Volume 51 — New York Supplement

<p>Action by William C. Moquin and others against Annie R Bennett on a promissory note. Judgment for defendant.</p>

<p>1. Malicious Prosecution—Evidence.</p> <p>In an action for malicious prosecution, four things must be shown, namely, the institution of the proceedings, a want of probable cause, malice, and the termination of the prosecution in favor of the plaintiff.</p> <p>2. Same—Dismissal.</p> <p>"Upon appeal from, a judgment dismissing the complaint in an action for malicious prosecution, in which the evidence both as to prohable cause and as to malice was conflicting, held, that both questions should have been submitted to the jury.</p>

<p>Appeal from Kings county court.</p> <p>Action by John J. Wilson against John P. Olano. From a judgment dismissing the complaint, plaintiff appeals.</p>

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

Action by- Lillie H. Knapp against Waldo E. Knapp and others. From a judgment and from an order denying a motion for a new trial, defendant Waldo E. Knapp appeals.

<p>Appeal—Review—Sufficiency of Evidence.</p> <p>A verdict rendered in a justice court, supported by some evidence, should not be reversed by the county court, although it may draw a different conclusion from the facts.</p>

<p>Appeal from special term.</p> <p>Action by Marcus P. Mason against Amasa Corbin, Jr. From an order declaring the case and exceptions on appeal abandoned by defendant, he appeals.</p>

Action by W. Scott Johnson against the city of Poughkeepsie. From a judgment for defendant, with 5 per cent, additional allowance, and from an order denying a new trial, plaintiff appeals.

Action by the Lanzer & Stern Company against Margaret' Mulvihill. From a judgment on a verdict for defendant, and from an order denying a new trial, plaintiff appeals.

Action by John Jenkins against the Brooklyn Heights Railroad Company. Plaintiff’s complaint was dismissed, and motion' for new trial directed to be heard in the first instance at the appellate division.

Theresa Rothchild against Morris Link and others. From a judgment in favor of plaintiff, defendants appeal. On November 19, 1894, the defendant Mannesovitch began an action against Morris Link to recover judgment on three promissory notes; and judgment was taken hy default thereon upon December 10, 1894, and execution issued. The 9th day of December being Sunday, this judgment was entered one day before Link’s 20 days to answer bad expired.

<p>Mortgage—Bona Fide Assignee.</p> <p>In an action brought by an assignee for full value of a mortgage upon real property, to foreclose it, the defense was that the plaintiff took the assignment, subject to certain equities, consisting, as alleged, in the fact that the mortgage had been executed and delivered only to be used in a certain transaction, on a certain day, and for a certain purpose, and that it had been fraudulently used for other purposes. The defense rested chiefly on the testimony of one witness, who was plainly contradicted on the essential facts, and there was direct evidence in opposition to defendant’s claim. Held, upon a review of the evidence, that the conclusion of the trial judge, in favor of the plaintiff, was correct.</p>

Action by Henry O. Ewing, as receiver of the Cardiff Coal & Iron Company, against George B. Wightman. From a judgment entered on a verdict directed by the court, and from an order denying a new trial, defendant appeals.

, Action by William 3. Buttling, as sheriff of Kings county, against Loftus B. Hatton and others. From a judgment at trial term on a verdict directed for plaintiff, and from an order denying a new trial, defendants appeal.

Actions by Lydia Woodworth and others against the Brooklyn Elevated Railroad and Frederick TJhlmann. From an interlocutory judgment overruling a joint demurrer to a supplemental complaint, the same points being involved in three other actions by parties owning undivided interests in the same property, which actions were tried at the same time, defendants appeal.

Action by Albert Bruen and others against George P. Nickels. From an order denying an application on behalf of William 0. Fig-nor to vacate an order for his examination as third party in supplementary proceedings, he appeals.

In the matter of the extension of North Third avenue to First street, in the city of Mt. Vernon, on application made for appointment of a referee. Denied.

Application of Thomas R Goodwin for a writ of mandamus directed to Jacob Neu, justice of the peace. From an order directing that it issue, defendant appeals.

<p>Appeal from Kings county court.</p> <p>Action by Domonico Drago against Martin E. Mead. Prom a judgment in favor of plaintiff, defendant appeals.</p>

<p>1. Divobce—Openinu Default.</p> <p>Although the rule is that a default will not be opened to permit a defense to be interposed which is not meritorious, it has not been vigorously applied in actions for absolute divorce, on account of the bearing that such actions have upon the status of the parties and their offspring.</p> <p>9. Same—Mistake of Attorney.</p> <p>Upon a motion by a defendant, in an action for absolute divorce, to open a judgment taken by default, it appeared that the default had resulted 'from the mistaken view of her attorney as to her wishes in respect to answering, and that she was desirous of litigating the validity as a defense of a decree of divorce formerly obtained by her against the plaintiff, in Connecticut. Held, that the proposed defense was one which should properly be determined upon a trial, and that the judgment should be opened.</p> <p>McLaughlin and Patterson, JJ., dissenting.</p>

Action by Henry Miller against Alphonse V. Benoit. From a judgment entered on a verdict of a jury for $1,205.97, and from an order denying a new trial, defendant appeals.

Action by Russell M. Whitney and others against the city of Olean fo'r breach of a contract. There was a verdict directed for defendant, and plaintiffs except. Exceptions sustained.

<p>Application by William N. Heard against the commissioners of charities of the city of New York for a writ of mandamus. Heard on motion to show cause why a writ should not issue.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Rachel A.'Jones and Sisney S. Spring, as administrators of the estate of Samuel Jones, deceased, against William R. Perlcins and another. From a judgment dismissing the complaint, plaintiffs appeal.</p> <p>Appeal from a judgment entered upon the report of a referee in Wyoming county dismissing the plaintiffs’ complaint upon the merits, with costs. Plaintiffs’ complaint alleges that on the 20th day of June, 1892, and for a number of years prior thereto, the defendant William R. Perkins was the owner in fee of, and the defendant Christina Perkins had an inchoate right of dower in, certain lands particularly described in the complaint as 17 acres situated in the town of Middlobury, and that Samuel Jones, in his lifetime, about that date, loaned and advanced to the defendants the sum of $650, with which to pay a certain mortgage executed by the defendants upon the lands so described to Theron Bullock. The complaint alleges that the defendants agreed that they would “execute and deliver to the said Samuel Jones a mortgage upon the lands and premises above described in the said sum of six hundred and fifty dollars for the purpose of securing the payment of the said loan so made by the said Samuel Jones to these defendants; said mortgage, by the terms of said agreement, to be due and payable five years from the date thereof, to wit, on the 20tli day óf June, 1897, with annual interest thereon.” It is alleged in the complaint that on the 21st of June, 1892, the defendants paid to Bullock the sum of $650, so received from said Jones, in discharge of the Bullock mortgage, and that that discharge was executed by him, and recorded in the clerk’s office of Wyoming county. It is further alleged that on the 23d of July the defendant William R. Perkins conveyed the said premises to the defendant Christina Perkins, who is the said owner of the premises. It is alleged that the defendants have refused and neglected to execute a mortgage upon the premises, and have not paid the sum of $650, or the interest thereon, or any part thereof, to the said Jones or to these plaintiffs, his legal representatives. It is alleged that on the lGth of April, 1896, Samuel Jones died in the town of Attica, and on the 8th of May, 1896, the plaintiffs were appointed administrators of the goods and chattels of the deceased, and that they have duly qualified, and that on the 16th of July, 1S86, the plaintiffs “tendered to the said defendants, and each of them, a mortgage upon the said lands and premises in the said sum of six hundred and fifty dollars, to be due and payable on the 20th day of June, 1897, with annual interest thereon, to these plaintiffs, as such administrators as aforesaid, mortgagees, and requested the said defendants, and each of them, to join in the execution of the said mortgage, and that the said defendants, and each of them, refused and neglected so to do.” Several of the allegations of the complaint are admitted, and the answer alleges that the §650 mentioned in the complaint was, by said Jones, “given to the defendant Christina Perkins by the said plaintiffs’ intestate as an absolute gift to her, and that there was no agreement or understanding expressed or implied that such moneys so given to the defendant Christina Perkins as aforesaid were to be treated as a loan, but, on the other hand, it was expressly agreed that the same should be an absolute gift based upon the love and affection the said plaintiffs’ intestate had for his said daughter, the defendant Christina Perkins, and the further consideration that the defendant William R Perkins should thereafter make, execute, and deliver the deed of conveyance” of the premises mentioned in the complaint. The referee finds that the intestate, on the 20th day of July, 1892, “went to the home of the defendants, in the said town of Middlebury, and delivered to his daughter, the said defendant Christina Perkins, the sum of six hundred and fifty dollars, to satisfy and discharge the mortgage aforesaid, intending the same to be accepted and received by the said daughter for such purpose, and upon condition that the said defendant William R. Perkins should convey by deed to the said defendant Christina Perkins the said real estate mentioned in the first finding of fact.” The referee also finds that the intestate “made no request or demand of the defendants, or either of them, for any security for the money so delivered as aforesaid.” The referee also finds that Samuel Jones died on the 16th day of April, 1896, and on the 8th of May, 1896, the plaintiffs were appointed administrators of his goods and chattels. Exceptions were filed to the referee’s report.</p>

In the matter of the application of George F. Thompson for the ■distribution of surplus moneys arising under a sale in foreclosure in Potter against Rising and others, Simeon N. Humphrey and Emma J. Rising filed claims. From an order of the county court directing the payment of the surplus pursuant to the report of a referee, Simeon N. Humphrey appeals. Affirmed.

<p>Appeal from special term.</p> <p>Action by George G. Kenyon against the New York Central & Hudson Biver Bailroad Company and the Syracuse, ' Ontario & New York Bail way Company. Judgment for plaintiff. Defendants appeal.</p>

<p>Appeal from special term.</p> <p>Certiorari by the people of the state of New York, on relation of the New York, West Shore & Buffalo Bailway Company and the New York Central & Hudson Biver Bailroad Company, against Spencer Johnson and others, assessors of the town of Biga, county of Monroe, state of New York, to review an assessment for taxes. Erom an order dismissing the writ, plaintiffs appeal.</p> <p>The New York, West Shore & Buffalo Railway Company is the owner, and the New York Central & Hudson River Railroad Company is the lessee, of about 5.37 miles of single track railroad, and of about 4.37 miles of side track, and one small tenement house, in the town of Riga, the land occupied being about 60 acres. In 1887 the assessors of the town assessed the New York, West Shore & Buffalo Railway Company, as owner, and valued the property at $184,000, being an increase over the valuation of 1896 of $98,000, though it does not appear that the value of the property has been increased. The assessors, after completing their roll, gave notice, pursuant to section 35 of chapter 908 (Tax Law) of the Laws of 1896, that they would meet on the third Tuesday of August (17th), 1897, to review their assessment. On that day the relators appeared before the assessors by their attorney, Cassius C. Davy, who filed a statement verified by him, in which was stated the value of the property owned and occupied by the relators in the town of Riga, and that the valuation placed thereon by the assessors was illegal and unjust: (1) That it was overvalued by the sum of $154,000; (2) that its valuation was unequal, and at a higher proportionate valuation than was placed on other property on the same roll; (3) that other property within the town was not assessed at its full value; (4) that all the assessable property in the town was not placed on the roll. This statement was made upon information and belief, and the affiant, in his affidavit, stated that the sources of his information and belief were statements furnished and letters written to him by the tax agent of the New York, West Shore & Buffalo Railway Company residing at Ft. Plain, N. Y. The assessors refused to reduce the valuation, and September 10, 1897, the relators, through their tax agent, duly verified a petition asking for a writ of certiorari to review the assessment, alleging that it was illegal and erroneous, because the property was overvalued, and was unequally assessed, because made at a higher proportionate valuation than the other real and personal property of the town, specifying 35 persons assessed upon the roll the valuations upon whose property were much less than they should have been, and also specified the names of 9 persons not assessed upon the roll who would have been assessed for amounts stated. It was also alleged in the petition that the relators applied on grievance day for a-reduction of the valuation placed on their property, which was refused by the assessors. Upon this petition and the accompanying affidavit of Cassius O. Davy, verified September 8, 1897, a writ of certiorari, in the usual form, was granted, September 13, 1897. September 30, 1897, the assessors filed their return, denying that the valuation of the relators’ property was excessive, and denying that it was valued at a greater proportionate rate than other property valued on the same roll. They also returned that August 17, 1897, they required the relators to furnish witnesses on the question of valuation, and statements showing the cost of the road by persons qualified to testify, which the relators did not do. Upon the papers upon which the writ was granted, the return thereto, the aflidavit of Frederick F. Wendell, verified October 22, 1897, and the affidavit of Gassing 0. Davy, verified November 27, 1897, the motion of the assessors to dismiss the writ was heard. The motion was made upon the ground that the court had no jurisdiction because the statement of August 17, 1897, was verified upon information and belief, and not by a person having knowledge of the facts. The motion of the assessors was granted upon the sole ground, as stated in the order, that the statement of September 17, 1897, was made on information and belief, verified on information and belief, and was not verified by any person having knowledge of the facts.</p>

Proceedings to extend Folts street, in the village of Herkimer. From an order of the county court denying a motion to set aside a former order of that court, the New York Central & Hudson River Railroad Company and another appeal.

