Volume 41 — New York Appellate Division Reports

Appeal by the defendants, John King and another, as receivers -of the property of the New York, Lake Erie and Western 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 Sullivan on the'31st day of May, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of August, 1898, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, George H. Hewett, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 11th day of August, 1898, upon the dismissal of the complaint by direction of the court after a trial at the Warren Trial Term.

Appeal by the plaintiffs, the Buffalo Creek Railroad Company 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 Erie on the 8th day of July, 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 8th day of July, 1898, as resettled by an order entered in said clerk’s office on the 5th day of August, 1898, denying the…

Appeal by the plaintiff, The People of the State of Hew York, from a judgment of the County Court of Schenectady county in favor of the defendant, rendered on the 9th day of January, 1899, sustaining the defendant’s demurrer to the indictment, upon the ground that the same did not state facts constituting a crime, and that the court had no jurisdiction of the subject-matter thereof.

Appeal by the relator, the Oneida Telephone Company, from an order of the Supreme Court, made at the Madison Special Term, and entered in the office of the clerk of the county of Madison on the 14th day of December, 1898, sustaining the defendants’ demurrer to an alternative writ of mandamus, which required the defendants to install, in the office of the relator, a telejihone connected with the regular exchange of the defendant, the Central New York Telephone and Telegraph…

Certiorari issued out of the Supreme Court and attested on the 9th day of July, 1898, directed to James A. Roberts, as Comptroller of the State of New York, requiring him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in assessing a franchise tax against the relator, a domestic corporation, for the year ending October 31, 1897, in the sum of $3,281.25.

Cross-appeals by the plaintiff and the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Chautauqua on the 18.th day of May, 1898, upon the report of a referee, separately stating the facts found and the conclusions of law. The defendant is an incorporated village of this State, and in 1889, pursuant to chapter 181 of the Laws of 1875, and the acts amendatory thereof, entered upon the construction of a system of water works.

Appeal by the defendant, The Jacob Dold Packing Company, from a judgment of the Supreme Court in favor of the plaintiff's, entered in the office of the clerk of the county of Jefferson on the 18th day of January, 1898, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the 20th day of January, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The New York Central and Hudson. River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the. office of the clerk of the-county of Oneida on the 24th day of January, 1898, upon the verdict of a jury for $500, and also from an order entered in said clerk’s-office on the 28th day of January, 1898, denying the defendant’s, motion for a new trial made upon the minutes.

Appeal by the plaintiff, The People of the State of New York, from a judgment of the County Court of Monroe county in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 17th day of December, 1898, upon the decision of the court sustaining the defendants’ demurrer to the indictment.

Appeal by the plaintiff, The Rochester and Charlotte Turnpike Road Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Monroe on the 19tli day of November, 1898, upon the decision of the court, rendered after a trial before the court, without a jury, at the Monroe Trial Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, Elizabeth Deverell, from a judgment of the County Court of Monroe county in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 23d day of April, 1894, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of April, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Walter Brown 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 Onondaga on the 30th day of April, 1898, upon the report of a referee dismissing the complaint upon the merits and adjudging that the defendant Barker recover from the plaintiffs the sum of $531.25 costs.

Appeal by the plaintiff, Jacob Marks, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 17th day of January, 1898,. upon the dismissal of the complaint by direction of the court after a trial at the Monroe Trial Term.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orleans on the 21st day of November, 1898, upon the verdict of a jury-for $1,000, and also from an order entered in said ■clerk’s office on the 21st day of November, 1898, denying the ■defendant’s motion for a new trial made upon a case containing exceptions.

Appeal by the defendant, the Buffalo Furnace Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 14th day of June, 1898, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 17th day of June, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Motion by the plaintiff, Augusta Lewin, for a new trial upon a case containing exceptions, ordered to' be heard at the Appellate Division in the first instance upon the verdict of a jury rendered by direction of the court after a trial at the Monroe Trial Term.

Appeal by the New York Central and Hudson River Railroad Company, the defendant in each of the above-entitled actions, from judgments of the Supreme Court in favor of the plaintiff in each of said actions, entered in the office of the clerk of the county of Niagara on the 18th day of April, 1898, upon the report of a referee, perpetually enjoining the defendant from maintaining or operating a railroad upon the westerly half of Ninth street or Railroad avenue, in the city of…

Motion by the plaintiff, Wesley D. Leonard, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court after a trial at the Steuben Trial Term.

Appeal by the plaintiffs, Euphemia D. White and Jessie E. Du Bois, executrices, etc., of Abel Du Bois, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 8th day of December, 1898, upon the report of a referee dismissing the complaint upon the merits. The action was brought by Abel Dn Bois, but he having died, his executors were substituted.

