Volume 42 — New York Appellate Division Reports

Appeal by Jennie Tinney from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 13th day of April, 1898, vacating her appointment as administratrix of the estate of Rose Ferrigan, deceased, and also from' an • order' of the Surrogate’s Court, entered in that court on the 2d day of May, 1898, modifying an order of reference previously made in a proceeding for the judicial settlement of the accounts of John Flynn and Jennie…

Appeal by the defendant, Russell H. Hoádley, trustee, from a final judgment of the' Supreme Oourt in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st day of October, 1898, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendants, Jacob Shrady and others, from portions of an interlocutory 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 24th day of December, 189.8, upon the report of a referee, and also from so much of the 41st paragraph thereof as provides that there shall be first added to the net proceeds of the sale of the premises the total amounts advanced to each of the said defendants, Jacob…

Appeal by the defendant, Hqlen A. Dawson, as administratrix, etc., of John F. Dawson, 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 14th day of March, 1899, denying her motion for leave to serve an amended .answer. ;

Appeal by the defendants, Lily Alys Godfrey 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 4th day of February, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, directing the foreclosure and sale of a mortgage upon real estate.

Appeal by the defendant, Dora Baruth, 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 20th day of March, 1899, denying the defendant’s motion for leave to reargue a former motion to dismiss the complaint for want of prosecution and for an order dismissing said complaint.

Appeal by the defendant, Margaret Louisa Vanderbilt Shepard, 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 Utli day of October, 1898, upon the verdict of a jury for $2,800, and also from an order entered in said clerk’s office' on the 13th day of October, 1898, denying said defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Kate Healey, an infant, by Martin Healey, her guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, éntered in the office of the clerk of the county of Hew York on the 5th day of June, 1896,.upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term.

Appeal by the defendant, James; I. Raymond, as President of A. A. Vantine & Co., from a judgment of the Supreme Court in favor of the plaintiff, entered in the offiep of the clerk of the county of New York oil the 28tli day of November, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of November. 1898, denying the defendant’s motion for a new trial made upon the minutes.

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 New York on the 3d day of March, 1899, upon the decision of the court rendered after a trial at the New York Special Term enjoining the defendant from interfering with the plaintiff in the conduct of a hotel in Riverside Park known as the “ Claremont,” and from in any way preventing him from enjoying the privileges…

Appeal by the defendants, Henry Hilton and others, copartners, composing the firm of Hilton, Hughes & Co., 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 21st day of November, 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, Rosalie E. Hyams, as executrix, etc., of Joel E. Hyams, 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 10th day of April, 1899, denying her motion to direct the clerk to tax costs in her favor, and also that she be granted an extra allowance.

Appeal by the plaintiff, Mary E. Robinson, 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 30th day of March, 1899, dismissing the complaint upon the plaintiff’s opening upon the ground that.it did not state a cause of action.

Appeal by the Lovell Dry Plate Manufacturing 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 May, 1899, denying its motion to vacate an order for the' examination of one Charles. 0. Lovell before action brought.

Appeal by the plaintiffs, Clarence M. Wescott 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 New York on the 4th day of August, 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 Andrew J. Connick, a purchaser under a decree of partition and sale in the above-entitled action, 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 11th day of May, 1899, requiring him to complete his contract to purchase certain premises, and adjudging that his objections to the title of said premises were untenable, and that the title objected to was in all respects good…

Cross-appeals by the relator, The State Board of Charities, and by the defendant, The New York Society for the Prevention of Cruelty to Children, 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 14th day of January, 1899, granting in part and denying in part a mandamus against The New York Society.for the Prevention of Cruelty to Children.

Appeal by the defendant, Marie Louise Moore, individually and as temporary administratrix, etc., of Gideon E. Moore, deceased, from an interlocutory, judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Flew York on the 28th day of February, 1899, upon the decision of the court rendered after a trial at the Flew York Special Term.

Appeal by the defendants, Thé John Eichler Brewing 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 5th day of January,¡ 1899, upon the decision of the court rendered after a trial at the ¡New York Special Term.

Appeal oy Paul Hesse and others from so much of a final 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 March, 1899, as overrules the exceptions to the report of a referee and - confirms said report, and directs that the cash in the hands of the assignee of the Williams Ink Works be paid to preferred creditors, under the general assignment for the .benefit of creditors.

Appeal by the plaintiff, The Central Fireworks Company, 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 28th day of November, 1898, upon the. decision of the court rendered, after a trial at the New York Special Term.

Appeal by the defendant, Max Loewenstein, 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 7th day of January, 1899, upon the verdict of á jury rendered by direction of the court, and also from an order bearing date the 18th 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, Agnes E. Burns, from a judgment of the-Supreme Court in favor of 'the defendant-, entered in the office of the clerk of the county of Rew York on the 8th day of September,. 1898, upon the decision of the court rendered after a trial.at the New York Special Term.

Appeal by the plaintiffs, Minnie E. Hallett and another, as administrators of Edgar A. Hallett, deceased, 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 April,. 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by John E. Ellison 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 14th day of April, 1899, directing the appellant to pay to the respondent the sum of twenty-five dollars which the respondent paid to the appellant under protest in order to obtain a bond from the possession of the latter.

