Volume 43 — New York Appellate Division Reports

<p>Appeal by Oliver Howard, a judgment creditor of Charles Carleton, the defendant, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Oneida on the 8th day of February, 1899, denying his motion to vacate a confession of judgment made by the defendant Charles Carleton in favor of the plaintiff.</p> <p>The statement and confession is as follows:</p> <p>“I, Charles Carleton, of the town of Camden, Oneida Co., N. Y., the defendant named in the above-entitled action, do hereby confess judgment in favor, of the First .National Bank of Camden, N. Y., the plaintiff therein named, for the sum of eighty and 38-100 dollars, and do hereby authorize said plaintiff to enter judgment therefor against me.</p> <p>“This confession of judgment is for money due to the said plaintiff from me. "</p> <p>“ And the following is a concise statement of the facts out of which the debt arose, constituting the said liability.</p> <p>“ On a certain promissory note, of which the following is a copy:</p> <p>“ ‘$68.91.</p> <p>Camden, N. Y., December 26, 1895.</p> <p>“ ‘Three months after date I promise to pay to the order of Charles Carleton sixty-eight and 91-100 dollars at the First National Bank of Camden, N. Y.</p> <p>“ ‘JAMES CARLETON.</p> <p>“ ‘Value .received, with interest.</p> <p>“ ‘ (Indorsed Charles Carleton.) ’</p> <p>“ Which said note was duly discounted at said bank after having been indorsed by me; said note was at maturity not paid, and was thereupon duly discounted, and now remains wholly unpaid, and there is now due from me thereon to said plaintiff the sum of $80.38.</p> <p>“ And the sum confessed therefor is justly due.”</p>

Appeal by the defendant, The National Bank and Loan Company of Watertown, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk- of the county of Jefferson on the 12th day of July, 1898, upon the decision of the court rendered after a trial at the Jefferson Special Term.

Appeal by the plaintiffs, Emily C. Smith, as executrix, etc., of Emily C. Smith, deceased, and another, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 24th day of February, 1898, upon the report of a referee.

Appeal by the defendants, The Board of Town Auditors of the town of Carrollton, Cattaraugus county, N. Y., and others, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of Erie county on the 20th day of December, 1898, directing that a peremptory writ of mandamus issue requiring the defendants to meet and audit the accounts of the relator. , During the years 1895 and 1896 the relator was commissioner of highways of the…

Appeal by the defendant, Garra D. Lester, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 4th day of January, 1899, upon the decision of the court rendered after a trial' at the Erie Special Term.

Appeal by the defendants, William H. Foster and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 12th day of November, 1898, upon the verdict of a jury for $125, and also from an order entered in said clerk’s office on the 25th day of October, 1898, reducing the verdict to $114 and denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Myrtie A. Halstead, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Wyoming on the 25th day of July, 1898, upon a nonsuit granted by the court at the close of the plaintiff’s evidence, after a trial before the court and a jury at the Wyoming Trial Term. The plaintiff was injured on the 14th of May, 1898.

Appeal by the defendants, John Lookner and another, from a judgment of the County Court of Niagara county in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 10th day of February, 1899, affirming a judgment of a justice of the peace, and also from an order entered in said clerk’s office on the 26th day of September, 1898, denying the defendants’ motion for an amended return from the justice who tried the action.

Appeal by the plaintiff, James J. Meehan, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 10th day of December, 1897, upon the dismissal of the complaint at the close of the plaintiff’s case by direction of the court after a trial before the court and a jury at the Onondaga Trial Term.

<p>Appeal by the defendants, Joseph P. Bass and another, as trustees of Isaac Lawrence, under a trust deed, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of March, 1899, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term.</p> <p>This action was for the recovery of a preliminary payment and disbursements made by the plaintiff, as the intending purchaser of the premises known as Nos. 498-500 Broadway, upon the ground that the defendants could not give a good title to the property. Various objections to the title were raised upon the trial, but it is .only necessary to consider one of them upon this appeal. The defendants claimed title Under one Isaac Lawrence, who acquired the premises about 1815. Uninterrupted possession of the premises-from 1831 to time of trial was proven. In the year 1858, one William Beach Lawrence, a son of said Isaac Lawrence, being then the owner and in possession of the property, made with the adjoining owners two party wall agreements, which it. is now claimed constitute an incumbrance upon the title. On the 25th of July, 1893,. Isaac Lawrence, a son of said William Beach. Lawrence, conveyed the premises in question to the defendants. The defendants having-instituted proceedings to effect a sale of the property, in such proceedings a sale was ordered and the plaintiff became the purchaser.. He refused to take the title offered to him upon various grounds, amongst others, the existence of the party-wall agreements above mentioned, and brought this action to recover bach his preliminary payment and the disbursements of examining the- title.</p>

<p>Removal of the clerk of the Municipal Court of the city of New York — form of proceeding before the Appellate Division required by section. 1383 of chapter 378 of the Laws of 1897.</p> <p>Section 1383 of the charter of the city of New York (Laws of 1897, chap. 378), providing that clerks and assistant clerks of the Municipal Court of that city “may be removed for cause, after due notice and an opportunity of being heard by the Appellate Division of tiie Supreme Court in the judicial district * * * wherein the district for which such clerks and assistant clerks were appointed is situated,” requires that proceedings for the removal of such clerks should be regularly instituted upon specific charges sufficient in their nature to warrant the removal, and that the representatives of the city should have an opportunity to prove the charges and the defendant to he heard in opposition.</p>

Appeal by the plaintiff, Eliza M. Kiernan, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York oh the 7th day of June, 1898, setting aside the verdict of a jury in her favor, and granting the defendant’s motion for a new trial.

