Volume 44 — New York Appellate Division Reports

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Municipal Court of the city of New York in favor of the defendant, rendered.on the 6th day of March, 1899, upon the verdict of a jury.

Appeal by Walter J. Sutherland, as executor, etc., of Lydia Ann Buel, deceased, and another, from a decree of the Surrogate’s Court of Dutchess county, entered in said Surrogate’s Court on the 13th day of March, 1899, refusing to admit to probate a paper propounded as the last will and testament of Lydia Ann Buel, deceased.

Appeal by the defendant, Minnie Ash, from a judgment of the Court of Special Sessions for the city of Hew York, in the borough of Brooklyn, in favor of the plaintiff, convicting the defendant of the crime of assault in the third degree.

<p>Appeal by Eunice E. Huff, individually and as executrix, etc., of Joseph Thorne, deceased, from a decree of the Surrogate’s Court, of Westchester county, bearing date the 3d day of Juné, 1899, and entered in said Surrogate’s Court, affirming a decree of said Surrograte’s Court, entered in said Surrogate’s Court' on the 25th day of February, 1899, assessing and fixing the transfer tax upon' the estate of Joseph Thorne,, deceased, and confirming the report of an appraiser appointed pursuant to chapter 21 of the General Laws relating to taxable transfers (The Tax Law, Laws of 1896, chap. 908).</p>

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 Orange on the 20th day of April, 1899, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 15th day of May, 1899, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, William Riley, from a judgment of the County Court of Westchester county, entered in the office of the. clerk of the county of Westchester on the 7th day of June, 1899, reversing a judgment of .the City Court of lronlters.</p>

Appeal by the defendants, Ernst Rurge 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 Queens on the 4th day of January, 1899, upon the decision of the court rendered after a trial at the Queens County Special Term.

Appeal by the plaintiff, E'milie S. De Hierapolis, 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 20th day of March, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint upon the merits, and also an appeal by the defendant Richard E. Carpenter from so much of said judgment as dismissed the counterclaim set forth in…

Appeal by the defendant, The Mesinger Bicycle Saddle Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 13th 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 the minutes. .

Appeal by the defendant, Charles Banks, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of February^ 1899, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 21st day of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the relator, Frank D. Smaw, 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 tire 17t'k day of April, 1899, dismissing a proceeding taken under the Liquor Tax Law to revoke a liquor tax certificate held by the defendants.

Appeal by the plaintiff, Mary M. Ward, from á judgment of the Siipreme Court in favor of the defendant Price W. Hasbrouck, entered in the office of the clerk of the county of Hew York on the 17th day of April, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Hew York Trial Term.

Appeal by the plaintiff, Adolph Goldmark, 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 19th day of April, 1899, 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.

Appeal by the defendant, Alfred E. Willard, 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 8th day of March, 1899, upon the decision of the court, rendered after a trial at the New York Trial Term before the court without a jury.

Appeal by the defendant,' The American Box Machine Company, 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 20th day of January, 1898, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term.

Appeal by the defendant, William Boérum Wetmore, from aft 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 11th day of July, 1899, appointing a substituted trastee.

Appeal by the defendant' Eliza .'Bernard 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 29th day of ¡March, 1899, upon the decision of the court, rendered after a trial at the ¡New York Special Term, overruling her demurrer to the plaintiff’s complaint.

Appeal-by the defendant, John W. 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 24th day of March, 1899, upon the verdict-of a jury for $5,000, and also from an order entered in said clerk’s office on the 24th day of April, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, James Revins and others, from an •order of the Supreme Court, made at the Rew York Special Term and entered in the office of the- clerk of the county of Rew York on the 21st day of March, 1899, denying the said defendants’ motion to have certain issues settled and submitted to a jury for trial.

Appeal by the complainant, John C-. Sheehan, a citizen of the State of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the cdunty of New York on the É9th day of August, 1899, dismissing proceedings instituted under section 11 of the Primary Election Law (Chap. 179, Laws of 1898, as amd. by chap. 473, Laws of 1899).

Appeal by the plaintiff, William F. Harsh, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 14th day of April, 1899, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint upon the pleadings, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 11th day of April, 1899, denying…

Appeal by Leopold Hutter, the purchaser, from' an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 21st day of August, 1899, directing him to complete the purchase of the premises described in the complaint and sold to him under the judgment in this action.

Appeal by the. plain tiff, Margaret Spies Foerst, 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 19th day of June, 1899, granting the defendant’s motion for leave to serve- an amended answer. The action was brought to recover the amount payable under a policy of life insurance issued by the defendant.

Appeal by the plaintiff, Hoses Tanenbaum, 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 4th day of April, 1899, vacating an ex parte order for the examination of the defendant before trial.

<p>Contract ■— agreement, in consideration of property rights conveyed, to pay a debt owing by one party thereto to a third person — irrevocable after its acceptance by the third person.</p> <p>The firm of Ribon, Castro & Co. on August 30, 1888, entered into an agreement with one Cisneros to guarantee to the extent of'£44,000 credits which Cisneros might obtain in London, upon the latter’s agreement to secure Ribon, Castro & Co. by executing,, upon their request, a mortgage covering the railroad which he was engaged in building. On October 3, 1884, the parties entered ■ into a further agreement "which, after reciting that under the former agreement Ribon, Castro & Co. had guaranteed certain credits obtained by Cisneros in London and New York, amounting to £67,135, contained an agreement by Ribon, Castro & Co. to advance a further sum of $389,000 upon the same terms as thesum previously mentioned, and ”, to pay up wholly the credits of £67,135 sterling, paid to Cisneros in Loudon and New York,” in consideration of which agreement Cisneros, by. the same instrument, mortgaged the entire railroad enterprise to Ribon, Castro & Co. as security for their advances, and agreed that they should have half the net profits of the enterprise, and that, irrespective of the claim of Ribon, Castro & Co. against the railroad, it belonged to them and Cisneros in equal parts.</p> <p>Held, that the agreement of Ribon, Castro & Co. to pay in full the credits amounting to £67,125, was founded upon a valuable consideration, and was valid; That, although the creditors of Cisneros, whose claims were included in the £67,125, were not parties to the agreement, it could not, after its acceptance by them, be abrogated without their consent, by a subsequent agreement between Ribon, Castro & Co. and Cisneros to cancel the mortgage, but would support an action by such creditors against Ribon, Castro & Co. to recover the amount of’ the debt.</p> <p>What operated as an adoption of the agreement by a creditor of Cisneros, considered. ‘</p>

