Volume 51 — New York Appellate Division Reports

Appeal by the defendant, The Brooklyn Heights Railroad 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 2d day of February, 1900, reviving and continuing an action originally brought against the defendant by Charles Meekin, as administrator of Laurie Meekin, deceased.

Appeal by the plaintiff, Denis O’Leary, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 12th day of January, 1900, 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 Nassau Trial Term.

<p>Bond of a receiver executed to the plaintiff instead of to the People — it is good as b common-law bond — sureties thereon, how far bound by a judgment on the receiver's accounting to which they were not parties.</p> <p>The "bond of a receiver in an action for the dissolution of a partnership, based upon a sufficient consideration, but executed to the plaintiff therein, instead of to the People of the State, as required by section 715 of the Code of Civil Procedure, is good as a common-law bond, even if it is void as a statutory bond.</p> <p>In such an action a judgment in favor of the plaintiff for the amount found to be due to him upon an accounting by the administrator of his copartner, the original defendant, who had been appointed the receiver of the firm assets, is evidence, against the sureties in an action upon the receiver’s bond, that the receiver was in default and had failed to account, although they were not made parties to the dissolution action nor given notice of the accounting.</p> <p>Such a judgment is not binding upon the sureties as to the amount of assets for which the receiver failed to account, but is conclusive upon the plaintiff, who was a party to the dissolution action, as to the amount of his interest in the partnership assets, although the evidence given in the action upon the bond tends to show that such interest was greater than that stated in the judgment and on the accounting. (</p>

<p>Appeal by the plaintiff, Ardelle J. Brown, from a final judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Genesee on the 18th day of November, 1899, upon the decision of the court rendered after a trial before the court without a jury at the Genesee Trial Term.</p>

<p>Appeal by the defendant, The City of .Buffalo, 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 June, 1899, upon the verdict of a jury for $844, and also from an order entered in said clerk’s office on the 27tlr day of June, 1899, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>On the 2d day of December, 1897, the plaintiff- had occasion to go into the store of one John Hamilton, situate upon the north sidd of Eagle street in the city of Buffalo. After making some purchase she left the store and proceeded a short distance upon the sidewalk when, remembering that she had forgotten a parcel,' she turned suddenly with the intention of returning to the store to obtain the same, and. as she did so stubbed her foot against the center of a trap door located- near the westerly side of the building and fell to the sidewalk with such violence as to fracture the cap -of her- left knee.</p> <p>The sidewalk in front of the Hamilton store is twelve feet in width' and consists of large flagstones. Extending across the entire front of the building and immediately adjoining the same is a skylight grating-three feet six and one-half inches in width which is made of glass and iron. This grating is set in an iron frame three and one-half inches wide, and both grating and frame are nearly level with the surface of the. walk. At each end of the grating are trap doors which can be opened to permit the transfer of goods to and from the cellar of the Hamilton building. These doors are three feet three inches in length and four feet eight and one-half inches in width. The edge of one of the doors is raised in such a manner as to lap over the other when both are closed, thus covering the joint and forming what is known as an “ architrave.” The top of this architrave is about three-quarters of an inch higher than the surface of the doors, which are an inch and a quarter above, the surface of the sidewalk, and the hinges by-which the doors are attached to the frame project to nearly the same height as the architrave. A handle is ■ inserted in the south end of one of the doors, and this handle is two and oné-quarter inches higher than the walk.</p> <p>Outside. of the iron grating the flag walk lias a width of eight feet and eight inches, and is perfectly smooth, but at the time the plaintiff received her injury she was upon or near the grating- and struck her foot against the architrave. The situation as. above described had existed for a period of at least five years prior to the time the plaintiff received the injuries complained of, and it does not.appear that any other similar accident had ever occurred there.</p>

<p>Will —■ a gift of income to a mother, a sister and her daughter, and, on the mother’s death, a gift over of the corpus-io the sister and daughter— the fee ■vests on the testator’s death.</p> <p>A will, after bequeathing to the testator’s only daughter a single bond, the value of-which did not exceed §100, “notwithstanding her cruel desertion and continued silence since June, 1889,” and making certain devises and bequests to his mother, his sister and his sister’s daughter, provided: “ Sixth. I hereby give,.devise and bequeath the income from all my life insurance, and ^11 the rest, residue and remainder of my property, both real and personal, to my dear mother, Cynthia C. Davidson, my sister, Mary J. Patterson, and her daughter, Jennie M. Patterson, to be paid them quarterly by my executors and trustees equally, share and share alike, so long as my mother shall live, and upon the death of either of the above-named parties her share shall he equally divided among the remaining, provided, that in the event of my , mother’s death, my executors and trustees are directed to deliver in fee simple to my sister, Mary J. Patterson, and. her daughter, Jennie M. Patterson, equally, share and share alike, or in the event of the death' of either of them to the remaining one, the entire estate held in trust by them.”</p> <p>Mary J. Patterson died intestate before the testator. Jennie M. Patterson died after the testator but before Cynthia 0. Davidson. .</p> <p>Reid, that it was the testator’s intention to prevent his daughter from taking any of his residuary estate: :</p> <p>That the corpus of the residuary estate vested in Jennie M. Patterson at the testator’s death.</p>

Appeal by the defendant, the 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 Erie on the 13th day of September, 1899, u pon the verdict of a jury for $7,333, and also from an order, entered in said clerk’s office on the 20th day of October, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Julia Oishei, one of the legatees herein, from so much of a decree of the Surrogate’s Court of the county of Erie, entered in said Surrogate’s Court on the -29th day of July, 1899, settling the account of Millie Roffo, as surviving executrix, etc., of John Bl Roffo, deceased, as requires the said Julia Oishei to give a bond in the penalty of $15,200, with not less than two sufficient sureties, to' be approved by the surrogate of Erie county, conditioned according…

Appeal William Eggleston from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Cattaraugus on the 20th day of December, 1899, denying the relator’s application for a peremptory writ of mandamus directed to the several boards of inspectors of the town of Dayton, requiring them to reject all votes cast upon the question of local option at the last general election held in the said town.

Appeal by the plaintiff, John Vitty, from a judgment of the County Court of Niagara county i'n favor of the defendant, entered in the office of the clerk of the county of Niagara on the 9th day of December, 1899, affirming the judgment of a justice of the peace. .

<p>Appeal by the defendant, Harriet A. Wagner, from'a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 21st day of December, 1899, upon the decision of the court, rendered after a trial .at- the Monroe Special Term, decreeing a foreclosure of the mortgage in suit, and also from an order bearing date the 18th day of December, 1899, and entered in said clerk’s office, denying the (defendant’s motion for an inspection and discovery of the papers and accounts . of plaintiff’s testatrix.</p> <p>This, action was brought to foreclose a mortgage given by the defendant Harriot A. Wagner to the plaintiff’s testatrix,. Mary D. Tower, bearing date June 10, 1896, to secure the payment of $1,000 and interest thereon according to the conditions of a bond to which said mortgage Vas collateral, and asks for a personal judgment against said obligor. The mortgagee, Mrs. Tower, (lied, a resident of Massachusetts, on the 22d day of March, 1899, leaving a last will and testament executed in 1877 and which was duly admitted .to probate in that State.and ancillary letters testamentary' were issued to the plaintiff by the surrogate of the county of Monroe.</p>

■ Appeal by Charles G. Speidel from .an order of the Supreme Court, made at the Erie Special Term and entered in- the office of the clerk of the county of Erie on the 21st day of December, 1899, canceling liquor tax certificate Ho. 11,843, issued to him.

