Volume 5 — New York Supplement

Motion to vacate an order of arrest in an action by Emanuel Stern and others against Adolph Schlesinger on a judgment. The Bosenberg Manufacturing Company, a corporation existing under the laws of New York, recovered judgment against defendant in the circuit court of the United States for the Eastern district of Michigan for the conversion of certain personal property. Defendant was arrested in that action.

Action by Ignatz Oesterreieher against the Sporting Times Publishing Company, to recover the value of a printing plate made for the defendant. The -complaint fails to state whether the defendant is a corporation or an entity of any kind. The defendant demurs on the ground that the complaint does not state facts sufficient to constitute a cause of action.

<p>Mechanics’ Liens—Priority—Receivers.</p> <p>A receiver appointed in supplemental proceedings instituted against a contractor is not entitled to a claim owing to the contractor for the construction of a building, as against one who had prior to the appointment of the receiver furnished materials for the building at the instance of the contractor, although the lien for the materials so furnished is not filed until after such appointment.</p>

<p>Appeal from special term.</p>

<p>Appeal from jury term.</p> <p>Action by Lewis M. Teel against Abraham Yost. The court directed a verdict for defendant, and plaintiff appeals.</p>

Action by Aaron B. Cohu, as executor of Joseph F. Cohu, deceased, against Joseph Husson. Judgment for defendant, who appeals from an order denying his application to reverse the decision of the clerk in refusing to enter judgment for him for costs.

Action by the Hew York Protective Association against Philip McGrath, Davis J. MeHaughtin, Michael Breslin, James J. Daly, Bichard A. Cooney, Stephen Ellsworth, and Paul Meyer, to enjoin defendants from acting or pretending to act as trustees of plaintiff, and to require them to deliver to plaintiff’s president or secretary its books, etc., taken from its safe. Defendant McGrath demurs.

Action by John Young against William Lyall, for malicious prosecution. Defendant appeals from a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial.

. Action by Daniel M. Davidson against Perrin H. Sumner. The court directed the jury to find a verdict for the defendant, and ordered plaintiff’s exceptions to be heard in the first instance at general term.

At chambers. On motion for judgment on demurrer to the complaint. Action by Elizabeth Bateman against the Forty-Second Street, Manhattan-ville & St. Nicholas Avenue Railway Company, impleaded with the mayor, aldermen, and commonalty of the city of New York. Defendants demur to ■complaint, and plaintiff moves for judgment.

<p>Principal and Agent.</p> <p>One who had acted as the agent of the defendant for certain purposes, hut who was paid by H. to procure a loan for him, and induced the defendant to make it, was the agent of H. in such transaction.</p>

<p>Wills—Testamentary Capacity.</p> <p>Testatrix had lived for many years apart from her husband, apparently by mutual consent, and had accumulated a moderate sum of money, four-fifths of which she gave by her will to her own relatives. At the time the will was executed there were present, besides the draughtsman, four witnesses, who testified to what took place, agreeing in all essential particulars, the attesting witnesses disagreeing only as to the order in which they signed. The will was written on a printed blank, and the testatrix called off the different sums, which were written by the draughtsman. After she had signed it, she was asked if she wanted the attesting witnesses to sign. She replied “Yes, ” that it was her request; that she wanted the will read just as she had said. In reply to the draughtsman’s question if she was satisfied, she said: “At last you have done what I asked you. ” She spoke to several of the witnesses as to the prospects of her soul, and showed that she realized the approach of death, and had prepared for it. She had been sick for about six weeks with typhoid fever. The will was written Monday evening, and testatrix died Wednesday morning. Contestant’s testimony related to the condition of testatrix’s mind at Monday noon, and on Tuesday and Wednesday, which was described as “flighty.” Several witnesses testify that she was in sound mind on Sunday and Monday. The medical witnesses agreed that the delirium from typhoid fever is intermittent. Held, that no incapacity was shown.</p>

On exceptions to referee’s report. Upon the accounting of Harriet McGowan, executrix of the will of John E. Wallace, deceased, the referee found that certain legacies bore interest only after the expiration of one year from the death of testator. William Carroll and Mary A. McGowan excepted to the finding.

<p>1. Witness—Transactions with Decedents.</p> <p>On the hearing of a petition by a legatee to revoke the probate of a will, which provided that if any beneficiary thereunder should directly or indirectly institute or become an acting party to any proceeding to set aside, interfere with, or make null any provision of the will, his interest under the will should become null, it appeared that after the commencement of the proceeding certain legatees and next of kin of the testatrix, not including the petitioner and other contestants, had executed an agreement, the object of which was stated to be to avoid any controversy between themselves in relation to testatrix’s estate, and the obvious purpose of which was to secure their legacies to the legatees signing it, and to the contestants, in case the will should be set aside. Meld, that the condition in the will against contesting it was valid; that a legatee executing the agreement became thereby a party to the proceeding to set the will aside, thus depriving herself of her legacy in case the will should be sustained, and was therefore incompetent to testify concerning personal communications to her by the testatrix, under Code Civil Proc. hi. Y. § 829, which forbids that one shall be examined in his own behalf concerning a personal transaction with a deceased person.</p> <p>2. Same.</p> <p>Such legatee, having affirmed the will in her answer to the petition, was not incompetent as a witness under the pleadings, by virtue of such statute, as her testimony would not be in her own behalf.</p>

Petition by Benjamin G. Berrien, executor of the alleged will of Rachael Berrien, deceased, to admit the same to probate. It was contested by two-daughters of the deceased, Mrs. Baker and Miss Berrien.

Petition by Charles James Phalen, a legatee under the will of James Phalen, deceased, to require the executors thereof to pay him the sum of $10,000 on account of his legacy Code Civil Proc. N. Y. § 2717, provides that any legatee may present his petition to the surrogate, asking that the executors may be required to pay him the whole or a portion of his legacy at any time after the expiration of one year from the issuing of letters testamentary.

In the matter of the probate of the last will and testament of Rhoda Fuller, deceased., Code Civil Proc.

<p>On application for probate of the will of Christian Schreiber, deceased.</p>

<p>In the matter of the inheritance tax of certain legacies under the will of Frederick Herr, deceased.</p>

<p>Application for probate of a will.</p>

On motion to dismiss. Action by Henry It. Pierson, as receiver of the Widows’ & Orphans’ Benefit Life Insurance Company, against Andrew W. Morgan, to enforce a contract of guaranty. Defendant having died, the action was revived against his administratrix, Justine M. Cronlc.

On certiorari to review the dismissal of Lawrence Deley from the police force of the city of ÍTew York, by Stephen B. French and others, police commissioners.

On certiorari to review the dismissal of John 0. Burke from the police force of the city of New York, by Stephen B. French and others, police commissioners.

<p>Appeal from surrogate’s court, Hew York county.</p> <p>Rose Duffin, a legatee under the will of Catharine Darragh, offered the will for probate, which was contested by Henry C. Darragh, an heir of deceased. The surrogate admitted the will to probate, and the contestant appeals. A former report will be found in 3 N. Y. Supp. 283.</p>

<p>1. Wharves—Lease—Wharfage—Quarantine.</p> <p>Defendants agreed to pay plaintiff a certain sum per day for the use of a wharf, commencing with and including the day of each steamer’s arrival in the port of New Y ark, provided such arrival be before 4 p. M., and, if later, then the following day to count as the first day, and including also the day of departure. If plaintiff should be unable to furnish the pier to any steamer he was to furnish without loss of time a covered pier, as convenient as possible, at no additional expense. Defendants were to give notice of sailing for New York 10 days before arrival, so that the pier might be reserved. Meld, that plaintiff was entitled to wharfage from the time of arrival in port if before 4 o’clock p. m., though the steamer was detained at quarantine.</p> <p>2. Same.</p> <p>The law in reference to quarantine, having been in force at the time and place of making and place of performing the contract, must be presumed to have been considered by the parties, and is not an unexpected intervention of sovereignty which suspends the operation of marine contracts.</p> <p>3. Same.</p> <p>The pier being occupied by one steamer when another arrived, plaintiff procured another pier, which he held for several days, when, in consequence of detention at quarantine, and the.uncertainty of the time of release, he surrendered it. Meld, that plaintiff could not recover additional wharfage' for the additional pier for the period when the same was not provided and held in readiness.</p>

Action by Hugh H. Camp against Arthur G-. Bedell for libel. Plaintiff appeals from an order denying a motion to compel defendant to elect between a demurrer and answer alleged to be contained in the same pleading.

<p>Receivers—Distribution oe Fund—Rents.</p> <p>Where the receiver of premises is authorized to rent a portion of them to one of the owners at a fixed annual rent, but the owner fails to accept the lease and pay the rent, he is not entitled to the excess which the receiver receives over that sum from others to whom he leases that portion.</p>

<p>Appeal from special term, Mew York county.</p> <p>Action by Felix Dreyfus against William C. Casey, to recover certain chattels stored with defendant by one Carl Drucklieb. Defendant moved to substitute as defendant in his stead James E. Carpenter, receiver of Maurice Lillienthal’s estate, who was making a claim to the property. Motion was sustained, Lawrence, J., delivering the following opinion: “I am of the opinion that the motion made on the part of the defendant, that James E. Carpenter, the receiver of the property of Morris Lillienthal, appointed by the United States circuit court for the Southern district of Mew York, be substituted as defendant herein, should be granted. It was held in the case of Bank v. Mayor, etc., 4 M. Y. St. ltep. 565, by the general term of this department, that where ‘ a party defendant to an action asked for an order allowing him to pay money into court, and that certain other parties be interpleaded as defendants, that in order to succeed it was not necessary for the affidavit in support of the motion to show that the demands made on the money, etc., would probably be successful, but only that there was a person not a party to the action who makes a demand for the same debt, without collusion with the defendant.’ In Ball v. Liney, 48 M. Y. 6, it was held that if a bailee desires to relieve himself from the embarrassment of conflicting claims, and from the responsibility of deciding between them, he can do so by commencing a suit in the nature of a bill of interpleader against the different claimants, and thus have the right to the property judicially determined. While section 820 of the Code of Civil Procedure has not abolished the action of interpleader, it is intended to cover many cases in which such an action would formerly have been brought, and I think that this is a case in which the discretion of the court authorized by that section should be exercised. If there is anything in the case of Vosburgh v. Huntington, 15 Abb. Pr. 254, adverse to these views, I deem it sufficient to say that that case must be controlled by the later cases to which I have referred. Furthermore, I agree with the counsel for the defendant and the receiver, that this case should be decided upon the facts appearing at the time of the argument of the motion, at which time the property was still in the custody of the sheriff. See Schuyler v. Hargnus, 3 Bob. (ÍT. Y.) 673. In regard to the point that the plaintiff in this action was a bona fide purchaser from the alleged fraudulent vendee, the recent case of Soltau v. Gerdau, 48 Hun, 537, appears to me to be in point. Ordered to be settled on notice. ” Plaintiff appeals.</p>

<p>1. Vendor and Vendee—Objections to Title Offered—Waiver.</p> <p>An objection to a title on the ground that it is incumbered by certain mortgages is waived when the vendor offers to go to the mortgagees’ office and procure their satisfaction, arrangements to that end having previously been made, and the purchaser’s attorney states that it is unnecessary, as he intends to rely upon objections to the dimensions of the property.</p> <p>2. Same—Liens—Offer to Deduct from Purchase Price.</p> <p>An objection that the property is subject to an unpaid water-tax is disposed of by the vendor’s offer to allow a deduction of the amount thereof from the purchase price.</p> <p>3. Same—Unreasonable Refusal to Accept Title—Damages.</p> <p>Where, owing to the vendee’s unreasonable refusal to accept the title, the vendor is compelled to borrow money to pay a mortgage on the property, he is entitled to recover as damages the amount of the legal commission for securing the new loan, and attorneys’ fees and disbursements connected therewith.</p>

At chambers. Action by the Geneva Ifon-Magnetic Watch Company, Limited, against William H. Payne and Frederick D. Steck, for goods sold and delivered. An attachment was obtained by the plaintiff on the ground of fraud; and Bobert B. Holden and Charles I. Gardiner, junior lienholders, move to vacate the attachment for insufficiency of the affidavit.

<p>Municipal Corporations—Markets—Permits.</p> <p>Although Laws N. Y. 1884, c. 102, provides that permits to occupy stalls in the West Washington market, in the city nf Hew York, shall not he revocable by the comptroller, except for good and sufficient cause, such permits do not confer upon the holders any right, upon the abolition of that market by the legislature, and the . erection of another of the same name in a different part of the city, to occupy similar stalls in the new market in preference to other applicants.</p>

<p>Action by Charles E. Vernam against Charles P. Palmer and others, to enjoin alleged threatened acts of trespass.</p>

<p>At chambers. Action by Louis M. Howland against Samuel Montgomery Roosevelt and others. The plaintiff moves for an injunction pendente lite.</p>

<p>Application by the New York & Long Island Bridge Company to acquire certain lands belonging to the city of New York.</p>

<p>At chambers. On motion to continue temporary injunction pendente lite.</p>

At chambers. Motion to vacate an order dissolving a corporation known as “The Mart,” and appointing receivers to take charge of its assets. The application for the order was made without notice to creditors, as required by statute.

At chambers. This was an application by H. B. Pierson, receiver of the Guardian Mutual Life Insurance Company, for instructions as to whether a certain judgment rendered against said company, and in favor of Albert H. Wright, was entitled to preference over the claims of general creditors.

On final hearing. Action by George Heather & Co. against George Hearn & Co., their immediate neighbors, for maintaining a nuisance, and to enjoin the display by defendants of a pantomimic exhibition. Defendants gave, during Christmas week in 1886 and 1887, a pantomime by human actors in their windows, in consequence of which a large crowd gathered in front of the windows, impeding the traffic and travel along the street, and diminishing plaintiffs’ sales.

Beplevin by H. B. Clattin & Co. against James G. Du Bois for goods sold and delivered. The trial judge directed a verdict for defendant. On appeal to the general term, 1886, it reversed the order. 40 Hun. 681, mem. The cause came on for trial before the same judge, who directed a verdict for plaintiff, based on the following opinion: “In this case on the former trial, I thought there was no evidence on which a verdict for plaintiff could be sustained.

<p>Appeal from special term, New York county.</p> <p>Certiorari to review an assessment of the capital stock of the Fairfield Chemical Company, made by the commissioners of taxes and assessments for the city of New York for the year 1888. The commissioners appeal.</p>

<p>Execution—Against the Person—Guardian ad Litem.</p> <p>Code Civil Proa. N. Y. § 1376, provides that, “where the party recovering final j udgment has died, execution may be issued at any time within five years after the entry of the judgment, by his personal representatives or by the assignee of the judgment. ” Section 3349 provides that costs awarded against an infant plaintiff may be collected by execution or otherwise from his guardian ad litem, as if the latter were plaintiff. Meld that, after final judgment against an infant plaintiff, defendant, or an assignee of the judgment, may have an execution against the person of the guardian ad litem at any time within five years after the entry of the judgment as of course, and a motion for leave to issue execution is unnecessary.</p>

- The accounts of Richard J. Morrison, public administrator, and administrator, etc., of Mary E. Feyh, deceased, being before the surrogate for settlement, Katharine ICoffloo, administratrix, and Allison Butts, administrator, of the estate of Henry Feyh, deceased, claimed to be entitled to the fund in the right of their intestate, who, as they alleged, was the husband and sole distributee of her estate.

Action by Thomas J. Pope and James E. Pope against the Terre Haute Car & Manufacturing Company for breach of a contract. A judgment in plaintiffs’ favor was reversed by the court of appeals. 13 H. E. Hep. 592.

<p>Appeal from special term, 2Tew York county.</p> <p>Motion by Edward D. Cundell to compel the receiver of the A, B, C Fence Company to pay him for his services to the company, made in an action by Christopher A. Brown against said company. The motion was denied, and Cundell appeals.</p>

<p>Venue in Civil Cases—Notice of Motion—Time of Service.</p> <p>Code Civil Proc. N. V. § 798, declares that where the Code provides that a notice must he given or paper served within a specified time before an act is to be done, or that the adverse party has a specified time after notice or service to do an act, if service is made by mail, the time so required or allowed is double the time specified. Section 986, relating to change of venue, requires the defendant to serve a written demand, and, if the plaintiff does not file his consent within five days thereafter, the defendant may “within ten days thereafter serve notice of motion to change. ” Held, that where the demand is served by mail the times for consent and notice are doubled, and a notice within 30 days thereafter is in time.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by Catherine E. Swart against the mayor, etc., of the city of New York. Defendant appeals from a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial.</p>

<p>Vendor and Vendee—Defective Title.</p> <p>Defendant agreed to purchase from plaintiff premises to be used, as plaintiff knew, in the manufacture of iron railings. A deed in the chain of title covenanted that the grantees therein should not “carry on any trade or occupation which may be dangerous or offensive, or which may prove a nuisance to the neighboring inhabitants, ” and that the same covenant should be inserted in any subsequent deeds. Held such a defect in the title as to excuse defendant from performing his contract.</p>

<p>Appeal from circuit court, Hew York county.</p> <p>Action by Dora Wheeler against the Oceanic Steam navigation Company, Limited. The complaint was dismissed at the trial, and plaintiff appeals.</p>

Action by Charles Hubbard and others against Joseph T. Farrington. Judgment was entered on a verdict directed by the court for defendant, and plaintiffs appeal.

Action by Mortimer Hendricks against Montefiore Isaacs, as administrator of Justina B. Hendricks, to recover certain moneys alleged to have been advanced to defendant’s intestate on pledge of her interest in the estate of one M. M. Hendricks, deceased. The referee allowed plaintiff’s claim in part, with costs, and defendant appeals.

On motion for new trial on exceptions. Action by William Hadden against Bichard S. Waring, to recover the balance alleged to be due on a contract dated June 20, 1882, between defendant and Henry Van Hoevenbergh, plaintiff’s assignor, as follows: “Whereas, the said Henry Van Hoevenbergh has invented an improved printing telegraph instrument,- for which he has made application to the United States patent-office to grant letters patent; and whereas, the said Bichard S. Waring…

This is an appeal from a judgment rendered at special term, Hew York county, upon a trial before Mr. J ustiee Parker. The action was brought to recover a fund originally deposited with the Consolidated Stock & Petroleum Exchange of Hew York. By an order of interpleader, the appellant, Mortimer Hendricks, was substituted as defendant in place of the exchange, and the fund was directed to be brought into court, and placed to the credit of the action.

Appeal iron) circuit court, Hew York county. Action by Albert G. A. Harnickell against the Parrot Silver & Copper Mining Company to recover $8,351, commissions alleged to have been earned by him in negotiating the sale of defendant’s copper. The defendant denies that it ever employed him or A. Harnickell, for whom he acted as agent. It denies that he ever acted for them in reference to the making of the contract, or any part of it.

Action by William H. M. Sistare and George K. Sistare against Frederic P. Olcott, receiver of the Wall Street Bank, to recover $40,000 damages for the alleged conversion by the Wall Street Bank of 105 shares of stock of the American Printing Company and 250 shares of stock of the Youghiogheny Coal Company, growing out of the following allegéd facts: On May 14, 1884, plaintiffs borrowed from the Wall Street Bank $30,000, and secured the Joan by the said stock.

<p>Trial—Objections to Evidence—Cumulative Evidence.</p> <p>It is error to exclude evidence, otherwise competent, merely because it is cumulative.</p>

New York county. Defendants appeal from an order denying motion to vacate an order for the-examination of the defendant Bernard Levy before trial.

Defendant appeals from an order requiring him to furnish a bill of particulars of the fourth defense contained in his answer.

Action by Gerhard H. Bick, administrator of Henry Bick, deceased, to remover certain government bonds, and a mortgage owned by decedent in his life-time. A judgment on a verdict for plaintiff was affirmed on appeal, (3 H. Y. Supp. 757.) This appeal is by plaintiff from part of an order affirming •the refusal of the clerk to tax a certain item in plaintiff’s bill of costs.

<p>Appeal—Refusal to Resettle Case.</p> <p>The refusal of the trial judge to resettle a case on appeal, because the case, as-settled, is correct, is conclusive on the appellate tribunal.</p>

<p>Trade-Marks—Preliminary Injunction—Flint Paper.</p> <p>In an action to restrain the infringement of a trade-mark the affidavits showed: that large sums had been expended by plaintiffs in establishing the reputation of their flint paper, for which they had adopted as a trade-mark the words “The Baeder Flint Paper Company, New York;” that their first quality flint paper bears the mark “Baeder’s Flint Paper Company, Flint Paper, ” and is well recognized as of' first quality, and of established reputation; that it is the practice of manufacturers to brand paper of first quality with the firm name, while second quality is designated differently,—as “Star Paper,’’and the. like; that defendants manufacture flint paper at Philadelphia under the name of Baeder, Adamson & Co., and for the-purpose of deceiving the public, and disposing of second-class paper, appearing to-be made by plaintiffs as their first-class paper, mark their second-rate paper as “Baeder’s Flint Paper, [Star,] manufactured at Riverside Flint Paper Mills, Philadelphia, No. 1 Warranted. ” Held, that a preliminary injunction was proper.</p>

Action by Charles B. Baeder and others against William A. Baeder and another. Plaintiffs appeal from an order denying their motion for a preliminary injunction from «using brands stencils, labels, and forms of packages similar to those used by plaintiffs.

