Volume 44 — New York Supplement

Action by Peter B. Olney, as receiver, etc., against Frank W. Goodwin. The action was commenced by service of summons describing plaintiff as “Peter B. Olney, Receiver.” The complaint as served on defendant’s attorneys described plaintiff as “Peter B. Olney, as Receiver of the Sargent Granite Company.” The complaint was returned for this variance, and defendant moved for dismissal for want of a complaint.

<p>Certiorari by the Edison Electric Illuminating Company to review an assessment of its property made by William Harkness and others, constituting the board of assessors of the city of Brooklyn.</p>

Action by James Morrison against George A. L’Hommedieu, executor of the estate of James H. L’Hommedieu, deceased. Appeal transferred from the First to the Second department. There was a judgment for plaintiff, and defendant appeals. Reversed.

<p>Action by Emil Green against Peter F. Meyer to recover $25,000 damages for slander. Defendant moves to dismiss the complaint. Granted.</p>

Action by William Kerby against Henry F. Clapp and another to recover for the conversion of certain heaters and ranges. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

<p>Pleading—Amendment of Answer—Laches.</p> <p>Defendant was guilty of no laches warranting a denial of leave to serve a. second amended answer, where 18 months’ delay after the commencement of the action was caused by the unwarranted refusal of plaintiff's president to submit to an examination as to facts necessary to an amendment of the answer, the-amended answer was served 80 days after the filing of such examination, and-leave to make the second amendment was asked within 2 weeks thereafter.</p>

<p>Wills—Interest on Legacy.</p> <p>Interest from testator’s death will not be allowed on a bequest of money in trust to use the income and so much of the principal as may be necessary for the support of testator’s mother for life, where testator’s personalty was insufficient to pay his debts, and his real estate was unproductive.</p>

Action by Conrad Perschke against Hancke Hencken and others to recover for personal injuries. There was a verdict in favor of plaintiff, and defendants move on the minutes for a new trial. Oranted.

Judicial settlement of the accounts of William Mueller and Katie Coops, as administrators of the estate of Henry Dohrmann, deceased. From an order confirming the report of a referee to whom was referred the issues of fact arising on the petition of Katie .Coops for a reopening of the decree settling the administrators’ accounts, said Katie Coops appeals. Affirmed.

<p>Judicial settlement of the accounts of Augustus H. Van Burén, as administrator of the estate of Nicholas E. Brodhead, deceased.</p>

Action by Rosa Weltman against Adolph Posenecker. From an affirmance of an order denying a motion to set aside the taxation of costs (42 N. Y. Supp. 699), plaintiff appeals. Reversed.

<p>Appeal—Notice—Who Entitled to.</p> <p>Notice of appeal from an order of interpleader must be served on the defendants who were brought in by the order.</p>

Application by William Grady for a writ of mandamus to compel George W. Palmer, as comptroller of the city of Brooklyn, to pay him salary as sealer of weights and measures in the Fourth congressional district. From an order denying a motion for a peremptory writ, relator appeals. Affirmed.

Proceeding by David E. Austen, as receiver of taxes in the state of New York, to punish Isaac Varian and others, as executors of the will of Michael Varian, deceased, for contempt in failing to pay taxes imposed on the personal estate of testator for the year 1894. From an order committing Jesse H. Varian, one of the executors, he appeals. Affirmed.

Application by George F. Victor and others for the examination of the Richards 'Company, a judgment debtor. From an order overruling a motion to vacate an order for the examination, the Richards Company appeals. Affirmed.

Action by Robert R. Heroy against the Fan De Siecle Company to recover damages for breach of a contract of employment. From a judgment for $3,277.45, entered on a verdict in favor of plaintiff, and from an order denying a motion for new trial, made on the minutes, defendant appeals. Reversed.

<p>Appeal from trial term, New York county.</p> <p>Action by Eugene D. Klein against Mary Long for the price of goods alleged to have been sold to one John T. White. The complaint was dismissed, and plaintiff appeals. Reversed.</p>

Action by Simon Blate against the Third Avenue Railroad Company for personal injuries. From a judgment of $6,463.83 entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Action by William Hotopp against Emilie Huber and others, executors of the will of Otto Huber, deceased, to recover the sum of $1,083.18, with interest from January 6, 1886, for goods alleged to have been sold and delivered to a firm of which defendants’ testator was a member. From a judgment for $2,046.58, damages and . costs, entered on the decision of the justice before whom the issues were tried without a jury (41 N. Y. Supp. 991), defendants appeal.' Affirmed.

Action by John Costello, an infant, by his guardian ad litem, against the Third Avenue Railroad Company, for personal injuries. From an order denying a motion to restore the cause to the preferred calendar of part 2, plaintiff appeals. Reversed.

Action by John Harsen Rhoades and others as executors of and trustees under the will of Benjamin F. Wheelwright, deceased, against Margaretta Card and others, to foreclose a mortgage. From an order directing that the premises be sold subject to a certain restriction, defendant Regester, as assignee for benefit of creditors of Jackson Brandt, appeals. Affirmed.

