Volume 5 — Bedell

for the year 1899, and vacating the assessment. The facts, so far as material, are stated in the opinion. All that is necessary to subject a nonresident to assessment for purposes of taxation is that he should have a specific sum invested in business. It is not essential that the thing to be taxed should be the same kind of property taxable to a resident.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff was entitled to recover the damages sustained by being prevented from doing all the work required by his contract and necessary to regulate and grade the whole of Dyckman street from the Hudson river to Exterior street, and it was error to exclude the evidence offered in support of the same and to dismiss the third cause of action wherein recovery therefor was sought.

<p>Negligence—When Freedom from Contributory Negligence Must Be Affirmatively Proved. In an action to recover damages for the death of plaintiff's intestate, alleged to have been caused by defendant’s riegligence, when there is neither direct nor circumstantial evidence which points either to the presence or absence of contributory negligence, the plaintiff cannot recover without some affirmative evidence to shq,w that the decedent was not guilty of contributory negligence.</p>

<p>1. Evidence — Admissibility oe Value oe Testamentary Gifts. Where the probate of a will is contested upon the grounds of testamentary incapacity and undue influence, evidence of the condition and value of the estate and of the several properties devised is admissible.</p> <p>3. Admissibility of Declarations op Testatrix. Statements made by the testatrix to one of her daughters, a competent witness, as to personal y transactions between them, of conversations which the testatrix claimed to have had with other persons which were alleged to be wholly imaginary, are admissible on the questions of mental incompetency or undue influence.</p>

The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material) are stated in the opinion. The will of December 27, 1866, was concealed by Charles M. Fox and its existence was not known to plaintiffs until it was found among his papers after his death.

The nature of the action and the facts, so far as material, are stated in the opinion. Both an express and an implied warranty are provable under the complaint as it originally stood and as it was amended. (Hoe v. Sanborn, 21 N. Y. 552; Bierman v. City Mills Co., 151 N. Y. 482; Reynolds v. Mayor, Lane & Co., 39 App. Div. 218; Almond v. Hart, 46 App. Div. 431; Prentice v. Fargo, 53 App.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 7, 1900, affirming a judgment in favor of defendants entered upon a verdict directed by the court and an order denying a motion for a new trial. The nature of the action and the facts, so far as material, . are stated in the opinion.

i The nature of the action and the facts, so far as material, are stated in the opinion. The trial justice erred in directing a verdict in favor of the defendant, merely because, in his opinion, the evidence preponderated in defendant’s favor. (Luhrs v. B. H. R. R. Co., 11 App.

The facts, so far as material, are stated in the opinion. The testator intended the bequest provided in the 8th clause of his will as a gift to the association.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff became, on the 1st day of January, 1898, an employee of the defendant in the department of public buildings, lighting and supplies. (Koelesch v. City of New York, 34 App. Div. 98.) The plaintiff was never discharged or removed from the position to which he was assigned.

<p>Corporations — Rights op Creditors Cannot Be Impaired by Sale of Plant and Retirement from Business. Where the rights of a creditor have intervened a corporation has no power, even with the consent of all its stockholders, to sell its plant to another corporation and to retire from business, taking payment in the stock of the purchasing corporation, which is issued, not to it, or its officers as trustees, but to an individual stockholder, who does not undertake to pay the corporate debts, and who distributes it without regard to such debts, since the creditor has the right to rely upon its assets for the payment of his debt and has an equitable lien thereon, both as against stockholders and all transferees except those purchasing for good faith and for value, and, under such circumstances, the stockholder could not become a bona fide purchaser.</p>

<p>1. Contract — Consideration. Where a voluntary promise to pay money, expressly or impliedly, either imposes upon the promisee some obligation, or requests of the promisee the performance of services upon the strength of the promise, if the conditions are met, there is a consideration which will suffice to uphold the agreement and the promisee may compel payment.</p> <p>2. Evidence Tending to Show Nature oe Consideration. In an action to recover upon a promissory note given “in consideration of founding a college,” testimony of the person who procured the note as to what was said and done by and between him and the maker, at the time the note was given, tending to show that the plaintiff undertook to perform acts and services upon the invitation or request of the defendant, is not open to the objection that it tended to contradictor to vary the written agreement, hut is admissible and proper to establish that there Was a good consideration for the note in the acts undertaken to be per formed by the plaintiff upon the strength-and inducement of the promise.</p>

