Volume 49 — New York Appellate Division Reports

<p>Motion to settle order.</p>

<p>Appeal from an order which denied a motion of Charles F. Gall to strike the affidavits of Abram Kling and Charles E. O’Connorfrom the records of the court.</p>

Certiorari issued out of the Supreme Court and attested on the 20th day of April, 1899, directed to The Board of Town Auditors of the Town of Hempstead, requiring it to certify and return to the office of the clerk of the county of Queens all and singular its proceedings had in disallowing the relator’s claim for compensation for the use of certain premises by the town of Hempstead for one year ending November 21, 1898.

Appeal by the plaintiff, Emil Opitz, as executor, etc., of Frederick Hammen, deceased, from a judgment of the Supreme Court in favor of the defendant, Emma Hammen, entered in the office of the clerk of the county of Kings on the 24th day of December, 1898, upon the decision of the court rendered after a trial at the Kings County Special Term, sustaining the said defendant’s demurrer to the plaintiff’s amended complaint, upon the ground that it did not state facts sufficient…

Appeal by the plaintiff, Henry B. Dorney, 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 20th day of Hay, 1899, upon the dismissal of the complaint at the close of the plaintiff’s case by direction of. the court after a trial before the court and a jury at the New York Trial Term, and also from an order entered in said clerk’s office on the.6tli day of June, 1899, denying the plaintiff’s…

<p>Negligence — injury to a boy sitting on a pile of rails in a street, one of which slips — the contractor is not relieved from liability because a truckman piled them there — charge as to interest on a verdict—a §10,000 verdict not excessive.</p> <p>Where a contracting company has, under a permit from the city, piled iron rails in a city street, but has omitted to place them upon planking laid in the street, as required by the permit, and the top rail is laid crooked and is tilted by a cobble stone placed under one end of it — no guard or prop being furnished-— the company is liable for injuries' sustained by a boy ten years of age, in consequence of the top rail slipping while he was sitting upon it.</p> <p>The fact that the original piling was done by a truckman who had delivered the rails under a contract with the contracting company, does not relieve the latter from liability, especially where the accident did not occur until two weeks after such piling.</p> <p>In an action to recover damages for personal injuries, the court may properly refuse to charge that the jury must, in awarding any sum to the plaintiff, take into consideration the interest which that sum would produce annually:</p> <p>A verdict of §10,000 in favor of a boy ten years old, for the loss of his leg, is not excessive.</p>

Appeal by the plaintiff, John E. Hollingsworth, from an interlocutory 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 16th day of May, 1899, upon the decision of the court rendered .after a trial at the New York Special Term, sustaining the defendant’s demurrer to the complaint upon the ground that it did not .state facts sufficient to constitute a cause of action. • The appeal was transferred from…

<p> Attorney’s lien —not enforeible by motion, against a defendant agreeing on a settlement of the plaintiff’s claim “ to adjust any claim for costs or for any lien upon the cause of action”—remedy by action on such agreement. </p> <p>Where a plaintiff, after executing a written agreement to pay his attorneys one-third of any sum for which the case might be adjusted and not to make a settlement without obtaining their consent, makes a settlement with the defendant and receives from it an agreement which, after reciting the attorneys’ lien, provides that the defendant “agrees to adjust any claim for costs or for any lien up,on the cause of action, which the said attorneys may be able lawfully to establish,” the amount specified in the settlement is conclusive upon the defendant as to the amount of the attorneys’ lien.</p> <p>The court has no power, upon a summary application by the attorneys, to make an order requiring the defendant to pay to them the amount of their lien, but should authorize the attorneys to continue the action for the enforcement and collection of their lien, if the defendant neglects to discharge it within a certain time.</p> <p>Semble, that the attorneys might maintain an independent action upon the defendant’s promise to discharge the attorneys’ lien.</p>

Appeal by the plaintiff, Wilson Degraw, by Gilbert Degraw, his guardian ad litem, from a final judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the Yth day of July, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Orange Trial Term, and also from an order denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Frank Seaman, from an order of the •County Court of Westchester county, entered in the office of the clerk of the county of Westchester on the 5th day of December, 1899, denying his motion to compel the plaintiff, a domestic corporation, to give security for costs.

Appeal by the defendant, The Press 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 16th day of May, 1899, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 17th day of May, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Burt D. Harrington and Susan Gorden, as executors and trustees of the last will and testament of William Gorden, deceased, from an order of the Supreme Oourt, made at the Kings County Special- Term and entered in the office of the cleric of the county of Kings on the 23d day of December, 1899, denying their motion to amend a judgment for costs, in favor of the East River Bridge Company, so as to provide that Stephen M. Hoye and Joseph Gorden, the other two…

Appeal by the defendant, judgment debtor, John F. Reilly, First, 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 31st day of October, 1899, punishing the defendant for contempt, and also from an order entered in said clerk’s office on the 8th day of November, 1899, denying his motion to resettle said order entered October 31, 1899.