Action by the Pierce Steam-Heating Company against William-H. Ransom and others to set aside as fraudulent a general assignment made by defendants William H. Ransom and Nannie C. Ransom, co-partners under the firm name and style of Ransom & Co.,., to defendant Louis M. Fulton. The complaint was dismissed, and plaintiff appeals. Affirmed.

Action by the St. Clair Paper Manufacturing Company against Clarence H. Brown and another' to recover goods sold by plaintiff to defendants, and damages for the detention thereof. From ah order denying a motion to vacate an order for the examination of defendants before trial, defendants appeal. Affirmed.

<p>1. Municipal Corporations—Contract to Pave Street—Interpretation.</p> <p>A contract for paving the carriageway of a street required the contractor to do the work with reference to certain maps and specifications, and to the satisfaction of the commissioner of public works, and provided that, if any street-railroad company should desire to contract with him to pave “within And about” its tracks, he would do the work at a rate not exceeding that •charged in the contract with the city. On the maps referred to in the contract the street was colored pink from the curb on each side to a line two feet from the outer rail of the street-car track, and the space between those "lines was white. There was no explanation of the coloring of the maps. "The contractor paved the street from the curb on each side of the outer rail, and the commissioner of public works certified that the work was done in accordance with the contract and was satisfactory. Held, that the two-foot space on each side of the street railroad was included in the paving contract, and the contractor was entitled to recover therefor.</p> <p>S. Release—Execution by Illiterate Person.</p> <p>A release obtained from an illiterate person by requiring him to sign before a payment would be made under his contract with the releasee, with■out reading it to him, and after assuring him that it would not prejudice bis rights, is void.</p>

<p>Guaranty—Coupon Bonds—Transfer of Coupons.</p> <p>Interest coupons, when severed from the bond and transferred to a third person, become independent obligations of the obligor, and therefore they are not within a guaranty “to the holder” of the bond of the punctual payment of principal and interest as the same shall become due and payable. O’Brien and Williams, JJ., dissenting.</p>

Action by Marcus Goldman and others against Oscar Uhlmann on a note. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiffs appeal. Affirmed.

Action by Joseph B. Dickson and Jessie L. Eddy against Jennie E. Knapp and others. From a decision made during the trial in favor of plaintiffs, defendant Knapp appeals. Dismissed.

Action by Louise Sann, as administratrix of William Sann, deceased, against the H. W. Johns Manufacturing Company, to recover damages for the death of plaintiffs intestate. The complaint was dismissed on the merits, and plaintiff appeals. Affirmed.

Action by Timothy Y. Brown, as executor of the will of Ephraim 3>. Brown, deceased, against the Mechanics’ & Traders’ Bank, to recover the amount of an alleged deficiency for which plaintiff, as such executor, became liable, in consequence of the foreclosure of a mortgage made by his testator on certain premises in Yew York City. There was a judgment in favor of plaintiff, and defendant-appeals. Reversed.

Action by Mary Ann Wholey against Bridget Kane for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

Action by Miles McDonnel against the Henry Elias Brewing Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Affirmed.

Certiorari by Francis Mal'lon to review the action of Theodore-Roosevelt and others, constituting the board of police commissioners of the city of New York, dismissing relator from the police force.. Dismissed.

<p>Appeal from trial term, ¡New York county.</p> <p>Action by Margaret Geraty, an infant, by James A. Geraty, her guardian ad litem, against the ¡National Ice Company, for personal injuries. From a judgment entered on a verdict in favor of plaintiff,, and from an order denying a motion for a new trial, defendant appeals. Affirmed.</p>

Action by the Standard Fashion Company of New York ^against Mary S. Ostrom to recover $105, alleged to have been the amount agreed to be paid by defendant to plaintiff as liquidated damages in case of the breach by defendant of the contract set out in the ■complaint. The complaint was dismissed, and plaintiff appeals. Reversed.

Action by Edwin Hamerschlag against the Cathoscope Electrical Company. From an order vacating plaintiff’s attachment on the motion of the Allen Advertising Agency, a judgment creditor of defendant, plaintiff appeals. Reversed.

<p>1. Damages—Recovery to Time of Trial.</p> <p>Plaintiff in an action for personal injuries "is entitled to damages to the time of trial.</p> <p>2. Same—Loss of Barrings.</p> <p>Plaintiff is entitled to show loss of earnings because of his absence from business, where the complaint alleges that he was compelled to remain-away for six weeks because of his injuries.</p> <p>8. Appeal—Review—Right of Party not Appealing.</p> <p>On appeal by plaintiff because of the inadequacy of the damages, the court cannot consider whether the action should have been dismissed at the trial, on the ground that plaintiff was not entitled to any recovery,, where defendant did not appeal from the judgment.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by James A. Breen against Reginald W. Rives to recover for services alleged to have been rendered by the plaintiff as a broker in procuring a purchaser for defendant’s premises No. 37 Dey street, in the city of New York. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.</p>

Action by John Geery and Edward O. Geery against Edward E. Pollpck for commissions alleged to have been earned by plaintiffs as real-estate brokers in negotiating for defendant the purchase of certain lots in New York City. From a judgment dismissing the complaint, and from an order denying a motion for a new trial, plaintiffs appeal. Reversed.

