of Hew York on the 2d day of December, 1898, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the' 30th day of December, 1898, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Lena Kister, an infant, by Barnett Kister,. her guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of November, 1898, upon the dismissal of her complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 14th day of November, 1898, denying the plaintiff’s motion for…

-Appeal by the defendant, Clarence Tucker, from an order of' the Supreme Court, made at the New York Special Term and. entered. in the office of the clerk of the county of New York on the llth ■day of March, 1899, allowing the plaintiff to serve an amended complaint upon terms.

Appeal by the defendant, Carrie A. Lancaster, from an order of the Supreme Court, made at the New York Special Term aiid entered in the office of the clerk of the county of New York on the 7th day of April, 1899, granting the plaintiffs’ motion for the appointment of a receiver of the rents and profits of the premises - which are the subject of a mortgage to foreclose which the action is brought.

<p> Conveyance of premises under an. agreement by the grantee to pay a certain sum to a third person^ neither a vendor’s lien nor an implied trust is created. </p> <p>The complaint in an action alleged that the plaintiff’s grandfather, being desirous-, of disposing of his property before his death, which was then imminent, conveyed certain premises to the defendant, his wife, upon her agreement, which was a part of the consideration for the conveyance, to pay certain sums to the-plaintiff and another grandchild of the grantor; that after the grantor’s death the defendant refused to fulfill her promise to pay said sum to the plaintiff, and that the defendant had no property other than that thus conveyed to her, nor means out of which to pay said sum. Judgment was demanded that said sum-be declared a lien upon the premises conveyed to the defendant, as part of the unpaid purchase price thereof, and that the premises, be sold.</p> <p>Held, that the plaintiff was not entitled to enforce a vendor’s lien upon the premises;</p> <p>That the agreement set up in the complaint did not create an implied trust in behalf of the grandchildren which equity would impress upon the property, as there was no undertaking upon the part of the defendant to apply any part of such property to the use and benefit of the grandchildren;</p> <p>That the agreement created, if anything, a mere contract obligation on the part of the defendant which could only be enforced in the way such obligations are usually enforced.</p> <p>Patterson, J., dissented.</p>

<p>Appeal by the plaintiff, Mary L. Goldstein, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 22d day of December, 1896, upon the decision of the court rendered after a trial at the New York Special Term dismissing the plaintiff’s complaint upon the merits.</p>

<p>Appeal by The City of Hew York, the successor of The Mayor, Aldermen and Commonalty of the. City of Hew York, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 24th day of February, 1899, confirming the report of commissioners of estimate and assessment appointed in the proceeding.</p> <p>The proceeding was commenced under a resolution of the board of street opening and improvement, adopted July 5, 1895, the board acting under the provisions of the Consolidation Act (Laws of 1882, chaj). 410, as amd. by Laws of 1893, chap. 660) which was then in force. This resolution directed-the counsel to the corpora-, tian to take the necessary steps in the name of the Mayor, Aldermen and Commonalty of the City of Hew York, to acquire title to the lands required for the purpose of opening and extending East One Hundred and Sixty-ninth street from Boscobel avenue to Jerome avenue, and directed that the entire cost and expense of said proceeding should be assessed upon the property deemed to be benefited thereby.</p> <p>On April 9, 1896, the board adopted another resolution directing that on the 16th day of September, 1896, the title to the lands so required to be taken for such purpose should be vested in the Mayor, Aldermen and Commonalty of the City of Hew York.</p> <p>The commissioners, having been duly appointed and having qualified, and having viewed the property and taken'all the testimony presented to them on behalf of the property owners and on behalf of the city, prepared their preliminary abstracts of estimate and assessment and the same were duly filed upon the 22d day of December, 1897. Upon the same day, notice was duly published in the Qity Record of the filing of this preliminary abstract and that the commissioners would meet to hear objections thereto oil the 24th day of January, 1898, and that their report would be presented for confirmation on the 28th day of February, 1898. This hearing was given to numerous objectors, and upon the 4th day of November, 1898, the commissioners signed their final report, which was presented to the court below at Special Term for confirmation on the 5th day of December, 1898. It was confirmed by the order appealed from, which was entered upon the 24th day of February, 1899. The city is the only appellant.</p>

<p>Appeal by the defendant, George Shrady, from a judgment of the Court of General Sessions of the Peace held in and for the city and county of Hew York .in favor of the relator, entered in the office of the clerk of said court on the 15th day of September, 1898, affirming a judgment made by a magistrate of the city of Pfew York convicting said defendant of abandoning his wife, and ■directing him to pay the sum of eight dollars per week for her support.</p>