<p>Civil service—discharge of a clerk in the department of buildings in New York city — what failure to disclose his duties in a report to the commissioner is sufficient ground therefor. . ,</p> <p>A clerk in the department of buildings of the city of New York who, under the administration of the former commissioner of buildings, had been vested with authority to either officially dismiss, so-called, “ cases ” (consisting of the material upon which the department acted in enforcing the provisions of the Building Law and in checking violations thereof), or to cancel such “ cases” and have new ones made, and upon whom it depended entirely whether such “ cases ” should go into court of not,.upon the accession, on January 1,1898, of the new commissioner, was requested to furnish in writing certain data and to define the duties he was in the habit of performing and state whether there had been any change in them since the former" administration. In response to this the clerk stated that he had “ general charge of all cases in Atty’s office prior to actual suit;” that he was “special assistant to Supt. of Bldgs., seeing the public,” and that he “had charge of Supt’s private office.” ■</p> <p>On January 5,1898, the clerk wrote a note to the commissioner asking for instructions as to whether he should continue to do the work performed by him under the former commissioner which involved the use of that official’s signature, and'concluding, “ The routine work of the department will necessarily accumulate, unless the work that I have been in the custom of doing is done, and as I do not wish such work to accumulate without your knowledge, I respectfully refer the matter to you and ask further instructions.”</p> <p>Upon a review of proceedings by which the clerk was removed upon the charges, among others, that he had made a false report as to the nature of his duties pertaining to the disposition of “ cases,” and that he had dismissed violations and other “cases” without the consent and authority of the commissioner of buildings, it was</p> <p>Held, that the power of the clerk to dispose of “cases,” which was the crucial fact to be disclosed in his report, could not be said to be inferable from the statement contained in that report;</p> <p>That the existence of any such power was not suggested by his letter of January fifth, in which the allusion to his duties as “routine work” was clearly misleading and calculated to prevent further inquiry on the part of the commissioner;</p> <p>That his failure to furnish the accurate information required admitted of a reasonable inference of dereliction and neglect of duty on his part and gave substantial cause for his removal.</p> <p>Semble, that such removal was further justified by the fact that the clerk (having discontinued the use of the commissioner’s name after the fifth of January, although he did not thereafter forward “cases” for prosecution), continued to exercise his general powers without having informed the commissioner of their nature.</p>

Appeal by the defendant, John Merritt, as executor of and trustee under the will of Hannah B. Merritt, deceased, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 2d day of July, 1898, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, George O. Ferguson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of February, 1899, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 8th day of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.

. Appeal by the- defendants, The Manhattan Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 25th day of November, 1898, .upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the petitioner, Hannibal W. Rappléye, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 10th day .of February, 1899, denying his application for a mandamus to compel an inspection by him of the books and records of. the respondent, the Farmers’ Feed Company.

Appeal by Pratt A. Brown, referee, from an, order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New* York on the 7th. day of June, 1899, fixing his fees upon a sale in partition.

Appeal by the defendant, the American Surety Company of New York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff,' entered in the office of the clerk of the county of New York on the' 14th day of April, 1899, overruling the defendant’s demurrer to the plaintiff’s complaint. The facts of this case are fully stated in the dissenting opinion of Rumsey, J

Appeal by the defendants, The Yew York Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yew York on the 31st day of December, 1898, upon the decision of the court rendered after a trial at the Yew York Special Term.

Appeal by the. plaintiff, Marie Kuhn, from a judgment of the •Supreme Court in favor of the defendants, bearing date the 20th day of June, 1898, and entered in the office of the clerk of the county of Mew York upon the dismissal of the complaint by direction of the court after a trial at the Mew York Trial Term. This action was brought to recover damages for the alienation of the affections of plaintiff’s husband by the defendants.

Appeal by Samuel H. Randall, the attorney for the plaintiff, Solomon Hexter, from so much of an order of the Supreme Court, made at the New York Special Term arid entered in the office of the clerk of the county of New York on the 6th day of June, 1899, as requires the sheriff of the county of New York to pay into court’ the amount of a judgment in favor of the plaintiff and against the Pennsylvania Railroad Company, and directs the county clerk to satisfy that judgment, and…

Appeal by the plaintiff, Margaret Campion, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 19th day of January, 1899, denying her motion to set aside the verdict of a jury and for a new trial made upon the minutes.

Appeal by the defendant, John Casey, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Uew York on the 24th day of June, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of June, 1898, denying the defendant’s motion for a new trial made upon the minutes.