<p>Appeal from special term.</p> <p>Action by George M. Booth against Jeanette P. Barron and husband. From a judgment in favor of plaintiff, defendants appeal.</p>

<p>Action by Sophia E. Vetter, administratrix of Frederick Vetter, against the Massachusetts National Life Association. There was a judgment directing a verdict for plaintiff for $1,068, and defendant moves for a new trial on exceptions ordered heard by this court in the first instance.</p>

<p>Fraudulent Conveyances—Gifts—Notice.</p> <p>The creditors of an insolvent debtor, who has fraudulently made a gift of certain money, can recover it, though the donee was ignorant of the fact of donor’s insolvency, provided the donee has not, without notice, and in good faith, paid it over to another.</p>

<p>Appeal from trial term.</p> <p>Action by Thomas Kelly, administrator of Michael Kelly, deceased, against Sophia B. Smith and others. From a judgment dismissing the complaint on a trial before a jury, plaintiff appeals. Affirmed.</p>

Action by James V. Lawrence, as surviving partner of the firm of Lawrence Bros., against the mayor, aldermen, and commonalty of the city of New York. From a judgment dismissing the complaint, plaintiff appeals.

<p>Counterclaim—Action by Bank—Usury.</p> <p>The rule established by the federal laws, that the penalty imposed upon national banks for taking usury cannot, in an action by the bank on the indebtedness, be set up as a counterclaim, is by the New York banking law of 1882, as re-enacted by Laws 1892, c. 689, § 55, rendered applicable in actions by state banks and individual bankers.</p>

<p>Appeal from special term, New York county.</p> <p>Application by the people of the state of New York, on the relation of Charles B. Kelsey, for a writ of mandamus against the New York Postgraduate Medical School and Hospital. From an order granting the writ, defendant appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Arnold B. Heine and Jacob Bohner against Johannes. Bohner and Anton Iglauer for an injunction. From an order granting the relief prayed, defendants appeal.</p>

Action by Marie S. Bouillon against Richard T. Wilson. From a judgment dismissing the complaint, and from an order denying a new trial, plaintiff appeals.

<p>1. Street Railroads—Injury to Passenger—Contributory Negligence.</p> <p>The plaintiff, while riding on a step of the platform of one of defendant’s cars which was crowded with other passengers, was thrown off by a sudden lurch of the car in turning a curve at the foot of a sharp incline. Held, that whether it was contributory negligence, under the circumstances, for the plaintiff to assume the position that he did, was clearly a question for the jury.</p> <p>2. Same—Duties op Carrier.</p> <p>Held, further, that the defendant, receiving plaintiff as a passenger, and permitting him to stand on the step, owed a duty to take reasonable care that he was not exposed to unnecessary danger.</p>

<p>Appeal from trial term.</p> <p>Action by John Thornton, administrator, against William F. Lennon. From the judgment entered on a verdict, and from an order denying a new trial, defendant appeals.</p>

Action by Michael Moran against Stephen S. Vreeland. From an order granting discovery and inspection of a letter written by defendant to plaintiff, plaintiff appeals.

<p>Appeal from trial term, New York county.</p> <p>Action by Edward Felbel against Gorman Kahn. Prom a judgment on an order denying a new trial, defendant appeals.</p>

<p>1. Brokers—Action for Commission—Evidence.</p> <p>At the trial of an action by a broker to recover commissions for a sale of real property owned by defendant, under a written contract signed by defendant’s husband, the husband was asked by plaintiff’s attorney, “Did you have authority from your wife to execute this paper?” This was objected to, and excluded, as involving a conclusion. Held, that the question asked, not for a conclusion, hut a fact, and should have been allowed.</p> <p>2. Same.</p> <p>He was further asked, “At the time of signing this paper, did you have a power of attorney from your wife?” Held, that the exclusion of the question was error, as plaintiff was entitled to show that a power of attorney existed, and then to compel its production.</p> <p>3. Undisclosed Principal.</p> <p>An undisclosed principal may be held for an act done with his authority by an agent in his own name.</p>

<p>Application for reargument.</p>

<p>Appeal from equity term, Monroe county.</p> <p>Action by John Van Voorhis against Hannah F. Brown, impleaded with others. From a judgment dismissing the complaint, with costs, entered in Monroe county on a decision of the court at Monroe equity term, plaintiff appeals.</p> <p>This action was brought upon a promissory note of §50Q, dated September 17, 1894, payable 10 days after date at the Traders’ National Bank, in the city of Rochester, which bore the signature of I-I. E. Webster & Co., as makers, and was payable to the order of the plaintiff. At the time this note bears date the firm of H. E. Webster & Co. consisted of Hawley E. Webster, Ella A. Webster, and Hannah F. Brown, and was engaged in the business, of retailing coal at the village of Brockport. Hawley E. Webster was also postmaster at that place, and on the day the note was executed he came to the plaintiff, and informed him that he had used §500 of government money, “which he ought not to have done,” but that he expected to have been able to replace it the next day; that the post-office inspector was to be there soon; and that he was in a tight place, and wished to raise the money for not exceeding 10 days. The plaintiff thereupon agreed to assist him, and took the note in suit to the bank, where, upon the strength of his individual indorsement, he obtained the money thereon, less the discount for 10 days, which he immediately paid over to the defendant Webster. Thereafter, and prior to the maturity of the note, the plaintiff learned that Webster, instead of having appropriated only §500 of government funds, was a defaulter to the extent of nearly §2,000, and that his firm was utterly insolvent, whereupon he went to the bank, took up the note which he tendered to the defendants, and demanded payment of the moneys loaned by him. Payment of the note was refused, and this action was thereafter brought. The defendants Hawley E. Webster and Ella A. Webster suffered default, and the defendant Hannah F. Brown interposed a defense, which was sustained by the trial court.</p>

Action by John Clements against the Connecticut Indemnity Company. There was a judgment for plaintiff, and from the judgment •and an order denying a new trial defendant appeals. Reversed. The defendant is a life insurance company organized under the laws of the state of Connecticut, and doing business in this state.

<p>Landlord—Tenement House—Lighting Hallways.</p> <p>While the obligation of the landlord of premises occupied by several families, to use care in keeping in a reasonably safe condition the balls or passageways under bis control, does not ordinarily impose any general duty to keep them lighted, it is otherwise where their construction is so unusual or peculiar as to render artificial light essential to reasonable safety.</p>

In the matter of the application of the mayor, aldermen, and commonalty of the city of New York, relative to the opening, widening, and extending of Elm street, in the city of New York. From an order awarding to the commissioners of estimate and assessment an additional allowance, the city appeals.

<p>Appeal from trial term.</p> <p>Action by Nora Murphy against Francis Leggett and others. From a judgment entered on a verdict, and from an order denying a new trial, defendants appeal.</p>

<p>Appeal from special term, Delaware county.</p> <p>Action by James B. Cowan, as executor of Eobert T. Hume, deceased, against John Davenport, Sr., and others. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Negligence of Independent Contractor.</p> <p>Where an injury caused "by the falling of a brick from a building in process of construction is chargeable to the negligence of an independent contractor or his men, if of any one, the owner of the building cannot be held liable.</p> <p>2. Same—Assumption of Risk.</p> <p>A watchman who is employed to look after a building in process of construction, and who is aware of the danger from bricks falling into the street, and of the lack of safeguards, and knows that bricks have fallen, cannot, if thus injured himself, rely on the absence of a covering to protect travelers or warn them of the danger, but must prove facts showing that he exercised more than ordinary care for his own protection.</p>

<p>Appeal from Monroe county court.</p> <p>Robert West was convicted of violating a city ordinance regulating bill-posting in the city of Rochester, and appeals.</p>

<p>1. Costs—Motion for Hew Trial.</p> <p>Costs on a motion for new trial after nonsuit can only be awarded under Code Civ. Proc. § 8286, providing that costs upon a motion in an action where the costs are not specifically regulated in that act may be awarded in the discretion of the court or judge; and, until such discretion is exercised in favor of one of the parties, no costs can be allowed. ■</p> <p>2. Same—Rate Prescribed.</p> <p>Code Civ. Proc. § 3251, providing that costs awarded shall be fixed at the rate therein prescribed, does not authorize-any award of costs, but only fixes the rate.</p>

Certiorari by the people, on the relation of the American Soda-Fountain Company, against James A. Roberts, comptroller, to review a determination assessing a tax against relator. Determination reversed.

<p>Appeal from special term, New York county.</p> <p>Action by Peter G. Arnot against Isaac C. Birch and others. From a judgment overruling a demurrer to the complaint, defendant Birch appeals.</p>

Action by Wellington Vincent against Albert Mauterstock. From a judgment for plaintiff rendered on a decision by the court after a trial without a jury, defendant appeals.

Action by the Continental National Bank of New York against the Tradesmen’s National Bank and others. From an order denying a motion for inspection and discovery, plaintiff appeals.

Action by C. O. Townsend, as receiver, against Sarah. E. Bumpus and another. From a judgment dismissing the complaint upon the merits, plaintiff appeals.

<p>1. Riparian Owners—Lands under Navigable River—Apportionment.</p> <p>The land under the waters of a navigable river should be apportioned between adjacent owners in proportion to "their frontage upon the main channel of the river in a practically straight line, and as such line would be extended by following the line of indentations considered as a part of the river.</p> <p>2. Same—Right of Access.</p> <p>A riparian owner on a navigable river has the right of access to the navigable part of the river from the front of his lot, and the right to build a landing.</p> <p>3. Same—Abandonment.</p> <p>Where the land under the water of a cove on a navigable river is divided between adjacent owners, and one of them allows his right to lapse, while the other builds a landing place for boats on his portion, and a dock across his portion of the month of the cove, and builds therein a coal house, access to which coal house and landing can most conveniently be had by boats coming up over the part of the cove not assigned to him, those facts will not prevent the subsequent grant of the other portion of the cove to the adjacent owner.</p>

<p>Action against City—Personal Injuries—Notice.</p> <p>In order to comply with Laws 1886, c. 572, providing that no action for damages for personal injuries shall be maintained against the city of New York unless a notice, as therein prescribed, shall have been filed with the corporation counsel, it is essential that the notice contain a statement of “an intention to commence an action,” so framed that that intention appears by necessary statements or by necessary inference from what is stated, and a statement that the person filing the notice “claims and demands” a specified sum is insufficient.</p> <p>Barrett and Ingraham, JJ., dissenting.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by Anna M. Lehmann, as administratrix of Joseph Lehmann, deceased, against the city of Brooklyn. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.</p>

<p>1. Wills—Construction—Death op Devisee—Intestacy.</p> <p>When a wife is made a specific devisee, and also sole residuary legatee, under her husband’s will, by which will her husband also specifically disinherits one of his children, and the death of the husband occurs subsequently to that of his wife, the husband dies intestate as to the property willed to his wife, and the child will' take a share of that property as though no will had been left.</p> <p>2. Partition—When Allowed.</p> <p>When executors are given the power, under the will, to sell any real estate not specifically devised, until such sale has actually been made, that part of the estate affected by the provision will be treated as realty, and partitioned among those who are tenants in common of it, upon suit brought by one of such tenants; such partition to be subordinate to the rights of creditors in the property.</p> <p>8. Same—Costs.</p> <p>A plaintiff in an action in partition, who is given judgment, is entitled to costs, although the amount and manner of payment cannot be determined until the property is sold.</p>

Action by John H. Mabbett and others, as executors of the estate of Joseph M. Mabbett, against Stewart L. Mabbett and another, as executors of said estate, and Williard Lester, as trustee of the estate of Benjamin G-. Scribner, and others. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiffs appeal.