<p>' Sales — Goods to Be Shipped—Damages. Where, under a contract providing for the purchase and sale of a quantity of goods “ expected to arrive,” the seller to ship them immediately, they to be of a certain quality, any question of quality to be decided by the selling brokers, and their decision tobe final and binding on both parties, modified by a letter adding the usual condition of “no arrival, no sale,” the goods are shipped by the seller and tendered to the purchaser in fulfillment of the contract, and are inspected by the brokers who determine that they are not of the kind nor quality required by the contract, the terms ‘ ‘ expected to arrive " and ‘ * tío arrival, no sale,” apply only to the risks or perils of navigation or transportation, and the goods which the seller intended to deliver and which he tendered to the purchaser in performance of his contract having been determined, in the manner provided therein, not to bo of the quality which he contracted to sell, in the absence of fraud, mistake or collusion on the part of the brokers, the purchaser is not bound to accept them, and is entitled to recover such damages as he sustains by the failure to deliver, goods of the quality described in the agreement.</p>

> The nature of the action and the facts, so far as material, are stated in the opinion. The company, or its receiver, did not forfeit the right to enforce payment of the notes, either by failing to tender deeds at the time the last notes matured, or .by failing to release the lien on the Hembree lots before the notes became due, because the contract was continuing and subsisting. (Laird v. Smith, 44 N. Y. 618 ; Newton v. Hall, 90 Cal. 487; Raymond v. Land Co., 53 Fed.

<p>Will—Compromise Agreement—Income prom Trust Fund not Subject to Claims op Judgment Creditors. The income of money invested by trustees in pursuance of a compromise approved by the surrogate, made with testatrix’s husband, who contests on the ground of incapacity the validity of a codicil revoking the provisions of a will creating a trust fund for his benefit, by which compromise it was agreed that the amount specified in the will should be invested as therein provided and the income paid to him during his life, but not to exceed five years, the other provisions of the will and codicil to remain in full force and effect and be admitted to probate, is to be considered as the proceeds of a trust fund under the will and not of a contract for the benefit of the husband, and, therefore, not subject to the payment of the claims of his judgment creditors, where it is no more than necessary for his support and maintenance.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Ho express contract having been proven, and the law not implying one to pay storage, the plaintiff was bound to establish by the acts of the parties that an implied contract existed, its extent and limitations, and this question was one of fact to be determined by a jury and not by the court, and the direction of a verdict was error.

This action is brought to enforce the specific performance by the defendant of his agreement to purchase certain premises in the city of Hew York and the defense is that the plaintiffs were unable to convey a marketable title. The premises were formerly a part of the property of James Cordon Bennett Sr., who died in 1872, leaving two children, James Cordon Bennett Jr. and Jeannette Bennett.

an order of the Appellate Division of the Supreme Court in the. first judicial department, made July 17, 1900, which reversed a judgment in favor of defendants entered upon a verdict and an order denying a motion for a new trial and granted a new trial. The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. An offer of sale was made by defendant, accepted by plaintiff, and a contract price agreed upon. (Dustan v. McAndrew, 44 N. Y. 72.) The defense that the making of an agreement to sell at a special contract price was fraudulently induced, was not within the issues raised by the pleadings.