<p>Appeal by the defendant, Simon Feist, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 7th day of October, 1898, affirming a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff, entered in the office of the clerk of the Municipal Court of the city of Hew York on the 24th day of March, 1898, and also (as stated in the notice of appeal) from a judgment of the Appellate Term of the Supreme Court, entered in the office of- the clerk of .the county of Hew York on the 17th day of Hovember, 1898, affirming said judgment of the Municipal Court.</p>

Appeal by the plaintiff, Robert G. Gregg, 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 7th day of February, 1899, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the proponent, Charles Herrlich, who is also the residuary legatee and executor named in the last will and testament of Rosa Raab, deceased, from so much of a decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 27th day of May, 1898, as adjudges “that the intention of the testatrix in making the disposition contained in the will by which she gives her residuary estate to Charles Herrlich was merely to devote so much…

Appeal by the plaintiff, Thomas D. Rambaut, as assignee for the benefit of creditors of Wilson Brothers Woodenware and Toy Company, .from-a judgment.of the Supreme Court in favor of the defendant, entered in the office of the clefk of the county of New York on the 17th day of April, 1899, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term

<p>Motion by the defendant, The New York National Exchange Bank,' for a new trial upon a ease containing exceptions, ordered to be heard i 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 New ! York Trial Term.</p>

Appeal by the defendant, Mary E. Caldeiy from an order of the Supreme Court, made at the Mew Ybrk Special Term and entered in the office of the clerk of the county of Hew York, adjudging the defendant guilty of contempt, for disobeying an order requiring her to appear for examination in supplementary proceedings.

Appeal hy Elizabeth A. Demarest and others, the defendants in; ' the first above-entitled action, and by John H. McKee and others,, the defendants in the second above-entitled action, from an order of the Supreme Court, made at the New York Special Term, bearing-date the 21st day of March, 1899, and entered in the office of the; clerk of the county of NTew York, as amended by an order made at-the New York Special Term and entered in said clerk’s office on the-1st day of…

Appeal by Raphael J. Moses 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 April, 1899, denying his motion to vacate a judgment dissolving the Grand Central Bank and an order appointing a receiver of its. property and to set aside an assignment executed by such receiver to one Charles E. Sehaffner of certain judgments theretofore, obtained by the bank against James P.…

Appeal by the plaintiff, William Green, an infant, by Edward J. Green, his 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 28th day of April, 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 4tli day of April, 1899, denying the plaintiff’s motion for a…

<p>Metra allowance in a partition suit—what does not constitute a defense under Code Civil Procedure, section 3253, subdivision -2 — chapter 61 of the Laws of 1898 is applicable to suits pending 'at the time of its enactment.</p> <p>An answer interposed by a defendant in ¡a partition suit, uniting in the prayer of the complaint, but disputing the title of a co-defendant, does not present "a defense” within the meaning of subdivision 2 of section 3253 of the Code of Civil Procedure, as amended by chapter 61 of the Laws of 1898, authorizing the court to grant as an extra allowance “in any action * * * where a defense has been interposed, a sum not exceeding five per centum upon the sum recovered or claimed or the value of the subject-matter involved; ” and in such a case the amount which the court has power to award as an extra allowance is limited by subdivision 1 of the section, as. thus amended, to §200. The amendment of 1898 applies to actions begun before its enactment.</p>

Appeal by the plaintiff, Emma Huida Beil, 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, discontinuing the action and directing the plaintiff to deliver to the defendant the benefit certificate upon which the action is based.

Appeal by the defendants, Iienry H. Jackson and others, as executors of and trustees under the last will and testament of Peter A. H. Jackson, late of the city of New York, deceased, 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 5th day of May, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of April, 1898, denying the defendant’s…

Appeal by the plaintiff, Isaac Frank, 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 February, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiff, Charles Hofferberth, 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 20th day of January, 1899, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term.

<p>Appeal by the defendants, John J. Bannan 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 12th day of April, 1899, upon the decision of the court rendered after a trial at the New York Special Term overruling the defendants’ demurrer to the complaint, and awarding the plaintiff the relief demanded in the complaint.</p>

Appeal by the plaintiffs, Simon E. Bernheimer and another, from a judgment of the Supreme Court in favor of the defendants, Emil E. Blumenthal and Annie Góldfarb, 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 relator, William O. Ricé, from a final 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 24th. day of March, 1899, dismissing an alternative writ of mandamus* after a trial at the New York Special Term.

Appeal by Eliza Dean Post and others 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 March, 1899, denying theii; motion to vacate an order directing the chamberlain of the city of New York to pay to Daniel F. Tiemann and others the amount of an award made for a parcel of land taken in a proceeding for an extension of Riverside Park, and also denying the appellants’…

<p>JLction to reform an insurance policy—proof required — a/mendment of a complaint alleging a mutual mistake, by which fraud is sought to be set up, denied.</p> <p>The plaintiff in an action for the reformation of a contract must establish by clear and convincing proof a mutual mistake of both parties to the contract, or a mistake on the part of one and fraud on the part of the other party, concerning a material provision of the contract.</p> <p>Where the complaint in such an action bases the right to relief upon allegations of mutual mistake, the court may properly deny an application to amend the pleadings by alleging fraud on the part of the defendant.</p>

Motion by the plaintiff, Cornelius Deane, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, on the dismissal of the complaint by direction of the court after a trial at the Erie Trial Term.' When the plaintiff first rested the court intimated an intention to nonsuit the plaintiff .and to allow an exception to such ruling.

Appeal by the defendants, Getirge E. Warner and another, indi-, vidually and as police commissioners of the city of Rochester, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 5th day of April, 1899, denying their motion to vacate a temporary injunction theretofore granted in the action.

