Volume 53 — New York Appellate Division Reports

Certiorari issued out of the Supreme Court and attested on the 12th day of September, 1899, directed to Thomas J. Van Alstyne, as mayor of the city of Albany, and others, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings in declaring void and of no effect a contract entered into on or about July 12, 1899, by the city of Albany, through its board of contract and apportionment, with the relator as a…

<p>Appeal by the plaintiff, Mariam Brown, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the ceunty of Clinton on the 13th day of December, 1899, upon the decision of the court, rendered after a trial at the Clinton Trial Term before the court without a jury, dismissing the complaint upon the merits.</p>

Appeal by the defendant, Charles L. Thompson, as executor, etc., of Charles E. Thompson, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 17th day of January, 1900, upon the report of a referee. The action was brought to recover the amount of a note, of which the following is a copy : “ $300.

<p>Appeal by the plaintiff, Mary Holroyd, from a judgment of the Supreme Court in favor of the defendant Thomas Sheridan, entered in the office of the clerk of the county of Saratoga on the 11th day of October, 1899, upon the dismissal of the complaint upon the merits as against the defendant Sheridan, by direction of the court after a trial before the court and a jury at the Saratoga Trial Term, and also from so much bf a judgment entered in said clerk’s office on the 12th day of October, 1899, as dismissed the complaint upon the merits as to said defendant.</p> <p>Upon December 18,1896, the defendant Sheridan was the owner of the hotel premises, Clifton House by name, in the village of Waterford, Saratoga county, a village of about 5,000 inhabitants. Connected with this house is a barn owned by defendant Sheridan, and both house and barn were at that time leased to the defendant Dwyer. The barn stood practically flush with the sidewalk and had large heavy doors which in opening and shutting swung over the sidewalk a little more than a third of its width. Upon the 18th day of December, 1896, these doors had been negligently left unfastened and swung out and struck the plaintiff, who was lawfully using the sidewalk, breaking her arm in two places. For this injury she has brought action against the defendant Sheridan for maintenance of a nuisance and against the defendant Dwyer for the same cause and negligence. She recovered a small judgment against Dwyer, which is not here in review. Her complaint against Sheridan was dismissed at.the trial upon the merits, and from the judgment entered upon this dismissal this appeal is taken.</p>

Appeal by The Fitchburg Railroad Company from a decision of the Board of Railroad Commissioners of the State of Hew York in favor of the Town Board of Schaghticoke, rendered on the 24tli day of August, 1899, abolishing the grade crossing at Melrose, Rensselaer county, and determining that public safety requires that said crossing be abolished, and that said east or main highway shall be carried beneath the railroad.

Appeal by the defendant, James 0. Martin, as captain of the Thirty-third Separate Company, Kational Guard, Kew York, from a final order of the Supreme Court, made at the Delaware Special Term and entered in the office of the clerk of the county of Delaware on the 22d day of January, 1900, directing the issuance of a peremptory writ of mandamus requiring him to reinstate the relator as armorer in the State armory at Walton, Kew York, and to pay him his salary from the 1st day…

Appeal by the defendant, John Thompson, as executor, etc., of Betsey Eldridge, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 23d day of November, 1899, upon the report of a referee appointed pursuant to the statute to determine a claim against an estate. Upon January 17, 1898, Betsey Eldridge died, leaving a last will and testament by which this defendant was appointed her executor.

Appeal by the defendant, William. T. Ford, from a judgment of the County Court of Saratoga county in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 28th day of December, 1899, affirming a judgment in favor of the plaintiff, rendered in the court of a justice of the peace on the verdict of a jury.

Appeal by the defendant, Peter B. Bradley, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, ■entered in the office of the clerk of the county of Chemung on the :b7th day of March, 1900, upon the decision of the court rendered ■after a trial at the Broome Special Term overruling the defendant’s demurrer to the complaint.

Appeal by the defendant, the Fidelity and Deposit Company of Maryland, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 9th day of January, 1900, upon the verdict of a jury for $700, the full penalty of a bond given upon an application for a liquor tax certificate, rendered by direction of the court, and also from an order entered in said clerk’s office on the 16th day of Jan- ' uary, 1900,…

Certiorari issued out of the Supreme Court and attested on the 13th day of November, 1899, directed to Curtis S. Cummings, mayor, and others, aldermen, the members of and composing the common council of the city of Gloversville, commanding them to certify and return to the office of the clerk of the county of Fulton all and singular their proceedings in assessing against the relator the sum of §3,225.22 for a local improvement, viz., the paving of a street in said city,…

Appeal by the defendants, The International Paper Company and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hamilton on the 27tli day of October, 1899, upon the decision of the court rendered after a trial at the Pulton Trial Term, before the court without a jury, adjudging that the plaintiff, Edwin R. Wallace, is seized in fee simple and is the owner of the undivided two-thirds of…

Appeal by A. Raymond Gibbs, the executor named in the last will and testament of Mary Iredale, deceased, from a decree of the Surrogate’s Court of the county of Delaware, entered in said Surrogate’s Court on the 6th day of July, 1896, denying the probate of an instrument purporting to be the last will and testament of Mary Iredale, deceased, on the ground that when it was executed the decedent was not of sound mind and was not competent to execute it.

Appeal by the plaintiff, Dennis 0. Leary, as administrator, etc., of Theresa Leary, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 19th day of March, 1900, upon a non-suit granted by the court at the close of the plaintiff’s case after a trial before the court and a jury at the Rensselaer Trial Term.

Certiorari issued out of the Supreme Court and attested on the 9th day of January, 1900, directed to the common council of the city of Kingston, commanding it to certify and return to the office of the clerk of the county of Ulster all and singular its proceedings in relation to the special assessment made against the real property of the relator on September 15, 1899.

Certiorari issued out of the Supreme Court and attested on the 10th day of February, 1900, directed to the Board of Railroad Commissioners of the State of New York and others, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in granting to the Lehigh and Lake Erie Railroad Company a certificate under section 59 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1895, chap. 545).