<p>Will — when a devise to executors creates a trust and not a power, and vests the title in the executors — the right to the possession of land, ca/rries with it a right to the rents — waiver Tsy a purchaser at a partition sale of a deficiency in the dimensions of the property sold.</p> <p>A testatrix by her will, after making certain bequests and devises, provided, “ I give, devise and bequeath ail the rest, residue and remainder of the property and estate, real and personal, of which I shall die seized or possessed, * * * unto my executors * * * in trust to take possession of my said residuary estate and to convert the same, or such part or parts thereof as it may become necessary so to do, into money, by public or private sale,” and authorized the executors to make conveyances thereof, and, upon the final settlement of the estate, to divide the net proceeds of such residuary estate into equal parts, and dispose of said parts in accordance with certain directions.</p> <p>Held, that the will created a valid, express trust in the executors within the meaning of section 55- of the Revised Statutes (1 R. S. 728, § 55; Real Prop. Law, chap. 547 of 1896, § 76); '</p> <p>That the authority given to the executors to take possession of the land conferred • on them, as an incident of that power, a right to the rents and profits of the land, and that, therefore, the case did not fall within section 56 of the Revised Statutes (1 R. S. 729, § 56; Real Prop. Law, § 77), providing that where executors to whom land is devised are not also empowered to receive the rents and profits, they shall not take title thereto, but that the trust shall be valid as a power;</p> <p>That the fact that the executors were not called upon to make any disposition of such rents and profits after they reached their hands, did not prevent their acquiring title to the premises.</p> <p>Where a purchaser of premises at a partition sale, which took place on January 11, 1899, enters into the possession of the premises on the twenty-third of that month, at which time a survey is made showing that they are not of the exact dimensions mentioned in the description under which they were sold, and, upon learning of the discrepancy, the purchaser agrees that, in consideration of the postponement of the time for closing the sale to February twenty-seventh, he will waive any objections to the dimensions if no other objection be raised, he is not, upon a failure to raise other valid objections, in a situation to object to the discrepancy in the dimensions of the property in justification of a refusal to complete the purchase.</p>

Appeal by the plaintiff, William E. Brown, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 9th day of December, 1898, upon the dismissal of the complaint by direction of the court, after a trial before the court and a jury at the New York Trial Term.

Certiorari issued out of the Supreme Court and attested on the 21st day of December, 1898, directed to Bernard J. York and others, composing the hoard of police commissioners of the city of New York, requiring them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in refusing to grant the relator a rehearing upon the ground of newly-discovered evidence.

• Appeal by the defendant-, The Morton Boarding Stables, from a judgment-of the Supreme Court in favor of tlie plaintiffs, entered in the office of the clerk of the county of New York on the 24th day of December, 1898, upon the verdict of a jury, with notice of an intention to bring up for review upon such appeal an order •entered in said clerk’s office on the 19th- day of January, 1899, •denying the defendant’s motion for a new trial made upon the minutes.

Appeal by -the defendants, The Manhattan Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of January, 1899, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, George B. McLellan, from a judgment of the ‘ Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 20th day of December, 1898, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, John Moran, from a judgment of the Court of General Sessions of the Peace for the city and county of New York in favor of the plaintiff, entered in said court on the 7th day of June, 1896, convicting him of the crime of larceny in the first degree.

Appeal by the plaintiffs, Harry S. Barnes and another, as executors, etc., of Joseph O. Barnes, deceased, and by the defendant Thomas W. Cushing, from a judgment of the Supreme Court, entered in the office of the. clerk of the county of New York on the 7th day of December, 1898, upon the report of a referee.

<p> Contempt of court—what expenses and fine may be imposed. </p> <p>In an action brought to restrain the defendant from trespassing upon property alleged to belong to the plaintiff, an injunction was obtained forbidding the defendant from malting use of a shanty and boathouse which he had moved upon the plaintiff's land or to go on them except for the purpose of removing them, notwithstanding which the defendant continued to use the boathouse for more than a year after the injunction was issued and until proceedings were taken to punish him for contempt, although his attorney had in the meantime been notified by the plaintiff’s attorney of such use and had promised to advise the defendant to refrain therefrom.</p> <p>Held, that such conduct on the part of the defendant constituted such a flagrant violation of the injunction order that the court was justified under section 2284 of the Code of Civil Procedure in punishing him by a fine of §513.62, the amount of the reasonable costs and expense which the plaintiff had incurred in the proceedings to punish the defendant for his contempt, and in imposing in | addition thereto a fine of §250.</p>

Appeal by the defendant, the Mechanics and Traders’ Bank, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of December, 1898, upon the report of a referee.]

Appeal by the defendant, Leander W. Powers, from an order of the Supreme Court, made at the New York Special Term, bearing date the 24th day of March, 1899, as resettled by an order bearing-date the 8th day of May, 1899, and entered in the office of the clerk of the county of New York, denying his motion to dismiss the action as to him.

Appeal by the plaintiffs, Gustavos A. Waeber and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 11th day of May, 1897, as amended by an order entered in said clerk’s office May 14, 1897, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the New York Trial Term.

