Volume 52 — New York Appellate Division Reports

Appeal by the defendant, The Buffalo, Rochester and Pittsburgh Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Monroe on the 7th day of April, 1899, upon the verdict of a jury for $6,000, and also from an order, bearing date the 7th day of April, 1899, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Bell Telephone Company of Buffalo, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 31st day of January, 1900, denying its motion to vacate an injunction pendente lite.

Appeal by the plaintiff, The Bell Telephone Company of Buffalo, from an .order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 30th day of January, 1900, denying the plaintiff’s motion for leave to serve a supplemental complaint.

'Motion by the plaintiff, Patrick G. Waldron, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate-Division in the first instance upon the verdict of a jury in favor of the defendant, rendered by direction of the court after a trial at the Erie Trial Term on the 19th day of January, 1899.

Appeal by The Grade Crossing Commissioners of the City of Buffalo and others from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on. the 15th day of September, 1899, confirming the report of commissioners of appraisal appointed under chapter 255 of the Laws of 1890 and the acts amendatory thereof.

Certiorari issued out of the Supreme Court and attested on the 12th day of March, 1900, directed to James H. Waring, as mayor of the city of Olean, and others, commanding them to certify and return to the office of the clerk of the county of Cattaraugus all and singular their proceedings had in refusing to remove or suspend the members of the board of water commissioners of said city for an alleged violation of an act of the Legislature, commonly known as the “ Labor Law.”…

Appeal by the defendant, Ellen B-. Partridge, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Seneca on the 5th day of June, 1899, upon the decision of the court, rendered after a trial at the Seneca Special Term, overruling her demurrer to the complaint.

Appeal by the plaintiff, The People of the State of Mew York, from a judgment of the County Court of Yates county in favor of the defendant, entered in the office of the clerk of the county of Yates on the 22d day of March, 1900, sustaining a demurrer interposed to an indictment charging the defendant with the crime of gambling and of being a common gambler.

Appeal by the plaintiff, Edward H. Kruger, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk, of the county of Erie on the 23d day- of J Une, 1899, upon the dismissal of the complaint upon the merits by direction of the court at the Erie Trial Term, and also from an order, entered in said clerk’s office on the l-3th day of May, 1899, denying -the plaintiff’s motion to discontinue the action. Í

Appeal by the defendant, The City of Rochester, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Monroe on the 2d day of October-, 1899, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 12th day of October, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Elizabeth J. Chapman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 27th. day of December, 1899, upon the decision of the court rendered after a trial at the Monroe Trial Term before the court without a jury. This case has been twice tried. Upon the first trial a judgment was obtained against William P. Chapman and Elizabeth J..

Appeal by the plaintiffs, David H. Morgan and another, from a judgment of the Supreme,Court in favor of the plaintiffs, entered in the office of the clerk of the county of Oneida on the 17th day of August, 1899, upon the verdict -of a jury for .$1,440.61 rendered by direction of the court, and-also from an order entered in said clerk’s office on the 16th day of August, 1899, denying the plaintiffs’ motion for a new trial made upon the minutes. .

Appeal by the defendant, Clayton ¡M. Daniels, from a final judgment of the Supreme Court in favor of the plaintiffs, entered in the-office of the clerk of the county of Erie on the 6th day of January,. 1900, upon the decision of the court rendered after a trial at the.Erie Trial Term before the court without a jury. .

Appeal by the defendant, the Lehigh Valley Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 5th day of October, 1899, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 5th day bf October, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Joseph Tate, as receiver of the Round Island Park, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 26th day of October, 1899, upon the dismissal of the complaint by direction of the court after a trial at the Jefferson Trial Term.

Appeal by the defendant, The Town of Somerset; from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 15th day of Sep tember, 1899, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 8th day of September, 1899, denying the defendant’s motion for a new trial made upon a case containing exceptions.

Appeal by the defendant, the United States Radiator Company, ■from a judgment of the County Court of Chautauqua ¡ county in' favor of the plaintiff, entered in the office of the cleric of the county ■of Chautauqua on the 20th day of February, 1899, upon the verdict -of a jury for $1,500, and also from an order entered in said clerk’s -office on the 28th day of April, 1899, denying the defendant’s motion for a new trial made upon the minutes.

<p>jDeed in which a married woman joins with her husband — when the grantee obtains possession thereof from her by false representations, its subsequent delivery by the husband to the grantee will not discharge her dower — estoppel.</p> <p>A wife, joining with her husband in a deed of property owned by him, which was not to be delivered until his death and constituted part of a scheme, not carried out, by. which the husband was to dispose of his property and render the wife some equivalent for her dower interest, who surrenders possession of the deed to- the grantee on the faith of false representations made by him, will not be barred of her dower interest in the premises by a subsequent delivery . of the deed to the grantee by the husband without her consent. -</p> <p>‘Quaere, whether a.grantee,.who accepts and records a deed containing an exception from the premises conveyed thereby by an express reference therein to a deed made at the same time to a third person, is estopped from claiming the excepted premises described in such deed to the third person, although he has previously recorded a deed thereof to himself.</p>

<p>Appeal by the defendant, Jerome E. Yarnes, from a judgment of the County Court of Cayuga county in favor , of the plaintiff, entered in the office of the clerk of the county of Cayuga on the 20th day of December, 1899, affirming a final order of a justice of the peace of the city of Auburn, rendered on the 10th day of June, 1899, dispossessing the defendant, a tenant, in a summary proceeding, and awarding to Ann Kelly, the plaintiff, as landlord, the possession of the premises described in her petition.</p> <p>On the 1st day of April, 1898, the respondent executed and delivered to the appellant a written lease of the premises, which consist of a dwelling house and farm in the town of Owasco in said county. The lease provided that it was to continue “-for and during the term of one year, with the privilege of a longer term under like conditions from the 1st day of April, 1898, which term will end on the 1st day' of April, 1899, subject to the aforesaid privilege.” The appellant thereby agreed to pay therefor the annual rent of $112, to be paid as follows: “ $25 to be paid between the date of this lease and the 1st day of May, 1899,* and weekly from the 1st day of May, 1898, to June 1st, 1898, and the remainder to be paid in full by the 1st day of November, 1898.” The lease contained the following provision : ’ “ And' provided said party of the second part shall fail to pay said rent, or any part thereof, when it becomes due, it is agreed that said party of the first part may sue for the same, or re-enter said premises, or resort to any legal remedy.”</p> <p>The foregoing are the only provisions of the lease material to the questions presented on this appeal. The tenant continued in possession after the 1st day of April, 1899, and still retains possession, without having in any other manner manifested his election under the lease to hold the premises for a further term. The landlord made no objection to the tenant’s thus remaining in possession until the 17th day of May, 1899, when she served a written notice on the tenant requiring the latter to remove from the premises on or before the 27th day of May, 1899. The notice did not specify any ground for this action on the part of the landlord. Thereafter, and on the 1st day of June, 1899, the landlord petitioned the justice for a final order to remove the tenant, and stated in the petition that the premises were leased for one year from the 1st day of April, 1898, and that the term expired on the 1st day of April, 1899; that the tenant held over. and continued in possession after the expiration of the term, without the consent of the petitioner, and recited the giving of said notice. Thereupon the justice issued a precept reciting the substance of the petition ; that it had been shown that the tenant remained in possession after the expiration of his term without the permission of the landlord and after the service of said notice, and requiring the tenant to remove forthwith or show cause before the justice on the third day of June why possession of the property should not be delivered to the petitioner. On the return day of the precept the tenant interposed an answer containing a general denial and alleging that no sufficient notice had been served and demanding the dismissal of the proceedings, with costs. On the hearing the petitioner offered the lease in evidence and showed that twenty-five dollars was paid to apply on the rent before Hay 1, 1898, and was then permitted, under the tenant’s objection that the evidence was immaterial, to show that no further payment of rent was made. When the petitioner rested her case, the tenant moved for a dismissal of the petition on the ground that there was no evidence that the*tenant was holding over after the expiration of his lease, that the lease was fora term that had not yet expired and that a sufficient notice had not been served. This . motion was denied. The tenant then gave evidence tending to show that he had paid the rent in full by work, labor and services. The landlord thereafter gave evidence tending to show that the work, labor and services were not of the value charged and were, not authorized by her. At the close of the evidence the tenant renewed his motion for dismissal on the. same, grounds, and the motion was denied. The justice thereafter, and on the 10th day of June, 1899, made a- final order, awarding possession of the premises to the petitioner on the sole ground “ that said tenant remains in possession of the premises described in the .petition in this proceeding after the expiration of his term.”</p>

