Volume 5 — New York Appellate Division Reports

<p>Appeal by the defendant, The Village of Little Falls, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 21st day of May, 1895, upon the report of a referee.</p> <p>The judgment was for $2,564.40, damages and costs. The action was brought to recover damages for an alleged trespass in destroying the water privileges and works of the plaintiff in the village of Little Falls.</p>

<p>Contributory negligence, whan, properly decided by the court us a question of law — evidence.</p> <p>The circumstances considered, under which a passenger is guilty of such contributory negligence as to make it the duty of the court to determine that question as one of law, where he leaves a railroad train and takes a route along a railroad track so obstructed by a pumping station and a coal trestle, between which and tlie track there is only a space of three feet and seven inches, that in order to get out of the way of an approaching train he must walk a distance of some ninety-five feet, unless he happens to he opposite to a three-foot door leading into an engine room of the coal trestle, or opposite to the steps of the train on which he has arrived.</p> <p>A question whether a railway postal clerk has any other certificate of any kind issued by the government, which entitles him to ride on the defendant’s railroad, is improper, where no such certificate is produced, as the question calls for a mere conclusion of the witness.</p>

<p>Appeal by the plaintiff, Margaret Mahar, from an order of the Supreme Court, made at the Orleans Circuit and entered in the office of the clerk of the county of Orleans on the 28th day of December, 1895, denying the plaintiff’s motion for a new trial made upon the minuted, after a verdict rendered by a jury in favor of the defendant by direction of the court on a trial at the Orleans Circuit.</p> <p>The action was brought to recover damages for an injury to the plaintiff, a passenger on defendant’s railroad, alleged to have been, caused by the negligence of the defendant.</p>

<p>Appeal by the defendant, the Grand Rapids Eire Insurance Company of Grand Rapids, Michigan, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 3d day of February, 1896, denying the defendant’s motion for a retaxation of costs in the action.</p>

<p>Appeal by the defendants, The G. H. Hammond Company, of Syracuse, N. Y., and another, from a judgment of the Supreme Court hi favor of the plaintiffs, entered in the office of the clerk of the county of Onondaga on the 8th day of May, 1895, upon the decision of the court rendered after a trial at the Onondaga Special Term.</p> <p>The action was a creditor’s suit.</p>

<p>Replevin — right of a vendee in good faith of goods fraudulently obtained by his vendar — payment therefor in part by a present and in pa/rt by a past consideration— repayment to the vendee of the cash advances, tlvrough sales of goods made after the bringing of the replevin suit.</p> <p>In an action of replevin based upon the fraud of the firm of Gerrish & Co. in purchasing of the plaintiff goods subsequently sold by that firm to the defendants, the evidence tended to prove the fraud, and that after the goods were sold Gerrish & Co. sold all their stock to the defendants, Warner, De Forest & Co., for §1,000 in cash, anote at three months for $8,855.53, the assumption by Warner & Co. of certain liabilities of Gerrish & Co., and the payment of an antecedent indebtedness due from Gerrish & Co. to Warner & Co.</p> <p>After the commencement of the action Warner & Co. sold enough of the stock to repay them their cash payment of §1,000, and upon this ground the court withdrew from the jury the question of the good faith of Warner & Co. in making the purchase of the stock of Gerrish & Co.</p> <p>Held, that this was erroneous;</p> <p>That if Warner & Co. acted in good faith they held the merchandise as bona fide purchasers, at least to the extent of the present consideration given therefor, and were entitled to retain all the goods until they were repaid such an amount as they had in good faith paid therefor;</p> <p>That, therefore, the plaintiffs were not entitled to the actual possession of the goods at the time when the action was brought, and that it was immaterial that Warner & Co. by subsequent sales of the goods had been able to repay themselves their cash advances, as otherwise other creditors of Gerrish & Co., who had sold goods to that firm, might make similar claims against Warner & Co., wlio might in this way be stripped of all the goods they had purchased, without having received anything for the cash advances made by them in good faith upon the goods.</p>

<p>Appeal by the defendant, Hugh Lamb, 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 19th day of March, 1896, denying the defendant’s motion to vacate an order for his examination before trial.</p>

<p>Discovery — effect of the service of an amended complaint after notice of a motion for a discovery.</p> <p>Where an order is made in an action, requiring the defendant to make a discovery of certain papers referred to in the complaint, and after the motion is noticed an amended complaint is served, to which no answer has been interposed, the application for a discovery is premature.</p>

Appeal by the defendants, Thomas P. Galligan and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of October, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 23d day of October, 1895, denying the defendants’ motion for a. new trial made upon the minutes.

<p>Appeal by the plaintiff, Vincenzo De Fino, 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 6th day of February, 1896, upon the dismissal of the complaint directed by the court, after a trial before the court and a jury at a Trial Term of the Supreme Court, and also from an order entered in said clerk’s office on the 6th day of February, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover damages for the conversion of moneys alleged to have been the property of the plaintiff.</p> <p>On the 1st day of December, 1890, one Frank Faiell filed a mechanic’s lien against the property of one Patrick Dempsey for $510. On the 1st clay of December, 1891, the lien was continued by order of the Court of Common Pleas, under section 6, chapter 342 of the Laws of 1885, and on the same day Faiell by writing, under .seal, assigned and transferred the lien to plaintiff, covenanting that there was $500 then due on the same, and that he, Faiell, would not collect or receive the same or any part thereof, or release or discharge the lien, and at the same time the plaintiff gave Faiell a writing, agreeing if the plaintiff collected any money upon the lien he would pay over to Faiell the one-sixth part thereof, after deducting the expense of collecting the money. The assignment of the lien to the plaintiff was filed December 2, 1891, and the lien seems to have been re-docketed December 1, 1892. In April, 1892, the owner of the property, Patrick Dempsey, made a sale of the same, and the title was closed April 20, 1892. The German Title Insurance Company examined and guaranteed the title. This mechanic’s lien was discovered to be on record against the property, and in order to protect the insurance company against liability for this lien, $618.45 was deposited with the insurance company April 30, 1892. February 2, 1893, the insurance company delivered to the •defendant a check for $638.45, in payment of the amount then due upon the lien, adding to his name as payee in the check the word attorney,” and at the same time the defendant delivered to the insurance company a paper purporting to he a satisfaction of the lien, executed and acknowledged by the plaintiff, and it was filed February 4, 1893, and the lien was canceled of record.</p> <p>The defendant indorsed the check received by him, signing his name, adding the word “ attorney,” and the words “ for deposit in the Nassau Bank to the credit of Edwin F. Stern,” and the amount of the check went to the defendant’s account, and he had the benefit of it. The satisfaction of the lien.was never executed by the plaintiff. It was a forgery. lie was not in New York city at the time the satisfaction purported to have been executed, and knew nothing .about it, and knew nothing about the payment of the money to the -defendant until long afterwards. December 19, 1893, demand in behalf of plaintiff was made that defendant pay over to plaintiff the $638.45, received by him from the insurance compuny, in payment of the amount of the lien, which was refused, and this action was commenced December 30, 1893. Upon cross-examination of Mr, Thornall, a witness for the plaintiff, a conversation between him and the defendant was drawn out, wherein it appeared that defendant said that the insurance company had sent to him to secure a, satisfaction of the lien ; that he thereupon prepared the paper and sent it to Mr. Faiell in Philadelphia, Penn., to be signed; that Faiell signed it and returned it to the defendant, but the county clerk would not satisfy the lien because it had been assigned to the plaintiff; that defendant then sent for Faiell to come to his office; that Faiell came, and the defendant told him that the lien had been assigned to plaintiff, and that they would have to get plaintiff’s signature in order to clear the record and get the money; that Faiell said the plaintiff was sick in his home in Mulberry street, and could not come down, and defendant thereupon prepared a new paper and gave to Faiell, who went out and a little while after came back with the paper executed; that defendant gave him a check for $400, and indorsed it “ correct ” or “ pay to bearer; ’’ that Faiell showed defendant a general release, purporting to be signed by plaintiff, and a receipt. All this was what defendant told this witness.</p> <p>Defendant did not swear to any of these things on the trial. At the close of plaintiff’s evidence defendant moved for a dismissal of the complaint, on the ground that when the money was demanded no tender was made of defendant’s charges. The court granted the-motion, saying that the money never belonged to the plaintiff and that it was not paid to or for him; that the insurance company-deposited it with the defendant for the purpose of clearing the title-from the lien; that plaintiff had not lost his lien, but could enforce-it notwithstanding the forged satisfaction piece; that the only way plaintiff could maintain the action would be by ratifying the act of defendant in receiving the money for him, instead of which he had repudiated it, and had demanded the money and brought his action for conversion, not for money had and received. Plaintiff requested to go to the jury, which was refused. Exception was taken to these; rulings.</p>

<p>Negligence — failure to inspect a defective machine — amendment of the title of an action brought by a guardian ad litem of an infant, instead of by the infant by his guardian ad litem.</p> <p>In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, it appeared that the plaintiff, an infant aged nineteen years, was compelled by the defendant to operate a machine to shape the edges of sheets of tin to be used in the manufacture of tin boxes. In operating the machine the operator stood in front of it, placed a sheet of tin with his right hand upon the lower die, pressed down the treadle with his foot, which caused the machinery to make one revolution which forced the upper die down upon the lower die and returned the upper die to its place ; the sheet of tin was then removed with the left hand, and another sheet was inserted. If the machine was in proper order the upper die was only moved down and back when the foot was pressed upon the treadle, and after it had returned to its place it would not move again until the foot was pressed upon the treadle again.</p> <p>The plaintiff alleged that, at the time of the accident, the upper die, after the foot was removed from the treadle, continued to move up and down, and that in this way the plaintiff’s fingers were caught between the dies and were cut off.</p> <p>The evidence as to the condition of the machine was conflicting, but tended to show that the machine made a clicking noise which indicated that the clutch of the machine was out of order; that the foreman had been notified of this noise, but did not examine the machine beyond looking at it casually, and then he told the plaintiff that the machine was all right and that he should go on with, his work.</p> <p>Held, that there was evidence tending to show a failure to exercise proper care by way of inspection and examination of the machine by the defendant, or by its foreman who represented the defendant, and that the question of negligence was properly submitted to the decision of a jury.</p> <p>This action was originally brought in the name of “Michael Kaplan as guardian ad litem of Simon Kaplan” as plaintiff, instead of in the name of the infant by his guardian, but upon the trial of the action the court permitted the amendment of the summons and complaint so that the title should appear in proper form.</p> <p>Held, that the amendment was proper, as there could be no surprise upon the part of the defendant, the nature of the action being perfectly apparent from the complaint, and that as the objection was not raised either by answer or demurrer it must be deemed to have been waived.</p>

<p>Appeal, by the relator, R. H. Macy & Co., 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 6th day of September, 1895, quashing the relator’s writ of certiorari and denying its motion for a writ of certiorari to review the action of the respondents in refusing to grant a license to the relator for the sale of strong and spirituous liquors.</p> <p>The relators, having a large department store on Sixth avenue, extending from Thirteenth to Fourteenth streets in the city of New York, made application to the respondents April 24,1895, for a storekeeper’s license. May 4 and 7,1895, the inspectors of excise reported that the nearest entrance to the relator’s store was within 200 feet of the nearest entrance to the public school building on the opposite side of the street.</p> <p>The relator’s premises had been licensed for two years prior to May 11, 1895. The respondents refused to grant the relators á license, for the .reason that they had no license prior to the passage of chapter 480 of the Laws of 1893, and that the nearest entrance to their store was on the same street and within 200 feet of the entrance of a building occupied exclusively as a school house, and that the respondents were of the opinion that it was not for the best interests of the community that strong and spirituous liquors should be sold in any building where dry goods or other articles of merchandise were sold and disposed of, and which was visited by women and children in large numbers, and that the respondents were satisfied in their discretion that the relator’s store was not a fit and proper place to be licensed.</p> <p>This writ was obtained May 29, 1895, and the order quashing it was made August 6, 1895.</p>

<p>Excise Law ■— a door closed and locked, is still an ‘ ‘ entrance."</p> <p>A door merely closed and locked is still an " entrance ” witliin tlie moaning of the Excise Law (§ 43 of chap. 401 of the Laws of 1892, ns amended by chap. 480 of the Laws of 1893).</p>

<p>Appeal by the plaintiff, Pedro A. Merino, as surviving partner of Pedro N. Merino & Sons, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 19th day of April, 1895, upon the report of a referee appointed to hear and determine a disputed claim against the estate of Jose M. Munoz, deceased.</p>

<p>Appeal by the plaintiff, Richard H. Goodell, from an interlocutory 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 15th day of February, 1896, upon the decision of the court rendered after a trial at the New York Special Term overruling the plaintiff’s demurrer to a separate defense set up in the eighth paragraph of the defendants’ answer, and also from an order entered in said clerk’s office on the 29th day of January, 1896, overruling said demurrer.</p>

Appeal by the plaintiff, Louis Blanck, 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 2d day of March, 1896, upon the verdict of a jury rendered by direction of the court, dismissing the plaintiff’s complaint, and also from an order entered in said clerk’s office on the 28th day of February, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Seventy-third Street Building Company, from so much of a judgment of the Court of Common Pleas for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 20th day of August, 1895, upon the report of a referee, as in any way adjudges the lien therein mentioned to be valid, and from so much of said judgment as adjudges that plaintiff acquired a good and valid lien, and from such part thereof as in any way adjudges the deed therein mentioned to be fraudulent and void, and from all parts of said judgment in any way relating to the defendant, The Seventy-third Street Building Company, or to the premises set forth and described in the judgment.</p>

