Volume 47 — New York Appellate Division Reports

Appeal by the plaintiff, C. H. Diamond and Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 8th day of May, 1899, as amended by an order entered in said clerk’s office on the 17th 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 New York Trial Term, and also from an order entered in said clerk’s office…

<p> Pleading—failure to join the defendant’s copartners.as pan'ties—-the objection inust. be taken by demurrer or answer—•proof that a contract was made by. one partner individually and not for the firm. </p> <p>. In an action on a contract, in which the issue is whether the defendant made the contract in his individual capacity or on behalf of a firm of which he was a member, the objection that the defendant’s copartners had not been' joined as parties defendant, if it appears upon the face of the complaint, is deemed to be waived unless taken-by demurrer or answer.</p> <p>What evidence is sufficient to warrant a finding that a contract sued upon was made by the defendant in his individual capacity and not on behalf of his firm, considered.</p>

<p>Appeal by the defendants, Joseph. Cassidy and others, individually and as members of the council 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 25th day;of August, 1899, directing that a peremptory writ of mandamus issue to the municipal council of the city of New York requiring them to pass a resolution authorizing certain bonds to be issued by the comptroller of the city of New York for the purpose of paying an award made by commissioners, for-certain property acquired for the benefit of the city.</p>

Appeal by the plaintiffs, Louis M. Simpson and another, from an order of the Supreme Court, made at the New York Special Term, ■bearing date the 17th day of November, 1899, and entered in the office of the clerk of the county of New York granting the defendant’s motion to vacate a levy of attachment made upon certain shares of the stock of the New Jersey and Pennsylvania Telephone Company.

Appeal by The Waverly Company, a creditor of the Worthington 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 20th day of February, 1899, confirming the report of a referee settling the accounts of Joseph J. Little, as receiver of the Worthington' Company, and overruling •the exceptions to said report filed by the appellant.

Appeal by. the plaintiff, Ernestine Saunier, from so much of an order of the Supreme.

Appeal by the plaintiff, Pauline Levy, an.infant, by Bertha Levy, her guardian ad litem, 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 20th day of December, 1899, denying her motion to place this cause upon the calendar for preferred’ causes.

Appeal by Charles Herrlich, as executor, ete., of Rosa Raab, deceased, from a judgment of the Supreme Court in. favor of Carrie Kuhn, entered in the office of the clerk of the county of Hew York -on the 1st day of June,.' 1899, upon the report of a referee appointed to pass upon a disputed claim filed by her against the estate of Rosa Raab.

<p> A mortgage to secure future advances as buildings progressed—right of a plumber putting in materials to remove them after advances have been made. </p> <p>Where an owner of land who is erecting a house thereon, after executing two mortgages upon the premises to secure payment of advances to be made by the mortgagee as the work progresses, enters into a contract for the purchase of certain plumber’s fixtures, capable of being removed from the premises without injury to the freehold, which contract provides that the title to the fixtures shall remain in the vendors until payment is made, and which is filed the day after the work is begun, pursuant to section 112 of the Lien Law (Laws of 1897, chap. 418), the mortgagee who, in. ignorance of the contract, has advanced a further sum upon the substantial completion of the work, is in no better position as to the articles in question than a subsequent purchaser or mortgagee thereof, and cannot restrain their removal from the premises by the plumbers upon the owner’s failure to pay therefor.</p>

Appeal by the plaintiffs, Charles Jones and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 29th day of June, 1899, upon the report of. a referee.

Motion by the plaintiff, Sarah J. Singer, 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 defendants rendered by direction of the court after a trial at the New York Trial Term.

Appeal by Frank Briggs, one of the heirs at law of George W. M. Briggs, deoeased, from a decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 4th day of May, 1899, admitting to probate an instrument purporting to be the last will and testament of George.W. M-. Briggs, deceased.

Appeal by the plaintiff, Arthur, Duke D’Auxy, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the couiity of New York on the 4th day of October, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, overruling his demurrer to the counterclaim of the defendant.

Appeal by the defendant, Martha L. Cox, from a final 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 July, 1899, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, The Manhattan Eailway 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 3d day of November, 1899, bringing in George Eosenfeld as an additional party defendant, and granting leave to the plaintiff to serve a supplemental complaint.

• Appeal by the defendants, Charles Brenneman and Elizabeth Brenneman, severally as well as jointly, from a judgment of the Supreme Court in favor of the plaintiff, entered' in the office of the clerk of the county of Few York on the 31st day of May, 1899, upom the decision of the court rendered after a trial at the Few York Special Term.

Appeal by the plaintiff, Mary E. Robinson, from a judgment of the Supreme Court iii favor of the defendant, entered in the office of the clerk of the county of New York on the 17th day of August, 1899, upon an order made at the New York Special Term and entered in said clerk’s office on the 5th day of June, 1899, dismissing the complaint.

Appeal by the defendant, William De Forest Manice, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 15th day of May, 1899, upon the verdict óf a jury for $22,500, and also from an order entered in said clerk’s office on the 24th day of May, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Phoenix 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 Tompkins on the 21th day of February, 1899, upon the report of a referee.