Appeal by the - defendant, The Security Insurance Company, of . New Haven, Connecticut, from a judgment of the Supreme- Court in favor of .the plaintiff, entered in the office of the clerk of the county of-Monroe on the 7th day of February, 1900, Upon the ver- - diet of a jury, and also from an order -entered- in said' clerk’s- office: On the 29th day of January, 1900, denying the defendant’s motion for a, new trial made upon the minutes.

<p>Appeal "by the Standard Oil Company of New York, the petitioner in the first-above entitled action, and by Sadie Craik, the petitioner in the third-above entitled action, from an order of the Supreme Court, made at the Erie Special Term and entered in • the office of the clerk of the county of Erie on the 24th day of October, 1899, denying their motions for leave to issue executions.</p> <p>The Atlas Refining Company recovered a judgment against Lester B. Smith in the Supreme Court, Erie county, on the 29th day of April, 1884, for $1,573.70. The judgment roll was filed and the judgment duly docketed on that day. No execution has been issued on this judgment, but.it was assigned to the petitioner, the Standard Oil Company, in June, 1892.</p> <p>George B. Urban, Jr.,, recovered a judgment against said Smith in the Supreme Court, Erie county, on the 19th day. of September, 1882, for $373.77; the judgment roll-was filed and judgment duly docketed in said clerk’s office on that day. An execution was duly issued on this judgment to the sheriff of Erie county on the 22d day of April, 1882, which execution was returned wholly unsatisfied, and the judgment was duly assigned to Sadie Craik, the petitioner, on the 6th day of May, 1893. A transcript of each of said judgments was duly filed and docketed in the clerk’s office of Suffolk county on the 1st day of July, 1899. The judgment debtor died intestate in the city of New York on the 23d' day of November, 1893, being then the owner, of certain real property, described in the petition, situate in Suffolk county, and leaving him surviving as his only herns at law a son and (laughter, Earl B. and Maude I. Smith. On the 2d day of December, 1893, Elmer S. Smith, the decedent’s brother, was duly appointed his administrator by the surrogate of New York county, and he is still acting as such. The administrator filed an account on September 13, 1898, showing that no assets remained in his hands applicable to the payment of these judgments. The real property described in the petition is in possession of said heirs, who are still the owners thereof subject to whatever claims the petitioners may have,, and the petitions show that the heirs are permitting the property to go to waste. The petitions show that petitioners were also about to apply to the surrogate of the county of New York for leave to issue executions on said judgments. The application to the Special Term was made on an order to show cause, which was duly served on said heirs at law. Earl B. Smith made default, hut Maude I. appeared and opposed the application on the sole ground that, more than ten years having elapsed since the recovery of the judgment, it has ceased to be a lien, and that no transcript having been filed in Suffolk county within ten years it never became a lien on the premises, and that there is no authority for enforcing it against the same. The motion was denied upon this ground.</p>

<p>Appeal by the defendants, William R. Wise, as trustee of Russell & Birkett, bankrupts, and another, from a judgment- of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tates on the. 2d day of Rovember, Í899, upon the decision of the court rendered after a trial at the Tates Special Term.</p>

<p>Appeal by the -Erie Railroad Company and others from so much ■of an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the •8th day of December, 1899, as confirms an award of $56,000 made to John N. Scatcherd and others by the commissioners of appraisal in the proceeding.</p>

Appeal by the defendant, Jesse G. Bowen, from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 6th day- of September, 1899, upon a decision of the court rendered after a trial at the Erie Special Term upon an appeal by.said defendant from- a judgment, in favor of the plaintiff rendered by the Municipal Court of Buffalo. , '

Appeal by the plaintiff, Ohristian J. Mahley, from a judgment of the Supreme Court in favor of the defendant, The German Bank of Buffalo, entered in the office of the clerk of the county of Erie on the 22d day of June, 1899, upon the decision of the court rendered . after a trial at the Erie Special Term, except from so much of said judgment as awarded judgment to the plaintiff against the defendant W. B. Wilson.

<p>Failure of the directors of a corporation to file an annual report — liability of one who became a director after January — allegation that the corporation was not a moneyed or railroad corporation — evidence of acceptance of the office of director.</p> <p>A director of a business corporation, elected April 3, 1896, who never resigned and made no attempt to protect himself from the liability imposed upon the directors of other than moneyed' or railroad corporations by section .30 of the Stock Corporation Law (Laws of 1892, chap. 638) by filing .the certificate and report permitted by. that section, is liable for a debt contracted by the corporation May 20, 1896, where it failed to file its annual report in January of that year. . '</p> <p>An allegation in the complaint in an action brought to enforce such liability, that the corporation was a domestic business corporation, considered in connection with section 2 of the General Corporation Law, which divides stock corpora- ■ tians into moneyed, transportation .or business corporations, is sufficient to show that the corporation was not á moneyed or a railroad corporation.</p> <p>An averment of the answer in such action that the defendant attended a meeting . of the board of directors on or about the 18th day of April, 1896, but that upon subsequently learning that, the representations made to induce him to attend such meeting were false he refused to further act as a director, is '¡¡rima fad& evidence that he served as a director after his election, and thereby accepted the office.</p>

<p>Appeal by the petitioner, the Guaranty Building Company, from -•an order and judgment of the Municipal Court of the city of Buffalo, -entered in the office of the clerk of said court on the 5th day of March, 1900, dismissing a petition in summary proceedings on the ground of want of jurisdiction.</p>

Appeal- by the defendant, Edward M. Knox, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 19th day of October, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of October, 1899, denying the defendant’s motion' for a new trial made upon the minutes.