The nature of the action and the facts, so far as material, are stated in the opinion. There is no duty resting upon the owner of an apartment house to light the halls and stairways of such apartment. (Halpin v. Townsend, 2 City Ct. Rep. 417; 107 N. Y. 683 ; Muller v. Minken, 5 Misc. Rep. 444; Harkin v. Crumbie, 20 Misc. Rep. 569; Nadel v. Fichten, 34 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 1, 1899, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>A purchaser of stock in a corporation made in good faith without knowledge on his part that there has been any fraud perpetrated in the organization of such corporation, is not liable as such stockholder for the debts of the corporation because of any fraud in its incorporation. (Beach on Priv. Corps. 248, § 131c; Cook on Corps. §50; Rood v. Whorton, 67 Fed. Rep. 434; Coleman v. Howe, 154 Ill. 458; Young v. Erie Iron Co., 65 Mich. 111; Waterhouse v. Jamieson, L. R. [2 H. L.] 29; Brandt v. Ehlen, 59 Md. 1; Steacy v. L. R. R. R. Co., 5 Dillon, 348.) An innocent purchaser of stock in a corporation which is represented by the vendor, and the certificate thereof to be full paid and non-assessable, acquires a vested interest therein free from the consequences of any fraud perpetrated by the incorporators, and he cannot be required under any law of the land to pay penalty for another’s fraudulent conduct. (People ex rel. v. Bd. of Suprs., 4 Barb. 64; People v. Platt, 17 Johns. 195; Benson v. Mayor, etc., 10 Barb. 223; The Binghamton Bridge, 3 Wall. 51; People ex rel. v. Otis, 90 N. Y. 48; White v. White, 5 Barb. 474; Rowell v. Janvrin, 151 N. Y. 60.)</p> <p>The claim of the appellant that he did not participate in the overissue of stock, and had no notice thereof when he became a stockholder, if true, is immaterial; he is not exempt from the operation of the statute. (Seymour v. McKinstry, 106 N. Y. 230; Gamble v. Queens Co. W. Co., 123 N. Y. 91; Nat. Tube W. Co. v. Gilfillan, 124 N. Y. 302; Schenck v. Andrews, 57 N. Y. 133; Briggs v. Cornwell, 9 Daly, 439; Briggs v. Waldron, 83 N. Y. 582; McDowall v. Sheehan, 129 N. Y. 200; Herbert v. Duryea, 34 App. Div. 479.)</p>

The facts, so far as material, are stated in the opinion. It was error for the surrogate to refuse to allow the proponents to prove declarations of the testatrix inconsistent with an intention to revoke her will and codicil, and which tended to prove their continued existence down to her death. (Betts v. Jackson, 6 Wend. 173; Matter of Marsh, 45 Hun, 107; Matter of Oliver, 13 Misc, Rep. 466 ; Collyer v. Collyer, 110 N. Y. 481; Sugden v. Lord St. Lenords, L. R. [1 Prob.

February 27, 1899, which reversed a judgment in favor of defendant- entered upon a verdict and an order denying a, motion for a new trial and granted a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. The evidence was competent under the pleadings.' The plaintiff by her allegation of performance, raised the issue that all required conditions had been performed.

The.nature of the action and the facts, so far as material, are stated in the opinion.

<p>1. Transfer Tax—When Tax Is on Succession, not on Property. The tax imposed by the Transfer Tax Act (L.1S96, ch. 908, amd. L. 1897, ch. 284), upon transfers made under power of appointment, is a tax on the right of succession and not on the property, and, therefore, does not relieve from taxation thereunder trust funds as to which a power of appointment is exercised, because invested in corporations liable to taxation on their own capital and-in bonds exempt from taxation.</p> <p>2. Power of Appointment — Time of Exercise—Form of Property. Transfers under a power of appointment given the beneficiary by a will creating a trust in real estate are subject to a transfer tax, under the provision of such act as amended for a tax on transfers made under a power of appointment, where at the time of the exercise of the power, subsequent to the enactment of such statute, the property was in the form of personalty, having been converted thereto by the trustees under a power of sale in the will, although at the time of the death of the original testator it was not, as real estate, subject to any such tax.</p> <p>3. Remainders. Remainders created in a trust fund by the exercise of a power of appointment by the beneficiary under the will creating the trust are subject to taxation at the time of the transfer under such act where they are absolute and not subject to be divested or to fail in any contingency whatever, and their present value is determinable by aid of the table of annuities, and they do not come within the exception of section 222, providing that an interest limited, conditioned, dependent or' determinable upon the happening of a contingency or future event by reason of which its market value cannot be ascertained at the time of the transfer shall be taxable when the person beneficially entitled thereto shall come into actual possession or enjoyment thereof.</p>

The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The demurrers are well taken. (Dawley v. Brown, 79 N. Y. 390 ; Stowell v. Chamberlain, 60 N. Y. 272; Jackson v. Andrews, 98 N. Y. 673; Campbell v. Consalus, 25 N. Y. 613 ; Chapman v. Hyher, 60 Pac. Rep. 974; Packet Co. v. Sickles, 5 Wall. 592; Disch v. Timm, 101 Wis. 179; Booth v. Fuller, 35 App. Div. 119; Bliss v. Winters, 38 App. Div. 174; O’Rourke v. Hall, 38 App.