<p>Appeal by the relator, John Leonard, from an order of the county judge of Monroe county, bearing date April 20, 1899, directing the county treasurer of that county to issue to the relator a liquor tax certificate, unless within five days the town clerk of the town of Ogden should file with the. county treasurer a certified copy Of the statement of the result of the elebtion in said town, “ pursuant to section 16 of the Liquor Tax Law, from which it shall appear that said Liquor Tax certificate cannot lawfully be granted, in which event the application shall be and is refused and the writ of certiorari quashed, without costs.”</p> <p>The relator is a resident of the town of Ogden, in said county, and for several years prior to the commencement of this proceeding had. been the owner of “ Cottage Hotel,” in said town, and engaged therein in the traffic of intoxicating liquors in pursuance of a license duly issued to him. After the regular town meeting, held in said town in the month of March, 1899, the town clerk, on the fourteenth day of March, filed with the treasurer of said county a statement, signed by him, of which the following is a copy, viz.:</p> <p>“ Gov/nty of Monroe.-— Statement of the vote of the Town of Ogden on questions submitted on local option at the annual Town Meeting, held in said town March 'Tth, 1899.</p> <p>“ Question Number ‘ 1 ’ No. voting yes, 250 ; No, 328.</p> <p>“ Question Number ‘ 2 ’ No. voting yes, 218; No, 314.</p> <p>“ Question Number ‘ 3 ’ No. voting yes, 351; No, 185.</p> <p>“ Question Number ‘4’ No. voting yes, 260; No, 305.</p> <p>“F. H. DEWEY, Town Olerh.”</p> <p>On the twenty-fourth day of March the relator applied to the county treasurer for the certificate authorized by the Liquor Tax Law, tendering the sum required by statute therefor and presenting the necessary bond. The. treasurer refused to issue the certificate on the ground that the statement aforesaid had been filed with him apprising him that a majority of the qualified electors of the town of Ogden had voted against the granting thereof, and he indorsed upon the application of relator a copy of such statement. The relator thereupon commenced this proceeding. '</p>