Appeal by the defendant, The City of Syracuse, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 18th day of October, 1898, upon the verdict of a jury for $2,000, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 31st day of .October, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal hy the defendants, Alvin J. Belden and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Onondaga on the 22d day of December, 1898, upon the verdict of a jury for $175, and also from an order entered in said clerk’s office on the 21st day of / December, 1898, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Martin W. Wagner and another, from a judgmént of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Cattaraugus on the 12th day of October, 1898, upon the rep.ort of a referee dismissing the complaint. The action was commenced March 29, 1897.

Appeal by the defendant, Supreme Lodge, Knights of Honor, fi’om a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Allegany on the 24th day of October, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d'day of November, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Mary A. Fox, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 26th day of August, 1898, upon the decision of the court rendered after a trial before the court without a jury at the Erie Trial Term.

Appeal by the plaintiff, Pliebe Burlew, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Cayuga on the 27th day of May, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of May, 1898, denying the plaintiff’s motion for a new trial made upon the minutes. The action was commenced March 29, 1895, and the trial was had May 2, 1898.

Appeal by Rosa F. King, individually and as executor, etc., of Julia Murphy, deceased, and Joseph Clark and Nellie Clark, by William H. Shaffer, their special guardian, from a decree of the. Surrogate’s Court of Monroe county, entered in said Surrogate’s, Court on the 20th day of January, 1899, revoking the probate of a. paper propounded as the last will and testament of Julia Murphy,, deceased. The will was executed September 14, 1897. Decedent died July 14, 1898.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 27th day of January, 1898, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 5th day of January, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Henry H. Persons and another, as receivers of the Bank of Commerce in Buffalo, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of Erie on the 7th day of January, 1899, upon the verdict of a jury, rendered by direction of the court, as dismisses the complaint upon the merits as to the defendant William M. Hawkins, and also from an order entered in said clerk’s office on the 12th day of October, 1898,…

Appeal by the relator, Melville M. Crane, from an order of the Supreme Court, made at the Cayuga Special Term and entered in the office of the clerk of the county of Cayuga on the 1st day of May, 1899, denying his motion for a peremptory writ of man-damns directed to James 3L Chandler, as town clerk of the town of Moravia, N. Y., requiring him forthwith to call a special town meeting of the electors of said town for the purpose of voting on the liquor license questions.

Appeal by'the plaintiff, James F. Passage, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Livingston on the 3d day of November, 1898, upon the decision of the court, rendered after a trial at the Livingston Special Term, dismissing the complaint upon the merits.

Motion by the plaintiff, Edna E. Tarba, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court after a trial at the Monroe Trial Term. The issues of fact were brought to trial at a Trial Term held in •October, 1898, in Monroe county.

Appeal by the defendants, George F. Lutz and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 30th day of December, 1898, upon the decision of the court rendered after a trial at the Erie Special Term, overruling their demurrer to the plaintiffs’ amended complaint. The Special Term found: (1) That the causes of action in said complaint set forth are properly joined therein.

Appeal by the defendant, George A. Ray, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yates on the 31st day of December, 1898, upon the decision of the court rendered after a trial before the court without a jury at the Yates Trial Term. The action was brought to recover upon an instrument in the following language: “ $500. Keuka Park, JST.

Appeal by Charles D. Bigelow, as temporary receiver of the Busch Brewing Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 26th day of July, 1898, permitting the Niagara River Brewing Company to proceed witli an action brought by it against the Busch Brewing Company for the foreclosure of a mortgage executed by the latter company, “ and from so much of said order as overrules the…

Appeal by the defendants, William Conklin and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 23d day of July, 1898, upon the decision of the court rendered after a trial at the Kings County Special Term.

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 30th •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 25tli day of November, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Newburgh Electric Railway 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 5th day of December, 1898, upon the verdict of a jury for $1,500.

<p> Divorce—the decision as to alimony and counsel fees can he reserved until final judgment only with the husband’s consent. </p> <p>In a matrimonial action, the question of alimony and counsel fees cannot be reserved for decision after the trial of the action, except with the consent of the husband or his counsel.</p> <p>In the absence of such consent, the court has no power, after a jury, to which issues of adultery raised by the pleadings in an action by a husband against his wife to obtain an absolute divorce, has found in favor of the wife, to award alimony at a specified rate from the time of the commencement of the action, or a counsel fee, and to include such provisions in the final judgment dismissing the complaint.</p>

Appeal by the defendant, The Hartford Fire Insurance Company, 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 19th day of January, 1899, upon the decision of the court rendered after a trial at the Orange Special Term, upon an agreed statement of facts.