Appeal by the plaintiff, William M. Carr, 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 August, 1899, setting aside and vacating an attempted levy made by the sheriff of New York county upon property of the defendant, by the service of a copy of a warrant of attachment and notice on one Joshua Rhodes, an alleged debtor of the defendant, on the 26th of May, 1899, in the…

. Appeal by the defendant, Ernst Malkmus, 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 March, 1899, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 29 th day of March, 1899, denying the defendant’s motion for a new trial '(made upon the minutes.

<p>Appeal by Edward O. Ffoülkes, a creditor of the Porter Air-Lighter Company, 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 31st day of July, 1899, resettling an order entered in said clerk’s office on the 10th day of July, 1899, and denying the motion of said Edward C. Ffoülkes to vacate and set aside the judgment sequestrating the property of the defendant, the Porter Air-Lighter Company, and the order appointing a temporary receiver.</p> <p>The motion to vacate- the judgment and order was made upon an order to show cause dated June 5, 1899.</p>

Appeal by the defendant, Clarence F. True, from an order of the Supreme Court, made at the New York Special Term, bearing date the 12th day of September,. 1899, and entered in the office of the clerk of the county of New York, denying the defendant’s-motion to cancel the Us pendens heretofore filed in the action.

Appeal by the defendant, Henry Hoyt, as executor, etc., of Bridget McCabe, deceased, from a judgment of the Supreme Court-in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of February, 1899, upon the verdict of a jury rendered by direction of the court.

Appeal by the plaintiff, Oscar B. Janin, from a judgment of the Supreme Court in favor of the defendant, entered iii the office of the clerk of the county of New York on the 18th day of May, 1896, upon the verdict of a jury, also from an order entered in said clerk’s office on the 25th day of May, 1896, denying the plaintiff’s ¡motion for a new trial made upon the minutes, and also from an order granting an extra allowance.

Appeal by the plaintiff, the City Real Estate Company, 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 6th day of October, 1899, directing that the issues raised by a counterclaim and reply be tried before a jury.

Appeal by the plaintiff, Kate Karrigan, 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 21st day of March, 1899, 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 1st day of March, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Frank H. Mackintosh, from an order of the Supreme Court,, made at the New York Special Term. and entéred in fhe office.of the clerk of .the county of New York on the. 23d' day óf Juné, 1899, granting the plaintiff’s, application for alimony and counsel fee. .

Appeal by Joel S. De Selding, the proposed witness, and Hamilton H. Salmon, the proposed defendant, from an older of the Supreme Court, made at the Hew York Special Term and entered in the office of the clérk of the county of Hew York on the 25th day of May, 1899, denying their motion to vacate an order for the examination of Joel S. De Selding as a witness prior to the commencement of an action against Hamilton H. Salmon.

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

Appeal by the defendants, Joseph Weber and another, from an order of the Supreme Court, made at the New York Special Term and' entered in the office of the clerk of the county of New York on the 25th day of August, 1899,' denying the defendants’ motion for a bill of particulars, or, in the alternative, to require the plaintiff to make his complaint more definite and certain.

Appeal by the defendant, the Butte and Boston Consolidated Mining Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of July, 1899, denying his motion to vacate a preliminary injunction.

Appeal by the defendant, John 0. Rodgers, from an order of the Supreme Court, made at the New York Special Term' and entered in the office of the clerk of the county of New York on the 16th day of August, 1899, denying the defendant’s motion to require the plaintiff to give security for costs.

Appeal by the defendant, James I). Hague, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 22d day of August, 1899, as resettled by an order entered in said clerk’s office on the 25th day of August, 1899, denying his motion that the plaintiff be required to give security for costs.

Appeal by William Liebermann, as assignee of Joseph Bieber and another foi' the benefit of creditors, from an order of the Supreme Court, made at the Dew York Special Term and. entered in the office of the clerk of the county of Dew York on the 10th day of July, 1899, denying the motion of the said assignee to discontinue the proceeding to remove him and compel him to account.

Appeal by the plaintiff, Mary Jordan, as administratrix, etc., of William Jordan, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of January, 1899, upon the dismissal of the complaint by direction of the court on a trial before thé court and a jury, and also from an order entered in said clerk’s office on the 27th day of January, 1899,' denying the plaintiff’s motion for a…

<p> Negligence—cutting off gas'from a house and turning it on without giving notice to-an occupant, who is injured thereby—exclusion of evidence as to a fact otherwise-shown, not reversible error. </p> <p>It is the duty of employees of a gas company, sent to remedy a defective flow of gas through a house (an operation involving shutting off the gas from the-whole house, severing the connection between the pipes in the house and the' street, removing the obstruction, reconnecting the pipes and turning the-gas on again), to use proper care to see that occupants of the house have ah-opportunity to protect themselves against the results which follow from interfering with the flow of gas, which care is commensurate with the danger which might result to an occupant of the house if for any reason the gas should flow into it without being lighted.</p> <p>Where the employees neglect to exercise such cáre, and as a result a woman in the house who, before the arrival of the employees, lighted a gas stove in her room and went to sleep, does not awake until she has sustained serious injury from gas which escapes from the gas stove when the gas is turned on, the gas-company is liable for such injuries.</p> <p>The exclusion of the answers to questions, asked the plaintiff’s husband-on his-cross-examination, tending to show that the witness was interested in the result of the action, does not constitute a reversible error as his interest clearly appears from his relation to the plaintiff and no evidence is necessary to- • establish it.</p>

Appeal by the plaintiff, Sacharize Isear, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 4th day of April, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury.