<p>Appeal by the plaintiffs, George ¡Doheny and another, as administrators with the will annexed of ¡Lucius Gleason, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the. office of the clerk of the county of. Onondaga on the 2Tth day of June, 1898, tipon the ¡verdict of a jury, and also from an order entered-in said clerk’s office denying the plaintiffs’ motion for a new trial made upon the minutes.</p> <p>This action was brought to recover large sums of money claimed to be due upon promissory notes and for the value, of many shares or certificates of the capital stock of the Third National Bank of Syracuse, N. Y.</p> <p>The defendant was the cashier of this bank and the executor named in the last will and testament of Lucius Gleason, who was an uncle of the defendant. ,</p> <p>After the probate of the will letters testamentary thereon were issued to defendant as sole executor thereof. The defendant was subsequently removed from the executorship, not because of any dereliction of duty, but because his position as resisting debtor of testator might be antagonistic to his duties as executor. Thereupon the plaintiffs, who were in sympathy with the next of kin, claiming a liability in excess of that asserted by the defendant, were appointed as administrators with the will annexed, and commenced this action.</p> <p>The answer of, defendant, in addition to various averments of payment, set forth that the rights of Gleason and defendant were fixed by an agreement made between them on the 24th day of December, 1892, and which is as follows, viz.:</p> <p>“ Memoranda of an Agreement entered into ■ this 24th day of December, 1892, between Lucius Gleason, of Liverpool, N. Y., party of the first part, and Henry Lacy, of Syracuse, N. Y., party of the second part, witnesseth:</p> <p>“ Whereas, heretofore on the first day of December, 1883, the party of the first part sold and delivered to the party of the second part ten shares of the capital stock of the Third National Bank of Syracuse at the price of $133 1/3 per share; thereafter on the 21st day of September, 1889, 748 shares of said stock at the price of $133 1/3 per share; thereafter on the first day of May, 1890, 775 shares of new issue of increased stock of said bank, and certain stock purchased from'the estate of Harmon W. Yan Burén, at $100 per share, and from time to .time 164 shares of said stock in addition at the price of $100 per share, making in all 1,697 shares of said stock; and</p> <p>“Whereas, it was expressly agreed between the parties hereto at the time of the sale and delivery of said stock as part of the contract, that the party of the second part should have ample time to pay for such stock, so that the purchase price thereof should practically be paid out of the dividends that might be declared thereon, the party of the first part appreciating the fact that said party of the second part could not otherwise afford to pay for such stock the price so fixed thereforand ;</p> <p>“Whereas, it has been the policy of the party of the first part in the management of the said Third National Bank to defer the payment of dividends on its stock, and as a consequence the party of the second part has been unable to make such payments, and it is deemed desirable by the parties hereto that a specified term for the payment of said stock should be fixed and that the party of the first part should be secured for the payment thereof; and</p> <p>“Whereas, the party of the- first part, fully appreciating the service of the party of the second part in his behalf, is particularly desirous of making the terms of payment liberal and advantageous to the party of the second part; ;</p> <p>“Now, Therefore, in consideration of the premises and of the payment of the sum of one dollar by each to the other, and of the mutual covenants herein contained, the parties hereto mutually agree as follows:</p> <p>“ 1. The party of the second part is to execute and deliver forthwith to the party of the first part his promissory note for the sum of $194,966.66, which is to become payable in ten (10) years from the date hereof, without interest.</p> <p>“2. The party of the second p;art agrees that the party of tfirst part shall have a lien by way of collateral security upon said 1,697 shares of the capital stock of the Third National Bank and that he will hold said stock as the agent of the party of the first part to the extent of the lien of the latter upon said stock; provided, however,, that in case he shall at the request of the party of 'the first part pledge said stock for the- benefit of the latter, the possession of such pledgee shall be deemed the possession of the pai’ty of the second part under the terms of this agreement, it being understood that in case any stock so pledged for the benefit of the party of the first part shall not be returned to' the party of the second part without expense to him for the redemption thereof, the amount paid to redeem such stock, or in case- of the failure or inability of the party of the second part to redeem the! same, the sum of $133 1/3 for every share not returned, shall be: credited upon said note.</p> <p>“ 3. The party of the second part shall have the right at any time before the maturity of said note to anticipate the payment of the whole or any part of the principal thereof, and shall upon such payi ment be entitled to a discount from such principal at the rate of six per cent per annum for the unexpired term of said note. In case a part only of said principal is paid, the party of the second part shall be entitled to the possession of such proportion of said stock, free from all claims thereon as collateral security, as the anticipated payment, plus the discount deducted from the principal of said note by reason of such payment, bears to the face of said note.</p> <p>“ 4. This agreement shall enure to the benefit of and shall be binding upon the personal representatives and assigns of the respective parties hereto.</p> <p>“ In witness whereof, the parties hereto have hereunto aifixed their hands the day above written.</p> <p>“ Witness. L. GLEASON.</p> <p>“ H. L. Elsner. HENRY LACY.”</p> <p>“ Louis Marshall.</p> <p>There was nothing in the pleadings assailing this agreement, nor was it in any way charged that the samé was fraudulently procured or that Gleason lacked the mental capacity to execute the same and to comprehend its scope. At the trial, however, for the purpose of simplifying the issues, the following stipulation was entered into, viz.:</p> <p>“ It is agreed that Mr." Lucius Gleason, deceased, advanced for the benefit of Mr. Lacy, September 21st, 1889, for the purchase of bank stock transferred to Mr. Lacy, $101,166.66, which was used for the purchase of 758 shares of stock in the Third National Bank, which was to draw interest at six per cent from January 27th, 1893.</p> <p>“That Mr. Lucius Gleason advanced to Mr. Henry Lacy, the defeildant, to purchase five shares of stock December 2,1889, $500, which is to draw interest at six per cent from December 2nd, 1889, the same being the O. G. Alvord stock.</p> <p>“ That May 1st, 1890, Lucius Gleason advanced to Henry Lacy, to purchase what was known as the Van Burén stock, and to pay for stock issued on an increase of the capital stock of the Third National Bank, which was transferred to Mr. Lacy on that day, in the aggregate 775 shares, $77,500, which is to bear interest at six per cent from May 1st, 1890.</p> <p>“ That May 26th, 1890, Mr, Lucius Gleason, deceased, advanced to Mr. Lacy, the defendant, $5,000 to pay for 50 shares-.of stock purchased of Nellie H. Frazier, which is to bear interest at six per cent from May 26th, 1890.</p> <p>“ That May 26th, 1890, Mr. Lucius' Gleason transferred to Mr. Lacy, the defendant, 89 ■ shares of stock for which he is to be charged with $8,900, with interest from May 26th, 1890, at six per cent.</p> <p>“ That interest as aforesaid is to: be computed on said sums respectively, at the rate aforesaid, to November 5th, 1894, when Mr., Lacy is to be credited with $99,692.95, to be taken from the aggregate of principal and interest as above, and interest at six per cent to be • computed on the balance to date.”</p> <p>According to the computation made in pursuance of this stipulation the plaintiffs were entitled to recover, if at all, the sura of $157,857.12.</p> <p>After the production of this stipulation the court made the following statement, viz.:</p> <p>“ Let me see if I understand it. I understand that the only issue now to be tried is whether or not a' certain contract which has been spoken of here was a valid and binding agreement; and that that depends entirely upon whether or not at the timé it was executed Mr. Gleason was of sufficient mental capacity to make the agreement. In other words, that the only issue here is as to Mr. Gleason’s mental capacity.”</p> <p>Regardless of the ¡Dleadings in the action, the parties assented to this, and the large volume of testimony is chiefly directed to the question of the mental capacity pf Gleason on the 25th day of December, 1892, at the time of the execution of this agreement.</p>

<p>Sale of a safe—measure of damages where the safe delivered does not comply with the terms of the contract— a rescission and offer to return must he pleaded.</p> <p>In an action by the vendee in an executory contract for the manufacture and sale of a safe to recover damages under the contract because of the failure of the vendor to deliver a safe complying with the terms of the contract, it is error for the court to charge that the measure of damages is the difference between the contract price and the market price on the day of delivery, or on the day when the vendee discovered that the safe did not comply with the terms of the contract.</p> <p>In the absence of appropriate allegations in the complaint, evidence that the vendee rescinded the contract and offered to return the safe, is inadmissible.</p> <p>The tight of the vendee in the event of the breach of the implied warranty, and in the case of a breach of an express warranty, considered, and the true measure of damages in each case stated.</p>

<p> Assessment when it cannot he attached collaterally. </p> <p>An assessment for the purpose of taxation, made by assessors having jurisdiction of the person assessed, cannot be attacked collaterally.</p>

Appeal by the plaintiff, Amelia Orcutt, from a judgment of the County Court of Chautauqua county in favor of the defendant, entered in the office of the clerk of the county of Chautauqua on the 12th day of January, 1899, upon the .decision of the court dismissing the plaintiff’s complaint upon the merits.

. Appeal by the plaintiff, John Savage, 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 2d day of November,. 1898, upon the dismissal of the complaint by direction of the court after a trial at' the^ Kings County Trial Term, at which three specific questions were submitted to the jury.