Action by George S. Hogan against John 0. O’Brien. From a judgment for plaintiff, and an order denying a new'trial, defendant appeals.

<p>Right to Accounting—Construction op Contract.</p> <p>In an action for an accounting and damages it appeared that by a contract entered into between the parties in 1891, to continue until January 1, 1894, provision was made for carrying on a department, in defendants’ store, under plaintiff as its principal. By its terms the capital required was to be furnished by defendants, and all expenses to be «charged and all sales credited to plaintiff or his department, and he was to pay them a percentage on net sales, to cover their commissions and expenses; plaintiff also to pay interest on goods, and retain all the remaining profits. On March 30, 1893, they undertook to discharge him, and refused to account for the three preceding months. Held, in view of all the evidence, that the relation between the parties was not that of employer and employe, but that plaintiff was an independent contractor, and entitled to an accounting, in any event, up to March 30, 1893.</p>

<p>Wills—Construction—Death or Devisee—Annuity.</p> <p>By his will a testator vested the residue of his estate in his executors in trust during his wife’s life, to receive the rents, issues, and profits, and to pay therefrom to his daughter 0. $20 per week “during the life of my wife,” and to permit her to have the use of a certain dwelling “until the final distribution of my estate.” It further provided that, “should either of my daughters die without issue during the lifetime of my said .wife, then” the share of said deceased daughter’s income was to be. paid to" testator’s wife. At the death of the wife the estate was to be distributed. C. died during the wife’s life, but leaving issue surviving. Held, that the -administrator of her estate was entitled to receive the annuity, and to the use of" the dwelling, during the continuance of the trust estate.</p>

Action by John B. Haslcin, Jr., against Elizabeth J. Murray and others. From an order granting an action of preference at the trial term, defendants appeal.

<p>Trial—Order of Preference—Vacating.</p> <p>Upon an application for a preference, which should have been made at trial term, part 2, but was made at special term, an order was granted setting the case down on the trial term calendar, and from this order an appeal was taken. Pending this appeal, a motion was also made at trial term, part 2, to vacate the order. Held, that the court properly refused to vacate the order, and left the party to his remedy by appeal.</p>

<p>1. Wills—Demonstrative Legacy.</p> <p>A legacy of money is demonstrative when the gift is so made as clearly-to show the testator’s intention that the legatee shall certainly receive the-amount bequeathed.</p> <p>2. Same—Construction—Charges on Estate.</p> <p>A will contained a so-called “sixth section,” disposing of the proceeds of a certain farm, and consisting of six clauses, each providing for a separate legacy. The “eighth section” provided that, “if the proceeds of my said farm and my other estate should prove insufficient to pay all the legacies * * * in full, then * * * the legacies given * * * by the first, second, third, and fourth clauses of the sixth section * * * shall be paid * * * in full, and the remaining legacies * * * proportionately abated.” Eeld, that the intent was to make the first four clauses chargeable, if need be, upon the general estate, but to leave the fifth and sixth chargeable only upon the balance of the farm fund, if any, after satisfying therefrom the four preceding clauses.</p>

<p>Nuisance—Obstruction in Sidewalk.</p> <p>The complaint in an action for damages alleged that in front of a building in New York City, owned by defendant, in the public sidewalk, “the defendant had maintained a large aperture,” into which the plaintiff fell, and was injured. Held that, in the absence of an an allegation that the opening, was wrongfully or unlawfully made or maintained, or of facts from which the same could be inferred, the complaint failed to state a cause of action for a nuisance.</p>

<p>Appeal from special term, New York county.</p> <p>In the matter of the application of Mary Baby for an order directing an attorney to pay over an amount alleged to be in his possession and belonging to her, plaintiff appeals.</p>

<p>Steeet Railroads—Injury to Foot Traveler.</p> <p>At the trial of an action to recover damages for personal injuries due to’ the alleged negligence of the defendant, it appeared that the plaintiff, a boy five years old, in company with an older boy, was passing over Sixth avenue at a crossing, and waited between the car tracks for a truck to pass. While thus waiting, one of defendant’s cars, distant from 20 to 40 feet, approached, and one of its horses struck plaintiff just before he got across the track. There was evidence that the car was then still proceeding very rapidly, and that the driver was urging the horses on. Held, that the evidence would have warranted a verdict for plaintiff, and that the dismissal of the complaint was error.</p>

<p>Appeal—Review—Conflicting Evidence.</p> <p>In an action to recover damages resulting from a collision between the vehicles of the plaintiff and defendant, there was a very pronounced conflict of evidence as to the speed at which plaintiff was driving, as to whether he was racing with another team, and as to whether the parties were respectively on the proper side of the middle of the road, and as to the care exercised by each of them. Held, that a verdict in favor of the plaintiff should not be interfered- with.</p>

<p>Motion for reargument.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Margaret Mtchett, as administratrix of George H. Fitchett, deceased, against the American Bill-Posting Company and others. From an order granting plaintiff’s motion for inspection of the books-of the company, it appeals.</p>

Action by William B. Pope and David K. Case against William Kelly and others. From an order denying a motion to compel plaintiffs to separate and number the several causes of action set forth in the complaint, defendants appeal.

<p>Injuries at Crossing—Question eor Jury.</p> <p>In an action for damages for injuries due to the defendant’s alleged negligence, it appeared that while the plaintiff, as one of a large party, was riding along a country road upon a hired tallyho coach, drawn by six horses, they found themselves suddenly upon the track of a railway crossing the road, and were struck by an approaching engine. The driver was1 not familiar with the road, and plaintiff had never been over it. All the surroundings were such that attention would not be readily attracted to the presence of the tracks, and the sign indicating a railroad crossing was very inconspicuous. There was evidence that, while the bell was rung very faintly, the whistle was not blown. Reid, on appeal, after a verdict in plaintiff’s favor, that the case was properly submitted to the jury.</p>

<p>1. Brooklyn Bridge—Control—Pneumatic Tubes.</p> <p>In an action to restrain the commissioner of bridges from interfering with the construction of plaintiff’s pneumatic tubes across the New York and Brooklyn Bridge, it appeared that, by its act of incorporation, the plaintiff had received authority to construct and operate its tubes within and between cities. Held, that this did not by itself authorize it to lay the tubes along the bridge without further authority from the officers in control thereof.</p> <p>2. Same—Board of Trustees—Powers.</p> <p>Prior to the consolidation of the two cities, a board of trustees held exclusive control and management of the bridge, and by contract they had conferred upon the plaintiff the privilege of maintaining its tube line across the bridge. Held, that this action, involving no obstruction, danger, or interference with the proper functions of the bridge, was within the scope of their authority, and was binding on the commissioner who succeeded them, subject to the defendant’s continuing power to regulate, manage, and maintain the bridge, and to his approval and reasonable regulations in respect to plaintiff’s plans and manner of construction.</p>

<p>Taxation op Domestic Corporation—Assessment.</p> <p>Upon certiorari to review'an assessment against the capital and surplus of a domestic corporation, it appeared that, in the statement made by the corporation to the commissioners, it was represented that its capital was unimpaired, and amounted, net, with surplus, to $1,250,000, which was all invested in certain real estate, consisting chiefly of buildings erected on certain land leased by it, and was therefore not taxable as personal property. The commissioners accepted the statement as to the amount of its property, and the fact that the capital was unimpaired, but having decided that the buildings, only, and not the land, were owned by the relator, and were by themselves worth less that $1,250,000, assessed the relator on the difference between the two amounts less 10 per cent, of the capital. Held that, as it was undisputed that all the assets there were invested in the •specified real property, the value of the land, as such, if to be subtracted at ail, must, under the circumstances, he subtracted from relator’s alleged total assets, as well as from the total valuation of the real estate, and that the method adopted involved double taxation, and was erroneous.</p>

Action by James W. Christopher against the Langdon & Granger Brewing Company, Limited, and others. From a judgment dismissing the complaint, plaintiff appeals. The complaint alleges two causes of action, one for conspiracy and the other for conversion, but the plaintiff elected to try the case only upon the question of conversion.

<p>Appeal from trial term, New York county.</p> <p>Action by Pierre A. Brett against Martin G. Ebel and William Gr. Brett. From a judgment dismissing his complaint, plaintiff appeals.</p> <p>The action was brought to recover the sum of ifSOO, under a contract between 1’ne plaintiff and the defendants, the material parts of which are as follows: “Whereas, both parties are engaged in the business of shipbrokers, chartering vessels for various ports in the West Indies and South America; and whereas, 11ic party of the second part (the plaintiff here) has built up a business in freighting vessels for Port au Prince, Haiti, and has established a line known as ‘Brett’s Line, Haiti Packets’; and whereas, the parties of the first part (the defendants here) are desirous of acquiring such business and said line: The party of the second part hereby transfers and sells to the party of the first part all his interest and good will in the business of freighting vessels for Port au Prince and said Brett’s Line. Haiti Packets (not including any right to use that name), and for the term hereinafter mentioned agrees not to solicit freights nor do any business with Port an Prince in or from any place or places in the United States east of the Mississippi river, except that he may, as a broker, effect charters for vessels to and from Port au Prince, and may sell to merchants merchandize for Port an Prince. * * * The parties o,f the first part agree to pay the party of the second part the sum of eighteen hundred dollars a year, in equal monthly payments in advance, beginning on the 7th day of November, 1S94, during the term hereinafter mentioned. This agreement shall continue in force for as long a time as shipments are made to Port au Prince by H. Becker & Co., of the city of New York, or their successors; but in no event shall the term he less than five years.” The plaintiff proved the execution of this contract and its performance upon his part. Thereupon he rested. The defendants’ counsel then moved to dismiss the complaint upon the ground ihat the contract was a nudum pactum; that the plaintiff had no good will or interest In trading vessels which he could sell; and that the contract was contrary to the act of congress passed July 2, 1890, entitled “An act to protect trade and commerce against unlawful restraints and monopolies.’’ The motion was granted, and plaintiff excepted. The plaintiff then asked leave to go to the jury upon the various questions presented by the evidence, but his request was denied, to which denial he excepted.</p>

• In the matter of tlie application of Michael T. Daly and others on behalf of the mayor and commonalty of the city of New York. From an order overruling the report of commissioners of estimate and assessment, certain parties appeal.