Appeal by the defendant, The Third Avenue 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 New York on the 10th day of February, 1899,-upon the verdict of a jury for $6,500, and also from an order entered in said clerk’s office on the 28th day of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Robert L. Knaggs, 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 17th day of April, 1899, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendants, The Paterson General Hospital Association and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 22d day of August, 1899, granting a motion made by the purchaser relieving him from a purchase of premises at a foreclosure sale in this action.

Appeal by the defendants, Amanda M. De Graaf and another, as executors, etc., of Henry P. De Graaf, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 6th day of.

<p> Sale of a decedent’s real property—when the citation must be published,. </p> <p>•A citation issued in a proceeding for the sale of a decedent’s real estate, and directed generally to all creditors of the decedent, as well as to those particularly named, as required by section 2754.of the Code of Civil Procedure where the executor or administrator neglects to' advertise for claims, must be published as prescribed in section 2528 of the said Code, and unless so published, a purchaser at the sale had in such proceeding will not be required to complete his purchase.</p> <p>Statutory proceedings which divest the title to real estate must be strictly pursued.</p>

Appeal by the relator, Frederick M. Czaki, 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 10th day of July, 1899, denying the relator’s application for a peremptory Or an alternative writ of mandamus.

Appeal by Teresa M. J. O’Donohue and others, individually and as executors, etc., of Joseph J. O’Donohue, deceased, from an order of the Surrogate’s Court of Hew York county, entered in said Surro. gate’s Court on the 28th day of July, 1899, denying their motion to vacate an order of said court bearing date January 15, 1898, appointing an appraiser, with notice of an intention to bring up for review upon such appeal the said order of January 15, 1898.

Appeal by the defendant, Cotton W. Bean, from a judgment óf 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 November, 1897, upon the verdict of a jury, and.also from an order entered hr said clerk’s office on the 11th day of December, 1897, denying the-' defendant’s motion for a new trial made upon the minutes.

Appeal by the -defendant, Knight L. Clapp, from an interlocutory judgment, of the Supreme Court in favor of the plaintiff, entered jn the office of. the clerk of the county of New York on the 8th day of March, 1899, upon the decision of the court rendered after a. trial at the New York Special Term overruling his demurrer to' ihe plaintiff’s complaint.

Appeal by the defendant, Victor' S. Fleckter, from a judgment-of the Court of General Sessions of the Peace in and for the city and county of New York, rendered on the. 22d day of May, Í896,. upon the verdict of a jury, convicting him of the crime of grand larceny in the'first degree.

Appeal by the petitioner, J. Fred Pierson, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of New York on the 5th day of September, 1899, as resettled by an .order entered in said clerk’s office on the 12th day of September, 1899, denying his motion for a writ of mandamus compelling the New Amsterdam Gas Company to exhibit to him its books and records.

Appeal by the plaintiff, Annette B. Wetmore (now Annette B. Markoe), from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the icounty of New York on the 26tli day of June, 1899, granting the motion of the defendant William Boerum- Wetmore for leave to -share in the income of a trust fund.

Appeal by the plaintiff, Clara Montague, as sole surviving executrix, etc., of Henry E. Droz, deceased,-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 31st day of August, 1899, granting leave to Rachel Flint to become a party defendant in the above-entitled action.

Appeal by the plaintiff, J. Frederick Ackerman, from a judgment of the Supreme Court in his favor, entered in the office of the clerk of the county of New York on the 6th day of April, 1899, upon the verdict of a jury for six cents, rendered by direction of the court.

<p>Appeal by the defendant, The City of New York, from a judg- ' pient of the Supreme Court in favor of the plaintiff and the. several Co-defendants, entered in the office of the clerk of the county of New York on the 8th day of May, 1899, upon the decision of the court rendered after a trial at the- New York Special Term'.</p>

Appeal ' by the defendant, F. Jerome Gardner, from a judgment-of the Supreme Court in favor of the plaintiffs, entered in ther office of the clerk of the county of New York on the 23d day of December, 1898, upon the verdict of a jury rendered by direction-of the court.

Appeal by the relator, Henry D. Cochrane, as executor, etc., of Henry Peek De Graaf, deceased, from an order of the Supreme Court, made at the Hew York Special Term and entered in the ■office of the clerk of the county of Rew York on the 21st day of June, 1899, denying the relator’s motion for a peremptory writ of mandamus.

Appeal Dy the defendant, the Metropolitan Street Railway ■Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the ' county of New York on the 7th day of June, 1899, upon the verdict of a jury foi* $750, and also from an order entered in said clerk’s office on the 24th day of May, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Thomas J. Dunn, as sheriff of the county of New York, from, an order of the Supreme Court, made at the.New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of August,. 1899, denying a motion made by the sheriff of the county of New York to substitute his indemnitors as defendants in this action. The action was brought to recover damages for the alleged wrongful levy of an attachment.

Appeal by the defendant, Marie Louise Moore, individually and as temporary administratrix upon the goods, chattels and credits of Gideon E. Moore, deceased, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 30th day of August, 1899, granting the plaintiff’s motion for leave to serve an amended and .supplemental complaint.

Appeal by the defendant, The Third Avenue Railroad Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county ■of New York on the 27th day of September, 1899, granting a motion to continue the above-entitled action in the name of the administratrix of the plaintiff, and granting leave to the administratrix to prosecute the appeal.

Appeal by the plaintiff, Caroline Krall, from á 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 12th day of May, 1899j upon the dismissal of the complaint upon the pleadings by direction of the court after a trial before the court and a jury.