Appeal by the defendant-, William E. Hall, from á 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 27th day of .December, 1897, upon the verdict of a jury convicting him of the crime of extortion, and also from an order entered in said clerk’s office on- the 27th day of December, 1897, denying the defendant’s motion for a new trial.

<p>Application by the petitioner, The Rochester and Lake Ontario Railway Company, for the appointment of commissioners, pursuant to the provisions of section 100 of the Railroad Law, to determine whether its motive power on that part of' its road which runs through North, or Portland, avenue in the city of Rochester shall be changed from steam to electricity.</p>

Appeal by the plaintiffs, Minnie O’Connor and another, as administrators, etc., of John O’Connor, deceased, from a final judgment of the Supreme Court in favor of the defendant Josephine .Cardinal, entered in the office of the clerk of the county of St. Lawrence on the 14th day of September, 1899, upon the report of a referee, dismissing the plaintiffs’ complaint. John O’Connor died in Ogdensburg, in this State, in the month of March, 1898.

<p>Appeal by the defendant, Samuel Lavery, from a judgment of the Supreme Court in favor of the plaintiff, éntered in the office of the clerk of the county of Warren on the 21st day of July, 1899, upon the report of a referee. .</p> <p>This is an'action brought under the provisions of sections 1837, 1838,1840 and 1841 of the Code of Civil Procedure to recover from the'defendant,' as one of the legatees of John Lavery, deceased, who was in his lifetime administrator with the will annexed of one Hugh Lavery, deceased, the proportionate share of. $700, being the contract price of a monument for the said Hugh Lavery, furnished by the plaintiff.</p> <p>The action was referred to a referee, who reported in favor of the plaintiff, and from the judgment entered upon his report this appeal is. taken. ■</p> <p>.Upon the trial the following facts appeared : In the year 188.4, one Hugh Lavery died, leaving a last will and testament, wherein, after making certain specific devises, there was set forth the following : “ I give and bequeath unto my executor hereinafter named the sum of seven hundred dollars in trust, however, for the purpose of erecting a suitable, monument over the grave of myself and my mother, and I hereby direct that I be buried in the lot in which she is buried in the cemetery in the town of Moreau, Saratoga county, K Y.”</p> <p>And in and,by the said will he constituted and appointed James McDermott his executor. James McDermott renounced such appointment, and thereafter John Lavery, brother of Hugh, was. appointed administrator with the will annexed.</p> <p>It was admitted upon the trial “that John Lavery,deceased,purchased of the plaintiff the monument in question, while acting as administrator with the will annexed of Hugh Lavery, deceased, for the sum of $700.”</p> <p>John Lavery died May 20, 1885, and on the 24th day of June, 1885, letters of administration with the will annexed of Hugh Lavery, deceased, were granted to Anson R. Staples.</p> <p>Hpon the trial of this action the referee found that the estate of Hugh Lavery, outside of the specific bequésts and legacies, did not amount to enough to pay anything more than the costs and expenses of administration and debts of the decedent, and for that reason there was no money to make up the trust fund provided for by said will to build a monument.</p> <p>John Lavery left a last will and testament, wherein he bequeathed to each of his four children, including the defendant, the sum of $350, making each of said legacies a charge upon a farm owned by him. He also gave to the defendant a piece of land in the town of Queensbury. All the rest, residue and remainder of his estate, both real and personal, he left to his widow, Rosanna Lavery, whom he also constituted the executrix of his estate. All the legacies to his children, including the defendant, have been paid.</p> <p>The referee found “ that the executrix, who was also widow, residuary devisee and legatee in the will, took possession of all the property, both real and personal, except the land devised to Samuel Lavery, the defendant. She paid out for funeral expenses and various debts one, hundred sixty-seven dollars. The personal property which-she would be entitled to by law as widow amounted to about three hundred dollars, leaving about one hundred thirty-three dollars of personal property in her hands applicable to pay the four legacies above referred to, amounting to fourteen hundred dollars. She raised the money to pay the legacies by mortgaging the real estate. That no assets were delivered by the executrix to the surviving wife, or next of kin as such, and the said wife and next of kin received nothing whatever from the estate of John Lavery except as hereinbefore stated in this report.”</p> <p>The amounts received by the wife and next of kin, as referred to-by the referee, were the legacies bequeathed to them in the will.</p> <p>The only exception by the appellant to the findings of fact by the réferee was to the finding that “ the plaintiff sold and delivered to John Lavery, the father of the defendant, a granite monument, for the agreed sum of $700.” There is no statement that the case contains all-the evidence.</p> <p>The contention of the appellant is, that John Lavery-was not personally - liable for the purchase price of the monument ; that it was not- a debt of his, and that no action could have been maintained-therefor against his executor- or administrator, and that, therefore, an action for any proportionate part of the purchase price cannot be maintained against the defendant as a legatee of John Lavery.</p>

Certiorari issued out of the Supreme Court and attested bn the 4th day of October, 1897, directed to James A. Roberts, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in assessing a tax on the capital-Stock of the relator employed in the State of New York for the years ending November 1, 3891-1895.

Appeal by the defendants, John King and another, as receivers, :■ etc., of the New York, Lake Erie and Western Railroad Company, and by the Erie Railroad Company, from an order of the Supreme Court, made at..the Orange Special Term and entered in the office of the clerk of the county, of Sullivan on the 10th day of November, 1899, making the Erie Railroad Company a party defendant in the action and giving the plaintiff leave to serve • a supplemental summons and complaint.

Appeal by the defendants, Mary G. Waters, as administratrix of Alexander H. Grant, deceased, and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 21st day of February, 1898, upon the decision of the court, rendered after a trial at the Otsego Special Term, vacating certain'foreclosure sales made to Alexander H. Grant, deceased, and adjudging that a, deed from James H. Merrick to…

Appeal by the defendant, Andrew J. Taft, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 5th day of September, 1899, upon the decision of the court, rendered after a trial at the Montgomery Special Term, awarding to the plaintiff the possession of the canal boat Andrew J. Taft»and damages for its detention.

<p>Appeal by the defendant, The Supreme Council, Catholic Benevolent Legion, from a judgment of the Supreme Court in favor •of the plaintiff, entered in the office of the cleric of the county of Albany on the 18th day of May, 1899, upon the verdict of a jury rendered by direction of the court.</p>

<p>Appeal by the defendant, Rhoda E. Miles, from a judgment of the County Court of St. Lawrence county in favor of the plaintiff, entered in the office of the clerk of t 3 county of St. Lawrence on the 21st day of October, 1899, upon the verdict of a jury for $144.14, and also from an order'entered in said clerk’s office on the 19th day of October, 1899, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Elizabeth C. Taylor, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schoharie on the 14th day of February, 1899, upon the dismissal of the complaint at the close of the plaintiff’s evidence by direction of the court after a trial before the court and a jury, and also from an order dismissing the complaint.</p>

Appeal by the defendant, Joseph Besch, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on'the 7th day of October, 1899, upon the decision of the court, rendered after a trial at the Albany Special Term, sustaining the plaintiff’s demurrer to that portion of the defendant’s answer which set's up new matter as a separate defense, interposed upon the ground that it is insufficient in law…

<p>Appeal by the defendant, Aaron P. Williams, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 11th day of November, 1899, granting an absolute writ of prohibition" to the relator, Frank H. Deal, "“ commanding the said Aaron P. Williams, a justice of the peace of the town of Green Island, and B. W. Clark-son, to desist and refrain from any and all further proceedings in a certain matter commenced before- the said Aaron P. Williams, a justice of the peace of the town of Green Island, on Sept. 27,1899, by B. W. Clarkson and Aaron P. Williams on the affidavit of the said B. W. Clarkson against Frank H. Deal, the relator herein, as defendant.”</p>

Appeal by the defendant, Howard W. Burt, from a judgment of the Supreme Court in favor of the plaintiff, rendered on the 2d day of May, 1898, upon the verdict of a jury, convicting him of the crime of murder in the second degree. Upon November 10, 1897, at about seven o’clock in the evening, Asa W. Briggs was shot, and about twelve days thereafter died.