Appeal by the relators, Fanny A. Bull and others, from a final order ,of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 22d day of December, 1899, dismissing a writ of certiorari theretofore issued, and confirming an assessment sought to be vacated.'

Appeal by the plaintiff, Abram W. House, from á judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oswego on the 18th day of December, 1899, upon the decision of the court, rendered after a trial at the Oswego Trial Term before the court without a jury, dismissing the complaint upon the merits. Judgment affirmed, with costs, on the opinion of Hiscock, J., delivered at Special Term. All concurred.

<p>Appeal by the defendant, The Democratic General Committee of Kings County, from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 28th day of April, 1900, and entered in the office of the clerk of the county of Kings, granting the relator’s motion for a peremptory writ of mandamus requiring the defendant to place upon the roll of its membership the name of the relator and to restore him to all the rights and privileges pertaining to the office of member in the Democratic general committee of Kings county.</p>

Appeal by the defendant, The City of New York, from a judgment of ■ the Supreme Court in favor of the plaintiff for $5,900, for penalties, entered in the office of the clerk of the county of Queens on the 6th day of December, 1899, upon the report of a referee, and ■ also from an order made at the Kings County Special Term, bearing date the'9th day of November, 1899, and entered in the office of the clerk of the county of Queens, confirming said report and granting an extra…

Appeal by- the defendant, Naomi Buncombe, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 29th day •of July, 1899, upon the report of a referee.

Appeal by Charles T. Oowenhoven from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Richmond on the 26th day of February, 1900, refusing to confirm the report of a referee, and directing John L. Dailey to pay the judgment of the claimant Joseph. B.-Lewis, except from so much of said order as directed the . payment of the surpllis or remainder to said Charles T. Oowenhoven.

Motion by the defendants, J. Kennedy Tod and another, for a new trial upon a ease .containing exceptions,, ordered to be heard at the Appellate Division in the first instance upon the verdict of. a jury in favor of the plaintiff, rendered after a trial at-the New York Trial Term.

Appeal by the defendant, Manuel A. Plaisantin, from a. judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 27th day of July., 1899, upon the.decision of the court rendered after a trial at-the Kings County Special Term.

Appeal by the defendant, Thomas M. Mayer, from so much of an order of the County Court of Putnam county, entered in the office of the clerk of the county of Putnam on the 2d day of January, 1900, as denied, his motion to set aside the decision and judgment in the action.

<p>Provision of an oral agreement, omitted from a subsequent written contract covering the same subject-matter — when it may be proved as an independent collateral contract.</p> <p>An oral building contract provided, in consideration cf a substantial reduction in the contract price, that the contractor should have the use of the owner’s dock for the landing of building material. A written contract subsequently-entered into embodied the provisions of the oral ageeement except the provision with reference to the contractor’s use of the dock.</p> <p>In an action brought by the contractor to recover a balance due under his contract, it was</p> <p>Held, that the contractor might prove the provisions of the verbal contract relative to the use of the dock, and the refusal of the owner to allow its use and the delay caused thereby, in answer to a counterclaim for liquidated damages interposed by the defendant because of the contractor’s failure to complete the buildings at the time specified in the written contract;</p> <p>That the agreement in reference to the use of the clock was an independent collateral contract. . ■ •</p>

Appeal by the defendant, Charles Lerner, tenant, from a final order of the Municipal Court of the city of New York, borough of Brooklyn, fourth district, rendered on the 11th day of April, 1900, awarding to the plaintiff, as landlord, the possession of certain premises situate in the borough of Brooklyn, Kings county, N. Y.

<p>Appeal by the-plaintiff, Rosa D. Hot-horn, from a judgment of the Supreme Court in favor of the defendants as resettled and entered in the office of .the clerk of the county of Kings on the 12th day of January, 1900, upon the decision of the court, rendered after a trial at the Kings County Special-Term, dismissing the complaint upon'the merits.</p>

<p>Appeal by Josiah J. White, as former administrator,' etc., of Eliza T. White, deceased, from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 11th day of October, 1899, denying his motion for an order vacating and setting aside a decree of said Surrogate’s Court, entered art April 25, 1898</p>

<p>Appeal by the defendant, the Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of November, 1899, upon the verdict of a jury for $3,500, and also from an. order entered in said clerk’s office on the 6th day of December, 1899, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Gilbert J. Angevine, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 23d day of Hay, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of June,1899, denying the defendant’s motion for a hew trial made upon the¡ minutes.</p>

<p>Appeal by The Board of Supervisors of Rockland County from an order of the County Court of the county of Rockland, entered in the office of the clerk of the county of Rockland on the 14th day of March, 1900, directing said board to refund certain taxes to the petitioner.</p>

<p>Substituted service of a summons— correction of an error in the plaintiff’s name — distinction in the case of the misnomer of a defendant.</p> <p>An error in the given name of the plaintiff in the copy of a summons annexed to an order for substituted, service may be corrected on motion; it does not require that the summons and the order for the substituted service thereof and such service be set aside.</p> <p>The reason for the distinction made between the correction of the name of the -' plaintiff and of the name of a defendant under such circumstances, considered.</p>

<p>Appeal by the defendant, John Kipp, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, fifth district, in favor of the plaintiff, rendered on the 6th day of March, 1900. ‘ -</p>

<p>Appeal by the plaintiff, Alexander W. Clapp, and by the defendants, Nelly V. B. Clapp and others, from a final judgment of the Supreme Court in favor of the defendant Catherine Hunter, entered in the office of the clerk of the coiinty of Westchester on the 1st day. of April, .1899, upon the report of -a referee,- with notice of an intention to bring up for review upon sucli appeal an interlocutory judgment entered in said clerk’s office on the 10th day of January, 1899. ''</p>

Appeal by the plaintiffs, Edwin R. Brinckerhoff and another, as executors and trustees of and under the last will and testament. of Michael W. Wall, deceased, and by the defendant, William F. Wall, from a judgment of the Supreme Court in favor of the defendants Marie C. Farias and another, entered in the office of the clerk of the county of Westchester on the 20th day of January^ 1899, upon the report of a referee, with notice of an intention to bring up for review upon such…

<p>Commissioners to appraise damages for a change of grade—jurisdiction to determine whether a claim was properly filed cannot he given by stipulation —jurisdiction of the person may — where the question may he raised.</p> <p>Commissioners appointed under, section 159 of the Village Law (Laws of 1897,. chap. 414) to determine the compensation to be paid to a person who has filed a claim for- damages to his premises resulting from a change of grade, have no-power to entertain a motion to dismiss the proceeding upon the ground- that the claimant failed to comply with a statute requiring that such claim be-filed within a specified time, nor can such jurisdiction be conferred, upon the commissioners by a stipulation entered into between the attorneys for the claimant and the village.</p> <p>Such question should be raised upon the motion for the appointment of the commissioners.</p> <p>The question of the commissioners’ lack of jurisdiction may be raised for the first time in the Appellate Division on an appeal thereto from an order confirming the commissioners’ report..</p> <p>Semble, that jurisdiction of the person, but not of the subject-matter, may be conferred by stipulation or consent, or by conduct tantamount thereto.</p>