<p>Appeal from trial term, New York county.</p> <p>Action by Lawrence E. Storey, administrator, against the mayor, aldermen, and commonalty of the city of New York. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Appeal from trial term.</p> <p>Action by William E. Dean against the mayor, aldermen, and commonalty of the city of New York. From a judgment for defendants, and an order denying a motion for a new trial or to correct the verdict, plaintiff appeals.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by Simon Blate against the Third Avenue Railroad Company. From a judgment on a verdict and from an order denying a new trial,, defendant appeals. Reversed. For opinion on former appeal, see 44 N. Y. Supp. 615.</p>

<p>Breach of Contract—Complaint.</p> <p>In an action to recover a sum o£ money, the complaint alleged that certain real property was conveyed by defendants to plaintiff’s assignor, and then proceeded to give a confused recital of an agreement between those parties concerning the erection of houses thereon, and of negotiations for the ■ sale thereof, and negotiations for placing mortgages thereon, and of how plaintiff’s assignor was prevented by defendants from carrying out various plans in connection therewith, and alleged in obscure terms a promise by defendants to pay to plaintiff’s assignor, for a certain equity, the sum of money demanded. But it did not explain how he was thus prevented, or show any resulting injury, or allege tender or performance by plaintiff’s assignor. Held, upon an examination of the entire complaint, that it failed to set forth any cause of action.</p>

<p>Traxseer Tax.</p> <p>Under the transfer tax law (Laws 1896, c. 908, as amended by Laws 1897, c. 284), a bequest of money to a municipal corporation for the construction of a public library building is not exempt from the tax.</p>

<p>Appeal from special term, Mew York county.</p> <p>Action by Bertha Dworsky against Moser Arndtstein. From a judgment directing specific performance of a contract, plaintiff appeals.</p>

<p>Appeal from special term.</p> <p>Action by Arthur Berry against the Atlantic White-Lead & Linseed-Oil Company. From a judgment dismissing the complaint, and for costs, plaintiff appeals.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by Frederick Emiliusen against the Pennsylvania Railroad Company. From a judgment dismissing the complaint, plaintiff appeals.</p>

Action by -Michael Seitz against Henry Schrell and others. From an order directing the referee in foreclosure to pay to a guardian ad litem of one of the infant defendants an allowance, the referee appeals.

In the matter of the judicial settlement of the estate of Delos L. Taylor, Adelia A. Taylor, administratrix, appeals from an order requiring her to account.

<p>Contempt—Violation op Injunction—Pine.</p> <p>Although, under Code Civ. Proc. § 2284, the court, in punishing a defendant for contempt in violating an injunction order, may impose a fine not exceeding $250, even though the plaintiff has not been injured by the de-, fendant’s miscpnduct, yet an order which imposes a fine, not upon that theory, hut simply as indemnity for the plaintiff’s loss, cannot be sustained, where, there is no evidence that the defendant’s misconduct did in fact produce any loss or injury.</p>

<p>Ex parte application in the matter of Jane A. Porter, an incompetent, to vacate injunction.</p>

In the matter of the judicial settlement of the account of Virgil C. Traver, as sole surviving executor of the last will of John W, Moore, deceased, Charles G-. Coffin, as special guardian, and Addie Coffin, administratrix, appeal.

Action by Emma G. Whitney against the Supreme Commandery, United Order of the Golden Cross of the World. From a judgment in favor of plaintiff entered on a verdict, and from an order denying a new trial, defendant appeals.

New York county. Action by James Carroll against the mayor, aldermen, and commonalty of the city of New York. From a judgment dismissing the complaint, plaintiff appeals.

<p>1. Best and Secondary .Evidence—Official Acts.</p> <p>It is error to admit parol testimony of the proceedings of village trustees, the record of their proceedings being the best evidence.</p> <p>S. Malicious Prosecution—Malice—Evidence.</p> <p>In an action for malicious prosecution, it is error to permit plaintiff to prove that defendant filed charges for neglect of duty in refusing to arrest plaintiff against the chief of police, with the' village trustees, and that he had been acquitted thereof by the trustees.</p> <p>3. Appeal—Harmless Error.</p> <p>Error in admitting such evidence is prejudicial.</p> <p>Woodward, J., dissenting.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by George Keister against William Rankin. From a judgment .entered on a verdict, defendant appeals. Reversed on conditions.</p>

<p>Appeal—Record—Sufficiency.</p> <p>On appeal from an order, all papers used in the court below must be in the record, and be referred to in the order.</p>

Action in justice’s court by Collins M. Graves against the Fitchburg Railroad Company. There was a judgment for plaintiff, and from a judgment of the county court affirming the justice’s court judgment the defendant appeals. The plaintiff was a passenger on the defendant’s train, and arrived with his trunk at its station in Hoosick at about half past 7 o’clock in the evening. He there left the train, and went to visit a friend about a mile and a half distant.

<p>Motion denied.</p>

Action by Lottie Lichtenstein against the mayor, aldermen, and' commonalty of the city of New York. From a judgment in favor of' plaintiff, entered on a verdict, and from an order denying a new trial,, defendants appeal.

Action by Henry H. Persons and another, as receivers, against the Buffalo City'Mills, Limited, and others. Defendant company appeals from an order denying a motion to set aside the service of summons.

<p>. Appeal from trial term, Lewis county.</p> <p>Action by Ida E. Damuth against Jennie M. Lee and Jessamine Lee. There was a judgment for defendants, and plaintiff appeals.</p>

<p>1. Municipal Corporations—Local Assessments—Presumption of Validity.</p> <p>Assessments for public improvements are presumed to be regular; and, in the absence of substantial injury, courts will not be overzealous in finding technical reasons for declaring them invalid.</p> <p>2. Same—Assessment District—By Whom Fixed.</p> <p>Under Laws 1870, c. 519, tit. 6, §§ 2, 3, as amended by Laws 1875, c. 407, which provide that the common council of Buffalo shall fix the amount which shall he raised hy local assessment, and the assessors shall assess the amount on the lands benefited, the assessors, and not the common council, are the persons to determine the district of assessment for local improvements.</p> <p>3. Same—Review of Assessment—Injunction.</p> <p>Where, an assessment is sought to be reviewed for jurisdictional defects, an action to restrain its collection may he maintained.</p> <p>4. Same—Duties of Assessors—Delegation.</p> <p>Under Laws 1870, c. 519, tit. 6, §§ 2, 3, as amended by Laws 1875, c. 407 (making it the duty of the assessors of the city of Buffalo to define the assessment district, and apportion the assessment), where they attempt to define a district hy adopting a map prepared in the office of the city engineer, the district is invalid.</p>

<p>Appearance—Notice op Retainer—Service.</p> <p>Under Code Civ. Proc. § 421, providing that defendant’s appearance shall' be made within 20 days by service of an answer, demurrer, or notice of appearance, a notice of appearance not served in time may be returned.</p>

<p>Action by the Empire Dairy Feed Company against the Chatham National Bank. To two counterclaims pleaded by the defendant, plaintiff demurred.</p>

<p>Appeal from special term, Saratoga county.</p> <p>Action by Samuel J. Pearsall against James H. Westcott and .another. Prom a judgment for plaintiff, defendants appeal.</p> <p>The plaintiff, in his complaint, averred that he was the owner of part of lot No. 52 on a map of lands of Henry Walton, deceased, in Saratoga Springs, N. Y.; that the defendants owned the adjoining premises on the north; that he had been in possession of his said lot over 30 years, and the wall between his premises and that of the defendants had been on the same line for the whole of said period. Said wall is eight inches thick, and the north line of plaintiff’s lot runs through its center, he owning the south half thereof. He also alleged that the defendants, in altering and repairing their building, had broken through said wall, and bad laid timbers on the south four inches owned by plaintiff, without Ms consent, and built an additional story, with intent to insert more timbers in ■said wall, and to take possession of said south four inches thereof without his consent. The plaintiff claimed a judgment for damages, and asked for an injunction restraining such alleged unlawful acts of the defendants. The trial judge found that the plaintiff was the owner of the premises described in the complaint, and hence that his lot extended to a line running' through the center of said wall, and also found as follows: “That the wall between the. premises of the plaintiff and defendants is, and has been for over thirty years, an eight-inch brick wall, and has been used by the owners of both premises as a party wall, and the timbers of both houses have rested therein, for over thirty years, and the plaintiff has occupied, by his timbers and house, the south half thereof, openly, notoriously, and adversely, during all of said period, claiming to own it under a written instrument; that the defendants, in the year 1897, in the course of making alterations and repairs upon their said premises, have taken possession of and used the entire wall, and threatened to exclude, and have excluded, the plaintiff therefrom, and have broken into his said premises, and injured the same, to the amount of $30.” I-Ie also found as conclusions of law that “the said wall between the premises of plaintiff and defendants is a party wall, and has been so used for more than thirty years, and the plaintiff is entitled to the use of it as such; that he is entitled to an injunction perpetually enjoining and restraining the defendants and their agents and servants from, entering upon or interfering with the south one-half thereof, and from removing or in any manner disturbing the plaintiff’s timbers in said wall, and from excluding him from the use of said wall as a party wall; that the plaintiff is also entitled to recover from the defendants the sum of thirty dollars damages suffered by him by reason of the acts of the defendants in breaking through the said wall into the plaintiff’s said premises.” Judgment was entered accordingly.</p>

Action by the Buffalo German Insurance Company against the Third National Bank of Buffalo. From a judgment for defendant (43 N. Y. Supp. 550), plaintiff appeals. Held: and notified them that, in the event the same were not paid and the stock redeemed on or before the 16th day of that month, such stock would be sold, and the proceeds applied in liquidation of tlie indebtedness of their testator.

<p>Deed by Minor—Affirmance—Evidence.</p> <p>A minor daughter deeded to her father property which he occupied as a homestead until he died, long after she reached her majority. Her father, with her knowledge and without objection, spent enough on the premises to keep them in good repair and in habitable condition, and during his lifetime she never asserted her ownership nor demanded any rent. About four months after her father’s death, and within the period of limitations, she gave notice of disaffirmance of the conveyance, and brought action for her interest, ’ll chi, the facts are not sufficient to show affirmance of the deed, nor to bar her recovery.</p> <p>Putnam, J., dissenting.</p>

<p>Application for mandamus by the people of" the state of New York on relation of H. L. Both and others against one Fitch, comptroller of the city and county of New York, to compel the payment of an order.</p>

<p>1. Pardon of Convict—Effect.</p> <p>A pardon oí a convict does not have the retroactive effect of determining that the judgment of conviction was erroneous or unjust, or that his imprisonment thereunder was unlawful; nor does it give him a right to sue the state or any one else for damages for his imprisonment.</p> <p>3. Constitutional Law—Exercise of Judicial Functions.</p> <p>Claimant had been convicted of burglary by- a court of competent jurisdiction, and no appeal therefrom had ever been taken. After imprisonment for two years, he had been pardoned. Laws 1895, c. 342, authorized him to present a claim to the board of claims for the damages sustained by him by reason of his improper conviction and imprisonment, and authorized the board to award just damages. Beld that, if the act be construed as invalidating an unreversed judgment as to the guilt of claimant, it is void, since an exercise of judicial functions.</p> <p>3. Same—Granting of New Trial by Legislature. •</p> <p>If the legislature did not intend to pass upon the correctness of the judgment of conviction, but only intended to confer jurisdiction on the board of claims to determine such question, the act cannot be sustained, since it would practically be a decision that the judgment of conviction was not final, and a permission for a new trial.</p>

<p>1. Trusts—Misappropriation op Estate—Remedies op Benepiciary.</p> <p>Where a trustee has misappropriated the trust estate, the cestui que trust or a substituted trustee is not confined to the legal remedy by an action for damages against those who have illegally taken the trust estate, but may maintain an action in equity for a judgment requiring the property taken to be returned to the possession of the trustee, and compelling the wrongdoers to account for the interest and profits which they have received.</p> <p>3. Same—Accounting.</p> <p>In such an action the court has power to direct that the particular securities still held by the defendants shall be delivered over by them, and, as incidental thereto, may send the ease to a referee, under whose direction It shall be turned over, and to whom the defendants shall be made to account.</p> <p>3. Same—Res Judicata.</p> <p>Where, in an action in New York by a trustee, it appears that his capacity is derived from an appointment as substituted trustee by a court of another state, where the trust was created, such appointment constitutes an adjudication that the trust still continued; and, if the court had jurisdiction, such adjudication cannot be questioned in the action brought by him here.</p> <p>4. Same—Action by Trustee.</p> <p>Where, in such an action, it appears that, by the laws of the state where the plaintiff was appointed, his appointment carries with it authority to maintain an action like that in question, it also operates to, enable him to maintain the action in this state.</p> <p>5. Same—Validity op Trust.</p> <p>A trust of personal property created by a resident of another state, and in that state, cannot be declared void by the courts of New York, unless it is shown to be void under the statutes of the state where it was created.</p> <p>6. Same—Violation op Trust—Liabilities op Third Parties.</p> <p>The use by a trustee of the trust fund for purposes of speculation is a violation of trust; and persons who take the trust securities from him in connection with such a transaction, with full notice that they are impressed with the trust, are bound to account for them.</p> <p>7. Same—Powers of Trustees.</p> <p>The fact that a trustee of property for a particular purpose is authorized to dispose of the property itself for that purpose does not authorize him to invest it in speculative ventures.</p> <p>8. Same—Rights of Beneficiaries.</p> <p>The principle that where there has been a misappropriation of trust funds in distinct investments, some of which have proved profitable, and some unprofitable, the beneficiary may ratify the former, arid take the profits, while rejecting the latter, and insisting on a return of the funds invested, with interest, does not apply where the trustee merely pledges trust securities with a broker, though with notice of the trust, as security for speculative purchases and sales, and where they are merely held by the latter as collateral; for in such case no investment thereof has been made, and the whole transaction must be ratified or repudiated together.</p>

<p>Appeal from trial term.</p> <p>Action by the Congregational Unitarian Society of Bernardston against Lucy Ann Hale, as executrix, and George W. Debevoise, executor, of Joseph P. Hale, deceased. From a judgment in favor of plaintiff for $17,892, and from an order denying a motion for a new trial, defendants appeal.</p>

Action by Richard O’Keefe against the mayor, aldermen, and commonalty of the city of New York. From a judgment entered on a verdict, defendant appeals.

