Volume 50 — New York Supplement

Action by Margaret Cain against the Syracuse, Binghamton & New York Railroad Company for personal injuries. Prom a judgment dismissing plaintiff’s complaint on defendant’s motion for.a nonsuit (45 N. Y. Supp. 538), plaintiff appeals. Affirmed.

<p>1. Alienating Husband’s Affections.</p> <p>In an action for the alienation of a husband’s affections, defendant is not liable unless the evidence shows she succeeded in the alienation by doing or saying something intended to engage his affections and seduce him from his wife.</p> <p>2. Same—Evidence.</p> <p>In an action for the alienation of a husband’s affections, proof of defendant’s attractiveness, and the fact that she may have been pleased with the husband’s admiration, is incompetent.</p> <p>3. Same.</p> <p>In an action for the alienation of a husband’s affections, a letter by the husband to the wife a few days before he fully abandoned her, expressing only facts and opinions regarding the state of his affections in relation to hi’s wife and defendant, is not competent evidence as a part of the res gestm.</p> <p>Appeal from trial term, Tompkins county.</p> <p>Action by Marta Witman against Gertrude W. Egbert for alienating the affections of plaintiff’s husband. Judgment for plaintiff. Defendant appeals. Reversed.</p>

Quo warranto, on the relation of Caleb W. Mitchell, against Charles H, Sturges. From a judgment dismissing the complaint on the merits (47 N. Y. Supp. 999), plaintiff appeals. Affirmed. The action was in the nature of a quo warranto for the purpose of ousting the defendant from the office of president of the village of Saratoga Springs, and declaring the relator entitled thereto.

Action by Fred E. Elston against Letitia Evans and another. From a judgment for plaintiff, defendant Letitia Evans appealed to the county court of Tompkins county, where a new trial was had. From a judgment directing a verdict for plaintiff, defendant Letitia Evans appeals. Reversed.

Action by James H. Bailey, as administrator of the estate of Charles E. Bailey, deceased, against the president, managers and company of the Delaware & Hudson Canal Company. From a verdict and judgment for plaintiff and an order denying a new trial, defendant appeals; Reversed.

Action by David Sullivan and another against Herbert T. Dunn •and others. From a judgment dismissing the complaint against John Eusner, plaintiffs appeal. Reversed.

Action by Henry Geburre against John C. Pearson and others. From an order denying a motion for resale of real estate sold under the judgment in the case, Pearson and certain other defendants appeal. Affirmed.

Action by Joseph Kelly against the Connecticut Mutual Life Insurance Company. From a judgment entered on a verdict for plaintiff, and from an order denying a new trial, defendant appeals. Keversed. In January, 1883, Shubal Kelly, father of the plaintiff, applied to the defendant for a policy of insurance, which was issued to him in the sum ■ of $5,000, to be paid upon his death to the plaintiff.

Action by Augustus Clason against the Nassau Ferry Company and another. From a judgment of the appellate term of the supreme court (45 N. Y. Supp. 675) modifying a judgment of the general term of the city court, plaintiff appeals. Affirmed.

In the matter of the petition of Martin Dunn, Jr., to disbar a member of the bar. Application dismissed. This case arises upon a petition presented to this court by one Martin Dunn, Jr., asking that Lewis E. Griffith, an attorney and counselor of this court, be disbarred and prohibited from practicing in the courts of record of this state, because of the matter charged against him in such petition.

<p>Change of Venue—Affidavit—Sufficiency.</p> <p>The rule that án affidavit on a motion for change of venue, by which it appears that the moving party expects to prove certain facts by certain witnesses, but disclosing no source of information that such witnesses would swear to the facts therein stated, is fatally defective, does not prevail in the Third department of the appellate division of this court.</p>

Action by Harriet Wadsley against Lansing Houck for damages for personal injuries. From an order denying plaintiff’s motion to vacate an order previously made on her motion, plaintiff appeals. Affirmed.

Action by Herman Schmaltz against Smith M. Weed for breach of contract. From a judgment giving plaintiff nominal damages only, and awarding costs to defendant, plaintiff appeals. Reversed.

Action by William Scott, an infant, by Ms guardian ad litem, against •the mayor, aldermen, and commonalty of the city of New York. From .a judgment entered on a dismissal of the complaint, plaintiff appeals. Reversed.

<p>Receivers—Authority to Defend—Reference to Counsel.</p> <p>An order, on motion of a receiver for leave to defend in a certain action, authorizing him to employ counsel to advise him as to a defense, and to defend if so advised, though unobjectionable in authorizing him to take the advice of counsel, was improperly granted so far as it allowed such counsel to determine whether a defense should be interposed, as such question was one to be determined by the court, when properly presented.</p>

Action by William J. Whitney against the New York Casualty Insurance Association and another for malicious prosecution. Judgment for defendants, and plaintiff appeals. Reversed. The defendant the New York Casualty Insurance Association is an insurance corporation, and the defendant McArthur was, at the time of the transactions out of which this action arose, an attorney and counselor at law, a director of such association, and its legal adviser.

Ejectment by Ellen James against Isabella Lewis. From a judgment for defendant, plaintiff appeals. Reversed. Patrick Eoach was the owner of a few acres of land in the town of Granville. It was bounded on the east by a highway. On May 2, 1862, he conveyed a portion of these lands to Daniel I. Day, and retained the balance of them.

Action by Lorenzo D. Hurd against Theodore D. Gere and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Action by the Adirondack Railway Company against the Indian River Company and others for injunction. From an order continuing an injunction, defendants appeal. Reversed. The defendants, being the owners of a large amount of wild land in townships Nos. 15 and 32, “Totten and Grossfield’s Patent,” so called, offered to sell the whole of township No. 15 and 18,000 acres in township 32 to the forest preserve board.

Action by Barzell M. Strong against Cyrus Waters to recover for work done and material furnished under a contract to drill a well. From a judgment in favor of defendant, plaintiff appeals. Reversed. Action to recover under a written contract to drill a well for defendant.

<p>Appeal from special term, Broome county.</p> <p>Action by Maria A. Decker against the High Street M. E. Church and others. From a decision sustaining a demurrer to the complaint, plaintiff and some of defendants appeal. Affirmed.</p>

Proceeding by Samuel J. Weir against Wilbert S. Birdsall and others. From an order awarding petitioner the possession of certain real estate, defendant Birdsall appeals. Reversed.

<p>Certiorari by the people, on the relation of the International Contracting Company, to review the determination of the comptroller in assessing upon the relator a business or franchise tax for the year ending November 1, 1895, under chapter 542 of the Laws of 1880, and the acts amendatory and supplemental thereto. Determination of comptroller modified.</p>

Application by the board of rapid transit commissioners for reargument, and application on the part of property owners for settlement of order heretofore rendered. 49 N. Y. Supp. 60. Modified.

