Volume 49 — New York Supplement

In the matter of the application of a majority of the directors of the-D. G. Yuengling Brewing Company for a voluntary dissolution of the corporation. The company appealed from an order modifying an order dissolving the corporation, so as to permit continuation of am action against it to recover for personal injuries alleged to have been caused by its negligence.

<p>Action by Katherine Hoff against Robert E. Hefford. On demur* rer to complaint.</p>

<p>Costs on Certi-oram—Negligent Assessors.</p> <p>Laws 1896, c. 90S, § 234, provides that costs shall be allowed against officers whose proceedings are reviewed on certiorari, if they acted with gross negligence in making the assessment. Code, § 2143, provides that not exceeding 850 and disbursements may be allowed by final order against either party in proceeding on certiorari. Held, that where, on such proceeding, the. court found that the assessors acted with gross negligence, and directed costs to be assessed as provided by law, costs to the amount of §50 should be assessed.</p>

<p>1. Elections—Returns by Inspectors—Refusal to Sign.</p> <p>Under General Election Lhw 1896, c. 909, § 111, which requires the inspectors, on completion of the canvass, to sign a statement thereof, and - further providing, if any inspector shall refuse to sign any return required of him by the law, he must state the grounds upon which such refusal is based upon such return, over his signature, on the return of an order to show cause why two inspectors of election should not sign such return they could not be compelled to do so, where they had indorsed on the return their reasons for refusing.</p> <p>2. Same—Correction of Clerical Error.</p> <p>The power of the court should not be invoked to correct a clerical error In the return of an election canvass, unless the board of canvassers have or will refuse to order the board of election inspectors to make the correction.</p> <p>3. Same—Powers of Inspectors.</p> <p>The inspectors of election have no power to correct any other than clerical errors existing in the return of a canvass.</p> <p>4. Same—Board of Canvassers.</p> <p>The board of canvassers have no power to reject any vote that comes to it certified in due form by the inspectors of election.</p> <p>5. Same—Application to Court.</p> <p>Where it does not clearly appear that a clerical error exists in the return of a canvass, an application to the court to have it corrected will be refused.</p>

<p>Appeal prom Surrogate—Review.</p> <p>Upon appeal from an order of the surrogate’s court denying an application by an assignee of a legacy to compel executors to pay the same, the’ appellate court cannot pass on the question of the surrogate’s power, under Code Civ. Proc. § 2722, to grant such relief to an assignee, unless it is made to appear in the order or decree that the denial was upon the ground of want of power.</p>

In the matter of the petition of George Hillard, special deputy commissioner of excise, from an order enjoining Annie Giese from trafficking in liquors. From an order granting the injunction, defendant appeals.

<p>Action by G. Graham & Sons Company against Alfred Van Horn and others. Judgment for plaintiff.</p>

Action by Myers Thompson, assignee of Lucy A. Thompson, against Curt Nicolai, as a stockholder of the Wendler Machine Company, to recover for a debt of said corporation, on the ground that defendant had not paid for the stock thereof of which he was the owner and holder. On demurrer to complaint. Overruled.

Action by Jeanie E. Soule against William M. Palmer and another on a lease. Judgment was rendered for defendant Palmer, from which plaintiff appeals.

Action by ‘Charles Newton against William H. Newton and others.. From a judgment dismissing his complaint on report of a referee, plaintiff appeals.

Action by Seymour A. Woolworth, as executor of the will of Emily O. Sage, deceased, against the Phoenix Mutual Life Insuranee Company of Hartford, Conn. From an order that the children of deceased should interplead, plaintiff appeals.

Action by Bella Cardonner, administratrix, against the Metropolitan Street-Railway Company. From a judgment entered on a verdict, and from an order denying a motion for a new trial, defendant appeals. Reversed.

<p>Intoxicating Liquors—Canceling License.</p> <p>In an application, under Liquor Tax Law, § 28, to cancel a certificate on the ground that the business is carried on within the prohibited distance from a building used exclusively as a church, it is immaterial how long it has been or will be used as a church, where it was so used before the application for the liquor tax certificate was made.</p>

<p>Administrator’s Account—Evidence—Assets op Estate.</p> <p>The temporary administrator of an estate, appointed under Code Civ. - Proe. § 2670, subd. 1, pending delay in the probate of the will, was also-sole surviving executor of the will, and was surviving member of a firm composed of himself and decedent. As such administrator, he sold a seat in the New York Stock Exchange, the certificate for which stood in the name of the testator at his death. Held, in proceeding for settlement of administrator’s account, that he should be allowed to prove that the seat and certificate belonged to the firm composed of the decedent and his administrator.</p>

<p>Habeas Corpus—Decision.</p> <p>Where the evidence before a justice was sufficient to require him to decide whether there was probable cause that defendant committed the offense, and he so finds, an order, upon habeas corpus, discharging the defendant from custody, was held erroneous.</p>

<p>1. Objections to Evidence—Waiver.</p> <p>Where, in an abutter’s action against an elevated railroad company, the defendant is permitted to introduce evidence of specific independent sales and rentals collateral to the issues, plaintiff’s seasonable objection and exceptions thereto are not waived or destroyed by failure to repeat the objection to subsequent questions calling for the same class of evidence.</p> <p>2. Same.</p> <p>Nor are such exceptions waived by plaintiff’s subsequent introduction of the same class of evidence in an attempt to meet what had been thus introduced by the defendant.</p>

Appeál from special term. Action by Bertha Kabatchnick against Jacob Kabatchnick. From an order modifying a judgment in a suit for separation by reducing alimony from $20 to $10 per week, defendant appeals.