<p>Restrictive covenants — an agreement executed by a husband does not impose them upon his wife’s land — a covenant that “ the first building erected on said land * * * shall be private dwellings,” construed.</p> <p>In the absence of proof, either parol or otherwise, that a woman owning land authorized her husband to execute an agreement to which she was not a patty, subjecting the property to certain restrictive covenants running with the land, the agreement is not binding upon her, and a purchaser of the land, under a warranty deed executed by her not referring to the agreement, obtains a title unincumbered thereby, notwithstanding the fact that the agreement had been recorded and the purchaser had notice thereof before he took the conveyance.</p> <p>Semble, that a covenant contained in a deed providing that.“ the first building erected on said land within twenty years after the date hereof shall be private dwellings of brick or stone not less than three.stories in height, planned and adapted for the residence of private families or buildings for churches,” only relates to the first building -which shall be erected on the land, and does not -prevent a grantee of the land from using a building so erected thereon in any way he plekses, or from removing the building thus erected and erecting' another building which can be used for any purpose.</p>

Appeal by John H. Hayward, as surviving trustee, etc., of John R. Hayward, deceased, from an order of the Surrogate’s Court of Hew York county, entered in said Surrogate’s Court on the 11th day of August, 1899, refusing, to vacate an order committing the .appellant for contempt of court.

Motion ny the plaintiff, Jacob Johansen, for a new trial upon a ease containing exceptions, ordered to be heard ■ at the Appellate Division in the first instance, upon the dismissal of the complaint by direction-of the court after a trial at the New York Trial Term.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of New York on the 6th day of June, 1899, upon the decision of the court rendered after a. trial before the court without a jury at the New York Trial-.Term.

Appeal by tlie relator, Brokaw Brothers, from an order of the Supreme Court, made at the blew York .Special Term and entered in the office, of the clerk of the county of blew York on the 1st day of March, 1899, dismissing a writ of certiorari.

Appeal by the defendant, Isaac Davidson, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of July, 1899, denying the defendant’s motion for a bill of particulars. The action was brought to foreclose a mechanic’s lien filed by the plaintiff for work done by him under a building contract with the defendant.

Appeal by the defendant, The American Surety 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 New York on the 28th day of December, 1898, upon the- decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, James A. Dennison, 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 19th day of April, 1899, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term.

<p>Negligence — injury from a horse breaking loose from Ms fastening in a street — that he was gentle, but had been tantalized by boys,, may be proved although not pleaded — charge to the jury.</p> <p>In an action to recover damages for personal injuries sustained by the plaintiff in consequence of the defendant’s horse suddenly breaking away from a lamppost in a public street to which he had been tied, evidence that át the time the horse broke loose boys were tantalizing him and throwing stones at him is competent upon the question of the. defendant’s negligence, although not pleaded as an affirmative defense, as is also evidence that the horse was quiet and gentle and not vicious or liable to run away or break his fastenings when properly tied.</p> <p>In such a case the court may properly charge the jury that if, “ upon the entire proof in the case they are unable to decide whether the horse broke away because of being insecurely tied, or on account of the acts of the boys, the verdict should be for the defendant,” and that “if the boys were the sole cause of the horse running away, find for the defendant. If the wrongful acts of the boys would not have caused the running away of the horse, if the horse had been properly tied, the defendant is liable. If the wrongful acts of the hoys, and the negligent manner of tying the horse, together combined, caused the injury, the defendant is liable.”</p>

Appeal by the defendant, Edwin A. Hance, 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 July, 1899, denying said defendant’s motion to vacate an order for his arrest.

<p>Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of' July, 1898, upon the verdict of a jury rendered by direction of the court.</p>

Appeal by the plaintiff, Kasryel II. Sarasohn, from an interlocutory judgment Of the Supreme Court in favor of the defendant, the Workingmen’s Publishing Association, entered in the office of the clerk of the county of New York on the 25th day of April, 1899, overruling the plaintiff’s demurrer to the separate defense contained in the amended answer of said defendant.

Appeal by tbe defendant, The Mayor, Aldermen and Commonalty of the City of Hew York, from a judgment of the Supreme Court in favor of the plaintiff,- entered in the office of the clerk of .the county of Hew York on the 27th day of ’October, 1898, upon the verdict of a jury for $30,000, and also from an order entered in said clerk’s office on the 19th day of October, 1898, denying the •defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Thomas G. Patterson, 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 July, 1899, denying the plaintiff’s motion to set aside a satisfaction of judgment and for leave to issue execution- thereon.,

Appeal by Hugh J. Grant, as receiver of the St. .Nicholas Bank of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of May, 1899, as resettled by an order entered in said clerk’s office on the 27th day of May, 1899, directing Hugh J. Grant, as such receiver, to pay to the sheriff of New York county certain sums of money in the hands of such receiver.

Appeal by the defendant, The Standard National 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 19th day of April, 1899, upon the decision of the court rendered after a trial before the court and a jury at the New York Trial Term.

Appeal by the plaintiff, Albert J. Morgan, from an order of the .Supreme Court, made at the New York Special Term and entered in the office of the clerk of ,the county of New York on the 14th day of August, 1899, denying his motion to strike out portions of the amended answer..

Appeal by the plaintiffs, Felix Herzfeld 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 New York on the 8th day of March, 1899, upon the report of a referee dismissing the complaint upon the merits.

Appeal by the plaintiffs^ Licurgo De Lorenzo and another, from so much of a judgment of the Supreme Court in favor of the defendant Feodor Yon Raitz, entered in the office of the clerk of the county of New York on the 6th day of December, 1898, upon the decision of the court rendered after a trial at the New York Special Term, as decreed that the defendant Yon Raitz have judgment against the plaintiffs, and declared the mechanic’s lien filed by the plaintiffs to be null and…

Appeal by the defendant, The Second Avenue 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 New York on the 24th day of March, 1899, upon the verdict of a jury for $2,000, and also from an order bearing date the 27th day of March, 1899, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, John Lefoy Brower and another, as executors of and trustees under the last will and testament of John L. Brower, deceased, 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 3d day of August, 1899, denying their motion to continue, pendente lite, a temporary injunction.

Appeal by Bird S. Coler, as comptroller of the city of New York, from an order of the Surrogate’s Court of New York county, entered in said Surrogate’s Court pn the 17th day of April, 1899, modifying an order assessing the value of decedent’s estate and fixing the transfer tax upon said estate. - ■

Appeal by the defendants, Ferdinand A. Straus and another, individually and as executors, etc., of Jacob Ballin, deceased, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Mew York on the 21st day of March, 1899, upon the decision of the court, rendered after a trial at the Mew York Special Term, setting aside a confession of judgment made by Moritz Ballin and another, composing the firm of Ballin Brothers,…

Appeal by the defendants, Henry P. Rogers-and others, as executors, etc., of Nathaniel P. Rogers, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20 th day of March, 1899, upon the decision of the court rendered after a trial at the New York Special Term, and also from the amended judgment entered in said clerk’s office on the 17th day of April, 1899.