Action by James Gamble against the Queens County Water Company and •others, to enjoin defendants from carrying out a resolution for the issuing of stocks and bonds to purchase property proposed to be sold to the company by ■one Robert F. Mullins, who was one of the company’s trustees. . There was ■a judgment for plaintiff, and defendants appeal.

The action was brought by Julia Rhinelander Dodge and others to recover from the defendants, Mary L. Gallatin and others, the possession of the lands known as “Nos. 229 and 230 West Street, ” between Beach street and North Moore street, in the city of New York.

In 1857 the will of Jacob Straut, deceased, was admitted to probate in said county, and two of the executors and trustees named therein qualified and assumed the duties of their office. One of them having died, Edward J. Straut, the survivor, continued to execute the trust until 1881, when Jacob H. Conklin and Jacob A. Hopper were appointed his associates. Later in 1881, Edward J. Straut died, and Garret Z. Snider became his executor.

<p>Pleading—Bill of Particulars.</p> <p>Defendant gave notice to plaintiff in March to furnish a bill of particulars. In-the following June he moved to compel plaintiff to furnish the bill of particulars. The June term was then ended, and no delay was caused by granting the motion. Held, under Code Civil Proc. N. Y. § 531, providing that the court may in any case direct a bill of particulars, that the granting or withholding of the order was in the-discretion of the court.</p>

Action by Henry Feuchtwanger and others against Leo 0. Dessar, to recover a balance claimed to be due on account of certain transactions in stocks. From an order dismissing proceedings under an order for the examination of plaintiffs before trial, defendant appeals.

<p>Appeal from circuit court, New York county.</p> <p>Action for partition by Joseph P. McTeague against Mary and Charles Mc-Teague. From a judgment entered on the verdict of a jury, and the findings of fact and conclusions of law made by the trial judge after verdict, and from an order denying plaintiff’s motion to set aside the verdict and for a new trial, he appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by John I. D. Bristol against the Equitable Life Assurance Society of the United States, to recover money due by contract, and for an accounting. Judgment dismissing complaint, and plaintiff appeals.</p>

Action by Alfred A. Cohen against John W. Ellis and others, to rescind a sale of bonds made by some of the defendants to plaintiff, on the ground of fraudulent misrepresentations. A demurrer to the complaint was overruled by the special term, but on appeal the judgment was reversed by the general term. 42 Hun, 660, mem.

This is an appeal from a judgment entered on the 6tli day of September, 1888, dissolving the defendant corporation, created by and under thé laws of this state (chapter 40, Laws 1848) for the cultivation,, raising, and selling of grapes and the manufacture of wines and brandies therefrom; and also from an order made at chambers, by a justice of this court, striking out the defendant’s answer as frivolous, and ordering judgment for plaintiff for the relief demanded in the…

Action by George E. Jennings and others, as assignees of J. H. Shanley & ■Co., against the Grand Trunk Railway of Canada, for alleged negligence in the transportation of potatoes.

<p>Costs—Who is Entitled to—Oeeeb oe Judgment.</p> <p>Code Civil Proc. IT. Y. § 2892, applicable to certain municipal courts, providing that if, after refusing an offer of judgment, plaintiff does not recover a more favorable judgment, he shall not recover costs, does not apply to a case where a plaintiff refused an offer of judgment in the municipal court, and recovered a more favorable one, which, however, was reduced in the county court to the amount of the offer, no offer having been made in the county court.</p>

This is an appeal by plaintiff, Henry S. Marshall, from an order of the special term striking from the judgment roll the costs inserted therein in plaintiff’s favor.

Action by Isaac Bier and others against Cyrus Kibbe and another. The plaintiffs, merchants doing business in the city of Boehester, were the creditors of one Wetmore, who was a retail merchant doing business at Garfield, Pa. Their debt amounted to the sum of $957.86.

Action to foreclose a mechanic’s lien created by and under chapter 342, Laws 1885. The plaintiff entered into an agreement with Edward Woods, who was then the owner of the premises, to construct and finish a house to be located thereon, for the price of $3,070. Afterwards Wood sold and conveyed the premises to the defendant Forsyth, who assumed and agreed to perform the building contract.

The municipal authorities for the city of Rochester, in pursuance of the provisions of its charter, instituted proceedings to widen Hand street along the eastern portion thereof, where it intersects with Clinton street.

Action by Amelia E. Lauev and Henry Hauck against Bernard Dunn. At the trial judgment was ordered for the plaintiffs for the sum of $714.70. Thereupon the defendant moved, upon the judge’s minutes, for a new trial, which was granted, and the verdict set aside and a nonsuit ordered. The appeal brings up this order.

The plaintiff is the executor of the last will and testament of Benjamin P. Robinson, and this action is prosecuted for the purpose of securing a judicial •construction of the same. The defendant Mary A. Robinson is a widow of •the testator, and a legatee named in the will, and the other defendants, who are the appellants, are the residuary legatees. The clause of the will as to the meaning of which the plaintiff entertained doubts is the first, and is as follows: '‘First.

The action was brought by William Wait and others against John E. Borne and others, to recover damages for an alleged breach of warranty on the sale by the defendants to the plaintiffs of a quantity of oil manufactured by the former and known as “Breton Oil.” ■ The plaintiffs are manufacturers of carpets in the city of Auburn, and, as the evidence shows, were doing an extensive business.

Action by Henry Campbell against William Campbell and others, to foreclose a mortgage. Leave was granted to plaintiff to serve an amended complaint, and defendants appeal.

<p>4. Equitable Mortgage.</p> <p>An agreement by which the owner of land, over his hand and seal, for sufficient consideration, promises to pay a mortgage given by his predecessor in possession, the tenant for life, and covenants that the same shall be a lien thereon as against himself and heirs, is not “a grant in fee, ” within 3 Rev. St. N. Y. p. 2194, § 137, providing that such grants shall be invalid as against purchasers or incumbrancers, unless attested or acknowledged, but, though neither attested or acknowledged, creates an equitable lien, enforceable by action.</p> <p>.2. Same—Transfer of Mortgaged Property.</p> <p>The grantee of the maker of such an equitable mortgage is liable to the mortgagee to the extent of the purchase money yet unpaid, when he receives actual notice of the mortgage, though the residue was by agreement with the grantor to be discharged by the payment of certain debts owing to third parties by the latter, but which were still unpaid at the time the grantee received notice of the lien.</p> <p>-3. Same—Actions to Foreclose—Personal Judgment.</p> <p>Though a prayer for a personal judgment against the grantee is not made in the complaint for foreclosure of the lien, such a judgment can be rendered, as equity will adapt its relief to the exigencies of the case as they appear at the trial.</p> <p>4. Appeal—Parties.</p> <p>A defendant against whom no judgment is rendered should not be joined as an appellant with her co-defendant.</p>

The action was originally commenced by William M. Johnson and others, composing the firm of Johnson Bros., who obtained judgment by default against the defendant ¡November 10, 1882, for $245.22. On December 28, 1887, the judgment was assigned to Richard Baer, for the nominal consideration of $1. On March 8, 1888, the default was opened, and the defendant allowed to come in and defend.

Action by Sebastian Weber against Sebastian Weber, Jr., for the sum of about $1,300, alleged to have been obtained from plaintiff by certain misrepresentations. Plaintiff, who resided in Switzerland, was induced by defendant, his son, to come to the United States.

Action by the mayor, etc., of the city of Yew York against John Brady and others, to set aside certain judgments. Defendants’ demurrer to the complaint was sustained, and the injunction therefore granted was vacated, and plaintiff appeals.

Action by Bernard Brady against the mayor, etc., of the city of Hew York, on a street grading contract. An order opening a judgment entered by default for plaintiff was reversed by the general term, (54 H. Y. Super. Ct. 457,) and defendant’s appeal to the court of appeals was dismissed, (14 H. E. Hep. 608, mem.) An order was then entered staying proceedings until the determination of the case of Mayor, etc., v. Brady, ante, 179, and plaintiff appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by Charles M. Adams against James G. Fitzpatrick and Thomas C. Fitzpatrick, for damages for a breach of contract of hiring. On October 15, 1885, the defendants engaged the plaintiff as a salesman from that day until Hovember 1,1886, at the rate of $3,000 per year. The plaintiff entered upon the employment on the day of the engagement, and was paid at the rate of $3,000 a year until the 1st of Hovember, 1886. After that date, nothing being said by either party about the terms of a continuance of the employment, the plaintiff remained with the defendant, receiving pay at the same rate as before. On March 24, 1887, the defendants notified the plaintiff that he would be discharged on the 1st of May following, that his engagement must then cease, and that his services were thereafter no longer needed. On the latter day the plaintiff left the defendants’ employ in compliance with the notice. From the time of this notification of discharge the plaintiff sought diligently for other similar positions, and in the latter part of April obtained one for a period of six months, to begin May 1, 1887, with a salary at the rate of $2,000 per year. The referee held that, plaintiff having continued in defendants’ sci-vice after the term agreed upon had expired, without any express contract, the agreement for service and for payment therefor was, by implication of law and the acquiescence "of the parties, renewed for the period of one year from November 1,1886, upon the same terms; that the discharge of plaintiff, without cause stated, was a breach of the implied contract; and that plaintiff was entitled to recover the difference between the amount that he would have received from defendants had he continued in their service until the end of the year, and the amount actually earned by him from his discharge to that time. The other exception referred to in the opinion was to holding defendants liable on the failure of plaintiff to show that he sought other employment after he was actually discharged, though he showed that he made diligent search between that time and the day that he was notified that he would be discharged. Judgment was entered for plaintiff for the amount found by the referee, and defendants appeal.</p>

<p>Appeal from special term.</p> <p>Ejectment by Peter T. Masterson against John Townshend and others. From an interlocutory judgment overruling a demurrer to the complaint, defendants appeal.</p>

On reargument. Action by John S. Biggs against the Commercial Mutual Insurance Company. The defendant issued to Joseph L. Tobias a policy of insurance upon the steamer Falcon for the sum of $1,000, loss payable to one Andrew Simonds. Tobias was, at the time of effecting this insurance, a stockholder in the Merchants’ Steam-Ship Company, which then owned the steamers Sea-Gull and Falcon.

Action by Edwin H. Loveless against the Manhattan Railway Company for personal injuries sustained through defendant’s negligence. On the trial it appeared that plaintiff after purchasing his ticket started to board one of defendant’s trains, but, before reaching the platform, he slipped and fell in the passage-way, where slush and snow had accumulated, and ruptured the internal ligament of his knee-joint.

Action by Frederick Goll against the Manhattan Railway Company for damages for personal injuries. Defendant appeals from judgment entered on verdict of jury in favor of plaintiff.

Motion by plaintiff for reargument on the ground that the record showed that a certain order was made in 1888, when in fact it was made in 1887, and that the mistake on the record misled the court at general term in rendering its former decision. For opinion on former hearing, see 4 Y. Y. Supp. 393.

Action by Jonathan D. Conflict against Jane H. Cowdrey for commissions earned as a broker. Defendant appeals from judgment entered on verdict in favor of plaintiff, rendered by direction of the court, and from the order denying her motion for a new trial upon the minutes.

Action, by Boberfc Shepard, Mary N. Shepard, Frances S.-Shepard individually and as administratrix, etc., and Irene H. Shepard, and others, infants, by their guardian ad litem, against the Manhattan Railway Company and the Metropolitan Bail way Company, lessor of the Manhattan Bail way Company.

Action by Franklin S. Clark against the Fernoline Chemical Company for wages accruing up to the time of his discharge. From a judgment for plaintiff, entered upon the verdict of a jury, and from an order denying defendant’s motion for a new trial on the minutes, defendant appeals;

Ejectment by Margaret Heartt against Adolph Kruger. The court directed a verdict for plaintiff, subject to the opinion of the court at general term, and plaintiff moves for judgment.

<p>Appeal from special term.</p> <p>Action by Harrison B. Moore and others against the Hew Jersey Lighter-age Company and John T>. Kelly, Jr., and others, directors of defendant corporation. From an order enjoining proceedings to enforce the terms of a certain call, defendants appeal.</p>

<p>1. State Courts—Surrogate of New York County—Assistant.</p> <p>Under Code Civil Proc. N. Y § 2546, as amended by Laws 1887, c. 701, providing that “the surrogate of New York may, on the written consent of all the parties appearing in a probate case, appoint a referee, or may, in his discretion, direct an assistant to take and report the testimony, but without power to pass' on the issues, ” an assistant may be appointed in a will contest without the consent of the parties, and the assistant may pass on objections to evidence.</p> <p>2. Evidence—Handwriting—Wills—Probate.</p> <p>A witness testified that he had seen decedent sign a check elsewhere than at a lodge to which he belonged, and had also seen him write in the lodge, and that its records were signed by the members. Held, that witness should be allowed to state whether he" had seen on the lodge records decedent’s signature, and whether either of the signatures on decedent’s alleged will was in his judgment in decedent’s handwriting, and that he should not be precluded from testifying otherwise than from knowledge derived from the signature on the check.</p>

<p>On motion for rehearing.</p>

Action by Alonzo Bradner and another against Lamen C. Woodruff and others. An order was entered requiring Bradner to deliver to Reuben Whiteman, as receiver of the Bank of Dansville, certain bonds, coupons, and notes, the property of the bank, and plaintiffs appeal.

Action by Alexander Jones against Samuel L. Farrington. The complaint alleged: “First. That said plaintiff is an inn or hotel keeper in the village of White Plains, in the county of Westchester, and that the defendant resides in said county. Second.

<p>Release and Discharge—Pleading—Reply.</p> <p>In an action on a contract of hiring, where the answer sets up a settlement and discharge as a defense, no reply is necessary.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Louisa Williams, Helen G. Ward, and Clara A. Helm against Samuel D. Folsom, Thomas W. Folsom, and William H. Folsom to recover $10,500, as part of the proceeds of the sale of an apartment house in the city of New York, the sale of which the plaintiffs had intrusted to the defendants as professional real-estate agents. The complaint alleges among other things, in substance, that the defendants devised a scheme to buy in the property themselves, or for their own benefit, at an inadequate price; that, in pursuance of this scheme, they withheld from the plaintiffs offers which they received for the property, and other information, and finally induced plaintiffs to sell the property to them at the grossly inadequate price of $97,000; that although the apparent purchaser was one Margaret Folsom, a wife of one of the defendants, she was not a purchaser in good faith, but merely acted for the benefit of the defendants; that, within 48 hours after the contract to sell to said Margaret Folsom had been executed by the plaintiffs, the property was resold for $110,000, and that plaintiffs are entitled to the proceeds of this sale, and the profits which defendants made by the transaction. A motion to vacate an order for the examination of defendants before trial was denied, and defendants appeal. For opinion on motion to vacate a former order for the examination of defendants before trial see 3 N. Y. Supp. 681.</p> <p>Code Civil Proc. N. Y. § 873, relating to examination of witnesses before trial, provides that the judge to whom the required affidavit is presented “must grant an order for the examination, if an action is pending. If no action is pending, he must grant it if there is reasonable ground to believe that the action will be brought, ” etc.</p>

Exceptions from circuit court, Hew York county. Action by Pauline Heekemann, trading under the name of Johannes Heckemann, against George W. Adams and David B. Young, to recover a sum of money. A judgment by default against Young, and by consent against Adams, was set aside as to defendant Young, and the complaint afterwards, dismissed as to him.

Emma G. Bostwick and others filed their petition for the revocation of the probate of the will and codicil of Lewis Palmer, deceased. The probate being ■confirmed, they appeal. Code Civil Proc. if.

Action by John P. Douglas against the Rome, Watertown & Ogdens burg Railroad Company, to recover for injuries from fire alleged to have been caused by defendant’s negligence. Verdict and judgment for plaintiff, and defendant appeals.

<p>1. Accident Insurance—Evidence.</p> <p>In an action on an accident insurance certificate which provided that it should not apply to any case “except where the injury is the proximate and sole cause of the disability or death, ” it appeared that the insured person had his arm broken on March 24th; that the fracture was reduced, and a few days after he suffered with severe pains in his chest and lungs; that he then became convalescent for a week or 10 days, when he was attacked in a manner similar to the former attack, and died April 12th. Reid, that a finding that his death was caused solely and proximately by his breaking his arm was warranted by the evidence.</p> <p>2. Same.</p> <p>The certificate also provided that the claimant thereunder must establish “by direct and positive proof, that the death or personal injury was caused by external violence and accidental means, and was not the result of design on the part of the member or of any other person. ” Reid, that this did not require a claimant to show the fact of the injury and its attendant circumstances by eye-witnesses, but that the nature of the injury itself was direct and positive proof, within the meaning of the policy, that it resulted from external violence, and was accidental.</p>

Action by James B. Purdy against the Borne, Watertown & Ogdensburg Railroad Company, for damages for injuries sustained by defendant’s alleged negligence. Verdict and judgment for plaintiff, and defendant appeals.

<p>Appeal from special term, Jefferson county.</p> <p>Action by Henry J. Hurst against Charles and Eva Elliott and six others, to enjoin the commission of waste. Plaintiff appeals from a judgment dismissing the complaint.</p>

<p>1. Mortgages—Construction—Partial Release.</p> <p>A mortgage of several lots of land, one of them in another state, provided for partial releases as to all of the lots on sales by the mortgagors and on payment of the amount specified with reference to each lot, and the mortgagors had the privilege of paying any part of the principal during the term, provided they were not otherwise in default. It was stipulated that, on default for 60 days in payment of interest, the whole principal and interest should, at the mortgagees’ option, immediately become due and payable. Held, that the right to a partial release did not survive the default of the mortgagors, and, default having been made in payment of interest, and foreclosure for the whole principal and interest having been brought as to the lots in this state, the lien on such lots was not released on a subsequent sale by the mortgagors and tender to the mortgagees of the amounts specified for a release of them, with demand for such release.</p> <p>% Same—Tendee.</p> <p>The affirmative judgment demanded in the answer, releasing the premises from the lien of the mortgage, could not be obtained where the tender was not kept good.</p>

<p>1. Sale—'Warranty—Evidence.</p> <p>Where the issue is as to whether the spark-arrester of an engine sold to plaintiff by defendant fulfills a warranty, evidence of the kind of spark-arresters used on other engines with which the engine sold had been compared by plaintiff on a trial, and that such spark-arrester was like that of other engines used for the same purpose, is admissible.</p> <p>2. Same.</p> <p>Evidence of experiments conducted by the defendant in the absence of the plaintiff, shortly before the trial by plaintiff, was admissible, where the defendant was not present at the latter trial.</p> <p>3. Evidence—Admissions.</p> <p>The statements of a party as to any fact in issue are admissible as primary evidence against him.</p> <p>4. Trial—Objections to Evidence.</p> <p>Where a question is objected to solely on the ground that the witness is not shown to be an expert, and no motion is made to strike out the answer, it cannot be objected on appeal that the witness stated merely his conclusion, nor that the answer was not responsive.</p>

<p>1. Insurance—False Representations in Application—Estoppel.</p> <p>An insurance company is estopped to deny liability on a life policy on the ground that the application therefor contained false statements as to the applicant’s health, where such application was written by thé company’s agent, who was fully apprised of the applicant’s physical condition.1</p> <p>2. Same—Nonsuit.</p> <p>In an action on such policy, where the evidence as to whether the applicant was afflicted with a disease which was not disclosed to defendant’s agent is conflicting, it is improper to grant a nonsuit.</p>

Action by Octavius F. Salmon, administrator, etc., of Sophia M. Williams, deceased, against the Hew York Central & Hudson Biver Railroad Company, to recover for the negligent killing of decedent. A verdict for defendant was directed, and judgment rendered accordingly. Plaintiff appeals.

<p>Appeal from circuit court, Otsego county.</p> <p>Action by Ellen Spaulding against Marquis L. Keyes and another. Judgment was given for plaintiff, and defendants appeal.</p>

Action by Samuel W. Booeoek against Mary L. Phipard, individually and as executrix of William T. Phipard, deceased, and others, to have a deed given, by decedent to plaintiff declared a mortgage and foreclosed as such. Judgment of foreclosure and sale and for payment of plaintiff’s debt and interest out of the proceeds, and for deficiency, was rendered, and defendants appeal. 3 Bev. St. IT.