<p>Surrogates decree — binding on unborn remaindermen — a voidable sale of real property by executors is made valid by a decree passing their accounts and. by the acceptance of the proceeds—powers in this respect of a trustee of personalty — distillation between a trustee of real estate and a trustee of personalty—when an equitable conversion takes place.</p> <p>A decree of a surrogate made in a proceeding for the judicial settlement of the accounts of executors, to which all living persons interested in the estate are made parties, adjudging that the price realized on the sale by the executors of certain of the testator’s real estate to the wife of one of the executors was the full and fair value of the property, and the acceptance by the interested parties, with knowledge of the infirmity in the sale, of their distributive shares as fixed by the decree, operates as a ratification of the sale which is conclusive upon possible remaindermen who were not in being at the date of the decree.</p> <p>"Where the will under which the executors were acting created an equitable conversion of the testator’s real estate, the acceptance by a trustee appointed by the will of the proceeds of sale which constituted the corpus of the trust fund, operates as a ratification of the voidable conveyance and concludes all the beneficiaries whom the trustee represents, including unborn remaindermen.</p> <p>A will which, after directing the executors to divide the testator’s residuary estate into three parts, “ to pay” one part to each of two designated persons, and “ to pay ” the third part to a trustee after retaining the amount of certain notes, requires the trustee to invest the same in bonds, mortgages and other securities, and then provides “I hereby authorize and empower my executors hereinafter named to sell and dispose of any part or all of my estate, either real or personal, at public or private sale,” creates an equitable conversion of the realty into personalty.</p> <p>The distinction between a trustee of real estate and a trustee of personal estate, with reference to his power to bind the beneficiaries by acts concerning the trust estate, considered.</p>

Appeal by the plaintiff, Caroline C. Hooker, and by the defendants, Adah Louise Hooker and Hattie Emma Hooker, from so much of a judgment of the.

Appeal by the plaintiff, Frank Comesky, from an order of the Supreme Court, made at the Rockland Trial Term, and entered in the office of the clerk of the county of Rockland on the 18th day of December, 1897, setting aside the verdict of a jury rendered in. favor of the plaintiff for $250.

Appeal by Stephen Ryder, the life tenant of the residuary estate of Stephen Ryder, deceased, from a decree of the Surrogate’s Court of Queens county, entered in said Surrogate’s Court on the 31st day of December, 1898, settling the accounts of Stephen Ryder, as executor, etc., of Stephen Ryder, deceased, and directing distribution of the estate, except from so much of said decree as allows Stephen Ryder, as executor, etc., of Stephen Ryder, deceased, to charge himself with…

<p>Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plain-" tiff, entered in the office of the clerk of the county of Kings on the 2d day of March, 1899, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 1st day of March, 1899, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by David A. Taggart, as assignee of the Granite State Provident Association, from a judgment of the Supreme Court in favor of the plaintiff, and of Edwin E. Dickinson, as temporary receiver of the Granite State Provident Association, entered in the office of the clerk of the county of Kings on the 22d day of April, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term, as amended by an order made at the Kings County Special Term…

Appeal by the petitioner, Channing Stebbins, 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 'March, 1899, denying his motion for a peremptory writ of mandamus directed to William H. Maxwell, as city superintendent of schools for the city of New York, commanding him to place the petitioner’s name upon the list of persons eligible to appointment as principals of high…

Appeal by the petitioner, Harry W. Michell, 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 21st day of February, 1899, denying his application for an order revoking and canceling the liquor tax certificate issued to the respondent.

Appeal by the defendant, the City of Brooklyn, 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 28th day of April, 1898, upon the verdict of a jury, and also from an order entered in •said clerk’s office on the 25th day of April, 1898, denying the •defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Charles W. Lynde, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 21st day of January, 1899, upon the decision of the court rendered after a trial at the Suffolk Special Term.

Appeal by the defendant, Charles W. Wetmore, individually and as trustee for himself and his associates, 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 Queens on the 12th day of July, 1898, upon the decision of the court-rendered after a trial at the Queens County Special Term.

Appeal by the defendant, the City of Mount Vernon, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 18th day of. March, 1899, upon the verdict of a jury for $2,000, and also from an order, bearing date the 1st day of April, 1899, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Metropolitan Life Insurance Oomp my, 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 14th day of January, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the. 16th day of -January,, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by James F. Gillen, the defendant in each of the above-entitled actions, from judgments of the Supreme Court in favor of the plaintiffs in each of said actions, entered in the office of the clerk of the county of Queens on the 24th day of October, 1898, upon verdicts of a jury, both eases being tried together, and also from orders made in each of said actions and entered in said clerk’s office on the 24th day of October, 1898, denying the defendant’s motions for a new…

<p>Appeal by the relator, George Hemmert, from an order of the • Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 31st day of March, 1899, denying the relator’s motion for a-peremptory writ of mandamus, directed to the respondents, commanding them to recognize the relator as a member of the-police force of the city of New York.</p>

Appeal by the defendant, The American Sugar Refining Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk pf the county of Kings on the 12th day of December, 1898, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 7th day of December, 1898, denying the defendant’s motion for a new trial.

Appeal by the defendants, Martha R. Severance and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the .clerk of the county of Kings on the 19th day of February, 1898, upon the report of a referee. In the resolution referred to in the opinion, the defendant Martha R. Severance is alluded to as Martha L. Severance.

Appeal by the plaintiff, Thomas G. Zabrislde, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Orange on the 7th day of July, 1898, upon the report of a referee.

