Volume 45 — New York Appellate Division Reports

Appeal by- the defendant, The Jamaica Electric Light Company, from a judgment of the Supreme Court in favor of the plain tiffs^ entered in the office of the clerk of the county of Queens on the 2Sth day of April, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of May, 1899, denying the defendant’s motion for anew trial made upon the minutes.

Appeal by the plaintiff, James F. Larkin, 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 24th day of June, 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.

Appeal by the uefendant, 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 Kings on the 27th day of April, 1899, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 28th day of April, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Charles McLaren, 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 12th day of March, 1898, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Kings County Trial Term. The transactions out of which the canse of action arose are fully stated in the opinion of Woodward, J.

Appeal by the defendant, Edward Bleyl, from a judgment of the Supreme Court in favor of the plaintiff, entered in the offiqe of the clerk of the county of Fulton on the 9th day of June, 1899, granting the plaintiff judgment upon the pleadings on a trial at the Fulton Trial Term.

Certiorari issued out of the Supreme Court and attested on the •8th day of April, 1899, directed to William J. Morgan, as Comptroller of the State of New York, requiring him to certify and return to the office of the clerk of the county of Albany all and. singular his proceedings had in denying the application of the relator for a cancellation of certain tax sales.

Wppeal by the plaintiff, George A. Smith, as receiver, etc., of Erin W. Kirtland, from a judgment of the Supreme Court in favor of'he defendants, entered in the office of the clerk of the county of Bfr ime on the 5th day of July, 1899, upon the report of a referee disusing the Complaint.

<p>Basement — a conveyance of land upon a creek, including a rig0 ice —it does not'-give the grantees the right to erect a harrier to keep sdnfm drafting upon the icefield. /</p> <p>An owner of land, on both sides of a creek, conveyed the er Porti°n of such land; "Together with the right to pile or dump upon tf^joiningland of the party of the first- part, on either of said peninsulas or i^’ 'aay material excavated from the waters adjacent to any and all of the11*8®® a^ove described. Together with the exclusive right to use, for the pur/1Sphering and storing ice therefrom, all" the waters which lie between the center line of said Wing "dam on the north and the southerly line of lot B on the south and the west bank of the Ylauman’s creek, or the river on the west and the peninsula or island above referred to as having been formed west of the dyke on the east.</p> <p>“ Said party of the first part reserves to herself, however, the right to the use and occupation of any and all of the above-described premises, except the premises firstly described herein, for any and all purposes that do not conflict or interfere with the use thereof for the purpose of gathering "and storing ice, and the use of the same for the purpose of piling and dumping material excavated as above provided.”</p> <p>Subsequently the grantees drove a row of spiles across the creek just below the dam mentioned in the deed for the purpose of preventing sand from washing upon the ice field. It did not appear that the condition sought to be remedied did not exist when the easement was granted, and there was evidence that the barrier caused the sand to be deposited on the grantor’s remaining land, and so changed the current of the creek that it would, in times of flood, wash out part of such lands.</p> <p>Held, that the grantees had no right to drive the row of spiles, either as an incident to the easement, or as a repair necessary to preserve the use granted, and that the effect of such barrier was to enlarge the extent of the use;</p> <p>That the provision in the deed giving the grantees the right to pile on the lands of the grantor material excavated from the water was evidence that the parties probably contemplated that, the,influx of sand would be remedied by dredging; and that it repelled the idea that the grantees were expected to guard against such influx by the erectior of a barrier.</p>

<p>Right of a plaintiff in an action at law to apply ex parte, after issue joined, for an order discontinuing it on payment of costs.</p> <p>The plaintiff in an action at law, in which an answer has beqn interposed setting forth no counterclaim or affirmative defense, inay obtain, upon an ex pa/rte application, an order discontinuing the action upon the -payment of costs.</p> <p>An application to discontinue an action is not such a proceeding therein as necessarily requires notice thereof to a party who has appeared.</p>

<p> Basement—what aet in placing the joists of a building in an adjoining wall initiates an adverse possession—what is notice thereof to the grantees of the owner of the wall. </p> <p>The act of a person erecting a house upon his lot, in attaching the joists thereof to a wall standing upon an adjoining lot, is such a notorious and hostile act as is sufficient to initiate an adverse possession of an easement in the wall for the support of the joists. _ '</p> <p>Such possession is available against successive owners of the wall where a slight ■ inspection of the roof and wall of the adjoining building whose joists are so supported .would disclose the situation, and where the owner of the latter building asserts his adverse possession by continuing the wall in question a story higher as one of the walls of his building.</p>

Appeal by James H. Glavin, supervisor of the town of Waterford, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of' the county of Saratoga on the 3d day of August, 1899, directing that a peremptory writ of mandamus issue against said James H. Glavin, commanding him to approve the bond of Vincent Reddish as highway commissioner of the town of Waterford.