<p>Appeal from judgment on report of referee.</p> <p>Action by Edwin B. Sheldon against Bichard Wickham and another, as assignee for benefit of creditors, to foreclose a mortgage on a factory and the machinery therein. Judgment for defendants. Plaintiff appeals. Affirmed.</p> <p>This action was brought to foreclose a mortgage executed on the 15th day of April, 1891. The mortgagor, Richard Wickham, had, in 1875 or 1876, erected for one Arnold a building in the city of Albany, and immediately thereafter occupied the same as a carpenter shop, as the tenant of the owner, and continued such tenancy until the time of the execution of said mortgage. While thus the occupant of said building as tenant, Mr. Wickham placed therein certain machinery, which is the subject of the controversy in this action. He testified on the trial that "it was part of the arrangement under which I built it that if Mr. Arnold decided to make it into a shop, that it would be occupied by me. There was some arrangement with Mr. Arnold that I should ultimately purchase it. In putting the machinery into the building I had in view the possibility of my permanently occupying it as a carpenter and building shop; and I expected that, as soon as I occupied that building, to habitually use that machinery, and make a profit out of the use of it.” In February, 1891, Mr. Wickham applied to Eugene M. Jerome, the agent of the plaintiff, for a loan of $12,000 to enable him to purchase the mortgaged premises from the Arnold estate, and, after negotiations, the mortgage sought to bo foreclosed was executed to secure a loan of $12,000 made by the plaintiff. Mr. Wickham testified as follows in reference to such loan: “At the time I gave this mortgage I had an arrangement with the executors of Mr. Arnold to purchase that property. This mortgage to Mr. Sheldon was a purchase-money mortgage. Sheldon advanced the money, that I could purchase the property from the Arnold estate. It was then my intention -when I gave this mortgage to continue in business on this real estate, and to use my machinery in connection with the business, and to make a profit 'out of the real estate and machinery, and I expected to habitually use that machinery in connection with the real estate for the benefit of my business.” The mortgage in question, under the description of the real estate, contained the following clause: “Together with the buildings, machinery, and all other fixtures thereon.” About the same time, but subsequent to this loan, Mr. Wickham made a further loan of the plaintiff of $4,000, secured by a .chattel mortgage which has since been paid. This mortgage covered the same machinery which is the subject of the controversy in this action and other personal property. At the end of Schedule A of said mortgage, whiell contained a list of such machinery, was the following clause: “The aforesaid buildings and machinery being included in this chattel mortgage, subject expressly to all the right of the said Edwin B. Sheldon, under a real-estate mortgage covering the said premises, and the buildings, machinery, and fixtures thereon, it being intended to hereby include all property not passing under the aforesaid real-estate mortgage.” The plaintiff in this action alleged and claimed that the said articles of machinery, at the time of the execution of such mortgage for $12,000, were intended to be, and were, made fixtures and a part of the realty, and included in and conveyed by said mortgage. The respondent William ,T. Hillis, as assignee in trust for the creditors of said Richard Wickham, denied said allegation. The referee, to whom the issues in the action were referred, found: “(1) That the title to the articles set forth in finding No. 8 of fact [being the machinery in question] passed to the defendant William H. Hillis, as the assignee for the benefit of the creditors of said Richard Wickham, and that they did not become a part of the realty under said mortgage. _ (2) That the other machinery—boiler, engine, shafting, gearing, belts, and piping— did become a part of said realty, and, with the buildings and other fixtures, are covered by said mortgage to the said plaintiff.” From that part of the judgment entered on such report having reference to said machinery, the plaintiff has appealed to this court.</p>

Albany county. Action by Henrietta Church, as executrix of the last will and testament of Walter S. Church, deceased, against Lyman Hempsted and wife. From a judgment entered on the decision of the court on a trial without a jury, defendants Hempsted and wife appeal. Affirmed.

<p>1. Notice of Trial—Service—Fractions of Day.</p> <p>Notice of trial, which Code Civ. Proc. § 977, permits to be served at anytime “after the joinder of the issue,” is ineffectual where served on the-same day, but before the answer is served; the principle that the law-does not regard fractions of a day having no application.</p> <p>2. Same—Extension of Time to Answer.</p> <p>Sup. Ct. Rule 24, providing that, in case of extension of time to answer,, date of the issue shall he as of the time when the answer would have-been served in the absence of an extension, does not allow notice of trial’ to be served before the answer.</p>

Action by William Boetgen against New York & Harlem Railroad Company for personal injuries. There was a verdict for defendant, and plaintiff moved for a new trial. Denied.

<p>1. Gifts—Delivery.</p> <p>Where testator, after having bequeathed a certain sum to his executors, in trust to pay the income thereof to his sister during life, advised one of such executors to give such beneficiary a certain other sum, if he thought best, which he promised to do, such transaction did not constitute a gift to such beneficiary, as there was no delivery, and it depended on the will of such executor.</p> <p>2. Trusts—Title in Donor.</p> <p>Nor did such transaction create a trust in favor of such beneficiary, as the title to the fund in question remained in testator.</p> <p>8. Gifts—Delivery.</p> <p>Where such executor, after testator’s death, advised the beneficiary of such transaction between him and testator, and thereafter gave her a portion of such sum, and paid her the interest on the remainder thereof, there was no consummated gift by him of such remainder.</p> <p>4. Trusts—Title in Donor.</p> <p>Nor did such transaction constitute such executor the trustee of such beneficiary, where such fund was in no manner set apart by him.</p> <p>Landon and Herrick, JJ., dissenting.</p>

<p>1. Drafts—Acceptance—Failure of Consideration.</p> <p>The defense of failure of consideration is not permissible between theaeeeptor of a draft and a payee who takes it without notice.</p> <p>3. Same—Consideration.</p> <p>An unexecuted promise of the drawer is sufficient to sustain an absolute acceptance by the drawee, where the promises are independent, and are to-be performed at different times.</p> <p>3. Same—Suspension of Remedies.</p> <p>By changing a sight draft to 60 days, the acceptor suspends all remedies-of the holder against the drawer for that time.</p> <p>i. Same—Consideration.</p> <p>Such suspension of remedies, assented to by the payee, is a good consideration for the acceptance.</p>

Action by George Bundle against Read Gordon. From an order denying defendant’s motion to interplead a third person, defendant appeals. Affirmed. _ This action was commenced in a justice’s court of the county of Sullivan to recover a balance of $39.71 claimed to be due from the defendant to the plaintiff on a contract for the sale of stone.

