Volume 54 — New York Appellate Division Reports

<p>Grants of land under water — the discretionary power of the Commissioners of the Land Office is not reviewable — their judicial acts are.</p> <p>The Commissioners of the Land Office have absolute discretion to make or not to make a grant of land under the navigable waters of the State of New York to a proprietor of the adjacent upland; their action is subject to review by certiorari only when they exercise judicial functions in the performance of their duties.</p>

<p>Will — a devise to three sons with a provision that the land should remain inviolate and intact for ten years, and in case of the death of any son within that period then to go to the survivors.</p> <p>A testator devised all his real estate to his three sons “share and share alike, providing, however, that said real estate shall remain inviolate and intact for ■ the period of ten years from the date of my death; and that neither of my said sons shall encumber, dispose of or sell such real property until the expiration of the time hereinbefore mentioned. And in case of the death of any or either of my said sons previous to the said limited time, the proportionate share or shares of either or any of them shall be distributed to the living or surviving brothers.”</p> <p>It was conceded that the clause quoted effected a valid devise of the real estate to the testator’s three sons, and that the provision thereof, requiring that the property should remain “ inviolate and intact” for ten years from the .testator’s death and forbidding its alienation within that period, was void and .should be disregarded.</p> <p>Held, that there was devised a one-third share to each son, in fee, - subject to its being divested or reduced to a life estate by the death of the devisee within ten years after the death of the testator, the power of alienation of any share not being in any case suspended for a period longer than one life.</p> <p>Smith, J., dissented.</p>

<p>. Appeal by the defendant, The City of Amsterdam, from an interlocutory judgment of the Supreme. Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 6th day of April, 1900, upon the decision of the court rendered after a trial at the Saratoga Special Term., sustaining the plaintiff’s demurrer to the second and third defenses in the defendant’s answer.</p> <p>•The complaint alleges that the plaintiff is the owner off a piece of land in Providence, Saratoga county, through which flows a private" stream, known as Haan’s creek, to the use of the waters of which he is entitled; that in the year 1890 the defendant wrongfully constructed dams across the said creek above the premises of the plaintiff, and by means of such dams, pipes and other appliances, diverted the waters of the stream and .has since used the same for the purpose of supplying the inhabitants of the city of Amsterdam with water, and has prevented the waters of the creek from running to and upon the plaintiff’s premises.</p> <p>- The "defendant, for a second defense, avers that the acts complained of were done by the water commissioners of Amsterdam, created a body corporate by chapter 101" of the Laws of 1881; that in pursuance of the power and authority conferred upon them in the said act, the said water commissioners in 1889 purchased a piece of land, in the town of Providence, upon Haan’s creek, at a point about a mile above the.plain tiff’s lands, constructed thereon a dam and diverted the waters of the creek, through ¡lipes, for the purpose of supplying Amsterdam with water, and.that the action is, for that reason, not maintainable against this defendant.</p> <p>For a third defense the defendant, reiterating the allegations of the second defense, further avers that before entering upon or taking any lands or rights in the town of Providence, and in or about the year 1889, the water commissioners of Amsterdam caused the survey and "map required by said act of the Legislature to be made, duly signed and filed, upon which were designated the lands and rights proposed to be taken; that the commissioners were unable to agree with plaintiff as to the value of his rights or the damages sustained by him, and did not apply to the Supreme Court for the appointment of commissioners to determine the damages sustained by the plaintiff; that the plaintiff has failed to apply to the court for the appointment of commissioners of assessment, and having an adequate remedy for his damages under the said act, he cannot maintain this action.</p> <p>The plaintiff’s demurrer to each of these defenses, on the ground that it is insufficient in law upon the face thereof, was. sustained, and, from the interlocutory judgment entered upon the decision, this appeal is taken.</p> <p>The act under which the questions arise is chapter 101, Laws of 1881, as amended by chapter 197, Laws of 1882; title 8, chapter 131, Laws of 1885; chapter 264, Laws of 1887.</p>

Appeal by the defendant, Nellie Rothwell, individually and as executrix, etc., of Jane E. Gregg, deceased, from an order of the Supreme Court, made at the Broome Special Term and entered in. the office of the clerk of the county of Chemung on the 8th day of August, 1900, denying her motion to compel the plaintiffs to-assign to her, or to some person for her benefit, the mortgage sought to be foreclosed in tiffs action, and for an order directing the discontinuance of the…

Appeal by the plaintiff, Devere F. Lamphere, from so much of a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk,of the county of Madison on the lltli day of December, 1899, upon the report of a referee, as awards costs against the plaintiff and in favor of the defendant, with notice of an intention to bring up for review an intermediate order entered in the office of the clerk of the county of Madison on the 10th day of February,…

<p> Order that highway commissioners make a further return—the County Court cannot make it pending an appeal. </p> <p>While an appeal from an order of a County Court, confirming the report of commissioners appointed to consider the question of laying out a highway, is pending undetermined in the Appellate Division, the County Court has no power to compel such commissioners to make a further return of the evidence taken before them.</p>

Appeal by the defendant, Julia Merkwa, 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 14th day of June, 1900, directing a retaxation of the plaintiffs’ costs at the amount provided for in section 3251 of the Code of Civil Procedure.

<p>Village street extending along a side hill — duty of the village, by. a guard rail, to protect a bicycle rider thereon from passing off of it and down the hill.</p> <p>A village which maintains, upon the side of a hill sloping towards the south, a street running east and west having a carriageway forty-two feet wide and a four-foot plank walk on either side of the carriageway, is not required, in the exercise of reasonable care, to foresee that a woman familiar with the road and the land upon either side thereof would lose control of her bicycle, while riding •down a descent in the street of five and a half feet in the hundred, and be carried across the carriageway and plank walk down the embankment south of the street, and to guard against the possibility of the occurrence of such an accident by erecting a guard rail or barrier along the plank walk.</p>

<p>Appeal by the plaintiff, James Kennedy, as administrator, etc., of James Kennedy, Jr., deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 25th day of April, 1900, upon the dismissal of the'complaint by direction of the court after a trial before the court and a jury at the Kings County Trial Term.</p>

<p>Physician — no recovery by, for services rendered -in a county in which he is not registered—competency as evidence of a public registry of physicians and surgeons — burden of proof.</p> <p>A physician who has been regularly licensed by the Regents of the University of the State of New York cannot recover for professional services rendered by him, unless his. license has been registered in the office of the clerk of the ■county in which the services were rendered as required by section 149 of the Public Health Law (Laws of 1893, chap. 661), which, in the absence of such registration, forbids him to practice in that county, it being made by section 153 a misdemeanor.</p> <p>Where a hook, stated by counsel to he a public register of physicians and surgeons of Kings county, js offered in evidence for the purpose of showing that a physician suing to recover for professional services rendered in that county was not a registered or licensed physician therein, the objection that it is incompetent, immaterial and irrelevant does not present the question whether its authenticity has been established.</p> <p>Semble, that after proof that the physician had been regularly licensed, the burden of showing that the license had not been registered as required by the Public Health Law, rested upon the person asserting that fact.</p> <p>Woodward, J., dissented.</p>

Appeal by the plaintiff, Susan E. Cole, 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 18th day of May, 1900, upon the decision of the court rendered after a trial at the Kings- County Special Term dismissing the complaint.