<p> A lay witness may not testify, without stating the facts, whether a prisoner appeared rational or irrational. </p> <p>Upon a criminal trial, in which the only question litigated is as to the defendant’s sanity, a lay witness, who states that he had a conversation with the defendant on the day of his arrest, h.ut who does not detail the conversation in full or describe the defendant’s actions at the time, should not be permitted to testify whether the defendant appeared rational or irrational.</p>

<p>Appeal by Duncan M. Robertson, as executor, etc., of Leicester Burnett, deceased, from an order, of the Surrogate’s Court of St.. Lawrence- county, dated the 31st day of July, 1899, amendatory of a decree entered in said court on the 17th day of November, 1898, and as amended by an order entered in said court on the 18th day of December, 1899, and also from said decree as amended.</p> <p>Duncan M. Robertson, the appellant, is the sole executor of Leicester Burnett, who died in 1890, leaving a last -will and testament, in which were given certain general legacies. By the inventory the estate was apparently sufficient to pay all the legacies. From time to time, upon the demand of certain legatees, the legacies were paid in full, except two legacies, one to Adelma M. Smith and the other to Georgia A. Crane. Thereafter, and in 1896, the executor petitioned for a judicial settlement of his accounts. Upon the accounting the surrogate made and .signed a decision containing findings of fact and of law. In that decision it was found that the estate was sufficient to pay only sixty-five or sixty-six per cent of the amount of such legaciesthat Adelma M. Smith was entitled to receive upon. her legacy, upon February 13, 1891, the sum of $1,970.40; that certain payments had been made thereupon, so that at the time of the accounting there was still due to her. on account of her legacy the sum of $1,356.42, with interest from October 1, 1898; that Georgia A. Orane was entitled to receive February 13,-1898, the sum of $1,9'70.40; that certain payments had been made thereupon, so that at the time of the accounting there was still due to her on account of her legacy the sum of $1,385.13, with interest thereon from October 1, 1898; that the executor, believing the securities held by said estate to be good and sufficient to pay in full all the general legacies, in'good faith, paid to certain other legatees their legacies in full, and that the executor had paid out thereby all the moneys which he had.received from said estate. The fourth finding of law is as follows : “ That a decree be entered settling the accounts of the executor in accordance with the foregoing, findings of fact and for the payment tb Adelina M. Smith and Georgia A. Crane of the sums stated to be due them, respectively, in the 14th and 15th findings of fact.” In the decree the provisions of this fourth conclusion of law were omitted, and there was no provision inserted determining in any way the right of Adelina Smith and Georgia Crane to' the payment of the amount due to them from the executor. There was, however, this provision: “ And it is further adjudged -and decreed that this court has no power to decree a repayment to the executor of the various sums overpaid by him as set forth hereinabove^ but that the said executor is hereby directed to collect, the same from the persons who are entitled to pay the same, and to take such legal measures for the collection thereof as he shall be advised right and' proper.” ' ¡</p> <p>Thereafter Adelina Smith and Georgia Grané, upon learning that the decree had omitted the provision for the payment of their legacies which was contained in the decision; moved for an amendment of that decree to provide for such payment. By .reason of the disability of the surrogate who made the first' decree, the motion came oñ before an acting surrogate, who caused to be entered an order amending the decree so as to provide for the payment by the executor of the amounts due to these, legatees. Of this order and of the ' decree'as thus amended the executor here makes complain t.</p>

<p>Appeal by the plaintiff, J. Austin Mace, from a judgment of the Supreme Court in favor of the defendant Esther J. Lockwood, entered in the office of the clerk of the county of Albany on the 12th day of September, 1899, upon the report of a referee.</p> <p>This action was brought by the plaintiff to foreclose a mortgage executed by' the defendants Thayer to one Winters,, the plaintiff’s. assignor, to secure the payment of the sum of $1,000, with interest.. The defendant Lockwood claims k lien upon the land prior to the plaintiff’s lien, arising under a deed by which the defendants Thayer originally obtained title to the land. This deed was executed by Samuel Green, the grandfather of the defendants Thayer, who was also the father of the .defendant, Lockwood, upon the loth day of , Hovember, 1880, The consideration, expressed in the deed ivas $850, to be “ paid in manner, hereinafter provided.” Under the deed a life estate was reserved to Samuel Green. The deed then provided: “ The said Amasa and Samuel Thayer, their heirs or . assigns, shall, within six months after the death of- the said Samuel Green, pay to his daughter Esther J. Lockwood, wife of Horace Lockwood, the sum of eight hundred and fifty dollars, the above-named consideration for the premises herein described; and it* further provided and intended that the above-described premises are conveyed on the condition that the said sum of eight hundred and fifty dollars shall be and' continue a lien upon said premises .until - paid.”</p> <p>On the same-day Samuel Green and wife executed another deed to two other grandsons,, conveying, different premises, the consideration being $650. This deed also contained the same conditions as above recited, except that $650 is used instead of $850. Samuel Green retained these deeds in his possession until in or about the month of March, 1882, when they were delivered to the grantees and were by them recorded. At the time of the delivery of' these-deeds - to the grantees Samuel Green delivered to the defendant Lockwood a paper' which had upon it that part of the deed containing a descr-ip- ■ tion of the premises conveyed and the condition that Samuel Green was to hold a life estate and the further condition in favor of the-defendant Lock-Wood, which is above quoted. At that time, addressing- the defendant Lockwood’s husband and herself, after having handed the paper to the defendant’s husband, he said: “ I have deeded two places away and have made a reservation in those two places for you, here is a copy, take it and retain it. * * * I told him it was not a full and complete copy; he said it contained the contents of what it was intended for; the deed would show the rest, which was on record.”</p> <p>Thereafter Samuel Green executed a quitclaim deed to the defendants Thayer, by the «terms of which lie exonerated said defendants from the payment of these moneys to Esther Lockwood and required "the payment of the moneys to himself. In order to raise these moneys to pay the said Green, the defendants Thayer made the mortgage to the plaintiff’s assignor, which is here sought "to be foreclosed.</p>

Appeal by the defendant, Mary J. Hull, from a judgment of the-Supreme Court in favor of the plaintiffs, entered, in the office .o.f the clerk of the county of St. Lawrence on. the 10th day of July, 1899, upon the decision of the court, rendered after a trial at the St: Lawrence Special Term, granting a permanent injunction against the defendants.

