Volume 40 — New York Supplement

Action by the Warsaw Waterworks Company against the village of Warsaw and others to enjoin defendants from removing hydrants from mains of plaintiff, a corporation organized under Laws 1869, c. 394, for the purpose of supplying water to defendant village.

<p>Policeman—Dismissal—Evidence.</p> <p>On the hearing- o£ charges against a policeman for neglect of duty in being absent without leave, it appeared that a telegram had been sent to the police department saying that he was ill. A police surgeon, who was sent to see him, reported him ill and unfit for duty; that he prescribed for him, and kept him on the sick list until he reported for duty; and that part of the trouble was due to drinking, though he did not think that the officer was an habitual drinker. The officer testified that he was ill during his whole absence; that he had been on the police force for 12 years, and had never been charged with intoxication. His testimony was confirmed by other witnesses. Held, that the evidence did not sustain the charge.</p>

Action by Peter B. Olney, as receiver of the Sargent Granite Company, against Matthew Baird and William P. Baird, to set aside certain instruments in the form of a bill of sale executed by the officers of the granite company to defendant Matthew Baird, from April, 1892, to August, 1892, also to set aside a lease to him of what is called the “Mount Hagen. Quarry,” and a judgment obtained by the said Matthew Baird in Maine against the granite company in January, 1893.

<p>Partnership—When Relation Exists.</p> <p>Defendant and R. entered into an agreement by which R. agreed to negotiate the sale of defendant’s promissory notes in a certain amount, according to defendant’s financial requirements, receiving as compensation a commission of two-thirds of 1 per cent., a brokerage of one-fourth of 1 per cent., and 25 per cent of the net profits of defendant’s business. The agreement was to continue for one year unless sooner terminated by mutual consent, or by either party on 30 days’ notice. R. was to have no part in the management of the business, and his share in the profits was to terminate with the termination of his employment. Selll, that this agreement did not create a partnership, so as to render R. liable for debts incurred by defendant in the business.</p>

Action by the New York & Westchester Water Company against the Morning Journal Association for libel. Defendant demurred to the complaint. From an order granting judgment in favor of plaintiff on the ground that the demurrer was frivolous, defendant appeals. Reversed.

Action by Elie S. Oharlier against the Saginaw Steel Steamship Company. From an order directing the substitution of Philip J. Britt, receiver, as plaintiff in the action, plaintiff Charlier appeals. Reversed.

Action by Rosa Zipp, as sole.surviving executrix, against Frances E. Banker and others, to enjoin defendants from maintaining any building on their premises within 15 feet of the street.

<p>Action by Henrietta A. Lougheed and another against the Dyke-man Baptist Church & Society.</p>

Action by William Holden and others against Satie E. Kutscher for the price of lumber alleged to have been sold by plaintiff to defendant. Defendant, who was a married woman, claimed that the sale was made to her husband. There was a judgment in favor of plaintiffs, and defendant appeals. Affirmed.

Action by Ackley P. Tuller and others against James Howard. There was a judgment in favor of plaintiffs, and defendant appeals. Affirmed in part, and reversed in part.

Oertiorari by De Witt O. Penny to review the determination of the board of excise of the city of Utica, revoking an hotel keeper’s license issued to relator. Affirmed.

Action by John Zwack, an infant, by Ms guardian ad litem, against the Hew York, Lake Erie & Western Railroad Company, for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Affirmed.

Certiorari by Charles E. Taylor and James E. Allen to review the determination of Henry E. Turner, county judge of Lewis county, and others, in relation to the laying out of a highway. From an order denying a motion by defendants to dismiss the writ, defendants appeal. Reversed.

Judicial settlement of the accounts of J. Lee Humfreville, one of ' the executors of the will of Mary J. Havenneyer. On January 27, 1896, a decree was made refusing to remove Mr. Humfreville as executor. On appeal this decree was reversed. 38 N. Y. Supp. 292.' In the meantime, on March 17, 1896, a decree was made settling the accounts of Mr. Humfreville from July 15, 1892, to September 5 1893, and allowing Mm commissions.

<p>Replevin—Who Liable—Mortgagees.</p> <p>A mortgagee of chattels to which the mortgagor had no title is liable to the real owner where he sells the chattels under the mortgage and delivers them to the purchaser after notice of the owner’s claim, and it is no defense that he parted with the possession or control of the chattels before the action against him was commenced. Putnam, J., dissenting, on the ground that plaintiff: failed to show title.</p>

Action by the Metropolitan Life Insurance Company against Ambrose Schaefer and Jacob Gilcher to recover $34.05, alleged to be due on a bond given by defendant Schaefer, with, defendant Gilcher as surety, to secure the performance by defendant Schaefer of his duties as agent of plaintiff. Prom a judgment entered on the verdict in favor of defendants,, plaintiff appeals. Affirmed.