<p>1. Taxation—Foreign Corporations—Interstate Commerce.</p> <p>Where the only business carried, on by a nonresident corporation in New York was that of soliciting orders through agents, and thereafter shipping the goods direct to the purchaser from the home factory, the business cannot be taxed under Laws 1880, c. 542, providing for the taxation of franchises of foreign corporations, since such tax would be a burden on interstate commerce.</p> <p>2. Same—Doing Business in the State.</p> <p>A foreign corporation leased an office in the state, in which was kept about 84,000 worth of samples for its agents as incidental to the business of taking orders and making sales in New York. It also had an average balance of 83,470 in a bank in said city. Held, that the corporation was not doing business in the state, within Laws 1880, c. 542, imposing a franchise tax on foreign corporations.</p>

Application before a single justice of the supreme court by the taxpayers and freeholders of the village of Plattsburgh for a summary investigation into the financial affairs of said village. • From a decree of the justice the president and other officers of the village appeal. Modified.

Action on a promissory note by Edwin R. Rorthup and another against Edward D. Cheney, impleaded with Edward W. Cheney. Judgment dismissing complaint against defendant Edward D. Cheney, and motion for new trial denied. Plaintiffs appeal. Reversed.

This was a proceeding brought by John B. Tuthill, Jesse Hunter, •Huy Miller, Edmund King, B. W. Chamberlain, and others—25 in all— to have commissioners appointed to drain the onion meadows at ■Chester and Greycourt, comprising about 750 acres of land. Oscar Durland, Charles Caldwell, and William H. Pierson were appointed commissioners. They commenced work in August of 1895, and completed it in July of 1896.

<p>1. Injury to Employe—Detective Appliances.</p> <p>In an action to recover damages for tile death of plaintiff’s intestate, it appeared' that while at work in the hold of defendant’s steamship, from' which chalk was being unloaded, he was struck by a piece of chalk falling from a bucket, and was killed. There was abundant evidence that the bucket and its automatic locking device, intended to prevent a premature discharge of the contents, were old, and very much out of repair. Defendant’s contention was that the accident was occasioned by its collision with an empty bucket. Eeld, that proof of such collision was insufficient without showing that the bucket would have dumped as it did even if in good repair..</p> <p>2. Same—Delegation ot Master’s Duty.</p> <p>A master cannot delegate the duty he owes to his servants to keep in safe condition the appliances they work with.</p>

<p>Executors—Personal Liability—Attorney’s Services.</p> <p>For legal services rendered to executors under a contract with them they are liable individually, and not in their representative capacity, and the addition - of the word “executors” to their names in the title to an action against them to recover compensation therefor is a mere descriptio personae, and does not change the nature of the action, nor add or take away anything from the allegations of the complaint.</p>

Suit by the people of the state of New York, on the relation of William H. D. Sweet, against H. H. Lyman, state commissioner of excise, for a peremptory writ of mandamus. From an order denying such writ, plaintiff appeals. Affirmed.

Action by Patrick Byrne against the Eastmans Company of New York. Motion for judgment, and exceptions ordered to be heard in the first instance to the appellate division. Exceptions overruled, and judgment for defendant.

<p>Insurance—Change op Beneficiary.</p> <p>Insured’s policy permitted her to change the beneficiary, with insurer’s consent obtained from its president or secretary. She executed a paper necessary for such change, and delivered it to insurer’s solicitor, who told her that “it was all right,” and two days thereafter she died. In the meantime the paper had been mailed to the home office, and was from there promptly returned to the local superintendent, with various questions about it, but without the signature of the president or secretary, and was received by the superintendent after insured’s death. Reid, that the beneficiary was not changed.</p>

Action by Eugene K. Smith against Alice Keteltas and others. From an order setting aside the service of summons on certain incompetents, and vacating the appointment of a guardian ad litem for them (50 H. Y. Supp. 747), plaintiff appeals. Affirmed.

Action by Bichard B. Wick against the Ft. Plain & Richfield Springs Railway Company and others. From a judgment foreclosing nine mechanics’ liens, and for damages in favor of lienors whose liens had ceased to be such by lapse of time, rendered on a decision separately stating the facts found aiid the conclusions of law, defendant railway company appeals. Affirmed.

<p>Appeal from special term, Albany county.</p> <p>Action by the town of Watervliet against the town of Colonie. A motion made by defendant for an order discontinuing the action, and enjoining the plaintiff’s attorney from its further prosecution, upon the ground that the town of Watervliet had ceased to exist, and that there are no persons or parties by whom or for whom it can be revived, was denied. Defendant also moved that, in case the action be not discontinued as above asked for, the town of Green Island and the city of Watervliet, and each of them, he made parties defendant. This part of the motion was granted. Defendant and the city of Watervliet appeal from the whole order. The town of Green Island unites in the appeal upon the argument. Reversed.</p>

<p>Appeal from special term.</p> <p>Action by Patrick Gallagher against Susanna S. Minturn. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Mortgage Sale—Revocation.</p> <p>A referee sold property on foreclosure, at 10 a. m. on the day advertised, to L., for $4,200, one-tenth to be paid at once. L. gave his check for $420, but, owing to a mistake of the drawee bank in regard to allowing his overdrafts, payment was refused; and, at 3 p. m. of the same day, the referee, without notice, sold the property to B., the only bidder, for $3,000. Next morning, L. tendered $420 in redemption of his check, which was refused. D., two days later, bought the premises of B. for $4,800, and he testified that, if he had been notified of the resale, he would have at least equaled his bid of $4,150 made in the morning. Held, that the sale should be set aside.</p>

<p>Corporations—Stockholders’ Liability—Defenses.</p> <p>In an action by a judgment creditor of a corporation against stockholders, under Laws 1890, c. 564, § 57, and Laws 1892, c. 688, § 54, it is no defense that the execution on which the suit is based was falsely returned unsatis- ■ fled, unless it was done in collusion with plaintiff.</p>

<p>Eminent Domain—Compensation—Benefits.</p> <p>Under Code Civ. Proc. § 3370, in regard to fixing compensation for property-condemned for public use, providing that the commissioners “shall not make any allowance or deduction on account of any real or supposed benefits which the owners may derive from the public use, for which the property is to be taken, or the construction of any proposed improvement connected with such public use,” the commissioners cannot consider the fact, and make allowance therefor, that the lands of defendant not taken are peculiarly benefited by the construction and operation of plaintiff’s railway over the land taken.</p>

Certiorari by the people, on the relation of John C. Healey, Charles L. Sanford, and George Van Dyke, against the board of fire commissioners of the city of Auburn. Dismissed.

<p>Negligence—Dismissal op Complaint.</p> <p>Where plaintiff’s evidence clearly established the contributory negligence of intestate in the accident which caused her death, the' complaint should have been dismissed.</p>

<p>Pleading—Answer—Contradictory Defenses.</p> <p>An answer may deny that defendant ever entered into the contract on which plaintiff seeks to recover, and also plead that defendant was released from liability thereunder by reason of plaintiff’s fraud, as Code Civ. Proe. § 507, authorizes a defendant to plead as many defenses as he has.</p>

Action by Jared H. Tilden against the Buffalo Office-Building Company. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Affirmed.