Appeals by Charles T. Harbeck, as trustee for Eliza D. Harbeck, under the last will and testament of John H. Harbeck, deceased,, and Henry A. Himmelman, as special guardian of Clement AufEm Ordt and others, infants, from a decree of the Surrogate’s Court of' Hew York county, entered in said Surrogate’s Court on the'25th day of May, 1899, sustaining an appeal by Bird S. Coler, as comp-r trollér of the city of Hew York, from an order-which declared that the trust fund held by…

<p>Examination of a defendant before trial to enable the plaintiff to frame his complaint—: denied in a case where nominal damages only cure recoverable.</p> <p>An order directing the examination of a defendant to enable a plaintiff to frame his complaint should not be granted, where the affidavit upon which the application therefor is made shows that if the plaintiff, who alleges a cause of action for a breach of contract by the defendant, should allege in his complaint all the information sought to be obtained by such examination, together with what he already has, he would not be entitled to recover more than nominal damages for a technical violation of the contract.</p>

Appeal by the defendant, Bernard Ratkowsky, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day -of June, 1899, denying his motion to cancel of record a notice of pendency of action.

Appeal by the relator, The Bronx Gas and Electric Company, from a judgment of the Supreme Court in favor of the defendants, bearing date the 25th day of May, 1899, and entered in the office of the clerk of the county of New York, upon an order made at the New York Special Term, bearing-date May 15,1899, and entered in said clerk’s office, denying the relator’s motion for judgment and quashing a writ of certiorari issued to review an assessment for taxation upon real property…

Appeal by the defendant, the Rome,. Watertown and Ogdenshurg Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 4th day of November, 1898, upon the decision •of the court rendered, after a trial at the Onondaga Special Term. This appeal was transferred from the fourth department to the third department.

<p>Appeal by the defendant, Emetine Potter Britton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the "office of the clerk'of the county of St. Lawrence on the 16th day of December, 1898, upon the report of a referee.</p>

Appeal by the defendants, James Grogan, as president of “ Iron Moulders’ Union, No. 2,” and others, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 24th day of March, 1899, continuing, pendente lite, a temporary injunction theretofore granted in the action.

Appeal by the plaintiff, Cornelius H. Slingerland, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 18th day of November, 1898, upon the verdict of a jury, -rendered by direction of the court for six cents damage's, and, also (as stated in the notice of appeal), from an order denying the plaintiff’s motion for a new trial.

Appeal by Jeffrey P. Thomas, as committee of the person and estate of Nancy C. Warner, an incompetent, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the .clerk of the county of Albany on the 9th day of December, 1898, judicially settling the accounts of the appellant, removing him from his trust, appointing his successor and directing him'to pay to such successor $7,266.87, belonging to the estate, and the income thereof…

Appeal by Morris E. Kirkpatrick and Hathan T. Shaw from an order of the County Court of Saratoga county, entered in the office of the clerk of the county of Saratoga on the 14th day of July, 1899, directing them to deliver to the board of health of the village of Lansingburgh certain books and papers in their possession. In March, 1896, pursuant to the Public Health Laws of the State, a board of health was organized in and for the village of Lansing-burgh.

Appeal by Eleanor C. Smith, the heir at law and next of kin of Charles W. Cornell, deceased, from a decree of the Surrogate’s Court of Ulster county, entered in said Surrogate’s Court on the 31st ■day of December, 1898, admitting to probate an instrument propounded as the last will and testament of said Charles W. Cornell, ■deceased.

Appeal by the defendants, The City of Gloversville and O. L. Everest, chamberlain of the city of Gloversville, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Fulton on the 25th day of April, 1899, granting a temporary injunction staying the sale of certain real estate for unpaid taxes. The taxes were duly levied. The defendant Wooster as the life tenant is in possession of the premises.

Appeal by the plaintiffs, Jesse J. Armstrong and another, as executors, etc., of P. Charles Cole, deceased, and by the defendants, Martin J. Galusha and others, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Monroe on the 7th day of December, 1898, upon the decision of the court rendered after a trial at the Monroe Special Term, which judgment determined in effect that only the nephews and nieces of the testator were entitled to…

<p>Malicious hilling of a dog—failure of the plaintiff to prove payment of the tax under section 116 of the County Law — the objection thereto is not mailable for the first time upon appeali</p> <p>The objection, in an action brought in a Justice’s Court to recover damages for the malicious killing of a dog, that the plaintiff did not prove that he had paid the tax imposed upon the dog, as required by section 116 of the County Law (Laws of 1892, chap. 686), which provides : ‘‘ In any action, brought for the killing of any dog, it shall be incumbent on the plaintiff in such action to prove that the tax imposed upon such dog, if any,eby the provisions of this article, has been paid,” cannot be raised in the first instance upon an appeal from a judgment in favor of the plaintiff.</p> <p>It seems, that, notwithstanding the section quoted, the plaintiff in such an action ■ is not required in the first instance to allege or prove the payment of the tax, where it does not appear that the dog was tax'able or. had been duly assessed.</p>

Appeal by the defendants, Abel Davis and others, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the cleric of the county of Jefferson on the 30th day of November, 1897, upon the report of a referee; also an appeal by the defendants, Abel Davis and John A. Augsbury, from an order entered in said clerk’s office on the 23d day of November, 1897, directing the sale of real and personal property referred to…

Appeal by the plaintiffs, Milton M. Northup and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 7th day of January, 1899, upon the decision of the court, rendered after a trial at the Oneida Trial Term, dismissing the complaint upon the merits.