<p>Principal and Agent — Liability ecu the Tort op Apparent Agent. A corporation, which is the proprietor of a department store and holds itself out as practicing dentistry in one of the departments apparently in charge of its agents, is estopped from denying their agency and its liability for their malpractice, although in fact they may be carrying on the practice on their own account, where a patient who is ignorant of that fact is operated upon by them unslcillfully, since he has a right to rely upon the presumption that they are skillful practitioners and also on the fact that, whether skillful or not, if they are guilty of any malpractice, he will have a responsible party to answer therefor in damages.</p>

<p>Murder—Trial—Remarks of district attorney to jury.</p> <p>Where, on a trial for murder, it is a matter of reasonable doubt whether the district attorney by his remarks to the jury did not intimidate them -or coerce them through threats and an appeal to their fears, in case of an acquittal, into finding a verdict against the defendant and thus make it reasonably doubtful whethér the defendant has had a fair trial, the judgment of conviction should be reversed.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in excluding the record of the Greenwich policy which was ^ offered in evidence. (Sanders v. Cooper, 115 N. Y. 279.)

The nature of the action and the facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. Under the charter of the city of Buffalo the term of office of defendant under his appointment by the mayor to fill a vacancy expired December 31, 1900, and the term of office of relator began January 1, 1901. (L. 1891, ch. 105 ; L. 1895, ch. 805 ; Const, art. 12, § 3; Petterson v. Welles, 1 App. Div. 8 ; People ex rel. v. Board Suprs., 42 App.

The nature of the action and the facts, so far as material, are stated in the ooinion. At the time of its delivery the note was not a contract. It was to become a contract only upon the happening of several contingencies, among which were the issuance to the defendant of a policy of the company within thirty days after the incorporation became complete, and the payment into the company’s treasury of $40,000 in cash, hi either of these conditions was satisfied.

• This proceeding was instituted by a petition and notice of motion to compel the appellant to pay over to the respondent certain moneys which she alleged he had collected as' her attorney at law.

This action was brought upon a promissory note for the sum of $1,493.13 made by the “ Richmond Bicycle Company,” a corporation' of Indiana, to the order of “ AllertonClarke Co.,” a corporation of Illinois, dated August 14tli, 1897, payable 60 days thereafter and transferred to the plaintiff after maturity. The defense alleged was a merger of said note in a judgment recovered thereon by the payee in a court of Indiana, on the 29th of September, 1897.

This action was brought to so reform an assignment of a chose in action as to state that the amount of the claim assigned was $1,191.28, instead of $2,036.54, as stated in the written instrument, and for other relief. The facts, as found by the trial court, were substantially as follows: On the 12th of December, 1896, Sidney B. Roby, then of the city of Rochester, made a general assignment to the plaintiff for the benefit, of his creditors.

This action was brought to recover from the defendants the sum of $23,321.69 upon the allegation that between the 23rd of June, 1893, and the 23rd of March, 1896, they collected, received, withheld and retained, for their individual benefit, money and property belonging to the plaintiff, worth that amount, and upon demand duly made refused to pay over the same or any part thereof.

This ' action was brought by the plaintiff for the rescission of a transaction, in which certain bonds belonging to the defendant were sold to, and purchased by, her.

The nature of the action and the facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. The statute distinctly gives the right to a general inspection and is mandatory. (L. 1897, cli. 378, § 892; Clark v. Norton, 49 N. Y. 243: Westfall v. Preston, 49 N. Y. 349; Overing v. Foote, 65 N. Y. 263; People ex rel. v. Forrest, 96 N. Y. 544; Cooley on Taxn. [2d ed.] 336; Wheeler v. Mills, 40 Barb. 644; People ex rel. v. Vil. of New Rochelle, 17 App.