Appeal by the plaintiff, Adolph M. Bendheim, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of March, 1899, upon the verdict of a jury rendered by direction of .the court, and also from an order entered in said clerk’s office on the 9th day of March, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Echvin A. Ames, "from an order of the Supreme' Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 11th. day of February, 1899, vacating a judgment of the Supreme Court in favor of the plaintiff, entered in said clerk’s office on the 13th day of January, 1899, upon the verdict of a jury, setting aside said verdict and granting the defendant’s motion for" a new trial made upon the minutes.</p>

<p>Appeal by the plaintiffs, George B. Post, Jr., and others, and by the defendant J. Jaffred Butler, as temporary administrator, etc., of Joseph Richardson, deceased, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 30th day of March, 1899, denying the plaintiffs’ motion for an injunction restraining the defendant Emmett from proceeding with two suits which she had brought against the plaintiffs to recover certain moneys and securities, and for an order allowing the plaintiffs to pay the moneys into court.</p>

Appeal by William J. Morgan, as Comptroller of the State of Hew York, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the -county of Hew York on the 2d day ef March, 1899, vacating an order made at the Hew York Special Term bearing date the 12th day of October,. 1898, directing a reappraisal of the., estafe • of Elizabeth H. Smith, deceased.

<p>Appeal by the plaintiff, John J. McOunney, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 11th day of March, 1899, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term dismissing the plaintiff’s complaint.</p>

<p>Appeal by the plaintiffs, Gerard B. Werner and another, infants, by Sophie Werner, guardian acl litem, from' an order of the Supreme donrt, made at the New York Special Term and entered in the ¡office of the clerk of the county of New York on the 17th day" of April, 1899, as resettled by an order entered in said, clerk’s office on the 20th day of April, 1899, requiring the plaintiffs to furnish the defendant, The Franklin National Bank of the city of New York, with a bill of particulars.</p>

<p>Appeal by the plaintiff, Robert B. Van .Vl.eclc, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of June, 1897, upon the report of a referee.</p>

<p>Slander — allegations in the answer prejudicial to the plaintiff’s character — when they ham no hearing on the alleged slanderous statements they will he stricken ' out.</p> <p>Where a pleading contains irrelevant allegations embracing charges of a criminal nature against a party, or charges necessarily prejudicial to his character and reputation, the party against whom the charges are made will be considered aggrieved by them and the court will .strike them out upon his motion.</p> <p>The answer interposed in an action for slander, after alleging that the plaintiff had a wife who bad separated from him,, and who was supported by his father, averred that he lived with a woman, commonly called his wife, and with certain of her relatives. It further alleged, in mitigation, that the slanderous words were spoken during an altercation which took place at the plaintiff’s residence, whither the defendant had gone to receive.payment of a bill for . services rendered to the plaintiff, in which both parties lost their temper and used harsh language towards each other.</p> <p>Held, that as it did not appear that the relations existing between the plaintiff and the persons who resided with him had any bearing on the altercation, the allegations concerning them should be stricken' out.</p>

Appeal by the defendant,. T. Fraser Buchanan, as administrator,, etc., of Peter D. Buchanan, deceased, from, a judgment of the-Supreme Court in favor of the plaintiffs, entered in • the office of the clerk of the county of New York on the 23d day of March, 1899, upon the decision of the' court rendered after a trial before, the court without a jury at the New York Trial Term.

Appeal by the plaintiff, James L. Wells, as trustee in bankruptcy ■ of Russell H. Hoadley and Chester 0. Munroe, bankrupts, from an.. order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York, on the 18th day of April, 1899, granting the defendant’s motion foían order substituting The Tropical Trading and Transport Company (Limited) and Minor Cooper Keith as defendants- in its place ancL stead. .

Appeal by the plaintiff, Bernard Denenfeld, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county óf New York on the 15th day of February, 1897, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term. After the entry of the judgment appealed from, Thomas 0.

