Volume 54 — New York Supreme Court Reports

<p>A condition limiting the time within which an action must be brought upon a policy of fire insurance — when the time begins to run from the time the fire occurs — a payment made to a mortgagee of his interest in the policy is not a waine/r of the condition as to the owner.</p> <p>This action was commenced on May 17,1884, to recover the loss sustained by the plaintiff in the destruction, by a fire which occurred on March 26, 1883, of a house, and personal property therein, which were owned by her and insured by the defendant. The policy contained a condition by which it was expressly provided “ that no suit or action against this company for the recovery of any claim by virtue of this policy shall be sustainable in any court of law or equity ■until after full compliance by the assured with all the foregoing requirements, nor unless such suit or action shall be commenced within twelve months next after the Are shall have occurred; and should any suit or action be commenced against this company, after the expiration of the aforesaid twelve months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim.”</p> <p>Held,, that the year within which the action must be brought commenced to run. from the day on which the Are occurred, and not, as the plaintiff claimed, from the expiration of the sixty days given the company in which to make payment after service of the proofs of loss.</p> <p>Steen v. Hiagwra Mre Inswramee Company (89 1ST. Y., 315) distinguished and Schrroederr v. Keystone Ins. Co. (2 Phil. 286), followed.</p> <p>After the issuing of the policy, which contained the usual provision rendering it void in case the property insured should become encumbered by mortgage, judgment or otherwise, which was not indorsed on the policy, three judgments, one by confession, were recorded against the plaintiff and the plaintiff also executed and delivered to one Dunn a mortgage upon the premises, and the agents of the defendant, under date of May 19, 1882, indorsed upon the mortgage the following: “ Payable, in case of loss, to John Dunn, mortgagee, as his mortgage interest may appear,” It was alleged in the complaint, and not denied in the answer, that since the loss, and in or about the month of April, 1884, the defendant paid to Dunn, the mortgagee, the sum of $112, being the full 'amount, and in satisfaction, of Dunn's interest in the policy of insurance, as mortgagee.</p> <p>Held, that the referee erred in holding that the payment of this sum to Dunn was a waiver of the condition requiring the action to be commenced by the plaintiff within twelve months after the fire occurred.</p>

<p>Appeal from a decree of the Surrogate’s Court of Monroe county, refusing to admit to probate tbe will of Ellen Yan Geison, deceased.</p>

<p>Appeal from a judgment in favor of the plaintiff entered in Erie county upon tbe report of a referee.</p>

<p>Appeal from a judgment of tbe Steuben County Court, affirming a judgment rendered in a Justice’s Court in favor of tbe plaintiff.</p>

Appeal by tbe plaintiff, and also by tbe defendants Hart and Ellwanger, from a judgment entered upon tbe decision of tbe Monroe Equity Term.

Appeal by the defendant from an order of the Erie Special Term, denying a motion made on a case and exceptions for a new trial. The defendant, on October 21, 1878, by its policy, insured the plaintiff against loss or damages by fire on his dwelhng-house No. 1, $900; dwelling-house No. 2, $200; barns Nos. 1, 2 and 3, $700; produce therein, $400; farming utensils, $50; carriages, etc., in barns, $100; horses, $300; and cows, $500.

<p>Costs upon a reversal by the Court of Appeals of am order granting a pen'erriptory writ of mandamus — when its direction as to costs will be treated as applying to those of that court only.</p> <p>An order of the General Term, affirming an order of the Special Term granting the plaintiff’s application for a peremptory writ of mandamus, was “reversed and motion denied, with costs,” by the Court of Appeals in this case, in which an alternative writ would have been required but for the adoption by the parties of an agreed statement of facts, upon which the motion for a peremptory writ was made.</p> <p>Held, that this case must be deemed a special proceeding, and that the right to costs was discretionary and dependent upon the effect of the direction in the judgment of the Court of Appeals.</p> <p>That the Court of Appeals did not, in this case, award costs of any other court than its own.</p>

The action was brought by the plaintiff as a taxpayer of the town of Mentz, in the county of Cayuga, against the supervisor, the bonding commissioners of tbe town, and tbe appellant to restrain proceedings to provide funds to pay certain town bonds issued in aid of the construction of the Cayuga Northern Railroad, and to require the appellant to deliver up those of them owned by him that they might be canceled. The plaintiff recovered a judgment for such relief.

A judgment was recovered in a Justice’s Court July 15, 1879. A transcript thereof was 'filed and a judgment docketed in the Steuben county clerk’s office August 11, 1886. Execution having been returned unsatisfied, this proceeding was taken. The defendant was examined, and plaintiff’s motion for the appointment of a receiver was opposed and granted.

Tbe action was brought to recover tbe value of a borse, tbe death of which is alleged to have been caused by tbe negligence of tbe highway commissioners of the town of Phelps, in not properly guarding the highway where a new abutment had been built upon the north side of a stream, north of which abutment and between it and the former roadway an excavation had been made, and left by the commissioners, and a recovery was had against the defendant.

This action was brought for the purpose of seeming a judicial construction of the last will and testament of Proctor Tong, late of Livingston county, who died on the 26th day of August, 1881, and whose last will and testament was admitted to probate by the surrogate of that county before the commencement of this action, letters testamentary under which were issued to the plaintiff.

The action was brought to secure a construction of the last will and testament of Albert Adams, deceased, disposing of both real and personal estate. The disposing clause of the will is as follows: “After the payment of all my honest debts and funeral expenses, I give and bequeath to my wife, Cynthia W. Adams, the use of one-half of botli my real and personal property, together with the entire household furnitme, etc., during her lifetime.

This action was brought for malicious prosecution. The defendant made complaint before a committing magistrate, charging that the plaintiff had opened a sealed letter willfully and without authority^ contrary to the provisions of section 642 of the Penal Code.

The action was brought in a Justice’s Oourt to recover,upon a promissory note set out in the complaint, which was verified and annexed to the summons, and both of which were personally served upon the defendant, who appeared by attorney and demurred to the complaint.

<p>Appeal from a judgment in favor of the plaintiff, entered upon a verdict rendered at theDelaware Circuit for $1,800, and from an order denying a motion for a new trial made on a case and exceptions containing the evidence, and from an order denying a motion for a new trial made on the grounds of surprise and newly-discovered evidence.</p> <p>The action was brought to recover damages for the breach of a contract to marry.</p>

<p>Appeal from an order of tbe Special Term of Oneida county, denying a motion made by tlie defendant Joseph R. Swan, first, that the First National Bank of Utica to be made a party defendant in this action; and second, that the default of said Swan be opened and his proposed answer be received as his answer in this action.</p> <p>The answer of Swan, after setting forth various facts which are mentioned in the following opinion of Judge Follett, asked judgment against the plaintiff and against the defendant Otto E. O. G-oelich, first, that the First National Bank of Utica be made a party defendant in this action; second, that it be ordered, adjudged and decreed that the plaintiff, J. O. Wheeler, pay to the First National Bank of Utica, to be applied to the payment of a note for $1,700, dated September 2, 1885, payable ten days after date, at the First National Bank of Utica and indorsed by the defendant Joseph R. Swan, so much of the amount secured to be paid, by a certain bond and mortgage set forth in the complaint in this action brought to foreclose the same as would be necessary to pay the said note.</p>

<p>Grounds of a motion for a, new trial must be stated — effect ef am, oral agreement modifying the terms of a written lease for a t&rm of th/ree yearns.</p> <p>Where the appeal-book does not disclose the ground upon which a motion for a new trial was made, and it does not appear by the record that the case contains all of the evidence, the appeal does not present the question whether the verdict is contrary Jo the evidence, nor any alleged errors on the part of the jury.</p> <p>In aa action brought to recover rent, the defendants admitted that the rent became due on the day mentioned, but alleged that, immediately subsequent to the execution of the written lease under which such rent became due, which lease was for a term of three years, an oral contract was made between the parties to such lease, by which, in consideration of the payment by the lessees of five dollars a year more than the rent specified in said lease, the lessors agree to make all necessary repairs on the demised premises, or to permit the defendants, the lessees, to make such repairs and to deduct the cost thereof from the rent reserved; that, subsequent to such oral agreement, the defendants necessarily expended an amount, in making necessary repairs, in excess of the rent to recover which this action was brought:</p> <p>Held, that, although the oral agreement was in violation of the statute of frauds, as it was not to be performed within one year from the making thereof ; that nevertheless, the lessees, as they had not received notice from the lessors of any intention on their part to rescind such oral agreement prior to the time of the making of such repairs, were entitled in this action to offset moneys, actually expended upon the faith of such oral agreement, from the rent reserved by the lease.</p>

The plaintiff alleged an easement by virtue of a grant minutely set out in the pleadings and asked judgment that the defendant be restrained from erecting a barn upon the defendants premises and thereby interfering with the plaintiff’s use of his easement. The court found an abandonment of its enjoyment, and of the right thereto. The non-user was for less than twenty years.