Appeal by the plaintiff, Eustace Jeffards, Jr., from so much of 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 29th day of January, 1900, granting the plaintiff’s motion to substitute Charles J. Patterson as attorney for the plaintiff in the-place and. stead of Alfred C. Cowan, as provides, among other things, “ that the lien of the said Alfred C. Cowan, for his compensation herein,…

<p>Charter of a vessel — implied wa/rranty that she is seaworthy — repairs — review by the Appellate Division of a finding of fact made by the New York Municipal Court.</p> <p>In every charter of a vessel there is an implied warranty that she is seaworthy and suitable for the service in which she is to be employed. This warranty relates to defects known and unknown, and imposes upon the owner the duty of keeping the vessel in repair unless prevented by perils of the sea or unavoidable accident; and if a defect without any apparent cause be developed, it will be presumed that it existed when the service began.</p> <p>The Appellate Division has no power to review a finding of the Municipal Court of the city of New York based upon conflicting evidence.</p>

<p>Beal estate broker’s commissions — not earned by producing a purchaser who takes an option and pays a certain sum which he forfeits—proof of knowledge of this fact by the broker.</p> <p>Where a real estate owner enters into a preliminary agreement to sell the premises, for which the proposed vendee agrees to pay the sum of §250 upon the-signing of such agreement and a further sum of §750 upon the signing of the contract of sale and to forfeit the $250 in case he refuses to sign the contract of sale and complete the purchase, the broker who produces the proposed vendee is not entitled to commissions unless the proposed purchaser actually signs-the contract of sale and completes the purchase.</p> <p>In an action by the broker against the owner to recover commissions the owner should be permitted to prove that the broker knew that the proposed vendee simply procured an option upon, and did not intend to buy, the property unless he purchased some adjoining lots.</p>

Appeal by the petitioners, Celia F. Wiley and another, from an order of the Surrogate’s Court of Kings comity, entered in said Surrogate’s Court on the 28th day of December, 1899, denying then-application for a decree directing Thomas G. Field, as testamentary trustee under the will of Henry Weil, deceased, to give security for the performance of his trust.

<p>Self-defense — the burden of proof in criminal eases remains throughout with the People — a statement by the district attorney of an offer to plead guilty constitutes reversible error.</p> <p>A defendant in a criminal case, who interposes the plea of self-defense, is not obliged to establish it by a preponderance of evidence. The burden is upon, the prosecution throughout the trial to establish the crime charged beyond a reasonable doubt, and if upon the whole case, including the testimony on behalf of the prosecution and on behalf of the defendant, a reasonable doubt of the ■ defendant’s guilt arises, the jury must acquit.</p> <p>A statement by the prosecuting attorney, on the trial of an indictment for assault in the first degree, that the prisoner’s counsel offered to let him plead guilty to assault in the second degree, constitutes reversible error, although the statement was stricken out.</p>

Appeal by the defendants, The City of New York and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of March, 1899, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 13tli day of March, 1899, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, William Dalton, as commissioner of water supply of the city of New York, and another, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county-of Queens on the 5th day of February, 1900, directing that a peremptory writ of mandamus issue requiring the defendants, or either of them, to reinstate the relators in employment as stream cleaners on the water works system of the city of…

<p>Appeal by the plaintiff, Theodore Goodness, 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 7th day of February, -1900, granting the defendant’s motion to vacate and set. aside the default and inquest taken herein and the judgment entered thereon, and restoring the case to the calendar for trial.</p>

<p>Appeal by the plaintiff, Michael Kennedy, 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 29th day of June, 1899, upon the dismissal of the complaint by direction of the court after a trial before thé court and a jury at the Kings County Trial Term..</p>

Appeal by the defendant, Theodore F. Archer, from a judgment of the Municipal Court of the city of Hew York, borough( of Brooklyn, second district, in favor of the plaintiff, entered in said court on the 28th day of April, 1899, upon the verdict of a jury.

Appeal by the plaintiff, George Lambrecht, 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 18th day of November, 1898, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Kings County Trial Term, and also from an order entered in said clerk’s office on the-18th day of November, 1898, denying the plaintiff’s motion for a. new trial made…

Appeal by the petitioner, Frank Tonatio, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of February, 1900, denying his motion to cancel liquor tax certificate No. 8,969 granted to Angelo Deperino.

Appeal by the defendant, Bird S. Coler, comptroller of the city of Mew Yoi’k, 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 17th day of February, 1900, continuingpendemte lite a temporary injunction restraining the defendant William J. Lynch from certifying to any payroll containing the-name of the defendant John W. Carpenter, as clerk of the Municipal Court of Mew York, borough…

<p> Habeas corpus—under what circumstances a child will not be compelled to leave the home of her choice and to return to her father's house. </p> <p>Where a girl, whose father forced her into a distasteful marriage at the age of sixteen, leaves her husband after living with him three months, and of her own free will takes up her residence with a stranger, she will not be required, in habeas corpus proceedings, instituted by her father, to abandon the home of her adoption against her will and go to that of her father, where there is no evidence that, her reputation has' suffered or will suffer through her changó of residence, although it appears that an attachment has arisen between the girl, -whose former marriage .had been annulled, and the son of her adopted father, and that the parties expect to marry when the girl reaches the. age of consent.</p>

Appeal by the plaintiff, John Turell, by Joseph P. Turell, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 1st day of May, 1899, upon the dismissal of the complaint, at the close of the plaintiff’s case, by direction of the • court after a trial before the court and a jury at the Orange Trial Term.