Action by John J. Walton and others, composing the firm of Hunter, Walton & Co., against the mayor, aldermen, and commonalty of the city of Hew York. Judgment for plaintiffs,- and defendant appeals.

Action by Henry S. Wood against the mayor, aldermen, and commonalty of the city of New York. Motion for a judgment on a verdict directed for plaintiff, subject to the opinion of the appellate division.

<p>1. Breach of Contract—Reference.</p> <p>In an action to recover damages for a breach of contract, the fact that the items going to make up the amount of damage sustained are numerous does not make the action one upon an account, so as to compel a reference.</p> <p>3. Same—Jury Trial.</p> <p>Where, in an action brought to recover, upon several causes of action, a definite sum of money under a contract, and damages for its breach, the defendant denies the allegations of the complaint and raises the general issue, the defendant is entitled to a trial by jury.</p> <p>. -3. Appeal—Review—Discretion of Trial Court.</p> <p>Unless in very exceptional cases, the appellate division of the supreme court will not reverse the exercise of the discretion of the court below in refusing to refer the issues in an action.</p>

Action by Emma B. Young against Richard. K. Fox. From a judgment in favor of plaintiff for 125,000 entered on a verdict, and from an order denying a motion for a new trial, defendant appeals.

Cross appeals from special term. Action by Isaac Sommers and others against Leon Cottentin and others. From interlocutory and final judgments entered on reports of referees, all parties appeal.

<p>Action for Libel—Answer—Bill of Particulars.</p> <p>In an action for libel brought by the state printer against the publisher of a newspaper, held, that the plaintiff was entitled to a bill of particulars of matters set up in justification in the answer, covering a list of bills alleged to have been presented to the comptroller, and to have contained false and fraudulent charges; the title of reports in which paper was alleged to have been used in violation of contract; the title of reports required to be printed by plaintiff, but alleged to have been printed elsewhere; and the matters from which, by reason of plaintiff’s alleged delay and failure to perform, the state received no service.</p>

<p>Real-Estate Agent—Right to Commission.</p> <p>The broker of A., an owner of real property, wrote on his behalf to the supposed owner of other property, suggesting an exchange; and the latter forwarded the letter to plaintiff, also a broker, who merely forwarded it to defendant, the real owner, with a letter suggesting that defendant should call and see A.’s broker. Held, that plaintiff’s part in the matter did not entitle him to commissions on an exchange thereafter effected, through A.’s broker, between A. and defendant.</p>

Action by Ebenezer J. Purdy against John A. Oollyer and Elizabeth Jane Purdy, to compel defendants to specifically perform an alleged agreement to satisfy two certain mortgages on real property. From a judgment dismissing the complaint, plaintiff appeals.

<p>Controversy submitted on an agreed statement of facts, between Emanuel j. Bullard, as surviving administrator of Jeremiah Corn-well, deceased, and Henry C-. Bicknell. Judgment for defendant.</p>

<p>Negligence of Independent Contractor—Liability of Employer.</p> <p>The owner of a building who had employed contractors to tear it down, but who had no connection with the work except that he was about the building every day, is not liable for the death of one employed upon the work by the contractors, the owner having in no way induced the deceased to enter upon such employment.</p>

Action by the Central Trust Company of New York, as substituted trustee of the separate estate of Isabel Von Linden, against George W. Folsom and another. From a judgment dismissing its complaint, plaintiff appeals.

<p>Insurance Policy—Notice of Cancellation—Return of Premium.</p> <p>Where, by the terms of an insurance policy, it could be canceled at any time, by the insurance company giving five days’ notice of such cancellation, and when so canceled, if the premium thereon has been paid, the unearned portion thereof should be returned on surrender of the policy, the payment of such unearned portion of the premium is not a prerequisite to the cancellation of the policy, if the insurance company offers to return the same on demand and surrender of policy in its notice of cancellation.</p>

<p>Appeal from special term.</p> <p>Action by Clarence S. McClellan and others against Naomi Duncombe. From an order directing plaintiffs to furnish a bill of particulars, they appeal.</p>

Action by James Henderson and another against Louis F. Brennecke- and others. From a judgment in favor of plaintiffs, and from an order denying a new trial on the minutes, certain defendants appeal.

Action by Alexander S. Kirkman and another against May Louise Kirkman (individually and as administratrix of John Kirkman, deceased) and another, to have the title to certain lands freed from any trust in favor of John Kirkman, deceased (a former partner of plaintiff), or his legal representatives. From a judgment in favor of plaintiffs, rendered after trial at special term (45 R. Y. Supp. 373), defendant May Louise Kirkman, individually and as administratrix, appeals.