In December, 1884, the plaintiffs resided at Springfield, Mass., the defendant at Westford, N. Y., and P. H. Mitchell & Co. were bankers at Schenevus, N. Y., with whom defendant kept an account. The defendant being indebted to the plaintiffs in the sum of forty-six dollars and forty-nine cents, drew, December 1, 1884, his check to their order on P. H. Mitchell & Co. for said amount, and mailed it to the plaintiffs in payment.

<p>Appeal from a judgment, entered upon the dismissal of the complaint and from the direction for a nonsuit entered at the Onondaga Circuit, on the ground that it did not appear from the statement of the counsel for the plaintiff that the proceedings, upon which this action for malicious prosecution was predicated, had been terminated in such a manner as to entitle the plaintiff to maintain the action.</p>

<p>Contract to sell real estate — action by the vendee to recover damages for its breach — what he must prove.</p> <p>In this action, brought by the vendee to recover damages for the breach of a contract to sell and convey real estate, the referee found that the plaintiff was entitled to recover damages on the ground that the title offered was doubtful.</p> <p>Held, that as this was an action at law to recover damages for the breach of the contract, that the party bringing it was required to satisfy the court that the title offered was absolutely bad; that it was not sufficient to show simply that the title was doubtful, and that the decision of the referee allowing damages to the plaintiff was erroneous.</p> <p>In such an action it is necessary for the plaintiff to show either that the defendant did not own the property, or that there were liens or incumbrances upon it, or that he had refused or neglected to convey after a tender of the purchase-price and a request to convey by the plaintiff.</p> <p>In an action in equity to compel a specific performance, or for relief from the contract on the ground of the uncertainty of the title offered, another and different rule applies.</p>

<p>Sale on credit — evidence of intent to defraud.</p> <p>An intent to defraud cannot be imputed to a purchaser of property on credit merely from the facts that such purchaser was, to his own knowledge, insolvent at the time of the purchase and that he omitted to disclose such condition to the vendor.</p> <p>In order to maintain an action of replevin to recover goods sold on the ground of fraud, such evidence must he accompanied by facts disclosing an intent to acquire the property without paying for it.</p> <p>The intention can no more he inferred from the mere fact of insolvency than the ■ fact of insolvency can he inferred from the existence of an intention not to pay.</p>

<p>When a power, given to a widow, to hold and, use as she shall see fit the residua/ry estate of her husband, does not invalidate a gift of what may remain to her children — the sale of am, infant’s real estate does not cha/nge the cha/racter of the infant’s interest in the proceeds thereof, which retains the cha/racter of realty — 2 J3. 8., 195, secs. 175,180.</p> <p>Justus Beardsley died on September 30, 1879, leaving him surviving his widow, Emily R. Beardsley, and two children, Willis S. and Helen P. Beardsley, and leaving a last will and testament, by the fourth clause of which he provided as follows: “All the rest and residue of my estate, both real and personal, I give and bequeath to my beloved wife, Emily R. Beardsley, to be held and used by her as she shall see fit and proper during the full term of her life; and at her death if any part of my said estate shall remain unexpended, then, and in that case, I give and bequeath such remaining portion to my said son, Willis S., and my said daughter, Helen P., in equal parts each to each.” Willis S. Beardsley died on April 14, 1883, intestate, leaving no child or descendant. Emily R. Beardsley died intestate on January 31, 1885, leaving Helen P. her only surviving child or descendant. Helen P. Beardsley died June 10, 1885, aged seventeen years, leaving no child or lineal descendant, but leaving a last will and testament, which purported to devise and bequeath all her real and personal property, which was duly proved and admitted to probate as a will of personal property only.</p> <p>Held, that the testator’s widow did not acquire such an absolute title to the property in controversy as to render the limitation over to her children void, either under the rule at common law or under the Revised Statutes.</p> <p>Campbell v. Beaumont (91 N. Y., 464); Van Horne v. Camrpbell (100 id., 287) distinguished.</p> <p>That, upon the death of Willis S., intestate, his interest in the property became vested in Helen P., subject only to her mother’s life estate.</p> <p>That, upon the death of the widow, her life estate terminated and the whole estate vested in Helen by virtue of the provisions of her father’s will, and by direct inheritance from her deceased brother.</p> <p>That a sale of this property, in proceedings for the sale of infant's real estate, did not change the character of the infant’s interest therein, and that the proceeds of the sale must be deemed real estate and did not pass to the devisees mentioned in Helen’s will as she was incapable of making a will of real estate.</p> <p>That, by the statute of descents, on the death of Helen, the property in question passed to the brothers and sisters of Justus Beardsley, deceased, as well that portion which was inherited from Willis S. Beardsley as that which came to her by devise from her father.</p>

04 rendered in the County Court 6f that county. The action was brought by the plaintiff to recover wages from tbe defendant from May, 1883, to March, 1886, “as carriage and sleigh-maker, and as general workman, under an alleged specific agreement for such labor and services made with defendant, by the terms of which agreement defendant promised and agreed to with plaintiff to pay plaintiff four dollars per week besides his board and washing.” Defendant’s answer contained a…

<p>Appeal from a judgment entered in Broome county upon a decision made at Special Term, setting aside an assignment for the benefit of creditors, and also an appeal from an order appointing a receiver.</p>

<p>Collection of taxes in Lewis county — chap. 158 of 1884, as amended hy chapter 215 nf 1885 and chapter' 102 of 1886, does not violate section 16 of article 8 or sections 5 or § of ao'ticle 1 of the Constitution — the action is a civil action and should he brought hy the county treasw'er.</p> <p>Chapter 153 of 1884, entitled ‘ ‘ An aot to enforce the collection of taxes levied in the county of Lewis,” as amended hy chapter 215 of 1885 and chapter 102 of 1886, provides that from and after its passage it should not be lawful for the owners of any land in the county of Lewis, upon which taxes have been assessed and remain unpaid and due, to peel bark or cut timber upon such land, or to permit other's to perform such work; and that any such owner violating the provisions of the act should be liable, upon conviction, to a fine of $500 for each and every offense; that, upon the sworn statement of such violation delivered or forwarded by the supervisor or one of the justices of the town in which the same was committed to the county treasurer, it should “ be the duty of said treasurer to cause parties implicated in said sworn statement to be prosecuted, and to recover the ' penalty imposed by tbis section.” Power was conferred by tbe act upon tlie county treasurer to employ counsel and to pay all necessary disbursements and fees in tbe prosecution of such action out of any moneys in his hands not otherwise appropriated, and charge the same against the town in which the offense was committed, to which the penalties were directed to be paid by the county treasurer after deducting five per cent allowed to him for his services in recovering them.</p> <p>Held, that, as the provision contained in the act providing a penalty for cutting timber and peeling bark was fairly and directly connected with the general object for which the act was passed, as indicated by its title, and provided measures to secure the accomplishment of the subject or purpose mentioned therein, it did not violate the provisions contained in section 16 of article 3 of the Constitution, providing that no private or local bill shall embrace more than one subject, which shall be expressed in the title.</p> <p>Nor did it violate the provisions of either section 5 or section 6 of article 1 of the Constitution.</p> <p>That actions to recover the penalties imposed by the act for peeling bark or cutting timber were civil actions which should be brought by the county treasurer of Lewis county, and not by the supervisor of the town where the illegal act was committed.</p>

<p>Appeal from a decree of tbe Surrogate’s Court of Otsego county admitting a will to probate.</p>

<p>Conviction fm' seduction under pnomise of marriage — what emdence is sufficient to corroborate the testimony of the female seduced, under section 286 of the Penal Code — the acts making Saturday afternoon a half holiday do not prevent the courts from sitting after twelve o’clock, noon, of that day — evidence is admissible to show the relation existing between a witness and either of the pa/i'ties.</p> <p>Upon this appeal by the defendant from a judgment convicting him of the offense of seducing an unmarried female of previous chaste character, under a promise of marriage, it appeared that on the trial the offense charged was proved by the testimony of the complainant, and that her testimony was supported by that of her father and mother, which tended to show that the defendant, before, after, and at the time of the alleged seduction, was visiting the complainant as her suitor; that he called upon her three or four times a week and visited her evenings; that he wantecLher to go to the picnic at which the sexual intercourse was, according to the testimony of the complainant, had, and agreed to meet her at the pier from which the boat started; that he returned home with her that night; that after this he talked with her and her mother of their contemplated marriage; that the time for its celebration was appointed; that it was postponed and another day set; and that he was shown the dress which the complainant proposed to wear at her wedding.</p> <p>Held, that the complainant’s testimony was corroborrated, both as to the promise of the marriage and as to the illicit intercourse, sufficiently to satisfy the requirements of section 286 of the Penal Code, providing that no conviction can be had for the offense with which the defendant was charged, upon the testimony of the female seduced, unsupported by other evidence.</p> <p>The case was submitted to the jury on Saturday, July 9, 1887, at twenty-five minutes past twelve o’clock m. The appellant claimed that this was error, as chapter 289 of 1887, amending chapter 27 of 1875, as amended by chapter 30 of 1881, made Saturday, after twelve o’clock m., a half holiday.</p> <p>Held, that the claim could not he sustained.</p> <p>That a court was not a public officer within the meaning of that term as used in the said acts, providing that “ the days and half days aforesaid shall be considered as the first day of the week, commonly called Sunday, and as public half holidays for all purposes whatsoever, as regards the transaction of business in the public offices of this State, or counties of this State.”</p> <p>That the statute does not prohibit the holding of courts after twelve o’clock m. on Saturday.</p> <p>On the trial the defendant called his father as a witness, who was permitted on his cross-examination to testify, under the defendant’s objection, that he gave $100 to Mr. Costello to give to the overseer of the poor which he testified that he gave to fix the bastardy matter.</p> <p>Held, that the evidence was admissible, as it was always competent for a party to show the relations which exist between a witness and his adversary, and the party against as well as the party for whom he is called.</p>

Both parties appealed. Tbe reference was of a claim against the defendant as executor of tbe estate of John McGraw, deceased. It was under tbe statute relating to tbe reference of claims against tbe. estates of deceased persons.