Appeal by James Harris from an order of the Supreme Court made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 25th day of July, 1899, revoking and canceling liquor tax certificate No. 22,204, granted by Charles L. Phipps, as county treasurer of Queens county, to James Harris.

Appeal by the defendants, Thomas L. Feitner, as president of the board of commissioners of taxes and assessments of the city of New York, 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 15th day of December, 1899, granting the relator’s motion that a peremptory writ of mam damns issue directing the defendants to reinstate the relator in the position of deputy tax…

Appeal by the plaintiff, James Jackson, 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 bn the 10th day of January, 1900, granting the defendant’s motion to substitute John J. McLean as defendant in its place and stead.

Appeal by the defendants, Thomas L. Feitner and others, as com-' missioners of taxes and assessments of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of September, 1899, sustaining a writ of certiorari issued to review the proceedings of the defendants in assessing the relator, a foreign corporation, at the city of New York, for capital invested in…

Appeal by the plaintiff, Eveline Leland, as administratrix, etc., of George Leland, deceased, 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 23d day of March, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the New York Trial Term.

Appeal by The City of Hew York from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 13th day of December, 1899, overruling the objections of the city of Hew York to the confirmation of the report of the commissioners herein, and *—upon the objections of certain property owners—referring the report back to the commissioners for revision and correction so as to require that the assessments…

Appeal by the defendant, Emma H. Washburn, 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 April, 1899, upon the decision of the court rendered after a trial at the New York Special Term overruling her demurrer to the plaintiff’s complaint.

Appeal by the defendant, Otto Kempner, a notary public in and for the county of Mew York, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 26th day of January, 1900, granting the relator’s motion that a peremptory writ of mandamus issue requiring the defendant to sign his name to, and make as notary public, a new certifícate of acknowledgment to a certain instrument duly presented to…

Appeal by the defendant, J ames P. Keating, as commissioner of highways, 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 7th day of September, 1899, granting the relator’s motion for a peremptory writ of mandamus requiring the said James P. Keating, as commissioner of highways of the city of New York, to forthwith reinstate and employ the relator in the place of assistant foreman,…

Appeal by the relator, William H. Kastor, from an order of the Supreme Court, made at the New York Special Term bearing date the 28th day of December, 1899, and entered in the office of the clerk of the county of New York, denying his motion for a peremptory or alternative writ of mandamus directing Henry S. Kearny, commissioner of public buildings, lighting and supplies of the city of New York, to reinstate the relator in the position of clerk in said department, with the…

Appeal by Robert Beggs, as sole surviving trustee under the last will and testament of Hugh Henry Scott, deceased, from an order of the Surrogate’s Court of Hew York county, entered in-said Surrogate’s Court on the 1st day of February, 1900, removing him from the position of sole surviving trustee under the last will and testament of Hugh Henry Scott,- deceased.

Appeal by the defendant, James C. Hunter, 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 1st day of December, 1899, upon the verdict of a jury rendered by direction of the court. The action was brought to recover upon a promissory note given by the defendant to the plaintiff.

Appeal by the defendant, Stark H. Inge, 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 29th day of January, 1900, continuing until final judgment in this action a preliminary injunction enjoining the defendant from the further prosecution of an action brought by him against James McOreery in the Supreme Court, Kings county.

Appeal by the defendants, Carmino Padula 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 10th day of November, 1899, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term.

Appeal by the defendant, the Eisner & Mendelson Company, from an order of the Supreme Court, made at the New Pork Special Term and entered in the office of thé clerk of the county of New York on the 19th day of October, 1899, taxing the fees and poundage of Thomas J. Dunn, sheriff of the county of New York, on the attachment in this action, and directing their payment by the defendant.

Appeal by the plaintiff, George Steinson, 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 12th day of July, 1899, upon the decision of the court rendered after a trial before ■the court without a jury at the New York Trial Term.

Appeal by the plaintiff, Lauritz Termansen, from so much of 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 23d day of January, 1899, upon a motion to confirm the report of sale in the above-entitled action, as reads as follows: “ Ordered that the first and second exceptions taken by said defendants to the report of said referee be, and the same hereby are sustained, with ten dollars…

Appeal by the defendant, William W. Vaughan, and by Charles M. Hough, as receiver in bankruptcy of the estate of William W. Vaughan, 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 October, 1899, upon' the verdict of a jury rendered by direction of the court.

Appeal by the defendant, Charles W. Wells, from an interlocutory 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 19th day of May, 1899, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling his demurrer to the plaintiff’s complaint.

Certiorari issued out of the Supreme Court and attested on the 15th day of October, 1898, directed to Bernard J. York and others, commissioners, composing the board of police of the police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in dismissing the relator, John Faliy, from the position of patrolman on the police force of the city of New York.

Appeal by the plaintiff, Lewis L. Jones, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of June, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, the jury having rendered a verdict in favor of the plaintiff.

Appeal by the plaintiff, The Holland House 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 27th day of November, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the New York Trial Term.

Appeal by the defendant, Frances Naylor Henck, 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 4th day of January, 1900, granting the plaintiff’s motion for a compulsory reference of the issues in the action.

