Volume 46 — New York Appellate Division Reports

Appeal by the defendant, Julia Mays, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of September, 1899, denying her motion to vacate a warrant of attachment.

<p> What participation in profits makes the participants partners as to third persons. </p> <p>A participation in the .profits oí a business renders the participant a partner as to third persons, except where he has no interest in the business or capital thereof, but receives a share in the profits as remuneration for services rendered by him.</p> <p>An agreement, which recited that one Allen, a party of the second part thereto, had leased certain premises to one Chatterton, the party of the first part thereto, who desired to erect a grand stand thereon; that the remaining parties of the second part, Alexander, Coyne and Tackaberry, had rendered services in securing said lease for Chatterton, and would render other services, provided that Chatterton, in consideration of the lease, should erect a grand stand; that Alexander, Coyne and Tackaberry should sell seats thereon, Tackaberry also acting as treasurer; that the cost of its construction should be assumed by Chatterton, and, together with other expenses, should be first repaid out of the gross receipts of the stand, and that the balance thereof should be divided as follows: “42%% thereof shall belong and be paid to the party of the first part, as.compensation for his services in building and supervising the said stand; 20$ thereof shall belong and be paid to the said Allen, as compensation for the lease of said premises, and 12%% ' thereof shall belong and be paid to each of the remaining parties hereto, the said Alexander, Coyne and Tackaberry, as compensation for' their services rendered,. and to be rendered, in connection with the premises.” It was further provided that upon a settlement the lumber and other materials used in the construction of the stand should at all times belong to Chatterton, and that he might remove them.</p> <p>Held, that the agreement constituted the parties thereto partners as to third parties, who, without knowledge of the agreement, but after its execution, supplied lumber used in the construction of the stand upon Chatterton’s order (accepted by Tackaberry) made prior to such execution of the agreement, relying upon Chatterton’s representation that the other parties to the agreement were partners with him in the venture and responsible for payment; and that such third parties were entitled to recover the price of such lumber from the parties to the agreement as copartners.</p>

Appeal by the plaintiff, Rose Kreiser, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the. clerk of the county of New York on the 2d day of October, 1899, granting the defendant’s motion for an interpleader.'

Appeal hy the defendant, William S. Livingston, Jr., from an order of the Supreme Court, .made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of October, 1899, denying his motion to modify the judgment in the action.

Appeal by the defendants,. William O. Schwarzwaelder 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 New York on the 1st day of July, 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 petitioner, Horace B. Forman, from a decree of the Surrogate's Court of Hew York county, bearing date the 30th day of December, 1898, and entered in said Surrogate’s Court, dismissing his application to establish the alleged lost will of Augustus M. Purdy, deceased.

Appeal by .the petitioner, George G. Renville, 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 17th day of October, 1899, as resettled by an order entered in said clerk’s office on the 28d day. of October, 1899, denying his application for a peremptory writ of mandamus.

Appeal by the plaintiff, Elizabeth Messmann, and the defendant William Egenberger, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 7th day of September, 1899, upon the. report of a referee in partition.

Appeal by The City of New York from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of February, 1898, as denies its motion to confirm the report of the commissioners of estimate and assessment of the city of New York and sending the report back to the said commissioners with a direction to limit the assessments for benefit to one-half of the value of ■ the property…

<p>Negligence — an employee cleaning off snoio from the trades of a railroad yard run into by a ear shunted'upon them.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff’s intestate it appeared that the defendant, a railroad corporation, maintained ' a yard used to make up trains, the method.adopted being to push each car on its proper track, and detach it, allowing it to run by its own .momentum- until it joined the,other cars, on that track; ,that,while a detached car was thus.proceeding, the brakeman in charge of it saw the intestate, who was employed by the defendant in removing snow from the switches in the yard, standing on the ■ track, and shouted to him, but was unable to attract his attention-; -that he also attempted to apply the brake, which was "apparently in good order, but- was unable to prevent the car from running over the intestate.</p> <p>It did not appear that there was anything to obstruct the intestate’s view of the car or to prevent him from hearing the brakeman’s warning. There was no evidence that the brakeman or any of the defendant’s other employees were negligent or that any better method of making up trains could have-been ■ adopted, and,, so far as appeared, the- brakeman’s inability to stop the car resulted from the slippery condition of the tracks.</p> <p>JSeld, that the court properly dismissed the complaint.</p>

Appeal by the plaintiffs, George W. Crossman and Herman Sieloken, composing the firm of W. H. Crossman & Brother, from a-judgment of the Supreme Court in favor of the.defendants, entered in the office of the clerk of the county of New York on the 18th day of August', 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of August, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.'’ This action was…

Appeal by the plaintiff, Jacob Paul, from an order of the Supreme Court, made at the New York-Special Term and entered in the office of the clerk of the county of New York on the 12th day of October, 1899, vacating a temporary injunction.

Appeal by the plaintiff, William T. Gilbert, as receiver of Commercial Alliance Life Insurance Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 6th day of October, 1899, denying his motion to place the cause upon the preferred calendar.

Appeal by the plaintiff, Robert S. Howard, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 17th day <of June, 1899, setting aside a verdict in favor of the plaintiff.