<p>Surrender of a lease — the delivery of the keys to the landlord and his unsuccessful attempt to lease the premises is not an acceptance of the surrender.</p> <p>Where a tenant vacates a flat before the expiration of his term and tenders the keys thereof to the landlord, their receipt by the landlord with the express statement that he will hold them for the tenant “ so as to be able to let it for him as his agent,” which proposition is not assented to by the tenant, does not operate to make the landlord’s subsequent unsuccessful attempt to relet the flat an acceptance of the surrender.</p>

Appeal by the defendant, the Guaranty Trust Company of New York, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Chemung on the 19th day of February, 1900, granting the plaintiff’s motion for an injunction pendente lite, and refusing leave to the defendants to substitute a bond in lieu of said injunction order.

<p>Appeal by the defendant, Patrick II. Maine, from a judgment of the County Court of Chemung county in favor of the plaintiff, rendered on the 1st .day of February, 1899, upon the verdict of a jury convicting him of the crime of manslaughter in the second degree, and also from orders granted on the 1st day of February, 1899, denying the defendant’s motion for a new trial and for a stay of judgment.</p> <p>The indictment accused the defendant of the crime of “manslaughter in the first degree,” and so named the offense in the indictment. . The indictment then alleged the facts as follows: “ With force and arms feloniously, willfully and unlawfully did assault one James Murphy with a sharp knife, the same being a dangerous weapon "x" * * (and) the said James Murphy did strike, cut, stab and wound * * * and did * * ■ "x" inflict one mortal wound of which * * * the said James Murphy did * "x* * die.”</p> <p>The indictment was not demurred to and the plea was, “Not guilty.” ¿</p>

Appeal by the defendant, The Ramapo Water Company, from . an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 1st day of February, 1900, upon the decision of the court, rendered • after a trial at the Albany Special Term, overruling the defendant’s amended demurrer to the plaintiff’s complaint. v

<p>Expert — testimony as to increased hazard from the use of insured premises as a saloon.</p> <p>In an action brought to recover upon a policy of fire insurance covering a building insured as a dwelling, providing that it should be void “ if the hazard be increased by any means within the control or knowledge of the insured,” in which the issue litigated is" whether the use of the premises in part as a saloon increased the hazard, insurance agents sworn as experts, but not shown to have any personal knowledge of the premises, should not be permitted to give an opinion upon this subject, not based upon a hypothetical question embracing the material facts appearing in the case.</p> <p>Semble, that the jury are quite as capable of forming a correct judgment from the facts bearing upon such a question as experts.</p>

<p>" Cebtiobabi issued out of the Supreme Court and attested on the 8th day of July, 1897, directed to James A. Roberts, as Comptroller of the State of New York, commanding him to certify and return to the office of the. clerk of the county of Albany all and singular his proceedings had in imposing a tax upon the capital stock of the relator for the years 1891, 1893, 1894 arid 1895, and in revising and readjusting the same.</p>

<p>Pleading — scope of a denial in an answer to a complaint for goods sold.</p> <p>An answer, interposed in an action brought to recover a balance due for goods sold and delivered, which alleges that such goods were sold under a special contract that had been violated by the plaintiff, and contains a general denial, covering the averments in the complaint as to the sale and delivery of the goods to the amount claimed, puts in issue not only the allegation as to the amount of the balance alleged to be due, but also the allegations as to the purchase and the delivery of the goods to the defendant.</p>

Appeal by the plaintiff, Henry Crouse* as administrator, etc., ;of Walter Crouse, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Schoharie on the 10th day of January, 1900, upon, the decision of the court rendered after a trial at the Schoharie Trial Term before the court without a jury.

Appeal by The Mutual Fire Insurance Company of Albany and others from an order of the Supreme Court, made at the Albany. Special Term and entered in the office of the clerk of the county of Albany on the 9th day of March, 1900, declaring Robert Gr.

<p>Hiparían owner—injunction to prevent the discha/i'ge of sewage into a stream — granted whe/re the actual use of the water is not impaired — direction of the hoard of health to so discharge it.</p> <p>A riparian owner of land upon a stream, who uses the water thereof only for the purpose of bathing and for turning a turbine wheel, is entitled to an injunction restraining an upper riparian owner from discharging sewage in the stream, which pollutes it and renders it unfit for domestic purposes, even though such use as is made of the stream by the lower owner is not impaired by the presence of the sewage.</p> <p>An order of the board of health of the town in which the upper riparian owner’s premises are situated directing him to discharge his sewage into the stream does not justify such action on his part, as the board of health has no power to make such an order.</p>

Appeal by the plaintiffs, G. Everett Angier and another, as executors, etc., of Mary J. H. Angier, deceased, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Saratoga on the 19th day of March, 1900, granting the motion of the defendant, Minnie R. Hager, for an extra allowance of costs.

Appeal by the petitioner, .James White, from an order of the Supreme Court, made at the Warren Special Term and entered in the office of the clerk of the county of Washington on the 13th day of December, 1899, denying his application for a peremptory writ of mandamus. *

<p>Appeal by the relator, the People’s Trust Company, as executor of Cornelius N. Hoagland, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 31st day of January, 1900, dismissing a .writ of certiorari issued to review the action of the respondents in assessing, for the purposes of taxation, personal property held by the relator as executor, etc., of Cornelius H. •Hoagland, deceased.</p>

<p>Contract made with Queens county for the sprinkling of its highways — claims thereunder are to be audited by the city of New York — the change is not unconstitutional.</p> <p>The obligation of the county of Queens upon a contract made July 6, 1897,' by its board of supervisors for the sprinkling of highways therein, for a period of ten years beginning August 1, 1897, is not impaired by the passage of the Greater New York, charter (Laws of 1897, chap. 378), which incorporated part of said county into the city of New York, nor by chapter 588 of the Laws of 1898, creating the county of Nassau out of that part of the county of Queens not included in the city of New York.</p> <p>Dills for money becoming due under such a contract in 1899; are to be audited and collected by the officers of the city of New York instead of by the authorities of the county of Queens.</p> <p>The rights of the party with whom the contract was made are not unlawfully impaired by the fact that he is obliged to look to the officers of the city of New York for its enforcement.</p>

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of November, 1899, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 29th day of November, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Theodore Knuth, from a judgment of the Municipal Court of the city of New York in the fifth district of the borough' of Brooklyn in favor of the plaintiff, rendered on the 18th day of January, 1900.

Motion by the defendants, Albert Friedlander and another, upon an order to show cause, in the form prescribed by section 1298 of the Code of Civil Procedure, requiring all persons interested in the decedent’s estate to show cause why the judgment from which the defendants appealed should not be reversed and why the cross-appeal of the plaintiff should not be dismissed and why the defendants should not have such other and further relief as the court might' deem proper.

Appeal b.y the defendant, The Yonkers Railroad Company, from a judgment of the City Court of Yonkers in favor of the plaintiff, entered in the office of the clerk of said court on the 10th day of April, 1899, upon the verdict of a jury for $400. The action was brought by the plaintiff to recover damages for injuries sustained by her being thrown to the ground' by reason of the sudden- starting of one of the defendant’s cars from which sha was alighting.

Cebtiobabi issued out of the Supreme Court and attested the 30th day of August, 1899, directed to Thomas L. Feitner and others, commissioners of taxes and assessments of the city of New York, commanding them to certify and return to the court all and singular their proceedings in relation to the assessment of the relator’s real estate for the purposes of taxation.

Appeal by the plaintiff, Silas A. Underhill, from an order of the County Court of .Kings county, entered in. the office of the clerk of the county of Kings on the 1st .day of March, 1900, denying his motion for a new taxation of costs and affirming the taxation by the clerk in favor of the defendant.