Appeal by the defendant, William H. Sunderland, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 20th day of March, 1899, upon the decision of the court, rendered after a trial at the Ulster Special Term, overruling the defendant’s demurrer to paragraph numbered II and paragraph numbered III of the complaint, with notice of an intention to bring up for review on such appeal an…

Appeal by the relator, The Town of Plattsburgh, New York, from an order of the Supreme Court, made at the Clinton Special Term, and entered in the office of the clerk of the county of Clinton on the 23d day of September, 1899, denying its motion for a peremptory writ of mandamus to Andrew Williams, as county treasurer of the county of Clinton, requiring him, as county treasurer of such county, to forthwith turn' over to the town of Plattsburgh, county of Clinton, the sum of…

Appeal by the defendant,. Edward. J. Purdy, 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. 2d 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 26th day of May, 1899, denying the defendant’s motion for a new trial made upon the minutes.

• Appeal by the defendant, Mark S. Leavy, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 5th day of July, 1899, upon the decision of the court rendered after a trial at the Albany Trial Term, the jury, having been discharged by consent of both parties.

Appeal by the petitioner, Margaret A. Hunter, 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 7th day of August, 1899, denying her application to have an assessment for the construction of a sewer in Rawson street, so called, and Third street, in the city of Albany, vacated for substantial error.

Appeal by the defendants, John Hutton 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 Ulster on the 1st day of March, 1899, upon the verdict of a jury for $850, and also from an order entered in said clerk’s office, on the 25th day of February, 1899, denying the defendants’ motion for a new trial made upon, the minutes.

Appeal by Bernard E. McCusker from an order of the. Supreme Court, entered in the office of the clerk of the county of. Rensselaer on the 25th day of September, 1899, revoking and canceling the liquor tax certificate granted by John Don, as county treasurer of Rensselaer county, to said Bernard E. McCusker.

Appeal by the defendant, Christopher Walton, from a judgment, of the County Court of Franklin county in favor of the plaintiff,, entered in the office of thb clerk of the county of Franklin on the-8th day of May, 1899, reversing a judgment of a justice of the peace in favor of the defendant, with notice of an intention to bring up for review upon such appeal an order bearing date the 27th day of April, 1899, directing that such judgment be reversed.

Appeal by the defendant, Thomas Coman, as sole trustee of school district No. 1 of the town of Luzerne, and Thomas Coman individually, from a judgment of the County Court of Warren county in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 11th day of April, 1899, affirming a judgment of a justice of the peace in favor of the plaintiff, with notice of an intention to bring up for review upon such appeal the order affirming such…

Appeal by Nerva G. Farlin and May Farlin, infants, by. Louis M. Brown, their special guardian, and the said Louis M. Brown, as such special guardian, from a decree of the Surrogate’s Court of Warren county, entered in said Surrogate’s Court on' the 22d day of May, 1899, adjudging that the decedent died intestate, and granting letters of administration upon her estate.

Certiorari issued out of the Supreme Court and attested on the-19th day of June, 1899, directed to William J. Morgan, as Comp-trailer of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and • singular his proceedings had relative to the revision and readjustment of the accounts for taxes of the Colonial Trust Company, assessed against it under chapter 908 of the Laws of 1896, on its capital stock for the years…

Appeal by tlie defendant, Sarah E. Henry, as superintendent of the House of Eefuge for Women, at Hudson, New York, from an order of the Supreme Court, made at the Eensselaer Special Term and entered in the office of the clerk of the county of Columbia on the 15th day of September, 1899, granting the relator’s motion that a peremptory writ of mandamus issue directed to the defendant requiring her to reinstate, recognize and restore the relator to the position of general…

Appeal by the plaintiff, Charles M. Wyman, Jr., an .infant, by Charles M. Wyman, his guardian ad litem, 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 29th day of October, 1898, upon the verdict of a jury' rendered by direction of the court after a trial at the Rensselaer Trial Term dismissing the complaint.

<p>Appeal by the plaintiffs, George W. Russell and another, as executors, etc., of William F. Russell, deceased, from a judgment of the Supreme Court in favoi* of the defendant, entered in the office of the clerk of the county of Ulster on the 14th day of April, 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 13th day of April, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover for the rent of a store from May 1, 1887, to May 1, 1896, at $130 per year, amounting to the sum of $1,180.83.</p> <p>The defense was the Statute of Limitations for part of the rent prior to June 1, 1892, and for a second defense the defendant alleged a special contract made with the plaintiffs’ testator in his lifetime, by which, in consideration of the defendant’s looking after and caring for the building, of which the store occupied.by the defendant was a part, the deceased agreed to give the defendant the use of the store without rent.</p> <p>Upon the trial the defense of the Statute of Limitations as to a part of the claim was sustained. As to the special contract alleged by the defendant, evidence was given of the performance by the defendant of services in and about the building, and also of a conversation had by one of the defendant’s witnesses with the deceased, in which the deceased stated that he had not charged the defendant rent for some years.</p> <p>In answer to this testimony, one of the plaintiffs was called as a witness and produced a book in regard to which he testified as follows : “ I found this book in the desk of William F. Russell after his death. Page one of that book is the handwriting of William F. Russell, excepting the last two items charged. The general nature of the items shown' upon that page of that book is store rent beginning April 1st, 1884, charged each year until April 1st, 1895, and then one month added on afterwards, and then there is a credit for three years, from 1884 to. 1887, in'William F.’s handwriting.”</p> <p>The defendant was then recalled as a witness and was asked the following question : “ Q. Mr. Russell, in the year 1887, the first day of April, 1887, until the time of his death, did William F. Russell ever ask or demand of you any rent ? ” This was objected to as calling for a personal transaction between the witness and William F. Russell, the deceased, under section 829 of the Code of Civil Procedure. The objection was overruled — the. plaintiff excepted, and the witness answered no.</p> <p>In the view that is taken of the case it is unnecessary to state any further facts.</p>

Appeal by the defendant, the Southern Pacific Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 7th day of March, 1899, upon the verdict of a jury, and also from an order bearing date the 20th day of February, 1899, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Erancis Riley, 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 2d day of June, 1899, upon the verdict of a jury rendered by direction of the court after a trial at the Rensselaer Trial Term. The action was brought to recover damages for the failure of the defendant, as county clerk, 'to index a notice of pendency of an action.

