Volume 54 — New York Supplement

<p>1. Constitutional Law—Vested Rights—Officers—Salaries.</p> <p>Commissioners in street-opening proceedings not being constitutional officers, their unearned compensation may be reduced during their term of office, since it relates to a matter of procedure, rather than of substantive right.</p> <p>B. Greater New York — Street-Opening Proceedings — Compensation of Commissioners.</p> <p>Under Greater New York Charter, § 998 (Laws 1897, c. 378), fixing the compensation of commissioners in street-opening proceedings at six dollars per diem, commissioners appointed before the charter took effect are entitled to only said sum for services performed after the taking effect of the charter, since said provision applies to proceedings instituted under prior charter provisions under section 1608, repealing Laws 1882, c. 410, § 1000 (Consolidation Act), so far as inconsistent with the new charter, and continuing it where its provisions are identical.</p> <p>8. Same—Vested Rights.</p> <p>And this in spite oí section 1614, providing that the charter shall not impair rights vested or accruing before its taking effect, and that all proceedings under Consolidation Act (Laws 1882, c. 410) shall be prosecuted, the same as under the laws then existing, unless otherwise provided, since such commissioners have no vested right to their future un-. earned compensation.</p> <p>4. Same.</p> <p>In Greater New York Charter, c. 21, § 1448, excepting pending street-opening proceedings from the provisions of said chapter, and providing that they shall be conducted as if this ‘'act” had not been passed, the word “act” is used either interchangeably with “chapter” or else inadvertently.</p>

Action by Ferdinand M. Blumenthal and others against Hoses Michel and others. From judgment for plaintiffs after trial, defendants appeal.

Application by the school board of the borough of Brooklyn for a peremptory writ of mandamus against the board of education of the city of New York and others. From an order of the special term (53 N. Y. Supp. 1000) granting the wifit, defendants appeal.

<p>Proceeding by the people, on the relation of one Bicinelli, against one Dunn, for habeas corpus.</p>

. Petition by the people, on the relation of Severin Warschauer, against William Dalton, as commissioner of water supply in the city of New York, for mandamus to compel respondent to reinstate relator in the position of inspector of water supply to shipping in the department of water supply. From an order dismissing the petition, relator appeals.

<p>1. NONSurr—Review—Evidence.</p> <p>On review of a judgment of nonsuit, the evidence should be considered in the manner most favorable to plaintiff, who is entitled to the benefit of any inference of fact that can fairly be drawn from it.</p> <p>2. Negligence—Injuries—Evidence—Other. Injuries.</p> <p>In an action for damages for injuries caused by the dangerous construction of an elevator door, evidence of previous accidents caused by the ■ door, brought to notice of owner of building, is admissible.</p> <p>3. Trial—Question for Jury.</p> <p>Where different inferences might be drawn from the testimony on a « certain point, the question must be submitted to a jury.</p> <p>4. Elevators—Safety—Question for Jury.</p> <p>Whether an elevator door, which closes by pneumatic pressure operated by button in the floor, and which closes with force when the operator’s foot is removed from the button, and which, when it has once started to close, cannot be stopped, is a dangerous appliance, is for the jury.</p> <p>5. Master and Servant—Negligence—Fellow Servant.</p> <p>Where the negligence of a master and co-servant co-operate in causing an injury to an employé, the fact that the co-servant is a fellow servant does not relieve the master from liability.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by Jacob Schattman and others against the American Credit Indemnity Company. From a judgment entered on á verdict for defendant, plaintiffs appeal.</p>

Action by John Kohlman and William Spreen against Walter Selvage, as general manager of certain underwriters. There was a judgment for defendant, and plaintiffs appeal. The action is to recover upon a policy of fire insurance issued to the plaintiffs upon property placed in Waliabout Market, Brooklyn, in a two-story building facing on two streets. The plaintiffs used the greater part of the inside of the building for their busine'ss as dealers in wood and willow ware.

<p>Appeal from judgment on report of referee.</p> <p>Action by Simon Blaut against Margaret L. Fletcher, impleaded with Robert Fletcher. From a judgment entered on report of referee for plaintiff, Margaret Fletcher appeals.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by Henry B. Dorney against Hugh O’Neill. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.</p>

Action by Edwin Gomez, Jr., and others, against Horatio Gomez* From parts of a judgment confirming the report of a referee to take and state the account of defendant as trustee under the will of Kelty Gomez, deceased, plaintiffs appeal. The opinion of the referee is as follows: The defendant presented his account with the vouchers, and the plaintiffs then made twenty-one objections thereto, but subsequently determined to-press only eight of those objections.

<p>Appeal from special term, New York county.</p> <p>Action by John J. Crawford against Lillie Winston and others. From an interlocutory judgment on demurrer for defendants, the complainant appeals.</p>

<p>Railroads—Duty to Persons Using Stations—Evidence.</p> <p>Plaintiff went to a railroad depot to take a meal at a restaurant therein. He was not, and did not intend to become, a passenger. As he left, be stepped on a banana on the steps, slipped, and was injured. In the depot, nearly opposite the door where he departed, was a large electric light, and outside were two more. Plaintiff and his wife, in passing through the door, intercepted the light so that the steps were in darkness. The railroad company was not responsible for placing the banana there. Held not to show negligence on the part of the railroad company.</p>

<p>Sale—Question for Jury.</p> <p>Plaintiffs assignor performed services for defendant, for which he was to receive a credit if he purchased launches of a certain value from him. Seven years later he made a contract to buy launches of the required price. Nothing was said at the time about deducting the allowance, and defendant’s officer testified that the buyer presented himself under a fictitious name, and was told that the sale had to be for cash, and that was the inducement for fixing the price at said sum. Held, that the question whether there was a contract of sale was for the jury.</p> <p>McLaughlin, J., dissenting.</p>

<p>Appeal from special term.</p> <p>Appeal from an order directing Warren Sage to pay money to J. Edward Weld, receiver.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by James Bradley, administrator, against the Second Avenue Railroad Company. From a judgment dismissing the complaint, plaintiff appeals.</p>

Appeal, from trial' term, New York county. Action by August Dietz against Andrew B. Yetter. There was a judgment» for plaintiff, and defendant appeals.

Appeals from trial term, New York county. Action by Thomas Kennedy against the mayor, aldermen, and commonalty of the city of New York. From a judgment for defendant entered on the dismissal of the complaint at the trial term, and from an order denying plaintiff’s motion for a rehearing of defendant’s motion at trial term, which resulted in the dismissal, and for leave to amend the complaint (41 N. Y. Supp. 1077), plaintiff brings separate appeals.

Certiorari by the people, on the relation of Walter R Ballard, against Frank Moss and others, comprising the board of police of the police department of the city of New York.

Action by Samuel Faile and another against Henry J. Crawford for specific performance of a contract for sale of land. Decree for plaintiffs. Modified on appeal (52 N. Y. Supp. 353), and delivery of deed ordered. Motion by defendant to be relieved from the purchase denied, and defendant renews application.

Action by the Riverside Bank against the Woodhaven Junction Land Company and others to recover on a check the payment of which the land company had stopped. From a judgment in favor of plaintiff, defendant land company appeals.

Application of the Congregation Unitarian Society of Bernardston, against Lucy Ann Hale and another, as executrix and executor uf Joseph P. Hale, deceased, for leave to issue execution on a certain judgment recovered by plaintiff against defendants. From an order directing an intermediate accounting to determine the condition of the estate, defendants appeal.

<p>Employment—Liability for Services—Evidence.</p> <p>Defendant corporation, engaged in selling the produce of a manufacturing corporation on a certain system, is not liable for plaintiff’s services in obtaining contracts for another corporation, selling such produce on another system, from persons who would not buy on defendant’s system; such corporation not being shown to be a branch or agent of defendant, and his testimony that he was employed in defendant’s behalf, with the knowledge of its president, by its vice president, who was also interested in the manufacturing company, being denied by them; and the manager of the other selling corporation, who had previously been defendant’s secretary, and who induced plaintiff to discontinue suit against the manufacturing corporation for the services, by representations that defendant was the responsible party, having no authority to make the representations for defendant</p>

Action by George Keister against William Eankin. There was a judgment for plaintiff, and defendant appealed. Affirmed on conditions. 51 N. Y. Supp. 634. From an order denying a new trial defendant appeals.

<p>Appeal from trial term, New York county.</p> <p>Action by the Millie Iron-Mining Company against Ernst and Karl Thalman. There was a judgment for defendants, and plaintiff' appeals.</p>

Action by Edward A. Calaban against the mayor, aldermen, and commonalty of the city of New York. From judgment on a verdict for plaintiff, and from an order denying a new trial, defendant appeals.

Action by Emma Merges against Mary Ringler and others, and! by Jacob F. Oppermann, by J. Aspinwall Hodge, Jr., his guardian ad litem, against Phillipine Oppermann and others, for partition and incidental relief. Under a. decree of partition, the premises were sold to Robert J. King, Jr., who moved to be relieved from his purchase.

<p>Appeal from special term.</p> <p>Action by Philip Donohoe against James Meeker and others. From orders for plaintiff, certain defendants appeal.</p>

Six actions in ejectment by John Townshend against Eleanor Keenan and others, in each of which a verdict was rendered for plaintiff, February 15, 1895. Judgment for possession and for costs against all the defendants was entered, and the judgment roll filed, February 18, 1895.

Action by Theodore W. Stemmier and another against the mayor, aldermen, and commonalty of the city of New York. From a judgment on a verdict for plaintiffs, directed by the court, defendant appeals.

<p>1. Maritime Insurance—Unseaworthiness.</p> <p>Though the policy sued on is a time policy, and in such case the fact that the vessel was unseaworthy at commencement of the voyage does not necessarily preclude recovery, plaintiff is bound, in case of such unseaworthiness, to show active diligence in reference to repairs.</p> <p>2. Same—Instruction.</p> <p>Defendant is entitled to an instruction, even in action on a time policy, . that the fact of a vessel, shortly after sailing, becoming leaky, and unfit to perform her voyage, and sinking, without encountering any peril or storm, is presumptive evidence of unseaworthiness at beginning of the voyage.</p>

<p>Appeal from special term.</p> <p>Proceedings by the mayor, aldermen, and commonalty of the city of New York for laying out a park. After discontinuance thereof by petitioner’s successor, an order was made requiring the payment of costs as a condition precedent, and the city of New York appeals.</p>

Action for divorce by Walker Winston against Lillie Winston, From a judgment dismissing the complaint, entered upon report.of a, referee, both parties appeal.