June 20, 1885, an indictment was found in the Cortland Oyer and Terminer charging defendant with arson in the third degree, under the second subdivision of section 488 of the Penal Code, in having burned, February 14, 1884, at Cortland village, a wagon factory. February 20, 1886, at the Cortland Oyer and Terminer, the defendant was convicted of the crime charged and sentenced to imprisonment in. a State prison for five years. .

<p>Appeal from a judgment sustaining a demurrer to an amended complaint, on the ground that it did not state a cause of action.</p> <p>The action was brought to recover of the defendant, an alleged stockholder in a company formed under the business corporation act of 1875 (chap. 611, Laws 1875), the amount of an alleged debt of the company, on the ground that its capital stock had never been paid in full.</p> <p>The second paragraph of the complaint alleges that the debt claimed to be due to the plaintiff from the company and for which recovery was sought against this defendant, “ is now lyevng adjusted and determined in an action thereupon brought by plaintiff against said corporation, in the Supreme Court in and for the county of New York.”</p>

<p>Assignee f or creditors — his title to real estate — how affected by a dem'ee passing his accounts and discha/rging him.</p> <p>On the application of a purchaser at a-judicial sale to he relieved from his purchase, it appeared that the premises in question had, subsequent to the time of giving the mortgage and prior to the sale, been included in a general assignment for the benefit of creditors made by one Phillips, then owner of the property; that subsequent to such assignment the assignee had applied to the court for an accounting and for his discharge as such, and before the foreclosure suit was begun an order had been made, in such proceedings instituted by the assignee, which recited that such assignee had accounted for all the property and the estate embraced in the said assignment, and adjudged that the said assignee be discharged from all liability by reason of the matters contained in his accounts or in reference to said assigned estate, except as to a certain balance of money in his hands out of which he was directed to make certain payments and to pay a dividend to the creditors, and that upon making such payment said assignee be discharged from all further liability in reference to said assignment and that his bond be canceled.</p> <p>Held, that the order in question could have no greater effect than was authorized by statute (sub. 5, § 20, chap. 466 of 1877), which only discharges the assignee upon the performance of the decree.</p> <p>That, assuming that the premises in question were included in the subject-matter of the accounting, the assignee was not relieved from responsibility until he had actually distributed the balance of money in his hands as directed by the decree. That as there was no evidence that he had done so the court below properly held that he had not been divested of the title to the premises in question, and the purchaser thereof was properly directed to complete his purchase of the same.</p>

<p>Appeal from an interlocutory judgment overruling a demurrer interposed by the defendant herein.</p>

<p>Petrol agreement not to attack a will, made by one interested, in the estate — it cannot be repudiated aftei• it has been fully performed, by the other prn'ty.</p> <p>James Duff died in, April, 1872, leaving a last will and testament by which he provided for a sale of his real estate after a certain period of time, and directed that one-fourth part of the proceeds of sale should be invested by his executors and the income thereof be paid over to one of his daughters, Mary Jane Jenner, during her life, and at her death he directed the principal to be paid over to her daughter, Alice J. Ferris. A son of Mary Jane Jenner having urged his mother to break the will, the mother and Mrs. Ferris seeking to buy the latter’s peace with the son agreed that, upon the death of his mother, he should have his mother’s share of the personal property which she might receive under the will of his grandfather, and that if it did not amount to $1,000 they would make it up to that amount, and that they would help and assist him as much as they could while his mother lived upon his agreeing that the provisions of the will should be accepted by him as valid.</p> <p>The son accepted this proposition and received, during the life of his mother, from her and Mrs. Ferris, more than $1,000, and also, upon her death, a note for $1,000, which represented his mother’s share in the personal estate of her father, upon which $450 had then been paid.</p> <p>Mrs. Jenner having died, and the appellant having made claim to a portion of his grandfather’s estate, the executors brought this action to determine the rights of the parties.</p> <p>Held, that, as the son had received the money and property under the said agreement, he could not now repudiate the contract and get, in addition, his share in his grandfather’s estate by contesting the validity of the will.</p> <p>That the court did not err in admitting parol evidence of the agreement, as the agreement had been performed upon the part of Mrs. Jenner, and such performance had been accepted by the son.</p> <p>Phillips v. Thompson (1 Johns. Ch., 181) distinguished.</p> <p>That, as the son was never seized of any interest in the real estate of his grandfather, his wife acquired no interest therein.</p>

<p>Appeal from an order increasing tbe amount of security for costs.</p>

Tbe defendants, Louis Engelhorn and Ferdinand A. Marsily were, on tbe 13th’ day of April, 1861, copartners in business and continued such until August, 1867. They, between tbe months of May, 1861, and May, 1865, in tbe course of their business, paid to underwriters sundry premiums for insurance against risk of capture and destruction of tbe merchandise insured, by any of tbe cruisers of tbe Confederate States of America.

?q..ire tbe New York State Civil Service Commission to admit tbe relator to examination as to bis fitness for tbe office of clerk to the collector of canal statistics.

<p>■License fees cmd percentages on proceeds of business, payable by horse railroad companies in New York city — statutes to be construed favorably to the public.</p> <p>In this action, brought to recover license fees alleged to be due from the defendant to the plaintiff for cars run by the defendant upon its various railroad routes in the city of New York, it appeared that by chapter 512 of the Laws of 1860 certain franchises were granted to the defendant, in consideration of which„a license fee was required to be paid.</p> <p>That, subsequently, in 1866, by chapters 868 and 883 of that year, certain additional privileges, in connection with those already conferred, were granted to the defendant, and the defendant was required, if he availed himself of such additional privileges, to pay a certain percentage to the plaintiff, the city of New York, on the net proceeds of his business.</p> <p>Held, that the proper construction of said acts required the defendant to pay, in addition to the license fees required by the act of 1860, a further sum in case he should take advantage of the privileges granted by the acts of 1866.</p> <p>That the payments required to be made under each act were independent of each other, and in each case depended upon the franchises conferred by the act imposing such obligation.</p> <p>That if there was any ambiguity or doubt as to the proper construction of the acts, that construction should be adopted which was most favorable to the plaintiff.</p>

<p>Appeal from order of the Special Term, reducing an assessment for regulating Fourth avenue in the city of New York.</p>

<p>Appeal from a judgment in favor of the' plaintiff entered upon the verdict of a jury.</p>

<p>Complaint against a life insurance company — when held not to state a cause of action.</p> <p>'The complaint in this action alleged the incorporation of the defendant, the issuance by it of a policy of insurance to the plaintiffs upon the life of one W. T. Black; that the defendant contracted to keep on hand, during the continuance of the said policy, sufficient assets to meet the obligation on the contract aforesaid in accordance with the rule prescribed by the statutes of this State, and that the defendant had violated its contract aforesaid and became, and was and ever since has been, insolvent, and that the present value of the policy (a copy of which was annexed to the complaint and formed a part thereof) was $2,339.09, and demanded judgment for this sum. The policy of insurance con. tained no reference to the statutes of the State or agreement to comply therewith.</p> <p>Meld, that a demurrer, interposed by the defendant upon the ground that the complaint did not state facts sufficient to constitute a cause of action, should be sustained.</p> <p>That there existed no rule of law requiring that the statutes should be considered as though inserted in the policy.</p> <p>People v. Security Life Insurance and Annuity Company (78 N. Y., 114) distinguished. 'That the mere insolvency of the defendant did not justify this action.</p> <p>Lovell v. St. Louis Mutual Life Insurance Company (111 U. S., 264). distinguished.</p>

Arpeal from a judgment in favor of the plaintiff entered upon the report of a referee. In September, 1877, the defendant, Reinhold Yon Minden, made an assignment to the plaintiff for the benefit of his creditors.