Appeal by the plaintiff, Louis Gabriel, from a judgment of the Supreme Court in favor of the defendant, entered in' the office of the clerk of the county of Queens on the 27th day of April, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Queens County Trial Term.

Appeal by the plaintiff, Frank M. Ashley, 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 21st day of February^ 1900, as amended by an order entered in said clerk’s office on the 26th day of February, 1900, upon the dismissal of the complaint at the commencement of a trial at the Kings County Special Term, upon the ground that a court of equity had no jurisdiction of the cause of action and that…

<p>.Appeal by.the plaintiff, Elizabeth Skinner, from a judgment of the Supreme Court in favor of the defendant, Elsie J. Allison, entered in the office of the clerk of the county of Westchester on the 3d day of December,'1898, upon the decision of the court rendered after a trial at the Westchester Special Term.</p>

Appeal by the defendant, David Moore, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Dutchess on the 19th day of January, 1900, upon the decision of the court rendered after a trial at the Dutchess County Special Term, and also from an order made at the Dutchess-County Special Term, bearing date the 19th day of June, 1899, and entered in said clerk’s office, amending, the plaintiff’s complaint.

<p>Appeal by the defendant, Henry C. Miner, 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 September, 1899, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term.</p> <p>This appeal was transferred from the first department to the second department.</p>

<p>Deed to husband and wife — when they take as tenants by the entirety..</p> <p>The common-law rule that a husband and wife take land conveyed to them, not as tenants in common or as joint tenants, but as tenants by the entirety, is not abrogated by section 56 of the Real Property Law (Laws of 1896, chap. 547), providing that “every estate granted or devised to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be in joint tenancy.”</p> <p>A deed to “ Solomon Pestka and Jennie Pestka, his wife, and Morris Price and Rosa Price, his wife, of the .City, County and State of New York, as tenants by the entirety, grantees,” vests in Morris Price and Rosa Price one-half of the estate per tout, et per my, and upon the death of either the entire one-half vests in the survivor, who may convey the same without procuring the heirs of the deceased cotenant to join in the deed. .</p>

Appeal by the plaintiff, May Charman, 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 1st day of March, 1900, upon the verdict of a jury for $4,601.53, rendered by direction of the court, the notice of appeal stating that “ on such appeal appellant will ask the court to modify the said judgment so as to adjudge that the plaintiff recover of the defendant $8,666.53, with interest from…

Appeal by the defendant, the Brooklyn Ferry Company 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 Kings on the 19th day of December, 1899, upon the verdict of a jury for $1,500; and also from an order entered in said clerk’s office on the 19th day of December, 1899, denying the defendant’s motion' for a new trial made upon the minutes.

Appeal by the plaintiff, Margaret Higgins, from a judgment of1 the Supreme Court in favor of the defendants, the Brooklyn, Queens County and Suburban Railroad Company and the City of Brooklyn, entered in the office of the clerk of the county of Kings on the 10th day of March, 1899, upon the dismissal of the complaint, ■ at the close of the plaintiff’s case, by direction of the court after a trial before the court and a jury at the* Kings County Trial Term.

<p>Principal and agent — accounts rendered by an agent containing false statements as to matters peculiarly within the agent’s knowledge do not become accounts stated.</p> <p>The principle that accounts rendered, and retained for many years without objection by the person receiving them, become accounts stated, does not apply to an account rendered by an agent to his principal, in which the agent makes misstatements, in a respect peculiarly within his own knowledge, which cannot be discovered by an inspection of the account or by any other means possessed by the principal.</p>

<p> Form, of a demand to be furnished, with gas —a submission of a question to the jury cannot be objected to on an appeal by the party ashing it. </p> <p>A written application, made to a gas company by a tenant of offices from which ' the meter had been removed at the instance of the previous tenant, to be supplied “ with gas for lighting said offices as heretofore supplied, by the return of the meter to said offices as the same was placed on the first of the present month,” . is sufficient to support an action to recover the penalty imposed by section 65 of the Transportation Corporations Law (Laws of 1890, chap. 566) for a refusal to comply with such request.</p> <p>Where, at the instance of the gas company, the trial court submits to the jury the question as to the reasonableness of its demand for a deposit of five dollars pursuant to section 66 of- the Transportation Corporations Law, as a condition precedent to its furnishing a meter to the consumer, the company cannot, on appeal, claim to have been prejudiced by such action of the court.'</p> <p>It is not the province of an appellate tribunal to relieve a litigant from the ' consequences of a situation which it deliberately invited in opposition to a favorable ruling of the trial court.</p>

<p> Seal estate broker’s commission—proof of a promise to pay a commission—it does ■not dispense toiffi proof that the broker procured the purchaser. </p> <p>In an action brought by a real estate broker to recover commissions, proof that the defendant, the owner of the real property, on the day that a contract for the sale thereof was signed, promised to pay to the broker a commission on the sale, does not dispense with proof on his part that he procured the purchaser, where his evidence tends to indicate that the sale was in fact effected by another.</p>

<p> Sidewalk erected)by a town in an unincorporated, milage—duty of the town to keep it in order. ' </p> <p>A town which constructs a highway with a sidewalk in an unincorporated village is under the same obligation to keep it in order as exists in the case of the center of the street.</p>

<p>Appeal by the plaintiffs, Sarah Whan 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 Kings on the 6th day of December, 1899, upon the decision of the court rendered after a .trial at the Kings County Trial Term, the parties having waived a jury trial.</p>

<p>Appeal by the defendants, Christoph L. Bruns'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 Kings on the 21st day of February, 1900, nuhopro tuno, as of the 2d day of February, 1900, upon the decision of the court rendered after a trial at the Kings County Special Term ordering that a certain assignment of judgment be delivered up by the defendant John Widdecombe to the plaintiffs.</p>