<p>Injunction — not granted to restrain a village from passing, a resolution which is a nullity upon its face — what prospective trespass is too speculative tó sustain an injunction.</p> <p>A resolution of the trustees of a village, authorizing the construction of a railroad upon a private street within the corporate limits,- is ultra vires and a nullity upon its face, and, therefore, does not create a cloud upon the title of an owner of land abutting upon the private street, entitling her to maintain an action against the village to enjoin the passage of such resolution."</p> <p>The complaint in such an action will not be sustained solely ■ because it asks relief against a .prospective trespass by the railroad corporation, as the danger that the railroad company will attempt to trespass upon the plaintiff’s property is too speculative and too remote.</p>

<p>Appeal by the plaintiff, Annie McGuire, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered in the office of the clerk of said, court on the 19th day of April, 1900, upon the decision of the court rendered after atrial before the court without a jury dismiss^ ing the complaint.</p>

<p>■Damages for the wrongful discharge of a servant—proper charge as to his duty to-1; seek other employment.</p> <p>In an- action by an employee against his employer to recover damages for hi» wrongful discharge, in Which the employer introduces evidence 'tending, to show that the employee, after his discharge, declined other employment- and that he made no effort to secure employment ini the'line of work in which, he had been engaged, and the employee gives, no evidence limiting the effect, upon the amount of damages, óf his failure to perform his.duty in this respect,</p> <p>■ it is erro'f for the court to refuse to charge the jury that ' ‘ the plaintiff was under-obligation after his discharge to- use reasonable diligence to procure employment in the same or similar kind of work, and- if you should find the plaintiff' has not made such diligent effort, it will be your duty to find for the defendant upon the question of damages.” ■ ..</p>

Appeal by the relators, James McAniney and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of April, 1900, denying their motion for a mandamus and also from an order entered in said clerk’s office on the 30th day of April, 1900, denying their motion for a resettlement of said order, in -so far as it denied their application for an alternative writ.

Appeal by the plaintiffs, George W. Tice and another, from so much of a judgment of the Supreme Court, entered in the office of’ the clerk of the county of New York on the 9th day of April, Í900, upon the report of a referee, as adjudges that the plaintiffs’ complaint be dismissed upon the merits as against the defendants, The-People of the State of New York and others.

<p>Appeal by the defendant, Congregation Kol Israel Anshi Poland, from a judgment of the Supreme Court in favor of the plaintiff, ■entered, in the office of the clerk of the county of New York on the 6th day of. April, 1894, upon the decision of the court rendered .after a trial at the New York Special Term. •</p>

- Appeal by the defendant, Thomas Nevins, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of February, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the 5th day of March, 1893, directed to Bernard J. York and others, composing the board of police commissioners of the police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings in relation to the removal of the relator from the police force of said city.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the-plaintiff, entered in the office of the cleric of the county of New York on the 11th day of January, 1900, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 1st day of February, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, John E. Hoffman, from an interlocntory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of March, 1900, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s amended demurrer to the complaint.

<p>A “ decision” is essential where an appeal is taken from a surrogates decree.</p> <p>An appeal from a surrogate’s decree in a proceeding for the probate of a will cannot be heard, by the Appellate Division until the surrogate has filed the decision required by section 2545 of the Code of Civil Procedure.</p>

Appeal by Hugh Douglas, as executor, etc., of Mary E. Bird,, deceased, from so much of an order of the Surrogate’s Court of the-county of New York, entered in said Surrogate’s Court on the 9th day of April, 1900, as denies his application to open, vacate and set aside or modify a decree entered in said Surrogate’s Court on the-13th day of January, 1892, settling his accounts as such executer„.

Appeal by the defendants, Samuel S. Childs and another, from a. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of January, 1900, upon the verdict of a jury for $450, and also from an order entered in said clerk’s, office on the 16th day of January* 19.00, denying the defendants’ motion for a new trial made upon, the minutes. . .

' Appeal by the defendant, Rosa Wallenstein, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of October, 1899, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, John W. Ferguson, from, a 'judgment, of the Supreme Court in favor of the plaintiff, entered in the office-of the clerk of the county of New York on the 23d day of Februaiy, 1900, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 27th day of February, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Albert Herter, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the .clerk of the county of New York on the 29th day of December, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8tli day of January, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Louis Munzinger, fro'm a judgment of the Supreme Court in favor of • the defendants,' entered in the office of the clerk of the county of New York on the 27th day of April, 1899, upon the decision of the court rendered after a -trial at the New York Special Term. ,</p> <p>The action was commenced on the 20th day of November, 1897.</p>

Appeal by the defendent, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme: Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 23d day of January, 1900, upon the verdict of a jury rendered by direction of the court.

Appeal by the plaintiff, J. Seayer Page, from an order of the Supreme Court, ma.de at the New York Trial Term and entered in the office of the clerk of the county of New York on the 29th day of January, 1900, granting the defendant’s motion to set aside the verdict of a jury and for a new trial of the action.

<p>A trust “until all of my children shall have arrived at the age of twenty-one years’ — it is void where thes'e are five children.</p> <p>The will of a testator, who was survived by five minor'children, gave certain real and personal property to his executors in trust to hold the same “ until all of my children shall have arrived at the age of twenty-one years; and during the period of their said trust to receive the income, rents, issues and profits of said property, and to apply the net sum to the support and maintenance of my wife and children and the education of my children.”</p> <p>Held, that the provision suspended the -power of alienation of the realty and the absolute ownership of the personalty during five minorities and was v.ojd.</p>

Appeal by the defendant, The City of New York, from an interlocutory judgment of the Supreme. Court in favor of the plaintiff, entered-in the office of the, clerk of the county of New York on the 14th day of April, 1900, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the amended complaint.

<p> Temporary receiver of a corporation—-he may be authorized, to “finish and complete the outstanding, contracts” —:when not individually liable for material furnished to him for that purpose-. </p> <p>A temporary receiver appointed under section 2423 of the Code of Civil Procedure relating to proceedings for the 'voluntary dissolution of a corporation, and invested by section 1788 of that Code with power to preserve the property of the corporation and the proceeds of debts and demands collected, may, as auxiliary to such power, he authorized hy the court to “finish and complete the outstanding contracts of said company.”</p> <p>Such receiver is not individually liable for material purchased by him in order to complete contracts made by the corporation, where it appears that the .material was purchased upon the understanding that it was a liability of the receivership; that it was billed and charged to the receiver in his representative capacity, and that all payments therefor were made by checks signed by him as receiver.</p>

<p>Appeal by the defendant, George B. Rofkar, as assignee for the benefit of the creditors of Louis Waefelaer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of December, 1899, upon the decision of the court rendered after a trial at-the New York Special Term. .</p> <p>It appears from the opinion delivered upon the former appeal (12 App. Div. 476) that the assignment sought to be set aside in this action covered property located in the State of New York, and that the defendant Waefelaer was formerly a resident of the State of New York but removed therefrom after the execution of the assignment and has not since returned.</p>

Appeal by the defendant, William Dalton, commissioner of water supply of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of December, 1899, granting the relator’s motion for a peremptory writ of mandamus directing the reinstatement of the relator and the payment of back salary. This proceeding was instituted by a notice of motion dated June 28, 1899. •

Appeal by the plaintiff, Pauline Rhoades, from an order of the Supreme Court, made at the New.York Special Term and entered in the office of the clerk of the county of New York on the 17th day of April, 1900, denying her motion that the defendant Emma Schwartz Ruppert be directed to produce and deposit with the court a certain alleged deed for the inspection of the plaintiff.