<p>Personal injuries — $35,000 damages, when not excessive.</p> <p>In an action brought to recover damages resulting from personal injuries caused by the alleged negligence of the defendant, a railroad corporation, it appeared that as the result of a collision the plaintiff had his right arm and five of his ribs broken, had serious cuts upon his leg, bruises and a wound in the back, some of the large muscles being torn from their attachments to the spine, and was kept in bed for three months, after which he was able to hobble about with a crutch, but that it was about a year before he could use his arm. At the time of the trial, three years after the accident, he was still suffering severely, and his ultimate recovery was placed at periods varying, as claimed by the plaintiff, at from two to five years, and by the defense at from six months to one year.</p> <p>The plaintiff, at the time of the accident, was a young man twenty-eight years of age, in perfect health, and was earning §3,600 a year and his expenses ; his ■actual money losses up to the time of the trial had been about §9,000.</p> <p>Meld, that a verdict of §25,000 was not excessive in view of past losses and suffering, and of the probable losses and suffering to be sustained in the future.</p>

<p>Appeal by the plaintiff, Nicolas Geoffroy, as administrator, etc., of Jennie Clarkson Geoffroy, deceased, from a judgment of the Supreme Court in favor of the defendants, Alexander Gilbert and Lewis Y. F. Randolph, as executors, etc., of William R. Clarkson, deceased, entered in the office of the clerk of the county of New York on the 29th day of February, 1896, upon the decision of the court rendered after a trial at the New York Special Term.</p>

<p>Appeal by the plaintiff, Jonas G. Goldsmith, 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 30th day of October, 1891, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the New York Circuit.</p>

<p>Change of the place of trial for the convenience of witnesses — when an affidavit sufficiently states that the witnesses can testify to the facts mentioned.</p> <p>The affidavit of the defendant used on a motion to change the place of trial of am action, stated “that this defendant has conversed with the several witnesses herein named, and each and every witness has a vivid recollection of the different conversations had betAveen this defendant and plaintiff at the times hereini mentioned, and each and every witness so named is prepared to give testimony on the trial of this action as herein set forth, and the deponent avers that he-can prove on the trial of this cause all of the material facts as herein set forth hy each of the respective witnesses herein named.”</p> <p>Held, that the affidavit was sufficient to show that the defendant could prove by his witnesses the matters they were expected to testify to.</p>

<p>Appeal by Washington L. Cooper, as executor, etc., of Abraham J. Post, deceased, from so much of an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 16th day of July, 1895, as awards to George P. Webster thirty dollars costs as special guardian, to be paid by said executor, and also from an order entered in said court on the 1st day of October, 1895, directing said Washington L. Cooper, as such executor, to pay to said George P. Webster, as such special guardian, said sum of thirty dollars, made on the application of George P. Webster for a resettlement of said first-mentioned order.</p>

Appeal by the defendants, Philip J. Goodhart 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 19th day of March, 1896, granting the plaintiff’s motion to refer the issues in the action to a referee to hear and determine the same.

<p>Appeal by the plaintiff, Julius H. Eisner, from an interlocutory judgment of the Supreme Court in favor of the defendant, Mark H. Eisner, entered in the office of the clerk of the county of New York on the 4th day of February, 1896, upon the decision of the court rendered after a trial at the New York Special Term sustaining the said defendant’s demurrer to the plaintiff’s complaint, with notice of an intention to bring up for review upon such appeal the decision of the court upon which the judgment was entered.</p>

Appeal by the defendant, Thomas J. Mooney, from a judgment if the Superior Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 11th day of December, 1895, upon the verdict of a jury, and also from an order bearing date the 9th day of December, 1895, and entered in said clerk’s office denying the defendant’s motion for a new trial mde upon the minutes.

<p>Appeal by the defendant, William M. Halsted, from a judgment of the Superior Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 18th day of November, 1895, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 25th day of November, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover the rent of certain premises leased by the plaintiff to the defendant upon the ground that he had held over after the- expiration of his term.</p>

<p>Discovery of letters and letter-press copies out of the State — what proof is necessary to make letter-press copies competent evidence— General Rules of Practice No. 14, subd. 3.</p> <p>Upon an appeal from an order granting a discovery of certain letters and letterpress copies of letters, it appeared that it was necessary, upon the trial of the action, for the plaintiff to show that the defendant, The Hamilton Bank Note Company, had knowledge of a certain contract between the plaintiff and the defendant, The Kidder Press Manufacturing Company, which latter was a foreign corporation, whose papers and documents were in the State of Massachusetts. The original letters written by The Kidder Press Manufacturing Company to The Hamilton Bank Note Company were in the possession of the latter, and letter-press copies of the letters written by The Hamilton Bank Note Company to The Kidder Press Manufacturing Company were in the possession of The Hamilton Bank Note Company.</p> <p>Held, that the letters and letter-press copies were papers or documents in the possession or under the control of The Hamilton Bank Note Company, and were material to the decision of the action, and were clearly within subdivision 3 of Rule 14 of the General Rules of Practice;</p> <p>That the letter-press copies would be competent evidence if a notice was given to The Kidder Press Company to produce the originals and such production was refused.</p>

<p>Answer — a denial of knowledge or information “ as to all the allegations contained in the plaintiff’s complaint ” is sufficient.</p> <p>Upon an appeal by a defendant from an order overruling his answer as frivolous, it appeared that he had been sued as one of many underwriters upon a policy of insurance for his proportionate amount of a loss and had interposed an answer which stated that he had “no knowledge or information sufficient to form a belief as to all the allegations contained in the plaintiff’s complaint.”^</p> <p>Held, that the answer amounted to a denial of any knowledge or information sufficient to form a belief as to each and every material allegation of the complaint, and was authorized by section 500 of the Code of Civil Procedure.</p>

<p>Appeal by the plaintiffs, Augustus S. Van Wickle and another, 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 April, 1890, denying the plaintiffs’ motion for leave to amend their complaint.</p> <p>The action was one of several brought by judgment creditors of a domestic corporation on the ground that the whole amount of the capital stock of the company had not been paid in, and a certificate thereof recorded, as required by sections 10 and 11 of chapter 40 of the Laws of 1848.</p> <p>The amendments sought to he made were in effect that the defendant’s stock was not issued in payment for property necessary for the business of the company, and at its fair value; that there was no such property purchased, and that the only stock issued for anything except cash was stock worth at par $100,000, issued to the promoter of the company for services and expenses in organizing the company; that such services were fraudulently overvalued, and that the stock issued therefor was issued in bad faith and for the purpose of evading the statute.</p> <p>The plaintiffs sought to recover judgment for $500 and interest. The action was commenced in January, 1892. The motion was made in April, 3896. Nothing has been done in the action beyond the service of the pleadings and placing the case upon the calendar for trial. The case has not yet been reached.</p>

Appeal by the plaintiff, Mary Jane Gray, individually and as executrix and trustee, etc., of William H. Gray, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the comity of New York on the 10th day of February, 1896, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Everett M. Kennedy, as executor, etc., of Harvey Kennedy, 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 16th day of January, 1896, upon the verdict of a jury rendered by direction of the court after a trial at a Trial Term of said court.

<p>Appeal by the plaintiff, Maud Eva Slaven Depierris, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of New York on the 30th day of April, 1895, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merits.</p>

<p>Negligence — variance in the testimony as to the time and place of an accident, hour far material — when a car conductor is an interested loiiness.</p> <p>In an action brought to recover damages resulting from personal injuries caused-by the alleged negligence of the defendant, a street railway corporation, the plaintiff claimed that the accident was caused by the negligent act of the conductor of the car in starting the car from which the plaintiff was about ta alight, before the plaintiff had had an opportunity to do so, by reason, of which he was thrown to the ground and injured, and that the accident happened at One Hundred and Twenty-fifth street and Second avenue, in the city of New York. All the witnesses for the plaintiff swore that this was the place of the accident, while the witnesses for the defendant testified to the same accident, and identified the plaintiff as the man who fell from the car, hut all testified that the accident occurred at One Hundred and Twenty-fifth street and First avenue.</p> <p>Upon the trial of the action the court called the attention of the jury to this conflict in the testimony, and said; “Now, what is the conflict in this case? It is, in effect, that according to the testimony on either side, they arc speaking of entirely different occurrences.”</p> <p>Held, that the court did not err in so doing, as (there being no dispute that, wherever the accident happened, it happened to the plaintiff and with regard to the ear of the defendant) the only importance of the testimony was that it tended to contradict or corroborate the witnesses who differed as to the time and place of the accident, especially as the judge explained immediately after-wards, in his charge, what he meant.</p> <p>The conductor of the car was called as a witness, and the court told the jury that he might he considered an interested witness, just as the plaintiff was interested, because the conductor, although not sued for damages, was still charged with being the proximate or immediate cause of the damages for which his employer was sued;</p> <p>Held, that this was correct.</p> <p>The complaint alleged, and all the plaintiff’s witnesses testified, that the accident took place on the twenty-eighth day of October, while the witnesses for the defendant testified that it happened on the sixteenth day of October. The defendant asked the court to charge that the plaintiff must satisfy the jury that the injury occurred on the twenty-eighth day of October, which the court refused to do.</p> <p>Held, that the plaintiff was entitled to recover whether the jury believed that the accident happened on the sixteenth day, or on the twenty-eighth day of October.</p>

<p>Appeal by the defendants, Christopher Gwyer and others, from a-judgment of the Supreme Court in favor of the plaintiffs and of the defendant William E. Gwyer, entered in the office of the clerk of the county of New York on the 12th day of October, 1895, upon the decision of the court, rendered after a trial at the New York Special Term, construing the last will and testament of Christopher Gwyer, deceased.</p> <p>The portions of the will which affect the questions raised are the following:</p> <p>“ Fourth. All the rest, residue and remainder of my said estates, real and personal, I give, devise and bequeath to my executors hereinafter named, in trust and upon the conditions hereinafter mentioned, that is to say: In trust, that they shall, during the life of my said wife, receive and collect all the rents, incomes, dividends and profits thereof, and after paying all necessary expenses for improvements, repairs, taxes and assessments thereof, that they shall, from said net income, pay yearly and every year during the life of my said wife the sum of fifty dollars per annum in semiannual payments 'to my stepmother, Mary Raymond, and the like sum of fifty dollars per annum in like manner to my niece, Emily Wignal, of Illinois, and that as to all the residue of the said net income of my said estate that they pay the one-third thereof .annually, in quarter-yearly payments, to my said wife for her own use, and that, as to the other two-thirds thereof, that in each and every quarter they ■ divide the same equally between my children. * * *</p> <p>“ Sixth. I direct that all the provisions for legacies and annuities herein made shall take effect and be payable immediately upon my •decease, and shall carry interest from the day of my death.”</p> <p>“ Eighth. And upon the death of my said wife, my will is, and I direct, that all my estates shall be equally divided between my •children whom I shall have left surviving me, share and share alike. And if any child or children of mine shall have died leaving lawful issue him or her surviving, said issue shall take among them collectively the share to which his, her or their parent would hare been entitled, if living.”</p> <p>The estate consisted of both real and personal property. The testator’s widow is still living. The testator left no descendants of .any deceased child, but left him surviving six children, one of whom, John C. Gwyer, has died since the testator without issue and leaving a will, in which he bequeathed all his property (except certain life insurance) to his brother, the defendant William E. Gwyer, who was appointed executor of his will. Prior to his death, John C. Gwyer, being indebted to his father, the testator, executed to the plaintiffs, as executors, his personal bond for the amount of such indebtedness, and a mortgage to secure the same upon his share of the estate in remainder in the property, real and personal, of which said Christopher Gwyer died seized and possessed.</p>

<p> Product of a factory, alleged to heme been conveyed in fraud of creditors. </p> <p>Where a debtor conveys to his sons a manufacturing property, under an agreement on their part to pay his debts, articles manufactured by the sons at such factory subsequent to the conveyance to them are not liable to levy and sale under an execution against the father.</p>

<p>Appeal by the defendants, The New York City Civil Service Hoards and others, from an order of the Supremo Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of March, 1896, directing that a peremptory writ of mandamus issue requiring the defendants to certify the name of the relator to the commissioners of public parks of said city as being on the registry and as being qualified for the position of a bridge tender in the said department, and allowing to the petitioner and relator fifty dollars costs of this proceeding.</p> <p>It was alleged on behalf of the relator that he was a veteran of the late civil war having a family dependent upon him.</p>

<p>New York — a patrolman assigned as a roundsman does not hold such position “ by appointment ” under chapter 577 of 1892 —• the chief of, police, and not the police commissioners, has power to make the assignment.</p> <p>The place of roundsman in the New York police force is not a position held “ by appointment,” within the meaning of chapter 577 of the Laws of 1892, providing that “ No person holding a position hy appointment in any city or county of this State * * * shall be removed from such position except for cause shown after a hearing had.”</p> <p>There is no such rank as that of a roundsman, separate and distinct from the position of patrolman, recognized by law.</p> <p>Ingraham, J., dissented.</p> <p>The chief of police, and not the board of police commissioners, has power, under the statute, to assign patrolmen to duty as roundsmen, and the board of police commissioners has no power to change an assignment thus made.</p>

<p>Appeal by tbe defendant, Dennis Mullins, from a judgment of the Court of General Sessions of the Peace for the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 16th day of August, 1895, convicting the defendant of a violation of the Excise Law.</p>

