Volume 42 — New York Supplement

Application by Michael Reynolds for a writ of mandamus commanding Frank Squier, commissioner of the department of parks of the city of Brooklyn, to restore him to his position as a painter in the department. From an order directing that a peremptory writ of mandamus issue, and from an order denying a motion to set aside a verdict, and for a new trial, commissioner appeals.

Action by Gustav T. Smith against Henry E. Fox for work, labor, and services and materials furnished. There was a judgment in favor of plaintiff, and defendant appeals.

Petition by William H. Philips, individually and as executor of the will of Samuel Philips, deceased, and others, against the Metropolitan Elevated Railway Company and another, for an injunction and damages with reference to certain premises, known as “59 Murray Street,” in the city of New York. From a judgment in favor of plaintiffs, defendants appeal.

<p>Assignment for Creditors—Creditor without Judgment—Power to Attack for Fraud.</p> <p>A resident general creditor, without a judgment against his debtor, can sue to set aside the debtor’s general assignment for the benefit of creditors, for fraud, and to reach the assigned property for the payment of his claim, when the assignor has had no other property anywhere since the assignment, and is a nonresident oí New York. Bank v. Wetmore, 26 N. E. 548, 124 N. Y. 241, followed.</p>

Action by Charles W. Sloan against Anna W. Baird for damages for breach of contract to sell property. From a judgment entered after trial before a referee, defendant appeals.

Action by Anna Bosenberg against Oscar Hammerstein to foreclose a mortgage. From an order requiring Mm to furnish a bill of particulars of Ms answer and counterclaim, defendant appeals.

Action by Emma Condit Smith, as executrix of the will of George Condit Smith, deceased, and as guardian of his infant children, against William Pennington. From a judgment dismissing the complaint, plaintiff appeals.

Action by Cornelia T. Terry against Katharine T. Moore for a renewal lease. From an order denying a motion for leave to withdraw a demurrer and to serve answer, defendant appeals.

Action by David L. Wise and another against the L. & 0. Wise Company, aided by attachment. A receiver was appointed for the debtor corporation afterwards, to whom the attached property, being all the property of the debtor in New York, was delivered by the sheriff, the specific liens of plaintiffs being preserved as superior to the claims of other creditors. The property was sold, and the proceeds did not equal the preferred liens.

Controversy between Frederick W. Cameron, as assignee for the benefit of creditors of Patton & Co., plaintiff, and John M. Crouse and Amos C. Hall, receivers of the Trenton Falls Lumber Company, defendants, submitted without action on an agreed statement of facts, pursuant to Code Civ. Proc. § 1279.

Action by Daniel Murphy, an infant, by Eliza Smith, his guardian ad litem, against John Bennett, for personal injuries to such infant caused by defendant’s negligence. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by Frank J. Saxe, surviving partner of the firm of Saxe Bros., against the Penokee Lumber Company, to recover damages for breach of a contract for the sale and delivery by defendant to such firm of a certain quantity of lumber. From a judgment entered on the report of a referee in favor of plaintiff for |8,042.48 and costs, defendant appeals.</p>

Action by Edward M. Cameron and O. G-. Hawn against Jacob Leonard and others to enforce a mechanic’s lien. From a judgment for plaintiffs, defendants appeal.

Action for breach of contract by the Baker Transfer Company against the Merchants’ Refrigerating & Ice Manufacturing Company. Defendant appeals from a judgment for plaintiff, and from an order denying a motion for a new trial.

Action by George F. Nixon against Aquilino Zuricalday and another. From a judgment dismissing the complaint on a direction of the court after trial, plaintiff appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Norman Seymour, ancillary administrator of the estate of James Gassaway, deceased, against the Lake Shore & Michigan Southern Railway Company. From an order denying a motion to dismiss the complaint, the defendant appeals.</p>

Action by William J. McCann against the city of Albany to recover an alleged unpaid balance due plaintiff on a contract with defendant for construction of a sewer, and also for certain items of alleged extra work. There was a judgment in favor of plaintiff, and defendant appeals.

Action by Ada L. Grant against the town of Enfield for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Emma Bell against Jacob Litt for personal injuries. From an order denying plaintiff’s motion to vacate an order for physical examination, plaintiff appeals.

Action by Thomas Mullen against the village of Glens Falls. From a judgment entered upon a verdict for plaintiff, and an order denying a motion for new trial on the judge’s minutes, the defendant appeals.

Action by Catherine S. Baker, administratrix of Warren W. ‘Baker, deceased, against John H. Sutton and another. From a judgment for plaintiff, and an order denying motion for a new trial made on the judge’s minutes, defendants appeal.

Action by Martha E. Teeter against the United Life & Accident Insurance Association to recover on a policy of insurance. From a judgment for plaintiff, entered on a verdict returned by direction of the court, and from an order denying a motion for a new trial, defendant appeals.

<p>Attachment—Motion to Vacate—Sufficiency of Affidavit.</p> <p>On motion to vacate an attachment, under Code Civ. Proc. § 682, providing that a person who has acquired an “interest in defendant’s property after it was attached’’ may, at any time before the actual application of the property to the payment of a judgment recovered in the action, apply to vacate the warrant, an affidavit by a clerk in the office of the attorneys for the moving party, averring, on affiant’s own knowledge, that said party was, after the levy of attachment, appointed receiver of defendant corporation, and that he qualified as such by filing a duly-approved bond, as required by the order of appointment, is insufficient to show that the appointee had acquired an interest in the property; no circumstances being stated from which it could be inferred that affiant had personal knowledge of the giving, filing, or approval of said bond.</p>

Application by the Long Lake Railroad Company to review the determination of the board of railroad commissioners in declining to grant a certificate of public convenience and necessity, under laws 1892, p. 2083 (Railroad Law) § 59.

Action by Frederick Correll and another against William Lauterbach, for specific performance of a contract to purchase real estate. The complaint was dismissed (36 N. Y. Supp. 615), and plaintiff’s appeal.

Proceeding by Warren F. Darrow and Annie Darrow, executor and executrix of the will of Benjamin F. Miller, deceased, for the probate of the will. From a decree construing the will, the executor, executrix, and legatees appeal.

<p>1. Defective Bridge—Negligence.</p> <p>Whether a town is negligent in furnishing a bridge 12 feet wide above a stream 3 feet below it, in connection with a road having a traveled track 20 feet wide, with no guards to the bridge, and with five planks of the flooring, next beyond the third from the end, extending not so far to one side by 6 or 7 inches as the first three, is a question for the jury.</p> <p>2. Same—Contributory Negligence.</p> <p>Where a driver of a team, which went on a bridge so close to the side that the left wheels of the wagon, after passing over the first three planks, ran off the side, owing to the next five planks not extending so far to the side by 6 or 7 inches as the first three, testifies that, when he came on the level road extending for about a mile from the bridge, he knew the bridge was somewhere on it, and was watching for it, not expecting to see it, for the night was so dark that it could not be distinguished from the rest of the road, but to drive on, and that he drove slowly, trusting to his horses to keep the beaten track, but watching and pulling his horses back into the beaten road when he felt his wagon tip a little; and witnesses testify that, with a well-broken team; such as he had, such is the safest and best manner of driving in a very dark night, —it is error to hold, as matter of law, that he was negligent.</p>

Condemnation proceedings by the Long Island Railroad Company against Bernard F. Garvey and Margaret Garvey, his wife, and others. From a final order confirming an award by commissioners of $1,500 to the defendants, plaintiff appeals.

Action by Clair Pitcher, administrator, and Mario Mauro, administratrix, of the estate of Giovanni Mauro, deceased, against William F. Lennon and others. From a judgment • entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial (38 FT. Y. Supp. 1007), defendant Lennon appeals.

Action by Moses H. Cone against the Empire Plaid Mills for damages for breach of contract. A judgment was entered on a verdict in favor of plaintiff, and defendant appeals.

<p>Carriers—Injury to Passengers.</p> <p>Contributory negligence is a question for the jury where a boy 10% years old entered and took his seat in a railroad car, and there remained until it entered' the station at the terminus, when he arose, and followed adult passengers to the platform of the car, in anticipation of the stoppage of the train, and was thrown from the platform through the negligent stoppage of the car.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Moses D. Goodman and others against Henry G. Leonnardt and others. The complaint was dismissed, and plaintiffs appeal.</p>

Action by Mary Kiefer, as administratrix of Joseph Kiefer, deceased, against the Grand Trunk Railway Company, for death of decedent caused by negligence of defendant. From an order denying a motion to correct the judgment, defendant appeals.

<p>Appeal from special term, Allegany county.</p> <p>Action by Charles Leet against Fred R. Leet, and others, as administrators of the estate of Thomas R. Leet, to set aside a deed. From a judgment dismissing the complaint on the merits, without costs, plaintiff appeals.</p>

<p>1. Abatement—Another Action Pending—When Plea not Available.</p> <p>Where no complaint is served in an action commenced by summons, parol evidence is inadmissible to prove the subject-matter of the controversy as a bar to a subsequent action between the same parties in another court.</p> <p>2. Appeal—Verdict Influenced by Sympathy—Reversed.</p> <p>The appellate division of the supreme court has jurisdiction to review a verdict on the facts, and where the record discloses that the verdict was influenced by considerations of sympathy or prejudice, the judgment thereon will be reversed.</p>

Action by Joseph Koehler, an infant, by Edward Shanahan, his guardian ad litem, against the Syracuse Specialty Manufacturing Company, for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals.

<p>Appeal from special term, New York county.</p> <p>Action by William Alyea and another against the Citizens’ Savings Bank, impleaded with others, to foreclose a mechanic’s lien against a building owned by defendant Edward Judson.- From an •interlocutory judgment sustaining a demurrer to the complaint, plaintiffs appeal.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by William Egan against the Dry Dock, East Broadway Sc Battery Railroad Company. From a judgment entered on a verdict for plaintiff, and from an order denying motion for a new trial, made on the judge’s minutes, defendant appeals.</p>

Action by Clothilde Bodine and others against Ronald K. Brown and others for partition. There was a judgment in favor of plaintiffs, and defendants appeal.

