Volume 50 — New York Appellate Division Reports

<p>Appeal by the plaintiff, Daniel Y. Wilgus, from an order of the Supreme Court, made at the Niagara Trial Term and entered in the office of the clerk of the county of Niagara on the 19th day of September, 1899, denying his motion to strike out the defendant’s answer.</p>

Motion by the plaintiff, Charles Mnrr, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Erie Trial Term.

<p>Additional allowance — a decision that a common council has not power to arbitrarily set aside an awa/rd affords no basis therefor.</p> <p>Where the common council of the city of Rochester arbitrarily sets aside the report of commissioners appointed in a condemnation proceeding instituted by the city, and in an action brought against the city, by a person to whom the commissioners have made an award, the Court of Appeals decides that the power of the common council to set aside the report is judicial in its nature and cannot be exercised arbitrarily, the plaintiff in such action is not entitled to an extra allowance based on the amount of the award made to her, as the right of the common council to pass upon the report judicially is not affected by the decision.</p> <p>The possibility that a money value may incidentally accrue to the successful party from the determination, does not warrant the granting of an extra allowance.</p>

<p>Judicial interference with the act of a municipal corporation in granting a franchise— what charges of fraud and illegality are insufficient — the grant is the exercise of a police power.</p> <p>The courts are chary of entering into a judicial investigation of the reasons actuating a municipal body in granting a franchise, upon a charge that they were inspired by corrupt motives.</p> <p>The simple fact that one man or set of men, of doubtful or unknown financial credit, offer to bid more for a franchise- to install a telephone system in the streets of a city than a competing corporation of known financial strength, does not require the common council of the city to accept such offer or to sell the franchise at public, auction, where the latter course is not made obligatory by the city charter.</p> <p>An allegation, contained in the complaint in an action brought by a taxpayer to obtain an adjudication that the resolution of the common council granting the franchise and the contract entered into in pursuance thereof were illegal, to the effect that the conduct of the common council was fraudulent and that the contract was illegal, not coupled with any allegations of fact in support thereof, does not constitute an issuable averment.'</p> <p>An allegation that the common council was actuated by a purpose to favor the corporation is not an averment of a distinct fact upon which a charge of fraud or collusion can be hinged.</p> <p>An averment that the mayor of the city attended the meeting of the special committee having the matter in charge and unlawfully voted thereat, is of no consequence, as the power is vested in, and exercised by, the common council.</p> <p>Semble, that the power to grant a franchise for the installation of a telephone system in the city of Rochester is vested in the Legislature, and that the power of the common council of that city in the premises is limited to the regulation, under its police power, of the manner in which the franchise may be exercised.</p>

Appeal by the defendant, D. Munro Hill, as assignee for the benefit of creditors of the firm of Rodger & Co., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 21st day of July, 1899, upon the decision of the court rendered after a trial at the Onondaga Special Term.

Appeal by the defendant, Fish Brothers’ Wagon Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 22d day of April, 1898, upon the report of a referee, and also from an order made at the Onondaga Special Term, bearing date the 19th day of March, 1898, and entered in said clerk’s office, granting the plaintiff an extra allowance of costs.

Appeal by the defendant, John F. Dorthy, from a judgment of - the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 20th day of February, 1897, upon the verdict of a jury convicting him of the crime of grand larceny in the second degree; also from an order entered in said clerk’s office on the 20th day of February, 1897, denying the defendant’s motion for a new trial; also from an order denying the defendant’s motion…

Certiorari issued out of the Supreme Court and attested on the 15th day of July, 1899, directed to the board of assessors of the city of Utica, N, Y., and others, commanding them to certify and return to the office of the clerk of the county of Oneida all and singular their proceedings had in levying an assessment against the relator, for building a sidewalk in front of relator’s premises in the city of Utica.'

Certiorari issued out of the Supreme Court and attested on the. 1st day of August, 1898, directed to Conrad Diehl and others, constituting the board of police of the city of Buffalo, requiring them to certify and return to the office of the clerk of the county of Erie all and singular their proceedings had concerning the dismissal of the relator from the police force of the city of Buffalo. The relator was dismissed April 4, 1898.

<p>Appeal by the plaintiff, Sarah J. McElwain, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 1st day of June, 1899* upon the verdict of a jury rendered by direction of the court after a trial at the Monroe Trial Term, and also from an order entered in said clerk’s office on the 26th day of June, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, The Third National Bank of Buffalo, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 12th day of July, 1899, upon the decision of the court rendered after a trial at the Erie Trial Term, the jury having been discharged at the close of the evidence.

Appeal by the defendants, Albert J. Fisk and another, from a, judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 29th day of May, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of May, 1899, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, T. B. Dunn Company, from a final judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 19th day of May, 1899, upon the report of a referee.

<p>Pleading — complaint in an action by a creditor of a decedent to establish a lien, on surplus moneys — when insufficient as such, and also insufficient as one against the next of lain, heirs and devisees of the decedent.</p> <p>The complaint in an action alleged that the plaintiff had a claim against the estate of a testator; that more than three years had elapsed since letters testamentary upon his estate had been granted to one of the defendants; that the personal assets of the testator were not sufficient to pay the plaintiff’s debt, in addition to the expenses of administration and the debts of a prior class; that all the real estate of which the testator died seized was sold in an action for the foreclosure of a mortgage thereon, and that the surplus arising upon such sale was paid into the county treasury. It also alleged that each of the defendants have, or claim to have, as heirs at law, legatees or devisees, some interest in said surplus, and that the interest therein, which descended to the heirs at law, would not be sufficient to pay the plaintiff’s claim; that no proceedings had been had at law or otherwise, and no other action had been brought to recover the plaintiff’s claim.</p> <p>The complaint demanded judgment that the amount of the plaintiff’s debt be adjudged to be a lien upon such surplus, and that the same be awarded to the plaintiff.</p> <p>Seld, that the action could not be maintained as one to establish a lien on surplus moneys paid into the Surrogate’s Court, as moneys so deposited can only be disposed of by the surrogate in the proceedings prescribed by the Code of Civil Procedure;</p> <p>'That the complaint’ did not state facts sufficient to constitute a cause of action against the next of kin, legatees, heirs and devisees of the testator, under section 1837 et seq. of the Code of Civil Procedure.</p>

Appeal by the defendant, the Syracuse Rapid Transit Railway Company, from a judgment of the County Court of Onondaga county in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 27th day of June, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of June, 1899, denying the defendant’s motion for a new trial made upon the minutes.