Appeal by Joseph Marren and others from so much of an order of the Supreme Court, made at the New York Special Term, bearing date the 5th day of January, 1900, and entered in the office of the clerk of the county of New York, as oven ules the exceptions filed by them to the referee’s report herein, confirming said report and directing the city chamberlain of the city of New York to pay to the claimant, William S. Wilson, the entire balance of the surplus moneys in his hands…

Appeal by the plaintiff, Frederick Haffner, 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 11th day of March, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of March, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of October, 1899, upon the verdict of' a jury for $1,500, and also from an order entered in said clerk’s office on the 1st day of November, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Aureal hy the plaintiff, James Welsh, 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 24th day of February,, 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.

Appeal by the plaintiff, William Van Valkenburgh, 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 March, 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; also from an order entered in said clerk’s office on the 24th day of March, 1898, denying the plaintiff’s motion for a new trial made upon…

<p>Appeal by the defendant, George A. Hearn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of August, 1898, upon the report of a referee in an action brought to foreclose a mechanic’s lien.</p>

Appeal by the defendant, Thomas Reilly, otherwise known as Thomas Cooley, from a judgment of the Court of General Sessions of the Peace of the city and county of Rew York, rendered against him on the 19th day of August, 1898, convicting him of the crime of having in his possession burglars’ tools in violation of section 508 of the Penal Code, and also from an order denying the defendant’s motion for a new trial.

<p>Expert evidence as to the sufficiency of a foundation — liability of a contractor building upon it — explanation of a picture in evidence — objection to a modification of an ambiguous request to charge.</p> <p>A building inspector, who has examined a foundation wall, may testify whether, in his opinion, it was of sufficient strength to sustain the building which was to be erected upon it.</p> <p>The admission of testimony in explanation of a picture of a collapsed building, ' which is in evidence, does not constitute reversible error where the facts testified to are apparent from the picture.</p> <p>Contractors employed to "build cellar "walls upon a bottom prepared by the owner are not relieved from liability to third persons for damages resulting from the unstable character of the bottom, if the contractors saw or knew or should have seen or known of such instability.</p> <p>A valid exception will not lie to the qualification by the court of a request to charge where the form of the request is indefinite, and in one aspect of its language justifies the qualification.</p> <p>Van Brunt, P. J., and Ingraham, J., dissented.</p>

<p>Appeal by The City of Mew York from an order of the Supreme-Court, made at the Mew York Special Term and entered in the office: of the clerk of the county of Mew York on the 10th clay of Octoher, 1899, vacating an assessment upon property of the petitioner, Orson D. Munn, and directing ■ that the assessment list be returned to the board of assessors for reapportionment.</p>

<p>Appeal by the defendant, Thomas J. Brady, commissioner of' buildings for the boroughs of Manhattan and The Bronx, in the department of buildings in the city of New York, from an order of' the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of June, 1898, granting the relator’s motion for a peremptory writ of mandamus requiring the defendant to reinstate the relator in .the-position of inspector of buildings in the department of buildings of ■ the city of New York.</p> <p>The motion upon which the order appealed from was made was. noticed for May 9, 1898.</p>

<p>Pleading —denial that the defendants published a libel, coupled with a statement that the plaintiff released the publishers — a commission will not issue to establish the release.</p> <p>The complaint in an action of libel alleged that the defendants published and circulated the newspaper in which the alleged libelous article was published. The answers contained a general denial, and alleged as a separate defense that the plaintiff and the owners and publishers of the newspaper entered into an. agreement, whereby the plaintiff released and discharged the said owners and publishers from all causes of action, upon condition that the newspaper would publish a retraction of the libel, and that such retraction was accordingly-published.</p> <p>Held, that, as the defendants denied that they published the newspaper, any agreement between the plaintiff and the persons who actually published the newspaper was not available to the defendants; •</p> <p>That the defense being bad upon its face, a commission would not be issued to take testimony material to such defense.</p> <p>Van Brunt, P. J., and Patterson, J., dissented.</p>

<p>Appeal by the relator, Hugo Rossner, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of February, 1899, denying his application for a peremptory writ of mandamus directing John J. Scannell, fire commissioner of t'ie city of New York, to request the municipal civil service commission of the city of New York to immediately certify the names of persons eligible for appointment to the position of fireman in the fire department of the city of New York, and to select and appoint, from said certification the name of Hugo Rossner, the only persoru now upon said list.</p>

Appeal by the plaintiff, the Union Associated Press, 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 27th day of March, 1899, upon the' dismissal of the complaint by direction of the court after a trial before the court and a jury at the New York Trial Term.

Appeal by the defendant, St. John’s Guild, 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 9th day of August, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, directing the New York Life Insurance and Trust Company to transfer to the plaintiff, Emma Clark Tweddell, certain cash and securities constituting a trust fund held by said company as trustee…

Appeal by the defendants, Juan M. Ceballos and another, from an interlocutory 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 22d day of December, 1899, upon the decision of the ■court rendered after a trial at the New York Special Térm overruling their demurrers to the plaintiffs’ amended complaint.