Appeal by the plaintiff, Elizabeth M. Fish, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 19th day of June, 1899, upon a nonsuit granted by the court after a trial at the Warren Trial Term.

Appeal by the defendant, Cansevoort De W. Hurlbut, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Albany on the 20th day of January, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of January,. 1899, denying the defendant’s motion for a new trial made upon the minutes.

<p>Bond and mortgage assigned to secure a debt — liability of the assignee who transfers ■ them, absolutely — presumption as to their mlue.</p> <p>The fact that an assignment of a bond and mortgage is absolute in form does not prevent the assignor from treating it as a pledge given to secure a loan.</p> <p>Where the pledgee executes an absolute transfer of the bond and mortgage without giving the pledgor notice or demanding repayment of the loan, and the mortgage is subsequently foreclosed and the property sold, the pledgor is entitled, without tendering to the pledgee the amount of the debt, to maintain an action against-the latter to recover the difference, if any, between the face value of the bond and mortgage and the amount of the debt for which they were pledged.</p> <p>In the absence of proof that the obligor in the bond is insolvent, the amount unpaid thereon is pi'ima facie the value of the security, although the mortgaged premises are not of that value.</p>

Appeal by the plaintiffs, George D. Harris and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Washington on the 11th day of May, 1899, upon the verdict of a jury for the sum of $180.58, and interest from. October 20, 1897, rendered by direction of the court.

Appeal by the defendant, Elizabeth H. Benedict, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the. county of Rensselaer on the 3d day of October, 1899, upon the decision of the court, rendered after a trial at the Greene Special Term overruling her demurrer to the complaint, and also from an order made at the Greene Special Term and entered in said clerk’s office on the 3d day of October, 1899, overruling…

.Appeal by James W, Coe, Alfred W. Coe, H. C, Stratton, as special guardian, and another, from that part of a decree of the Surrogate’s Court of the county of Chenango, entered in said Surrogate’s Court on the 6th day of December, 1897, which reads as follows : “ And being satisfied of the genuineness, of the will and the validity of its execution, and that the testatrix at the time of executing it was in all respects competent to make a will, and-not under any restraint,…

Appeal by the plaintiff, James F. Ryder, and by the defendants, Raney P. Coburn and others, from so much of a final judgment of the Supreme Court, entered in the office of the clerk of the county of Tompkins on the 11th day of .August, 1899, upon the decision of the court rendered after a trial at the Tompkins Special Term, and upon the report of a referee, as directs that there he paid to the defendant Patrick Wall .the sum of $306.84, expended by him for repairs and…

Appeal by James' H. Glavin, supervisin' of the town of Waterford, from an order of the Supreme Court, made at the Clinton Special Term, and… Held: and after stating that the relator (Reddish) had filed proof of the due service of said writ on Glavin on the 4th of August, 1899, and that it appeared to the court that Glavin had not obeyed the direction of the writ and had omitted to make to the court at that time and place any return to the writ’ or any excuse for such…

Motion by the defendant, Vasco P. Abbott, to dismiss an appeal from an order denying the plaintiff’s motion for a new trial made upon the minutes. The verdict of the jury was in favor of defendant, and a motion for a new trial at the same term was made by plaintiff, and was denied.

Appeal by the plaintiffs, Jacob Leonard 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 Albany on the 10th day of October, 1899, upon the decision of the court dismissing the complaint, rendered after a trial at the Albany Trial Term, the jury haying been waived.

<p>Appeal by the claimant, the Hartlot Paper Company, from a judgment of the Court of Claims in favor of the defendant, entered in the office of the Court of Claims on the 17th day of January, 1898, dismissing its claims</p> <p>The claim presented, concerning which proof was given-in the Court of Claims, was for damages alleged to have been suffered by plaintiff through the wrongful act of the agents of defendant in shutting the gates in the dam at the outlet of Skaneateles lake,'and thereby cutting off the supply of water to plaintiff’s mill, situated on the outlet of the lake and between the lake and the Erie canal. The time when such damage accrued is alleged to have been from February 1, 1894, to July 25, 1894, and again from December 2, 1894, to March 13, 1895.</p> <p>There is no opinion, and the reasons for dismissing the claim are not stated. There is some evidence that the gates were shut down, during the periods stated, and-some evidence in the case that plaintiff suffered some damage on that account, and the claim was presented within two years thereafter.</p> <p>The city of Syracuse instituted in 1892 proceedings in condemnation, which ripened into a judgment of condemnation on January 28, 1893. Commissioners were appointed, and an award was made and confirmed May 10,1894, and entered June 20,1894. The plaintiff was a party, and his rights as riparian owner to the flow of the water from the lake through the outlet were sought to he condemned in that proceeding. The plaintiff was awarded $22,000. , The city of Syracuse deposited the money, and plaintiff drew it out on July 6, 1894, and has not returned it.</p>

Appeal by the defendant, The Albany Railway,-from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of' the county of Albany on the 2d day of June, 1899, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the 2d day of June, 1899, denying the defendant’s motion for a new trial made upon the minutes.