<p>An unsealed instrument, without consideration and not pleaded as an estoppel, may he explained — even if a release it is impeachable for mutual mistake, fraud or misrepi'esentation—when the court may direct a verdict.</p> <p>Where an instrument not under seal, reciting no consideration and not pleaded as an estoppel or in bar, is offered in evidence as a mere declaration or admission by the plaintiff who signed it, it is subject to explanation, without proof of fraud or mistake.</p> <p>If considered as a release or agreement, it is subject to impeachment for mutual mistake, fraud or any misrepresentation by which the plaintiff was induced to sign, without knowing its contents; as between the original parties to the instrument, the plaintiff’s negligence in not ascertaining its true contents is not a bar to his right to be relieved therefrom.</p> <p>A judge presiding at a jury trial has no power to direct a verdict unless the weight of evidence so preponderates in favor of the party for whom the verdict is rendered that it would be the duty of the judge to set aside a verdict rendered against him.</p>

<p>Appeal by the defendant, Wilbur F. S. Lake, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 5th day of June, 1899, upon the decision of the court rendered after a trial at the Erie Special Term.</p>

Appeal by Orville D. Lyon, as overseer of the poor of the town of Pike, from an order of the county judge of Wyoming county, entered in the office of the clerk of the county of Wyoming on the 15th day of ^November, 1899, discharging the relator, George 0. Smith, from the custody of the sheriff of the county of Wyoming on a writ of habeas corpus.

<p>Appeal by the defendant, Alvin D. Wallace, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 3d day of July, J899, upon the decision of the court rendered after a trial at the Jefferson Special Term overruling his demurrer to the plaintiff’s complaint, and also from an order entered in said clerk’s office on the 3d day of July, 1899, upon which the judgment was entered.</p>

<p>Appeal by the defendant, the Syracuse Rapid Transit Railway Company, from a judgment of the County Court of Onondaga county in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 14th day of June, 1899, upon the verdict of a jury for $100, and also from an order entered in said clerk’s office on the 15th day of June, 1899, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The Empire Dairy Salt Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 27th day of January, 1899, upon the decision of the court, rendered after a trial before the court without a jury at the Erie Trial Term.

Appeal by the defendants, George A. Plimpton and another from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 22d day of December, 1898, upon the decision of the court rendered after a trial at the Erie Special Term. On the 13th day of February, 1892, Adeline 0.

Appeal by the defendant, Fannie S. Brundage, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 22d day of April, 1899, upon the decision of the court rendered after a trial before the court without a jury at the Steuben Trial Term.

Appeal by the defendant, Andrew Bay Bennett, individually and as administrator with the alleged will annexed of Eliza J. B ennett deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tates on the 6th day of June, 1899, upon the special verdict of a jury adjudging that the will described in the complaint was not the last will and testament of the decedent, and also from an order entered in said clerk’s…

<p>jSale under execution of the property of a third person — it is done by a constable by virtue of his office — a judgment against the constable is not necessary before suit is brought by the third person, nor is it evidence against his sureties.</p> <p>The seizure and sale by a constable, under an execution, of property not belonging to.the defendant in the execution, although in excess of his authority and consequently a trespass, is an act done by virtue of his office, within the meaning of that term, as used in the official bond of the constable by which the latter and his sureties “ undertake and agree, jointly and severally, to pay each and every person for any damages he may sustain from, any act or thing done by said Geo. B. Biddle by virtue of his said office of constable."</p> <p>■ The recovery of a judgment against the constable for the conversion is not a condition precedent to an action against the sureties upon the bond, and such a judgment is neither conclusive nor prima facie evidence against the sureties of the facts essential to its recovery.</p>

Appeal by the plaintiffs, William L. Savage and another, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie-on the 21st day of October, 1899, upon the decision of the court, rendered after a trial at the Erie Special Term, overruling the plaintiffs’ demurrer to the second and third defenses contained in the defendant’s supplemental answer.

<p>Appeal by the defendant, The National Accident Society, from a judgment of' the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 16th day of April, 1899, upon the verdict of a jury rendered by direction of the court, and also from an order bearing date the 6th day of April, 1899, and entered in said clerk’s office, denying .the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Charles D. Marshall, as trustee, etc., from s, judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of - Erie on the 10th day of -October, 1898, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Erie Trial Term,</p>

<p>Appeal by the plaintiff, Frederick Porcella, an infant, by Philip Bohnet, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th day of October, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the New York Trial Term, and also from an order, entered in said clerk’s office on the 12th day of October, 1899, denying the plaintiff’s mbtion for a new trial made Upon the minutes.</p>

Appeal by the plaintiff, Elizabeth Rhoads, as administratrix, etc., of George B. Rhoads, deceased, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 8th day of February, 1900, denying the plaintiff’s motion for leave to move the above-entitled action as a preferred cause, and for an order placing the same upon the special calendar of the court for the trial of preferred causes.

Appeal by the plaintiff, The National Gramophone Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of January, 1900, requiring the plaintiff to serve a- verified bill of particulars.

Appeal by the plaintiff, Hoffman House, New York, as trustee, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 16th day of November, 1899, upon the dismissal of the complaint upon the pleadings and the opening of counsel, by direction of the court, after a trial before the court and a jury at the New York Trial Term.

Appeal by the plaintiff, Frederick A. Burnham, from an order of the Supreme Courf, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of February, 1900, denying the plaintiff’s motion for a bill of particulars of new matter alleged in the defendant’s answer.

Appeal by the plaintiff, John Mulhall, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the lltli day of January, 1900, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the second separate cause of action set forth in the amended complaint, upon the ground that it did not state facts sufficient to constitute a cause of…

Appeal by the defendant, The Lawyers’ Surety Company of New York, from an order of the Appellate Term of the Supreme.

Appeal by Arthur B. Appleby and another from an order of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 19th day of January, 1900, denying their motion for the issuance of letters of testamentary guardianship of the persons and estates of the infants herein to them.