<p>1. Municipal Corporations—Removal ’op Fire Marshal.</p> <p>The charter of the city of Syracuse provides that the mayor shall, appoint • a fire marshal for a period of four years, and who may be removed for cause upon charges duly furnished in writing by the mayor; and that the power to remove an officer is vested in the common council after an opportunity has been given to the officer to be heard, except as otherwise provided. There was no other provision relating to the removal of the fire marshal. Bcld, that the power to remove the fire marshal is vested in the common council, to be exercised only upon charges preferred by the mayor after an opportunity is given him to be heard.</p> <p>2. Same.</p> <p>If the mayor has power under the charter to remove the fire marshal, he cannot arbitrarily exercise such power without furnishing him with the charges, and an opportunity to be heard.</p> <p>3. Certiorari—Review—Removal op Oppioer.</p> <p>Where a charter provides that a city officer shall not be removed except upon charges made in writing, the implication is that such charges must be investigated by some board or officer, and tlieir action is reviewable by a, writ of certiorari, unless otherwise provided.</p> <p>4. Same.</p> <p>Where a charter provides that, before an officer shall be removed, he shall be entitled to a hearing on the charges preferred against him, and where such hearing is not given, the proceedings may be reviewed by certiorari.</p>

Action by Lucie Hamilton against the Fidelity Mutual Life Asso- ' ciation of Philadelphia, Pa., upon a life insurance policy. Judgment for plaintiff, and defendant appeals. Beversed. Verdict for $2,213.33 taken for the plaintiff at a trial term in Erie county. Motion for a new trial on the minutes denied. Appeal from the order denying the motion and from the judgment entered upon the verdict.

Application by the people, on the relation of Louis K. Peck, for a writ of mandamus directing the town board of Salina to audit an account of the relator. From an order denying the writ, plaintiff appeals. Affirmed.

<p>Appeal from trial term.</p> <p>Action by Jacob Bastían against the Keystone Gas Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed. •</p>

<p>Appeal from trial term, Erie county.</p> <p>Action by William J. Burgh en against Charles G. Purdy and ThomasDulmage to recover the value of goods alleged to have been converted. From a judgment of nonsuit, and an order denying a motion for new trial, plaintiff appeals. Reversed.</p> <p>The complaint alleges that on February 4, 1896, the plaintiff executed to the defendant Purdy a chattel mortgage to secure $212 on certain articles of household furniture purchased of Purdy about that date, to secure the purchase price thereof, and also alleges that on February 17th the plaintiff executed to Purdy a second chattel mortgage in the amount of $88.50 on certain other household furniture, and that the plaintiff paid several sums upon said mortgages. It is averred “that said sums paid to the said Purdy as interest were far in excess of the amounts of interest lawfully due and owing on said mortgages, and were usurious and extortionate, and were forced from the plaintiff by threats of said Purdy to foreclose said mortgages.” It is further alleged in the complaint that Purdy subsequently “pretended to assign to the defendant Dulmage the aforesaid mortgages; that on' or about the 2d day of September, 1896, the defendant Dulmage, acting under 'cover and color of right of the said mortgages, but in reality, as the plaintiff is informed and believes, acting at the instigation and under the direction of the said Purdy, as his tool and cat’s paw, together with, agents of the said defendant Purdy, did unlawfully enter upon the premises of the said plaintiff at No. 178 Elm street, Buffalo, N. Y., and under cover and color of right of the said chattel mortgages did unlawfully, willfully, and wrongfully seize, carry away, and convert to the use of the said defendants all the household furniture and chattels mentioned and described in the aforesaid mortgages, and, in addition thereto, certain property of the plaintiff, consisting of articles .of household furniture and chattels not included in the said mortgages,” specifically mentioned and described in the said complaint. It is averred that the property thus seized and carried away was the property of the plaintiff, and “that the defendants were so notified, and knew, when they took, carried away, and converted the said goods and chattels, that they were forbidden by the plaintiff to take or remove the same.” The answer of the defendant Dulmage admits execution and delivery of the two chattel mortgages, and avers that on the 26th of August, 1896, he purchased the chattel mortgages of the defendant Purdy, and demanded payment thereof, and that ip virtue of the mortgages he seized the property mentioned in the complaint, and advertised and sold the same at public auction, and that the sum received was insufficient to pay the amount due from the plaintiff upon the mortgages. The answer admits that Purdy is a resident of the city of Buffalo, and denies the other allegations of the complaint not so admitted. The answer of Purdy admits the execution and delivery of the-two chattel mortgages mentioned in the complaint, and alleges that “on the 26th day of August, 1896, fpr value received, he sold and assigned the said chattel mortgages to the defendant Thomas Dulmage, who thereby became the true and lawful owner and holder of said chattel mortgages”; and denies the other allegations of the complaint. Exceptions were taken by the plaintiff at the time the motions for a nonsuit were granted by the trial court. During the trial the</p> <p>plaintiff made a motion “that the evidence submitted by the plaintiff, the statements that were made by Dulmage, and also the statements made by Purdy, and all of the evidence that has been submitted in reference to the acts of Dulmage, shall apply to Purdy.” The court granted that motion, and thereafter the motion for a nonsuit in behalf of Purdy was granted. The defendant Dulmage made a motion for a nonsuit upon the ground “that the court has not jurisdiction over the subject-matter of the action or of the person of the defendant. The defendant is a resident of the city of Rochester, and has never resided in this county.” That motion was denied, and the court, in denying the motion, observed, “There is no evidence to show that he resides in Rochester.” Thereafter the defendant Dulmage was examined as a witness, and gave evidence tending to indicate that his residence was in Rochester, Monroe county. The motion for a nonsuit in behalf of Dulmage was renewed, and in response thereto the court observed: “I don’t want to dismiss the case if you expect to prove he lived here; but, if the proof stands as it is now, there is no use going: any further, because, if he is a nonresident,—if he lives in Rochester,—then the court has not got jurisdiction.” Thereupon the plaintiff called Mary Fitzgibbons, who gave evidence tending to show that she rented to the defendant Dulmage rooms for himself and wife in August, and that his wife accompanied him to the rooms, and resided there, and that he continued to pay her rent, and that he “kept his rooms with his wife from some time in the forepart of August.” The room which Mrs. Fitzgibbons rented to Dulmage was property belonging to the defendant Purdy,</p>

Action by Henry J. Braker against the Connecticut Indemnity Association. From a judgment entered on a verdict, and from an order denying a new trial, defendant appeals. Affirmed.

Administration of J. Spencer Hosford and another, executors of the will of Barent Van Alstyne, deceased. From a decree of final accounting, Henry Snyder and others, legatees, appeal. Modified. The will of Barent Van Alstyne, deceased, was admitted to probate by the surrogate of Columbia county on the -28th day of May, 1886, and letters testamentary were at the same time issued to J. Spencer Hosford and Edward P. Van Alstyne, the executors named in said will.