Appeal by the defendant, The Consolidated Trust Company, 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 13th day of January, 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 31st day of January 1899, denying the defendant’s motion for a new trial made upon the minutes.

<p>Adopted child—rights of, in an insurance policy on the adopting father’s life-r-when the six months’ limitation is inapplicable — execution of the instruments in the judge’s presence, when unnecessary.</p> <p>Under section 10 of chapter 830 of the Laws of 1873, as amended by chapter 703 of the Laws of 1887, which provides that “A child, when adopted, shall take the name of the person adopting, and the two thenceforth shall sustain toward each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation (including) the right of inheritance, * * * except that as respects the passing and limitation over of real and personal property, under and by deeds, conveyances, wills, devises and trusts, dependent upon the person adopting dying without heirs, said child adopted shall not he deemed to sustain the legal relation of child to the person so adopting so as to defeat the rights of remaindermen,” a child adopted by a husband and wife in 1875, after policies of insurance have been issued upon the husband’s life payable to the wife, and in case of her failure to survive the husband, to her children for their use, is entitled, upon the wife’s failure to survive the husband, who died in 1898, to share in the proceeds of the policies -with the natural children of the adopting parents who were living at the time the policies were issued.</p> <p>It is only in cases where the child sought to be adopted was abandoned after the act of 1873 went into effect, that the person adopting the child must, under section 11 of that act, proceed to adopt it within- six months after he or she has assumed the maintenance thereof.</p> <p>The objection that the necessary instruments were executed in the presence of a person other than the judge before whom the proceedings for the adoption were had, is immaterial, where the judge certifies in the order of adoption that ' the adopted child and the adopting parents appeared before him, and that the necessary consents and agreement had been executed as provided for by thé statute.</p>

Appeal by the defendant, William W. Durant, from an interlocutory judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rew York on the 2d day of March, 1899, upon the decision of the court rendered after a trial at the Rew York Special Term, ordering a reference for an accounting to the plaintiff from the defendant.

■ Appeal by the defendant, The Troy Laundry Machinery Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of July, 1899, denying its motioti, to change the place of trial of the action.

Appeal by the defendant, Joel M. Marx, from a judgment of the-Supreme Court in favor of ■ the plaintiff, entered in the office of the clerk of the county of Hew York on the 7th day of June, 1899,. upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling his demurrer to the complaint as-frivolous, with' notice. of an intention to bring up for review upon such appeal an -order entered in said clerk’s office on the 6th day of June, 1899*…

Certiorari issued out of the Supreme Court and attested on the-16th day of August, 1898, directed to Francis J. Lantry, as Commissioner of Correction of the Department of Correction of the City of Hew York, requiring him to certify and return to the office of the clerk of the county of Hew York all and singular his proceedings had touching upon, or in any manner relating to, the removal and dismissal of the relator, Edward J. O’Shea, from his-position of deputy warden of the…

Appeal by the plaintiff, William K. Hawkins, from an order of the Supreme Court, made at the New York Special Term and •entered in the office of the clerk of the county of New York on the 12th day of June, 1899, resettling an order entered in said clerk’s office on the 26th day of May, 1899, vacating an attachment.

<p> Beference to take am, account—it cannot be ordered on a trial at Special Term,', on the court’s motion-, where no decision is' made. </p> <p>In an action for an accounting under a lease of a hotel executed by the plaintiff" to the- defendant, which provided for the .payment by the latter-of a fixed’ rental, and also of an additional §1,000' per month from the' surplus income of." the hotel and for the rendition of monthly statements, showing such- income,; the Special Term, before which' the case came for trial; after receiving certain; evidence as to an alleged arbitration which had not resulted in an award,, om its'own motion; and without making any decision, made an order reciting that the plaintiff was entitled to have the defendant account and that the examina- : tion of a long account would be involved, and directing a reference- to^ take ánd state the account, specifically excepting therefrom, however, the questions-whether the plaintiff was bound by the arbitration agreement, and whether there had been an account stated.</p> <p>Meld, that it was erroneous for the court to make such order without making a, decision that the- plaintiff was entitled to an' accounting, and without passing" upon the arbitration question or any of the other questions in the case, and, that the recitals in the order of reference were not equivalent to a decision.,</p> <p>Semble,' that the order could not be. treated, independently of the trial[ as a reference of the whole issue or of any portion of the issues.</p>

Appeal by Joseph Oassidy and others, members of the council of •the city of Hew York, from an order of 'the -Supreme Court, -made .at the Hew York Special Term and -entered in the office of the -clerk of .the county of Hew.York on the 8th day of August, 1899, .-adjudging that Joseph Cassidy, William A. Doyle, Martin F. Conly .and Bernard C. Murray, four members Of the municipal council of rthe-city of HeW York, were-guilty of contempt of court in failing vto comply with the…

Appeal by the relator, Clinton H. Smith, from' an order of .the Supremti Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 11th day of- August, 1899, denying his application for a writ of prohibition and dismissing an alternative writ commanding the defendants above named to desist and refrain from any further proceeding under general orders Wo. 7, whereby they báse any judgment, finding, recommendation or action…

Appeal by Andrew B. Tetter, individually and as administrator, etc., of William Livingston, deceased, from portions of a decree of the Surrogate’s Court of blew Tork county, entered in said Surrogate’s Court on the 7th day of July, 1898,'settling his account as administrator of said estate.

Appeal by tlie defendant, the Aluminum Compound Plate Gom■pany, 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 Yorlc on the 9th day of- October, 1899, denying its motion to vacate an attachment against its property, which attachment was ■obtained by the plaintiff upon the ground that, the defendant was a foreign corporation.