<p>Action on an insurance policy — by-law requiring that actual death must be shown — absence for seven years is not sufficient—defense that an action can only be brought within two years after the death and that no proof of death has been furnished — inconsistent defenses.</p> <p>A by-law of a mutual benefit association which provides that no time of absence or disappearance on the part of a member, without proof of actual death, shall entitle his beneficiary to recover upon his membership certificate, is not “ illegal, unreasonable, inconsistent with the objects and purposes of the corporation, or repugnant to the law, to public policy or to good morals.” -</p> <p>Where the complaint in an action commenced October 12, 1898, upon such a membership certificate, alleges that the member disappeared on September 1, 1891, and that the plaintiff is informed and believes that he died' on that day, allegations contained in the answer to the .effect that the by-laws of the association provide that no action shall be instituted upon the certificate unless brought within two years from the date of the member’ll death, constitute a valid defense, as do also averments that the by-laws provide that.no part- of the beneficiary fund shall become due or payable until sixty days after proof of the death of the member has been furnished, and that such proof of death has never been presented to the defendant.</p> <p>A defendant may set up in his answer as many separate defenses to the plaintiff’s cause of action as he thinks he .has, notwithstanding the fact that they are . inconsistent with each other.</p>

Appeal by the plaintiff, Lazard Kahn, 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 13th day., of April, 1899, upon -the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits, and directing a specific performance of a contract for the purchase of real estate..

Appeal by Abraham Israel, the plaintiff in the-first above-entitled action, and the defendant in the second above-entitled action, from an order of the Supreme Court in each of said actions, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 18th day of September, 1899, denying his motion to file, nuno pro tuno, the deposition of a witness taken de bene esse.

Appeal by the defendant, William A: Kendrick, 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 25th day of July, 1899, upon the report of a referee. ■ •

Appeal by the defendant, William F. Holwill, from a judgment cf the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 31st day of July, 1899, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendant’s demurrer to the complaint as frivolous, and .also from an order entered in said clerk’s office on the 28th day of July T899, upon which said judgement was entered.

Appeal by the defendants, Moses Musliner and others, from an ■order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York ■on. the 5th day of June, 189-9, denying their motion to compel the plaintiffs to separately number and state the causes of action alleged :in the complaint.

Appeal by the plaintiff, The Phillip Semmer Glass Company, Limited, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 31st day of July, 1899, reversing a judgment of the Municipal Court of the city of New York, in favor of the plaintiff, in an action brought to recover for goods sold and delivered.

<p>Appeal by the defendant, The Manhattan Railway Company, from a judgment of the Supreme Court in favor of the plaintiff,. entered in the office of the clerk of the county of New York on the 16th day of March, 1899, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 17th day of March, 1899, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The Metropolitan Street Railway 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 8th day of November, 1899, denying its motion for a new trial upon the ground of newly-discovered evidence showing that the witnesses foi’ the plaintiff upon whose testimony the judgment was recovered were guilty of perjury, and that the judgment was obtained by means…

' Appeal by the. defendants, Griffin B. Disbrow, individually and as a trustee, and others, from an- interlocutory judgméht of the Supreme Court in favor of the plaintiff, entered in the office of the- clerk of the county of Mew York on the 2d day of March, 1898, nuno pro tuno as of the 21st day of Décember, 1897, upon the decision of the court, rendered after a trial at the Mew York Special Term, removing the defendants.

Appeal by the defendant, the' Hoffman House of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 24th day of January, 1899, upon the report of a referee, and also from an order bearing date the 18th day of January, 1899, and entered in said clerk’s office, denying the defendant’s motion for a return of the said report.to the referee for amendment.

Appeal by the plaintiff, Grace McDonald, as administratrix, etc., of John F. McDonald, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in tjie office Of the clerk of the county of the New York on the 21st day of December, 1898, 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 28th day of October, 1898, denying the plaintiff’s motion for a new trial made upon the…

Appeal by the plaintiff, Clarence P. Day, 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 15th day of November, 1899, denying his motion for an injunction penT dente lite enjoining the defendants from interfering with the assets, of the firm of Dow, Jones & Co., and also for the appointment, of a receiver of the property described in the complaint in tlm action, including all the…

Appeal by the defendants, Aaron Cohn 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 .Hew York on the 11th day of July, 1898, .upon the decision of the court, rendered after a trial at the Hew York Special Term, setting aside a deed of conveyance as made in fraud of creditors, and appointing a receiver to sell the property.

Appeal by the defendant, Thomas J. Reese, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of October, 1899, committing him for contempt of court.

Appeal by tne defendant, Sarah Lynch, from so much' of an order of the Supreme Court, made at the New York Special Term land entered in the office of the clerk of the county of New York ■on the 24th day of November, 1899, as imposed conditions on the right granted to her to serve a supplemental answer herein, in the following terms, to wit: “ That the defendant, upon taxation thereof, forthwith pay to the plaintiff all costs in this action to date, including the costs of the…

Appeal by the defendant, Patrick H. Keahon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of April, 1899, upon the verdict of a jury for $2,750, 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, Esther Kaminski, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 20th day of January, 1899, upon the verdict of a jury, rendered by direction of the court, and also from an order entered in said clerk’s office on the Jth day of February, 1899,denying the plaintiff’s motion for anew trial made upon the minutes.