. Appeal by-Willis A. Waite, as executor, etc., of Irena M. Waite, deceased, from a decree of the Surrogate’s Court of Jefferson county, entered in said Surrogate’s Court on' the 8th day of March, 1898,' settling the accounts of the said Willis A. Waite, as executor, etc., of Irena M. Waite and directing a distribution of the proceeds.

Appeal by George E. Warner from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 2d day of October, 1899, directing the-Democratic board of primary election inspectors of the second district of the ninth ward of the city of Rochester to reconvene and recount the ballots cast at the late primary election in that district, and to reject, on such recount,, five alleged marked ballots.

Appeal by the defendants, the Salt Springs.National Bank and others, from an order of the Supreme Court, made at the Oneida Special Term arid entered in the office of the clerk of the county of Oneida on the 6th day of June,. 1899., as amended by an order entered in said clerk’s office on the 19th day of June, 1899, arnendT ing the plaintiff’s complaint.

Appeal by the relator, Francis G. Ward, from so much of an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie oh the 23d of June, 1899, as denies said relator’s motion for a peremptory writ, of mandamus, directed to the above-uamed defendants as the board, of public works of the city of Buffalo, N. Y., requiring them to-reinstate the relator in his position as water superintendent of the; bureau of water of…

Appeal by John B. Davis and Owen T. Davis, as executors of and trustees under the last will and testament of Owen T. Davis, deceased, from a decree of the Surrogate’s Court of Oneida county, entered in said Surrogate’s Court on the 16th day of March, 1898, judicially settling their accounts, and.also an appeal by Thomas T. Davis, as administrator,-etc., of Elizabeth Davis, deceased, from said decree in so far as it affects him as administrator of said estate.

Appear by the plaintiff, Joseph W. Baker, from a judgment of the Supreme Court in favor of the defendant, entered in. the office of the clerk of the county of Herkimer on the 23d day of May, 1898, upon the decision of- the court, rendered after a trial before the court without a jury at the Herkimer Trial Term, dismissing the •complaint upon the merits.

Appeal by the defendant, Philander Mott, from a judgment of the Supreme Court in favor of the.plaintiff,. entered in the office of the cleric of the county of Monro,e on the 11th day of April, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of April, 1899, denying the defendant’s motion for a new trial made upon jihe.minutes. In March, .1897, the plaintiff entered upon defendant’s farm under a written agreement.

Appeal by the relator, Edward Drake, from a judgment of the Supreme Court'in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 19th day of April, 1899, upon the verdict of a jury rendered by direction of the court, ■after a trial at the Onondaga Trial Term, dismissing the proceedings.

Appeal by the defendants, Sarah Elizabeth Harman Schwalbach :and Ida S. Smith, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 9th day of March, 1899, upon the report of a referee judicially settling the account of the People’s Trust Company, as trustee .under the last will and testament of Margarethe Herrmann, deceased. '

Appeal by the defendant, Michael H. Hagerty, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of February, 1899, upon the decision óf the court rendered after a trial at the Kings. County Special Term.

Appeal by The Town of Cortlandt from so mucb of an order of the Supreme Court, made at the Dutchess County Special Term and entered, in the office of the clerk of the county of Westchester on the 4th day of August, 1898, as nullified and set aside the award made in the report of the commission in the above entitled proceedings to the town of Cortlandt, and also from an order entered in said clerk’s office on the 15th day of October, 1898,-denying a motion made by the said…

Appeal by the defendant, The Inter-State Casualty Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of March,- 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of February, 1899, denying, the defendant’s motion for a new trial made upon the minutes.

■ Appeal by the defendants, Samuel W. Ehrich and another, from a. judgment of the- Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of January, 1899, upon the verdict of a jury, and also from an order entered, in said clerk’s office on the 27th day of January, 1899, denying the= defendants’ motion for a new trial made upon the .minutes.

Appeal by the plaintiff, Alida McAlan, from an order of the Supreme Court, made at the Kings County Trial Term, bearing daté the 9th day of November, 1898, and entered in the office of the clerk of the county of Kings, dismissing the plaintiff’s complaint. The action was brought to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the .defendant.

Certiorari issued out of the Supreme Court and attested on the 27th day of February, 1899, directed to James Feeney, as commissioner of public charities of the city of New York, for the borough of Richmond, requiring him to certify and return to the office of the clerk of the county of Richmond all and singular his proceedings in refusing to allow two certain bills for the maintenance of children committed to the care of the relator.