<p>Corpm’ate note, what is — liability of a directoi' for a failure to file an annual report—he cannot cosail himself of irregularities in his election — common-law proof that he was a stockholder—the statute requiring the filing of the oath of inspectors of election is directory — what does not constitute a resignation.</p> <p>A promissory note stating “ we promise to pay to the order of ourselves,” etc., signed, “HUDSON VALLEY KNITTING CO., “ F. A. Fales, Treas." and indorsed, “Hudson Valley Knitting Co., “F. A. Fales, Treas. “F. A. Fales, “K. B. Dowsley.”</p> <p>is the note of the corporation and not the individual note of Fales and Dowsley. Section 29 of the Stock Corporation Law (Laws of 1892, chap. 688), providing that the stock hook of a corporation “ shall be presumptive evidence of the facts therein so stated in favor of the plaintiff, in any action or proceeding against such corporation, or any of its officers, directors or stockholders,” does, not make the stock book the only competent evidence of such facts or preclude-the plaintiff, in an action brought against a director of a corporation which neglected to keep a stock hook, from showing, by common-law evidence, that, he was a stockholder and was thus qualified to act as director.</p> <p>Section 28 of the Stock Corporation Law, requiring the oath of the inspectors of election at a stockholders' meeting to be filed in the office of the clerk of the-county in which the election is held, is directory only, and a failure to comply therewith does not invalidate the election.</p> <p>A person elected a director of a corporation, who accepts the office and thereafter exercises the duties pertaining thereto, cannot avail himself of irregularities in his election as a defense to an action brought to charge him, as a director of the corporation, with liability for its failure to file an annual report.</p> <p>A statement made by a director of the corporation to the secretary and to the treasurer thereof, that if they were not satisfied with the manner in which the firm, of which he was a member, was selling goods manufactured by the corporation, they could remove the account, and that in that case he would havenoth’ng more to do with the management of the corporation — followed by a change by the corporation in its selling agent and the withdrawal by such director from further conference with the other directors in its management, although he subsequently signed an annual report of the company and thereafter made a certificate and individual report — cannot he construed as anything more than a threat to resign his office as director,</p>

Appeal by the defendant, Squire Clark, personally and as executor, etc., of Susan Conklin Clark, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 6th day of March,. 1897, upon the verdict of a jury, and also from an order bearing date the 11th day of January, 1897, and entered in said clerk’s office, denying the defendant’s motion for a nonsuit and for a new trial made upon the…

<p> Stay of a mortgage foreclosure, pending a litigation between two of the defendants as to their rights in the mortgaged premises—it is not justified by proof that thefoi'eelosure was begun at the instance of one of such defendants. </p> <p>The fact that the plaintiff in an action to foreclose a mortgage, although he purchased the mortgage with his own money, did so, and commenced the action to foreclose it, at the instance of one of the defendants therein, who was engaged in a litigation with one of his co-defendants in reference to their respective rights in the mortgaged premises, does not justify the granting of an order staying the proceedings in the foreclosure action until the determination of an appeal to the Court of Appeals from a judgment rendered in the action between such co-defendants.</p>

Appeal by the defendant, The First National Bank of Oooperstown, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Otsego on the 26th day of September, 1898, upon the verdict of a jury, and also from an order bearing date the 20th day of June, 1898, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes. The action was commenced June 21, 1895.

<p>Appeal by the defendants, Robert H. Ingersoll and another, from an amended judgment of the Sirpreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York nunc pro tunc as of the 7th day of January, 1898, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an intermediate order entered on the 1st day of October, 1891, overruling the defendants’ demurrer to the complaint, and also an order entered on the 17th day of April, 1894, denying the defendants’ motion to compel the plaintiff Ross to make and serve a supplemental complaint or an amended complaint.</p>

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 clerk of the county of New York on the 26th day of February, 1900, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 5th day of March, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the relator, Alexander McElwee, 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 10 th day of April, 1900, denying his motion for a peremptory writ of mandamus requiring the officers of the Produce Exchange Trust Company to exhibit to the relator its books of accounts, records and papers.

Appeal by the defendant, Joseph Kaplan, 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 15th day of November, 1899, denying his motion to vacate a writ of replevin theretofore issued in the action.

Appeal by the defendants, John Foley 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 6th day of July, 1899, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the proponents, Francis Halpin and others, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 29th day of December, 1899, refusing to admit to probate the alleged lost or destroyed will and codicil of Rachel Lenox Kennedy, deceased.

Appeal by the plaintiff, The Cooke & Cobb Company, from a . judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Mew York on the 21st day of December, 1899, upon the decision of the court rendered after a trial at the Mew York Special Term dismissing the complaint upon the merits.

Motion by the plaintiff, Sally Wertheim, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court after ■& trial before the court and a jury at the Hew York Trial Term.

Appeal by the defendant, John Oscar Erckens, 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 7th day of April, 1900, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

Appeal by Mathilda Addison and another from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 15th day of May, 1900, denying their motion to vacate an ex parte order entered in the office of the clerk of the county of Hew York on the 8th day of March, 1900, which granted the application of Mary Knapp Marshall for leave to bring suit for a deficiency arising upon the foreclosure of a…

Appeal by the defendants, Francis Robinson and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 1st day of December, 1899, upon the verdict of a jury for $2,750, and also from an order entered in said clerk’s office on the 1st day of December, 1899, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the plaintiffs, "William George Rawlinson and another, composing the firm of Pearsall & 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 6th day of April, 1900, denying their motion for an additional allowance of costs.</p>

■ Appeal by the defendant, The American Surety Company 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 24tli day of May, 1900, denying its motion to interplead Adolph Goldmark as a party defendant in its place and stead.

Appeal by the plaintiff, Robert Boyd, from a judgment of the Supreme Court in favor of the defendant, David Boyd, individually and as administrator, etc., of Samuel Boyd, deceased, entered in the office of the clerk of the county of ¡New York on the 2d day of May, 1899, upon the decision of the court rendered after a trial at the ¡New York Special Term dismissing the complaint upon the merits as to said defendant.

Appeal by the relator, Patrick O’Brien, 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 8th day of May, 1900, denying the relator’s motion for a writ of mandamus commanding John J. Scannell, as fire commissioner of the city of Nexv York, to reinstate the relator in the position of foreman in the fire department of the city of New York.

Appeal by Catherine E. Pierce, as general guardian of Charles Livingstone Jones, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 24th day of April, 1900, denying her application for leave to file objections to the account of John Von Glahn, as temporary administrator, etc., of Agnes Livingstone Jones, deceased, and to require the said temporary administrator to settle such account.

<p>Appeal by the plaintiff, Emanuel F. Wokal, as administrator, etc., of Johan Wokal, deceased, from an interlocutory judgment of the Supreme Court in favor of the defendant, Wincy Belsky, entered in the office of the clerk of the county of Mew York on the 19th day of March, 1900, upon an order made at the Mew York Special Term and entered in said clerk’s office on the 24th day of February, 1900, sustaining said defendant’s demurrer to the complaint.</p>

Appeal by the plaintiff, Philipp Schuell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 15th day of February, 1900, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits. This appeal was transferred from the second department to the first department.