Appeal by the defendant, John M. Robinson, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 15th day of January, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of January, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Atlas Steamship Company, Limited, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 12th day of December, 1899, upon the verdict of a. jury for $900, and also from an order, entered in said clerk’s office-on the lltli day of January, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Louis Ganz, in each of the above-entitled actions, from, so much of two judgments of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 12tli day of October, 1899, upon decisions of the court rendered after a trial at the New York Special Term as deducts from the principal sum mentioned in the bond and mortgage sued upon herein the sum of $400, being the amount of the alleged usurious…

<p>Bank — discount of a note — it cannot on its dishonor be charged to the customers account unless he be charged as indorser — action in tort for the dishonor of checks — inference of malice — damages in case of malice — inference that the customer’s credit was impaired — charge in mew of the bank’s relations with the maker of the note.</p> <p>A bank which discounts for a customer the note of a third party and places the proceeds to his credit, cannot, on the non-payment of the note at maturity, charge the note back to his account until after it has taken steps to charge the customer as indorser upon the note; if, without taking such steps, it charges the note to the customer’s account and refuses to honor checks drawn upon it by the customer, it is liable to the latter upon contract or in tort.</p> <p>Where the customer elects to bring his action in tort, evidence given therein, to the effect that the bank refused to honor checks four times in close succession, justifies the jury in drawing an inference of legal malice, which arises whenever a wrongful act is done intentionally without just cause or excuse.</p> <p>In such an action the court may properly charge that if the jury find that the refusal of the bank to honor the customer’s checks was malicious and willful, they may, in addition to his actual money damages, award him “ such substantial damages for the impairment of his credit and for his feelings and mental anxiety over the matter as directly and proximately resulted from the wrongful acts of the defendant.”</p> <p>The jury may infer that the plaintiff’s credit was impaired by the dishonoring of his checks.</p> <p>Where the principal issue litigated in the action is whether the note in question was discounted by the bank or was deposited for collection only, and evidence . is given that the bank was a large stockholder in the corporation which made the note, and that the plaintiff had received it at the request of the vice-president of the bank, who represented the bank in the management of the corporation, and that the note was ultimately paid by the certified check of the corporation upon the bank, in which it had no money with which to meet the check, so that it might be inferred that the note was actually paid by the bank, it is error for the court to refuse to charge that the bank’s ownership of the stock of the corporation did not prove, or tend to prove, that the bank was liable for the payment of the note.</p> <p>Barrett, J., dissented as to the last proposition.</p>

Appeal by the plaintiff, Louis Routenberg, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 8th day of December, 1899, reversing a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the plaintiff for $195.

Appeal by the defendant, the Museum of Fine Arts in Boston,, sued herein as The Trustees of the Museum of Fine Arts in Boston,, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the-15th day of November, 1899, upon the decision of the court rendered after a trial at the New York Special Term, except from so-much thereof as directs that costs be paid to the several parties in this action out of the…

Appeal by the defendant, Emma R. Seilliere, from so much of an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 17th day of June, 1899, as overrules her demurrer to the plaintiff’s complaint.

Appeal by Estella J. Jordan Johnstone, executrix, etc., of Louis J. Jordan, deceased, from an order of the Surrogate’s Court of New York county, entered in said Surrogate’s Court on the 20th day of October, 1899, denying her motion to dismiss a citation requiring her to account.

Appeal by William K. Vanderbilt and others from an order of the Surrogate’s Court of New York county, entered in said Surrogate’s- Court on the 20th day of February, 1900, denying their motion to have it adjudged that a certain trust fund was not liable to any transfer tax.

Appeal by the defendant, Emma Hess, from a judgment of the Supreme Oourt in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 13th day of May,T899, upon the decision of. the court rendered after a trial at the Hew York Special Term.

Appeal by the defendant, The National Provident Union, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of November, 1899, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, the Metropolitan Street Railway Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of February, 1900, directing the defendant to pay to the plaintiffs attorney the sum of $130, his costs and lien herein on the amount of the settlement of this action between the parties.

Appeal by the defendant, The Equitable Life Assurance Society of the United States, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16tli day of February, 1900, upon the decision of the court, rendered after a trial at the New York Special Term, overruling its demurrer to the plaintiff’s-complaint, with notice of an intention to bring up for review upon such appeal an order…

Appeal by the plaintiff, the Anglo-American Provision Company, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 21st day of February, 1900, upon the decision of-the court rendered after a trial at the New York Special Term sustaining the defendant’s demurrer to the complaint and dismissing the complaint.

Appeal by the plaintiff, Susanna Y. Cahill, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 9th day of January, 1900, denying her motion for a retaxation of costs.

Appeal by the plaintiff, J. Dobson Good, from a judgment of the-Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of December, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the New York Trial Term.

Appeal by the defendant, George C. Clausen, as president of the department of parks in the city of New York, and as park commissioner of the boroughs of Manhattan and Richmond, in said city, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of December, 1899, upon the verdict of a jury ; also, from an order entered in said clerk’s office on the 1st day of December, 1899, denying the…

Appeal by the plaintiff, Mitchell A. O. Levy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 28th day of Hovember, 1899, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint upon.' the merits.

Appeal by the plaintiff, John A. Rutherfurd, as executor, etc., of Richard Baring Gould, deceased, from an order of the Supreme Court, made at the Mew York Special Term, bearing date the 3d day of January, 1900, and entered in the office of the clerk of the county of Mew York, denying the plaintiff’s motion for a stay of the proceedings for an accounting as to the estate of Alfred G. Myers, deceased, pending in the Surrogate’s Court of the county of Mew York.

Appeal by the defendant, Frederick A. Burnham, from an ordér of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20tli day of February, 1900, denying his motion to frame issues to be tried by a jury.

<p>Appeal by the defendant, The Hills Brothers Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 16th day of May, 1899, upon the decision of the court rendered after a trial at the New York Special Term.</p>

<p> The statement by a member of a police force to his superior “ You lie” is a good ground of dismissal. </p> <p>Evidence that a member oí the police force of the city of New York, upon his trial before a police commissioner on a charge of neglect of duty, interrupted the testimony of a superior officer by saying to him, “ You lie,” justifies his dismissal, although he attempts to explain his conduct by stating that the witness swore falsely and that his temper became uncontrollable.</p> <p>O’Brien and Ingraham, JJ., dissented.</p>

Appeal by the defendant, The Michigan Peninsular Oar Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of December, 1899, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term, a jury having been waived.

Appeal by the plaintiffs, Simon E. Bernheimer and another, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25tli day of November, 1899, upon the decision of the' court, rendered after a trial at the New York Special Term, overruling their demurrer to the counterclaims contained in the defendant’s answer.