<p> Wire insurance policy—effect of a failure to fill out a statement in the application as to the amount of incumbrances on the property. </p> <p>An application for a policy of, fire insurance, which, hy the terms of the policy,, was made a part thereof, provided ‘ ‘ The aforesaid premises are not incumbered by mortgage, or otherwise, to exceed the sum of $ ."</p> <p>The property was subsequently destroyed by fire, and in an action upon the policy it appeared that the premises were incumbered by mortgages at the time the application was made, but it did not appear whether the application was wholly in the applicant’s' handwriting or partly in print, or whether it was a- form furnished by the company or by the applicant.</p> <p>Held, that if the application were upon a ■ form furnished by the applicant, the inference from the failure to state the amount, would be that there was an incumbrance of uncertain, unknown or unstated amount;</p> <p>That if the application were upon a printed form furnished by the company, the company had no right to assume anything beyond the fact that the applicant declined to state the amount of the incumbrances;'</p> <p>That the applicant was not guilty of a fraudulent concealment of a material fact, as the company had notice of the refusal to divulge the information before it issued the policy.</p>

Appeal by the defendant, The Albany Railway, from a judgment of the Supreme Court in favor the plaintiff, entered in the office of the clerk of the' county of Albany on the 14th day of February, 1899, upon the verdict of a jury for $700, and also from an order entered in said clerk’s office on the 14th day of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Walter Rutherford, from so much of an order made by the county judge of Delaware county and entered in the office of the clerk of the cotinty of Delaware on the 22d day of August, 1899, as denied his motion to dismiss and set aside an indictment found by the grand jury of- Delaware county charging him with the crime of forgery in the second degree, in forging the name of Isaac Birdsell to a promissory note and uttering the same.

Appeal by the proponents, William W. Grey,, as executor, etc.,' of John Keefe, deceased, and others, from so much of a decree of the. Surrogate’s Court of Rensselaer county, entered in said Surrogate’s Court on the 22d day of May, 1899, as is included in paragraphs 1, 2, and 4, in words as follows : “ It is hereby adjudged and decreed: First.

Appeal by the plaintiff, Abram Frederick, from a judgment and order of the Supreme Court in favor of the. defendant P. Gardner Coffin, entered in the office of the clerk of the county of Fulton on the 17th day of April, 1899, upon the decision of the court, rendered after a trial at the Fulton Trial Term, decreeing that the defendant P. Gardner Coffin is entitled as owner to the balance due on a certain contract between the defendant the city of Johns-town and the defendant…

Appeal by the defendant, Charles Ehmke, from a judgment of the County Court of Chautauqua county in favor of the plaintiffs, entered in the office of the clerk of the county of Chautauqua on the 14th day of October, 1898, upon the verdict of a jury, with notice of an intention to bring up for review upon such appeal an order bearing ■ date the 10th day of October, 1898, denying the-defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, The People of the State of New York,, from a judgment of the County Court-of Herkimer county in favor of the defendant, entered in the office of the clerk of the'county of Herkimer on the 17th day of October, 1899, reversing a judgment in favor of the plaintiff rendered by a justice of the peace.</p>

<p>Appeal by. William E. Edmonds, as administrator, etc., of Maria Edmonds, deceased, from a decree of the Surrogate’s Court of the county of Livingston, entered in said Surrogate’s Court on the 22d day pf March, 1897, settling the accounts of the administrator of the estate of Maria Edmonds, deceased, and directing a distribution of the moneys remaining in the hands of such administrator, and also from an order entered in said Surrogate’s Court on the 7th day of December, 1896, upon the filing of the answer of William E. Edmonds to the petition and proceedings for the accounting, and upon which the said decree was founded.</p>

Appeal by the defendant, The Behrend Manufacturing Company, from an order of the.

Appeal hv Leonora Stilwell from an order óf the county judge .of Oneida county, bearing date the 3d day of- January, 1899, and entered in the office of the clerk of the county of Oneida, adjudging her guilty of contempt of court, and punishing her therefor, with notice of an intention to -bring up for review upon such appeal an order of reference granted by said county judge on December 15, 1898, directing her to appear before a referee and submit to an examination in…

Appeal by the defendant, Thomas D. Ferguson, from a judgment of the County Court of Herkimer county in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 4th day of May, 1899, affirming a judgment rendered by a justice o'! the peace.

Appeal by the defendants, Charles E. Pell 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 21st day of April, 1899, upon the decision of the court rendered after a trial at the Kings County Trial Term before the court, a jury having been waived.

'Appeal by the plaintiff, John M. Kerrigan, from so much of a judgment of the Supreme Court in favor of the defendants, Frederick W. Fielding and others, entered in the office of the clerk of the county of Kings on the 6th day of' April, 1899, lipón the decision of the court, rendered after a trial at the Kings County Special Term, as dismissed his complaint as against the defendants, Fielding, Corrigan, Jackson and Lily L. Firth.

Appeal by the defendant, The County of Queens, 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 5th' day of July, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of July, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, George Ringler & Co., 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 7th day of March, 1899, upon the verdict of a jury, 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>Appeal by the defendants, Huida Bendick and others, by Lewis S. Goebel, their guardian ad litem, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 23d day of August, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term.</p>

Appeal by the defendant, Michael Seitz, from so much of 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 10th day of July, 1899, upon the decision of the court rendered after a trial before the. court without a jury, “ as directs and decrees that all the right, -title and interest which' the defendant, Michael Seitz, had in the premises -described in the complaint herein, and…

Appeal by the defendants, William H. Kelsey 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 9th day of May, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day. of May, 1899, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, the Eiss, Doerr and Carroll'Horse 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 4th day of March, 1899, upon the verdict of a jury for $300, and , also from an order entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, George Schoonover and others, as members of and constituting the board of trustees of the village of Port Jervis, 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 Orange on the 27th day- of March, 1899, upon the decision of the court, rendered after a trial at the Orange Special Term in a certiorari proceeding, striking from the rolls an assessment against the plaintiffs…

Appeal by the defendant, Henry Livingstone, from a judgment of the County Court of. Queens county, rendered on the5th day of May, 1898, upon the verdict of a jury convicting him of the crime of larceny in the first degree.