Appeal by the defendant, The City of Yonkers, from a judgment of the Supremp Court in favor of the plaintiff, entered in the-office of the clerk of the county of Westchester on the 23d day of February, 1899, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 7th day of December,. 1898, denying the defendant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review upon' such appeal two…

Appeal by the plaintiff, Guiseppe Cinque, from a judgment of the Supreme Court in favor of the defendant, entered in the office-of the clerk of the county of Kings on the 3d day of May, 1899,. upon the decision of the court, rendered after a trial before the court, without a jury at the Kings County Trial Term, dismissing the complaint upon the merits, except from so much of said judgment as. dismissed the counterclaims interposed by the defendant.

Appeal by the defendant,-Jennie Samuels, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings bn the 14th day of March, 1899,. upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, Joseph White, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the ■clerk of the county of Kings on the 30th day of December, 1898, upon the verdict of a jury rendered by direction of the court, with notice of an intention to bring up for review upon such appeal an ■order entered in said clerk’s office on the 3d day of January, 1899, ■denying the said defendant’s motion fot a new trial made upon the minutes.

Appeal by John R. Knox, executor, etc.,.of Isabella Andrews, deceased, from a decree of the 'Surrogate’s Court of Kings county, entered in- said Surrogate’s Court ■ on the 18th day of May, 1899, denying probate to the will of Isabella Andrews, deceased.

Appeal ,by the defendants, Grace B. Aldridge and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Dutchess on the 13th day of May,, 1899;, upon the decision of the court rendered after a trial at the Dutchess County Special Term.

Appeal by the plaintiff, May Thorne Brantingham, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk'of the county of Richmond on the 21st day of January, 1899, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits, with notice of an intention to bring up for review upon such appeal an interlocutory decree entered in said clerk’s office on the 19th day…

Appeal by the defendant, William M. Tebo, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of February., 1899, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Andrew Olsen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 30th day of March,. 1899, upon the dismissal of the complaint by direction of the court-after a trial before the court and a jury at the Richmond Trial Term, and also-from an order entered in said clerk’s office on the 28th day of March, 1899, denying the plaintiff’s motion to set aside the direction…

Appeal by the plaintiff, Gilbert Darrow, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 26th day of .March, 1898, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Kings County Trial Term.

Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 5th day of December, 1898, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the 23d day of December, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Aureal by the plaintiff, Margaret Fogarty, from a judgment’ of the Supreme Court, in favor of the defendant, entered in the office of. the clerk of the county of Kings pn the 24tli day-of March, -1899, upon the dismissal of the complaint by direction of the court after a trial before.thecourt and a jury at the Kings County Trial/ Term,, and also from an order bearing date the 21st day of March, 1899,'aiid entered'in said clerk’s office, denying the-jilaintiffi’-s,motionfor…

Appeal by the relator, John Fogarty, from ■ an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 12th day of January, 1899, denying the relator’s application for a> peremptory writ of mandamus commanding the respondents to-recognize him as a member of the police force of the city of New York.

Appeal by Evangeline Close and others, contestants, from a decree of the Surrogate’s Court of Kings county, entered in said Surrogate’s Court on the 17th day of April, 1899, so far as the same relates to the instrument purporting to be a codicil to the will of Emeline Gallup, deceased.

Appeal by the relator, Alfred L. Sweeney, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of May, 1899, dismissing an alternative writ of mandamus for the reinstatement of the relator as chief engineer of a police patrol boat, and also from an order bearing date the 16th day of March,. 1899, and entered in said clerk’s office denying the relator’s motion, for a new trial…

Appeal by the defendant, Maria E. Hibbler, individually and as executrix, etc., of Joseph S. Hibbler, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 3d day of March, 1899, upon the special verdict of a jury; also from an order entered in said clerk’s office on the 18th day of February, 1899, denying the defendant’s motion for a new trial made upon the minutes, and also from an…

Appeal by the defendant, the Pennsylvania Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of March, 1899, upon the special verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of February; 1899, directing said judgment.

Appeal by the defendant, Rachel G. Rice, from a judgment .of the Supreme Court in favor of the' plaintiff, entered in the office of the clerk of the county of Suffolk on the 13th day of October, 1898, upon the verdict of a jury, and also from an order bearing date the 6th day of October, 1898, and entered in said clerk’s office, denying, the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Siegel-Cooper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24th day of February, 1899, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 14th day of February, 1899, denying defendant’s motion for a new trial on condition that the plaintiff stipulate to reduce the recovery from $15,000 to $7,500 (with…

Appeal by the plaintiff, Edward Butcher, Jr., from a judgment of the Supreme Court in favor of the defendant Frederick S. Pearson, entered in the office of the clerk of the county of Kings on the 4th day of May, 1899, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining said defend- ■ ant’s demurrer to the complaint, upon the ground that.it did not -state facts sufficient to constitute a cause of action against him.

Appeal by the plaintiff, The People of the State of New York,, from a judgment of the Supreme Court in favor of the defendant,, entered in the office of the clerk of the county of Kings on the 26th day of May, 1899, allowing the defendant’s demurrer to an indictment, and also from an order entered in said clerk’s office on the 23d day of May, 1899, upon which said judgment was entered.

Appeal by the defendant, The Preferred Accident Insurance^ Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24th day of March, 1899, Upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of March, 1899, denying the defendant’s motion for a new trial made upon the minutes.