<p>Complaint alleging injury to horse, wagon and person — what allegation does not justify proof of damages to the horse and wagon — amendment — withdrawal of a juror —proof of injury to fingers — when it cannot be supplemented, by specimens of handiwork.</p> <p>In an action brought to recover damages, caused‘by a collision between one of the defendant’s cars and the plaintiff’s wagon, the complaint alleged the destruction of the horse and wagon and the infliction of injuries upon the plain-, tiff's person and “that-by reason of the aforesaid, plaintiff has been and will be compelled to suffer great pain, and has been and will be compelled to spend money for medicine and medical attendance, and has been and will be prevented from attending to his usual vocation, and has been as he verily bc-lieves permanently injured and that he will never fully recover from the effects of the same, in all to 'his damage in the sum of twenty-five thousand dollars.”</p> <p>Held, that the complaint was not broad enough to authorize the admission of proof of the value of the horse and wagon, especially as it appeared that the plaintiff had brought another action to recover such value;</p> <p>That the fact that the defendant’s counsel sucessfully opposed, on the ground of surprise, a motion to amend the complaint by inserting an allegation as to the value of the horse and wagon, did not prevent him from subsequently insisting that the evidence was inadmissible under the complaint as it stood;</p> <p>That, after deciding to receive evidence of the value of the horse and wagon, the court should have granted the defendant’s application for leave to withdraw a juror, and that the discretion exercised by the court in denying"such application was reviewable in the Appellate Division;</p> <p>That evidence that the plaintiff, in consequence of the accident, had lost the use of his fingers so that he could no longer use a pencil,, paint brush or pen, and that he was no longer able to do any work as a draftsman or painter in connection with his business as a carriage manufacturer, could not he supplemented by cards containing samples of the plaintiff’s work representing landscapes and' other scenes, either copied from nature or the offspring of the plaintiff’s fancy, having no conceivable relation to carriage manufacturing.</p> <p>Specific damages, for a disability debarring the plaintiff from following any particular pursuit, cannot be allowed unless he earned money in such pursuit.</p> <p>Woodward, J., dissented.</p>

<p>Appeal by the defendant, The Southern National Bank, from a judgment of the Supreme Court in favor of the plaintiff Edward J. H. Tamsen, as sheriff of the city and county of New York, entered in the office of the clerk of the county of New York on the 25th day of November, 1898, 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 16th.day of November, 1898, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>This appeal was transferred from the first department to the second department.</p>

Appeal by the defendant, Libbie Robertson McCarty, as administratrix, etc., of Stout Robertson, deceased, 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 11th. day of May, 1900, upon the decision of the court rendered after a trial before the court without a jury.

<p>Appeal by the defendants, C. R. Porterfield and another, composing the firm of Porterfield & Conklin, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, second district, in favor of the plaintiff, entered in the office of the •clerk of said court on the 26th day of June, 1900, in summary proceedings to recover possession of real estate for non-payment of rent.</p>

Appeal by the defendant, George Chandler, from a judgment of the Court of Special Sessions of the second division of the city of New York, rendered ón the 26th day of March, 1900, convicting him of the crime of conspiracy.

Appeal by the plaintiff, The County of Queens, 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 Queens on the 5tli day of July, 1900, denying the plaintiff’s motion for an injunction pendente lite restraining the defendants from entering upon the roof of the county court house and removing or otherwise interfering with the same or in any wise attempting to exercise jurisdiction over the said…

<p>Statute of Frauds — a promise by a woman to assume debts of her deceased husband if his creditors will sell goods to her on credit, is not an original promise.</p> <p>A- promise made by a woman, who, without any transfer of the property' to her, assumed control of her deceased husband’s stock of goods and continued his business, to persons having claims against her husband’s estate for goods sold to him, that she will assume the indebtedness if they will continue to sell her the same line of goods on credit, is not an original promise, and, if not in writing,, is void under the Statute of Frauds.</p>

<p>Appeal by the defendant, Frederick L. Gilbert, from a judgtnent of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 4th day of December, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term.</p>

<p> An employee of a company furnishing and operating a hod elevator held not to be a-fellow-servant of an employee of a construction company contracting for its use. </p> <p>Where an elevator company enters into a contract with a corporation, engaged in laying the concrete in a building, to install a hod elevator and furnish a man to operate it, the man so furnished is not a fellow-servant of an .employee of the-concrete company, and where such employee, sent by his foreman, to remove an obstruction in the elevator shaft, sustains injuries while so engaged, in consequence of the negligence of the man furnished by the'elevator company to-operate the elevator, the latter company is liable.</p>

<p>Appeal by the plaintiff, John Gr. McLain, an infant, by Mary J. McLain, his guardian ad litem, 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 Orange on the 4th day of June, 1900, amending the judgment entered in the action by striking -out the-provision therein allowing the plaintiff thirty-five dollars costs.</p> <p>The verdict rendered in the action did not award the plaintiff possession of the chattel in question or fix the value thereof.</p>

<p>Conversión of chattels — when a demand and a refusal to deliver must he shown.</p> <p>A person, who has lawfully obtained possession of chattels belonging to another, cannot be held liable for their conversion until they.have been demanded of him by the owner, or the person entitled to their possession, and he has refused to deliver them..</p>

Appeal by the plaintiff, Elizabeth A. Burnham, from a final judgment of the Supreme Court in favor of the defendant, Mary A: Denike, entered in the office of the clerk of the county of Kings on the 11th day of August, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term, with notice of an intention to bring up for review upon such appeal an interlocutory judgment in favor of said defendant, entered in said clerk’s office on the 21st…

Appeal by the defendants, Hyman Epstein 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 21st day of November, 1899, 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 17th day of November, 1899, denying their motion for a new trial made upon the minutes.

Appeal by the plaintiff, Richard C. La Tourette, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 2d day of October, 1899, upon the decision of the court rendered after a trial at the Queens County Special Term dismissing the complaint upon the merits.

Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure. The- receivers of a building and loan association are plaintiffs, and a borrowing member of such association and his wife are defendants.

Appeal by the defendant, James Carmichael, from a-judgment of the ’ Municipal Court of the city of Hew York, borough of Brooklyn, fifth district, in favor of the plaintiff, entered in the office of the -clerk of said court on the 14th day of September, 1899, in an action for the conversion of certain chattels.

<p> Leave to appeal to the Court of Appeals—not necessary in actions by a public officer to recover compensation determined by statute. </p> <p>Subdivision 2 of section 191 of the Code of Civil Procedure, in reference to actions . to recover wages, salary or compensation for services, does not apply to a case in which the compensation is determined by statute as an incident to a public office, and in such a case an application for leave to appeal to the Court, of Appeals need not be made.</p>

<p>Deed — description of the property conveyed—effect of a reference therein to a map ■ on which a street is laid out on a tine differing from the one, at the time, in actual use — estoppel, by acquiescence in the building of a house and fence.</p> <p>Hosea Rhodes and Hiram Dean, who owned a plot of land at the intersection of "Union and Coleman streets in the city of Clean, conveyed a part of it to one .Ryan, by a deed which described the land conveyed as “ a portion of the northeast corner of block fifteen, according to a map of said village made by T. J. ■Gosseline,- Esq., bounded and described as follows : Commencing at a point in the south bounds of Coleman street, 90 feet west of the southwest corner of intersection of Coleman and Union street; running thence west,” etc. Ryan, built a house upon his lot and located it by erecting a fence ninety feet west of Union street, as that street was then used and occupied. Thereafter Rhodes conveyed to Dean his interest in the remainder of the plot by a deed which described it as “being, in block fifteen of. said village according tc a map thereof made by T. J. Gosseline, bounded and described as follows: Beginning at the intersection of the west bounds of Union street with the south bounds ■of Coleman street, running thence west on the south bounds of Coleman street, ■90 feet.” Nine years after Ryan’s purchase, Union street' was resurveyed, according to the Gosseline map, and the west line thereof located about eleven feet further west than the west line of the street' as it had been opened and used prior to such survey.</p> <p>Held, that the west line of Union street, as used and existing at the time of the execution of the deeds, was treated by the parties as a monument;</p> <p>That the parties contracted with reference to that monument as a matter of fact, and'that if the map line was'subsequently found to be, different from the line of occupation, the latter must control;</p> <p>That the reference to the Gosseline map, contained in the deed to Ryan, did not operate to incorporate the map into the deed, hut that, if it did, the line of the street as actually opened and used must control.</p> <p>Semble, that as Dean and Rhodes allowed Ryan to huild his house and fence without making any suggestion that he had not properly located his lot, they would he estopped from claiming that the eleven feet in dispute should be taken from Ryaii’s land.</p>