<p>Infringement of a, trade mark — failure of proof of ownership thereof.</p> <p>In an action brought to restrain the defendant from selling imitations of the olive oil of the plaintifE and from using a certain trade mark, it appeared that a person named Audemard, the manufacturer of the oil in question, had •appointed Thomas If. Dwyer & Co. his agents to sell the oil for five years from July, 1886, agreeing that during this time he would not sell his oils in the United States or Canada. Thereafter, in 1889, the plaintifE corporation was ■organized, and Audemard transferred his contract with Dwyer & Co. to it, at which time Dwyer & Co. agreed that.they would not sell any oils except those of the plaintifE and under the brand of Dwyer & Co.</p> <p>After the corporation was organized Audemard sold oil to it, and the corporation sold to Dwyer & Co. The label in question was invented by Dwyer & Co. while agents for Audemard, and was sent to Audemard, Who used it on the bottles. Subsequently Audemard and the plaintifE caused these labels, which did not mention the name of either of them, to he made, and charged Dwyer •& Co. for such of them as they used on bottles shipped to Dwyer & Go. It was not shown that the plaintiff sold, or that Dwyer & Co. advertised, any oil under this label as being the plaintiff’s own oil, or that it became known to the public as such.</p> <p>Held, that the action could not he maintained;</p> <p>That on the termination of the contract between the plaintiff and Dwyer & Co. the label or trade mark would belong to Dwyer & Co., and not to the plaintiff, and, consequently, was not the plaintiff's trade mark.</p>

<p>Evidence— what personal transaction with a decedent may be testified to by the other party to it —failure to make a co-executor a party to an accounting.</p> <p>Upon, the accounting of Frederick Lewis, one of the executors of Hannah Lewis, deceased, on which objection was made that the executor had not charged himself with certain money collected from a life insurance company, the surrogate refused to allow one David H. Lewis to testify to an agreement made between himself and Hannah Lewis that money which he had advanced to pay the premiums upon a policy of life insurance, payable to Hannah Lewis upon the life of her husband, Henry Lewis, should be repaid to him from the proceeds of the policies which he received during the lifetime of the testatrix and after the death of Henry Lewis.</p> <p>Held, that the evidence was admissible;</p> <p>That David H. Lewis was not a party to the proceeding, nor was he interested in any way in the event thereof;</p> <p>That if Hannah Lewis had made such an agreement with David H. Lewis, the accounting executor should have been permitted to prove it, and should have been given credit for the amount retained by David H. Lewis.</p> <p>Tinder what circumstances a surrogate is not justified in refusing to proceed with an accounting by one executor, although the co-executor is not made a party to the proceeding, considered.</p>

Appeal by David W. O’Neil 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 February, 1896, granting the petition of Joshua S. Piza, as administrator, etc., of Rachel S. Piza, deceased, to sue him upon a certain bond executed by him.

<p>Appeal by the defendant, The Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of June, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on 16th day of July, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover damages resulting from personal injuries caused by the alleged negligence of the defendant.</p>

<p>Appeal by the petitioner, Mary Alice Almont Fleming, from an order of the Supreme Court, made at the New York Special Term on the 26th day of March, 1896, and entered in the office of the clerk of the county of New York, denying the petitioner’s motion for an order confirming the report of a referee and disregarding or overruling the opinion of the referee and denying her application Tor an order directing the chamberlain of the city of New York to pay her a certain sum of money deposited with him to the credit of a certain action in partition, together with the accumulations thereof, except from so much of said order as directs that the chamberlain of the city of New York pay the fees of the said referee and the charges of the stenographer on said reference.</p>

<p>Negligence — proper chrn'ge by the court as to the vigilance required of one mixing mortar in a public street.</p> <p>Upon the trial of an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendants, it appeared that the plaintiff, while upon a public street in the city of New York, engaged in mixing moitar for a contractor having the right to have building materials thereon, was run over by a truck belonging to the defendants. The defendants requested the court to charge that “it is the duty of one using the street, for the purpose of mixing mortar or filling the same into a hod, to use diligence in avoiding danger, especially in looking out for teams, and if the jury believe, from the evidence, that the plaintiff did not use such diligence, and hy reason ■whereof met with this accident, he cannot recover.” The court declined so to charge.</p> <p>JXelcl, that the request was a correct statement of the law, and that the defendants were entitled to the charge requested;</p> <p>“That it was not enough that the court, in its charge, had spoken in a general way of the vigilance required of a person who was upon the roadway.</p>

Appeal by the defendants, The New York Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of June, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also front an order entered in said clerk’s office on the 21st day of June, 1895, denying the defendants’ motion for a new trial made upon the minutes, with notice of…

Appeal by the petitioner, Robert A. Clirehugh, and by the plaintiff, Jacob Hirshfeld, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of March, 1896, denying the application of said Clirehugh and Hirshfeld to have Frederick W. Hinrichs substituted as attorney for the plaintiff in this action in place of Moses Weinman, upon payment of Weinman’s fees, or, in the alternative, to…

<p> Reference —-when an account stated is not pleaded — effect of a denial. </p> <p>In an action brought to recover for upwards of forty items of professional service rendered by the plaintiff, a physician, and his two assistants, to three different persons, the plaintiff, after alleging facts constituting a cause of action for professional services, stated that he had rendered bills therefor which had been agreed to, and added the words “ All of which stands as account stated by bills rendered and agreed to.”</p> <p>1-Ield, that the case was one in which a reference should be ordered;</p> <p>That the statement in question, “all of which stands as account stated,” etc., was irrelevant and unnecessary, and amounted to nothing more than the plaintiff’s conclusion as to the effect of a part of his evidence, and did not change the action into one for an account stated;</p> <p>That although the defendant had admitted in the words of the complaint that ‘ ‘ certain ” services had been rendered by the plaintiff, yet, having denied any knowledge or information sufficient to form a belief as to whether, as alleged in the 'complaint, “the said services and disbursements are shown in detail ” in the bill of particulars annexed thereto, she had put in issue the question as to the rendition of the items of service, and could not successfully claim that the issue related solely to their value.</p>

<p>Appeal by the plaintiff, Erwin Steinback, 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 31st day of March, 1896, denying his motion for an order directing the chamberlain of the city of New York to pay to him certain moneys as required by a decree of the court.</p>

<p>Contact for the transportation of merchandise — evidence of an intention to make it.</p> <p>On the 3d day of August, 1891, a steamship company, by telephone, asked a , firm of forwarders for transportation rates on 6,000 barrels of rosin to Chicago and 2,300 barrels of rosin to Buffalo, to which the Arm replied, naming certain rates, which the company requested the firm to confirm by letter, which they did, and at the same time asked to be advised if the rates were accepted. On the following day the company, by letter, accepted the rates, and thereafter a portion of the freight was furnished by the company, but it failed to ship the remainder, because of which default on its part the firm brought an action to recover the damages resulting from the breach of the contract.</p> <p>Held', that it was evidently the intention of the parties to enter into a valid and mutually obligatory contract, and not merely to agree upon a statement of rates;</p> <p>That the defendant was liable for the damages resulting from the failure on its part to furnish the merchandise for transportation.</p>

Certiorari issued out of the Supreme Court aud attested on the 30th day of January, 1895, directed to James J. Martin and others,, composing the board of police commissioners 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 in relation to the dismissal of the relator from the police force of the city of New York.

<p>Attachment — presumption as to the personal knowledge of the affiant — the contrary, how shown — subsequent attachment where a formar one is vacated on technical grounds.</p> <p>Upon an appeal from an order denying a defendant’s motion to vacate an order of attachment, it appeared that the cause of action arose upon four bills of exchange made by the defendant in Newfoundland, purchased by the plaintiffs and protested, the last one in London on December 14, 1894, for nonacceptance, while the plaintiff, upon whose affidavit, made May SO, 1895, the attachment was granted, was in New York. The defendant did not deny the facts stated in this affidavit, hut claimed that it was impossible that the affiant could have had personal knowledge of the facts to which lie deposed.</p> <p>Held, that the court could not countenance such a method of attacking an attachment;</p> <p>That the rule was that statements in affidavits would be presumed to have been made upon personal knowledge, except when stated to hare been made on information and belief or where it appeared affirmatively or by fair inference upon the face of the affidavit itself, and not by proof aliunde, that the statements could not have been and were not made upon personal knowledge;</p> <p>That considering the date of the protest and the time when the affidavit was made, there was no reason why the affiant might not, at the time he made the affidavit, have had in his possession the bills of exchange and the notarial certificates of protest, and that, if he had these, he might properly depose upon knowledge.</p> <p>It also appeared that former attachments for the same cause of - action liad been set aside upon technical grounds of objection.</p> <p>Held, that this fact did not prevent the plaintiffs from endeavoring to secure their claims by a second attachment, procured not for tile purposes of vexation, but to-recover a just debt.</p>

<p>Appeal by the plaintiffs, Miles M. O’Brien and another, as receivers of the Madison Square Bank, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of February, 1896, granting the motion of the defendant Frederick Uhlmann that the plaintiffs he directed to serve a further amended complaint and therein to separate and separately state and number the several causes of action in said amended complaint contained.</p> <p>The action was brought by the receivers of a domestic banking corporation against persons who had been directors of the corporation, to recover for the wrongful acts and-the breaches of trusts of the defendants as such directors, whereby injury had been done the corporation and the trust fund in the hands of the receivers.</p> <p>The original complaint was demurred to by the defendants, the demurrer was overruled at the Special Term and the General Term affirmed the decision of the Special Term, but the Court of Appeals reversed the Special and General Terms of the Supreme Court and sustained the demurrer with leave to the plaintiffs to amend their complaint. (O’Brien v. Fitzgerald, 143 N. Y. 377 ; 144 id. 643.)</p> <p>Pending these appeals other defendants made a motion to require-the plaintiffs to amend their complaint so as to make it more definite and certain, and an order was made on appeal in the General Term requiring such amendment to be made and specifying the details to be alleged.</p> <p>Subsequent to the decision of the Court of Appeals on the demurrer, and the General Term as to the amendment, the plaintiffs served an amended complaint designed to comply with the General Term order and to cure certain defects which led the Court of Appeals to sustain the demurrer to the original complaint. The Special Term thereafter made the order here appealed from.</p>

Appeal by the defendant, John M. Hughes, 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 March, 1896, referring the issues in the action to a .referee to hear and determine the same. The reference was ordered without the defendant’s consent and against his objection, on the ground that the trial would involve the examination of a long account.

<p> The assessors of the city of New York hold their offices during the pleasure of the authority appointing them. </p> <p>Upon tlie hearing on a return to a writ of certiorari, it appeared that Edward Cahill was appointed in 1887, under the Consolidation Act (Laws 1882, chap. 410, § 865), an assessor oí the city of New York, the duration of his term of office not being defined by his appointment, or by any statutory provision. In 1895 he was removed by the commissioners of taxes and assessments and thereupon procured a writ of certiorari for the purpose of reviewing such action on their part.</p> <p>Held, that his removal was legal;</p> <p>That the provision of the Constitution that “When the duration of any office is not provided by this Constitution it may be declared by law, and if not so declared, such office shall be held during the pleasure of the authority making the appointment,” applied to his case.</p>

Appeal by the defendant, The Peoria Water Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of of February, 1896, denying the defendant’s motion to dismiss the summons.

Appeal by the defendant, Max Hirseh, 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 31st day of March, 1896, continuing an injunction pendente lite theretofore granted in the action.

Appeal by the defendant, Henry W. Spang, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of March, 1896, denying his motion to vacate an order of arrest granted against him in the action or to reduce the amount of bail and to increase the security given by the plaintiff. The amount of the bail was $5,000.