<p>Appeal by the plaintiffs, Rosalind Harrison, an infant, by C. Godfrey Patterson, her guardian ad litem, 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 15th-day of December, 1899, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term dismissing the complaint.</p>

<p>Ceriiora/ri to review a tax assessment on property in the borough of Brooklyn — it •must be made returnable in the first judicial district — it cannot, in any event, be attacked collaterally — contempt.</p> <p>It seems, that a writ of certiorari, issued under section 251 of the Tax Law (Laws of 1896, chap. 908), to review the determination of the board of taxes and assessments in the city of New York upon an application made under sections 906 and 908 of the New York charter for the correction of an assessment levied by that board upon the property of a corporation in the boroughs of Queens and Brooklyn in that city, must be made returnable at a Special Term held in the first judicial district. It cannot properly be made returnable at a Special Term in the second judicial district.</p> <p>The fact that such a writ of certiorari was made returnable at a Special Term held in the wrong judicial district would not constitute a defense to a motion to have the officers to whom it was directed declared guilty of contempt for neglecting to file a return thereto, as such a writ would not be void and its validity could not be attacked collaterally.</p>

Motion by the plaintiff, George William Wallace, as executor, etc., of James Wallace, deceased, 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-Hew York Trial Term.

Appeal by Mary Lavery and others, infants, by Augustine R. McMahon, their special guardian, and the said special guardian as such, from the following, portions of a decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 12th day of March, 1900, settling the accounts of Henry McAleenan, as executor, etc., of Margaret Lavery, deceased. “I. Wherein the said surrogate modifies the referee’s report herein by *subcharging the account of…

Appeal by the plaintiff, E. & H. T. Anthony & Co., 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 15th day of March, 1900, vacating a warrant of attachment theretofore granted in the action, excepting that portion of said order which suspends its operation and stays proceedings thereunder until the hearing and determination of the above appeal.

<p>Appeal by the plaintiffs, Bridget Hoey and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of August, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.</p>

Appeal by the plaintiffs, Alma B. Lyons and others, by Wallace F. Lyons, their guardian ad litem and general guardian, from a judgment of the Supreme Court in favor of the defendants, George W. Weeks and Charles Ii.

Appeal by the defendant, Alva Van Dusen, from a judgment of the Court of General Sessions of the Peace in and for the city and county of Mew York in favor of the plaintiff, rendered on the loth day of October, 1897, convicting him of the crime of grand larceny in the second degree, and also from an order entered in the office of the clerk of said court on the 3d day of May, 1899, denying the defendant’s motion for a new trial made upon the ground of newly-discovered evidence.

Appeal by the defendants, James M. Gumming and others, 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 22d day of September, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, perpetually enjoining and restraining the defendants from interfering with the work, business or employment of the plaintiff association or any of its members, or from coercing…

Appeal by the plaintiff, Burr W. McIntosh, 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 9tli 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 New York Trial Term.

Appeal by the defendant, the Mutual Reserve Fund Life Association, 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 2d day of December, 1899, upon the report of a referee.

Motion by the defendant, John Powers, 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 by direction of' the court after a trial at the New York Trial Term.

<p>Appeal by the defendant, Sieur I. H. Ungureanu, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 11th day of June, 1900, denying the defendant’s motion to vacate an order of arrest theretofore granted in the action.</p>

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

Appeal by the plaintiff, The Consolidated Ice 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 the 8th day of June, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint.

Appeal by Euring & Geiger, the attorneys for the plaintiffs in the above-entitled action, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of October, 1899, granting the plaintiffs’ motion for a substitution of attorneys, and directing a referee to sell, appointed in the action, to deliver a deed upon payment by the plaintiffs of the referee’s costs and expenses and the sum…

Appeal by the defendant, Edward Eyre, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of December, 1899, upon the report of a referee.

Appeal by the defendant, Dietrich Grieme, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county óf Hew York on the 23d day of May, 1899, upon the verdict of a jury, for $2,500, and also from an order entered in said clerk’s office on the 22d day of May, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on tlie 21st day of July, 1899, directed to Thomas J. Brady, commissioner of buildings for the boroughs of Manhattan and The Bronx, commanding him to certify and return to the office of the clerk of the county of New York all his proceedings relating to the dismissal of the relator from his position as messenger in the department of buildings.

Appeal by the plaintiff, Charles A. Lagerman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 18th day of January, 1900, upon the dismissal of the complaint, by direction of the court, after a trial before the court and a jury at the New York Trial Term.

Appeal by the plaintiffs, Emanuel Steinhardt and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 23d day of February, 1900, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the New York Trial Term.

Appeal by the plaintiff, John E. Hollingsworth, from so much of an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 5th day of December, 1899, upon the decision of the court rendered after a trial at the New York Special Term, as overrules the plaintiff’s demurrer to paragraphs 4 and 7 of the defendant’s answer.

Appeal by the defendants, Julius Kastner and another, from an order of the Supreme Court, made at the New York Special Term-arid entered in the office of the clerk of the county of New York on the 23d day of May, 1900, denying the defendants’ motion to vacate an order for the examination of the defendants in order to enable the plaintiff to frame her complaint in an action to compel an accounting as to partnership assets.

Appeal by the defendant, the Mercantile Co-operative Bank, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Kings on the 11th day of December, 1899, as resettled by an order entered in said clerk’s office on the 20th day of March, 1900, appointing temporary receivers of all the property and effects of the defendant. This appeal was transferred from the second department to the first department.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of February, 1900, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendants, Samuel Abrahams and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 30th day of March, 1900, restraining the defendants from using or occupying the corner store or building on the southeast corner of Grand and Essex streets, in the borough of Manhattan, city of Hew York, as an auction salesroom or as a place where auction sales are conducted, or…

Appeal by the defendants, Mary E. Hart Sherwood and another, as executors, etc., of James Hart, deceased, 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 10th day of June, 1899, upon the report of a referee, and also from an order made at the Westchester Special Term, bearing date the 27th day of May, 1899, and entered in said clerk’s office, confirming said report and awarding costs…

Appeal by the defendants, Mary A. Denike 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 Kings on the 18th day of •January, 1900, upon the decision of the court, rendered after a trial ■at the Kings County Special Term, setting aside a conveyance made by said Charles W. Denike to said Mary A. Denike as fraudulent •and void as against creditors.