Appeal by the defendant, The Farmers’ Loan and Trust Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Richmond on the 19th day of January, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, The Park Hill Company, 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 17th day of February, 1899, upon the decision of the court rendered after a trial at the Westchester Special Term, dismissing the plaintiff’s complaint upon the merits.

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 23d day of January, 1899, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 10th day of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Elmira Bridge Company, Limited, 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 16th day of May, 1898, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 6th day of June, 1898, denying the defendant's motion for a new trial made upon the minutes.

Appeal by the defendant, The Brooklyn Heights 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 16th day of January, 1899, upon the verdict of a jury for $23,000, and also from an order bearing date the 17th day of January, 1899, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Laura Whiton Merrill, 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 9th day of Jan-nary, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, the Arena Athletic Club, 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 10th day of June, 1898, upon the decision of the court rendered at a trial at the New York Special Term, dismissing the complaint at the beginning of the trial, upon the ground that the complaint did not state facts sufficient to constitute a cause of action.

Appeal by the defendant, William Henry Moadinger, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 10th day of March, 1899, as resettled by an order entered in said clerk’s office on the 21st day of March, 1899, denying the defendant’s motion for a further bill of particulars.

Appeal by the plaintiff, Philip J. Kornder, 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 7th day of March, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, Pendleton B. Gray, 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, and also from an order entered in said clerk’s office on the 9th day of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants Francis T. Clayton, and the defendants Ella Y. Clayton, Howard Clayton and Alfred Greer Clayton,, .by Cyrus Y. Washburn, their guardian ad litem, and the defendants Virginia B. Clayton, Le Doyt Clayton and James S. Clayton,.

Appeal by the defendant, The City of Mount Vernon, 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 25th day of February, 1899, upon the report of a referee, adjudging an assessment on the plaintiff’s premises to be void, and vacating and setting aside a sale of such premises for the non-payment of the assessment.

<p>Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of May, 1898, upon the verdict of a jury for §500, and also from an order bearing date the 25th day of May, 1898, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, John Reilly and others, assessors of the Town of Highlands, County of Orange, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 30th day of January, 1899, directing them to strike from the assessment roll the assessments levied by them against the respondents.

Appeal by Sarah F. McGovern, the tenant in the above-entitled proceeding, from a final order of the Municipal Court of the second district of the borough of Brooklyn, entered in the office of the clerk of said court dispossessing her.

Appeal by the defendant, Theodore Hofstatter, doing business in the name of Theodore Hofstatter & Co., 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 11th day of February, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.

<p>County of Nassau — the sheriff thereof is entitled to disbursements incurred in the execution of process, in addition to his salary.</p> <p>Section 3 of the act establishing the county of Nassau (Laws of 1898, chap. 588), which provides that the sheriff of the county shall receive an annual salary of not more than §3,500, and that all fees for his services shall be paid into the county treasury, does not prevent the sheriff from receiving, under subdivision 9 of section 330 of the County Law (Laws of 1893, chap. 686), traveling expenses necessarily incurred in the execution of process delivered to him.</p>

Appeal by the defendant, John H. Phillips, as administrator, etc., of Annie M. Phillips, deceased, 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 27th day of December, 1898, upon the report of a referee.

Appeal by the plaintiff, Stephen M. Bull, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 4th day of April, 1898, setting aside a levy made by the sheriff of Orange county upon a bond and mortgage owned by the defendant, under a writ of attachment, issued in the above-entitled action.

<p>Appeal by the plaintiff, William Krumbeck, 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 14tli day of April, 1899, denying his motion for an order directing that Abram H. Dailey, as executor of the estate of Alvin C. Henderson, deceased, be substituted as a defendant in the place of the said Alvin C. Henderson.</p>

<p>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 7th day of January, 1899, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 30th day of January, 1899, denying the defendant’s motion for a ne.w trial made unon the minutes</p>

<p>Pauper children— commitment of, to an orphan asylum by the supiervisor of a town on the recommendation of the overseer of the poor.</p> <p>Under chapter 173 of the Laws of 1875, the provisions of which are substantially re-enacted in section 56 of the Poor Law (Laws of 1896, chap. 335), pauper children between the ages of three and sixteen years may be committed to an orphan asylum or other charitable or reformatory institution by the supervisor of a town on the recommendation of the overseer of the poor of the town, and no judicial proceeding before a magistrate is necessary.</p> <p>The statutory provisions referred to were not repealed or superseded by sections 391 and 393 of the Penal Code, nor by chapter 438 of the Laws of 1884.</p>

<p> A bond and mortgage taken in the names of a husband and wife on the conveyance of premises, the title to which is in the husband—the wife surviving is entitled to it. </p> <p>Where an owner of property joins with his wife, who has only an inchoate dower interest therein, in executing a conveyance of the property to a third party, and takes hack a bond 'and mortgage, payable to himself and his wife, the presumption is that he intends to give the bond and mortgage to the wife, in the event of her surviving him; and upon the happening of such a contingency, without the husband's having done anything to rebut the presumption, or having made any other disposition of the security, the wife takes title thereto as survivor.</p>

Appeal by the defendant, William H. Harney, 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 3d day of May, 1899, striking out his amended answer.