Action by James Brown against the Hartford Fire Insurance Company, brought on a fire insurance policy issued by the defendant to the plaintiff on a stock of hardware contained in a brick building situated at ÍTorth Bay, Oneida county, N. Y. The amount for which such policy was issued was $1,500. The property insured was totally destroyed by fire, November 22, 1884.

The complaint alleges that the plaintiff the American Baptist Home Mission Society is a corporation duly organized and incorporated under special acts of the legislature of the state of Hew York, describing them; that the plaintiff the American Baptist Missionary Union is a corporation duly organized and incorporated first under certain acts of the legislature of the state of Pennsylvania, describing them, also under an act of the state of Massachusetts describing it; also…

Summary proceedings to regain possession of land, brought by Edward J. Woolsey, landlord, against James Donnelly, tenant, before a justice of the peace. The justice awarded the land to the landlord, and the tenant appealed to the county court, where the judgment of the justice was reversed, and Woolsey appeals to this court.

Anton Nowak was convicted of selling intoxicating liquor on Sunday, by a ■court of special session, which conviction was affirmed by the court of sessions, and defendant appeals to this court. Code Crim. Proc.

Petition by Eleanor J. Bartlett, for the appointment of commissioners to assess her damages resulting from a change in the grade of a street in the village of Tarrytown. Commissioners were appointed, and the village of Tarry-town appeals.

Petition by W. F. Wiley for the appointment of commissioners to assess his damages resulting from a change in the grade of a street in the village of Tarrytown. The petition was under Laws Y. 1883, c. 113,—the same act under which the petition was filed in Bartlett v. Tillage of Tarrytown, ante, 240,—and the petition in this case was caused by the same change in the grade of a street as caused the petition in that case.

The first clause of the will of Horatio G. Onderdonk, deceased, directed a fund of $90,000 to be invested, and the income paid to his daughter Sarah for life, free from her husband’s control. After her death, childless, the income was to be paid to her sister Catharine for life, and at her death the capital fund was to be paid to her next of kin of the blood of testator’s first wife. The four succeeding clauses contained similar provisions for other children of testator.

<p>1. Executors and Administrators—Chatted Mortgage.</p> <p>Where an executor makes a personal mortgage on the property of his testatrix, to secure his individual debt, the mortgagee acquires no title.</p> <p>S. Same—Bona Fide Purchaser.</p> <p>Where one conveys, as executor, the property of his testatrix in payment of his individual debt, a purchaser for value is not protected.</p>

Action for personal injuries by Frank Thall, a minor, by John H. Snyder, his guardian ad litem, against John A. Carnie. Judgment for plaintiff. Defendant’s motion for a new trial denied, and defendant appeals.

Action by Charles I?. Brown as administrator c. f. a. of Elizabeth K. Petrie, deceased, against Simeon Klock.

Trespass by Mary Hixon against P. S. Stillwell for wrongfully entering upon the land of plaintiff in her possession, and without leave cutting down and carrying off trees. Treble damages were claimed under sections 1667 and 1668 of the Code. The jury rendered a verdict for plaintiff for $200 damages, and answered in the negative the question whether defendant, when he commited the injury, had probable cause to believe that the land was his own.

In the matter of the final judicial settlement of the accounts of Frances A. French, as executrix of Phebe E. Hitchcolk, deceased. Phebe E. Hitchcolk died on the 81st day of March, 1886, leaving a will dated July 22, 1884, in which were the following provisions: “First. I give, devise, anct -bequeath unto my husband, John Hitchcolk, all of my real estate, situate in said town of Davenport, to do with as he shall think best. Second.

Ejectment by Elizabeth H. Nichols against Elias P. Howland, to recover ■certain premises along the southerly side of East brook in the town of Walton. The controversy was over the location of the northerly line of plaintiff’s property. The jury found that the line was the thread of the stream or brook as it was in 1840.

Action by Henry Grauel against Mary Soeller. The complaint set out a lease of a hotel by defendant to plaintiff, and averred compliance therewith on plaintiff’s part, and that without plaintiff’s permission, and in violation of the lease, “defendant has entered on the premises demised as aforesaid, and on or about the 18th day of April, 1887, placed in possession of part thereof, either as her agent or tenant, one Charles Nissen, who claims under defendant the right to…

On reargument. For statement of facts and opinion on first appeal, see 1 N. Y. Supp. 900. For motion for reargument, see 3 N. Y. Supp. 322.

<p>Appeal from circuit court, Kings county.</p>

Action by Edward Ff. Dalton against Parke Godwin. Plaintiff sues as assignee of Amelia F. Boyle, administratrix of James J. Boyle, deceased, who was, at the time of his death, a judgment creditor of the American Opera Company, Limited. Defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and from an order sustaining such demurrer plaintiff appeals.

<p>Appeal from trial term.</p> <p>Action by Albert D. Mills and another against the National Steam-Ship Company for the non-delivery of certain goods. Defendant appeals from a judgment entered on a verdict in favor of the plaintiffs.</p>

<p>1. Infancy—Necessaries—Guardian and Ward.</p> <p>Where a will imposes on the executor and the guardian of an infant the duty of applying the rents, and, if necessary, the proceeds, of the realty to the support of the infant, and the guardian in the discharge of this duty contracts with another for the infant’s support with the executor’s consent, such person can look to the guardian only for payment, and not to the ward after he attains his majority, especially where he has a judgment against the guardian.</p> <p>■2. Complaint—Amendment—Appeal—Review.</p> <p>The person with whom the contract was made sued the guardian and ward, and recovered judgment by default. The ward procured the judgment to be vacated as to him, with leave to answer the amended complaint, and did answer. The amended complaint was afterwards dismissed as to the ward, because it showed no liability on his part. Held, that it was discretionary with the trial judge to refuse to allow the complaint to be further amended, and that on the facts the exercise of his discretion could not be disturbed.</p>

<p>Application for the probate of the will of Zetta Lissauer, deceased.</p>

Settlement of accounts of Stephen A. Dodge and Jennie Walsh, executor and executrix, respectively, and trustees under the will of Joseph P. Quin, deceased.

Action by Mary Ketchum against Sarah Fox and George Dickerson, under the civil damage act. Dickerson was the owner of a hotel, and defendant Fox conducted it as his lessee from April 1, 1885, to December, 1886. Plaintiff alleged that defendant Fox or her agents, at divers times, furnished intoxicating liquor to the plaintiff’s husband, causing his intoxication, in consequence of which plaintiff was injured in her person and means of support.

Action by Elliott Martin against Zelotus J. Wood. It is alleged in the complaint that the plaintiff on the 2d March, 1881, was driving in the highway with his team and cutter, carrying his two minor children to school; that the defendant was at the same time driving a horse and cutter along the same highway in the rear of plaintiff; that the defendant carelessly, negligently, and willfully, and with intent to injure the plaintiff and his children, drove his horse and cutter…

On the 31st March, 1879, the defendant Joseph P. Adams executed and delivered to plaintiff’s testator a mortgage for $1,600, on the undivided half of •325 acres of land in the town of Barker, Broome county. This mortgage was given to secure a loan then made for its amount, and was recorded on the 8th April, 1879, and this action is brought to foreclose it.

<p>Appeal from special term, Kings county.</p> <p>Action by Jane S. Avery against the Equitable Life Assurance Society of the United States. Defendant’s demurrer to the complaint was overruled, and defendant appeals.</p>

Action by David T. Bayles and others, commissioners of highways of the town of Brookhaven, against Austin Roe, to recover a penalty for the obstruction of a road. Judgment for plaintiffs, and defendant appeals. The action was brought under Rev. St. If. Y. p. 521, § 103, as amended by Laws If.

The relator, Stephen L. Vanderveer, appeals from a judgment of the special term in favor of the respondents, Thomas A. Wilson and others, in proceedings by certiorari to review an assessment by the board of assessors of the city of Brooklyn of relator’s lands for the general taxes for the year 1888.

Action by Robert Payne and others against the city of Brooklyn. Judgment was given for plaintiffs, and defendant appeals.

’ Action by Charles H. Ward against-Jane Hartley Cowdrey, as executrix of Nathaniel A. Cowdrey, deceased. Judgment for plaintiff for $3,687.50, and defendant appeals.

Action by Jeremiah Callaghan, administrator, etc., of his deceased wife, to recover damages of the Delaware, Lackawanna & Western Railroad Company and the New York Central & Hudson River Railroad Company, for the death of said intestate, which was occasioned by an accident at a crossing of the tracks of the defendant companies at a street in the city of Syracuse. Anon-suit was directed, .and plaintiff appeals.

<p>Appeal from circuit court, Tompkins county.</p>

<p>Appeal from special term.</p> <p>Action by Emma A. Devinney against Hannah M. Corey and others. Defendants appeal.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by the Marine Bank of Buffalo against the Butler Colliery Company. Defendant appeals.</p>

In the matter of the probate of the will of James D. White, deceased.

Action by Thomas Coolidge against the Rome, Watertown & Ogdensburgh Railroad Company for negligently setting fire to plaintiff’s property. The plaintiff is the owner of a farm in the town of Philadelphia, Jefferson county, lying adjacent to and either side of the track of the defendant. Portions of it were burnt over and injured by fire in June and July, 1886, and in July, 1887.

Action by William B. Mead against Charles A. Mead, Mary Loud and others, for the partition of lands of which Sarah E. Warden, who was the daughter of Daniel Warden, died seised in 1887. A sale was ordered and Prances L. Strong Elliott became the purchaser, but refused totake title, and Edward W. Sheldon, guardian ad litem of Mary Loud, moved to compel her to do so.

Action by Charles B. Franc against Henry H. Dickinson, on a promissory note. Judgment for plaintiff. Defendant’s motion for a new trial denied, and ■defendant appeals.

Action byPhebe A. Smith against John McArthur. Judgment for defendant, and plaintiff appeals. The letter mentioned in the opinion was from defendant to a third person, and concerned the terms of the occupation of defendant’s land by plaintiff’s husband.

<p>Costs—Right to.</p> <p>On denying an application for a new trial by a plaintiff whose complaint had been dismissed, the court directed that the minutes might be corrected on the motion of plaintiff, so that the defendant should not recover costs. Held, that minutes so corrected by the consent of both parties, and a judgment entered thereon, were conclusive upon defendant as to his right to costs.</p>

Action by William Ziegler against Joseph C. Hoagland and others, trustees and officers of the Boyal Baking Powder Company, and said corporation, to restrain said officers from doing certain acts alleged to be in violation of their duties. Judgment for plaintiff, and defendants appeal.

Action by Isaac Emiel Jacobsen, an infant, by his guardian, Jacob Jacob-sen, against James Cornelius, to recover for injuries sustained by the plaintiff while in the employ of the defendant, and while attempting to replace a belt which furnished the motive power for a machine at which he was at work.

Action on contract by Helson Goetschins against John E. Hunt, for the support of an infant child of defendant. Judgment for plaintiff, and defendant appeals.

Certiorari ex relatione John L. Cook and William H. Cook to review certain proceedings by Egbert H. Hildreth and others, commissioners of highways at the town of Southampton, in Suffolk county, regarding the location of a road.

This was an action by John Schenck against Mathew Marx for money had .■and received. Defendant, an attorney, undertook to prosecute an action for damages on behalf of plaintiff, under an agreement by which defendant was to retain, for his services, 35 per cent, of the amount recovered.

<p>Pleading—Supplemental Pleas—Res Judicata.</p> <p>Where the matters contained in a complaint were pleaded as a counter-claim in a subsequent action brought by the defendant against the plaintiff, in which judgment by default was rendered against the latter, but it appears that the default, was taken by consent, and that the apparent adjudication against the present, claim was overlooked, leave to plead the judgment in bar as a new plea will not b& granted.</p>

Action by Charles Dickerson against Milton Gordon, an infant, by John L. Gordon, his guardian ad litem, for the possession of personal property and. damages for its detention. Defendant alleged that he had contracted to sell such property to plaintiff, but claimed the right to rescind such contract on the ground Of his infancy.

Action by Mary J. Lynch against the Brooklyn City Railroad Company for damages for personal injuries. Verdict for plaintiff for $5,000, and judgment thereon. Erom the judgment and an order denying defendant’s motion for a new trial defendant appeals.

Replevin by Samuel IC. Nestor against Magdalena Bischoff, executrix, and others. The sheriff of Richmond county took possession of the property in said county, and kept possession until an order was served on him to discontinue the action, which order was granted to plaintiff, at his request, on bis giving bond for payment of costs and damages.

This was a suit by Francis A. Biggs and Mary E. Biggs to compel John P. D. Angus to convey certain premises to the plaintiff, Mary E. Biggs, and account for the rents and profits thereof. The property had been conveyed by Francis A. Biggs, in 1869, to his mother, the wife of defendant, with the purpose, as alleged, to have the same conveyed to his wife, the plaintiff. His mother, in 1875, conveyed to a third party, who in turn conveyed to defendant.

Action by George Lewis against the New York, Lake Erie & Western Railroad Company, for damages for personal injuries sustained by being struck by a train on defendant’s track at a railroad crossing. Verdict and judgment for plaintiff. From said judgment, and from an order denying defendant’s-motion for a new trial, defendant appeals.

<p>Pleading—Amendment—Answer after Demurrer.</p> <p>Code Civil Proc. N. Y. § 542, provides that within 20 days after a pleading or the' answer or demurrer thereto is served, or at any time before the period for answering expires, the pleading may be once amended of course. Reid, that a demurrer may be regarded as an answer, within the meaning of that section, so that the demurrer may be withdrawn, and an answer as an amendment served as of course.</p>

Action by Moses Swift against the Staten Island Rapid Transit Railroad -Company, to recover damages for injuries inflicted upon the plaintiff’s child, Bertie Swift, through the alleged negligence of the defendant in operating its railroad. At the place of the accident a number of houses abutted on the defendant’s track, and the occupants of the houses were in the habit of fre-quently crossing the track for various purposes.

This is a case submitted on an agreed statement of facts, Albert W. Van-Winkle being plaintiff, and Sylvanus L. Fowler, defendant. Plaintiff contracted to sell defendant a certain tract of land in the city of Brooklyn, and defendant refuses to take title, on the ground that the clause in the will of Sarah E. Higgins, quoted in the opinion, does not confer upon the executor' therein power to sell the land in question.

<p>•Constitutional Law—Delegation of Legislative Powers—Taxation.</p> <p>Laws ET. Y. 1883, c. 114, conferring on the board of assessors of the city of Brooklyn, such board being a city agency in respect to taxation, power and authority to determine what proportion of the taxes, assessments, etc., assessed on any lands in that city prior to July 1, 1883, and in arrear, should be justly and fairly charged against and presently collected from said lands, and making such determination a valid tax and lien thereon, is constitutional. The arrear, thus ascertained, not being a new tax, but an abatement of the old, the objection that the legislature cannot delegate the power of taxation within an -incorporated city to a commission newly created by itself, is irrelevant. Following Terrill v. Wheeler, 3 $T. Y. Supp. 86.</p>

<p>Appeal from special term, Westchester county.</p>

This was an action by George J. Hubbard against the administrators of Eliza T. Stewart, deceased, and was founded on 12 promissory notes alleged ±o have been executed by her to plaintiff. The answer alleged that at the time of making the notes sued on the deceased was of unsound mind, and incapable of contracting. Also, that the notes were without consideration, and were given solely for plaintiff’s accommodation.

The county judge of Westchester county, in supplementary proceedings by Gilbert T. Davis et al., judgment creditors, against George W. Briggs, directed Amos S. Briggs to pay over certain money in his hands to the receiver appointed in the proceedings, which order was reversed by the special term, and plaintiffs appeal.

Petition by James M. Waterbury and others to compel George 0. Eldridge, an attorney at law, to pay over to petitioners the sum of $2,500 collected by him as their attorney, and which he claimed a right to retain in payment for services rendered petitioners.

Action by Richard Murray and Johanna Morrissey, for damages to their premises by the unlawful and negligent discharge of water thereon from defendants’ premises, against Allison M., Charles D., and George Archer. Judgment for plaintiffs, and defendants appeal.

<p>1. Wills—Interest on Legacies.</p> <p>Interest is not allowable on a legacy to a child 10 years of age, to support whom the testatrix was under no legal or moral obligation, payable “when she shall have arrived at the age of twenty-five years, ” where it appears that the legatee’s father was living, and bound to support her, and that she was supported by her uncle, and not dependent on the interest on the legacy; and it is immaterial that there is no other provision for her in the will.</p> <p>2. Same.</p> <p>Even if interest were allowable, it would be allowed only until the legatee became 21 years of age.</p> <p>Barnard, P. J., dissenting.</p>

Two actions to foreclose mortgages by Eliza W. Parkhurst, executrix of Sylvester 0. Parkhurst, deceased, against Bobert H. Berdell, impleaded with Harriet B. Berdell, his wife, and others. Judgments for plaintiff in both actions, and defendants appeal.

This was an action by Martha Aldrich against Julia K. More, to recover certain sums as agreed compensation for plaintiff’s services under an alleged contract by which plaintiff was to superintendent the education and care of defendant’s minor daughters while traveling with them in foreign countries; Prior to the rendition of these services defendant had been divorced from her husband, and had been appointed guardian of the persons and estate of her two daughters.

<p>Descent and Distribution—Aliens.</p> <p>One P. died intestate, seised of certain real estate, devised to him,by Ms father, leaving surviving no parent, brother, nor sister, nor any descendant of them, no uncle or aunt on his father’s side, nor any descendant of any such uncle or aunt. On his mother’s side he left two aunts, M. and C., and two cousins, children of a deceased aunt, all of English parentage, residing in England, never having been in the United States previous to P.’s death. M. married a naturalized American citizen, but always lived in England. Held that, under act Cong. Feb. 10, 1855, providing that any woman who might be lawfully naturalized, who is married to a citizen of the United States, shall be deemed a citizen, M. was entitled to take the land in question as the heir of P., as against a collateral relative of P. on his father’s side.</p>

Action by Isabella Ball, the indorsee of a draft, against William G. McCrea and Jacob Knies, the acceptors. Judgment for plaintiff, and defendant Mc-Crea appeals.

<p>Laws N. Y. 1870, c. 234, §§ 1, 2, which prohibit any person from taking shell-fish in the South bay, in Suffolk county, with a dredge or drag, and from having in his possession in said bay any dredge or drag for that purpose, applies as well to private as to public oyster-beds.</p>

The facts are stated in the opinion. Section 135 of the old Code of Procedure, relating to service of summons by publication, is as follows: “Where• the person on whom the service of the summons is to be made cannot, after due diligence, be found within the state, and that fact appears to the satisfaction of the court or a judge thereof, * * * such court or judge may grant an order that the service be made by the publication of a summons in either of the following cases: (1)…

This was an action brought by William H. H. Childs against William Mayer, as executor, etc., of Zizilia Mayer, deceased, to recover the sum of $882.10 for oil sold and delivered.

Action by James Cowan by Louisa Cowan, his guardian ad litem, against John H. Snyder, to recover damages for personal injuries caused by defendant’s alleged negligence. Verdict and judgment for plaintiff, and defendant appeals.

<p>Appeal from judgment on report of referee.</p>

<p>Appeal from surrogate’s court, Kings county.</p> <p>Petition of Thomas Taffe to admit to probate the will of Mary Hollohan, deceased. The probate was contested by Bridget Burns and Helen Figuera, next of kin and heirs at law of the decedent, and they appeal from a decree admitting the will to probate.</p>

<p>Trial—Findings.</p> <p>Where, on the assumption that all testimony produced is true, the allegations of the complaint are not sustained, findings, either of law or fact, are unnecessary.</p>

<p>1. Rights op Tenants—Conversion op Stone.</p> <p>Tenants of land under a lease giving them the exclusive right to quarry and remove stone therefrom may recover for the wrongful conversion of stone from the land by trespassers, during the term.</p> <p>% Same—Damages.</p> <p>The measure of damages for such conversion is the value of the stone after being cut and removed to its destination.</p>

Appeals from Richmond county court. Action by Julian Shope against Daniel Campbell, to recover $100 for services as a loan broker. Judgment for plaintiff for $60, and both' parties appeal.

Action by James Bigler against the Hew York & South Brooklyn Ferry & Steam Transportation Company to recover for building certain boats. Judgment for plaintiff, and defendant appeals.

Certiorari by Charles R. Dixon against Harper Gaylord, Josiah Buck, and Alexander L. Hendry, as assessors, and S. Davis Hubbard, town clerk of Harpersfield.

Plaintiff is a foreign corporation under the name of Wallace & Sons, existing under tlie laws of the state of Connecticut.

