Volume 48 — New York Appellate Division Reports

Appeal by the defendants, Martha Campbell and others, as executors, etc., of William Campbell, deceased, and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 10th day May, 1899, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, The City of New York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of November, 1899, upon the decision of the court rendered after a trial at the New York Special Term overruling said defendant’s demurrer to the complaint.

Appeal by the defendant, The Brush Electric Illuminating Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of August, 1899, upon the report of a referee.

Submission of a controversy upon an agreed statement of facts, pursuant to section 1219 of the Code of Civil Procedure. The statement of facts which the parties agreed to submit to the court for the determination of their controversy is as follows : “ First. That the plaintiff is a domestic corporation, duly incorporated and existing under the laws of the State of New York, located and doing business in the city of New York. “ Second.

Appeal by the defendant, James D. Hallen, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York in favor of the plaintiff, rendered on the 5th day of January, 1899, convicting him of the crime of forgery in the first degree.

<p>Appeal by the plaintiff, William E. Hawkins, from a judgment of the Supreme Court in favor of the defendant Campbell, entered in the office of the clerk of the county of New York on the 12tli 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 12th day of June, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Edouard T. Mostert, 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 December, 1899, denying his motion for a bill of particulars.

Appeal by the plaintiff, the Fruin-Bambrick Construction 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 February, 1899, denying its motion for a bill of particulars of the counterclaim set forth in the defendant’s answer.

Appeal by the plaintiffs, John Wanamaker and others, from a judgment of the Supreme Courtdn favor of the defendant, entered in the office of the clerk of the county of New York on the 6th day of June, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of June, 1899, denying the plaintiffs’ motion for a new trial made upon the minutes.

Appeal By tire defendant, the Metropolitan Street Railway Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of November, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, overruling its demurrer to the complaint.

Appeal by the defendant, James J. O’Brien, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York in favor of the plaintiff, rendered on the 19th day of June, 1899, convicting him of the crime of assault in the third degree, and also from an order denying the defendant’s motion for a new trial.

Appeal by the defendant, John J. Scannell, as fire commissioner 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 Hew York on the 14th day of June, 1899, granting a writ of peremptory mandamus, commanding the defendant to restore the relator to duty in the fire department, and to take such action as might be necessary to pay the salary of the relator from the 1st day of…

Appeal by the plaintiff, Harris P. Osterhoudt, from so much of 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 26th day of July, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, as reads as follows : “ It is further adjudged that the custody of Mary Osterhoudt and.Gretchen Osterhoudt, the children of said marriage, is hereby awarded to the defendant, Ella…

Appeal by the contestants, Grace Lawrence and another, two of the next of kin and heirs at law of De Witt C, Lawrence, deceased, from so much, of a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate's Court on the 24th day of May, 1899, as adjudges as follows : “ Ordered, adjudged and decreed, that the aforesaid objections to the probate be, and the same hereby are, dismissed, as unproved and unsnstained; and it is further “ Ordered, that…

Appeal by the contestants, Susie Scott Hall and another, from a decree of the Surrogate’s CcSurtof the county of Hew York, entered in said Surrogate’s Court on the 4th day of March, 1899, admitting to probate a paper purporting to be the last will and testament of Henry A. Hurlbut, deceased.

Appeal by the plaintiff, Richard D. Harris, from an order of the Supreme Qourt, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of January, 1900, committing him for contempt of court for a failure to comply with the judgment of the court, directing him to pay to the defendant Elizabeth 0. Walker, as administratrix, etc., of' Thomas M. Wheeler, deceased, a sum of money therein named.

Appeal by the plaintiffs, Philip H. Abbott and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk.of the county of New York on the 17th day of November, 1899, allowing the defendant to serve an amended answer.

Appeal by the defendants, Rosa Enoch and another, from a judgment of 'the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of October, 1899, upon the decision of the court rendered after a trial at the New York Special Term.

<p> Negligence—fall while stepping from, a street car—a verdict for the plaintiff set aside as against the evidence. </p> <p>In an action brought to recover damages for personal injuries, the plaintiff testified that she was a passenger upon one of the defendant’s street cars ; that she had informed the conductor that she wished a transfer at a certain street through which another street railroad ran; that the car stopped across, the street in question, and that while the plaintiff was in the act of alighting the .car was started upon the signal of the conductor, and the plaintiff was thrown to the ground, sustaining the injuries complained of. There was no evidence that the conductor was not attending to his duty, or that there was anything to distract his attention. The plaintiff’s testimony, which was uncorroborated, was contradicted by five witnesses, three of whom were, disinterested, who testified that the plaintiff fell in attempting to step from the car while it was moving.</p> <p>Held, that, considering the nature of the defendant’s evidence, and the improbability of the plaintiff’s story, a verdict in her favor should Be set aside.</p>

Appeal by the plaintiffs, Charles Doll and another, from a final judgment* of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rew York on the 12th day of August, 1898, upon the decision , of the court rendered after a trial at the Rew York Special Term.