Appeal by the defendant, the Biershenk Company, 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 20th day of February, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term overruling the said defendant’s demurrer to the complaint.

Appeal by Joseph T, Hall and Robert H. Homan, the relators in the above-entitled proceedings, • respectively, from orders 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 8tli day of April, 1899, éach allowing a bill of costs on the motion of the defendant and directing the clerk of Queens county to insert the amount thereof in the order or judgment therein.

Appeal by the plaintiff, John McCarthy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Grange on the 14th day of December, 189Y, upon the dismissal of the complaint at the close of the plaintiff’s case by direction of the court after a trial at the Kings County Trial Term.

Appeal by the petitioner, Charles F, Gall, from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 9th day of January, 1899, denying the petitioner’s motion' to modify a decree directing final distribution of- the estate of the decedent.

.Appeal by the defendant, Henry M. Cummings, from a judgement of the Municipal Court of the city of New York in favor of' the plaintiff, and entered in the office of the clerk of said court-,, awarding to the plaintiff possession of premises demised to the» defendant, in summary proceedings! for the non-payment of rent.

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 Richmond on the 13th day of April, 1899, upon the decision of the court rendered after a trial before the court, without a jury, at the Richmond Trial Term.

Appeal by.the defendant, Emma O. Sarles, 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 14th day of September, 1898, upon the verdict of a jury, and •also from an order entered in said clerk’s office on the 1st day of October, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, J. Spencer Turner, 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 December, 1898, upon the verdict of a jury rendered by direction of the court • after a trial at the Kings County Trial Term.

<p>Appeal by the defendant, The New York and Queens County 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 Queens on the 12th day of December, 1898, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 13th day of December, 1898, denying the defendant’s motion ■for a. new trial made upon the minutes.</p> <p>The action was brought to recover damages for personal injuries sustained by the plaintiff, an employee of the defendant, through the latter’s alleged negligence. The accident out of which the action arose happened while the plaintiff was sitting on the corner of a flat car which was being pushed by a motor car to á switch, and was caused by the sudden falling of the brake shoes- from the flat car, in consequence of which the flat car was derailed, causing the motor car to collide with it and crush the plaintiff’s leg, which was hanging over the end of the flat car.</p>

Appeal by Bernard J. York and others, composing the board of police commissioners of the city of Hew York, 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 20th day of March, 1899, directing the issuance of a peremptory writ of mandamus commanding them to reinstate the petitioner in the public service of the city of Hew York, for service or employment therein under the direction…

Appeal by the defendant, the Joseph H. Bauland 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 27th day of December, 1898, upon the verdict of a jury for $11,500, and also from an order entered in said clerk’s office on the 27th day of December, 1898, denying the defendant’s motion for a- new trial made upon the minutes..

Appeal by the plaintiff, Ferris J. Meigs, from a judgment of the ■Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Franklin on the 22d day of October, 1898, upon the decision of the court rendered after a trial at the St. Lawrence Special Term dismissing the complaint.

Cross-appeals by the petitioner, Amos L. Sargent, and by Margaret H. Bradley, as administratrix, etc., of George Bradley, deceased, from an order of the Surrogate’s Court of the county of Washington, entered in said Surrogate’s Court on the 21st day of November, 1898, denying the application of the petitioner to compel the administrators to account for their proceedings as to the personal property of their intestate, and directing them to account for the moneys received by…

. Certiorari issued out of the Supreme Court and attested on. the 17th day of April, 1899, directed to William C. Elmendorf, mayor of the city of Ithaca, commanding him to certify and return to the office of the clerk of the county of Tompkins all and singular the proceedings taken in dismissing the relator from the police force of the city of Ithaca.

Appeal by the defendant, The.Village of Owego, from a judg: ment of the Supreme Oourt in fayor of the plaintiff Joel A. Hamilton, entered in the office of the clerk of the county of Tioga on the 3d day of January, 1899, upon the report of a referee adjudging that the entry of the defendant upon the lands of the plaintiff Joel A. Hamilton, for the purpose Of constructing and maintaining a highway, was without right and unlawful, and enjoining the defendant, its attorneys,…

Appeal by the defendant, Robert McCrea, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Clinton on the 14th day of January, 1899, denying his. motion to cancel and discharge of record a judgment against him and the defendant Murrray, upon which judgment such defendants had been imprisoned upon an execution issued against their persons.

Appeal by the defendant, Frank H. Mills, from, an interlocutory judgment of the Supreme: Court in favor of the plaintiff, entered in the office of the cleric of the comity of Fulton on the 21st day of February, 1899, upon the decision of the court, rendered after a trial at the Fulton Special Term, overruling the said defendant’s demurrer . to the complaint, interposed upon: the ground that the complaint failed to state facts sufficient to constitute a cause of action.

Appeal by the defendant, Barnard Flanigan, from a judgment of the County Court of the county of Saratoga in favor of the plaintiff, rendered on the 1st day of March, 1898, upon the verdict of a jury convicting him of the crime of assault in the second degree.

Appeal by the defendant, The Central New York Telephone and Telegraph Company, from a-judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chenango on the 4th day of March, 1898, upon the verdict of a jury for $600, and .also from so much of an order entered in said clerk’s office on the 19th day of March, 1898, as denied the defendant’s'motion for a new trial made upon the minutes.