Appeal by the defendant, The Union Railway 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 New York on the 22d day of April, 1899, upon the verdict of a jury for; $750, and also from an order entered in said clerk’s office on the 22d -day of April, 1899, denying the defendant’s motion for a new trial, ¡made .upon the minutes.

<p>Appeal by the defendants, George Merck 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 15th day of June, 1899, upon the report of a referee.</p>

Appeal by the defendant, Sarah Ann O’Leary, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of May, 1899, requiring her to serve a bill of particulars.

. Appeal by the plaintiff, Horace Belden, from a final 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 24tli day of April, 1899, upon the decision of the court rendered after a trial at the New York Special Term sustaining a demurrer to the plaintiff’s amended complaint and dismissing the complaint.

<p>Libel—statements that a woman lived with a man (not her husband) as his wife are libelous per se — no innuendo is required.</p> <p>A publication in a newspaper alluded to a woman as “a woman who calls herself Mrs. Mooney,” and stated that “ the relatives of Colonel Mooney emphatically deny her claim to the title of Mrs. Mooney;” that his friends asserted that he did not marry after the death of his first wife, and that “ they admit that 32 years ago he met Mrs. Hester Sears, the woman who now asserts that she is Mrs. Mooney No,. 2,- with whom he lived until 6 years ago. Colonel Mooney ■ and this woman separated upon the condition that he should .pay her'$50 a month.” It also referred to the woman as ‘ ‘ Mrs. Mooney ” and as the “ alleged Mrs. Mooney,” the words being placed in quotation marks.</p> <p>Held, that the publication was libelous per se, and that no innuendo showing its ■ injurious meaning was required. z</p>

Appeal by Nathan Straus from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st- day of September, 1899, denying his motion for the appointment of a referee under the provisions of chapter 700 of the Laws of 1899.

Appeal by the defendants, Harry Rosenthal and another, composing the firm of H. Rosenthal & Co., 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 9th day of June, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to the defendants’ answer.

Appeal by the defendant, William Horace Morse, 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 17th day óf February, 1899, upon the verdict of a jury rendered by direction of ' the court, and also from an order entered in said clerk’s office, on the 7th day of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the relator, James JD. Coveney, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of September, 1899, denying his application for a peremptory writ of mandamus and dismissing an alternative writ of mandamus.

Appeal by the plaintiffs, Warren N. Goddard 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 28th day ,of June, 1899, upon the decision of the court, rendered after a trial at the New York Trial Term, before the court without a jury, dismissing the complaint.

Appeal by the: defendant, the Nassau Electric Railroad Company, ■from a judgment of the County Court of Kings county in favor of ■the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of November, 1898, affirming a judgment ■rendered by a justice of the peace in the city of Brooklyn, and also from an order entered in said clerk’s office on the 7th day of November, 1898, affirming the judgment of said justice.

<p>Appeal by the plaintiff, the Cosmopolitan Range Company, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff.</p>

Appeal by the relator, Elizabeth Cisco, from an order of the Supreme Court, made at the. Suffolk Special Term and entered iii the office of the clerk of the county of Queens on the 5th day bf September, 1899.

<p>Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of November, 1898, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office denying, the defendant’s motion for a new trial made upon the minutes.</p>

- Appeal by the defendant, The Long Island 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 11th day of February, 1899, upon the verdict of a jury for $21,500, and Also from an order entered in said clerk’s office on: the 15th day of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, John J. Hurley and another, 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 29th day of July, 1899, denying their motion for an injunction pendente lite.

Appeal by the defendant, the Supreme Council of the Royal Arcanum, 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 22d day of May, 1899, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term.

Appeal by the defendant, John Anglim, 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 20th day of May,. 1899, upon the verdict' of a jury,, and also from an order entered in said clerk’s-office on the 5th day of June, 1899, denying the defendant’s motion) for a new trial made upon the minutes.

Appeal by. the defendant, Thomas Simpson, Jr., individually and as an executor of and trustee under the will of Bobert Simpson,, deceased, from an interlocutory judgment of the Supreme ¡Court in favor .of the plaintiffs, entered in the office of the cleric of the-county of Kings: on the 22d day of July, 1899, upon the decision of the court, rendered after a trial at the Kings County Special Term,, overruling his amended demurrer to the complaint.

Appeal by the defendant, Henry R. Worthington, 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 10th day of March, 1899, upon the verdict of a jury for $1,115, and also from an order entered in said clerk’s office on the 10th day of March, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Adolph Pinsker 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 Kings on the 31st day of March, 1899. upon the report of a referee.

Appeal by the defendant, George Rodemann, 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 .6tli day of April, 1899, upon the report of a referee.

<p>Constitutional law — the prohibition against.the creation of inferior or local courts with greater jurisdiction than the County Courts — it relates to subject-matter, and versons, not to territory.</p> <p>Sec.tion'1870 of. the Greater New York charter (Laws of 1897', chap. 378), author- • izing the maintenance in the Municipal Court of the city of New York of an .action against a defendant who resides within the city of New York, although not in the county where the particular branch of the court in which the action is brought- is located, does not contravene section 18 of article 6 of the New ' York State Constitution, which provides that the Legislature -shall not create any inferior or local court with any greater jurisdiction than that conferred upon the County Courts, as the constitutional provision in question was designed to restrict the jurisdiction of local courts, as to subject-matter and persons and not territorially.*</p>

Appeal by the petitioner, Henry H. Lyman, State Commissioner of Excise, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county- of Kings on the 12th day of May, 1899, denying his application for an order revoking and canceling the' liquor tax certificate of Rafiraele Salatino.

Appeal by the petitioner, A. Lawrence Jensen,, 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 18th ■day of July, 1899, denying his application for the appointment of a referee pursuant to chapter 700 of the Laws of 1899.

Appeal by the defendant, William Friedman, from a judgment of the' Municipal Oourt of the city of New York in' favor of the plaintiffs, rendered on the 12th day of December, 1898. ■Section 1384 of the Consolidation Act, referred to in the opinion. is made applicable to the Municipal Court of the city of Few York by section 1369 of the Greater Few York charter (Laws of 1897,, chap. 378).