<p>Guaranty—Contract for Royalties—Release of Guarantor.</p> <p>A patentee licensed a company to make and sell the patented article, it to pay him as royalty at least $2,000 a year, $30 thereof to be paid each week, he to devote his time and attention, to the best of his ability, for three years (or for such part thereof as the royalty was promptly paid), to the welfare of the enterprise as superintendent and salesman, “if requested so to do by the company.” It was also provided that, if the company failed to pay the $30 a week, and the patentee so elected, and served notice uii the company to that effect, all its rights under the license should, after GO days from the notice, revert to the patentee, unless within that time the company made the payments, and that, if the company desired to cancel the contract, it was to do so on the 1st day of June of any year. Held, that a guarantor of prompt payment of the $30 a week (the guaranty to run only so long as the license should remain uncanceled and the patentee should continue to render the services provided in the contract, pursuant to the terms thereof), was not released from his liability, either oh the ground that the patentee was discharged, and did not render services pursuant to the contract, because of the company’s dispensing with his services for alleged immoral conduct of his at the factory, where he notified it of his readiness and willingness to continue his work, and it replied that, as it construed the contract, it could call on him again at any time to act as superintendent; or on the ground that he rescinded the contract, where, after his notice of rescission, the company, within the stipulated 60 days, paid arrears of royalty, and had him enjoined from rescinding the contract on account of such arrears.</p> <p>The action was brought to recover a balance due of royalties agreed to be paid by the Safety Electric Construction Company to plaintiff’s assignor, Henry Creamer, and guarantied by the defendant. Creamer was the owner of patents upon a steam pump trap, and under his agreement with the company they were to have the exclusive right to make, use, and sell the patented article, and were to pay Creamer one-fifth of the profits as a royalty, guarantying him not less than $2,000 ■a year. Creamer was to receive $30 a week on account of such royalty, and was-to devote his time and attention, to the best of his ability, for three years (or so long within such period as such weekly pajnnents were promptly made), to the welfare of the enterprise as superintendent of construction and salesman, “if requested so to do by the company.” In case the company failed to pay the $30 a week, if Creamer so elected, and served notice in writing on the president of the company to that effect, all the rights secured to the company were, after a period of 00 days from such notice, to revert to and become the property of Creamer, unless within such period the company should have fulfilled its unfulfilled obligations. If the company desired to cancel the contract, it was to do so, if at all, on the 1st day of June in any year, after first paying any amount due Creamer up to date. The defendant’s guaranty was that the $30 a week should be promptly paid, and. was to run a period of not more than three years from July 11, 1890, and only so long as said license should remain unc-anecled and Creamer should continue to render the services provided in the contract, pursuant to the terms thereof, within the -said period of three years. Creamer received his weekly royalties under the agreement up to some time in December, 1891. On January 30, 1802, $225 of such royalties remained unpaid, and on that day he notified the defendant, as president of the company, in writing, of the arrearage, and stated that he elected to terminate the contract under the provision thereof permitting such cancellation at the end of 60 days if the company’s obligations continued to he unfulfilled. By a letter dated the same day (January 30th), but which Creamer says he did not receive until a day or two after, the company requested him to deliver up all the keys that he had belonging to the shop, with which he complied. On February 1st Creamer went to the company’s place of business, found the door locked, and was told by the person in charge that he had been instructed to allow him to have nothing to do with the work, and, further, that the men were not to obey any of his instructions. To explain this demand for the keys and refusal to permit him to work, the defendant produced witnesses who testified that Creamer had been guilty of immoral conduct at the factory. Creamer contradicted the testimony as to his immorality by his own evidence and that of other witnesses. On February 2d Creamer’s attorneys wrote to the company, reciting the facts of the demand for the keys and the refusal to permit him to work, stating that Creamer was ready and willing to continue his work, pursuant to the terms of the contract, if requested by the company, and concluding with the statement: “We take it that you desire to dispense with his services as superintendent of construction and salesman, and will so construe the action taken by you unless otherwise notified at once.’.’ To •this the company replied the next day. February 3d, informing Creamer’s attorneys that Creamer bad had poor success with his work; that the reason they demanded the keys and refused to permit him to go there further was because of his immoral acts at the shop, w.hich had a bad influence on the workmen and was detrimental to the business; and that, as they construed the contract, they could, if they chose, “call upon him again- at any time to act as superintendent or salesman.” Creamer testifies that he was ready and willing at all times to act in that capacity, if asked. On February 4th he wrote to the company that he would be glad to respond to any request they might make to continue his services. On March 28, 1892, Creamer’s attorneys wrote to the defendant, as president of the company, making three demands in Creamer’s behalf, based upon the contract: (1) For an accounting; (2) for the payment of $500; and (3) the payment of $465, the amount of guarantied royalties up to March 26, 1892. On March 29th the defendant, as president, replied that, under the third demand, the company would pay under protest the $4G5. On the same day Creamer’s attorney notified the -company that on their failure to comply with the terms suggested by the letter of March 28th, he should claim an absolute forfeiture of the company’s rights under the contract. The company tendered Creamer the $465 on March 30th. He refused to accept it, and on April 30th the company sent a check for that amount for him to his attorneys. On March 30th the 60 days had expired since Creamer’s notice of election to cancel the contract. On that date the company commenced an action in the supreme court against Creamer for an accounting, and a preliminary injunction was obtained restraining him from transferring any of the patents, or forfeiting any of the company’s rights under the contract, which injunction was subsequently continued pendente lite. On or about April 2, 1892, the company commenced another action in the supreme court against Creamer for an injunction restraining him from rescinding the contract. In his answer thereto Creamer claimed that the company had not paid him in full, and had forfeited all its rights under the contract. The two causes were tried together, and in December, 1802, the complaint in the first action was dismissed, and in the second action the injunction was granted. In August, 1801, Creamer assigned to his wife, the plaintiff, the patents under which the company was working, and in June, 1893, he assigned to her all his interest in his contract with the company. After March 30, 1892, the company never paid to Creamer or to the plaintiff anything on account of royalties under the contract, and the royalty sought to be recovered in this action is that which accrued from March 30, 1892, to July 10, 1893, the expiration of the three years provided for under the guaranty, for the full amount of which the court directed a verdict</p>

<p>Appeal from special term, Franklin county.</p> <p>Action by the Franklin Trust Company, trustee, against the Northern Adirondack Railroad Company and others, for the foreclosure of a mortgage. Appeal on behalf of certain employés from, two separate orders, one settling the accounts of the receiver, and the other directing the payment to the mortgagee of a portion of the purchase money of the railroad, paid into court on the foreclosure sale.</p>

<p>Appeal from order of Clinton county judge.</p> <p>Proceeding by Andrew G-. Tolman against Mark L. Heading for the possession of leased premises. From an order directing the issuing of a warrant for the removal of defendant from the premises in question, defendant appeals.</p>

Action for personal injuries by Mary Lane against the city of Syracuse and the Syracuse St East Side Railway Company. Judgment dismissing the complaint at the close of the evidence, and plaintiff appeals.

Action by John 0. Sheehan against Solomon S. Carvalho and another. From an order denying plaintiff's motion to vacate an order for the examination of witnesses, he appeals.

<p>1. Appeal—From Order Granting Injunction—Final Order.</p> <p>A defendant cannot appeal from an injunction order against him when such order reserves to him the right to move its vacation or modification, as he has not exhausted his remedy at special term.</p> <p>2. Same—Papers Filed after Ordf.r is Entered.</p> <p>An appeal from an injunction order must be heard on the papers enumerated in the order, and on which it was granted; and additional affidavits filed thereafter, though by leave given by the order itself, cannot be considered.</p>

Action by Elizabeth Hanna against the Mutual Life Association of the City of Brooklyn on a policy of insurance. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from, trial term, Greene county.</p> <p>Action by William H. Magilton against the New York Central & Hudson River Railroad Company for killing a horse. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.</p>

Action by Casper G. Decker, as receiver of the property of Francis G..Hall, against William S. Carr, executor, and others, to set aside an instrument as void for uncertainty. From a judgment in favor of defendants, plaintiff appeals.

Action by Bridget Gillespie, as administratrix of the estate of John Gillespie, deceased, against the Dry Dock, East Broadway & Battery Railroad Company, for death by wrongful act of defendant. From a judgment in favor of defendant, entered on verdict, plaintiff appeals.

<p>1. Evidence—Books of Account.</p> <p>The correctness of account-book entries is not established by the testimony of one who made 80 per cent, of the sales and entries covered thereby, but who does not point out the particular entries made by him, and cannot verify an item embracing about one-third of the account.</p> <p>2. Same—Declarations of Agent.</p> <p>Declarations of an agent who conducted the transactions out of which the account in suit grew, made after such transactions had ceased, are not admissible to prove its correctness.</p>

Action by Darius A. Moore and another against William McLaughlin and others. From a judgment entered on an order dismissing the complaint, plaintiffs appeal.

Application by A. Simis, Jr., as president of the board of charities and corrections, for a writ of mandamus requiring George W. Palmer, as comptroller of the city of Brooklyn, to certify a contract. From an order directing the issuance of a peremptory writ, the comptroller appeals.

Action by the Glens Falls Portland Cement Company against the Travellers’ Insurance Company on a policy of insurance. From a judgment in favor of plaintiff, entered on a verdict directed by the court, both parties consenting to a direction of a verdict, but each requesting it in its favor, and from an order denying a motion on the minutes for a new trial, defendant appeals.

Action by William Simis and others, executors, against Daniel McElroy. A verdict was directed for plaintiffs, and defendant moves for a new trial on exceptions ordered to be heard in the first instance by the appellate division.

Action by Frank X. Haas against the New York Central & Hudson River Railroad Company for the value of a horse killed on defendant’s right of way by being struck by a locomotive and train. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Municipal Corporations—Negligence—Verdict against Evidence.</p> <p>A judgment for plaintiff in an action for personal injuries alleged to have been caused by a depression in a sidewalk will be reversed where the only evidence of the cause of the injury was that of plaintiff, who testified: “I don’t know what caused my fall. * * * All I can say is, I slipped and fell on the end of the sidewalk,” next to the depression.</p>

<p>Appeal from circuit court, Saratoga county.</p> <p>Action by Mary C. Holden against the Metropolitan Life Insurance Company. From a judgment entered on a verdict directed for defendant, plaintiff appeals.</p>

<p>Appeal from trial term, Broome county.</p> <p>Action by Katherine Schad and others, administrators, etc., of Henry Schad, deceased, against the Security Mutual Life Association of Binghamton, N. Y. From a judgment for plaintiffs, entered on a verdict, and from an order denying a new trial, made on a case and exceptions, defendant appeals.</p>

<p>Taxation—Exemptions—Manufacturing Corporations.</p> <p>A corporation for slaughtering cattle and manufacturing them into food, which operates two plants, one of which is in another state, from which the manufactured articles are sent to the plant in New York for sale, is not, as to its capital in New York, “wholly” engaged in manufacturing (Laws 1880, c. 542, and acts amendatory thereof), so as to exempt it from taxation.</p>

William Doyle was convicted of assault in the third degree, and appeals. The indictment was for assault in the second degree.

Application by the Hunter’s Point & South Side Railroad Company to acquire title to lands in Queens county, now of William H. Furman and others. From an order confirming the report of a referee, and adjudging one Minnie W. Braun to be entitled to a share of the award made in said proceeding, Louisine F. Goldsmith and others appeal.

Action by Mary E. Jacobs against George E. Marvine. Judgment for plaintiff, and defendant appeals. Pending the appeal, plaintiff died, and her administrator, George B. Davis, was substituted as plaintiff.

<p>Appeal from trial term, Warren county.</p> <p>Action by Isaac Roblee against the town of Indian Lake. From a judgment dismissing the complaint, plaintiff appeals.</p>

Action by David Gibbs and another against Maria Louisa Prindle. From an order directing that certain costs awarded to defendant on an appeal from an order in proceedings by plaintiffs against defendant for contempt be set off and applied on the judgment recovered by plaintiffs against defendant, on which proceedings supplementary to execution had been instituted, in the course of which the alleged contempt arose, defendant appeals.

<p>Appeal from trial term, Albany county.</p> <p>Action by Nicholas Mauger and another against Thomas Slavin, assignee for the creditors of Pilling & Scullen. Prom a judgment on a nonsuit, plaintiffs appeal</p>

Action by George W. Steenburgh against John H. Miller and others to foreclose a mortgage. From an order substituting A. W. Shepherd as attorney for plaintiff in place of James F. Swanick, the attorney of record, the plaintiff appeals.

<p>Appeal—Allowing Appeal to Court op Appeals.</p> <p>An appeal will be allowed to the court of appeals where the opinion affirming the judgment was unanimous only out of deference to the decision of the general term on a prior appeal.</p>

<p>Appeal from special term, Warren county.</p> <p>Action by the Glens Falls Gaslight Company against Benjamin Van Vranken and James Duell. Judgment for defendants, on a trial to the court, and plaintiff appeals.</p>

Action by C. Laverne Ludlow against the Groton Bridge & Manufacturing Company for personal injuries caused by defendant’s negligence. From a judgment of nonsuit (36 N. Y. Supp. 452), and from an order denying a motion on the minutes for a new trial (37 N. Y. Supp. 595), plaintiff appeals.

Summary proceedings by John J. Hand, executor of the will of Mary Carey, deceased, to reach property alleged to belong to the estate, in the hands of James Dillon. From a decree against him, the defendant appeals.

Action by the Farmers’ Loan & Trust Company against the Hotel Brunswick Company, and Josiah H. Baker, as receiver of said hotel company, to foreclose a chattel mortgage. Defendant Baker was appointed receiver of the hotel company on petition of a majority of the stockholders for a dissolution of the corporation and the appointment of a receiver to wind up its affairs.

<p>1. Highways—Defects—Liability of Town.</p> <p>In an action against a town for injuries caused by a defective highway, a request to submit to the jury the question whether the town was negligent was properly refused, since the liability of a town for defective highways-is predicated on the neglect of the highway commissioner (Laws 1892, p. 2185, § 16), and therefore the negligence of the town is not the test.</p> <p>2. Same—Negligence of Commissioners—Error of Judgment.</p> <p>A town is not responsible for an error of judgment on the part of the commissioner of highways in applying the funds at his disposal to the repair of highways and bridges other than the bridge at which plaintiff was injured, where there is nothing to show that prior to the accident the approaches to the bridge were known to be defective, or that any complaint had been made in relation thereto.</p> <p>8. Trial—Submission of Issues—Waiver.</p> <p>A request to submit to the jury specified questions waives the submission of all other questions.</p>

Action by the sewer commissioners of Amsterdam against Timothy Sullivan and others on a bond for the faithful performance of a contract. There was a judgment in favor of defendants, and plaintiffs appeal.