<p> Benefit life insurance—compliance with the rules of the association is a prerequisite to a change of beneficiaries. </p> <p>A member of a benefit insurance association who was familiar with its laws, one of which provided that a member might surrender his benefit certificate and have a new one issued payable to such beneficiary as he should direct, upon the payment of a fee, and that the “right to receive the benefit will vest in the new beneficiary or new beneficiaries named in this application so soon as . indorsed over his signature on the benefit certificate, duly attested by two witnesses,” executed an instrument by which he revoked his former designation of a beneficiary, and directed the substitution of a new one. 'The instrument recited that the benefit certificate was in existence but not in his-possession, and he directed that such instrument be attached to the certificate when he or either of the beneficiaries named in the instrument should obtain possession of the certificate. The instrument was never attached to the certificate nor presented to the association during the member’s lifetime.</p> <p>Held, that the attempted change of beneficiary, not being in compliance with the rules of the association, was ineffectual.</p>

<p>Guaranty of the payment of a bond— “for value received" is a sufficient statement of the consideration therefor.</p> <p>The following indorsement, “ For value received, I guaranty the payment of the within bond,” written on the back of a bond to which a mortgage is collateral, executed by the mortgagor’s wife in consideration of the mortgagee’s agreement .to forbear the enforcement of payment of the interest due upon the bond and mortgage, followed by actual forbearance on the part of the mortgagee, is sufficient to charge the mortgagor’s wife with liability for any deficiency arising upon a foreclosure sale of the mortgaged property.</p>

<p>Action by an attorney for services — evidence of services rendered at the request of co-stranger is incompetent — sufficiency of an objection thereto. ■</p> <p>In an action brought by an attorney to recover for professional services rendered to the defendant’s testator, evidence that before the-testator’s second marriage, a brother of the prospective bride consulted the attorney about the legality of the proposed marriage, is incompetent, where it does not appear that the consultation was had at the request or for the benefit of-the testator.</p> <p>An objection that the evidence in question was unauthorized and incompetent is sufficient to raise on appeal the question, of its admissibility, although, when evidence was introduced on the trial showing what was done pursuant to the. interview, the objecting party did not reiterate the grounds of his objection, but merely interposed a general objection.</p>

Appeal by the plaintiff, Sarah A. Griffin, from a. judgment of the • Supreme Court in favor of the defendant, entered in the office of the clerk of the couuty of Queens on the 10th day of October, 1898, upon the dismissal of the complaint by direction of the court, after a trial before the court and a jury at the Queens County Trial Term.

Appeal by the plaintiff, Mary, E. S. De Grauw, us sole executrix and sole devisee under the last will and testament of Aaron A. De Grauw, deceased, from an interlocutory judgment ;of the Supreme Court in favor of the defendants, entered in the office of the clerk' of the county of Queens on the 15th day of May, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term sustaining the defendants’ demurrer to the.complaint. ' The action was…

Appeal by the defendant, Annie Bullenkamp,, from a judgment of the Supreme Court in favor of the plaintiff, entered- in tl;e office of the clerk of the county of Kings on the 14th day of February, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term, except from so much thereof as awards to. the defendant the amount of a counterclaim pleaded in her answer.

Appeal by the defendant, The Staten Island Midland Railroad Company, from a judgment of the Municipal Court of the city of New York for the borough of Richmond in favor of the plaintiff, entered in the office of the clerk of said court on the 31st day of May, 1899.

<p>Surety company — it is not entitled to be discharged from the bond of a committee of ' an incompetent — section 812 of the Codé of Civil Procedure does not apply to it.</p> <p>A surety company, which, for a valuable consideration, has become surety upon . the official bond-of the committee of an incompetent, is not entitled to be discharged from its obligation against the wishes of the committee, where ho such right is reserved to the company in the contract pursuant to which it-became surety, and where the moving papers fail to show any breach by the committee of her obligation, or that the surety company has suffered, or is liable to suffer, any damage by reason of any act or omission of the committee.</p> <p>Section 812 of the Code of Civil Procedure, providing for the discharge of a surety upon his own application, does not apply to surety companies.</p>

Appeal by the plaintiff, Maria Butler, from a judgment of the> Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 21st day of March, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at. the Kings County Trial Term, and also from an order entered in said clerk’s office on the 16th day of. March,. 1899; denying' the plaintiffs motion for a new trial.

<p> *Contract of employment—liquidated damages payable by its terms to a third person •—he cannot enforce payment thereof in his own right or as trustee for a corporation not a party to the contract. </p> <p>Where members of an incorporated jacket makers’ union enter into -an agreement with their employers, by which they agree to work for one year for the Batter, who on their part agree to employ them, and which further provides "that the employers, should they require any of such members to work more '•than nine hours a day, shall pay to a third party (a trustee of the union and ia stranger to the contract) the sum of Slot) as liquidated damages, such trustee Bias not, upon the employers becoming liable under the terms of the agreement Tor the liquidated damages, a right to take possession of property covered by a chattel mortgage given by the employers as security for the payment of such damages—■ there being no consideration moving from such trustee or from the union, in whose interests he was acting, and no contract between either of them and the employers.</p>

Motion by The Port Chester Street Railway Company to confirm a report made by two of the three commissioners appointed by the Appellate Division to determine whether the road projected by the petitioner should be constructed.