<p>Appeal by the plaintiff, Jennie Schwarzbaum, as administratrix etc., of Moritz Schwarzbaum, 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 27th day of December, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the New York Tidal Term.</p>

<p>Appeal by the defendants, the Foote & Thorne Glass Company and others, from a judgment of the Supreme Court in favor of the plaintiff against the appealing defendants, entered in the office of the clerk of the county of New York on the loth day of February, 1900, upon the decision of the court rendered after a trial at the New York Special Term, which judgment, among other things, adjudged the general assignment of the Foote & Thorne Glass Company to the defendant Clarkson to be void as against the plain tiff, and directed the defendants Hislop and Colby to pay to the receiver appointed by said judgment certain sums for the plaintiff’s benefit; except from so much of said judgment as dismissed the complaint as to the defendants Long and Maxwell.</p>

Appeal by the defendant, Samuel Crane, as president of the Atlantic League of Professional Baseball Clubs, and .John M. Ward, as attorney for the defendant and personally, 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 26th day of February, 1900, discontinuing the action upon a stipulation, without costs.

<p>Appeal by Richard H. Mitchell 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 26th day of October, 1900, reversing a decision made by the police board of the city of New York to the effect that Richard H. Mitchell had been regularly nominated as the Democratic candidate for State Senator for the twenty-first senatorial district.</p>

Appeal by the relator, Rebecca Rosenzweig, 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 May, 1900, denying her motion for a peremptory writ of mandamus commanding the respondent to issue an execution against the person of John Gotlieb.

Appeal by the defendant, Robert Lindheim, 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 June, 1900, denying said defendant’s application to-vacate an ex pa/rte order for his examination before trial.

<p>Appeal by the plaintiff, Anthony Paulson, from an order of the ¡Supreme Court, made at the New York Special Term and entered :n the office of the clerk of the county of New York on the 24th -day of April, 1900, dismissing the complaint because of the plain- ■ tiff’s failure to prosecute the action, and also from an order made at ".the New York Special Term and entered in said clerk’s office on the 4th day of June, 1900, denying the plaintiff’s motion to resettle the order dismissing the complaint.</p>

Appeal by the defendant, Sarah P. L. Whiton, 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 25th day of April, 1900, denying her motion to compel the plaintiffs attorney to accept her amended answer.

Appeal by the plaintiff, John C. Rodgers, 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 August, 1900, granting the defendant’s motion for leave to •amend his answer.

Appeal by the plaintiff, Mary Rudolph, as administratrix, etc., of. Ernest Rudolph, deceased, from an order of the Supreme Court, made at the New York Trial Term and entered in tire office of the-clerk of the county of New York on the 11th day of May, 1900,.. denying the plaintiff’s motion for a preference on the calendar.

Appeal by the defendant, Charles S. Rogers, 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 July, 1900, granting the plaintiff alimony and counsel fees.

Appeal by the plaintiff, Hannah Ehrenfeich, 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 28th day of June,. 1900, denying her motion to continue a. preliminary injunction theretofore granted in the action.

Appeal by the defendant, William F. Doll, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the. 9th day of April, 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 1st day of May, 1900, denying the defendant’s motion for a new trial made upon the minutes. ,

Appeal by the plaintiff, Abraham H. Ryan, as administrator, etc., -of Charles H. Ryan, 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. 14th day of May, 1900, denying his motion for leave to serve an amended reply.

Appeal, by the defendant, The Supreme Lodge of the Bohemia'nSlavonian Benevolent Society of United States, 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 2d day of May, 1900, denying the defendant’s motion to require the plaintiff to give security for costs.

Appeal by the defendants, Julius Fleischmann and others, indi•■viduEtlly and as ancillary executors of Charles Fleischmann, deceased, from an order of the Supreme Court, made at the Few York .Special Term and entered in the office of the clerk of the county ■of'Few York on the 4th day of May, 1900, granting the plaintiffs’ motion for an inspection.and.discovery of the books of the firms of ■Gaff, Fleischmann & Co. and Fleischmann & Co. The cpmplaint in this action alleges…

Appeal by the defendant, Frederick Uhlmann, 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, and also from an order entered in said clerk’s office on the 5th day o'f December, 1899, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Reuben H. Underhill, as receiver of New York and Boston Insurance 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 7th day of August, 1899, upon the decision of the court rendered after a trial at the New York Special Term. The action was in ejectment, but the defendant consented for the purpose of the trial only to a hearing by the court without a jury.

Appeal by the relator, The United Verde Copper Company, 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 12th. day of June, 1900, quashing a writ of certiorari theretofore granted in the proceeding, and confirming the. assessment of the capital stock and surplus profits of the relator,

Appeal by the plaintiff, John D. Park & Sons Company, a corporation organized under the laws of the State of Kentucky, from a final 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 5th. day of May, 1900, upon the decision of the court rendered after a trial at the New York Special Term sustaining demurrers interposed to the amended complaint, dismissing the complaint and dissolving a preliminary…

<p>Learn to amend by setting up the Statute of Frauds — the application therefor must be made during the trial.</p> <p>A defendant who contends that by the form of the complaint he has been misled into an omission to plead the defense of the Statute of Frauds, is bound to ask leave to amend his answer in that respect as soon as testimony is given indicating that such defense may be available; if lie completes the trial without doing so, he will not be allowed to assert, upon an appeal from a judgment in favor of the plaintiff, that he was deprived of his opportunity to plead such defense.</p>

<p>Appeal by the defendant, The Dry Dock, East Broadway and Battery Railroad Company, from an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the county of Hew York on the 27th day of March, 1899, setting aside the verdict of a jury in favor of the defendant, and granting the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Henry Kuhn and others, from an order of the Supreme Court, made at the New-York Special Term and entered in the office of the clerk of the county of New York on the 10th day of July, 1900, striking out the answer interposed by said defendants as a penalty for an alleged contempt of court.