Appeal by the defendant, John B. Lord, as committee of Mary Dwyer, an incompetent person, 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 7th day of February, 1899, upon the verdict of a jury, and also from orders entered in said clerk’s office respectively on the 4th and 7th days of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Bernard J. York and others, police commissioners, ■constituting the police board of the city of New York, 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 10th day of April, 1899, granting the relator’s motion for a ■peremptory writ of mandamus commanding them to pay to the relator from the pension fund the amount which has accrued to him since the 1st day of January, 1898.

Appeal by the plaintiff, Mary Harrigan, and by the defendants, Annie Graham and Ellen Harrigan, from an order of the Supreme Court, made at the Kings County Special Teym and entered in the office of the clerk of the county of Kings on the 19th day of April, 1899, denying the plaintiff’s motion for an order requiring George Calieron, a purchaser of part of the premises sold at a partition sale had in the above-entitled action, to complete his purchase.

<p>Appeal by the defendant, Marks H. Marcus, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said, court on the 13th day of March, 1899, upon the decision of the court rendered áfter a trial before the court without a jury.</p>

<p>Negligence — horses left by the driver unattended in the street ■—injury sustained from their starting, and being stopped and driven back by a stranger who drives into a push cart —• lialrility of the master where the driver deviates from his course — the master's liability for the stranger's negligence.</p> <p>In an action brought to recover damages for personal injuries resulting from the alleged negligence of the defendant, a brewing company, it appeared that the driver of one of the defendant’s trucks, when returning to the brewery with a load of empty kegs, deviated a couple of blocks from his direct route in order to visit a friend; that in his absence, the horses, which he had left unattended in the street, started, but after going a few yards -were stopped by a stranger, who, in attempting to drive them back to the place where the driver had left them, drove the truck against a push cart standing in the street, and overturned it, precipitating the plaintiff, who was standing on the sidewalk, against-a coal box, and causing the injuries complained of.</p> <p>Held, that the driver’s deviation from the direct route to the brewery constituted misconduct in his employment, and not an abandonment thereof, and that it did not relieve the brewing company from liability for his negligence in leaving the horses unattended in the street;</p> <p>That the brewing company was responsible for the act of the stranger in driving the horses, as the driver’s negligence in leaving them unattended was the proximate cause of the stranger’s act and of the resulting accident.</p>

Appeal by the defendants, John J. Wysong and Martha M. Wysong, individually and as trustees under the will of John R. Marshall, deceased, from a final judgment of the Supreme Court, ■entered in the office of the clerk of the county of New York on the 9th day of May, 1898, upon the report of a referee. This appeal was transferred from the first department to the •second department.

<p> Will—when a life estate and not a trust is created in personalty—when a trust imposed on a remainder does not unlawfully suspend the absolute power of alienation—an unlawful limitation imposed on an absolute gift —right of the owner in fee of a remainder to terminate a trust for her benefit and to the immediate possession of the fund. </p> <p>The will of a testator, whose estate consisted of personalty, provided: “I give to my said brother and sister the use, interest and income of personal property during their joint lives and the life of the survivor; subject to such life estate I give the principal of the rest, residue and remainder of my property and estate to my five nephews and nieces, as follows: * * *</p> <p>“o. To Enriquita Emma, daughter of my said brother, deceased, now wife of Winfield Scott Shrigley, of Valparaiso, Chili, one fifth (1/5) part of such property; hut it is my will, and I hereby direct, that such part shall he paid to and held in trust by her brothers, to apply the same and such parts thereof as they may deem proper to the separate use of their sister.”</p> <p>Held, that the will did not create a trust in favor of the testator’s brother and sister, but merely created life estates in favor of such persons;</p> <p>That the effect of the trust created in the share of Mrs. Shrigley was not to unlawfully suspend the absolute ownership of such share, as»the life estates •created in favor of the testator’s brother and sister were legal and capable of alienation, but that the clause providing that such share should be paid to and held in trust by Mrs. Shrigley’s brothers, "to apply the same and such parts thereof as they may deem proper to the separate use of their sister,” imposed a limitation upon the absolute gift previously made, which was repugnant to the gift and was, therefore, void;</p> <p>That as it was the duty of the trustees either to apply the whole of Mrs. Shrigley’s share to her use during her lifetime, or at her death to pay over the unexpended remainder to her estate, the case was analogous to that of a vested legacy where the time of the payment is postponed, and that Mrs. Shrigley’s interest was alienable; that, considered in this view, Mrs. Shrigley, having absolute ownership of the share and an absolute power of disposition thereof, was entitled to the immediate possession o,f the fund;</p> <p>That if the trust were to be regarded as one to invest the fund and apply the income arising therefrom to the use of Mrs. Shrigley during her life, with power in the trustees in their discretion to apply the principal or any part thereof to the same purpose, Mrs. Shrigley was entitled to the immediate possession of the fund upon executing the deed prescribed by chapter 453 of the Laws of 1893, which was in force at the time of the testator’s death, providing that any person beneficially interested in the income of a trust who is also entitled to the remainder upon the determination of the trust may abrogate the trust and acquire possession and absolute ownership of the property upon executing the deed mentioned in said act.</p>

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the plaintiff, Charles H. Koster, 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 20th day of December, 1898, upon the decision of the court rendered after a trial at the Kings County Special Term.