Appeal by the defendant, John J. Jackson, as executor, etc., of Margaret Jackson, deceased, from an order of the Supreme Court, made at the Kings County Special _Tenn and entered in the office of the clerk of the county of Kings on the 11th day of May, 1900, granting the plaintiffs’ motion to refer the issues on the ground that the trial of the action would require the examination of a long account.

Appeal by the defendant, The Long Island Railroad Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Queens on the 25th day of May, 1900, denying its motion to set aside an inquisition and assessment of damages.

Appeal by the defendant, Maria Hoschke, from a judgment of the Municipal Court of the city of New York, borough of Queens, third district, in favor of the plaintiffs, entered in the office of the clerk of said court on the 19th day of March, 1900, upon the decision of the court.

Appeal by the Congress Brewing Company from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 13tli day of July, 1899, revoking and canceling a liquor tax certificate issued to one Edward Maloney.

Certiorari issued out of the Supreme Court and attested on the 8th day of May, 1898, directed to Bernard J. York and others, commissioners, composing the board of police 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 Kings all and singular their proceedings in relation to the dismissal of the relator from the police force of the city of New York.

<p>Appeal by ‘tbe defendants, The County of Westchester and another, from a judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of Westchester on the 2d day of January, 1900, upon the réport of a referee, and also from an order made at the Dutchess County Special Term bearing date the 30th day of. December, 1899, and entered in the office of the clerk of the county of Westchester, confirming the report of said referee and diz'ecting judgment in favor of the relator, with costs and an additional allowance.</p>

<p>Appeaí by the defendants, Howard T. Montgomery and another, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 13th day of September, 1899, upon the verdict of a jury rendered by direction of the court.</p>

Appeal by the defendant, The Brooklyn, Queens County and Suburban Railroad Company, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of January, 1900, upon the verdict of a jury for $1,136, and also from an order ■entered in said clerk’s office on the 6th day of February, 1900. denying the defendant’s motion for a new trial made upon the minutes.

Cross-appeals by the plaintiff, The Town of North Hempstead, and by the defendants, Charles H. Gregory and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 19th day of April, 1899, upon the report of a referee.

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

Appeal by the defendant, The New York, New Haven and Hartford Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 23d day of December, 1899, upon the verdict of a jury for $4,000, and also from an order, entered in said clerk’s office on the 21st day of December, 1899, denying the defendant’s motion for a new trial made upon the minutes.

<p> A sale of property set aside because of inadequate consideration, where a vendor of little business capacity dealt with business men in reliance upon their giving her a fair price. </p> <p>In an action brought to set aside a conveyance of real estate it appeared that the plaintiff, a woman of little business capacity and of limited education, being in distressed circumstances and in need of money, made an application for relief to certain builders named Firth, who were her superiors in capacity and information. The plaintiff was at the time the owner of thirty-seven acres of land worth not less than §500 an acre. The whole property was worth §18,500 and was subject to a mortgage of §3,500, the foreclosure of which was not probable, as the plaintiff had at the time §17-3 in the bank applicable to the payment of interest, but she was troubled with regard to her ability to carry the mortgage in the future. The agent of the holder was willing to increase the mortgage by §500, but the plaintiff suggested that in the end she would be compelled to part with some of the land.</p> <p>Under these circumstances, relying upon the Firths to give her a fair price for the land, she agreed to sell twenty-one acres of it. They at first agreed to pay §5,000 therefor, but before the deed was executed reduced'this offer to §4,500. ■ They also, on the claim that the title to one and three-fourths acres of the twenty-one was in doubt procured a conveyance of an additional acre and three-fourths out of the plaintiff’s remaining property. The actual eonsideration for the transfer was two mortgages given on the twenty-one acres, one for $2,500 to the holder of the §3,500 mortgage from which the plaintiff was-relieved, and a second purchase-money mortgage of §2,000 to the plaintiff, who-executed a mortgage of §1,500 upon the remainder of her property, and also received §500 in cash and merchandise. The value of the property sold was-at least §10,500.</p> <p>Held, that the transaction was not fair and should not be allowed to stand;</p> <p>That a case was presented thereby, of stronger parties taking advantage of a-weaker one, by depriving her of her property without adequate compensation.</p> <p>Goodrich, P. J., and Hirschberg, J., dissented.</p>

Appeal by the defendant, James J..Powers, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 23d day of December, 1899, upon the decision of the court, rendered after a trial at the Nassau Special Term.

<p>Appeal by the defendant, the Republic Savings and Loan Association, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 29th day of June, 1900, appointing temporary receivers of the property of the defendant.</p>

Appeal by tbe defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of tbe clerk of the county of Kings on the 20th day of November, 1899, upon the report of a referee.

<p>Surrender of demised, premises as untenantable— when it cannot be made by a tenant who has agreed to make “all inside and outside repairs.”</p> <p>The provisions of section 197 of the Real Property Law (Laws of 1896, chap. 547, substantially re-enacting chap. 345, Laws of 1860), authorizing a tenant to surrender the demised property when it ceases to be tenantable, are inapplicable to the case of a tenant who has agreed to make “all inside and outside repairs ” where the roof of a bowling alley, attached to and a part of the demised premises, collapses in consequence of a snowfall.</p>

<p>Appeal by the plaintiff, William B. Lane, from a judgment of t-lie Municipal Court of the city of New York, borough of Brooklyn, second district, in favor of the defendant, rendered on the 27th day of April, 1900, dismissing the complaint at the close of the plain tiff’.s case.</p>

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of February, 1900, upon the verdict- of a jury for $22,500, and also from an order entered in said clerk’s office on the 26th day of February, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by David S. Van Wicklen and others from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of April, 1900, denying the motion made on their behalf as heirs at law of the late Jacob Lott Van Wicklen, deceased, to open the judgment entered in this action settling the account of George IT.

Appeal by Emil Mesnier, the purchaser at a partition sale, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of March, 1900, adjudging the said appellant to be in contempt of court, in having wrongfully disobeyed an order made in the above-entitled action, and entered in said clerk’s office on the 1st day of December, 1899.

