Volume 47 — New York Supplement

Action by Philip J. Beichert against Frederick H. Reed and another for personal injuries caused by defendants’ negligence. From a judgment in favor of plaintiff, and from an order denying their motion for a new trial, defendants appeal. Reversed.

<p>Action by Theodore J. O. Thacher against the board of supervisors ■of Steuben county and others. Judgment for defendants.</p>

Action by Millie Fischer against Edward Franke. There was a judgment entered on a verdict in favor of plaintiff, from which, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by Davis Provision Company against Fowler Bros., Limited, and another. From a judgment upon the report of a referee against both defendants for $7,892.44 damages, and against defendant the Anglo-American Provision Company for $612.02, defendants appeal. Modified.

Action by the Davis Provision Company against Fowler Bros., Limited, and another. From a judgment for plaintiff upon the report of a referee, defendants appeal. Reversed. Argued before PABKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.

Action by Mark Davis, as assignee of the Davis Provision Company, against Fowler Bros., Limited, and another. From a judgment for plaintiff, on the report of a referee, defendants appeal. Modified. Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.

Action by Isaac Reiffeld against the president, managers, and company of the Delaware & Hudson Canal Company, to recover for wrongful ejectment from defendant’s train. From an order granting defendant a new trial upon newly-discovered evidence, plaintiff appeals. Reversed. Argued before PARKER, P. J., and LARDON, HERRICK, PUT-RAM, and MERWIN, JJ.

<p>1. Eminent Domain—Ownbbship op Award.</p> <p>In proceedings by a railroad company against an executor, deceased’s widow, a daughter, and a daughter’s son, to condemn land for right of way, it appeared that the farm, on testator’s death, vested, under his will, in his wife and daughter, or the survivor of them, during their lives, and upon their death, or the death of the daughter and marriage of the widow, the remainder was to vest in the daughter’s children. Held, that an order declaring such son to be the owner of the sum awarded was erroneous, since other children of the daughter might be bom, and become entitled to a share, and their possible interests should be protected in the order made.</p> <p>2.. Same—Payment into Court.</p> <p>Code, § 3358, provides that all persons having any estate, interest, or easement in the property taken, or any lien, charge, or incumbrance thereon, “shall be deemed owners.” Section 3378 provides that, if there are any adverse and conflicting claimants to the money awarded, or any part thereof, the court may direct it to be paid into court, and determine who is entitled to the same, and may direct to whom it shall be paid. Held, that the executor, not being a trustee under the will for such son, or other remainder-men that might be bom to such daughter, the award should not be paid to him, but should be paid into court, and the court should make further orders as to its ownership and investment.</p>

Action by Charles S. Clark against the Cliff Paper Company. From a judgment in favor of plaintiff entered on the verdict of a jury, and from an order denying defendant’s motion for a new trial, it appeals. Reversed. Argued before GOODRICH, P. J., and CULLER, BARTLETT, HATCH, and BRADLEY, JJ.

<p>Laying Out Highway.</p> <p>In laying out a public highway, it is not justifiable to take from private</p> <p>owners any more property than is absolutely requisite to accomplish the</p> <p>appropriate purpose of the undertaking.</p>

In the matter of the voluntary dissolution of F. X. Muller & Go., a corporation, an order was made directing distribution of the funds in the hands of the receiver appointed for the corporation; and from said order the Garvin Machine Company, R. Hoffeld & Co., and the Chicago Tip & Tire Company appeal. Reversed. Argued before HARDEST, P. J., and FOLLETT, ADAMS, GREEN, and WARD, JJ.

<p>Appeal from judgment on report of referee.</p> <p>Action by Herbert Noble, as assignee for the benefit of creditors of Sumalt & Jones, against Henry C. Euler. From a judgment in favor of defendant on report of a referee, plaintiff appeals. Affirmed.</p> <p>Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and BRADLEY, JJ.</p>

Action by William J. Lewis against Jáy A. Pease and others for partition.

Action by Norman P. Boon against Charles S. James and others to rescind a sale of land by defendants to plaintiff, and recover the purchase money paid. From a judgment of nonsuit, plaintiff appeals. Reversed. Appeal by the plaintiff from a judgment entered in Livingston county on the 24th of February, 1897, in favor of the defendants for costs after a trial at a trial term in that county, where a motion for a nonsuit was granted, based upon the following two grounds: First.

Action by John Sayer against John King and John G. McCullough, as receivers of the Lake Erie & Western Railroad Company. From a judgment for plaintiff on a verdict, and an order denying a new trial, defendants appeal. Affirmed. Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and BRADLEY, JJ.

Action by John Sayer against John King and John McCullough, receivers of the New York, Lake Erie & Western Railroad Company. Judgment for plaintiff.- From an order denying a motion for new trial on the ground that the verdict was against the weight of evidence, and on the ground of surprise and newly-discovered evidence, defendants appeal. The motion was made on a case and affidavits, by leave of court, after denial of the motion for a new trial on the minutes. Affirmed.

Petition by the Harlem River & Portchester Railroad Company for condemnation of land. From a judgment entered on the report of a referee appointed to hear and determine issues raised, Phoebe Jane Arnow and others appeal. Affirmed. Argued before VAN BRUNT, P. J., and RUM8EY, WILLIAMS, INGRAHAM, and PARKER, JJ.