<p>Supervisor's — a committee may investigate and report on bills — right of the board to reconsider an audit—proper items of disallowance in a sheriff’s bill—proper form of disallowance—•when an audit will not be set aside for' an improper disallowance of a valid item — affidavit of members of a committee as to its action incorpor'ated in the return to a writ of eertior'ari.</p> <p>A board of supervisors may properly delegate the investigation of a claim, presented by the sheriff, to a committee appointed from among its number, which is required to report to the full board.</p> <p>Where such board has, in pursuance of section 10 of the County Law (Chap. 686, Laws of 1892), adopted a rule by which it intends to reserve the right to review and reconsider its action at any time before final adjournment, a reconsideration of its action upon the sheriff’s claim, before issue of a certificate allowing it, is valid; and when, upon such reconsideration, *the board indicates the specific items which it has disallowed or reduced, the error, if any, resulting from the fact that the previous audit indicated no such items, but only the whole amount at which the bill was audited, is cured.</p> <p>In determining the amount to be awarded on a claim, the committee may rely upon the knowledge of its individual members and upon information obtained from persons presumably having knowledge upon the subject, and are not obliged to swear witnesses.</p> <p>Where the claim presented contains an item for the board of. prisoners, stating the name of each prisoner, the number of days he was confined in jail, the price charged for his board per day and the aggregate charge for hoarding him during his confinement, the committee may properly audit the item by allowing it at a certain rate per week.</p> <p>Under section 230 of the County Law and section 3280 of the Code of Civil Procedure, a sheriff is not entitled to compensation for boarding prisoners, but only to reimbursement for the moneys actually expended by him in performing such duties, and the board of supervisors has no power to make.a contract to pay him a fixed weekly rate for the board of each prisoner, determined without regard to the expense incurred.</p> <p>An item for “ 10 months’ miscellaneous labor, painting jail, court house, tending boiler, superintending stone yard, etc., at §36 — §360,” is properly .rejected, first, because it. is not properly itemized; second, because it does not represent the expense incurred, but is a specific monthly charge, and, third, where it appears that a committee of the board of supervisors had authority to make all necessary repairs and improvements to the county buildings, and that there was a janitor whose duty it was to take care of the court house.</p> <p>Other items representing charges for work done by the prisoners should be disallowed.</p> <p>A sheriff is not entitled to charge the fee mentioned in subdivision 21 of section 3307 of the Code of Civil Procedure for attending a term of the Surrogate’s Court, there being no provision of law requiring such attendance.</p> <p>The indictment of a prisoner who has already been committed to jail does not operate to discharge him from confinement under the former commitment and entitle the sheriff, under the statute (2 R. S. [9th ed.] 1944, § 11) to a fee for such discharge, and also to a'fee for receiving him under the indictment.</p> <p>The sheriff is not entitled to a fee for returning jury lists or for furnishing calendars of prisoners for the district attorney.</p> <p>The statutory allowance to a sheriff of ten cents a mile for traveling expenses is for his persona] traveling expenses, and does not include those incurred by him in conveying convicts to prison, or persons accused of crime to jail.</p> <p>In auditing the sheriff’s claim the committee may properly group together items of the same character and disallow them as a whole.</p> <p>An audit of a bill will not be set aside on certiorari because of a mistake in disallowing an item which is small in amount as compared with the total amount of the claim, especially where items largely in excess of such item have been improperly allowed. '</p> <p>An affidavit of the members of a committee of the board of supervisors as to what took place before the committee in regard to the relator’s bills may be properly made a part of the return to a writ of certiorari issued to review the action. • of the board in respect to such bills.</p>

<p>Appeal by the plaintiff, The Johnstown Cemetery Association, from a judgment of the Supreme Court in favor of the defendant, •entered in the office of the clerk of the county of Pulton bn the 23d day of June, 1899, upon the dismissal of the complaint by •direction of the court after a trial before the court without a jury at the Pulton Trial Term, upon the ground that the facts proved were in sufficient to constitute a cause of action, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 23d day of June, 1899, upon which said judgment was entered.</p> <p>The complaint alleges that the plaintiff is a domestic corporation, duly organized in October, 1849, under' the laws of the State 'of New York, as a cemetery association ; that in May, 1898, pursuant to section 47 of article 3 of chapter 559 of the Laws of 1895, it -adopted' rules and regulations, amongst others one known as section 9, which provides that the superintendent of the grounds shall have the sole care and superintendence of the grading and of the care of the lots, including all work done thereon, and that no work whatever shall be performed in the cemetery, or upon any lot, except'by the: < superintendent of the grounds or with his consent and under Ms superintendence. It provides, further, that such section shall hot prevent any lot owner from doing any proper work upon liis own lot himself, under the. control and subject to the approval of the superintendent of the grounds. Any person or persons violating this, regulation shall forfeit a penalty in the sum of twenty-five dollars,, to be recovered as provided by law.</p> <p>. It then alleges that the defendant, without right or authority, did1 and performed work upon and assumed the care of one of the lots, in said cemetery grounds, known as the Gardiner lot, without the consent or approval of the superintendent of said grounds, and contrary to his expressed directions, and in direct violation of the said rule and regulation, whereby he became and is indebted to it in the-sum of twenty-five dollars, being the penalty incurred by him fertile violation of such rule and regulation and of the statute. It also-sets forth two other similar alleged violations, and demands judgment against the defendant for the sum of seventy-five dollars.</p> <p>Section 47 of chapter 559 of the Laws of 1895 provides that the-directors of cemetery associations may make reasonable rules and regulations for the use, care, management and protection of the-property of the corporation, and of all lots, plats and parts thereof, in its cemetery, and that directors “ may prescribe penalties to be paid by a person violating any such rule or regulation, not exceeding-twenty-five dollars for each violation, which shall be recoverable by the corporation in a civil action.”</p> <p>Upon the trial it appeared that the defendant, who is not a member of such association or a lot owner thereof, did the work as alleged, for three separate lot ownérs, upon their employment, without authority of the superintendent, and contrary to his expressed directions* At the close of .the testimony the defendant moved for a dismissal of the complaint upon the ground that the.facts proved were insuffieient to constitute a cause of action, which motion was granted.</p> <p>From the judgment entered upon the order dismissing the complaint the plaintiff appeals to this court.</p>

Appeal by the plain tiff ¿ George W. Brayton, individually and as assignee and substituted trustee in trust for the benefit of creditors of -John A.. Sheldon and another, insolvents, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Warren on the 19th day of July, 1898, upon the report of a referee.

Certiorari issued out of the Supreme Court and attested on the 19th day of June, 1899,' directed to J. Thorn Clark, supervisor, and others, together comprising the town board of the town of Austerlitz, Columbia county, Hew York, requiring them to certify and return to the office of the clerk of the county of Columbia all and singular their proceedings had in reference to the examination, allowance and approval of the account of C. Robert Grant, as commissioner of highways of…

■ ' Appeal by the defendants, William H. Mosher and others, constituting the board of «street commissioners of the city of Binghamton, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 2Yth day of June, 1899, granting a writ of peremptory mandamus, directing the defendants, William II.

Appeal by the defendant, William J. Morgan, Comptroller of the State of' New York, from an. order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 21st day of April, 1899, directing that a peremptory writ of mandamus issue commanding the Comptroller to audit the claim of the relator' and draw his warrant therefor,. together with the costs of -this proceeding.

Appeal by the defendants, John Gilmore and another, as executors, etc., of William Gilmore, deceased, and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the. office of the clerk of the county of Delaware on the 14th day of September, 1898, upon the verdict of a jury rendered by direction of the court, specific questions of fact having been submitted to them by the court, and also from an order entered in said clerk’s office on the 8th day…

Appeal by the defendant, Thomas J. Malone, from a judgment-of the Supreme Court in favor of the plaintiff, entered in the office-of the clerk of the county of Rensselaer on -the 25th day of May, 1899, upon -the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of May, 1899, denying the defendant’s motion for a new'trial made upon the minutes.