<p>Trial—Failure to File Written Decision.</p> <p>A judgment cannot be sustained Avhere the trial judge failed to comply with Code Civ. Proc. § 1010, which provides that on the trial by the court on an issue of fact or of law its decision in writing must be filed, and that, if it is not so filed, either party may move for a new trial on that ground.</p>

Action by Tyndale Palmer against the Palladium Printing Company for libel. From an order striking out portions of the answer as irrelevant and redundant, defendant appeals. Reversed.

Action by the Allentown Foundry & Machine Works against Arthur J. L. Loretz. From an order staying plaintiff’s proceedings in the action until final determination of certain actions pending in the state of Massachusetts, plaintiff appeals. Affirmed.

Action by Frank Reynolds, as receiver of Richard Worthington, against the Aetna Life Insurance Company and others. From an order granting leave to defendant Aetna Life Insurance Company to serve a supplemental answer, defendants Worthington, Glover, Doman, and Little, as receiver, appeal. Affirmed.

Action by Pauline E. White and another against Ida D. Summer and others to foreclose a mortgage.

Action by Ann McCarran against Henry G-. Cooper, impleaded with others, to set aside art alleged fraudulent naturalization. A demurrer to the complaint was sustained, and plaintiff appeals. Affirmed.

<p>1. Master and Servant—Defective Appliances—When Master is Liable.</p> <p>A master is not liable to a servant who was injured by the breaking of a scaffold in consequence of defective materials or workmanship, where the construction of the scaffold from materials furnished by the master was part of the servant’s work, and the master furnished a sufficient quantity of proper materials; but he is liable for injuries so received only in case he furnished the servant with a complete scaffold as an appliance to be used in the work.</p> <p>2. Same—Appliances Constructed by Servant.</p> <p>Plaintiff, a carpenter, was employed to work on defendant’s building. He was directed by the foreman to assist in a part of the work which required the use of a scaffold. The scaffold was constructed by the men who used It, the materials being furnished by defendant. Held, that defendant did not furnish the scaffold for plaintiff to work on, and it was immaterial that the scaffold was erected before plaintiff’s employment began.</p> <p>Van Brunt, P. J., and O’Brien, J., dissenting.</p>

Action by Samuel W. Castner and Henry B. Curran against John Duryea to charge defendant, as a stockholder of the Consumers’ -Coal Company, with the statutory liability for a debt of said company. The complaint was dismissed, as not alleging facts sufficient to constitute a cause of action, and plaintiffs appeal. Reversed.

Controversy between Nicholas J'. Hughes, as plaintiff, and John Mackin, surviving executor of the will of James Hughes, deceased, and Letitia Hughes, as defendants, submitted without action on an agreed statement of facts.

Application by the United States Pipe-Line Company for subpoenas directed to various witnesses commanding them to appears and testify before Charles S. Whitman, Esq., a commissioner named' in a certain commission issued on behalf of defendant out of the-court of common pleas for McKean county, Pa., sitting in equity,, in an action pending in said court wherein the Hational Transit Company and J. C. McDowell are plaintiffs and the United States Pipe-Line Company is defendant.

Certiorari by Danford M. Barney to review the action of Edward P. Barker and others, commissioners of taxes and assessments of the city of New York, in assessing the personal property of relator for taxatitin for the year 1896. The writ was dismissed, and relator appeals. Affirmed.

Action by Mary T. O’Meara against the Brooklyn City Railroad Company for personal injuries. Plaintiff was nonsuited, and moves for a new trial on exceptions ordered to be heard by the appellate division in the first instance. Granted.

Action by Daniel G. Thompson against John Denner and Maria. Ann Brundage, as sureties on a bond given by Gustavus Baylies, Jr., as receiver. The complaint - was dismissed, and plaintiff appeals. Reversed.

Action by Margarethe Blester, as administratrix of Joseph Biester, deceased, against the Hew York Central & Hudson Biver Bailroad Company, to recover damages for the alleged negligent killing of plaintiff’s intestate. From a judgment entered on a decision of the court dismissing the complaint at the close of plaintiff’s case for want of proof of a cause of action, plaintiff appeals. Affirmed.

Action by Imogene Hand Loudoun against the Eighth Avenue Railroad Company and the Third Avenue Railroad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal. Affirmed.

Action by Euphrosyne A. Rey, as administratrix of John A. Will, against the Equitable Life Assurance Society of the United States, to recover the sum of $5,000 on a policy of life insurance on the life of John A. Will. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Reversed.

Action by the Central Crosstown Railway Company against the Metropolitan Street-Railway Company for an injunction. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.

Action by George S. Hart against the mayor of the city of New York and another, brought under Code Civ. Proc. § 1925, as amended by Laws 1892, c. 524, attacking as unauthorized and illegal a resolution of the dock department of New York City granting permission to the Metropolitan Street-Railway Company to lay a railroad track across the bulkhead from West street to the ferry house at the foot of Christopher street.