<p>Appeal by the defendants, The International Paper Company and The Piercefíeld Paper Company, 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 3d day of April, 1899, denying tlieir motion to change the place of trial of the action from the county of Kings to the county of St. Lawrence.</p> <p>Appeal by the defendant, Benton Turner, 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 April, 1899, denying his motion to change the place of trial of the action from the county of Kings to the county of Franklin.</p>

Appeal by the defendant, Thomas Simpson, Jr., individually and as an executor of and trustee under the last will and testament of Robert Simpson, deceased, from an order of the Sunreme Court, made at the Kings County Special Term and entered in the office of the cleric- of the county of Kings on the 24tli day of May, 1899, denying his motion to change the place of trial of the action from the county of Kings to the county of New York.

<p>Replevin — apiano used in the education of children is exempt from levy under execution — amendment of a complaint on a motion to dismiss—form of the complaint and of the judgment in replevin.</p> <p>A piano, used by a householder in connection with the education of her children, and found by a jury to be necessary for that purpose, is exempt from levy and sale under an execution issued against the householder.</p> <p>A complaint in an action of replevin brought by the householder against an officer who levied upon the piano, which alleges that at the time of the levy the plaintiff notified the defendant that the piano was a necessary article of household furniture, and that she claimed exemption by virtue of the provisions of the statute, and that subsequent to the taking she again notified the defendant of the claimed exemption and demanded possession, but which does not allege, as in strictness it should, that she notified the defendant that the piano was an article exempt by law from levy and sale under an execution, is sufficient to justify the court in denying a motion, made at the opening of the trial, to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and in refusing to exclude testimony offered for the purpose of showing that the piano was a necessary article of household furniture, and the court may, in its discretion, grant an amendment at any time before the trial is finished curing the defect.</p> <p>A verdict rendered in such an action for a specific sum, instead of for the possession of the property, and, incase delivery could not be made, for the value of the property, to be determined by the jury, as provided in section 1726 of the Code of Civil Procedure, is irregular, and requires the reversal of the judgment entered thereon.</p>

Appeal by the defendant, the Nassau Show Case Company, 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 7th day of March, 1899, •denying its motion to vacate a judgment rendered against it by default.

<p> Water registrar of the borough, of Brooklyn—his position is not a strictly confidential one within the Veteran Act. </p> <p>A water registrar in the borough of Brooklyn, whose duties comprise the supervision of the annual rolls for water taxes and water rents, the charges for extra water, the bills for the same and the receipt and collection of moneys paid for water rates and water rents, does not bear a strictly confidential relation to the appointing power—■ namely, the deputy commissioner of water supply in the borough of Brooklyn — within the meaning of the Veteran Act, as the deputy commissioner is not pecuniarily liable for the misconduct or defalcation of the registrar, committed .without his fault.</p>

Appeal by the plaintiff, Adolf Gans, from a judgment of the Supreme Court in favor of the defendant Peter McGowan, entered in the office of the clerk of the county of Westchester on the lath day of March, 1899, upon the report of a referee dismissing the complaint upon the merits as against said defendant.

<p>Comptroller of the city of New York—his certificate that the city has funds applicable to a contract— it relates to the time when the certificate is given —opposing affidavits in a peremptory mandamus proceeding taken to be true — the comptroller of the Greater New York is the successor of the comptroller of Brooklyn.</p> <p>The fact that at the time when a contract with the city of Brooklyn was executed the comptroller of that city had sufficient funds applicable thereto to comply with the requirements of the city charter (Laws of 1888, chap. 583), making it his duty to grant a certificate to that effect, under section 8 of title 18 thereof, providing that a contract shall be valid and binding only when the comptroller shall certify “that the means required to make the payments under such contract are provided and applicable thereto ” — which provision is substantially re-enacted in section 149 of the Greater New York charter (Laws of 1897, chap. 378) — does not make it incumbent upon the comptroller of the consolidated city of New York to grant the certificate at a time when he has not sufficient funds applicable to the contract, as the certificate required relates to the fact as it exists at the time when the certificate is made.</p> <p>On an application for a peremptory writ of mandamus, allegations contained in the opposing affidavits, whether by way of denial or in affirmation of new matter, must be taken as true.</p> <p>The comptroller of the present city of New York is in law the successor of the comptroller of the late city of Brooklyn, the comptrollership being a continuous office.</p>

Appeal by the plaintiff, Minnie A. Hess, from a judgment of the Municipal Court of the city of New York in favor of the defendant, entered in the office of the clerk of said court.