Appeal by the defendants, George A. Phelps and others, composing the firm of Phelps Brothers & Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of New York on the 27th day of June, 1899, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, John Brooks, as executor, etc., of Bridget Steggels, deceased, substituted in place of the Bowery Savings Bank, 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 17th day of July, 1900, upon the report of a referee,, adjudging that certain moneys deposited by Bridget Steggels in the-Bowery Savings Bank was a valid gift to the plaintiff, and ordering that the same…

<p>Appeal by the defendants, Eva Samuels 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 Hew York on the 16th day of February, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of February, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Frank Kueckel, 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 9th day of April, 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 defendants, The Manhattan Railway Company 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 -23d day of June, 1899, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Rosanna Hawkins, 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 March, 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, and also from an order entered in said clerk’s office on the 11th day of April, 1900, dismissing the complaint.

Appeal by the defendant, the Manhattan Railway 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 17th day of August, 1900, directing the issue of a per-' emptory writ of mandamus requiring the defendant George ■ A. Morrison, Jr., to forthwith sign as commissioner the majority report of commissioners in a certain condemnation proceeding instituted by the Manhattan Railway…

Appeal by the defendant, Lyman G. Bloomingdale, doing business under the firm name of Bloomingdale Brothers, 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 March, 1900, upon the verdict of a jury for $1,250, and also from an •order entered in said clerk’s office on the 9th day of March, 1900, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, George L, Tenner, 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 February, 1900, 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 defendant, Levi C. Weir, as president of the Adams Express Company, 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 19th 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 19th day of February, 1900, denying the defendant’s motion' for a new trial made upon the minutes.

Appeal by William Hoes, public administrator of the county of Hew York, as administrator, etc., of Patrick McElroy, deceased, from an order of the Surrogate’s Court of the qounty of Hew York, entered in said Surrogate’s Court on the 10th day of August, 1900, directing a reference of the claim of Catharine Shandley against the estate of Patrick McElroy, deceased.

Appeal by the plaintiff, William H. Cleary, 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 7th day of April, 1900, upon the dismissal of his complaint by direction of the court after a trial .before the court and a jury at the New York Trial Term, and also from an order entered in said clerk’s office on the 11th day of April, 1900, denying the plaintiff’s motion to set aside the direction…

<p>Appeal by the defendant, The Dry Dock, East Broadway and Battery Railroad Company, from a judgment of .the Supreme Court fill favor of the plaintiff, entered in the office of the clerk of the '•county of New York .on the 16th day of March, 1900, upon the werdict of a jury for $1,250,' and also from an order entered in saqi "clerk’s office on the lltli day of March, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Sarah A. Brush, and by Samuel J. Silbermaii, a third party, from an order of the Supreme Court, made ah the New York Special Term and entered in the office of the clerk of the county of New York on the lltli day of August,-1900, directing Samuel J. Silberman to be made a party defendant to the action..

Appeal by the plaintiff, Louis Klinger, by Anna Klinger, his guardian ad litem, 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 June, 1900, setting aside a verdict theretofore rendered in favor of the plaintiff, upon the ground that one of the plaintiff’s witnesses committed perjury upon the trial, and ordering a new trial.

Appeal by the plaintiff, Joseph Nowack, an infant, by Barnett Nowack, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 4th day of November, 1899, upon the verdict of a jury, and also from an order entered in said clerkls office on- the 24th day of October, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Farmers’ Loan and Trust 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 19th day of February, 1900, upon the vprdict of a jury, and also from an order bearing date- the 13th day of February, 1900, 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 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 16th day of May, 1900, upon the verdict of a jury for $7,000,. and also froni an order entered in said clerk’s office on. the 22d day of May, 1900, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Martha Keery, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 15th day of May, 1900, upon the decision of the court rendered after a trial before the court without a jury at the Hew York Trial Term.</p>

<p>Appeal by the plaintiffs, Consider Parish and Theodorus B. Woolsey, 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 18th day of September, 1900, denying said plaintiff’s motion for an extra allowance.</p>

<p>False imprisonment — scope of the duties of a general superintendent of a corporation which offers a reward forjew.elry lost by a customer — it does not extend, to making an affidavit for the arrest of a person to'whom the jewelry has been sold.</p> <p>In an action brought to recover damages for an alleged false imprisonment, it appeared that the defendant, a corporation, was in the habit of offering rewards for property lost by its customers; that one Pugh applied for such a reward and stated that he had found certain- jewelry of a customer of the defendant and had sold it to the plaintiff; that in company with Pugh the general superintendent of the defendant went to a police magistrate and made an affidavit upon which the police magistrate issued a warrant on which the plaintiff was arrested. It further appeared that the defendant had committed the charge of matters relating to.jewelry for which it offered a reward to an employee who occupied a somewhat independent position and was not under the supervision or control of the general superintendent.</p> <p>Held, that in making the affidavit the general superintendent did not 'act within the scope of his general or implied authority, and that the defendant was not liable-for such act.</p>

Appeal by the defendant, Lena Knopf, 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 28th day of August, 1900, denying her motion to vacate an attachment theretofore issued in the action.

<p>Appeal by the claimant, Charles M. Hough, trustee in bankruptcy of William W. Vaughan, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of August; 1900, denying the claimant’s motion to be relieved from so much of an alleged stipulation appearing upon the stenographer’s minutes of the proceedings before the referee herein, as follows: “ It is agreed that the referee employ a stenographer, his fees to be a part of the referee’s fees and to be paid out of the fund,” as undertakes to provide that any part of the taxable disbursements of the proceedings shall be paid out of the fund, or as undertakes in any way to control or limit the power of the court, in making the final order in these proceedings upon the referee’s report, to make such direction-as to the payment of the taxable costs and disbursements as to it shall then seem just.</p>

Appeal by the defendants,, Charles H. Knox and others,- as commissioners, constituting the municipal civil service commission of-the city of Hew 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 6th day of July, 1900, granting a peremptory writ of mandamus, requiring the defendants, as commissioners, to forthwith certify upon the payroll of the relator that the said Dennis…

<p>Duty of a lank receiving a draft for collection, where the draft received in payment , thereof is not paid.</p> <p>■ A bank which sends a draft deposited with it for collection to the drawee bank, and receives in payment the draft of the latter bank and protests it for nonpayment, but makes no effort to regain possession- of the draft which it forwarded for collection, and does ¡not protest it for non-payment or give notice of such non-payment to the person from whom it received it, or to the drawer or indorser thereof, is liable for the amount of the draft to the person from whom it received it.</p>

<p>Trade mark — imitation of cigarette packages.</p> <p>Evidence given on a motion for a temporary injunction, made in an action brought by a cigarette manufacturing corporation to restrain former employees thereof, and a cor¡Doration organized by them, from using certain packages, package labels and cigarette wrapper labels, alleged to have been prepared in imitation of those of the first-mentioned, corporation, considered in connection with the packages and labels themselves, and held to establish that the resemblance between them is such that it is calculated to, and will, in fact, deceive the ordinary buyer.</p> <p>Van Brunt, P. J., and Hatch, J., dissented.</p>