Appeal by the plaintiff, Bridget Quinn, as administratrix, etc., of Patrick P. Quinn, 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 10th day of July, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the New York Trial Term, and also from an order entered in said clerk’s office on the 27th day of June, 1899, denying…

Appeal by the defendant, Charles O. Carlson, 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* 1st day of December, 1899, upon the decision of the court rendered, after a trial at the New York Special Term, and also from an order-entered in said clerk’s office on the 16th day of November, 1899,. overruling his demurrer to the plaintiff’s complaint and directing; the entry of…

Appeal by Sophia Blast, as administratrix, etc., of Gustav Froeschle, deceased, from a decree of the Surrogate’s Court of New York county, entered in said Surrogate’s Court on the 10th day of November, 1899, directing her to pay to Julius Scharmann the sum of §1,764.45 on account of a judgment entered in the City Court of New York on the 24th day of May, 1894, for the sum of §2,020.50.

<p>Assessments for local improvements in New York city — the court cannot vacate them.</p> <p>The purpose of the Legislature in enacting sections 959 and 962 of the Greater-New York charter (Laws of 1897, chap. 378) was to deprive the court of the-power to vacate for any cause an assessment for a local improvement, and, in so-far as the two sections are repugnant to or inconsistent with each other, effect must be given to the latter section, which provides, “No court shall vacate- * * * any assessment, in fact or apparent, whether void or voidable, on. any property for any local improvement.’’</p>

<p>Appeal by the defendant, the F. C. Linde Company, from two judgments of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of November, 1899, upon the verdict of a jury rendered by direction of the court, and also from two orders entered in said clerk’s office on the 16th day of November, 1899, denying the defendant’s motions for a new trial made upon the minutes.</p>

<p>Negligence —fall through a grating in the sidewalk, by one coming from a store rented by the month — when the landlord is not liable.</p> <p>A landlord, who for a period of eleven years, had rented the basement of certain premises, and a store on the first floor, to the same tenant, who paid the rent therefor from month to month, is not liable to a customer of the tenant who, while leaving the store, stepped upon an iron grating, located in the street next to and in front of the store, which gave way and precipitated her into the basement, which had been sublet by the tenant to a third party, where it appears that the accident was caused by one of the bars supporting the grating having fallen into the basement, and there is no evidence that the grating was of faulty construction or that it was not in perfect condition when the landlord surrendered possession, and it does not appear that the landlord had any knowledge or notice that the grating was out of repair or that such condition had existed for such a length of time as to charge him with notice.</p> <p>Assuming that a new letting commenced with the first of every month, the contention that the landlord was liable for the grating being out of repair upon the first of the month is not available, where it appears that the accident' occurred on the twenty-sixth of the month, and there is no evidence as to the length of time during which the grating had been out of repair.</p> <p>Btoiset, J., dissented.</p>

Appeal by the defendant, Pinkus Nathan, 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 4th day of October, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, foreclosing a mechanic’s lien.

Motion by the defendant, Edward S. Stokes, for a new trial made upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the defendant’s counterclaim and the verdict of a jury in favor of the, plaintiff, rendered by direction of the court.

Appeal by the defendant, Maurice Bonnoil, 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 May, 1899, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 8th day of May, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Frederica M. Poillon, 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 5th day of December, 1899, upon the verdict of a jury rendered by direction of the court.

Appeal by the plaintiff, The Western Union Telegraph Company,, 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 25th day of July, 1899, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merits.

Motion by the defendant, the American Exchange National Bank, for judgment upon the verdict of a jury rendered by direction of the court, subject to the opinion of the Appellate Division, on the loth day of March, 1899, after a trial at the New York Trial Term.

Appeal by the defendants, The New York Elevated Railroad Company and another, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of February, 1900, as denies defendants’ motion to resettle the order of February 14, 1900, by modifying the terms therein imposed.

Motion to disbar E. Townsend Goldberg, an attorney and counselor at law, made upon the report of a referee adjudging him guilty of certain charges preferred against him.

Appeal by the defendant, Henderson, Hidl & Company (Limited), from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of April, 1899, appointing a receiver of the rents and profits of mortgaged premises described in the complaint in the action.

Appeal by the plaintiff, The Tradesmen’s National Bank of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of January, 1900, denying the plaintiff’s motion to strike out of the answer as much therein as is stated under the heading of the third separate defense and comprised within paragraphs numbered Y, YI, YII, YIII and IK thereof as immaterial,…

Appeal by the plaintiff, Frederick M. Crossett, 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 the plaintiff’s motion for leave to reissue a commission directed to be issued by an order dated November 3, 1898, and denying a further motion for leave to issue a new commission to re-examine witnesses examined under a commission issued under said…

Appeal by the plaintiff, Reinhard Kochmann, 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 14th day of November, 1899, upon the dismissal of the complaint by direction of the court, after a trial before the court and a jury at the New York Trial Term.

Appeal by the defendant, The Press Publishing 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 29th day of November 1899, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to the second defense of the amended answer.

Appeal by the plaintiff, John Cunningham, 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 18th day of November, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the New York Trial Term, and also from an order entered in said clerk’s office on the lith day of November, 1899, denying the plaintiff’s motion for a new trial made upon…

Appeal by the defendant, William Everett House, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ÍSÍew York on the 17th day of December, 1899, upon an order made at the Hew- York Special Term, and entered in said clerk’s office on the 6th day of December, 1899, granting the plaintiff’s motion for judgment upon the pleadings, with notice of an intention to bring up for review upon such appeal the said order.