<p>Appeal from trial term.</p> <p>Action by Ferdinand J. Bommer against Adam Sippel to recover money under a contract. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Affirmed.</p> <p>The substance of the complaint is as follows:</p> <p>That heretofore, and some time prior to the 2d day of December, 1895, this plaintiff was the owner of certain premises situate on Howell, Brown, and Monroe streets, in the city of Buffalo, N. Y., on which. said premises the defendant held mortgages amounting on said date to the sum of $2,430.41. That on the 2d day of December, 1895, this plaintiff, for the purpose of further seeming the said defendant for the indebtedness secured by said mortgage, conveyed said premises to said defendant, upon an agreement with said defendant, of which the following is a copy: “Whereas, Ferdinand J. Bommer, of the city of Buffalo, N. Y., is indebted to Adam Sippel, of the samé place, in the sum of twenty-four hundred and thirty dollars and forty-one cents, being for balance due him on loan secured by mortgages on lands on Howell street, and -on Brown and Monroe street, all in the city of Buffalo, N. Y., which debts are assumed and agreed to be paid by the said Ferdinand J. Bommer, and are a lien on the said lands in the hands of said Ferdinand J. Bommer. Now, to avoid an immediate foreclosure of the said mortgages and all of them, and at the same time to secure said Adam Sippel the payment of the said debt and interest, and to place the said Adam Sippel in such condition that he will not be eventually obliged to foreclose the said mortgages, the said Ferdinand J. Bommer has this day caused to be conveyed the said lands, and all of them, to said Sippel, by deed dated December 2, 1895, and recorded in Brie county clerk’s office,-, by which deed of conveyance the said lands are represented to be free and clear from all liens and charges, except a certain mortgage to the Homestead Savings and Loan Association, for the sum of $1,550.00, dated April 1st, 1895, and recorded in Brie county clerk’s office, April 8th, 1895, on which there remains now unpaid the sum of $1,400.00; and whereas the said Sippel does not release the said Ferdinand J. Bommer from liability for said debt and interest, in consideration of the premises and for the sum of one dollar each to the other in hand paid, the receipt whereof is hereby confessed and acknowledged, the said Ferdinand 3. Bommer and the said Adam Sippel agree one with the other as follows, to wit: The said Adam. Sippel agrees on his part that while the said Ferdinand 3. Bommer keeps and performs the conditions herein required to be kept and performed by him, the said Bommer, that he, the said Sippel, will hold said lands and all of them, and will not sell, mortgage, or convey same for the full period of three (3) years from the date hereof, unless, on the written request of said Bommer, and for a fair price and reasonable terms, it is by both parties hereto agreed to sell same. In case of such sale the proceeds are to be applied to the payment of the said debt and interest, and any money advanced to pay taxes or assessments by said Sippel, the overplus, if any, to be paid over to said Bommer. The said Ferdinand J. Bommer on his part agrees, in consideration as aforesaid, that, while said Sippel holds said lands unsold, he, the said Bommer, will pay said Sippel semiannual interest on said indebtedness at the rate of 6 per cent, per annum on all sums thereof from time to time unpaid, and will keep paid and discharged all taxes and assessments on said land, or any part thereof, and will continue to make weekly or monthly payments on said mortgage to said Homestead Savings and Loan Association, so as to keep said debt due said Sippel from growing, and from a foreclosure of said association mortgage. All rent from said premises shall be paid said Sippel to apply on said debt, and any payments made said Sippel, by or for said Bommer, shall be applied on said debt. In case said lands are not sold within three years from this date, then the said Adam Sippel may, on ten days’ notice in writing to said Bommer, to be served by mail at Buffalo, N. Y., sell said lands, and the whole thereof, or any part that then remains unsold, at public or private sale, on as good terms and price as he may have offered him, and apply the proceeds on the said debt and interest; and any balance of said indebtedness that may thereafter remain unpaid the said Bommer hereby agrees to pay said Sippel on demand, and, in case the said proceeds of said sale more than pays the said indebtedness and interest, the overplus shall be paid to said Bommer on demand. The agreement as above, on the part of said Sippel, to hold said lands for said period of three years, is upon the express condition that the said Bommer keeps and performs all the said conditions above expressed on his part to be performed, and in case said Bommer does not pay said interest as above provided, or does not keep up the payments on said association mortgage, and pay all taxes and assessments on said lands, then, and in that case, and after a default in the payment of said interest on said indebtedness for ninety days, or after a default of ninety days in the payment of any tax or assessment after the same or an installment of assessment becomes due and payable, or after a default of sixty days in the payment of the weekly or monthly assessments on said association mortgage, the said Sippel shall no longer be bound by and under this agreement to hold said lands or any of them, but may, on.ten days’ notice in writing, to be served on said Bommer by mail at his last known place of residence in Buffalo, N. Y., sell said lands, and apply the proceeds towards the payment of the said indebtedness to him, said Sippel, and towards the interest thereon, ■and return on demand to said Bommer any surplus that may remain after payment of said debt and interest; and, if the proceeds of said sale shall not be sufficient to pay said debt and interest in full, the said Bommer hereby agrees to pay said Sippel any balance due him on demand.” That, pursuant to said agreement, this plaintiff did, on January 6, 1896, pay to said defendant the sum of $40.21, to apply on his indebtedness to said defendant, as stated in said agreement. That this defendant, claiming that this plaintiff had defaulted in making some of the payments called for by said agreement, on or about the 17th day of March, 1896, served notice on said plaintiff that he would sell the said premises, pursuant to said agreement, on the 27th day of March, 1896. That on said last-named day said premises, and all of them, were sold at auction, subject to a first mortgage on said premises, amounting to $1,400, and subject to the taxes thereon, for the sum of $3,400, which sum was bidden by said defendant, who purchased said premises at said sale for that amount. That the amount of the indebtedness of this plaintiff to said defendant on the day of said sale was the sum of $2,436.83. That, pursuant to the terms of said agreement, the difference between the said amount and the amount of said bid, to wit, the sum of $3,400, which said difference amounts to $963.17, belongs to and is payable by said defendant to this plaintiff. That no part of said amount has been paid, although demand therefor has been duly made. Wherefore plaintiff demands judgment against defendant for the sum of $963.17, with interest thereon from March 27, 1896, besides the costs of this action.</p> <p>Argued before HARDIN, P. J., and FOLLETT, ADAMS, GREEN, and WARD, JJ.</p>