<p>1. Taxation—Property Subject.</p> <p>The claim of an owner of land, acquired by the city of New York under Laws 1888, c. 490, for compensation, is a thing in action, within the meaning of subdivision 4 of section 2 of the “Tax Law ” (Laws 1898, c. 908), and hence constitutes a property right subject to taxation.</p> <p>'2. Same—Listing by Assessors.</p> <p>It seems that, until an award is made, the amount of .such a claim and its value is too indefinite to justify the assessors in listing it.</p> <p>-3. Same.</p> <p>When, however, the commissioners have awarded a specified sum, and their report and award have been confirmed, and the amount has been deposited in a trust company to the owner’s credit, the assessors are justified in determining that his right to compensation is of the value of at least that sum, even though he has appealed from the order, claiming the award to be inadequate.</p>

Action by Frank F. Spencer and Caro A. T. Spencer against Henry Weber and others. From a judgment dismissing the complaint on the merits after a trial without a jury, plaintiffs appeal.

Action by Martin Fick, an infant, by Mary Fick, Ms guardian ad litem, against the Metropolitan Street-Railway Company, to recover for personal injuries received through defendant’s negligence.. From a. judgment for plaintiff, defendant appeals.

Action by Julius Rothschild against Samuel Mosbacher and Sigmund Herzfelder. From a judgment entered on a verdict, and from sm order denying a new trial, defendants appeal.

Spire, against the general committee of the Republican party, known as the Republican Organization of Erie County. From an order denying the writ, • relator appeals. The defendant is the political organization in the county of Erie of one of the two principal parties of this state, and as such it has duly adopted certain rules and by-laws for its government, and presumably for the furtherance of the principles of the political party which it represents.

Action by John Enright against the American-Belgian Lamp Company. From a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, defendant appeals.

<p>1. Trade-Names—Value.</p> <p>Where a party conducts business under a name formerly used by a company which has assigned and closed up its business, the value of such name as a trade-name is derived from the use subsequently made of it.</p> <p>2. Same—Injunction.</p> <p>Where plaintiff has made a reputation for his business under a certain name, he is entitled to an injunction enjoining the use of such name by one engaging in a similar business in the immediate vicinity.</p>

<p>1. Creation of Trust.</p> <p>A fund of money tendered by one and accepted by another under certain conditions creates a valid trust, and the trustee is obliged to apply the fund according to the conditions.</p> <p>8. Estoppel of Trustee.</p> <p>One receiving a fund as trustee is estopped from denying the donor’s title or interest therein.</p> <p>3. Agency.</p> <p>The fact that the alumni association of a college, which had passed resolutions to raise a fund to establish a professorship, applied to such college for its sanction, which was granted by resolution of the board of trustees that “this board * * hereby recognizes them as agents accordingly, and earnestly commends their agency to the confidence and liberality of the church,” would not entitle the college to the fund as principal.</p> <p>4. Voluntary Association—Transfer of Rights to Corporation.</p> <p>A resolution passed unanimously at an annual meeting of a voluntary association in favor of incorporation, and the appointment of a committee to take the necessary proceedings for that purpose, and which finally resulted in incorporation, is sufficient to transfer all the rights of the voluntary association to the corporation.</p>

<p>Appeal from trial term.</p> <p>Action by Annette B. Markoe against Tiffany & Go. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Corporations—Guaranty of Lease—Validity.</p> <p>A corporation organized for the manufacture and sale of beer and ale has power to guaranty the performance of the covenants in a lease by a lessee who has agreed to buy liquors of the company for sale on the leased premises.</p> <p>2. Same—Estoppel.</p> <p>Where an order of the court, authorizing a guardian to lease the ward’s property, required, as a condition, that a certain corporation should guaranty the performance of the covenants in the lease, upon the faith of which guaranty the premises were delivered, the corporation would be estopped to plead as defense that its guaranty was ultra vires.</p> <p>3. Contract—Consideration.</p> <p>An expressed consideration in a contract under seal is amply sufficient to support it.</p>

<p>1. Personal Injuries—Defective Apparatus—Negligence.</p> <p>Plaintiff was injured by the fall of a dumb-waiter, operated from without tlie shaft by hand. The apparatus was out of repair, but the defect which solely caused the accident was not known to defendant, the owner of the building, or to the janitor, plaintiff’s employer. The apparatus had been in use less than a year, and there was no evidence to show the necessity of its periodical inspection. Held, that a motion for nonsuit should have been granted.</p> <p>2. Same—Repair of Premises—Owner’s Liability</p> <p>"Defendant, not being plaintiff’s employer, was only bound to keep the apparatus in such repair that persons rightfully using it would be reasonably safe.</p>