<p> Review of assessments for taxation—joinder of several owners of several pieces of property not of the same nature is not permissible. </p> <p>The owners of separate pieces of property, not of the same nature, located in the borough of Manhattan, assessments levied upon which are alleged to be excessive and unequal, cannot, where the determination of their respective rights do not rest upon the same facts, unite in a single proceeding to obtain a review of such assessments; the fact that it is alleged generally that the valuation of property in the borough of Manhattan was increased seventeen per cent over the valuation of 1898, while the valuation of property in the borough of Brooklyn was increased only seven and eight-tenths per cent over the valuation of 1898, does not alter the situation.</p>

<p>A motion is the only method of obtaining a hearing in a special proceeding — review of the discretion to shorten the notice—resignation of a trustee—proof required as to the reason therefor.</p> <p>Rule 37 of the General Rules of Practice, providing that all questions for argument and all motions made at Special or Trial Terms shall be brought before the court on a notice of eight days, unless a shorter time is prescribed by an order to show cause under section 780 of the Code of Civil Procedure, prescribes the only method of bringing on a hearing in a special proceeding of which the court has already taken j urisdiction.</p> <p>The determination of the question whether sufficient ground exists for prescribing a notice of less than eight days rests in the discretion of the court, and unless it is quite clear that such discretion has been abused or that some special injustice has resulted, the appellate court will be loath to disturb the exercise of such discretion by the court below.</p> <p>The resignation of a testamentary trustee will not be accepted as a matter of course, and where the allegations of his petition are put in issue by the guardian ad litem of an infant cestui que trust it is error to accept such resignation without requiring him to make proof of the facts alleged in his petition.</p>

Appeal by the defendant, Wilhelm Schroder, 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 New York on the 5tli day of February, 1900, denying the defendant’s motion for a commission to take testimony.

Appeal by the plaintiff, Elizabeth J. Goldner, 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 27th day of November, 1899, upon an order made at the New York Special Term and entered in said clerk’s office on the 23d day of October, 1899, denying the plaintiff’s motion to confirm the report of the referee, and directing the dismissal of the complaint, with notice of an intention to -bring up…

<p>Appeal by the defendant, Martha A. Reade, 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 27tli day of Sej)tember, 1899, upon the decision of the court rendered after a trial at the New York Special Term.</p>

Appeal by the defendants, Annie Spencer Driggs 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 16th day of January, 1900, directing the said •defendants to deliver to the plaintiff’s attorneys a copy of the will •of their mother, Anna A. Driggs, certified and sworn to by a notary public or other official duly authorized by the laws of the State in which said…

Appeal by the plaintiff, Owen O’Donnell, 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 14tli day of November, 1899, upon the dismissal of the complaint at the close of the plaintiff’s case, by direction of the court, after a trial before the court and a jury at the New York Trial Term.

<p>Will —■ revocation of, by another writing — manner of the execution of such writing.</p> <p>A deed effecting a complete disposition of the grantor’s property and containing the following clause: “And I, Charles C. Backus (the grantor), aforesaid, hereby revoke, annul and cancel any last will and testament by me heretofore made, sealed, subscribed, published and declared as and for my last will and testament,” signed by the grantor in the presence of three subscribing witnesses, to whom the deed has been read over and to whom the grantor has stated that the instrument is “his act and deed,” operates as a complete revocation of the former will, even as to after-acquired property.</p> <p>The provisions of the Revised Statutes relating to the revocation of wills (3 R. S. 64, 65, §§ 43, 43, 41, 48), permitting the revocation of a will by “some other writing,” executed with the same formalities as a will, do not require that such writing should be characterized as a will by the person executing it, where that term does not indicate the true character of the writing.</p>

Appeal by the claimant, Bridget O’Neill, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 21st day of April, 1899, overruling and dismissing the objections filed by her to the report of a referee which disallowed a claim of the administi'atrix against the estate of the decedent and settled the accounts, and confirming said report.

<p> Revocation of letters testamentary—an obligation paid by the executor's outstanding promissory note is not allowable to him on his accounting. </p> <p>An executor, whose letters testamentary have been revoked after a decree admitting the will to probate has been reversed, is not entitled upon his accounting to an allowance for obligations incurred by him in the management of the estate, which have not been actually paid when his account is presented and before the letters are revoked.</p> <p>Where the referee appointed to state the account refuses to allow a bill for legal services rendered to the executor which has not been actually paid, and the executor then delivers to the attorney who rendered the services a promissory note made by him and indorsed by his wife, which is received by the attorney in full payment of his claim, the executor is not entitled to be allowed the amount of the promissory note upon a supplemental accounting.</p>

Appeal by the defendant, Eugene Sweeney, 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 24th day of January, 1900, denying said defendant’s motion for judgment upon the pleadings.