<p>Will — where the deaths did not accord with any one of several contingencies provided for in the will the property was held to pass under ihe residuary clause.</p> <p>A testatrix by the 9th clause of her will devised certain real property to her executors in trust to hold the same during the life of her son Mason, and to apply one-lialf the net income to the use of her son Mason during his life, and the other half to the use of his second wife, Louise, for so long during the life of her son Mason as she should live, and in case of Louise’s death prior to that of Mason to apply the half given to her to his usé during the remainder of his life; that if Mason should die leaving surviving him his wife Louise and his son Renshaw, the trustees should continue to hold one-half of the trust estate for the benefit of Louise until her death or remarriage, upon the happening of which event they should convey such half to Renshaw, if he should then be living, or to his issue, if he should then be dead, leaving issue surviving, or in default thereof to the children of Mason by his deceased wife Lydia; that the other half should be held for the benefit of Renshaw during his life, with, remainder to his surviving issue, or in default thereof to the issue of Mason by his first wife. The will further provided that if Mason should survive his wife Louise, and be survived by his son Renshaw, the trustees should hold the trust estate for the benefit of Renshaw during his life, with remainder to his surviving issue, or in default of such issue to the issue of Mason by his first wife; that if Louise and Renshaw should die before Mason, the trustees should convey the trust estate to the issue of Renshaw in equal shares if he left issue surviving; and if he left no issue surviving, then to convey the same to the issue of Mason by his first wife.</p> <p>The 10th clause of the will devised the rest, residue and remainder of the testatrix’s estate to her son Mason and her daughter Mary, to be divided between them in equal parts.</p> <p>The testatrix left surviving her her daughter Mary, her son Mason, his wife Louise and his son Renshaw. Renshaw and Mason died in the order named, before Louise, Renshaw leaving no issue.</p> <p>Held, that as the will in the latter event made no provision for the continuance of the trust, it terminated and the trust property passed under the residuary clause to the testatrix’s daughter Mary, and to the sole beneficiary mentioned in Mason’s will.</p>

<p>Tenue—a domestic coiporation sued by a foreign coiporation Turning a certificate of authority to do business in the State of New York — tTie place of residence of tile former is the place of trial.</p> <p>A domestic banking corporation organized under the laws of the United States and having its principal place of business in the county of Niagara, in the State of New York, which is sued by a foreign corporation, organized under the laws of the State of Pennsylvania, which has obtained a certificate authorizing it to do business in the State of New York, is entitled,, as a matter of right under section 984 of thei Code of- Civil Procedure, to have the place of trial of the .action in the county of Niagara.</p>

* Appeal by the defendant, Frank Gralleranzo,. from a judgment of the Court of General Sessions of the Peace held in, and for the city and county of Mew York in favor of the plaintiff, rendered on the 11th day of March, 1898, convicting him of the crime of receiving stolen property with knowledge that it was stolen, and also from an order denying the defendant’s motion for a new trial.

Appeal by the petitioner, Alois L. Ernst, 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 May, 1900, denying his application to compel Gilbert R. Hawes, an attorney and counselor at law, to pay over to the petitioner certain moneys collected by him.

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 17th day of January, 1900) upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 9th day of February, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, James Kilpatrick and others, from a judgment of the Supreme Court in favor .of the plaintiffs, entered in the office of tile clerk of the county of New York on the 30th day of March, 1900, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by Charles II. Knox and others, commissioners of the municipal civil service commission 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 4th day of September, 1900, granting a peremptory writ of mandamus commanding the defendants to place the name ■of the relator upon the payroll, and certify the amount of relator’s salary or compensation to the…

<p>Agreement that an attorney is to receive one■ half the recovery and is to pay the expenses of the litigation —champerty — ratification of his substitution of another attoi'ney.</p> <p>A firm of importers entered into an agreement with one J. H. Stedwell, an attorney, by which Stedwell agreed to prosecute a claim against the United States government for an excess, of custom duties exacted from the firm, for fifty per cent of the recovery. Stedwell, being unable to continue the prosecution of the action by reason of illness, substituted Reid and Drake as attorneys therein, and thereafter Reid and Drake substituted Henry de Zavala, who prosecuted the claim to .a successful conclusion.</p> <p>In an action by the surviving partners of the firm against de Zavala and the executrix of Stedwell to secure the entire amount of the recovery, it was</p> <p>Held, that as the plaintiffs, with knowledge that do Zavala was prosecuting the claim, accepted the benefit of his services, a privity of contract was created between them entitling de Zavala to enforce the contract made with Stedwell;</p> <p>That as the parties had fully performed the agreement made with Stedwell, it was not necessary to consider whether a provision in that agreement that Stedwell should pay the expenses of the litigation rendered the agreement void for champerty.</p>

<p>Agreement to pay' a judgment, recovered for a breach of a contract to furnish advertisements'— validity of receipts given in consideration thereof entitling the debtor to future advertisements — measure of damages.</p> <p>A publishing company obtained a judgment against on.e Butler founded upon the breach of a contract to furnish advertising matter for its newspaper in a sum equal to the amount of the judgment. Prior to the entry of judgment, but after Butler’s default was complete, an agreement was made between the parties by which Butler obligated himself to pay §100 a week until the judgment was discharged and by which the publishing company obligated itself to. apply each payment upon the judgment and also to deliver to Butler a receipt entitling him to publish advertisements in the newspaper in a sum equal to the. amount of the payments. Butler made payments under the agreement to the full amount of the judgment and in each instance received from the publishing company a receipt for the money applied on the judgment and also a receipt entitling him to §100 worth of advertising matter. Pursuant to the agreement the publishing company ^published some of the advertisements furnished by Butler but refused to publish others.</p> <p>In an action brought by Butler against the publishing company to recover the amount of twenty-nine receipts of §100 each which the publishing company had agreed to pay in advertising, it was</p> <p>Held, that the compromise agreement placed the parties in the same position as if the contract, upon the breach of which the judgrhent was founded, had been performed and no judgment recovered; ■</p> <p>That the fact that the publishing company could have enforced the judgment, without giving Butler an equivalent in advertising space, did not render the contract void for want of consideration, the independent contract having been, fully executed by Butler;</p> <p>That as no question was raised upon the trial as to the measure of damages the parties must be considered as having stipulated that the sums represented by the receipts measured the extent of the plaintiff’s right to recover. .</p>

Appeal by the defendant, The Greenwich Insurance1 Company, 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 24th day of April, 1900, upon the verdict of a jury rendered by direction of the court, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 23d day of April, 1900, directing judgment in favor of the plaintiffs, and also an…