Action by Tyndale Palmer against E. P. Bailey & Co. for libel. From a judgment for plaintiff, and from an order denying plaintiff’s motion for new trial on the minutes, plaintiff appeals. Reversed. The complaint alleges that the defendant published an article on the 3d day of October, 1892, in its columns, duly set out in the complaint. The case was here upon a former appeal, and in the report thereof found in 12 App.

Action by Marie Louise Van Vleck against George H. Van Vleck. From an order allowing counsel fees and alimony, defendant appeals. Reversed. The plaintiff had agreed to pay her attorney, Norris Morey, a certain per cent, of whatever alimony she recovered of the defendant.

<p>Evidence—Opinions op Expehts—Weight.</p> <p>An expert’s testimony is to be viewed in the light of his general knowledge of the subject of the particular case, his opportunity for examination as to the facts on which he bases his opinion, and the sufficiency of the reasons he gives therefor; and his opinion is not to be given, in the decision of the case, the same effect as the direct testimony, to a fact, of a witness who has personal knowledge of it.</p>

Action by Robert W. Firth against Catherine A. C. G. Rehfeldt and others. Motion by the defendant to send the case back to the referee for resettlement on appeal. Sustained.

Action by William Dehon King and others against Eugenia A. W. Ross. Erom an order granting a motion for a bill of particulars, defendant appeals. Reversed. Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, WILLIAMS, and PATTERSON, JJ.

Action by John Conley, as administrator of the goods, chattels, and credits which were of Ann Conley, deceased, against the Albany Railway. From a judgment for plaintiff for $6,065, and from an order denying defendant’s motion for new trial, it appeals. Reversed. ' Argued before PARKER, P. J., and LANDON, PUTNAM, and MERWIN, JJ.

Action by Leonard Ames and others against the Norwich Light Company to recover balance due on contract, and action by the Norwich Light Company against Leonard Ames and others for damages for breach of the same contract. The actions were consolidated. From judgment against it, the Norwich Light Company appeals’. Beversed.

Action by Joseph Madden, an infant, by Margaret Talbut, his guardian ad litem, against Isaac Arnold, for damages for personal injuries. Plaintiff was nonsuited, and he appeals. Reversed. Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.

Action by Bruno Richter and another, as administrators of the estate of Jacob Fletcher, deceased, against the Equitable Life Assurance Society of the United States. From an order directing service of a verified bill of particulars, defendant appeals. Modified. Argued before VAN BRUNT, P. J., and RUMSEY, WILLIAMS, and INGRAHAM, JJ.

Mandamus on the relation of W. M. K. Olcott, district attorney, against the House of Refuge for Women, at Hudson. From an order denying the writ, relator appeals. Reversed.

<p>Motion for reargument, and for leave to appeal to the court of appeals. Denied.</p> <p>For former decision, see 46 N. Y. Supp. 1096.</p> <p>Reargued before VAN BRUNT, P. J., and BARRETT, RUMSEY, WILLIAMS, and PATTERSON, JJ.</p>

Action by Joseph Laux against George Gildersleeve and others. From an order denying a motion to vacate an execution, defendants appeal. Reversed. Argued before VAN BRUNT, P. J., and RUMSEY, WILLIAMS, and INGRAHAM, JJ.

Certiorari by the people on the relation of John J. Walsh against Theodore Roosevelt and others to review dismissal of relator from the police force. Dismissal set aside. Argued before VAN BRUNT, P. J., and RUMSEY, WILLIAMS, and INGRAHAM, JJ.

Action by George W. Herbert against Albert H. Gallatin and others. Prom a judgment dismissing the complaint, plaintiff appeals. Affirmed. Argued before VAN BRUNT, P. J., and RUMSEY, PATTERSON, O’BRIEN, and INGRAHAM, JJ.

<p>1. Lien of Judgment.</p> <p>IC., the owner of certain premises, executed a mortgage thereof to plaintiff in January, 1882. Thereafter, on August 9, 1882, defendant, 0., recovered a judgment against K., and filed a transcript thereof. In 1891 an action was brought to foreclose the mortgage, and a notice of pendency of action was filed. C. was made a party, and judgment was entered in January, 1892. Sale under the judgment was suspended until December, 1896, by which time K. had sold and conveyed the premises, subject to the mortgage, to a third party. Upon the question of distribution of surplus moneys, held that, as between C. and.the purchaser from IC., the former’s lien, under Code Civ. Proe. §§ 1251, 1252, expired with the expiration of 10 years from filing of the judgment roll, and all claim on the surplus was lost.</p> <p>3. Lis Pendens—Effect.</p> <p>The only effect of a notice of pendency of action is as constructive notice, from the time of filing only, to a purchaser or incumbrancer of the property affected thereby, from or against a defendant with respect to whom the notice is directed to be indexed. Code Civ. Proe. § 1671.</p>

Application by the Hay Foundry & Iron Works to punish William J. Purdy as for a contempt. From an order denying the application, petitioner appeals. Reversed. Argued before VAN BRUNT, P. J., and RUMSEY, WILLIAMS, and INGRAHAM, JJ.