Appeal by the defendant, the Metropolitan Street Railway Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 28tli day of June, 1899, setting aside the vérdict of a jury in favor’ of the plaintiff for six cents, and granting a new trial.

Certiorari issued out of the Supreme Court and- attested on the 3d day of May, 1899, directed to Thomas J. Brady, commissioner of' buildings of the city of Hew -York for the boroughs of Manhattan and The Bronx, commanding him to certify and return to the office of the clerk of the county pf Hew York all and singular his proceedings in dismissing the relator from the position of inspector of buildings.

Appeal by the relator, Robert McDonald, 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 1st day of May, 1899, denying his motion for a writ of mandamus.

Appeal by the defendants, Harry McNally 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 New York on the. 28th day of September, 1899, upon the decision of the court rendered after a trial at the New York Special Term. The action was brought to foreclose a mechanic’s lien and to recover the contract price of certain building materials.

Appeal by the plaintiff, Therese D. Browning, 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 14th day of March, 1899, upon the dismissal of her complaint by direction of the court, at the close of her case, after a trial before the court and a jury at the New York Trial Term. '

<p>Appeal by the plaintiff, Tyler Brigham, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 26tli day of October, 1899, denying his motion for a discovery and inspection of the defendants’ books of account.</p>

Appeal by the plaintiff, the Central Trust Company of New York, as trustee, and by the defendant, the West India Improvement Company, from a judgment of the Supreme Court in favor of the defendants, the Manhattan Trust Company and others, entered in the office of the clerk of the county of New York on the 16th. day of March, 1898, upon the report of a- referee, and also an appeal by the plaintiff from an order entered in said clerk’s office on the 21st day of March, 1898,…

Appeal by the defendant, The S’tandard.Structural Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 29th day of November, 1899, placing the cause upon the preferred calendar for trial.

Appeal by the defendant, George B. .'Williams, from a judgment of the Supreme Oourt in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of July, 1899, upon the verdict of a jury rendered by direction of the court, and also from an order bearing date the 30th day of June, 1899, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Julius Strauss and others, from án 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 24th day of November, 1899, denying the defendants’ motion for a retaxation of the costs.

Appeal by the relator, Obed Paddock,- 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 13th day of December, 1899, dismissing writs of habeas corpus and certiorari sued out by him and remanding him to the custody of the keeper of the city prison.

<p> Illegal voting—who is kept at an institution supported at public expense so that he does not gain a residence. </p> <p>A person permitted to remain in Bellevue Hospital, which is supported at the public expense, during the pleasure of the superintendent of the institution, who has no authority to employ unpaid help, under an arrangement by which such person is to get his board and lodging and an occasional suit of dead men’s clothes, and is required t.o work as directed, is “kept” in the hospital within the meaning of section 3 of article 2 of the Constitution of the State of New York, which provides that no person shall be deemed to have gained or lost a residence “ while kept at any almshouse, or other asylum, or institution wholly or partly supported at public expense.”</p> <p>Evidence that a person staying at the hospital under such an arrangement . registered and voted in the district in which the hospital was situated, having no other residence in that district, is sufficient to require the submission to a grand and a petit jury of the question whether he was guilty of the offense of false registration and illegal voting specified in sections 41a and 41m of the Penal Code.</p>

<p>Negligence — rear end collision—presumption as to the conductor's knowledge of the rules—charge as to his duty to obey them and as to his being a careful man of long service — duty of the conductor to instruct the flagman.</p> <p>The rules of a railroad company provided that whenever a train .should be required to stop between stations, the flagman should immediately go back a distance of half a mile and display a danger signal, placing three torpedoes at intervals on the track, and that conductors and engineers were required to cany out such instructions and would he held strictly responsible for their enforcement. In an action brought against the railroad company, to recover damages resulting from the death of a conductor in consequence of a" train having run into the rear end of his train shortly after it had been stopped .between stations, the court refused to charge that it was the conductor’s duty “to observe and obey the rules prescribed by the defendant relating to the movement and management of his train. It was his duty, when his train was stopped ..on the morning of October 3d, 1896, before reaching East Stroudsburgli station, t-6 see that his flagman went hack, as required by the defendant’s rules, with flag and torpedoes, to warn any train that might be approaching. If he failed or • neglected to observe this duty, and Ms failure or neglect contributed to the collision which resulted in his death, the plaintiff cannot recover.”</p> <p>Held, that such refusal was,erroneous, as, although there was no conclusive proof that the deceased conductor knew of the rules, it appeared that they were printed upon the backs of the timetables, and that whenever a new timetable was issued copies were distributed to all the conductors, and that this course was followed with reference to the timetable in force at the date of the accident— from which a presumption arose that the conductor had knowledge of . the rules, and that this rule was binding upon the deceased, and determined the measure of care which he was required to exercise under the circumstances;</p> <p>That it was also error for the court to charge that, in determining whether the deceased conductor was negligent or failed to discharge his duty, the jury might consider the testimony of the conductor of the colliding train, that the deceased was a careful man, and also the long period of the latter's employment by the company;</p> <p>That the fact that the flagman who, so far as appeared, had no knowledge of •* the rules, went back a distance of 300 feet, but did not place any torpedoes on the track, although he had ample time to comply with the rules, did not relieve the deceased conductor from the imputation of contributory negligence if he neglected to send the flagman upon his mission with proper instructions as to what he should do, and with proper materials with which to do it.</p>