<p>Admissibility of testimony as to a transaction with a deceased person — power of a referee to strike out evidence — it cannot be exercised after the ease has been submitted to him, unless by stipulation.</p> <p>Upon a trial before a referee, appointed to hear and determine a disputed claim presented by the plaintiff against the estate of one Van Valkenburg, the evi- ■ dence of Mrs. Turrell, who assigned the claim to the plaintiff, was, under a stipulation made between the attorneys of the parties, taken out of court before' a notary public, and presented to the referee and considered as having been read in evidence. The witness was asked the following question : “Do you know whether your husband, at any time, had a written acknowledgment' of any indebtedness from Mr. Van Valkenburg to him?”</p> <p>Held, that an objection taken to the question as incompetent, and as involving a personal transaction with the deceased, was properly overruled.</p> <p>The answer was as follows : “My husband had a written acknowledgment of indebtedness of $14,000 from Mr. Van Valkenburg ; I know this, because some time after my husband’s death, his brother, Henry Turrell, handed to me a paper which he said contained an acknowledgment of $14,000, which Mr. Van' Valkenburg owed to my husband ; Mr, Henry Turrell said that he and his sister, Mrs. Shaffer, who were the only next of kin of my husband, were willing that I should have this money for my own, and he formally presented his one-half interest in it to me at that time.”</p> <p>At a subsequent hearing before the referee, and before the reference was closed,' a motion was made by the appellant to strike out all of the answer of the witness above quoted, commencing with the words “ 1 know this, because,” which motion was denied and exception taken. In his report the referee expressly stated that he disregarded this evidence, holding that he had a right to do so because the evidence was taken in his absence on stipulation, and the objections of counsel and’the rulings of the refereee thereon were recorded pro forma.</p> <p>Held, that he erred in so doing ; that the motion to strike out the evidence should have been granted when made, and that -the appellant had a right to rely upon the exception which he had taken to the denial of such motion.</p> <p>Whatever may be the power of the court or a referee during the progress of a trial, as to striking out evidence which has been improperly admitted, no such right can exist after a cause has been submitted for decision, unless such right has been specially reserved.</p>

<p>Appeals from interlocutory judgments sustaining demurrers to 'the complaints of eacb of tbe several plaintiffs.</p>

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

The action was brought by the plaintiffs as creditors of the Ithaca Organ and Piano Company, to recover from the defendants, who were stockholders in that company, the amount of a certain note made by one Spargo and indorsed by the piano company, and the amount of four other notes made by the piano company to the order of the plaintiffs.

<p>A trustee of a corporation cannot bind it by agreements made with it securing a benefit to himself — his remedy to recover for services rendered to it is by a quantum meruit.</p> <p>Contracts were made between one Johnson, who was the president and one of the trustees of the defendant corporation, and two of the other four trustees of the company, for the payment to him of fixed compensations for the performance of services rendered by him for the defendant, the agreements being dependent for their existence upon the vote of Johnson as well as of the other two trustees. Thereafter Johnson assigned his demands against the company to the plaintiffs, who brought this action upon them.</p> <p>Held, that the agreements were illegal and that the action could not be maintained.</p> <p>That the remedy of the plaintiffs for the recovery of the value of the services rendered by Johnson was by an action upon a quantum meruit and not upon the agreements.</p>

<p>Appeal from an order vacating an attachment.</p>

The action was brought to foreclose a mortgage upon the real estate of one Christopher Tacke, deceased, who died in April, 1887, before this action was commenced, without issue him surviving. August Tacke, a brother and alleged heir of said deceased, was not made a party to the action, and in October, 1887, and before any judgment of foreclosure and sale was made, said August Tacke applied to the court where the action is pending for an order making him a party thereto.

<p>Appeal from a -'udgment sustaining a demurrer to an amended complaint.</p>

<p>Place of trials am, action to procure a judgment, enfm'ting an agreement for the exchange of real property, must he tried in the county where the property, of which a conveyance is ashed, is situated — Code of Civil Procedure, see. 982.</p> <p>In this action, brought to compel the specific performance of an agreement for an exchange of lands, the lands of the plaintiff being in the county of New York and the lands of the defendant being in the county of Kings, the defendant moved for and obtained an order changing the place of trial from the county of New York to the county of Kings.</p> <p>Held, that the order was properly made, as the land which the plaintiff 'sought to have the defendant directed to convey was situated in that county.</p>

Lyon Thorp, during his life, was a lien or charge upon certain premises described in the complaint in this action, directing a sale of the said premises and the payment of such interest out of the proceeds thereof.

Case submitted without action under section 1279 of the Code of Civil Procedure. The defendant purchased and the plaintiff sold at public sale certain real estate in the city of New York, for the sum of $2,800 on the 18th day of February, 1887. The defendant, the purchaser, at such sale refused to pay for the property or accept a conveyance thereof on the ground that the plaintiff had no power to sell or convey the property.

Appeals by tbe Standard Gas-Light Company and Wallace O. Andrews from an order denying a motion for leave to serve supplemental answers, and appeals by the same defendants and Joseph A. Monheimer from an order directing the service of a bill of particulars, and motion by the plaintiff to dismiss the latter appeals.

<p>Appeal from an order denying a motion made to determine the legality of an election of trustees of a manufacturing corporation.</p> <p>The proceedings were instituted under section 5 of 2 Revised Statutes, (7th ed.), 153L</p>

Tbe complaint alleged tbe .sale on May 25, 1885, by tbe defendants of a product not made from milk or cream, wbicb it was alleged was in imitation of dairy butter, and contained coloring matter whereby it was made to resemble dairy butter; and it was further alleged was not a product manufactured or in process of manufacture on April 30, 1885.

<p>Appeal from a judgment, directing tbe issuing of a peremptory mandamus for tbe restoration of tbe relator to bis rights and privileges as a member of tbe Musical Mutual Protective Union.</p>

<p>Appeal from a judgment entered on tbe dismissal of the plaintiffs complaint at the Circuit.</p>

<p>Action by an administrator' — Ms appointment by a competent tribunal of tMs State must be alleged — an objection to a failure to do so may be tabeen by a demwrrer alleging that he has not legal capacity to sue — it is waived by a demurrer allegiag that the complaint does not state a cause of action— Code of Civil Procedure, secs. 582, 495, subí 2,</p> <p>The complaint in this action, brought by the plaintiff as sole administrator of Charles A. Secor, deceased, alleged that "letters of administration were duly issued and granted unto plaintiff, who is in fact alone entitled to the possession of and has sole power, as administrator, etc., to collect the assets and liquidate the business affairs of said firms.” It did not state that the intestate died leaving property in this State, or'that the letters of administration had been issued upon his estate by any surrogate having that authority within this State.</p> <p>Reid, that the allegations of the complaint were not sufficient to show that the plaintiff had been appointed administrator of the estate of the intestate.</p> <p>That the objection to the insufficiency of the averment of the plaintiff’s appointment could be taken by a demurrer, alleging a failure to show that he had legal capacity to sue, as provided in subdivision 2 of section 495 of the Code of Civil Procedure.</p> <p>That it could not be taken by a demurrer alleging that the complaint did not state facts sufficient to constitute a cause of action, and that by interposing a demurrer upon that ground the objection was waived and the plaintiff permitted to maintain the action notwithstanding th’e defective averment of his appointment.</p> <p>The cases bearing upon this question examined, followed and distinguished by • Daniels, J.</p>

<p>Appeal from a judgment in favor of the plaintiffs, entered on the trial of this action at Special Term.</p>

<p>Appeal from a judgment dismissing the plaintiff’s complaint at the circuit.</p>