<p>Railroads—Liability for Stock Killed.</p> <p>A railroad company is not liable for the value of stock of a tenant killed by it, where the stock entered on its tracks through a panel of its fence chopped down by his landlord’s son.</p>

<p>Insurance—Passenger on Railroad—Construction of Policy.</p> <p>Under a clause in a policy providing for double liability in case insured is killed while riding as a passenger “in any passenger conveyance,” the insurer is not liable where the insured was killed while riding on the uninclosed platform of a railroad car.</p>

Separate actions by Henry L. Herbert and another, and Samuel W. Castner and another, against John Duryea. Judgment for plaintiffs, and defendant appeals.

<p>Appeal from special term, New York county.</p> <p>Actions by the Irving National Bank against "Wilson Bros. Wooden Ware & Toy Company. From an order in each case vacating an attachment, plaintiff appeals.</p>

Action by James E. Lyon against Mary Brown. From a judgment entered on a verdict for defendant on the second cause of action, and from an order denying a new trial, plaintiff appeals.

Action by William E. D. Stokes against Edward S. Stokes. ■ From an order granting defendant a new trial, asked for on the ground of mistake, surprise, and newly-discovered evidence, plaintiff appeals:

Action by James W. Wheelock against William M. Chapman, attorney and manager of the Capitol Fire Lloyd’s of New York. From a judgment for plaintiff entered on the decision of the court after trial, a jury having been waived, defendant appeals.

Action by Jennie Margaret Montgomery, an infant, by her guardian ad litem, against Lyman G. Bloomingdale and another. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Action by Harry H. Kutner against James C. Fargo, as president of the American Express Company. From an order setting aside a verdict and granting a new trial (45 N. Y. Supp. 753), plaintiff appeals.

<p>1. Appeal—Finding op Fact by Court.</p> <p>Where both parties moved for verdict, and neither requested to go to the jury, the court’s decisions of questions of fact must stand, unless some fact not proved must exist to sustain the judgment.</p> <p>2. Same—Bond—Stay op Execution—Consideration.</p> <p>A judgment provided that defendants should pay a certain sum to a trust company for the pro rata benefit of plaintiff and others. A separate clause adjudged that plaintiff recover of defendants a certain sum as costs. Execution issued, and a bond for costs was executed; no reference being made to the principal judgment, which the trust company-proceeded to enforce. Defendants stayed this proceeding by furnishing, another bond. The judgment being affirmed on appeal, the trust company secured a judgment on the latter bond for the full amount, in which* it was recited that the original plaintiff had no interest in the recovery, except pro rata with the beneficiaries in the first judgment. Thereupon plaintiff sued on the first bond for costs. Held, that the fact that this-bond was ineffectual to stay execution did not make it without eonsideration, since it was effectual to stay proceedings to collect the costs.</p> <p>8. Same.</p> <p>The bond was not superseded by the subsequent bond given to restrain the trust company from enforcing the judgment.</p>

Bill by Winthrop A. Ckanler against the New York Elevated Bail-road Company and another. There was a judgment for plaintiff, and ■defendants appeal.

Action by Benjamin F. De Klyn to foreclose a mechanic’s lien against Joseph H. Simpson and others. From a judgment for plaintiff, entered on a report of a referee, defendant Annie W. Gould appeals.

Application by William H. Cunliffe for mandamus to compel J. Sergeant Cram and others, commissioners of docks of the city of Hew York, to reinstate relator. From judgment dismissing relator’s alternative writ, he appeals.

<p>1. Vendor and Purchaser—Marketable Title—Adverse Possession.</p> <p>A person contracting to sell land does not show that he has a marketable title by proof that he has beeh in undisturbed possession for more than 20 years, without proof that the owner was not under disability during such period, and that the possession had been in hostility to him.</p> <p>2. Same—Parol Evidence.</p> <p>Equity will not force on a purchaser, against his will, a title based on facts to be determined by parol evidence, unless it was certain that the evidence could not be contradicted.</p>

<p>Appeal from special term, New York county.</p> <p>Action by the Saugerties Bank against James O. Mack and another. Judgment was for plaintiff, and defendants appeal.</p>

Action by Lizzie H. Zerega against Ernst Will to recover rent. From a judgment for plaintiff entered upon a verdict directed'by the court, the defendant appeals.

Action Tby Jenyns C. Battersby against Peter F. Collier. Complaint dismissed before the introduction of any evidence, on the ground that the facts stated therein did not constitute a cause of action. Motion for a new trial, on exceptions to said ruling, ordered to be heard in the first instance at the appellate division, and from that part of said order dismissing his complaint plaintiff appeals.

Application by the village of Waverly for a writ of mandamus to require the Waverly & State Line Bailway Company and its lessee, the Lehigh Valley Bailroad Company, and the Erie Bailroad Company, to take a certain street described in the proceedings across their tracks. From orders granting the writ, defendants appeal. The tracks of the Brie Railway and the Waverly & State Line Railway run approximately east and west through the village of Waverly.

Action by Alfred J. Tyrrell against the mayor, aldermen, and commonalty of the city of New York. From a judgment in favor of defendant, plaintiff- appeals.

Action by Arckanna Ritchie against Elizabeth M. Bennett, as administratrix of the estate of Charles H. Cleveland, deceased. There-was a judgment for defendant, and plaintiff appeals.

Action by the Standard Underground Cable Company against Harry G. Stone. There was a judgment for plaintiff, and defendant appeals..

<p>Appeal from special term, St. Lawrence county.</p> <p>Action by Peter O’Clair against Ledyard P. Hale, as receiver of the Canton Lumber Company. From an order denying the lien (54 N. Y. Supp. 386), plaintiff appeals.</p>

Action by Alexander Keegan, Jr., against the Third Avenue Railroad Company and another. From a judgment for plaintiff, and an order denying a new trial, defendants appeal.

Action by Martha Elizabeth Becker against the Albany Railway for damages for personal injuries. Trial by jury, and verdict for $10,000 in favor of plaintiff. From the judgment entered on the .verdict, and from an order denying a new trial, defendant appeals.

Bill by Benjamin Empie against George H. Empie and others. There was a decree for plaintiff, and defendants appeal. On the 20th day of February, 1882, the plaintiff and his wife, Mary, conveyed to the defendant George H. Empie his farm, in the county of Schoharie, N. Y., worth $6,000, and the personal property thereon.

Action by the city of Johnstown against Adam Frederick and another for the condemnation of real estate. There was an order taxing costs against plaintiff, from which it appeals.

<p>1. Criminal Law—Appeal—Notice—Service.</p> <p>Accused, on conviction, delivered affidavit and allowance of appeal to-the magistrate or clerk of the court rendering the judgment within five days after allowance of appeal, as provided by Code Cr. Proc. § 755. Held, that the appeal was perfected, though he did not serve a copy of" the affidavit and a notice of the allowance of appeal on the district attorney, as provided by Code Cr. Proc. § 752, as amended by Laws 1897, c. 536.</p> <p>2. Same—Warrant.</p> <p>The issuance of a warrant is unnecessary, after an accused has been-lawfully arrested and brought before a magistrate without a warrant.</p> <p>3. Same—Intoxication—Indictment.</p> <p>Liquor Tax Law, § 35, subd. 2, as amended by Laws 1897, c. 312, provides that courts of special sessions shall have conclusive jurisdiction of complaints for violation of section 40, relating to intoxication in public places. Held,, that Code Or. Proc. §§ 56, 58, providing, in certain crimes, not including drunkenness, for a certificate authorizing a charge to be prosecuted by indictment, does not apply to proceedings before the special sessions for intoxication in a public place.</p> <p>4. Same—Excessive Sentence.</p> <p>Defendant was sentenced to imprisonment in a county penitentiary for' 90 days for being intoxicated in a public place. He did not belong to the criminal classes, and did no injury to person or property. Held, that the sentence should be reduced to 60 days; Code Cr. Proc. § 764, giving the-court power to modify a sentence in furtherance of justice.</p>

To a judgment in favor of Joseph F. Sinnott, as surviving partner of Moore & Sinnott, against Henry Sammis, the plaintiff instituted supplementary proceedings against the First National Bank of Hempstead, as a party indebted to the judgment debtor. He obtained an order discontinuing the proceedings, and the judgment debtor moved to compel the plaintiff’s attorney to file the same. Motion was denied, and the judgment debtor appeals.

<p>Trespass—Title—Evidence—Death—Intestacy.</p> <p>The recital in a deed that the grantors are the heirs of the owner, and that he died intestate, is sufficient evidence of those facts to entitle one lawfully in possession under a land contract to bring trespass against one having no claim of title or right of possession, where for 80 years plaintiff’s grantors relied for title on a chain of deeds reaching back to the one mentioned.</p>

Action by William J. Fitzpatrick against Charles H. Moses and •others. From an order denying a substitution as plaintiff of Frank H. Parsons, receiver of plaintiff, duly appointed in supplementary proceedings to aid execution, the receiver appeals.

Action by Sarah 0. Douglass and another, executors, against William B. Halstead and others. From an order of the supreme court entered on July 9, 1898, adjudging defendant Halstead guilty of contempt of court in violating an injunction, and ordering him to pay a fine of $150, and stand committed to jail until paid, he appeals.

Certiorari by the people, on the relation of Jacob S. McMillen, and others against Albert Vanderpool and others, composing the town board of the town of New Scotland, to review their disallowance of a claim.

Action by George L. Page against the president, managers, and company of the Delaware & Hudson Canal Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

Action by Michael J. White, as administrator of the goods, chattels, and credits of John White, deceased, against the Albany Railway. From a judgment entered on a verdict for plaintiff, and from a motion denying a new trial, defendant appeals.

<p>1. Contract—Construction.</p> <p>Where the contract for the purchase of machinery is contained in the letters which passed between the parties thereto, its construction is for the court.</p> <p>2. Sale—Warranty.</p> <p>The fact that a contract for the purchase of machinery, accompanied with a warranty as to what the machinery would do, provided that the buyer might at the end of 30 days return the machinery, if it proved not equal to the warranty, does not bar an action for damages suffered by a breach of the warranty, inasmuch as the privilege to return the machinery is but a cumulative remedy, which may be waived.</p> <p>8. Same—Acceptance.</p> <p>Before the vendee purchased a machine, he was to have an opportunity to test it for 30 days. If, after such test, he was satisfied that the machine would operate as the seller had guarantied, the sale would be complete; but, if not so satisfied, the machine was to be returned to the seller on board cars where vendee resided, At the end of the 30 days, vendee, instead of notifying the seller that the machine was not satisfactory, and returning it on board cars, ordered two more machines similar to the one tested. Held, that there was an acceptance of the machine by vendee at the end of the 30 days.</p> <p>4. Same—Construction oe Contract.</p> <p>The sale so made was one purely on test, and not on a warranty.</p> <p>G. Same—Return oe Goods.</p> <p>Where a contract of sale of a machine with a warranty contained a specific provision that the machine should be returned, if it proved on a test of 30 days to be not as represented, vendee cannot affirm the contract to the extent of the sale and warranty, and ignore the portion which obligates the return of the machinery after the test, if unsatisfactory.</p>

Action by. Charles H. Lewis against the Binghamton Railroad Company. From a judgment for plaintiff, defendant appeals. The plaintiff was employed by a contractor at work in paving a street for the city of Binghamton. On either side of each rail of the defendant’s railway which ran through that street, for a foot or so, it was paved with stones, and the cracks between the stones were filled with hot tar or asphalt.