Appeal by the defendant, George II. Sexton, from an interlocutory judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 14th day of July, 1899, overruling the said defendant’s demurrer to the complaint, and also from an order entered in said clerk’s office on the 23d day of June, 1899, overruling said «demurrer upon the grounds (1) that causes of action have been improperly united in the…

<p>Application for life insurance —presumption that it was read hy the applicant — false answer as to his rejection hy another lodge of the same insurer.</p> <p>An applicant for a policy of life insurance who signs a medical examination blank, in which his answers to the questions propounded in the blank have been written by the physician conducting the examination, is presumed to have read the blank before he signed it.</p> <p>A breach by the insured of a warranty, to the effect .that he had never before applied for membership in the insurer or any other beneficial society or life insurance company and been rejected, is not immaterial because the unsuccessful application, on which the alleged breach was predicated, had been made to another lodge of the insurer, in the absence of evidence that the insurer kept a record of rejections, and that the officers of the insurer had actual knowledge of the contents of the record or of the rejection.</p>

Appeal by the plaintiff, Felix J. Gallagher, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 23d day of June, 1899, upon the decision of the court, rendered after a trial at the Kings-County Special Term, sustaining their demuprer to the complaint on the ground that it does not state facts sufficient to constitute ¡a-cause of action, ánd also from an order entered in said clerk’s office on the…

Appeal by the defendants, Robert T. P. Fiske and another, 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 Queens on the 8th day of June, 1899, requiring them to make; their answer more definite and certain.

Appeal by the plaintiff, Annie E. Johns, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 27th day of June, 1899, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits.

Appeal by the relator, Thomas S. Baldwin, 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 18th day of May, 1899, denying his motion for a peremptory writ of mandamus requiring Bernard J. York.and others, as police commissioners of the city of New York, to assign him to duty in the rank and grade of captain of police upon the police force of New York city.

Appeal by the plaintiff, John Schlitz, 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 10th day of March, 1899,. upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term. .

Appeal by the plaintiff, Mary Rebecca Murphy, individually and as executrix, etc., of Frederick Gf.

Appeal by the defendant, The Prudential Insurance Company of America, 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 20th day of February, 1899, upon the verdict of a jury; also from an order entered in said clerk’s office on the 20th day of April, 1899, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 24th day of…

Appeal by the defendant, the Metropolitan Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the ■ county of Dutchess on the 21st day of April, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, William Dalton, as commissioner of water supply of the.city of New York, and another, 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-18th day of July, 1899, granting a peremptory writ of mandamus, commanding the reinstatement of the relator as an inspector of manufactures or factory inspector, and granting him other and further relief.

Appeal by the defendant, The Bergen Beach 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 1st day of April, 1899, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 29th day of March, 1899, denying the defendant’s motion for a new. trial made upon the minutes.

Appeal Dy the defendant, Henry Fritz, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Richmond on the 24th day of October, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of October, 1898, denying the defendant’s- motion for a new tidal made upon the minutes.

Appeal by the relators, The Record Publishing Company. and another, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 19th day of August, 1899, as amended by an order entered in said clerk’s office on the 28th day of August, 1899, denying their motion for a peremptory writ of mandamus.

.Appeal by the plaintiff, Lucy Maud Wheeler, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 20th day of March, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint upon the merits.

Appeal by the plaintiff, J. Frank Wright, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 19th day of May, 1899, upon the report of a referee dismissing the complaint upon the merits.

Appeal by the defendant, the Union Railway Company of New ' York City, 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 13th day of March, 1899, upon the verdict of a jury for $4,000. '

Appeal by the plaintiff, Peter S. Van Orden, 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 Rockland on the 26th day of July, 1899, denying his motion to continue- a temporary injunction and vacating the same.

Appeal by the plaintiff, Kate Johnston, from a judgment of the Supreme Court in favor of the defendant, The Phoenix Bridge Company, entered in the office of the cleric of the county of Kings on the 18th day of April, 1899, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

<p> JRemedy of an appellant, where the stenographer’s minutes of evidence in the Munici- ■ pal Court of New Torh have been lost. </p> <p>"Where the shorthand notes taken by the official stenographer at a trial in the Municipal Court of the city of New York have been lost, the remedy of a party desiring to appeal from the justice’s judgment is afforded by section 3066 of the Code of Civil Procedure, which provides that where the justice is unable to make a return “the appellate court may receive affidavits, or examine witnesses, as to the evidence and other proceedings taken, and the judgment rendered, before the justice, and may determine the appeal, as if a return had been duly made by the justice.”</p>

Appeal by the plaintiff, Edward Y. B. Kissam, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 3d day of May, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term overruling his demurrer to the counterclaim set forth in the defendant’s answer.

Appeal by the defendants, Henry S. Kearny, as commissioner of public buildings, lighting and supplies of the city of New York, and another, from an order of the Supreme Court, made at the Kings County Special Term, and entered in the office of the clerk of the county of Kings on the 17th day of July, 1899, continuing a preliminary injunction.

■ Appeal by the defendant, the- Empire Type Setting Machine Company, 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 oth day of May, 1899, upon the decision of th'e court, rendered after a trial at the Kings County Special Term, sustaining the plaintiff’s demurrer to the counterclaim contained in the amended answer.

Appeal by the defendant, the Nassau Show Case Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, second district, in favor of the plaintiff rendered on the 23d day of June, 1899.

Appeal by the defendant, Gndebrod Brothers 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 April, 1899, upon .the decision of the court, rendered after a trial at.the Kings County Special Term, restraining the defendant from using certain trade names. ...

Appeal by the plaintiff, Bertha Brainard, as administratrix,, etc.,, of Louis Brainard, deceased, 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 4th day of May, 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.