<p>1. Banks and Banking—Collection—Liability for Agent's Acts.</p> <p>It is the duty of a bank, receiving from a customer a draft drawn by a third-party, to present it for payment, and it is liable for loss occasioned by aetsof its agents in effecting the collection.</p> <p>2. Payment—Third Person’s Paper—Presumption.</p> <p>Where the debtor, at the time of incurring the obligation, delivers to the-creditor a note or bill of a third person for the indebtedness, it will be pre-sume!, in the absence of evidence to the contrary, that the creditor accepted same in payment.</p> <p>•8. Banks and Banking—Failure to Return Draft—Liability of Bank.</p> <p>Plaintiff, a regular depositor, deposited with defendant a draft on a foreign bank for collection. Defendant forwarded it to its agent where the drawee was located, for collection. The drawee gave as payment a sight draft upon its correspondent in another city. Upon receipt of such information from its agent, defendant credited plaintiff with the proceeds of the draft, and notified him to that effect. On presentation of the sight draft, payment was, refused. About a month afterwards, defendant notified plaintiff that the credit given him on the draft was canceled. Plaintiff demanded the return of the draft. Held, that defendant was liable upon failure to return the draft, properly protested, or the amount thereof.</p> <p>Patterson, J., dissenting.</p>

Action by Julia E. Schmidt, administratrix, etc., of Clifford A. Schmidt, deceased, against the Coney Island & Brooklyn Railroad Company, for the death of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>1. Restive Horse—Accident to Driver—Contributory Negligence.</p> <p>A spirited horse, which was being driven through a street, was somewhat restive when passing trolley cars, but was under control. The bell of an approaching car was suddenly sounded, and the horse shied, the buggy striking against a lamp post near the curb. Held, that it was a question for the jury whether the driver was negligent in attempting to pass the car.</p> <p>2. Municipal Corporations—Location of Lamp Post—Negligence.</p> <p>Where a city in good faith exercises its discretion in locating- a street lamp post, it is not chargeable with negligence, as falling to give the public complete protection against possible accidents resulting from such location.</p> <p>3. Same.</p> <p>The fact that no light is placed on the post at the time, but it is set to anticipate future need of the city, is not material.</p>

<p>Appeal—Review—Support ov Wipe.</p> <p>Where, upon appeal from an order granting alimony and counsel fees to fi plaintiff in an action for a separation, it appeared that, upon the discontinuance of a prior action for the same relief, defendant had, in writing, conceded his liability, and had entered into a contract to pay plaintiff a specified sum per week, and had stipulated that in case of his default she might recommence her action, and petition for alimony and counsel fees, held, on affirming the order, that it was unnecessary to consider'the sufficiency of the original cause of action, or whether plaintiff had had a cause of action at all.</p>

<p>Fraudulent Conveyance—Evidence.</p> <p>In an action to set aside certain deeds from a debtor to his wife as in fraud of creditors, there was evidence that the husband and wife were partners in a tailoring business, of which she received one-third of the profits, and that a loan by her to her husband of the money thus acquired by her formed the consideration for the conveyances in question. Held, that while there were numerous contradictions in the testimony, and many suspicious circumstances, there was sufficient basis for the finding of the court that the consideration for the conveyances was fairly owing from the husband to the wife, and that the conveyances were made to discharge that obligation.</p>

Action by-William L. Stimper, an infant, by Ms guardian ad litem, Heinrich Stimper, against the Fuchs & Lang Manufacturing-Company. From a judgment nonsuiting him and dismissing his complaint, plaintiff appeals.

<p>Appeal from special term.</p> <p>Action by Franklin J. Trumbull against John J. Ashley. From a judgment for plaintiff, entered on an order striking out defendant’s answer as privileged, and directing judgment on the pleadings, defendant appeals.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by William Jeremiah against Rosina A. Pitcher. From the judgment entered on a decision of the justice without a jury (45 N. Y. Supp. 758), both parties appeal.</p>

Action by Frederick Klinlcer against the Third Avenue Railroad Company. From a judgment entered on a verdict for plaintiff, reduced by stipulation from $3,500 to $1,800, under an order of the trial term entered on the hearing of a motion for a new trial, and also from such order, defendant appeals.

In the matter of the application of Michael T. Daly, commissioner of public works of the city of New York, to acquire certain real estate. William I. Halstead appeals from an appraisal and report of commissioners,, and from an order confirming the report.

Action by Annie Patterson against the Westchester Electric Railway Company. From a judgment on a verdict for plaintiff, and an order denying a new trial, defendant appeals.

<p>1. Condemnation Proceedings—Award of Commissioners.</p> <p>An award of commissioners of appraisal in condemnation proceedings will not be set aside as inadequate, unless the inadequacy is palpable.</p> <p>2. Same—Market Value—Evidence.</p> <p>In condemnation proceedings, evidence of the profits of the business carried on in a store on the land, by the owners as merchants, is incompetent to prove the market value of the property.</p>

<p>Appeal from trial term.</p> <p>Action by Patrick Francis against George C. Tilyou. From a judgment on a verdict, defendant appeals.</p>

Action by Rebecca J. Bennett against Catharine M. Yonder Bosch and another. From an order striking the cause from the special term calendar, defendants appeal.