<p>Certiorari by the people, on the relation of William O’Shaughnessy, to review the action of Theodore Roosevelt and others, board of police commissioners of the city of New York, in dismissing relator from the police force. Relator reinstated.</p> <p>Argued before VAN BRUNT, P. J., and RÜMSEY, WILLIAMS, and INGRAHAM, JJ.</p>

Action by George Weber against the Metropolitan Street-Railway Company. From a judgment entered on a verdict, and from an order denying motion for new trial, defendant appeals. Affirmed. Argued before VAN BRUNT, P. J., and RUMSEY, PATTERSON, . O’BRIEN, and INGRAHAM, JJ.

<p>Appeal from trial term.</p> <p>Action by Meyer Shaler against the Broadway Improvement Company. From a judgment entered on verdict of jury in favor of plaintiff, defendant appeals. Affirmed.</p> <p>Argued before VAN BRUNT, P. J., and RUMSEY, PATTERSON, O’BRIEN, and INGRAHAM, JJ.</p>

In the matter of proving the last will and testament of Elie Charlier, the children of the deceased appeal. Affirmed. Argued before VAN BRUNT, P. J., and WILLIAMS, PATTERSON, O’BRIEN, and INGRAHAM, JJ.'

<p>Appeal from trial term.</p> <p>Action by Fannie Bean Carrere against B. G. Dun and others; From a judgment dismissing plaintiff’s complaint on the merits, she appeals. Affirmed.</p> <p>Argued before VAN BRUNT, P. J., and RUMSEY, WILLIAMS, O’BRIEN, and INGRAHAM, JJ.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by the London Assurance Corporation against Joseph W. Thompson. From a judgment entered on report of referee, plaintiff appeals. Reversed.</p> <p>Argued before VAN BRUNT, P. J., and RUMSEY, PATTERSON, O’BRIEN, and INGRAHAM, JJ.</p>

<p>Appeal from special term.</p> <p>Action by Adolph Segal against William Cauldwell. From an order requiring plaintiff to give security for costs, he appeals. Affirmed.</p> <p>Argued before VAN BRUNT, P. J., and WILLIAMS, PATTERSON, O’BRIEN, and INGRAHAM, JJ.</p>

Action by the New York Life Insurance & Trust Company under the will of Mary Griffin, deceased, against Teresa Viele and others. From a judgment entered on decision of the court, Olga Felicitas Heinicke and others appeal. Affirmed. Argued before VAN BRUNT, P. J., and RUMSEY, O’BRIEN, and INGRAHAM, JJ.

<p>Appeal from order of surrogate, Saratoga county.</p> <p>Petition by the Young Men’s Christian Association of Waterford in the matter of the estate of Caroline S. Knickerbocker, deceased. Prom an order directing the executors to render an account of their proceedings, they appeal. Reversed.</p> <p>The Young Men’s Christian Association of Waterford, by its treasurer, presented its verified petition to the surrogate of Saratoga county, praying that the executors of the last will and testament of Caroline S. Knickerbocker, late of that county, deceased, render an account of their proceedings, and pay the legacy of $1,000 which the petition set forth the said testatrix did give and bequeath to the petitioner by her said last will and testament, and that a citation issue, etc.; that the will had been admitted to probate by the surrogate of said county, and letters testamentary thereon duly issued to the said executors, more than 18 months before; that the executors had sufficient assets to pay the legacy, and had not paid it; that the petitioner was a domestic corporation created by and under the statutes of this state; and that its treasurer was duly authorized by the association, etc. Upon the return of the citation, the executors filed their verified answer therein, upon information and belief, (1) denying the incorporation of the petitioner; (2) alleging “that there is no such corporate body in existence as the Young Men’s Christian Association of Waterford”; (3) “that there is no legatee in existence which can take the legacy bequeathed in said will to the Young Men’s Christian Association of Waterford, of $1,000, to be used as a building fund, and that the legacy therefore lapses, for lack of a legatee to take thereunder”; (4) “that it is doubtful whether the petitioner’s claim is valid and legal”; (5) denying “the validity and legality of petitioner’s claim,” and demanding that the petition be dismissed, under section 2722 of the Code of Civil Procedure, without prejudice to an action in behalf of the petitioner. The surrogate thereupon made an order, which, after reciting the petition and answer, and that the petitioner had presented a duly-certified copy of its articles of association or incorporation, denied the motion of the executors to dismiss, and ordered the executors to account before him upon a day named.</p> <p>Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.</p>

<p>Attorneys—Conveyances—Champerty—Evidence.</p> <p>Code Civ. Proe. § 73, provides that no attorney shall buy, or be in any manner interested in buying, a bond, note, or other thing in action, with the intent of bringing an action thereon. An attorney purchased a bond and mortgage February 16th, at 10:30 a. m., and within an hour commenced a search against the property, and drew up papers in an action on the bond, which were served on the afternoon of the same day, without previous demand for payment! He gave a note in payment of the bond, which became due May 1st following, allowing sufficient time for sale of the property covered by the mortgage if no defense should be interposed to the suit. Held, sufficient evidence of purchase with intent of bringing an action thereon.</p>

Action by Samuel W. Sprague against Elizabeth F. Griffin individually and as executrix of George Griffin, deceased, for judgment to allow on the purchase price of certain premises bought by plaintiff from defendant, on the ground of an alleged deficiency in the acreage. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Action by Edith Herrington, administratrix of John Van Campen, deceased, against Edward M. Bowman and others. From a judgment for plaintiff on report of referee, defendants appeal. Reversed. John Van Campen died on May 28, 1889, intestate, leaving his widow, Susan Van Campen, and daughter, Edith Herrington, his only next of kin. He left no creditors.