Appeal by the plaintiff, Lonis Meyer, from a judgment of the Supreme Oourt in favor of the defendant, entered in the office of the clerk of the county of Kings on the 3d day of April, 1899, upon a nonsuit granted by the court after a trial before the court and a jury at the Kings County Trial Term.

<p>.Mechanic's lien— repairs to buildings owned by a tenant having the right to remove them — when both land and buildings are subject to the lien.</p> <p>An owner of a park entered into an agreement with, a corporation by which the latter was granted license to occupy the park for the purpose of giving exhibitions in consideration of a stipulated portion of the receipts, and was given the right to remove all buildings which it might place upon the premises. Subsequently the owner and the corporation executed a lease which recited that the corporation owned the buildings and structures in the park and by which the owner and the corporation demised to one Morgan the park and the structures thereon for the term of one year for the purpose of giving exhibitions, Morgan to pay as rent a stipulated portion of the entrance fees to the owner and another portion to the corporation.</p> <p>’The lease contained covenants by which Morgan agreed to cause the premises to be properly and sufficiently equipped at his own expense for exhibition purposes by erecting a bicycle track and its appurtenances, and that he would, if required to do so "by the owner’ánd the corporation at the termination of his. lease, remove any structures or other property which he might have placed upon the demised premises.</p> <p>Morgan constructed a bicycle track on the premises, and with the assent and by the direction of the general agent of the owner proceeded to repair and improve the buildings already upon the lands, but there was no evidencé that the corporation or any of its officers took part in such repair's.</p> <p>Held, that the owner and the corporation were both liable for mechanic’s liens-filed on account of the construction of the bicycle track and of the repairs to the buildings in the proportion which the value of the buildings''bore to the value of the land.</p> <p>Buildings erected by a lessee upon the demised premises must be considered real estate within the Mechanics’ Lien Law regardless of any agreement with the-owner that the lessee is to have the right to remove the buildings; and a- person who furnishes labor and material in their .construction or repair may acquire a lien upon the land itself as though no agreement for the removal of' the buildings existed.</p>

Appeal by the defendant, The City of New York, from a judgement of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 23d 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 6th day of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal .by the .plaintiffs, Ada N. Davenport and others, from a-judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rockland on the 24th day of September, 1898, upon the' decision of the court rendered after a. trial at the Rockland Trial Term before the court without a jury. ■

Appeal by the plaintiff, Joseph H. Oolyer, from a judgment of-the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Kings on the 6th day of April, 1899, upon the dismissal of the complaint upon the merits, by direction of the court, after a trial before the court and a jury, at the Kings County Trial Term, and also from an order entered in said- clerk’s office on the 3d day of April, 1899, denying the plaintiff’s motion for a new…

Appeal by the defendant, the Brooklyn, Queens County and Suburban 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 24th day of March, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of March, 1899, denying the defendant’s motion for a new trial made upon the minutes.

<p>¿Negligence — a fall'through an opening in a trestle left uncovered and unlighied — contributory negligence — assumption of risk — temporcM'y forgetfulness of a danger.</p> <p>In an action to recover damages resulting from the death of the plaintiff’s intestate, evidence that the defendant, a construction company, maintained an elevated trestle in which there was an opening seven feet long and four feet wide, used for dumping coal into coal bunkers, and that although it provided, planks with which to cover the opening, it did not, so far as appeared, establish or enforce any rule requiring it to be covered at night, and that on a night when it" was not covered and the trestle was insufficiently lighted the defendant placed the intestate, who was its employee, at work seven feet from the opening with the result that he fell through it and was killed, is sufficient to warrant the jury in finding that the defendant was guilty of negligence.</p> <p>The fact that the intestate worked for one day in plain sight of the opening does not establish, as a matter of law, contributory negligence on his part or show , that he voluntarily assumed the risk of the opening being left uncovered at night.</p> <p>Temporary forgetfulness by an employee of a known danger created by the negligence of his master does not necessarily bar a recovery by the employee against the master, for an injury sustained by him in consequence thereof.</p>

.Appeal by William D. Daymon, as executor, etc., of Sophia Harriott, deceased, from a decree of the Surrogate’s Court of Westchester county, entered in said Surrogate’s Court- on the 22d day of April, 1899, settling his accounts as executor, etc., of Sophia Harriott, deceased, and also from an order entered in said Surrogate’s . Court on the 15th day of May, 1899, denying his motion to set aside said decree.

Appeal by The New York Central and Hudson River Railroad ‘Company 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 29th day of May, 1899, confirming the report of commissioners appointed to assess the expense and benefits upon the various parcels of land affected by the proposed laying out and opening of Ludlow street in the city of Yonkers.

Appeal by Charles L. Mead, county treasurer of Orange county, (1) from an order of the Supreme Court, made at the Dutchess County Special Term and entered in t’he office of the clerk of the county of Orange on the 9th day of May, 1899; (2) from an order cf 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 9th day of May, 1899, and (3) from an order of the Supreme Court, made at the Dutchess…

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 Kings on the 22d day of April, 1899, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 20th day of April, 1899, denying the defendant’s motion for a new .trial made upon the minutes.