Appeal by the defendant, Arthur A. Dowst, 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' 23d day of November, 1899, upon the verdict of a jury for $10,000, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 28th day of November, 1899, denying the defendant’s motion for a. new trial made upon the minutes.

Appeal by Clarence Gary and others, as executors, etc., of Mary Louisa Potter,' deceased, from an.order of the Surrogate’s Court of 'the county of Orange, entered in said Surrogate’s Court oh the 16t-h' day'of May, 1899, fixing a tax under the Transfer Tax .Act upon the estate of ..Mary Louisa. Potter,, deceased. ....

Appeal by the defendant, Albert S. Kenney, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of November, 1899, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the complaint.

Appeal by the defendant, Maggie Foussadier, as executrix, etc., . of Constance Baudouin, deceased, from a judgment of the Municipal Court .of the city of Mew York, borough of The'Bronx, first district, in favor of the plaintiff ; also a motion by the plaintiff to dismiss the appeal. After the argument of the appeal, the original defendant died; and the action has been revived in the name of the present defendant.

Appeal by the defendant, The Yonkers 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 Westchester on the 21st day of October, 1899., upon the vérdict of a jury for $500, and also-from an order entered in said clerk’s office on the 16th day of November, 1899, denying the defendant’s motion for a new . trial made upon the minutes.

Appeal by the defendant, John T. F. Flynn, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Richmond on the 6th day of Eovember, 1899, upon the decision of the court, rendered after a trial at the Richmond Special Term, adjudging that the plaintiffs have a good and valid mechanic’s lien upon all the right, title and interest of said Flynn and Hartung and each of them to the lands in said judgment described,…

Appeal by the relator, Patrick J. McCarthy, from a final 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 February, 1900, dismissing an alternative writ of mandamus commanding the respondents to reinstate the relator in the position of conductor on the New York and Brooklyn bridge, and denying his application for a peremptory writ.

Appeal by the plaintiff, John A. Quintará, 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 12th day of January, 1900,' upon the decision of the court; rendered after a trial at the. Kings County Special Term, dismissing the complaint, upon the merits.

Appeal by the plaintiff, Thomas Grimes, as administrator, etc., of James Grimes, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 10th day of October, 1899, upon the- dismissal of the complaint at the close of the plaintiff’s evidence by direction of the court on a trial before the court and a jury.

Appeal by the plaintiff, Joseph Adams, an infant, by Louis-Adams, his guardian ad litem, from a., judgment of the Supreme; Court in favor of-the defendant, entered1 in the office of the clerk of the county of Kings on the 20th day of December, 1899, upon the-dismissal of the complaint by direction of the court after a trial ' before the court and a jury. ’ •

Appeal by the defendants, John Pfadenhauer and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office.of the clerk of the county of Kings on the 29th day of December, 1899, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling a demurrer to the complaint,' interposed on the ground that Lena R. Muller should have been a party plaintiff, and on the further ground that the…

Appeal by the plaintiff, Obernaeyer & Liebmann> from a final judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 10th day of November, 1899, upon the report of a referee dismissing the complaint upon the merits, with notice of an intention to bring up for review upon such appeal an order bearing date the 24th day of October, 1899, and entered in said clerk’s office directing the entry of said judgment.

Appeal by the defendant, The City of Mount Vernon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester-oil the 21st day of October, 1899, upon the report of a referee, vacating and setting aside the assessment against the plaintiff’s property in the matter of the regulating, grading and otherwise improving of North Fourth avenue from the northerly side of Primrose avenue to- the northerly city line…

Appeal by the plaintiff, Monis Shidlovsky, surviving partner of the firm of M. Shidlovsky & Brother, from judgments of the Supreme Court in favor of the defendant,’entered in the office'of the clerk of the county of New York on the 26th day of February, 1897, upon the verdict of a jury, and also from orders entered in -said clerk’s office on the 24th day of December, 1896, denying the plaintiff’s motions for new trials made upon the minutes.

Appeal by the defendant, Thomas 0. Smith, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 13th day of December, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8tli day of December, 1898, as resettled by the court on the 12th day of December, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Cyrus J. Haight and another, as executors, etc., of Cornelius J. Haight, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Putnam on the 28th day of December, 1899, upon the report of a referee.

Appeal by the defendant, James H. Breslin, from a judgment of ’ the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 9th day of November, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on tiie lltli day of October, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Yonkers Railroad Company, from a judgment of the City Court of Yonkers in favor of the plaintiff, entered in the office of the clerk of said court on the 3d day of June, 1899, upon the decision of • the -court rendered after a trial before the court without a jury.

Appeal by the plaintiff, Annie Michaels, 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 July, 1899, upon the verdict of a jury rendered by direction of the court. This appeal was transferred from the first department to the second department.

- Appeal by the defendant, the Nassau 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 Kings on the 10th' day of January, 1900, upon the verdict of -a jury for $5,500, and also from, an order entered in said clerk’s office, on the ll'th day of January, 1900, denying the defendant’s motion for a new -trial made upon the minutes.

Appeal by the plaintiff, Louis Finkelstein, an infant, by Isaac Finkelstein, 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 Kings-on the 3d day of April, 1899, upo lithe dismissal of' the.complaint by direction of the court at the close - of the plaintiff’s case after a trial before the court and a jury, and also from an order entered in said clerk’s office on the 30th day of…

Appeal by the plaintiff, Charles de Boer, as administrator, etc., of Caroline de Boer, 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 31st day of May, 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.

Appeal by the defendant, The Long Island Railroad Company, from, a judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the couuty of Kings on the 16th day of May, 1899, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 26th day of May, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 4th day of December, 1899, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 4th day of December, 1899, .denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Henry Bristow, 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 13th day of November, 1899, upon the report of a referee.

Appeal by the defendant, the Merchants’ National Bank of Philadelphia, from an order, of the Supreme Court, made at the Richmond Special Term and entered in the office of the clerk of the county of Richmond on the 8th day of March, 1900, enjoining the defendant from receiving payment of a judgment in its favor ■from the sheriff of Richmond county and from taking any steps towards enforcing the payment of such judgment during the pendency of the action.

<p>Will — a condition tendi ng to encourage divorce is void —-an adjudication by a Surrogate’s Court not necessary to the decision is not binding — it operates only on the subject-matter of the decree —amendment of a previous decree —commissions forfeited if not taken. ■</p> <p>A testator by his will, executed two days after the marriage of his son, directed the payment to such son of the income of his residuary estate during life, and .further provided, “hut it is my will that so long as .the present wife of my said son shall be living and he shall be lawfulljr bound to her as a husband, the income to he paid to my said son shall not exceed the sum of two thousand dollars in any one year, and that in case' of the death of said wife, or in case of his ceasing to be bound to her as a lawful husband, then the whole of said income is to be paid over to my said son during his natural life.” field, that the condition attached to the gift, the evident purpose of which was-[_ to induce, the son to secpre a legal divorce or separation from his wife, was / void, as being in contravention of good morals and public policy; and that, whether such condition be regarded as precedent or subsequent, the residuary estate consisting wholly of personalty, the son was entitled to . the entire ( annual income thereof; ■</p> <p>That an adjudication establishing the validity of the condition contained in the deci-ee. made upon a prior accounting of the executors under such will before the surrogate, to which the son, who was then of full age, was a party, and from which he'took-no appeal, was not binding upon him on a.subsequent intermediate accounting by the surviving trustee, where it appeared that, at the time of the previous accounting, the annual income of the residuary.estate was less than §¿,000, and that it was, Therefore, unnecessary and improper for the surrogate to direct the distribution of income in excess of §8,000 per annum.Semble, that such prior decree could in any event be binding only as to the specific fund then in hand to he distributed under it. J</p> <p>Qumre, whether the erroneous provision of the decree, made upon the previous accounting, could he amended by the successor of the surrogate.</p> <p>A trustee, who pays to his cestuis •qui inistent the entire income of the trust fund, without deducting his commissions, cannot retain them subsequently — certainly not from the principal of the fund.</p>