Appeal by the defendant, Harrie G. Newton, as sole qualified executor, etc., of Henry J. Newton, deceased, from a judgment of the Supreme Court in favoi\of the plaintiffs, entered in the office of the clerk of the county of New York on the 16th day of February,. 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of February, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Thomas j. Murphy 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 Kings on the 15th day of March, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term, with notice of an intention to bring up for review upon such appeal an order bearing date the 15th day of March, 1899, granting the plaintiff, an additional allowance.

Appeal by the defendants, Michael J. Dillon, mayor of the city •of New Rochelle, and others, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 31st day of July, 1899, directing the issuance of a peremptory writ of. mandamus, commanding the defendants to restore the relator to his position as patrolman of the city of New Rochelle.

Appeal by the defendants, Timothy Y. Brown, both individually and as executor, etc., of Ephraim D. Brown, deceased, and others,, from an order of the Supreme Court, made at the Kings County-Special Term and entered in. the office of the clerk of the county of Kings on the 25th day of October, 1899, denying their motion for leave to serve an amended answer.

Appeal by the defendant, Louis B. Simonds, from a judgment of the Municipal Court of the city of . New York, borough of Brooklyn, third district, in favor of the plaintiff, entered in the office of the clerk of ¡said court on the 8th day of August, 1899, awarding possession of certain chattels to the plaintiff, and in default thereof for the value of said property.

Appeal by the defendants, Walter Geer 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 Westchester on the 17th day of May, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of May, 1899, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, The City of New Yorb, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 13th day of July, 1899, upon the decision of the court rendered after a trial at the Westchester Trial Term, the jury having been -discharged at the close of the case.

Appeal by the plaintiff, Louis M. Lucia, from a judgment of the-' Municipal Court of the city of Hew York, borough of Brooklyn, fourth district, in favor of the defendant, rendered on the 9th day of September, 1899, dismissing the plaintiff’s complaint. ■

<p>Negligence-—railroad yardman struck by freight can’s “kicked” upon the tracks — liability of the railroad company for a failure to make proper rules for themovement of its cars.not for the neglect of an employee to give warning.</p> <p>A yardman, engaged in sweeping snow from railroad tracks in the yard, who is struck by freight cars “kicked” by an engine engaged in distributing them in the yard, is not entitled to recover for his injuries against the railroad company because a brakeman on the cars has failed to give him proper warning of their approach.</p> <p>In such a case the liability of the railroad company, if any, would arise from its failure to promulgate proper rules for the conduct of the movement of its cars . and its failure to direct that proper warnings he given, and not from the failure of a co-employee of the plaintiff to give such warning. '</p>

Appeal by the defendant, the Brooklyn and Rockaway Beach Railroad Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the-clerk of the county of Kings on the 25th day of March, 1891, confirming the report of a referee and adjudging the said defendant guilty of contempt of court for disobeying an injunction order dated the 8th day of August, 1896, and imposing a fine of $1,000 for the violation of the said order.

Appeal by the defendant, William J. Buttling, as sheriff of the county of Kings, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 14th day of July, 1899, upon the decision of the court rendered after a trial before the court without a jury at the Kings County Trial Term. The facts in this case are statéd in the opinion of Goodrich, P. J.

Appeal by the defendant, Elizabeth Geiger, from a final order of the Municipal Court of the city of New York, in summary proceedings to recover possession of real property. •

Appeal by the plaintiff, Samuel Alexander, 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 14th day'of February, 1899, upon the verdict of a jury rendered by direction of the court dismissing the complaint upon the merits.

Appeal by the defendants, James F. O’Grady and others, composing the board of supervisors of the county of Richmond, from an order of the Supreme, Court, made at the Kings County Special Term and entered in the office of the clerk .of the county of Richmond on the 17th day of August, 1899, granting the relator’s motion for a peremptory writ of mandamus.

Appeal by the defendant, John Y. Treacy, town clerk of the town of Highlands, from an order of the Supreme Court, made at the Dutchess. County Special Term and entered in the office of the clerk of the county of Orange on the 3d day of October, 1899,-granting the relator’s motion for a peremptory writ of mandamus..

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

Motion by the defendants,. Joel B, Erhardt and others, for a new trial upon a case containing exceptions,'ordered to be heard at the Appellate Division in the first instance, upon the .verdict of. a jury in favor of the plaintiff, rendered after a trial at the Westchester Trial Term.

Appeal by the plaintiff, Henry Benton Ranken, from a judgment of the Supreme-Court in favor off the defendants, Michael Donovan and Cartwright ■ McBride;. entered in the office off the clerk of the county of Kings- on the 23d day, of March, 1899, upon the verdict of a jury rendered by direction of the -court after a trial at the Kings County Trial Term, aud also from an order, entered in said clerk’s, office on the 29th day of March, 189.9, denying the plaintiff’s motion for…

Appeal by the defendant, Edward Lumley, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of October, 1899,'permitting the plaintiff to serve a notice of lien on the person in charge of the cemetery where the monument in controversy herein is situated, mine pro tuno, as of the 23d day of January, 1899.

Appeal by the defendant, the Brooklyn City and Newtown 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 21st day of February, 1899, upon the verdict of a jury for $1,000; and also from, an order entered in said clerk’s office on the 27th day of September, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, J ohn P. Carlson and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of April, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the relator, Mary E. Jones, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 20th day of October, 1899, denying her application for a writ of mandamus directing the defendants to cancel the record of certain tax sales of hér property. .