<p>■Glaim upon a promissory note when merged in a judgment — under what circumstances the holder of the note cannot successfully assert that it was induced by misrepresentations and fraud to enter the judgment.</p> <p>A creditor of a corporation, upon being informed by its president that the corporation had executed a mortgage to secure certain- notes made .by it, including one held by the creditor; that" the assets were sufficient to pay the preferred claims, and that it would be advisable for the creditor to enter judgment upon its claim, authorized the entry of judgment accordingly, and a few days after-wards wrote that, before proceeding further^ it would like to know what advantage it derived from the judgment, and requested a copy of the mortgage, which was sent to it. Subsequently, in an action brought on behalf of the mortgagees, a receiver of the corporation was appointed, and the creditor, upon being notified to do so by the attorneys for the corporation, sent a representative to protect its interest. Thereafter the mortgaged property was sold, the proceeds of the sale being insufficient to satisfy such creditor’s claim.</p> <p>In an action upon the note; brought by the assignee thereof, the corporation interposed an answer alleging that the note had been merged in the judgment.</p> <p>Held, that the assignee could not avoid the effect of the judgment by asserting that, it was entered upon the faith of false representations made by the president of the corporation to the effect that the mortgaged property would be sufficient to pay the preferred claims in full, and that he would see that the creditor was protected—-the statement of the president as to the advantage to be derived under the mortgage being not as to a present fact but of future expectation, and there being no evidence that it was intentionally false, or that there had been bad faith on the part of the attorneys;</p> <p>That as the creditor had a copy of the mortgage, and had sent a representative ■who had an opportunity to ascertain all the facts connected with the mortgage and entry of judgment, it was called upon to make some disclaimer or take some positive action, if it intended to subsequently assert that it had been ■ overreached or defrauded.</p>

Appeal hy the plaintiffs, John G. Walsh and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 12-th day of January, 1899, upon the dismissal of the complaint hy direction of the court after a trial at the Hew York Trial Term.

<p>JHasement — conveyance of land running along an unopened and uncondemned street as laid out on a city map-—it does not confer an easement on ther grantee.</p> <p>A conveyance executed at a time when Broolc avenue had been laid out on the map of the city of New York, but before any steps had been taken to condemn the land within its boundaries, or to open the street for public use, which described the land conveyed as running 100 feet more or less to the southeasterly side or line of Brook avenue, as laid out by the department of public parks of the city of New York; thence northeasterly along said southeasterly side of Brook avenue 25 feet, did not confer on the grantee an easement in the land designated on the map as Brook avenue, where, at the time the conveyance was executed, the property conveyed fronted upon an existing public street, from which the grantee had access to the property conveyed.</p> <p>Semble, that no greater covenant could be implied from the conveyance than that when Brook avenue should be opened by .the proper city authorities the land conveyed.should abut thereon.</p>

Appeal by the plaintiff, William H. Eckert, from an interlocutory judgment of the Supremo Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 28th day of September, 1898, upon the decision of the court rendered after a trial at the New York Trial Term overruling the plaintiff’s demurrer to a counterclaim contained in the defendant’s answer.

Appeal by the defendants, Arthur A. Waterman and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of February, Í899, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendants’ demurrer to the plaintiff’s amended complaint.

Appeal by the defendant, Joseph W. Kay, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of ISTew York on the 13th day of March, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of March, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John H. Seward, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 12th day of August,, 1898, upon the decision of the court rendered after a trial before the court and a jury at the Broome Trial Term.

Appeal by the plaintiff, Herbert F. Lawton, from a judgment of the County Court of -Saratoga county in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 26th day of July, 1897, reversing a judgment in favor of the plaintiff rendered by a justice of the peace, and also from an order made by the County Court of Saratoga county upon which such judgment was entered.

Appeal by the defendant, The Burden Iron Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 20th day of October, 1898, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 25th day of October, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, the Chenango Valley Savings Bank, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of Broome' ón the 12th day of December, 1898, upon the decision of the court rendered after a trial at the Broome Special Term, as adjudges that the plaintiff’s right to. preference as a creditor of the Merchants’ Bank is limited to $25,000,. being an amount equal to twenty-five per cent of the paid-up capital Of said…

Appeal by the plaintiff, Edna A. Goss, from an order of the County Court of Clinton county, entered in the office of the clerk of the county of Clinton on the 3d day of October, 1898, granting the. defendant’s motion to dismiss an appeal taken by the plaintiff to the County Court of Clinton county from a judgment in favor of the defendant rendered by a justice of the peace.

Certiorari issued out of the Supreme Court and attested on the 5th day of October, 1898, directed to the Board of Railroad Commissioners of the State of New York and the individuals composing the said board, commanding them to certify and return to the office of the clerk of the county of '¡Mbany the proceedings had before such board upon an application made in the name of the Goshen Railroad Company for a certificate under section 59 of the-Railroad Law.

Appeal by the defendants, Marvin D. Wheeler and others, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 6th day of August, 1898, upon the report of a referee.

Appeal by the defendant, Alonzo Gorham, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the cleric of the county of Albany on the 27th day of May, 1898, denying the defendant’s motion to confirm the report of a referee appointed in an action for an absolute divorce.