Appeal by John Kelly, cousin of William Murphy, deceased, one of the heirs at law and next of bin of said William Murphy, from a decree of the Surrogate’s Court of the county of Mew York, entered in said Surrogate’s Court on the 6th day of M ovember, 1899, admitting to probate a paper propounded as the last will and testament of the said William Murphy.

Appeal by the plaintiff, John Podmore, as administrator, etc., of Annie Podmore, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 21st day of June, 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 July, 1899, denying the plaintiff s motion for a new trial made upon the minutes.

Appeal by Eugene Southack and another from that portion of 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., settling the account of the Central Trust Company of New York, as substituted trustee under the last will and testament of.

<p>Renewal of a motion — application to be relieved from an order because taken ■ “ through mistake, inadvertence, surprise or excusable neglect.”</p> <p>A motion based upon an order to show cause why the moving party should not be relieved from an' order on the ground that the same “was taken against him through mistake, inadvertence; surprise or excusable neglect, and why said order should not be vacated and set aside and the application herein made by the applicants be denied,”'is not an application for á rehearing or a reargument of the motion on which the order was granted, but is, in part, an independent proceeding, maintainable under section 724 of the Code of Civil Procedure, without previous leave of the court.</p> <p>It seems, that leave to renew a motion need not be granted by the judge who heard the original application.</p>

Appeal by the defendant, Henry Fritz, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day- of June, 1899, upon the verdict off a jury, and also from an order entered in said -clerk’s office on the 29th day of July, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Thomas Tyng, 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 28th day of November, 1899, upon the dismissal of his complaint by direction of the court after a trial before the court and a jury at the New York Trial Term.

Appeal by the defendant, The Pennsylvania Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of April, 1899, upon the verdict of a jury for $1,000, 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 relator, The Manhattan Railway Company, from a final order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of October, 1899, quashing a writ of certiorari and affirming the reassessment made by the respondents for the purposes of taxation against the property of the relator.

Appeal by the plaintiff, John II. Spellman, as receiver of The Muehlfeld & Haynes Piano 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 15th day of November, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office bn the 26th day of October, 1898, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John H. Spellman, as receiver of The Muehlfeld & Haynes Piano 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 15th day of Novemher, 1898, 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.

<p>Reply to an answer —not required in orden• to relieve the defendant from proving the' facts.</p> <p>In an action in which the plaintiff claimed to he entitled, hy an assignment from Stewart & Bros., the plaintiffs in another suit, to the sum collected on a judgment recovered therein, the answer stated that the suit in which the judgment was recovered was brought under an agreement by which the. attorney for the plaintiffs therein, one Stedwell, was to receive fifty per cent of the recovery as his compensation; that Stedwell, during his lifetime, and after Stedwell’s decease, his executrix, by the defendant De Zavala, who, at the time the judgment was recovered was the attorney of record, prosecuted the action to judgment, and that the defendants were entitled to retain one-half of the recovery as the compensation of Stedwell and his representatives, and that the other half belonged to Stewart & Bros., which the defendants were ready and willing to -pay, and that the- plaintiff had knowledge at or prior to the assignment to him of all the foregoing facts and of the Stedwell agreement.</p> <p>Meld, that the defendants were not'entitled to an order requiring the plaintiff to serve a reply to the new matter contained in the answer.</p> <p>A reply to new matter-will not be directed where the purpose sought is to relieve the defendant from the necessity of proving the facts which he sets up in his answer as a defense by way of avoidance.</p>

Appeal by the defendant, the New York News Publishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on ‘ the 18th day of November, 1899, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 4th day of November, 1899, denying the defendant’s motion for a new trial made upon the minutes. •

Appeal by Patrick J. Monahan from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of July, 1899, revoking and canceling a liquor tax certificate theretofore issued to him.