<p>Purchase of goods from one not disclosing his agency — the purchaser may deduct a claim against the agent from the purchase 'pi'ice..</p> <p>A person who purchases goods from an agent without knowledge of the agency and under circumstances which would not induce a reasonable man to believe that an agency existed," or to make inquiry in respect thereto, is entitled upon making payment to the principal to offset a note held by him against the agent, although after the delivery of the goods the principal discloses the existence of the agency and demands the return of the goods or the purchase price thereof.</p>

<p>Appeal by the defendant, the Dennett Surpassing Coffee Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of April, 1899, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 4th day of April, 1899, denying the defendant’s motion for a new trial made upon, the minutes.</p>

<p>Estoppel, to claim non-performance of a condition — acquiescence in, and ratification of, an attorney’s act — burden of proof -—failure to do an act not demanded — liability of an indorser on a note held for value.</p> <p>One West, who had brought actions against Banigan, upon five promissory notes, made an agreement with Banigan and Brown,' his attorney, to- settle his-claims against Banigan in consideration of notes made by the latter and indorsed by Brown. West subsequently, went to Brown’s office and produced four notes, with the- explanation that the fifth note had disappeared and that if he ever found it he would then deliver it, after which explanation Brown received the four notes and delivered the notes made by Banigan and indorsed by him.</p> <p>In an action brought by West against Banigan and Brown upon the last-men-tioned notes, it was</p> <p>Held, that Brown had waived the delivery of the fifth note and was estopped from pleading non-performance in that respect;.</p> <p>That Banigan, having acquiesced in and ratified Brown’s act, was bound thereby;</p> <p>That, in any event", the burden was upon Banigan and Brown to show that West had subsequently found the fifth note and had failed to give it up;</p> <p>That West’s failure to execute a formal consent to the. discontinuance of the-actions against Banigan did not constitute a defense to the present action, in the absence-of proof that such consent had ever been demanded;</p> <p>That West, being a holder of the notes for. value, the defendant Brown, was liable thereon.</p>

<p>Appeal by the plaintiff, Owen Williams, from a judgment of the. Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 24th day of January, 1900, upon the decision of the court, rendered after a trial at the Kings County Special Term, adjudging that the defendant, the Brooklyn Savings Bank, pay to the defendant administrators the money standing to the credit of the account in suit in this action.</p>

<p>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 27th day of October, 1899, upon the verdict .of a jury for $.8,500, and also from an order entered in said clerk’s office on the 24th day of November, 1899, denying the defendant’s motion for, a new trial made upon the minutes. ...</p>

<p>Stipulation limiting the issue — effect of a statement in the case- that ‘ ‘ the above is all the testimony taken.” ■ ■</p> <p>A stipulation m the following form: “It is hereby stipulated that the abovemien- . tioned case of William F. Hallenbeck, as plaintiff, against Egbert Z. Smith and another be tried, and the-other three above-named cases abide by the result of the trial of that case as to the question of partnership litigated; and that judgment be entered in each of said cases above mentioned, wdth costs, including the costs of trial, if the verdict be in favor of plaintiff, for the amounts-claimed in the several complaints, with interest; if verdicf in favor of defendant, judgment to be entered in all above cases of dismissal of complaint, with all costs and of trial in each case,” makes the question of partnership, especially in view of the fact that such construction was adopted by the parties at the trial, the only issue to be tried, although the answer sets up a general denial.</p> <p>A statement contained in.a case upon appeal that the above is all the testimony taken,” is equivalent to a statement that the case contains all the evidence.</p>

Appeal by .Henry P. Robinson, as executor, etc., of Isaac E. Hoagland, deceased, from an order-of the Surrogate’s Court of the county of Kings, made pursuant- to section 2602 of the Code of Civil Procedure, and entered in said Surrogate’s Court on the lOtli day of April, 1900, requiring him to make a deposit with, the Colonial Trust Company of moneys of the' estate held by the appellant to. the joint credit of the executors.'

<p>Appeal by Samuel H. Coombs, as assignee of Walter T. .Klo.t-s & . Brother’s Sons, 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 27th day of February, 1900, directing. him, as assignee of Walter T. Klots & Brother’s Sons, -to pay to Theodore B. Gates ninety dollars, the amount realized by said assignee upon the sale of certain judgments on which said Gates had an attorney’s lien for costs.</p>

<p>Appeal by Sarah Welling, as sole surviving executrix and trustee, etc., of William R. Welling, deceased, and others, legatees and remaindermen under said will, from a decree of the Surrogate’s Court of the county of Orange, entered in said Surrogate’s Court on the 9 th day of October, 1899, and especially from that part of said decree directing that Sarah Welling, the surviving executrix and trustee as aforesaid, pay to Thomas Welling'and William R. Welling, executors as aforesaid, or to George W. McElroy, the. attorney whq prepared the accounts of the executors, etc., of said Thomas Welling, deceased, the sum of $1,590 additional allowance under section 2562 of the .Code of Civil Procedure, allowed to them as sucli executors upon this- accounting from any money in her hands or under- her control belonging to the principal of said trust fund, and that she take and file their receipt for such payment, and directing the said Sarah Welling to pay to Thomas Welling and William R. Welling, the executors of said Thomas Welling, deceased, the sum of $400 . out of" the principal of said estate in lieu of full oneJialf commissions for receiving the corpus of. said trust fund.</p> <p>And the said Sarah Welling, as sole surviving executrix, etql, appeals especially from that portion of said judgment directing that she .pay out of the principal of said estate to Edward B. Sanford, attorney for Annie W. Sanford and others, the sum of $250 as an allowance. herein for. services, and that she also pay to Francis B. Sanford, attorney for Sarah Me. Sanford, the sum of $100 as an allowance herein.for services.</p>

Appeal by the defendant, John J. Scannell, as fire commissioner of 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 New York on the 29th day of January, 1900, upon the verdict of a jury rendered upon the trial of the issues in. a mandamus proceeding; also from a final order of the Supreme Court, made at the New York Special Term, bearing date the 5th day of January, 1900, and entered in…

Appeal by the defendant, Hugh O’Neill, 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 18th day of November, 1899, upon the verdict of a jury for $3,000, and also from an order entered, in said clerk’s office on the 17th day of November, 1899,. as resettled by an order entered in said clerk’s office .on the 29th day of November, 1899, denying the defendant’s motion for a new trial made upon…

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 12th day of July, 1899, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on. the 29th day of June, 1899., denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Charles Donohue, 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 1st day of December, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on'the 21st day of December, 1899, denying the defendant’s motion for a new trial made upon the'minutes.