Application by School District No. 4, in the town, of North Hempstead, to resettle the order of this court on an appeal from a. decree of- the Surrogate’s Court of Queens county by striking out the award of costs made to the contestants by the surrogate, and by •denying them the costs of the appeal in this court. The opinion of the court on the. appeal herein is reported in 43 Appellate Division. 582.

Appeal by the petitioner, Robert Quinn, from a judgment of the Municipal Court of the city of New York in the first district of the borough of Brooklyn in favor of the defendant, dismissing the petition in a summary proceeding brought by said petitioner to recover the possession of real property for the non-payment of rent, which judgment was rendered on the 10th day of October, 1899.

Appeal by the defendant, The Trustees of the New York and Brooklyn Bridge, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 8th day of J uly, 1898, upon the verdict of a jury for $1,000, and also from an ■ order entered in said clerk’s office on the 13th day of July, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, George Wise, 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 19th day of January, 1899, upon the dismissal of the complaint at the close of the plaintiff’s case by direction of the court after a trial at the Kings County Trial Term.

Appeal by the defendant, Mary J. Souther, from a judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 2d day of - December, 1898, upon the decision of the court rendered after a trial before the court without a jury, foreclosing a mechanic’s lien, with notice.of an intention to,bring up for review upon. such appeal an order entered in said clerk’s office on the 22d day of December, 1S98,…

Appeal by the plaintiff, Douglas A. Park, from a judgment .of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of the county of Kings or. the 28th day of June, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury.

Appeal by the relators, Abram Langdon and others, from' an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 19th day of October, 1899, denying their motion that a peremptory writ of mandamus issue directed to the defendants, commanding them to reinstate the relators as “ stream cleaners ” in the department of water supply of the borough of Queens.

Appeal by the plaintiff, Mary M. Dusenberry, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 2d day of November, 1899, denying her motion to continue a temporary injunction.

Appeal by the defendant, Edward 0. Bell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of February, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, William H. Palmer, 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 9th day of May, 1899, upon the verdict of a jury, rendered by direction of the court after a trial at the. Kings County Trial Term.

Appeal by the defendant, the Nassau Electric 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. 21st day of March,' 1899, upon the verdict of a jury for $6,500, and also from an order entered in said clerk’s office on the 20th day of March, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Motion by the defendant, The Long Island Railroad Company, for a reargument of an appeal from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of February, 1899, upon the verdict of a jury for $24,500, and also from an order entered in said clerk’s;office on the 15th day of February,1899,-denying, the' defendant’s motion for a new trial made upon the minutes, or for leave to appeal to the…

Appeal by the defendant, The New York Caledonian Club, from a judgment of the Municipal Court of the-city of New York, held in and for the borough of the Bronx, in favor of the plaintiff.

Aiípeal by the plaintiff, John Reilly, as executor, etc., of Jacob Michel, deceased, and in his own right, from an interlocutory judgment of the Supreme Court in favor of the defendant Emma Porcher, entered in the office of the'clerk of the county of Queens on the 23d day of October, 1899, upon the decision of the court, after a trial at the Queens County Special Term, dismissing the complaint, on the ground that it does not state facts sufficient to constitute a cause of…

Appeals by the plaintiff John Turell, by Joseph P. Turell, his. guardian ad litem, in the first above-entitled action, and by the plaintiff William Degraw, by Gibért Degraw, his guardian ad litem, in the second above-entitled action, from orders .of the Supreme Court, made at the Orange Special Term and entered in the office of the cleric of the county of Orange on the 20th day of September, 1899,. requiring the plaintiffs to give security for costs.

■ Appeal by the plaintiff, Willis S. Watson, from a judgment of the Supreme Court in favor .of the defendants, entered in the office of the clerk of the county of Westchester on the 19th day of October, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Westchester Trial Term.

Appeal by the defendant, Christian Iverson, from a judgment of the County Court of Dutchess county in favor of the plaintiff, entered in :the office of the clerk of Dutchess county on the 27tli day of February, 1899, modifying a judgment of the Recorder’s Court of the city of Poughkeepsie, which' convicted the defendant of the crime of being a disorderly person under subdi-. vision é of section 899 of the Code of Criminal Procedure, and affirming said judgment as so modified.

Appeal by the .plaintiff, the National Bank of Port Jervis, from a judgment of the Supreme Court in favor, of the defendants, entered in the office of the clerk of the county of Orange on the 14th day of March, 1899, upon the decision of the court, rendered after a trial at the Orange Special Term, dismissing the complaint . upon the merits.

Appeal by the defendant, Harriet F. W. Spicer, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens oh the 16th day of October, 1899, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling her demurrer to the complaint and awarding costs to the plaintiff.

Appeal hy the plaintiff, Margaret Bowler, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of July, 1899, denying her motion to compel one Philip Brandmeier, the purchaser herein, to complete a purchase of certain real estate from a referee appointed to sell the same.