Appeal by the plaintiffs, Daniel B. Tripp and another, as administrators with the will annexed of John L. Haviland, deceased, from an interlocutory judgment of the Supreme Court in favor of' the defendant Hermon D. Hunt, as administrator, etc., of Mary S. Haviland, deceased, entered in the office of the clerk of the county Cortland on the 19th day of July, 1899, upon the decision of the court, rendered after a trial at the Cortland Special Term, sustaining the said…

Appeal by Isaac M. Has well and another, as executors, etc., of William Griffin, deceased, and another, from a decree of the Surrogate’s Court of Albany county, entered in said Surrogate’s Court on the 6th day of March, 1899, construing, under section 2624 of the Code of Civil Procedure, the 8th paragraph of the will of William Griffin, deceased.

<p>Appéal by the plaintiff, William R. Weatherwax, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rensselaer on the 16th 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 Rensselaer Trial Term, upon the ground that the complaint does not state facts sufficient to constitute a cause of action against the defendants.</p> <p>The complaint, alleges that on the 2d day of January, 1879, Ira A. Way, then a resident of the county of Rensselaer, died leaving a last will and testament, which was duly admitted to probate by the surrogate of the county of Rensselaer on the 3d day of’ May, 1879, in which the testator bequeathed to this plaintiff the sum of $4,000,. to be paid to him after the decease of Hester Way, the wife of said Ira A. Way, she to have'-the use and ihcónie of said $4,000 during her natural life ; she was"also residuary legatee and devisee of 'the estate of said Ira A! Way, which consisted.of real property' of the value of about $1,500 and personal property to', the amount of $16,500. . •'</p> <p>May 12, 1891, Hester .Way. died. She left a will of wnieh' one-John H. See was executor. He died January 22,1896, leaving a will of which his wife was executrix. The defendants were appointed administrators with the will annexed of Hester Way’s estate, February, 18971 The complaint alleges that the executrix of- John H: See, the executor of Hester Way, was required by the surrogate of Rensselaer county -to account to the defendants and to pay to them •$10,311/28 of the estate "of Hester Way, and that the property of which Hester Way died seized and possessed included the legacy .of $4,000' bequeathed by Ira A. Way to the plaintiff; that there :are,no outstanding debts.-against the estate of Ira A. Way; that the plaintiff has never beén paid his said legacy. ■ Judgment is demanded against the defendants for the amount thereof.</p>

<p>Tortious withholding of water by the State from, a mill — measure of damages—■ interest on the award.</p> <p>Where the State of New York wrongfully^ withholds the water furnishing the motive power of a*mill which is fully equipped with workmen and appliances and is in profitable operation, the mill owner is entitled to recover the loss of profits resulting therefrom; if the proof of^uch profits is not satisfactory, the mill owner may prove the value of the use of the water, that is, its value to him'as the mill was then equipped and operated,.and not the mere rental value of the real estate to a lessee who would hire his own workmen.</p> <p>Where the damage was caused in 1892 and payment of the mill owner’s claim has been delayed by the unsuccessful litigation of the State, interest on the award from the date of filing: the claim may properly be allowed.</p>

<p>Action by a husband to have the probate of his wife’s will set aside — his right as a, tenant by the curtesy and as a beneficially under a previous will, authorizes it — application of the Code of Civil Procedure, § 2653a — misjoinder of causes of action, — the remedy is by demurrer.</p> <p>Where a husband and wife, each of whom owns a portion of the farm upon: which they reside, in pursuance of an agreement, execute reciprocal wills devising in each case to the survivor a life interest in the portion of the farm owned "by the testator, and the wife subsequently executes an instrument by which she attempts to devise her real estate to a third person, w’hicli instrument is admitted to probate as her last will and testament, the husband is, by reason of his interest under the first will and by virtue of the interest as tenant by the curtesy which he would have in his wife’s real estate, in case she had died intestate, entitled to maintain an action under section 2653a of the Code of Civil Procedure to cause the validity or invalidity of the probate to be determined under subdivision 2 of that section, which authorizes the maintenance of the action by “any person interested as heir at law, next of kin or otherwise, in any estate, any portion of which is disposed of or affected, or any. portion of which is attempted to he disposed of or affected, by a will of codicil admitted to probate in this State, as provided by the Code of Civil Procedure, within two years prior to the passage of this act.”</p> <p>The two-year limitation prescribed in said subdivision was designed to give it a "retroactive effect for the two years prior to its passage, and was not designed to limit its application to wills admitted to probate during that time.</p> <p>The objection that, the plaintiff has" united in his complaint a.cause of action: under section 2653a of the Code of Civil Procedure, with one to procure an adjudication that the reciprocal will of the wife was in the nature of an. executed, irrevocable contract, should he taken by demurrer, and if not so taken, the plaintiff will be permitted to pursue his remedy under section 2653a.</p>

Appeal by Edward N. McKinney, as receiver of The Marshall & Wendell Piano Porte Manufacturing' Company (Limited), from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Albany on the 29th day of March, 1899, making him as such receiver a party defendant in the above-entitled action.

Appeal by .the defendant, Sarah A. Rathbun, from an order of the Supreme Court, entered in the office of the clerk of the county of Chemung on the oth day of December, 1898, requiring her to serve a bill of particulars of payments alleged In her answer to have been made by her.

<p>Ambiguous contract —^ when parol evidence is competent to show the intent.</p> <p>A contract provided as follows: “ I, P. H. Bird, * * * hereby agree to boat stone for Beckwith & Quackenbush * * * during the seasons of navigation of 1897 and 1898. Said Beckwith & Quackenbush to load and unload all stone freighted, and to pay freight on stone when delivered.</p> <p>“I agree to do all necessary shifting of boats, you to put in fa.se bottoms in boats and remove same when this agreement terminates.</p> <p>“(Signed) , “P. H. BIRD.</p> <p>“W'e accept the foregoing proposal of P. H. Bird.</p> <p>‘ ‘ (Signed) BECKWITH & QUACKENBUSH."</p> <p>In an action brought by Bird to recover for a breach of this instrument it was Held, that the contract was ambiguous and that parol testimony was admissible to show that the parties to it contemplated that it should remain in force only for that portion of the season of navigation of 1868 during which Beck-with & Quackenbush had stone to boat.</p> <p>Such testimony does not operate to contradict, vary or modify the written contract.</p>

Appeal by the plaintiff, Charles Lewis, from a judgment of the County Court of Saratoga cpunty in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 25th day of May, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury, and also from an order entered in said clerk’s office on the 25th day of May, 1899, dismissing the complaint upon the merits.