Appeal by the plaintiff, Max Ruckert, from so much of an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York oh the 5th day of March, 1900, as provides that all questions as to the sufficiency, responsiveness or relevancy of the plaintiff’s answers on cross-examination, taken under a commission issued in the action, be reserved to be disposed of on the trial of the issues in the action.

Appeal by the plaintiff, Sigmund Blumenthal, 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 16th day of February, 1900, denying his motion to place the cause upon the calendar for preferred causes. The action was for slander.

Appeal by the defendant, Ira L. Bursley, 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 19th day of February, 1900, granting the plaintiff’s motion .for an additional hill of particulars.

<p>Appeal by the defendant, Edward R. Poerschke, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 30th day of August,. 1899, upon the decision of the court rendered after a trial at the Hew York Special Term. :</p>

Appeal by the plaintiff, Thomas Barry, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 25th day of May, 1899, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

<p>Appeal by thé plaintiff, Eobert O. Babbitt, 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 29th day of January, 1900, upon the dismissal of the complaint by direction of the court after a trial at the IjTew York Trial Term.</p>

Appeal by the plaintiff, Edwin Collett, 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 27th day of October, 1899, upon the verdict of a jury rendered by direction of the court.

<p>Award in condemnation proceedings in New York city — toases and assessments may be deducted therefrom—an allegation that they were “ valid and subsisting liens” is sufficient —: a demand is necessary to a claim, for interest — no reply required to a partial defense.</p> <p>All taxes and assessments, which are valid liens upon premises at the time an award therefor is made under chapter 56 of the. Laws of 1894, may be deducted by the city of New York from such award.</p> <p>In an action brought to recover such an award, the city need not allege in its. answer the facts showing that the taxes and assessments which it claims that it is entitled to deduct were actually levied and had become valid liens; the allegation that they were “ valid and subsisting liens ” is sufficient.</p> <p>The right of a claimant to interest on his award, under section 4 of the act of 1894, does not accrue until he has made a demand upon the city for the precise ' sum to which he is entitled.</p> <p>It seems,, that new matter set up in an answer as a partial defense and not as a. counterclaim, does not require a reply.</p>

Appeal by the plaintiff, Mary Eliza Graham, from a judgment of the Supreme Court in favor of the defendants, Louis Stern and Lisette Stern,, entered in the office of the clerk of the county -of New York on the 22d day of December, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

<p> Malicious prosecution — evidence that the defendant was informed that the plaintiff was a crook, etc., is incompetent. ' . </p> <p>In an action for malicious prosecution it is error to permit the defendant to testify that before he instituted the alleged malicious prosecution a person informed him that the plaintiff was one of the worst men he knew; that he had been in prison in Boston; was one of the biggest crooks' in Mew York city, and that he had been in trouble in St. Louis and Chicago and had to leave both those places, and that he was going to “do” the defendant.</p> <p>Ingraham, J., dissented.</p>

Appeal by Anna Dieckmann from an order of the Surrogate’s Court of the county of Hew York, entered in the office of said Surrogate’s Court on the 29th day of December, 1899, denying, for want of power, her motion to enter a decree settling the accounts of the executors of Christian Koch (also known as Cook), deceased.

. Appeal by Mary Elizabeth Gulick, executrix, etc., of Isaac F. Jones, deceased, from an order of the Surrogate’s Court of the county of New-York, entered in the office of said Surrogate’s Court on the 24th day of January, 1900, directing her to file her accounts as executrix, etc., of Isaac F. Jones, deceased. The facts are fully stated in the dissenting opinion of Ingraham, J.

<p>Appeal by the plaintiffs, Erastus H. Munson and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of January, 1900, dismissing, the complaint and directing the cancellation of the Us pendens theretofore filed in the action. ■ '</p>

<p>y Reargument of an appeal by the; defendant, the Metropolitan-Street Railway Company, 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 18th day of November, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, overruling, its demurrer to the complaint.</p> <p>This case is reported in 48 Appellate Division, 62.</p>

<p>Attorney and client —proceeding to compel an attorney to pay over money — a petition on information and belief, signed and verified by the petitioners’ attorney, and-not by the petitioners, when insufficient. ■</p> <p>An order appointing a referee to take proof, in a proceeding instituted to compel •an attorney at law to pay over, certain funds alleged to have been received by him in a professional capacity, should not be granted upon a petition, all the material averments of which are stated to be upon information and belief, signed by a person who describes himself as “ Attorney for the Petitioners,”' and verified by him upon information and belief, the grounds of which information and belief are stated to be conversations and correspondence had with one of the petitioners, where the only reason given for the failure of the petitioners to verify the petition is that both of them are residents of the State of Connecticut.</p>

<p>Appeal by The City of New York, the successor of The Mayor, Aldermen and Commonalty of the City of New York, 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 13th day of December, 1899, denying a motion to confirm the report of commissioners of estimate and assessment, appointed in a proceeding to lay out Whitlock avenue in the city of New York:</p>

Appeal by Alexander J. W ormser and others, heirs at law and next of kin of Simon Wormser, deceased, from an order of the Surrogate’s Court of the county of New York, bearing date the 21st day of December, 1899, and entered in said Surrogate’s. Court, denying their motion to remit certain penalties imposed -for delay in' paying the transfer tax upon the estate, and dismissing their appeal from thé report of the appraiser ; also from an order of said surrogate, bearing date…

Appeal by the defendant, The Consolidated Gas 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-12tli day of December, 1899, upon the verdict of a jury for §2,000, and also ■from - an order entered in said clerk’s office on the- 13th day of December, 189.9, denying the defendant’s motion for a new trial made upon the minutes. .

<p>Appeal by the plaintiff, Bessie Getzoff, 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 22d day of January, 1900,.upon the dismissal of the complaint 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 11th day of January, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Appeal- by the defendant, the Metropolitan Street Railway Cornpany, 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 30tli day of October, 1899, upon the verdict of a jury for §1,000, and also from an order entered in said clerk’s office on the 17th day of November, 1899, denying the defendant’s motion for a new trial made upon the minutes. .</p>

Appeal by the plaintiff, Clara E. Mersereau, 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 New York on the 28th day of November, 1899, resettling and amending a judgment entered in the action nuno pro tuno.

Appeal by The State Trust 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 1st day of March, 1900, denying its motion to be made a party defendant to the action.

<p>Suppression of a deposition — affidavit stating the irregularity complained, of when necessa/ry—what answers to interrogatories are sufficient.</p> <p>Under section 910 of- the Code of Civil Procedure, providing that a deposition may be suppressed, “ where it appears, by affidavit,” that it was improperly or irregularly taken or returned, a motion to suppress a deposition, because of the witness’ refusal to answer certain cross-interrogatories, should not be granted, where it is made upon the deposition alone, without an accompanying affidavit, unless it appears upon the face, of the deposition that the refusal was deliberate and willful.</p> <p>The interrogatory, ‘ ‘ Have you received any money or funds of any kind from any person or persons, or the promise of any within the past three months ; if -so, state fully and particularly as to the same ?” is fairly answered by the following reply : “I have received .no money or funds whatever from any one, except what was coming to me for Ihbor performed by me at Sierra. Mojada.” The refusal of a witness, not a party to the action and not connected with the . party at whose instance his deposition was taken, to answer an immaterial question for reasons personal to the witness, does not justify the suppression of the deposition. •</p>

Appeal by the plaintiff, Frederic Gr. Mason, as assignee for. the benefit of creditors of the United Press (of New York), and Joseph F. Tobin, assignee of the judgment herein, from so much of an order of the Supreme Court, made at the New York.