<p>Appeal by the defendant, The City of Johnstown, from an interlocutory judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of Fulton on the 18th clay of January, 1899, upon the decision of the court rendered after a trial at the Fulton Special Term overruling the defendant’s-demurrer to the plaintiff’s complaint.</p>

Appeal by the defendant, Addison E. Dederiek, as assessor of the city of Kingston, from an order of the Supreme Court, made ut the Greene Special Term, and entered in the office of the clerk of the county of Greene on the 2d day of November, 1898, striking from the assessment roll of the city of Kingston an assessment of ^125,000 for personal property, levied against the relator, upon the ground that he was a non-resident of the city of Kingston.

Appeal by the defendant, Alonzo B. Coons, as executor, etc., of Avery Horton, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schoharie on the 10th day of August, 1898, upon the report of a referee.

Appeal by the plaintiff, James B. Connelly, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rensselaer on the 19th day of September, 1898, upon the decision of the court rendered after a trial before the court without a jury at the Rensselaer Trial Term dismissing the complaint upon the merits.

<p>Appeal by the plaintiff, Joseph H. Pierce, from a judgment of the Supreme Court in favor of the defendant, entered in the office •of the clerk of the county of Chemung on the 4th day of May, 1894, upon the verdict of a jury rendered after a trial at the Chemung Circuit, and also from an order entered in said clerk’s office on the 4th day of May, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.</p> <p>The original defendant was William H. Yermilyea, but he having died subsequent to the entry of the judgment, the ancillary ■administrator was substituted in his place.</p> <p>The plaintiff, in his complaint, claimed to recover the value of •services performed in making preliminary drawings and plans for a building, under an employment by the defendant. The latter, for ■answer to the complaint, interposed a general denial.</p> <p>On the trial, the evidence introduced by the parties authorized a finding by the jury that the plaintiff, an architect, was employed on Thursday, the 30th of October, 1890, by the defendant at Elmira, F. Y., to make preliminary drawings and plans for a hotel at Oaines, Pennsylvania; that thereupon the plaintiff at once comjnenced making said drawings and plans, completed the same, and that the value, of the work done by him was seventy-five dollars.</p> <p>The defendant, ag a witness on the trial, denied that he authorized the plaintiff to prepare plans and drawings, and also produced evidence tending to show that on the Monday following the day when it was claimed the contract was made, he countermanded the order, if any was, in fact, given.</p> <p>The learned trial judge, after instructing the jury that the first question to be determined ivas whether the defendant employed the plaintiff, as claimed, used the following language: “'Now, gentlemen of the jury, if he did, then the original contract was made, and for it this plaintiff can recover unless the order was rescinded upon the Monday following. So the second question for you to determine is: Was this order rescinded, if one was made, on the Monday following? If it was, this plaintiff cannot recover in this case,, because a man has a right to go into the office and tell any one in apparent charge of the office that he need do no more work upon the contract for which he was employed. So you are to determine' whether the contract was made first, and, second, was so rescinded. If this contract was made, and was rescinded, the plaintiff cannot recover. * * * Plaintiff’s counsel: We except to the charge-that if the contract was rescinded the plaintiff cannot recover. And we ask your honor to charge that if the plan had been drawn before-any attempt was made to rescind the contract, that the rescission of the contract could have no effect. The court: That would be so, but there is no evidence in this case upon which I can submit that, question; that it had been drawn before the time of the claimed rescission. Exception taken by plaintiff’s counsel, not only to the= refusal to charge, but also to what the court did charge.”</p>

Appeal by the defendant, the Southern Tier Masonic Relief Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 17th day of October, 1898, upon the decision of the court rendered after a trial before the court without a jury at the Clinton Trial Term.

Appeal by the defendant, Elizabeth Schroeder, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 8th day of October, 1898, upon the verdict of a jury

Appeal by the defendant, The Town of Shawangunk, from a-judgment of the Supreme Oourt in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 11th day of October, 1898, upon the verdict of a jury for $10,000, and also-from an order entered in said clerk’s office on the 15th day of Octo-. her, 1898, denying the defendant’s motion for a new trial made, upon the minutes.

Appeal by the defendant, Charlotte Prefontaine, from an order of the Supreme Court, made at the Albany Special Term, and ■entered in the office of the clerk of the co.unty of Rensselaer on the -3d day of January, 1899, denying her motion to vacate as to her the judgment entered in the above-entitled action and all proceedings had therein, so far as they affect her.