<p>Appeal by the defendants, James Rutherford and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of. the clerk of the county of Delaware on the 2d day of June, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of June, 1896, denying the defendants’ motion for a new trial made upon the minutes.</p> <p>On March 10, 1893, James Rutherford commenced an action m the Supreme Court against the plaintiff, Leopold Krause, and three others to recover damages for an alleged injury to said Rutherford’s property, alleged to have been caused by the wrongful acts of the defendants, and on March 18, 1893, obtained an order of arrest in pursuance of section 519' of the Code of Civil Procedure. The defendants Smith and Wood were the sureties with the plaintiff upon the undertaking. Krause was arrested tiy the sheriff of Delaware county and placed in jail June 21, 1893, and remained in- jail until November 13, 1893, when the order of arrest was vacated and set aside.</p> <p>This action was commenceu on the 13th day of December, 1893, upon said undertaking to recover damages sustained by reason of said arrest, and resulted in a verdict for plaintiff for $250.</p> <p>No appeal was taken by Rutherford from the order of Novemoer 13, 1893, vacating the order of arrest. After this action was commenced a motion was made to set aside the order vacating the said order of arrest, which was denied. Subsequently to .the commencement- of this action the action begun by Rutherford against the present plaintiff and others was tried, and the defendants obtained a judgment therein.</p> <p>There were averments in the complaint tending to set forth a cause of action for false imprisonment, but the trial court,* before the submission of the case to the jury, determined that the plaintiff could not recover for that cause of action.</p>

Appeal by the defendant, Sarah L. Bartlett,.from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schuyler on the 13th day of March, 1899, upon the decision of the court rendered after a trial at -the Schuyler Special Term.

Appeal by the plaintiff, Elizabeth Crane, from a judgment and order of the County Court of Montgomery county in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 30th day of June, 1899, reversing a final order or judgment of a justice of the peace awarding to the petitioner Elizabeth Crane the possession of certain real estate in a proceeding for forcible entry and detainer.

<p>Appeal by the defendant, Thomas B. Merchant, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the ,3d day of March, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of March, 1899, denying the defendant’s motion for a new trial made upon a case and exceptions.</p>

Appeal by the defendant, James A. Roberts, as Comptroller of the State of New York, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany oh the 13th- day of June, 1899, confirming the report of a referee' and awarding a peremptory mandamus in default of payment of certain sums, the balance unpaid upon three certain drafts drawn by the Superintendent of Public Works upon the Comptroller in payment…

Appeal by the plaintiff, Emeline Wells, from that part of a final judgment of the Supreme Court in favor of the plaintiff, entered • in the office of the clerk of the county of Saratoga on the 3d day • of June, 1899, upon the report of a referee which directs that the costs therein awarded to the plaintiff be paid out of the whole of the proceeds of the sale of the premises sold in the action, with notice of an intention to bring up for review upon such appeal that part of…

<p>Appeal by the • plaintiffs, Margaret Belinda Wilber and others, individually and as executors, etc., of David Wilber, deceased, from a judgment of the Supreme Court in favor of the defendants, Edith M. Wilber and Myra Wilber, entered in the- office of the clerk of thé county of Otsego on the 18th day of February, 1899, upon the decision of the court rendered after a trial at the Otsego Special Term excepting the 4th provision thereof.</p> <p>The action was brought for the construction of certain provisions of the will of David Wilber, who died on or about the 1st of April, 1890, leaving a will bearing date March 25, 1890. His only heirs and next of kin were his two sons, the plaintiffs, George I. Wilber and David Forrest Wilber, and they were the residuary legatees and devisees in the will. The defendant Edith M. Wilber is the daughter of the plaintiff David F. Wilber, and was about eight years old at the time of the death of the testator, and is the only grandchild the testator ever had. The son George I. was married in 1872, but has had no children. The other son was married in 1881, and said Edith is his only child.</p> <p>The clauses of the will that are in controversy upon the appeal are the 16th and 17th, which are as follows :</p> <p>Sixteenth. I give, devise and bequeath to my wife, Margaret Belinda Wilber, also in lieu of dower, and my two sons, George I. Wilber and David Forrest Wilber, the use for fifteen years after my death of all my real estate and farms, which is situate in the towns of Milford, Morris, Middlefield and Maryland, in the county of Otsego and State of Rew York, and also giving and bequeathing the use of all the teams, harnesses, horses, cows, young cattle, sheep and all farming and dairying tools and utensils on or belonging to any and all of the farms in the towns above named: But as a condition all of said farms and all of said personal property' are to be maintained and kept in as good order and condition as they are in at the time of my death, meaning by this that the personal property left on said farms at the end of the fifteen years shall be as valuable as it is at the present time, and the real estate shall be in as good asíate' of cultivation and capable of as much production, and the fences and buildings thereon in as good a state of repair as they now are, so that my grandchild or children mentioned in the next or seventeenth devise or bequest or subdivision, shall have and receive as much personal property and of as much value as the personal property herein mentioned is worth at the time of my death. In case of the death of any of the persons above named, then the two surviving shall take the use of the property herein intended, share and share alike, to the end of the fifteen years’ term above mentioned, and in case of the death of two of the persons above named then the survivor shall take the entire use of the farms and property to the end of the term aforesaid, intending to give one-third of the produce and profits of said farms and real estate and stock, etc., to each of the persons above named, to the end of the fifteen years, or so much of said term as they all live.</p> <p>“ Seventeenth. I give, devise and bequeath all my real estate and farms in the towns of Milford, Morris, Middlefield and Maryland, in the county of Otsego, R. Y., and all the personal property upon or belonging to said farms, which is more particularly mentioned in the last preceding sixteenth item, subdivision or devise or bequest of this my last will to my grandchildren, to be equally divided between them, share and share alike, subject only to the fifteen years’ use of the same, heretofore provided for, intending hereby to grant and devise to my grandchild or children all the land and personal property mentioned, referred to or intended in the preceding sixteenth subdivision of this my last will.”</p> <p>The plaintiffs have had the use of the property, mentioned in said clauses according to the terms and by virtue of the will since the death of the testator.</p>

Appeal by the claimant, Frederick Zorn, from a judgment and order of the Court of Claims, bearing date the lHh day of March, 1898, and entered in the office of thé clerk of said court, dismissing his claim. '

Appeal by the plaintiff, Helen F. Woodbridge, as trustee under the last will and testament of Samuel Freeman, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the coutity of Saratoga on the 26th day ■of January, 1899, upon the decision of the court, rendered after a trial at the Saratoga Trial Term, before the court without a jury, and also from an order made at the Clinton Special Term and entered in the office…

Appeal by the plaintiff, James Rutherford, from a judgment of the Supreme Court in favor of the defendant, Leopold Krause, entered in the office of the clerk of the county of Delaware on the 11th day of September, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of October, 1898, denying his motion for a new trial made upon a case and exceptions.