<p>Attorneys—When Applicant for Admission to the Bar Is not Entitled to Examination under Rule Admitting Attorneys Licensed to Practice in Another State. An applicant for admission to the bar who has resided in this state continuously for the past ten j^ears, is net a graduate of a college or university and has not passed the regents examination, nor in any manner furnished the evidence of the educational qualifications required by the rules for the admission of candidates, although he has been licensed to practice law in the state of New Jersey and has practiced therein for at least one year from the date of his admission, and has served a clerkship for nearly ten years in the office of an attorney in the city of New York who also liad an office and practiced law in New Jersey, does not come within rule 4 admitting those licensed to practice in another state who have “remained therein as practicing attorneys for at least one year,” provided they have since pursued the study of law for one year within this state, because he has not “remained” in the state of New Jersey as a practicing attornejr for the requisite period, the words “remained therein,” as used in the rule, implying residence in the state where the candidate was admitted during the year that he is required to practice therein; and since he could not at the same time be a clerk in New York and a lawyer in New Jersey, he must be recognized in his former capacity only, and his application for an examination denied.</p>

On the 28th of July, 1897, at the city of New York, the plaintiff sold his yacht Jola to the defendant for the sum of $2,250, by an executory contract which impliedly provided that the title should not pass until the purchase price should have been fully paid.

The nature of the action and the facts, so far as material, are stated in the opinion. Defendant had a right to rely upon the commercial agency statement. (Humphrey v. Smith, 7 App. Div. 442; Bliss v. Sickles, 142 N. Y. 647; Goodwin v. Goldsmith, 17 J. & S. 101; King v. Munzer, 59 N. Y. S. R. 518; Tindle v. Birkett, 57 App.

<p>1. Tax Deed — Erroneous Assessment upon Lands not within Description oe Special Statute. An assessment for a local improvement upon lands in township 41 of Totten and Crossfield’s purchase, lying wholly within the county of Herkimer, under a special act of the legislature (Chap. 347, Laws of 1858), which authorized commissioners to impose taxes therefor upon lands lying within that township “in the county of Hamilton ” is void, and a deed of the state comptroller based thereon is invalid.</p> <p>3. Sale for Valid and Invalid Taxes Void. A deed of the state comptroller based upon a sale for unpaid taxes levied during a series of years some of which are valid and others invalid, is void and conveys no valid title to the property thus assessed.</p> <p>3. Chapter 448, Laws of 1885, when Relied upon as a Statute of Limitation Must Be Pleaded. The contention that any defects existing in the deeds have been cured by the provisions of chapter 448 of the Laws of 1815, relating to sales of lands of non-residents for unpaid taxes, is without force in a case where so far as applicable the statute must be regarded as a statute of limitation and has not been pleaded as a defense.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The learned trial judge erred in holding, that Law was the servant of the defendant.

<p>Contract—When Sales Executed or Executory, Made During Suspension Provided for in a Contract for Payments upon Sales Made while in Force, not Subject Thereto. An agreement by the patentees of a commodity with competitors in business, who agreed to become their selling agents, that the latter should receive a specified sum upon each pound thereof sold and delivered- to them or to others during the life of the contract, and that if the patents were infringed upon, or if in any way without their fault the patentees should lose exclusive control of the market, they might terminate the agreement upon notice, the same to he again enforced when they regained exclusive control, does not entitle the agents to payments upon sales made the patentees to other parties during a suspension of the contract owing to an infringement of the patent, upon the ground that the goods sold were not delivered until after its reinstatement, since the right thereto depends upon both a sale and delivery during the operation of the contract, and all sales, whether executed or executory, during the period of suspension, are relieved from such payments.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court below erred in holding that the plaintiffs were not entitled to a lien upon the funds appropriated fór the building of the schoolhouse; and that by the service and the filing of the order, and the order only, the defendants Holden & Son acquired a valid title and right to said fund superior to the rights of the plaintiffs and their liens thereon.

<p>Contract—Action for Compensation for Use of Premises Intermediate their Sale and Reconveyance. Where, upon the trial of an action to recover compensation for the occupancy of premises, it appears that the defendant purchased them under an oral agreement made by the husbands of the respective parties that she might change her mind and have the right to elect that it should not be considered a purchase at all, in which event all that the property cost her should be restored; that she did change her mind and the money she put into it was refunded or allowed to her; that part of the agreement was that in case the vendor was required to take the property back he should be at liberty to charge a specified rate per month during defendant’s occupation, which part she repudiated upon the ground that her husband had no power to bind her to pay anything therefor, and the question whether she authorized or ratified her husband’s promise to pay was submitted to the jury, a verdict for the plaintiff for the amount found due for compensation during the period of occupation cannot be disturbed on appeal.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The reversal not being stated to be on questions of fact, the findings of the court on those questions, unless wholly without evidence to support them, are conclusive in this court. (Code Civ. Pro. § 1338 ; Hinckel v. Stevens, 165 N. Y. 171; Nat.