Decree of the Surrogate’s Court of Dutchess county affirmed, with costs.— Appeal from a decree of the surrogate of the •county of Dutchess, denying an application to sell real estate for the payment of debts.—

Judgment modified in accordance with opinion of Goodrich, P. J., and as modified affirmed, with costs to respondent. — Appeal from a judg-' menfc of the Supreme Court, entered upon the-decision of the court at Special Term, in favor of the plaintiff.—

Judgment and order affirmed, with costs.—Appeal from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying the defendant’s motion for a new trial.—

<p>Judgment affirmed, with costs.—Appeal from a judgment of the City Court of Yonkers, in favor of the plaintiff, for the sum of $1,831.75.</p>

Order affirmed, with ten dollars costs and disbursements.—Appeal from an order which denied the defendant’s motion to strike out certain paragraphs of the plaintiff’s complaint upon the ground that certain of the paragraphs were redundant and irrelevant, and also that they are averments of conclusions of law.

Judgment for plaintiff on agreed • statement of facts, with costs.—Submission óf a controversy upon an agreed statement of facts.

Order .affirmed, with ten dollars costs and disbursements.— Appeal from an order denying the plaintiff’s motion to compel the purchaser to take title.

Judgment affirmed, with, costs.— Appeal from .a judgment entered upon the- report of a referee in favor of the ' laintiff and against the defendant.

<p>Motion for reargument denied.— Motion for a-reargumeht.</p>

<p>Judgment affirmed, with costs.—Appeal from a judgment of foreclosure and sale,, rendered by the County Court of Kings; county.</p>

Decree of Surrogate’s Court-affirmed, with costs.—Appeal by Elizabeth Remsen Le Roy Dale from a decree of the Surrogate’s Court of Westchester county, entered on the 20th day of January, 1899, admitting to probate a paper propounded as the last will and testament of Caroline Rem-sen Gihon. deceased, by William Gihon, Frederick G. Le Roy and Haley Fiske, the persons named as executors in said instrument.—

Judgment reversed and new trial granted, costs to abide the event.—Appeal from a judgment in favor of the defendants dismissing the complaint on the merits.

Decree of Surrogate’s Court affirmed, with costs.— Appeal from a decree of the surrogate of Kings county upon an accounting by the executors of the estate, which decree surcharged the account by the several items specified therein.—

Judgment, reversed and new trial granted, costs to abide the event.—Appeal by the plaintiff from a judgment entered for the defendant upon a counterclaim involving royalties upon an alleged patent oven door.

Judgment reversed and new trial granted before a new referee to be appointed at Special Term, costs to abide the event. — Appeal by the defendant from a judgment entered in favor of the plaintiff upon the decision of a referee.—

Judgment and order reversed and new trial granted, costs to abide the event.—Appeal from a judgment in favor of the defendant, and against the plaintiff, and from an order denying amotion for a new trial.—

<p>Judgment unanimously affirmed, with costs.—Appeal from a judgment for costs upon the dismissal of the complaint at the close of plaintiff’s evidence.</p>

<p>Judgment reversed, new trial ordered, costs to appellants to abide event.—Appeal from a judgment entered upon the verdict of a jury directed by the court.</p>

Order modified by dismissing order to show cause, and reinstating injunction, and as modified affirmed, without costs to either party.— Appeal from an order vacating a preliminary injunction.

Order reversed and motion granted, without costs.— Appeal from orders denying the plaintiff's motion for a preference and denying the plaintiff’s mo- . tion for a reargument of the motion for a preference.

<p>Order affirmed, ivitli ten dollars costs and disbursements.—Appeal from an order denying the defendant’s motion to require the plaintiff to increase-his undertaking on attachment.</p>

<p>Second and third charges dismissed, and upon the-first charge attorney suspended from practice • for two years.—Motion to disbar,an attorney.</p>

Judgment affirmed, with costs, with leave to the defendant to withdraw demurrer and answer in twenty days, on payment of costs in this court and in the court below.—Appeal from an interlocutory judgment overruling a demurrer to the complaint.

Judgment affirmed, with costs.— Appeal from judgment dismissing .complaint entered upon a decision of the court at Special Term.

Judgment affirmed, with costs on the opinion.of the. court below. Appéal by the plaintiff from a judgment overruling his demurrer to the defendant’s amended answer.

<p>Order modified as directed in opinion and affirmed as modified, without costs to either party.— Appeal from an order denying the plaintiffs’ motion to strike out certain denials contained in the defendants’ answer.</p>

<p>Motion granted.</p>

<p>Judgment ordered for plaintiffs, with costs.— Submission of a controversy upon admitted facts, under the-provisions of article 2, title 2, chapter 11 of the Code of Civil Procedure.</p>

<p>Appeal dismissed, without costs —Appeal from an order denying the plaintiff’s motion fora re-argument.—</p>

<p>Judgment reversed, new trial ordered, costs to appellant to abide event.</p>

<p>Order affirmed, with costs.—Appeal from an order confirming a referee’s report in surplus-money proceedings.—</p>

<p>Judgment affirmed, with costs.—Appeal from a judgment entered after a trial by the court without a jury.—</p>

<p>Motion for new trial denied, with costs.— Motion for anew trial on exceptions.</p>

<p>Judgment affirmed, with costs.—Appeal from a. judgment dismissing the complaint after a trial at Trial Term.</p>

Judgment modified as stated in opinion and afírmelas modified, without costs if plaintiff consents to the reduction therein mentioned; upon plaintiff’s refusal to give such consent, judgment reversed and new trial ordered, with costs to appellant to abide event.—Appeal from a judgment entered on a verdict, and from an order denying a motion .for a new trial.

Order affirmed, with costs, with leave to petitioners to renew application upon fui’fcher proof and notice to next of kin of Maz*y Dunne or Mary Murray, by publication- or otherwise, as the surrogate should direct.—Appeal fz*om a decree of the surrogate continuing the report of a z*eferee denying the- petitioners’ application.

<p>Judgment affirmed, with costs. —Appeal from a judgment entered on a verdict and from an order denying av motion for a new trial.</p>

Exceptions overruled and motion for new trial denied, with costs.—Motion for a new trial on a case and exceptions ordered to be heard in the first instance by the Appellate Division.

<p>Judgment reversed and complaint dismissed, with costs.—Appeal from a judgment entered upon the decision of the court at Trial Term, without a jury.</p>