Action by Jeremiah Casey against Henry D. Leslie, as receiver. Defendant moves for a new trial, on exceptions ordered to be heard by the appellate division in the first instance.

Action by Frances B. Stuart against Silas P. Brown and others. There was a judgment for plaintiff, and defendants move for a new trial on exceptions ordered to be heard in the appellate division in the first instance.

Action by Charles Griswold against Lewis P. Kile and others. From a judgment entered on a verdict for plaintiff, and an order denying a motion for new trial, made on the minutes, defendants appeal.

<p>Pleading—Amended Answer—Eeeect.</p> <p>In an action against a sheriff for the escape of a judgment debtor, the complaint alleged that the escape was without plaintiff’s consent. The answer admitted all the facts alleged, except that the judgment was for a cause authorizing an execution against the* debtor’s body. Held, that the admission that the escape was without plaintiff’s consent was not withdrawn by an amended answer consisting of the original answer, and additional allegations that the escape was with the consent of plaintiff and his agents, and was induced by their trick and fraud, for the sole purpose of creating a cause of action against defendant. Herrick and Putnam, JJ., dissenting.</p>

Action by the city of Brooklyn against the Brooklyn City & Newtown Railroad Company to recover the penalty for violating the ordinance of the city regulating the speed of electric street cars. There was judgment for plaintiff, which was reversed by the county court, and plaintiff appeals.

Frederick W. Freileweh was convicted by the court of special sessions, held by the recorder of the city of Kingston, of selling beer without a license, in violation of Laws 1892, c. 401, § 31, and from a judgment of the county court affirming the same, he appeals.

Action by Orris N. Kellogg, as receiver of the National Broome County Bank of Binghamton,- and the National Broome County Bank of Binghamton, against the Chenango Valley Savings Bank, Charles E. Abbott, as administrator, and Sarah E. Abbott, as administratrix, of the estate of Charles N. Abbott, deceased, and 145 others, for an injunction and other relief.

Action by John O. Slater against Miles F. Church for the price of two milk separators. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>1. Evidence of Special Contract—Res Inter Alios Acta.</p> <p>On an issue as to whether a carrier’s agent had made a special agreement with plaintiff to waive conditions set out in a circular to shippers in respect to rates, the testimony of other shippers that the agent had made similar propositions to them was incompetent.</p> <p>3. Witness —Evidence to Impeach — Contradicting Collateral Matters Elicited on Cross-Examination.</p> <p>Such testimony, being collateral to the issue, was not admissible for the purpose of impeaching the agent, who denied on cross-examination that he had made propositions of that kind to other shippers.</p> <p>8. Principal and Agent—Apparent Authority of Agent.</p> <p>A carrier’s agent, located in a foreign state for the purpose of soliciting 'freight, and attending generally to the business of his principal at that point, but who has no actual authority to fix rates or regulate the terms of shipments, and who has never before assumed such powers, always acting under instructions from the home office, has no apparent authority to deviate, in favor of a particular class of shippers, from the terms and conditions of shipment publicly set out in circulars sent by the carrier to its patrons.</p> <p>The plaintiffs are co-partners, engaged in business in the city of Mobile, Ala. The defendant is a domestic corporation, the proprietor of the New York & Mobile Steamship Company, engaged as a common carrier in transporting freight and passengers between the cities of New York and Mobile. The action is brought to recover the value of a shipment of goods by the steamship Vidette, on June 2,1887, from New York to Mobile, which was lost in transit. The plaintiffs claimed to recover, both on the ground of a breach by the defendant of a contract to insure the goods for the benefit of the plaintiffs, and for negligence in shipping them by an unseaworthy vessel. In support of the first ground, they introduced evidence of an agreement by the defendant to insure the goods for the plaintiffs’ benefit for a sum equal to the invoice price plus 10 per cent., and of a failure so to do. The answer admits the loss of the goods, but alleges that the agreement of the defendant to insure the goods was conditioned upon the plaintiffs’ declaring the value thereof at the time of shipment, and having the same stamped upon the bill of lading. At the time of the loss one Chaudron was the general agent of the plaintiffs in the city of Mobile, and Middleton was the general agent of the defendant in that city. The jury rendered a verdict for the plaintiffs for the invoice value of the goods, with the addition of 10 percent, thereof, and interest on the whole from the date of the loss. Further facts are stated in the opinion.</p>

Application by John J. O’Brien for a peremptory writ of mandamus to compel S. Van Rensselaer Oruger and others, as park commissioners, to reinstate him in the position of teamster, from which he had been removed. From an order denying the motion, re-, lator appeals.

<p>1. Lease—Renewal—Rental Value—Arbitration.</p> <p>A lease provided that, if the parties thereto could not agree on the rent; for a renewal term, each should choose an arbitrator, and that the arbitrators should determine the value of the lot, and allow 5 per cent, as the rental value; but that, if they could not agree, they should select an umpire, “whose decision under oath shall fix and determine the same.” It also provided that, if a renewal was refused by the lessor, he should pay to the lessee the value of a building standing on the lot, which value shall be “ascertained by three disinterested persons, to be chosen as aforesaid.” Held, that if the arbitrators failed to agree on a valuation, either as to the lot or as to the- building, and selected an umpire, the latter should act alone, without the presence or aid of the arbitrators.</p> <p>3. Same—Failure to Select Umvire—Action to Fix Value.</p> <p>An action to fix the rental value for a renewal term may be maintained by tlie lessor, though the lease provided that it should be fixed by arbitrators selected by the parties, or, if they disagreed, by an umpire to be chosen by the arbitrators, where the lessee’s arbitrator, after a disagreement, went abroad without joining in the selection of an umpire, and his attorney, though often requested by plaintiff, who offered to accept any one satisfactory to defendant’s arbitrator, to choose an umpire, failed to do so for nearly a year after the original term had expired.</p> <p>3. Same—Defense—Offer to Arbitrate.</p> <p>An action to fix the rental value of a renewal term brought by the lessor after failure of the lessee’s arbitrator, for nearly a year after the expiration of the term, to join with the plaintiff’s arbitrator in selecting an umpire, as provided in the lease, cannot be defeated by an offer, made at the trial, to proceed with the arbitration.</p>

Action by Edmund Randolph against the Susquehanna WaterPower & Paper Company, of Harford county, Md. A motion by Henry F. Harrison, as junior attaching creditor, to vacate the attachment, having been denied, the claimant appeals.

Action by Hudson G-. Bush against the board of supervisors of Orange county, N. Y., Hiram T. Ostrander and others, and the town of Woodbury and others, to enjoin such board of supervisors from assessing a tax on the town of Woodbury, on the ground that the tax sought to be assessed is unconstitutional.

<p>1. Contracts—Public Policy—Indemnifying Surety on Bail Bond.</p> <p>A contract by one of the sureties on a bail bond to indemnify the other in case of default is not against public policy, the statutes authorizing bail by recognizance and by deposit of money by accused. 39 N. Y. Supp. 930, affirmed.</p> <p>2. Judgment—Premature Action—Bes Judicata.</p> <p>Where a judgment foreclosing a mortgage is reversed at general term, and a new trial ordered on the ground that the suit was premature, on affirmance by the court of appeals, a judgment absolute, entered on stipulation by plaintiff therefor in case the order is affirmed, is not a bar to another action, brought after the right of action on the mortgage has accrued.</p> <p>8. Contracts—Consideration.</p> <p>A contract to indemnify a surety on a bail bond in consideration of his going on the bond is supported by a sufficient consideration.</p>

<p>1. Parent and Child—Separation—Ccstodt op Children.</p> <p>An agreement between a husband and wife, who are not divorced, to live apart, is not essential to the existence of a “state of separation” (2 Rev. St. p. 148, §§ 1, 2), so as to entitle the wife to maintain habeas corpus proceedings against her husband to have the custody of the infant children awarded to her.</p> <p>2. Same—Cause op Separation.</p> <p>Under Rev. St. p. 148, §§ 1-3, providing that, where a husband and wife, having a minor child, live in a state of separation without being divorced, the wife may apply for a writ of habeas corpus to have the custody of the child awarded to her, it is sufficient for a wife to show that she is justified on moral grounds in living separate from her husband, though these grounds may not be sufficient to support a decree of divorce.</p> <p>8. Same—Award to Mother—Evidence.</p> <p>A woman living apart from her husband is entitled to the custody of her infant children, as provided by 2 Rev. St. p. 148, §§ 1-3, where she is refined and educated, and has ample means to support the children, and was compelled to leave her husband on account of the violence and foulness of his language to her, and indecent acts performed by him in the presence of herself and minor children, though he is naturally of a good disposition, and his language and acts were caused by his belief that she sympathized with her father, between whom and himself great bitterness existed.</p>

Action by Elizabeth Lycett against the Manhattan Railway Company to recover damages for personal injuries alleged to have been sustained by plaintiff in consequence of defendant’s negligence in permitting an obstruction of the passageway to its ticket office. From a judgment dismissing the complaint with $110.98 costs to defendant, plaintiff appeals.

<p>Action by Nancy E. Bliss against Charles L. Sherrill and others to foreclose a mortgage. A decree is rendered in favor of plaintiff, with the application to the principal indebtedness of a bonus exacted by plaintiff’s agent as a consideration for the loan, in excess of lawful interest.</p>

Appeal by Mary J. Thrall, wife of Edwin A. Thrall, from so much of an order, made in the matter of the assignment of Edwin A. Thrall to Adolph Ludeke, as denies appellant’s application to compel the assignee for the benefit of the creditors of said Edwin A. Thrall to pay to appellant the sum of $950, alimony pendente lite, claimed to be due to her under an order made July 31, 1894, in an action by her against Edwin A. Thrall for separation.

Petition by Kate R. Tevis for an order compelling Frank P. Demarest, attorney at law, to pay to petitioner the sum of $1,000. From an order directing the payment of said sum, defendant appeals.

Action by Annie Singleton against the Prudential Insurance Company of America. From a judgment in favor of plaintiff, and from an order denying motion for new trial, defendant appeals.