Appeal by the plaintiffs, Gerard B. Werner and another, infants, hy Sophie Werner, their guardian ad litem, from a judgment of the Supreme Court in favor of the defendant Tiie Eranltlin National Bank of the' city of New York, entered in the office of the clerk of the county of New York on the 26th day of October, 1899, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Appeal by the defendant, Edward S. Savage, from an interlocutory 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 16th day of October, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendant’s demurrer to the complaint.</p>

Appeal by the plaintiff, Susie A. Marshall, 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 27th day of January, 1900, 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. The complaint was dismissed upon the ground that it did not state • facts sufficient to constitute a cause of action.

<p>Right to put a conduit for telephone wires in a street, without making compensation to the abutting owners of the fee thereof— rural and urban highways distinguished.</p> <p>The placing, pursuant to a resolution of the common council of a city, beneath the surface of a street, the fee of which is in the abutting owners, of a conduit for telephone wires owned by a private corporation, which have previously been maintained on poles erected in the street, does not constitute an additional burden upon the street which will entitle the abutting owners to additional compensation.</p> <p>Laughlin, J., dissented.</p> <p>The distinction between rural and urban streets considered with reference to the uses to which they may be put.</p>

Appeal by the defendant, Moyer Ullman, as executor, etc., of Amelia Ullman, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in .the office of the clerk of the county of Jefferson on the 24th day of October, 1899, upon the report of a referee.

<p>A natural watercourse defined — liability for the pollution of its waters by a salt mining company — liability in the ease of an artificial channel for surface water.</p> <p>A natural watercourse is a stream of water flowing in a defined bed or channel with banks and sides, having permanent sources of supply; it is not essential that the flow should be uniform or uninterrupted.</p> <p>A salt mining company which, by means of a dam constructed across a ditch, causes surface waters, impregnated with salt, which would naturally flow into that' ditch, to be diverted in their passage over its lands into a natural watercourse, is liable for the damages sustained by an owner of land upon the watercourse in consequence of its pollution.</p> <p>Qucere, whether the rule would not he the same if the ditch and the watercourse were both- artificial channels to accommodate surface water.</p>

Appeal by the defendant, Moses B. Shantz, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 7tli day of August, 1899, upon the verdict of a jury, rendered after a trial at the Monroe Trial Term, 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, Mary Glawatz, 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 8tli day of September, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Erie Trial Term.

Appeal by the plaintiff, Rudolph O. Einsfeld, from an order of tiie Supreme Court, made at the Niagara Trial Term and entered in the office of the clerk of the county of Niagara on the 19th day of April, 1899, setting aside the verdict of a jury in favor of the plaintiff for $4,000 and granting the defendant’s motion for a new trial. The defendant is a railroad corporation owning and operating •about six miles of tracks in or near the city of Niagara Falls.

Appeal by the plaintiff, Olive A. Sternaman, 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 14th day of June, 1898, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Erie Trial Term.

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

Appeal by the defendant, the Queen City Ice Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 12th day of May, 1899, upon the verdict of a jury rendered after a trial at the Chautauqua Trial Term, and also from an order entered in said clerk’s office on the 2d day of June, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal bv the defendants, The Terminal Railway Company of Buffalo 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 Erie on the 1st day of February, 1899, upon the verdict of a jury for $10,000, rendered after a trial at the Erie Trial Term, and also from an order entered in said clerk’s office on the 13th day of April, 1899, denying the said defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, the Onondaga County Savings Bank, from a judgment of the County Court of Onondaga county in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 20th day of May, 1899, reversing a judgment of the Municipal Court of the city of Syracuse in favor of the defendant.

Appeal by the plaintiff, William Y. Robinson, from two orders of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Livingston on the 3d and 4tli days of November, 1899, respectively, directing the plaintiff to amend his complaint so as to separately state and number the two causes of action alleged to be set forth therein, or to eliminate one of said causes of action therefrom.

Appeal by the defendant, A. Oliver Barton Corbett, from a judgment of the County Court of Oneida county in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 23d day of November, 1899, upon the verdict of a jury convicting the defendant of the crime of bigamy. The defendant was indicted by the grand jury of the county of Oneida in October, 1899.

Appeal by the defendants, Benjamin Calhoun 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 Jefferson on the 30th day of June, 1899, upon the report of a referee adjudging $900 to be due on a mortgage held by the plaintiff and decreeing the foreclosure thereof, with notice of an intention to bring up for review upon such appeal the order confirming said report.

Appeal by the defendant, James R. Mitchell, from a judgment of the Supreme Court in favor of the plaintiff, rendered on the 7th day of December, 1899, upon the verdict of a jury, convicting the defendant of the crime of grand larceny in the second degree. The defendant was indicted by the grand jury of Erie county, at a term of the Erie County Court, held in the month of September, 1899.

<p>Appeal by the defendant,- The City of Syracuse, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 24th day of April, 1899, upon the verdict of a jury for $400 rendered after a trial at the Onondaga Trial Term, and also from an order entered in said clerk’s office on the 22d day of April, 1899, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was commenced on the 26th day of July, 1898, to recover damages alleged to have been sustained by the plaintiff in falling upon Montgomery street in the city of Syracuse, FT. Y., on the 25th day of May, 1898, through the negligence of the defendant.</p>

Appeal by the Comptroller of the State of Hew York and others, from a decree of the Surrogate’s Court of the county of Erie, entered in said Surrogate’s Court on the 27th day of January, 1898, modifying an order made on the 5th day of Hovember, 1897, which confirmed the report of the appraiser appointed under the Taxable Transfer Act to fix the value of the property of which one Elbridge G. Spaulding died seized, and which was subject to taxation under said act.