<p>Appeal from special term, Cortland county.</p> <p>■Action by Floyd E. Gates against Alvira B. Gates and others. Defendants’ demurrer to the complaint was overruled, and they appeal.</p>

Action by Frederick Hinckel against Jennie B. Stevens to enjoin ■defendant from taking ice from a stream on plaintiff’s premises, and from interfering with plaintiff’s taking it therefrom. From a judgment for plaintiff, defendant appeals.

Action by one Logan against Moore & Schley, a co-partnership, and others, to readjust the accounts of a syndicate. Defendants demur on the grounds “that the complaint fails to state facts sufficient to constitute a cause of action against said defendants, or any of .them, and that sixteen specified causes of action have been improp-' erly united.”

<p>Appeal from special term.</p> <p>Action by Martin Shaver against Ella G-. Shaver, as administratrix of Charles H. Shaver, deceased, to recover certain insurance. From a judgment for defendant, plaintiff appeals.</p>

<p>1: Contracts—Pleading—Consideration.</p> <p>When the instrument sued on is set out in the complaint, and shows a consideration on its face, none other need be pleaded.</p> <p>& Same.</p> <p>A contract for the payment of money, providing that “all former agreements, both written and verbal, between [the parties],—particularly agreement of April, 1894,—are hereby rendered null and void,” and signed by both parties, imports a consideration, in the mutual promise to cancel the former agreements.</p>

<p>Appeal from Chemung county court.</p> <p>Action by Miner E. Sherman against Andrew J. Pedrick and others, ' originally brought in the city court of Elmira. Judgment was rendered therein for the plaintiff. The defendants appealed from such judgment to the county court of Chemung county, and, upon a new trial in said county court, judgment was entered in favor of the plaintiff for $838.65, debt and costs, upon a verdict directed by the court From the judgment of the county court, and from an order denying a new trial, this appeal is brought.</p>

<p>Appeal from Sullivan county court.</p> <p>Action by Alden I. Swan against Edward Keough. There was a judgment for defendant, and plaintiff appeals.</p>

Action by Charles E. Dickinson, as assignee for creditors of the ■estate of Eugene M. Earle and others, against Eugene M. Earle and •others, for the settlement of accounts as assignee. ■ From an order appointing a receiver and restraining plaintiff from selling or interfering with the property assigned, he appeals.

<p>Motion for reargument.</p>

Action by Henry Gerlach against William Brandreth, as president, and others, as trustees and officers, of the village of Sing Sing, to cancel certain village drafts alleged to be void, and to enjoin payment of the same. There was a judgment dismissing the complaint, and plaintiff appeals.

<p>Trial—Striking prom Calendar—Action in Tort—Parties.</p> <p>Under Code Civ. Proc. § 456, providing that an action in tort may proceed against such defendants as have been served, though summons issued against all, a cause against defendant tort feasors cannot be stricken from the calendar because one of them has not yet been served, on the theory that he was a necessary party.</p>

Action by Mary Bullenkamp against Annie Bullenkamp for a re-conveyance of lands. From a judgment in favor of plaintiff, but imposing certain conditions to be complied with by plaintiff, both parties appeal.

Action by Jacob Worth against the city of Brooklyn to recover moneys paid out by plaintiff, as county clerk of Kings county, for restoring and rearranging papers and documents in the county clerk’s office, which had become scattered and injured. There was a judgment for plaintiff, and defendant appeals.

<p>Sales—Delivery to Carrier—Acceptance by Buyer—Statute of Frauds.</p> <p>Where one purchased goods above $50 in value, under a verbal contract, and consigned them by a common carrier to another, according to an agreement that the latter should buy the goods if, on inspection, they should be satisfactory, the delivery to the common carrier does not constitute such a delivery and acceptance to and by the latter person, under the statute of frauds, as to pass the title to the goods to him.</p>

<p>Personal Transactions with Deceased Persons—Witness—Competency.</p> <p>Under Code Civ. Proc. § 829, excluding a party from testifying against the administrator of a deceased person concerning a personal transaction between them, a defendant, called by a plaintiff administrator to prove a debt of the intestate against him, may, on cross-examination, show that he paid the debt to deceased, and this though the payment was a separate and subsequent transaction, since the administrator, having indorsed his credibility, is estopped to question it by interposing the statute.</p> <p>Merwin and Putnam, JJ., dissenting.</p>

. Action by Mary A. Dean, as administratrix of the goods, chattels, and credits of William H. Dean, deceased, against the Third Avenue Railroad Company. From a judgment entered on a verdict for plaintiff, and from an order denying a new trial, defendant appeals.

<p>1. Compromise and Settlement—Adjustment op Accounts.</p> <p>Plaintiffs contracted to build defendant’s house, for actual cost of labor and materials and 10 per cent, profit, guarantying that the total cost should not exceed a certain amount. After several payments on account, the parties disagreed, and plaintiffs quit work. Negotiations between the parties resulted in a settlement of differences, and plaintiffs signed a paper agreeing that there was a certain balance due, “leaving the utmost that we can call upon you to pay us four thousand and forty-six dollars,” and concluding, “All extras have been adjusted between us, and no more will be charged to you unless you order them in writing.” Held, that the latter transaction was a settlement and adjustment of all matters up to date, and was the basis on which the rights of the parties were to be determined, and therefore evidence that bills rendered before that time included items not included in the contract and not adjusted in the agreement was inadmissible.</p> <p>2. Same—Unliquidated Demand.</p> <p>A demand for a balance due on a building contract which was for no fixed price, but merely limited the cost of the building to a certain sum, is an unliquidated demand, within the rule that, when a claim is unliquidated and there is a bona fide dispute as to the amount of liability, an adjustment and settlement of the accounts by the parties is binding.</p>

<p>■Gifts—Deposits in Trust—Intention.</p> <p>Plaintiff deposited his own money in his name in trust for his son and daughter, who gave him powers of attorney to control the account. The daughter indorsed blank checks at request ot plaintiff, who used the account without reference to, or consultation with, either of his children. All checks were drawn by plaintiff, even for the personal expenses of the daughter, and the pass book remained in his possession. Difficulties arising between the father and daughter, the latter revoked the power of attorney, and gave notice to the trust company of the revocation, but concealed the fact from plaintiff, who continued to deposit money and draw checks as before. Plaintiff testified that his daughter asked him to make the deposit in the name of herself and brother, and that he consented on condition that powers of attorney be given, at the same time telling her that he should own the account. The daughter testified that plaintiff told her at the time of the deposit that half of it was an absolute gift to her. Held that, as between father and daughter, a decision for the latter for half of the deposit on hand will be reversed, since his acts, and also hers, fully support plaintiff’s contention that there was no absolute gift.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by Frederick Kalfur, an infant, by Frederick W. Kalfur, his guardian ad litem, against the Broadway Ferry & Metropolitan Avenue Railroad Company. From a judgment for plaintiff, and an order denying a new trial (51 N. Y. Supp. 179), defendant appeals.</p>

Action by Hugo Jaeckel against the American Credit Indemnity Company of Hew York. From a judgment entered on the decision of a referee for plaintiff, defendant appeals.

Bill by Emmett E. Waite and John T. Yermett against the Trustees of the Estate and Property of the Diocesan Convention of New York, D. D. Tallman, and others. There was decree for plaintiffs, and defendant Tallman appeals.

<p>Impeachment op Witness.</p> <p>A witness cannot be discredited by proof of his having been indicted for a crime.</p>

<p>Defendants move for a reargument, or for leave to appeal to the court of appeals on a certified question.</p>

In proceedings for the opening of Lexington avenue, an order allowing James A. Deering, attorney for John Schreyer, an interested property owner, fees from the award granted said Schreyer, was reversed by the appellate division (52 N. Y. Supp. 203), and the clerk taxed costs on appeal as on a case-made, and refused to tax the costs for the proceeding in the court below. Petitioner and respondent both moved for a retaxation, which was denied, and they appeal.

Action by Frank M. Montignani against the E. V. Crandall Company, Eben V. Crandall, and A. Val Woodruff. From a judgment for plaintiff, and an order denying a new trial, defendants appeal.

Application by the people, on relation of Martin Heermance and others, constituting the state board of tax commissioners, against Addison E. Dederick, as assessor of the city of Kingston, for a writ of mandamus. From an order of the special term denying the writ, petitioners appeal.

Action by William Ferris and another, as administrators of the -estate of Mary A. Ferris, deceased, against Eugene Ferris, Jr., in-dividually and as executor of the estate of Eugene Ferris, deceased, for an accounting.

Clark H. McDonald was removed from the office of superintendent of the Harlem river driveway by a temporary abolition of the office, and brought application for a writ of alternative mandamus. Application denied, and relator appeals.

<p>Appeal from trial term.</p> <p>Action by Horman Hubbard against Henry T. Chapman, Jr. There was a judgment for plaintiff, and defendant appeals.</p>

Action by Isaac D. Place against James H. Conklin and others to recover money paid by plaintiff’s wife to a marriage broker for procuring the marriage. Judgment for plaintiff was entered March 23, 1898, upon a decision rendered at special term (51 H. Y. Supp. 407), and defendants James H. and Mary P. Conklin appeal.

Injunction proceedings by Frederick B. De Berard against F. E. Prial and others being dismissed, a reference to assess defendants’ damages on the bond, for the writ was granted, and plaintiff appeals.

<p>Appeal from special term, Albany county.</p> <p>Action by Paul Snyder against James Mack and others. From an order refusing a change of venue, defendants appeal.</p>

Action by Margaret E. Littlejohn against Lucy A. L. Leffingwell and another. From an order denying a motion to vacate an order of publication against them, and an order denying a motion to vacate service of the summons under said order of publication, defendant Leffingwell and another appeal.

<p>Appeal from special term, Orange county.</p> <p>Action by Balph Wisner against Conrad Schopp. From a judgment for plaintiff and an order denying a new trial, defendant appeals.</p>

Judicial settlement of the accounts of Matilda B. Wescott, administratrix of the estate of Adaline M. Wescott, deceased. A decree was rendered, and there was an appeal.

Action by Oscar Johnson against the Brooklyn Heights Railroad Company to recover damages for personal injuries sustained by reason of defendant’s negligence. From a judgment in favor of plaintiff, and an order denying a motion for a new trial on the minutes, defendant appeals.