Action by Henry J. S. Hall and others, as executors of the last will of William H. Hall, deceased, against Raíala S. Beston, trading under the name of R. S. Beston & Co. From a judgment in favor of plaintiffs, entered on the decision of the court after trial at trial term without a jury, defendant appeals. For opinion on former appeal, see 43 N. Y. Supp. 304. ■ •

<p>1. Lire Insurance—Payment op Premium—Inception op Risk.</p> <p>Where the agent of a life insurance company, to whom had been sent the policy in question, with a receipt for the premium, signed by the vice president, and containing on the back thereof a clause authorizing the payment of premiums “to an agent producing a receipt therefor, signed by the * * * vice president * * * and countersigned by such agent,” on delivery of such policy took the notes of the son of the insured for the premium, and a few days later the check of such son’s wife in payment thereof, and thereupon delivered the premium receipt, countersigned by himself, and remitted to the company by his own check, such policy had its inception on the day of the delivery thereof.</p> <p>2. Same—Expert Testimony—Rights op Witness.</p> <p>Where a medical witness called for defendant in an action on a life insurance policy declined to answer a certain question on the ground that it called for expert testimony, an exception, on behalf of defendant, to a ruling that such witness had “the right to take that position,” was untenable.</p> <p>8. Same—Application—Warranty.</p> <p>The omission, by the agent of a life insurance company, in drawing up the application of the insured, to mention a slight ailment with which he had recently been affected, but from which he had entirely recovered, did not constitute a breach of warranty in the policy.</p>

<p>Petition by the widow of Charles Henry Trask, deceased, to compel an accounting by the Brooklyn Trust Company, as executor of one of the executors of her husband’s estate, and payment to her of money in its possession belonging to such estate. Cross petition by respondent, that it be permitted to give a voluntary accounting of property in its possession, belonging to such estate, and that the surviving executor and parties interested in Trask’s estate be cited to appear thereto.</p>

<p>Appeal from trial term.</p> <p>Action by Gerard Bennett and another against the Edison Electric Illuminating Company of Brooklyn on a contract. Judgment for plaintiffs. Defendant appeals.</p>

<p>Appeal from city court of Yonkers.</p> <p>Action by John V. Lawrence and another against Edward Thompson and another. Prom a judgment on a verdict for plaintiffs, and from an order denying a motion for a new trial, defendants appeal.</p>

<p>1. Equity—Retention of Jurisdiction—Relief at Law.</p> <p>Where plaintiff was found not to he entitled to the relief sought in an action in equity for the sole purpose of setting aside plaintiff’s assignment of an insurance policy for fraud, and to cancel the surrender of the policy to the company, it was error to find that the policy was converted, and that plaintiff was entitled to judgment at law for the value thereof.</p> <p>2. Pleading—Answer—New Cause of Action.</p> <p>An answer which attempts to subrogate plaintiff to a cause of action in favor of defendant against a co-defendant, which did not exist in favor of plaintiff when the action was begun, and which would entitle plaintiff to recover on a different cause of action than that alleged in his complaint, is bad.</p> <p>3. Action in Equity—Issues at Law—Trial.</p> <p>Where a complaint states an equitable cause of action against one defendant, and another defendant by answer alleges a legal cause of action against said defendant, said defendant cannot be compelled to submit the legal cause of action to the court of equity without a jury.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Callman Bouse against Leopold Haas and others. From an order directing defendants to serve a new undertaking, plaintiff appeals.</p>

Action by John Costello against the Third Avenue Railroad Company. From a judgment dismissing the complaint, plaintiff, appeals.. The action was brought to recover damages for injuries sustained by the plaintiff from being run over by a cable car through the negligence of the defendant. At the time of the injury the plaintiff was about eight years old, and a bright, healthy boy. The accident occurred about noon on a clear day.

. Action by George D. Sweetser and others against Mary A. Davis and others. From a judgment dismissing plaintiffs’ complaint on the merits, they appeal.

<p>1. Park Commissioner—Powers.</p> <p>In a proceeding for a peremptory writ of mandamus to compel the park commissioner of the city of Brooklyn to take legal proceedings to prevent the further maintenance and operation, which had continued for many years, of a steam railroad at grade over Ft. Hamilton Parkway, held, that the provisions of Laws 1892, c. 665, declaring that the highway should thereafter “be under the exclusive charge and management” of the commissioner, and authorizing him to “make and enforce proper rules and regulations for the-public use thereof,” conferred upon him no authority to sue, and were not broad enough to empower him to take the action proposed.</p> <p>3. Same—Injuries to Highway—Right or Action.</p> <p>Laws 1892, c. 065, did not transfer to the park commissioner of the city of Brooklyn the right to sue for injuries to the highways, which, under section 15-•of the “Highway Law” (Laws 1890, c. 568), was possessed by the highway commissioners of the town of New Utrecht, which subsequently became a part of the city of Brooklyn.</p>

<p>1. Contract with Wife—Enforcement—Consideration.</p> <p>In an action brought by a husband to recover from his wife one-half of the net proceeds of a sale of certain real estate owned by her, and bought with her own money, his claim resting on an alleged agreement made after the land was acquired by the wife, held, that such a contract, if enforceable at all, would have to be based upon a good and valuable, and not merely a meritorious, consideration.</p> <p>2. Same—Evidence.</p> <p>To entitle one to specific performance of an oral contract partly performed, for an interest in the proceeds derived from a sale of lands owned by another, it is absolutely essential in every case that the contract between them should not only be clearly proved, but that its terms and conditions should be made reasonably certain.</p>

Application by J. Carlton Ward for mandamus to compel his reinstatement as a member of the Uptown Association. From an order dismissing the writ, relator appealed, and an alternative writ of mandamus was ordered to issue. On the trial of this writ, a verdict was directed for defendant, and from the final order dismissing the writ the relator appeals.