Charles Flaherty was convicted of an act of sexual intercourse with a female under the age of 16 years, not his wife, and he appeals. Affirmed.

<p>1. Deed—Restriotions—Construction.</p> <p>The plaintiff conveyed 'certain building lots to defendant by a deed containing a covenant that defendant would not erect thereon any “tenement bouse,” or any “house except private dwellings.” In a suit to restrain the erection of a proposed structure as in violation of the covenant, it appeared that it was a three-story building, of which each floor constituted one complete apartment for housekeeping. Reid, that the building was not a private dwelling within the intent of the parties, and that, as the covenant was one against construction, and not against use, the fact that defendant did not intend to have it occupied by three families was immaterial.</p> <p>& Same—Violation.</p> <p>The defendant had also covenanted that the front walls of buildings to be erected should set back “at least ten feet from the front line of the lot.” It appeared that a three-story bay window, with the stone foundation on which it rested, came within eight feet eight inches of the front line. Held, that it constituted a violation of the covenant.</p> <p>Bumsey and O’Brien, JJ., dissenting.</p>

Administration of the estate of Charlotte Kimberly, deceased. From a decree of the surrogate imposing a tax on a legacy to the Buffalo General Hospital, such legatee and John L. Kimberly and another, executors, appeal. Reversed.

Action by W. Preston Hix against the Edison Electric Light Company. From a judgment entered on a verdict, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>Appeal from special term, New York county.</p> <p>In the matter of the application of the board of street opening and improvement relative to acquiring title to Decatur avenue, from Brookline street to Mosholu Parkway. From an order confirming the report of the referee distributing an award to unknown owners ■of property taken, Cornelius B. Schuyler appeals. Affirmed.</p>

<p>Appeal from surrogate’s court, New York county.</p> <p>In the matter of the final judicial settlement of the annual accounts of Samuel N. Hoyt and others, trustees under the will of Jesse Hoyt. From a decree of the surrogate court the trustees and others interested appeal. Reversed.</p>

Action by Otto W. P. Westervelt and Carl F. Braun, composing the firm of W. H. Westervelt & Co., against Francesco Marino and Giuseppe Marino, composing the firm of F. Marino & Go. From an order denying a motion to vacate an order for the examination of Giovanni Dominci, as having property of defendants, against whom a warrant of attachment had been issued, defendant garnishee appeals. Modified.

<p>Appeal from judgment on report of referee.</p> <p>Action by Adele W. Leach against George Putnam Smith. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Action—Damages fob Pebjuby.</p> <p>An action cannot he maintained to recover damages for perjury or subornation of perjury.</p>

<p>Appeal from special term, Montgomery county.</p> <p>Action by T. H. Benton Crane and another, as assignees, against John. C. Miller. From an order of special term, directing the clerk to tax costs to defendant under the provisions of section 3234 of the Code of Civil Procedure, and also amending the judgment as entered so as to make it conform to the proceedings had at the trial, plaintiffs appeal. Affirmed.</p>

<p>1. Estoppel—Persons Affected.</p> <p>An estoppel cannot be claimed in favor of persons who were not parties or privies to the transaction out of which the estoppel arose.</p> <p>2. Same—Vendor and Purchaser.</p> <p>Where plaintiff purchased goods, and afterwards brought an action against the vendors to rescind the sale, on the ground of inferior quality of the goods, which action was compromised by plaintiff’s retaining the goods, he is not thereby estopped from claiming title to the goods as to third persons, who attached them as the property of the vendors.</p> <p>3. Sales—Acceptance—What Constitutes.</p> <p>Where a company purchased certain metal, and, finding it inferior, commenced an action to rescind the sale, which was compromised by one of its officers, the company keeping the metal, complaints by the company of such metal, and a statement of its disinclination to accept the same, do not show a nonacceptance.</p> <p>4. Same—Use of Property after Knowledge of Inferiority.</p> <p>A company purchased metal, and, finding it inferior, wrote to the vendors to that effect, and proposed to send it back, but still continued to use it, until it had used more than half the metal, when the balance was attached by creditors of the vendors. Held, that the purchaser, by its use of the metal and failure to promptly send it back when its inferiority was discovered, had accepted it, and held the legal title thereto.</p>

Action by the Thomas Manufacturing Company against Tracy M. Symonds and Wilson Darling. From an order denying plaintiff’s application for judgment on defendants’ default in answering, plaintiff appeals. Eeversed.

<p>1. Malicious Prosecution — Malice — Probable Cause — Evidence—Sufficiency.</p> <p>K. and G., by agreement, each furnished part of the capital, and bought and sold merchandise for their mutual profit. They kept books in the firm name, and had several accountings, at one of which it was found that G. was overdrawn. He offered to- withdraw from the agreement, and turn over property to K. in settlement, but K. insisted that he continue in the business. At a later accounting, G. was still overdrawn; and in settlement be turned over property in part payment, and gave bis note for $1,000 for the balance, for which K. receipted in full of account. The note was placed in judgment, and G. tendered a payment thereon, which was refused by K., who then decided to institute criminal proceedings. Held, that a prosecution of G., at the instance of K., for the larceny of $1,000, was malicious and without probable cause.</p> <p>2. Same—Instructions—Settlement.</p> <p>A request for an instruction that, if money was misappropriated by the plaintiff, a subsequent settlement between the plaintiff and defendant as for debt on an implied contract did not bar a criminal prosecution, was sufficiently covered by an instruction that, if money was stolen, there could be an adjustment of the indebtedness, and the crime still remain, and that the defendant could secure his debt, and then cause the arrest of the plaintiff for the crime.</p> <p>3. Same,</p> <p>In an action for malicious prosecution, it was shown that, on a settlement between plaintiff and defendant, money afterwards claimed by the defendant to have been stolen was treated as a debt. Held to be a circumstance for the consideration of the jury in determining whether the defendant believed that plaintiff was guilty of larceny.</p>

Supplementary proceedings by George W. Pierce against W. Scott Parish. From an order requiring Emma E. Parish to be examined as to property in her possession belonging to the judgment debtor, she-appeals. Reversed.

Action by Nellie French against Alvin Seamans. From an order refusing to set aside the judgment for plaintiff (48 N. Y. Supp. 9), defendant’s executrix appeals. Reversed.

The action was commenced in Brie county, in March, 1896, to recover of the appellants and Henry J. Wilkes, a majority of the directors of the Buffalo Brass & Iron Bedstead Company, a stock corporation organized and existing pursuant to the stock corporation law, damages resulting to the plaintiff, who had purchased stock in the said corporation upon the faith of an annual report made-by them of the property of the corporation, pursuant to sections '30 and 31 of the said…

Action by David F. Dobie, individually and as executor of the last will and testament of Thomas Armstrong, deceased, and others, against Emmett Armstrong and another, to determine the validity of the probate of the will. There was a judgment on verdict establishing the validity of the will, and Emmett Armstrong appeals. Affirmed.