Appeal hy the plaintiffs, Charles Vogt, Jr., and others, from a judgment of the Municipal Court of the city of 27ew York in fa.vor of the defendant, entered in the office of the clerk of said court.

Appeal by the defendant, Emma Hammen, 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 12th day of January, 1899, denying, on the ground of want of power, said defendant’s motion for an extra allowance of costs.

Appeal oy the defendant, the East River Gas Company of Long Island City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 13th day of June, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of June, 1898, denying the defendant’s motion for a new trial made upon the minutes.

<p>Negligence— order for a physical examination hrfrn'e trial — a non-resident plaintiff is hound to obey it — service thereof—payment of witness fees.</p> <p>A person who, after commencing an action in the State of New York, to recover damages for personal injuries sustained by her through the alleged negligence of the defendant, removes from the State, is bound to obey an order of the Supreme Court of the State of New York, for her oral and physical examination before trial, when it is brought to her attention or that of her attorney.</p> <p>The fact that the defendant is unable to make service of the order within the State of New York, as required by the statute pursuant to which the order was made, does not afford any ground for vacating it, in view of the duty of the plaintiff to submit herself to the jurisdiction of the court; nor does the failure of the defendant to pay the plaintiff the witness fees required by section 874 of the Code of Civil Procedure, furnish such ground, as, until the plaintiff affords the defendant an opportunity to serve her within the State, the defendant is under no obligation to pay such fees.</p>

<p>Appeal by the plaintiff, Mary Elizabeth Butler, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Putnam on the 16th day of January, 1899, upon the decision of the court rendered after a trial at 'the Putnam Special Term dismissing the plaintiff’s complaint upon the merits.</p> <p>The plaintiff is the Elizabeth referred to in the will.</p>

Appeal by the plaintiff, the Saranac and Lake Placid Railroad Company, 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 17th day of January, 1899, upon the dismissal of the 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 27th day of January, 1899, denying the plaintiff’s motion for a new trial made upon…

Appeal by John Linck and others from an order of the Supreme Court, made at the Rew York Special Term and entered. in the office of the clerk of the county of Rew York on the 8th day of March, 1899, denying their motion to be made parties plaintiff in the above-entitled action. The action was begun Rovember 7, 1895, and the notice of motion upon which the order appealed from was made was dated January 29, 1899.

Motion by the defendant, The Tribune Association, for a reargument of an appeal taken 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, and also from an order entered in said clerk’s office on the 2d day of December, 1898, denying said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Morning Journal Association, and by Charles M. Palmer, a witness in the above-entitled action, 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 21st day of April, 1899, adjudging Charles M. Palmer to be in contempt of court for refusing-and neglecting to produce certain books before the referee appointed in the above-entitled action.

<p>Submission of a controversy— a provision that the admissions are to be regarded as made only for the purpose of such controversy is not authorized.</p> <p>Admissions contained in a case submitted upon an agreed statement of facts, under section 1379 of the Code of Civil Procedure, necessarily have all the effect of admissions contained in pleadings and in a judgment rendered thereon, and a provision in such a submission that none of the admissions therein contained “are in any wise to affect either party, or to he regarded as made except-for the purpose of this controversy upon the foregoing statement,” is not permitted, and the submission containing it will he dismissed.</p>

Appeal by tbe defendants, Thomas L. Feitner and others, commissioners of taxes and assessments of the city of New York, 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 16th day of December, 1898, denying their motion to quash a writ of certiorari issued out of the Supreme Court and attested on the 1st day of November, 1898, commanding them to certify and return to the court all and…

Appeal by the defendant, Wilbur T. Ames, 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 13th day of April, 1899, appointing a referee to hear and determine all the issues in the action.

Appeal by the defendants, William E. Lowe 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 New York on the 31st day of March, 1899, upon the decision of tlje court, rendered after a trial before the court without a jury at the New York Trial Term.

Appeal by the defendants, The New York and Harlem Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of 'the clerk of the county of New York on the 15th day of March, 1899, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendants, Camille Weidenfeld and another, 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 28tli day of February, 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 7th day of March, 1899, denying the defendants’ motion for a new trial made upon the minutes. .

Appeal by the plaintiff, Mary E. Guilfoyle, 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 24th day of November, 1896, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiff, Julio Oarrié, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 3d day of May, 1899, requiring the plaintiff to furnish a bill of particulars of his claim as to an alleged marriage between the defendant and one Miguel Aleo, stating therein the time when and the place where such alleged marriage contract was entered into, if the said marriage was a ceremonial…

Appeal by the defendant, Jennie A. Regan, 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 11th day of April, 1899, directing the chamberlain of the city of New York to pay certain moneys deposited with him to the defendant Thomas Regan, upon the latter’s furnishing a bond conditioned as required by the terms of the order.