<p>Appeal from special term.</p> <p>Action by Charles A. Hess against the New York Press Company, Limited. From an order striking out portions of amended answer, •defendant appeals.</p>

<p>1. Pleading—Motion to Make More Definite.</p> <p>Where, in an' action on an account stated, defendant, in addition to a general denial, alleged, as a further defense and counterclaim, a contract by which plaintiff was to do certain work for defendant for $425, and that, in addition to the payments admitted by plaintiff, defendant paid to plaintiff the sum of $190, to induce him to finish the work, which he failed to do, to defendant’s damage, etc., these allegations were sufficiently definite, without stating whether the alleged pajonent was made under the contract or for what other purpose.</p> <p>2. Same—Motion to Strike.</p> <p>The sufficiency of a fact pleaded as a defense should be raised by demurrer or on the trial, and not by a motion to strike out.</p>

<p>Appeal from trial term.</p> <p>Action by Sarah A. Norton against the Third Avenue Railroad Company. From a judgment on a verdict and from an order denying a motion for a new trial, defendant appeals.</p>

Action by Peter H. Daly against the Central Railroad Company of New Jersey. From a judgment dismissing the complaint and from an order denying a motion for new trial, plaintiff appeals. The plaintiff was a passenger upon one of the defendant’s trains, which arrived in Jersey City on the evening of the 23d of June, 1895. He was asleep when the train came to a final stop.

<p>Appeal from special term.</p> <p>Action by David J. Lees, as receiver of the firm of Rothschild & Schwab, against John Dobson and others. From an order continuing a preliminary injunction, defendants Herman H. Schwietering and others appeal.</p>

Action by Samuel L. White against Peter H. McNulty. From a judgment entered on the verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>1. Master and Servant—Liability of Master—Defective Appliances.</p> <p>In the furnishing of a permanent hoisting derrick, it is the duty of the master to furnish the materials and workmanship of such a character that they will stand the work which it is expected to perform, and he is liable to a servant for any failure in this regard.</p> <p>2. Same—Negligence of Fellow Servant.</p> <p>The duty of a master to furnish proper appliances could not be delegated to a servant so as to render the negligent causing of the injury, where a bolt in a permanent derrick broke because inserted in an improper manner, that of a fellow servant, for which the master would not be responsible.</p> <p>Cullen and Bartlett, XL, dissenting.</p>

Action by Adelbert Kullman against Henry D. Cox for specific performance of a contract for the purchase of realty. From a judgment dismissing the complaint, plaintiff appeals.

Action by Laura Louise Todd, individually and as administratrix, etc., and others, against Clarence F. Todd and others. A judgment was rendered, under which Smith Lent was appointed referee to sell the property in suit. On application of Marie Louise Todd and others, the referee was directed to file his report of sale, and he appeals.

Proceeding by the people, on the relation of Thomas Allison, for a writ of mandámus addressed to the board of education of the city of New York. From an order granting the writ, defendant appeals.

Action by Bichard D. Harris against George Elliott and others. Prom an order denying a motion to compel plaintiff to pay money into court, defendants appeal.

<p>1. Trust Deed—Construction.</p> <p>The owner of realty conveyed it upon trust to apply the income to the grantor’s wife for life, and upon her death to convey the lands to his children in fee, the then living issue of any then deceased child to take their parent’s share, and, if there should then be no issue of the grantor, to convey the land to his heirs. At the execution of the deed, the grantor had three children, one of whom died before the life tenant, without issue, but devised to one of his sisters his interest under the deed. Held, in partition, after the death of the life tenant, that, under the direction for future division among a class, only those members of the class who survived were entitled to take, and' that the lands should be divided equally among the two survivors.</p> <p>2. Wills—Construction—Vesting of Remainder.</p> <p>The grantor, by his will, gave to his wife, for life, certain personalty, upon her death the same to “belong to my children, the descendants of any deceased children to take the share their parent would have taken if living,” and, if none of his descendants survived his wife, “the property shall belong and be delivered” to certain residuary legatees. Held, that under 1 Rev. St. p. 723, the remainders to the children vested at testator’s death, subject to be devested only in case none of his descendants survived the wife, the gift over operating only by way of substitution in that event, and, as there were survivors, the share of testator’s son, who died without issue, before the wife, passed under the son’s will to his sister.</p> <p>3. Reference—Report.</p> <p>Under Code Civ. Proc. 1 1228, where an action is referred to a referee to hear and determine, and his report directs a judgment to be entered, it stands as a decision of the court, and under that section the clerk is required to enter judgment upon it when its form has been settled by the referee.</p> <p>Van Brunt, P. J., and Rumsey, J., dissenting.</p>

Action by Floyd S. Corbin against the Casina Land Company and others. From three orders vacating an injunction granted in another court, and in certain other respects imposing conditions and granting affirmative relief, plaintiff appeals.