<p>1. Dower—Bar by Foreclosure Judgment.</p> <p>In an action against a wife personally and as executrix of her husband and his next of kin for foreclosure of a purchase-money mortgage, executed by him alone during coverture, the only allegation in the complaint that it was a purchase-money mortgage was a recital in the description of the premises, taken from the mortgage, “This mortgage is given to secure a portion of the purchase money of the above-described premises,” and at the end alleged that defendants claimed some interest in or lien upon the premises, and that, if they had any, it had accrued subsequently to the mortgage. Held, that the complaint was insufficient to raise the issue of the wife’s right to dower so as to render a judgment of foreclosure against her by default a bar of her right of dower in the land.</p> <p>2. Same—Estoppel.</p> <p>Where a judgment of foreclosure of a purchase-money mortgage in foreclosure proceedings to which the widow was a party is insufficient to bar dower because allegations of the complaint are insufficient to raise the issue of her right to dower, the facts that she was present at the foreclosure sale, at which the officer making the sale announced that it was a foreclosure sale of a purchase-money mortgage, and that she made no claim of her right of dower in the land, will not estop her from subsequently claiming dower in the land as against the purchaser.</p> <p>8. Same—Bar.</p> <p>Where a husband owning part of a tract of land during coverture purchases the remainder, and gives a mortgage, in which his wife does not join, on the entire tract for the purchase price, a judgment against her by default in an action against her after his death personally and as executrix cannot bar her right of dower in that part of the tract -included in the mortgage Which he owned at the time of the purchase.</p> <p>In the year 1853, one James Fern died intestate in the town of Milford, Otsego county, N. Y., seised and possessed of the real estate described in this action, and leaving him surviving George Fern, James Fern, and Andrew Fern, his only children and heirs at law. In September, 1875, Andrew Fern and his wife-conveyed his interest in the premises described in the complaint to George-Fern. In November, 18715, George Fern was married to Elizabeth Fern, the-plaintiff in this action. In March, 1881, James Fem conveyed his interest in the-premises described in the complaint to George Fem, and on the same day George Fern executed and delivered to James Fern a bond and mortgage conditioned for the payment of $1,891.35, being a security for the payment of the purchase-price of James Fern’s interest in said premises, and was described as being a purchase-money mortgage. In April, 1885, George Fem borrowed of the defendant Welthy S. Marble the sum of $1,300, for the purpose of paying and satisfying the bond and mortgage given to James Fern, and paid said bond and mortgage with such nioney, whereupon said bond and mortgage were satisfied and discharged. At the time of borrowing said sum of $1,300 from Marble, the said George Fern executed and delivered to said Marble a bond and mortgage conditioned for the payment of the sum of $1,300 and interest, which mortgage covered and described the premises described in the complaint, and which mortgage contained the following recital: “This mortgage is given to secure a portion of the purchase money of the above-described premises.” At the time of borrowing said money from Marble, and the execution and delivery of the bond and mortgage as security for the payment thereof, no part of the consideration of the mortgage given by George Fern to James Fern to secure the purchase price of James Fern’s interest in the premises described in the complaint had been paid. The plaintiff was not a party to the mortgage given to James Fern, nor to the mortgage given to Marble. George Fern died intestate at the town of Milford, in the month of March, 1889, leaving him surviving the plaintiff, his widow, and his brothers, James and Andrew Fern, his only heirs at law and next of kin. Letters of administration upon the estate of George Fern were issued to Elizabeth Fern, the plaintiff, in the month of April, 1889. She duly-qualified, and entered upon the discharge of her duties as such administratrix. In December, 1889, default having been made in the payment of the money secured to be paid by the bond and mortgage given by George Fern to the defendant Marble, an action was commenced in the supreme court by the said Marble to foreclose such mortgage. Elizabeth Fern, as administratrix of George Fern, deceased, and Elizabeth Fern individually, and others, were the defendants-in such action. The plaintiff, neither as administratrix nor individually, made any answer to the complaint or appeared in such action, and such proceedings were had therein that a judgment of foreclosure was obtained on the 14th of March, 1890. The premises described in the complaint were sold at public auction, and were purchased by the defendant Abram J. Osterhout for the sum of $1,704. A referee’s deed was thereupon given to him, and he entered upon the-possession of the premises, and was so in possession at the time of the commencement of this action. The plaintiff was present at the time of the sale of the premises under the judgment of foreclosure, and at such sale the referee announced that the sale was made under a purchase-money order. The plaintiff remained silent, and made no claim at that time that she had any right of dower-in or lien upon the premises. Thereafter, and in April, 1893, the plaintiff commenced this action for the recovery of her dower rights in the premises described! in the complaint. The deiendants, Marble and Osterhout. made separate answers. The action was referred to a referee, and, after a trial had, he directed? that a judgment should be entered dismissing the complaint. Upon the trial the plaintiff filed with the referee her written consent to accept a gross sum in satisfaction and discharge of her right of dower in the premises described in the complaint.</p>

<p>Bond Staying Foreclosure Judgment Pending Appeal—Sufficiency.</p> <p>Code Civ. Proc. § 1331, declares that on appeal from a judgment directing the sale or delivery of the possession of real property the appeal bond shall not stay execution until defendant gives bond not to commit waste while "in possession of the property,” and to pay the value of its use, if the judgment is affirmed or appeal dismissed, from the time of taking the appeal till delivery of possession pursuant to the judgment; but that, if the judgment is for foreclosure of a mortgage, the bond shall be sufficient if conditioned to pay any deficiency which shall arise at the foreclosure sale. Meld, that a bond executed by defendant on appeal from a foreclosure judgment, conditioned not to commit waste, and to pay the value of the use of the property as provided in the first clause, without a covenant to pay a deficiency as set forth in the second clause, is insufficient to stay execution on the judgment where defendant is not in possession of the property.</p>

Action in justice’s court by Stephen Staples against George H. Hager. A judgment for plaintiff was reversed by the county court, and he appeals.

Action by James C. Baird against Peter' Heifer, impleaded with ■Catharine Heifer. From a judgment affirming a judgment of a municipal court for plaintiff, defendant Peter Heifer appeals.

Application by John P. Patterson, as receiver, for permission to sell certain claims, demands, and other property belonging to the judgment debtor, Josephine L. Lyle. From an order granting an order of sale, Josephine L. Lyle and another appeal.

Actions by Mary E. Callahan against Eliza M..Oilman and by Mary G-ilgallon against the same defendant for slander. Defendant served her answers, and then made a motion for a bill of particulars. The day before the hearing of the motion, and within 20 days after the service of the answer, each plaintiff served an amended complaint.

Action by Henry E. Pierrepont and others against the Shepard & Morse Lumber Company. From a judgment for plaintiffs, entered on report of a referee, defendant appeals.

<p>Appeal from special term, Sew York county.</p> <p>Action by the Farmers’ National Bank of Annapolis against William A. Underwood and another. From an order denying a motion to resettle an order denying a motion for leave to serve an amended answer, defendant Underwood appeals.</p>

. Certiorari on the relation of the Badische Anilin & Soda Fabrik to review the decision of James A. Roberts, state comptroller, declining to revise a tax imposed on relator’s capital stock employed in the state of New York.

<p>1. Jury Trial—Legal and Equitable Causes op Action.</p> <p>Where an action is brought for equitable relief, and for damages as incidental thereto, and the equitable part of the action is dismissed, defendant is entitled to a jury trial as to the damages.</p> <p>2. Same—Waiver.</p> <p>Defendant, by entering on the trial of an equitable action before the court, does not waive his right to a jury trial as to damages incidental to the equitable relief sought, where plaintiff, by his own act, has deprived himself of his equitable rights, but has retained the right to incidental damages.</p>

Action by Mortimer Stiefel, as receiver of the New York Novelty Company, against the New York Novelty Company and others. From a judgment dismissing the complaint after the trial, plaintiff appeals.

<p>Street Railroads—Negligence—Injuries to Child.</p> <p>The driver of a street car which is not going at a rapid, rate, and is well under control, cannot be held negligently responsible for the death of a child who falls upon the trade in an attempt to cross the street 18 feet in front of the car; the brake having been applied, so that the car had almost stopped when it reached where the child lay, and the horses having been successfully turned aside.</p>

Action by Lizzie A. Conklin against the city of Elmira for injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on a case and exceptions, defendant appeals.

Action by James S. Smith and De Witt O. Hanfield against the mayor, aldermen, and commonalty of the city of Hew York, for work done and materials furnished under a contract. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, defendants appeal.

<p>Appeal from trial term, Onondaga county.</p> <p>Action by the New York Central & Hudson River Railroad Company against John Brennan and Margaret Brennan to recover possession of certain real property. From a judgment dismissing the complaint on the merits, plaintiff appeals.</p>

<p>Appeal from circuit court, Monroe county.</p> <p>Action by Frederick W. Lang against the Eagle Fire Company. From a judgment entered on a verdict in favor of plaintiff, and from ah order denying a motion for a new trial on the minutes, defendant appeals.</p>

Action by Sarah A. Cunningham against George S. Hedge and others to recover the value of a piano. From a judgment on a verdict for plaintiff, and from an order denying a motion for a new trial, defendants appeal.

Action by Hans Petersen against William L. Hubbell, as treasurer of the Adams Express Company, to recover damages for injuries sustained by plaintiff, who was thrown down and run over by a horse and wagon belonging to defendant. From a judgment entered on a verdict in favor of plaintiff for $5,000 damages and $401.70 costs, and from an order denying a motion for a new trial, defendant appeals.

Action by Joseph Silberman against Samuel S. Fretz. From a judgment for plaintiff, entered on a decision of the court without a jury (38 N. Y. Supp. 151), defendant appeals.

Action by the Garvin Machine Company against the Hammond Typewriter Company for work and materials furnished in the manufacture of certain machines for defendant by the firm of E. E. Garvin & Co., which assigned the claim to plaintiff. From an affirmative judgment in favor of defendant, entered in the office of the clerk of the county of New York on the report of a referee, plaintiff appeals. So much of the opinion of Theron G-.

Action by Joanna Fealy against John Bull. There was judgment on a verdict for plaintiff, and from an order denying a motion for new trial, made upon a case, exceptions, and affidavits, defendant appeals.

<p>Appeal—On Exceptions—Case.</p> <p>A paper served by defendants on plaintiff reciting the history of the case, ending with judgment for plaintiff, stating that the facts found by the court are in the decision, and setting qut the judgment roll, including the decision, defendants’ exceptions to the conclusions of law in the decision, and their notice of appeal from the judgment, cannot be amended by plaintiff to include evidence, as it is not a “dase,” though concluding with the statement that it is defendants’ proposed case on appeal, it being apparent that the appeal is merely to review exceptions to the findings on questions of law (Code Civ. Pi-oe. §§ 994, 998), where a case is not necessary, and the evidence is not taken up.</p>

<p>Appeal from court of special sessions, New York county.</p> <p>Michael Solomon was convicted of petit larceny, and appeals.</p>

<p>Appeal from trial term.</p> <p>Replevin by Mary A. Leach against Norman Williams and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Action by Charles Jones against Samuel Q-. De Coursey, as receiver of the Western New York & Pennsylvania Railroad Company on a contract. There was a verdict of $187.43 in favor of plaintiff, and defendant moves for a new trial on exceptions ordered to be heard by the appellate division in the first instance.</p>

Action by Maud B. Winkemeier-against Christian F. Winkemeier for divorce. From an order awarding to plaintiff’s attorneys a counsel fee of $500 to prosecute plaintiff’s appeal from a judgment in her favor, defendant appeals.

Action by Elizabeth East against the Prudential Insurance Company of America on a policy. From a judgment for plaintiff, and from an order denying a motion for new trial, defendant appeals.

<p>Divorce—Counsel Fees—When Denied.</p> <p>Under Code Civ. Proc. § 1769, which authorizes the court to grant an allowance for expenses in a matrimonial action, “during the pendency thereof,’’ plaintiff’s motion for counsel fees to enable her to carry on the action must be denied, where the action has been finally determined pending the motion, and plaintiff’s rights under the motion have not been reserved without prejudice.</p>

<p>Appeal from special term, Onondaga county.</p> <p>Action by the Syracuse Solar Salt Company against the Rome, Watertown & Ogdensburg Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

Action by Peter McGovern, as administrator of the estate of Hugh McGovern, deceased, against the Standard Oil Company of Hew York, to recover for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for new trial made on the minutes, defendant appeals.

Action by Edward Luhrs against the Brooklyn Heights Railroad Company for assault of defendant’s conductor on plaintiff. From a judgment in favor of defendant, entered on a verdict directed by the court, plaintiff appeals.

<p>1. License to Construct Dock—Revocation.</p> <p>Where the canal commissioners, on granting a license to build a dock, reserved the right to enter upon the premises, the license was not impliedly revoked by a grant to a third person of permission to maintain a floating dry, dock alongside the first licensee’s dock, there being no re-entry by the state of the premises occupied by the first licensee, or assumption of control over them.</p> <p>2. Docks—Use and Occupation.</p> <p>A person using a dock constructed by a licensee of the state is liable for the reasonable value of such use, though he claims the right to use the same under power attempted to be conferred on him by the state.</p> <p>This action was brought to recover wharfage from January 1,1889, to January 1, 1893, for the use and occupation by the defendant of the plaintiff's docks or wharves constructed in the Erie Basin in the city of Buffalo, the same having been used for the purpose of mooring thereto two floating dry docks belonging to the defendant. The defendant, in his answer, admits that he kept his floating dry docks moored alongside of the docks in question, and that he has paid the plaintiff nothing therefor; but he denies the ownership of the docks by the plaintiff, and alleges occupation and use thereof by himself in virtue of permission given to him by the state. The evidence discloses that in 1867 the canal commissioners of this state, by a formal resolution, entered upon the minutes of the board, granted to one Isaac Holloway the right to construct and maintain at his own cost and expense the docks in question; that thereafter, and on April 14, 1868, additional privileges were by such board conferred upon Holloway and one Bennett, who was the owner of an adjacent wharf, which had been constructed upon like authority. The privilege thus granted was subsequently transferred by Isaac Holloway to one John 0. Clifford, who thereafter proceeded to construct the docks or wharves mentioned in the complaint; but before the same were completed sold and assigned his interest therein, as well as in whatever grant or permit had been obtained from the state, to the plaintiff, his wife, and she thereupon finished the structures at a cost of about $40,000. Thereafter, and on the 23d of October, 1885, the plaintiff executed and delivered to John C. Sullivan and Thomas J. Nunan a written lease of one of the docks thus constructed for a term of five years from the 1st day of November following, at the annual rental of $200; and in pursuance of such lease Sullivan & Nunan entered upon the demised premises, and built ice houses thereon, which they occupied and paid rent for until November, 1891, when the ice houses were burned. In the year 1890 the superintendent of public works of the state of New York gave his permission to the defendant to occupy a portion of the channel on the northerly side oí the plaintiff’s southerly dock, and alongside of such dock, with a floating dry dock, and in consequence of such permission the defendant constructed a floating dry dock, which he moored temporarily on the southerly side of the plaintiff’s dock while he was engaged in dredging the channel on the northerly side thereof. In the year 1893 the defendant constructed and moored on the northerly side of the plaintiff’s dock another and a larger dry dock, and while such dry docks lay so moored he made use of a portion of the plaintiff’s southerly dock for the purpose of a dry dock, and at times for building canal boats. Shortly after the defendant began to thus use and occupy the plaintiff’s dock, he was informed of the plaintiff’s ownership of the same, and that the latter would expect to receive pay for such use and occupation.</p>

Action by Elise Haussknecht against Howard M. Smith to have a deed determined a mortgage, and for the relief consequent on such determination. From a judgment in favor of plaintiff on a decision of the court, defendant appeals.