Transferred from First department. Action by Catharine Bequa against Bichard Irvin, Jr., and L. • H. Biglow, impleaded with others, for the reconveyance of certain real estate and an accounting for rents and profits. From so much of a judgment as dismissed the complaint on the merits as to defendants Biglow and Bichard Irvin, Jr., said defendants appeal.

Action by Terrence F. Ferguson against Julius Bruckman and others. From an order directing a further hearing before the referee-after judgment had been entered on the referee’s report, plaintiff appeals. Reversed.

Action by Milton D. Northrup and Seymour D. Latcher against George S. Porter on a fire insurance policy. From a judgment for $902.27 damages and costs, entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial on the minutes, defendant appeals. Reversed.

Action by Mary McDonald against the John Hancock Mutual Life Insurance Company on a life insurance policy. The complaint was dismissed at the close of .the evidence, and plaintiff appeals. Affirmed.

Action by George J. Michel against American Central Insurance Company. From a judgment separately stating the facts found and the conclusions of law, for $1,398.53 damages and $272.06 costs, defendant appeals. Reversed.

Judicial settlement of the accounts of Frank P. Manhardt, as removed administrator of Margaret Seitz, deceased. From a decree settling the administrator’s accounts, and directing him to pay over the funds and deliver the property of the estate to William B. Frye, the administrator de bonis non of said Margaret Seitz, deceased (40 N. Y. Supp. 206), said Manhardt appeals. Affirmed.

Application by the grade-crossing commissioners of the city of Buffalo for the appointment of commissioners to ascertain the compensation to be paid to James W. Wadsworth and others interested in certain lands which may be injured by reason of the change in grade of a street on which such lands abut.

Action by Oliver C. Townsend against the Colorado Fuel & Iron Company on a guaranty of bonds. From an interlocutory judgment overruling a demurrer to the amended complaint, defendant appeals. Affirmed.

Action by William Brown Smith against the city of Syracuse and the Syracuse Improvement Company, impleaded with others. From a judgment dismissing the complaint without costs, entered on a decision separately stating the facts found from the conclusions of law, plaintiff appeals. Reversed.

Earned against the city of Syracuse and others. Prom a judgment restraining defendants from contracting for the paving of a portion of Plum street, defendants appeal. Affirmed.

Action by Bertha Magner against the Mutual Life Association of the City of Brooklyn on a life insurance policy. From a judgment for $1,178.85, damages and costs, entered on a verdict directed by the court in favor of plaintiff, defendant appeals. Affirmed.

Action by Julius F. Krug against John Pitass, Stanislaus Slisz, .and Marcel Smeja for libel. From a judgment entered on a verdict in favor of plaintiff for $6,250, and from an order denying a motion for a new trial, defendants appeal. Affirmed.

Action by Joseph K. Oasterton, individually and as executor of and trustee under the will of Thomas Oasterton, deceased, against the town of Vienna and others. There was a judgment in favor of plaintiff, and defendant town of Vienna appeals. Reversed.

Action by the Warsaw Waterworks Company against the village of Warsaw and others. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

<p>Pleading—Complaint—Single Cause of Action.</p> <p>A complaint by a stockholder against the corporation, its directors, certain judgment creditors, and the trustee in a mortgage executed by it, alleged that one of the defendants owned all the stock except that owned by plaintiff; that the directors permitted the recovery of judgments against the corporation, and the sale of the mortgage bonds to satisfy the judgments; that the individual defendants were interested in another corporation, engaged in a similar business, and transferred to it property of defendant company, without compensation; that they shut down defendant company for the purpose of increasing the business of the other corporation; that they caused a mortgage on the property of defendant company to be executed without consent of the stockholders in fraud of their rights, and that the directors were proceeding to render the property of defendant company worthless in order to destroy the value of plaintiff’s shares. The prayer for relief was that the trustee in the mortgage and the holders of the mortgage debt be enjoined from foreclosing; that the sale of bonds be set aside as fraudulent; that the corporation have judgment against the directors for their devastavit; and that they be removed, and a receiver appointed. Held, that the complaint stated a single cause of action, which was for a conspiracy to defraud plaintiff of his interest in the corporation.</p>

Action by James Compton, as receiver of the Middleport Manufacturing Company, against William C. Beecher and others. From a judgment entered on a verdict in favor of plaintiff for $2,656, and from an- order denying a motion for a new trial made on the minutes, defendants appeal. Affirmed.

Action by James H. Stevens against William S. King on a note, draft, and stated account. There was a judgment for defendant, and plaintiff appeals. Affirmed.

Action by Virginia Sands, as administratrix of the estate of James-G-. Sands, deceased, against Henry C. Miner, for an accounting. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.

<p>Appeal from special term.</p> <p>Action by Isadore Neuman against the New York Mutual Savings -& Loan Association. The complaint was dismissed on the merits, and plaintiff appeals. Reversed.</p>

Action by Charles S. Kent against Isaac S. West, as guardian and committee of the property of Asa K. West, for professional services. From an order denying without prejudice a motion to. restrain plaintiff from suing Isaac S. West as committee, he appeals. Affirmed.