Appeal by the defendant, Stephen M. Parsons, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 9th day of August,, 1899, upon the report of a referee. The action was brought to foreclose two mortgages. The defense alleged overpayment under a mistake of fact. ■

Appeal by the defendant, the International Insurance Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 8th day of May, 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 10th day of May, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal, by the defendants, Edward H. Kruger and Fredericka Becker, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 15th day of -October, 1898, upon the verdict of a jury, rendered after a trial at the Erie Trial Term, and also from an order entered in said clerk’s office on the 14th day of November, 1898, denying the defendants’ motion for a iiew trial made upon the minutes.

■' Appeal by the defendant, Edward H. Kruger, sole member of the firm of E. H. Kruger & Company, from a' judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 7th day of November, 1898, upon the decision of the court, rendered after a trial before the court -without a jury at the Erie Trial Term.

Appeal by Nathan' 0; Reed, as trustee under the will of Mary E. Harmon, deceased, from a decree of the Surrogate’s .Court of Cayuga county, bearing date the 21st day of October, 1898, and entered m said Surrogate’s Court, settling his accounts. Mary E. Harmon, the testatrix, died on the 20th day of November, 1886.

Appeal by the contestants, Joseph H. Drake and others, from a decree of the Surrogate.’s Oourt of Jefferson county, entered in said Surrogate’s Oourt on the 25th day of September, 1897, adjudging that an instrument- purporting to be the last will and testament of David Drake, deceased, was properly executed and that it is genuine and valid, and that the deceased, at the time of the execution of the instrument, was competent to execute the same and was not under restraint or…

Appeal by the' plaintiff, William Bentley, from so much of a. judgment of the Supreme Court in favor of the defendant Elisha, W. Gardner, entered in the office of the clerk of the county of' Ontario on the 17th day of February, 1899, upon the decision of the court, rendered after a trial at the Ontario Special Term, as- dismisses-the complaint upon the merits as to said defendant, and declares-that the mortgage of the defendant Gardner is superior to the claim and equity of…

Appeal by the defendant, The New York Central and Hudson. River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in' the office of- the clerk' of the= county of Oneida on the 3d day of April, 1899, upon the verdict of a jury for $8,537, and also from an order entered in said clerk’s-office on the 30th day of March, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the -plaintiff, Alice A. Elyea, in behalf of herself and ■other persons similarly interested, from a judgment-of the Supreme ■Court in favor of the defendants, entered in the office of the clerk of the county of Genesee on the 10th day of October, 1898, upon the report of a referee dismissing the complaint, without costs to either party.

Appeal by the' defendant, the First National Bank of Syracuse,, from a judgment of the Supreme Court in favor of .the plaintiff, entered in the office of the clerk of the county of Onondaga on the-31st day of October, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of November, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, William Martin Jones, from a judgment of the Supreme Court in favor of the plaintiff, entered in the-office of the clerk of the county of Monroe on the 23d day of February, 1899, upon the verdict of a jury, and also from an order-entered in said clerk’s office on the 20th day of February, 1899,. denying the defendant’s motion for a new trial made upon the-minutes.

Appeal by the defendants, Richard M. Stacey and others, from an order of the Supreme Court, made at the Jefferson Special Term and entered in the office of the clerk of the county of Onondaga on the 17th day of May, 1898, confirming a report of commissioners of appraisal herein.

Appeal by the plaintiff, The City of Syracuse, from .50 much of -an order of the Supreme Court, made at the Jefferson Special Term >and entered in the office of the clerk of the .county of Onondaga on the 17th day of May, 1898, confirming the report of the commis-; ■sioners of appraisal appointed in condemnation proceedings, as awards. ■costs and additional allowances, to the defendants. .....

Appeal by the plaintiff, Adelbert E. Harrow, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Cattaraugus on the 18th day of December, 1897, upon the decision of the court, rendered after a trial at the Cattaraugus Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, Stephen Coiirsey, from a judgment of the Supreme Court in favor of the plaintiff, -entered in the office of the clerk of the' county 'of Ontario on the 2d day of March, 1899, upon the report of a referee.

Appeal by the defendant, William D. Hart, as administrator of the estate of James M. Hart, deceased, from an order of the Supreme-Court, made at the Oneida Special Term and entered in the office-of the clerk of the county of Oswego on the 6th day of June,. 1899, awarding costs and disbursements of the action to the plaintiff, and directing that the same be paid from the funds of the* decedent’s estate in the hands of the defendant.

Appeal oy the defendant, vonn D. BucKmaster, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 21st day of January, 1899, upon the verdict of a jury, and also from' an order entered in said clerk’s office on the 3d day of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Lncretia Ritchmyer and others, from ••a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Steuben on the 29th day of March, 1899, upon the decision of the court rendered after a trial at the Steuben Special Term, with notice of an intention to bring Lip for review'upon such appeal an order, bearing date the 1st day of June, 1897, and entered in said clerk’s office, denying their motion to…

Appeal by the plaintiffs, YVilliam Young and another, as- administrators of the estate of George Young, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the' county of Onondaga on the 7th day of March,. 1898, upon the dismissal of the complaint, by direction of the court, after a trial before the court and a jury at the Onondaga Trial Term.

Appeal by the plaintiff, Margaret Abelein, as administratrix, etc., of Charles Hausman, deceased, from a judgment of the Supreme Court in favor of the defendant Louis D. Porter, entered in the office of the clerk of the county of Onondaga on the 29th day of March, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of April, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, William W. Trevor ana,others, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Niagara on the 6th day of October, 1898, upon the decision of the court rendered after a trial at the Niagara Special Term.

Appeal by the claimant, Benjamin S. Phillips, from a decree of the Surrogate’s Court of the county of Jefferson, entered in said Surrogate’s Court on the 13th day of July, 1899, upon the report of a referee, disallowing the claim presented by the claimant against the estate of said deceased.

Appeal by the defendant, the Franklin Mills Company, from a judgment of the County Court of Niagara county in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 31st day of March, 1899, affirming a judgment of a justice $>f the peace in favor of the plaintiff.

Appeal by the defendant, the Western New York and Pennsylvania Railway Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Livingston on the 5th day of October, 1898, upon the decision of the court, rendered after a trial at the Livingston Special Term, directing the specific enforcement of a contract by the defendant, together' with six cents damages against said defendant.

Appeal by the plaintiff, James F. Sherman, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 10th day of February, 1899, upon the decision of the court, rendered after a trial a.t the Monroe Special Term, dismissing the complaint.