<p>Contract to furnish granite — when an architect’s certificate is a condition precedent to payment—forfeiture clause applicable only to a delay, not to an abandonment of the contract — measure of damages for an abandonment.</p> <p>Where a contract, by which the party of the first part agrees to furnish the party of the second part with all the granite needed in the performance of a contract made by the latter with the city of New York, provides that before any payment shall become due the party of the first part shall furnish to the party of the second part a certificate in writing of the supervising architect, approving of the quantity and quality of the material furnished, and that eighty-five per cent of the value of the work delivered, when setas per such certificate, should be paid once a month, the balance when all the said granite work should be completed, the presentation of the architect’s certificate is a condition precedent to an effectual demand for payment under the contract.</p> <p>A clause in the contract that “ In case the said party of the first part shall fail to-fully and entirely * * * " complete within the time hereinbefore limited for such completion or delivery * * * the said party of the first part shall and will pay to the said party of the second part the sum of fifty dollars for each and every day that the said party of the first part shall be in default,” contemplates a delay in the completion of the work, and does not provide the measure of damages in the event of the utter abandonment of the contract.</p> <p>Where the party of the first part abandons the contract after partially completing the same, and granite of the same quality and color as that which has already been used cannot be procured in the open market, but only in two-quarries, one of which the party of the second part leases and opens and procures therefrom the necessary stone, the measure of damages in an action brought against the surety on the bond given to secure the faithful performance of the contract by the party of the first part, is the expense thus incurred by the party of the second part to the extent of the penalty of the bond.</p>

Appeal by Bird S. Coler, comptroller of the city and county of New York, from an order of the Surrogate’s Court of New York county, entered in said Surrogate’s Court on the 4th day of June, 1900, reversing an order which confirmed the report of the appraiser theretofore appointed in the proceeding, and determined that the property and interests mentioned and described in the report of the appraiser are not liable to taxation under the laws relating to taxable transfers of…

Appeal by Abraham Israel, the plaintiff in the first above-entitled action, 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 29th day of June, 1900, denying his motion for leave to serve an amended reply.

Appeal by the plaintiff, Albert B. Vorhis, from a judgment of the.Supreme Court in favor of the defendant's, entered in the office of the cleric of the county of Hew York on the 23d day of February, 1899, upon the decision of the court rendered after a trial before the court without a jury at the Hew York Trial Term.

Appeal by the defendants, Amos Woodruff, individually and as. trustee, etc., of Amos Woodruff, deceased, and Henry 0.

Appeal by the plaintiffs, Leon Abbett and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 11th day of June, 1900, vacating a judgment rendered on the ■24th day of February, 1891, against the defendants, and canceling the record thereof as to the defendant Emma A. Blohm.

Appeal by the defendant, The Edison Electric Illuminating Company 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 31st day of January, 1900, upon the decision of the court, rendered after a ¡trial at the New York Special Term, directing an injunction restraining the defendant from operating its power house to plaintiff’s nuisance and awarding damages to the plaintiff, with notice…

Appeal by the defendant,-' Louis Werner, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 17th day of July, 1900, granting plaintiff’s motion for a compulsory reference under section 1013 of the Code of Civil Procedure,

Appeal by the defendants, Vincent 0. King, Jr., and another, as executors and trustees under the last will and testament of Vi-n-dent 0.

<p>Contract of employment — provision entitling the employee “ to a yew’s salary or a year’s notice ” before his discharge, construed — effect of a provision for a revision of the contract.</p> <p>William T. Stead entered into a written contract with one Shaw, taking effect January 1, 1891, by which he employed Shaw to act as editor and general director of a publication, to continue so long as he conducted such publication in harmony with certain principles. The contract empowered Shaw to engage a business.manager and limited his authority to incur liability to the,sum of §20,000 for the first year. It further provided that if Stead should conclude to change the character of the publication in such a manner as would terminate Shaw’s connection with it, the latter should receive twelve months’ notice of such termination and his salary for that period of time. It also provided that’ the contract should he deemed a provisional arrangement for a year, after which time it was to be the subject of revision, based upon actual experience in the conduct of the business, and was thereafter to be placed upon a permanent basis.</p> <p>Shaw employed one Gates as business manager of the publication at a salary of §5,000 a year, and an equal interest in the profits to which Shaw was entitled, by a contract taking effect February 1, 1891. which provided that Gates “becomes entitled to a year’s salary or a year’s notice in case of any events that, would sever his connection against his own voluntary choice,” and it was apparently the intention of Shaw to put Gates upon the same basis, as business manager, with respect to the tenure of the employment, that Shaw occupied as editor and general director., -</p> <p>Held, that the contracts did not by force of their own terms terminate January 1, 1892, and that certainly, in the absence of the revision contemplated by the contract between Stead and Shaw, Gates could not lawfully he discharged on October 7, 1892, without receiving a year’s salaiy or a year’s notice, as provided in his contract.</p>

Appeal by the petitioner, Catharine M. J. Redmond, as administratrix, etc., of Rebecca D. Champlin, 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 IsTew York on the-17th day of July, 1900, denying her motion to compel Charles C. Leeds, an attorney, to pay over to her certain money alleged to have been received by him belonging to the estate of Rebecca D. Champlin.

Appeal by the defendants, John 0. Thompson and others, in the first above-entitled action, from a final judgment of the Supreme Court, entered in the office of the clerk of the county of New York, on the 1st day of December,, 1899, upon the decision of the court rendered after a trial at the New York Special Term, with notice of an intention to bring up for review upon such appeal an interlocutory judgment entered in said clerk’s office on the 30th day of June, 1899.

Appeal ■ by The Mayor, Aldermen and Commonalty -of the City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of May* 1897, denying- the application of The Mayor, Aldermen and Commonalty of the City of New York to confirm the- report of commissioners of estimate and assessment, except from that part thereof which reads as follows.: “And it is, on motion of Francis…

<p>Appeal by the plaintiff, Domenico Marando, administrator, etc., of Antonio Cantanzarite, 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 23d day of May, 1900, denying the plaintiff’s motion for a preference on the calendar.</p>

<p>Appeal by the plaintiff, Michael F. McDonald, 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 10th day of May, 1900, upon the decision of the court rendered after a trial at the New York Special Term.</p>

Appeal by the defendant, Louis Napoleon Levy, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of New York on the 3d day of March, 1900, upon the decision of the court rendered after a trial at the New York Special Term. The action was brought to compel the defendant to perform a contract, whereby he agreed to purchase from the plaintiffs a certain piece of real estate in the city of New York.

■ Appeal by the defendant, Giovanni E.-Ragone, from a judgment of the'Court of General Sessions of the Peace held in and for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 21st day of February, 1900,. upon the verdict of a jury convicting him of the crime of abduction under subdivision 1 of section 282 of the Penal Code, and also from an order entered in said clerk’s office on the 23d day of February, '…

Appeal by the plaintiff, Emily Bryant, from a final 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 3d day of May, 1900, upon the decision of the court rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint upon the merits. The complaint is set forth in the dissenting opinion of Ingraham, J.

Appeal by the defendant, Richard A. Canfield, 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 1st day of October, 1900, placing the cause upon the preferred calendar. .

.Appeal by' the defendant, John W. Gates, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of-thé county of Hew York on the 14th day 'of May, 1900,. denying the defendant’s motion to vacate an order for his examination, before trial.