Appeal by the plaintiffs, Joseph W. Oody and another, copartners under the firm name of Joseph W. Oody & Co., 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 28th day of July, 1899, upon the report of a referee.

Appeal by the plaintiff, William G. Tracy, as temporary receiver of Sweet’s Manufacturing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 4th day of August, 1899, upon the report of a referee.

Appeal by the plaintiff, Arthur E. Stevenson,' from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 10th day of May, 1899, upon a nonsuit granted by the court after a trial at the Erie Trial Term, and also from an order entered in said clerk’s office on the 8th day of August, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, David F. Reiman, from a judgment of the Municipal Court of Buffalo in favor of the plaintiffs, rendered on the 28th day of June, 1899, upon the decision of the court.

Appeal by the plaintiff, Mary L. N. Thornton, from a judgment of the County Court of Livingston county in favor of the defendant, rendered on the 8th day of May, 1899, and entered in the office of the clerk of the county- of Livingston upon the decision of the court reversing a judgment rendered by a justice of the peace in favor of the plaintiff. The action was commenced in December, 1898, in Justice’s Court.

Appeal by the plaintiff, Miles J. Hawley, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Chautauqua on the 22d day of Uovemher, 1898, upon the report of a referee.

Appeal by Morgan & Wright, judgment creditors of the defendant, from so much of an order of the Supreme Court, made at the Erie Special Term and -entered in the office of the clerk of the county of Erie on the 18th day of October, 1899, as holds and decides that Edward P. Beals, Pascal P. Beals and William R. Gass, judgment creditors, whose execution was issued on July 2, 1898, upon a judgment for $110.80 damages and costs recovered in favor of said Edward P. Beals and…

Appeal by the defendant, John Boyd Thacher, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 20th day of November, 1899, upon the decision of the court rendered after a trial at the Greene Special Term overruling his demurrer to the complaint, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 20th day of November,…

<p>Libelous newspaper publication—exhibiting to the jury and discussing a picture in reply to a rema/rk “ you point out one degrading one” — it is not a ground for reversal on appeal.</p> <p>Where, in an action of libel, based upon a newspaper publication,'the plaintiff’s counsel refers to the defendant’s newspaper as containing pictures of a degrading character, and, upon the defendant’s counsel remarking “you point out one degrading one,” exhibits to the jury a copy of the newspaper which has been offered in evidence; and discusses the pictures appearing therein, the refusal of the court to allow the defendant’s counsel to withdraw a juror because of such discussion, will not be disturbed upon appeal.</p>

■ Appeal by the plaintiffs, Emily E. Dunham and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Chemung on the 9th day of March, 1898, upon the report of a referee dismissing the complaint.

Appeal by the defendant, The American Rubber Tire Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Madison on the 17th day of December, 1898, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendants, Mary A. Wamsley and Anna M. Yan Steenburgh,. as executors, etc., of Perry Wamsley, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 31st day of August, 1899, for the sum of $469.37, upon the report of a referee upon a claim against the estate of Perry Wamsley, deceased, presented by the plaintiff to the defendants, disputed by them and referred in pursuance…

Appeal by the defendant, .The Press Company, 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 30th day of June, 1899, directing that the defendant, The Press Company, its officers, agents and employes, produce and discover to the plaintiff and his duly authorized agent the day book, journal, ledger and minute book of said company used by said company for the entry of its business…

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court, in favor of the plaintiff and of the defendant, the County of Nassau, entered in the office of the clerk of the county of Albany on the 16th day of September, 1899, upon the report of a. referee, and from an. order of the Supreme ’Court, made at the Albany Special Term, bearing date the 9th day of September, 1899, and' entered in said clerk’s office, confirming said report.

Appeal by the defendant, The Powell Medicine Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Essex on the 1st day of .April, 1899, upon the report of a referee, for $6,111.22, damages and costs.

Appeal by the defendant, Reuben H. Carpenter, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk Of the county of Tompkins on the 23d day of May, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of October, 1899, deny-' ing the defendant’s motion for a new trial made upon, the minutes.

Appeal by the plaintiff, Julia F. Soper, as administratrix, etc., of Frederick L. Soper, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 16th day of March, 1899, upon the dismissal of her complaint by direction of the court after a trial at the Washington Trial Term.