Appeal by the defendant, Henry H. Lyman, State Commissioner of Excise, from an order of the Supreme Court, made at the Suffolk Special Term and entered in the office of the clerk of the county of Suffolk on the 3d day of July, 1899, directing that a peremptory writ of man damns issue requiring the defendant- to- prepare two-orders for the payment of the rebate of the relator, Edward Ging,, and transmit the order on the county treasurer for the two-thirds and the check of the…

Appeal by the defendant, Charles Broadway Rouss, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of June, 1899, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 28th day of June, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the petitioners, Sarah Wilson and another, from a decree of the Surrogate’s Court of Kings county, entered in said Surrogate’s Court on the 27th day of April,; 1899, confirming the report of a referee, with notice of an intention to bring up for review upon such appeal an order entered in said Surrogate’s Court on the 25th day of March, 1899, denying their application to set aside the report of the referee and direct him to take and state the account of Daniel H.…

Appeal by the defendant, James D. jSTelligan, from an order of the County Court of Tompkins county, entered in, the office of the clerk of the county of Tompkins' on the 6th day of March, 1899, granting a new trial on the ground of “ improper conduct of- the jury in the' manner of arriving at a verdict.” The action Was brought to recover for goods sold by .the plaintiffs to the defendant, and the latter interposed a counterclaim based upon goods sold and delivered by him to…

Appeal by the defendant, Walter N. Kernan, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Clinton on the 25th day. of July, 1899, denying his motion to change the place of trial from the county of Clinton to the county of Herkimer.

Appeal by the plaintiff, P. M. Sharpies, from a judgment of the Supreme Court in favor- of the defendant, entered in the office of the clerk of the county of Tioga on. the 17th day of July, 1899, apon the verdict of a jury, and also from an order entered in said •clerk’s office on the 17th day of July, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, William B. Collins and others, from a judgment of the County Court of Columbia county in favor .of the plaintiff, entered, in the office of the. clerk of the county, of Columbia on- the 19th day of June, 1899, upon the verdict of a.jury, with notice of an intention to bring, up for review upon such appeal an order entered in said.clerk’s office on the 15th day of June^ 189.9, denying, the defendant’s, motion ■ for a new trial made upon the minutes. .

Appeal by the plaintiff, George W. Crooks, as trustee in bankruptcy of the estates of Howard E. King and of the firm of H. E. King & Son, bankrupts, from an interlocutory-judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Franklin on the 12th day of September, 1899, upon the decision of the court, rendered after a trial at the St. Lawrence Special Term, sustaining the defendant’s demurrer to the amended complaint upon…

Appeal by the defendants, Eleanor C. Avery, executrix, etc., of John Avery, deceased, 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 Greene on the 19th day of August, 1898, upon the decision of the court rendered after a trial at the Greene Trial Term, the jury having been discharged by consent of the parties.

Appeal by the defendant, Mary Shull, from a judgment of the County Court of Fulton county in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 11th day of July, 1899, affirming a judgment of a justice of the peace in favor of the plaintiff. .

Appeal by John L. Getman, one of ihe executors, etc., of Alexander J. Hasson, deceased, from an order .of the Surrogate’s. Court-of Fulton county, entered in said Surrogate’s Court on the 12-th day of August, 1898, removing him from liis office as executor, etc., of Alexander J. Kasson, deceased, and revoking the letters testamentary issued to him.

Appeal by the defendant, Mary C.. Bishop, from a judgment of.the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 7th day of April, .1899, upon the decision of the court rendered after a trial before the court without a jury at the Saratoga Trial Term.

• Appeal by the defendant, George Van Yalkenburgh, 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 11th •day of October, 1899, upon the decision' of the court rendered .after a trial before the court and a jury at the.

<p>Appeal by the plaintiff, the International Food Company, from an interlocutory judgment of the Columbia County Court, entered in the office of the clerk of the county of Columbia on the 23d day of February, 1899, overruling its demurrer to the counterclaim . contained in the amended answer.</p>

<p>Boundary of a lot by the land of an adjoining owner—a recovery of part of the lot, as inclosed, by such adjoining owner — not a breach of a covenant of warranty — a statement as to the width of the lot is not a warranty. '</p> <p>Where a deed bounds the property conveyed “ on the west by a lot of land owned or occupied by Andrew Gunn, being thirty-three feet in width front and rear,” the recovery of a "judgment against the grantee therein by the owner of the lot on the west for the possession of a strip of land eighty-one feet long and about eighteen inches wide, which had been inclosed with the lot conveyed to : the grantee, does not entitle the grantee to maintain an action for the breach of a covenant of warranty contained in the deed, as the description contained in the conveyance did not embrace the strip in question, the grantor not having guaranteed the width of the lot to he thirty-three feet, and, in the absence of proof of the location of the east line of the lot, it not appearing that it was less than thirty-three feet wide.</p>

Appeal by the defendants,' Charles W. White 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 Schuyler on the 12th day of ¡November, 1894, upon the decision of the court rendered after a trial before the court without a jury at the Schuyler Trial Term..

Appeal by Alexander B. Larkin from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the plerk of the comity of Schoharie on the 2d day of August, 1899, dismissing an alternative writ of mandamus and denying the relator’s application for á peremptory writ. At the town meeting held in and for the town of Richmondville on the 21st of February, 1899, the applicant, Alexander B. Larkin, Was a candidate for supervisor.