Appeal by the plaintiff, Daniel E. Shongo, from a judgment of the Supreme Court in favor of. the defendants, entered in the office of the clerk of the county of Cattaraugus on the 15th day of September, 1897, upon the report of a referee dismissing the complaint upon the merits and vacating a temporary injunction granted in the action. The plaintiff is an Indian and one of the Seneca Nation, whose reservation, the Allegany, is in the county of Cattaraugus.

Appeal by the defendant, The Elmira Industrial Association of Elmira, N. Y., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 17th day of February, 1899, upon the decision of the court rendered after a trial at the Steuben Trial Term overruling its demurrer to the complaint.

Certiorari issued out of the Supreme Court and attested on the 9th' day of June,. 1898, directed to the city of Utica and others, requiring them to certify aiid return to the office of the clerk of the county of Oneida all and singular their proceedings had in,levying a local assessment upon property abutting upon Whitesboro street in the city of Utica, H. Y., to pay for the alleged repaving of a portion of that street.

<p>Appeal by the defendant, Frank Sullivan Smith, from a judgment of the Supreme Gourt in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 11th day of May, 1899, upon the decision of the court rendered after a trial before the court without a jury at the Monroe Trial Term.</p> <p>■ The action was commenced-6n the 31st day. of December, 1898,, to recover for goods sold to the defendant, and for which it is alleged he became personally liable.</p> <p>■ The facts are not in dispute. The plaintiff was a domestic corporation, engaged in the manufacture of bicycle supplies at Rochester, N.' Y. The Worcester Cycle Manufacturing Company, prior to the 30th day of June, 1897, was a corporation engaged in manufacturing bicycles at Worcester, in the State of Massachusetts.- On said 30th day of June, 1897, the defendant was appointed receiver of the Worcester Cycle Company by the United States Circuit Court for the district of Massachusetts, and, as such receiver, took possession of its factory and plant, and entered upon the discharge of his duties as such receiver.</p> <p>Among other things, the order appointing the receiver contained the following: “ The said receiver is hereby fully authorized and directed to take immediate possession of all and singular the property above described, wherever situated or found, and to ■collect all accounts and sums due or to become due to the Worcester Cycle Manufacturing Company, and for that purpose to carry on and continue the business of said defendant company as the same is now carried on, and so far as may be necessary to preserve its rights under its contracts, acting in all things under the order and direction of this court. * * * Said receiver is hereby fully authorized to continue to operate and carry on the business of the defendant Cycle Company, in such manner, as the same is now conducted, or in such manner as will in his judgment produce the most satisfactory results, so- far as may be necessary for the preservation from loss of the outstanding •contracts-of said defendant Cycle Company, and to collect and receive all the income therefrom, and all the debts due said company of all kinds, and for such purpose is hereby vested with full power, at his discretion; to employ and discharge and fix the Compensation of all such ¡officers, attorneys, managers, superintendents, agents and employees as may be required- in--the proper discharge of -his trust, with the approval of one of the judges of- this court. - * * * Said receiver shall from time to time; out of the funds coming into his hands from the operation of the property and otherwise, pay. the expenses of operating' the same and executing his trust, and all taxes and assessments upon the said property or any part thereof.”</p> <p>The defendant, as receiver, on the 18th day of April, 1898, ordered from the plaintiff 1,500 cycle saddles, to be shipped to the-Worcester Cycle Manufacturing Company, Worcester, Mass.,. 750-to be shipped at once and 750 two weeks later. . Such order was signed “Worcester Cycle Mfg. Co., Frank Sullivan Smith, Receiver! Geo. S. MacDonald, Purchasing Agent, General Manager.” It was-conceded that MacDonald had authority from the receiver to make-file purchase in question.</p> <p>Seven hundred and fifty of the saddles ordered were shipped on-the 2"lst and 22d of April, 1898, and were duly paid for; the other-750 saddles were shipped on the 29th and 30th of April, 1898,.and have not been paid for. The agreed price of such 750 saddles was-$225, no part of which has been paid. All the saddles were shipped, as. directed in said order. All communications which passed between, the parties relating to the purchase of saddles were.addressed to or-signed by Frank Sullivan Smith, receiver.</p> <p>It is apparent that when the order for saddles was placed with the-plaintiff it knew the purpose for which they were wanted ; that the defendant was receiver of the Worcester Cycle Manufacturing-Company, and that he made the. purchase as such. The plaintiff delivered the saddles to him as such receiver at the place named in. the order.</p>

Appeal by the defendants, Aaron F. Chapman 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 Erie on the 17th day of May, 1898, upon the verdict of a jury for $900.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 10th day of April, 1899, upon the verdict of a jury for $8,000 ; also from an order entered in said clerk’s office on the 10th 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…

Appeal by the defendant, the Merchant’s Gargling Oil Company frorn a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 9th day of January, 1899, upon the report of a referee.

■ Appeal by the defendants, Alvin J. Belden 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 Onondaga on the 7th •day of April, 1899, upon the verdict of a jury for §4,000, and also from an order entered in said clerk’s office on the 7th day of April, 1899, denying the defendants’ motion for a new trial made upon the minutes.

<p>Assumption of a mortgage by a grantee of the mortgagor — secret stipulation in an. action for its foreclosure not to enter judgment against the grantee — it does not affect his liability to the mortgagor.</p> <p>An agreement made by a principal debtor with the creditor, the effect of which is to discharge him from liability to the creditor, does not affect the liability of the principal debtor to the surety or the manner of enforcing the same, provided the surety did not know of the agreement and could not have discovered, its existence by due diligence.</p> <p>An owner of land, after executing a mortgage thereon, conveyed the mortgaged premises to one Miller; Miller conveyed to one Oldfield, who in turn, conveyed to one Bennett, each of the grantees agreeing to pay the mortgage. Subsequently an action was brought to foreclose the mortgage, the complaint, in which demanded judgment for any deficiency against the mortgagor, Miller, Oldfield and Bennett. Miller and Oldfield interposed answers denying-their liability for any deficiency, but withdrew them upon the plaintiff in the foreclosure action stipulating that he would not enter a deficiency judgment, against them.' Thereafter, a deficiency judgment, which ,had been entered against the mortgagor and Bennett, was paid by the mortgagor, who had no. knowledge of the stipulation, although it had been filed as a part of the judgment roll. . -'</p> <p>Held, that the stipulation- entered into between the plaintiff in the foreclosure-action and Miller and Oldfield did not affect the mortgagor’s rights, and that she was entitled to recover from Miller and Oldfield the amount of the deficiency judgment paid by her;</p> <p>That due diligence did not require the mortgagor to examine the judgment roll before paying the deficiency judgment, in order to ascertain whether such roll contained anything that would justify her in refusing to pay.</p> <p>Smith, J., dissented.</p>

Appeal by the defendant, The Board of Supervisors of Monroe County, from an order of the County Court of Monroe county, entered in the office of the clerk of the county of Monroe on the 1st day of May, 1899, directing the board of supervisors of Monroe county to refund to the petitioner certain taxes paid by him. ' On the 17th day of February, 1898, the petitioner presented his petition, which was duly verified on the 15th day of February, 1898, to the board of supervisors…

Appeal by the defendant, The International Bridge Company and another, from an interlocutory judgment of the Supreme Court in iavor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 27th day of March, 1899, upon the decision of the ■court rendered after a trial at the Erie Special Term overruling their ■demurrer to the complaint.