<p>Appeal by the plaintiff, Katherine H. Smith and others, from a judgment of the Court of Common Pleas of the city and county of New York in favor of the defendant, entered in the office of the clerk of said court on the 30th day of December, 1893,- upon the report of. a referee dismissing the complaint upon the merits.</p>

<p>Appeal by the relator, Louisa Wagner, from an order of the Supreme Court, made at the. New York Special Term bearing date the 16th day of October, 1899, and entered in the office of the clerk of the county of New York, overruling her demurrer to the return of the respondent dismissing a writ of habeas corpus theretofore issued and remanding the relator to the custody of the respondent.</p>

Appeal by the defendant, Marie Celeste Stauffer Eastwick, sued as Marie Celeste Stauffer, from so much of a final judgment of the Supreme Court in favor of the plaintiffs and defendants George H. Tilden and others, entered in the office of the clerk of the county of New York on the 7th day of August, 1899, upon the report of a referee, as confirms those portions of the report of the referee, mentioned in said judgment, to which said defendant duly filed exceptions ; and from…

Appeal by the plaintiff, Alfred D. Bailey, as ancillary administrator, etc., of Parthenia Elizabeth Gordon, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 14th day of February, 1900, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury.

<p>Contract of sale — time at which the ability to gire a good title is to be determined.</p> <p>A lease which expired December 31, 1898, provided that, at any time before the expiration of the lease, the lessee; “having first satisfied itself that the party of the first part can convey to it a good and valid title in fee to the said premises free and clear of all encumbrances, may purchase ” the same for á specified sum, and that “on March 31, 1889, * * * the said purchase price shall be paid as aforesaid, and a deed which shall vest the title to the said premises in fee simple in the party of the second part shall be executed and delivered to it, conveying the said premises to the party of the second part free of all encumbrances, except taxes which may become .a lien thereon subsequent to January 1,1899,” and that if the lessee should not exercise its right to purchase the premises “it shall, upon the expiration of this lease, on December 31, 1898, pay to the party of the first part, as additional rental, the sum of five thousand dollars. * * * If, however, the party of the first part should be unable to convey to the party of the second part a good and sufficient title in feesimple to the said premises, free of. all encumbrances, and the party of the second part should not be able to exercise the said option on that account, then the party of the second part shall not be obliged to pay the said additional sum of five thousand dollars.”</p> <p>Held, that the lessor’s ability to convey a good and sufficient title in fee simple to the premises, free from all incumbrances, should be determined as of March 31, 1899, and not as of December 31, 1898;</p> <p>, That, therefore, an answer interposed by the lessee, in an action brought by the lessor, to recover the additional rental of §5,000, which alleged that the lessor was unable to convey such a title on or at any time prior to December 31, 1898, was demurrable.</p>

Appeal by the plaintiffs, Cordelia D. Chanvet and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 3d day of April, 1899, upon the decision of' the court rendered after a trial at the New York Trial Term before the court without a jury.

Appeal by the plaintiff, Henry 0. Ewing, as receiver of the Cardiff Coal and Iron Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of- the county of New York on 14th day of February, 1900, upon the report of a referee.

Appeal by the plaintiffs, John M. Jones and others, as executors of and trustees under the last will and testament of Morgan Jones deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of April, 1900, directing them to accept the answer of the defendant George H. Brooke.

Appeal by the defendant, Samuel W. McDonald, individually and as executor, etc., of Catherine A. McDonald, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New .York on the 23d day of March, 1900, upon the decision of the court rendered after a trial at the Yew York Special Term over- ' ruling his demurrers to the complaint.

Appeal by the defendant, Benjamin J. Hall, from a judgment of the Supreme Court in favor of the plaintiff,- entered in the office of the clerk of the county of New York on the 23d day of November, 1899, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 20th day of November, 1899, denying the defendant’s motion for a new trial made upon the minutes.

<p>Trial by a.jury of issues in an equity case —not ordered in Yfeio York city unless-essential to justice — question of domicile.</p> <p>■In view of the congested Condition of the calendars in New York city, a motion; for a jury trial of issues of fact arising in an equity action will not be granted, unless • it appears that such a trial is essential to the proper administration of" justice." ’</p> <p>An issue-as to the domicile of a testator, depending upon the legal inferences- ■ to be -drawn from undisputed facts, it was considered/ should not be, sent to, a. jury. " .</p>

<p>ulud fmh 'joi'j/syj.'.ii!'! Appeal by the defendant, Melchior Diepen^r^ck^fro^m ^ judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of J _ | llJIK "10 (IllOmoa'ioTlIi: May, 1899, upon an order entered in said clerk’s'office on, the, 10th ’ 1 . imiv 7<i Tioyjo.:. cd p"j day of May, 1899, overruling the said defendants answer as frivoJ ■' ’ ’ & ,n;in jut': pMurnsrionmi pus and granting the plaintiff judgment, .with notice of,’an intention & r J pt .lAj’il'ii.Tinii iuic: om pnom'-Tuti to bring the said order up for review tippn such appeal. ° .</p>

Motion by the defendant, John L. Shea, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiff rendered by direction of the court.

Appeal by the defendant, Meyer L. Sire, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 4th day of January,, ■ 1900, upon the verdict of a jury rendered by direction of the court..

Appeal by the plaintiff, Josephine Eager, and by the defendants, Edward Leonhard and others, from an order of the Supreme Court, made at the New York Special Term and entered, in the office of the clerk of the county of New York on the 16th day of • day of April, 1900, staying the execution of a judgment.