Appeal by the plaintiff, Charles B. Castle, from so much of a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 8th day of February, 1900, upon the decision of the court rendered after a trial at the New York Trial Term before the court without a jury, as adjudges a dissolution of the copartnership existing between the parties hereto, and from so much of said judgment as relates to the contracts dated…

Appeal by the defendant, George C- Clausen, as commissioner of parks of the boroughs of Manhattan and Richmond of the city of Kew York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kew York on the 1st day of February, 1900, upon the decision of the court, rendered after a trial at the Kew York Special Term, overruling the defendant’s demurrer to an alternative writ of mandamus, and…

Appeal by the defendant, The Insurance Company of the State of Pennsylvania, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 27th day of July, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of July, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Peter W. Felix, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 13th day of June, 1899,. upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Lewis L. Jones, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of November, 1899, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term.

Appeal by the defendants, James O’Connell and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of June, 1899, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term.

Appeal by the plaintiffs, Frank S. Howells and others, doing-business under the firm name of Howells Brothers, from a judgment of the Supreme Court, in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 6th day of March, 1900, upon the decision of the court, rendered after a trial before the court without a jury at the Hew York Trial Term,, dismissing the complaint upon the merits.

Appeal by the defendant, E. Osborne Smith, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 8th day of May, 1899, upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by the plaintiff, Mary Quigley, as administratrix, etc., of Michael Joseph Quigley, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 18th day of February, 1899, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 1st day of March, 1899, denying the plaintiff’s…

Certiorari issued out of the Supreme Court and attested on the '9th day of December, 1898, directed to Bernard J. York and others, commissioners, composing the board of police of the police department of the city of New York, directing them to certify and return to the office of the clerk of the county of New York all and singular their proceedings in relation to the removal of the relator from the police force of the city of New York.

<p>Appeal by the defendant, Marie Louise Moore, individually and as administratrix with the will annexed of Gideon E. Moore, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of- the clerk of the county of New York on the 9th day of February, 1900, upon the decision of the court rendered after a trial at the New York Special Term.</p> <p>Also an appeal by the plaintiff, Mary H. de Grano, from so much of said judgment as allows interest upon the amount claimed by the plaintiff at the rate of five per cent only.</p> <p>The plaintiff is the sister of Gideon E. Moore, deceased, to whom she claims to have intrusted certain moneys which were invested for her by him, and which she now seeks to recover by this suit in equity brought against the defendant, his widow, individually and as administratrix of his will.</p> <p>It is stated in the complaint that prior to his death, on the 13th day of April, 1895, the plaintiff had permitted her brother to have in his possession and control upwards of $8,000 of her money for the purpose of caring for and investing the same, which he held in a fiduciary capacity; that his will — which is annexed to the complaint, and which makes no mention of the plaintiff or the moneys owing to her — was duly admitted to probate on the 24th day of June, 1895, and letters of administration with the will annexed were issued on or about the 4th of September, 1895, to the defendant, who is the sole devisee and legatee; that the said Gideon E. Moore left no personal property of any amount and only the equity in two certain pieces of real property to which, at the time of his death, he held title, and the plaintiff is unable to collect her debt by proceedings in the Surrogate’s Court or by action against the heirs or next of kin, and there are no assets to satisfy her claim except the equity in the real property, the value of which is about $30,000; that two actions have been brought- against the defendant herein, individually and as administratrix, by the mother and brother of Gideon E. Moore for an accounting and determination of their interests in the real property mentioned, resulting, as alleged, from the use of money belonging to them controlled and invested by Gideon E. Moore during his lifetime, and the sum so claimed, together with the claim of the plaintiff herein, amounts to more than the value of the property of which the defendant is now possessed, individually, as devisee or as administratrix; that the defendant has not aliened the property devised to her, but is now enjoying the rents and profits therefrom, and that she has filed no inventory as administratrix, and published no notice for creditors. An accounting is, therefore, asked for between the plaintiff and the defendant in her dual capacity, the appointment of a receiver and an execution against the real property mentioned for the collection of the debt.</p> <p>Besides a general denial of the plaintiff’s claim, the answer sets up the Statute of Limitations as a bar to proceedings legal or equitable to enforce the claim and further alleges that the plaintiff has an adequate remedy at law.</p> <p>No testimony was offered by the defendant, and the decision .at Special Term, therefore, rests upon that introduced by the plaintiff.</p> <p>Upon the opening the defendant moved to dismiss the complaint “ on the ground that it appears that this is an action- brought to establish or to collect a debt out of property devised to the 'defendant,” and, as to the administratrix, the complaint states no cause of action; that under the Code of Civil Procedure the only sort of' debt on which an action could be thus maintained is a simple contract or specialty, whereas it here appears that what is claimed are trust funds, so that the provision of the Code as to actions against a devisee does not lie.</p> <p>In reply the plaintiff’s counsel stated: “We do not charge any breach of trust, and we do not attempt to follow trust fund into particular property.” The motion was denied and exception taken.</p> <p>Eliza L. Moore, the mother of Gideon E. Moore, who resides in Dresden, Germany, and whose testimony was taken on a commission, stated that she identified a letter dated April 25, 1890, admitted in evidence and marked Exhibit B, as received by her in the regular course of mail, and stated that the words “Mary” and “ Harry ” therein related to this plaintiff and her brother. She also identified another paper admitted in evidence and marked Exhibit A, dated April 21, 1890, as showing an account referred to in the letter dated April 25, 1890, and received by her at the same. time. Her further testimony was that the plaintiff had left to her the correspondence as to the property; and that to her knowledge her son made no remittances from time to time to the plaintiff of any sums representing the income from it, and he was not subject to supervision in his dealings.</p> <p>It was admitted on the record that this action was begun on the •24th day of April, 1899. Exhibit “ A ” is an itemized account of the debits and credits of moneys of the plaintiff handled by Gideon E. Moore, showing a balance of $8,640.45. The letter, Exhibit B-,” describes in detail the various monetary transactions, part of which belonged to plaintiff, and states: “It is earning 5 per cent now; ” “ this real estate is necessarily in my nanne,” and, “ in case of my death : My will provides that after payment of all just, debts the residue of my real and personal estate shall go to my wife as sole legatee. Her ‘ right of dower ’ is a life interest in one-third of the real estate that I hold over and above the amount of the mortgages. How I own more than one-third of all the real estate standing in my name, being my own money over and above ail that I owe you, Mary and Harry. In case of my death, therefore, there is enough to pay Louise’s right of dower, repay you all and still leave a surplus * * * as for evidences of my indebtedness to you all: My regular accounts current are as binding a claim against my estate as notes of hand or any other form, of security.”</p> <p>The defendant, called for plaintiff, testified that after the death of her husband, Dr. Moore, she received everything in his laboratory, which shd rents together with the room itself for $1,000 ; that her husband left other valuable securities including mining stocks and patents. H. C. Davis, a public accountant, testified that in April, 1898, he examined the accounts of Dr. Moore and found that he had not kept a separate account for the plaintiff; and that he prepared a statement from various sources. The plaintiff’s counsel then said: “We are willing to rest on the account furnished by Dr. Gideon Moore, marked as Exhibit A.”</p> <p>Motion ivas made to dismiss the complaint and was again denied. The Special Term decided that the plaintiff was entitled to recover $8,640.45 with interest at the rate of five per cent from March 31, 1890, together with costs and an additional allowance. Exceptions-were duly taken to the decision, and from the judgment thereon entered to be collected out of the assets in the hands of the defendant as administratrix and out of the real property devised to her, both parties appeal, the plaintiff asking for interest at the rate of six per cent instead of five per cent, and the defendant appealing from the entire judgment.</p>