<p>Agreement to close up partnership transactions, construed — in equity relief granted as of the time of the trial — payment of a debt by its being credited on a counterclaim.</p> <p>An agreement construed, by which two parties who had advanced, as a loan to be at the risk of the business, each, a certain sum towards the capital of a firm, on which interest and a certain percentage of the profits of the firm were to be paid, and had also each sold to the firm on credit certain merchandise, such agreement being made, in view of the insolvency of the firm, for the division of the loss sustained thereby.</p> <p>In an equity action it is sufficient that a ground for relief exists at the time of the trial.</p> <p>Where there exists a valid claim on the part of one party, against another to whom such party is indebted, such indebtedness is properly paid by its being credited upon and in reduction of such claim.</p>

<p>Foreign corporations — goods on sale in the State of New York whose proceeds are at once remitted, to the home office are not taxable — Laws 1855, chap. 37.</p> <p>Where a foreign corporation, having its principal office and manufactory in Oleveland, Ohio, sends manufactured goods to its salesroom in the city of New York for sale, the proceeds of which, except a small amount reserved to pay its office expenses in New York, are remitted to Cleveland, and at the time an assessment is made has in the city of New York §781.45 on deposit for the payment of its office expenses, office furniture worth about §500, and goods in its salesroom of the value of about §15,000, that being about the amount in value of the goods usually kept on hand there, such corporation is taxable in the city of New York only upon the money in bank and the value of its office furniture in New York city. The goods on hand, kept in New York city for sale, are not taxable. "</p>

<p>Insane — State Commission of Lunacy — a regulation that a patient applying for admission to a State hospital must have new clothing is reasonable — mandamus is the proper remedy to review it — parties—Laws 1890, chap, 126, § 6; 1896, chap. 2.</p> <p>Upon an appeal by the Manhattan State Hospital and others from an order directing that a peremptory writ of mandamus issue, commanding them to admit John P. O’Donohue, an insane person, to the Manhattan State Hospital, it appeared that the Manhattan State Hospital was an insane asylum under the control of the city of New York, which, by chapter 2 of the Laws of 1896, was converted into a State hospital and placed under the charge of the State Commission of Lunacy, and was made amenable to the regulations prescribed by the Legislature and proper authorities for the regulation of State hospitals. By section 6 of chapter 126 of the Laws of 1890 it was provided that before any patient should be sent to an insane asylum he should be in a state of bodily cleanliness and provided with comfortable clothing, in accordance with the regulations to be prescribed by the State Commission of Lunacy, and in performance of the duty thus devolved upon him, the chairman of the State Commission of Lunacy, with a view to preventing contagion, made a regulation that the clothing to he furnished to each patient before he was sent to a State hospital must be new.</p> <p>On the 2d day of March, 1896, O’Donoliue was sent from the pavilion of Bellevue Hospital to the Manhattan State Hospital in clothing which, although not new, was clean and free from danger of infection from it, and, admission being refused to him by the superintendent of the Manhattan State Hospital, the commissioners of public charities of the city of New York obtained an order to show cause why a mandamus compelling his admission should not issue, to which proceeding the State Commission of Lunacy were subsequently made parties.</p> <p>Held, that the presumption was that the regulation was reasonable;</p> <p>That the reasonableness of the regulation was in this case a pure question of law, and did not involve any questions of fact;</p> <p>That a mandamus would lie, directed to a public officer, to compel the performance of such a duty as that of receiving an insane person from the district in which the asylum was situated, in a case where the reception of such a patient was required by law;</p> <p>That as the regulation in question was within the power of the authority promulgating it, and was adapted to the purpose' and was effective, it must be held to be reasonable, and one that the superintendent of the Manhattan State Hospital was bound to obey;</p> <p>That the fact that the cost of carrying out such a regulation was from eighteen to twenty dollars a patient, did not make it unreasonable.</p> <p>8'ernhle, that the members of the State Commission of Lunacy were not proper parties to the proceeding, as no relief was asked against them.</p> <p>That the validity of the regulation in question could not be directly reviewed in any proceeding that would lie in the courts, and when the regulation was reviewed, as it might be, collaterally, the presence of the members of the State Commission of Lunacy would not bo required.</p>

<p>Mechanic’s lien — effect upon the lienor’s rights of a deposit and the cancellation of the lien — time within, which the claim may be enforced against the money — an application to obtain the money must be on notice.</p> <p>On tlie 11th. day of June, 1894, Herman Hafker and another filed a mechanic’s lien upon premises situate in the city of New York, which were owned by Mary Ellen Carroll and others, to secure themselves for materials furnished to George W. Henry, who was a contractor doing work upon the premises.</p> <p>On the 18th day of October, 1894, the owners and the contractor discharged the lien by making a deposit in lieu thereof with the county clerk.</p> <p>On the 11th day of June, 1895, on the motion of the lienors, the lien was continued by an order of the court.</p> <p>On the 17th day of October, 1895, the contractor, alleging that the lien had been paid on October 12, 1894; that no action had been brought to foreclose the lien, and that the time to foreclose it had expired, upon an ex pcn-ie application obtained an order that the money on deposit should be repaid to the Carrolls and himself. Subsequently the lienors made an application, upon notice, that the order directing the moneys to be paid over by the chamberlain should be vacated, and that the persons receiving the money should be required to pay it back, which was denied.</p> <p>Held, that this was erroneous;</p> <p>That the cancellation of the lien in October, 1894, by a deposit, merely discharged the lien so far as it affected the real estate and shifted it to the fund so deposited;</p> <p>That the lien thus imposed upon the fund was not discharged by lapse of time, there being no statutory provision requiring that the action to establish the lien upon the fund should be brought within one year, nor any provision that the lien upon the fund must be continued by an order of the court;</p> <p>That, until the persons who deposited the money had given the notice provided for in subdivision 5 of section 24 of chapter 342 of the Laws of 1885, and had obtained an order vacating tlie claim, or until an action bad been brought, by the lienors and their claim upon the fund had been established, the money must remain in court to await the determination of their rights;</p> <p>That, in the present case, the proceeding by motion, to vacate the order under which the chamberlain paid the contractor and to require tlie person who received the money to pay it back, was the proper practice.</p> <p>(Amble, that the fact that the order directing tlie payment of tlm money by the chamberlain to the contractor was made without notice to the lienors was an irregularity for which, if it had been insisted upon, the order should have been vacated.</p>

<p>Corporation — several actions by several judgment creditors to enforce the liability of corporate directors for consenting to a debt in excess of the capital, cannot be consolidated— each action is in equity for the benefit of all creditors and all but one should be stayed.</p> <p>Four actions were brought by different plaintiffs, on behalf of the plaintiff and all other creditors simulnrly situated, through the same attorney against the same defendants, the directors and the executrix of a deceased director of the United States and Brazil Mail Steamship Company, to establish against suela defendants a liability under the Stock Corporation Law imposed upon directors of stock, other than moneyed, corporations who create or consent to the creation of a debt which causes the total indebtedness, unsecured by mortgage, to exceed the amount of its paid-up capital stock. Each of the plaintiffs was a creditor of the company and in each action judgment was asked against the defendants for the amount of the debt which the corporation owed the plaintiff in the action and for an accounting.</p> <p>The Special Term ordered that all the actions be-consolidated, and that the plaintiffs in each action should serve an amended complaint in the consolidated action.</p> <p>Held, that section 817 of the Code of Civil Procedure, authorizing the consolidation of certain actions, did not apply to this case, as the parties to each action were not the same, and that the order should be reversed ;</p> <p>That the statutory liability of the directors was not for the benefit of any particular creditor, but for that of all creditors, and was to be enforced in an equitable action to which all the creditors of the corporation and the corporation were parties, and in which an accounting could be had, and all the facts could be ascertained and all the equities be adjusted ;</p> <p>That as the same attorney brought all the actions it was proper that the plaintiffs should be compelled to elect as to the action in which they would proceed; that all proceedings in the other actions should be stayed until the further order of the court, to the end that when judgment had been recovered in the action actually prosecuted, the plaintiffs in the actions which were stayed, as well as the other creditors, might come in and prove their claims in that action and the rights and liabilities of all parties be determined therein.</p>

Appeal by the defendant, Edward Mitchell, 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 27th day of January, 1896, upon the verdict of a jury for $500 rendered after a trial at a Trial Term of said court, and also from an order entered in said clerk’s office on the 21th day of January, 1896, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by William T. Gilbert-, as receiver of the Commercial Alliance Life Insurance Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of March, 1896, overruling bis exceptions to the report of a referee appointed to hear the claim of William A. Bahlke against the Commercial Alliance Life Insurance Company and confirming said report.</p>

<p>Appeal by the plaintiff, Joseph Koch, 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 10th day of January, 1896, upon the decision of the court rendered after a trial at the New York Special Term sustaining the defendant’s demurrer to the complaint, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 8th day of January, 1896, upon which said judgment was entered.</p>

<p> A party in default cannot appeal. </p> <p>An appeal does not lie from an order recited to have been made on default.</p>

<p>Practice — what facts do not justify the opening of a default.</p> <p>Upon an application made to open a default, taken on a day to which a proceeding had been adjourned and for which it had been set down peremptorily for a hearing, the excuse offer»! by an attorney was that he understood that the counsel for certain other parties was ill and would cause an application for an adjournment to be made on behalf of his clients, which he deemed certain would be granted, and that having “other pressing engagements,” he failed to attend upon the day when he should have done so. He did not allege that the engagements in question were engagements in court.</p> <p>Held, that there was nothing to justify the court in opening the default.</p>

<p>New York — excise commissioners — may discharge an inspector cm'bitra/rily.</p> <p>Tlie board oí excise of the city of New York has the right to remove at its pleasure an inspector of excise, and its proceedings in so doing cannot be reviewed by certiorari.</p> <p>The fact that the commissioners of excise institute a trial instead of removing the inspector in a summary manner, and on the trial permit irregularities to occur and find the relator guilty upon a charge not supported by competent evidence, does not justify the court in annulling their judgment.</p>

<p>New York — Bapid Transit Acts — the construction of a railway of unknown cost, not approved — possibility of exceeding the constitutional limit of city debt — impossible stipulations as to the protection of the contractor against litigations — tiie railway should be contracted for as a whole — Laws of 1891, chap, 4; 1892, chaps. 102, 556; 1894, chaps. 528, 572, § 9; 1895, chop. 519, § 10.</p> <p>Upon the hearing of a motion made hy the board of rapid transit railroad commissioners, appointed under chapter 4 of the Laws of 1891 and the acts amendatory thereof, for the confirmation of the report of commissioners who had been appointed by the General Term of the Supreme Court to determine and report whether the railway determined upon hy the hoard of rapid transit commissioners ought to be constructed and operated, it appeared that the report was favorable to the construction of the road, but that the commissioners were of opinion that any conclusion they might reach as to the cost of its construction would be mere conjecture.</p> <p>Held, that the question of the cost of the railway was a vital matter and precluded a confirmation of the report;</p> <p>That an abutting property owner was entitled to raise the question of cost, as it was evident that an abutting owner might suffer greatly if financial difficulties were encountered, and the construction of the road were delayed by such difficulties for a term of years;</p> <p>That if the cost was uncertain it would not be possible to fix the security which the city of New York ought to require, from the party contracting with it to construct the railway, with a view to protecting the interests of abutting owners;</p> <p>That the court must consider the limit, fixed by the Constitution, to the debt which the city of New York might lawfully contract, and that as it appeared that the cost would increase the city debt beyond the legal limit, the scheme was impracticable;</p> <p>That, independent of the impossiblity of foreseeing and providing for all contingencies, any estimate of cost was further embarrassed by the fact that the city was bound under this plan to indemnify its contractor against many specified things as to the expense of which no estimate could be given;</p> <p>That the provision in the Rapid Transit Acts, that the city should secure and assure to the contractor the right to construct and operate the road, free of all rights, claims or other interference, whether by injunction, suit for damages or otherwise on the part of any owner, abutting owner or any other person, was a condition absolutely impossible of fulfillment as the action of courts could not be thus fettered;</p> <p>That the Rapid Transit Acts were also objectionable because there was no restriction as to the amount for which the rapid transit commissioners could render the city liable, thus giving to the commissioners the power to involve the city in obligations so great that they might absolutely destroy its credit;</p> <p>That the provisions of section 84 of the Rapid Transit Act, as amended by section 10 of chapter 519 of the Laws of 1895, did not empower the board of -rapid transit commissioners to construct the railway in sections, nor contemplate a sectional construction which might be delayed until the assessed valuation of the real estate should increase to a sum which would allow the city to incur an indebtedness in excess of that now permitted by law;</p> <p>That in any event the court would be slow to adopt a sectional plan of construction which would enable the board of rapid transit commissioners to embarrass the city in its other necessary expenditures by, in effect, mortgaging for a considerable period of years the future capacity of the city to create a debt.</p>

<p>Appeal by the defendants, Anton F. Blume and another, from an order of the Supreme Court, made at the Flew York Special Term, bearing date the 5th day of December, 1895, and entered in the office of the clerk of the county of Flew York confirming the report of a referee in surplus proceedings in a foreclosure action.</p>

<p>New York — contract for the disposal 'of garbage — approval of the loan'd of estimate and apportionment as to the price — effect of the acceptance of a lid by the commissioner.</p> <p>Upon an appeal by the relator, Tlie Merz Universal Extractor and Construction Company, from an order denying its motion for a peremptory writ of mandamus requiring George E. Waring, Jr., as commissioner of street cleaning of the city of New York, to execute with the relator a contract for the disposal of the garbage of the city of New York, it appeared that the commissioner issued proposals asking for bids for the disposition of garbage, and that the relator bid and its bid was accepted, but that the board of estimate and apportionment declined to approve the contract on account of the price.</p> <p>Held, that the commissioner of street cleaning had no power to execute the contract without the approval of the board of estimate and apportionment;</p> <p>That the provision of section 209 of chapter 410 of 1882 (the Consolidation Act), providing that the contract shall be approved as to terms and conditions by the board of estimate and apportionment, necessarily required the approval of the board of estimate and apportionment to everything in the contract, including the price;</p> <p>That the rule of law, that where a word or phrase is used repeatedly in a statute, it will have the same meaning throughout the statute, does not apply where the meaning of the phrase is clear;</p> <p>That the action of the board of estimate and apportionment, in approving the form of the contract which was attached to the proposal, did not bind the board of estimate and apportionment when the final contract was presented to it for approval;</p> <p>That the act of the commissioner of street cleaning, in accepting the relator’s bid, did not fix its rights until the approval of the board of estimate and apportionment was obtained.</p>