<p>Appeal by the defendant, the Press Publishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th •day of January, 1900, upon the verdict of a jury for $600, and also from an order entered in said clerk’s office on the 10th day of January, 1900, denying the defendant’s motion for a new trial made; upon the minutes. . ,</p>

<p>Metra allowance—granted only after all issues heme been decided — notice must be given to all parties on both sides ■—• a subsequent waiver of notice is insufficient.</p> <p>An extra allowance cannot be granted on the final determination of demurrers interposed by some of the defendants, while the issues raised by the answer of another defendant remain undetermined; such an allowance cannot be made until the final judgment can be entered.</p> <p>Where a motion for an extra allowance is made upon the ground that the case, was “difficult and extraordinary,” in which event the allowance to all the parties on one side cannot exceed $3,000 (Code Civ. Proc. § 3354), the moving party must notify all the parties on his side in addition to notifying the opposing party.</p> <p>The moving party’s failure to serve such notice of motion, on one of the parties on his side, is not cured by the subsequent filing, upon a motion for the resettlement of the order for the extra allowance, of a waiver, of service of notice of motion executed by the attorney for such party.</p>

<p>Payment of money out of court — notice required of an application therefor — the attorney personally charged with its restoration — rule 69 is inapplicable to money . deposited in a partition suit.</p> <p>The practice of directing the payment of money out of court, without notice to ' all persons interested in the disposition of the money, and to all who have appeared in the action in which the money was deposited, and without taking proof before á cóvirt or referee of the facts upon which the application is based, condemned. - - . •</p> <p>Circumstances considered under which an attorney, who procures the payment to a client out of court of a greater sum than that to which the client is entitled, may be personally charged with the restoration of the overpayment.</p> <p>Rule 69 of the General Rules of Practice,' providing that orders for the payment of money out of court shall he made payable to the party entitled thereto or to his attorney, has no application where the express provisions of the Code of Civil Procedure require that the judgment, as in an action of partition, snail, direct payment directly to the party.</p>

■Appeal by the plaintiff, Flint, Eddy .& Co., from'a judgment 'of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of February, 1900, as amended by an order entered in said clerk’s office on the 2d day of Harch, 1900, upon the dismissal of the complaint at the close of the plaintiff’s case by direction of the court after a trial before the court and a jury.

<p>Appeal by the plaintiffs, Edwin S. Neal and another, from an ■order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of April, 1900, granting a commission, with a stay of proceedings until the return of the same.</p>

Appeal by the defendant, the New York and Commercial Steam Laundry Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of November, 1899, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Marketable title — the purchase of land by a trustee or by a donee of a power in trust in respect thereto is voidable.</p> <p>A will provided, “ I leave my house, 48 Market St., City of New York, to my. Neice Margaret T. Mulvey, during her natural life, with the privalage of selling the same at her option, with the concent of my executors. And from the proceeds of sale my executors will give. Magge T. Mulvey Three Thousand Dollars. And to my Neice Bridget Mulvey Two Thousand Dollars. The ballance to be divided in Three Equal parts amongt's the following named parties.”</p> <p>After the death of a sister of the testator, to whose life interest the interest of Margaret T. Mulvey was made subject, the latter notified the executors of her election to sell the property. ■ The property was sold at public auction and was bid in by Margaret T. Mulvey, to whom the executors executed a deed of conveyance, although she had not been authorized by the court to purchase at the' sale. ., "</p> <p>Meld, without deciding whether the will vested the power of sale in the executors, or in Margaret T. Mulvey subject to the consent of the executors, that Margaret T. Mulvey was either a trustee or a donee of a power in trust and that her purchase of the property was voidable;</p> <p>That, under the circumstances, the grantee of Margaret T. Mulvey did not have a marketable title and could not convey a good title to the premises.</p>

<p>Appeal by The New York Central and Hudson River Railroad Company from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th .day df April, 1900, granting the motion of the ■petitioner. The Mayor, Aldermen and Commonalty of the City of New York, for an order for the appointment of commissioners of estimate and assessment in respect to all the lands and parcels of land described in the petitition, except the parcel designated “ B ” in said ■ petition, except from the following part of said order: “ Ordered, that a hearing upon the issues raised, by the answer of the New York Central and Hudson River Railroad Company herein, be had before this court upon the 7 day of May, 1900, or upon such days as the same may be hereafter adjourned to, by consent or by order of this court, and that hereafter the city of New York or the New York Central and Hudson River Railroad Company, or George W. Murray, may make any motion in this proceeding, upon the usual notice, as they may be advised.”</p>

Appeal by the plaintiff, Edward P. Moran, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of March, 1900, directing him to receive the unverified answer of the defendant.

<p> Personal injury—proof of hystero epilepsy incompetent, where not pleaded and not the necessary result of the injury. </p> <p>Evidence that the plaintiff, in an action brought to recover damages for personal injuries, was suffering from hystero epilepsy, is not admissible under an allegation of the complaint that he received “a wound at the right upper angle of the forehead, also a fracture of the skull, concussion of the brain and a fracture of the nasal bone, all of which gave him severe bodily pain and shock to his physical and mental system,” where it appears that hystero epilepsy is not the necessary and immediate result of such injuries.</p>

<p>“ Public work” in the Labor Law — includes work done by a municipal corporation-as well as that done by its contractors. -</p> <p>The term ‘' public work,” used in section 3 of the Labor Law (Laws of 1897; chap. 415), as amended by chapter 567 of the Laws of 1899. providing that the wages-to be paid for a legal day’s work to all classes of laborers, workmen and mechanics upon all such public work shall not he less than the prevailing rate-paid in the same calling in the locality in which the work is performed, includes-work done by a municipal corporation itself as well as that done for a municipal corporation by a contractor; the amendment of 1899 effected no change in. the law in this respect.</p>

Appeal by the plaintiff, Annie A. Roberts, as administratrix, etc., of David H. Roberts, deceased, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 3d day of April, 1900, denying her motion to advance the cause and place the same upon the preferred cause calendar.

Appeal by the defendants, Agnes K. Hickey and another, as executrices, etc., of Patrick Y. Hickey, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of January, 1900, upon the decision of the court rendered after a trial at the New York Trial Term before the court without a jury.

<p>Undue influence — what must be shown to .establish it — larger bequests to daughters . than to sons.</p> <p>In order to set aside or prevent the probate of a will upon the ground of undue-influence, it must appear that the influence used'was such as to overpower the will of the testator, and subject it to the will and control of another; undue influence is not established by proof that a testatrix bequeathed more -property to her daughters than to her sons.</p>

<p>Appeal by the defendant, Eberhard Faber, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 15th day of March, 1900, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 28th day of March, 1900, denying the defendant’s motion for a new trial ■ made upon the minutes.</p> <p>Section 30 of the Stock Corporation Law (Laws of 1890, chap. 564), as amended by chapter-2 of the Laws of 1892, which went into effect January 14, 1892, requires that the annual report of a stock corporation shall be “ verified by the oath of the president or vice-president and treasurer or secretary.”</p>

<p>Judicial notice taken that Oanarsie is in New York city—an appeal allowed by the Appellate Term brings up the whole case — objection to jurisdiction, how waived . in the Municipal Oourt of New York city.</p> <p>The court will take judicial cognizance of the fact that Oanarsie is within the territorial limits of the present city of New York. '</p> <p>The Appellate Term of the Supreme Court has no power, when allowing an appeal from its determination to the Appellate Division, to certify what questions shall be raised on such appeal; the appeal brings up the whole case. In any event the respondent is not affected by a stipulation filed by the appellant to raise but one question before the Appellate Division.</p> <p>It-seems, that subdivision 3 of section 1382 of the Consolidation Act (Laws of 1882, chap. 410), providing that in an action in the District Court of the city of New York, the objection of lack of jurisdiction should be°deemed to be waived if not raised at the trial, was made applicable to the Municipal Court of the city of New York by section 1369 of the Greater New York charter (Laws of 1897, chap. 378), conforming the practice in the Municipal Court to that which prevailed in the District Courts of the city of New York.</p>

Motion by the defendant, G. Hilton Scribner, for a new trial upon, a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the verdict of a jury in favor of the plaintiff; rendered by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, The Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of January, 1900, upon the verdict of a jury for $500, and also from an order- entered in said clerk’s office on the 5th day of February, 1900, denying the defendant’s motion for a new trial made upon the minutes.