Supplementary proceedings by William W. Zelie and Josiah Zelie against Jesse O. Vroman. Motion by defendant to vacate an order for the examination before a referee of a third person. Granted.

<p>Interpleader—Life Insurance.</p> <p>The constitution of a fraternal order provided for payment of $500 to the widow of a deceased member, with permission to the member to bequeath half thereof to his children. A member who had a wife, but no children, bequeathed half the death benefit to his sister. In an action by the widow to recover the $500, a motion for an interpleader on the ground of a claim by the sister was denied. Held, that as, under the constitution, the bequest to the sister was unauthorized, the motion was properly denied.</p>

<p>1. Negligence—Presumptions.</p> <p>The presumption of negligence, arising from the mere fact that something falls from a building into a highway, does not apply where it falls within the inclosure of a private building in process of erection.</p> <p>2. Same—Evidence.</p> <p>While the plaintiff was rightfully in a building, in which defendant, as a contractor, was doing the brickwork, a brick fell through a wellhole for a ladder, and struck him. It appeared that all the usual precautions against danger, including proper planking on the floors above, had been taken, and there was no evidence as to what caused the fall of the brick. Held, that the facts furnished no basis for a recovery.</p>

Action by Patrick Hannigan against Jeremiah T. Smith. From a judgment of nonsuit, and an order denying a motion for a new trial, plaintiff appeals. Affirmed. The plaintiff was a hod carrier in the employ of the defendant, and seeks in this action to recover damages for personal injuries received while so employed, working on a building in East Twenty-Third street which the defendant was reconstructing.

Action by John Jewell against New York Central & Hudson Biver Railroad Company. From a judgment entered in Genesee county for $4,421.02, and from an order of special term denying a motion for new trial on a “case” and exceptions, defendant appeals. Reversed. The plaintiff brings this action to recover damages for personal injuries which he claims to have sustained in consequence of the defendant’s negligence.

Action by Silvanas F. Jenkins against the Auburn City Railway Company and others. Motion by defendants to vacate an injunction granted pendente lite. From an order denying the motion, defendants appeal. Reversed.

Action by Mary W. Scheper, as executrix of Allrich Scheper, deceased, against Lydia R. Briggs, as administratrix of Samuel Barton, deceased, and another. Prom a judgment entered on the report of a referee, plaintiff appeals. Affirmed.

In the matter of the estate of Henry Baldwin, deceased, James Baldwin filed his petition to be relieved of a stipulation renouncing his appointment as executor. The petition was denied, and said Baldwin appeals. Affirmed.' One Henry Baldwin died on the 5th day of December, 1895, leaving a last will and testament wherein he named his brother, James Baldwin, and one James H. Tibbitts, as executors thereof.

<p>Reference—Examination of Accounts.</p> <p>In determining whether an action on contract is referable under Code Civ. Proc. § 1013, proof to show that the trial will involve the examination of a long account may be made by affidavit if the fact does not appear upon the face of the pleading.</p>

Action by Christian Abele against Benjamin J. Falk. From a .judgment entered on a verdict of the jury, and from an order denying a new trial, defendant appeals. Reversed.

Action by John Cullen against Patrick Gallagher. Judgment for plaintiff. Defendant appeals. Affirmed. The action was brought for the foreclosure of a mechanic’s lien. Held: “The plaintiff thereupon proceeded substantially with, and completed in due season,, all the work and materials by him agreed to be furnished and provided as aforesaid.

Action by Bose Laverdure, by her guardian ad litem, Alphonse Lavérdure, against the mayor, aldermen, and commonalty of the city of New York. From a judgment entered on a verdict, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>Action against Infant—Necessaries.</p> <p>A complaint, in an action against an infant, alleging that plaintiff furnished the defendant with board and lodging, upon her request and implied promise-to pay therefor, and that they were necessaries and suited to her position, in life, but not alleging inability or refusal of the child’s father to support her, fails to.set forth facts constituting a cause of action.</p>

Action by J. Tredwell Richards and another against Norman S. Washburn, Jr., and others. From a judgment on a verdict directed by the court, plaintiffs appeal. Affirmed.

Action by Huida Lindenheim against the New York Elevated Railroad Company and the Manhattan Railway Company. From an order allowing service on defendants of a paper described as an “amended supplemental complaint,” defendants appeal., Reversed.

<p>Trade-Marks—Injunction—Unfair Competition.</p> <p>A manufacturer of goods sold in packages, even though he has no trademark, is entitled to be free from unfair competition; and if, in an action brought by him to restrain the same, it appears that defendant has intentionally so put up his goods that the size and form tif package, and color of wrapper, and distinctive style and color of the labels, are likely to, and do, mislead the unwary, and induce persons to purchase defendant’s goods, supposing them to be plaintiff’s, the plaintiff is entitled to an injunction, especially if the goods are of a class purchased by people who are easily deceived.</p>

Action by Dyckman Waldron, sole executor of Cornelia Waldron, against the Union Trust Company of New York. From a judgment on a verdict, and from an order denying a new trial, plaintiff appeals. Affirmed.

<p>Appeal from special term, New York county.</p> <p>In the matter of Clement A. Griscom. Appeal from order setting aside a subpoena. Dismissed.</p> <p>The royal Prussian see-amt, at the city of Danzig, issued a commission to an attorney in New York, appointing him a commissioner, and empowering him to examine one Griscom in a matter under investigation by the see-amt. Upon the commission and other papers, a justice of the supreme court issued a subpoena requiring Griscom to appear and testify. Subsequently, upon the latter’s motion, an order was entered vacating and setting aside the subpoena; and from the latter order an appeal was taken in the name of the German government, the Danzig see-amt, and the commissioner.</p>

<p>Appeal—Law of the Case—Second Trial.</p> <p>Where judgment dismissing a complaint is reversed, and a new trial ordered, upon the ground that the question involved should have been submitted to the jury, and upon the second trial the evidence is substantially the same, the law declared by the court on the appeal is the law of the case, and a second dismissal is improper.</p>

Action by William Ledman, by his guardian ad litem, Harris Led-man, against the Dry Dock, East Broadway & Battery Railroad Company. From a judgment dismissing the complaint on a trial before a jury, plaintiff appeals. Affirmed. Argued before VAN BRUNT, P. J., and MeLAUGHLIN, PATTERSON, O’BRIEN, and INGRAHAM, JJ.