<p>Interpleader—Right to Order.</p> <p>A defendant is not entitled to an order of interpleader unless he admits a liability to some one, and the only question is to whom he is liable.</p>

Action by John A. Roebling’s Sons Company against Alvin J. Belden and John A. Seely. From an order denying plaintiff’s motion for judgment on the pleadings for a portion of the claim alleged to have been admitted by the amended answer, plaintiff appeals.

Action by William W. Brauer against the Oceanic Steam Navigation Company, Limited. From an order granting a bill of particulars, plaintiff appeals. The complaint was unverified.

Action by the Commercial Advertiser Association against David O. Haynes, doing business under the firm name of D. O. Haynes & Co., to restrain defendant from imitating the name of plaintiff’s newspaper.

Application by William J. Hardy and William N. Kennedy for leave to bring an action against the committee of the property of an insane person to recover value of services rendered, expenses incurred, etc. From an order denying the application, petitioners appeal.

<p>Appeal from special term.</p> <p>Action by Sarah Schick against Jacob Fleischhauer. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals.</p>

<p>Temporary Injunction.</p> <p>Under Code Civ. Proc. § 603, unless a cause of action is set out in the complaint, and an injunction demanded as a part of the relief sought, no temporary injunction can be granted; and therefore, on applying for an injunction, the complaint must be presented.</p>

<p>Appeal from trial term.</p> <p>Action by John J. Blair against George Hagemeyer and others. From a judgment for defendants, plaintiff appeals.</p>

Action by Thomas W. Burford against the mayor, aldermen, and commonalty of the city of New York. From a judgment dismissing the complaint, and from an order denying a motion for a new trial, plaintiff appeals.

Action by Franklin Bien against Max Freund and another. From? a judgment entered on a verdict, and from an order denying a new-trial, defendants appeal.

<p>1. Action on Contract—Performance—Tender and Refusal.</p> <p>An action was brought to recover a sum of money upon a contract, by which the defendant agreed to pay the plaintiff $2,500 at a certain time, upon condition that the plaintiff should first furnish to defendant a general release specified. The complaint alleged, among other things, that at the-proper time the plaintiff tendered such release to the defendant, and demantled payment, which was refused, etc. Held, that the reciprocal agreements were substantially mutual conditions to be performed at the same time, and that the allegations of tender and refusal set up a good cause of action.</p> <p>■3. Attachment—Vacation.</p> <p>On a motion to vacate an attachment on the ground that the bank accounts levied upon, though standing in defendant’s name, did not belong to her personally, but as an executrix of a certain will, it appeared that defendant, who was also the residuary legatee under the will, had in fact received the money, and undertaken to deal with it as her own. Held, that the question of actual ownership was immaterial upon this motion, and that the levy, having been properly made, could not be interfered with, until, at least, the sheriff had had an opportunity to be heard.</p>

Certiorari by the people on the relation of James J. Walker, .against Theodore Roosevelt and others, commissioners, etc., to review the dismissal of relator from the police force of the police department of the city of New York.

Action by Alfred G-utwillig against Morris Weiderman and others. From an order confirming the referee’s report, William H. Schmohl and another (claimants) appeal.

Submission of controversy between the mayor, aldermen, and commonalty of the city of New York and Amelia Gorman, executrix of John J. Gorman, deceased, and others. Judgment for plaintiff. This is a submission of a controversy upon agreed facts under section 1279 of tile Code of Civil Procedure.

Action by Augustus Sbarboro against the health department of the city of New York, Charles G. Wilson, George B. Fowler, and others. From an order overruling a demurrer to the answer, plaintiff appeals.

Action by Ella E. Arnold against Luther Adams and others. From a judgment for plaintiff, defendants appeal. This is an action brought by the plaintiff, as the assignee of her husband, Charles M. Arnold, to recover the sum of $100, alleged to be due him from the defendants as salary for the month commencing October 25, and ending November 25, 1895.

Action by Sophia Maria Elosua y Salazar, as executrix, etc., against the New York & Harlem Railroad Company and another, to recover damages for building an elevated railway structure in front of her property. Verdict for plaintiff.

Action by Leila O. Henriques and another against John W. Sterling and others. From an order dismissing the complaint, and an order denying a motion to resettle the first-mentioned order, plaintiffs appeal. Opinion of Hon. LESLIE W. RUSSELL on motion to dismiss: On the 18th day of January, 1896, this action was begun by the service of a summons on one of the defendants.

Action by Leila 0. Henriques and another against Minnie Garson and others. From an order strildng out parts of the reply as irrelevant, plaintiffs appeal.

<p>Appeal from special term.</p> <p>Action by Leila O. Henriques and another against Minnie Gar son and others. From an order granting a motion for judgment on plaintiffs’ reply as frivolous, plaintiffs appeal.</p>

Action by Edward C. Sheehy against the Bronx Gas & Electric Company, the commissioners of the department of public parks, and the commissioners of the board of electrical control of the city of New York. From an order granting an injunction pendente lite,. the Bronx Gas & Electric Company appeals.