<p>Appeal by the claimant, Forest G-. Weeks, from a judgment, of the Court of Claims in favor of the defendant, entered in the office of the clerk of that court on or about the 20th day of March, 1899, except the part thereof adjudging that the plaintiff recover of the State of Mew York his costs on an appeal to the Appellate Division from a previous award therein.</p> <p>The grounds of the appeal, as stated in the notice of appeal, are “that the judgment for damages rendered in said claim is insufficient, and contrary to law and the evidence, and that incompetent, irrelevant and immaterial evidence was received and considered by said court on the trial of said claim on the subject of damages.”</p> <p>This claim is for damages alleged to have been sustained by the claimant, the owner of two paper mills located on the outlet of Skaneateles lake, in consequence of the State of Mew York having wrongfully withheld the water from such outlet- '</p>

Appeal by the defendant, Jerry S. Bussey, from a judgment of the County Court of Sullivan county in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 9tli day of October, 1899, reversing a judgment of a justice of the peace in favor of the defendant, entered upon the verdict of a jury.

Appeal by the defendants, Joseph B. Wheeler and another, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of Montgomery on the 25th day of November, 1899, denying the defendants’ motion to change the place of trial of the above-entitled action from the county of Montgomery to the county of Broome.

Appeal by the plaintiff, Nellie L. Carpenter, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ulster on the 31st day of May, 1898, •upon the report of a referee dismissing the complaint. In the year 1890 the Cornell Steamboat Company was a corporation carrying on a freight and passenger business upon the waters of the Hudson river.

Appeal by the defendant, R. Watson Terwilliger, individually, from a final judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Fulton on the 23d day of October, 1899, upon the decision of the court adopting the verdict of a jury upon an issue submitted to it, with notice of an intention to bring up for review upon such appeal the order for said judgment entered in said clerk’s office on the 23d day of October, 1899,…

Appeal by the defendant, Alice Welch, 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 10th day of May, 1899, upon the report of a referee.

Appeal by the plaintiff, G. Byron Gillett, as administrator, etc., of Joseph A. Gillett, deceased, from so much of an interlocutory judgment of the County Court of Sullivan county in favor of the defendants, entered in the office of the clerk of the county of Sullivan on the 16th day of October, 1899, upon the decision of the court as determines the amount due upon two real estate mortgages being foreclosed by the said plaintiff.

Appeal by the plaintiff, Mary Lee, from a judgment of the Supreme Court in favor of the defendant, entered in the office' of the clerk of the county of Washington on the 16tli day of March, 1899, upon the dismissal of the complaint by direction of the court after a trial at the Washington Trial Term, with notice of an.intenxtion to bring up for review upon such appeal the order upon which such judgment was entered.

Certiorari issued out of the Supreme Court and attested on the 14th day of October, 1899, directed to William J. Morgan, as Comptroller of the State of New York, requiring him to certify and return all and singular his proceedings had relative to the revision and readjustment of the account for taxes assessed upon the capital stock of the L. E. Waterman Company and dividends declared by it for the years 1880 to 1898 inclusive.

Appeal by the defendants, Frank O’Hare 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 Albany on the 12th .day of June, 1899, upon the report of a referee.

Appeal by the plaintiff, Peter Eller, from a judgment of the County Court of Sullivan county in favor of the defendant, entered in the office of the clerk of the county of Sullivan on the 3d day of July, 1899, upon a nonsuit granted by the court at the close of the plaintiff’s testimony.

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Delaware on the 9th day of October, 1899, upon the verdict of a jury, and also 'from an order entered in said clerk’s office on the. 9th day of October, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Joseph B. Wheeler and another, from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the cleric of the county of Montgomery on the 15th day of November, 1899, denying the defendants’ motion to vacate an injunction oz'der gz'anied September 23, 1899, on the ground that it had been irregularly granted.

Appeal by the plaintiff, Hannah E, Usher, from an interlocutory judgment of the Supreme Court in favor of the defendant, the International Paper Company, entered in the office of the clerk of the county of St. Lawrence on the 24th day of October, 1899, upon the decision of the court, rendered after a trial at the Fulton Special Term, sustaining said defendant’s demurrer to the complaint, with notice of an intention to bring up for review upon such appeal the decision and…

Appeal by the defendant, Frank Schoonmaker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 30th day of March, 1899, upon the verdict of a jury for §1,000, and also from an order entered in said clerk’s office on the 30th day of March, 1899, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by Charles Rivers from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of Washington on the 6th day of January, 1900, granting the petitioner’s motion to revoke and cancel liquor tax certificate No. 23,486 issued by the State Commissioner of Excise to Charles Rivers, and also from the judgment entered in the office of the clerk of the county of Washington on the 6th day of January, 1900, upon…

Appeal by the plaintiff, John A. Loucks, as executor, etc., of George E. Loucks, deceased, from a judgment of the County Court of Albany county in- favor of the defendants, entered in the office of the clerk of the county of Albany on the 22d day of June, 1899, reversing a judgment in favor of the plaintiff, rendered by a justice ■of the peace.