Proceedings by the Washington Street, Asylum & Park Railroad Company to acquire a crossing of the road of the Syracuse, Binghamton & New York Railroad Company. The prayer of the petitioner for the appointment of commissioners to ascertain and determine the point and manner of crossing and the compensation to be paid to the Syracuse, Binghamton & New York Railroad Company for the use thereof was denied, and petitioner appeals.

Action by George A. Thomas against Edmond S. Keeler and William K. Stevens, commenced in a justice’s court. The facts appear in the opinion.

A previous trial of the action was had before a referee, who decided in favor of the plaintiff. The judgment entered upon his decision was affirmed by this court, and reversed by the court of appeals. The opinion delivered upon the reversal is found in 101JST. T 575, 5 N. E. Rep. 568.

Action by Joseph H. Wilcox and Warner Miller against Harriet Pratt, for the specific performance of a contract, and the appointment of a receiver. The issues were decided in favor of plaintiffs, and judgment was entered appointing a permanent receiver of the partnership of Pratt & Wilcox, and directing that “said copartnership, and the individual members thereof, turn over and deliver up to the said receiver all the property and assets belonging to their copartnership.

Onondaga county court. Summary proceedings to recover possession of land, brought by the state of Hew York, by Franklin H. Dewey and George Edinger, against George K. Burdick and Abigail Burdick, his wife. On March 17, 1879, defendants executed a mortgage covering real estate therein described to “the commissioners for loaning certain money of the United States of the county of Onondaga,” for the consideration of $1,000, interest payable annually.

Action by John Thomas and Van Burén Thomas against Milo Seutt, to recover for lumber, timber, scantling, and boards. The answer, among other things, sets up “ that all the lumber had by the defendant qf the plaintiffs was had under and by virtue of an agreement which the plaintiffs had failed to fulfill on their part, and that by virtue of the terms of the agreement the defendant is not liable to account for the same;” also certain counter-claims are set up.

Action by Clara B. Cox against William T. Cox, for a divorce.

Application of Hubert O. Thompson, as commissioner of public works of the city of Hew York, under Laws 1877, c. 445, to acquire certain water-rights on the Bronx river for the purpose of procuring a water supply for Hew York city. From an order of the special term confirming the report of the commissioners relative to lots belonging to Charles Butler, Butler appeals.

At chambers. On motion to revive action. Action by John F. Carr against John 0. Bisher, to recover $25,000 due plaintiff from the Pittsburgh & Martinez Silver Mining Company, a corporation organized under the manufacturing act of 1848, on the ground that defendant failed to file the annual report required by statute, (Laws 1848, c. 40, § 12,) in January, 1867. Judgment for plaintiff was reversed by the general term. 2 B. Y. Supp. 792.

At chambers. Petition by the Society for the Prevention of Cruelty to Children to have Elizabeth Bennett declared an habitual drunkard. The sheriff’s jury so found, and a commission was issued. Defendant procured an order to show cause why such commission should not' be vacated.

<p>1. Gambling—Evidence.</p> <p>On a prosecution for selling lottery tickets, and keeping a room for the purpose of gambling, evidence of gambling transactions, extending over a period of about eight months preceding the date of the offense charged in the indictment, is admissible; Code Grim. Proc. N. Y. § 280, providing that the precise time at which a crime was committed need not be stated in the indictment.</p> <p>2. Same.</p> <p>Evidence of slips of paper found in the defendant’s room on sweeping it is proper, when taken in connection with the testimony of another witness as to slips used in the alleged unlawful transactions, and the evidence relating merely to the width of the slips.</p> <p>3. Same.</p> <p>In such an action it is proper to show what is commonly known as a “lottery policy ” by one who is familiar with such documents, the papers not being before the court, and the statute not defining the term.</p> <p>4. Same—Accomplice.</p> <p>Under Pen. Code N. Y. §§ 326-335, prohibiting the sale of lottery tickets, one who-purchases a lottery ticket is not an accomplice with the seller.</p> <p>5. Okiminal Law—Veedict.</p> <p>A general verdict of guilty on three counts in an indictment charging different grades of an offense, but relating to the same transaction, is proper.</p>

At chambers. On motion to make injunction permanent. Action by Sweetser, Pembrook & Co. against Adam B. Smith and others, to set aside sixteen judgments and three chattel mortgages, executed by Adam B. Smith and William C. Smith, as in fraud of an assignment for benefit of creditors executed by them on the same day.

<p>At chambers. Motion for appointment of receiver.</p>

<p>Injunction—To Restrain Landlord’s Ejectment.</p> <p>Where plaintiff seeks to restrain summary proceedings in ejectment before a justice on the ground that by the terms of an alleged oral modification of the lease, partly executed, plaintiB has incurred no forfeiture, and defendants deny all the material allegations of the complaint and affidavits in support thereof, the court will not interfere.</p>

<p>J. Tbusts—When Fiduoiaby Relation Exists..</p> <p>Plaintiffs made a contract with defendant, who was engaged in a separate and independent business, by which the latter was allowed to publish and sell certain of plaintiffs’ stories upon payment of stipulated royalties. Meld, that defendant assumed no fiduciary relations to plaintiffs.</p> <p>■3. Account Stated—Impeachment.</p> <p>In the absence of actual fraud, where an account, though erroneous, has been rendered and a balance struck, and the parties have settled their differences, and neither within a reasonable time objects, the settlement cannot be impeached.</p>

<p>Pledge—Shares of Stock—Ownership.</p> <p>The fiscal agent of a railroad company negotiated a loan from the defendant, to be secured by a mortgage on the corporate property. Pending the execution of the mortgage, certain certificates of stock in a coal company, issued in the names of the plaintiffs, and which the plaintiffs claimed to own, were delivered to the defendant as temporary security, with the consent of the plaintiffs. A power of attorney, executed in blank, was indorsed on each certificate. Afterwards the stock certificates were handed back to the agent of the railroad company, on the delivery to the defendant of the mortgage. Thereafter, the stockholders of the railroad company having refused to ratify the mortgage, the defendant caused it to be canceled, at the request of the railroad, and obtained from the agent a return of the stock certificates. In the mean time the railroad company had passed a resolution 'to the effect that it was not the owner of the certificates, and that they should be. delivered to the president of the coal company. But the resolution did not state who the owners of the stock were, and it did not appear that the defendant had any notice that the shares were claimed by the plaintiffs. Held, that defendant was entitled to recover possession of the certificates.</p>

<p>At chambers. On application to vacate warrant of commitment of Graham McAdam for contempt.</p>

<p>1. Divorce—A Mensa et Thoro—Cruelty.</p> <p>Where the evidence shows that defendant, on frequent occasions, treated plaintiff, his wife, with violence and brutality, was often intoxicated, and at a time when she was soon to become a mother, frightened her almost into hysterics by threatening her with a poker, she is entitled to a decree of separation.</p> <p>2. Same—Issues for Jury.</p> <p>Defendant’s counsel, in an action for separation, objected, upon the opening of the second jury trial, that some of the framed issues embraced acts not specified in the complaint; and, upon the court’s suggesting that the only effect of such objection would be to delay the trial until the proper amendments could be had at special term, counsel stated that he did not wish to delay the trial, but still desired to make the objection. The trial then proceeded. He had made the same objection at the first jury trial, which resulted in a disagreement, after which, and before the second trial, the issues were resettled on his own motion. Held, that defendant had no cause for complaint on the ground of surprise.</p>

<p>Injunction—Lease oe Akmoky—Legality.</p> <p>The permission given by the Seventh regiment to the organization called “The Veterans” of that regiment to exclusively occupy, subject to the military necessities, a room in the armory, the lease of which from the city provides that it shall be null and void if the premises are used for any other than the purposes of an armory and drill-rooms, or the public purposes of the regiment, is of doubtful legality; and therefore an injunction will not be granted to restrain the regimental officers from interfering with such use and occupancy. '</p>

<p>Mandamus—To Board of Education.</p> <p>In advertisements by the school trustees for bids for the erection of a school building in the city of New York the right to reject any or all of the bids was reserved. The relator was the lowest bidder, but afterwards, on the recommendation of the board of education, the trustees readvertised for bids, and the contract for the erection of the building was awarded to one whose bid was some §3,000 less than that of the relator. Under the consolidation act, (sections 1038 and 1039,) no award of a contract by school officers is valid until it has been concurred in by the board of education. Held, that the relator was not entitled to a mandamus to compel the trustees to make a contract with him, and to compel the board of education to approve such contract.</p>

Certiorari on relation of Locke W. Winchester, as treasurer of the Hationr al Express Company, to review the action of Michael Coleman and others, as-commissioners of taxes, etc., of the city of Hew York in taxing the Rational. Express Company upon its capital stock as a corporation.

<p>On demurrer to complaint.</p> <p>Action by the Lancashire Insurance Company and others against Robert A. Maxwell, superintendent of insurance for the state of Hew York. Defendant demurs to the complaint.</p>

At chambers. On exceptions to the report of a referee, ordering distribution of the surplus on foreclosure, by Henry J. Burchell against Susannah Osborne and others. The mortgage foreclosed was a “blanket” mortgage covering eight houses and lots.

At chambers. Motion for allowance of costs. Action by Charles H. Bailey and others against Louise M. Schmidt and others, for the value of professional services.

Action by Abel G. and Alice P. Benedict, to restrain the Seventh Ward Railway Company of Syracuse from laying its street railway tracks in a street of said city. The complaint was dismissed, and plaintiffs appeal.

<p>Appeal from circuit court, Schuyler county.</p> <p>Action by George H. Stillwell, superintendent óf the poor of Schuyler county, against Michael A. Kennedy, overseer of the poor of the city of Elmira. A judgment of nonsuit was directed by the court, and plaintiff appeals. Rev. St. N. Y. p. 628, § 59, provides that if a pauper is brought into a county the superintendent may notify the overseer of the town from which the pauper was brought of the facts, and require his removal.</p>

Appeals from special term, Onondaga county. Conrad Loos and others, judgment creditors of J. Foreman Wilkinson and Alfred Wilkinson, obtained a decree, July 1,1886, setting aside a conveyance of the debtors’ property to John Wilkinson as fraudulent in fact, and ordering the grantee to account for the rents and profits of the property from December 9, 1884, to the date of the decree, and appointed Charles E. Hubbell and Albert K. Hiscoek as receivers.

This was an action by Albert Dunkell against Henry F. Simons and Frederick G. Cunningham, trading as H. F. Simons & Co., to recover damages for plaintiff’s alleged wrongful discharge from defendants’ service. There was a. verdict and judgment for plaintiff, and defendants appeal.

The action is to recover damages for breach of a written contract contained in the following bought and sold note: “Sold for account of Messrs. Arthur Azema & Co., to Messrs.

Action by Charles Carpy against Augustus H. Edlinger and others, to re■cover property seized under execution. Verdict and judgment for plaintiff, and defendants appeal.

Suit by Charles P. Wahlig against the Standard Pump Manufacturing Company, to recover on a note alleged to have been indorsed by them. Judgment, for plaintiff, and defendant appeals.

<p>Appeal from special term.</p>

<p>1. Checks—Forged Indorsement.</p> <p>Where a certified check on a bank is accepted by the payee, and is afterwards paid by the bank on a forged indorsement of the payee’s name, marked “Paid, ” and delivered by the bank as a voucher to the drawers, the latter are not liable to the payee for the face value of the check, in an action for its conversion on their refusal to deliver it to him, but his remedy is against the bank.</p> <p>3. Same.</p> <p>Boss of the canceled check by the drawers after suit brought is not evidence of conversion, and does not aid the payee’s cause of action.</p>

Case submitted on agreed statement. Action by Anna Bauer and another against Frederick Schmelcher, to determine the validity of a deed of real estate.

<p>Office and Office»—Illegal Removal—Compensation.</p> <p>An officer who is illegally kept out of his office cannot recover Ms salary of the state or municipality until there has been a judicial determination establishing his right to the office, and then he can only recover salary for the time he was prevented from performing the service, when the same has not been paid to another officer defacto, performing the duties.</p>

Action by William Hagan against the city of Brooklyn, to recover salary •as a fireman of the fire department. Plaintiff appeals from a judgment entered in favor of defendant.

Action by Sanford Vroman and another against Charles E. Rogers, for damages for breach of contract. Plaintiffs appeal from a judgment entered on verdict for defendant, and an order denying their motion for a new trial.

<p>Contract—Performance—Province of Jury.</p> <p>Defendant contracted with B. for the erection of a building for an amount payable in installments. Plaintiffs, subcontractors, having performed their contract,, received in payment an order drawn by B. on defendant, payable out of the fifth installment to become due under the contract. Defendant accepted the order, “provided no liens be filed against the building before said payment be earned, and payable only when said payment be earned. ” Plaintiffs introduced evidence that the-work required to entitles, to the fifth payment had been substantially done, though it did not appear that it was completed in all its details, before the first lien was filed. Meld, that the question whether the work had been thus substantially done was properly submitted to the jury.</p>

Action by Peter Guldenkirch and his wife against the United States Mutual Accident Association, to recover $5,000 on a policy of insurance on the life of their son. Defendant appeals from a judgment entered on verdict of jury in favor of plaintiffs, and from order denying his motion for a new trial.

Action by George W. Irwin and another against Edward H. Moubray, for •commissions as real-estate brokers. Defendant appeals from a judgment entered on verdict in favor of plaintiffs, and from an order denying his motion for a new trial.

<p>Appeal from trial term.</p> <p>Action by John P. Craighead against the Brooklyn City Railroad Company for damages for personal injuries. Defendant appeals from judgment entered on a verdict in favor of plaintiff, and an order denying its motion for a new •trial.</p>

Action by Frank B. Hodgkins against Sarah F. Mead for commissions as a real-estate broker. Defendant appeals from an order amending verdict in favor of plaintiff.

<p>Appeal from trial term.</p> <p>Action by Frank B. Hodgkins against George W. Mead arid Sarah F. Mead, his wife.</p>

<p>Appeal from jury term.</p> <p>Action by Solomon Jonas against Simon Feist. A judgment was entered; on a verdict for plaintiff, and defendant appeals.</p>

Action by Ludwig J. Mayer against John W. Haaren. Judgment was entered on a verdict for defendant, and an order entered denying a motion, fora new trial on the minutes, and on the ground of newly-discovered evidence. Plaintiff appeals.

<p>Appeal from special term.</p> <p>Action by Morton P. Henry against the Syracuse, Geneva & Corning Railroad Company.</p>

<p>Appeal from jury term.</p> <p>Action by Jacob Finelite against John Sinnott.</p>

<p>Motion for leave to appeal to the court of appeals from the interlocutory judgment entered on the decision of the general term, reversing a judgment sustaining plaintiff’s demurrer, as provided by Code Civil Proc. N. Y. § 190, subd. 4. Por former reports of this ease, see 3 N. Y. Supp. 122; 4 N. Y. Supp. 874.</p>

<p>Appeal from jury term.</p> <p>Action by William H. Arnoux against Henry A. Bogert.</p>

<p>Ejectment—Title to Support—Powers in Trust.</p> <p>C. conveyed mortgaged property to R., her heirs, etc., in trust to receive the income, and apply it to the use of C. for life, and after her death to convey the property to C.’s children and grandchildren. Held tho,t, under 1 Rev. St. N. Y. p. 739, § 59, providing that land to which a power in trust relates shall remain in or descend to the persons otherwise entitled, subject to the execution of the power, R.’s-power to convey not having been exercised, the legal title to the land passed to the-purchaser at the sale under the mortgage during C.’s life, and C.’s children and grandchildren, after her death, had no such title as would support an action of" ejectment.</p>

<p>Sail—Vacation on Judgment.</p> <p>A judgment entered on a forfeited recognizance taken in the special sessions in a prosecution for assault and battery will be vacated where it is shown that complainant appeared and acknowledged satisfaction for the injury, and requested the - discharge of defendant.</p>

Suit by John B. Doerr and another against Emily P. Woolsey to recover for horses sold to hei by them. Judgment for plaintiffs, and defendant appeals.

Jennie E. Kent sued Richard C. Sibley and H. B. Biggs on an undertaking given on appeal in the city court of New York. Plaintiff demurred to defendants’ second defense, and the demurrer was sustained. The general term of the city court affirmed the judgment, and defendants appeal.

Defendants were permitted to amend a notice of appeal served by them on plaintiff by inserting the word “judgment” in place of the word “order.” Plaintiff appeals. Code Civil Proc.

<p>Judgment—Res Ad judicata.</p> <p>Plaintiff sued for rent, and defendants alleged, in defense, an eviction by the landlord paramount. Pending the action, plaintiff assigned the subsequently accruing rent to C., who sued defendants therefor, but was defeated on the issue of the same eviction. Plaintiff was not a party to the action brought by C., nor did it appear that it was brought for his benefit. Held, that it was prejudicial error to admit evidence of the judgment in C.’s action, plaintiff not being a party or privy thereto.</p>

Action by John 0. Heald against Robert MacGowan, to recover the value of certain electrotype plates converted by defendant. Plaintiff claimed as assignee of G. H. Gardner & Co. under the general assignment act. The defendant denied plaintiff’s title, and the validity of the assignment.

Action by Lenora Morenus against Ira Crawford and FTehemiah Hoag, to recover the value of a horse killed by John Morenus, plaintiff’s husband, in May, 1875, while in a state of intoxication caused by liquor sold him by defendants. After a trial and a judgment for plaintiff, which was reversed on appeal, plaintiff discontinued as to defendant Hoag.

Action by the Robert Gere Bank, as indorsee of a promissory note, against Horace Inman and the Onondaga Iron Company. From an order denying a motion to strike out defendant Inman’s answer as sham, plaintiff appeals.

Ejectment. Both parties appeal, the defendant from the whole judgment, and the plaintiff from such portions thereof as are indicated in the opinion.

Motion to confirm report of commissioners of estimate. Proceeding by the mayor, etc., of the city of New York, to acquire title to land for public parks. The question presented in this matter is whether the proposed route of the Suburban Rapid Transit Company is exempt from condemnation for the purpose of the parks.