<p>Liability of sureties upon a bond given by a‘ bookkeeper to secure the faithful per= formanaeof Ms duties — when a recital therein, that he has already been a/ppointed, does not show a want of consideration — additional duties ma/ybe immosed uvon Mm when permitted by the language of the bond.</p> <p>This action was brought by the plaintiff, a national bank, to recover the sum of $5,000 upon a bond executed by the defendants, which recited that “ Richard H. Cornwell (one of the defendants), has been appointed a booklceeper ” of the bank, and was conditioned for the faithful performancee by him of his duties and trusts “as bookkeeper,” so long as he should continue in that capacity; “ or if the said Richard H. Cornwell shall be appointed to any other office, duty or employment by the president and directors of the said bank, he shall also faithfully perform the duties assigned to and trusts reposed in him, and also all such other duties as may from time to time be assigned to or undertaken by him, in relation to the said bank.”</p> <p>Upon the trial of this action it was proved that the defendant Corpwell had appropriated to his own use securities held by the bank to a larger amount than the penalty of the bond. The defendants contended that there was no consideration shown to support the bond, as none was expressed therein, and it appeared from the recital that Cornwell had been appointed a bookkeeper prior to the execution and delivery of the bond;</p> <p>Held, that this recital could not be construed to deprive the bond of a legal consideration, as it was to be inferred from the language of the instrument and the evidence in the case, that the execution and delivery of the' bond was required to render the appointment complete and effectual, and that, until that should be done, the appointment would be provisional only, not binding the bank to continue it or to accept the services or employment of Cornwell.</p> <p>Upon the trial, evidence was given tending to show that, during his continuance in the employment of the bank, Cornwell performed other duties relating to the assistance of the cashier and assistant cashier in other departments of the business; these duties being described by one of the witnesses as being those of a loan clerk in receiving, caring for and exchanging securities placed in the custody of the bank. The president of the bank testified that his appointment as bookkeeper was at no time changed, but continued while he remained in the service of the bank, and that these were additional duties or services required from him while he still sustained his appointment as bookkeeper.</p> <p>In submitting the case to the jury the court directed them that if Cornwell continued in the employment of the bank as bookkeeper, even if other duties were superadded to that employment, the defendants would be liable on the bond, but, if he had been virtually removed from the position of a bookkeeper and put into anotlier position which, enhanced the liability of the defendants on their bond, then they were entitled to a verdict.</p> <p>Held, that this direction properly presented the case to the jury.</p> <p>That the bank had the right to exact the performance of these duties from the bookkeeper, in addition to those appertaining to his services in that capacity, whenever that became necessary and he was willing to render the service to it, as the recital contained in the bond did not forbid this employment, while the conditions expressly provided for and permitted it.</p> <p>National Mechanics’ Banking Association v. Oonkling (90 3ST. Y., 116); Rochester Gity Bank v. Bimood (31 id., 88) followed.</p> <p>Questions were asked during the trial as to whether ordinary bookkeepers had access to the negotiable securities in the custody of the bank, and what were the duties of an assistant cashier or loan clerk, and what were the services of the principal in the bond when he first entered into the employment of the bank, and what difference there was in the duties of the bookkeeper and those of a loan clerk or assistant cashier, and whether there was any acceptation among bankers as to the duties of bookkeepers in banks, whether Cornwell, in handling securities or dealing with the securities of the bank, performed duties ordinarily performed by assistant cashiers, and whether what was done by him was not outside of the ordinary duties of a bookkeeper, and whether it was out of his ordinary duties to handle the securities of the bank, and whether this was not a peculiar and special duty which devolved upon some person occupying a higher position than that of bookkeeper, and what were the ordinary duties of a bookkeeper.</p> <p>Held, that under the legal rules applicable to this case, the answers to these questions could not, if they had been received, have changed the aspect of the controversy, and that the court did not err in refusing to allow them to be answered. (Brady, J., dissenting.)</p>

<p>Appeal from an order made at a' Special Term confirming the report of commissioners for opening Railroad avenue east.</p>

Appeal, from a judgment entered upon an order made at a Special Term, directing judgment against the defendants upon their demurrer as frivolous.

<p>Kidnapping — what facts authorize a comiction under subdivision 1 of section 211 of the Penal Code — section 213 is not applicable la cases of inveiglement — a consent produced by fraud is no consent.</p> <p>The defendant was indicted for willfully and feloniously inveigling and kidnapping one Sarah Bowers with intent to cause her to he sent, without authority of law, to the city of Aspinwall, in the State of Panama, in the United States of Columbia, and to be there kept against her will. It appeared on the trial that she was induced, enticed and wheedled by the appellant, aided and abetted by a woman whom she met at his office, and who seemed to have been acting in concert with him, to go on board a steamer bound to Aspinwall, the inducement being the offer of a situation for her as nurse or ladies’ companion in Panama, upon which she testified she relied, and by which she was induced to go, and that if it were not for such reliance she would not have gone. The defendant suggested the passage, procured and paid for the tickets and gave Mrs. Bowers a letter addressed to a Mrs. Do Bleu, who appeared to he his ally in the 'business in Panama, and who received and disposed of the women he sent to Aspinwall, the business being, as was revealed by the letter, when considered in connection with the testimony of a witness examined on the trigd, the transportation of women to Panama for the purposes of prostitution.</p> <p>Held, that a judgment convicting the defendant of the offense of kidnapping, as defined in subdivision 1 of section 211 of the Penal Code, providing that ‘ ‘ a person who willfully seizes, confines, inveigles or kidnaps another with intent to cause him, without authority of law, to be secretly confined or. imprisoned within this State, or to be sent out of the State, or to be sold as a slave, or in any way held to service or kept or detained against his will,” should be affirmed.</p> <p>Hadden v. The People (25 N. Y., 373) followed.</p> <p>That the word “inveigle” means to persuade, to something bad, to wheedle, to entice, to seduce, to beguile, and involves no physical force, but such mental control over the person inveigled as to entice him to do what it is designed, or intended to beguile him to do, and if this be accomplished by falsehood, by deceit, misrepresentations or device, whatever it may be, which captivates the mind, the crime is committed.</p> <p>That section 213 of the Penal Code, which declares that upon a trial for a violation of the chapter containing section 211, the consent thereto of the person kidnapped or confined shall not be a defense unless it appears satisfactorily to the jury that such person was above the age of twelve years, and that the consent was not extorted by threats or duress, did not apply to cases of inveiglement but only to cases which did not necessarily involve the consent of the person entrapped.</p> <p>That if such a consent is to be regarded at all it would not avail the defendant, by reason of the doctrine extending through all the departments of the law, that whatever is produced by fraud is to be deemed as though it did not exist.</p>

<p>Action against cm assignee for the benefit of creditors — a creditor of the assignor cannot intervene unless misconduct of the assignee is shown.</p> <p>In tliis action, brought by the plaintiff, as receiver of the assets and effects of Grant & Ward, against John H. Morris, as assignee for the benefit of the creditors of James D. Fish, to recover certain property which the said assignee claimed to hold by virtue of the assignment, an order was made allowing certain creditors of the said Fish to intervene and defend this action.</p> <p>Held, that as no misconduct on the part of the assignee was claimed to eicist, the order should be reversed.</p> <p>Ohandler v. Powers (25 Hun, 445) distinguished.</p>

<p>Appeal from an order made at Special Term, granting leave to the plaintiff to file and serve a second supplemental complaint.</p>

The action was brought to obtain an injunction restraining the defendant from interfering with certain water-power privileges whicn were claimed by the plaintiff.

The action was brought under chapter 428 of the Laws of 1855, to recover the sum of $1,000 for the alleged destruction of a shanty and its contents by a mob. The plaintiff was the owner of a shanty on the line of the new aqueduct in the county of Westchester. About five o’clock in the afternoon of the 11th of October, 1886, a large number of men came into the bar-room of plaintiff’s shanty. When these men entered the shanty they were sober, quiet and orderly.

The action was brought by the plaintiff as the assignee of Annie E. Dennis, widow of J. Ered. Dennis, to recover the sum of $5,000, claimed to be due upon a certain policy of insurance or certificate of membership issued by the defendant.

<p>Action for false imprisonment — when a master is liable for cm arrest made, by Ms servants, in the management of his business.</p> <p>Upon the trial of this action it appeared that the defendant was the owner of a place called Glen Island, which he used as a place of resort, his son being the manager of the island; that the defendant made an agreement with one Pinkerton, under which the latter was to furnish all the police needed^ and that Pinkerton made one Hines captain of the men put there by him. The plaintiff,a ticket taker, having been wrongfully arrested and detained by the defendant’s son and Hines on a charge of larceny, in stealing tickets, which was not proved to be true, brought this action to recover damages for a false imprisonment.</p> <p>Held, that for such an arrest, directed and approved by the defendant’s manager, an action would lie against the defendant, and that the trial court erred in directing a verdict in favor of the defendant.</p>

• In this case a referee was, under section 2546 of the Code, duly appointed by the surrogate “ to examine an account rendered and to hear and determine all questions arising upon the settlement of such account.” A trial was had before the referee, who made a report containing findings of fact and conclusions of law, which report was in all respects confirmed. A decree was thereupon entered October 4, 1886, from which the appellant took an appeal on October 30, 1886.

Appeal from a judgment entered in Kings county in favor of the defendants, sustaining demurrers interposed by them to the amended complaint,

<p>Power of sale — where no donee of tlw power is designated in the will, the power is rested in the executor.</p> <p>Jolm McKeown died leaving a win by which, after directing the payment of his debts and making a small specific bequest, he gave, devised and bequeathed to his wife all the rest, residue and remainder of his estate, both real and personal, for her support and comfort, to vest absolutely in her during her lifetime, and at her decease, after all her lawfnl debts were paid, he further gave, devised and bequeathed to the Board of Home Missions, and the Board of Church Extension of tbe United Presbyterian Church of North America, the residue of his estate, “the same to be sold and turned into cash and divided equally between the two boards.” He appointed the plaintiff executor.</p> <p>■Held, that the executor was authorized, upon the death of the widow, to sell and convey the real property of which the testator died seized.</p> <p>.That as the will bestowed a power of sale, without designating the donee of the power, the power vested in the executor.</p> <p>Bogert v. Hertell (4 Hill, 500); Borland v. Borland (2 Barb., 80) followed.</p>

<p>Injuries sustained by fright earned by the sight of a rum/maty house — no action can be maintained to recover the-damages thereby sustained.</p> <p>The plaintiff, who was a married woman, in a state of pregnancy, was standing in the door of her husband’s house, in Hicks street, in the city of Brooklyn, with her little child, about four or five years of age, when a horse belonging to the defendant company, and which had run away, dashed up the street at a high rate of speed, with whiffitree dragging after him. The horse plunged towards the woman, but his progress was arrested by a post against which he fell and put out his eye. The plaintiff, although not touched by the horse, sustained a' severe shock from her fright, which brought on a long train of nervous diseases.</p> <p>Upon the trial of this action, brought by the plaintiff to recover damages for the injuries thus sustained, the complaint was dismissed upon the pleadings and opening.</p> <p>Held, that the judgment should be affirmed, as the action could not be maintained.</p>

Appear from a judgment in favor of the plaintiff, entered upon the verdict of a jury rendered in his favor, at the Rockland circuit, and from an order denying a motion for a new trial, made upon the minutes of the justice presiding at the trial.