Action by Abraham Snider individually and as executor of the will of Michael Snider, deceased, against C. Louise Snider as executrix of the will of Michael G-. Snider, deceased, and another. From a judgment for plaintiff, the defendant C. Louise Snider appeals.

<p>Payment—Pleading and Proof.</p> <p>In an action for services performed on a farm, during a period of two years, under an employment by the month, where plaintiff was a man of family, it could be shown, under a plea of payment, that, at his request, during the said period, defendant had furnished him with porlt, potatoes, etc., and that he had had the use of other property furnished by defendant.</p>

Action by Maria Isola and another, as administrators, against John Weber and another, doing business under the firm name and §tyle of J. & L. Weber, and Michael Power. From an order entered on remittitur from the court of appeals, awarding costs to different defendants who had appealed, plaintiffs appeal.

Final judicial settlement of the accounts of A. D. Merry, receiver in supplementary proceedings of the property of Dwight Wilcox. From an order confirming the report of a referee appointed to determine the amount necessary to satisfy the judgment under which the receiver was appointed, and directing the receiver to pay the referee’s fees, and, on receipt of the balance due on the judgment, to convey to said Wilcox the property held by the receiver, said Wilcox appeals.

<p>Appeal from trial term, Otsego county.</p> <p>Action by John Marsh against the Glens Falls Insurance Company. There was a judgment entered on a verdict in favor of plaintiff, and defendant appeals.</p>

Action by Charles A. Bird in his own behalf and in behalf of others against Earl M. Lanphear, impleaded with others. From an order and interlocutory judgment entered thereon overruling a demurrer to the complaint, defendant appeals.

<p>Appeal from circuit court, Cattaraugus county.</p> <p>Action by Charles J. Pendleton against Noel Hawkins for libel. Prom a judgment entered on a verdict of $1,000 in favor of plaintiff, and from an order denying a motion for new trial on the minutes, defendant appeals.</p>

Albert P. Wicks was convicted of grand larceny, and from the judgment of conviction, and an order denying his motion for a new trial on the minutes, he appeals; also bringing up for review the decision overruling his demurrer to the indictment.

<p>Appeal from surrogate’s court, Steuben county.</p> <p>Judicial accounting by James Baldwin and Lucius N. Manley, as executors of the will of Sarah Weatherby, deceased. From parts of the decree, said Baldwin appeals. Affirmed.</p>

Action by Sophia L. Rowe against the Brooklyn Life Insurance Company. Judgment in favor of plaintiff was entered on findings by the court, a jury having been waived, and defendant appeals. Reversed.

<p>Appeal from special term, Kings county.</p> <p>Action by Alfred G. Belden against the Union Warehouse Company. William W. Goodrich was appointed receiver of defendant, and under order of court assigned all the leases of defendant to the Brooklyn Wharf & Warehouse Company. There being a dispute about the amount to be paid to the receiver, he moved for an order compelling the Brooklyn Company to pay the amount claimed by him. The motion was denied, and the receiver appeals.</p>

<p>Appeal from trial term, Westchester county.</p> <p>Action by Truman A. Black against Thomas A. Maitland to recover for personal injuries. From a judgment entered on a verdict in favor of plaintiff, defendant appeals.</p>

<p>1. Death by Wrongful Act—Capacity to Sue.</p> <p>A' mother, in her own right, cannot recover damages for the death of an infant unmarried daughter.</p> <p>2. Same—Loss of Services.</p> <p>A mother may, in her own right, recover for care and attendance, and for loss of services, during the last illness, of a child whose death is caused by defendant’s negligence.</p> <p>8. Slander of the Dead—Right of Action.</p> <p>The maligning of the memory of a deceased child is not a cause of action for damages in favor of the parents, where it does not affect their reputation.</p>

<p>1. Injuries to Child—Negligence of Parent.</p> <p>It is not negligence per se for a mother to allow a child less than five years old to ride with the driver of an open delivery wagon.</p> <p>2. Same—Proximate Cause.</p> <p>The permission granted by a mother, to a child less than five years old, to ride with the driver of a delivery wagon, is not the proximate cause of an injury received by the child in a collision between the wagon and an electric car.</p> <p>$. Same—Imputable Negligence.</p> <p>The negligence of a driver of a vehicle, with whom a child non sui juris is permitted, by its mother, to ride, is imputable to the child.</p> <p>Ward, J., dissenting.</p>

Application by Mary S. Harpending, executrix, for the probate ■of the will of Harrison Shannon, deceased. From that part of a decree declaring void a codicil to the will, an order granting letters testamentary, and an order denying a motion for new trial, the Dundee Baptist Church, legatee, appeals.

Judicial settlement of-the accounts of Spencer Clinton, Truman G. Avery, and Georgiana W. Jenks, as executors of the will of Harriet A. Bennett, deceased, in which Clark H. Timerman appeared as special guardian for the infant legatees. From a decree disallowing a claim of the executors for commissions on the entire estate, both as executors and testamentary trustees (38 N. Y. Supp. 945), the executors appeal.

Action by William E. Bussell against the New York Central & Hudson River Bailroad Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

<p>Í. Slandeii—Words Actionable per Se—Charging Crime.</p> <p>It is actionable per se to say that plaintiff is “the father of a child by a young girl not yet fifteen years old,’’ since Pen. Code, § 2T8, as amended in 1895, makes it rape in the second degree for any person to have “sexual intercourse with a female, not his wife, under the age of eighteen years, under circumstances not amounting to rape in the first degree.’’</p> <p>2. Same—Mistake ok Defendant.</p> <p>The fact that slanderous words, imputing a crime to the person of whom they were spoken, were coupled with a statement that the offense was punishable by imprisonment for 16 years, when, in fact, the term of imprisonment was but 10 years, did not affect the speaker’s liability.</p> <p>3. Same—Complaint.</p> <p>In an action for slander in uttering words imputing the commission of a crime, an averment that defendant intended them in that sense, or that his hearers so understood them, is unnecessary.</p>

Action by Charles J. Devereaux and others against Timothy A. Clifford, in which there was a judgment for plaintiffs. From an order convicting defendant of contempt, and fining him $371.15, the amount of the judgment, for his failure to appear for examination under an order in supplementary proceedings, he appeals.

<p>Appeal from special term, Jefferson county.</p> <p>Action by Edwin Albert Merritt and Ogden H. Tappan against Charles G-. Emery to foreclose a mechanic’s lien. From a judgment in favor of plaintiffs, defendant appeals.</p>

Submission on agreed case of a controversy between the department of buildings of the city of New York, plaintiff, and Richard Field, defendant, arising under the statute regulating buildings.

Action by the Farmers’ Loan & Trust Company, as trustee, against the Hotel Brunswick Company and another. From an order directing Robert Sturgis, as receiver, to sell certain property, Joseph H. Baker, as receiver, appeals.

<p>Appeal from trial term, New York county.</p> <p>Action by John Malone, as administrator of Bridget Malone, deceased, against the Third Avenue Railroad Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a new trial, defendant appeals.</p>

Action by Mary Phillips against Margaret Lewis for board. From a judgment entered on the verdict in favor of defendant, and from an order denying a motion for a new trial made on the minutes, plaintiff appeals.

Action by Emily Schulz against the Second Avenue Railway Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Medora A. Harroun and Albert O. Fenn, as administrators of Fred J. Harroun, against the Brush Electric Light Company, for causing the death of the said Fred J. Harroun. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for new trial on the minufé’s, defendant appeals.

Adolph G-rauer was convicted of rape in the second degree, and from the judgment sentencing him to imprisonment in the state's prison for 10 years he appeals.

Action by Willoughby Weston, as trustee of the estate of William .G-. Breese, deceased, against Cornelia P. Goodrich and others. From an interlocutory and a final judgment, plaintiff and certain ■defendants appeal.

<p>Appeal from trial term, New York county.</p> <p>Action by Sarah. M. Mygatt and another against Edward P. Coe for breach of covenant. Plaintiffs had judgment, and defendant Appeals.</p>

Action by Francis Higgins, as receiver of the North River Bank, against Charles C. Worthington, as indorser of certain notes held by the bank at the time plaintiff was appointed receiver. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for new trial, defendant appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Emma Condit Smith, as guardian of Louise Condit Smith and Sallie Barnes Smith, against the Central Trust Company of New York and William Pennington. From a judgment in favor of defendants, plaintiff appeals.</p>

<p>Appeal from trial term, New York comity.</p> <p>Action by Edward E. Schafer, as administrator of Franz Schafer, deceased, against the mayor, aldermen, and commonalty of the city of New York. At the close of plaintiff’s evidence his complaint was dismissed, and judgment entered for defendants, from which plaintiff appeals.</p> <p>The facts are stated by Mr. Justice Barrett, as follows:</p>

New York county. Annie Giles and another, children under the age of 16 years, were committed by a city magistrate to the Missionary Sisters of the Third Order of St. Francis, and their mother appealed to the court of general sessions. From a judgment affirming the judgment of commitment, the mother appeals.

Action by Adelbert Vincent Koenig against the United Life Insurance Association. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes (38 N. Y. Supp. 506), defendant appeals.

<p>1. Arson—Evidence—Overinsurance.</p> <p>On a trial for arson, the jury should not be allowed to consider the question of overinsurance of personal property, where the only evidence thereof is that, in the proofs of loss, the property was valued at less than the insured amount, and there is no evidence that such proofs referred to ail the property insured.</p> <p>2. Same—Establishing Motive for Crime.</p> <p>Proof that buildings were overinsured does not establish a motive for the. owner to burn them, unless it is shown that he knew of the overinsurance.</p> <p>8. Same—Sufficiency of Evidence to Convict.</p> <p>A conviction of arson in aiding and abetting the burning of defendant’s own house is not warranted by proof that defendant’s wife was absent at the time, that he shortly before refused to receive a lodger, that he obtained straw twice before the fire, that he had friends with him until half-past 10 on the night of the fire, and that he left the house with them, and went to an hotel,, where he remained until the fire, as these circumstances are not inconsistent with innocence.</p> <p>4. Same—Proof of Complicity.</p> <p>Connivance of the owner of a house should not be inferred from the fdet that incendiaries broke into the premises and made preparations during his-absence.</p> <p>5. Same—Presumption op Innocence—How Overcome.</p> <p>Tlie presumption of innocence of a defendant charged with aiding and abetting the burning of his house is not overcome by testimony that, while the house was burning, defendant came up, and, seeing witness and others inside, pulled witness out, and that defendant afterwards told witness that he was glad witness had not spoken of it, because it "would make defendant appear guilty.</p> <p>Landon and Herrick, JJ.. dissenting.</p>

<p>Appeal from trial term, Westchester county.</p> <p>Action by Edward F. Brush against Arthur F. Blot. From a judgment for plaintiff, entered on a verdict, defendant appeals.</p>

Action by William T. Gilbert, as receiver of the Commercial Alliance Life Insurance Company, against Thomas 0. Platt, as president of the United States Express Company. From a judgment entered ■on verdict directed for defendant, and from an order denying a new trial, plaintiff appeals.

Action by William E. Wamsley against H: L. Horton & Co., Limited, for breach of contract. From an order denying a motion to continue the action in the name of Henry L. Horton and others, as trustees for the defendant, plaintiff appeals.