<p>Audit by a board of supervisors — what constitutes a reconsideration thereof— obedience to a peremptory writ of mandamus does not bcvr an appeal from the order granting it.</p> <p>The action of a board of supervisors in referring bills, which had been audited and allowed, to. a committee for a renewed consideration and to obtain further evidence in relation thereto, upon the ground that numerous items in such bills were improper and illegal, is in substance a reconsideration of the audit.</p> <p>The fact that the clerk of the board of supervisors in obedience to a peremptory-writ of mandamus, delivered to the claimant certificates of audit of the bills in question, and that an order was thereupon entered stating that the mandamus proceeding was terminated, does not deprive the board of its right to appeal from the order granting the peremptory writ.</p>

Appeal by Walter S. Allen, as administrator, etc., of Lorena Allen, deceased, from a judgment of the Supreme Court in favor_ of Charlotte L. Wilkins, entered in the office of the clerk of the county of Now York on the l'Tth day of February, 1899, upon the decision of an arbitrator of a controversy submitted pursuant to section 2366 of the Code of Civil Procedure, and also from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the…

Appeal by the plaintiff, William H. Woolverton, as president of The New York Transfer Company, from a judgment of the Supreme Court in favor óf the defendant, entered in the office of the clerk of the county of New York on the 7th day of September, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term. This appeal was transferred from the first department to the second department.

Appeal by Henry J.. Braker from an order of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 27th day of September, 1899, dismissing his petition for a decree to compel the administratrix of Thomas Flanagan, deceased, to mortgage, lease or sell the real property of said! deceased for the payment of his debts.

Appeal by the relator, Walter B. Hartough, 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 Jth day of October, 1899, •dismissing an alternative writ of mandamus requiring the defendant to reinstate the plaintiff as a laborer in the tire -department of the ■city of Kew York or to showicause to the contrary, and also from the decision upon which such judgment was entered.

Appeal by the defendant, The Metropolitan Elevated Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on' the 6th day of May, 1899, upon the decision of ■■ the court, rendered after a trial at the New York Special Term, awarding the plaintiff fee damages of $60,000 and rental dámagés of $43,694.33.

Appeal by the defendant, .Correa Moylan Walsh, 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 14th day of August, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, Cesare Vazzoler, 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 17th day of October, 1899, upon the verdict of a jury, and also from an order bearing date the 16th day of October,'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, Francis R. Pemberton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 3d 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. This appeal was transferred from the first department to the second department. .

Appeal by the plaintiff, The National Gash Register 'Company, from a judgment of the Municipal Court of the City of New York, fifth district, borough of Brooklyn, rendered on the 5th day of October, 1899, dismissing the complaint upon the merits.

Appeal by the defendant, Edward Everett, 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 IGngs on the.27th day of November, 1899, granting the plaintiff leave to serve- an amended complaint.

Appeal by the defendants, Charles H. Knox and others, constituting the municipal civil service commission of the city of New York, 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 13th day of November, 1899, granting a peremptory writ of mandamus commanding the said defendants to “ certify upon the payroll of the relator that he has been promoted from the position of patrolman to…

Appeal by the plaintiffs, Joseph Stern and others, from an order of the Municipal Court of the city of New York, first district, borough of Brooklyn, made on the 27th day of November, 1899, setting aside a judgment in favor of the plaintiffs rendered in said court on the 17th day of November, 1899, and granting a new trial, and also from a judgment of said court rendered on the 7th day of December, 1899, dismissing.the plaintiffs’ complaint.

<p>Appeal by the defendants, Henry H. Lyman, as State Commissioner of Excise of the State of New York, and another, from an order of the County Court of Westchester county, entered in the office of the clerk of the county of Westchester on the 13th day of May, 1899, directing the county treasurer of Westchester county to issue a liquor tax certificate to the relator upon the payment of $100.</p>

Appeal by Albert O. Hall and Thomas' Gr. Ritch, as trustees under the last will and testament of Alvah Hall, deceased, from so much of a decree of the Surrogate’s Court of the county of Hew York, entered in the office of said Surrogate’s Court on the 29th day of July, 1899, as confirmed the report of a referee and adjudged the investment of $25,000 of the trust estate in the stock of The Umbrella Company to have been illegal and unauthorized.

Appeal by the relator, Henry T. Goodwin, from an order of the Supreme Court, made at the Eichmond Special Term and entered in the office of the clérk of the county of Eichmond on the 11th day of November, 1899, denying his application for a peremptory writ of mandamus requiring fife defendant to audit and adjust thé' relator’s claim against the city of New York.