<p>Liability of a trustee— who consents that insurance money be paid to the owner of the mortgaged premises on his promising to malte repairs — who extends a mortgage without requiring its assumption — who delays its foreclosure until an invalid extension expires.</p> <p>A trustee, appointed under a will which directs him to invest the trust funds in bonds and mortgages on unincumbered improved real estate worth double the sum loaned thereon and relieves, him from liability for any loss to the estate unless such loss be caused by his personal gross neglect or willful misfeasance, who. upon the partial destruction by fire of a building upon which he holds a mortgage as trustee, permits the owner to receive the insurance (which, by the terms of the policies thereon, was payable to the trustee) upon such owner’s unsecured verbal promise to expend such insurance money in repairing the building, is chargeable with the loss resulting to the trust estate from the owner’s failure to perform his promise.</p> <p>The fact that the trustee entered into an agreement- for the extension of the mortgage with the mortgagor’s successor in title, without requiring the latter . to assume the mortgage, and that he did not attempt to foreclose the mortgage until after the expiration of the extension, although such extension was void' for want of consideration, does not render the trustee chargeable with a deficiency on foreclosure caused by the extension of the mortgage, where it appears that the question whether the extension was invalid was not free from doubt.</p>

Appeal by the defendant, Isidore Shweitzer, from an order of the Supreme Court, made at the New York -Special Term and entered in the office of the clerk of the county of New York on the 14th day of March, 1900, as resettled by an order entered in said clerk’s -office on the 20th day of March, 1900, substituting Walter E. Warner as plaintiff in the place of Ann Augusta Warner, deceased. ■ ■ • .

<p>Injury from the slipping of a hooh in a lug on the side of a pot — in, the absence of proof of the cause thereof '. the complaint should be dismissed.</p> <p>In an action to recover damages for personal injuries sustained by an employee of the defendant, while engaged in dumping acid from a pot, it appeared that the pot had been raised several feet by means of chains having a hook at each end placed in a lug upon either side of the pot; that as the plaintiff placed his hand upon the pot to swing it around, one of the hooks slipped and the pot dumped over, scalding him.</p> <p>It further appeared that about a week before the accident, during the plaintiff’s absence, a hook had slipped while a pot was being lifted, but there was no evidence that this fact bad been called to the defendant’s attention. There was no evidence showing what caused the hook to slip on either occasion, hut an expert testified that if the hook, after being placed in position, fell back, because of the slackness of the chain, so that it caught, not at the bottom of the hook, but some distance up toward the point, it was possible for it to slip, in consequence of its shape and character, without the equilibrium of the pot being disturbed. It did not appear, however, that this had actually happened, or that the hook was properly placed in the lug before the pot was' raised.</p> <p>Held, that the complaint was properly dismissed.</p> <p>Dumsey, J., dissented.</p>

Appeal by the defendant, Harold E. Lippincott, as executor and trustee under the last will and testament of Mabel Westerman,. deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of March, .1900, denying his motion for a resettlement of two orders entered in said clerk’s office on the 2d day of February, 1900,-which denied his motion for leave to appear in the action…

<p>■ Contract for the sale of goods hy an agent — when the title passes to the agent.</p> <p>The Vereinigte Pinse.-Fabriken agreed to sell all the goods manufactured by it for the United States through Sardy, Coles & Co., and to pay the latter a commission of three and one-half per cent on the invoice value of all sales in the United States not made from stock, -whether said sales should be made by Sardy, Coles & Co. or by the Vereinigte Pinsel-Fabriken, and that “ on all sales made by Sardy, Coles & Company in their own name from stock kept by said Vereinigte Pinsel-Fabriken in the United States for their account, the Vereinigte Pinsel-Fabriken agree that said Sardy, Coles & Company shall, in addition to' said three and one-half per cent commission, deduct five percent on the invoice price of such goods.-”</p> <p>Held,, that when Sardy, Coles & Co. sold,' in their own name, goods from stock kept by the Vereinigte Pinsel-Fabriken, in the United States, the title to such goods vested in Sardy, Ooles & Co. as purchasers thereof from the Yereinigte Pinsel-Fabriken;</p> <p>That, this construction found additional support in a provision of the contract that “itis understood and agreed that Messrs. Sardy, Coles & Company shall" not run any risk for goods sold, except for such as they may sell in their own' name,” and in the further fact that this was the practical interpretation given to the contract by the parties themselves.</p>

<p> Purchase of- a decedent’s real property by the wife of one of his executors. </p> <p>The wife of one of the executors named in a will, who, after the passage of the Married Woman’s Act, purchases real estate of which the testator died seized, at an executor’s auction sale thereof, and pays her bid out of her separate estate, acquires a marketable title to the property purchased, where the bona fides of the auction sale, and the fact that she was the highest bidder, are not impeached. . •</p>

Appeal by the defendant, Benjamin Robinson, from an order of the Supreme Court, made at the .New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of March, 1900, denying his motion to vacate a warrant of attachment.

Appeal by the defendant, Pratt & Lambert, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day-of February, 1900, upon the verdict of a jury rendered by direction, of the.court, and also from an order entered in said clerk’s office on the 28th day of February, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Clara Perry, the owner of the canal boat liobt. W. Parsons, from, an order of the Supreme Coui% made at the Erie Special Term and entered in the officé tif the clerk' of the county of Niagara on the 28th day of December, 1899, denying her motion'to . vacate' an attachment granted in the action and to set aside all proceedings. thereupon.