<p>Action by W. Preston Hix against the Edison Electric Light Company. Motion by respondent, made after reversal of the judgment appealed from, to resettle the case on which the appeal was heard.</p> <p>For decision reversing the judgment, see 41 N. Y. Supp. 680.</p>

Lawrence county. Action by William Shaw against the towns of Potsdam and Madrid for personal injuries caused by the fall of a bridge. From a judgment in favor of plaintiff entered on a.verdict, and from an order denying a motion for a new trial, defendants appeal.

Action by the Buffalo Loan, Trust & Safe-Deposit Company agaiñst the Medina Gas & Electric Light Company and the Holland Trust Company to foreclose a mortgage. From, a judgment of foreclosure and sale, defendants appeal.

Action by Barbara Weber, as administratrix of the estate of Fred-■-crick Weber, deceased, against the Third Avenue Bailway Company, to recover damages for negligence causing intestate’s death. From a judgment for plaintiff, entered on the verdict of a jury, and from an -order denying a motion for new trial on the minutes, defendant appeals.

<p>1. Appointment of Receiver—Effect on Execution Lien.</p> <p>The lien on property which a sheriff has taken under an execution against a corporation is not divested by the subsequent appointment of a receiver on a petition for the voluntary dissolution of the corporation, though the petition was filed before the entry of the judgment against the corporation.</p> <p>2. Corporations—Judgment by Default—Effect as against Receiver.</p> <p>A judgment by default against a corporation on a just debt is not within Code Civ. Proc. § 2430, providing that a transfer of property of a corporation made after the filing of a petition for voluntary dissolution of the corporation is void as against the receiver appointed in such proceedings.</p>

Proceedings by Abraham Erschler against Lucy Lennox and Marshall Dunham to obtain possession of property under a tax deed. A final order of the city court of Elmira, dismissing the petition, was affirmed on appeal by the county court, and plaintiff appeals.

. Action by Thomas Donohue against the Syracuse & East Side Railway Company. From a judgment dismissing the complaint on the merits, entered on a verdict, and from an order denying a motion for a new trial, made on the minutes, plaintiff appeals.

Action by John N. Renninger against the New York Central & Hudson River Railroad Company for personal injuries. Prom a verdict in favor of plaintiff, and from an order denying a motion for a new trial, on the case and exceptions, defendant appeals. Reversed.

<p>1. Deeds—Presumption of Validity—When Overthrown.</p> <p>The presumption that a deed to which a certificate o£ acknowledgment is attached was properly executed and acknowledged is overcome where it it proved that the grantor signed her name without knowing that the paper was a deed, and without any intention o£ conveying her property; that the commissioner’s signature to .the certificate was obtained without actual acknowledgment by the grantor; and that neither the grantor nor grantee knew of the existence of the deed for over two years after its date.</p> <p>S. Same—Denying Validity—Estoppel.</p> <p>A grantor is not estopped to deny the validity of the deed, where her signature was obtained without her knowledge that the paper was a deed, and there was no delivery, since she is not chargeable with negligence in signing the paper, and a deed is ineffective without delivery.</p> <p>S. Same—Acknowledgment and Record.</p> <p>A grantor is not estopped to deny the validity of the deed as against mortgagees of the grantee, where the acknowledgment and recom are fraudulent, as the mortgagees rely on these rather than the grantor’s signature.</p> <p>4. Dismissal and'Nonsuit — Failure to Prove Allegations of Complaint.</p> <p>A complaint should not be dismissed because one of the particulars on which the cause of action is based is not proved, when enough facts are proved to support the cause of action.</p>

<p>1. Acknowledgment—Impeachment of Certificate—'Evidence.</p> <p>The presumption that a certificate of acknowledgment of a deed is valid is not overcome by a positive denial of the grantor that she ever signed or acknowledged the deed, where the commissioner who took the acknowledgment testifies that the grantor signed the deed in his presence, and that he signed the acknowledgment at the same time, and all the attendant circumstances support his testimony.</p> <p>2. Deeds—Validity—Burden of Proof.</p> <p>The burden of proving the validity of a deed is on the grantee, where he was the grantor’s attorney, and trusted adviser in matters relating to her property.</p> <p>3. Same—Understanding by Grantor—Evidence.</p> <p>It is not proved that a grantor understood that she was conveying absolute title to the property, where the evidence shows that she executed a deed under an agreement that the grantee s.ionld take the title and make certain necessary payments, and he was empowered to sell the property and turn over the proceeds to the grantor after reimbursing himself for money paid out.</p> <p>4. Mortgages—Assignment—Bona Fide Purchaser.</p> <p>A grantee who had obtained his deed by fraud conveyed the property, took a mortgage for the purchase money, and assigned the mortgage to a person who, in good faith, advanced him money on it. The fraudulent deed and all the deeds based on it were afterwards set aside. Held-, that the mortgage should be upheld as a valid lien to the extent of the money advanced.</p>

<p>1. Master and Servant—Freight Elevator-^-Safety Appliances.</p> <p>A master fulfills his duty to employes by equipping a freight elevator, which they are required to use, with safety appliances which prevent a sudden fall only in case of the breaking of the cables, where such appliances are in common use, though other appliances exist which prevent a sudden fall in case of the breaking of the hoisting machinery as well as the cables.</p> <p>2. Same—Duty to Inspect.</p> <p>The failure of the master to inspect machinery for hoisting an elevator does not render him liable for injuries to an employs, caused by the falling of the elevator by reason of the breaking of a shaft, where the defect was a flaw in the center of the shaft, which had been produced by improper amalgamation, and which for some time had been gradually working outward, hut had produced no indication from which, by careful inspection, its existence could have been discovered.</p> <p>This action was brought to recover damages under the statute for the death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant corporation. The latter owned and operated a brewery at the corner of Fifty-Ninth street and Eleventh avenue in this city, and the plaintiff’s intestate was in its employment at the time of the accident causing his death. His duties were, among other things, to operate a freight elevator in the defendants’ brewery whenever it was necessary to carry bags of meal, malt, or hops from the first floor to the upper stories of the building. On the afternoon of July 24, 1894, a load of meal in bags was brought to the brewery, and five men, whose duty it was to do so, and of whom the plaintiff’s intestate, Boess, was the captain or “boss,” undertook to load this meal on the freight elevator, and carry it to the top floor of the brewery, and there unload and store it away. One or two loads of meal had been carried safely to the top floor, and on the next trip, just as Boess was about to stop the elevator at the top floor, the platform of the elevator, and the 25 bags of meal, and the 5 men who were on it at the time, fell suddenly to the basement of the building, and Boess was instantly killed. The cause of the falling of the elevator was the breaking off of the pinion of the driving shaft of the elevator engine at the point where said shaft entered the small gear wheel which operated the drum upon which were the cables which raised and lowered the elevator platform. This driving shaft was made of steel, and was about 2% inches in diameter. The pinion at the end of the shaft which entered the small gear wheel which operated the drum was turned down tó about 2% inches in diameter, making a shoulder on the shaft of one-eighth of an inch, against which the small gear wheel was closely driven, and keyed on when hot. To use the language of the engineer whose duty it was to inspect the machinery: “If I liked to. put the wheel off, I must use a sledge hammer and warm it up, * * * and any machine shop would do that, but then the shaft is in bad condition. It is too much trouble. This pinion broke right at the shoulder of the shaft. I could not have examined this machine at that point to see the shaft where it broke without taking the machine apart, and that would take—I can’t tell exactly,—anyhow two days to three days.” This freight elevator was manufactured by the well-known firm of Otis Bros. & Go., of this city, hut the exact time when it was put in is in some doubt; for, while it appears that a freight elevator was put in about 27 years before, it is not clear that it was the same elevator. It does appear, however, that the elevator had been extensively used, and that for at least four years it had been in defendants’ brewery; that it sometimes needed repair; that the present was not the first accident; that the engineer never had the shaft out, never saw it out, never took off the gear wheel or saw it put on, and never took off the drum before the accident, and only inspected the engine, the key, the boxes, etc., and on- the day of the accident did not look at the place where the pinion broke. One of the witnesses testified that he had personally known of two—both freight—elevators that fell by reason of the breaking of the pinion, and that for the purpose of safety in case of the breaking of the wheels or pinions elevators were made with an automatic safety on the drum of the engine, and also from the drum of the engine to the drum overhead, and thát he had put up 100 elevators with that safety appliance; that it was intended “to operate in case of a break in the hoisting machinery”; that he had also seen put on four or five hundred freight elevators the overhead ('rum arrangements. It is conceded that neither of these safety appliances was used, and that there was no counterpoise or counterweight in the shaft of the elevator, which, to some extent, would have retarded the force of the fall. While this elevator did not have these additional contrivances, it was shown that it was equipped with such safety appliances as were in common use upon freight elevators at the time; that these consisted of two pairs of iron rods attached to the side of the elevator platform, and connected with a heavy spring over the top of the elevator, which spring was in turn connected with the lifting cables in such a way that, in case the cables broke, these springs would be released, and force these safety rods into ratchets on the running ways of the elevator, and prevent the elevator from falling, and at the same time shut the steam off from the engine. This safety appliance was designed to operate in the event of the breaking of the driving cables; but, in the event of the breaking of the shaft, as in this instance, the strain on the cables upon the spring would not be relieved, and it would not operate to prevent the fall of the elevator. Upon an examination of the shaft after the accident, and upon the question as to whether the fracture was a sudden break, or whether it was a gradual development of a flaw in the metal, the engineer, called by plaintiff, testified as follows: “From the appearance of this shaft, it has been going on some time. From an examination of that shaft, I cannot tell approximately how long a time. It was not an immediate fracture, however. * * * From the appearance of that fracture of that shaft, 1 can tell what was the condition of the shaft prior to the break. * * * x found a large flaw in the center, which still appears in the shaft,—right in the center, directly in the center of the shaft there is a large flaw. * * <= The outside was perfect metal. The flaw extends to the outer circle. The flaw existed when the shaft was put in the machine,—what we call nonamalgamation of material; not perfectly amalgamated when first made. There does not appear, from -my examination of the shaft, any flaw in the nature of a crack which existed in the shaft before the final break. If that shaft had been examined prior to the final break, no flaw or weakness would have appeared upon its surface. By looking at it, you could not detect the flaw on the inside. * * * In my opinion, when that shaft finally broke, it broke as the result of gradual weakening. In my opinion, that gradual weakening did not appear in any way that could have been detected by sight, not unless the machine was taken apart, and submitted to a practical examination. If practically tested, there would a flaw appear,—submitting it to a physical test; put in a testing machine, which would show if any flaw developed. In other words, testing its strength to see if there were any flaws.” And upon cross-examination, when asked if, while the machine was in operation, and immediately prior to the accident, the shaft had been examined, whether any flaw would have appeared, he answered: “If submitted to a practical test, it would develop itself. If that shaft had been removed, and this gear wheel taken off, Immediately prior to that accident, a flaw would have appeared there to the naked eye, if submitted to a practical test; not otherwise, unless they had a powerful microscope, and examined for a slight crack; that might have disclosed it.” Upon the elevator was the following notice: ‘‘Danger. Riding on elevator is strictly forbidden without permission.” Upon this evidence the defendant moved to dismiss, on the ground that there was no evidence of defendant’s negligence, and the plaintiff asked to go to the jury on that question, which latter motion was denied, and the former granted, dismissing the complaint; to both of which rulings exceptions were taken, and present the questions upon this appeal.</p>

Action by Alfred Lindsay against Mary M. Gager and Frank P. Abbot, as executor of the will of O. A. Gager, for services rendered. From that part of the interlocutory judgment which sustained plaintiff's demurrer to two defenses in the answer, defendants appeal. From that part of said judgment which overruled plaintiff’s demurrer to another defense, plaintiff appeals.

Action by Louis C. Zieglar against Melissa Corwin. From an order denying defendant’s motion to set aside an order in supplementary proceedings, and to vacate the judgment on the ground that the court below never acquired jurisdiction of the action, defendant appeals.

Application by Lazarus Levy for the appointment of a trustee in place of Abram C. Bernheim, deceased. From an order denying a motion of defendants Charles L. Bernheim, Julius C. Bernheim, and Felix L. Bauer, composing the firm of Bernheim, Bauer & Co., to amend and modify an order appointing the Farmers’ Loan & Trust Company trustee, and directing payment and transfer of the trust funds to it, they appeal.