Action by Charles C. Becker against Elizabeth Becker, impleaded with others, for partition. From an adverse judgment, plaintiff appeals. Reversed. Henry G. Becker, of Columbia county, N. Y., died on or about the 14th day of August, 1881, being at the time of his death the owner in fee simple of the real estate described in the amended complaint in this action. He left a last will and testament, the second clause of which reads as follows: “Second.

Action by the Chemung Canal Bank against Benjamin N. Payne and others. From a judgment for plaintiff, defendants appeal. Affirmed. Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.

<p>1. Appealable Orders—Special Proceedings.</p> <p>An application of the attorney general under Laws 1897, c. 383, seeking to procure the examination of witnesses to obtain information as to violations of the anti-monopoly law (sections 1 and 2), is “a special proceeding,” under Code Civ. Proc. §§ 3333, 3334, defining a special proceeding as any “prosecution” other than an ordinary prosecution “for the enforcement or protection of a right, the redress or prevention of a wrong, or a punishment of a public offence”; and hence an order made in such a proceeding is appealable; under section 1356, authorizing appeals from orders in special proceedings.</p> <p>3. Constitutional Law—Judicial Powers and Functions.</p> <p>Laws 1897, c. 383, §§ 4r-8, providing that justices of the supreme court may order certain persons to give testimony to enable the attorney general to determine the propriety of a suit to enforce the anti-monopoly law (sections 1 and 2), do not impose upon the justice a function of a nonjudicial character.</p> <p>B. Witnesses—Preliminary Examination—Sufficiency of Application.</p> <p>In view of Laws 1897, c. 383, § 4, providing that in order to obtain an order for the preliminary examination of witnesses having knowledge of a violation of sections 1 to 3, prohibiting monopolies, it is necessary to comply, so far as practicable, with Code Civ. Proc. c. 9, tit. 3, art 1 (sections 870-886), requiring an affidavit of the facts upon which a court is to act ip giving an order for the examination of witnesses, before trial, which affidavit, by a rule of the supreme court, must specify the facts which show the examination is necessary; and, in view of said chapter 383 (section 5), providing that the order shall be granted if the justice is satisfied that it is necessary,—a petition for such an order is insufficient where it does not state why it is not practicable to give the names and residences of those supposed to have violated the law, nor the information upon which a belief is founded that the law was violated, or that the witnesses named had any knowledge thereof, nor any facts showing the materiality of the testimony desired.</p> <p>Landon, J., dissenting.</p>

Certiorari by the people, on the relation of John Fallon, to review the proceedings of Robert J. Wright as commissioner of correction of the city and county of New York. This is an appeal from an order made at special term, adjudging the appellant in contempt for disobeying an order of the appellate division of the supreme court requiring him to reinstate the relator, Fallon, in his office or position of warden of the city prison. Affirmed.

Action by Joseph Eaynor against Dennis Troian and James Cunningham. From a judgment and an order denying a motion for a new trial, plaintiff appeals. Affirmed as to one defendant and reversed as to the other. Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, WILLIAMS, and PATTERSON, JJ.

Action by James F. Guilfoyle against Catherine E. Pierce. From so much of an order as stays the proceedings of defendant and another pending an appeal, and permits plaintiff to perfect said appeal and stay proceedings on filing an undertaking, defendant appeals. Reversed. Argued before VAN BEUNT, P. J., and BAEEETT, EUMSEY, WILLIAMS, and PATTERSON, JJ.

<p>Appeal from trial term, Madison county.</p> <p>Action by Bradford B. Wilcox against Truman Baker and another. Sfrom a judgment for defendants, plaintiff appeals. Affirmed.</p> <p>Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.</p>

In the matter of the application of the health department of the city of New York for condemnation of certain land. From the judgment entered condemning certain property, and appointing commissioners of appraisal, Henry De Forest Weekes appeals. Affirmed. Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, WILLIAMS, and PATTERSON, JJ.

<p>Appeal from special term.</p> <p>Action by Mary Harris against Charles H. Taylor and others. From an order denying a motion to vacate or modify an order appointing a receiver of the rents, and directing him to pay such rents to the plaintiff, defendant William C. Lester appeals. Modified.</p> <p>Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, WILLIAMS, and PATTERSON, JJ.</p>

Action by Mary Rogan against Denis Mullins and others. From the judgment entered on a verdict of a jury, and from an order denying a new trial, defendants appeal. Affirmed. Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, WILLIAMS, and PATTERSON, JJ.

Action by Byron S. Cotes against Maria T. Cotes. Prom a judgment entered after a,trial at special term, plaintiff appeals. Affirmed.

Action by John P. Kaughran, as assignee for the benefit of creditors of Martin J. Connellan, against the H. B. Claflin Company. From a judgment on report of a referee, defendant appeals. Reversed. Argued before YAK BBUNT, P. J., and BABBETT, BUMSEY, WILLIAMS, and PATTEBSON, JJ.

Action by Gertrude Harper, as administratrix of John F. Harper, deceased, against the Delaware, Lackawanna & Western Railroad Company. From a judgment on a nonsuit, and from an order denying a motion on the minutes for a new trial, plaintiff appeals. Reversed. . Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.

Action by Carl M. Wallach against Charles J. Schulze and others to foreclose a mortgage. Plaintiff had judgment, and defendant Schulze appeals. Affirmed. The action was brought to foreclose a mortgage for $8,500, on premises in the city of New York. From the evidence it appears that on December 30, 1885, the defendant Wilhelmine Juch executed the mortgage in suit to certain trustees of an estate.

Action by Mary S. Stackhouse and others against John Stotenbur and another. From a judgment for plaintiffs, entered on the report of a referee, defendants appeal. Affirmed. Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.