<p>Landlord and Tenant—Lease of Agricultural Land—Term.</p> <p>A lease of a farm during the lifetime of the lessor and of his wife, for rent payable to the lessor during his lifetime, and after his death to his widow, does not violate Const. 1894, art. 1, § 13, which provides that “no lease or grant of agricultural land, for a longer period than twelve years, hereafter made, in which shall be reserved any rent or service of any kind, shall be valid.”</p>

Motion by the Mutual Life Insurance Company of New York to compel Henry W. Johnson, as executor of the will of Michael N. Wiener, deceased, to pay to petitioner or his attorney the sum of §4,908.50, and interest thereon from January 12, 1895, being the amount of a deficiency judgment rendered on foreclosure of a mortgage executed by decedent. The application was granted, and the Washington Life Insurance Company appeals. Reversed.

Action by Stephen Cheney and others against the New York Central & Hudson River Railroad Company and another to restrain defendants from operating their railroad on Canal street, in the city of Syracuse, in front of premises owned by plaintiffs, and to compel the removal of rails therefrom, and to recover damages for past trespasses. There was a judgment in favor of plaintiffs, and defendants appeal. Affirmed.

Action by Prosper Shortsleeves.against the New York Central & Hudson River Railroad Company for personal injuries. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed on condition.

<p>1. Carriers—Bill of Lading—Ratification of Conditions.</p> <p>A shipper who orders the goods to be held in an elevator awaiting his order thereby ratifies the conditions of the bill of lading to which he did not have time to object before the vessel sailed.</p> <p>2. Same—Limitation of Action by Stipulation.</p> <p>A provision in a bill of lading, that any action thereon must be brought within three months after the loss or damage occurs, is reasonable.</p> <p>3. Same—Subroqationof Insurer to Shipper’s Rights.</p> <p>Where a bill of lading provides that the carrier shall have the benefit of any insurance by the shipper, the insurer cannot, by subrogation to the rights of the shipper, assert any claim, as against the carrier, for loss of the goods by the carrier’s negligence.</p>

Action by Annie L. Corcoran against the Ulster & Delaware Kailroad Company for personal injuries. A verdict for $1,000 was ren-' dered in favor of plaintiff, and from- the judgment entered thereon, and from an order denying a motion for a new trial, defendant appeals. Reversed, unless plaintiff remit part of verdict.

<p>Action by Agnes J. Adsit against the General Fire Extinguisher Co.</p>

<p>Action by Jefferson H. Beemer against Warren Packard and others.</p>

<p>Proceeding for the probate of the last will and testament of Mary E. Barber.</p>

<p>Action by L. Bacon Edward M. Lowman and others, as executors, etc., of Jacob Low-man, deceased.</p>

<p>Action by Charles F. W. Bodeker against the New York Steam Company.</p>

<p>'Application by Philip Bohnet for a peremptory 'writ of mandamus against the mayor, aldermen, and" commonalty of the city of New York and others.</p>

<p>Action by James Cremins against East Lake Woolen Company and Aaron M. IClaw. subsequent attaching creditor. J. Edward Ackley, for appellant. Emanuel BIumenstiel, for respondents.</p>

<p>Action by Com Exchange Bank against Bartolomé M. Bossio.</p>

Action by Georgette Goldschmidt against New York Steam Company. Plaintiff appeals from an order denying motion for a preliminary injunction. See 40 N. Y. Supp. 169. O. Steele, for appellant. J. W. Hawes, for respondent.

<p>Appraisement of the estate of George Kemp, deceased, for taxation under the transfer tax law.</p>

<p>Proceeding for the probate of the will of Ira Parish, deceased.</p>

Application by Chauncey P. Meads for mandamus to compel Alpha Lodge. No. 1, of the Order of the Knights of Sobriety. Fidelity, and Integrity, and its officers to restore relator to membership.

Proceeding on the relation of John Illingworth against the court -of oyer and terminer. John R. Fellows, Dist. Atty., for the motion. Burnett & Stayton, opposed.

<p>Action by Ruth Purcell, an infant, etc., against Rudolph Aronson.</p>

<p>Certiorari by Francis J. Clarke against Theodore Roosevelt and others, as police commissioners. Proceedings affirmed, and writ dismissed, with costs.</p>

Action by George C. Sherman against the Adirondack Railway Company and others. The nature of the action, and the disposition made of prior motions relating to changing place of trial, appear in the reported case of Sherman v. Railway Co., 92 Hun, 39, 36 N. Y. Supp. 692.

<p>Action by Priscilla Stoddard against Jane D. Brazell.</p>