Action by Daniel R. Tonge against Michael Newell for breach of contract, dated October 21, 1895, for the sale by defendant to plaintiff of a parcel of real estate for the sum of $1,250. A verdict was directed for defendant at the close of the evidence, and plaintiff’s exceptions were ordered to be heard by the appellate division in the first instance. Overruled.

<p>Appeal from Ontario county court.</p> <p>William Barry was convicted of assault and battery in the third degree, and appeals. Reversed.</p>

Action by the Bartholomay Brewing Company against Austin Haley. Held: ‘The principle is well settled that a judgment in a former suit between the same parties is a bar to a subsequent action only when the point or question in issue is the same in both.’ One may sue to recover damages for fraudulent representations upon a sale of property, and if he fails to establish the fraud, and is defeated upon…

Action by Marquis L. Peck and John C. Schryver (as administrators of the estate of Joseph G. Schryver, deceased), William T. Schryver, and John G. Schryver against John E. Bichardson (as executor of the will of Lucy Schryver, deceased), Allen O. Betts, and Catherine Tharp, to procure an adjudication that certain personalty of which Lucy Schryver was possessed was the property of Joseph G. Schryver, her husband.

ilppeal from circuit court, Onondaga county. Action by William F. Baird against the New York Central & Hudson River Railroad Company. From a judgment entered on á verdict in favor of plaintiff for $4,000, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Reversed.

Petition by James W. Burns for the appointment of commissioners to assess damages to riparian owners on Roaring brook, under Laws 1896, c. 338. The petition was granted, and certain landowners appeal. Reversed.

Action by the ^National Savings Bank of the City of Albany against William S. Slade to foreclose a mortgage. From an order denying a motion to compel plaintiff to receive an undertaking on appeal from a judgment of foreclosure and sale as a full compliance with Code Civ. Proc. §§ 1326,1331 (42 N. Y. Supp. 455), defendant Slade appeals. Dismissed.

Action by Jessie E. Hewitt a'gainst Thomas T. Ballard for conversion. A judgment rendered in a justice’s court in favor of plaintiff was reversed by the county court, and plaintiff appeals. Modified.

Action by Margaret Walsh against the city of Buffalo for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $726, and from an order denying a motion for a new trial made on the minutes, defendant appeals. Affirmed.

Action by Charles H. Keep and others against Maurice G. Walsh and others. From a judgment against plaintiffs for costs of the action, entered on a verdict in favor of defendants, and from an order denying a motion for new trial, made on the minutes, plaintiffs appeal. Keversed.

Controversy between William P. O’Grady, as plaintiff, and the New York- Mutual Live-Stock Insurance Company of Buffalo, as defendant, submitted without action on an agreed statement of facts, pursuant to Code Civ. Proc. § 1279. Judgment for plaintiff.

Transferred from the Third department. Action by Helen J. Hoffman against the president, managers, and company of the Delaware & Hudson Canal Company for personal injuries.

<p>Arrest in Civil Cases—Lotteries—Action for Money Lost.</p> <p>1 Rev. St. p. 667, § 32, providing that any person who shall purchase a share in an illegal lottery may recover double the sum paid therefor, does not prescribe a penalty, and therefore does not authorize the arrest of defendant, under Code Civ. Proc. § 549, subd. 1.</p> <p>Follettand Green, JJ., dissenting.</p> <p>The complaint alleges that the appellant and others were unlawfully associated in a certain illegal business of selling and offering to sell what are commonly called “lottery policies,” “and writings, papers, and documents in the nature of bets, wagers, and insurance upon the drawing and drawn numbers of certain public and private lotteries, and indorsing and using books and other documents for the purpose of enabling others to sell such lottery policies, writings, papers, and documents, at the city of Buffalo, N. Y.” It also alleges that “the plaintiff, at Buffalo, N. Y., paid and delivered to the defendants, and the defendants then and there wrongfully and unlawfully received from the plaintiff, various large sums of money in consideration of. certain agreements made by the defendants from time to time to repay to this plaintiff certain other sums of money if certain numbers in certain illegal lotteries known as the ‘Kentucky,’ ‘Frankfort,’ and ‘Henry’ lotteries, and also known as a ‘policy game,’ should prove fortunate or unfortunate, or if certain numbers should be drawn in a particular order or otherwise, contrary to the provisions of the Revised Statutes relating to ‘Raffling and Lotteries’; which sums of money so paid and delivered by plaintiff, and wrongfully and unlawfully received by the defendants, amount in the aggregate to four thousand dollars.” When the order of arrest was applied for, an affidavit made by the plaintiff and an affidavit made by Graves were presented, in which were more particularly described the business carried on by the defendants. In the order of arrest it is recited that it was made to appear “that a sufficient cause of action exists in favor of the above-named plaintiff against the above-named defendants for a penalty, being double the amount of money paid by plaintiff to defendants on the purchase of certain tickets, shares, and interests in certain illegal lotteries, and unlawfully received by defendants, contrary to the provisions of article 4, c. 20, of the Revised Statutes, relating to ‘Raffling and Lotteries.’ ”</p>

<p>Appeal from circuit court, Cattaraugus county.</p> <p>Action by Norman M. Allen against Hiram F. Henry. From a judgment in favor of plaintiff entered on the decision of the court, defendant appeals. Reversed.</p>

Action by Bridget McCabe against Ira D. Brainard for personal injury. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Reversed.