Action by Jacob Fishbach against the Steinway Railway Company of Long Island City, for injuries to person and property caused by defendant’s negligence. From a judgment entered on the verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Robert Bird against the Long Island Railroad Company. From a judgment entered on a decision of the trial court dismissing the complaint on the merits, plaintiff appeals.

Action by Rachel A. Martin against the New Rochelle Water Company and Adrian Iselin to have a deed given by plaintiff declared a mortgage, for leave to redeem therefrom, and for an accounting for the use and occupation of the premises conveyed from the date of such deed. There was a judgment for plaintiff, and defendants appeal.'

Action by Ann Eliza Thompson against the Manhattan Railway Company for personal injuries. From a judgment entered oh a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

' Appeal from trial term, Westchester county. Action by Harry Marks against Jose B. King for the purchase price of a manufacturing plant. The complaint was dismissed on the trial at the close of plaintiff’s case, and from a judgment entered on such dismissal, plaintiff appeals.

<p>Statutes—Subject Expressed in Title—Repeal op Former Act.</p> <p>The title o£ Laws 1896, c. 772, “An act in relation to the office o£ the district attorney of the county of Kings and providing for * * * the appointment of * * county detectives for -said office,” expresses the subject of the repeal of Laws 1892, c. 105, providing for the appointment by the district attorney for Kings county of county detectives for his office.</p>

<p>Damages—Breach of Contract—Prospective Profits.</p> <p>In an action for breach of a contract of employment by which plaintiff received a share of the profits, evidence that the business had produced a certain profit in the past, and that there was no reason to expect it to be less prosperous in the future, renders the prospective profits sufiiciently certain to be assessed as a part of plaintiff’s damage.</p>

■ Proceeding for the probate of the will of Angelina Crane, deceased. From a decree admitting the will to probate, and construing certain provisions thereof, Edith H. Simmons, a legatee, appeals.

Action by the town of Candor against the town of Tioga to recover one-half the sum expended by plaintiff in constructing a bridge over Owego creek. From a judgment in favor of plaintiff upon the report of a referee appointed to hear and determine the action, defendant appeals.

Proceeding for the probate of the will and codicil of George Van Houten, deceased. From a decree denying probate to the codicil (41 N. Y. Supp. 250), proponent, Ralph Van Houten, appeals.

Action by Robert A. McGillis and another against Ewen McGillis and others, to partition certain real estate in Warren and . Albany counties, and to enforce an alleged lien in favor of defendant Henry W. Hayden on the interest of defendant Morrison M. E. Jarvis in certain other real estate.

Action by the -Graves Elevator Company against Michael J. Calla-nan to recover for the conversion of an elevator. From a judgment in favor of defendant, and from an order granting an additional allowance of costs, plaintiff appeals.

Action by Tyndale Palmer against E. P. Bailey & Co. From a judgment for plaintiff, and an order denying plaintiff’s motion for new trial on the. minutes, plaintiff appeals.

Action by John Bowe, as treasurer of the county of Albany, against Peter D. McNab and Alexander Cameron, as executors of John Gumming, deceased. From a judgment entered on the decision of the trial judge in favor of defendants (40 N. Y. Supp. 1112), plaintiff appeals.

Action by Martin Corley, an infant, by Walter Duncan, his guardian ad litem, against the New York & Harlem Railroad Company, to recover for personal injuries. From an order denying a motion for a new trial, on the ground of newly-discovered evidence, surprise, and that the trial had resulted in an injustice, defendant appeals.

Action by Deborah L. Mangam against the president and trustees of the village of Sing Sing to recover possession of land. From a judgment entered on a verdict in favor of defendants, and from an order denying a motion for a new trial made on the minutes, plaintiff appeals.

Action by Edward A. Rollins, as surviving partner of the firm, of Rollins & Co., against Everett Barnes, to foreclose a mortgage. From a judgment in favor of plaintiff, defendant appeals.

Action by George K. Hinds against Eri C. Parker for malicious prosecution. Prom a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>t. Indtctment—Dismissal—Motion of Defendant:</p> <p>An indictment may be dismissed, on defendant’s motion, for insufficiency of evidence before the grand jury to sustain it, under Code Cr. Proc. § 671. which gives the court power to dismiss “of its own motion, * * * in furtherance of justice.”</p> <p>2. Same—Rbsubmission to Gband Juby.</p> <p>An indictment should be dismissed where the minutes of-the grand jury show that there is no evidence that the crime charged therein was ever committed, but such dismissal should be without prejudice to another submission of the case to the grand jury, where the district attorney claims to have evidence sufficient to warrant a belief that defendant would be convicted, and defendant has been guilty of laches in not challenging the evidence for eight months.</p>

<p>1. Probate Practice—Orders—Entry and Service.</p> <p>An order requiring an executor to file an account is not rendered ineffectual by the fact that it was entered and served after the time designated for filing the account, where the executor appeared by counsel at the hearing of the motion to require the accounting, and stipulated to file the account on the day named, and the order was made thereupon.</p> <p>2. Same—Accounting—Citation.</p> <p>An order requiring an executor to file a supplemental account may be made without the institution of a new proceeding by citation, when it is made in a pending proceeding for an accounting.</p> <p>3. Same—Concurrent Remedies.</p> <p>An action in the supreme court against an executor for an account is concurrent with a proceeding in the surrogate’s court for the same relief, so far as within the jurisdiction of the latter court to grant it.</p> <p>By his notice of appeal, the appellant declares his purpose to review two other orders of the surrogate’s court, made November 16, 1895, and January 11, 1896. The will of the testator was admitted to probate, and letters testamentary issued September 25, 1890. In October, 1893, proceedings for judicial settlement of the accounts of the executors were instituted, and the accounts filed in such proceedings were brought down to and including January 4, 1894. A decree was made by the surrogate therein as of December 12, 1895, and entered on the 30th day of that month. Upon the petition of a legatee, showing occasion for it, an order was made by the surrogate requiring the executors to show cause on the 16th day of that month why they should not render a supplemental account from and after January 4, 1894, and on that day the surrogate made an order granting the prayer of the petition, and ordered the executors to file such account on or before November 30, 1895. That was not done by the appellant. This order was entered December 13, 1895. By an order to show cause, the motion of the appellant, as executor, to vacate the order of November 16, 1895, was heard, and denied by order to that effect made January 11, 1896. Upon the petition of a devisee and legatee of the will, a citation was issued March 6, 1896, directed to the appellant, as executor, requiring him to show cause why the letters testamentary issued to him should not be revoked. He filed an answer. The matter afterwards came to a hearing upon the petition and answer, and on April 13, 1896, an order was made by the surrogate’s court to the effect that such letters be revoked, unless he filed such supplemental account within 10 days after service of the order. The appeal was taken from this order in July, 1896.</p>

Action by the Albany Hardware & Iron Company against George H. Day for fraud. From a judgment in favor of defendant, on a verdict vacating an order of arrest, plaintiff appeals.

Proceedings on objections filed by certain of the residuary legatees of Frederick D. Hodgman, deceased, and heirs of other residuary legatees, to the accounts of Philander C. Hitchcock and Alfred C. Hodgman, executors of his estate. From a decree settling the accounts of the executors, and from an order denying an application for a commission to take depositions, contestants appeal.

Application by the city of Ithaca for a writ of mandamus to compel the Delaware, Lackawanna & Western Railroad Company and the Cayuga & Susquehanna Railroad Company to cause a street to be extended across the railway tracks of defendants, and for the cost of this action. From a judgment awarding a peremptory writ, defendants appeal.

<p>Landlord and Tenant—Lease of Dock—Eviction.</p> <p>Defendant leased from plaintiff a dock built by plaintiff in the Erie Basin, being a part of the lake protected by a state breakwater, and constituting a part of the canal system of the state, under license from the canal commissioners, which reserved the right in the state to retake possession. The dock was accessible to vessels of light draught only, the license providing that it should not approach within 100 feet of the channel of the basin used by larger vessels, which facts were known to defendant. The lease provided that, in case of eviction of defendant by the state, no further rent should be required. Held-, that the refusal of the state to permit defendant to deepen the water around the dock, so as to allow of its use by larger vessels, was not an interference with the use of the property which excused him from payment of rent.</p> <p>Action to recover for an installment of rent claimed to be due from the de-" fendant to the plaintiff by virtue of a lease of what was known as the “Bennett Dock,” which is one of the series of piers or docks situate in the city of Buffalo,, built near the state breakwater, and extending into the state waters of the Erie Basin, which is formed by the state breakwater, and which separates its waters from the main waters of Lake Erie. The dock is about 400 feet in length and 50 feet in width, and was, on the easterly side of the channel, some 18 feet in depth, along which the vessels from the lake passed. The water immediately around the dock was shallow, and not of sufficient depth to permit the large lake vessels to moor to it, but was used for light vessels, canal'boats, ¿and a floating elevator, which drew about eight feet of water. The dock was built by the plaintiff under authority granted by the canal commissioners of the state of New York in two resolutions made by them, one made December 20, 1807, and the other April 14, 18G8. The resolution of December, 1SG7, gave the plaintiff permission to construct the dock, but the canal commissioners reserved the right “to enter into possession of the premises granted wherever it might be necessary for the purpose of making repairs, or whenever the state may require the same for commercial purposes, or on failure on part of said Bennett [the plaintiff] to make the improvement contemplated [the dock] within reasonable time.” In the April resolution, which was' made on the application of Mr. Bennett and another, asking additional privileges in the Erie Basin, it was provided for a further reservation by the canal commissioners of the right to enter into possession of the premises -whenever the canal commissioners in charge thereof should deem it for the best interests of the state. Both resolutions provided that the dock or the docks to be built under the permission granted should not approach nearer than 100 feet of the channel above referred to. The lease was under seal, and dated the 1st day of June, .1804, and provided for the leasing of the dock and dock privileges from the plaintiff to the defendant for the term of five years for a rent of $300 for the first year and for $600 for each succeeding year of the term, to be paid semiannually, with the right of renewal reserving the right of the elevator to moor at such dock, and reciting that the defendant -was entitled to “any and all rights, privileges, easements, licenses, grants, appurtenances, and hereditaments given to or vested in the said Lewis J. Bennett by virtue of any and all permissions, grants, conveyances, easements, or estate, whether created or vested in Lewis J. Bennett verbally or in writing under and pursuant to resolutions of the canal commissioners of the state of New York” (referring to them). On the same day of the-execution of this lease, and as a supplement thereto, the parties to this action entered into a further instrument in writing, whereby it was provided as follows: “That if Louis Schoellkopf [the defendant] shall at any time during the continuance of the said lease be removed or rejected from the premises demised in said lease by legal proceedings taken for that purpose, or his possession thereof shall cease by the exercise of its sovereignty by the state and of such legal proceedings, then no further rent shall become due under the said" lease. And it is understood that this clause is to be treated as an exception to the clause calling for the payment of rent in the said lease.” This instrument contained the further provision to the effect that, in case of litigation against any person owning, holding, or occupying the premises rented, all expenses of such litigation was to be borne by the defendant, who was to have the control of the litigation. And it was further provided that the defendant “agrees to use his best endeavors to protect and to secure the continuance of the license, permission, and grant heretofore made to said first party [the plaintiff] of the right to use, improve, and occupy the certain portion of the breakwater and Erie Basin described in the lease this day executed between the parties hereto.” The Brie Basin and the premises covered by the dock were a part of the canal system of the state, and the dock and the water surrounding it were connected with the Erie Canal proper by means of slips, and jurisdiction over the whole thereof, under the laws of this state, vested in the canal commissioners. The defendant, at the time of the execution of these instruments, was fully aware of the rights acquired from the state by the plaintiff, the-depth of water surrounding the dock, the location of the channel used by the larger vessels, and for what purpose the dock was then being and had been used. There was no condition or stipulation, either in the lease or the supplemental contract, concerning the dredging, or to deepen the water around the dock, or in connection with it. The defendant entered into possession of the premises leased by certain acts of ownership over them, and continued such possession until the trial of this action. Unless the defendant was excused from paying rent under the conditions of the contract, there was concededly due the plaintiff the sum of $300, with interest from June 1, 1895, the rent prior to June 1, 1895, having been paid by the defendant. The action was instituted in the superior court of Buffalo, and was a legal action, brought to recover rent. The defense alleged in the answer was that the defendant was excused from paying rent after July 1, 1895, by reason of the interference of the superintendent of canals in preventing the defendant from deepening the water about the dock so as to permit the approach of deep-draught lake vessels. There was no conflict in the evidence upon the trial, which was to the effect that about the 1st of July, 1895, one McDonough, who was assistant superintendent upon the canals, and had charge of that portion of the canal system embraced within the controversy in this action, discovering the defendant attempting to dredge in the vicinity of the dock in order to deepen the water so that deep-draught vessels could approach the dock, and also dredging near the breakwater, deeming that injury might come to the interests of the state by reason of such dredging, directed that the work be suspended, forbade the dredging, and, upon the defendant insisting upon continuing the dredging, threatened to interfere by force, and prevent it. This act the defendant claimed was an interference with his right to use the dock, and excused him from paying the rent claimed in this action. The trial court sustained the defendant in this contention. Both parties requested the direction of a verdict from tlie court. The court directed a verdict for the rent due up to the time of the interference with dredging by the state for the sum of $37.50, to which direction the plaintiff excepted, and the trial court ordered the exceptions to be heard in the first instance at the general term, and suspended judgment in the meantime. It was stipulated upon the trial and admitted by the defendant that the state had in no manner interfered with the defendant’s rights under said lease, except in the matter of dredging. No action or other legal proceeding was taken by the state to interfere with the defendant’s use of the premises leased, but it was insisted by the defendant that the interference by the assistant superintendent were such legal proceedings as contemplated by the contract.</p>