Appeal by the defendant, The American Pneumatic Tool Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of October, 1899, upon the verdict of a jury rendered by direction of the court, and also from an order bearing date the 11th day of October, 1899, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the 19th day of June, 1899, directed to Thomas J. Brady, as commissioner of buildings for the boroughs of Manhattan and The Bronx of the city of New York, requiring him to certify and return, to the office of the clerk of the county of New York all and singular his proceedings liad in relation to the dismissal of the relator from the position of inspector of buildings in the department of buildings of the city of New…

Appeal by the defendant, the Obenneyer & Liebmann Brewing; Company, from a judgment of the Supreme Court in favor of the-plaintiff, entered in the office of the clerk of the county of New York on the 20th day of November, 1899, upon the verdict of a. jury for $400, and also from an order entered in said clerk's office on the 18th day of December, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, J. Sergeant Oram and others, commissioners of docks and ferries of the city of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 3d day of November, 1899, granting a peremptory writ of mandamus.

Appeal by the plaintiff, Brayton Ives, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of ISTew York on the 15th day of March, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16tli day of March, 1899, denying the plaintiff’s motion for a new trial made upon the minutes. This appeal was transferred from the first department to the second department.

<p>Appeal by Morgan Arnold Manning, an infant, by Joseph M. Allen, his special guardian, from a decree of the Surrogate’s Court of Kings county, entered in said Surrogate’s Court on the 3d day of November, 1899, settling the account of Sarah Atwater Manning, as sole acting executrix, etc., of Frederick Royal Manning, deceased.</p>

<p>Appeal by the defendant, the St. Paul Fire and Marine Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 22d day of November, 1899, upon the decision of the court rendered after a trial before the court without a jury at the Orange Trial Term.</p>

<p>Vendor and purchaser — reservation of fee and rental damages against an elevated railroad — construction of time clause therein.</p> <p>The owner of property, abutting upon an elevated railway, after commencing an abutter's action for tbo recovei y of fee and rental damages against the railway company, conveyed the premises under an agreement with the vendees, which provided that the vendees should commence an action against the railway company and employ the vendor’s attorneys to conduct the same at the latter’s expense and which authorized the attorneys to pay the vendor all sums recovered after deducting the expenses of the suit. It also provided that the vendees should execute such deeds and releases as might be required by the judgment and should not sell the premises during the pendency of the action without notifying the attorneys. It. concluded with the statement that the agreement, was to bind the parties, their heirs, executors and assigns, “ save that this agreement shall cease and come to an end at the expiration of five years from the date hereof.’’</p> <p>Contemporaneously with the execution of the agreement, the vendees executed papers retaining the vendor’s attorneys to commence the action and authorized them to pay the amount recovered to the vendor. Eight months after the five years mentioned in the agreement had elapsed an action was brought by the vendor’s attorneys in the name of the vendees, in which the vendees were awarded judgment and were required to execute certain releases to the defendant company. This they refused to do, thus preventing the payment of the judgment.</p> <p>Held, that the vendor was entitled to recover the amount of the judgment from the vendees;</p> <p>That, the five years’ limitation was intended to relate to the clause forbidding the vendees from selling the property during the pendency of the damage suit without notifying the attorneys.</p>

Appeal by the defendant, The Pittsburgh, Shenango and Lake Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 19th day of May, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of June, 1899, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Third Avenue Railroad Company, from a judgment of the Supreme Court-in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of June, 1899, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 26th day of June, 1899, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>This appeal was transferred from the first department to the second department.</p>

Appeal by the defendant, the Westchester Fire Insurance Company, from a judgment of 'the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5tli day of August, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27tli day of July, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Charles Brumm and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Sew York on the Jth day of June, 1899, upon the decision of the court, rendered after a trial at the Mew York Special Term, sustaining the defendant’s demurrer to the amended complaint on the ground that it did not state facts sufficient to constitute a cause of action, and dismissing the complaint upon the…

<p>Appeal by the plaintiff, Holly D. Waterbury, as president of Knights of Honor Wheelmen, an unincorporated association, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, fourth district, in favor of the defendant, rendered on the 26th day of January, 1900, dismissing the complaint on the ground that it did not state facts sufficient to constitute a cause of action.</p>

Appeal by the petitioners, Jacob M. Harris and another, from a final order of the Municipal Court of the city of New York, borough of Brooklyn, first district, made on the 9th day of December, 1899, dismissing the petition in a summary proceeding for the removal of a tenant of real property.

<p>Appeal by the plaintiff, George McIver, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of J une, 1899, denying the plaintiff’s motion for a new trial on the ground of newly-discovered evidence.</p>

Appeal by the plaintiff, The Majestic Hotel Company, from a, judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 15th day of May, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of Hovember,, 1899, denying the plaintiff’s motion for a new trial made upon the minutes. This appeal was transferred from the first department to the second department.