<p>Agreement for the delivery of goods to be sold — when the relation of agency ends and' that of debtor and creditor begins — set-off in an action thereunder.</p> <p>A complaint in an action alleged "that the plaintiff’s assignor delivered certain, .merchandise to the defendants as agents to be sold on account of the assignor, under an agreement by which they were to pay over to him each month, so much of the price or sum at Which said defendants? had made such sales as- • would be equal to seventy per cent off the list price fixed upon said merchari- ... dise by the said Gray (the assignor), at the time the same was consigned by him to said defendants, and said defendants were to make such payments monthly after making such sales, whether the purchaser had or had not paid them for such purchase; and thjit the defendants had sold certain, merchandise under ' such - agreement and had refused to render an account.</p> <p>field, that "the agency created by the agreement terminated upon the sale of the. consigned goods by the defendants, and that as to the proceeds of the sale the relation between the parties was that of debtor and creditor, and not principal and agent;</p> <p>That the action did not sound in tort, and that it was error to exclude from con- ■ sideration a counterclaim pleaded in the answer.</p>

Appeal by the defendants, Reuben W. Willard and another, from a judgment of the County Court of Fulton county in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 11th day of August, 1899, affirming the judgment of a justice of the peace in favor of the plaintiff, and also from an order entered in said clerk’s office on the 11th day of August, 1899, upon which said judgment was entered.

Appeal by the plaintiff, Melville L. Cobb, 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 2d day of October, 1899, upon an order made a1$ the Albany Special Term and entéred in the office of the clerk of the county of Rensselaer on the 2d day of October, 1899, sustaining the defendants’ demurrer to. the hditipMint: ■ - ■ This action was brought against the receiver of the Lebanon Springs…

Appeal by the plaintiff, Sarah J. Cushman, from a final judgment of the Suprem.e Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 10th day of April, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of April, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Merger—assignment of a mortgage to the owner of the equity of redemption—costs in , an action to foreclose the mortgage assigned to secure a note.</p> <p>Where a person who acquires title to an undivided interest in premises subject to a mortgage, thereafter takes an assignment of the mortgage and subsequently assigns it to a third person as security for the latter’s liability as surely upon a note given by such assignor, no-merger takes place.</p> <p>Where the mortgage is foreclosed because of the owner’s failure to pay the note/ he may properly be compelled to pay the expenses of the litigation, including an allowance to the guardian ad litem of an infant defendant, and an option given to him to have the judgment discharged upon payment within ten days after its entry of the amount due upon the note and the sum allowed to the guardian ad litem and the expenses of sale, if any, is all that he is entitled to receive at the hands of the court.</p> <p>In the absence of an appeal by the plaintiff from the judgment of foreclosure, the failure to award' her costs, according to the ordinary practice of the court, is not a ground for interfering with the judgment.</p>

Appeal by the Erie County Athletic Club from an order of the -.¡Supreme Court, made at the Erie Special Term and entered in the office oxf the' clerk of the county of Erie on the 8th day. of September, 1899, upon the return of an order to show cause why an order should not be. made in this proceeding revoking and canceling -a liquor tax certificate, held by the Erie County Athletic Club, on 'the ground that the holder of said certificate had been guilty of a violation of the…

Appeal by the defendants, John A. Lighthall, individually and as trustee, 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 Onondaga on the 17th day of January, 1899, upon the report of a referee.

Appeal by the plaintiff, The State Bank of Pike, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Wyoming on the 31st day of January, 1899, upon the dismissal of the complaint as to all the ■ defendants, except the defendant Adams, by direction of the court after a trial before the court without a jury at the Erie Trial Term.

Appeal by the plaintiff, Charles Strobing, from a judgment of the County Court of Niagara county in favor of the defendant, entered in the office of the clerk of the county of Niagara.on the 16th day of December, 1898, 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 30th day of January, 1899, denying the defendant’s motion for a new trial made upon the…

Appeal by the defendants, Walter N. Kernan, as assignee for the benefit of creditors of Alfred Dolge, and Albert M. Mills, as receiver, etc., of Alfred Dolge & Son, from a. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 20th day of June, 1898, upon the decision of the court rendered after' a trial at the ■Oneida Special Term, except that portion thereof adjudging that all machinery not permanently,…

Motion by the plaintiff, William Yaw, for a new trial upon a ■case containing exceptions, ordered to be heard at 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 on the 21st day of March, 1899.

Appeal by the plaintiffs, Edward J. Rogers and another, from an -order of the . Supreme Court, made at the Erie Trial Term and ■entered in the office of the clerk of the county of Erie on the 21st day of January, 1898, denying their motion for a new trial made upon the minutes, after a verdict in favor of the defendant rendered at the Erie Trial Term.

Appeal by the plaintiff, John Almond, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Jefferson on the 27th day of January, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Jefferson Trial Term. One Phippin had a contract with the defendants to perform certain work for them in constructing a building.

Appeal by the plaintiffs, John Coast and others, from a judgment of the Supreme Cgurt in favor of the defendant, entered in the office of the clerk of the county of Cattaraugus on the 1st day of March, 1899, upon the decision of the court rendered after a trial at the Cattaraugus Special Term.