Action by Edgar Munson against John Magee and others, as executors of George J. Magee, deceased. From a judgment for plaintiff, defendants appeal. Reversed.

Certiorari, on the relation of the Lembeck & Betz Eagle Brewing Company, to review the determination of James A. Roberts, as comptroller of the state of New York, in assessing upon the relator a business or franchise tax under Laws 1880, c. 542, and the acts amendatory and supplemental thereto, and a license tax or fee under Laws 1895, c. 240. Reversed. Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.

<p>Appeal from trial term.</p> <p>Action by Joseph Goodman against Samuel Shapira. From a judgment for defendant, plaintiff appeals. Reversed.</p> <p>Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, WILLIAMS, and PATTERSON, JJ.</p>

Action by John Martin Layman against John Anderson & Go. From an order setting aside the verdict and directing a new trial, plaintiff appeals. Affirmed. Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, WILLIAMS, and PATTERSON, JJ.

Certiorari in the name of the state, on the relation of Keppler & Sehwarzmann, against Edward P. Barker and others, commissioners of taxes and assessments of the city of New York,‘to review the decision of respondents refusing a certain reduction in taxation. From an order dismissing the writ, and from judgment awarding costs to respondents, relator appeals. Reversed. Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, WILLIAMS, and PATTERSON, JJ.

Action b3r Paul Caspers against the Dry-Dock & East Broadway Railroad Company. From a judgment dismissing the complaint after trial, plaintiff appeals. Affirmed. Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, WILLIAMS, and PATTERSON, JJ.

' Appeal from special term. In the matter of the application of the mayor and commonalty of the city of New York to acquire title to certain land. From an order appointing commissioners of estimate and assessment, the New York Central & Hudson River Railroad Company appeals. Reversed. Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, and WILLIAMS, JJ.

<p>Appeal from special term.</p> <p>Action by William M. Mayer against Edward M. Stern. Henry J, Weixelbaum petitioned to compel the receiver to pay his wages. From an order denying the application, he appeals. Reversed.</p> <p>Plaintiff and defendant had been co-partners in business. This action was brought for a dissolution of the firm, and a receiver was appointed. Petitioner alleged that he had been employed by the firm as a traveling salesman, under an agreement that he should ¡receive as wages 5 per cent, on all sales made by him, and that wages amounting to $125 were due and unpaid.</p> <p>Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, WILLIAMS, and PATTERSON, JJ.</p>

Appeal by Helen 0. McClain, as administratrix of the estate of Anna L. Knapp, deceased, from the decree of the Ulster county court on the final judicial settlement of the accounts of Alonzo Reed as committee of the person and estate of said decedent, who was a lunatic. Reversed. Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.

<p>Law of the Road.</p> <p>While a person driving a vehicle upon a public highway in advance of another vehicle is bound to use reasonable precautions, if he desires to turn from the course he is pursuing, he is not bound positively to see to it that his movements will not result in collision.</p>

Action by Richard Howell against Henry N. Henderson. From an order granting a new trial on the merits, plaintiff appeals. Affirmed. Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and BRADLEY, JJ.

Action by the Sea Beach Railway Company and the Sea Beach Land Company against the Coney Island & Gravesend Railway Company and others. From an order denying a motion to continue a preliminary injunction, plaintiffs appeal. Affirmed. Argued before GOODRICH, P. J., and CULLER, BARTLETT, HATCH, and BRADLEY, JJ.

Action by Lawrence Moffatt against Howard N. Bailey. From a judgment reversing a judgment of a justice in favor of the defendant, he appeals. Modified. One Tompkins was under contract to build a house for defendant, and wrote to the latter that Moffatt (the plaintiff) was to furnish the building materials, .and that he would like defendant to draw checks to one Meyer, Tompkins’ bondsman, by whom they would be indorsed to plaintiff.

<p>1. Equitable Jurisdiction.</p> <p>Defendant, the owner of certain premises, leased them with a covenant against assignment, but he recognized several successive assignees as his tenants, and finally one of them, to secure money borrowed, mortgaged to plaintiff personal property, and assigned the lease. Plaintiff did not actually enter, but notified defendant of his rights, and requested notice of any default in payment of rent. Subsequently there was a default by a tenant in possession under plaintiff’s assignor, whose removal defendant at once secured in summary proceedings, the unexpired balance of the term then exceeding five years; but plaintiff was not notified for three months, when he at once made a full tender, which defendant refused. Held, that plaintiff might maintain an action in equity to establish his rights.</p> <p>2. Costs—Extra Allowance.</p> <p>Where the subject-matter involved is the right of possession of property for a term of years subject to the rent reserved, and no proof is given of the money value of that right, no basis exists for the computation of an extra allowance.</p> <p>8. Review op Extra Allowance.</p> <p>Though a decision grants an extra allowance for which there is no basis, if the judgment does not Show that the costs include such allowance, and there is no order granting it, there is no basis for modifying the judgment in that respect.</p> <p>Ingraham, J., dissenting.</p>

Action by Nathan 0. Smith against Lyman J. Smith and another. From a judgment for plaintiff, and an order denying a nonsuit and portions of an order for a readjustment of costs, defendants appeal, and plaintiff appeals from other portions of the order for readjustment. Modified. Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.