<p>Pleading—charging negligence onthepa/rt of a servant — it must, in an action against him and his master, he alleged to have occurred within the scope of his-employment.</p> <p>The complaint, in an action against a master and his servant to recover damages for personal injuries sustained by the plaintiff, which states that the injury was occasioned through the servant’s negligence, must allege expressly, or by fair implication, that the servant’s negligent act was within the scope of his, employment.</p> <p>The complaint in such an action alleged that the plaintiff, a detective in the employ of a detective agency, was stationed at the main gate of a race track maintained by the defendant, the Brooklyn Jockey Club, under a contract between the latter and his employer, and that it was the plaintiff’s duty each afternoon to raise the gate, which was hung upon cables controlled by weights in a box; that one of the cables having slipped from the wheel on which it moved, the plaintiff grasped the cable for the purpose of replacing it on the wheel, “ when the defendant Lawrence Van Siclen carelessly and negligently, and without giving any warning to this plaintiff, struck the box containing the said weights, which action caused the said gate to rise suddenly and caused the plaintiff’s thumb to be caught between the said cable and wheel;” and that “solely by reason of the defendant’s negligence, as aforesaid, and without fault or negligence on the plaintiff’s part, the thumb of the plaintiff’s right hand was cut off at the joint, and was further badly crushed and injured and wounded.”</p> <p>The complaint further alleged that “the defendant Lawrence Van Siclen was a carpenter in the employ of The Brooklyn Jockey Club; * * * that as such carpenter it was the duty of the said defendant Lawrence Van Siclen to maintain in repair and good order the main gate upon the race track hereinafter mentioned, and to repair the same whenever necessary.”</p> <p>Meld, that the complaint did not state a cause of action against the Brooklyn Jockey Club, as it did not allege that Van Siclen struck the box containing the weights for the purpose of repairing the gate or keeping it in good order or that such act was designed to improve the condition of the gate or put it in order or that it was done in the service of the Brooklyn Jockey Club.</p>

<p> Affidavit of publication of a legal notice—how secured where the newspaper refuses to furnish it. </p> <p>The remedy for the refusal of the publisher of a newspaper, or other proper, person in his service, to furnish an affidavit of the publication of the summons in a foreclosure action, which is required by section 444 of the Code of Civil Procedure, is by a motion, under section 885 of the Code of Civil Procedure, to compel such publisher or other proper person in his employ to make the affidavit, and not by an order directing the paper by name, which name is not shown to be that of the corporation publishing the paper, to furnish and deliver such affidavit.</p> <p>Semble, that if the paper were published by a corporation of that name, the court would not have power, by an order in an action to which the corporation was not a party, to compel it to require one of its employees to make the affidavit.</p>

Appeal by the defendant, Blanche M. Donnelly, from so much of an order of the Supreme Court, made at the Richmond Trial Term and entered in the office of the clerk of the county of Richmond on the 13th day of November, 1899, as orders and directs that the verdict rendered by the jury be set aside and a new trial be granted upon the ground that said verdict was against the weight of evidence.

<p>Master and seo'vant— employee injured by the “jumping ” of an iron not brought to the attention of the employer — italicizing passages, favorable to an appellant, in a case on appeal, condemned.</p> <p>An employer is not liable for personal injuries sustained by an employee in consequence of the sudden “jumping ” action of an iron attached to an ironing machine which she is operating, where only one witness testifies that the iron had ever “jumped ” before, and it does not appear that she had ever informed the employer of it, although other defects in the machine had been brought to Ms attention.</p> <p>Where a large portion of the testimony contained in a case on appeal is printed in italics, so as to emphasize those passages most favorable to the appellant’s contention, the Appellate Division will require the substitution of a properly-printed case before hearing the argument.</p>

Appeal by the defendant, Charles H. Zeiger, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 21st day of December, 1899, denying the said defendant’s motion to vacate an order for his examination before trial.

Appeal by the plaintiff, Alfred De Witt Mason, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 13th day of January, 1900, relieving Annie Sholtz, the purchaser at the sale under the mortgage foreclosure in this action, from her bid on said sale, with notice of an intention to bring up for review upon such appeal the final judgment entered herein on the 23d day of October, 1899.

Appeal by Harry Mintz, the purchaser at a mortgage foreclosure sale, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of October, 1899, denying his motion to compel the referee to refund ten per cent of the purchase money paid upon the foreclosure sale.

<p>Where some only of several provisions of an agreement are, in terms, made “conditions,” the others will be held not to be —compliance required within a reasonable time — Statute of Limitations—presumption of waiver from a failure to enforce — stale provisions not enforced by equity.</p> <p>The trustees of the town of Huntington, in 1774, granted to an individual the right to erect a dam in Centreport harbor, in consideration of which the grantee agreed, among other things, to make and forever maintain upon the top of the dam a crossway eighteen feet wide for the passage of ox carts and teams, to build a grist mill and to grind all the grain which the country people should bring. The grant further provided that if the grantee should not build the mill, and if he or his successors should fail to maintain it or refuse to grind all the grain of the country people as aforesaid, then “this present grant shall be absolutely null, void and none effect, and all the privileges aforementioned shall revert to the said trustees and their successors,” but made no mention in that connection of the covenant to make and maintain the eighteen-foot crossway.</p> <p>Held, that it was not the intention of the parties to the grant to make the covenant to build the crossway a condition subsequent, upon the failure to perform which the grant would become forfeited;</p> <p>That the right to enforce the construction of the crossway accrued upon the grantee’s failure to construct it within a reasonable time, and, it seems, was barred by the failure of the town to assert such right fpr 125 years;</p> <p>That, as the town had never attempted to enforce performance of the covenant or made any complaint because of the non-performance thereof, it would be presumed that, for a sufficient consideration, it had waived its right to specific performance; that, at all events, it was the duty of the town to explain its non-action and silence;</p> <p>That, independent of the question of the Statute of Limitations and waiver, the court would, in the exercise of its discretion, refuse to compel the specific performance of the covenant.</p>

<p>Appeal by the defendant, the Metropolitan Life Insurance Company, from a judgment of the Municipal Court of the city of New Y orle, borough of Queens, first district, in favor of the plaintiff.</p>

<p>Municipal Oourt of Sew York—affirmative defense — evidence of, not excluded because of the defendant’s failure to serve a bill of particular's not demanded until the trial.</p> <p>The defendant in an action pending in the Municipal Oourt of New York city should not be prevented from giving evidence in support of an affirmative defense averred in his answer, because of his failure to serve upon the plaintiff a bill of particulars of such defense, where the demand for such bill of particulars was made for the first time after the trial had begun and not at the time when issue was joined, as authorized by section 2942 of the Code of Civil Procedure.</p>

<p>Rearg-ument of an appeal by the defendant, The Citizens’ Electric Illuminating Company of Brooklyn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day of April, 1899, upon the verdict of a jury for. $8,000, and also from an order entered in said clerk’s office on the 14th day of April, 1899, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>This action was brought to recover damages for personal injuries sustained by the plaintiff while playing upon a stairway leading to an elevated railroad station in the borough of Brooklyn, in consequence of his hand coming in contact with an electric wire maintained by the defendant upon the elevated structure in proximity to the stairway.</p>

<p>Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 12th day of April, 1899, upon the decision of the court rendered after a trial before the court without a jury at the Queens County Trial Term.</p>

Appeal by the plaintiffs, Isaac Steigerwald and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 11th day of December, 1894, upon the report of a referee dismissing the complaint at the close of the plaintiffs’ proof. This appeal was transferred from the first department to the second department.