<p>Devise in trust — a suspension of the power of alienation by a power of sale not to be exercised for jive years is illegal — where the persons entitled to the proceeds of a sale are not ascertainable the power of alienation is suspended — equitable conversion — power in trust.</p> <p>li. an action brought to obtain a construction of the will of George A. Trow-bridge, a resident of the State of Massachusetts, by the twelfth clause of which he devised his residuary real estate, wherever situated, to the plaintiffs, his executors, in trust, to hold and manage the same for the term of five years from the day of his death, and for a longer term if in their judgment they deemed it best, and gave to his executors “ full power and authority to sell all his real estate situate in Framingham (Massachusetts) at any time before the expiration of said five years, if in their judgment it was best to do so, * * *' and at the expiration of said five years, if my wife shall have ■died before the expiration thereof, or at her death if she shall live longer than ■five years, I direct said trustees and the survivor of them, to sell all said real estate not then sold, * * * and I give them a like and the same power and authority to sell and deed said real estate in New York after the expiration of said five years.”</p> <p>Meld, that this latter provision of the will relative to the real estate situate in the State of New York was void, in that it illegally suspended the power of alienation for an absolute period of five years;</p> <p>That in so far as the foreign will attempted to dispose of real estate situated in the State of New York, its validity must he determined by the laws of this State;</p> <p>That as the power to sell the real estate situated m the State of New York did not come into existence until after the expiration of five years, there was a violation of the statutory provision directing that such power of alienation could not he suspended for more than two lives in being at the death of the testator;</p> <p>That, as there was no absolute direction to sell, the power being discretionary, thei'e was no equitable conversion of the real into personal estate;</p> <p>That a sale of the real estate here could not he made until after the expiration of five years, and that during those five years there could be no equitable conversion:</p> <p>That, assuming that there was an absolute direction of sale and a consequent equitable conversion, that conversion could not occur ixx this case until the time when, by the terms of the will, the sale must he made;</p> <p>That tho dev>se was void as a trust and could not be upheld as a power in trust;</p> <p>That, viewed as a power in trust, it improperly suspended the power of alienation. as the proceeds of the sales were to be divided among the children and grandchildren of the testator who should he living at the time when the several sales of the real estate situated in the State of New' York were made, and it could not be ascertained until the lime of each sale what grandchildren would he in existence who W'ould he entitled to the proceeds of the particular sale when it was made] and, hence, that there was no one in existence during the five years before a sale could he made who could release the proceeds of that particular sale and give an absolute title to tho land and its proceeds.</p>

<p>Illegal contracts — an attorney promising a consideration to induce a person to procure claims to be put in his hands for collection — burden of proof as to the plaintiff being an attorney and within the exception of section 74 of the Code of Civil Procedure.</p> <p>The complaint in an action alleged that the plaintiff, at the request of the defendant, procured his employment as an attorney for the firm of L. Erstein & Brother to prosecute and recover all the claims of that firm arising out of the payment of duties exacted of them by the United States, for which service the • defendant was to receive from the firm fifty per cent of the recovery, one-half of which fifty per cent he agreed, in consideration of the plaintiff's having procured for him this employment, to pay to the plaintiff.</p> <p>Held, that the contract was obnoxious to section 74 of the Code of Civil Procedure providing that an attorney should not, either before or after action brought, promise or give a valuable consideration to any person as an inducement to .placing, or in consideration of having placed, in his hands a demand of any kind for the purpose of bringing an action thereon;</p> <p>That an agreement to prosecute and recover the claims of the firm necessarily meant that the attorney was employed for the purpose of bringing an action upon the claims;</p> <p>That the burden rested upon the plaintiff, if he desired to avail himself of the exception contained in section 74 of the Code of Civil Procedure, providing that "this section does not apply to an agreement between attorneys and counselors, or either, to divide between themselves the compensation to be received,” to bring the case within the exception, by proving that he was an attorney and counselor.</p>

Certiorari issued out of the Court of Common Pleas for the city and county of New York and attested on the 16th day of May, 1895, directed to Theodore Roosevelt 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 Court of Common Pleas for the city and county, of New York all and singular their proceedings' in regard to the dismissal of the relator…

Appeal by the plaintiff, The Southern Boulevard Railroad Company, and by the defendant, The North New York City Traction Company, from a judgment of the Supreme Court in favor of the defendants, The People’s Traction Company and Ashbel P. Pitch,, entered in the office of the clerk of the county of New York on the 27th day of March, 1896, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint upon the merits.

<p>Use of union labels restrained — the act- authorizing their use is constitutional — what is an amendment and not an abandonment of a label — what label is not libelous.</p> <p>Chapter 385 of the Laws of 1889, providing that every union or association of workingmen or women who adopt a label, intended to designate their product, may obtain by filing duplicate copies of the label with the Secretary of State the right to enjoin by action the manufacture, use, display or sale of counterfeits or colorable imitations of the label, is constitutional.</p> <p>The statute does not inferiere with individual rights nor does it give to a private corporation an exclusive privilege.</p> <p>Its title, “ An act for the better protection of skilled labor and for the registration of labels, marks, names, brands or devices covering the products of such labor of associations or unions of workingmen or women,” does not embrace more than one subject.</p> <p>Where a label filed in the office of the Secretary of State, under chapter 385 of the Laws of 1889, is precisely like a label previously filed by the same association, in color, form, size, general appearance, display of conspicuous words and in every substantial matter recited in it, the only difference between them consisting in the disuse of a few unnecessary words for which other words had been substituted, the filing of such new label does not constitute an abandonment, but merely an amendment of the original label, and the association filing it may maintain an action to enjoin the use of its original label by any other association;</p> <p>The words “inferior, rat shop, coolie, prison or filthy tenement house workmanship” on the original label are not libelous, as they do not state that the products of any other person or association ai-e made by objectionable labor, but merely proclaim that the goods made by the members of the Cigar-makers’ International Union of America are not produced by such labor.</p>

Appeal by the plaintiff, Andrew L. Fennessy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 10th day of March, 1896, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the plaintiff’s amended complaint.

Appeal by the defendant, Charles C. Schildwachter, Jr., from an ordér of the Court of General Sessions of the Peace for the city and county of New York in favoi of tlie plaintiff, entered in the office of the clerk of said court on the 31st day of December, 1895, affirming an order of filiation entered against him on the 14th day of June, 1894, by two police justices of the city of New York.

<p>Negligence — accident on the Brooklyn bridge in alighting from a'ea/i' — duty to-light the space between the platform and the ca/r steps.</p> <p>In an action brought to recover damages resulting from injuries caused by the’ defendants’ alleged negligence, it appeared that the plaintiff was’ injured early in the evening of January 24, 1890, while alighting from a train at the Brooklyn platform of the New York and Brooklyn bridge, by falling, between the platform and the car. The plaintiff testified that she looked carefully when she stepped out of the car; that it was so dark at her feet that she could not distinguish the station platform; that she thought she was stepping on the platform, but did not; that one foot slipped down, throwing her back against the car; that she passed out with a crowd of others and was obliged to-move along with the rest. Plaintiff’s sister testified that it was “pitch dark” at her feet; that she could not make out the platform; that she took the step-she usually took and nearly fell, and that she turned to warn the plaintiff, but-it was too late. There ivas evidence tending to prove that the place where a person’s feet would rest in getting out of a car was not well lighted, and that, the distance from the car to the platform was greater than the length of an. average step.</p> <p>Held, that it was the duty of the defendants to light clearly and distinctly the space between the car and the platform in order that passengers might know exactly what extra care was required of them at that point; and that the verdict of the jury upon the question whether that was- done would not be-disturbed.</p>

<p>Appeal by the defendant, George H. Tilden, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of February, 1896, upon the verdict of a jury rendered by direction of the court after a trial at a Trial Term of said court, and also from an order entered in said clerk’s office on the 10th day of March, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The complaint alleged: “Fifth. That on or about the 19th day of February, 1881, an agreement was entered into by and between the defendant and Robert D. Buchanan, the husband of this plaintiff, whereby, in consideration of services theretofore rendered, and thereafter to he rendered, by the said Robert D. Buchanan and by Robert Ct. Dun, and other good and valuable considerations moving from the said Robert D. Buchanan and the said Robert CL Dun to the said defendant, the said defendan t promised and agreed with the said Robert D. Buchanan that in the event of the success of certain proceedings then pending, or any which might thereafter be taken, to practically set aside the thirty-fifth section, article or clause of the last will and testament of the late Samuel J. Tilden, the uncle of the said defendant, the said defendant would pay to this plaintiff or to her order, the sum of fifty thousand dollars.</p> <p>“Sixth. That as evidence of the last mentioned agreement, the said defendant wrote and signed and delivered to one Robert Gr. Dun the following letter:</p> <p>“‘New York, February 19th, 1887.</p> <p>‘“Robert Ct. Dun, Esq.,</p> <p>‘“No. 311 B’way, N. Y. City.</p> <p>“ ‘My Dear Sir — It is understood between Mr. R. D. Buchanan and myself that in the event of the success of the proceedings now pending, or any which may be taken to practically set aside the thirty-fifth section of the will of my late uncle, Samuel J. Tilden, in view of the assistance looking to that end which has been and may be rendered by Mr. Buchanan, as well as yourself, that I will and do hereby become responsible for the payment to Mrs. Adelaide E. Buchanan, or her order, of the sum of fifty thousand dollars. * * *</p> <p>“ ‘ Yours very respectfully,</p> <p>“‘CL II. TILDEN.’”</p> <p>Upon the trial it was shown that after the signing and delivery of this letter, Mr. Buchanan got from Dun and delivered to the defendant $10,000, and afterwards got other moneys for the defendant, in all over $20,000, for the purposes of the will contest, on the faith of the promises made by defendant to benefit Mrs. Buchanan, which advances were secured by notes to Dun, and which, with interest, after the successful termination of the will contest, were paid. As the result of the contest of the will of Samuel J. Tilden the defendant and his brothers and sisters were enriched to the extent of several millions of dollars ; and the value to be attached to the pecuniary assistance which Buchanan had procured for him is- evidenced by letters, in one of which the defendant says: “"We shall ever be grateful for the assistance you have given us, and if we succeed in getting our money we shall have you to thank for our success.”</p> <p>The plaintiff was the adopted daughter of Moses Y., a brother of Samuel J. Tilden, who died before him; and not being of the blood of the latter, the plaintiff presumably could not take at his death, a.nd could only hope as a result of a successful contest of the will to benefit by such an agreement as was made by defendant. Dun was the brother-in-law and uncle of plaintiff’s husband, and, as shown, was interested by ties of relationship as well as friendship, in the plaintiff, and on her account principally made the money advances; the. testimony showing that the promise made by defendant to Dun was that the plaintiff should share alike with himself and his brothers and sisters in the estate of Samuel J. Tilden in the event of success in the then pending litigation over the will, and that it was on this promise that Dun loaned the money to defendant; and also that it was to secure benefit to the plaintiff that her husband rendered the services which he concededlv did in obtaining the moneys from Dun.</p> <p>The defendant offered no evidence upon the trial,' and upon the showing made the court directed a verdict for the plaintiff.</p>

<p>Appeal by the plaintiffs, Voldemar Lestienne and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 14th day of November, 1895, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the New York Circuit.</p> <p>This action was brought to recover $347.10, a balance due for goods sold and delivered.' The answer denied that under any circumstances the unpaid balance amounted to as much as $347.10, and further pleaded an accord and satisfaction, upon which plea this .action was determined.</p> <p>The firm of Lestienne, Labbe & Co., composed of the plaintiffs and one Labbe, dissolved partnership June 30, 1890, when the present firm of Lestienne Freres, composed of the plaintiffs, was organized. The goods in respect to which the action was brought were billed to the defendants, as shown by the invoice, as of August -'7,1890, to wit: 1,069 yards @ $1.85 = $1,977.65. The respondents claim that the transaction relating to their sale took place in May, 1890, the agreement being for a delivery of the same between the date of the sale and October 1, 1890. Upon a demand for the $1,977.65 in January, 1891, the defendants insisted that they were entitled, to an offset in the sum of $150, claimed as damages upon a sale made by the former firm of Lestienne, Labbe & Co.; also a trade discount of $134.70 upon the last invoice, and an additional sum of $8.95, representing interest for anticipated payment, and that, therefore, their indebtedness was only $1,630.55. It was conceded upon the trial that the former amount was incorrect, in that the defendants were entitled to the allowance claimed by them for the trade discount and the additional sum for interest.</p> <p>On January 8, 1891, the defendants sent to plaintiffs their check on the Columbia Bank for the sum of $1,630.55, tendering it as full payment. The plaintiffs rejected the tender and refused to receive the check as full payment, returning it to one of the defendants, who thereupon delivered the check into the custody of the Columbia Bank, and at once notified the plaintiffs that it lay there at their disposal and subject to their order. The check so remained in the bank until the 19th of March, 1891, when the plaintiffs concluded to receive it and sent one of their clerks to the bank, who asked for and obtained it, and on the same day plaintiffs wrote to the defendants: “¥e will now accept same, subject to the settlement of the matters in dispute between you and Mr. Wormser.”</p>

Appeal by The State Trust Company, as trustee, tbe plaintiff in the first-above entitled action, 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 3d day of.

Appeal by the defendants, Daniel L. Stevens and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of tlie county of New York on tlie 16th day of January, 1895, upon the decision of tlie court, rendered after a trial at the New York Special Term, setting aside as fraudulent a general assignment for the benefit of creditors.

Appeal by the defendants, The Metropolitan Elevated Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 21st day of November, 1894, upon the, report of a referee.