Action by Adele W. Leach against Friend C. Haight and another. From an order denying a motion to vacate an order for their examination before trial, defendants appeal.

Action by Maud S. Hadel against Henry C. Fichten. From a judgment for plaintiff entered June 24, 1898, and from an order denying defendant’s motion for a new trial, he appeals.

<p>Injury to Employe—Defective Appliances.</p> <p>Plaintiff, an empioyé of defendant railroad.company, was injured, while unloading a car standing at a station, by the slipping of an iron plate or plank used to connect the car with the station platform, over which hand trucks were run in removing the freight. The plank was not defective, except that it was not furnished with hooks or spikes to prevent its slipping. Held that, since it was reasonably safe and suitable for the purposes for which it was intended, defendant was not required to supply it with hooks or spikes, in order to relieve itself from liability, and that plaintiff could not recover.</p>

<p>Oontemft—Receivers.</p> <p>It is a contempt for a judgment debtor, after a receiver has been put in possession of his business, to interfere with the receiver in his possession of the property.</p>

<p>Pleading—Answers—Verification—Default.</p> <p>Where an amended complaint accepted by defendant was verified, and required defendant to serve a verified amended answer, it was proper to enter a default judgment, where the amended answer served was not verified.</p>

Action by Agnes Fuller against Aaron M. Dederick for personal injuries, caused by defendant’s negligence. From a judgment in favor of plaintiff, defendant appeals.

Action by Mary Williams against the Metropolitan Life Insurance Company. There was a judgment for plaintiff, from which and an order denying a new trial defendant appeals.

Action by Marie Woodburn against Cornelius Hyatt. From an order continuing an injunction against defendant during the pendency <of the action, he appeals.

Action by the Staten Island Midland Bailroad Company against the Staten Island Electric Bailroad Company to enforce a right of common trackage. Prom an order granting a preliminary injunction, . defendant appeals.

Action by Mary I. Young, as administratrix, against the Nassau Electric Railroad Company. From an order vacating an order permitting plaintiff to sue as a poor person, she appeals.

<p>Auction'Sale—Statute op Frauds.</p> <p>Just before a sale of real estate at auction, the vendor and the auctioneer signed the terms of sale, and attached thereto a poster, which had been circulated, and which contained a diagram of the property. At the sale these terms were read to the assembled buyers, and when defendant’s bid was accepted the auctioneer, in the vendor’s presence, wrote on said diagram defendant’s name and the amount of the bid. held, in an action by the vendor to enforce the sale, that the terms, -diagram, and entries thereon were sufficient, within 2 Rev. St. (9th Ed.) p. 1885, §§ 8, 9, providing that every contract for the sale of land shall be void unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and signed by the vendor or his agent.</p>

<p>Appeal from trial term.</p> <p>Ejectment by Andrew Wissel against George Ott. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>1. Trial—Question for Jury.</p> <p>A conflict in the evidence as to the condition of a tool at the time it was furnished to an employé raises an issue of fact, which must be submitted to the jury.</p> <p>2. "Evidence—Examination of Experts—Harmless Error.</p> <p>Where an employé was injured by a defective- push-stick, which had been painted, it would not be error to receive the opinion of an expert that the effect of the paint was to cover defects in the stick, since it only told the jury what it already knew.</p> <p>8. Damages—Excessive.</p> <p>Where plaintiff’s jaw was broken, disfiguring his face for life, and causing him great pain, a verdict for $6,000 would not be excessive.</p>

Bill by Philip Sternbach against Yette Friedman and Marcus Rosenthal, impleaded with others. There was a judgment for plaintiff (50 N. Y. Supp. 1025), and defendant Friedman appeals.

<p>1. Master and Servant—Defective Appliances—Scaffolds.</p> <p>The superintendent of defendant contractor, in charge of the construction of a building, set three men to work on a scaffold for the use of plaintiff’s intestate and other bricklayers. To make the scaffold safe, it was necessary that .an upright should be strongly braced. After all was done but putting in such braces, the superintendent called two of the men away. Shortly afterwards the scaffold was completed, with the exception of the braces, and the bricklayers were set to work on it the following morning. The scaffold gave way, and intestate was killed. Held sufficient to warrant a finding of negligence on the part of defendant, since the rule as to fellow servants is not applicable.</p> <p>2. Same.</p> <p>A master is liable for injuries received by a servant from the falling of a scaffold, where caused by the master’s failure to furnish sufficient material for its construction.</p> <p>8. Same—Labor Law—Safe Place to Work.</p> <p>Laws 1897, c. 415, § 18 (Labor Law), providing that any person employing or directing another to perform labor of any kind in the erection of a building shall not furnish or erect, or cause to be furnished or erected, for the performance of such labor, unsafe scaffolding, or which is not so constructed as to properly protect persons employed thereon, changes the former rule, that a scaffold erected for workmen is not a place in which their work is to be done, within the meaning of the rule requiring the master to furnish a suitable place in which to do his work, so as to require the master to furnish a safe and proper scaffolding on which the employé is to do his work.</p> <p>4. Same—Delegation of Duties.</p> <p>A master cannot delegate such duty, so as to escape liability.</p> <p>5. Same—Contributory Negligence.</p> <p>A bricklayer who was injured while working on a scaffold, the upright for which was insecurely braced, is not guilty of contributory negligence, where he could not see the upright from where he was working, and where his attention was not called to it, and he had no reason or opportunity to observe it, since he had a right to assume the master had done his duty in that regard.</p> <p>6. Same—Violation of Statute—When Negligence.</p> <p>Laws 1897, c. 415, § 20 (Labor Law), provides that all contractors, when constructing building's in cities where the specifications require the flooring to be arched between the beams and filled in with brickwork, shall complete the filling-in as the building progresses, to not less than within three tiers of beams below that on which the ironwork is being erected. Plaintiff’s intestate, a laborer on a building being constructed, fell from the sixth story, on account of the giving way of a scaffold. Held, that the violation of the above statute is not negligence sufficient to charge the contractor with liability, where there is nothing to show that intestate’s injuries would have been less had the statute been complied with.</p> <p>7. Same—Violation of Statute by Master—Employe’s Acceptance of Risk.</p> <p>A bricklayer injured by falling from a scaffold on the sixth floor of a building, where the floors were not filled in within three tiers of beams from the tier on which the iron work was being erected, as required by Laws 1897, c. 415, § 20 (Labor Law), cannot recover for injuries received from a violation of such statute, since, the failure to so fill in being perfectly apparent to him, he accepted the risk.</p>

Action by the Exempt Firemen’s Association of Long Island City against the Trustees of the Exempt Firemen’s Benevolent Fund of Long Island City and another. From an interlocutory judgment overruling a demurrer to the complaint, defendant trustees appeal.

Action by H. Verdine Stone against Luzerne Westcott for breach of contract. From a judgment for plaintiff entered on the report of a referee, defendant appeals.

Action by Charles Devine against the Brooklyn Heights Railroad Company. From a judgment foh plaintiff, and an order denying a motion for a new trial, defendant appeals.

Action by James S. Sullivan and others, doing business under the firm name of Sullivan Bros., against the Spring Garden Insurance Company. From a final judgment overruling a demurrer to the complaint, and adjudging that plaintiffs have the relief demanded therein, defendant appeals.

<p>1. Sale on Credit—Liability op Guarantor.</p> <p>Where one bought oats on credit, agreeing that they would be sold only to a fire-department, and all moneys received from it would be paid the seller, the buyer’s guarantor was liable, notwithstanding the buyer diverted thém to other purposes.</p> <p>2. Same—Rights op Guarantor.</p> <p>Where one bought oats on credit, agreeing that they would be sold only to a fire department, and all moneys received from it would be paid the seller, money received by the buyer from the fire department therefor could not be credited to other accounts between the buyer and seller, to the prejudice of the buyer’s guarantor.</p> <p>8. Same—Contract—Construction.</p> <p>One bought oats on credit, agreeing that they would be sold only to a fire department, and all moneys received from it should be paid the seller. Held, the only payments made by the fire department to the buyer, and paid the seller, which were to be credited on this sale, were payments on account of oats sold under this contract.</p> <p>4. Same—Action against Guarantor—Burden op Proop.</p> <p>Where one bought oats on credit, agreeing that they would be sold only to a fire department, and all moneys received from it would be paid the seller, and the seller sued the buyer’s guarantor, who pleaded that plaintiff had been paid in full by drafts of the department in favor of the buyer, the burden is on defendant to show that drafts of the department received by plaintiff directly or indirectly were received by him on account of oats sold under the contract.</p> <p>6. Payment—Question por Jury.</p> <p>On an issue as to whether a check had been paid on account of a certain claim for goods sold, the seller’s agent and one of the buyers testified that it'had not, against the testimony of a bookkeeper of the buyers that it had. Held, that the issue was for the jury.</p>

<p>1. Greater New York Charter—Justices’ Clerks—Compensation.</p> <p>Under Greater New York Charter, § 1384, providing that until midnight of January 31, 1898, the justices’ courts and justices’ clerks and assistant clerks shall continue to perform all the duties invested in them on December 31, 1897, an assistant clerk of a justice’s court of Brooklyn, who so continues his duties, is entitled to pay to the end of January.</p> <p>2. Same—Continuance in Office.</p> <p>Brooklyn City Charter, tit. 21, § 14 (Laws 1888, c. 583), empowered a justice of the peace to appoint a clerk of his court, and such other assistants as the common council might authorize, all to serve during the pleasure of the justice. Greater New York Charter, § 1373, provides that the justice elected or appointed for each district shall appoint a clerk and an assistant clerk; that the clerks, assistant clerks, etc., of the justices’ courts of the First, Second, and Third districts of Brooklyn, who shall be in office on January 1, 1898, shall continue until the expiration of their respective terms in like capacities as officers of the municipal court; and that the justices shall on or before January 30, 1898, also appoint the officers necessary to attend the court in each district, not exceeding three. Held, that only one assistant clerk appointed by a justice under the Brooklyn City Charter was to be continued in office, and that, therefore, where a justice had more than one, those other than the one designated assistant cannot claim salary after January 31, 189S.</p> <p>Goodrich, P. J., dissenting.</p>

<p>1. Mandamus—Claim against City—Remedy by Action.</p> <p>Though an action on a claim would lie, where a party is entitled to payment from a city from funds on hand applicable thereto, the court will, in the exercise of a sound discretion, compel by mandamus a ministerial officer to audit and pay the claim, if the city has not repudiated or denied’ its obligation.</p> <p>2. Same—Affidavits in Defense.</p> <p>Where an affidavit of a fact alleged in defense to mandamus is based on a record conflicting therewith, the record must be accepted as true, and the affidavit considered insufficient to raise an issue thereon.</p> <p>8. Same—Audit and Payment of Claim by City Auditor and Comptroller.</p> <p>Where the proceeds of bonds issued by a school district were paid to-the city comptroller, and a contractor presented to the comptroller and auditor a certificate of the engineer and architect in charge of the construction of the building that he was entitled to the payment of a certain sum in accordance with his contract with the district, and that payments-were to be made, as the work progressed, on their certificate, affidavits alleging that the resolution to erect the school house was passed by votes of persons not qualified, without naming them or giving reasons for their disqualification, and that the proposed improvement was unwise, without alleging fraud in the contract, are no defense to mandamus to compel the-audit and payment of the amount certified.</p>

Theodore B. Willis and William E. Phillips were indicted for conspiracy. From a judgment of a special term sustaining a demurrer to the indictment (54 H. Y. Supp. 129), the people appeal.