<p>Title insurance policy — construed in favor of the insured—when it covers an assessment confirmed after the insured took title hut hefoi'e the date of the policy.</p> <p>A policy of title insurance is subject to the rules of construction which are applicable to other insurance policies, and all doubts and ambiguities are to be resolved in favor of the insured.</p> <p>A policy of title insurance procured by a grantee of real property after he has taken possession thereof under his deed, which insures the grantee against defects of title arising by reason of liens or incumbrances charging the property at the date of the policy, and contains a provision that “defects and incumbrances arising after the date of this policy, or created or suffered by the insured, and assessments not confirmed at the date of this policy, are not to be deemed covered by it,” covers a confirmed assessment existing at the date of the policy, although the confirmation took place after the grantee took possession under his deed.</p> <p>Goodrich, P. J., dissented.</p>

Appeal by the defendant, Annie P. Smith, from a judgment of' the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of May, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6tli day of June, 1899, denying the defendant’s motion to set aside said verdict.

Appeal by the defendant, The Village of North Tarrytown, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the Ifth day of September, 1899, upon the decision of the court rendered after a trial at the Orange Special Term, and also from an order entered in said clerk’s office on the 27th day of January, 1899, sustaining the plaintiff’s demurrer to the third and separate defense to…

<p>Appeal by the plaintiff, Isaac F. Scandell, by Edward B. Scan-dell, his guardian ad litem, from a judgment of the Siipreme Court in favor of the defendant, entered in the office of the clerk of the county of Rockland on the 1st day of June, 1899, upon the dismissal of the complaint by direction of the court, rendered after a trial before the court and a jury at the Rockland Trial Term, with notice of an intention to bring uj) for review upon such appeal an order directing the dismissal of the complaint upon the merits, and refusing to submit said action and the questions of fact arising upon the evidence therein to the jury.</p>

Appeal by the plaintiff, Frank McLaughlin, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 31st day of August, 1899, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term before the court and a jury. This appeal was transferred from the first department to the second department.

Appeal by the plaintiff, Margaret French, from a judgment of the Supreme Court in favor of the defendant Augustus C. Fischer, entered in the office of the clerk of the county of Kings on the 25th day of July, 1899, upon the special verdict of a jury, dismissing the complaint as to said defendant, and also from so much o£ an order entered in said clerk’s office on the 19th day of May, 1899, as denied the plaintiff’s motion for judgment against the defendant Augustus C.…

Appeal by the defendant, Edward B. Washburn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 11th day of September, 1899, upon the decision of the court rendered after a trial at the Dutchess County Special Term.

Appeal by the defendant, John W. Ferguson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of July, 1899, upon the verdict of a jury for $3,300, and also from an order entered in said clerk’s office on the 24th day of August, 1899, resettling an order entered in said clerk’s office on the 5th day of July, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Michael G. Gross, as executor, etc., of Anton B. Schwenniger, deceased, from a judgment of the Supreme Court in favor .of the defendant, entered in the office of the clerk of the county of Kings on the 11th day of May, 1899, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits, with notice of an intention to bring up for review upon such appeal an intermediate order entered…

<p>Appeal by the defendant, John H. Starin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county'of New York on the 4th day of May, 1899, upon the verdict of a jury for $4,000, and also from an order •entered in said clerk’s office on the 2d day of May, 1899, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>This appeal was transferred from the first department to the second department.</p>

Appeal by the defendant, William H. Maxwell, city superintendent of schools of the city of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office- of the clerk of the county of Kings on the 19th day of February, 1900, directing that a peremptory writ of mandamus issue commanding the defendant to place the names of the relators upon the list of those eligible to appointment as teachers in the primary department of the…

<p>Appeal by the defendant, the Frank Ibert Brewing Company, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff.</p>

<p>Liquor Tax Law—• a warrant for its violation may issue on the information of a police officer or of any citizen — an information charging that the accused did “ sell or give away ” liquor is defective.</p> <p>A warrant for the arrest of a person charged with a violation of the Liquor Tax Law (Laws of 1896, chap. 112) may, under section 85 of that law, as amended by section 25 of chapter 812 of the Laws of 1897, be issued upon the information of a police officer or of any citizen having knowledge of the facts, and such information need not be first presented to the district attorney of the county.</p> <p>An information charging a violation of section 31 of the Liquor Tax Law making it unlawful “ to sell, offer or expose for sale, or give away any liquor: a. On Sunday,” which alleges that the accused “ did sell or give away” liquor on a certain Sunday, is defective in that, being in the alternative, it fails to inform the accused of the specific offense with which he is charged.</p>

<p>Appeal by the plaintiff, Morris Putnam Stevens, as general guardian of Bertha D. Kane, an infant, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 8th day of December, 1898, upon the report of a referee.</p>

<p> What constitutes a request to submit a question of damages to the jury. </p> <p>In an action to recover the value of property destroyed while being transported by the defendant, a common carrier, the defendant objected to the direction of a verdict in favor of the plaintiff, and the court stated, "There is nothing here to go to the jury.” The defendant’s counsel then asked, " How as to the measure of damages?” to which the court replied, "I direct a verdict for the full amount. To let the jury assess the damages would be rather incongruous.” The defendant then excepted to the ruling directing a verdict on the ground, among others,' “that the amount of damage is a question of fact for the jury.”</p> <p>Held, that the defendant’s exception, coupled with the statement that the amount of damage was a question of fact for the jury, was equivalent to a request that that question be submitted to the jury.</p>

Appeal by the defendants, Corwin E. Sayer and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Orange on the 30th day of October, 1899, upon the report of a referee.