Certiorari issued out of the Supreme Court and attested on the 11th day of October,. 1898, directed to George Schoonover, as president, and Samuel S. Van Etten and others, as trustees of the village of Port Jervis, requiring them to certify and return to the office of the clerk of the county of Orange all and singular their proceedings had in relation to a bill of Philip Gorr against the village of Port Jervis.

Appeal by the defendant, Stephen L. Mershon, from a judgment of the County Court of Orange county in favor of the plaintiff, rendered on the. 16th day of January, 1899, upon the verdict of a jury convicting the defendant.of the crime of forgery in the second degree, and also from an order, bearing date the 16th day of January, 1899, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the ground that the verdict was contrary to the'…

■ Appeal by the defendant, The Western Assurance Company of Toronto, Canada, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the-26th day of January, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of January, 1898, denying the defendant’s. motion for a. new trial made upon the minutes.

Motion by the defendants, Catharine E. Gulbrandsen and others, for a new trial made upon exceptions taken to the- decision of the court, made at the Orange Special Term, determining a question of fact and djrecting the entry of an interlocutory judgment.

. Appeal by. the .defendant, .-The Berlin Iron Bridge Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of . the county .of Orange oil the 28th day of November, 1898, upon the verdict of a jury for $5,000, and also from so. much of an order entered- in said clerk’s office on the- 28th day of November,. 1898, as denied the defendant’s motion -for a new trial made upon the minutes. ■ ■

Appeals by the defendants, The Sea Beach Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day of April, 1899’, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day -of Api’il, 1899, denying .the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, George D. De Shields, Jr., as assignee of George D. De Shields for the benefit of creditors, from an drder of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 21st day of April, 1899, substituting the indemnitors of the sheriff as defendants in this action in his place.

Appeals by W. Wallace Kirby and another, as two of the executors, etc., of Elbert H. Bbgart, deceased ; The Trustees of the Jones Fund; School District No. 4, Town of North Hempstead; Daniel S..

<p>Will — remainder to a son, and in case of Ms death before the life tenant’s, to the testator’s children then living and the issue of Ms deceased children.</p> <p>A testator, after devising two lots and a dwelling house to his widow during her life, provided, “I give and devise unto my eldest son, Alfred B. Cox, the aforesaid two lots of ground and dwelling house in remainder, to have and to hold the said two lots of ground and dwelling house from and after the decease of my said wife, to him my said son, his heirs and assigns forever; but in case my , said son should die before the decease of my said wife, without lawful issue living at the time of his death, then the said two lots and dwelling house to go, upon the decease of my said wife, to such of my children as shall then be living, and the lawful issue of such as may then be dead, equally (taking by representation), as tenants in common.” Alfred H. Cox, the son, died without issue prior, to the widow.</p> <p>Held, that the gift of the remainder was contingent upon the beneficiaries surviving the widow, and that only those children and the issue of deceased children so surviving took any interest in such remainder;</p> <p>That the phrase “ then be living ” related not only to the testator’s children, but to the issue of such children as had died before the widow.</p>

Appeal by the plaintiff, the County of Nassau, from an order of the Supreme Court, made at the Kings County Special Term and entered -in the office of the clerk of the county of Nassau on the 6th day of June, 1899, denying a motion for an injunction restraining the defendant from assuming to conduct a sale óf lands for unpaid taxes in the towns of North Hempstead, Hempstead and Oyster Bay, in the county of Nassau.

Appeal by the defendant, The City of Yonkers, from a' judgment of the Supreme Court in favor of the plaintiff, bearing date the 30th day of December, 1898, and entered in the office of the clerk of the county of Westchester, upon the verdict of a jury for §1,200, and also from am order entered in said clerk’s office on the 28th day of December, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, the Amsterdam Electric Light, Heat'and Power Company, from a judgment of the Municipal Court of the •city of Hew York, rendered on the 30th day of January, 1899* upon the dismissal of the complaint by direction of the. court after a trial before the court without-a jury.

Appeal by the defendants, William E. Agne and another, from a. judgment of the Municipal Court of the city of New York in favor of the plaintiff.

Appeal by the defendant, Charles S. Shearer, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of April, 1899, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling his demurrer to the plaintiff’s complaint.

Appeal by the defendant,'Henry Odell, from an order of' the Supreme Court, made at the Dutchess County Special. Term and entered in the office -pf the clerk of the county of Dutchess on the 18th day of May, 18.99; adjudging the defendant guilty of contempt of court in instituting an action against the plaintiff for trespass, without the permission of the court. This action was brought to foreclose a mortgage held by the plaintiff upon land owned by the defendant.

Appeal by the relator, Elijah Mosher, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Dutchess on the 3d day of June, 1899, requiring the relator to submit to a physical examination.

Appeal by the relator, Mathew McAvoy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 25th day of February, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing an alternative writ of mandamus, issued on the application of the relator to Secure his reinstatement as janitor of the Rosebank School of Richmond county.