Appeal by the defendants, William H. Hazzard 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 Kings on the 2d day of February, 1900, upon the verdict of a jury; also from an order, bearing date the 29th day of January, 1900, and entered in said clerk’s office, denying their motion for a new trial made upon the minutes, and also from an order, bearing date the 9th day of February, 1900, and…

Appeal by the defendant, .the New York and Queens County Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 27th day of December, 1899, upon the verdict of a jury for $2,500, with notice of an intention to bring up for review upon such appeal an order bearing date the 8th day o'f December, 1899, and entered in said clerk’s office, denying the defendant’s motion for a new trial…

<p>Appeal by the defendants, William 0. Beale and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Suffolk on the 5th day of January, 1900, upon the decision of the court rendered after a trial at the Suffolk Special Term.</p>

<p>Contract—delay in its execution, when excused—when not a ground of defense to payment— liability of a contractor, covenanting “ to protect his works,” for damage by water to the owner’s stock on the lower floors of the building.</p> <p>In an action brought by contractors to foreclose a mechanic’s lien, a counterclaim interposed by the owner for damages alleged to have resulted to him from the failure of the contractors to complete the building within the time specified by the contract, cannot be sustained where changes in the work, which caused the delay in the completion of the contract, were made at the suggestion of the architect with the approval of the owner, and the conduct of the parties shows that time was not, in their contemplation, of the essence of the contract.</p> <p>In such an action, where the owner does not insist upon his strict legal right to put an end to the contract for a failure to complete it within the prescribed time, and permits the contractors to continue the work, he will be estopped from interposing as a defense, though not as a counterclaim, thereto the contractors’ delay.</p> <p>Where a building contract provides that “ the contractor must at all times protect his works, and will be held responsible for any damages thereto until the completion and acceptance of the work,” and it appears that it was contemplated by the parties that the owner should continue his business upon the lower floors of the building in question during the progress of the work, a very high degree of care is required of the contractor to insure the safety of the owner’s stock against damage from water coming in through the roof.</p>

<p>Judgment in a creditors’ action — a provision allowing further application to be made at the foot thereof does not authorize an order requiring a tenant to attorn •—the remedy is by sale under the lien of the judgment.</p> <p>A judgment declaring a deed from a judgment debtor to his wife to be fraudulent as to creditors, and certain judgments to be a lien on the premises described therein, authorized the plaintiff, a receiver appointed in supplementary proceedings, to apply “at any time without notice to the defendants * * * for further directions upon the foot of this judgment and for such-other and further relief as to the court may seem just and proper,” under which provision the receiver obtained an e.v parte order directing that the tenant of the premises described in the judgment attorn, and pay the rent of the same, to him.</p> <p>Held, that the title to the property being in the wife of the judgment debtor, the receiver did not on his appointment take title to the premises under section 2468 of the Code of Civil Procedure, providing that the “property of the judgment debtor is vested in a receiver, who has duly qualified, from the time of filing the order appointing him,” nor did he acquire title thereto hy the judgment in the action to set aside the deed, and that the order directing the tenant to pay over the rents of the property to the receiver was unauthorized. Semble, that the proper remedy was to have the property sold by the sheriff under the lien of the judgments.</p>

Appeal by the relator, Dennis J. Carll, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the cleric of the county of Queens on the 5th day of February, 1900, denying his application for an order directing the defendants to reinstate the relator as a captain on the police force of the city of Hew York.

<p>Railroad—application of the provision that a railroad company shall charge only a single fare for one continuous passage over railroads operated by it or under its control — the right to collect tolls passes under a lease of a railroad.</p> <p>A street surface railroad company, incorporated in 1887 under chapter 253 of the Laws of 1884, lawfully leased, in 1897, the Sea Beach railroad [a steam surface railroad, constructed in 1879 (except at highway crossings) over a private right of way of which it held the fee] without, however, acquiring the right to extend such road or to construct branches thereof; converted it into a trolley road and joined its tracks to those of a street surface road also leased by it. Both lines were within the limits of the city of New York, and were operated as cue continuous route, a full separate fare being charged, as before the consolidation of the two roads, on each branch of the road, for a continuous trip over both branches.</p> <p>Held, that section 13 of chapter 252 of the Laws of 1884, substantially re-enacted in section 101 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676). contained in article IV of that law, entitled “ Street Surface Railroads,” prohibiting certain railroad companies from charging more than a single fare of five cents for one continuous ride over two or more separate and distinct railroads operated by them or under their control, had no reference to the Sea Beach railroad, a steam railroad constructed prior to the passage of the act of 1884; nor was section 104 of the Railroad Law applicable to such a case; That the lease was operative to transfer to the lessee tlie right to collect the same tolls granted to the lessor by its charter.</p>

Appeal by the defendant, The Brooklyn Heights Railroad Company, from so much of an order, made at the Kings County Special Term and entered in the office of the clerk of the county, of Kings on the 7th day of March, 1900, as provides “that the bill of costs in this action be and the same hereby is retaxed by allowing to the plaintiff the extra allowance of five per cent granted by the trial court, to be computed upon the amount of the verdict, and the interest thereon from…

Appeal by the plaintiff, Felix Donnelly, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 1st day of February, 1900, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the petitioner, Margaret Tobin, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 13th day of April, 1900, denying her application for a peremptory writ of mandamus, requiring him to pay the sum of $1,000 to the petitioner.

<p>Negligence—action of a, milage in widening a street which renders a town bridge dangerous— the milage, not the town, is liable for injuries caused thereby.</p> <p>In an action brought against the town of Pelham to recover damages for injuries alleged to have been sustained by the plaintiff—• whose horse, while traveling along a highway in that town at night, came into violent contact with the handrail of a bridge spanning a stream, the center of which was the boundary line between the village of Pelham and the city of Mount Vernon, and was also the boundary line of the town of Pelham — it appeared that the village authorities had widened the street, which had been theretofore of the same width as the bridge and formed with it a continuous highway, leaving the handrail of the bridge which caused the accident extending over and along the street a distance of about, five feet; that the bridge had no structural approach, the street being carried to the edge of the bridge planking.</p> <p>It was not claimed that any defect existed in the bridge itself.</p> <p>Held, that the widening of the village street caused the accident, and that the town was not chargeable with negligence;</p> <p>That it was the duty of the village rather than of the town authorities, by some appropriate safeguard, to correct the unsafe approach to the bridge.</p>

<p>Appeal by the defendants, the Southeast Building Company and others, 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 1st day of February, 1900.</p> <p>Subdivision 14 of section 1364 of the charter of the city of Mew York, referred to in the opinion, provides that the Municipal Court of the city of Mew York shall have jurisdiction over “other civil actions or proceedings of which district courts in the city of Mew York, or justices of the peace shall have jurisdiction on the thirty-first day of December, eighteen hundred and ninety-seven, except such as shall be expressly excluded by this act.”</p>

Appeal by the plaintiff, Jane Kelly, as administratrix, etc., of Anson H. Kelly, deceased, from an order and judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 28th day of November, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Orange Trial Term.