Louise Brown, filed by William B. Hill, receiver of George W. Brown, the husband of' said deceased. After the death of said M. Louise Brown and before the probate of her will, the appellant, at the instance of Thomas H. Robbins, a judgment creditor of George W. Brown to a large amount, was appointed receiver of all the property of said George W. Brown, including equitable interests and things in action, effects and estate, real and personal.

<p>Appeal from a judgment in favor of the plaintiff, entered upon the finding of a jury, at the Kings county circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.</p>

Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury at the Kings County Circuit, and from an order denying a motion to set aside tbe verdict and for a new trial,

The plaintiffs are undertakers residing in the city of New York, and the action is brought by them in their own behalf, and in behalf of all other undertakers of New York and Brooklyn who may come into this action. The defendant is the board of health of the town of Newtown, Queens county, and is organized under chapter 270 of the law's of 1885.

Appeal by tbe plaintiffs from a judgment dismissing their complaint, entered on a trial at the Kings county Special Term, and from an order granting an additional allowance of $500 to the defendant.

Oebtiobabi to review tbe action of referees appointed by tbe county judge of Suffolk county upon an appeal from an order of tbe commissioners of highways laying out road.

The proceeding was taken by certiorari to review the determination of the board of assessors of Brooklyn, in assessing certain lands in Brooklyn belonging to the city of New York. The lands in question are leased to and used and occupied by the Union Ferry Company of Brooklyn. Under the terms of this lease, the Union Ferry Company pays an annual rental to the city of New York, and conducts a ferry plying between the two cities.

<p>Appeal from an order made by the surrogate of Orange county, denying a motion that an order of the surrogate, assessing and determining the tax of the petitioner under the collateral inheritance law of 1885, be revoked, as having been inadvertently made.</p>

Appeal by Antonio Lazzari from the report and appraisal of commissioners appointed to condemn his land for the purposes of the Staten Island Rapid Transit Railroad Company, and from the order confirming the same. The commissioners allowed for the part taken $1,350.

Appeal by Mary J. Palmer, one of tbe residuary legatees tinder tbe will of Osmer Hollister, deceased, from so mneb of tbe decree of tbe surrogate of Greene county, made upon tbe final accounting of tbe executors, as adjudges that the distributive share of said Mary, as one of tbe residuary legatees of said Osmer Hollister, be reduced to tbe extent of $1,042.81 on account of tbe claim to that amount paid by tbe executors to John O. Palmer, tbe surrogate, bolding such to be…

In 1884, while the plaintiff Prefontaine was attempting to foreclose a chattel mortgage for $1,000 given to him by the defendant Richards, the latter commenced an action in the county court to restrain and enjoin Prefontaine from selling or in any manner interfering with the property described in the mortgage, and for the cancellation of said mortgage, claiming that the mortgage was paid and Prefontaine was indebted to him in the sum of $928, and obtained an injunction order…

<p>Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee for $3,557.65 damages and costs.</p> <p>Tbe action, commenced October 11, 1886, was in form tbe ordinary common law action for money bad and received by defendants to tbe use of plaintiff. Tbe defense was that tbe.money alleged in tbe complaint to have been received by defendants to tbe use of plaintiff, was in fact paid by tbe plaintiff to them in satisfaction of claims they bad against plaintiff’s intestate for board and money loaned.</p> <p>John E. McCluskey died on tbe 20th of August, 1884, in tbe city of New York, at tbe bouse where tbe defendants, bis aunts, resided, with whom be bad bved since 1865. He left an estate, consisting of monéy, to tbe amount of $3,75 6.26, tbe bulk of which was in possession of a firm in that city in which be had an interest, smaller sums being on deposit in three savings banks. Against this estate there weye claims other than defendants’, which aggregated $533.19. On tbe 27th day of August, 1884, the plaintiff and tbe-def endants made a written agreement, which, after reciting tbe death of McCluskey, intestate, tbe fact that.the' plaintiff was bis sister and only next of kin, tbe value of tbe estate and tbe fact that tbe defendants bad certain claims against it, amounting in tbe aggregate to $3,096, set forth that in consideration of tbe defendants becoming sureties of tbe plaintiff, as administratrix, their claims should be immediately paid, tbe balance to be retained by tbe plaintiff as her absolute property, tbe debts and funeral expenses of tbe intestate to be paid by the defendants out of tbe money received by them. On the next day (twenty-eighth) tbe plaintiff was appointed administratrix by tbe surrogate of New York. On tbe same day tbe defendants received tbe amount of their claims, as specified in tbe agreement, and subsequently tbe defendants paid claims against tbe estate, aggregating, as above stated, $533.19.</p>

The action was brought to recover damages for injuries to the plaintiff, his wagon, harness and horses, caused by a collision with defendant’s train of cars upon a highway crossing. The railroad of the defendant from Troy to Schenectady is intersected in the outskirts of the city of Cohoes by the public highway called the Manor road.

The -action was brought to recover for injuries alleged to have been received by the plaintiff in consequence of a defective sidewalk leading from the defendant’s passenger depot, in Albany, to Maiden lane, a public street.

<p>Appeal from an order, made by tbe county judge of Saratoga county, dismissing an appeal from a judgment rendered in a ■ Justice’s Court.</p>

Tbe action was in replevin to recover tbe possession of a stock of groceries from tbe defendant. Tbe defendant by bis answer justified under four executions issued on judgments rendered against John Sherlock and John Bulger, averring that the property in question belonged to them, or that they had a leviable interest therein. After tbe plaintiff had rested tbe defendant offered in evidence the four judgment-rolls, transcripts of tbe judgments and executions thereon.

. Aureal from a judgment in favor of tlie plaintiff, entered upon a verdict of a jury rendered upon a trial in the Schenectady County Court. The action was brought to recover for damages to the plaintiff’s horse, wagon and harness, alleged to have been caused by the negligence of the defendant. The plaintiff’s husband, while driving the horse which was harnessed to the wagon in which he was seated, approached from the west the railroad crossing on State street, Schenectady.

The proceedings of the relators were instituted September 13> 1886, under chapter 269 of the Laws of 1880. One piece of property known as “ River View,” situated on the high bluff; east of the Hudson River railroad, in the city of Troy, was assessed for the year 1886 at $60,500. This assessment was reduced to $40,000, on the ground that the full value of the property was not over $40,000.

By order of this court, upon his application, Mr. Hart, as supervisor of the town of Perth, was admitted as a party defendant in this proceeding.

<p>Costs — on the reversal of an order of a Comity Court granting a new trial, on a motion made upon its minutes — ore fitted by subdivision 4 of section 3251 of the Code of Civil Procedure.</p> <p>An order having been made by a County Court granting a motion, made upon its minutes, to set aside a verdict rendered therein in favor of the plaintiff, an appeal was taken by the plaintiff to the Supreme Court where the order was reversed and the motion for a new trial was denied, “ with costs.”</p> <p>Held, that the plaintiff was entitled to have his costs taxed, as provided in subdivision 4 of section 3251 of the Code of Civil Procedure, viz.: “Before argument, twenty dollars; for argument, forty dollars.”</p> <p>That by enacting the first clause of subdivision 4 of section 3251, giving “ to either party, upon an appeal to the Supreme Court from an inferior court,” the amounts above stated as costs, it was intended to give to the prevailing party, upon an appeal to the Supreme Court from an inferior court, the same costs when the appeal is taken from an order as when it is taken from a judgment, that is to say, the same costs in all cases in which such an appeal is taken. (Fish, J.)</p> <p>That the appeal here was from an order granting a new trial made in the County Court, that is to say, “in the same court ” from which the appeal is specified in the first clause of the said subdivision of the said section, namely, “from an inferior court.” (Landon, J.)</p>

<p>Appeal from ail order, made at Special Term and entered in Warren county, directing a peremptory mandamus to issue.</p>

<p>Appeal from an order, made at tlie Albany Special Term, which denied the relators’ motion for a peremptory mandamus.</p> <p>The motion below presented tlie question whether chapter 143 of the Laws of 1886, relates to or governs a proceeding to reorganize a railroad corporation, pursuant to the provisions of chapter 430 of the Laws of 1874, entitled “ An act to facilitate the reorganization of railroads sold under mortgage, and providing for the formar tion of new companies - in such cases,” amended hy chapter 446 pf the Laws of 1876.</p>