<p>Discontinuance — costs, to a party made a defendant at the instance of the defendant asking for such discontinuance.</p> <p>Where a defendant in an action applies to the court and obtains an order that a third person be made a party defendant, and in his answer demands affirmative relief against such defendant, and thereafter effects a compromise with the plaintiff and moves that the action be discontined, he should be required, ds a condition of such discontinuance, to pay to the party, made a defendant in the action at his instance, his taxable costs in the action.</p>

<p>Appeal by the plaintiff, James Hartley, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the defendants Murtka & O’Neill, entered in the office of the clerk of said court on the 30th day of December, 1895, upon the decision of the court, rendered after a trial at an Equity Term thereof dismissing the plaintiff’s complaint upon the merits.</p> <p>The action was brought for the foreclosure of a mechanic’s lien. The defendant Murtlia was the owner of the premises. On the Uth day of March, 1893, ghe leased them to P. J. O’Neill for fifteen years. On the same day O’Neill, through a third party, assigned the lease to liis wife Mai’y A. O’Neill. On the 10th clay of May, 1893, the husband, acting really as agent for his wife, but in his own name, made a contract with the plaintiff to furnish materials and make alterations upon the premises for the agreed price of $2,575. Under this contract and with the consent of the owner, the plaintiff furnished the materials and performed and completed the work contracted for. On the 29th day of July, 1893, P. J. O’Neill paid plaintiff on the contract $1,000 in cash. On the 11th day of August, 1893, O’Neill gave the plaintiff on.account of the'contract a note for $1,000, made by his wife and indorsed by him. The materials were all furnished and the work completed in September, 1893, except some few things done thereafter, but before the action was begun.</p> <p>The lien was filed September 5, 1893. The action was commenced March 14, 1894. The contract provided that the plaintiff should furnish the materials and do the work “to the satisfaction and under the direction of the said architects, to be testified by a writing or certificate under the band of the said architects * * * for the sum of * * * $2,575 * * * and the said party of the first part (O’Neill) * * * shall and will * * * pay * * * the sum of * * * $2,575 * * * payments to be made in manner following: First. When the store fronts are in and glazed, the stairs stepped up and the standing trim on, $1,275. Second, and last. When all the work is completed according to the plans aud the specifications, and the. satisfaction of the owner and architects, the balance of $1,300.</p> <p>“ Provided that in each of the said cases a certificate shall be obtained from and signed by the said architects.-”</p> <p>Under the date of January, 1894, the architects made a certificate that the plaintiff had fully completed the work according to the contract. This certificate was delivered to the plaintiff and Avas produced and put in evidence at the trial without objection. It was not, however, delivered to the plaintiff as a matter of fact until after the action was commenced. The court so found, and the evidence, though not clear, very likely justified that finding.</p> <p>The court determined in favor of the plaintiff all the facts essential to a recovery in the action, except the fact of having the architects’ certificate before the commencement of the action, and as to that question the decision was, “ at the time of the commencement of this action, the plaintiff was not in a position to begin the same, for the reason that the architects’ certificate called for by the contract had not been furnished to the defendant Philip J. O’hTeill, and for that reason the action must fail.” And in his opinion the learned trial judge said : “ The building contract, however, provided that payments shall be made upon the production of an architect’s certificate. H o such certificate was given until after this action was commenced. Therefore, at that time no demand could properly be made, * * * and no action for the foreclosure of the lien could properly be brought until the sum for which the lien was filed was due.”</p>

<p>Motion by the relators, Frederick Haberman and another, and ”by the defendants, David II. James and others, for a new trial on a case containing exceptions, ordered to be heard at the Appellate .Division in the first instance upon the verdict of the jury rendered by direction of the court after a trial at the Trial Term of the ¡Supreme Court on the 15th day of January, 1896.</p> <p>The action was tried before the court and a jury. The court dismissed the complaint as to the Central Stamping Company, defendían t, and ordered judgment in favor of the plaintiff against the other defendants.</p> <p>The action was brought under section 1948 of the Code of Civil Procedure, which provides: “ The Attorney-General may maintain an action upon his own information, or upon the complaint of a private person, in either of the following cases :</p> <p>“First. Against a person who usurps, intrudes into or unlawfully holds or exercises within the State a franchise or a public office, •civil or military, or an office in a domestic corporation.</p> <p>“Second. Against a public officer, civil or military, who has done ■or suffered an act which by law works a forfeiture of his office.</p> <p>“ Third. Against one or more persons who act as a corporation within the State without being duly incorporated, or exercise within the State any corporate rights, privileges or franchises not granted ■to them by the law of the State.”</p> <p>The action was evidently brought under the third subdivision, of this section.</p> <p>The Central Stamping Company was originally incorporated under the laws of this State December 9, 1894. The certificate of incorporation then filed stated “ that the objects for which the company is to be formed are the manufacture and sale of stamped tin, iron, ■copper, zinc and other sheet metal wares.</p> <p>“ That the amount of the capital stock is to be $500,000. * * *</p> <p>“ That the term of the existence of the said company is to be ten years.</p> <p>“ That the number of shares of which the said stock is to consist is to be 500.”</p> <p>In July, 1894, there was an attempt to reorganize the company under section 4 of the Business Corporation Law of 1892 (Chap. 691). A certificate was made July 12, 1894, and was filed July 20, 1894, which stated: “The objects for which it (the corporation) ivas formed and is re-incorporated are the manufacture and sale of sheet metal wares, house-furnishing goods and kindred articles. The amount of the capital stock shall be $500,000, divided into 5,000 shares of $100 each. The number of shares of which the capital stock consists shall be 5,000 shares of $100 each. * * *</p> <p>“The duration of the corporation shall be fifty years.”</p> <p>The plaintiff alleged that this attempted reorganization of the company was ineffectual because the provisions of the law necessary to such reorganization were not complied with, and that the corporation ceased to exist at the expiration of the ten years for which it was originally organized, to wit, December 9, 1894, and this action was not brought until after that date, viz., September 4, 1895.</p> <p>Other allegations were made in the complaint tending to show that the reorganization so attempted would be injurious to the relators, upon whose complaint the action was brought.</p> <p>The relief asked for in the complaint was that the defendants be perpetually enjoined and restrained from transacting the business of the corporation, that such business be wound up, its original charter annulled, the alleged certificate of reorganization be set aside, that the creditors be paid and that the balance of the assets be distributed among the stockholders, that a receiver be appointed, etc.</p>

<p>Appeal by the plaintiffs, Theodore Timpson and others, as executors and trustees of William L. Chamberlain, deceased, and others, from a judgment of the Supreme Court in favor of the defendant, The Mayor, Aldermen and Commonalty of the City of New York, entered in the office of the clerk of the county of New York on the 13th. day of June, 1895, upon the verdict of a jury, rendered by direction of the court after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 6th day of July, 1895, denying the plaintiffs’ motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The Consolidated Gas Company, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 9th day of December, 1895, upon the verdict of a jury, and also from an order bearing date the 5th day of December, 1895, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Samuel R. Scliarf, 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 29th day of April, 1896, as requires him to separately state and number separate causes of action in the complaint.

Appeal by the relator, Christian Clausen, 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 March, 1896, dismissing a writ of certiorari theretofore granted in the action.

Appeal by the defendants, Philip J. Goodhart 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 19th day of March, 1896, denying their motion for a bill of particulars of the plaintiff’s claim in the action.

<p>Oorpoi'ation — when one seal will be presumed to be adopted by both parties to a contract — Statute of Limitations — -when a contractor need not obtain a certificate of work done.</p> <p>A contract recited “In witness whereof (the parties) have hereunto set their hands and seals,” and was signed “Union Pipe & Construction Co., by Calvin Detrick, Pres’t, Jos. L. Rusling,” and opposite the name of Rusling only there was a seal.</p> <p>Held, that the seal would be presumed to be the seal of both parties.</p> <p>Where a contract provides that the engineer in charge of the work thereby provided to be done shall, on the first day of each month, estimate the amount of work done by the contractor in the previous month, and return a certificate of it to the employer, who shall pay ninety per cent of that-amount before the eighth day of the month, and upon the final completion of the work shall pay the full amount due, the contractor is not obliged to obtain from the engineer a certificate of the work done before he becomes entitled to pay for the work. Such a provision is made for the benefit of the employer, and the contractor has no control over it.</p>

Appeal by the plaintiff, Alice M. Mullen, from an order of the ‘Supreme Court, made at tlie New York Special Term and entered in the office of the clerk of tlie county of New York on tlie 18th day of November, 1895, denying the plaintiff’s motion to continue an injunction pendente lite granted in the action and vacating and setting aside the same.

<p>Appeal by John McNeany, as administrator, etc., of Patrick McNeany, deceased, from a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 5th day of December, 1895, finally settling the accounts of the administrator, and directing the distribution of the balance of the estate in his hands.</p>

Appeal by the defendant, Elwood Mildeberger, in his own right, from a judgment of the Supreme Court in favor of the plaintiff, ■entered in the office of the clerk of the county of Westchester on the 23d day of March, 1896, upon the decision of the court rendered after a trial at the Westchester Special Term.

<p>Bail/road — effect of a voluntany temporary change in a pond of its route — rights of a railroad not lost by an moan'd, in proceedings to open a street, to its predecessor in title — when the People only can sue — condemnation of one public use for another.</p> <p>Upon the hearing of motions for the continuance, pendente lite, of preliminary-injunctions obtained m two separate actions brought by John Trelford and William Lakeland, respectively, against the Coney Island and Brooklyn Railroad Company to restrain it from constructing and operating an electric trolley railroad upon Neptune avenue, which is situated in that part of Brooklyn which was formerly in the town of Gravesend, it appeared that the defendant was incorporated in 1860, and that by chapter 324 of the Laws of 1861 it was authorized, upon its compliance with certain conditions, to operate a railroad from Pulton ferry in Brooklyn to a point on Coney Island; that it constructed a single-track horse railroad which, near its southern terminus, was built upon the “ old Coney Island Flank Road,” it having first acquired the rights of the plank road company by condemnation proceedings.</p> <p>In 1890 the authorities of Gravesend took proceedings to open Neptune avenue, whose lines, west of what was known as Ocean Parkway, corresponded with ■ the lines of the old plank road, while east of the Ocean Parkway the old plank road lay wholly within the lines of Neptune avenue.</p> <p>In 1890, in view of the opening of Neptune avenue, and the fact that the grading tLereof and the construction of a sewer therein would necessarily cause the operation of its railroad to be suspended during chat year, the defendant, at the suggestion of the town authorities, took up its rails from the plank road and constructed a branch over private property and over other streets to its terminus.</p> <p>The defendant now proposes to construct and operate its road as an electric trolley road over its old route through Neptune avenue.</p> <p>The court denied Trelford's motion and dissolved the preliminary injunction obtained by him, but granted Lakeland’s motion only so far, however, as to restrain the construction of a double-track road, the order entered in his case permitting the construction of a single-track road.</p> <p>Held, that as it had not been shown that either of the plaintiffs, Trelford or Lake-land, had any property interests in Neptune avenue, neither of them was in a position to urge that the defendant had voluntarily abandoned its route over' the plank road, and, therefore, had no right to reconstruct and operate its railroad over that part of such road as was now within the limits of Neptune avenue;</p> <p>That the plaintiffs’interests, being only those which were common to all the people, could only be protected by an action brought by the Attorney-General in the name of tlie people;</p> <p>That the fact that in the proceedings to open Neptune avenue an award of twenty dollars was made to the Coney Island Plank Road Company, to whose rights the defendant had succeeded, could not extinguish or affect the rights of the defendant, as the defendant was not shown to have been in any way connected with the award;</p> <p>That as there was nothing inconsistent in the use of Neptune avenue by a railroad company, after the avenue had been opened, the court must assume that the defendant’s rights in the plank road were preserved and now existed in the avenue so far as such road was incorporated into it;</p> <p>That the defendant acquired its rights from the Legislature, and that these rights could not be taken away in the interest of another and different public use except by express direction of the Legislature or by such a dmection clearly to be implied;</p> <p>That the court erred in limiting the defendant to a single-track road.</p>

<p>Payment — time books in plaintiff’s handwriting showing payments, contradicted by an account presented to the debtor, present a question for the jury.</p> <p>Upon the trial of an action brought by the administratrix of Conrad Meister to recover for services alleged to have been rendered by her intestate to James Shavlcey, to whose business the defendant had succeeded, the court, deeming the evidence of payment, which consisted for the most part of entries made in time books by Conrad Meister himself, conclusive, directed a dismissal of the complaint.</p> <p>Upon the trial of the action a daughter of Conrad Meister produced a paper entitled “ Statement of Account. O. Meister,” and testified that she saw her lather give a copy of this paper, which showed a balance of $3,481.47 as due him, to James Sliarkcy. She further testified that James Sharkey, in speaking-of this paper, said to her father in her presence subsequently that he had not had time to look it over; that it was of twenty-four years’ standing and that ho wanted time to look it over, and also that she subsequently heard him say to her father, “If I was financially situated I would soon settle this matter up. I am not so at present."</p> <p>Held, that as the language quoted, if used by Sharkey, was difficult to reconcile with the defense that Meister had been fully paid, and, as if the jury had been allowed to pass upon the entries in Master’s time hooks in the light of his daughter’s testimony they might have reached the conclusion that the plea of payment had not been satisfactonly made out, that it was erroneous to dismiss che complaint.</p>

<p>Evidence — absence of an entry in a bank book, not competent to show that money was not received — proof of the habits of a person, not competent to show that he did not borrow money.</p> <p>A bank pass book showing an account between a decedent and the bank, together with the vouchers referring to such account, are not competent for the purpose of showing that the decedent never received a sum of money from a third person, in consideration of which, it is alleged, that he gave his promissory note, there being no credit for the amount in question in such pass book.</p> <p>Proof of the fact that the habits of a decedent were simple and inexpensive, cannot be shown as beaming upon the probability of his having borrowed so large a sum as $1,000.</p>