<p>Appeal from order denying motion to vacate attachment.</p>

<p>Appeal from surrogate’s court, Suffolk county.</p>

<p>Appeal from judgment on report of referee.</p> <p>The plaintiff, Julia E. Drake, in her amended complaint alleged that she and the defendants, Jane L. Paige, Lewis B. Paige, and Edith Paige, and ■Clinton F. Paige, as trustee for Lewis B. Paige, own and possess, as tenants in common, certain four parcels of real estate therein described; that the plaintiff owns an individual three-fourths interest in fee; that Caroline L. Paige ■owned the other one-fourth, and she died intestate in 1879, leaving her surviving a husband, the defendant Clinton F. Paige, and three children, the said Jane L., Lewis B., and Edith, to whom the fee of said one-fourth descended; that Lewis B., after the death of his mother, and in 1879, conveyed his interest to Clinton F. Paige in trust for certain purposes; that Clinton F. Paige is tenant by the curtesy of an "undivided fourth; that the parties own no other lands in common, and there are no specific liens or incumbrances •upon the premises, or the shares thereof, against any of the parties; that Clinton F. Paige is the executor of the will of Hazard Lewis, deceased, and as suqh- executor, or in his individual capacity, has for many years received the rents and profits of said premises, and not paid them over. J udgment was asked for a partition, and that Clinton F. Paige, as executor or individually, account for the rents and profits. The defendant Clinton F. Paige personally and as trustee answered, denying any knowledge or information sufficient to form a belief as. to the ownership by plaintiff of three-fourths, and alleging that the premises were originally owned by Hazard Lewis, and were by him devised, after the payment of debts, funeral and testamentary expenses, to his wife, Maria Lewis, and to his daughters, Jane E. Drake and Caroline L. Paige, and to his son, Frederick Lewis, to be equally divided between them, eacli to have one-fourth part thereof; that by said will the executors were authorized to sell and convey said real estate, or partition the same, or sell and divide the proceeds; that Frederick Lewis, Clinton F. Paige, and Horace S. Griswold were made executors; that Frederick Lewis, during the time he held the premises so devised to him, being one-fourth of the premises herein, appropriated and converted to his own individual use a large amount of the estate moneys which came into his hands as executor and trustee, which became and is a lien upon his one-fourth interest in said real estate, superior to any right acquired by the plaintiff; and that Frederick Lewis is a necessary party defendant. The answer further alleged that Clinton F. Paige, upon the death of Caroline L. Paige, became and is entitled, as tenant by the curtesy, to the use during his life of all the premises owned by said Caroline. It further alleged that he, upon the request of the owners and as their agent for a number of years, took charge of said premises, spending much time and money in their care and preservation, and paid out the avails as directed by the owners, and that his services and payments were equal to the receipts; that prior to the death of said Caroline he had no estate or legal interest in the lands, and ail that was done by him was as agent of the owners, and more than six years have elapsed since such receipts; that the matter of the use and occupation has been litigated and settled in the surrogate’s court upon the accounting of the executors.</p> <p>Upon the trial it appeared that Hazard Lewis was the original owner of the property. He died July 8, 1863, leaving a will, which was duly probated on July 15, 1863. In this will, after certain specific bequests and devises to his widow and children, then came the following clauses: “Eighth. All the rest and residue of my estate, whether real or personal, of every name, kind, and description, and wheresoever situate, after the payment of my just debts and funeral and testamentary expenses, I give, devise, and bequeath to my said wife, Maria, to my said daughters, Jane E. Drake and Caroline L. Paige, and to my said son, Frederick, to be divided equally between them, share and share alike; each of four said persons to have one-fourth part thereof. Ninth. I hereby authorize and empower my executors hereinafter named to sell, deed, grant, and convey, by deed under seal, with common covenants of warranty, any or all of my real estate not in this will particularly described and devised, ítnd the avails apply to the payment of my debts and funeral and testamentary expenses, or at their discretion to lease any portion of such real estate for the purpose of paying such debts and expenses; and I authorize them to partition the same, after the payment of debts and expenses, amongst those in the eighth devise herein named, or to sell and deed the same, and the avails divide among those named in said devise and bequest eight. My intent is that all devises, of every name and kind, in this will contained, shall pass the real estate to the respective beneficiaries free from incumbrance, and that any and all mortgages and judgments or either of them, that shall cover or be a lien upon any of the lands, or any portion of the lands, in this will devised and described, shall be paid by my executors from the avails of my personal estate not herein bequeathed, and the avails of lands not specifically devised; and I hereby direct and empower my said executors to appropriate the avails of my personal estate not herein bequeathed, and the avails of my real estate not in this will devised, by specific description, to the payment of all mortgages, and all judgments incumbering any and all real estate in this will devised.”</p> <p>Jane E. Drake, named in the eighth clause, died on the 12th May, 1883, and the plaintiff is now the owner of her one-fourth. The plaintiff is also the owner of the one-fourth given to Maria Lewis. Ho question is made on this appeal as to those two-fourths. In the will Frederick Lewis, Clinton F. Paige, and Horace S. Griswold were named executors, and letters were issued to them. Griswold continued to act till August 9, 1870, when he died. Frederick Lewis continued to act until August 23,1873, when he resigned. Clinton F. Paige still continues an executor. About February 4, 1875, the supreme court, upon petition, appointed Patrick H. Drake, husband of said Jane E. Drake, an executor and trustee, and he continued to act with Paige until Hovera her 5, 1882, when he died. On April 1,1871, Lewis and Paige, as executors, sold and conveyed to one Morgan a tract of land, not specifically devised by said will, for $9,000, of which two thousand was paid down to Lewis, and a bond and mortgage given to the executors for the balance, $7,000, with interest. This bond and mortgage were held as part of the estate until October, 1872, when they were assigned by the executors to one Boot, the assignment being dated October 9, 1872, and acknowledged October 21, 1872. Nothing has been paid on the bond and mortgage. It is found by the referee that Lewis was in embarrassed circumstances at the time, and desired to dispose of the bond and mortgage for the purpose of raising money to be used or applied to his individual use; that Paige had knowledge at the time of such desire and purpose on the part of Lewis, and joined with him in executing and acknowledging the assignment, that such purpose might be carried into effect; that the bond and mortgage were thus transferred to Boot, and the avails received by Lewis, and he chargéd himself with the amount thereof upon the books wherein he kept his accounts as executor.</p> <p>On the 26th March, 1872, Lewis and Paige, as executors, sold and conveyed to one King a tract of land, not specifically devised, for $4,500, and King gave back to them a bond and mortgage for that amount, which on February 5, 1873, was reduced by payment tp Lewis to the sum of $3,600, and interest from April 1, 1873. This bond and mortgage the executors, by assignment dated and acknowledged March 4, 1873, assigned to one Hall. The referee finds that this assignment was made for the purpose of enabling Lewis to raise money to be used by him for his individual benefit; that Paige knew of such purpose on the part of Lewis at the time, and joined in executing and acknowledging the assignment, that such purpose might be carried into effect, and the bond and mortgage were transferred accordingly, and the avails were received, and applied by Lewis to his own individual use and benefit; that at this time the estate was still quite largely in debt; that the transfers to Boot and Hall were not made for the purpose of partitioning or dividing any portion of the residuary estate, or that Lewis might receive his share, or any portion thereof; that Lewis, when he appropriated the avails of said mort1 gages, intended to replace, and return to the estate, the money thus taken by him.</p> <p>On the 3d June, 1873, Frederick Lewis and Maria A., his wife, executed and delivered to Patrick H. Drake a mortgage for $60,000 upon the one-fourth interest of said Frederick in the said residuary estate, the parcels being specifically described, and on other real estate owned by him. This included the premises described in the complaint. This mortgage was recorded June 4, 1873. As a part of the transaction, an agreement was given back to Lewis, signed by Drake, and dated June 4, 1873, which stated that the mortgage was given to secure Drake “against all liability he has or may have incurred as indorser for the said Lewis,” the amount being supposed to be about $32,000; also to secure Drake for advances which he is to make to liquidate and satisfy the large amount of judgments against the said Lewis which are a lien upon the property covered by the said mortgage, ” Drake agreeing to “take care and protect the said Lewis and his property from the enforcement of any of the judgments against the said Lewis or his property, and save the property of the said Lewis from sacrifice, and the said Lewis from damage and costs. ” The referee finds that the amount of paper upon which Drake was an indorser for Lewis at the time of the mortgage was from $20,000 to $30,000; that the judgments against Lewis, for which Drake was to make advances and take up, amounted to $31,681.10, with interest; that Drake, in' pursuance of the mortgage and agreement, paid the said notes on which he was indorser, and paid and took up the said judgments, which, however, he did not have satisfied, but caused a portion to be assigned to his wife, Jane E. Drake, and the remainder to himself; that all the said judgments were a lien on the one-fourth interest which Lewis took under the will, and mortgaged to Drake; that about $23,000 of said judgments were a lien on such one-fourth interest at the time of the assignment of the Morgan mortgage to Boot, in October, 1872; that Drake, when he received his mortgage, did not know that Lewis had received any more than his share of the said estate, nor did he know of the sales made by Lewis and Paige to Morgan and King, or that the Morgan and King mortgages had been disposed of, and the avails appropriated by Lewis; that Drake took his mortgage in good faith, for the purposes in his agreement, without notice of any secret lien against or upon the interest of Lewis in the residuary estate. Default being made in the payment of this mortgage, it was foreclosed, and the premises sold on 6th November, 1875, and bid in by Drake. The referee finds that Drake was a purchaser in good faith. The one-fourth interest of the parcels described in the complaint brought $7,250. The entire proceeds of the mortgage sale were about $24,000. The plaintiff has the title acquired by Drake on this foreclosure. At the time of the commencement of this action all the debts and liabilities, funeral and testamentary expenses, and all incumbrances and liens upon or against said Hazard Lewis, had been paid. The premises described in the complaint remained unsold.</p> <p>On the 13th December, 1880, proceedings were commenced in the surrogate’s court for an accounting of the executors, which resulted in a decree on the 16th May, 1887. From this it appears that the executors had received large amounts from the proceeds of sales of real estate, as well as from personal property and from rents, and that Frederick Lewis, aside from the Morgan and King mortgages, had received more than his share of the funds received by the executors. The surrogate charged him solely, as of the date of the decree, (which included a large amount of interest,) with the sum of $24,-215.85; and credited him with his share, $20,350.97; leaving a balance of $3,864.88,—which was decreed to be paid to the other residuary legatees, or their representatives. He charged Lewis and Paige together with the amount of the said Morgan and King mortgages, $10,600, amounting altogether to $21,-644.75 at date of decree, and directed that they pay the same as follows: To Maria Lewis, $11,128.39; to Julia B. Drake, as executrix of Jane A. Drake, $7,201.73; and to the administrators of the estate of Caroline L. Paige, $3,314.43. Frederick Lewis is insolvent, and has been since the spring of 1878, and no part of the balance charged to him and Paige together can be collected of him. Lewis appealed from the decree, and pending that and this partition suit, and on September 7, 1887, the plaintiff and said Paige entered into a stipulation in writing, which, after reciting the provisions of said decree, proceeded as follows: “Clinton F. Paige has appealed from said decree, which is pending. There is also an action of partition pending to partition the real estate in which J ulia B. Drake and the heirs of Caroline L. Paige and Clinton F. Paige claim an interest. Julia B., claiming absolute title to the share of undisposed residuary real estate formerly belonging to F. Lewis, and C. F. Paige, claiming the same, should first be charged with payment of the deficiency of F. Lewis, with which Lewis and Paige are jointly charged, which is one of the principal questions litigated. Mutual talk of compromise has occurred, to which C. F. Paige assents, viz.: That the sum payable to J ulia B. Drake by said decree shall, subject to the provisions hereafter named, be paid or secured to her, a cash payment of at least $3,000 to be made, and the balance secured to be paid at some agreed time; that Paige shall be released and excused from the payment of any part of the sum of $14,107.71 payable by said decree to Maria Lewis, and shall be left to settle himself with the heirs of Caroline L. Paige, D. H. Carver, for the $300, costs, and all other matters involved in the decree, and the executions now in the sheriff’s hands shall be withdrawn, and said decree, by suitable indorsement, be satisfied and receipted as to the interest of J ulia B. Drake and Maria Lewis. It is also further provided that all claim of C. F. Paige and others to charge the interest of Frederick Lewis in the residuary real estate is waived, except that it is understood that he is to have the right to seek to charge the same, and be subrogated in the place of said Lewis as to the sum of $7,189.97, being the sum paid by him to Julia R. Drake on account of the $21,644.75 charged to him and Lewis jointly for money received and used by said Lewis, with interest thereon; all the rest of said $21,644.75 being satisfied by this agreement.”</p> <p>The referee decided against the claim of Paige for subrogation, and held that the plaintiff was the owner of three-fourths; that the other fourth, being that taken by Caroline L. Paige under the will, was owned by the defendants Jane L. Paige, Edith Paige, and Clinton F. Paige, as trustee of Lewis B. Paige; and that in this fourth Clinton F. had a tenancy by the curtesy. An actual partition was directed. The record indicates that Frederick Lewis and. wife have been made parties defendant by amendment.</p>

<p>Contracts—Construction.</p> <p>An assignor for the benefit of creditors procured the employment of defendants by the creditors for the sale of the property assigned in pursuance of an agreement by which he was to assist in making sales and to share equally in the commissions. A large amount of the property was sold by the assignor at private sale, but, the balance having been sold by the defendants at auction, they denied the assignor’s right to commissions on the auction sales on the ground that the agreement as to commissions only related to private sales, and that the assignor had not sold the property in the time fixed, or had not used due diligence in selling. The assignor denied this version of the agreement. There was evidence that while the auction sales were in progress the defendants said that the assignor was entitled to his commissions “ any way. ” Meld, that a verdict for the assignor would not be disturbed.</p>

<p>Appeal from circuit court, Kings county.</p> <p>Action by Edwin Hayward against the Manhattan Railway Company, to recover for injuries alleged to result from defendant’s negligence. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Taxation—Tax-Titles—Mortgages—Foreclosure.</p> <p>In an action to foreclose a mortgage, where the defendant in possession denies that her interest is subordinate to plaintiff's mortgage, and claims to be the owner under tax leases, plaintiff is entitled to assail the assessment sales and leases.</p> <p>2. Same—Assessments—Curative Acts.</p> <p>The assessment of lands belonging to a non-resident in the resident column, the assessment after the death of the owner, in the name of his estate, instead of in the name of the owner’s devis.ee, and the signing and delivery in blank of the taxvwarrants by the board of supervisors, are jurisdictional defects not within the curative power of the legislature.</p>

Action by Robert C. Davidge and Sallie M. Davidge against Wallace Mayo, for an accounting with regard to certain joint ventures between Robert Davidge and the defendant. The latter counter-claimed for a failure of Robert to deliver certain shares of stock as he had agreed. From a judgment sustaining a demurrer to the counter-claim the defendant appeals.

Suit by Mrs. Cummings against the Brooklyn City Railroad Company, for •damages for injuries to her child at a railroad crossing. 'From a judgment for plaintiff defendant appeals.

Action by Matthias H. Arnot, Marianna A. Ogden, and Fanny A. Haven, as surviving partners of the late firm of the Chemung Canal Bank, against Henry W. Sage, William H. Sage, and Dean Sage, as… Held: as a conclusion of law, that plaintiffs were entitled to recover the amount of the notes sued on, and judgment was given accordingly. Defendants appeal.

This is an appeal by defendants Harriet 8. Curtis and Helen C. Waters, individually and as executrices of the will of Palmer H. Curtis, from an interlocutory judgment upon a decision overruling a demurrer to the complaint, and awarding judgment “against said defendants, as prayed for in the complaint, to be enforced according to law, with leave, however, to the said defendants Harriet S. Curtis and Helen C. Waters, as individuals and as executrices aforesaid, within twenty…

Action by Hannah J. Stebbins against the village of Oneida, for injuries, sustained by plaintiff on the 25th day of September, 1883, by falling upon one of defendant’s sidewalks. Her arm was broken near the wrist, and the jury awarded her $200. Motion for a new trial was denied, judgment was entered upon the verdict, and defendant appeals. ■

Action by Emma E. Dryer «against Eton G-. Brown, as surviving executor of Harvey Barnard, deceased. « .Harvey Barnard died in April, 1883, leaving a will, which was admitted to probate, of which the defendant Brown is the surviving executor. In February, 1884, the executor advertised, in accordance with the statute, for the presentation of claims against the estate.

From an order granting leave to issue a commission to examine plaintiff,. John Keenan, who is in Canada, although a resident of this state, John. O’Brien and Heman Clark appeal.

In a suit by John Keenan against John O’Brien and Heman Clark an or-der was entered denying motion of defendants to set aside an ex parte order allowing the examination of defendant Clark before trial.

Action by Julius Tuchband against the Chicago & Alton Railroad Company, a foreign corporation having its principal office in the state of Illinois. Defendant not having designated any one within the state on whom process, could be served, the summons in this action was served on Charles Oberg as managing agent.

<p>1. Judge—Misconduct—Charges—Affidavits.</p> <p>Where a judge is charged with intoxication, affidavits are relevant tending to show that he has well and faithfully discharged his judicial duties.</p> <p>3. Same—Order of Reference.</p> <p>Where all the affidavits in support of the charges are fully met by affidavits on the part of respondent, and on examination of all the papers the charges appear to be substantially answered, a reference will not be ordered under Laws N. Y. 1880, c. 354, which gives the power to order a reference in such cases, but does not require one as a matter of course, or in every instance where there are conflicting affidavits.</p>

Lawrence county. In the matter of the probate of an instrument purporting to be the last will and testament of Thomas Lantry, deceased. From a decree admitting the same to probate Charles Lantry and others, contestants, appeal.

Action by Richard Hoag against Henry M. Prime and others, on an undertaking given by defendants as sureties for one Hatch and others, who appealed from a judgment in a foreclosure action rendered by the special term in favor of said Hoag. There was a judgment for plaintiff for $250, the sum specified in the undertaking. Code Civil Proc.

Action by Elizabeth Ludlow against Jacob Carr for the recovery of the possession of land. Verdict and judgment for defendant, and plaintiff appeals.

Action by Ella L. Dunckel against Ephraim Failing and Ira T. Dunckel, executors, etc., of Elizabeth Dunckel,. deceased, on a promissory note given by defendants’ testatrix to plaintiff. Judgment for defendants, and plaintiff appeals.

Action by Deborah Dwyer against Rathbone, Sard & Co., a corporation, to recover for the services of her minor son. A contract between the parties was shown, fixing the length of service and amount of compensation, but the plaintiff alleged it to be void. Judgment for defendant, and plaintiff appeals. For opinion on an appeal from an order in the case, see 2 ÍT. Y. Supp. 170.

<p>Municipal Corporations—Icy Streets—Constructive Notice.</p> <p>In an action against a city for injuries caused by slipping on ice, where the only evidence of the existence of ice prior to the accident is that it snowed on the third day before, rained on the second day before, and froze on the night before, together with the testimony of plaintiff that there was ice there on the night before, no inference of constructive notice can be reasonably made, and the question should not be submitted to the jury.</p>

Defendant Mary Holbert executed a bond and mortgage to plaintiffs. Afterwards defendant Margaret Brown became the owner of the mortgaged premises, and executed the two mortgages to the plaintiffs,—one to defendant Lampman, and the other to defendant Werner. Afterwards, the defendants having failed to pay an installment of interest, the plaintiffs commenced this action to foreclose their mortgage for the non-payment of such interest.

Certiorari by the Troy Union Railroad Company against Edward Carter, James Maloney, Christian W. Rapp, and Michael A. Tierney, General Assessors of the City of Troy, and William J. Roche, Comptroller of the City of Troy. The relator was incorporated under the general railroad act about the year 1852.

Action by Edward Stack against Charles P. Weatherwax on a promissory note executed by defendant, and payable to plaintiff. It appeared that plaintiff had recovered a judgment for $103 against one Van Loon, defendant’s son-in-law, and that at the time defendant executed the note plaintiff executed a satisfaction of his judgment against Van Loon.

Petition for the probate of a paper alleged to be the last will and testament of IsabellaP. Sarauw, deceased. Probate was refused, and petitioner appeals. For opinion of the surrogate, see 2 21. V. Supp. 629.

Ejectment by John P. Eisenlord against David H. Glum, John L. Eisenlord, Catherine L. Eisenlord, James O. Eisenlord, Anna M. Eisenlord, Ann Lydia Eisenlord, and Alice E. Eisenlord. Plaintiff’s complaint was dismissed, and plaintiff appeals. On a former appeal by plaintiff an order granting a new trial was affirmed. 2 27. Y. Supp. 125.

Henry A. Mann moved to set aside a judgment of foreclosure by default and sale of the mortgaged property, and all other proceedings founded on the judgment which was rendered in the action of Willard Lester against Henry A. Mann and others. The motion was denied, and Mann appeals.

<p>On motion to settle and modify decision. For report of case on appeal, see 4 H. Y. Supp. 584.</p>

<p>1. Divorce—Support op Wipe and Children.</p> <p>Under Code Civil Proo. N. Y. | 1766, authorizing the court, in decreeing separation at the suit of the wife, to. provide for the support of plaintiff, and the education and maintenance of the children, it is error to direct the husband to transfer specific articles of property to the wife.</p> <p>2. Same—Cruelty—Evidence.</p> <p>Evidence of cruelty which has been forgiven is admissible, in an action for divorce on the ground of subsequent cruelty, as showing the character of the subsequent acts, and that they arose from a permanent mode of acting.</p> <p>3. Same—Condonation.</p> <p>Cohabitation is not per se a condonation of previous acts of cruelty.</p>

Application by Charles H. Porter by Melvin Porter, his general guardian, to revoke the probate of the will of Nancy Rosecrans, deceased. David B. Smith, the executor, and' others, who were named as legatees and devisees in the will, were cited as parties defendant. Charles H. Porter was the grandson and sole descendant of Nancy Rosecrans. The probate was confirmed, and petitioner appeals.

<p>Action—Form—Tort or Contract.</p> <p>A complaint alleged that plaintiff delivered a certain described note, belonging: to him, to A., to be safely kept fgr plaintiff’s benefit, and to be surrendered to him on demand; that defendants, with knowledge that plaintiff owned the note, and: had deposited it with A. for the purpose aforesaid, wrongfully and fraudulently negotiated it, with A.’s assistance, and misappropriated and converted the same to-their own use, without plaintiff’s knowledge or consent, and to his damage, the amount of principal and interest. Held, that the complaint sounded in tort,_ and. the trial court properly refused to allow a recovery as for money had and received..</p>

The petitioner, widow of John Waack, deceased, but since remarried, and Matlage were appointed administratrix and administrator of John Waack. Matlage collected as administrator a considerable sum of money,—about. $1,703.43, less attorney’s fees, $372.69; making $1,330.74. The petitioner, made an application to the surrogate to have Matlage account. He proceeded to account, and filed a sworn statement of his proceedings and of the estate.

Action by Cyrenius Flint and others against Orris Frantzman, for the alleged conversion of a certain musical instrument, called a “tuba.” The ac-tian was originally brought before a justice of the peace, who rendered judgment for plaintiffs. Defendant appealed to the county court, and the cause was removed to the supreme court at special term, where the judgment of the justice was affirmed, and defendant appeals.