Appeals from judgments of the Appellate Division of the Supreme Court in the first judicial department, entered November 26, 1900, modifying and affirming as modified judgments of Special Term in the two above-entitled actions, brought to obtain construction, respectively, of the third and ninth paragraphs of the will s of William D. Thompson, deceased. The third clause of the will involved in the first-entitled action reads as follows: “ Third.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 20, 1901, affirming an interlocutory judgment of Special Term overruling demurrers to the complaint. The question certified is stated in the opinion. The question certified aslcs for a review by the Court of Appeals of an order of the Supreme Court resting in discretion. The Court of Appeals has no power to entertain the question.

This appeal from the order denying defendant’s motion for a new trial under section 1001 is based on exceptions and presents only questions of law. (Raynor v. Raynor, 94 N. Y. 248; Dorchester v. Dorchester, 121 N. Y. 156.) The order from which the appeal is taken is not appealable to this court as a matter of right. (Code Civ. Pro. § 190, subd. 1; Van Arsdale v. King, 155 N. Y. 325.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, made October 19, 1900, which reversed an order of Special Term discontinuing the action upon stipulation, without costs. The plaintiff, a foreign corporation, brought this action against the defendant, as president of an unincorporated association, to recover a certain sum as money had and received. The answer alleged several defenses, but no counterclaim.

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 8, 1899, affirming a judgment in favor of defendant, the Atlantic Trust Company, entered upon a verdict directed by the court. This action was commenced to recover damages of the Atlantic Trust Company for its neglect of a duty alleged to be owing to the plaintiff, as the holder of. certain bonds of the Julien Electric Traction Company.

<p>.1 Rape—Evidence of penetration.</p> <p>Where there is proof that would justify the jury in finding that the victim of a rape was in such a state of stupor as to have prevented her resistance and rendered her oblivious to the acts of defendant, her inability to testify that there was penetration was not conclusive provided there was other proof from which the fact might have been legally and properly found, but there must be evidence sufficient to overcome the arbitrary presumption of the law that defendant did not perform the act charged, in order to sustain a conviction.</p> <p>2. Same.</p> <p>Defendant’s guilt must be proved beyond a reasonable doubt, and his conviction was illegal unless that fact naturally flowed from the circumstances.</p>

<p>1. Murder—Evidence—Premeditation.</p> <p>On a trial for murder it was proven that defendant had been forcibly ejected from a restaurant by T. after an altercation as to his paying for the food furnished; that he crossed the street and carefully selected a revolver at a gun store, loaded it and returning after an absence of a few minutes, killed T. Defendant testified that he did not refuse to pay for the meal, but returned to procure names of witnesses to obtain satisfaction by law, and armed himself for protection, etc. Held that the evidence established premeditation, and that the homicide was committed from motives of revenge.</p> <p>2. Same.</p> <p>Where the testimony clearly imports that the crime was committed in the county in which the venue was laid and the point is raised for the first term in the Court of Appeals, it will not be considered by that court.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme' Court in the first judicial department, entered April 18, 1900, affirming a judgment in favor of plaintiff entered upon the report of- a referee.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 16, 1900, affirming an interlocutory judgment entered upon a decision of the court on trial at Special Term in an abtion brought by the trustee under the will of William Tilden, deceased, for a settlement of its accounts and a partition of the estate.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered August 9, 1900, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at Special Term and granting a new trial.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 29, 1899, affirming a judgment in favor of defendant entered upon a verdict and an order denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 6, 1899, affirming a judgment in favor of plaintiff entered upon a verdict and an ordór denying a motion for a new trial.</p>

Appeal, hy permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, made January 25, 1901, which reversed an order of Special Term vacating an order appointing commissioners of estimate and assessment in the proposed widening of Clinton avenue in the borough of Brooklyn. The following are the questions certified: • First.