<p>JL principal furnishing money to an agent for investment is entitled to a bond and mortgage taken therefor in the name of the agent — the right to it can be enforced against the assignee of the agent unless he proves the tn'ansfer to ha/oe been made in good faith and for a valuable consideration — recital of a consideration — net evidence of the fact.</p> <p>In March, 1884, the plaintiff, pursuant to an agreement made with the defendant Krum, who was a large stockholder, a director and president of the Schoharie County National Bank, furnished to him $6,000, with which he was to pay for a farm about to be sold, it being agreed that a mortgage upon such farm was to be made to the plaintiff to secure the payment of the money so furnished. Krum bid off the farm at a sale in partition, had on March fourteenth, and used his own certified check to make the payment of fifteen per cent cash, required by the terms of sale. On or about April first the plaintiff, upon Krum’s requisition and statement that he had bought the farm, furnished the money to him, and on M,ay first Krum paid the entire bid, receiving from the referee the certified c heck and a deed of the farm. On May sixth Krum conveyed the farm to another person, for whom he had agreed to buy it, and received from him his bond and mortgage for $6,000, which were, on March 9, 1885, transferred and delivered to the defendant the Schoharie County National Bank, by a written instrument expressing a consideration of $6,000.</p> <p>Upon the trial of this action, brought by the plaintiff against Krum, the bank and its receiver, to have the assignment set aside and the bond and mortgage adjudged to belong to the plaintiff, the referee found that there was no proof that at the time or after .the transfer the bank paid or parted with anything in consideration of the transfer, or that any person other than the defendant Krum acted in relation to the transfer.</p> <p>Held, that the fact that the assignment was put in evidence by the plaintiff, did not make the recital of the consideration paid evidence as against her, as she was compelled to put it in evidence in order to have the court adjudge it to he invalid and set it aside, and because the recital was of a consideration in a transaction between other parties, which she was seeking to set aside.</p>

The action was originally brought against John Warner for trespass, upon whose death the executors of his estate were substituted.

<p>Power of a surrogate to grant costs to counsel — it is limited by sections 2561 and 2562 of the Code of Civil Procedure — no credit can be given to an executor for counsel fees, unless they have been actually paid to the attorney.</p> <p>A surrogate has not the power to award costs to the counsel of an executor or administrator, except as provided in sections 2561 and 2562 of the Code of Civil Procedure.</p> <p>While executors or administrators are not precluded from employing counsel to give them necessary legal assistance in the management of their trusts, or from compensating counsel according to the value of the services rendered, the rule is well settled that in no event can an allowance be made by the surrogate for a claim presented by an executor until he has actually paid his counsel and applies for reimbursement.</p> <p>In this case the executor was credited in the decree, entered upon the settlement of his accounts, with $200 as the value of services rendered by an attorney, and with $150 for services rendered by another attorney in another action, while the undisputed evidence showed that no money had been paid to either of them, the executor, who was insolvent, having given his notes to them.</p> <p>Held, that the claim of the executors did not come within the rule justifying the surrogate in giving the credit.</p>

<p>Appeal from an order setting aside a verdict rendered by a jury at tbe Albany Circuit in favor of tbe plaintiff for $750.</p>

<p>Appeal from an order made at the Albany Special Term December 27, 1887, directing that a writ of peremptory mcmda/mus issue, commanding the appellants to recognize and associate with the relator as a director of the board of directors of the village of Saugerties, and to permit him to take his seat in said board and act as a director of said village. The motion for the writ was opposed on affidavits, upon the ground that the relator was not eligible to the office.</p>

Appeal by tbe People from a judgment of tbe Court of Sessions of tbe county of Albany, sustaining a demurrer to an indictment The indictment contained two counts.

Smith, as president. The action was brought by the Commercial Telegram Company to restrain the New York Stock Exchange from excluding the plaintiff from its premises and from making an exclusive arrangement with the Western Union Telegraph Company or the Gold and Stock Telegraph Company, for carrying on the business of gathering on the floor of the New York Stock Exchange the quotations of dealings at said exchange and the distribution thereof among its customers.

<p>Contract for sale of real estate — suppression of foots — the vendor is not required to malte disclosures inrega/i'd to the condition of the public records relating to the abutting streets and menúes — the filing of a map by the commissioners of the department of public pandes widening an rnenue does not defeat the title of the owners — nor does their omission from said map of an existing street thereon close it.</p> <p>Upon the trial of this action, brought to recover from the defendant the sum of $250 paid down upon the signing of a contract for the sale of a lot, it appeared that the defendant contracted to sell to the plaintiff a plot of ground, with the house and stable thereon, situate at the north-west corner of Monroe avenue and Gray street, fifty feet front and rear and one hundred feet in depth. The plaintiff refused to accept a deed of the premises upon the ground that the defendant could not convey them to him, free and clear from all encumbrances, as the commissioners of the department of public parks had, on February 21, 1879, filed a map in which they omitted Gray street and changed the name of Monroe avenue to Morris avenue, and laid down Morris avenue as eighty feet wide, that being wider than Monroe avenue had been, which widening took off fifteen feet from the west end of the lot and a portion of the piazza of the house. The plaintiff claimed to recover back the money so paid upon the ground that he had no knowledge of the fact of the widening of Monroe avenue and the closing of Gray street, and that the defendant had suppressed these facts which were known to him.</p> <p>Held, that, under the circumstances, there was no duty imposed upon the defendant which required him to make any disclosure in regard to the condition of the public records relating to the existence of these streets and avenues.</p> <p>That the filing of the map in question in no way defeated the title of the defendant to the premises until the proceedings provided by the statute had been taken for the purpose of condemning the premises.</p> <p>King v. Knapp (59 N. Y., 462) distinguished.</p> <p>That the filing of the map by the commissioners of the department of public parks, although they omitted Gray street therefrom, did not, under the statutes in force at the time of the filing, close the same.</p> <p>Kerning v. Irwin (55 N. Y., 486) distinguished.</p>

<p>Appeal from an order made at the New York Special Term, staying proceedings on a reference ordered by the interlocutory judgment in this action.</p> <p>The affidavits used on the motion showed that the respondents procured an attachment and a judgment against the defendant Pease, and levied upon certain property which the appellant St. Amant claimed to own and which he claimed had been sent to Pease as his agent, with instructions to Pease to sell it. An interlocutory judgment was recovered sustaining the claim of the appellant St. Amant, and ordering a reference for the determination of certain details. The funds in question, which were claimed by St. Amant, were deposited in a trust company at a low rate of interest, involving an annual loss as com. pared with legal interest amounting to some $600. The action has been pending some four years.</p>

<p>Trade-man'h — it is not acquired by the originator, unless he produces and sells goods having the words attached to them — the difference between a trade-mcm'h and a patent stated.</p> <p>Upon the hearing of an appeal from an order granting a preliminary injunction, restraining the defendant from selling and advertising garments stamped with the words “ normal’’and “ system Professor Jaeger,” it appeared that the plaintiff claimed to have acquired the right to use the words “normal” and “system Professor Jaeger,” as its trade-mark, by a concession made to it by Prof. Jaeger, who it was claimed was the inventor of the system.</p> <p>Held, that, as it did not appear that Prof. Jaeger ever manufactured any of these goods, or that he had sold such goods having these words attached to them, it was not shown that he had ever acquired a proprietary right in the words, the use of which it was sought to enjoin, and that the order should be reversed.</p> <p>A trade-mark is a mark attached by the manufacturer and seller of goods to the merchandise produced by him, in order to distinguish them from alike class of merchandise produced by others ; and the right to the exclusive use of such mark accrues, not because he was the originator of the same, but because he has applied it to goods of his manufacture and may have acquired a reputation in connection with such mark.</p> <p>The case of a patentee is entirely different, as he acquires rights by the issuance of a patent, which, if valid, entitles him to absolute protection.</p>

<p>Action to recover damages for irvjwries caused by the defective condition of a city street — the intoxication of the person injured is not a defense, nor does it constitute contributory negligence unless it contributed to bring about the accident.</p> <p>Upon the trial of this action, brought to recover damages for injuries resulting from a fall by the defendant down an embankment, alleged to have been caused by the defective condition of one of the streets of the city of New York, evidence was given tending to show that the plaintiff was intoxicated at the time of the hap pening of the accident. The court, after charging that intoxication was not a defense^’ se, and could not be invoked to decide such an action as this, added: “ It is, however, evidence of contributory negligence on the part of the intoxicated person. If he has been guilty of contributory negligence, and that contributory negligence consists in the fact of intoxication, he cannot recover; the city would be entitled to yow verdict if, in this case, you find that I/ynch, at the time the accident occwrred, was intoxicated, and there is nothing in the case which would enable you to measwe degrees of intoxication."</p> <p>Held, that it was error to so charge.</p> <p>That the true rule was, that if the jury found that the plaintiff was under the influence of liquor, and that the intoxication contributed to bring about the accident, the defendant could not recover.</p>

<p>Appeal from an order, made at Special Term, directing the defendant to furnish to the plaintiff a bill of particulars of certain losses incurred in certain transactions conducted by the defendant for the plaintiff and referred to in the defendant’s answer.</p>

Certioraei to review the action of the respondent in transferring the relator from duty as Chief of Battalion to duty as Foreman in the Fire Department of the City of New York.