<p>Appeal from special term, Schuyler county.</p> <p>Suit by Lee B. Webb against Robert Bell and others to restrain the payment of certain moneys. From judgment in favor of plaintiff, defendants appeal. Affirmed.</p> <p>By the judgment appealed from, the defendant Tucker, as supervisor, etc., and his successors in office, were restrained from paying over any moneys or delivering any order to the defendant Bell upon a claim alleged to have been audited to Bell by the board of town auditors of the town of Orange on or about November 6, 1896, for the sum of $285.15.</p> <p>Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.</p>

Action by Patrick Campbell against the North American Brewing Company. Prom a judgment in favor of plaintiff for $8,000, and from an order denying a motion for new trial, defendant appeals. Modified. Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and BRADLEY, JJ.

Action by Georgia L. Everett against Edward Everett. From a judgment entered denying motion of defendant, who had appeared specially, to vacate and set aside the order for publication of the summons herein, and from an order denying defendant’s motion for extension of time within which to appear and move or plead, defendant appeals. Affirmed on one motion, and reversed on the other. Argued before GOODRICH, P. J;, and CULLEN, BARTLETT, HATCH, and BRADLEY, JJ.

Action by J. 8. Glen Edwards against defendants George M. Ford and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Action by Clarence Andrews against Robert W. De Forest and others. There was a verdict for plaintiff, and defendants moved for a new trial, on exceptions which were ordered to be heard at the first instance in the appellate division. Exceptions sustained. Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, WILLIAMS, and PATTERSON, JJ.

<p>Practice—-Note oe Issue—Notice of Trial.</p> <p>Where notice of trial was given for a term for which no note of issue was filed, plaintiff was not'entitled to an order authorizing a note of issue to be • filed nunc pro tunc.</p> <p>Action by the National Carbonating Company against the Standard Aerating Company. Motion by plaintiff for authority to file note of issue nunc pro tunc. Denied.</p>

<p>Costs—Extra Allowance.</p> <p>Plaintiff’s attorney had a contingent interest in a judgment that was dangerously near being excessive. The case belonged to a common class, and there was no troublesome question of law involved. Nothing unusual was required in its preparation, though it took two or three days to try it. Held, no extra allowance of costs should be given.</p>

Action by John V. McMahon against the mayor, aldermen, etc., of the city of New York. Plaintiff had judgment, from which, and from an order denying a new trial on the minutes, defendant appeals. Affirmed. Argued before VAN BBUNT, P. J., and BABBETT, BUMSEY, WILLIAMS, and PATTEBSON, JJ.

Certiorari in the name of the people, on the relation of the Bronx Gas & Electric Company, against Edward P. Barker and others, commissioners of taxes and assessments. The writ was quashed, and relator appeals. Reversed. Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, WILLIAMS, and PATTERSON, JJ.

Certiorari, on the relation of Alfred Guibord, president, etc., and others, trustees, of the village of Plattsburg, and another, against S. A. Kellogg, justice of the supreme court. Quashed. Argued before PARKER, P. J., and LAHDOH, HERRICK, PUT-HAM, and MERWIH, JJ.

Action by the town of Palatine against the New York Central & Hudson River Railroad Company. From an order overruling a demurrer to the complaint, defendant appeals. Affirmed.

In the matter of the general assignment of Henry-B. Mms and H. Miles Ninas for the benefit of creditors. Beverly Young petitioned that the assignee be required to render an account, and from an order granting the petition the assignee appeals. Affirmed. On December 27,1895, the assignors above named made a general assignment for the benefit of their creditors to Silliman, who accepted the trust, and entered upon the duties thereof.

<p>1. Municipal Corporations—Defective Sidewalks—Negligence.</p> <p>Where water dripping from eaves upon the sidewalk, and freezing there, formed a ridge of ice several inches high, upon which defendant slipped and was injured, the question whether the city was negligent in allowing it to accumulate for several days without removing it was for the jury.</p> <p>3. Same—Contributory Negligence.</p> <p>In an action for personal injuries, the question whether plaintiff was free from contributory negligence is for the jury.</p>

<p>Appeal from trial term, Rensselaer county.</p> <p>Action by John I. Hunt, administrator of Chester A. Arthur Hunt, against the Fitchburg Railroad Company, for death of plaintiff’s intestate, a boy, who, while riding with another person and at his invitation, was killed at a crossing by a train on defendant’s road. From a judgment on a verdict for plaintiff of $3,500, and an order denying a new trial, defendant appeals. Reversed.</p> <p>Argued before PARKER, P. J., and LARDON, HERRICK, PUTNAM, and MERWIN, JJ.</p>

<p>Judgment by Confession—Sufficiency of Statement.</p> <p>A statement for judgment by confession, alleging that prior to a certain date defendant was indebted to plaintiff’s assignor • for money loaned him by her, and for interest accrued thereon; that on such date they settled and adjusted the amount due, and fixed it at a certain sum, for which defendant gave his note, bearing date of that day, and payable to the assignor’s order, with interest; and that prior to the confession such note had been, for value, transferred by the assignor to plaintiff, a copy of the note being set forth,—was sufficient.</p>

Action by Mary C. Hewett to foreclose a mortgage executed by Simeon K. Hewett, in which Nicholas Suits is impleaded as a subsequent lienholder. From a judgment for defendant Suits, plaintiff appeals. Beversed. On September 11, 1886, the defendant Simeon K. Hewett executed and delivered to Joseph H. Jones his bond, dated on that day, secured by a mortgage, executed by himself alone, upon the premises described in the complaint.