Appeal by the defendants, Daniel L. Webster and others, assessors of the town of Alden, from so much of an order of the Supreme Court, made at the Erie Special Term and entered in the office of the cleric of the county of Erie on the 9th day of October, 1899, as allows the writ of certiorari referred to therein to be amended mono pro tvm,G as to the date of issuance, and that said writ should be attested by the justice of the Supreme Court who allowed and granted the same,…

Motion by the defendants, the William McKinley Canning Company and another, for a new trial under section 1001 of the Code of Civil Procedure, an interlocutory judgment in favor of the plaintiff having been entered in the office of the clerk of the county of Oneida on the 1st day of November, 1898, upon the decision of the court rendered after a trial at the Oneida Special Term.

<p>Appeal by the plaintiffs, William L. Savage and another, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 21st day of October, 1899, upon the decision of the court, rendered after a trial at the-Erie Special Term, overruling the plaintiffs’ demurrer to the third answer contained in the defendant’s second supplemental answer.</p> <p>The action was begun on the 28tli day of August, 1898, to recover $301.25, on account of a contract entered into between the plaintiffs and the defendant. The allegations of the complaint, so far as material, are, in substance: That in September, 1895, the plaintiffs entered into a contract with the defendant to construct a school building in the city of Buffalo, according to plans and specifications made by the defendant, at the agreed price of $45,999.99, payment to be made as the work progressed, upon the written certificates of the architects; that on January 24, 1896, the plaintiffs had performed work and furnished materials in the performance of said contract amounting to $14,000, and had been paid only $11,000; that on said day the plaintiffs procured from the architects a certificate in writing certifying that they had performed work sufficient under said contract to entitle them to receive the further sum of $1,000; that on January 27, 1896, the defendant wrongfully neglected and refused to pay $301.25 of the sum specified in said certificate, although requested so to do by the plaintiffs: that said sum is due and owing to the plaintiffs, and judgment is demanded for the amount, with interest and costs.</p> <p>For a third answer and defense to the cause of action set forth in the complaint the defendant, in substance, alleged: That on the 2d day of July, 1896, an action in equity was brought by one William L. Jones, the attorney for the plaintiffs in this action, to recover upon certain assignments of claims alleged to be due and owing on account of the contract in question, aud which claims had been assigned to him by the plaintiffs before the commencement of that action ; that the city of Buffalo and the plaintiffs in this action were made defendants; that the defendant the city of Buffalo answered, alleging, in substance, that nothing was due or owing under said contract; that the contractors (these plaintiffs) had abandoned the contract, and that the defendant completed it at its own expense, at a cost largely in excess of the contract price.</p> <p>The issues so framed were tried before the court and a decision rendered in effect that the said contractors (these plaintiffs), on the. 9th day of July, 1896, abandoned their contract; that such abandonment was accepted by the city of Buffalo, and that it thereupon entered and took possession of the premises for the purpose of completing the work, and did so complete it at a cost in excess of the contract price of $6,135.94; that said sum was due and owing to the city from the contractors (these plaintiffs) on account of such contract, and that there was nothing due to the contractors at the time when the assignments were made to Jones, the plaintiff in that action, aud that there was nothing due or owing to the plaintiff, and judgment was directed dismissing the plaintiff’s complaint in that action, with costs, and judgment was entered accordingly on the 23d day of September, 1898, and it is alleged that such judgment and decision is a bar to this action.</p> <p>Such third answer or defense was demurred to by the plaintiffs, upon the ground, among others, that the said third answer does not state facts sufficient to constitute a defense, and is insufficient in law upon the face thereof. The learned trial justice overruled the demurrer, and from the interlocutory judgment entered upon such decision this apjieal is taken.</p>

Appeal by the defendant, Wesley U. Rowe, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Oneida on the lOtli day of October, 1899, upon the decision of the court, rendered after a trial at the Oneida Special Term, sustaining the plaintiffs’ demurrer to the counterclaims set up in the said defendant’s answer.

Appeal by the defendant, William H. Schmidt, from a judgment -of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 12th day of June, 1899, upon the decision of the court rendered after a trial at the Erie Special Term.

Motion by the plaintiff, Theresa Elias, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Monroe Trial Term. The plaintiff was injured by falling on a defective sidewalk on Smith street in the city of Rochester, October 24, 1896.

Appeal by the plaintiff, William P. Russell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Niagara on the 4th day of March, 18^9, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Niagara Trial Term, and also from an order entered in said clerk’s office on the 2d day of June, 1899, denying the plaintiff’s motion for a new trial made upon the…

Appeal by the plaintiffs, William J. Morgan, Comptroller of the State of New York, and another, from an order and decree of the Surrogate’s Court of Onondaga county, entered in said Surrogate’s Court on the 31st day of October, 1899, amending an order entered in that court on the lltli day of November, 1896, assessing the cash value of the legacies and devises in the will of James Hardie, deceased.

Appeal by the plaintiffs, Edward P. Glor and another, from a final judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Niagara on the 29th day of November, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Niagara Trial Term.