Action by James V. Lawrence, as sole surviving partner of the firm of Lawrence Bros., against John Dawson and William Archer, impleaded, etc. From a judgment dismissing the complaint as to defendants Dawson and Archer, and adjudging that the mechanic’s Men filed by plaintiff was not vaUd, plaintiff appeals.

<p>Appeal from special term.</p> <p>Action by Charles H. Shanley against Catherine P. Shanley. There was a judgment for defendant, and plaintiff appeals.</p>

Proceeding by William B. Putney, as committee of the person of Jane A. Porter, an incompetent, against Benjamin Flagler, as committee of her person and estate, and others, for the appointment of a new committee of her person.

Action by James H. Hoag against Edward Wright and Montrose ©hurchill, as executors under the last will and testament of Hester Hoag, deceased. From a judgment in fayor of defendants entered on the verdict of a jury, and an order denying a motion for a new trial, plaintiff appeals.

Action by Edwin A. Booth and another against S. Gordon Fuller and another to set aside a deed. From a judgment dismissing the complaint entered on a report of a referee, plaintiffs appeal. The plaintiffs are judgment creditors of the defendant S. Gordon Fuller, having recovered a judgment against him on the 1st day of July, 1891, for 8608.54, upon a debt existing prior to March 80, 1891.

Action by Aaron R. Stevens and others against the Central National Bank of Boston and others. Judgment for plaintiffs was affirmed in the general term and in the court of appeals (39 N. B. 68), and defendants appealed to the United States supreme court (18 Sup.

Certiorari by the people, on the relation of George Walton Green, against Robert A. Van Wyck, mayor of the city of New York, to review the action of the latter in removing relator from office as one of the aqueduct commissioners appointed under Laws 1888, c. 584.

Controversy between Lily Kemp and the New York Produce Exchange, submitted to the appellate court on an agreed statement of facts. Judgment for plaintiff.

Action by Louis L. Zimmer against William H. Chew and another, impleaded with others. From a judgment dismissing his complaint, plaintiff appeals. Affirmed as to legal representatives of defendant George Hagemeyer, and reversed as to other defendants. The action is upon a promissory note for $9,400, dated August 9, 1894, payable in six months, made by Ohew & Eadie, to the order of Hugh Dalzell, Jr. The indorsements are as follows: “Geo.

Action by Jacob C. Cook, administrator, against Alfred W. Shull and others. From a judgment on a decision of the court sitting as a jury, defendants appeal.

Alfred R. Mack was convicted of an assault in the, first degree,, and he appealed from the judgment, and from an order denying a motion in arrest of judgment, and an order denying a new trial.

Appeal by the' county treasurer of Delaware county from an order of the surrogate’s court determining the value of the estate of Erastus S. Edgerton subject to taxation under the act in relation to taxable transfers of property, and fixing the amount of the tax.

Lawrence county. Action by Sherman L. Nickerson and another against the Canton Marble Company, Limited, impleaded with others, to have a mining lease canceled as a cloud on plaintiffs’ title. From a judgment entered on a decision for plaintiffs, defendant company appeals.

<p>Usury—Question for Jury.</p> <p>On an issue whether moneys paid by the maker of a note to an indorser were usurious interest, or in consideration of his indorsement, the maker testified that the only money received for the note' was from the indorser, to whom it was given in pursuance of a usurious agreement When the note was discounted, a share of the proceeds was paid by the discounter to the indorser, and the remainder applied on prior notes of the maker, similarly indorsed, which he testified were also usurious. A bond and mortgage of the maker to the indorser to secure him for indorsements thereafter to be made for him was introduced. Held, that the issue was for the jury. •</p>

Application by the Commercial Bank for leave to sue Alfred M. Mills as receiver. From an order granting leave, the receiver appeals. Before April, 1898, Alfred Dolge and Rudolph Dolge were partners, under the name of Alfred Dolge & Son, engaged in business at Dolgeville, in the eounty of Herkimer, state of New York, which county is within the Fifth judicial district.

Action by Fred H. Loverin and another against the Lenox Corporation. From an order denying defendant’s motion for an order of reference, it appeals.

Certiorari in two cases by the people, on the relation of the forest * commission, against Frank Campbell, comptroller of the state, to-review his action in canceling a tax sale.

<p>1. Partnership—Accounting—Pleading and Proof.</p> <p>Where plaintiff sues for an accounting of partnership property, ana proves that part of the property belongs to him and defendant jointly, he may have an accounting in relation thereto, notwithstanding he fails to establish the partnership.</p> <p>8. Same—Evidence—Sufficiency.</p> <p>Plaintiff entered defendant’s employment in 1892, at $20 per week, with the expectation of forming a partnership in defendant’s dental business. In 1893, defendant agreed to give him a half interest on January 1, 1894, for $5,000, payable in monthly installments from plaintiff’s share of the business; and on that date defendant agreed, according to plaintiff, that the partnership should continue therefrom without articles until he had time to prepare them. Defendant presented articles of partnership in April, taking effect from January 2, 1894, substantially embodying the ■agreement outlined by plaintiff, but ■ reserving title to the . partnership property until the interest was paid for, when defendant was to execute a bill of sale and take plaintiff into partnership. Plaintiff said the articles did not contain the whole agreement, and testified that defendant then said they could go along and divide proceeds as they had been doing. Defendant denied this, and testified that he said, if the articles were not •signed, there would be no agreement. However, the business was continued, and in May, 1895, the parties leased a building for the business for 10 years. Defendant denied plaintiff’s interest therein, and said plaintiff executed the lease to secure living rooms for himself and family. Plaintiff denied this, and it was proved that no such arrangement was carried out. The books of the business showed that plaintiff drew in three years, from January, 1894, $961.45 in excess of $50 per week, while theretofore he had never meddled with the receipts. According to defendant, he protested, and considered the money taken to be a loan; but he continued to employ plaintiff, and it was undisputed that defendant on one occasion, on plaintiff’s demand, turned over the day’s receipts. A witness for plaintiff stated that defendant told him in 1895 or 1896 that he had sold plaintiff an interest, but that he had kept the business end of it in his own hands; and another testified that defendant told him in 1894 that he had taken plaintiff as a partner. Plaintiff testified that, when the break between them came, defendant replied to his offer to sell that he could not buy until he looked over his affairs. A witness for defendant testified that defendant said he had no money to buy any interest. Defendant denied this, claiming that he said that plaintiff had nothing to sell. Held, that a finding against the existence of a partnership beginning in January, 1894, was against the weight of evidence.</p>

Action by William H. Woods against the Buffalo Railway Company. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.

<p>Appeal from special term.</p> <p>Action by C. Meech Woolsey, as executor of George G. Woolsey, deceased, against John E. Lasher, for rent. Plaintiff was nonsuited, and he appeals.</p>

Action by Matilda Van Nostrand against Daniel Hubbard. From a judgment of the county court reversing a judgment dismissing the complaint, with costs, defendant appeals.

Action by the First Presbyterian Church in Village of Waterford, N. Y., against Edgar C. McKallor and another, executors of Caroline S. Knickerbocker, deceased, to construe certain clauses of her will, and for an accounting and payment. From a judgment in favor of plaintiff, defendants appeal.

Action by the Mutual Life Insurance Company of New York against the Yates County National Bank, impleaded with others. From so much of a judgment of the special term as decrees that the complaint be dismissed as to the bank, and that the bank recover §66.71 costs, plaintiff appeals.

. Appeal from trial term, Jefferson county. Action by Alexander McDonnell against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, and from an order denying a new trial, plaintiff appeals.

<p>Appeal from judgment on report of referee. '' '</p> <p>Action by Elbert G-. Hubbard against Frank H. Brown and others! From a judgment entered on the report of a referee, defendants appeal.</p>

Action by the Kentona Land Company against Warren Wire and others. There was a decree for plaintiff, and defendants appeal. The plaintiff’s complaint asks to have an assignment of a mortgage and the judgment of foreclosure entered thereon. On the 28th of January, 1893, Daniel F. Callahan took a conveyance of the 24 acres of land mentioned in the complaint, which was subject to a mortgage of $10,000, executed on the '8th day of April, 1892, by Louis F. W. Arend to Warren Wire.

Action by Augustine Aslen against the village of Charlotte to recover for injuries received from a defective sidewalk. From a judgment for $700, entered on a verdict for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from Cayuga county court.</p> <p>Action by George N. Mead against Anna M. Bell. From a judgment in favor of plaintiff, and from an order refusing a new trial on the minutes, defendant appeals.</p> <p>The action was commenced in justice’s court, and was retried in the county -court, before a jury. The complaint alleges that the plaintiff “agreed with the defendant to sell her, and did sell her, a large amount and number of fruit trees, vines, and chestnuts, at prices therein agreed upon, at the agreed prices, and at the value of one hundred and twelve dollars ($112); that the same were to be delivered by the plaintiff in the fall of 1897, and that the defendant was to pay the plaintiff for the same at said prices and said amount; „ that the plaintiff thereupon did furnish, and delivered to the defendant, at her instance and request, at her residence in the town of Fleming, •the said trees and vines, whereupon the defendant became indebted to the .plaintiff in the said sum of one hundred and twelve dollars ($112).” The answer contained a general denial, and averred that “more than four weeks before said delivery defendant informed plaintiff that she did not want said fruit trees, and canceled any order given for the same.” There is no defense ■of the statute of frauds alleged in the answer. Porter v. Wormser, 94 N. Y. 450.</p>

Action by Julia A. Frothingham and others against Sarah A. Stillwell and another. From a judgment for plaintiffs, and from an order denying a new trial, defendants Stillwell and Keeler appG&l.

Action by Eliza M. C. A. Lawton, individually and as executrix, against Robert G-. Lawton, as executor, and others, to have the accounts of her deceased husband, as executor and trustee, judicially settled and allowed. From an entry on a report of a referee charging plaintiff’s husband with losses on investments of the trust property, she appeals.