<p>Motion by defendant for reargument. For report of case on appeal, see 4 N. Y. Supp. 774.</p>

<p>1. Appeal—Dismissal.</p> <p>• In an action to foreclose a mortgage executed by one defendant alone to secure a bond executed by both defendants, an order striking out the answer as sham and a judgment for plaintiff were affirmed, on appeal by the mortgagor. Held, that an appeal by the other defendant should be dismissed where it did not appear that he had any interest in the mortgaged premises, and it was not shown that any deficiency remained on the debt for which he was bound, after applying the proceeds of the mortgage sale.</p> <p>2. Same.</p> <p>After the order appealed from was served, and an order made to ascertain the amount due on the mortgages, defendant’s attorney gave plaintiff’s attorney a waiver of service of all further papers, except the notice of sale. Plaintiff thereafter perfected the judgment ex parte. Held, that this was reason for dismissing the appeal.</p>

<p>1. Factors and Brokers—Commissions—Ruining Market.</p> <p>Plaintiffs assignor was authorized to sell defendants’ manufactory for §125,000.-He found parties willing to take a lease of it for six months, with privilege to purchase it for the price stated. Defendants said to one M., about the same time, that they.would be glad if a purchaser could be found at §100,000, but it did not appear that this remark ever reached the proposed lessees or any intending purchaser. There was no evidence that the property had a market value of $125,000, except the-above proposal to lease. Seld, that defendants’ statement did not destroy the market at §125,000, so as to entitle plaintiff’s assignor to the commissions he would have made in case of sale.</p> <p>2. Same—Termination op Authority.-</p> <p>Plaintiffs assignor wrote to defendants, saying, in regard to the sale, “My only-offer at this writing is ” the proposal to lease, with privilege to purchase; also that he was obliged to leave for Denver; and adding, “So I leave this matter in your hands now. X have brought it to a focus, and leave you to arrange with” the proposed lessees, “and know that if it goes through you will pay me what is right for' commissions, etc., and if it does not go through, and you sell elsewhere, you will send me check for my time, trouble, and expense to date. ” Seld that, on failing to make an arrangement with the parties mentioned, defendants were justified in-dealing with the .property as they chose.</p>

<p>Insurance—Mortgagee’s Interest—Assignment oe Policy.</p> <p>An insurance policy, payable to a mortgagee of the property insured, provided that as to the interest of the mortgagee the policy should not be invalidated by any act or neglect of the mortgagor or owner of the property, and that in case of a transfer of the property without the written consent of the company indorsed on the policy, it should become void. It also provided that on payment of loss to the mortgagee the company should be subrogated to the latter’s rights to all securities held as collateral to the mortgage debt. The property was conveyed by mesne conveyances to plaintiff, no written consent of the company to any conveyance being indorsed on the policy, and, on a fire occurring, plaintiff collected insurance on other policies held by the mortgagee, which he paid to the latter, and it was agreed that thereafter the mortgage should be held on the land only, and the policy was assigned to plaintiff. Held, that plaintiff took nothing by the assignment of the policy, and could maintain no action thereon, either in his own right or as assignee.</p>

Action by the Sheridan Electric Light Company of New York against the Chatham National Bank. From a judgment for defendant on a trial by the court and an order denying a new trial plaintiff appeals.

<p>Appeal from special term, Hew York county.</p>

Action by Eliza L. Winton against Walter H. Winton for divorce. Defendant appeals from an order adjudging him in contempt for non-payment of alimony.

<p>Municipal Corporations—Officers—Removal.</p> <p>Consolidation act N. Y. § 108, provides that the heads of all the departments of New York city may be removed by the mayor, after opportunity to be heard. Held, that the violation of the provision in the act that no head of department shall become interested directly or indirectly in the purchase of real estate by the corporation constitutes sufficient cause for removal by the mayor, and it is immaterial that the act also contains a provision for the punishment for such offense.</p>

<p>Appeal from special term, Hew York county.</p>

This was an action by Fredrick Reck, a non-resident, against the defendant company, in which plaintiff had a verdict for $10,647.05. Subsequently, on defendant’s application, the special term made an order requiring plaintiff to give additional security for costs, from which order plaintiff appeals.

This is an appeal by the plaintiff, Henrietta Schaffer, from an order of the special term, refusing to vacate an order made at trial term refusing plaintiff’ s application for a postponement of'the cause, and dismissing the complaint.

The defendant leased to the plaintiff the second, third, and fourth lots of premises Bos. 24 to 34 Bew Chambers street, for five years and four months from January 1, 1886, at a stipulated rental, and covenanted and agreed to furnish the plaintiff with “six-horse steam-power and live steam daily, as required, from 7J A. m. till 6 p. m., for the general business of book-binding, to be carried on by [the plaintiff] during the whole of the term.” The complaint alleges that the…

<p>Master and Servant—Liability to Third Persons—Province oe Jury.</p> <p>In an action for personal injuries caused by the negligence of the driver of a truck, plaintiff showed that the driver had been for 10 years in defendants’ employ; that he was driving one of their trucks at the time of the accident, and about to take a goat to defendants’ stable. Defendants contended that the driver was either acting for himself or for the son of one of defendants, and offered the testimony of such son. and of the driver, to that effect. JGeld, that the testimony raised a question of fact, which was properly submitted to the jury.</p>

Action by Carl Kern against the De Castro & Donner Sugar Refining Company, for damages for personal injuries. Defendant appeals from a judgment entered on a verdict in favor of plaintiff, and from an order denying bis motion for a new trial. The following is the testimony at folio 308, referred to in the opinion: George Ruppert, a witness called by defendant, testified that a “piece of board, ” connected with the elevator, was torn off, and that he could not say what tore it.

<p>Appeal from trial term.</p> <p>Ejectment by Charles TJ. Wing against Bernardo De La Rionda and others. There was a judgment for plaintiff, and defendants appeal.</p>

<p>Wills—Probate and Contest—Expert Evidence.</p> <p>It is proper to allow a paper offered for probate as a will to be subjected to a chemical test, in order to disclose the nature of the ink and the process to which it has been subjected.</p>

<p>Wills—Capacity to Make.</p> <p>During the last few years of his life decedent stated to various witnesses (friends of the family) that his children and his wife were persecuting him in various ways; that they had conspired to put him in a lunatic asylum, and had made preparations to that end; that they caused the children in the streets to cry out at him as he passed, etc. His children and the friends of the family testified that the accusations were unfounded. When reasoned with by friends he sometimes seemed convinced that he was in error, but would repeat his charges at the next interview. He refused to eat food sent him by his daughter, alleging that it contained poison. About this time he made the will offered for probate. These suspicions finally culminated in his killing his wife, and inflicting mortal injuries on himself, held, that testamentary incapacity was clearly shown.</p>

<p>1. Husband and Wife—Conteacts of Wife—Employment of Physician.</p> <p>A husband is liable for the services of a physician to his wife, unless a special agreement on the part of the wife is shown.</p> <p>2. Exeoutoes and Administbatoes—Life-Intebest in Fund.</p> <p>An executor who is also life-tenant of a fund bequeathed will not be allowed to retain possession of the fund after final settlement of his executorial accounts, unless he gives bond to secure the remainder-man.</p> <p>3. Refebence—Who may be Refebee—Subbogate’s Assistant.</p> <p>An assistant to the surrogate cannot act as referee in a matter pending in the surrogate’s court without the written consent of the parties.</p>

<p>Application for the admission to probate of the will of Thomas Lamb, deceased.</p>

<p>Application for the admission to probate of the will of Catharine J. Buck-ham, alleged to be deceased.</p>

On November 16, 1876, George W. Ketcham disappeared, and was never heard of afterwards. On the day before he attempted to commit suicide by jumping from a ferry-boat, but was arrested and locked up. He offered the deck-hand who made the arrest $25 if he would allow him to jump overboard. He was last seen in New York city, when he was released from arrest.

<p>Appeal from jury term.</p> <p>Action by John Weckmann against Charles G. Am Ende. Judgment on verdict for plaintiff, and defendant appeals.</p>

Action by the mayor, aldermen, and commonalty of the city of New York against Mary Kent, as principal, and Mary A. Kent and Victoria L. Kent, as sureties, for rent due under a lease. From a judgment in favor of plaintiffs, and against the sureties, the latter appeal.

<p>Appeal from jury term.</p> <p>Action by Johanna Wulstein against John H. Mohlman and others. The complaint was dismissed, and plaintiff appeals.</p>

Action by Croft C. Carroll against Clayton E. Sweet. Plaintiff appeals from a judgment entered on a verdict for defendant, and from a denial of his motion for a new trial.

Reargument in view of the decision in Walton v. Coe, 17 $7. E. Rep. 676. Action by Alice Richards against John H. Beach as a stockholder of the American Opera Company, (Limited,) to recover under the general act of 1848, and also under Laws .1875, c. 611, § 37, making stockholders personally liable for corporate debts to the amount of their stock until the full amount of the capital stock is paid in.

<p>On exceptions from circuit court, Hew York county.</p>

<p>Appeal from special term, New York county.</p>

Action by Henry Farmilo and Martin Smith against Matilda M. Styles, to foreclose a mechanic’s lien. The plaintiffs were nonsuited at the close of the evidence. William Y. Styles, husband of the defendant, made a contract with the plaintiffs to do the mason work upon a house which he represented he was about to build upon a lot in Cohoes, which lie represented belonged to himself.

<p>Municipal Corporations—Erection of Awninss.</p> <p>The maintenance of an awning in and over a public street in the city of New York" is not justified by an affidavit, merely, that plaintiff obtained permission from the-city to erect and maintain it, without a specific statement that such permission was granted by the city council.</p>

Chapter 542, Laws 1880, § 3, declares that “every corporation, joint-stock •company, or association whatever, now or hereafter incorporated under any law of this state, except, ” etc., shall pay a certain tax, which is estimated by a certain percentage on dividends, and, if there are no dividends, by a certain percentage on the valuation of the capital stock, made according to the provisions of section 1.

<p>Appeal from Ulster county court.</p> <p>Action by Garrie H. Delamater against the Prudential Insurance Company of America for the amount of an insurance policy issued on the life of Jennie-B. Delamater. Insured was found nearly dead iñ a New York city hotel, and it was claimed by the company that she committed suicide, as there was evidence that she died from the effects of morphine. Bor this reason the agent of the company denied liability, and refused to pay the policy when demanded. Biero, the father of deceased, testified, in relation to the letter from Ward, the company’s attorney, that he sat for two hours searching through the pigeon-holes where he kept all his letters, and where there were then 200-letters; that he looked, not once, but half a dozen times; that he thought hell ad torn it up and thrown it into the waste-basket; and that he also looked’ in two other places. He testified on cross-examination that he could not say positively that the letter was not in the pigeon-holes, but that it might be there-still. The card introduced in evidence was found in the room where deceased, was found in the hotel, and there was no proof of the handwriting thereon. Judgment was rendered for plaintiff,' and defendant appeals.</p>

<p>1. Corporations—Liability op Stockholder to Creditors.</p> <p>In an action by a creditor of a corporation to enforce the statutory liability of eC stockholder on the ground that his subscription is unpaid, the burden of proof is on the creditor to show the fact of non-payment.</p> <p>2. Same—Form of Action.</p> <p>It is settled in New York that no separate action by a creditor against a single stockholder to enforce such liability can be maintained, but that the action must be in equity against all stockholders similarly situated.</p> <p>.3. Release and Discharge—Effect on Third Persons.</p> <p>■ B. agreed with A. and D., stockholders of a corporation of which plaintiff was a creditor, to pay certain debts, which plaintiff claimed included his. Afterwards defendant, as B.’s assignee, entered into an agreement with A. and D., which referred to B.’s undertaking, and recited that the same had been fully kept and performed by the parties, and tiiat all matters had been fairly settled between them, and that the agreement should stand as a mutual receipt and acquittance. Held, thatwhatever rights plaintiff may have had under the first agreement were cut off, and defendant fully discharged, by the latter agreement.</p>

<p>Appeal from judgment on report of referee.</p>

■ Action by John Dean against William Woodward, Jr., and James Stillman, to recover compensation for services as a broker. Judgment for plaintiff for $464.65, and defendants appeal.

<p>Appeal from special term, Rensselaer county.</p> <p>Patrick Vaughn and Patrick Burke, partners under the name of Vaughn & Burke, built 1,116 feet of fence on the property of said county, and presented to the board of supervisors their bill therefor, claiming $2.95 per lineal foot, that being alleged to be the price under a contract made with a committee of. said board. The latter audited the claim at $1.50 -per foot, and Vaughn & Burke obtained an alternative writ of mandamus requiring the board to pay the full amount of the claim, or show cause against the same. The board denied the existence of any .contract, and, issue being joined thereon, á trial was begun. At the conclusion of the relators’ evidence the court dismissed their action, and they appeal.</p>

Action by George W. Brayton, individually, and as assignee for the benefit of the creditors of John A. Sheldon and Thomas Lawlover, insolvent debtors, against Darwin W. Sherman, executor, etc., of Augustus Sherman, deceased, and others, to recover the value of certain assets transferred by said debtors to said testator. Judgment for plaintiff for $1,800.85, and defendant Sherman appeals.

<p>Appeal from special term, Albany county.</p> <p>Frank W. Talbott appeals from an order granting defendant’s motion to substitute another person in his place as her attorney in the action.</p>

Action by Amelia T. Thompson against Charles E. Thompson and Mary T. McConihe, executrix of and trustee under the will of Gilbert G. Thompson, deceased. The plaintiff obtained, on the 19th day of April, 1888, a judgment of divorce against her husband, the defendant Charles Thompson. The judgment directed the defendant to pay the plaintiff yearly the sum of $800 for her support and that of their child, whose custody was awarded her.

Action of partition by Margaret Foster against Theodore M. Roche, Anna S. Foster, James A. Foster, and Clinton Foster. Defendant Roche appeals from an order denying liis motion to vacate a deed made by the referee in the suit, and to compel the purchaser to return such deed.

Action by Bichard J. Morrison, administrator of Harry 0. Logan, deceased, against Dominique F. Yerdenal upon the following note. “New York, March 18,1886. On demand after date I promise to pay to the order of Harry C. Logan, four thousand eighty-two 50-100 dollars. Yalue received. D. F. Yerdenal.” Plaintiff obtained judgment. Defendant appeals.

<p>Appeal from special-term.</p> <p>Action by the Congregation Kol Israel Auschi Poland against the mayor, aldermen, and commonalty of the city of Hew York, to vacate assessments for annual taxes for the years 1881, 1882, 1883, 1884, and 1885, upon the property known as Ho. 80 Eorsyth street, in the city of Hew York. Plaintiff appeals from a judgment dismissing its complaint.</p>

Action by Louis Hordlinger against Adolph Anderson, Charles A. Muns, Clinton S. Harris, and Charles Muns, to set aside an assignment for the benefit of creditors, made by Adolph Anderson and Charles A. Muns, as copartners, to defendant Harris, in which assignment Charles Muns, father of Charles A. Muns, was a preferred creditor.

<p>Appeal from circuit court, New York county.</p> <p>Action by Holmes, Booth & Haydens, a corporation, against Samuel H. Willard. Plaintiff appeals from a judgment dismissing its complaint.</p>

<p>«Charities—Bequest to College—Construction of Statute.</p> <p>Laws Ñ. Y. 1853, c. 184, § 10, which provides that every institution incorporated thereunder shall he subject to the restrictions of Rev. St. N. Y. pt. 1, c. IS, does not subject such institutions to the provisions of Laws N. Y. 1848, c. 319, which renders invalid bequests to charitable institutions under a will made within two months of ■testator’s death, since the last-named act was not originally part of said chapter 18, though it was included in it in a private compilation of statute law known as ■“Revised Statutes New York, 4th edition, ” which compilation was in existence when the act of 1853 was passed, and had official recognition by certificate of the secretary of state.</p>

In this action of Jessie Watson against E. Frank Coe, and three other actions of a similar nature, the plaintiffs appeal from an order staying the proceedings therein.

Action by Carrie E. Goodheart against Charles P. Latting and Charles D. Ingersoll, as commissioners for lending certain money of the United States. Defendants appeal from an order continuing an injunction.

<p>1. Pleading—Equitable Defense—Separate Action.</p> <p>Under the Code system, where defendant may set up all the defenses, legal or equitable, which he may have to an action, he cannot maintain a separate action, based on an equitable defense, to enjoin the first action.</p> <p>"2. Same.</p> <p>Defendant having answered the complaint in the first action, it is immaterial whether or not under the issue thus made the equitable defense sought to be enforced by injunction can be determined. It is defendant’s own fault if his pleading does not cover his case.</p> <p>’3. Same—Multiplicity of Suits.</p> <p>After a defendant has allowed a number of actions against him to go to issue and to be ready for triqfi, it is too late to maintain a separate action to establish his defenses to those actions on the ground of preventing a multiplicity of suits.</p>

<p>1. Marine Insurance—Seaworthiness.</p> <p>Where a river steamer is insured for an ocean voyage, failure to strengthen the-vessel so as to render her as seaworthy as a vessel of that class could reasonably he made is a breach of the implied warranty of seaworthiness, and avoids the policy.</p> <p>2. Same—Evidence.</p> <p>In an action on such a policy, where the evidence merely shows that the vessel is-staunch for smooth-water navigation, there is no question for the jury, and a judgment for plaintiff must be reversed.</p>

<p>Appeal from special term, New York county.</p>

This was an action for damages for personal injuries, brought by Elizabeth Fisher against William Rankin. The complaint was as follows: “The complaint of the plaintiff respectfully shows: (1) On information and belief, that the defendant was at the times hereinafter mentioned in possession, had control, and was the owner, of the building and premises known as Yo. 455 West Forty-Eighth street, in the city of Yew York, which building was in the course of erection.

<p>Appeal from special term, Yew York county.</p>

The National Park Bank of New York, a creditor of Emanuel Salomon and Henry Adler, moved to vacate a judgment confessed by them in favor of Gustav Salomon and Solomon Salomon, and the execution issued thereon. The motion was denied, and the bank appeals.

Accounting of Samuel D. Babcock and Joel Burke Wolfe, surviving trustees under the last will and testament of Joel Wolfe, deceased.

<p>Appeal from surrogate’s court, Hew York county.</p>

Action by Martha E. Fitton against the Brooklyn City Railroad Company for damages for personal injuries. Defendant appeals from a judgment entered on verdict in favor of plaintiff, and from the order denying its motion for a new trial. The testimony at folios 34, 37-42, and 44-47, referred to in the opinion, was to the effect that plaintiff had since the accident suffered from fainting spells, and pains, etc., and experienced difficulty in eating, walking, or riding on cars.