<p>Appeal by the defendant, Henry H. Lyman, as State Commissioner of Excise of the State of New York, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 4tli day of April, 1900, directing that a peremptory writ of mandamus issue directing him to pay to the relator the rebate due on the surrender by it for cancellation of liquor tax certificate 22,573. P. W. Oullinan, for the appellant.</p>

Appeal by the plaintiff, Thomas H. Lyons, from an order of the Supreme Court, made at the Westchester Trial Term and entered in the office of the clerk of the county of Westchester on the 3d day of February, 1900, granting the defendant’s motion to set aside a verdict rendered herein as against the weight of evidence and for a new trial.

<p>Appeal by the plaintiff, Reuben L. Simonsen, an infant, by Severin E. Simonsen, his guardian ad litem, from a judgment of the Supreme Court- in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of February, 1900, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 19th day of February, 1900, denying the plaintiff’s motion for a new trial made upon the ground that the damages were insufficient.</p>

Appeal by the defendant, Henry Jaffa, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, fourth district, in favor of the plaintiff.

<p>Laches in presenting a cheek for payment — effect on the rights of the pa/l'ties of the failure, in the meantime, of the drawee■—judicial notice taken of geographical locations and the time of travel and of trausporation of mails between them.</p> <p>Where the payee of a check, drawn on a bank in Perth Amboy, N. J., receives it July tenth, accepts it and returns a receipt therefor, and on July eleventh deposits the check with a bank in New York city which does not present the check for payment at the bank at Perth Amboy until July fourteenth, when it is dishonored, the bank at Perth Amboy having on that day closed its doors, the payee is responsible for the act of its agent, the New York bank, and the latter’s delay in presenting the check to the Perth Amboy bank, unexplained, is such laches as will impose the loss, consequent upon the failure of the Perth Amboy hank, on the payee and will discharge therefrom the drawer of the check.</p> <p>The court will take judicial notice of the relative geographical location of the borough of Manhattan, New York city, and Perth Amboy, N. J., and that the time for railroad travel and for the transportation of the mails between these places is less than two days.</p>

Appeal by the defendant, The City of Syracuse, from a judgment of the Supreme Oourt in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 9th 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 23d day of January, 1900, denying the defendant’s motion 'for a new trial made upon the minutes.

Appeal by the plaintiff, E. Willard Jones, as trustee of the estate of John N. Beaton, a bankrupt, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Oneida on the 27th day of April, 1900, upon the decision of the court, rendered after a trial at the Oneida Special Term, sustaining the defendants’ demurrer to the complaint and dismissing the complaint.

Motion by the plaintiff, Harriet J. Merman, 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 Monroe Trial Term.

Appeal by the defendant, The Swits Condé Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the loth day of January, 1900, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 22d day of January, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Sarah A. Gay, as executrix under the last will and testament of George W. Tifft, 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 3d day of January, 1900, upon the decision of the court, rendered after a trial at the Erie Special Term, affirming a judgment of the Municipal Court of the city of Buffalo rendered in June, 1899, in favor of the defendant for $268.91…

<p>Action for services — a statement by a third person, at an informal meeting at which the defendant’s trustees and, others were present, is not binding upon the trustees.</p> <p>In an action, brought by the surviving member of a firm of architects to recover for services rendered in preparing plans for a proposed hospital, which .was to be erected only in the event of the ability of the board of trustees to secure voluntary contributions for that purpose to the amount of $100,000, the question litigated was whether the right of the architects to receive payment for their services was dependent upon the success of the project.</p> <p>■On the trial of the action a witness was allowed to state that at an informal meeting of the trustees and others interested in the projected hospital, one of the promoters (not a trustee) said, referring to the plans of the plaintiff’s firm, " that those were the plans that they had accepted, and that they were raising the money to build.”</p> <p>Held that, the board of trustees not being in session and it not appearing that any of (he members heard or knew the declaration, such statement was incompetent. The referee’s finding that the plans were unconditionally accepted was held to have been against the weight of evidence by McLennan, Williams and Laughlin, JJ.</p>

Appeal by the plaintiff, The Bank of Buffalo, from so much of 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 28th day of December, 1899, upon the report of a referee, as dismisses the complaint on the merits as against the defendants I. Henry Danziger, Nathan Jacobson, Jennie Danziger, Cora T. Danziger, Hiram B. Danziger and Stella Klopfer.

Appeal by the plaintiff, Niels Johansen, from a judgment of the County Court of Onondaga county in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 18th day of October, 1899, affirming a judgment of the Municipal Court of the city of Syracuse, dismissing the complaint. The defendant was president of the local organization named in the caption, and plaintiff was one of its members.

Appeal by the relator, Homer 0. Holmes, from a judgment and order .of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 6th day of April, 1900, upon the decision of the court, rendered after a trial at the Monroe Special Term, overruling his demurrer to a return made by the defendants to an alternative writ of mandamus. William F. Lynn, for the appellant.

Appeal by the defendants, James A. Richmond and another, as executors, etc., of Alvin Richmond, deceased, and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 13th day of November, 1899, upon the decision of the court rendered after a trial at the Herkimer Special Term, adjudging and deciding that the claims of the plaintiff and others similarly situated are a charge and…

Appeal by the defendants, Frank M. Hugo, as trustee in bankruptcy of Henry G: P. Spencer, and another, from a judgment of the Supreme Court in favor of the plaintiff, the Bank of Philadelphia, entered in the office of the clerk of the county of Jefferson on the 23d day of January, 1900, upon the decision of the court rendered after a trial at the Jefferson Special Term, adjudging the judgment of the plaintiff, the Bank of Philadelphia, to be a valid lien, and dismissing the…

Appeal by the defendant. The Western New York and Pennsylvania Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Livingston on the 8th day of October, 1898, upon the decision of the court rendered after a trial at the Livingston Special Term.

Appeal .by the defendants, Clark H. Norton and others, assessors of the city of Syracuse, from a judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of Onondaga on the 6th day of March, 1900, upon an order confirming the report of a referee. The proceeding was instituted by a writ of certiorari to review an assessment upon the personal property of the relator.