Foreclosure suit by the Commercial Bank against Moses Foltz and others. Judgment for plaintiff was affirmed in the supreme court, and defendant Beaman Catto appealed to the court of appeals. From an order determining that an undertaking in the latter appeal was insufficient to stay execution of the judgment, defendants Foltz and Catto appeal.

<p>1. Railroads—Injuries to Employe—Negli'gence—Evidence.</p> <p>A railroad employé was injured through the negligence of an engineer who had previously killed six persons, to the knowledge of the company. None of the killings, except one, that had occurred five years previously, was alone sufficient to charge the company with negligence in retaining the engineer in its employment. Meld sufficient evidence to support a special finding that the company was negligent in having the engineer in its employ at the time of the accident.</p> <p>3. Same—Instructions.</p> <p>A refusal to charge that the company had a right to assume that the engineer had become careful and competent since the killing, five years previously, was proper.</p> <p>8. Same—Contributory Negligence. *</p> <p>A railroad employé was directed to cross a track from a station, and deliver a package to an express train on a second track. A train had passed on the first track, and a second train, as the employé knew, was scheduled to follow 10 minutes after the first train, under rules requiring it to slow down and stop while the express train was standing on the second track. The employé looked up the first track, and saw no train, and then crossed the track, delivered ’his package, and, when returning, did not look up the track, and said second train, only three minutes pehind said first one, without any warning, and going at full speed, struck him and injured him. Meld, that he was not guilty of contributory negligence.</p> <p>4. Damages—Opinion Evidence.</p> <p>A trial in an action for injuries to a railroad employe occurred five years after the accident, when the effect of the injuries still existed, and the company offered no evidence to show that they were not permanent. Held, that the opinion of a physician as to the probable duration of the injuries was admissible, where the employé had been under his care for several years, and the physician described injuries which, from their very nature, were permanent.</p> <p>S. Appeal—Laches.</p> <p>A motion to review a verdict as being contrary to the evidence, made 11 years after its rendition, without sufficient cause for such laches, will not be as favorably considered as it would be if it had been made promptly.</p>

Action by Joseph Kubiack against Frank N. Clement and others for personal injuries sustained from acts done in Niagara county. Defendants moved to change the place of trial to that county, and from a denial of the motion they appeal.

Action by John M. Davy and. another, as surviving executors of the will of Michael Filón, deceased, against S. Louise Stewart and others. From a decree of the surrogate’s court directing the. payment to the executors of defendant Mary E. Filón of a portion of the trust estate accruing after her death, complainants appeal.

■Action by Francis A. Dugro, as committee, against Mary A. Vandewater and others. From an order directing James S. Douglass, as attorney for defendant Margaret K. Douglass, to pay over rents to a receiver, and directing a reference to take account of such rents, defendant Douglass appeals.

In the matter of the voluntary dissolution of the Luxton & Black-Company a motion was made by Frederick Ullman to compel the receiver to pay his claim against it as a preferred claim. The motion was denied, and he appeals. From January 11, 1896, to January 26, 1897, one T. A. Glaser was in the employ of the Luxton & Black Company, a corporation engaged in the business of selling pianos at the city of Buffalo. Glaser’s position was that of salesman.

Action by Margaret F. Munz, as administratrix, against Jesse Colvin. From a judgment for costs, entered on a verdict for defendant, and from an order denying a motion for a new trial, plaintiff appeals.

Certiorari by the people, on the relation of Albert H. Hamilton, •against the board of supervisors of Jefferson county, to review its proceedings in auditing a claim made by the relator against the county. On the night of April 15, 1807, two women were murdered at or near Sackeft’s Harbor, in the county of Jefferson, under circumstances which surrounded the occurrence with no little mystery.

Mandamus by the people, on the relation of William J. Rodgers, against Bird S. Coler, as comptroller of the city of New York, and another. Prom an order denying a motion for peremptory writ, the relator appeals.

<p>Appeal from special term, Mew York county.</p> <p>Action by the Guarantee Savings, Loan & Investment Company against Bachel W. J. Moore, individually and as executrix of the will of George Moore, deceased, and others. " From an order denying a motion to vacate an attachment against the individual property of defendants Eachel and Archibald T. Moore and John C*. Shaw, they appeal.</p>

Action by Elizabeth Emmerich against Jennie Thorley and another. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals.

<p>Appeal from trial term, Monroe county.</p> <p>Action by William H. Shaffer, as administrator of the estate of George A. Bartholick, against Theodore Bacon and others. Judgment for defendants, and plaintiff appeals.</p>

Action by Margaret Eddy, as administratrix of the estate of William C. Eddy, deceased, against the village of Ellicottville. From a judgment dismissing her complaint, on the opening of the case to the jury by her counsel, plaintiff appeals.

Action by Thyele M. Lamb against Francis D. Carley. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Action by the United Press against the New York Press Company, Limited. There was a judgment for plaintiff for less than the amount demanded, and it appeals.

<p>Appeal from special term, New York county.</p> <p>Bill by the C. & 0. Electric Company against the Walker Company. Appeal by defendant from an order directing a compulsory reference.</p>

<p>Appeal from special term, New York county.</p> <p>Action by James L. Ingal against Giles M. Stoddard. From an order denying motion to change venue from New York county to Tompkins county, defendant appeals.</p>

<p>Verdict against Charge—Law of the Case.</p> <p>Verdict for plaintiff cannot be sustained where, on the theory on which the case was submitted, the only fair inference should have been favorable for defendant, though on another theory negligence of defendant might have been found from a certain fact; the charge of the court, that it raised no presumption of negligence (not having been excepted to), being the law of the case.</p> <p>Eumsey and Patterson, JJ., dissenting.</p>

Action by Durbrow & Hearne Manufacturing Company against Mari A. Cuming. From a judgment for defendant and from an order denying a new trial, plaintiff appeals.

Action by Stephen H. Olin, as guardian, against Simon Arendt and others. From an interlocutory judgment entered on the overruling of a demurrer to the complaint, and from the decision and order on which such judgment was entered, defendants other than Isabella Arendt and Frances K. Lipman appeal. Appeal from decision and order dismissed.

<p>Appeal from special term, New York county.</p> <p>Action by James E. Whyte and another against the Builders’ League of New York. From judgment dismissing the complaint (52 N. Y. Supp. 65), plaintiffs appeal.</p>

<p>Appeal from special term, New York county.</p> <p>Action by J. C. Eoss and another against Robert H. Ingersoll and another. From an order denying motion to amend the proposed case on appeal as settled by the referee, and for other relief, defendants appeal.</p>

<p>Orders—Action on.</p> <p>Plaintiff, having advanced money to B. on an order given by B. on, and accepted by, defendant, to pay plaintiff a certain amount when due, the “same being 2nd payment as per contract” of B. to do certain work for defendant, can maintain action thereon, where, on failure of B. to complete the work to a point where the second payment would become due, plaintiff offers to do the work to such point, and defendant refuses to allow him to do so; it not being necessary for plaintiff to offer to complete the whole contract, though it had been assigned to him as collateral security.</p>

<p>Decedent’s Property—Discovery Proceedings—Answer.</p> <p>Under Code Civ. ,Proc. § 2709, providing if a person cited to attend for examination as to property of a decedent, under section 2707, interpose an answer that he is the owner of the property or entitled to possession thereof by virtue of a lien thereon or special property therein, the surrogate must dismiss the proceedings as to such property so claimed, an answer of the person that he “is the owner” of the property “or entitled to the possession thereof” is not sufficient.</p>

<p>Appeal from special term, Hew York county.</p> <p>Application for mandamus, on the relation of the Consumers’’' Brewing Company of Hew York, Limited, against Isaac Fromme,as register. From an order denying the application, relator appeals.</p>

Certiorari, on the relation of John B. Sampson, against Bernard York and others, as police commissioners of New York City, to review the act of respondents dismissing relator from the police force.

<p>1. Witness—Credibility.</p> <p>One who, as agent of defendant, received from G., plaintiff’s agent, in payment of G.’s individual indebtedness, a note belonging to plaintiff, though made to G., is an interested witness, whose credibility is for the-trial court.</p> <p>2. Notes—Bona Fide Holder—Burden of Proof.</p> <p>Plaintiff having proved that a note taken from plaintiff’s agent by defendant in payment of the agent’s individual indebtedness was plaintiff’s-property, though made to the agent as payee, defendant has the burden of proving that it was a bona fide holder for value, without notice.</p> <p>3. Same—Conversion.</p> <p>Defendant, by delivery of a note belonging to plaintiff to the maker for value, converted it, so that plaintiff -may recover the amount of the note.</p>

<p>Appeal from special term, New York county.</p> <p>Action by George Barrie and another, doing business under the name of Barrie & Sons, against John C. Yorston, doing business under the name of John C. Yorston & Co. From an order striking out the answer as sham and frivolous, defendant appeals.</p>

Partition by Edwin Oliver Harrison and others against Mary W. Platt and others. On petition by Adolphus Ottenberg to be relieved from a purchase of real estate at the partition sale. There was an order denying the petition, and Ottenberg appeals.

<p>Appeal from trial term, New York county.</p> <p>Action by Ida M. Haines, as administratrix of William D. Haines, deceased, against William E. Scott, to recover $1,000 alleged to have been paid to defendant by intestate while the latter was of unsound mind. From a judgment entered on the dismissal of the complaint on a trial before a jury, plaintiff appeals.</p>

Application by Danford N. Barney for writ of certiorari to review the proceedings of Edward Barker and others, commissioners of taxes and assessments of the city of New York, in the matter of the assessment of relator’s property for taxes for the year 1897. From an order amending the return to the writ and from a judgment dismissing the writ, relator appeals.

Action by William Keswick and others against Edward Rafter. From a judgment for plaintiffs, and an order denying a new trial, defendant appeals.

Action by Catherine M. Tucker against the city of Utica to have certain tax assessments canceled. Findings of fact and conclusions of law were made and filed, and a judgment entered thereon dismissing the plaintiff’s complaint as to the first cause of action, and awarding relief as to the second cause of action, to wit, declaring that an assessment for $10.41 is illegal and void. The court decided that neither party should have costs against the other.

<p>1: Assignments—Evidence—Sufficiency.</p> <p>Where a contract was made with two partners, and one assigned all his interest therein, and testified that the other had ceased to be connected with it by transferring it to him, and he was- not contradicted, it supported a finding that the assignee was the sole owner of the contract.</p> <p>2. Bun,ding Contracts—Abandonment—Measure of Recovery.</p> <p>Where a building contract reserved to the owner the right to finish the work and deduct the expense from the contract price if the contractor should fail on three days’ notice to supply a sufficiency of workmen or material, and the contractor abandoned the work on such notice, and the owner completed the building, the former could recover the difference between such expense and the contract price.</p> <p>8. Payment—What Constitutes—-Discounts.</p> <p>The fact that the attorney of one erecting a building discounts an order on the owner by the contractor which the owner pays in full does not prevent the latter from beiftg credited with the full amount in settlement with the contractor.</p>

Action by Pliny T. Sexton against the Home Fire Insurance Company of the City of New York to recover on a policy. From an order refusing to allow an interpleader and the deposit in court of the amount claimed by plaintiff on payment of the costs and disbursements up to the time the motion was made, defendant appeals.