<p>IAen — possession is essential to it- — right of lien under a, conditional sale, lost by delivery — tender and performance must be proved in an action at Icm.</p> <p>A complaint alleged tlmt the defendants agreed to pay a certain sum for the taking-down of their fixtures in one store and their removal and putting up in another, and to pay another sum for glass counters and cases combined, and a further-sum for certain work to he done and materials to be furnished, and that ‘ ‘ under and in pursuance of the various contracts hereinbefore enumerated (the plaintiffs) the said Engelhardt Company proceeded to and was engaged in discharging the obligations which they thereby assumed ” when their workmen were ejected from tlie premises of said defendants by the sheriff under an execution in favor of a judgment creditor of said defendants, and had ever since been excluded therefrom; that a part of the amount due on the contract had been paid, but that there was a balance due, and for this the plaintiffs claimed a lien “for the-balance of the purchase price of such of said merchandise as was sold and'delivered by said company, and as and for its work, labor and service as a mechanic upon suclrof said merchandise as was tlie property” of the defendants at the time of the execution of the contract mentioned in the complaint.</p> <p>Held, that, considered as a suit to foreclose a lien upon a chattel, the complaint did not state a cause of action as to the fixtures which were to he taken down and removed and put up iu another store, as the plaintiffs never had possession of them;</p> <p>That as vendor of the glass counters and cases combined and the other material the plaintiffs had a lien while the property remained actually or constructively in their possession, hut that as it was necessary, in order to maintain an action to foreclose a lien, that the lienors should have tendered the goods to the vendees, or expressed a desire to have them complete their puroliase. and as the only allegation tending to establish a tender was the plaintiffs’ statement that they claimed a lien for the balance of such merchandise as “ was sold and delivered,”' the complaint could not he sustained;</p> <p>That if tlio averment was meant as an allegation that the goods were actually delivered, it was equally fatal to the plaintiffs, who lost their lien upon the goods by their delivery;</p> <p>That even in the case of conditional sales, if the vendor delivers the goods without demanding and insisting upon payment, the condition of prior payment is ■ waived;</p> <p>Thai, considered as an action at law for damages, the complaint was defective, in that it failed to allege a delivery or tender of the property sold, nor did it allege that any work was actually done;</p> <p>That the statement, that the “said Engelhardt Company proceeded to and was engaged in discharging the obligations” assumed, did not show' that anything liad really been accomplished.</p>

Appeal by the defendants, Leopold Hafner 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 Queens on the 11th day of January, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of said court, and also from an order entered in said clerk’s office denying the defendants’ motion for a new trial made upon the minutes.

<p>Negligence — lighterman piling pipes in a dangerous manner upon a bulkhead — liable, although the pipes had been receipted, for by the consignee — contributory negligence — liability of the consignee.</p> <p>In an action brought to recover damages resulting from injuries caused by the alleged, negligence of the defendant, it appeared that the defendant, who was part owner and the manager of a steam lighter, which discharged a quantity of heavy iron gas pipe on a bulkhead, between two piers on the Bast river in the city of New York, consigned to the East River Gas Company, caused the pipe to be placed in two piles upon the bulkhead with a passage between them permitting persons to go from the street to the outer edge of the bulkhead, and, after the pipe was piled up, a representative of the East River Gas Company receipted for the pipe and the lighter went away. On the following day, the plaintiff, while lawfully upon the bulkhead, passed between the piles of pipe, when one of the pipes fell and injured him.</p> <p>Held, that the defendant was liable for the injury done to the plaintiff;</p> <p>That the question whether the danger of passing between the piles of pipe was obvious to the plaintiff, and he was consequently guilty of contributory negligence, was properly left to the jury;</p> <p>That as the bulkhead was a public place to which people generally had a right to resort, no one had a right to use it for the temporary storage of goods in transit in such a manner as to endanger parsons who were lawfully upon the bulkhead;</p> <p>Semble, that the consignee, if it had assumed control of the pipe with knowledge or notice of the manner in which they were piled, would also have been liable.</p>

<p>Dangerous dog — when the allegations of a complaint that defendant’s dog hit the plaintiff are not admitted — proof as to harboring a dog.</p> <p>In an action brought to recover damages resulting from injuries caused by the bite of a dog, it appeared that the defendant was neither the owner nor the keeper of the dog by which the plaintiff was bitten. The complaint, however, alleged that the defendant was a resident of Westchester county in the State of New York, and was at the time “ the owner of a certain dog.” These allegations were admitted by the answer. The complaint further alleged that on or about a certain day “defendant’s said dog bit this plaintiff in the leg;” that the defendant knew of the viciousness of the dog, and that the plaintiff was free from negligence. These allegations were all denied by the answer.</p> <p>Held, that while the answer admitted that the plaintiff was “ the owner of a certain dog,” it did not admit that the defendant was the owner of the dog which was alleged to have bitten the plaintiff;</p> <p>That it appearing that the dog was owned by a coachman in the employ of the defendant’s mother, was kept upon her premises, and that the defendant had no control over those premises, it could not be said that the defendant harbored the dog.</p>

<p>Appeal by the plaintiff, Joseph J. McDonald, 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 6th day of September, 1895, vacating and setting aside a warrant of attachment granted in the above-entitled action and a levy made thereunder by-the sheriff of the county of New York.</p>

<p>Appeal by the defendant, The Brooklyn City Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of February, 1896, upon the verdict of a jury rendered .after a trial at a Trial Term of said court, and also from an order entered in said clerk’s office on the 13th day of February, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Trust — established for the benefit of a contestant of a will, under a compromise — right of an attorney under an agreement by the contestant to gire the attorney one-half of what might be recovered.</p> <p>Antoinette Scliermerhorn, who was an heir at law and next of kin of Francis W. Lasak, who died leaving a will substantially disinheriting her, entered into an agreement with one Kahn by which Kahn agreed to render legal services in the contest of the will for which he was to receive as compensation one-half of whatever he might obtain for his client.</p> <p>A compromise was finally made under which three of the devisees under the will each contributed one-third of a trust fund of §50,000, which was paid to the Brooklyn Trust Company upon the trust that the income thereof should be paid to Antoinette Scliermerhorn during her life, and that upon her decease the principal should revert to the contributors.</p> <p>Certain interest having accumulated upon this fund, Kahn brought an action against the Brooklyn Trust Company to recover one-half of this interest.</p> <p>Held, that the action could not be maintained ;</p> <p>That no relation of debtor and creditor existed between the plaintiff and the defendant, and that no action at law would lie by the plaintiff.</p>

Appeal by the plaintiff, Susan A. Hobby, 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 18th day of February, 1896, as fails to provide a counsel fee to enable the plaintiff to carry on her action; also, an appeal by the defendant, George R. Hobby, from so much of said order as awards the plaintiff alimony.

Appeal by the plaintiff, Margaret B. De Young, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the comity of Richmond on the 6th day of June, 1895, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Richmond Circuit, and also from an order entered in said clerk’s office on the 6th day of June, 1895, directing that the complaint he dismissed upon the merits..

Appeal by the plaintiff, Adelaide Carey, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 11th day of December, 1895, upon the report of a referee.

Appeal by Charles R. Avery, as executor, etc., of George P. Avery, deceased, a petitioning creditor, from a decree of the Surrogate’s Court of the county of Richmond, entered in said court on the 4th day of December, 1895, settling and allowing the accounts of the executors of Elizabeth Carter, deceased, and also from a decree bearing date the 6th day of August, 1895, and entered in said Surrogate’s Court, denying the petitioner’s motion to revoke the letters testamentary…

Appeal by tlie plaintiff, William II. Kellock, from an order of the County Court of Westchester county, made at a Special Term of said court and entered in the office of the clerk of the county of Westchester on the 28th day of March, 1896, opening the defendant’s default taken before a justice of the peace, and vacating the judgment entered thereon.

<p>Action for rent — counterclaim for an eviction before, and a conversion subsequent to, the expiration of the lease — sustaincible as to the forme)' but not as to the latter.</p> <p>In an action brought to recover the rent of certain premises under a lease which expired on the 1st day of April, 1894, except of the house in which the defendant lived, the lease of which expired on the 5th day of April, 1894, a counterclaim was interposed that the plaintiff had evicted the defendant from a substantial portion of the premises resulting in the destruction of certain crops, and had wrongfully and unlawfully restrained the defendant from removing from the premises certain articles of personal property which the plaintiff converted to his own use. The eviction took place during the term of the lease, but the conversion of the property did not occur until April thirteenth.</p> <p>Held, that the counterclaim should be sustained to the extent of the damages awarded for the eviction and the consequent destruction of crops, as these damages arose out of the breach of the covenant for quiet enjoyment;</p> <p>That the conversion of the personal property, which took place at a time subsequent to the expiration of the lease, was a separate and independent act, disconnected from the subject of the action, and could not be said to have arisen out of the contract or transaction set forth in the complaint.</p>

<p>Assessments — review of, under chapter 269 of 1880 — illegal assessment stricken from the roll — a reassessment ordered only in the case of an overvaluation — notice of appeal.</p> <p>Under chapter 269 of the Laws of 1880 the coiirt can order a reassessment or correct an assessment made only in a case where it is erroneous or unequal.</p> <p>An assesssment can he said to he erroneous only in the case of an overvaluation:</p> <p>Where an assessment is made to an “estate" of a deceased person it is illegal, and the statute authorizes no relief except that of striking it from the roll.</p> <p>An appeal from so much of an order as directs a reassessment is not affected hy the fact that the order also contains a provision (not appealed from) that the assessment is “ erroneous.”</p>

Certiorari issued out of the Supreme Court and attested on the 8th day of March, 1895, directed to Leonard R. Welles; as commissioner of police and excise of the city of Brooklyn, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings concerning a trial, dismissal and removal from office of the relator as a patrolman of the police force of the city of Brooklyn, together with the specifications, charges,…

<p>■Surrogate’s Gourt ■— sale of lands to pay debts — valuation of each distinct pan-cel, not necessary — effect of admitting improper evidence to prove a claim — the petitioner need not be cited to appear.</p> <p>Where a proceeding is taken in a Surrogate’s Court to sell a decedent’s lands for the payment of debts, it is not a violation of section 2752 of the Code of Civil Procedure, requiring that a valuation of each distinct parcel of real estate shall be given, that one valuation is given of five lots of land which lie together and form a single parcel; it is not necessary to give a separate valuation of each lot.</p> <p>Such proceedings are equitable in their nature, and the fact that improper evidence has been admitted to prove the claim of a creditor is not fatal to the proceeding where other competent evidence is given which sustains the decree.</p> <p>Where a widow is herself the petitioner in such a proceeding it is not necessary that her name should appear in the citation.</p>

<p>Appeal by the plaintiffs, Edwin P. Selpho and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 11th day of February, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term.</p>

<p>Appeal by tlie defendant, Harris Rosenthal, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 5th day of March, 1896, granting the plaintiffs’ motion to dismiss the action.</p> <p>The action was brought in replevin to obtain the possession of certain merchandise.</p> <p>The following is the stipulation referred to in the opinion :</p> <p>“ Copy Stipulation Read on Rich ale of Plaintiff.</p> <p>“Whereas, Harris Rosenthal of New York city was in possession of stock of goods in ‘ New Shoe Store ’ under a claim that said goods had been purchased on the morning of Dec. 24th, 1895, and whereas Lamkin & Poster of Poston, claiming to own the boots, shoes and rubbers in said store, replevied the said stock and the same now is in possession of the sheriff of Rensselaer county; and</p> <p>“Whereas, an action has been commenced by said Rosenthal against Lorenzo McDougall and Geo. E. Greene, one of the plaintiffs’ attorneys; and</p> <p>“'Whereas, it lias been agreed by said Lamkin & Poster that it will surrender all of said goods, boots, simes and rubbers that their representative, A. P. Crawford, cannot identify, and that they will make no further claim to the balance of said merchandise,</p> <p>“Now in consideration of the foregoing and the sum of one dollar paid by each of said parties to the other, the receipt thereof is hereby acknowledged, each releases the other of and from all claims on account of said levy, and on account of said actions against said McDougall and Greene, and the latter are hereby released by said Rosenthal, and said actions are to be discontinued without costs to either party, except that each of the parties hereto is to pay one-half of the sheriff’s fees. Said Lamkin & Poster are immediately to select their goods from said stock and to the balance thereof they are to make no claim; and said Rosenthal hereby releases said sheriff of and from all liability whatever on account of said levy or taking possession of said goods.</p> <p>“ Hoosiok Palls, N. Y., December Mth, 1895.</p> <p>“ LAMKIN & POSTER,</p> <p>“ By A. P. Crawford.</p> <p>“ HARRIS ROSENTHAL,</p> <p>• “ By David Rosenthal.</p> <p>“Hoosiok Falls, N. Y., Dec. 24, 1895.</p> <p>“ Received from L. McDougall and Geo. E. Greene the sum of one dollar in full for all claims of every kind and nature to date, and in full for all claim in actions brought this day against them and each of them.</p> <p>“HARRIS ROSENTHAL,</p> <p>“ Bv David Rosenthal.”</p>

Appeal by the defendants, William V. Reynolds and another, from an order of the Supreme Court, made at the Schenectady Special Term and entered in the office of the clerk of the county of Saratoga on the 20th day of January, 1896, granting the plaintiff’s motion to confirm the report of sale herein and overruling exceptions of the defendants to said report, and holding that an undertaking, given pursuant to the first clause of section 1331 of the Code of Civil Procedure, did…