<p>Appeal by the defendants, H. Cassius Lewis and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 16th day of December, 1898, upon the verdict of a jury for -$450, and also from an order bearing date the 8th day of December, 1898, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes.</p> <p>This action was commenced August 31, 1897, for trespass in piling dirt upon the premises, of the plaintiff in the city of Syracuse. The alleged trespass was committed by the defendant Lewis, who was a contractor doing work under the authority and direction of, and according to the manner provided by the city of Syracuse.</p>

Appeal by the plaintiff, William J. Girvin, an infant, by Frank E. Wade, Ms guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 10th day of March, 1899, upon á dismissal of the complaint by direction of the court after a trial before the court and a jury, and also from an order entered in said, clerk’s office on the 3d day of April, 1899, denying the plaintiff’s motion for a…

Appeal by the plaintiff, Lottie Doll, as administratrix, etc., of Joseph Doll, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 20th day of September, 1899, upon a dismissal of the complaint.by direction of the court after a trial beforg the court and a jury, and also- from an order entered in said clerk’s ■office on the 20th day' of September, 1899, denying the plaintiff’s motion for a…

<p>Appeal by the defendants, Daniel Rosenbloom and others, composing the board of education of the city of Syracuse, from a judg- - ment of the Supreme Court in favor of the plaintiff, entered, in the office of the clerk of the county of Onondaga on the 29th day of ■ December, 1899, upon the report of a referee. . -</p> <p>Judgment affirmed, with costs, on opinion of the referee.</p> <p>All concurred, except Laughlin, J., who concurred in result.</p>

Appeal by the plaintiff, The People of the State of New York, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the' office of the clerk of the county of Oneida on the 11th day of .January, 1900, upon the decision of the -court, rendered after a trial at the Herkimer Special Term, sustaining the defendants’ demurrer to the complaint, with notice of an intention - tó bring up for review upon such appeal the order upon which said…

<p>Appeal by the defendants, Eva Orysler and Homer Weston, as administrators, etc., of. Morris A. Lindsley, deceased, from- an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the IIth day of November, 1899, upon the decision of the court rendered after a trial at the Madison Special Term.</p>

Appeal by The First National Bank of Albany, N. Y., judgment creditor, from an order of the Supreme Court, made at the Chemung Special Term and entered in the office of the clerk of the county of Delaware on the 27th day of April, 1900, vacating an order requiring Joseph H. Clark to appear before a referee and be examined concerning his property.

Appeal by the plaintiff, Abram Frederick, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the 27th day of February, 1900, upon the dismissal of the complaint at the close of the plaintiff’s case by direction of the court after a trial before the court and a jury at the Fulton Trial Term.

Appeal by the defendant, The Altamont Club, from a judgment of the Supreme Court in favor of the plaintiff and of the defendant Amos O. Hall, entered in the office of the clerk of the county of Hamilton on the 26th day of December, 1899, upon the report of a referee in an action brought for the foreclosure of a mortgage upon real estate. This action was commenced in January, 1899.

Interlocutory judgment affirmed, with costs. —Appeal from a judgment entered in the clerk’s office of Erie county on the 24th day of March, 1899, upon the decision of the court at a Special Term of the Supreme Court held in and for said county. The action was commenced on the 12th day of November, 1895, to foreclose a mortgage dated.

Ordered: That the motion be granted and. anneal dismissed, with costs, -including ten dollars costs of motion, unless the appellant. within ten days, pays the ten dollars costs of the motion and procures a written.stipulation from the respondents’ attorneys opening the defaults with reference to the case- and exceptions, or serves motion papers for an order opening such defaults for the earliesfc Special Term practicable, and thereafter proceeds with due diligence to have…

Plaintiffs’ exceptions sustained and motion for á new trial granted, with costs to the plaintiffs .to abide event.—On the trial of this action in the Supreme Court, county of Monroe, averdict was directed in favor of defendant of no cause of action, and the exceptions of the plaintiffs were ordered heard in the first insfcance at the Appellate Division, fourth department. The order was granted October 16, 1899.

Order reversed and a new trial ordered, with costs to the. defendants to abide the event. — Appeal by the defendants from an order entered in the clerk’s office of Monroe county March 7, 1899, denying their motion for a new trial made on the minutes of the court on all the grounds specified in section 999, Code of Civil Procedure.—

Judgment ana order denying motion for a new trial affirmed, with costs as to the defendant Mary A. Murphy, and reversed and a new trial f ranted, costs to abide the event, as to the efehdant John A. Murphy. Order permitting amendment of answer affirmed.—Appeal from a judgment of the Westchester Trial Term, dismissing the complaint, after a 'verdiet for the defendants, and from an order denying a motion to set aside the verdict and for a new trial.—

<p>Motion for reargument granted.—Motion for reargument.</p>

Judgment affirmed, with costs. — Appeal by the plaintiff from a judgment of the Supreme Court in favor of the defendant, which judgment was entered - in the office of the clerk of Kings county on the 29th day of December, 1899, after a trial at Special Term.—

Interlocutory judgment affirmed, with costs.— Appeal from an interlocutory judgment of the New York Special Term in favor of the defendant New ■ York Security and Trust Company, and also from an interlocutory judgment of the New York Special Term in favor of the defendant Louisville, Evansville and St. Louis Consolidated Railroad Company.—Transferred from the first department.—

Order reversed, with ten dollars: costs and disbursements, and motion granted, with ten dollars costs.—Appeal from an order denying a motion for a receiver.—

Order reversed, with ten dollars'costs and disbursements, and motion granted, with-ten dollars •costs.—Appeal from ‘an order denying a motion to serve a supplemental answer.—

<p>Motion for leave to go to the Court of Appeals granted.— Motion for leave to go to the Court of Appeals.— •</p>

<p>Judgment and order reversed, new trial ordered, costs-to appellant to abide event.— Appeal from a. judgment entered upon a verdict and from an order denying a new trial.—</p>

<p>Judgment modified so as to reduce judgment- as entered to $1,032,28, and as so reduced affirmed, without costs to either party.—Appeal from a judgment entered after a trial at Special Term.—</p>

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

Writ dismissed and proceedings affirmed, with costs. Certiorari to review the action of the respondent in dismissing the relator from his position in the department of public works upon charges prefered against him.—

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, —Appeal from an order denying a motion to vacate a warrant of attachment.—

— Order affirmed, with ten dollars costs and disbursements.—Appeal from an order denying a motion of the defendants to vacate an order for the examination of the defendant Tilley before trial.—

Judgment affirmed, with costs*—Appeal from a judgment entered upon a verdict of a jury and from an order denying a motion for a new trial.—

Judgment affirmed, with costs, on the opinion of the court below, with leave • to defendant to withdraw demurrer and answer over on payment of costs in this court and in the court below. Present—Van Brunt, P. J., O’Brien, Ingraham, McLaughlin and Hatch, JJ. The following is the opinion of the court below:

<p>Order reversed, with ten dollars costs and disbursements, and motion granted, without costs, upon the defendant’s-complying:¿with the provisions •of the order requiring him to either deposit 'the sum of $2,000 or file a bond in that sum. —Appeal from an order of the Monroe 'Special Term, entered in Wayne county March 31,1900, denying a motion for an order directing the county treasurer of Monroe county to pay over to the appellant certain moneys held by said treasurer subject to the order of the court.</p>

Judgment reversed and new trial ordered, with costs to the appellant to abide the event, • unless the defendant stipulates in accordanee with the requirements of the opinion in the case, in which event the judgment as thus modified is affirmed, without costs of this appeal to either party.— Appeal by the* plaintiff from a judgment of the Supreme-Court, entered in the clerk’s office of Erie county on the 16th day of October, 1899, decreeing a foreclosure and sale of the…