Appeal by the defendant, The City of Syracuse, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga ón the 27th day of January, 1899, upon the verdict of a jury for $300, and also from an order, bearing date the 26th day of January, 1899, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

<p>Transfer tax decision — the Comptroller may either apply for a reappraisal or may-appeal— notes directed to be canceled and surrendered should be appraised at their-market value — testimony as to value.</p> <p>Section 232 of the Tax Law (Chap. 908 of the Laws of 1896), authorizing the-Comptroller of the State of New York, within two years after the entry of an order of the surrogate, determining the value of an estate and assessing a transfer tax thereon, to make application to a justice of the Supreme Court for a reappraisal, is not exclusive of other remedy; <and if the Comptroller simply desires a review of the surrogate’s determination, he may appeal from the order, under section 2570 of the Code of Civil Procedure, authorizing an appeal to the Appellate Division from “ an order affecting a substantial right made by a surrogate or by a Surrogate’s Court in a special proceeding.”</p> <p>Semble, that if the remedy provided by section 232 of chapter 908 of the Laws of 1896 were intended to be exclusive, the section would contravene that provision of the Constitution of 1894 which provides that the jurisdiction of the Appellate Division shall thenceforth be as then exercised by the General Term, in addition to such further jurisdiction as shall be given to that court by statute.</p> <p>Where a testator directs his executor to cancel and surrender certain promissory notes to the makers thereof without payment, such notes should, for.the purpose of determining the transfer tax thereon, be appraised at their fair market value and not at their face value.</p> <p>Testimony of the executor as to declarations of the testator is not competent evidence as to the value of the notes; but his testimony to the effect that -the notes were valueless may properly be considered where no objection is raised upon the -ground that the witness has stated a conclusion of fact.</p>

<p>Master and servant — inference that a foreman had not notice of a rule —^ to whom notice of a rule made by tne master should be given.</p> <p>In an action brought to recover damages for personal injuries, occasioned by an engine shifting its place, the court considered that it might be'inferred that a rule of the master requiring that the boom, attached to a derrick used in connection with the engine, be lowered when the engine required adjustment, in order to lessen the strain upon it, was not communicated to the foreman of the gang in which the plaintiff was acting in moving the engine back to the place from which it had shifted, where all the defendants were examined as witnesses in the case and gave^o evidence that the rule was communicated to the foreman. ,</p> <p>In such a case, the fact that the engineer operating.the engine was informed of the rule does not relieve the master from liability, where, in order to lower the boom, the men, under the direction of the foreman, were required to provide supports for the boom when lowered, and it appears that the suggestion that the boom should be lowered was actually made by the engineer to the foreman, ■who failed to direct it to be done.-</p> <p>Adams, J., dissented.</p>

Appeal by the defendant, The City of Olean, from a judgment of the Supreme Court in favor of the plain tiffs, entered in the office of the clerk of the county of Cattaraugus on the 6th day of March, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of September, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Motion by the defendant, Irving E. Waters, for a new trial upon a case containing exceptions, ordered to be heard by the Appellate Division in the first instance, upon the verdict of a jury, rendered-by direction of the court after a trial at the Monroe Trial Term.

Appeal by the defendants, George E. Warner, as mayor of the-city of Rochester, and Richard 0. Cartwright, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 19th day of July, 1899, denying the said defendants’ motion to vacate a temporary injunction theretofore granted in the action.

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the defendants, Bernard J. York and others, as police •commissioners of the city 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 6th day of July, 1899, granting the relator’s motion for a peremptory writ of mandamus.

<p>Awa/i'd of damages for a change of grade — a new board of assessors may reconsider it — sufficiency of a notice of hearing—opening case to admit further evidence.</p> <p>Where a hoard of assessors of the former city of New York, on December 31, 1897, the day preceding that on which the Greater New York charter took effect, entered in their minutes an award for damages caused by a change of grade, and after the installation of the new board of assessors, two of whom were members of the old board, the new board, without objection upon the part of the person to whom the award had been made, proceeded to reconsider her claim for damages, and rejected it after considering the evidence taken and examining the premises, the claimant cannot successfully contend that the award made by the former board was in the nature of a judgment which could not be disturbed by the new board.</p> <p>A defect ‘in the notice requiring the claimant to appear before the new board of assessors does not .render its determination nugatory, where it appears that the notice was sufficient to call the claimant’s attention to the matters which were being determined, and that she understood the notice and appeared before the board in pursuance thereof. ' .</p> <p>The board of assessors, after making its determination, is not obliged to reopen the case in order to permit the claimant to produce further evidence.</p>

Appeal by the defendant, Jacob Hirsh, 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 23d day of December, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d' day of December, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The Broadway Theatre Company, from :a judgment of the Supreme Court in favor of the defendant, ■entered in the office of the clerk of the county of Hew York on the 17th day of June, 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 plaintiffs, Virginius Ballard and another, as ^assignees and trustees of Brodie L. Duke, for the benefit of creditors, from a judgment of the Supreme Court in favor of the defendant, •entered in the office of the clerk of the county of Flew York on the 31st day of March, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Flew York Trial Term.

Appeal by the defendant, Bernhard J. Ludwig, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 29th day of March, 1899, upon the verdict of a jury, and also from nn order, entered in said clerk’s office on the 27th • day of April, 1899, denying the defendant’s' motion for a new trial made upon the minutes.

Appeal by the defendant, the Dry' Dock, East Broadway and Battery 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 Flew York on the 20th day of February, 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 February, 1899, denying the defendant's motion for a new trial made upon the minutes.

• Appeal by James P. Brpwn arid others from certain portions of' an order 'of -the -’Supreme Court,made at fhe Mew York Special-Term and entered in the office of 'the clerk of the county of Mew York.on the 5 th day'of October, 1899; distributing á certain fund; deposited with the chamberlain- of the city of Mew York to the; credit of this action. This action is for the partition of - real property and was: begun in¡ 1886. The appellant Brown was a party defendant..