<p> Verdict, when not set adde as against the evidence—proof that goods were sold to a-wife and, not to her husband, considered—Statute of Limitations, not available under a general denial. </p> <p>A verdict rendered upon conflicting testimony will not be set aside by an appellate court as unsupported by the evidence, unless there is an overwhelming-preponderance Of evidence against it; it is not enough that the court would, have reached a different conclusion from that reached by the jury.</p> <p>In an action against a wife for goods alleged to have been sold and delivered to her, the fact that the goods were charged to the husband, and that the vendor accepted the note of the husband on account of the purchase price, and procured a statement preliminary to confession of judgment against him, while tending to show that the goods were ’sold to the husband and not to the wife, is not conclusive on that point where there is evidence that the acts in question were done at the instance of the wife, .and that she had a pecuniary interest in the success of the business, having loaned money to her husband and being-liable as his indorser.</p> <p>The defense of the Statute of Limitations is not available under a general denial.</p>

Appeal by the defendant, William Martin, from a judgment of the Supreme Court in favor of the' plaintiff, entered in the office of the clerk of the county of Monroe cm the 19th day of June, 1899, upon the decision of the court rendered after á trial' at the Monroe Special Term. James Martin was a depositor in the Monroe County Savings Bank, and in January, 1896,, had five distinct accounts with, the hank.

Appeal by the defendants, Udo Y. Schaviroth and another, .from, an interlocutory judgment of thevSupreme Court in favor -of. the-plaintiffs, entered in the office of -the clerk of the county of Monroe-on the 10th day of April, 1899, upon the-decision of ;the court, rendered after a' trial at the Monroe-Special Term,, overruling .their demurrer to the complaint.

• Appeal by the defendant, Judson C. Pisher, from' a judgment óf the Supreme Court in favor of the plaintiff, entered in-the office of the clerk of the county of Monroe tin the 80th day of September, 1898, upon the decision of the. coiirtj' rendered after a trial at the Monroe Special Term, • , .

Appeal by tlie defendant, The New York Central and Hudson River Railroad Company, from an order of the Supreme Court, made at. the Wayne Trial Term and entered in the office of. the clerk of the county of z Wayne on the 16th day of June, 1898, denying his motion for a new trial made upon the minutes, the jury having rendered a verdict in favor of the plaintiff for $10,000.

Appeal by the plaintiff, James Adams, from a judgment*of the Supreitie Court in favor of the defendant, entered in the office of the clerk of the county of Niagara on the 3d day of August, 1898,, upon the report of a referee dismissing the complaint upon the-merits. ■ The plaintiff acted as constable for the defendant from June, 1896, to April 13, 1897.

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 Monroe on the 12th day of April, 1899, upon the verdict of a jury for $5,412.75, and also from an order entered in said clerk’s office op. the 12tli day of April, 1899, denying the. defendant’s motion for a new trial made upon the minutes.

Appeal by The Grade Crossing Commissioners of the city of Buffalo and others from an order of the Supreme Court, made at the Erie ‘Special Term and entered in the office of the clerk of the county of Erie on the 28th day of July, 1899, dismissing their petition for the appointment of commissioners to ascertain and report the compensation to be made to certain property owners and parties interested, by reason of any injury which might result to the lands in which they were…

Appeal by the plaintiff, Joseph C. Byrne, from a judgment of the Supreme Court in favor of the defendant, entered in the .office of the clerk of the county of Cayuga on the 21st day of October, 1898, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Cayuga Trial Term.

Appeal by the defendants, Mary E. Richmond and Michael Donovan, 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 19th day of June, 1899, upon the decision of the court rendered after a trial at the Monroe Special Term, directing .the defendants to account and pay over to the plaintiff, as receiver of the property ■of Frances R. Donovan, $500, or so much thereof as may be necessary to satisfy his…

Appeal by tbe plaintiffs, Myron Wasbburn and another, from, a judgment of the Supreme Court in favor of the defendant, Robert R. Benedict, as administrator, etc., of Margaret Benedict, deceased, entered in the office of the clerk of the county of Ontario on the 27th day of December, 1898, upon the decision of the court, rendered after a trial at the Ontario Special Term, dismissing their complaint.

Appeal by the defendant, the Citizens’ Ice Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the offiefe of the clerk of the county of Erie on the . 10th day of February, 1899, upon the report of a referee.

Appeal by the defendant,' Thomas J. Cosgrove, as assignee for the benefit of creditors of Thomas J. Brennan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of November, 1899, upon the decision of the court rendered after a trial a.t the New York Special Term.

Appeal by the plaintiff, Samuel ■ Steuer, as-administrator, etc., of Israel Steuer, deceased, from, a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county .of New York on the 23d day of May, 1899, upon the verdict of a jury rendered by direction of the court.

Appeal by the plaintiff, Eva Scliroeck, by her guardian ad litem,, Joseph Schroeck, 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 10th day of January, 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 3d day of January, 1899, denying the plaintiff’s motion for a new…

<p>Appeal by the defendants, John C. Hertlé and another, eoimnis- * sioners of accounts 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 30th day of June, 1899, directing that a peremptory writ of mandamus issue requiring them to restore the relator to the position of' assistant examiner in the office of the . commissioners of accounts in the city of New York, and to audit his salary from the 19t.h.day of March, 1898. '</p>

Appeal by Charles D. Dickey and another, property owners, from an order of the Supreme Court, made at.the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of October, 1899, extending the time of the commissioners of estimate and assessment of the city of Hew York to complete their proceedings.