Action by Christian F. Meyer against Julius Brenzinger and Ernest F. Klee for money had and received. .From a judgment for defendants, plaintiff appeals.

<p>1. Railroads—Passenger Rates—Repeal of Charter.</p> <p>Laws 1890, c. 565, § 37, providing that “every” railroad company “may” collect certain rates of fare, repeals a provision of a charter of a railroad company (Laws 1872, c. 594, § 5) authorizing it to fix its own rates, since the intent of the legislature was to fix a uniform rule as to railroad fares.</p> <p>2. Same—Overcharge—Inadvertence.</p> <p>When, under the advice of its counsel, a railroad company makes an overcharge, the right to which might be legally considered a fairly doubtful question, it constitutes an inadvertence or mistake not amounting to gross negligence, within the terms of Laws 1890, c. 565, § 39, imposing a forfeiture of $50 on any railroad corporation which shall ask or receive more than the lawful rate of fare, unless such overcharge was made through inadvertence or mistake not amounting to gross negligence.</p>

Action by Robert N. Clemons against Daniel Mellon for libel and slander. From a judgment for defendant, plaintiff appeals. The plaintiff and appellant is a physician. Some time in the month of September, 1895, the daughter of the defendant was taken sick, and the plaintiff was called to attend her, and, upon such attendance, prescribed medicines for her; among others, belladonna.

<p>Action by Albert E. Andrus, etc., against William W. Wheeler,</p>

<p>Action by James E. Boyer and another against Ellenor East and others.</p>

<p>Action by John H. Bryant against the Brooklyn Heights Railroad Company.</p>

<p>In the matter of the application of the attorney general.</p>

<p>Action by Catherine Bird against the Mutual Union Association of Rochester.</p>

<p>Action by Floyd S. Corbin against the Casina Land Company and others.</p>

<p>Action by Elizabeth D. De Lancey against John P. Hawkins, impleaded with Elia D. Hunter and others.</p>

<p>Action by Charles E. Burbank against Victoria Van Dam.</p>

<p>Action by Horace H. Chittenden, as assignee, against Isaac E. Gates and others.</p>

Appeal by Stephen Burrows from a judgment affirming a judgment of a justice’s court in a special proceeding instituted under title 2, c 17, of the Code of Civil Procedure, by Catharine Finnegan and others, before Weils E. Ellis, a justice of the peace of the county of Steuben, against Stephen Burrows, the appellant, for forcible entry upon and detainer of about 27 acres of land, situate in the town of Hornellsvilie, in that county.

<p>Action, by Kate Dwyer, as administratrix, etc., against the Buffalo General Electric Company.</p>

<p>Action by the Empire Lumber Company against Hugh McLean and others.</p>

<p>Action by Joanna FeaJy against John Bull.</p>

<p>Action by George B. Gurley against William Fried-er.</p>

<p>Action by George A. Gardner against Frederick C. Seitz, impleaded with John J. L. Friederich and others.</p>

<p>Action by Bernard G. Hayes against Harry 0. Kennedy and another.</p>

<p>Action by Stephen W. Goodwin against Albert L. Thompson.</p>

<p>Action by the J. F. Pease Furnace Company against Augustus Kesler and Patrick H. Brown.</p>

<p>Action iby William R. Hearst against William Berri and others.</p>

<p>Action by Bertha ICabatchnick against Jacob Kabatehnick.</p>

<p>Action by Daniel Kramer against Ernst K. T. Bjerrum. Warren S. Burt, for appellant. L. A. Gould, for respondent.</p>

<p>Action by James Keegan against John Smith, impleaded.</p>

<p>In the matter of Mary E. Neafie, deceased.</p>

<p>Action by Frederick T. Mason against Frederick Tietig.</p>

<p>Action by John Menke against Edward J. H. Tamsen, as sheriff, Louis S. Firetag, and Abraham Firetag.</p>

<p>Action by the Mutual Life Insurance Company against Clara A. Low and others and John F. Nelson.</p>

<p>In the matter of Casper L. Odell, recorder of the city of Poughkeepsie.</p>

<p>Action by the people of the state of New York against Edward J. McCale.</p>

<p>Action by the New York & Mount Vernon Transportation Company and Stuart W. Cowan against George Tyroler, Nathan B. Blum, individually, etc., and another.</p>

<p>Application by the people of the state of New York, on the relation of the Crocker Chair Company, against James A. Roberts, as comptroller of the state of New York.</p>

<p>Action by the people of the state of New York against Joseph J. Garabed.</p>

<p>Action by William H. St. John against the New York Central & Hudson River Railroad Company.</p>

<p>Action by James Regan against William Fosdick.</p>

<p>Action by the Travelers’ Insurance Company against Ann Healey and others.</p>

<p>Action by James G. Truman against Benjamin Lombard, Jr., impleaded with others.</p>

<p>Action by Ella Toal against Andrew Sober. Hardy & Schellabarger, for appellant. William Hildreth and Field & Deshon, for respondent.</p>

<p>Action by the Vilas National Bank of Plattsburgh against John M. Newton and others.</p>