<p>Appeal by the plaintiffs, The Onondaga Nation and others, 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 26th day of December, 1899, upon the decision of the court, rendered after a trial at the Onondaga Special Term, dismissing the complaint upon the merits.</p>

Appeal by James B. Stratton, as administrator with the will annexed of Hiram W. Brundage, deceased, from so much of a decree of the Surrogate’s Court of the county of Steuben, entered in said Surrogate’s Court on the 18th day of December, 1899, as provides : First. That the executors of Flora S. Brundage retain out of the Hiram W. Brundage estate the sum of $5,539.91 to pay the note of Hiram W. Brundage remaining unpaid ; and, Second.

<p>Appeal by the defendant, the Buffalo Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 23d day of March, 1900, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 22d day of March, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Daniel Slattery and James J. Hammond, composing the firm of Slattery & Hammond, from an order of tlie Supreme Court, made at the Niagara Special Term and entered in the office of the clerk of the county of Niagara on the l-ttli day of March, 19U0, revoking the liquor tax certificate issued to them by the county treasurer of Niagara county.

<p>Negligence — injury from, steam pipes while being tested, caused by the superintendent’s opening a valve, carusing steam hammering and the bursting of the pipe, which would have been avoided if a drip valve had been supplied,.</p> <p>In an action brought to recover damages for the death of the plaintiff's intestate, alleged to have resulted from the defendant’s negligence, it appeared that the work of enlarging the defendant’s paper and wood-pulp mill, in which the plaintiff’s intestate was employed as a timekeeper, was being done under the •supervision of a competent and experienced superintendent; that a new boiler and a new engine, which were separated by a distance of about one hundred feet, had been connected by means of pipes placed along the ceiling, which pipes were several inches lower at the engine than at the boiler room; that four feet three inches from the end of the main pipe in the engine room a small lateral pipe extended from it to the engine, which closed by a valve at its j unction with the main pipe, at the end of which latter pipe a six-inch tee was attached, from which a two-inch pipe extended at right angles to paper driers; that from the driers another pipe, designed to return the exhaust steam, extended back to the boilers; and that in this two-inch pipe, about ten inches from the tee, there was a valve by means of which the steam could either be shut off or be permitted to pass through it.</p> <p>When steam was turned on for the purpose of testing the pipes a leak was discovered at the connection of the lateral pipe, to relieve which the valve in the two-inch pipe near the tee was slightly opened and the water from the condensed steam in the main pipe was allowed to pass off. Two days later the superintendent, observing that the leak or drip still continued at the junction of the lateral and main pipes at the ceiling, slightly opened the valve in the two-inch pipe near the tee. The plaintiff's intestate came in later to make an inquiry of the superintendent, who, about this time, again opened the valve slightly, when a pounding noise, known as steam hammer, was heard in the main pipe; he then closed the valve, but the steam hammering continued and in from one to three minutes later the tee burst and the steam was emitted in such quantity as to cause the death of the plaintiff’s intestate.</p> <p>Evidence was given tending to show that in such a plant it was customary to insert a drip or bleeder in the main pipe at its lowest point, which (the main pipe being a few inches lower at the valve opening into the lateral pipe leading to the new engine than at the tee) would have drained the main pipe at this point, and would probably have prevented the accident. The superintendent intended to p ut in this drip, but it had not been done at the time of the accident.</p> <p>The court left it to the jury to determine whether the defendant had discharged its duty of providing a safe place for the plaintiff’s intestate in which to do his work, and whether the defendant was negligent and did anything which was the direct and proximate cause of the injury ; also whether or not the superintendent, in turning the valve, was the co-servant of the decedent; it denied the request of the defendant's counsel to charge, as a matter of law, that he was such co-servant and denied the further request to charge that the superintendent, in turning the valve, was performing a detail of the work and did not stand in the place of the master.</p> <p>Held, that a judgment entered on a verdict in favor of the plaintiff should be reversed and a new trial be ordered.</p> <p>Semiile, that the act of the superintendent in opening the valve, done while the work of inspection or repair was in progress, was the act of a co-servant and not the act of the defendant.</p> <p>Semble, that as the evidence on this subject was undisputed, the jury should have been so instructed, as a matter of law.</p> <p>Semble, that if the defendant was negligent in not furnishing a reasonably safe place or constructed the plant negligently, and such negligence co-operated with that of the superintendent in turning the valve, the defendant would be liable.</p> <p>Spbing, J., dissented.</p>

<p>• Complaint for a breach of a contract of employment—a prayer for relief which asks for wages instead of for damages is sufficient.</p> <p>A complaint alleged "That on or about the 17th day of May, 1899, at Buffalo, N. Y., the defendant engaged the services of the plaintiff, at his special instance and request to work for him for the period of seven months from on or about said 17th day of May, 1899, at the rate of $75.00 per month,” and that the plaintiff performed services in pursuance of said contract until the 27th day of May, 1899, when he was wrongfully discharged; that the plaintiff refused to accept such discharge, but tendered to the defendant his services, which he has ever been ready and willing to perform, and "that there is now justly due from defendant to plaintiff the sum of §75.00 for one month’s pay,” and as relief asked "Wherefore, plaintiff demands judgment of said defendant for the sum of §75.00, with interest thereon.”</p> <p>Held, that the complaint stated all the facts essential to a cause of action for damages for the breach of the contract of employment, and that the mere fact that the demand in the prayer for relief was for seventy five dollars for one month’s pay for the breach of the contract instead of seventy five dollars damages therefor, did not render the pleading defective.</p> <p>Semble, that if the complaint were insufficient in this regard, justice would require that a motion to amend it be granted.</p>