<p>Liability of a, stockholder in a bank — date after which it can be enforced, only by the receiver—the settlement of an executors accounts does not release him—a stockholder not charged interest on the pa/r value.</p> <p>Chapter 441 of the Laws of 1897, amending section 52 of the Banking Law (Laws of 1892, chap. 689), by providing that in case a banking corporation shall have been dissolved and a permanent receiver shall have been, appointed, “all actions or proceedings to enforce the liability of stockholders under this section shall be taken and prosecuted only in the name and in. behalf of such receiver,” unless he shall refuse to do so, does not apply to an action commenced before its passage, even as to defendants who had not been served with the summons prior to its passage.</p> <p>An executor of a deceased stockholder is not relieved from liability, in his representative capacity, under said'section 52, by a judicial settlement of his accounts as executor, where it appears that the shares owned by his decedent continued ' to remain upon the books of the bank in the name of such decedent.</p> <p>The liability of a stockholder is limited to the par value of the stock, and cannot-be extended by allowing interest thereon from the time of the commencement of the action. <</p>

Certiorari issued out of the Supreme Court and attested on the '17th day of May, 1898,'directed to Bernard J. York and others, composing the board of police commissioners of the police department of the city of Hew York, commanding them to certify and return to the office of the clerk of the county of Hew York all and ¡singular their proceedings had in dismissing the relator, William E. Streubel, from the police force of the city of Hew York.

Appeal by the defendant, Fowler & Wells 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 18th day of October, 1899, opening the plaintiff’s default in failing to serve a reply, and allowing him a discovery and inspection ■of the books of the defendant.

Appeal by tne plaintiff,. James C. Fargo, as president of the? American Express Company, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office-of the clerk of the county of New Fork on the 3d day of August,. 1899, upon the decision of the court, rendered after a trial at the? New York Special Term, ¡sustaining the defendants’ demurrer to the complaint.

Appeal by the defendant, The Central Rational Bank, -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 19th day of January, 1899 confirming the report of a referee fin a surplus-money proceeding.

Appeal by the defendants, Charles H. Knox and others, composing the municipal civil service commission of the city 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 10th day of October, 1899, granting the relator’s motion for a peremptory writ of mandamus.

<p>Submission of a controversy upon an agreed statement of facts," pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the defendants, Annie Rohrig 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 9th day of October, 1899, denying their motion to strike the cause from the calendar.

Appeal by the plaintiff, Max Kalish, 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 4th day of April, 1899, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint, and also from an order entered in said clerk’s office on the 28tli day of March, 1899, denying the plaintiff’s motion to set aside as erroneous the decision of the court at…

Appeal by the plaintiffs, David Bachrach 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 29th day of June, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

Appeal oy tlie defendants, Charles H. Knox and otners, composing the- municipal civil service commission of the city of New York, from an order of the Supreme Court, made at the New York Special Term, bearing date the 10th day of October, 1899, and entered in the office of the clerk of the county of New York, granting the relator’s motion for a ueremptory writ of mandamus.

'Appeal by the relator, John S. Sutphen, 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 oh the 23d day of June, 1899; upon the decision'of the court rendered' after a trial at the New York Special Term, and also from an order entered in said clórk’é. office on the 26th day of May, 1899, quashing; a writ'of certiorari, '

Appeal by Lawrence 0. Hafner and another, as executors, etc., ot Francis McCabe, deceased, and another, from portions of a decree of the Surrogate’s Court of New York county, entered in said Surrogate’s Court on the 4th day of August, 1899, settling the accounts of said executors, and construing the 2d article of the will of Francis McCabe, deceased.

Appeal by the defendant, Louis B. Mendham, from an order of the Appellate Term of the Supreme Court, bearing date the 30tli •day of June, 1899, and entered in the office of the clerk of the •county of New York, affirming a judgment of the General Term ■of the City Court of New York, which affirmed a judgment of the Trial Term of the City Court of New York. The action was brought to recover upon an undertaking given in an action in replevin by the plaintiff therein.

Appeal by the defendant, Sarah A. Stillwell, 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 July,. 1899, upon the decision of the court, rendered after a trial at the Hew York, Special Term, overruling the amended answer of the defendant as frivolous.

Appeal by the defendants,-Alfred Walker 'Jones and another,, from an order of- the Supreme Court, made at the New York Trial Term and entered in the Cilice -of the clerk of the county of New' York on the 6tli day of October,, 1899, placing the causé: upon the . preferred calendar, and also from an order entered in- said cleric’s office on the 12th- day of October,, 1899, denying their motion for á reargiiment. :

Appeal by the defendant, Jacob R. Telfair, as receiver of the Pacific Mutual 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 New Tovlc on the 9th day of May, 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 the defendant, Samuel M. Rice, 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 26th day of May, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, overruling his demurrer to the complaint.

Appeal by the defendant, The Mayor, Aldermen and Commonalty 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 13th day of June, 1899, denying its motion for leave to serve an amended .answer.

Appeal by the plaintiff, James A. Sproull, 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 fhe 23d day of June, 1899, confirming the report of a referee.

Appeal by Lucy Ann Hale, as executrix, and George W. Debevoise, as exebutor, etc., of Joseph P. Hale, deceased, from an order of the Surrogate’s Court of Hew York county, entered in said Surrogate’s Court on the 28th day of September, 1899, directing a reference. ■

Motion by the plaintiff, John McQueen, as receiver of the Powerv.ille Felt Roofing Company (Limited), for a new trial upon a case 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 before the court and a jury at the New York Trial Term.

Appeal by the plaintiff, Mary C. Morrell, from a judgment of the Supreme Court in favor of the defendant Ernest H. Ball, as assignee for the benefit of creditors of Edward B. Cuthbert, entered in the office of the clerk of the county of New York on the 23d day of August, 1899,.upon the decision of the court-, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the complaint and dismissing the complaint.,

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 23d day of March, 1899, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 21st day' of March, 1899, denying the defendant’s motion for a new trial made upon the minutes and upon the ground of surprise.

Appeal by the defendant, The Cleveland School Furniture Company, from that part of 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 28th day of June, 1899, upon the decision of the court rendered after a trial at the New York Special Term, which overruled the defendant’s demurrer .to the second cause of action set up in the complaint.

Appeal by the defendants, The New fork Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of July, 1898, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 18th day of July, 1898, granting the plaintiff an extra allowance.

Appeal by the plaintiff, William E. Dean, 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 16tli day of July, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of August, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Submission of a controversy upon an agreed statement, of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>