<p>Courts—Jurisdiction—Local Courts.</p> <p>Const. 3ST.Y. art 6, § 19, providing for the establishment of “inferior local courts, ” limits the jurisdiction of such courts to the locality for which they are established, and an act authorizing the service, beyond the limits of the city of Yonkers, of summons from the city court of Yonkers, an “inferior local court, ” established in pursuance of the constitutional provision, is void.</p>

<p>On settlement of the decree in the accounting of David Lichtenkein, assignee of Lee A. Tuller.</p>

<p>Cobpobatiors—Actions bt.</p> <p>The president of a corporation, who is also a trustee, may .authorize and maintain an action for an accounting and an injunction in the name of the corporation, without the authority of the hoard of trustees, or against its express direction, where a majority of the directors or trustees have wrongfully converted corporate funds, and threaten to convert others, and where the neglect of the hoard of trustees to sue, and its resolution to discontinue the suit already commenced, are simply acts in furtherance of the unlawful design of such majority.</p>

<p>1. Corporations—Stockholders—Evidence.</p> <p>In an action to enjoin defendants from selling or voting on certain shares of stock in a corporation, plaintiff alleged that such stock belonged to her. It appeared that the corporation was organized to manufacture certain articles in accordance with formulas owned solely by plaintiff, and all the shares of stock were issued to plaintiff, who was made president, and plaintiff testified that she transferred a part of the stock to defendant S., as collateral security for a loan of money to be used in the business.' S. testified that the stock was transferred to him absolutely, in consideration of his services as director and manager of the corporation, and in procuring money to carry on the business. S.’s son testified that plaintiff had delivered the shares of stock to him, with instructions to give them to his father in consideration of services to be rendered by the latter, and two other witnesses testified that immediately on the organization of the corporation plaintiff affirmed that the specified amount of stock “belonged” to S. Plaintiff denied the statement of S. ’s son, and denied other admissions testified to by defendants’ witnesses. The statements of S. and his son as to the amount of the stock transferred to him differed from the amount named in the certificate. On a former suit against the corporation, S. had testified that he was not a stockholder, and had no financial interest in the corporation, but he testified on this trial that when he so swore he had pledged his stock. S. had fraudulently obtained entrance to plaintiff’s house during her absence, and carried away some of her private papers, which he did not produce, simply denying that he took the papers as alleged by plaintiff. Plaintiff’s physician testified that he allowed S. to examine plaintiff’s papers in his possession, on S.’s producing a written order purporting to be signed by plaintiff, but which plaintiff testified she had not given. S. did not deny that he'inspected the papers, but denied that he produced the order. Held, that the weight of evidence was that plaintiff owned the shares of stock, and had transferred them to S. in pledge.</p> <p>2. Same—Injunction.</p> <p>It appeared that the stock of the corporation, while very valuable, had no market value, as it had not been sold in the market. Including the stock pledged to S., 498 shares, plaintiff owned 968 shares out of a total of 1,000. S. had transferred the 498 shares to his son’s wife, who was plaintiff’s daughter, and by this means plaintiff was excluded from the management of the business. -There was proof that S. and his son, who had control of the business, and who were parties defendant, had conspired to keep plaintiff out of the country, and away from her business, by sending her false telegrams, and suppressing genuine telegrams to her, by reporting that she was insane, and by abstracting papers, etc. Held, that an injunction would be granted and a receiver pendente Wte appointed. •</p> <p>3. Same—Parties.</p> <p>The son’s wife, who holds the 498 shares of stock in her own name, will be included in the injunction, though she was not served with summons and complaint, nor with the injunction and motion papers.</p>

<p>Appeal from city court, general term.</p> <p>Action by George F. Vietor and others against Louis F. Stroock, as survivor of the firm of S. Stroock & Co., for goods sold and delivered. From an order entered at general term of the city court, affirming a judgment in favor of plaintiffs, and an order denying defendant’s motion for a new trial, defendant appeals.</p>

<p>Appeal from trial term.</p> <p>Action by Bannert Lewis against Bernhard Kahn and Martin F. Philbin for false imprisonment. The defendant Kahn kept a tailor-shop and store two ■doors from the plaintiff, and did the work for the police officers in that precinct. Something was thrown at Kahn’s window, and broke a pane of glass, whereupon he came out and rushed over to plaintiff’s, and grabbed hold of ■one of plaintiff’s workmen, who was outside the entrance carrying in some of the goods preparatory to closing the store, and claimed that he threw the stone. The workman released himself, and Kahn went away and presently returned with two policemen, (one of whom is the defendant Philbin.) The police officers entered the building to arrest the workman, but failed to find him. Thereupon Kahn stated that he held the plaintiff responsible, and directed the policemen to arrest him. An altercation ensued, and plaintiff was arrested on a charge of. disorderly conduct. Defendants appeal from a judgment entered on a verdict for the plaintiff, and an order denying their motion for a new trial.</p>

<p>Negotiable Instbuments—Consideration—Acceptance oe Other Bills.</p> <p>It appeared that the drawers of hills of exchange owed plaintiffs, to whom the bills were payable, more than the amount of the bills, and that drawee, who accepted them, was indebted to the drawer. When the drawer sent the bills to plaintiffs he notified them that he had drawn on them in favor of one S. for a like amount. Held, that there was nothing to show that the consideration of the bills payable to plaintiffs was the acceptance of the bills drawn on them.</p>

On motion by defendants, the mayor, aldermen, and commonalty of the city of Hew York, to amend a judgment so far as it affects said defendant, or to open the same and let said defendant into a defense.

This is an appeal from an order permitting defendant to serve a supplemental answer setting up the result of another action. Code Civil Proe. Y. Y. § 544, authorizes the court, on such terms as may be just, to permit supplemental pleadings alleging supplemental facts which occurred after the former pleadings, including the judgment of a competent court, rendered after the commencement of the action, etc.

<p>Appeal from special term, Yew York county.</p> <p>For statement of facts, see Williams v. Hays, ante, 666.</p>

Action by David W. Bruce and others, trustees, against Uriah Welch, for rent. Defendant filed a counter-claim for breach of a covenant in the lease by which plaintiffs were bound to permit the removal of certain mantels and grates. There was a judgment for plaintiffs, which was reversed on appeal. 43 Hun, 640, mem. On the second trial there was a verdict and judgment for plaintiffs for $963.30, and defendant again appeals.

Action by Amalia Citroen and Hathan Kauffmann against Thomas Adam, sued as John Doe and Richard Roe, trading under the firm name of Thomas-Green. The complaint was dismissed, and plaintiffs appeal.

<p>Execution—Against the Pebson—Vacation.</p> <p>Execution against defendant’s property on a judgment entered on June 14th was returned 60 days later unsatisfied. No order of arrest was granted in the action. On the following February 14th a transcript of the judgment was filed in another county and execution issued against defendant’s person. Held, that the body execution should be vacated under Code Civil Proc. N. Y. § 572, providing that unless defendant is charged in execution within ten days after the return of execution against the property, or within three months after the entry of judgment, an execution against the person shall be vacated, unless reasonable cause is shown to the contrary.</p>

<p>Municipal Corporations—Control op Streets—Awnings.</p> <p>An awning erected over and upon a sidewalk in a public street in the city of New York, whether erected by or without the permission of the city, is a public nuisance, which the authorities may abate.</p>

Action by William Harrigan against the city of Brooklyn for damages for personal injuries, alleged to have been caused by defendant’s negligence. Defendant demurred on the ground that there was no allegation in the complaint that plaintiff had presented his claim to the city comptroller, as required by Laws 1888. c. 583. The demurrer was overruled, and defendant appeals.

Action by Henry McCarthy against Mary Crowley. The action was brought in justice’s court, and on the return-day of the summons the defendant was present, and asked for an adjournment while her son went out to find an attorney, but before he returned judgment was given for plaintiff. In her notice of appeal to the county court the defendant by mistake asked for a new trial, when she was not entitled to it, and asked for leave to amend the notice.

This is. an appeal by the Sisters of the Poor of St. Francis, a charitable corporation, from a decree in the matter of the -probate of the will of Benjamin A. Kavanagh, deceased. The decree declares void a legacy to said corporation.

Action by Catherine McCabe against George J. Kenney for the specific enforcement of a contract for the purchase of real property. The defense was that plaintiff did not have a marketable title. .Defendant appeals from a decree of specific performance. Const.

<p>Judgment—Confession—Validity—Reference—Receiver.</p> <p>Where a client confesses judgment for §2,500 in favor of Ms attorney for professional services, and the confession in attempting to show that the sum confessed is justly due, as required by Code Civil Proo. N. Y. § 1274, subd. 2, merely states that the attorney had charge of the client’s legal affairs, and rendered services of the reasonable value of §2,500, the receiver of the client, appointed at the suit of a judgment creditor, is entitled, on motion, to a reference to inquire into the justness of the attorney’s bill, and reduce the judgment, if there has been an overcharge.</p>

Action by James J. Neal is, as receiver of the firm of Stransky, Reiman & Aarons, against Salem Lissner and Michael Levenson. Defendants appeal from an order denying their motion to strike out the allegations of fraud in the complaint, and to compel plaintiff to elect as to his cause of action.

<p>Negligence—Dangerous Premises—Evidence.</p> <p>In an action by a passenger against a railroad company for personal injuries, evidence showing that plaintiffs inj uries- were caused by his slipping on defendant’s platform on alighting from a train, that when the accident occurred snow and sleet were falling, and the platform where he was compelled to alight was slippery from ice or snow; that on the preceding day considerable snow had fallen, and that, though an attempt had been made to remove the snow from ■ the platform, no sand or ashes had been sprinkled oyer it,—establishes a prima fade case of negligence against the company, and justifies a verdict for plaintiff</p>

.Action for false arrest and imprisonment by George F. Fitzpatrick against the Hew York & Manhattan Beach Railway Company. The evidence showed that plaintiff and his brother, while in a building at Manhattan Beach owned by defendant, were arrested on a charge of larceny. Plaintiff’s brother testified as to the arrest, and stated, over defendant’s objection, that he was at that time a very sick man.

Action by Charles G. Martin and William 0. Martin against Hattie W. Bliss. Defendant appeals from a judgment recovered on a verdict and from an order denying her motion, made on the minutes, for a new trial..

<p>Appeal from circuit court, Mew York county.</p> <p>Action by William Melson against the mayor, aldermen, and commonalty of the city of Mew York. Defendant obtained judgment. Plaintiff appeals.</p>

Action by Frederick Almy, Otto F. Van Arnim, and Theodore Lamsom against Miehaelis Simonson and Theodore Weiss for breach of contract for the purchase of merchandise. Plaintiffs obtained judgment. Defendants appeal from the judgment and from an order denying their motion for a new trial.

Action by Morris Saffer against the Dry-Dock, East Broadway & Battery Railroad Company, for personal injury received by plaintiff on alighting from one of defendant’s horse-cars. Plaintiff obtained judgment. Defendant appeals from the judgment and from the order denying its motion for a new trial.

This is a proceeding supplementary to execution in the action of T. Bussell Dawson against Isaac Sickle. Herman Cantor, a witness, appeals from an order adjudging him guilty of contempt for refusing to answer certain questions.

<p>Municipal Corporations—Assessments—Rights op Owners.</p> <p>Where land sold for a city special assessment for local improvements is redeemed by the owner, and afterwards the assessment is reduced at bis suit, the city is not liable to such owner for that part of the redemption money paid over by it to the purchaser for interest and expenses, as required by Laws Ñ. Y. 1871, c. 381, § 4, such redemption and payment having been made while the assessment remained in full force. Brady, J., dissenting.</p>

Action by William S. Wright as administrator, etc., of Florence M. Wright,, deceased, against the Third Avenue Railway Company, to recover damages for the negligent killing of plaintiff’s intestate. Defendant appeals from a. judgment entered on verdict for plaintiff, and order denying its motion for a new trial.

Action by Michael Meehan against William B. Morewood, as survivor, etc.,, for damages for injuries sustained. Plaintiff appeals from a judgment entered upon a dismissal of the complaint at circuit, at the close of plaintiff’s, case.

Certiorari on the relation of George Washburn against Stephen B. French and others, constituting the board of police commissioners of the city of Hew York, to review proceedings of the board in retiring relator from service and placing him on the pension roll.

Action by Horace H. Chittenden, as assignee of A. S. Hatch & Co., against. Charles 0. Morris, the Farmers’ Loan & Trust Company, and others, to recover the amount of a deposit. The complaint was dismissed at the trial, and plaintiff appeals.

Action by Drank P. Crasto against Richard White for commissions in procuring a loan on defendant’s real estate, and services in perfecting defendant’s title thereto. Plaintiff appeals from an interlocutory judgment and order .overruling his demurrer to the. fourth defense in defendant’s answer. Por prior report, see 3 N. Y. Supp. 682.

Action by Esther Farr, as administratrix, etc., of Asa Farr, deceased, against Charles Morrill, to compel an accounting. Defendant appeals from judgment directing such accounting.

Action by Warren Chapin against James M. Fitzgerald, for the conversion of a quantity of blank books.

<p>At chambers. Habeas corpus to review an order committing the relator, John H. Post, for contempt. For opinions on appeals from former orders, see 3 F". Y. Supp. 142, 144,</p>

At chambers. On motion to continue injunction. Action by Robert 3?.

<p>Association—Members and Oeeicers—Uniting with Similar Association.</p> <p>The fact that officers and members of an unincorporated association, as individuals, unite with an association of a similar character does not vacate their offices or forfeit their membership in the former association, in the absence of a provision in its constitution forbidding them to unite with the second association, and the fact that the constitution or rules of the second association forbids its members to become or continue members of any other local organization does not affect their relations to the first association.</p>

Action by Philo S. Mills and others against J. Poster Parkhurst and Henry-W. Perine, to set aside as in fraud of creditors an assignment made by Perine to Parkhurst. The matter was referred, and comes up on the report of the-referee and exceptions thereto.

<p>At chambers. On motion to modify judgment.</p> <p>Hiram Benner died in 1876, leaving a will, of which Mary S. Benner became executrix and Frank M. Bonta executor. An action was instituted by Frances IT. Duclos and Charles H. Benner against the personal representatives, devisees, and legatees to obtain a construction of said will. Judgment was rendered therein, which allowed any of the parties to apply for further relief as occasion might require. After the judgment was rendered one of the legatees died, and thereupon certain questions as to the effect of clauses of said will not touched or decided by the judgment mentioned, arose, the nature o’f which appears in the opinion. The clauses of the will referred to in the opinion, by which the shares of the residuary estate are given to testator’s children, are all substantially alike, and one of them is as follows: “To pay the income of one-sixth of the principal thereof to my son Charles H. Benner, half yearly during his natural life, and upon his death to divide the said one-sixth share among his lawful issue him surviving per stirpes, and not per capita.” To obtain a further construction of the will plaintiffs filed this petition.</p>

<p>■ Action, by James S. Havens, receiver of David Selling, against Julia A. Extein and others, to set aside as fraudulent an assignment of certain goods.</p>

<p>Wills—Actions to Construe—Former Action Pending.</p> <p>An action by the executor to construe a will as to the rights of certain legatees to take under it should be dismissed where it appears that a proceeding is pending before surrogate, instituted by one of said legatees, to require a judicial accounting by the executor, in which ail the parties interested have been cited, and that the same issues raised by the action could he determined by the surrogate in the proceeding mentioned.</p>

Action by Wells Paine against Jeremiah W. Chandler to compel defendant to restore a stream of water flowing from defendant’s premises upon the premises of plaintiff, and to restrain further interference with it.

Action for foreclosure of a mortgage. On November 1, 1878, the defendant Joseph M. Paul and the plaintiff, Delia M. Paul, who is his wife, executed and delivered to Jonathan E. Bob inson, cashier of the Eirst National Bank of Attica, a mortgage upon the premises described in the complaint, which mortgage was recorded in the clerk’s office of Livingston county December 30, 1885, and is still a subsisting lien upon the premises therein described.

<p>Action by Herman Koehler against the Farmers’ & Drovers’ National Bank and others.</p>

<p>At chambers. On motion to vacate an order of arrest.</p> <p>Action by Samuel T. Wilbur and Samuel Orr against John H. Allen, doing business as the Equitable Stock, Grain & Oil Company.</p>

At chambers. Motion to confirm referee’s report. Action by Benjamin Hulse and others against Samuel Hulse and another for the partition of land.

On motion for final judgment on referee’s report after interlocutory judgment. Action by John Stephenson and others against Margaret Cotter and others for partition of premises, late the property of Arthur Stephenson, who died April 23, 1877.

The action is against the defendant, Parker, as the indorser of a promissory note, in these words: “$1,000. New York, Jan’y 19, 1887. On demand, afterdate, we promise to pay to the order of estate of Wm. N. Beach, one thousand dollars at American Exchange National Bank, N. Y., value received, with interest until paid. The Ivanhoe Paper Co. S. Webber Parker, Treas. Indorsers: S. Webber Parker.

Suit by Philipina Arras and others, executors of John Arras, deceased, against George H. Richardson, as surety on a lease. From a judgment entered on a verdict directed in favor of plaintiffs, defendant appeals.

<p>Witness—Competency—Infant.</p> <p>A witness only seven or eight years old, who understands that she will be pun ished if she tells an untruth, is competent.</p>

<p>Appeal from trial term.</p> <p>Action by Frederick Bischoff against Michael Schulz. The question at folio 123, referred to in the opinion, was as follows: “ Question. Don’t you know how a foundered horse acts? (Objected to; objection overruled; exception.) Answer. Yes, sir; I have seen many a horse that had been foundered,—yes.” At folio 125, the witness testified: “I have had considerable experience in buying and selling horses. I know something about their value.” At folio 130, witness was asked how much, in his opinion, the horse had depreciated in value by reason of his being foundered. «</p>

<p>Municipal Cokpobations—Actions—Notice of Claim.</p> <p>Laws N. Y. 1886, c. 563, §§ 1, 3, which provide that claims against the city of Brooklyn must he presented in detail, verified by the claimant, to the comptroller, for adjustment, else an action thereon cannot be maintained, do not apply to actions for torts.</p>

<p>Appeal from special term.</p> <p>Action by Alvan R. Johnson against Patrick Sheridan. Plaintiff appeals from an order dissolving an injunction.</p>

Action by Michael Kossmann against Louis Stutz for personal injuries. The complaint was dismissed at the trial, and plaintiff appeals.

<p>1. Deed—Description.</p> <p>Certain property in B. was properly described as “beginning at the north-westerly side of D. street. ” A deed, under a foreclosure in the chain of title, described it as “beginning at a point on the north-easterly side of D. street. ” There was no “north-easterly side ” to D. street. Held, that as, by striking out the erroneous portion of the deed, enough remained to enable the land intended to be conveyed to be located, the deed sufficiently described the land.</p> <p>2. Mortgages—Foreclosure.</p> <p>The foreclosure proceedings, and the notice of Ms pendens filed thereunder, were valid, although the same erroneous description was contained in each.</p>

Conrad Stubing sued John Stubing and Annie Stubing, to have a certain deed declared void and canceled of record. Judgment for plaintiff, and defendants appeal.

<p>1. Street Bailroaes—Negligence—Province op Jury.</p> <p>Plaintiff’s intestate, a boy 10 years old, attempted to cross the street obliquely in front of a moving street-car. When within about two feet of the horses’ heads he fell, and was run over by the car, and killed. One witness testified that the boy started to cross the street at a point about 25 feet in front of the car. Another saw him fall about two feet in front of the horses. The distance from the horses’ heads to the front wheel of the car was about 19 feet, and experts testified that a car going at the rate this one was could be stopped within a distance of from 6 to 12 feet. A passenger testified that the car was stopped suddenly, and with a jerk. The driver testified that he did all he could to prevent the accident. Held, that the questions of negligence and contributory negligence were properly submitted to the jury.</p> <p>2. Jury—Challenges—Waiver.</p> <p>After 12 jurors had taken their seats, but before they were sworn, plaintiff’s attorney examined them, and stated that he was content with the jury “as then constituted. ” The defendant then peremptorily challenged two jurors, whose places were supplied. Held, that plaintiff’s attorney had not waived his right to then challenge peremptorily one of the original panel.</p>

<p>Appeal from special term.</p>

<p>On exceptions from trial term.</p>

In an action on a bond and .mortgage brought by Lewis M. Teel against Abraham Yost, defendant moves to compel the plaintiff to furnish security for costs under Code Civil Proc. H. Y. § 3268, providing that defendant, in an action brought in a court of record, may require security for costs, where the plaintiff was, when the action was commenced, a person residing without the state.

<p>Contracts—Validity.</p> <p>G\, a party to an alleged contract, testified that he did not remember making it; that the signature did not seem to be his; that he remembered taking several drinks with the other party to the contract, who afterwards showed him the agreement, which, it appeared, G. never mentioned to his partner, who was interested in it. Held, that a finding by the trial court that the contract was invalid would not be disturbed.</p>

<p>Pleading—Answer—Amendment.</p> <p>Where defendant, in an action for labor and material furnished, denies any employment of plaintiff, an amendment of the answer at the trial by setting up a new defense of another action pending, is in the discretion of the trial court, and its refusal is not error.</p>

At chambers. On demurrer to complaint. Action by Lorenzo D. Chilson against Henry Howe and Thomas Morrison, ■on an undertaking given upon an appeal taken from a judgment in favor of said Chilson and against Chauncey E. Huggans.

Action by Edward. Kilpatrick against Mary E. Barron, to recover a deposit under a contract for the purchase of land, together with the expense of searching title.

At chambers. Special proceeding by Thomas F. Gilroy against D.Lowber Smith, commissioner of public works, to require him to surrender the books and papers in his custody as such officer to the plaintiff, who had been appointed his successor.

<p>At chambers. Motion to vacate an order of publication heretofore granted in an action by Christian Von Hess, as executor, against Levi P. Morton and others.</p>

Defendant Corwith having brought an action against the Delaware, Lackawanna & Western Railroad Company for the conversion of certain lead, and it appearing that there were other claimants of the lead, the company brought an action to compel the several claimants to interplead.

<p>Creditors’ bill. On demurrer to complaint.</p>

This was an action to foreclose a mortgage. At the sale on March 20, I88S, one George E. Johnson bid in the premises at $45,000, in the name of Thomas P. Meyer, signed Meyer’s name to the terms of sale, and paid $1,000 deposit, as required by the terms of sale.

Action by the Third national Bank of Buffalo against Luden T. Cornes and another. Defendants move to confirm the report of the referee after an interlocutory judgment.