Appeal by the defendant, the Staten Island Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of Richmond on the 11th day of April, 1899, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 8th day of' April, 1899, denying the defendant’s motion for a new trial made-upon the minutes.

Appeal by the defendants, Henry J. Schmuacher and another, individually and as executors of and trustees named in the last will and testament of John 0.

<p>Appeal by the plaintiff, James Y. Lawrence, as sole surviving partner of the firm of Lawrence Brothers, from so much of a judgment of the Supreme Court, entered in the office of the clerk, of the county of Westchester on the 22d day of September, 1899, upon the decision of the court rendered after a trial at the Orange Special Term, as adjudged that the mechanic’s lien for $1,825.92, filed by the plaintiff on October 28, 1897, against all moneys due or to grow due under a contract set out in this action, was and is a valid lien and claim against the defendants John Dawson and William Archer to the extent of $26.57 only; also-from so much thereof as adjudged that the county clerk of the county of Westchester, out of the moneys in his hands, deposited in court by the defendants Dawson & Archer to abide the event of this action, pay the balance of said moneys to the defendants John Dawson and William Archer, or to Frank M. Tichenor/ their attorney; also from the said judgment in that the same failed to award to the plaintiff the costs and disbursements of the action.</p> <p>Section 15 of the Lien Law (Laws of 1897, chap. 418), referred to in the opinion, is as follows: “No assignment of a contract for the performance of labor or the furnishing of materials for the improvement of real property or of the money or any part thereof due or to become due therefor, nor an order drawn by a contractor or sub-contractor upon the owner of such real property for the payment of such money shall be valid, until the contract or a statement containing the substance thereof and such assignment, or a copy of each, or a copy of such order, be filed in the office of the county clerk of the county wherein the real property improved or to be improved is situated, and such contract, assignment or order shall have effect and be enforceable from the time of such filing. Such clerk shall enter the facts relating to such assignment or order in the ‘lien docket’ or in another book provided by him for such p>u rpose.”</p>

Appeal by the plaintiff, The Harlem River and Portchester Railroad Company, from so much of a final order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 21st day of October, 1899, in condemnation proceedings, as directs “ that compensation shall be made to the said James L. Reynolds, the owner of the said property, by the plaintiff, pursuant to the determination of the said commissioners,…

Appeal by the defendant, Benjamin Boley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 31st day of March, 1899, upon the verdict of a jury, and also from so much of an order entered in said clerk’s office on the 30th day of March, 1899, as denied the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Henry Webendorfer, from a judgment of the County Court of Dutchess county in favor of the plaintiff, entered in the office of. the clerk of the county of Dutchess on the 5th day of October, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of October, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Pelham Hod Elevating Company (improperly sued as The Pelham Hod Elevator Company), from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of January, 1900, denying its motion to vacate and set aside an order requiring the secretary and other officers of defendant company to submit to an examination before trial.' •

<p>Evidence — medical experts not allowed to characterize injuries as “serious” or “trivial.”</p> <p>In an action brought to recover damages for personal injuries, medical experts should not be permitted to characterize the plaintiff's injuries as “ serious ” or “trivial,” where it is feasible to elicit the facts upon which such opinion is based.</p>

Appeal by the defendant, The Atlantic Storage Company, from a judgment of the Supreme Court in favor of the plaintiff, entered, in the office of the clerk of the county of Kings on the 7th day of October, 1899, upon the verdict of a jury for $15,000, and also from, an order entered in said clerk’s office on the 1st day of September, 1899, denying the defendant’s motion for a new trial made upon the minutes.

<p>Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the defendant, The Union Railway Company of New York City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of June, 1899, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 26th day of June, 1899, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Henry A. Conklin, from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of October, 1899, upon the verdict of a jury for $375, and also from an order entered in said clerk’s office on the 25tli day of October, 1899, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Jacob I. Housman, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Richmond on the 1st day of November, 1899, setting aside a sale under a judgment of foreclosure and a deficiency judgment therein, and providing for relief to the defendant Garrett P. Wright upon an ex parte application to the court, and also from an order entered in said clerk’s office on the 18th day of…

Appeal by the defendant, Herman H. Kipp, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 6th day of June, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, setting aside as fraudulent a conveyance of real estate from the defendant Charles Docen to the defendant Herman H. Kipp, and also from an order directing the entry of said judgment This appeal was…

Appeal by the plaintiff, Charles Schnell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 25th day of April, 1899, upon the dismissal of the complaint at the close of the plaintiff’s case by direction of the court after a trial before the court and a jury at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 25th day of April, 1899, denying the plaintiff’s…

<p>Judgment and order reversed and Judgment and order re-a new trial ordered, with costs to the appellant to abide the event.— Appeal from so much of a judgment and order entered in the clerk’s office of Erie county on the 21st day of June, 1899, as affirms a judgment of the Municipal Court of the city of Buffalo, as modified, which judgment was rendered and order made by the Supreme Court at a Special Term held in and for the county of Erie in June, 1899. The action was commenced in the Municipal Court of the city of Buffalo in January, 1899, to recover for services alleged to have been rendered to the defendant by one George E. Craine, the plaintiff’s assignor. The defendant, by his answer, in effect denied the material allegations of the complaint, and alleged specifically that the compensation for services performed by the plaintiff’s assignor, if any, had not become due and payable at the time of the commencement of the action. The issues were tried before a judge of the Municipal Court, and judgment was rendered in favor o£ the plaintiff for §201.28 damages and costs. From that judgment an appeal was taken to the Special Term of the Supreme Court, with the result that the judgment of the Municipal Court was modified by striking therefrom the sum of thirty dollars and ninety-eight cents, and as so modified was affirmed, with ten dollars costs to the respondent.—</p>

Order modifiedas directed in opinion, and as modified affirmed, without costs.—Appeal from an order granting a motion of the defendant for alimony and counsel fee pending an action for divorce.—

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.—Appeal from an order granting a temporary injunction.—

<p>Judgment affirmed, with costs to respondents Bon as against appellants. Appeal by the defendants Stuart, Hartland and lago, and by defendant Holdsworth, from an interlocutory judgment entered upon a decision modifying and confirming a referee’s report.—</p>

<p>Order affirmed,with costs.— Appeal from a final order granting a peremptory writ of mandamus.—</p>

<p>Judgment affirmed, with costs.—Appeal from judgment entered upon a decision after trial, a jury having been waived.</p>