<p>Negligence—fall of a pedestrian on an earth sidewalk having depressions in which ice forms — when the city is not liable.</p> <p>The existence, in an earth sidewalk on a much traveled city street, of inequalities and depressions so slight as not to obstruct the ordinary use of the walk by pedestrians, but sufficient to'permit water to collect" in them which freezes in the event of a sudden fall in temperature, does not afford a sufficient basis for •charging the city with negligence, in an action brought against it by a pedestrian who, while passing along the sidewalk, fell upon ice which had formed in the depressions and was covered with snow.</p>

Appeal by the plaintiffs, Mary L. Beekman and another, from an order of' the County Court of Montgomery county, entered in the office of the clerk of the county of Montgomery on the 11th day of April, 1898, granting the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 10th day of June, 1898, amending said order.

Appeal by the plaintiff, Mary J. Wade, as executrix, etc., of Sally E. Brockway, deceased, from a judgment of the Supreme: Court in favor of the defendant Jane E. Miller, entered in the office of the clerk of the county of Rensselaer on the 28th day of January, 1899, upon the decision of the court rendered after a trial before the court without a jury at the Rensselaer Trial Term.

Appeal by the defendant, Henry Smith, as substituted trustee under the last will and testament of Anna R. Kling, deceased, from •a judgment of the County Court of Sullivan county in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 3d day of February, 1897, upon the verdict of a jury rendered by direction of the court, and also from an order denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, A. Page Smith, as receiver, etc., of Joseph Seeney,- and also by Edward L. Barckley, as treasurer of Albany county, from a judgment of the County Court of Albany county in favor of the plaintiff against the defendant Edward L. Barckley, as treasurer of Albany, county, for $250, entered in the office of. the clerk of the county, of Albany on the 28th day of November, 1898, upon the verdict of a jury rendered by direction of the court, and also from…

Appeal by the defendant, the J. & J. Rogers Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Essex 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 Essex Trial Term.

Appeal by the defendant, John G. Meyer, from a judgment- of the Supreme Court in favor, of the plaintiffs, entered in the office of the clerk of the county ,of Delaware on the 29th day of August, 1898, upon the report of a referee, j

Appeal by the defendant, The Herald Company, from a judgment of the Supreme Court in favor of- the plaintiff, entered in the office of the clerk of the county of Cortland on the 20th day of March, 1899, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 6th day of March, 1899, denying the defendant’s motion for a new trial made upon a case and exceptions.

Appeal by the plaintiff, Mary E. Yates, from a judgment of the Supreme Court in favor of the defendant,, bearing date the 25th day of October, 1898, and entered in the office of the clerk of the county of Washington upon the dismissal of the complaint by direction of the court after a trial before the court without a jury at the Washington Trial Term.

Appeal by the defendant, Charles W. Harris, as executor, etc., of Edmund S-. Harris, deceased, 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 12th day of December, 1898, upon the verdict of a jury for $2,000, 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.

Certiorari issued out of the Supreme Court, and attested on the 4th day of November, 1898, directed to the Board of Railroad Commissioners of the State of New York commanding them to •certify and return to the office of the clerk of the county of Albany their proceedings in granting to the New York and North Shore Railway Company a certificate, under section 59 of the Railroad Law.

■ Appeal by Frances Baber, as administratrix, etc., of Elizabeth Wilbur, deceased, from a decree of the Surrogate’s Court of Washington county, entered in said Surrogate’s Court on the 16th day of December, 1898, settling the accounts of said administratrix.

Appeal by the plaintiff, John H, Watson, from a judgment of( the Supreme Court in favor of the defendant Lucretia Kemp, entered in the office of the clerk of the county of Essex on the 15th day of December, 1898, upon the decision of the. court, rendered after a trial before the court without a jury at the Essex Trial Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, Charles R. O’Connor, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Greene on the 29th day of June, 1898, upon the dismissal of the complaint by direction of the court after a trial at the Greene Trial Term.

Appeal by Jacob Deitz and .Zilar Minard, sureties on the bond of Edwin R. Lawrence, deceased,; who was the administrator of the estate of Sarah J. Lawrence, deceased, from a decree of the Surrogate’s Court of Sullivan county, entered in said Surrogate’s Court on the 23d day of January, 1899, 'judicially settling the accounts of Edwin R. Lawrence, as administrator, etc., of Sarah J. Lawrence, deceased, especially from every part thereof relating to any charge or indebtedness…

Appeal by the defendant, Julia P. Chandler, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 2d day of April, 1897, upon the decision of the court rendered after a trial before the court without a jury at the Franklin Trial Term, with notice of an intention to bring up for review upon such appeal the interlocutory judgment in said action and the order overruling the demurrer to the complaint,…

Appeal by the defendant, The City of Elmira, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the .clerk of the county of Chemung on the 20th day of March, 1897, upon the verdict of a jury for $2,000, and also from an order, entered in said clerk’s office on the 23d day of July, 1898, denying the defendant’s motion for a new trial made upon the minutes; also upon the ground of misconduct on the part of the. jury, and also upon…

Appeal by the plaintiff, Timothy A. Hatton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of .the county- of Albany on the Ith day of December, 1898, upon the dismissal of the complaint by direction of the court after a trial at the Albany Trial Term. The defendant was employed to place a skylight over the Senate ¿taircase in the Capitol at Albany.: It was necessary to build first .a temporary scaffold.

Appeal by the defendant, George P. Pudney, as execntor3 etc.,, of Avis Scarritt, deceased, and trustee, from an order of the Supreme Court, made at the Broome Special Term and entered in the office-of the clerk of the county of Chenango on the 1st day of March,. 1899, denying his motion for a modification of the judgment entered in the action by striking out and. expunging from said judgment all direction, power and authority therein conferred upon the referee therein named,…

Appeal by the plaintiff, William H. Townsend, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Ulster on the 22d day of December, 1897, upon the decision of the court, rendered after a trial at the Ulster Trial Term, dismissing the complaint upon the merits, certain specific questions having been submitted to the jury.