Appeal by the plaintiffs, J. Victor Wilson and Charles D. Wilson, composing the firm of Wilson Bros., 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 22d day of December, 1898, upon the verdict of a jury, rendered by direction of the court, dismissing their complaint and awarding judgment in favor of the defendant upon its counterclaim, and also from an order entered in said clerk’s office on…

Appeal by the plaintiff, Joseph Stern, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 21st day of December, 1897, upon the report of a referee, as dismissed the complaint upon the second cause of action therein alleged.

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

Appeal by William Y. Lawrence and others from an order of the County Court of Westchester county, entered in the office of the clerk of the county of Westchester on the 15th day of October, 1898, confirming the report of commissioners in the proceeding to drain lands in the town of East Chester, county of Westchester.

Appeal by the plaintiff, John A. Bennet, from so much of a judgment of the Supreme Court in favor of the defendant; entered in the office of the cleric of the county of Kings on the 8th day of August, 1898, upon the report of a referee, as adjudges “ that no single grave has been disposed of by the defendant between the 13th day of May, 1891, and the 26th day of January, 1896, the period covered by this action, and that said plaintiff is not entitled to an accounting in…

Appeal by the defendant, The City of FTew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of March, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Margaret E. Littlejohn, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Kings on the 24th day of October, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term, directing that the deed or deeds and releases executed by the plaintiff to the defendant Lucy A. L. Leffingwell and De Witt 0.

Appeal by William Y. Molloy, sheriff of Westchester county, from an order of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 16th day of September, 1899, adjudging him guilty of contempt of court, and imposing upon him a fine of $250. , ;

Appeal by the defendant, Frederick Frey, 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 June, 1899, upon the decision of the court rendered after a trial at the Kings County Trial Term before the court without a jury.

Appeal by the' petitioners, John G. Jenkins and others, from a final 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 6th day of October, 1899, confirming an assessment made in the city of Brooklyn upon the shares of stock of the First National Bank of the city of Brooklyn.

Appeal by the plaintiffs, John W. Robinson 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 Suffolk on the 6th day of March, 1899, upon the decision of the court rendered after a trial at.the Suffolk Special Term.

Appeal by the defendant, ■ The Citizens’ Electric Illuminating Company of Brooklyn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of- the county of Kings on the 12th day of April, 1899, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 14th day of April, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Edgar L. Ryder, 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 Westchester on the 7th day of December, 1899, denying his motion to change the place of trial of the action from the county of Westchester to the county of Dutchess. !

Appeal by William H. Wood, sheriff of Nassau county, from an order of the Supreme Court, made at the Kings County Special Term and entered in tire office of the clerk of the county of Nassau on the 14th day of October, 1899, adjudging him guilty of a contempt ■ of court, and imposing a fine of ten dollars for official misconduct.

Appeal by the defendants, Ellen Sullivan 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 February., 1899, upon the decision of the court, rendered after a trial* at the Kings County Special Term, vacating and setting aside a deed.

Appeal by the defendant, John B. Ireland, 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 January, 1899, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 11th day of January, 1899, denying the defendant’s motion for a new tidal made upon the minutes.

Appeal by the defendant, the New York, Westchester and Connecticut Traction Company, from an order of the Supreme Court, made at the Dutchess County Special Term, bearing date the-day of November; 1899, and entered' in the office of the clerk of the county of Westchester, continuing a preliminary injunction during the pendency of the action.

<p>Appeal by Matilda E; Starbuck, as executrix, etc., of William H. Starbuck, deceased, and individually and as claimant for a claim of debt against the estate of William H. Starbuck, deceased, from so much of a decree of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 2'Tth day of February, 1899, in a proceeding brought to settle the accounts of the executors of the last will and testament of William H. Starbuck, deceased, as adjudges and decrees that her claim for $105,950 and interest be disallowed and dismissed upon the merits, and directs said executors to pay to Edgar 3L Brown, special guardian for William Hadwen Starbuck and Ruth Starbuck, infants, the sum of $1,919 for his compensation and disbursements in the proceedings.</p>

Appeal by the plaintiff, Sophia A. Taylor, as executrix, etc., of Thomas J. Taylor, deceased, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, first district, in favor of the defendant, Frederick C. Meyer, rendered on the 27th day of October, 1899, dismissing her complaint as to said defendant.

Appeal by the plaintiff, Frank W. Angel, from so much of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 7th day of March, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term, as provides as follows : “ 1. That as to the defendant. The Methodist Protestant Church of Williamsburgh, Kings county; the complaint be and it hereby is dismissed upon the merits ; “ 2.

Appeal by the plaintiff, William C. Buhner, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 23d day of February, 1899, upon the decision of the court, rendered after a trial at the Queens County Special Term, sustaining their demurrer to the complaint.

Appeal by the defendant, the Consolidated Steel and Wire Company, 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 21st day of June, 1899, upon the decision of the court rendered: after a trial at the Queens County Trial Term before the court without a jury.

Appeal by the defendant, Jacob Cohen, 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 1st day of December, 1899, as resettled by an order entered in said blerk’s office on the 2d day of December, 1899, directing him to allow an inspection of his¡ books, by the plaintiff.