<p>Appeal from trial term.</p> <p>Action by John Van Dolsen against the board of education of the •city of New York. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>1. Street Railroads—Injury to Passenger—Presumption of Negligence.</p> <p>In an action to recover damages for personal injuries suffered by the plaintiff while a passenger on one of the defendant’s cars, it appeared that the accident took place- at a terminal point of the road, upon a descending grade, at the foot of which another car was being shifted from one track to another, and where the two cars collided. Eeld, that the occurrence was in and of itself of such a character as tb raise a presumption of negligence, without any further proof than -that of the situation and of the occurrence itself.</p> <p>2. Same—Burden of Proof.</p> <p>The court charged the jury that, under the circumstances, the law imposed on the defendant “the burden of showing to the jury such facts as warranted the jury in concluding that the defendant exercised due care in the construction of its road, in the management of its cars and horses, to prevent accidents.” Eeld no error, certainly in view of the additional specific charge that the “burden of proof” rested on the plaintiff from first to last, and that she was bound to prove by a preponderance of evidence the existence of negligence on the part of the defendant, and that such negligence was the proximate cause of the injury.</p> <p>Van Brunt, P. J., and McLaughlin, J., dissenting.</p>

<p>Appeal from special term, Albany county.</p> <p>Appeal by Frederick D. Light and others from an order of the special term (49 N. Y. Supp. 345) denying an application by the appellants for a writ of certiorari to review the action of the state superintendent of public instruction in removing them from office as members of the board of education of the town of Dunkirk, in the county of Chautauqua.</p>

Action by the people of the state of New York, on the relation of the Western Union Telegraph Company, against James A. Roberts, •comptroller, for a peremptory writ of mandamus. From an order granting the writ, defendant appeals.

' Action by the Xew York Security & Trust Company against the Saratoga Gas & Electric Light Company and others. From an order denying a motion for repayment of a certain sum of money by the receiver of the defendants, and from a part of the order made upon the receiver’s final accounting, plaintiff appeals.

Action by Maggie Pieb.1, as administratrix of the estate of John Piehl, deceased, against the Albany Railway. From, a nonsuit and a motion denying an order for new trial, plaintiff appeals. The action was to recover damages, under the statute, on account of the death of plaintiff’s intestate, caused, as alleged, by the negligence of the defendant. The defendant operated street railroads in the city of Albany by means of electrical -power.

Action by Alvin D. Wallace against the Syracuse, Binghamton & New York Railroad Company. From an order allowing plaintiff to examine officer’s of defendant before trial, the latter appealed.

Action by Franciska Prussak against John Hutton and others. From a judgment for plaintiff and an order denying a new trial, defendants appeal.

From an order setting aside a judgment against the plaintiff, tliedefendants appeal.

. Appeal from special term, Ulster county. Suit by the people of the state of New York against Johannes E. ■Snedecker and others to restrain them from acting as officers of the alleged village of Pine Hiíl, and to adjudge the proceedings for the incorporation of that village void. From a judgment for defendants, plaintiff appeals.

<p>Certiorari by the people, on the relation of the Niagara River Hydraulic Company, against James A. Roberts, as comptroller of the state, to review a decision assessing a franchise tax against relator.</p> <p>Certiorari to review the decision of the comptroller in assessing a tax against the relator on $125,000 of capital stock in the sum of $3,000, with a penalty of $300. The relator is a domestic corporation organized under chapter 110 of the Laws of 1832. This corporation was organized in said year with a total authorized capital stock of $150,000. The number of shares into which its capital stock was divided was 1,500. The par value of each is $100. The capital stock was issued in payment for a certain piece of real estate known as “Squaw Island,” situate in the Niagara river, which has ever since remained the property of the relator, and is the only property the corporation owns. The island consists of unimproved swamp land, unoccupied, except six or seven acres taken by the International Bridge Company, the compensation for which was $8,000. The island has been assessed by the city of Buffalo at the valuation of $123,000. Under its articles this corporation had the right to purchase and hold and lease real estate, and it held it during the period for which this tax under review was assessed. The company has maintained its organization, held this property, paid taxes upon it, and collected annually about $45 for the grass crop.</p>

Action by Jacob EL- Snyder against Benjamin W. Ash and Harriet M. Ash for the foreclosure of two mortgages. From so much of a judgment of foreclosure and sale entered upon the report of a referee as subjects the estate of Harriet M. Ash in the mortgaged premises to the lien of the mortgage, she appeals.

<p>Appeal from trial term, Albany county.</p> <p>Action by Charles J. Oaks against Nicholas B. Taylor. From a judgment of nonsuit, plaintiff appeals.</p> <p>Tiie action was to recover $20,000, and interest thereon, upon the following contract:</p> <p>“In consideration of the sum of twenty thousand dollars in U. S. currency, paid to me by Charles J. Oaks, I, N. B. Taylor, of the city of Albany, have sold, transferred, and delivered to the said Charles J. Oaks two hundred shares of the stock of the Taylor Brewing and Malting Company of Albany. The sale of this stock is subject to the following conditions and restrictions; that is to say: Should the said Charles J. Oaks, his heirs or executors, wish or desire me at any time to buy and take back the before-mentioned two hundred shares of the stock ■of the Taylor Brewing and Malting Company, I hereby promise and bind myself, my executors and administrators, to do so, paying the said Charles J. Oaks, his heirs or executors, therefor twenty thousand dollars in U. S. currency, together with legal interest. Should a dividend or dividends have been paid on the said stock, interest is to be computed and paid from date of last dividend to ■date of purchase by me of said stock.</p> <p>“Albany, N. Y., November 22, 1887. N. B. Taylor.”</p> <p>The defendant had a few days before delivered the certificates of stock to the plaintiff. The plaintiff paid him therefor upon the receipt of the above contract. July 1, 1891, the plaintiff having exercised his option that the defendant should “buy and take back” the stock, and pay him the $20,000 therefor, made demand of him to that effect. The defendant refused. After some subsequent correspondence and interviews upon the matter between the parties, and a formal tender by the plaintiff to the defendant of the certificates of stock, and demand of payment from him, and the defendant’s refusal, this action was commenced April 19, 1895. The answer, besides a general denial and other defenses, sets up the statute of limitations. The trial court held that the cause of action accrued upon the date of the contract, and therefore was barred by the six-years statute of limitations.</p>

Action by Catherine Fisher Wieland, as administratrix, etc., against the President, Managers & Company of the Delaware & Hudson Canal Company. From a judgment entered upon a non-suit, and an order denying a motion for a new trial, plaintiff appeals.

Action by thé Albany Brass & Iron Company against Charles Hoffman, Jr. E-tom an order of the Albany special term denying plaintiff’s motion to- send the case back to the referee for the trial of defendant’s counterclaim, plaintiff appeals.

Certiorari by the people, on the relation of Samuel J. Luckings, against the board of railroad commissioners of- the state of New York, and Ashley W. Cole and others, as railroad commissioners, to review the determination of the board denying the application of the relator for a reopening and rehearing of the petition of the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company, for approval of a change of motive power, in the operation of its line, from…

Action by Edmund Deyo against Foster B. Morss and others. From a judgment upon the decision of the court at a trial term dismissing the complaint upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and that the court has not jurisdiction of the subject of the action, plaintiff appeals.

Action by Eugene B. Burdick against Elizabeth L. Hicks for services rendered. From a judgment entered on the decision of a referee for plaintiff, defendant appeals.

<p>1. Sai,e— Breach op Warranty.</p> <p>In order to maintain an action for breach of an express warranty, the plaintiff must establish that the warranty was relied on.</p> <p>2. Same—Implied Warranty—Evidence.</p> <p>In an action based, in one aspect, upon a breach of an alleged implied warranty, in a contract by defendant to supply certain material known as “Vuleabeston,” it appeared that the existence of such warranty, if any, must be supported by some theory of a sale by sample; but it was established that the samples were shown merely to indicate quality (in which respect there had been no default), and not form, or fitness for an intended-use. Reid, that no implied warranty was made out.</p>

Action by Henry Karstens, as trustee, against Catherine Karstens and others, for construction of a will.

<p>Divorce—Alimony—Application to Reduce.</p> <p>• The plaintiff in an action for absolute divorce, having secured a decree, but being- unable to find the defendant within the state, from which he had absented himself, or any property from which to satisfy the award of alimony, brought the present action, and secured a decree directing the payment of such alimony from the income of a certain trust fund created for the defendant’s benefit. Upon the defendant’s appeal to the court of appeals, the decree was modified, so as to permit him to apply to the court for a share in the trust income. Thereafter; and while still refusing to submit to the jurisdiction of the court, he made such an application, based upon his unsupported affidavit as to his lack of any income. Boh7, that, in view of the permission given by the court of appeals, the application should not be absolutely denied, bu't should be sent to a referee for a trial, upon which the witnesses must appear, and submit to examination and cross-examination.</p>

<p>Motion—Rehearing—Failure to Comply with Terms.</p> <p>An order denying a motion contained leave to renew it upon payment by the moving party of certain alimony which lie was, in a prior action between the same parties, directed to pay, together with costs. Thereafter he moved, without showing compliance with these terms, for a rehearing of the motion. fieZíZ» that the motion for a rehearing was properly denied.</p>

<p>Action on Judgment—Complaint.</p> <p>In an action upon a judgment o£ a county court, a complaint alleging that, upon a specified date (though more than 10 years past), the plaintiff “recovered” the judgment, “which was duly given by the court,” without alleging that it was docketed more than 10 years before the commencement of the action, or that the court has made an order granting the plaintiff leave to sue, is, under Code Civ. Proc. § 1913, demurrable.</p>

Appeal by Charles H. Steinway and others, as executors of William Steinway, deceased, from an order of the surrogate’s court, requiring the appellants to render an account of the proceedings of the said William Steinway, as trustee of the estate of Balthasar Kreischer, deceased, which order also required the appellants to deposit certain bonds with the Farmers’ Loan & Trust Company, or show cause why said bonds should not be so deposited.