Action by Mary Harris against William C. Lesster, impleaded' with others. From an order denying motion for payment of money in the hands of a receiver to said defendant, he appeals. The action was brought by Mary Harris to foreclose a mortgage, and the appellant Lesster was made a co-defendant, against whom no personal claim was made.

<p>Appeal from special term, New York county.</p> <p>Petition by Gordon MacDonald for a writ of habeas corpus. Writ allowed (51 N. Y. Supp. 735), and respondents Louis Leubuscher and Clarence H. Venner appeal.</p>

<p>1. Libel—Admissibility of Evidence.</p> <p>On trial for libel, evidence of a publication made prior to the one la controversy is inadmissible to show malice, where such publication has been adjudged to be true.</p> <p>3. Nominal Damages—Appeal—Revebsal.</p> <p>A judgment will not be reversed to give appellant nominal damages.</p>

Application by the people, on the relation of Patrick McKay, against Bernard J. York and others, • composing the board of police of the police department of New York City, for a writ of mandamus to compel the reinstatement of the relator to the position of doorman in said police department. From an order denying the writ, relator appeals.

<p>Eminent Domain—Damages—Right oe Mortgagee—Foreclosure.</p> <p>Under Greater New York Charter, § 980, requiring the commissioners of estimate and assessment to assess the damage, if any above the benefit, to owners and others interested in lands condemned for public parks, where the land is taken by the city, title vesting absolutely in it, the right of a mortgagee is to have his interest paid for directly by the city, and he cannot foreclose his mortgage.</p>

Action by Charles D. Ru Ton and another against John N. Everitt for injunction. From an injunctional order against him, defendant appeals. Eu Ton was an employé of the defendant in the business in question. In the month of December, 1896, the defendant, being in bad health, expressed his intention of going out of the business entirely, and offered to sell it to Eu Ton.

Feitner and others, commissioners of taxes and assessments of New York City, to compel them to correct an assessment. The application was denied, and relator appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by Harry L. Brewster against the city of Hornellsville on a contract. From a judgment in favor of plaintiff entered on the report of a referee, defendant appeals.</p>

<p>Appeal from special term.</p> <p>Action by Edward J. Liebetrut and Louise F. Liebetrut against Thomas Gaskin. There was a judgment for defendant, and from the judgment and an order granting an additional allowance plaintiffs appeal.</p> <p>Action to recover the possession of lot 9 in block C, being 50 feet front on Ontario avenue and 133 feet deep, in the city of Niagara Falls, more particularly described in the complaint, and $2,000 for withholding the possession thereof. The answer sets up that “neither plaintiffs, their ancestors, predecessors, nor grantors were seised or possessed of the premises described in the complaint, or any part thereof, within twenty years before the commencement of this action”; and alleges “that defendant, his grantors and predecessors, have held and possessed the premises adversely to the pretended title of the plaintiffs for twenty years last past, before the commencement' of this action under a claim of title in fee, exclusive of any other right”; and that the defendant “entered into possession of said premises under a claim of title exclusive of any other right, founding such claim upon a written instrument, to wit, a deed from Elizabeth Harroun to defendant of the premises, which deed was dated October 20, 1881; and defendant has continued in possession of said premises from the date of said deed; that said Elizabeth Harroun entered into possession of said premises under claim of title exclusive of any other right, founding such claim upon a deed from the heirs of one Marcus Adams to Elizabeth Harroun, which deed was dated October 8, 1872; and said Harroun continued in possession of said premises as aforesaid from the date of said deed to October 20, 1881.” It is also alleged “that in 1868 said Marcus Adams died intestate, leaving heirs at law; that for twelve years prior to his death said Adams had been in possession of said premises under a claim of title exclusive of any other right; that he had inclosed, fenced, and cultivated the same, and at the time of his death said premises were continued in the possession of his said heirs and representatives under said claim of right until they conveyed the same by deed to said Elizabeth Harroun as aforesaid.” It is also averred that the defendant has made valuable and expensive improvements upon said premises since he became the owner as aforesaid. The issues were referred to a referee, who reported in favor of the defendant upon the merits. Plaintiffs appeal from the judgment entered thereon, and also from an order granting an additional allowance1 of $200 made at the Erie special term, upon affidavits and upon the certificate of the referee that the case was difficult and extraordinary. The plaintiff Edward became of age on September 20, 1873, and the plaintiff Louise became 21 years of age September 21, 1875, and the action was com-menced on the 10th of March, 1897. The referee finds: “That in the year 1863 one Marcus Adams inclosed the premises described in the complaint, with other lands, by a substantial inclesure, claiming title to said lands, and cultivated said lands for a portion of the time thereafter to the time of his death, and maintained a substantial inclosure around said lands until his decease, claiming title thereto; that said Marcus Adams died August 8, 1868, intestate, leaving a'widow, who died in the year 1873,” and leaving, him surviving, several children, among them Elizabeth Harroun; that, after Marcus Adams died, his heirs at law continued to maintain “a substantial inclosure around said premises under claim of title thereto until' October 8, 1872, when the other heirs of said Marcus Adams conveyed the premises described in the complaint herein, with other parts of the land so inclosed by said Marcus Adams, to Elizabeth Harroun, one of the heirs of said Marcus Adams, by a warranty deed, which was recorded in Niagara county clerk’s office on the 13th day of January, 1873.” The referee also found that after said conveyance “she claimed to own said premises,” and caused the premises so conveyed to her soon thereafter to be separated from the other lands inclosed by said Marcus Adams “by substantial fences, and maintained the same, and that the fences erected by said Marcus Adams were maintained down to the time the premises described in the complaint were conveyed to the defendant, and inclosed by him; that on or about the 20th day of October, 1881, Elizabeth Harroun, then claiming to be the owner of said premises, conveyed the premises described in the complaint, with other parts of the premises so conveyed to her, to the defendant herein by a warranty deed,” which was immediately recorded, and entered upon the premises, “and that said premises remained inclosed with the other lands deeded to said Elizabeth Harroun up to about the spring of 1882, when the defendant took possession of the premises conveyed to him by said Elizabeth Harroun, and built a division fence between the premises conveyed to him and the other lands of said Elizabeth Harroun, and erected a house thereon, and has since occupied said premises as his home, claiming title thereto by virtue of the deed from said Elizabeth Harroun.” The referee found as conclusion of law “that the defendant was, at the commencement of this action, the owner of the premises described in the complaint, and entitled to the possession of the same.” The referee also delivered an opinion stating the views he enter- ' tained of the case.</p>

Proceeding to open Nelson avenue, in the city of New York. Appeal by the city of New York from an order of the special term directing the comptroller of said city to pay into court the sum of $2,884.33, the amount awarded to unknown owners for the parcel of land known as “Damage Parcel No. 10” in the above-entitled proceeding, with interest thereon from June 24, 1895, to the date of payment, and appointing a referee to take proof and report as' to the ownership of the land…

Action by Harry L. Brewster against the city of Hornellsville. From an order denying plaintiff’s motion for an additional allowance of costs, plaintiff appeals.

Action by Amelia L. Spies against John Munroe and others. There was a judgment for plaintiff, and from the judgment, and the decision on which it was entered, defendants appeal.

<p>1. Brokers—Commissions—Procuring Cause.</p> <p>A broker employed to find a purchaser for land, Interested one M., who. made an offer, whiih was refused. Another offer was made, but nothing was done for a year, when the owner’s agent obtainéd the name of the ' proposed purchaser from the broker, and another broker effected a sale with him at an increased price. Meld, that the first broker was not the procuring cause of the sale, and could not recover commissions for it</p> <p>2. Appeal—Judgment—Modification.</p> <p>Where á judgment is erroneous only in so far as it purports to dismiss, a complaint “on the merits,” the court, on appeal, will modify it by striking out the words “on the merits.”</p>

Action by Charles A. Bloomingdale against William P. Cook and John Doe, composing the firm of W. P. Cook & Bro. There was an order denying defendants’ motion to vacate a warrant of attachment, and they appeal.

Action by Andrea Romano against Jacob Brack. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. The action is brought to recover five months’ rent due on a lease in writing made between' plaintiff and defendant, demising a certain area, six feet long and three feet wide, in front of the house known as “No. 17 Prince Street,” in the city of New York, and within the stoop line, for the erection of a soda-watqr fountain.

Action by Adolf S. B. Schramm against the Brooklyn Heights Railroad Company and another. Judgment for plaintiff. From an order denying the motion of the railroad company to compel plaintiff to satisfy the judgment, it appeals.

Action by the board of supervisors of Queens county against Charles L. Phipps, as county treasurer of Queens county. The controversy was submitted, under Code Civ. Proc. § 1279, on an agreed case. Judgment for plaintiff.

Action by the Saugerties Bank against James 0. Mack and another. From a judgment for plaintiff, confirming a referee’s report, defendants appeal.

Action by Mary A. Worden against Oneida county. From a judg ment dismissing the complaint, plaintiff appeals.

<p>Accounting by Executors.</p> <p>Code Civ. Proc. § 2727, authorizing the surrogate court to compel an accounting by an executor or administrator unless he show good cause to the contrary, makes the compelling of an accounting discretionary with the surrogate; hence he may refuse to compel an accounting on the application of judgment creditors of the estate, from whose judgment an appeal is pending.</p>

<p>■1. Master and Servant—Injuries—Negligence—Fellow Servant.</p> <p>Where a master furnishes plenty of good material to build a scaffold, he is not liable for an injury to the servant due to the negligence of a fellow servant in selecting a defective timber for the scaffold.</p> <p>A Same.</p> <p>A foreman of a gang engaged in building a scaffold is a fellow servant of a member of the gang.</p>

<p>Street Railroads—Injuries to Persons Attempting to Board Cars—Negligence.</p> <p>Before a motorman can be charged with negligence in suddenly increasing the speed of a car while a passenger is attempting to board it, he must have known of such attempt, or the place must have been one where passengers would naturally be expected to get aboard.</p>

<p>Personal Injuries—Excessive Damages.</p> <p>A verdict of $3,750 is not excessive, for injuries to a healthy woman, 55 years of age, which bruised and sprained her, and confined her to her house for two or three months, on her physician’s advice, and caused permanent prolapsus uteri and congestion, necessitating the wearing of a pessary.</p>

Action by Mary Sullivan, as administratrix of the goods, chattels, and credits of Annie B. Haten, deceased, against Carroll Dunham and others. From a judgment entered on a verdict for plaintiff, and from an order denying a new trial, defendants appeal. Defendants Theodore H. Dinkel and Philip Jewell appeal from an order denying their motion to correct the verdict by striking their names therefrom and allowing the verdict to stand against the defendant Dunham alone.