Appeal by Ada May Snedeker, as administratrix, etc., of Charles Snedeker, deceased, from an order of the Surrogate’s Court of Kings county, bearing date the 9th day of October, 1899, and entered in said Surrogate’s Court, directing her to pay to Thomas H. Snedeker a distributive share of a judgment obtained by her in an action brought by her against one George Maleom, under sections 1902-1905 of the Code of Civil Procedure, to recover damages resulting from the death of her…

Appeal by the defendant, James S. Duffy, as executor, etc., of Thomas F. Ward, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of 3STew York on the 12th day of October, 1899, upon the report of a referee. This appeal was transferred from the first department to the second department.

Appeal by the defendant, Charles C. Van Benschoten, 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, requiring the defendant to receive the plaintiff’s exceptions and notice of appeal from the referee’s report and judgment herein.

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 5th day of September, 1899, upon the verdict of a jury for $16,666, and also from an order entered in said clerk’s office on the 5th day of September, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Alfred Brink, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 20th day of January, 1898, upon the dismissal of his complaint by direction of the court after a trial before the court and a jury at the Orange Trial Term.

<p>■. Motion for a reargument or leave to appeal to the Court of Appeals. '</p>

Appeal by the American Surety Company and another from an ' order of the Surrogate’s Court of the county of Kings, entered in • said Surrogate’s Court on the 26th day of July, 1899, as resettled ■by an order entered in said Surrogate’s Court on the 3d day of November, 1899, opening á.'decree made upon a final settlement of the estate of Joseph Gall, deceased.

Appeal by the ■ plaintiff, Frank Y. Bodine, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 30th day of November, 1898, upon the verdict of a jury, and also from an order entered in said • clerk’s office as of the 22d day of April, 1897, denying the .plaintiff’s motion for a new trial made'upon the minutes.

Appeal by the plaintiff, Michael Schilling, 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 April, 1898, upon the dismissal of his complaint by direction of the court at the close of the plaintiff’s evidence after a trial, before the court and a - jury, at the New York Trial Term. ■ This appeal was transferred from the first department to the second department.'

Appeal by the defendants, William C. Bryant 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 Queens on the 11th day of July, 1899, upon the verdict of a jury for $7,000, and also from, an order entered in said clerk’s office bn the 11th day of July, 1899, denying the defendant’s motion for a new trial made upon the-minutes.

‘Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 4th day of August, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the the 1st day of August, 1899, denying the defendant’s motion for a new trial made upon the minutes.

<p>Will — when an estate in remainder, directed to he divided after ■the death of a Ufé beneficiary, vests on the testator's death — the fact that it will go to a disinherited- . son does not change the construction.</p> <p>A testator by his will gave his residuary estate to trustees with instructions to-carry on his business until the death of his father, who was to be-employed to-manage the business as long as he lived and was able-or desired to retain the position, and to whom the trustees were directed to pay §1,200 a year as long as he lived, the remaining income of the estate to be paid over to the testator’s wife, to his son, Edward E, Pfeirson, and to his grandson, William L. Peirson;. one-third to each. It further provided that the trusts created by the will were to continue until the testator’s grandson should reach ¡the age of twenliy-one years, or until the death of the testator’s father, whichever event should take place last; and that “ upon the death of my father, Edward Peirson, or upon the arrival’of my said grandson at the age of twenty-one years, whichever event shall be last, as set forth in the preceding section of said will, I direct that my whole estate he equally and equitably divided among my wife, Martha W. Peirson, my said son, Edward E. Peirson, and'my said grandson, William L. Peirson.”</p> <p>Held, that the share of the corpus of the residuary estate given to the testator’s wife vested in her at the time of the testator’s death, and was not contingent upon her surviving the termination of the trust created by the will;</p> <p>That the fact that the share which, under this construction, vested in the widow would pass under her will to a son of the testator, whom he had by his wil / declared undutiful and practically disinherited, afforded no reason for rejecting such construction.</p>

Appeal by the plaintiff, The Potter Printing Press Company, from a judgment of the Supreme Court in favor of the defendant Joseph J. Schreiner, entered in the office of the clerk of the county of Kings on the 1st day of May, 1899, upon a dismissal of the complaint by direction of the court after a trial before the court and a jury at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 31st day of May, 1899, denying the plaintiff’s motion…

Appeal by the defendant, Robert McC. Robinson, 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 19th day of April, 1899, upon the decision of the court rendered after a trial before the court without a jury.

Appeal by the defendant, Hugh De Haven, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of March, 1899, upon the verdict of a jury, .and also from an order entered in said clerk’s office on the 31st day of March, 1899, denying the defendant’s motion for a new trial made upon the minutes.

<p>Motion to resettle an order of the Appellate Division of the Supreme Court, second department.</p>

Appeal by the defendants, The Board of Education of the City of New York 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 23d day of August, 1899, continuing an in junction pendente lite.

Appeal by the defendant, The Yew York Yews Publishing Company, from an order bf the Supreme Court, made at the ■ Yew York Special Term 'and entered in the office 'of the clerk of the county of Yew York on the 8th day of Yovember, 1899-, directing a reference to hear and determine the issues in the. action,

Certiorari issued out of the Supreme Court and attested on the-20th day of December, 1898, directed to Bernard J: York and others, police commissioners of the municipal police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of NeW York all and singular the proceedings of the late trustees, of the village of Far Roclcaway, in relation .to the removal of the relator from the police - force of that village.

Appeal by Phebe M. Lewis, as executrix, creditor, 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 26th day of May, 1899, denying her motion to remove William R. Bishop, as assignee of William H. Gray, for the benefit of creditors.