<p>Appeal from trial term, Niagara county.</p> <p>Action by Elizabeth Wilson against Mary Coulter and another. From a judgment for plaintiff, and an order denying a motion for new trial made on the minutes, defendants appeal.</p> <p>This action was begun March 17, 1896, to recover damages for alienating the affections of the plaintiff’s husband, and inducing him to desert her. At about 9 o’clock in the evening of Friday, September 14, 1894, the plaintiff, then Elizabeth Richardson, spinster, aged 43 years, and William A. Wilson, bachelor, aged 44 years, intermarried at the town of Cambria, N. Y. The plaintiff then lived with two brothers and two sisters, farmers, and resided within about 20 reds of the house in which William A. Wilson then resided, who was a farmer owning 100 acres of land, 40 acres of which were subject to a life lease of his mother. The defendants are sisters of William A. Wilson, and are widows, owning small farms in the vicinity, which he had worked for them for a few years previous to the marriage. The marriage was solemnized by a clergyman of the town, and there is no question as to its regularity. On the evening of the marriage a party was given by Mary Coulter, one of the defendants, to which William A. Wilson and Miss Elizabeth Richardson were invited; but, instead of attending the party, they went to the residence of the clergyman, and were married, and returned to the home of the bride. They retired between 11 and 12 o’clock, and occupied the same room. At about half past 5 the next morning they arose, and William A. Wilson left to do the chores at the house where he resided, and never returned. The marriage was preceded by a courtship of about six months. The bride bore an unblemished reputation, and, though William A. Wilson was sworn, the only reason he gave for his conduct was that she insisted on being married on that occasion, against his protest, and that after the marriage she asked him to convey to her his farm. This she denied. On leaving the house, Mr. Wilson returned to his dwelling, where one of the defendants, his sister Margaret Brockway, resided. He told her that he was married, and she .upbraided him' with much severity for his conduct. On the same day (Saturday) the other defendant, Mary Coulter, his sister, came to the house, and she also talked severely to him about his conduct; and during the conversation he told his sisters, as they testified, that he would not live with his wife, but should go away. The evidence of William A. Wilson was taken on a deposition, and it appeared that they became engaged in the spring of 1894, and had frequently talked of their approaching marriage. The clergyman who performed the ceremony, and his daughter, who was present, testified that William A. Wilson was not reluctant to enter into the marriage relation, but seemed willing and cheerful, and “they acted similar to other brides and grooms.” He remained concealed in the houses of his sisters,—part of the time of the house of one of them, and part of the time at the house of the other, on Saturday and Sunday; and on Bionday, September 17th, he went with Mrs. Coulter to Loekport, where he conveyed his farm to the defendants. After the execution and delivery of the deed, which was afterwards recorded, Mrs. Coulter accompanied Mr. Wilson to Buffalo, and gave him $75, which she had borrowed on the day previous, for the purpose of enabling him to go into a Western state. Mrs. Coulter testified that she saw her brother purchase a ticket for Duluth, and that he left on the train, since which he has not returned to this state. On Sunday afternoon, at about 3 o’clock, the plaintiff went to the residence of Margaret Brockway, for the purpose of finding her husband. She there found both defendants, and an altercation occurred, and the plaintiff was not allowed to enter the house. At this time her husband was upstairs, in a bed- . room. The plaintiff testified that one of the defendants rang a bell, and the other pounded on tin pans and blew a tin horn, which was kept up, as the plaintiff testified, until she returned to her home, and that this was kept up every night for a week. " The defendants testified that they did not ring bells, pound pans, or blow tin horns, but admitted that some one did. . Other conduct on the part of the defendants was testified to by the plaintiff, and corroborated to some extent by other witnesses, which was quite uncivilized in its character. For many months the plaintiff was unable to learn of the whereabouts of her husband. August 10, 1895, she began an action against her husband for separation on the ground of desertion, and April 1, 1896, a judgment of separation was entered. Under this judgment the plaintiff has been unable to recover anything from the estate of her husband. His farm, which was conveyed to the defendants, has ever since been occupied by them. The plaintiff testified that previous to their separation Mr. Wilson had always been kind and affectionate towards her, and that his sisters had never exhibited ill feeling towards her until after the marriage. The jury rendered a verdict for $1,750 damages, and from the judgment entered thereon, and from an order denying a motion for a new trial made on the minutes, the defendants appeal.</p>

<p>Appeal from special term, Onondaga county.</p> <p>Action by the American Trust & Savings Bank against Gates Thal•'heimer. From an order bringing in the sheriff and two parties claiming the fund in controversy as co-defendants, plaintiff appeals.</p>

<p>1. Conversion—Taking under a Usurious Mortgage.</p> <p>Retention of goods taken under a chattel mortgage securing notes void for usury is a conversion for which all parties engaged in the taking are liable, whether or not they had knowledge of the usury.</p> <p>2. Same—Demand.</p> <p>A demand need not he made for the return of goods taken under a chattel mortgage securing notes void for usury before bringing an action for conversion. ■</p>

In the matter of the application of the directors of the American Lace & Fancy Paper Works. From an order denying a motion of Walter E. Watts, a creditor of the corporation, for direction to the receiver to pay a sum claimed to be due to him for wages as an employé of the corporation, he appeals.

Action by Caroline J. Brown against Andrew L. Harmon. In the trial term a trial was had resulting in a verdict for the plaintiff in the sum of $604.02. The defendant’s exceptions and his motion for a new trial were ordered heard, in this court, and in the meantime judgment suspended. Exceptions sustained, and motion granted.

<p>Appeal from trial term.</p> <p>Action by the people of the state of New York against Myron H. Braested for violating the agricultural law. From a judgment in favor of defendant, and from an order denying a new trial, the people appeal.</p>

Action by Stephen O. Darrow against Stephen C. Cornell and others. Defendants filed an answer and cross petition for specific performance. There was a dismissal of the complaint, and a decree for defendants, and plaintiff appealed.

Action by Tyndale Palmer against George E. Matthews and another. There was a verdict giving plaintiff nominal damages, and from a judgment thereon, and from an order denying a motion for a new trial, he appealed.

Action by Philip D. Armour and others against Daniel Gaffey and' another. From a judgment for plaintiffs, defendants appeal. The defendants, from the 1st day of January, 1892, to the 1st day of June, 1895, sold meats for the plaintiffs on commission; at Cohoes, Saratoga Springs,, and Glens Falls, in the state of New York.

Action by John H. Markell against Samuel K. Nester. From an order substituting Nellie E. Chamberlain, administratrix, on plaintiff’s death, and also substituting attorneys for plaintiff, defendant appeals.

Action by Benjamin L. Conde against the city of Schenectady and Harry A. Bennington, as treasurer of said city, to vacate an assessment. There was a judgment for plaintiff, and defendants appeal. The action was brought to vacate and set aside an assessment upon the plaintiff’s lot for the paving of a street in the city of Schenectady, and to enjoin the defendants from collecting said assessment.

<p>1. Services Rendered a Decedent—Excessive Judgment.</p> <p>Plaintiff and her husband rented part of decedent’s house, and from January 1, 1893, to June 1, 1896, she took care of the rooms occupied by him and his grown-up son. At first, plaintiff’s services were quite slight and voluntary, the son taking care of the rooms mainly the first year, and to-some extent afterwards; and the washing was done, to a considerable extent, by others. She was ill much of the time until April 1, 1895, when none of the disagreeable part of the work was done by her, or in her behalf, and The most onerous part thereof was performed after April 1, 1895. Decedent was in good health until within a month of his death, and in his last illness was cared for mainly by others. Plaintiff was not employed as a nurse, nor was her whole time given to decedent’s care. Held, that a judgment for $1,072 was excessive.</p> <p>2. Services—Quantum Meruit—Evidence.</p> <p>In an action to recover for personal services rendered a decedent, evidence of the value of a house and lot which decedent verbally agreed that plaintiff should have in payment therefor is incompetent to establish what her services were worth.</p>

Action by Lucy E. Bierstadt against Charles Bierstadt for divorce. From an order of the Erie special term directing the payment of alimony and counsel fees, defendant appeals.

Action by Frank H. Short against Aaron B. Scutt. From a judgment for plaintiff in the justice court, which was affirmed in the county court, the defendant appeals.

<p>Certiorari by the people of the state of New York, on the relation of' the A. N. Kellogg newspaper company, against James A. Roberts, as-comptroller of the state of New York, to review the determination of" the comptroller in refusing to revise, set aside, or reduce his assessment of the capital stock employed by the relator in this state, and the taxes fixed and computed by him thereon for the 14 years ending-November 1, 1895, aggregating $1,126.25.</p> <p>The relator is a foreign corporation organized under the laws of the state of Illinois, and has an authorized paid-up capital of $200,000. Its home office and principal place of business is in Chicago, 111. Its business consists of printing at Chicago, and furnishing from there to the publishers of newspapers in about 2,000 different places in the United States, one side of their respective newspapers, in which side the relator inserts in about 70 inches of its space the advertisements of its own customers, the pay for which belongs -to the relator; the-respective local publishers having no interest therein. Such local publishers print the other side of their respective sheets, inserting therein what they please, and issue the same to their customers. The relator furnishes such “patent insides” or “outsides,” so called, from Chicago, to about 30 newspaper publishers in the state of New York. No part of the relator’s business is done in the state of New York except the soliciting and seeming of advertising patronage for such “patent” part of the newspapers, or of some specified number of them, and what is incidental' to making and collecting upon such contracts. The relator has an office in the city of New York, with a manager and five clerks, for the purpose of securing advertising patronage. There it received orders, forwarded them to the-home office in Chicago, collected the payments therefor, and deposited the collections in a New York bank to the credit of the home office, which alone drew checks or drafts upon the same. The expenses of the New York office, including-rent and salaries, were paid by checks drawn at Chicago and sent to the New York manager. The average oí the monthly balances of deposits made in New York for the 14 years was $3,941.32; annual expenses of the New York office, including rent and salaries, $12,741.21; value of office furniture, $700. The comptroller fixed the capital of the relator employed within this state for 12 years ending November 1, 1893, at $8,000, tax, $720; for 1894, $16,606, tax, $177.08; for 1895, $16,667, tax, $229.17. The tax was adjusted according to the dividends paid. Action of the comptroller was reversed.</p>

<p>Street Railroads—Ejection of Passenger—Transfer Ticket.</p>

Action by Edward A. Hodges against Stephen H. Bicharás. From a judgment of nonsuit, plaintiff appeals. The action was for malicious prosecution, in that the defendant had in a former action in this court sued the plaintiff, charging him with receiving moneys as agent of the plaintiff in a fiduciary capacity, and converting them to his own use, and in causing the defendant to be arrested upon a warrant issued in said action for the same cause.

<p>1. Wills—Dower Rights.</p> <p>A testator has no authority over the dower right oí his wife, and, as such right is favored in law, it will be upheld unless the widow is compelled, by express words, to make her election, as required by the statute, or unless the will may not be executed in its integrity without importing into it an implication to that effect.</p> <p>2. Same—Devise in Lieu of Dower.</p> <p>A testator by his will provided that “I hereby give, devise, and bequeath all the rest, residue, and remainder of my estate, both real and personal, to my son, Luke, and my daughter, Emma, and my wife, share and share alike, * * * I hereby declare * * * that all the said devisees shall respectively hold *the said premises * * * to themselves, respectively, and to their respective heirs and assigns, forever, absolutely.” Held, that the provision for the wife was not intended to be in lieu of dower.</p>

Action by James Crampton against Theodore A. Foster and another, as executors of the will of Alva C. Crampton, deceased. Upon a counterclaim defendants had judgment, from which, and from an order denying a new trial, plaintiff appealed. This action was brought to recover a legacy of $1,000, bequeathed by the will of Alva C. Crampton to the plaintiff.

Appeal by John O. Bowre and another from an order of the Delaware county court setting aside as against an execution in favor of the respondents, John C. Heiber and others, an execution issued in-favor of the appellants upon a judgment purporting to have been entered in favor of the appellants upon confession before a justice of the peace of said county, against Frederick E. Peckham, and docketed in said county upon a transcript thereof issued by said justice.

Action by Moses Eliassof and others against Lewis F. Eckler, as ■assignee, and Glidden A. Dewandelaer, impleaded. There was a judgment for plaintiffs, and defendant Eckler appeals.