<p>Savings Banks—Fraud of Officers—Liability fob Deposits.</p> <p>The by-laws of a bank provided that all money should be deposited in its name, -and all deposits should be entered in a book of the corporation, and a duplicate furnished each depositor, which should be his or her voucher, and evidence of property in such institution, and that the depositor should be bound by the by-laws and rules of the corporation on receiving a book in which the same were printed. Held, that plaintiff, having had due notice of these by-laws, which were printed in the deposit book which he held, could not recover for money deposited with the bank’s treasurer, where plaintiff had changed his regular deposit book for one which did not bear the. bank’s name or its by-laws, but bore the name of a bank doing business in the same room, upon a representation by the treasurer, who was also cashier of such other bank, that a greater rate of interest would be paid; the money never having been received by -the bank or credited on its books, but having been converted by the treasurer.</p>

Action by William A. Walrath against Amos Klock. From an order denying plaintiff's motion to dismiss an appeal from a judgment rendered before a justice, and from an order allowing defendant to amend the notice of appeal and the undertaking given to perfect the same, plaintiff appeals. Modified. Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.

<p>1. Pledge—Illegal Sale oe Collateral.</p> <p>If the holder of a note, with other notes as collateral, sells the latter at auction, and becomes himself, or by his agent, the purchaser thereof, without the consent of the maker of the principal note, the sale is a nullity, and the rights of the parties are the same as before the sale.</p> <p>2. Action on Note—Trial—Limit of Recovery.</p> <p>In an action on a note it appeared that the plaintiff had sold a portion of the collateral at auction, becoming himself the purchaser, and, crediting the maker with the proceeds thereof as a payment on the note, had brought suit for the residue. The sale was declared a nullity at defendant’s request. Held, that plaintiff could recover the full amount of the note, and not merely the amount of the residue set forth in the complaint.</p> <p>3. Same—Interest Collected on Collateral.</p> <p>In an action on a note given in place of a former note for a larger amount, if the payee, previous to such substitution, has collected interest from the collateral securing the former note, it will be presumed that the maker was duly credited therefor in the adjustment, resulting in the issue of the new note.</p>

Action by John Cowenhoven against Annie Pfiuger and others. From a judgment and an order denying a motion for a new trial, defendants appeal. Affirmed. Argiied before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and BRADLEY, JJ.

<p>Insurance Agent—Powers.</p> <p>Mere general authority was conferred upon an agent of a fire Lloyds to issue policies and contracts of reinsurance in any cases where another Lloyds of which he was a member had a similar amount of insurance on the same risk. Held, that this did not empower him to reinsure his own association upon a risk which it had outstanding.</p>

Action by John J. Sheldon, as administrator of the estate of Mary E. Sheldon, deceased, against Rufus Heaton. From a judgment in favor of defendant, and an order denying a motion on the minutes-for a new trial, plaintiff appeals. Affirmed. The action was commenced on the 9th of May, 1893, and is based upon an instrument of which the following is a copy: ‘‘$300. Rec’cL of Mrs. M. M. Sheldon three hundred dollars on deposit. R. Heaton.

<p>Proceeding by John McCarthy, executor of the estate of Thomas McCarthy, Sr., deceased, to compel discovery of assets of said estate. Dismissed.</p>

<p>Action by John T. Allaire against Max A. Kreilsheimer and Moses ICalfon.</p>

<p>Action by Jacob Brenner and others, as executors, etc., against Alice McMahon, impleaded, etc.</p>

<p>Action by the Central National Bank of the City of New York against the Bennett Manufacturing Corporation.</p>

<p>Action by William L. Carbin against Frank T. Morrill.</p>

In the matter of tire application of the board of street opening and improvement in the city of New York to acquire title to St. Joseph street. Petition of William F. Brugman.

<p>Action by the city of Johnstown against Andrew J. Rogers, impleaded with Maggie Rogers and others.</p>

<p>Action by James Olothier, Jr., against Isaac A. Aldrich and others.</p>

<p>Action by the Commercial Bank and Menzo Van Voorhis against Catherine Bolton and Frederick A. Sherwood, impleaded, etc.</p>

<p>Action by the Colonial City Traction Company against the Ulster & Delaware Railroad Company.</p>

<p>Action by Patrick Cunningham against the Syracuse Improvement Company.</p>

<p>In the matter of Daniel L. Dowd.</p>

<p>Action by George G. Kenyon against Willard E. Hookway.</p>

<p>Action by Frederick Kuntz against the village of Charlotte.</p>

<p>Action by Thomas E. Lawrence against Gustave A. Schaefer.</p>

<p>Action by David D. Lent, as receiver, and another, against Henry D. Shear and others.</p>

<p>Action by the London Assurance Corporation against William B. Dinsmore.</p>

<p>Action by the London Assurance Corporation against Horatio C. King.</p>

<p>Action by the London"Assurance Corporation against Walter Selvage.</p>

<p>Action by Bernard F. Martin against David Gold-stein.</p>

<p>Action by Edward H. Murphy against Henry L. Davis, as guardian, etc.</p>

<p>Action by Margaret Myers against Daniel J. Gaffey.</p>

<p>Action by Sarah O’Dwyer against Thomas J. O’Brien.</p>

<p>Action by the people of the state of New York against the Commercial Alliance Insurance Company. Action by Sophia De Cordova against William T. Gilbert, as receiver.</p>

<p>Action by John N. Renninger against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Charles H. Reynolds against Katherine Reynolds.</p>

<p>Action by Ellen Shore against the Brooklyn Elevated Railroad Company.</p>

<p>Action by James A. Simmons and others against the Ocean Causeway of Lawrence, Long'Island.</p>

<p>Action by Jacob Smith against John King and another, as receivers, etc.</p>

<p>Action by Benjamin G. Strong against John H. Sutphin, as county clerk of Queens county.</p>

<p>Action by Joseph L. Swan against the Mutual Reserve Fund Life Association.</p>

<p>Action by John Wemple against John J. Hawenstein.</p>

<p>Action by Samuel Wells against the city of Brooklyn.</p>