Appeal by the plaintiff, Charles A. McCredy, 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 21th day of March, 1899, denying his motion to vacate a judgment entered in the above-entitled action and the satisfaction piece thereof, and for leave to serve an amended complaint.

Appeal by the defendant, the Jewelers and Tradesmen’s Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of April, 1899, as resettled by an order entered in said clerk’s office on the 26th day of April, 1899, denying the defendant’s motion to bring in Rachel Flint as a co-defendant.

Appeal by the defendant, William E. Nash, as assignee for the benefit of creditors of Charles W. Beiser, 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 16tli day of March, 1899, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, the National Lead Company, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of December, 1898, upon the decision of the court rendered after a trial at the New York Special Term, as provides “ That said receiver apply such property so received or its proceeds : First.

Motion by the plaintiff, George W. Place, for a new trial iqion a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint, by direction of the court, after a trial before the court and a jury at the Hew York Trial Term.

Appeal by the defendants, Thomas L. Feitner and others, commissioners of taxes and assessments 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 30th day of March, 1899, denying their motion to quash a writ of certiorari issued out of the Supreme Court and attested on the 25th day of July, 1898, commanding them to certify and return to the court all and…

<p>Appeal by the defendant, James Stack, from a judgment of the Court of General Sessions of the Peace in and for the city and county of Mew York in favor of the plaintiff, rendered on the 25th day of March, 1898, convicting him of the crime of robbery in the first degree.</p>

Appeal by the plaintiff, Augustus Van Horne Stuyvesant, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 14th day of March, 1899, upon the decision of the court rendered after a trial at the Hew York Special Term, dismissing the complaint upon the merits.

<p>Appeal by the plaintiffs, John McLoughlin and others, from a final judgment of the Supreme Court-in favor of the defendant Leopold Bieber, entered in the office of the clerk of the county of Few York on the lltli 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 15th day of March, 1899, denying the plaintiffs’ motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The East Bay Land and Improvement Company, from orders 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 10th day of March, 1899, and the 10th day of April, 1899, respectively, denying motions made by the defendant for leave to serve a supplemental answer.

<p>Appeal by the relator, The E. Seidenberg, Stiefel and Company, 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 1st day of March, 1899, dismissing a writ of certiorari issued out of the Supreme Court and attested on the 16th day of July, 1898, directed to the commissioners of taxes and assessments of the city of New York, commanding them to certify and return to the court all and singular their proceedings had in assessing the personal property of the relator for the year 1898, and also from a judgment of the Supreme Court entered in said clerk’s office on the 14tli day of March, 1899, dismissing said writ.</p>

<p>Negligence — a lineman of an electric light company injured by its employee at the power house turning on the current—duty of the company to employ competent men — evidence of incompetency.</p> <p>In an action brought by a lineman against an electric light company to recover damages for personal injuries sustained by him in consequence of an electric current having been turned on to the wires upon which he was working in hanging a lamp and connecting it with the company’s power house, evidence that before he left the power house he informed the employee in charge of the dynamos that he had been ordered to hang a lamp at a certain place, and directed him not to turn the current on until the plaintiff had notified him by telephone that the lamp was hung, is sufficient to warrant the jury in finding that the accident was caused by the negligence of the employee in charge of the dynamos, and that the plaintiff was free from contributory negligence.</p> <p>■To entitle the plaintiff to recover in such a case, the evidence must justify a verdict that the accident was caused by the negligence of an employee of the electric light company; that such employee was not a competent person to perform the duties required of him, and that the company had notice of his incompetency.</p> <p>What evidence of specific acts of ignorance or inattention on the part of the employee in charge of the dynamos is sufficient to show that he was incompetent to perform the duties required of him by the company, and that the latter had knowledge or notice of such incompetency, before the accident, considered.</p>

Appeal by the plaintiffs, James G. K. Duer 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 25th day of March, 1899, vacating an execution issued upon the judgment entered in the above-entitled action and the levy thereunder.

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 13th day of March, 1899, authorizing and directing the commissioners of estimate and assessment appointed in the above-entitled proceeding to ascertain and determine the compensation to be made to Murray 0.

Appeal by the plaiñtiff, Lulce H. Ellison, 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 12th day of July, 1891, striking out a portion of the plaintiff’s amended complaint as irrelevant and redundant.

Appeal by William H. Rhawn and others 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 21st day of March, 1899, vacating a subpoena requiring James E. Heller ■and Adolph Hirsh to appear and be examined as witnesses before a commissioner appointed to take the testimony of the witnesses in an action pending in a court of the State of Pennsylvania.

<p>Appeal by the plaintiff, Washington Lighting Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the cleric of the county of New York on the 20th day of April, 1899, denying the plaintiff’s motion for an injunction pendente lite.</p>

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the defendants, Lewis M. Sea ver and others, from, a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Mew York on the 25th day of March, 1898, upon the decision of the court rendered after atrial at the Mew York Special Term.