<p>Assignment of bank stock made to a business agent, not disclosed until after the assignors death—what proof must be given to sustain it.</p> <p>In an action brought to set aside a transfer of certain bank stock to the defendant’s decedent, the facts established showed that the assignee had been a law student, but had not been admitted to practice; that he had attended to the business affairs of the plaintiff’s testatrix (who transferred the stock) from 1888 to the time of her death on September 19, 1897, at the age of eighty-one; that by her will, made in 1877, the testatrix (who was the aunt of the assignee’s mother) gave the dividends on her bank stock and the use of her house and lot to her sister for life and directed that on her death they be divided among her three nieces.</p> <p>'The assignment of the bank stock purported to have been made April 2, 1895, although thereafter, and until the death of the plaintiff’s testatrix, the assignee continued to draw dividends on the stock in her name, as her attorne3r, in the same manner in which tie had done so for a long time before, the income from the stock being apparently the testatrix's only means of support.</p> <p>■ The assignee, the day after the testatrix’s death, read the will aloud at her house to the assembled relatives, but said nothing to them about the bank stock. On October 6, 1897, he presented the assignment to the bank. His claim upon the trial was that the assignment of the stock had been made to him, partly as payment for his services and partly because of the fact that his right side had, from a stroke of paralysis, become partially paralyzed and that the testatrix wished in this way to make provision for him.</p> <p>' The testimony offered in support of the assignment was that of the assignee’s wife, corroborated somewhat by his father and brother.</p> <p>Held, that, under the circumstances, a relation of trust and confidence existed between the testatrix and the assignee similar to that existing between an .attorney and client;</p> <p>■ That, under the circumstances of this case, the defendant did not sustain the burden of proof resting upon the assignee to show by clear, convincing and satisfactory evidence, that the testatrix perfectly understood the nature and effect of the assignment, and that the execution thereof by her was free from fraud and was her voluntary act.</p> <p>.Adams, P. J., dissented.</p>

<p>Appeal by the plaintiff, William W. Prentice, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Wyoming on the 12tli day of September, 1899, upon the verdict of a jury.</p>

<p>Beincorporation of the village of Broekport — irregula/i'ity therein cured by acquiescence— the title of chapter 84 of the Laws of 1873 embraces the subject — village claim against the town for certain fees of salaried, police justices and policemen —proof required that the offices were salaried — a claimant is entitled to notice that his claim is insufficient or unsatisfactory — the title to office of a defacto officer not considered in a collateral proceeding-—the remedy afforded by section 163 of chapter 569 of the Laws of 1890 is inapplicable — when a town board loses its jurisdiction over claims so that a certiorari will not issue to it to revieio its audit of them.</p> <p>The village of Broekport was incorporated in 1829, and reincorporated, by a majority of votes cast on June 25,1872, under chapter 291 of the Laws of 1870. Some question arising as to the validity of this election, it was confirmed and validated by section 3 of chapter 04 of the Laws of 1873.</p> <p>During a portion of the year 1897, the whole of the year 1898 and part of the year 1899, certain persons assumed, respectively, to perform the respective functions of a police justice, acting police justice and policemen in such village and were paid salaries, for the cervices so rendered, by the village, which, November 10, 1898, presented for audit claims for the accounts of such officials to the town hoard of the town of Sweden, in which the village was situated.</p> <p>By the provisions of sections 185 and 190 of the General Village Law (Laws of 1897, chap. 414), claims for fees in criminal actions and proceedings which would he payable to a police justice or policeman, if he were not paid a salary, and which are a town or county charge, are required to be presented to the town or county to which they are chargeable for audit, and all orders or warrants therefor are to be made payable to the treasurer of the village, who is authorized to collect the amount thereof.</p> <p>The board voted to reject each and all of the claims so presented, solely upon the ground that they were not legal charges against the town, hut neglected to make and file any certificate of such audit and rejection.</p> <p>At a meeting held in October, 1899, the accounts of such officials from the date of the last audit were presented by the village to the town board and were rejected; the proper certificates were filed and the fact of the disallowance was stated in the abstract furnished for that year to the clerk of the board of supervisors of the county. Subsequently the vote disallowing the claims presented in November, 1898, was reconsidered, and said claims were again disallowed and certificates to that effect were filed with the town clerk, but the claims and the fact of their disallowance were not included in the abstract furnished to the supervisors of that county for the year 1899. In a proceeding by certiorari instituted by the village, of Brockport to secure a reversal of the judgment of the town board it was</p> <p>Held, that the members of the town board could not be heard to claim that the relator had not furnished proof that the officials whose fees were in question were paid salaries by the village at the time the bills were audited, where the writ contained an allegation that the officials in question were receiving salaries, and the return, which, while not denying that these officials were paid salaries by the village, alleged that there was no proof of that fact before the town board, admitted the receipt of the verified bills presented to the town board of audit, which were made a part of the record, in which the services, the name and official character of the person rendering them, each proceeding and the fee therefor were set forth, each particular account having a caption stating that the town was indebted to the village for the services "chargeable or.payable under section 185 or 190 of chapter 414 of the Laws of 1897;”</p> <p>That, if the statement and verification contained in such bills were insufficient, or for any reason' unsatisfactory, it was the duty of the board of audit to notify the claimant in order that the correction might be made;</p> <p>That the failure of the several officers to accompany their respective bills with proof of their official titles, could not bring up for inquiry, in a collateral proceeding, their titles to their respective offices, the duties of which they were respectively performing;</p> <p>That it would have been improper for the relator to pursue the remedy provided by section 163 of the Town Law (Laws of 1890, chap. 569), as that section refers to the accounts of a justice of the peace or town constable;</p> <p>That the fact that at the election of 1872, held under the provisions of the act of 1870, which required that the election for the reincorporation of a village should be held from one o'clock in the afternoon until sunset of the same day, the polls opened at ten o’clock in the forenoon and closed at three o’clock in the afternoon, although the sun did not set on that day until half-past seven o’clock, could not invalidate the reincorporation of the village of Brockport, duly declared and certified in accordance with the requirements of the statute, after the lapse of over twenty-five years, especially ns all irregularities in this respect were cured by chapter 84 of the Laws of 1873;</p> <p>That the title of a local law need not specify each particular subject where the general subject, as declared, is sufficiently comprehensive to embrace the .various provisions of such a law, and „hat, therefore, the act, chapter 84 of the Laws of 1873. entitled “ An act in relation to the village of Brockport,” which contains seven sections, all relating to the village of Brockport and germane to the subject expressed in the title, is not in conflict with section 16 of article 8 of the State Constitution, which provides that "Ho private or local bill, which may be passed by the Legislature, shall embrace more than one subject, and that shall be expressed in the title; ”</p> <p>That as to the bills of 1899, the compliance of the town board with section 170 of the Town Law (Chap. 569 of the Law's of 1890), requiring it to make an abstract of all claims presented and to deliver the same to the clerk of the board of supervisors, caused it thereupon to lose jurisdiction of such bills for the year 1899, and a review of its proceedings in respect to them could not be accomplished by certiorari (Spring and Laughlin, J.T., dissented);</p> <p>That'as to the bills of 1898, no abstract of which was ever delivered to the board of supervisors, the jurisdiction of the 'town board over them continued and its action in respect thereto was, consequently, subject to review by certiorari.</p>