<p>Receiver of a cor pm'aiion authorized “ to ca/rry on and continue the business” — he is not individually liable for goods purchased for that purpose.</p> <p>A receiver’of a corporation, authorized by the order appointing him “to carry . on and continue the business'” of the corporation, who purchases goods necessary to enable him to do so, and accepts as receiver a draft for the purchase price drawn upon him as receiver by the vendor, is not individually liable for the amount of the draft, where it appears that the vendor dealt with the receiver upon the faith of the receivership alone.</p> <p>Van Brunt, P. J., dissented.</p>

<p>Contract between lumber dealers to account for and divide the profits and losses of the export business which each might do — not void as an attempt to control the ma/rhet..</p> <p>A contract recited that the parties thereto were some of the persons and corporations engaged in the business of selling lumber for export from the port of New York to foreign countries; that they had been investing large sums of money in unnecessary duplication of stock, and that, desiring to otherwise economize in the expense of conducting that branch of their business, they agreed to sell their respective stocks of lumber purchased or held by them for the export trade to one of their number, and to lease to him their respective lumber yards or portions thereof; that each of the parties to the agreement was to continue the transaction of his or its export business as before without being required to disclose the agency of the others in the transaction of the business, and that each and all of the parties should account and divide the profits and losses; that the business should be conducted under the direction and supervision of an advisory committee, and that none of the parties was to conduct business in the export trade from New York, except under the provisions of the agreement.</p> <p>It did not appear that any of the parties to the agreement were producers of . lumber, or that they controlled the supply of export lumber in that market, nor did it appear what proportions of the trade they controlled.</p> <p>Meld, that the agreement wás not void as an attempt to control the market, fix ■ the price and destroy competition.</p>

Appeal by the plaintiff, Silas P. Wood, from a final 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 ,15 th -day of February, 1900, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the second amended complaint and dismissing the said complaint.

Appeal by the defendant, the New Jersey Steamboat Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Greene on the 27th day of November, 1899, upon the verdict of a jury, and also from so much of an order entered in said clerk’s office on the 24th day of November, 1899, as denied the defendant’s motion for a new trial made Upon the minutes. ' This appeal was transferred from the third department to the…

Appeal by the defendant, August ¡Niewahner, 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 Orange on the 5th day of May, 1900, denying the defendant’s motion to change the place of trial of the action from the county of Orange to the county of ¡New York.

Appeal by the defendants, Stoddard Hammond 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 Orange on the 11th day of January, 1900, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 11th day of January, 1900, denying the defendants’ motion for a new trial made upon the minutes, and also from an order granting the plaintiff an extra allowance of…

Appeal by the plaintiff, John F. Wiberg, as administrator, etc., of Oscar R. F. Wiberg, deceased, from a judgment of the Supreme Oourfc in favor of the defendant, entered in the office of the clerk of the .county of Kings on the 8tli day of April, 1899, upon the verdict of a jury, and also from an order entered in said clerk's office on the 24th day of March,. 1899, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, William J.. Callan, 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 14th day of April, 1900, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Kings County Trial Term, also from an order entered in said clerk’s office on the 14th day of April, 1900, dismissing the complaint, and also from an order •entered in…

Appeal by the defendants, Devine N. Hunger 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 4th day of Hay, 1900, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, Max Solomon, 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 6th day of April, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of April, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the relator, James W. Seward, from an order of the Supreme Court, made at the Westchester Special Term and entered in-the office of the cleric of the county of Westchester on the 23d day of August, 1900, denying the said relator’s application for a writ of peremptory mandamus directing the president and trustees-of the village of Sing Sing to reinstate the said relator in the position of policeman on the police force of the village of Sing Sing.

<p>Appeal by the plaintiff, the Mutual Benefit Loan and Building Company, from a judgment of the Supreme Court in favor of the defendant Mary E. Lynch, entered in the office of the clerk of the county of Kings on the 10th day of January, 1900, upon the decision of the court, rendered after a trial at the Kings County Special Term.</p> <p>The action was brought to foreclose a mortgage, and the judgment dismissed the complaint upon the merits and ordered the cancellation of the bond and mortgage.</p>

Appeal by defendants, The World’s Dispensary Medical Association 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 11th day of December, 1899, upon the verdict of a jury for $14,000, and also from an order entered in said clerk’s office on the 11th day of December, 1899, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by Adolph Lucker, the plaintiff in each of the above-entitled actions, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, fourth district, in favor of the defendants, entered in the office of the clerk of said court on the 10th day of August, 1900, dismissing the complaint.

<p>• Appeal by the plaintiff, 0. Albert Jacob, doing business as Jacob Brothers, from a judgment of the Municipal Court of the •city of Dew York, borough of Brooklyn, second district, rendered •on the 14th day of -March, 1900.</p>

<p>Appeal by the defendant, Philip Lewinski, from a judgment .of the Municipal Court of the city of New York, borough of Brooklyn, first district, in favor of the plaintiff, rendered on the 12th day •of June, 1900.</p>

Appeal by the plaintiffs, Charles Deuterman and others, as executors, etc., of Charles Deuterman, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 3d day of January, 1898, upon the decision of the court rendered after a trial at the Wéstchester Special Term.

Appeal by Joseph W. Hicks, as executor, etc., of John R. Rem-sen, deceased, from an order of the Surrogate’s Court of the county of Queens, entered in said Surrogate’s Court on the '13th day of April, 1900, directing him to- pay to Carrie A. E. Townsend or her attorney the sum of $2,130.11, the amount remaining unpaid on a judgment recovered by her against the said Joseph W. Hicks, as executor, etc., of John R. Remsen, deceased.

<p>Appeal by the defendant, Fritz Behrend, from an order of the Supreme Court, made at the Richmond Trial Term and entered in the office of the clerk of the county of Richmond on the 5th day of January, 1900, setting aside a verdict in favor of the defendant as contrary to the evidence and the law, and granting a new trial.</p>

Appeal by the relator, James W. Wébb, from an order of the Supreme Court, made at the Kings County Special Term on the 13th day of April, 190.0, and entered in the office of the clerk of the-county of Kings denying the relator’s motion for a peremptory writ of mandamus requiring John F. Clarke to reinstate the relator in the position he formerly held in the district attorney’s office of Kings county and to certify the name of the relator to the comptroller of the city of…

Appeal by the plaintiff, Hilda Morrow, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 16th day of April, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of March, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Brooklyn Heights Railroad Company, from an. order of the Supreme Court, entered in the office of the clerk of the county of Kings on the 14th day of February, 1900, vacating and setting aside a prior order, dismissing the plaintiff’s complaint.</p>

Appeal by the plaintiff, Nicholas W. Nostrand, from a judgment of the Municipal Court of the city of New York, borough of Queens, second district, in favor of the defendant, rendered on the 1st day of August, 1900, in an action to recover rent.

Appeal by the defendant, Gertrude M. Mount, individually and as executrix, etc., of Henry R. Mount, deceased, from, so much of an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 9tn day of September, 1898, upon the report of a referee* as directs the entry of a money judgment against Henry R. Mount, personally.

Appeal by the plaintiff, Smith Lent, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Westchester on the 17th day of April, 1900, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on the ground that the plaintiff had failed to establish a cause of action, and also from an order entered in said cleric’s office on the 17th day of April, 1900, dismiss- . ing the…