Action by James M. Mahaney against John D. Walsh. The court directed a verdict in iavor of defendant, and plaintiff moves for a new trial on exceptions ordered to be heard by the appellate division in the first instance. Granted.

Action by Charity Hungerford against Orrin Hungerford. From a judgment vacating and setting aside an agreement of separation made between the parties, who were husband and wife, on October 12, 1892, and for costs, defendant appeals. No case was made, but exceptions were filed to the finding of the referee on questions of law. Affirmed.

<p>1. Trial—Objections to Evidence.</p> <p>An objection that plaintiff in an action on an insurance policy failed to show facts sufficient to constitute a cause of action, is too general to present the point that plaintiff did not prove title to the property insured.</p> <p>2. Insurance—Watvbr of Proofs of Loss.</p> <p>There is sufficient evidence to go to the jury on the question whether defendant insurance company waived formal proofs of loss where informal proofs were delivered to and retained by the company, and acted on without objection.</p> <p>Action upon an insurance policy issued by the defendant, January 24, -1894, to the plaintiff and her husband, George P. Weber, insuring the household furniture in their residence in Rochester, N. Y. The insured property was totally destroyed by fire, April 1, 1894. The action was commenced on the .11th day of October, 1894, previous to which the husband assigned to the plaintiff his interest in the loss. The action was tried at the Monroe circuit on the 15th of November, 1895, before a justice of this court and a jury. At the close of the plaintiff’s testimony, the counsel for the defendant moved for a nonsuit, “upon the ground that the plaintiff has failed to show facts sufficient to constitute a cause of action, and has failed to establish the facts alleged in the complaint.” The motion was granted, to which the plaintiff excepted. The complaint was dismissed, and the judgment entered to that effect against the pla in-tiff, with costs, from which judgment the plaintiff appeals. Upon the trial it appeared that the house occupied by the insured had several rooms, in which there was a good supply of furniture suitable for housekeeping; that the parties insured had been married a few weeks; and that the plaintiff was acquainted with one Poppin, who was an insurance solicitor and agent for the defendant, and occupied the same office in Rochester with Duemplemann and Stahlbrodt, the general agents of the defendant. Poppin, in July, 1893, met the plaintiff on the street, and entered into conversation with her. She informed Poppin that she had been married. Poppin said: “If you are married, I guess I will have to come down and give you a policy of insurance.” The plaintiff said, “You can come down and see my husband about it.” In a short time Poppin went to the house, and the plaintiff showed him through the house. At this time the furniture destroyed by the fire was in the house. The plaintiff asked Poppin what she could get the property insured for. He said $1,000. Later on, when the husband was at home, Poppin went again to the house, and, finding the husband, told him that he had come to make out a policy. The husband said that he could not afford it just then; that he was working only on half time, and had got all he could do to live and pay his rent, and pay the balance on the furniture that his wife had bought on the installment plan. Poppin said he would wait 30 days. Afterwards; and shortly before the" policy was issued, the plaintiff’s husband met Poppin in the street, and told him to bring the policy for $1,000, which Poppin did, and upon its delivery to the husband the premium of $6 was paid. The policy was the standard form, and contained the condition that it should be void if the interest of the insured be other than the unconditional and sole ownership of the property. The policy covered the household furniture, useful and ornamental, which included furniture valued at $223.34 that had been purchased by the plaintiff of a Rochester firm upon the installment plan, payable at different periods, and all of which had been paid at the time of the insurance except $75, the firm reserving the title to the property until paid for. At the time of the insurance there had been no default in the time of payment under this contract, and at the time of the trial the furniture had all been paid for. The property in the house, except that purchased on the installment plan, seems to have belonged to the plaintiff and her husband, and was not incumbered. The next morning after the fire the husband went to see the agent Duemplemann, and notified him of the fire; and he testified: “I told him I had a fire. He says, ‘All destroyed?’ I says, ‘Yes.’ He says, ‘How much are you insured for?’ I says, ‘A thousand dollars.’ He says, ‘How much dties your property amount to?’ I says, ‘Between thirteen and fourteen hundred dollars.’ He says, T will tell you what to do; you go home and buy some legal-cap paper, and put down every article you had in the house, and the price opposite each one. When you get that done, return it to me at the office.’ ” The husband asked the agent for a duplicate policy, as his had been destroyed by fire, and the agent informed him that it was unnecessary, as the defendant had a duplicate in New York. The plaintiff and her husband made out the list as directed by the agent, and on the 4th of April the plaintiff delivered the completed list of property destroyed, which was an inventory giving a detailed description of the furniture in each room, with valuations attached to each article, aggregating $1,376.79, to Mr: Duemplemann, and asked him if it was all right, and he said, “Yes”; and she testifies: “I asked him what I ought to do now, and he said I should go home. It would be all right. He would send it to New York. He said I was to do nothing, and I went home.” In a few days one Kreuder, the general adjuster of the defendant, appeared in Rochester, and, in company with Poppin, went to the plaintiff’s house, having the memorandum of loss which she had delivered, to the insurance agent, and interrogated the plaintiff, and made investigations as to the fire. Before the expiration of 60 days from the time of the fire the husband saw the agent Stahlbrodt, and stated to him that the limit of time, 60 days, had pretty nearly expired, and he had not heard anything from the company; whereupon the agent said to him: “Weber, if you sent your papers to New York, you will have. your money, either two or three days before sixty, or two or three days after sixty.” Ño other or different proofs of loss were furnished by the insured, nor was any required by the defendant. The policy contained the usual provision as to furnishing proofs of loss. Some proof was given upon the trial as to the value of the property burned, but the proof was not completed, owing to the suggestion of the court that that might be deferred until the other proof was in, and when the plaintiff rested her counsel stated that she did rest except as to the proof of the value of the property, whereupon she was nonsuited. The paper containing the statement of the loss was not returned to her, nor any notice given her that it was defective in any respect.</p>