<p>1. Depositions—Commission.</p> <p>Under Code Civ. Proe. § 887, the witnesses, not within the state, to be examined by commission, must be named therein.</p> <p>2. Same—Open Commissions.</p> <p>Open commissions, upon the part of a plaintiff, to examine witnesses out of the state, will not be granted, except under peculiar circumstances, and only upon the strongest and most convincing reasons.</p>

Certiorari by the people, on the relation of Henry W. Schaefer, against James J. Martin and others, police commissioners, in removing relator from the police force of the city of New York. Affirmed.

<p>Appeal from judgment on report of referee.</p> <p>Action by Joseph Kahn against Solomon B. Lichtenstein and others. Judgment for plaintiff entered on report of referee, and defendant Lichtenstein appeals. Affirmed.</p>

Action by Silas L.'King against the village of Randolph. There was a judgment for .plaintiff, and from an order of the special term denying the motion of defendant for an order directing that the record be corrected by striking from the judgment the award of $181.26, adjudged to plaintiff as costs and disbursements, defendant appeals. Reversed. The facts in this case are undisputed. The defendant was organized under the general village law of this state.

Action by Catherine McCann, as administratrix of Simon Mc-Oann, deceased, against the New York & Queens County Railway Company. From a judgment entered on a verdict, and from an order denying a new trial, defendant appeals. Reversed.

<p>1. Divorce—Adultery—Evidence.</p> <p>In an action for divorce, on the ground of adultery, by the husband against the wife, evidence of an occurrence at the home of the plaintiff, tending only to show that defendant was indiscreet in her language, and under the influence of intoxicants,, in the presence of plaintiff’s numerous friends, who had assembled there at his request, was inadmissible.</p> <p>2. Same.</p> <p>Where it appears that the finding of a referee that the defendant committed adultery is against the weight of the evidence, and the countercharges of adultery are as well sustained, a judgment for plaintiff should be reversed on appeal.</p>

<p>Appeal from special term.</p> <p>Action by the people of New York, on the relation of Charles B. Throckmorton, against James McCartney, commissioner of street cleaning, and others. From an’order denying a motion for a writ of mandamus, plaintiff appeals. Affirmed.</p>

Action by Abraham Raphael against Abraham Mencke and others. Prom an order granting a motion for leave to issue execution on a judgment, defendant Mencke appeals. Affirmed. The judgment was recovered in the district court of the city of New York upon the 21st of March, 1887. No execution was ever issued upon it. The judgment was docketed in the office of the county clerk of New York county on the 4th of June, 1892.

Action by George Solomon, as assignee for the benefit of creditors of Henry Tkoesen, against the Continental Fire Insurance Company of Hew York City. From a judgment on the report of a referee, defendant appeals. Affirmed.

<p>Appeal from judgment on report of referee.</p> <p>Action by Hermann Colberg and another against Luke M. Em- . merson. From a judgment on report of a referee, both parties appeal. Affirmed.</p>

Action by John S. Lyle and John T. Lord against Joseph J. Little and Timothy Mahoney. From a judgment dismissing the complaint at close of plaintiffs’ opening, they appeal. Reversed.

Action by Lena Garrett against Bradford R. Wood, as executor of the last will and testament of Bradford R. Wood, deceased. From a judgment against plaintiff, she appeals. Reversed. The action is against the defendant, as the executor of Bradford R. Wood, deceased.

In the matter of the accounting of one Ludeke, assignee under an assignment for the benefit of creditors. The report of the referee modified, and referred back.

Action by George Spence against Albert W. Ham. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Action by Charles Eichhold and Edward A. Miller against Charles L. Tiffany and another on a contract of guaranty. From a judgment of the appellate term (48 N. Y. Supp. 70) affirming the judgment of the general term of the city court (46 N. Y. Supp. 534), defendants appeal. Reversed. ■

Action by Bridget Connor, as administratrix of Timothy Connor, deceased, against the mayor, aldermen, and commonalty of the city of New York. Verdict for plaintiff. From an order granting a motion to set it aside because inadequate, and directing a new trial, defendant appeals. Affirmed.

<p>Appeal from trial term, New York county.</p> <p>Action by Emma M. Lockwood against the Manhattan Storage & Warehouse Company. From a judgment dismissing the complaint, plaintiff appeals. Reversed.</p>

Application by Henry H. Lyman to revoke the liquor-tax certificate , granted to the Young Men’s Cosmopolitan Club of New York. From an order denying the application, petitioner appeals. Reversed.

<p>1. Real-Estate Agext- •</p> <p>After plaintiff, XXT"X>Xr, employed by defendant to procure a purchaser for ^Xp °v*nder a contract entitling him to the usual commission brought. fendari^o kci ¿i'anting to $24,000), had found a purchaser, and A; c-'Xr, he made a further special contract with deAVXept $0,500, the balance of commissions to be paid XX'a 'o' *>V',..uaser fully performed the proposed terms of purchase. AxT.-ui'd, and the contract of sale executed, but the purchaser in payment, and plaintiff brought action on the special t>/L‘ecover the balance of commissions. Held that, in order to /was bound to show that performance by the purchaser had been .vd by the defendant.</p> <p>3. Si „—Oancellattoh of Salf,.</p> <p>The date fixed for the performance which would have entitled plaintiff to the balance of commissions was January 2, 1895. Prior thereto defendant agreed with the purchaser, without plaintiff’s consent, that, if he would pay $100,000 on account on January 2d, his time to pay the rest of the purchase price would be extended to July. The purchaser failed to make the $100,000 payment, and, the defendant being thus entitled to accept the default as a forfeiture, the contract of purchase was canceled by mutual consent of the parties thereto. Held, that plaintiff was in no wise injured by the cancellation, and derived from it no cause of action against defendant.</p>

In the matter of the petition of Adelaide Mills, as trustee to sell real estate. From an order denying a motion to compel completion of purchase pursuant to terms of sale (50 N. Y. Supp. 966), the trustee appeals. Affirmed.

Action by Helene Baker against the New York, New Haven & Hartford Railroad Company. From a judgment on a verdict and from an order denying a new trial, defendant' appeals. Affirmed. The plaintiff, while a passenger on one of defendant’s cars, received a blow on the back of the neck from a block attached to a derrick.

<p>Appeal from special term.</p> <p>Action by George S. Harden against Julia H. Harden. From an order denying motion of defendant to strike case from calendar, defendant appeals. Reversed.</p>

Action by John J. P. Read against the New York, West Shore &' Buffalo Railway Company and others to foreclose a lien. Plaintiff had judgment, and he appealed from a part thereof. Plaintiff having died, his executors, Octavius 0. Cottle and others, were substituted as plaintiffs. Affirmed. Read was the owner of premises situate on Carroll street, in the city of Buffalo, 93 feet front and 100 feet in depth, upon which were buildings.