Appeal by the plaintiffs, Frank La Manna and others, 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 19th day of December, 1898, upon the verdict of a jury, and also from an order hearing date the 14th day of December, 1898, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made upon the minutes. • This appeal was transferred from the first department to the…

<p>Supplemental complaint — when it maybe attacked by demurrer—orat, agreement between a lessor and lessee that the tenancy of other tenants shall terminate at a certain date — continuance in possession after its breach—rule of damages not determined on demurrer.</p> <p>A supplemental complaint, served in lieu of the original complaint, may be-attacked by demurrer in the same manner as the original complaint.</p> <p>An oral agreement, made on October 20, 1894, by which the .owner of a building stipulates that, if the other parties to the agreement will take a lease of a portion of the building, he will terminate the tenancy of other, tenants of the building on February 1, 1895, and that, after that date, “ said tenants should no longer occupy any portion of said building or be tenants therein, either directly or indirectly,” is not within the. Statute of Frauds.</p> <p>Such an agreement is an independent, collateral agreement, which does not. merge in the written lease executed in reliance thereon.</p> <p>The fact that the persons with whom the agreement is made remain in possession of the portion of the premises demised to them, with knowledge that the lease-of the other tenants has not been terminated, as agreed upon, does not preclude them from maintaining an action against the landlord to recover dam- . ages resulting from the breach of the oral agreement.</p> <p>The question whether they may in such an action recover the loss which they sustained from the destruction of their goods by fire, upon the ground that the-presence of the other tenants in the building prevented them from obtaining adequate fire insurance, will not be determined upon a demurrer to the complaint.</p>

Appeal by the plaintiffs, Frederick W. Ray, individually and as executor, etc., of Flora L. Ray, deceased, and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 15th day of November, 1899, denying a motion to confirm the report of a referee in the proceeding to punish the defendant for contempt, and remitting the proceeding to the referee to complete the reference. ,

Appeal by the contestants, Helen Kay and others, from a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 18th clay of May, 1899, judicially settling the accounts of George B. Owen, as executor, etc., of David F. Beck, deceased, except that portion thereof directing the payment of an allowance to a special guardian appointed in the proceeding, with notice of an intention to bring up for review upon said appeal the…

Appeal by Helene Bachmann from an interlocutory order of the Surrogate’s Court of the county of Kings, entered in the office of the said Surrogate’s Court on the 5th day of January, 1900, which permitted'an amendment to the petition and authorized the issuance of a supplemental citation bringing in certain parties.

<p>Appeal by the'plaintiffs, Edward D. Depew and others, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 29tli day of October, 1898, taxing the fees of a sheriff upon he execution of a warrant of attachment.</p>

Appeal by the defendant, The Brooklyn Heights 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 10th day of Hay, 1899, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the llth day of Hay, 1899, denying the defendant’s motion for a new trial made •tipon the minutes.

Appeal by the defendant, Eliza J. Arkenburgh, as executrix, etc., of Robert H. Arkenburgh, deceased, 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 4th day of May, 1899, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term. This appeal was transferred from the first department to the see■ond department.

<p>Appeal by the plaintiff, Josephine Kline, an infant, by Eugenia Wiemars, her 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 Kings on the 24th day of June, 1899, upon the dismissal of her complaint by direction of the court at the close of the plaintiff’s proof after a trial at the Kings County .Trial Term.</p>

Appeal by the defendant, Kate V. Calder, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of December, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of December, 1898, denying the defendant’s motion for a new trial made upon the minutes. This appeal was transferred from the first department to the second department.

Appeal by the defendant, William Alwang, from an order of filiation, made hy the Court of Special Sessions of the Peace of the second division pf. the city of New York on the 30th day of June, 1899.

Appeal by the plaintiff, Christopher Richardson, from a judgment of the Supreme Court in favor of the defendant, John Oscar Erckens, entered in the office of the clerk of the county of New York on the 20th day of February, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of February, 1899,-denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Elizabeth Drexel Dahlgren, as executrix, etc., of John Yinton Dahlgren, deceased, 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 23d day of March,. 1899, upon the report of a referee. This appeal was transferred from the first department to the second department.

Appeal by Thomas Rogers and others from a decree of the Sur-Togate’s Court of the county of Westchester, entered in the office of said Surrogate’s Court on the 16th day of September, 1899, settling the accounts of the trustees under the last will and testament of Jason Rogers, deceased.

Appeal by the defendants, the commissioner of highways of the town of Montgomery, Orange county, New York, and others, from an order of the Supreme Court, made at the Dutchess Comity Special Term and entered in the office of the clerk of the county of Orange on the 8th day of November, 1899, and from an order amending said order entered in said clerk’s office on the 17th day of November, 1899, directing the issuing of a peremptory writ of mandamus, directed to the…

Appeal by the defendant, Alice G. Edelstein, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 23d day of June, 1899, granting leave to the jilaintiff upon terms to serve a reply to the defendant’s counterclaim.