Appeal by the defendant, Charles C. Robinson, as collector of taxes of the town of Long Lake, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hamilton on the 23d day of January, 1899, upon the report of a referee.

Ap-peal by the defendant, Lucy Trembly, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on. the 20th day of January, 1898, upon the report of a referee. i

Appeal by the defendants, Ann Mooney 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 Tompkins on the 1st day of September, 1898, upon the decision of the court, rendered after a trial before the court without a jury at the Tompkins Trial Term, awarding the plaintiff possession of certain premises described in the complaint, with damages for withholding the same.

Appeal by the plaintiff, Aim on Z. Lewis, from a judgment of the County Court of Saratoga county in fav.or of the defendant, entered in the office of the clerk of the county of • Saratoga on the 10th day of January, 1899, affirming in part and reversing in part a judgment of a justice of the peace in favor of the plaintiff..

Appeal by the defendant, The Village of Elmira Heights, from an order of the Supreme Court, made at the Chemung Special Term and entered in the office of the clerk of the county of Chemung on the 6th day of March, 1899, vacating an order made by a judge at Chambers requiring the plaintiff to file security for costs, on the ground that she was a non-resident.

Appeal by the claimant, Michael T. Horner, from a judgment of the Court of Claims, entered in the office of the clerk of said court on the 18th day of January, 1899, dismissing the claim of the claimant.

Appeal by the plaintiffs, John Shulz and others, from a judgment •of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 30th day of March, 1899, upon the decision of the court, rendered after a trial at the Albany Special Term, overruling their demurrer to the second defense set forth in the defendant’s answer.

Appeal by the plaintiff, Valentine G. Foehner, 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 30th day of January, 1899, upon the decision of the court, rendered after a trial at the Monroe Special Term, authorizing the dismissal of the plaintiff’s complaint as to both defendants, and declaring that Huber, executor, “is entitled to said fund, to wit, the sum of $1,567.75, besides the accrued…

Appeal by the defendant, Nelson A. Stafford, from a judgment of the County Court of Monroe county, entered in the office of the clerk of the county of Monroe on the 1st day of February, 1899, upon the decision of the court. The action was brought to enforce a mechanic’s lien against property, described _ in certain notices of liens, which was the property of David L. Tait at the time the notices were filed.

Appeal by the defendant, James A. McFarline, as sheriff of the county of Wyoming, from a judgment of the Supreme Court in favor of the plaintiffs, éntered in the office of the clerk of the county of Wyoming on the 20th day of February, 1899, upon the decision of the court rendered after a trial before the court without a jury at the Erie Trial Term, adjudging that the plaintiffs recover from the defendant the chattels described in the judgment, or, in case possession thereof…

Appeal by the defendants, Townsend Davis 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 Erie on the 20th day of January, 1898, upon the verdict of a'jury, and also from'an order entered in said clerk’s office on the 14th day of January, 1898, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, The Town of Sardinia, 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 9th day of January, 1899, upon the verdict of a jury for $4,000, 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 Theodore E. Hancock, Attorney-General of the State of New York, and by the People of the State of New York, from a decree of the Surrogate’s Court of Jefferson county, entered in said Surrogate’s Court on the 22d day of July, 1898, admitting to probate the last will and testament of Henry Dixon, deceased.

Appeal by the defendants, William P. Reed, in the first above-entitled action, Elijah R. Saxton, in the second above-entitled action, Granger A. Hollister, in the third above-entitled action, Charles C. Clarke and another, as executors, etc., of Christina Cameron Hasten, deceased, and Joseph Griffiths Hasten, in the fourth above-entitled action; and James E. Ford, as executor, etc., 'of Hary F. Clark, deceased, in the fifth above-entitled action, from interlocutory judgments…

Appeal by the plaintiff, Charles P. Sweet, from a judgment of the Supreme Court in favor of: the defendant, entered in the office. of the clerk of the county of Cayuga on the 25th day of May, 1896, 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 25th day of May, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants,.. The Board of Supervisors of the County of Erie, John Eimer as chairman, and Hiel McCloskey as clerk of said board, 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 6th day of February, 1899, directing that a peremptory writ of mandamus issue commanding the defendants to -place upon the roll of members of said board the name of Frederick Howard, as supervisor from…

Appeal by the plaintiff, Sarah A. Jones, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Oswego on the 13th day of January, 1898, upon the report of a referee.

Appeal by the defendant, Asa E. Dye, as administrator, etc., of Elisha E. Dye, deceased, from a judgment of the County Court of Chautauqua county, entered in the office of the clerk of the county of Chautauqua on the 26th day of January, 1899, reversing a judgment of nonsuit rendered by a justice of the peace.

Appeal by the defendant, The Delaware, Lackawanna and .Western. Railroad Company, from an order of the Supreme Court, made at the Oswego Special Term and entered in the office of the clerk of the county of Oswego on the 26th day of September, 1898, granting the plaintiff’s motion for a new trial -made upon the minutes.