<p>L. Negligence—Proximate Cause—Province of Jury.</p> <p>It was a question for the jury whether, two persons racing their horses together on a crowded street, in violation of Pen. Code, § 147, which prohibits racing within a mile of a place where a court is sitting, and of an ordinance prohibiting fast driving, were guilty of negligence which was the proximate cause of their running against one attempting to cross in front of them at a street intersection.</p> <p>2. Same—Evidence—Relevancy.</p> <p>In determining whether two persons were negligent in racing their horses together on a street, the jury may consider the fact that, in doing so, such persons were violating the law and an ordinance.</p> <p>8. Same—Joint Liability.</p> <p>Two persons unlawfully racing their horses together on a street are jointly liable to one who attempted to cross in front of them, and who, without fault on Ms part, was run against by one of them, and injured, where but for the race there would have been no accident.</p> <p>4. Same—Street Accident—Contributory Negligence.</p> <p>Deceased was not guilty of contributory negligence, as a matter of law, in attempting to drive across a street on which others were racing their horses, at its intersection with another street, though he might have seen the approach of the racers, and have heard the shouting of one of them in time to have stopped and avoided being run against by them, where permanent objects obstructed his view in the direction from which the racers came until lie had passed beyond the curb, and the street on which the racers were was crowded with vehicles and onlookers, and deceased entered the street with his horse at a walk, and afterwards increased its pace so as to cross quickly, but was struck when at the center of the intersection.</p> <p>5. Same—Justification.</p> <p>Where a person racing with others on a street, in violation of law and an ordinance, ran against and injured one attempting to cross the street, it was not a justification of the wrong that the street had frequently been raced upon by others, with the tacit consent of the city officials.</p> <p>6. Same—Evidence of Negligence.</p> <p>One who, in attempting to cross a street, was run against by persons racing their horses thereon, in violation of law and an ordinance, was not shown to be aware of the fact that the street was frequently raced upon with the tacit consent of the city officials, merely by evidence that he lived in the city, and sometimes crossed the street.</p> <p>The trial proceeded as to the defendant Knapp, against whom the jury rendered a verdict of $5,000. The action was brought by the administratrix to recover damages for injuries resulting in the death of Matthew Hanrahan, the husband of the plaintiff, occasioned by his being run into while driving across Genesee street, in the city of Syracuse, by a horse and sleigh passing along Genesee street, while the defendants were racing their horses on that street. Genesee street is one of the oldest streets in the city, running easterly and westerly through the heart of the city, and occupied extensively for business and travel. Plum street intersects Genesee street, running north and south; and, 775 feet west of Plum street, Genesee is crossed by Leavenworth avenue, a street parallel with Plum street. At the time of the injury to the intestate, Genesee street was paved with asphalt pavements 40 feet wide, between the curbs. The deceased was attempting to cross Genesee street, on Plum, going south. On the north side of Genesee street, extending from Plum to Leavenworth avenue, there were two rows of trees, the first row about 5 feet from the curb on Genesee, and the other 19 feet from the curb. Between these rows of trees was the sidewalk. On the north west corner of Pinna street, at its intersection with Genesee, was a large residence, with a picket fence 6 feet high, so that persons passing along Plum south, to cross Genesee, their view would be very much obstructed west on Genesee until they had reached beyond the curb, and into the street itself. At the time of the accident, the sleighing was fine. Sleighs were passing up and down Genesee, and a large number of people stood on both sides of Genesee, and in t.N-gutters, at the intersection of Plum and Genesee, watching what was transpiring upon the streets. The deceased had a horse and a delivery sleigh, the bottom of the seat of which was about 34 inches from the ground, and lus rig, hor'" and sleigh, was about 16 feet long. The principal witness in the case discovered the deceased, attempting to cross Genesee from Plum, and saw his horse emerging through the crowd, apparently upon a walk; and, when he found himself upon the street, he quickened the horse’s pace, glancing, as the witness thought, toward the west, with the obvious purpose of getting across the street ,as soon as possible. While in about the center of the street, his rig was struck by the horse and cutter of the defendant Knapp, and the result was that the deceased was-fatally injured. The horse and cutter of the defendant Cochran went by the rear of the deceased’s sleigh, the testimony showing that, when he did so, the space between his rig and the rear of the deceased was from 2 inches to 2 feet. The defendants were driving from the west to the east; between Leavenworth avenue and Plum street. They were racing their horses to the fullest possible extent that the animals were capable of, and going at a rate of a mile in less than three minutes; and, when they approached a point within about 150 feet of where the intestate was struck, they were going, in the language of the witnesses, “neck and neck,” and Cochran was shouting, to the extent of his voice, to his horse to make it go faster. They wore side by side, or nearly so, at the time of the accident, their two sleighs being from 2 to 4 feet apart. The testimony of the defendant Cochran taken before a coroner’s jury was read in evidence, which disclosed that when he was about halfway between Leavenworth avenue and Plum street, a distance of over 300 feet, he discovered the deceased attempting to cross Genesee from Plum street. The accident occurred between 4 and 5 o’clock in the afternoon of February 16, 1895, and the intestate died on the 18th. The accident occurred within half a mile of the courthouse in Syracuse, where a court was actually sitting.</p> <p>By section 147 of the Penal Code it is made a misdemeanor for a person to be concerned in any racing, running, or other trial of speed between horses or other animals within one miie of the place where a court is actually sitting. There was also in force at that time an ordinance of the city of Syracuse which was as follows: “Any person who shall immoderately drive or ride any horse or other animal, whether attached to a private or public ambulance or other vehicle, in any avenue, street, alley or lane in the city, shall be subject to a fine of not less than five dollars nor more than fifty dollars, or to imprisonment in the penitentiary in the county for not less than ten days nor more than thirty days.”</p>

Action by Mary E. Hoefler against Mary R. Hoefler to recover damages for procuring her husband to leave the state for the purpose of avoiding the payment of alimony. There was judgment of nonsuit, and plaintiff moved for new trial on exceptions which were ordered to be heard by the appellate division in the first instance.

Action by Julia E. Rogers against the trustees of the New York and Brooklyn Bridge for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.

Taxation before a justice of the supreme court, pursuant to CodeCiv. Proc. § 3287, of the fees due the county clerk of Herkimer county for making searches at the request of Charles E. Snyder. From-an order allowing the bills as presented, Snyder appeals.

Petition by the Woodhaven Gaslight Company for a writ of peremptory mandamus to James F. Deehan, as street commissioner of the village of Richmond Hill, to command said commissioner to issue a permit to the petitioner to lay its pipes along Broadway street, of said village. From an order granting the writ as prayed, the street commissioner appeals.

Action by Edmund O’Connor, as assignee of Erastus Boss and others, for the benefit of creditors, against Winfield Scott Brandt, impleaded with Frederick E. Boss, to recover on a promissory note. From a judgment setting off, against the note, money on deposit by defendant Brandt with plaintiff’s assignors, plaintiff appeals.

Action by Stephen 0. Darrow against Stephen 0. Cornell, as executor of the will of Jacob N. Doty, deceased, and others. From a judgment in favor of plaintiff, defendants appeal.

<p>Concurring opinion. For majority opinion, see 42 N. Y. Supp. 182.</p>

Action by Ira W. Ketchum against Orrin Van Dusen to recover for breach of contract. From a judgment dismissing the complaint, entered on an order of the trial judge, plaintiff appeals.

<p>Costs—Ox Acceptance of-Offer of Judgment.</p> <p>A party accepting an offer of judgment made pending appeal from a justice court cannot tax costs of appeal, under Code Civ. Proc. § 3070, providing that, where an offer is accepted, judgment shall be entered accordingly; that a party refusing an offer shall be liable for costs of appeal, unless he recovers more than the sum offered; and that, if there is no offer, the prevailing party shall recover costs of appeal,—since the statute, by its terms, provides for awarding costs only-on refusal of an offer, or where no offer is made.</p>

<p>Action by Juliet Brush against the Long Island Railroad Company.</p>

<p>Actions by William J. Delaney, as receiver, etc., against Thomas B. Valentine and others. Walter P. Butler and Edgar T. Brackett, for appellants. W. A. Pierson (A. W. Shepherd, of counsel), for respondent.</p>

<p>Action by William E. Dorwin and Charles A. Burr against John B. Westbrook. S. D. Halliday and Thomas D. Husted, for appellant. Martin S. Lynch,' for respondents.</p>

<p>Action by William G. Davies and others against Francis A. Clark.</p>

<p>Action by David Drew against Truman L. Ward.</p>

<p>Action by Emil Drescher against the Dry Dock, East Broadway & Battery Railroad Company.</p>

<p>Action by Julia Gross against the Dry Dock, East Broadway & Battery Railroad Company.</p>

<p>Action by Annie W. Ferris against A. Morton B'erris, Floyd Ferris and William A. Kimball. Wheeler H. Peekham, for appellants. Esek Cowen, for respondent.</p>

<p>Action by Claiborne Ferris against A. Morton Ferris, Floyd Ferris, and William A. Kimball. Wheeler H. Peekham, for appellants. Esek Cowen, for respondent.</p>

<p>Action by James Keegan and others against John Smith. D. McMahon, for appellants. A. M. Clute, for respondent.</p>

<p>Action by Mary Anna Huda, as administratrix, etc., against the American Glucose Company.</p>

<p>Action by Dennis McMahon and others against John Smith. D. McMahon, for appellants. A. M. Clute, for respondent.</p>

<p>Action by Ellen McMath against James O’Connor. Robert S. Pelletreau, for appellant. Walter H. Jaycox, for respondent.</p>

<p>Action by Henry Morrison against Joseph Morrison and Eliza Morrison.</p>

<p>Action by Frederick M. Patchen against Louis Waefelaer. Howard R. Bayne, for appellant. Frank L. Eckerson, for respondent.</p>

<p>Action by the people of the state of New York against Moses Solomon. Arthur C. Palmer, for appellant. John D. Lindsay, for the People.</p>

<p>Action by William H. Philips against the New York Elevated Railroad Company and another. Julien T. Davies, George T. Aldrich, and C. K. Morrison, for appellants. Benjamin A. Gould, Jr., and James B. Ludlow, for respondents.</p>

<p>Action by Mary B. Train against George L. Davidson. Ira Leo Bamberger, for appellant. Fla-men B. Candler, for respondent.</p>

<p>Action by Judson S. Todd against George D. Eighmie. Reuben H. Underhill, for appellant. D. B. Ogden, for respondent.</p>

<p>Action Elizabeth S. Van Beuren and others against Sarah Lazarus others. William Mitchell, for appellants. Nelson S. Spencer, for respondents.</p>

<p>Action by Anna Trumbull against the Chesapeake & Ohio Railroad Company. John C. Kennedy, for appellant. Henry L. Sprague and Stetson, Tracy, Jennings & Russell, for respondent.</p>

<p>Action by Michael Tully against the New York & Texas Steamship Company.</p>