<p>Principal and agent — contract to pay a percentage on contracts for advertisements secured, and “ upon-all business that followed the original contracts,” construed.</p> <p>A person employed at will by a publishing company to solicit advertisements for it, under a contract- by which it agreed to pay him “ twenty-five per centum upon the amount of all orders or contracts of advertisements, and also upon all business that followed the original contracts,”- is not entitled to1 recover commissions upon advertisements received by the publishing company, after his discharge, from customers whom he originally secured'. .</p>

Appeal by Imogene Lockwood and others, beneficiaries under the will of the above-named decedent, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s ■Court on the 27th day of July, 1899, denying probate to a paper propounded as the last will and testament of Serena D. Turell, •deceased.

Appeal by the defendant, the Bankers’ Life Insurance Company of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of April, 1899, upon the decision of the court rendered after a trial at the New York Trial Term before the court without a jury.

Appeal by the plaintiff, Irving T. Bush, from an interlocutory judgment of the Supreme Court in favor of the defendants, John O’Brien and others, entered in the office of the clerk of the county of New York on the 8th day of December, 1899, upon, the decision of the court rendered after a trial at the New York Special Term, sustaining the said defendants’ demurrer to his complaint.

Appeal by the defendant, W. & J. Sloane, from an order of the Supreme Court, made at the New York Special Term aud entered in the.office of the clerk of the county of New York on. the 22d day of November, 1899, denying its motion to set aside the verdict and judgment in the action and. for a new trial on the ground of newly-discovered evidence.

Appeal by the plaintiff, Henry A. Conolly, as surviving partner of the firm of E. D. Conolly & Sons, 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 4th day of August, 1899, upon the report of a referee ; also an appeal by the defendant, Rosalie Hyams, as executrix, etc., of Joel E. Hyams, deceased, from so much of the judgment as dismissed the plaintiff’s complaint without costs.

<p>Appeal by the plaintiffs, Russell Johnson and another, composing the firm of Johnson Brothers, 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 March, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing their complaint upon the merits as to the defendant Walter D. Haws, in two different actions.</p>

<p> Will —provision by. -which a gift to a daughter is to pass to a trustee if she returns to her husband,, sustained. </p> <p>Where a will devises to the testator’s daughter who, at the time of the making of the will and of the testator’s death, was living apart from her husband, certain real property,” to have and to hold the same to her sole and separate use and free from all control of her said husband in fee forever; provided, nevertheless, that if she should iéjoin, live with or cohabit with her said husband then the estate-herein devised and bequeathed to her shall cease and determine and become vested in my executors hereinafter appointed-, to whom I give, devise and. bequeath the same in trust, to collect the- income thereof and to pay tlie same to her during her natural life, and at her death to pay the principal thereof over to such of her children as may he living, share and share alike, to whom I give, devise and bequeath the same in fee forever,” the condition attached to the devise to the daughter is valid, its purpose being to provide for the change in the circumstances of the daughter if she should return to her husband, and not to place a premium upon the separation. Per Van Brunt, P. J., Rumsey and Barrett, JJ.</p>

Appeal by the plaintiff, Amsaa Worthington, 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 7th day of July, 1899, reversing a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of the plaintiff, entered in the office of the clerk of said Municipal Court on the 30th day of -March, 1899, and also from the -judgment of said Appellate Term, entered…

<p>Corporation — injunction to restrain a sale of the corporate property in dissolution proceedings until proper terms of sale are made and information, as to the property to he sold, is given.</p> <p>On a motion to continue a temporary injunction, granted in an action brought by a stockholder of a corporation against the corporation and its directors, restraining the sale of the corporate property in proceedings for its dissolution, it appeared that the corporation, which was organized in New York, was engaged in operating a copper mine in Arizona, and that it owned property valued at §90,000,000, the complaint alleging that the dissolution proceedings, while ostensibly intended to further a scheme to reorganize the corporation under the laws of West Virginia, were, in fact, taken to wipe out the interest in the property of certain minority stockholders.</p> <p>The terms of sale announced that the entire property of the corporation, including, in addition to the real estate, all the mining rights and buildings, the ore on the dumps and in transit, stores and supplies of every nature, pending contracts and the entire issue of the stock and bonds of a railroad company as well as bills receivable, would be sold together, and that the purchaser would be required to take the property as it existed at the time of taking possession, and to assume all contracts for supplies, etc., existing at the date of taking possession, and pay all bills' falling due on or after the day of taking possession, the purchaser to have the right to collect all amounts due to the company. The terms of sale also provided that the purchaser must, on any bid in excess of §3,000,000, at the option of the auctioneer, make a deposit of ten per cent in cash or certified checks, or a deposit of ten per cent of the shares of the capital stock of the company. The notice of the sale, together with the terms thereof, was published in an obscure place in the New York Law Journal on the 38th day of November, 1899, stating that the sale would take place on the</p> <p>. nineteenth of the following December, and no other notice of the sale was given except the mailing of the notice of sale and the terms thereof to the stockholders..</p> <p>It further appeared that the trustees of the corporation were still conducting the business of mining, making contracts and purchasing stores, and that no information was obtainable as to the pending contracts, the supplies or the ore on hand or in transit, or the obligations which the purchaser would be required to assume, and that whatever information had been asked for in this respect had been refused.</p> <p>Held, that, under the circumstances, a case was made out requiring the court to restrain the sale until such time as the terms of sale were so amended as to be unobjectionable, or until the information essential to the making of an intelligent bid for the property was made accessible to all persons desiring to bid at the sale thereof.</p>