<p>Appeal from judgment on report of referee.</p> <p>Actions by Horace G-. Skidmore against the Fahys Watch-Case Company aud C. Wesley Harmon. From a judgment entered on the report of a referee, plaintiff appeals. Reversed.</p>

<p>Grand Larceny—Evidence.</p> <p>Upon the trial of an indictment for grand larceny, under Pen. Code, § 528, subd. 2, there was evidence that the owner of two diamond earrings delivered them to the defendant upon the latter’s agreement that he was to sell them to one N., and give the proceeds to the owner, and if they were not thus sold to return them to the owner, and that on the same day he pawned them with a third party for a loan. Held, that this evidence was sufficient to warrant a verdict of guilty, and that the court correctly refused to advise-the jury to acquit.</p>

Action by Samuel L. Hawke against John Crosby Brown, individually and as executor, and others. From a judgment entered on a nonsuit, and from an order denying a motion for a new trial, made on the minutes, • plaintiff appeals. Affirmed. This action was brought to recover damages for personal injuries received by the plaintiff on account of the fall of a building situated in Buffalo.

<p>Action by Nathan Clark and others against Harrison Clark and others to construe the will of Nathan Clark, deceased.</p>

<p>1. Note—Notice of Protest—Affidavit of Indorser—Waiver.</p> <p>Code Civ. Proc. § 923, provides that, unless an indorser shall serve an affidavit upon the adverse party denying the receipt of notice of protest, the-notary’s certificate shall be presumptive evidence of the facts stated. Eeld that, where the indorser was permitted to testify without objection that notice was never received, the service of the affidavit was thereby waived, and the question of the force of the notary’s certificate eliminated from the case.</p> <p>2. Same—Sufficiency of Notice.</p> <p>Laws 1857, c. 416, § 3 (now Neg. Inst. Law 1897), provides that where-there is no indication on a note of the residence of an indorser, and by diligent inquiry he is reputed to reside or have a place of business in the place where the note is payable, notice of protest may be served on him by mailing such-notice directed to him at such place. Eeld, that merely looking in a directory, and sending notice by mail to an address there found, which was not the indorser’s address, was not diligent inquiry, under the statute, and that a notice so sent, and never received, was not sufficient to charge the indorser.</p>

<p>Action by the Standard Fashion Company against the SiegelCooper Company and others. Demurrer sustained, and judgment for defendants.</p>

<p>Application by John D. Park & Sons Company against the National Wholesale Druggists’ Association and others for an injunction. Injunction granted.</p>

Action by John D. Cheever against the Pittsburgh, Shenango & Lake Erie Railroad Company. Held: as matter of law, that he did, and directed a verdict for the plaintiff. He refused, upon the defendant’s request, to submit the question of Brooks’ good faith to the jury, and the defendant excepted to such refusal. This is the second trial of the case.

Action by Mina Dailter and another against Marie A. Strelinger and another. From a judgment for plaintiffs entered on the decision of the court after a trial at special term, defendants appeal. Affirmed.

<p>Appeal from special term.</p> <p>Action by George Hornberger against Solomon Miller. From a judgment of the special term dismissing the complaint, plaintiff appeals. Affirmed.</p>

<p>Depositions—Striking Out Answers.</p> <p>At the trial of an action for breach of a contract to produce a play in a manner proper for a first-class theater, that portion of a written interrogatory in a deposition which asked, “Was or was not the play properly put upon the stage?” was objected to by defendant as calling for an opinion, and was stricken out with the express consent of plaintiff. Held, that under these circumstances the answer to the interrogatory that the defendant “was very marked in his want of part perfection and careful study" was also properly stricken out.</p>

<p>1. Injury to Tenant—Negligence of Landlord—Question for Jury.</p> <p>In an action by a tenant of rooms in a building to recover from the landlord damages for an injury received by plaintiff while descending the stairs at night, and due, as alleged, to his catching his foot in a hole in the stair carpet, there was a conflict of testimony as to whether the carpet was out of repair at that time. Held, upon the evidence, that the question of defendant’s negligence was properly submitted to the jury.</p> <p>3. Same—Contributory Negligence.</p> <p>At the time of the accident, the lights in the hall had been extinguished, according to a rule known to plaintiff, and be testified that he was aware of the existence of the hole in the carpet. Held, that it could not be laid down as matter of law that his failure to carry a light with him constituted contributory negligence.</p> <p>3 Same.</p> <p>The trial judge declined to charge that, if the plaintiff undertook to go down the stairs while in an intoxicated condition, he was guilty of contributory negligence. Held, that the request was too broad, and was properly refused.</p> <p>Van Brunt, P. J., and McLaughlin, J., dissenting.</p>

Action by the New York Bank-Note Company against the Hamilton Bank-Note Engraving & Printing Company and the Kidder Press-Manufacturing Company. From the judgment rendered, both parties appeal. Modified and affirmed.

Action by Benjamin Sire against J. Wesley Rosenquest and another. From a judgment on a verdict, and from an order denying a new trial, defendants appeal. Affirmed.

<p>Action by Nancy E. Bliss against Charles L. Sherrill, impleaded with others.</p>

<p>Action by Reuben H. Coatsworth against the Lehigh Valley Railway Company.</p>

<p>Action by the Commercial Bank against Moses Foltz and Beaman Catto, impleaded, etc.</p>

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

<p>Action by William N. Dykman, as receiver of the Commercial Bank, against Seth L. Keeney and others.</p>

<p>Action by Victoria A. Green against the Hornellsville & Canisteo Railway Company.</p>

<p>Action by Anna Hodeeker against Frederick Hodecker.</p>

<p>Action by Leila O. Henriques and another against John W. Sterling and others. Delos McCurdy, for. appellant. T. G. Shear-man, for respondent.</p>

<p>Action by Thomas Hill, Jr., against Abram L. Warner.</p>

<p>Action by Arthur L. Lesher and others against Paul Salvin and others.</p>

<p>Action by Caroline Moser (now Abele) against Louise Moore Walker and others.</p>

<p>Action by Mary Lj-ntz against William P. Fletcher.</p>

<p>Action by Mariline Palmer against Albert M. Palmer.</p>

<p>Action by John Norris against Frederick W. Wurster and others.</p>

Action by the people of the state of New York, on the relation of Howard L. Beck,against the board of aldermen of the city of Buffalo.

<p>Actions by the people on the relation of the city of Johnstown, and by the same on the relation of the city of Gloversville, against Jacob W. Staley and another, assessors of the town of Johnstown.</p>

<p>Action by John J. Scheeler against the-Metropolitan Street-Railway Company.</p>

<p>Action by Lewis P. Ross against Chauncey C. Caywood and another.</p>

<p>Action by Joel W. Russell, as assignee, etc., against William F. Stuhlmiller.</p>

<p>Action by Peter G. Pope against Frederick P. Michel.</p>

<p>Action by Mary E. Smith against Charles 0. Bradhurst and others.</p>

<p>Action by Thousand Island Park Association against Helen M. Gridley.</p>