Action by the Genesee Falls Permanent Savings & Loan Association against the United States Fire Insurance Company on a fire insurance policy. Plaintiff was nonsuited, and moves for a new trial on exceptions ordered to be heard by the appellate division in the first instance. Denied.

Action by John F. Guenther and Helen Guenther against Frank J. Amsden and Henry 0. Amsden. From a judgment entered on a verdict directed by the court in favor of plaintiffs, and from an order denying a motion for a new trial, made on the minutes, defendants appeal. Affirmed.

Action by Lewis P. Ross against Ckauncey C. 'Caywood and others; to set aside as fraudulent a sale of a stock of merchandise by defendant Holcomb, plaintiff’s judgment debtor, to defendant Caywood. The complaint was dismissed as to defendants Caywood and Donovan,, without costs, and plaintiff appeals. Reversed.

<p>Appeal from judgment on report of referee.</p> <p>Action by Maryette Rix against Artemus L. Hunt. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.</p>

<p>1. Corporations—Actions against Directo ns—Parties.</p> <p>Under Laws 1892, c. 688, § 30, making the directors jointly and severally liable for the debts of the corporation if they fail to file annual reports, an action may be brought against any one or more of the directors without joining as defendants the other directors and the corporation.</p> <p>2. Same—Nature of Liability.</p> <p>The -liability of directors for failure to file annual reports (Laws 1892, c. 688, § 30) is primary, and an action thereon may be brought without prior recovery of judgment against the corporation on return of execution unsatisfied.</p>

<p>Certiorari by Joseph B. Eakins to review the determination of Theodore Roosevelt and others, constituting the police commissioners of New York City, dismissing relator from the police force. Dis¿OllSSGCl</p>

Action by William S. De Camp, individually and as trustee under the will of Julia L. De Camp, deceased, against Lemon Thompson, John A. Bix, and Edward Thompson, Jr., composing the firm of the Moose River Lumber Company. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.

Action by the Edison Electric Illuminating Company of New York against the Guastavino Fireproof Construction Company and others. There was a judgment in favor of defendants, and plaintiff appeals. Modified.

Action of interpleader by the Edison Electric Illuminating Company of New York against the G-uastavino Fireproof Construction Company and others. From a judgment of distribution, defendant Gustavus Isaacs appeals. Modified. Percy Jackson, for respondents Guastavino Fireproof Const. Co. and Percy Jackson, assignee.

Action by Mari A. Gumming against George W. Roderick and another on a promissory note. The complaint was dismissed as to defendant Roderick, and plaintiff appeals. Reversed.

Action by William Weidman against Rufus A. Sibley and others for personal injuries. The complaint was dismissed, and plaintiff appeals. Reversed.

Action by George 0. Montgomery against Angelino Sartirano and another for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $6,000, and from an order denying a motion for a new trial, defendants appeal. Reversed.

Action by Joseph Mayer against Joseph Liebmann and others for personal injuries. From a judgment for $5,000 damages and $414.60 costs entered on a verdict in- favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendants appeal. Affirmed.

Action by Mahlon B. Oakley against John S. Cokalete for an accounting between partners. From an order adjudging David W. Travis, defendant’s attorney, guilty of contempt, and imposing on him a fine of |100, said Travis appeals. Reversed.

Action by Louis W. Elliott against Michele Vallaro and others for the price of goods alleged to have been sold by plaintiff and his assignor to a certain firm of which defendant Vallaro was a partner. None of the persons sued as co-partners, appeared or answered except defendant Vallaro. From a judgment entered on a verdict in favor of the answering defendant, and from an order denying a motion for a new trial, plaintiff appeals. Reversed.