<p>A judgment against an executor is not evidence against Ms decedent's devisees — the testimony of witnesses, since (deceased, given in the action against the executor is inadmissible against the devisees — testimony as to a personal transaction.</p> <p>A judgment against an executor obtained by a creditor of the testator is not evidence of the existence of the debt in an action brought by the creditor against devisees of the testator to recover the debt, as there is no1 privity between the devisees and the executor.</p> <p>In an action by the judgment creditor against the devisees, proof of testimony tending to establish the existence of the debt, given upon the trial of the action. ■ against the executor by witnesses who have since died, is inadmissible.</p> <p>Testimony by the plaintiff as to conversations which took place in his presence between the testator and his son is incompetent under section 839 of the Code of Civil Procedure.</p>

Appeal by the plaintiff, Richard Warren, 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 25th day of April, 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 denying the plaintiff’s motion for a new trial.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of July, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of July, 1899, denying the defendant’s motion for a new trial made upon the minutes.

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 3d day of March, 1899, upon the verdict, of a jury for $2,000, and also from an order entered in said clerk’s office on the 2d day of March, 1899, denying the defendant’s motion for a new trial made, upon the minutes.

<p>Dismissal of a complaint for want of prosecution — delay in serving a complaint with a view to defeating the prosecution of a counterclai/m—discretionary power reviewable by the Appellate Division.</p> <p>Where the plaintiffs in an action neglect to serve an amended complaint for over a year after the entry of an order permitting them to do so, and use the pendency of the action to defeat an independent action against them on a counterclaim set up in the defendant’s answer, it is error for the court to deny the defendant’s motion to dismiss the complaint for want of prosecution.</p> <p>The interposition of the counterclaim affords no reason for denying the motion.</p> <p>The discretion exercised by the Special Term on such a motion is reviewable by the Appellate Division.</p>

Appeal by the plaintiff, William R. De Witt, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Hew York on the 10th day of March, 1899, upon the report of a referee dismissing the plaintiff’s complaint.

Appeal by the plaintiff, William H. Fox, from so much of a. judgment of the Supreme Court in favor of the defendant, John B. Ireland, entered in the office of the clerk of the county of New York on the 27th day of June, 1899, as dismissed the complaint as to said defendant, which judgment was rendered 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 27th day of June, 1899, denying the…

<p>Appeal by the defendant, .John R. Todd, 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 11th day of April, 1899, upon the verdict of a jury for $3,500, and also from so much of an order entered in said clerk’s office on the 5th day of April, 1899, as-denied the defendant’s motion for a new trial made upon the' minutes.</p>

<p>Appeal by the plaintiff, Daniel Bradley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of , the clerk of the county of New York on the 9th day of June, 1898, upon the decision of the court, rendered after a trial before the court without a jury at the New York Trial Term.</p>

<p>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 27th day of March, 1899, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 4th day of April, 1899, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Anna Mueller,, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York, on the 21st day of April, 1899, upon the dismissal of the complaint, by direction of the court, after a trial before the court and a jury at the New York Trial Term.

Appeal by the defendant, The Society of the War of 1812 in the State of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk .of the county of New York on the 10th day of May, 1897, restraining the defendant pendente lite from using the words-“ The Society of the War of 1812,” the plaintiff’s corporate name, as part of defendant’s name or style.

Appeal by Florence Lowden and others, beneficiaries under the will of George M. Pullman, deceased, from an order of the Surrogate’s Court of New York county, bearing1 date the 19th day of September, 1899, and entered in said Surrogate’s Court; affirming an order dated the 28th day of August, 1899, which appraised and fixed the transfer .tax upon certain personal property of George M. Pullman,-located in the State of New York.

Appeal by the defendant, the Eleventh Ward Bank, from a ■judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yew York on the 13th day of June,. 1899, upon the decision of the court, rendered after a trial at the Yew York Special Telan, distributing moneys due under a contract with the city.

Appeal by the plaintiff, Mary Ryan, 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 28th day of November, 1898, vacating an order for the examination of the defendants before trial.

Appeal by the plaintiff, Charlotte W. Umfreville, from an order ■ of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of June, 1899, denying her motion for an inspection of her alleged consent to the operation of the defendants’ elevated railway.

Appeal by the plaintiff, Louis Gatlin, 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 12tli day of January, 1899, upon the. dismissal of the complaint by direction of the court after a trial before the court and a jury at the New York Trial Term, and also from an order entered in said' clerk’s office on the 18th day of March, 1899, denying the plaintiff’s motion for a new trial made upon the…

Appeal by the defendant, The Press Publishing Company, front a judgment .of the Supreme Cohrt in favor of the plaintiff, entered, in the office of the clerk of the county of New York on the 1st day of November, 1898, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 7th day of November, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, William E. Bailey, from an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the cleric of the county of New York on the loth day of November, 1899, denying his motion to place this cause upon the preferred calendar.

Appeal by the plaintiff, Frank P. Hastings, from a judgment of the* Supreme Court in favor of the defendant, bearing date the 8th •day of May, 1899, and entered in the office of the clerk of the ■county of New York upon the decision of the court, rendered after •a trial at the New York Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, Fred E. Guy, 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 22d day of May, 1899, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint upon the merits.