<p> Bale —proof of delivery and as to the quantity delivered. </p> <p>In an action brought to recover for services rendered in tanning certain hides the defendant sought, to set off against the plaintiffs’ claim the value of 1,595 hides, which he claimed to have delivered to the plaintiffs to be tanned, but which had not been returned. The alleged shortage occurred in three lots, containing respectively 1,580, 1,570 and 840 hides. The hides in question were done up in bundles, and it was possible to tell from the size of a bundle how many hides it contained. One Hollett, the person who sold these hides to the defendant, bought them from other persons, and counted the hides in a few of the bundles, and being satisfied as to them, accepted the rest without counting, except so far as to verify the number of bundles charged in the invoice received by him. After selling the hides to the defendant at the invoice count Hollett delivered them to the plaintiffs at their tannery, where the bundles were counted and stored, part of them in an open shed. The hides in the bundles were not counted until they were put into the “ works.”</p> <p>The referee found that the plaintiffs had not failed to return the 1,595 hides.</p> <p>Held, that this finding was not justified by the evidence;</p> <p>That a discrepancy, amounting to 1,595 hides in a total of 3,990, was too great to have escaped the notice of Hollett and the defendant, and that it was more probable that the hides in question were lost or stolen after they had come into the possession of the plaintiffs.</p>

<p>Appeal by the defendant, the Albany 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 Albany on the 24th day of May, 1895, upon the verdict of a jury rendered after a trial at the Albany Circuit, and also from an order entered in said clerk’s office on the 4th day of June, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Com/pcu'ison of handwriting — proof required as to the genuineness of the writings • used as standards.</p> <p>Where, upon the trial of an action, a comparison of a disputed writing is made with a writing alleged to be genuine, the evidence of the genuineness of the writing used as a standard must be so clear that, if it were one of the issues in the case, a verdict should be directed by the court in favor of its genuineness.</p> <p>Where there exists as much doubt about the genuineness of the proposed standard as there is about the genuineness of the instrument sued upon, a comparison of the signatures to the two instruments should not be allowed.</p> <p>It is within the province of an appellate court to review the evidence upon which the standard instrument is claimed to be established.</p>

<p>Appeal by the defendant, Charles H. Hill, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Eulton on the 25th day of June, 1895, upon the report of a referee.</p>

<p>Place of trial —change to the pi'oper county and for the convenience of witnesses — the grounds of expectation that the witnesses will testify as alleged should he stated — effect of a failure to do so.</p> <p>Upon an appeal from an order denying the defendant’s motion to change the place of trial of an action from the county of Greene to the county of Saratoga, it appeared that the complaint alleged that the plaintifE owned a quantity of moulding sand which was situated in the town of Clifton Park, Saratoga county, and that the defendant had wrongfully taken it and had shipped it to-New York city and had there sold it and converted the proceeds. The answer alleged that the defendant owned the sand.</p> <p>It appeared from the affidavits used on the motion that the number of witnesses-on either side was about equal; that all of the defendant’s witnesses resided in Saratoga county; that some of the plaintiff’s witnesses resided in' Greene county, some in Albany county and one on Long Island.</p> <p>The affidavit of the defendant did not disclose the grounds of its expectation that the witnesses named by it would testify to the facts which it alleged, that it expected to prove by them, nor did it show, except possibly as to certain witnesses, any facts from which it could be inferred that the expectations of the defendant as to the testimony which they would give were well founded.</p> <p>Held, that the place oí trial ought to he changed to the county of Saratoga, where the transactions took place which were the foundation of the action;</p> <p>That the rule as to the necessity of stating the grounds of an affiant’s expectation that witnesses would testify to the facts as to which the affiant alleged that they would testify, was not uniform in the several departments;</p> <p>That it was the better practice to state the grounds of the affiant’s expectation, hut that as this was not required in the old third department, in which department the present case arose, the defendant was justified in following the former practice in this behalf;</p> <p>That the failure of the affiant to make such a statement might, however, he taken into consideration hy the court in passing upon the merits of the motion.</p>

<p>Appeal by tlie defendants, William P. Holbert and another, from a judgment of the Supreme Court in favor of tlie plaintiff, entered in the office of the clerk of the county of Broome on the 15th day of November, 1895, upon the verdict of a jury directed by the court after a trial at the Broome Circuit, and also from an order entered in said clerk’s office on the ldth day of November, 1895, denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Lavina Savercool, as administratrix, etc., of Marcus D. Brink, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk oi the county of Tompkins on the 21th day of January, 1896, upon the verdict of a jury rendered after a trial at the Tompkins Circuit, and also from an order entered in said clerk’s office on the 24th day of January, 1896, denying the plaintiff’s motion for a new trial.</p>

<p>Appeal by the plaintiff, Charles F. Fordham, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of St. Lawrence on the 24th day of February, 1896, upon a dismissal of the complaint upon the opening of the plaintiff after a trial before the court and a jury at a Trial Term of the Supreme Court held in and for the county of St. Lawrence.</p>

Certiorari issued out of the Supreme Court and attested on the 4th day of March, 1896, directed to John F. Cahill and others, members of and constituting the common council of the city of Troy, commanding them to certify and return to the office of the clerk of the county of Rensselaer all and singular their proceedings in regard to the designation of official newspapers for the city of Troy in the months of November and December, 1895.

Appeal by the defendant, The Town of Hebron, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 27th day of November, 1895, upon tile verdict of a jury rendered after a trial at the Washington Circuit, and also from an order entered in said clerk’s office on the 14th day of October, 1895, denying the defendant’s motion for a new trial.

Appeal by the plaintiff, Elizabeth Laufer, from a judgment of Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Madison on the 21st day of February, 1895, upon the decision of the court rendered after a trial at the Madison Circuit and Special Term before the court without a jury.

<p>Appeal by the defendant, William S. Swift, from a judgment and order of affirmance of the Albany County Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany-on the 31st day of December, 1895, affirming a judgment rendered by a justice of the peace in favor of the plaintiff.</p>

Appear by the defendant, James E. Wagoner, from a judgment, of the County Court of the county of Albany in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 25th day of February, 1896, affirming a judgment rendered by a justice of the peace in summary proceedings awarding to the plaintiff the possession of a house and lot in the town of Bethlehem, Albany county, New York.

Appeal by the plaintiff, Miles G. Bowdish, from a judgment of the County Court of the county of Fulton in favor of the defendant, entered in the office of the clerk of said county on the 18th day of February, 1891, upon a nonsuit granted by the court after a trial before the court and a jury.

<p>Surrogate’s Court — an order denying a motion, made before the citation is served, to set aside a citation issued in proceedings for the revocation of letters, is not appealable.</p> <p>An order dismissing a motion to set aside a citation requiring administrators to show cause why the letters of administration issued to them should not be revoked, made before the citation was served, upon the ground that the petition upon which the citation was issued was insufficient, does not affect a substantial right, and is, therefore, not appealable.</p>

<p>Appeal by the defendant. The Albany Railway, from orders of the Supreme Court, made at the Albany Special Term in each of the above-entitled actions, and entered in the office of the clerk of the county of Albany on the 25th day of February, 1896, denying the defendant’s motion for a bill of particulars.</p>

<p>Appeal by the plaintiff, Eugene Race, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 23d day of February, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Saratoga Circuit.</p> <p>The action was' in ejectment to recover the possession of a strip of land situated between lots owned by tlie plaintiff and the defendant.</p>

<p>Appeal by the defendant, The Albany Railway, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 29th day of May, 1895, upon the verdict of a jury in favor of the plaintiff, rendered after a trial at the Albany Circuit, and also from an order entered in said clerk’s office on the 4th day of June, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover damages for personal injuries resulting from the alleged negligence of the defendant.</p>

<p>Appeal the defendant, William D. Marks, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Essex on the 2d day of December, 1895, upon the decision of the court, rendered after a trial at the St. Lawrence Special Term, overruling the defendant’s demurrer to the complaint, with notice of an intention to bring up for review upon such appeal the order and decision dated the 29th day of November, 1895, directing the entry of said judgment.</p> <p>The complaint alleges :</p> <p>That the defendant, May 10, 1895, at Westport, “ wrongfully kept several fierce and dangerous dogs, well knowing them to lie of ferocious, vicious and mischievous disposition, and accustomed to attack and bite mankind.”</p> <p>That “ the said clogs, or some of them, while in the keeping of the defendant as aforesaid, attacked and hit the plaintiff,” injuring him.</p> <p>This is demurred to upon the ground that it does not state facts .sufficient to constitute a cause of action.</p>

<p>Slander — a statement to an excise commissioner that a candidate for a license kept a house of ill-feme — hoto far privileged ■ — • how malice may he shown.</p> <p>Upon an appeal from an order granting a new trial in an action for slander, in which the plaintiff recovered a verdict, it appeared that at or about the time when the question of the granting of a hotel license to the plaintiff was to come before the board of excise the defendant said to the excise commissioner of the town in which both the plaintiff and the defendant lived, in substance, that the plaintiff kept a house of ill-fame, and that he, therefore, protested against the granting of a license to the plaintiff. The words in question were not spoken in the hearing of any other person.</p> <p>Sold, that while the words were actionable per se, unless privileged, the presumption arising from the occasion, from the defendant’s relation to the subject and his interest in it, and from the official character of the person to whom the communication was made, was that the communication was privileged;</p> <p>'That the words spoken being presumptively privileged, the burden rested upon the plaintiff to show that they were spoken maliciously;</p> <p>That proof that the words were false was not sufficient;</p> <p>That proof of words and conduct of the defendant in respect to other matters, indicating a settled enmity to the plaintiff, would be admissible as tending to show that the alleged defamatory words were a new expression of the old enmity.</p>

<p>Libel — charging a public officer with maladministration.</p> <p>The complaint in an action brought, to recover damage resulting from an alleged libel, among other things, alleged that the plaintiff, at the time of the publication of the article in question, and for six years prior thereto, had been the superintendent of the Albany County Penitentiary, where convicts were incarcerated and were employed in manufacturing industries under contract, made on behalf of the county of Albany by the plaintiff, who was required by law to deposit all moneys resulting from such contracts, after deducting his legal disbursements and expenses, with the county treasurer of Albany county; that the defendant, which published a newspaper,'had printed an article relative to the plaintiff which set forth the fact that the board of commissioners of the penitentiary had directed the county treasurer to transfer §70,000 from the earnings of the penitentiary to the credit of the county, and charged that the Albany penitentiary furnished a corruption fund which the Democracy of the city of Albany had used to debauch the electors of that city; that the plaintiff was the creature of a ring; that the Democracy fought to retain him because, in the event of his removal, they would be deprived of the means by which they had bought many elections; that it was a significant fact that so large a surplus was turned over to tlie county in 1895, while in 1894 the surplus was only 827,000; that there had been juggling with the accounts of tbs penitentiary, and that the cost of its maintenance in the past had been excessive and fictitious; that the plaintiff was generally believed to be a rich man, although he was not such when he went into office; that the whole prison system was rotten to the core, and that, therefore, his retention in office was desired in order to prevent shameful revelations and to hold control of the means which had provided a great corruption fund.</p> <p>Held, that a demurrer interposed to the complaint was properly overruled;</p> <p>That, considering the newspaper article as a whole, it was clearly libelous;</p> <p>That it, in effect, charged the plaintiff with having administered his office for unlawful purposes, with being a corrupt character, and ready and willing to continue and repeat a similar maladministration.</p>

Appeal by the plaintiff, Nancy Marble, from a judgment of the (Bounty Court of 'Montgomery county in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 8th day of -Tune, 1895, upon the decision of the court reversing the judgment rendered by a justice of the peace, in an action to recover possession of certain chattels.

<p>Negligence — a master 'must furnish a supply and make a repair — effect of the employee injured and the employee causing the injury both disregarding the rules.</p> <p>To replace an old wick by a new one in tlie headlight of a locomotive is a supply ancl not a repair, and the only duty of the railroad company in the premises is to provide a sufficient supply of wicks.</p> <p>An employee of a railroad company, who has himself disregarded its rules, can not recover damages against the company for an injury resulting from a disre gard of the company’s rules by another employee to which injury his own disregard of the rules "contributed.</p>

<p>Judgment and order affirmed, with costs, upon the opinion of Hardin, P. J., reported in 88 Hun, 196.</p>

Judgment affirmed, with costs, with leave to defendant to answer in twenty days on payment of costs in this court and in the court below.—

<p>Orders reversed, with ten dollars costs and disbursements, and the motions to vacate the attachments granted, with ten dollars costs in each case.</p>

<p>Judgment affirmed, with costs.</p>

<p>Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.</p>

<p>Judgment affirmed, with costs.</p>

<p>Order affirmed, with ten dollars costs and disbusements.</p>

<p>Motion for reargument denied, with ten dollars costs.</p>

<p>Order affirmed, with ten dollars costs and disbursements.</p>

<p>Order affirmed, with ten dollars costs and disbursements.</p>

<p>Motion for reargument denied, with ten dollars costs.—</p>

<p>Judgment affirmed, with costs. Appeal from order dismissed.</p>

<p>Order affirmed, with costs, bub without prejudice to the right of the appellants to bring action, etc.</p>

Judgment affirmed, with costs, upon the opinion of the Special Term. All concurred. The opinion of the Special Term was as follows:

<p>Judgment and order affirmed, with costs.</p>

<p>Judgment affirmed, with costs to both parties out of the fund.</p>

<p>Orders affirmed, with ten dollars costs and disbursements.</p>

<p>Judgment affirmed. with costs.</p>

<p>Judgment affirmed, with costs. The court is not unanimous as to whether the facts proved are sufficient to support a finding of negligence on the part of the defendant.</p>