<p>¿Railroads—Stepping in Front op Moving Engine—Contributory Negligence.</p> <p>The unexplained act of one who, after stepping aside from an approaching engine, which had slowed up for him to avoid it, immediately stepped directly in front of it as it moved off again, and was killed, shows contributory negligence, precluding recovery for decedent’s death.</p>

Action by Edgar T. Brackett against Minnie C. Graves and others for interpleader, and to enjoin the prosecution of a pending suit until final hearing on plaintiff’s petition. An order restraining defendant Graves was made, and defendants appealed therefrom. The appellant Minnie 0.

Theron Kloek and others appealed from the action of the sewer commissioners of the village of Oneida in making an apportionment and assessment of the expenses of constructing a sewer in said village. The county court affirmed the action of the commissioners, and appellants again appealed. It appears that a sewer was constructed in the village of Oneida pursuant to chapter 375 of the Laws of 1889, and the acts amendatory thereof, and chapter 414 of the Laws of 1897.

Action by Daniel D. Smith against Alfred A. Hewlett and Ella E. Craig. This action was brought to procure a judgment annulling and setting* aside an agreement between the parties dated July 17, 1896, which assumed to terminate a prior trust agreement, and adjudging said trust to be still active, and for other equitable relief. The action was commenced about the 1st of January, 1897. The issues joined in the action came on for trial before a justice of the supreme court.

Action by John D. Merkle against James F. Beidleman and others. From a judgment in favor of plaintiff, defendants appeal. In March, 1885, the defendants and appellants, James F. Beidleman and Maria, his wife, executed and delivered a bond and mortgage for the sum of $700 to Eliza Beidleman, the aunt of James F. Beidleman. In July, 1895, Eliza Beidleman assigned such bond and mortgage to the plaintiff, John D. Merkle.

<p>Insurance—Change of Beneficiaries.</p> <p>The constitution of a fraternal beneficiary association provided to whom payments should be made upon the death of a member, and also made provision for a designation of a beneficiary by the member, but there was no provision of any method for revoking a designation. After a certain member had designated Ms son as a beneficiary, tbe association issued a certificate of membership to the member, leavnfg the beneficiary’s name blank, and the member filled it in with his wife’s name. Held, that as, under Laws 1892, c. 690, § 238, the insured had a right to change the beneficiary at will, upon the consent of the association, “in the manner and form prescribed by its by-laws,” the effect of omitting such provision was to leave the beneficiary free to revoke as he saw fit, but that, even if a consent were necessary, it might be implied from the issuance of the blank certificate, and so his writing in his wife’s name was a valid revocation of the former designation.</p>

Action by Maud Cruikskank against William J. Cruikskank. From an order of tke special term modifying an order, tkeretofore entered, requiring tke service of a bill of particulars, plaintiff appeals.

Action by Charles Deutermann and others against Alexander Pollock and another. From an order correcting a finding of fact by the justice making such finding, plaintiffs appeal.

Action by Wendel Diel against the Henry Zeltner Brewing Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Action by Charles Umla against John B. Bennett. From a judgment of the county court affirming a judgment of a justice in favor of plaintiff, defendant appeals.

<p>1. Carriers—Injury to Passenger—Negligence—Question for Jury.</p> <p>In an action to recover damages for personal injuries suffered by plaintiff in consequence of the defendant’s alleged negligence, it appeared that while the plaintiff was riding as a passenger in an open trolley car of the defendant. in the evening, a flashing or flaming shot out of the motor box or controller, from 2 to G feet high, enveloping the motorman, and continuing while the car proceeded for some 100 feet. The plaintiff was so much alarmed that she leaped from the car, and received the injuries complained of. There was evidence on helialf of the defendant that the apparatus was a standard appliance, but the flaming on this occasion was of a very unusual character; and it appeared that dirt in the controller was likely to cause such results, that the car in question had not been inspected that day, and that after the accident the controller was found to he dirty. Held, that the facts required the submission to the jury of the question of defendant's negligence.</p> <p>2. Same—Contributory Negligence.</p> <p>Held, further, that the fact that other passengers remained in the car could not operate to conclusively establish contributory negligence on plaintiff’s part in jumping.</p>

Action by Joshua G. Sanders against Emilie Biedinger and others. From a judgment in favor of defendants, and from an order denying a motion for a new trial, plaintiff appeals.

Action by Cornelius S. Brandow against Jesse O. Vroman, William W. Zelie, and others. From an order (50 N. T. Supp. 323) denying a motion to set aside an order to serve the summons by publication, defendants William W. Zelie and others appeal. The action is to foreclose a mortgage executed by Jesse O. Vroman to the plaintiff. Prior to its commencement, the defendant Daley had been appointed receiver of Vroman’s property, and Vroman himself had absconded.

Action by Patrick Morrissey against the Westchester Electric Bailway Company. From an order granting a new trial, and setting aside a verdict for plaintiff for $500 damages, defendant appeals.

<p>Appeal from special term.</p> <p>Action by Glens Falls Insurance Company against Edwin B. Temple and Luther R. Temple; There was a judgment for defendants, and plaintiff appeals.</p>

Action by the Edward C. Jones Company against the board of education of the city of Mt. Vernon. From a judgment on the report •of a referee in favor of defendant, plaintiff appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action Tby Fay E. Tibbits against Edward L’Estrange Phipps and others. From a judgment in favor of plaintiff, entered on the report of a referee, Phipps appeals.</p>

Action by Hugh McAleer against Joseph F. Sinnott, individually, and as sole surviving partner of the firm of Moore & Sinnott. From an order of the supreme court directing a reference of all the issues in the action, defendant appeals.

Action by Jensine Bruen, as administratrix of the estate of Edward Bruen, deceased, against Frederick Uhlmann, as receiver of the Brooklyn Elevated Railroad Company. From a judgment for-defendant dismissing the complaint, at close of plaintiff’s evidence,, plaintiff appeals.

<p>Appeal Bond—Liability.</p> <p>Upon an appeal by a defendant from a justice’s judgment for $25, the appellant gave an undertaking in the sum of $100, under Code Civ. Proc. § 3050, which, instead of binding the surety as thereby required, to pay any judgment rendered against the appellant in the county court, specifically restricted his liability to the payment of the amount of the judgment appealed from, with interest. In the county court the plaintiff recovered a judgment for $138.57. Held, in an action on the undertaking to recover the full penalty of $100, that the liability of the surety was restricted to the amount of the original judgment, with interest.</p>

<p>Contracts of’ Employment—Evidence of Discharge.</p> <p>A letter by an employer notifying bis employe, who had been engaged to-perform certain specified duties in New York City, that he would no longer be kept in that employment, but that he could sell goods in another state, on a new contract, shows a discharge.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by Jacob Levy against Mark Harris for criminal conversation. Prom a judgment dismissing the complaint, he appeals.</p>

Action by James W. Elwell and another against Charles T. Bus-sell. An order of arrest against defendant was granted, and, from an order vacating such order, plaintiffs appeal.

Action by George H. Jacobs against the Northwestern Life Assurance Company. There was a judgment for plaintiff, and from the judgment, and an order denying a motion for a new trial, defendant appeals.

Action by Albert W. Van Siclen against Louis Herbst. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

<p>1. Corporations—’Subscription to Capital Stock.</p> <p>Where parties agree together to form a corporation and become shareholders therein, and such parties intend to become such shareholders, without further act on their part, upon the incorporation of the company, and the agreement remains open and is unrevoked, and the corporation is formed in pursuance of it, and thereafter acts upon it by accepting the same, such agreement is valid and binding as a subscription tó the capital stock of such corporation.</p> <p>2. Same—Validity.</p> <p>In order to bind a subscriber in such a case, it is not required that he should sign the certificate of incorporation. Business Corporation Law, § 2, subd. 9.</p> <p>'3. Same—Partial Payment.</p> <p>Nor is the payment of 10 per cent, when the agreement is made essential to its validity; such payment being required only of those who .subscribe after the corporation is organized. Stock Corporation Law, § 41.</p> <p>4. Same—Organization—Change in Name.</p> <p>Nor does the fact that it proves necessary to organize the corporation under a name different from that proposed in the agreement affect the subscriber’s liability, where there is no change in the proposed object, nor in any matter of substance.</p>

<p>Appeal from Westchester county court.</p> <p>Action by the Yonkers Gazette Company against Henry B. Jones. From a judgment in favor of plaintiff on a verdict directed by the jury, and from an order denying a new trial, defendant appeals.</p>

Action by David C. Porter against Julia S. Thom, impleaded with another. Verdict for plaintiff, and, from judgment entered thereon, defendant Julia S. Thom appeals.

Action by Glens Falls Paper-Mill Company against Spencer Trask and others, as reorganization committee of the New York Times Publishing Company, to compel payment of book accounts. From a judgment entered upon the decision of a referee dismissing the complaint, plaintiff appeals.

<p>■ 1. Mechanic’s Lien—Waives.</p> <p>The right to a mechanic’s lien is not waived by an agreement that the owner shall give other security for payment, unless such other security is actually given as agreed.</p> <p>2. Same—Action to Enforce.</p> <p>In such a case, under Laws 1885, c. 342, an action to foreclose the mechanic’s lien could be maintained after a breach of the agreement to give other security, although the lien had been filed before the breach occurred.</p>

Action by Annie Kauh against the Deutscher Verein. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.

■ Appeal from trial term, Kings county. Action by Philip Sullivan against Richard Goodwin, Henry G. Goodwin, and others. From a judgment against the defendants Goodwin, they appeal.

.Action by Mary E. Tompkins against Byron E. Hazen. Verdict for the plaintiff, and from a judgment entered thereon the defendant appeals.

<p>1. Action—Misjoinder op Causes.</p> <p>In an action brought by a trust mortgagee against the mortgagor, and certain persons for whose security the mortgage had been given, and a third party, the complaint alleged the trust, and the receipt by plaintiff of the amount secured, and claimed a lien upon the balance that should remain after paying the specified precedent claims, and sought a judgment fixing the amount of these primary claims, and adjudging his lien, subject thereto. After the action was at issue, and a settlement had been reached by separate agreements with each defendant, plaintiff was permitted to serve a supplemental complaint setting up several claims in his favor against the respective parties who had the prior claims, for services rendered by him to them, respectively, and asked that such amounts might be set off against what he was bound to pay them under the agreements, and that he might have judgment for the remainder. 3eld, upon demurrer on the ground of misjoinder of causes of action, that in view of the restricted nature of his original demand, and the fact that his new claims, not constituting liens nor connected with the trust, were against the respective defendants separately, there was no common point of litigation, and no connected interest, and so the demurrer was properly interposed.</p> <p>3'. Pleading—Supplemental Complaint—Demurrer.</p> <p>A supplemental complaint which is merely additional to the original complaint is not a substitute therefor, but both stand as one pleading; and, if the later pleading introduces causes of action not proper to be joined, the two pleadings may be demurred to together on that ground.</p> <p>3. Same.</p> <p>In such a case a demurrer “to the amended supplemental complaint” is to be taken as a demurrer to the original and the supplemental complaint.</p> <p>4. Parties—Joinder as Defendants.</p> <p>To permit the joining of several defendants where a money judgment only is asked for, it is necessary, under Code Civ. Proc. § 484, that each defendant should have an interest either in the subject of the action, or in a fund out of which the money judgment must, as a result of the action, be derived.</p> <p>Ingraham; J., dissenting.</p>

Action by J. Edward Simmons, as receiver of the American Loan & Trust Company, against Charles 0. Thompson. From a judgment for defendant, and an order denying a new trial, plaintiff appeals.

' Appeal from special term, New York county. Action by the Petrolia Manufacturing Company against Maross Jenkins and the Coal Oil Johnny Soap Company. From a judgment for plaintiff, defendants appeal. The action is brought upon a written contract, executed March 28, 189G, between the defendant Maross Jenkins and the plaintiff’s assignors, James R. Pitcher and Aubrey H. Martin.