Appeal by the plaintiff, Sophia Levy, 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 80th day of November, 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 30th day of December, 1898, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Sarah Killen, 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 17th day of March, 1899, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

Appeal by the defendants, Andrew C. Harwick, as Grand Recorder of the Ancient Order of United Workmen, and another, 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 8th day of December, 1899, granting a peremptory writ of mandamus directed to the defendants commanding them to receive and properly receipt for the moneys forwarded to said Harwick on behalf of the members of…

<p>Proof of identity, insufficient to establish title to shares of stock standing in a name the same as that of the claimant.</p> <p>In an action by the administrator of one Henry Moss to establish the title of his intestate to certain shares of the capital stock of the defendant’s bank, which were issued in the name of Henry Moss on March 28,1833, it appeared that the name Henry Moss occurred only in the stock ledger of the bank, and that there was nothing therein indicative of his business or which would serve to identify him with the intestate.</p> <p>It also appeared that the plaintiff's intestate emigrated from England in 1831 or 1883 and settled in the city of New York, his name appearing in the directory for 1835-36 and continuing down to the issue for 1853-54, no other Henry Moss appearing in the city directory during this period, and that he was natural- • ized in the year 1838, being the only person of the name who was naturalized in the city during the ten years then preceding.</p> <p>It further appeared, however, that the intestate never claimed the- dividends declared upon the stock although the defendant annually advertised the unclaimed dividends in the city newspapers, and also published annual notices of stockholders’ meetings therein; that although the intestate died apparently without leaving-any property, no claim for the stock was made on behalf of the estate until 1898, when the present action was begun.</p> <p>The receipt for the stock was not produced on the trial nor was its absence accounted for, nor was any evidence given tending to show that it was ever in the possession of the intestate, or that the latter eyer claimed to be a stockholder or had any dealings with the person who, as shown by the stock ledger, had transferred the stock to Henry Moss.</p> <p>Held, that the evidence was not sufficient to show that the plaintiff’s intestate was the Henry Moss to whom the stock was issued, and that the complaint was properly dismissed.</p>

Appeal by the defendant, Paul Doege, from a judgment of the Municipal Court of the city of Few York for the borough of The Bronx in favor of the plaintiff, entered in the office of the clerk of said court on the 3d.day of Fovember, 1899.

Appeal by the plaintiff Luis Preiser, as administrator, etc., of Fannie Preiser, deceased, from a judgment of the Supreme Court ' in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 19th day of January, 1899, upon the dismissal of the complaint, by direction of the court, after a trial at the Hew York Trial Term. This appeal was transferred from the first department to the second department.

<p>Appeal by the defendants, Edward F. Millikén 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 New York on the-21st day of June, 1898, upon the decision of the court rendered after a trial at the New York Special Term.</p> <p>This appeal was transferred from the first department to the second department.</p>

Appeal by the plaintiff, William J. Buttling, as sheriff of Kings county, 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 10th day of Hay, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of April,. 1899, denying the plaintiff’s motion for a new trial made upon the minutes. ■ This appeal was transferred from the first department to the…

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 New York on the 22d day of April, 1899, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 28th day of April, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Horace F. Burroughs, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Kings on the 11th day of March, 1898, upon the report of a referee dismissing the complaint upon the merits.

Appeal by the defendant, John 0. Barth, from a judgment of the Supreme Oourt in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 29th .day of March, 1899, upon the verdict of a jury rendered by direction of the court. This appeal was transferred from the first department to the second department.

. Appeal by Louis Ungrich and Louis Kossuth Ungrich, as executors and trustees under the will of Jacob Schwarz, deceased, and by J. Yan Yechten Olcott, special guardian of Julia E. Schwarz and other infants, from so much of a decree of the Surrogate’s Court of Hew York county, entered in the office of said Surrogate’s Court on the 26th day of June, 1899, as adjudges and decrees that Eliza Schwarz, the widow of the testator, is entitled to the custody and possession of the…

Appeal by Elizabeth Remsen Le Roy Dale from an order of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 13tli day of November, 1899, granting an application for the issuance of letters testamentary under the will of Caroline Remsen Gihon, pursuant to the authority contained in section 2582 of the Code of Civil Procedure.

Appeal by the defendant, Isaac K. Funk, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 25th day of January, 1899, upon the report of a referee.

Appeal by the relator, William H. Allen, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of Queens county on the 9th day of January, 1900, denying the relator’s motion for a peremptory writ of mandamus commanding the board of police commissioners of the city of New York to reinstate him in the grade and rank of a sergeant of police.

Appeal by the plaintiff, Margaret Ludwig, 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 15th day of February, 1899, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the ground, that it did not state facts sufficient to constitute a cause of action.

Appeal by the defendant, Eugene Muhling, an infant, by Joseph E. Muhling, his guardian ad litem, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 25th day of February, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the Ith day of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.