<p>Negligence — verdict for $15,000 for-injuries held to he excessive.</p> <p>In an action brought to recover damages for personal injuries, it appeared that the plaintiff, as the result of her injuries, had expended or become liable for about $1,670 for the services of physicians and nurses; that she was confined to her bed for about ten weeks, and that for a considerable time after-wards she was unable to walk; that at the time of the trial, over eighteen months after the accident, she could not go up and down stairs without pain, and could only walk about five blocks without feeling used up in the knees; that she could not go out alone on a stormy-day; that she had great difficulty iñ performing her duties as teacher, and had been compelled to give up her position as general superintendent of a school; that she would never entirely recover from the injury, and would always experience more or less.weakness of the knees and difficulty in walking.</p> <p>JXeld, that a verdict of $15,000 was excessive, and should be reduced to $7,000, in addition to the actual outlay or liability incurred by the plaintiff.</p>

Appeal by the plaintiffs, Julius Lewin and another, 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 8th day of February, 1900, vacating an execution theretofore issued against the defendant.

Appeal by the defendant, Carrie Stiner, 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 14th day of November, 1899, upon the verdict of a jury for $750, and also from an order ■entered in said clerk’s office on the 17th day of November, 1899., as amended by an order entered in said clerk’s office on the 29th day of November, 1899, denying the defendant’s motion for a new trial made upon the…

<p>Appeal by the defendant, the Few York Fews Publishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Few York on the 21st day of October, 1899, upon the verdict of a jury for $16,500, and also from an order entered in said clerk’s office on the 12th day of October, 1899, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the Union Trust Company of Hew York from a judgment of the Supreme Court in favor of the petitioner, Fernando Baltes,. as executor, etc., of- Edmund Waring, deceased, entered in the office of the clerk of the county of Hew York on the 3d day of January, 1900, and also from a decree and order made at the Hew York Special Term and entered in said clerk’s office on the 30th day of December, 1899, directing the said Union Trust Company to pay to the petitioner the sum…

Appeal by the relator, Clinton H. Smith, from an order.of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the- county of New York on the 6th day of December, 1899, denying his application for a writ of mandamus, requiring the respondent to restore him to duty. as major of the Seventy-first Regiment of the National Guard of the State of New York forthwith, “ and to relieve him of the punishment of suspension from command to which…

Appeal by the plaintiffs, The York Haven Paper Company and others, from a judgment of the Supreme Court in favor of the defendant Josiah W. Place, as assignee for the benefit of creditors of Walter & Place, entered in the office of the clerk of the county . of New York on the 26th day of September, 1899, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Thomas K, Grogan, 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 loth day of March, 1900, granting the defendants’ motion for leave to file an amended return to the writ of certiorari issued to review the relator’s dismissal from the position of policeman on the police force of the city of New York.

Appeal by the Knickerbocker Trust Company, as receiver in the above-entitled action, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of - February, 1900, granting leave to Aaron O. Whaley to sue the Knickerbocker Trust Company as receiver of the rents, incomes, issues and profits of certain real estate during the -pendency of the action.

Appeal by the plaintiff, Charles E. Kent, as administrator, etc., of Charles Y. Kent, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in- the office of the clerk of the county of New York on the lltli day of October, 1899, upon the dismissal of the complaint 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 13th day of October, 1899, denying the plaintiff’s…

Appeal by the plaintiff, Charles B. Morris, as administrator, •etc.., of Leslie B. Morris, deceased, from a judgment of the Supreme Court, 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 six cents damages, and also from an order entered in said clerk’s office on the 6th day of July, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Abraham L. Blumenthal, 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 17th day of July, 1899, upon the decision ..of. the court rendered after a trial at the JNew York Trial Term before the court without a jury.

Appeal by the defendants, William F. Milton and another, composing the firm of William F. Milton & Co., 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 8th day of April, 1899, .upon the report of a referee.

<p>Appeal by Samuel Bloch, the purchaser at a judicial sale, 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 2d day of February, 1900, directing him to complete his purchase.</p>

Appeal by the plaintiff, George P. Bedford, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of March, 1900, denying his motion for an injunction pendente lite.

Appeal by the defendant, Frank Gass, 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 21st day of January, 1900, granting the plaintiff’s motion for a new trial after a dismissal of the complaint.

Appeal by the plaintiff, L. and 'M. Kahn & 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 Hew York •on the 22d day of March, 1900, granting the motion of the defendant Charles Casper to vacate a judgment by default, entered against him upon an inquest on the 11th day of November, 1899, and .granting him leave to serve a supplemental answer setting up by way of defense his discharge in…

<p>Appeal by the plaintiff, Louis Jacobs, from a judgment of the-Appellate Term of the Supreme Court in favor of the defendant, Isaac Lieberman, entered in the office of the clerk of the county of New York on the 3d day of November,. 1899, and also from an order of the Appellate Term, entered in said clerk’s office on the 1st day of November, 1899, reversing a judgment in favor of. the plaintiff rendered by the Municipal Court of "the city of New Yotk, borough of Manhattan, first district, upon which order the judgment was based.</p>

Appeal by the defendant, Catharine Curtin, individually and as executrix, etc., of James F. Curtin, deceased, from 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 1st day of March, 1900, upon the decision of the court rendered after a trial at the Hew York Special Term overruling the demurrers interposed by the defendants Catharine Curtin and the defendants The Roman Catholic…

Appeal- by the defendants, Lewis Z, Bach 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 20th day of November, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, awarding judgment in favor of the plaintiff for specific performance, on certain terms .and provisions, as in said judgment provided.

Appeal by the plaintiff,'Stevens Voisin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 30th day of October, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of October, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.

. Appeal by the defendant, Frank J. Campbell, from a judgment of the Court of Special Sessions of the Peace in and for the city and county of New York in favor of the plaintiff, rendered on the 14th day of March, 1900, convicting him of the misdemeanor of violating sections 1472 and 1483 of the charter of the city of New York.

Appeal by the defendant, Lippman Tannenbaum, 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 19th day of October, 1899, denying his' motion to resettle art order or judgment or decree entered in said clerk’s office on the 2d day of May, 1899, so as to require an amended complaint to he served upon him. . .

Appeal by the defendant, James O’Brien, as executor, etc., of Ellen O’Brien, 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 20th day of November, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of November, 1899, denying the defendant’s motion for a new trial made upon the minutes.

' Appeal by -the defendants, Henry Kuhn and others, 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 23d day of March, 1900, adjudging .them guilty of a contempt of court, and imposing a fine therefor.

Appeal by the defendants, Henry Kuhn and others, from an ■order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of April, 1900, striking out their answer for a ■contempt of court.

Cross-appeals by the plaintiff, Harry Carpenter, and by the défendant, 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 New York on the 12tli day of April, 1900, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Annie Dolan, 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 March, 1900, denying her motion to set aside a verdict rendered in the action.

Appeal by the plaintiff, Thomas Krekeler, 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 24th day of November, 1899, upon the decision of the court, rendered after, a trial at the New York Special Term, dismissing the complaint Upon the merits., -

Appeal by Peter Eagan, a former attorney for the plaintiff, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county óf Rew York on the 22d day of April, 1899, modifying the final judgment entered in the action by reducing the amount of the. extra allowance awarded to him from $2,000 to $200, and also from an order entered in said clerk’s office on the 22d day of .May, 1899, directing him to make restitution…