<p>Libel and Slander— Pleading Justification— Sufficiency of Answer.</p> <p>An answer alleging that “defendant justifies the publication of the alleged defamatory matter contained in the article complained of, and, on information and belief, alleges it is true, and gives notice that he will, on the trial of the action, offer and prove the truth of the alleged defamatory matter, except as stated in the next paragraph of the answer," is insufficient, where the statements in the article are of a general nature, and such as to support derogatory inferences expressed in the innuendoes.</p>

<p>Appeal from special term, Westchester county.</p> <p>Action by Robert Sewell against James Butler (1) for personal injuries to plaintiff, (2) for damages to property, and (3) for the loss by plaintiff of his wife’s services; all of which damages plaintiff claims to have sustained by reason of defendant’s negligence. From an order vacating an order directing plaintiff to submit to an oral and physical examination, defendant appeals. Reversed.</p>

<p>Druggists—Unlawful Sale of Drugs—Criminal Prosecution.</p> <p>Laws 1886, c. 272, forbids any person, unless a registered pharmacist, to sell, dispense, or compound medicines, but provides that a registered pharmacist shall not be responsible for the quality of drugs or medicines sold in the original packages of the manufacturers: Helé, that the prohibition applies to medicines in the original packages of the manufacturer.</p>

Transferred from First department. Action by Edmund W. Converse and others against Daniel E. Sickles, sheriff of the city and county of Hew York. From a judgment in favor of plaintiffs for $7,369.05 (40 H. Y. Supp. 971), defendant appeals. Modified.

<p>Application by William H. Hale for an order removing John McKinney, a justice of the peace, from office, on the ground of malfeasance. Denied.</p>

<p>Action by Mortimer G. Bloom against the Standard Publishing Company.</p>

<p>Action by the Breckenridge Company, Limited, against James D. Perkins.</p>

<p>Action by Helen M. Brown against Nathaniel B. Sherman, as sheriff of Allegany county, and another.</p>

<p>In the matter of the accounting of Hannah E. Andrews, as executrix, etc., of Albert N. Briggs, deceased.</p>

<p>Action by the board of commissioners of charities and corrections against Richard McOloslcey.</p>

<p>Action by Harriet W. Clark against the Middletown-Goshen Traction Company.</p>

<p>Action by Harlan Crandall against John R. Phillips.</p>

<p>Action by Robert W. De Forest and another against the Manhattan Railway Company, the Metropolitan Elevated Railway Company, and the New York Elevated Railroad Company.</p>

<p>Action by Henry Died el against the New York Elevated Railroad Company and the Manhattan Railway Company.</p>

Action by Louis Elsheimer against the city of Niagara Falls and others.

<p>Action by Edwin A. Eaton "against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Thomas N. Dwyer against James Rorke.</p>

<p>Action by the First National Bank of Plainfield, N. J., against Robert L. Harrison, as trustee, impleaded with Ellen J. H. Haight et ah</p>

<p>Action by the Greater New York Athletic Club against Frederick W. Wurster, as mayor, etc., and the city of Brooklyn.</p>

<p>Action by the German-American Bank of Tonawarida and the Lumber Exchange Bank against Benjamin L. Rand, George F. Rand, and the State Bank of Tona-' wanda.</p>

<p>Action by F. Stuart Gray against Milo M. Belding, impleaded with the Greigsville Salt & Mining Company and others.</p>

<p>Action by Grace A. Hallaban, as administratrix, against George C. Webber and others.</p>

<p>Action by Charles S. Halsted against Sarah B. Halsted.</p>

<p>Action by Matthew Hettrick against Walter Brower, executor, etc.</p>

<p>Action by Henry L. Herbert and another against John Duryea.</p>

<p>In the matter of the estate of Benjamin Lord, deceased.</p>

<p>Action by Charles McCarthy against Vincent F. Sano, Antonio Sano, and Robert J. Fish.</p>

<p>Action by James MeCrane against the Flushing & College Point Electric Railway Company.</p>

<p>Action by Alexander C. McCone against Patrick Gallagher.</p>

<p>Action by William Moore against Taylor J. Eldridge.</p>

<p>Action by Mary J. Mooney against Anastatia Byrne and others.</p>

<p>Action by the Manhattan Life Insurance Company against the American Surety Company of New York.</p>

<p>Action by the National Savings Bank of the City of Albany against William H. Slade and William S. Slade, impleaded with others.</p>

<p>In the matter of the petition of a majority of the directors of the Murray Hill Bank. See 41 N. Y. Supp. 914, 920.</p>

<p>Proceeding for the dissolution of the Murray Hill Bank.</p>

<p>Certiorari by' the Pennsylvania Coal Company against James D. McGiffert, George Brown, Hiram e Schoonmaker, and Samuel C. Kernahan, as assessors of the city of Newburgh, county of Orange, and Daniel J. Coutant, city clerk of said city, to review an assessment.</p>

<p>Action by William H. Price against the Ohio Falls Car Company.</p>

<p>Action by Regina Spitzer, an infant, by Ignatz Spitzer, her guardian, etc., against the Nassau Newspaper Delivery Express Company.</p>

<p>Action by Jacob Smith against John King and John G. McCullough, as receivers of the New York, Lake Erie & Western Railroad Company.</p>

<p>Action by Sarah J. Sawyer against William W. Badger et al.</p>

<p>Actio;, by Thomas Tinsley against Elbert S. Jemison for rescission of a contract for fraud.</p>

<p>Action by Louis Stieglitz against Milo M. Belding, Jr.</p>