<p>Negligence—Evidence—Province of Jury.</p> <p>Plaintiff, while in defendant’s employ, was injured by the fall of a box upon his head. It appeared that the box, which was used to catch oil dripping from defendant’s machinery, was fastened to a beam partly with nails and partly with a twine string. The box had been in the place from which it fell for several months. Held, that the question of defendant’s negligence was for the jury.</p>

<p>1. ■ Negligence—Defective Appliances—Evidence.</p> <p>Plaintiff, while endeavoring to uncouple a train consisting of eight loaded cars and four empty ones, which, was slowly moving backward to release the pressure on the coupling pins, was thrown down, and a wheel passed over his leg. He contended that the accident was caused by defects in the engine, which prevented the engineer from stopping the train immediately upon his call. There was evidence that steam leaked through the throttle-valve; that, on one occasion, enough steam leaked through, in 10 or 15 minutes, to move the engine, with nothing attached, 4 or 5 lengths; and in 4 or 5 minutes, on another occasion, to move it 20 feet. The fireman, who was sworn for plaintiff, testified that the train did not move more than 5 feet after plaintiff called. The engineer and two other employés of defendant were present, hut they were not called' as witnesses. Held insufficient evidence to justify a finding that the accident was caused by defects in the engine.</p> <p>2. Same—Conteibutokt Negligence.</p> <p>There were present and unemployed at the time of the accident, a switchman and a coupler, subject to the orders of plaintiff, who was yard-master, and who had control of the movement of the train. Held, that plaintiff was negligent in attempting to uncouple the cars while moving; and especially in not placing one of the other employés where he could have immediately communicated plaintiff’s signals to the engineer while in the dangerous position.</p>

<p>Appeal from special term, Onondaga county.</p> <p>Action by Michael Mosner against the Borne, Watertown & Ogdensburg Railroad Company for damages and for an injunction. Defendant appeals.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Stephen M. Chester against Francois Henry Jumel and others. The facts are fully stated in the opinion.</p>

<p>Courts—Jurisdiction.</p> <p>After a suit had been brought by one claiming under an attorney’s contract for an interest in property recovered for his clients, for the purpose of having the rights of plaintiff and others under such contract ascertained, and paid out of the property, another action was brought by some of the clients, and a judgment obtained directing a sale and distribution of the property. Held, that the latter suit did not affect the court’s jurisdiction of the former.</p>

This is an appeal by Frances A. Gesner from the judgment the provisions of which are stated in the preceding opinion, ante, 809.

This is an appeal by John Elliott, trustee, from the judgment the provisions of which are stated in the preceding opinion, ante, 8Ó9.

This is an appeal by defendants to vacate the judgment in this action entered on report of a referee. For a statement of the facts, see ante, 809.

At,chambers. On motion to vacate attachment. The affidavit upon which the attachment herein was granted is, so far as material, as follows: “And deponent further says that the defendant, the Bushwick Chemical Works, has disposed of its property with intent to defraud its creditors and the plaintiff, and that the judgment hereinafter mentioned, obtained by the Buffalo Chemical Works against the defendant, the Bushwick Chemical Works, was so obtained and recovered by fraud and…

<p>Action by Henry M. Peyser against William M. Halsted and others.</p>

At chambers. Motion to vacate an attachment. Action by Ralph S. Hamilton and Ralph S. Hamilton, Jr., against Frederick D. Steck, William H. Payne, and George Brown, (George Brown was a fictitious name, the defendant’s name being unknown.) The plaintiffs having obtained a warrant of attachment against some of the property of William tí.

Action by Carrie Weil, an infant, by guardian, against the Dry-Dock, East Broadway & Battery Raiload Company, for personal injuries. The complaint was dismissed, and plaintiff appeals.

James Denair sued the city of Brooklyn for damages for injuries received. From an order dismissing the suit plaintiff appeals.

<p>Appeal from jury term.</p> <p>Action by Henry Lissa and others against Emil Goodkind and others. Verdict and judgment for defendants, and plaintiffs appeal.</p>

<p>Insurance—Mutual—Action on Poliot.</p> <p>An action may be maintained on a policy by which the company has undertaken to pay a fixed sum from the “death fund, ” or from moneys realized to such fund from “mortuary assessments” on all the members, though no such assessment has been made. The omission of the company to make it, where it is shown that there is a sufficient number of members to yield an assessment sufficient to pay the claim, creates an obligation, the same as if the fund were on hand from which to pay the amount of the policy, as, in the absence of proof to the contrary, it will be presumed that the assessment would have realized the full amount.</p>

<p>1. Contracts—Buildino Contracts—Defective Plans.</p> <p>The fact that a chimney designed by plaintiffs, as architects of defendant’s house, proved inadequate for the purpose, entitles defendant to a deduction of the damages caused thereby from the amount due under the contract for drawing the plans and superintending the construction of the house; but such defect cannot be urged to defeat all recovery on the contract, the same having been performed according to its terms.</p> <p>2. Same—Duties of Architect.</p> <p>An architect is bound only to exercise reasonable care, and to use reasonable means of observation and detection, in the supervision of the building; and, where he appears to have done so, the mere fact that inferior material has been used by the contractor in some instances, and that the plumbing has been carelessly done, does not establish as matter of law that he has not fully performed his contract.</p>

The will of George A. Bartholiek was presented for probate by Charles Flaherty, the executor therein named, and contested by Luisita B. Kirley, testator’s grandniece.

<p>On application for the probate of the alleged will of Sarah Pendleton, deceased.</p>

Code Civil Proe. Y. Y. § 2743, which provides for a decree for payment of claims and distribution of shares after the accounts of a personal representative have been allowed, prescribes that if a claim is not disputed, or if its validity has been established, the decree shall determine the amount of it, and to whom it is payable.

Habeas corpus. This case comes before the court on an application of the relator, Frank W. Sabold, by habeas corpus, who is in custody of the defendant under a warrant issued by the speaker of the assembly, by order of the house. The petition of the relator, and the return of the defendant thereto, discloses the undisputed facts upon which the legal questions involved in this application arise.

Action by B. E. Martin, administrator of H. A. Martin, deceased, against S. 0. Platt and N. C. Platt was tried in November, 1887, and a judgment rendered for plaintiff. Thirty days, expiring December 15,1887, were granted defendants to make a case, which was made and afterwards settled and filed April 11, 1888.

Appeal by William Simpson, Jr., and John V. Simpson, Jr., executors of William Simpson, deceased, from an order confirming a referee’s report in the matter of the final accounting of said William Simpson as executor of Walter Stevenson, deceased.

Action by Sigmund Rothschild and others, creditors of Emanuel Salomon and Henry Adler, partners, trading as M. & E. Salomon, to set aside an assignment made for the benefit of creditors to defendant Gustav Salomon. The assignment was made and recorded January 23, 1888, and conveys all the property of the firm, which was inventoried at the sum of $279,554.16, but which was found to be worth in fact but $204,749.71. The liabilities amounted to $499,322.18.

Case submitted on agreed statement. The guaranty in question was given to plaintiff's intestate, John A. Kernochan, on the sale of stock to him by defendants’ testator, and was to the effect that he should receive certain dividends on the stock so long as he held it.

<p>Certiorari to the board of parks in the city of New York.</p> <p>The people of the state of New York, on the relation of Francis P. McClory, brought certiorari against J. Hampden Robb, Waldo Hutchins, M. C. D. Borden, and Stevenson Towle, composing the board of parks in the city of New York, to review their dismissal of relator from the park police.</p>

<p>1. Specific Performance—Evidence.</p> <p>In an action to enforce specifically a contract of exchange, evidence of a conversation between defendant’s agent, who negotiated the contract, and a proposed purchaser of one of the houses which plaintiff was to convey to defendant, is competent to show the circumstances under which a contract with such purchaser was induced, as inducing defendant to contract with plaintiff, though the latter was not present when the conversation occurred.</p> <p>2. Same.</p> <p>Evidence of a conversation between defendant and her agent, who negotiated the contract, is competent to show what was stated to her to induce her to sign the contract, and her instructions concerning its delivery.</p> <p>8. Same.</p> <p>Evidence is admissible on behalf of defendant as to the cost of plaintiff’s houses, and the rent they produced, as bearing on the question as to whether the contract was unconscionable.</p> <p>4. Sufficiency of Evidence.</p> <p>Where defendant’s agent testifies that he told a third person that he declined an offer for an even exchange of the property, and it appears that the third person was entitled to act as plaintiff’s agent, a finding that defendant’s agent declined such an offer is warranted.</p> <p>5. Same.</p> <p>A finding that plaintiff had a desk with a certain firm is warranted when a member of the firm testifies to that fact, and it appears that plaintiff had a sign at the firm’s office.</p> <p>6. Harmless Error.</p> <p>The admission of immaterial evidence which is harmless is not ground for new trial.</p>

<p>Partition—Authority of Commissioners.</p> <p>Commissioners in partition have no authority to direct the partial destruction of a building on the property in order to effect an equal division.</p>

<p>On motion by plaintiff to continue a temporary injunction in an action by George F. Comstock against the mayor and common council of the city of Syracuse, the canal board of the state, and others.</p>

<p>Appeal from special term, Hew York county</p>

<p>Action by Ella J. Eilson against George Crawford, and Philip Hauseman, to restrain a nuisance.</p>

<p>1. Rape—Evidence.</p> <p>Under Pen. Code N. Y. § 283, providing that no conviction can be had for rape or defilement on the testimony of the female defiled, unsupported by other evidence, where in addition to the testimony of prosecutrix, a child seven and one half years old, which is unsatisfactory, there is testimony that the day, after the alleged assault an examination of the prosecutrix’s person showed that an assault may have been committed, it is proper to submit the question of defendant’s guilt or innocence to the jury.</p> <p>2. Criminal Law—Partiality of Jury.</p> <p>An exclamation by a juror on the cross-examination of the prosecutrix, which is a reiteration in detail of the testimony given on the examination in chief as to the commission of the rape, that “we have heard enough now,” does not indicate prejudice against defendant.</p>

<p>Appeal from special term, New York county.</p> <p>Action by the Kokomo Straw Board Company against Horace Inman and another. Defendants appeal from an order denying a motion to vacate an attachment.</p>

New York county. Action by the Lamson Consolidated Store Service Company against John W. Hart, sheriff of Albany county, the United States Store Service Company, and Gilbert M. Speir, Jr., a resident of New York county, receiver of the last-named corporation, to restrain said Hart from selling property claimed by plaintiff, under an execution in favor of George C. JBliekensderfer, and against said corporation.

Action by Louis M. Cornish and another against Maurice S. Wormser, on a check for $5,000, made by defendant, payable to plaintiffs’ order. The answer admits the check, but sets up various counter-claims, etc. Defendant appeals from an order denying a motion for a discovery to enable him to furnish a bill of particulars.

Action by Edwin D. Washburne, administrator, etc., of Emily V. Washburne, deceased, against Benjamin C. Wetmore, administrator, etc., of William C. Wetmore, deceased, and George J. Maddox, individually and as administrator, etc., of Louise Maddox, deceased, to recover money deposited with William 0. Wetmore in his life-time by Louise Maddox, the mother of George J. Maddox and Emily V. Washburne. Judgment for plaintiff. Defendants appeal.

<p>Case submitted on agreed statement.</p>

Action by Polly Bogert against David J. Bogert, executor, etc., of John 0. Ackerson, deceased, and others, to partition real estate. A sale was made, at which Delaplaine Browne became the purchaser. Margaretta Haring became the assignee of the contract, and refused to comply with the terms of sale, alleging that the title was defective. Judgment against her, and she appeals.

Action by John Brown and others against Alice Brown and others for partition of land and an account of moneys advanced in the improvement thereof. On motion of defendants an order of reference was entered from which plaintiffs appeal.

Action by Benjamin Moore, trustee, etc., against Francis Higgins, to recover rent due by the latter, as receiver. Verdict directed for plaintiff, and judgment thereon, and defendant appeals.

Action by Theodore W. Bailey, Edward H. Bailey, and Howard H. Bailey against Arial A. Prince and Spencer A. Prince, for goods sold and delivered. Plaintiffs demanded the arrest of the defendants for fraud. Their arrest was ordered, and defendants appeal from an order denying their motion to vacate the order.

Action by Henry Behrman, surviving partner of Stege & Behrman, against Frederick 0. Linde and others, to recover damages for breach of a contract to store certain poultry. Verdict and judgment for plaintiff, and defendants appeal.

<p>Bernhard Laudenbaoh, on the 28th day of November, 1874, became a member of the Southern Tier Masonic Belief Association, and received a certificate thereof, by which his wife was entitled to receive $2,000 at his death. The by-laws of the corporation then provided that no change should be made in the beneficiary of the certificate unless the certificate was itself returned, with a request for such change duly acknowledged. In 1878 the by-laws were so amended that when for any cause such certificate could not be returned the board of directors might permit the change without the return. October 15, 1875, Laudenbach requested that the certificate should be so changed that Ignatz Thalheimer, to whom he was indebted, should receive $1,000 of the fund, it being intended to secure him his debt, but the certificate was not delivered up. A new certificate was issued April 7, 1884, by which it was provided that Henrietta Laudenbach, the wife of the insured, and the said Thalheimer, were to share the amount paid upon the certificate equally. Mrs. Laudenbach had no notice of the new designation, and paid the assessments for some time afterwards. Laudenbach had resided in the city of Rochester, in Monroe county, with his family, for nine years, when on the 27th day of December, 1875, he secretly left home, and went to Chicago, and never returned, his whereabouts being unknown to his wife. In April, 1876, she filed a petition in the county court of Monroe county, alleging that he was, and had been for some time, insane; and that she did not know where he was, but that he had property in said county. She prayed for the appointment of a commission de lunático inquirendo, to determine his mental condition. The commissioners were appointed, and it was directed that the inquisition be taken without notice to the alleged lunatic. The inquisition found him to have been insane on the 27th day of December, 1875, and for 40 days previously, and that he had no lucid intervals. The court confirmed the inquisition, and appointed a committee of Laudenbach’s person and estate, but the committee never qualified or acted. After Laudenbach left Hew York he went to Chicago, where he resided until 1884, being apparently of sound mind during all the time. In 1884 he became an inmate of the Sir Moses Montefiore ICesher Home for Aged and Infirm Israelites, an incorporated institution at Cleveland, Ohio, and on the 6th day of October of that year he made a new designation for the payment of the insurance money, whereupon the certificate of April, 1884, was delivered up, and a few days later a new certificate was issued, payable to Thalheimer, and the charitable institution last mentioned, in equal parts. Laudenbach died in 1887, and the fund due on his insurance was claimed by all the parties; Mrs. Laudenbach claiming the whole of it, and Thalheimer and the Kesher Home claiming half each. Thereupon the said relief association, being- in doubt as to the proper person to whom payment should be made, brought this action of interpleader against all of the claimants. Code Civil Proc. H. Y. § 2325, provides that notice of the filing of a petition for a commission de lunático shall be given to the husband or wife, or if none, to the other relatives of the alleged lunatic, unless for good cause appearing in the petition. When notice is required, it may be given in such manner as the court may deem proper.</p>

Action by Jacob W. Cornwell against William A. Parke, Isaac A. Singer, and John Dayton, for slander of title. On the trial the court dismissed plaintiff’s complaint, and gave judgment against him for costs, including an extra allowance of $2,000 for fees for defendants’ counsel. The complaint demanded judgment for $50,000. The trial occupied only one day. Plaintiff appeals.

Action by Watson A. Fox against Charles W. Brega and Edmund W, Syer. Plaintiff appeals from an order denying his motion that defendant Biega be required to produce and discover to plaintiff certain books and papers.

<p>Appeal from circuit court, New York county.</p> <p>Action by Adam Henderson, as administrator of Mary E. Henderson, deceased, against the Knickerbocker Ice Company. Plaintiff appeals from a judgment entered on dismissal of the complaint.</p>

<p>Appeal from circuit court, Hew York county.</p> <p>Action by James H. Fay, as assignee of Marshall, Lefferts & Co., against Hugh J. Grant, sheriff of Hew York county, and Lazarus Lissberger, and Bernard Shultz. Plaintiff obtained judgment. Defendants appeal.</p>

<p>1. Principal and Agent—Accounting—Burden of Proof.</p> <p>In an action by a principal against an agent for an accounting for goods consigned to the agent to be sold on commission, the agent set up the defense that he was obliged to contest a lawsuit on account of under-valuations on duties, which were fraudulently made by the principal, and he demanded the sums paid for settlement of that suit. The referee found that the goods were not under-valued. Held, that the burden was on the agent to show special authority from the principal to settle the suit, or authority from the nature of the agency, and if he failed to do this the sums should not be allowed.</p> <p>2. Same—Appeal—Harmless Error.</p> <p>The agent having been erroneously allowed by the referee one-half of the sum paid in settlement of the former suit, the judgment will not be reversed, on appeal of the agent, for much smaller errors in favor of the principal.</p> <p>3. Appeal—Review—Objections not Raised Below.</p> <p>A mistake in the amount allowed, appearing on the face of the judgment roll, must be corrected by motion, and not by appeal.</p>

<p>Appeal from jury term.</p>

Action by Peter McCarthy against Thomas H. and Oscar Thorn, to recover damages for personal injuries received while plaintiff was in defendants’ employ.

This is an appeal by defendant from the order of Mr. Justice Allen vacating an order of Mr. Chief Justice Larremore for plaintiff’s examination as a witness for defendant before trial, “concerning matters relevant to the issues in this action.” Plaintiff, Vincent A. Witcher, resides at Eiceville, Va., and the order for his examination was never served upon him.

<p>Mechanics’ Liens—Filing Lis Pendens.</p> <p>The mechanic’s lien act (Laws N.. Y. 1885, c. 342, § 6) provides that “no lien shall bind the property for a longer period than one year after the filing of notice of lien, unless within that time an action is commenced to enforce the same, and a notice of the pendency of such action is filed, ” etc.; also that, “when a claimant is made a party defendant to any action brought to enforce any other lien, such action shall be deemed an action to enforce the lien of such defendant. ” Held, that the filing of a lis pendens by the plaintiff is sufficient to preserve the liens of all the claimants who are made defendants.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by William Morgan against Catharine Taylor, to enforce a mechanic’s lien. Defendant Taylor appeals from a judgment entered in favor of lienors John J. Kierst and Kelly & Smith.</p>

<p>Petition to revoke probate.</p>

<p>Reference—Sending Back Report for Further Evidence.</p> <p>After a trial before a referee has been closed, his report delivered and on file in this court, and the time for appellant to file exceptions thereto has expired, the special term has no power to send back the report, for the purpose of taking further testimony and making additional findings.</p>

Action by Christian T. Christensen against the Illinois & St. Louis Bridge Company and Amos F. Eno. The complaint was dismissed upon the trial, and plaintiff appeals.

<p>Action by David H. Gould against George I. Seney and others.</p>

Action by Miguel Garcia, as executor of John Garcia, deceased, against Mary R. Callender, to compel the conveyance of land. The complaint was dismissed at the trial, and plaintiff appeals.

<p>1. Corporations—Sale op Stock of Another Company—Action for Price.</p> <p>It is no defense to a note given to a corporation for the price of stock of another company that the corporation had no right to acquire title to such stock.</p> <p>3. Sale—Action for Price—Tender of Thing Sold.</p> <p>Where a note is given for the price of stock, which is to he delivered to a third person on payment of the note, failure to tender the stock is no bar to an action on the note.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by the Holmes & Griggs Manufacturing Company against C. Livingston Morse. Plaintiff obtained judgment. Defendant appeals.</p>

Action to set aside deed on the ground of fraud, by Emil Neuberger and others against Henry G-. Keim and others.. Complaint dismissed on the merits,, and plaintiffs appeal.

Action by the people of the state of New York against the New York, New Haven & Hartford Railroad Company, to recover the penalty for the violation by defendant of the statute regulating the heating of steam passenger-cars. Defendant demurs to the complaint.

<p>Motion to dismiss for failure to prosecute appeal.</p>

<p>Appeal from judgmetit on report of referee.</p>

In the' matter of the application of Francis A. Williams, receiver of William H. Heath, to compel Edwin C. English, an attorney at law, to pay over to the receiver certain moneys in his hands alleged to belong to Heath. The receiver appeals from an order of the special term fixing the amount to be paid over by English at $235.73. '

This is an appeal by defendants from an order vacting an order for the examination before trial and before answer, of Gustav M. Miller and Bichard Schramm, who are not parties to the action.

A judgment for plaintiff at a trial term of the city court was affirmed on appeal to the general term of that court. An appeal was then taken to the general term of this court, where the judgment was again affirmed. 4 B. Y. Supp. 708. Defendants now move for leave to appeal to the court of appeals.

A judgment entered for plaintiff at trial term was reversed on appeal to the general term, (4 N. Y. Supp. 706,) and plaintiff now moves for leave to appeal to the court of appeals.

<p>Appeal from equity term.</p>

<p>Motion for reargument. See ante, 955, mem.</p>

<p>Motion to open a default taken at general term.</p>

<p>Appeal from judgment dismissing complaint entered upon the report of a referee.</p>

<p>For opinion on appeal, see ante, 837.</p>

Action to recover a sum of money which plaintiffs claimed defendant had received to the use of plaintiffs. The answer, besides containing a general denial, alleged that the money was paid by plaintiffs to defendant as the purchase price of certain notes made by one Meyers, which notes were then held by the defendant. Defendant appeals.