Action by James W. Wadsworth, individually and as trustee Under-the last will and testament of James Wadsworth, deceased, against Charles James Murray and others, to construe the will of James Wadsworth. Will construed, and plaintiff and certain defendantsappeal. This action was instituted to obtain a construction of the will of James Wadsworth, who died in 1844, and for the final settlement of the accounts of certain trastees appointed by the said will.

Actions by Mary E. Veerhoff, executrix of Ernest H. Veerhoff, deceased, against Mary E. Miller and others. From orders denying a motion for appointment of receiver of the rents of . the premises on foreclosure of mortgage, plaintiff appeals.

In the matter of the judicial settlement of the account of John A. Stewart and others, trustees of John B. Trevor, deceased. From a decree approving the account, the special guardian of the minor appeals.

<p>Appeal from special term, New York county.</p> <p>In the matter of Charles H. Meyer and others, certain creditors appeal from an order denying inspection of books in hands of assignee.</p>

<p>Divobce—Alimony.</p> <p>Where, in an action for absolute divorce, it appears that the husband’s income is based entirely upon personal services rendered by him, which are - liable to he reduced or entirely taken away by conditions beyond his control, an allowance of one-third of his income for the support of the wife and child may well he excessive; especially where the income in question is a gross income, from which considerable deductions must he made for necessary expenses incident to earning the income.</p>

Action by Charles R. Howard against the city of Brooklyn. From a judgment on a verdict, and from an order denying a new trial, defendant appeals.

<p>Action on Note—Presumption oe Ownership—Rebuttal.</p> <p>The presumption of legal ownership which is raised by the possession of a promissory note indorsed in blank may be rebutted.</p>

Action by George W. Savage, administrator, against the Third Avenue Railroad Company. From a judgment entered on a verdict, and from an order denying a new trial, defendant appeals.

Action by Philip Sternbach against' Yette Friedman and others. From an order staying plaintiff’s proceeding pending the determination of defendants’ appeal, and giving an undertaking for costs of appeal, plaintiff appeals.

Action by Horace Salisbury and others against the county of Washington. Verdict for plaintiffs, and from an order setting it aside, and granting a new trial (48 N. Y. Supp. 122), plaintiffs appeal.

<p>1. Stipulation—Enforcement—Estoppel.</p> <p>After a judgment of foreclosure and sale of real property had been.entered upon the defendant’s default, the attorneys for the plaintiffs therein entered into an agreement, drawn up by themselves, with one L., who was recited therein to be the attorney for the defendant, and who signed it as such, by which, among other tilings, they agreed, in consideration of a. certain guaranty by L., that “we will open the default cf the defendant, and vacate and set aside said judgment, and discontinue said action.” Meld, upon a motion thereafter made by the defendant for an order vacating and setting aside the judgment, that plaintiffs’ attorneys were estopped from questioning the authority of D., or the right of the defendant, on whose behalf the agreement was made, to move for its enforcement.</p> <p>2. Same—Effect.</p> <p>Meld, further, that the plaintiffs’ attorneys, in signing the stipulation to discontinue the action and vacate the judgment, did in fact thereby effectuate such a result, and that all subsequent proceedings on their part ■ under the pretended authority of the judgment were without warrant of law, and in violation of the defendant’s rights.</p>

Action by Sarah McGuire against the Brooklyn Heights Railroad Company. From a judgment entered on a verdict for $6,000, and from an order denying a new trial, defendant appeals.

<p>Opening Default—Conditions.</p> <p>In an action for malicious prosecution, damages were assessed, upon the defendant’s default, for $10,000, the full amount demanded. A motion by defendant to open the default, and for leave to answer, was granted upon payment of costs and filing a bond for the payment of any damage that might be recovered. Eeld, on appeal by the defendant, that as the amount that would be recovered, if anything, was entirely uncertain, the requirement of the bond was not justified, and that the relief sought should be, granted upon payment of costs, the judgment already entered to stand as security.</p>

<p>Appeal from special term.</p> <p>Action by Katherine Mayer against Charles F. Mayer. From an order directing service of bill of particulars, defendant appeals.</p>

Action by Mary Linehen against the Western Electric Company. From a judgment on a verdict, and from an order denying a motion for a new trial, defendant appeals.

<p>Striking Case from Term Calendar.</p> <p>Where a case is 'stricken from the special term calendar because triable by a jury, the court should not have provided for a further application as to the mode of trial, but should order it tried at the trial term.</p>

<p>Stockholders’ Liability—Enforcement—Receivers as Parties.</p> <p>In an action brought in 1896 by a creditor of a banking corporation to enforce the stockholders’ liability, under Laws 1892, c. 689, § 52, a motion for leave to bring in, as parties defendant, permanent receivers subsequently appointed, was opposed on the ground that Laws 1897, c. 441, amending section 52 so as to require such an action to be brought by the receivers, was retroactive. Eeld, that the question thus raised should be left to be determined upon the trial, and that the motion should be granted.</p>

<p>1. Credibility of Witness.</p> <p>Where a witness undertakes, 10 years after an occurrence, to give the result of conversations which were not reduced to writing, it affords no necessary ground for attack upon his honesty that he is not able to give them correctly, or that' his testimony in that regard is overthrown by the testimony of the other party to them.</p> <p>3. Witness—Use of Memorandum.</p> <p>In an action brought by ■ an attorney to recover for services, part of which were rendered to the defendant’s husband, but upon her alleged retainer, the plaintiff’s register, from which he made up a memorandum to refresh his recollection on the stand, and which was neither offered by him in evidence nor referred to, but was offered in evidence by defendant, showed that plaintiff, when preparing his memorandum, had inserted in the register an entry stating that the retainer was by the defendant. Held that, under those - circumstances, this could not be treated as a fabrication of testimony, or as necessarily discrediting the plaintiff’s testimony on other points.</p>

<p>Action by Stockholder—Intervention.</p> <p>In an action against a mining corporation and its directors, by one of its stockholders, to restrain a sale of its lands to a certain third person, without putting them up at auction, the third person, who had merely made an offer for the land, and deposited the purchase price, but had not yet acquired any enforceable right to a consummation of the sale, moved for leave to intervene. Held, that he was neither a necessary party, under Code Civ. Proc. § 452, nor a proper party, under section 447.</p>

Action by John A. Schaffer, as administrator, against the Baker Transfer Company. From a judgment in favor of plaintiff for $6,000, and from an order denying a new trial, defendant appeals.

Application by the people of the state of New York, on the relation of William H. Quinn, for a peremptory writ of mandamus against .Thomas L. Feitnor and others, constituting the board of taxes and .assessments of the city of New York, to compel them to submit to the comptroller of the city of New York a proper pay roll, certifying that relator is entitled to be paid a certain sum for his salary for the .month of January, 1898.

<p>Appeal from special term, New York county.</p> <p>Action by Robert Emmet Dunham against John A. Deraismes and others. From a judgment on a decision' of the special term (50 N. Y. Supp. 742), defendants appeal.</p>

<p>Appeal from special term.</p> <p>Action by William H. Terhunq against Thomas J. Dunn, sheriff. From an order of substitution, plaintiff appeals.</p> <p>This is an appeal from an order substituting the indemnitors of the sheriff in his place as defendants herein, under section 1421 of the Code of Civil. Procedure. On or about January 3, 1898, two executions were issued against the property of Alfred Ebenstein in favor of Louis Levy,—one for the sum of $1,027.29, and the other for $1,527.50. The sheriff levied, under and by virtue of said executions, upon certain property, some of which was after-wards claimed by the plaintiff herein; and this action in replevin to recover possession of some of said property so levied upon was commenced. This-defendant demanded a bond as against said claim, and said action and 'all damages for the taking of said property,.and costs, counsel fees, and expenses; that thereafter such bond was given in the sum of $2,000, with Sanders B. Altmayer and C. W. Levy as sureties thereon. A copy of said bond was-served upon the attorney for the claimant (the plaintiff in this action), with notice of justification thereof, and' said bond was duly approved by one of the justices of this court, and filed with the clerk of said court. This action was brought to recover possession of some of the property so levied upon and claimed as aforesaid, and the value of said property is stated, to be $400. Thereafter a motion was made to substitute the indemnitors, Sanders B. Altmayer and O. W. Levy, as defendants herein; and an order was entered substituting said indemnitors. It is from the order substituting said indemnitorsthat this appeal is taken.</p>

<p>Action by Tilomas M. Calladme against the city of Niagara Falls and others.</p>

<p>Action by Catherine Carrigan against Michael Carrigan and others.</p>

<p>In the matter of the application of the Brooklyn City Railroad Company for the appointment of commissioners to determine the necessity for the construction of tracks on Johnson street.</p>

Action by S. Caroline Costello against John H. Costello. From an order directing defendant to serve bill of particulars he appeals. Modified. J. Delahunty, for appellant. M. Schaap, for respondent.

Action by Arthur M. Eastland against Mary H. Clarke. Motion by the plaintiff for a new trial, on exceptions taken by him upon a nonsuit directed at the Monroe trial term, held in June, 1897, and ordered to be heard in the first instance at the appellate division. The action was commenced in March, 1896, to recover damages for injury to the plaintiff, an employs of the defendant, caused by falling into an unguarded hole in defendant’s cellar. Henry M. Hill, for plaintiff.

<p>Action by Thomas Clancy against the Guaranty Construction Company.</p>

<p>Action by Terrence F. Ferguson against Julius F. Bruckman, Mary Bruckman, his wife, impleaded.</p>

<p>Action by Julia Hanrahan against the Brooklyn Elevated Railroad' Company.</p>

<p>Action by George Hyland against the New Yerk Central & Hudson River Railroad Company.</p>

<p>Action by Leila 0. Henriques and another against the Miriam Osborn Memorial Home Association, impleaded.</p>

<p>Action by Katherine Hoff against Robert R. Hefford.</p>

<p>Action by Jacob Hoffman against the Solvay Process Company. E. J. Page and Louis L. Waters, for appellant. P. J. Ryan, for respondent.</p>

<p>Action by Henry H. Lyman, as state commissioner of excise of the state of New York, against George C. Corey.</p>

<p>Appeal from special term. Action by Charles B. Keen and another against Charles A. Johnson. From an order striking ease from special term calendar, plaintiffs appeal. Affirmed. R. B. Moffatt, for appellants. E. T. Paul, for respondent.</p>

<p>Action by Felix MeOloskey against the New York & New Jersey Bridge Company.</p>

<p>Action by Robert J. Magill . against North Dakota Millers’ Association. Frank Harding, for appellant. Thomas R. Stone, for respondent.</p>

<p>Action by Fred D. McNeil against Amos L. Rainbow. John P. Kell as, for appellant. J. B. Kline, for respondent.</p>

<p>Action by Arthur A. McLean against Dennis Ryan.</p>

<p>Action by Edwin W. Montgomery against the Buffalo Railway Company.</p>

<p>Action by Charles Murr against the Western Assurance Company of the City of Toronto, Canada.</p>

Action by Joel W. Russell, as assignee for the benefit of creditors of Isaac H. Quinby, against William H. Stuhlmiller. From an order of the supreme court (50 N. Y. Supp. 1133) granting plaintiff’s motion for a new trial, made on the minutes, defendant appeals. Affirmed. William C. Fitch, for appellant. Joel W. Russell, in pro. per.

<p>Action by Mary Rice, by guardian, against William Allen Butler.</p>

<p>Action by Elizabeth Roberts against the Nassau Electric Railroad Company.</p>

<p>Action by the Rochester & Charlotte Turnpike Road Company against Robert S. Paviour.</p>

In the matter of the examination of Eugene O. Sirret and Emile G. Sirret, judgment debtors, in proceedings supplementary to execution under the judgment in the action entitled: “Supreme Court, New York County. Augustus P. Rockwell against Eugene O. Sirret, William B. Sirret, and Emile G. Sirret.”

<p>In the matter of the accounting of Harriet Rutledge, as executrix of the will of Walter Heard, deceased.</p>