Appeal by the defendants, Orson' C. Gleason and others, from an order of the Supreme Court, made at the OñQndaga Special Term and entered in the office of the clerk of the county of Onondaga on the 28th day of January, 1898, confirming the report and award of commissioners appointed to ascertain the .compensation to be made to the owners of the property described in the petition herein. \ In the year 1870 the Syracuse Northern Railroad Company, built its road across a farm…

Appeal by the defendant, the Syracuse Rapid Transit Railway Company, from a judgment of the County Court of Onondaga county in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 14th day of February, 1899, upon the verdict of a jury for $450, and! also from an order entered in said clerk’s office on the 14th day of February, 1899, denying the-defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The City of Oswego, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 10th day of February, 1899, upon the verdict of a jury for $1,500, 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.</p>

Appeal by the plaintiff, Jessie D. Lund, from an order of the Supreme Court, made at the Monroe -Special Term and entered in the office of the clerk of the county of Monroe on the 23d day of August, 1897, setting aside the verdict of a jury as to the defendant Anna B. Spencer and granting her a new trial.

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 Onondaga on the 22d 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 24th day of October, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Breadway Insurance Company of the City of New York, from an order of the Supreme Court, made at the Erie Trial Term and- entered in the office of the clerk of the county of Erie on the 17th day of February, 1899, denying the. defendant’s motion to amend its answer, and also from an order made at the Erie Special Term and entered in said clerk’s office on the 5th day of May, 1899, denying the defendant’s motion to open its default.

Appeal by the plaintiff, Orville Balen, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Oneida on the 6th day of March, 1899, upon the decision of the court, rendered after a trial at the Oneida Special Term, dissolving an injunction theretofore granted in the action and dismissing the complaint upon the merits.

Appeal Ay the defendant, Thomas E. Kinney, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Oneida on the 14th day of April, 1899, denying his motion to vacate and strike out from the judgment entered in the action the following part thereof, to wit: “ II. That said mayor and clerk sign the said contract as directed by the common council of said city,” and amending the judgment accordingly.

Appeal by the defendant, Abraham Hawkins, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 20th day of October, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of October, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Rock H. Parsons, 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 11th day of November, 189-8, setting aside his answer as frivolous and directing judgment of foreclosure.

Certiorari issued out of the Supreme Court and attested on the 22d day of April, 1899, directed to Frank Maynard, superintendent of the poor of the county of Herkimer (in which county the distinction between town and county poor exists), requiring him to certify -and return to the office of the clerk of the county of Herkimer all and singular his proceedings had in disallowing in part the application of Jonah May, as overseer of the poor of Little Falls, to have the expense…

Appeal by the defendant, The Village of Penn Yan, 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 1st day of February, 1899, upon the verdict of a jury for $775, and also from an order entered in said clerk’s office on the 1st day of February? 1899, denying the defendant’s motion for a new trial made upon the minutes.

<p> Lloyds open marine insurance policy—duty of a person accepting a certificate referring to it to inform himself as to the contents of the policy. </p> <p>A person who accepts a certificate of marine insurance stating that he is “insured under and subject to the conditions of ¡ Open Policy No. 4007, issued by the Buffalo Fire and Marine Underwriters, of Buffalo, N. Y.,-at the Buffalo, N. Y., agency,’’ is bound to inform himself of the contents of such policy;, and in the absence of evideuce of fraud or mistake, or that he made inquiry concerning the character of the Buffalo Fire and Marine Underwriters, he cannot successfully contend that because his agent did not know that it was a Lloyds association (which would have been apparent from an inspection of the policy referred to in the certificate, which was at all times in the possession of the .association), but supposed that it was a corporation, the insured never assented to its restriction and limitations; nor can the insured, having contracted with the underwriters in their capacity as Llqyds insurers and stipulated as to the measure of their liability, claim that the underwriters were unlawfully engaged in transacting business, and that by reason of that fact and their methods of business, they became liable as common-law partners.</p>

* Appeal by Frederick L. Sant way, executor, etc., of Michael Fults, deceased, from a decree of the Surrogate’s Court of Jefferson county, entered in said Surrogate’s Court on the 6th day of January,' 1899, denying probate to the proposed will of Michael Fults, deceased.

<p>Jurisdiction of the Appellate Division to hear and determine motions and to determine controversies between attorney and client — conclusiveness of a determination therein in a subsequent action by the attorneys brought upon contracts for a contingent fee— delay of attorneys in enforcing a verdict in favor of their client which justifies the substitution of another attorney.</p> <p>The late General Term had, except as it was otherwise provided hy statute, the same original jurisdiction to hear and determine motions, ex parte or contested, as was possessed by the Special Term of the Supreme Court, which jurisdiction was vested in the Appellate Division hy section 2 of article 6 of the New York State Constitution.</p> <p>The Supreme Court has jurisdiction, either upon a motion or in a special proceeding, to determine controversies arising out of the professional relations of attorneys and clients and upon what terms attorneys shall he changed in pending actions.</p> <p>A determination, made-in a proceeding for a substitution of attorneys, that the attorneys sought to be removed and their privies have, through their misconduct, lost all lien or claim upon a j udgment in favor of their client by virtue of certain contracts made with the latter, is conclusive upon the delinquent attorneys and their privies in an action brought by them against the client, after the filing of the referee’s report in the substitution proceeding, to compel the specific performance of such contracts.</p> <p>When a delay by attorneys of nearly eleven years in proceeding to enforce a verdict in favor of the plaintiff, rendered in an action for personal injuries, which they were retained by him to prosecute, establishes such neglect on their part as will justify the granting of an order allowing the plaintiff to .substitute another attorney in their place, and leaving them to their remedy by an action at law for compensation.for services rendered in the action, considered. Per James 0. Smith, Referee.</p> <p>Note,— The rest of the cases of this term will be found in the next volume, 43 App. Div.— [Rep.</p>