Petition of James Underbill for the payment of a legacy bequeathed to him by Abraham Underhill, deceased. From a decree of the surrogate directing the executors, Edward C. and Juliet Underhill, to pay the same, they appeal.

Action by Orville M.-Barkley against the New York Central & Hudson River Railroad Company. Heard on motion by plaintiff to substitute Frank G. Sargent in place of S. K. & B. C. Williams, his attorneys. The motion was denied, and plaintiff appeals. Appeal from an order made at the Monroe special term in July, 1898, denying the plaintiff’s motion to substitute Frank C. Sargent as attorney in this action in the place of S. K. & B. C. Williams.

Application of Eugene Gt. Blackford for payment of a joint judgment out of the separate estate of Edward B. Bartlett, deceased. There was an order granting the application, and Mary H. N. Bartlett, executrix, appeals.

Action by Clara E. Nolan against Catherine L. F. Nolan and others. There was a judgment for defendants, and plaintiff appeals.

Application by Dennistoun Wood and another, as executors, for the sancellation of taxes levied in 1897 on certain real property in the ibero ugh ®f Queens, formerly Long Island City. From an order entered at a special term (54 N. Y. Supp. 30) directing the cancellation of such taxes, respondents appeal.

Application by the people, on the relation of John W. Terry, against John W. Keller, commissioner of public charities for the boroughs of Manhattan and the Bronx. From an order denying a mandamus requiring respondent to reinstate relator as superintendent of the almshouse, from which he had been removed, relator appeals.

• Appeal from trial term, Kings county. Action by Alice A. Davis against the Supreme Lodge Knights of Honor. From a judgment in favor of plaintiff,' and an order denying a new trial, defendant appeals.

Action by Ferdinand Bohmer, Jr., against Louis F. Haffen, as commissioner of street improvements, to declare illegal certain permits granted by defendant to the Union Railway Company. From a judgment of special term (50 N. Y. Supp. 857) dismissing the complaint, complainant appeals.

<p>Appeal from special term.</p> <p>Action by De Witt G. King against the Tioga County Patrons’ FireKelief Association. From a judgment in favor of plaintiff, defendant appeals.</p>

Actions by Caroline Wandell against Harrietts S. D. Romeyn and others, and by Josephine Wandell against the same defendants. Defendant Hassey appeals from an order denying a motion that plaintiff be directed to proceed with a foreclosure action, and plaintiff appeals from an order granting a similar motion by defendant Hassey.

Application of the mayor, aldermen, and commonalty of the city of New York to acquire title to lands in the Twelfth ward for a public park. Commissioners were appointed to condemn the lands. On motion to confirm the commissioners’ report.

Application by Joseph F. Cochrane for a peremptory mandamus to require William H. Tracy and others, constituting the common council of the city of Rochester, to reinstate him as assistant overseer of the poor. From an order denying his application, relator appeals.

<p>Appeal from Saratoga county court.</p> <p>Action by Edwin Myles against the Ballston Terminal Railroad Company. From a judgment of nonsuit, plaintiff appeals.</p>

Application by Frank H. Short for a writ of habeas corpus to inquire into the cause of his imprisonment under an execution against the person on a judgment against him, as plaintiff, for costs. From an order discharging the petitioner, Aaron B. Sfcutt, the original defendant, appeals.

• Ejectment by John G. Willis, substituted in place of Warren G-. Willis, deceased, against Frank H. McKinnon and others. There was a judgment for defendants, and plaintiff appeals. The action was brought to recover the possession of certain premises in the village of Masonville, in the county of Delaware. At the trial a jury was waived, and the case submitted to the court.

<p>Appeal from special term.</p> <p>Mandamus, on relation of William H. Hall, against the board of trustees of the village of Saratoga Springs and another. From an order granting an alternative writ the respondents appeal.</p> <p>On the 4th day of April, 1898, it was the duty of the respondents the board' of trustees of the village of Saratoga Springs to appoint a member of the board of health of said village. The relator applied to the respondents for such appointment, and, in connection with .his application, submitted his affidavit, stating in detail his qualifications, and the fact that he wqs an honorably discharged Union soldier of the late Oivil War. The board of trustees did not appoint the relator, but did appoint the respondent James W. Fitzpatrick. This appeal is from an order awarding an alternative writ of mandamus. The affidavits on the part of the respondents allege that they are advised that chapter 821 of the Laws of 1896 does not apply to an appointment of a member of the board of health; that Wendell W. Wheeler, an honorably discharged Union soldier, also applied for the appointment; that the relator had previously held the said office, and had not properly performed its duties, and was incompetent; and that the board of trustees had appointed Fitzpatrick because they deemed him better qualified to perform its duties.</p>

Application, by the people, on the relation of James Lucey, for a writ of mandamus against Francis J. Molloy .and others, constituting the board of estimate and apportionment of the city of Troy.

<p>Action by Littleberry 0. Atkins against Edward B. Judson, Jr., and others.</p>

<p>Action by Sidney Bell against the Moen’s Asphaltic Cement Company.</p>

<p>Actions by Garda Astrand and Axel Astrand against the Brooklyn Heights Railroad Company.</p>

<p>Action by Matilda O. Brees against Charles H. Brees and others.</p>

<p>Action by Benjamin Cohen, an infant, etc., against William D. Andrews.</p>

<p>Action by Edward Carll against Long Island City, and thirteen other cases. Action by William Heiberger against Long Island City, and three other cases.</p>

<p>Action by Harry E. Colwell against Frederick Tietig.</p>

<p>Action by J. Adriance Bush against George Bliss and others.</p>

<p>Action by Sarah Cook against Joseph White and others.</p>

<p>Action by Sarah Cashmaker against the Nassau Electric Railroad Company.</p>

<p>Action by Charles Henry Dietz against Edward F. Leber and Louis Meyer.</p>

<p>Action by William S. De Camp against Edward Thompson and others.</p>

<p>Action by Anna M. Fluhr against the Manhattan Railway Company.</p>

<p>Action by Charles S. Frost against Amos J. Michenor and Elizabeth J. MeOlintock.</p>

<p>Action by William Godfrey, as administrator, etc., against New York Central & Hudson River Railroad Company.</p>

<p>Action by William T. Gilbert against Benjamin G. Ackerman.</p>

<p>Action by Daniel Guerin against Mary Guerin and others. A. D. Arnold, for appellants. 0. R. Paris (D. J. Sullivan, of counsel), for respondent.</p>

<p>Action by Wesley Gould, receiver of William H. Vail, against William H. Vail and Sarah Vail.</p>

<p>Action by Leila O. Henriques and another against Henrietta O. Trowbridge, impleaded.</p>

<p>Action by John D. Lehon against Priscilla H. Judson.</p>

Bill by J. Samuel Lemon, as administrator of the estate of Hope A. Lemon, against Adon Smith and others, as executors. Appeal by George A. Haven, executor of the will of Samuel R. Smith, deceased, from an order bringing him in and substituting him, as executor, as defendant in place of Samuel R. Smith, and reviving the suit against him.

<p>Action by Leonora Linehan against the Coney Island & Brooklyn Railroad Company.</p>

<p>Action by Mary Ann McKeown against the Bank for Savings.</p>

<p>Action by Richard Long against the Metropolitan Street-Railway Company.</p>

<p>Action by Joseph Meyerrose against the Brooklyn Heights Railroad Company.</p>

<p>Action by Anne Murray against the village of Port Jervis.</p>

<p>Action by George Morris and others against Louis Fisher, impleaded.</p>

<p>Action by Frank J. Partridge, as guardian ad litem, etc., against Mary A. Kearns, as administratrix, etc.</p>

<p>Action by the people of the state of New York against Russell E. Holmes.</p>

<p>Action by the people of the state of New York against Marion B. Nichols.</p>

<p>Action by Tyndale Palmer against E. P. Bailey & Co.</p>

Petition by the people of the state of New York, on the relation of Albert W. Bail-lie, against John J. Scannell, fire commissioner of the city of New York, for peremptory mandamus.

<p>Action by the people of the state of New York, on the relation of James J. Flood, against Asa Bird Gardiner.</p>

<p>Action by the people of the state of New York, on the relation of John Harvey, against Henry H. Cannon, as president of the village of Irvington, and John O’Connor and others, as trustees of the viliage of Irving-ton.</p>

<p>Action by the people of the state of New York, on the relation of William R. Fleming, against William Dalton, commissioner of water supply, and another.</p>

<p>Certiorari by the people, on the relation of Henry W. Cannon, against Robert A. Van Wyck, mayor of the city of New York, to review the action of respondent in removing relator as one of the aqueduct commissioners appointed under Laws 1888, c. 584.</p>

<p>Action by the people of the state of New York, on the relation of John M. Bemis and John F. Knox, against Amos Flagg and others, as assessors, etc.</p>

<p>Action by the-people of the state of New York, on the relation of J. Esler Eckerson and others, against Charles H. Zundel and others, assessors and trustees of the village of Haverstraw.</p>

<p>Action by the people of the state of New York, on the relation of Frank K. Bowers, against William Dalton, as commissioner, etc.</p>

<p>Action by Anna Ellsworth Poste against the American Union Life Insurance Company.</p>

<p>Action by the people of the state of New York, on the relation of Frederick Strauss, against Louis ■ Leubuscher.</p>

Action by the people of the state of New York, on the relation of the New York, West Shore <52 Buffalo Railroad Company and another, against Spencer Johnson and others, assessors.

Certiorari by the people of the state of New York, on the relation of John A. Tucker, to review the action of Robert A. Van Wyck, mayor of the city of New York, in removing relator as one of the aqueduct commissioners appointed under the provisions of Laws 1888, c. 584.

<p>Action by the people of the state of New York, on the relation of Jacob S. McMillan and others, against Albert Vanderpool and others.</p>

<p>Action by John Robinson against Henry P.</p>

<p>Action by Morris Rosenfield and others against William J. Byrnes.</p>

<p>Action by William F. G. Shanks against Anthony Stumpf and Charles D. Steurer.</p>

<p>Action by the Skaneateles Waterworks Company against the village of Skaneateles and another.</p>

<p>Action by Joseph Stern against the City of New York.</p>

<p>Action by the Steamship Richmond Hill Company against John Seager.</p>

<p>Action by Louisa A. Wood, as administratrix, etc., against the New York Central & Hudson River Railroad Company.</p>