<p>Appeal from a judgment entered on tbe dismissal of the plaintiffs complaint at the circuit.</p>

<p>Election of remedies — effect of a party not having knowledge of the facts.</p> <p>In tliis action, brought to recover certain tobacco 'which had been previously sold and delivered by the plaintiffs to one Moeller, it appeared that the sale was made in October, 1885; that in the month of December following, Moeller made a general assignment for the benefit of his creditors to the defendant Tuch, upon the execution and delivery of wlfich assignment the plaintiff brought an action for the nurchase-price of the tobacco, and obtained and issued an attachment against the property in the hands of Moeller, which was levied upon goods in his possession; the attachment was subsequently vacated on appeal.</p> <p>After the attachment had been vacated, and in February, 1886, the action for the recovery of the purchase-price of the tobacco was discontinued, and this action was commenced to recover the possession of the tobacco, on the ground that the plaintiffs had been induced to sell the same by false and fraudulent representations made by Moeller to them. Evidence having been given to sustain the allegations as to false and fraudulent representations, the complaint was dismissed.</p> <p>field, error; that the case presented a question which the plaintiffs were entitled to have submitted to the jury for their consideration and decision.</p> <p>That the commencement and prosecution of the action to recover the price of the tobacco and the issuing and seizure of the debtor’s property under the attachment, did not constitute such an election of remedies as to preclude the present suit for the recovery of the tobacco, the former suit having been discontinued, as it did not appear that the first action was brought with the knowledge on the part of the plaintiffs of the fact that the representations which had been made by Moeller were fraudulent and untrue.</p>

<p>Appeal from a judgment in favor of tlie plaintiff, entered upon a trial at tbe New York Special Term, in an action brought to have an assessment declared invalid to the extent of forty-eight and three-tenths per cent, and for the recovery of that percentage upon the amount of the assessment which had been paid by plaintiff in 1874, with interest from the time of such payment.</p>

<p>Mandamus — not the proper remedy to compel a/i'bitrators to act.</p> <p>In this application for a peremptory mandamus, it appeared that an arbitration had been agreed upon between the relators and certain other parties, good at common law, though not framed pursuant to the provisions of the Code in respect to arbitrations.</p> <p>Held, that a mandamus-was not a proper remedy by which the arbitrators, refusing to act, could be required to perform their functions.</p>

<p>Appeal from an order granting a peremptory writ of mandamus requiring tbe appellants to exhibit to the relator, a stockholder, the transfer-book and list of stockholders of the St. Louis and San Francisco Railway Company.</p>

<p>Assignment of an insurance policy as collateral security — the policy reverts on the payment of the amount provided to he paid hy a composition deed.</p> <p>In this action, brought to recover of the defendant the amount received by him upon a policy of insurance upon the life of plaintiff’s intestate, it appeared that in May, 1883, the plaintiff’s intestate, to secure the defendant against loss by reason of certain accommodation indorsements made for him by the defendant, assigned to the latter a policy of insurance upon his (the intestate’s) life for $10,000. In September, 1885, the creditors of the intestate, including the defendant, executed a composition deed by which they agreed to receive in full satisfaction of their respective claims twenty-five cents on the dollar, and, upon receipt of notes representing such amounts, they delivered to the intestate general releases of their respective claims against him.</p> <p>Subsequent to the compromise agreement,, the defendant continued to hold in his possession the policy of insurance, and when the annual premium became due in March, 1886, he sent to the intestate for the receipt for the same, which the latter delivered to him. After the death of the plaintiff’s intestate, the defendant collected the amount of the policy, to recover which this action was brought.</p> <p>Held, that a claim made .by the defendant that the compromise and release did not operate to extinguish his right to the policy, but only to release any claim he had against "Robinson, was not maintainable.</p> <p>That by the compromise and release the debt, as collateral to which the policy of insurance was delivered, was extinguished, and thereby the title to the collateral security reverted to its original owner.</p> <p>That there was no sufficient evidence in the fact of the continued possession of the policy by the defendant, and the delivery of the premium receipts to him by the intestate, to show that there was an intention on the part of the intestate that this result should not follow from the extinguishment of the debt.</p> <p>That if such was the intention of the parties, then it was a fraud upon the other creditors of Robinson, as the retention or exaction of any security by any of the creditors of Robinson for the payment of the pre-existing debt, would have been a fraud upon the other creditors signing the composition agreement.</p> <p>That even if the facts in this case would justify the presumption of a promise or agreement, under which the policy was to be held to secure such released indebtedness it would be doubtful whether such agreement could be enforced, because of a want of consideration therefor.</p>

Appeal by tbe plaintiffs from a judgment, entered upon tbe trial of tbis action at tbe New York Special Term, dismissing tbe complaint.

<p>Alternative devise — contingent oft, the ownership of the property — effect of the ownership by the testator of an undivided half interest in the lamd.</p> <p>In this action, "brought to obtain the construction of a will, it appeared that the testator devised to his daughter, the defendant "Witliington, certain lots of ground, but in his will provided, “but should I not die possessed of said last mentioned property, or should the property be the subject of litigation at the time of my death, then I give, devise and bequeath to my said daughter,” certain other property described in the will.</p> <p>In reference to the property first mentioned, it appeared that although the title thereto was in the name of the testator, it had been conveyed to him for a debt due to a firm of which he was a member, so that he was, in fact, the owner of only a one undivided half interest in the entire property.</p> <p>Held,, that the testator did not die possessed of said property within the intention of the w-ill, inasmuch as he was only the owner of an undivided'half interest therein.</p> <p>That the fact that the testator had disposed of the property referred to secondly in the clause of the will mentioned, which was given to his daughter in case he should not die possessed of the property first mentioned, in which alternative she would be deprived of all benefit under such clause of the will, did not change the construction which should be given to this clause.</p>

<p>Negligence in the mreof passengers at a ferry — what constitutes.</p> <p>In‘this action, brought to recover damages resulting from the death of the plaintiff’s intestate at the ferry of the defendant, it appeared that upon the day of the accident the plaintiff’s intestate entered the waiting-room of the defendant and stood in the midst of a crowd which was waiting for the arrival of the boat. When the door was opened to allow the crowd to go upon the boat, teams were coming rapidly off the boat upon the roadway, on to which the plaintiff’s intestate was pushed by the crowd, and was killed by a truck which was passing along the roadway from the boat to the street. It appeared that without the pushing and jostling of the crowd the accident would not have happened.</p> <p>The evidence showed that the boat-house, in its plan of construction, was substantially the same as that of the other ferry-houses in the city of New York, and that no similar accident had occurred before, and it further appeared that it was a matter of frequent occurrence upon the opening of these doors, that men, by the pushing of the crowd, would be forced into the roadway.</p> <p>Held, that under these circumstances, it was clearly negligent to 'open these doors when heavy trucks were going up the bridge at a high rate of speed, as, by being forced into the roadway, the passengers were necessarily placed in peril, and it was negligence on the part of the defendant not to provide against the happening of such an accident.</p> <p>Loftusv. Union Ferry Company (84 N. Y., 455) distinguished.</p>

<p>Appeal from an order denying leave to tbe National Park Bank to levy, nnder attachment, upon certain property in the possession of Francis O. Boyd, as receiver of the goods, etc., of H. Webster & Co.</p>

<p>Appeal from an order made at a Special Term dismissing a petition to vacate an assessment and denying tbe prayer of the petitioners.</p>

<p>Appeal from an interlocutory judgment sustaining a demurrer to an amended complaint and to an amended supplemental complaint.</p>

<p>Appeal from a judgment, entered upon the trial of tliis action before the court without a jury.</p> <p>The action was brought by The People to obtain the removal of -certain trustees of a corporation and to have adj'udged void a resolution directing the distribution of tbe assets thereof, and for the appointment of a receiver of its assets. The corporation was entitled “The Second Union Co-operative Land and Building Society.” It had existed in the city of New York from •the 20th of January, 1868, in pursuance of an act of the legislature, untitled “An act for the incorporation of Building Mutual Loan :and Accumulating Fund Associations,” passed April 10, 1851. ((Chap.. 122 of 1851.) It passed a resolution on October 23, 1881, 'declaring tbe society dissolved and providing for tbe distribution of tbe assets. Tbe corporation was made a party defendant with the individuals who, as “ managers,” sought to enforce the resolution above referred'to. The case was brought to trial at Special Term where a judgment was rendered in favor of plainitff, which declared the corporation dissolved and appointed a receiver.</p>

a new trial, made upon tbe minutes of tbe justice before whom tbe action was tried. Tbe action was brought to recover damages for tbe sinking of a canal boat called1 tbe “'Deba D. Lafayette,” owned by plaintiff. Upon tbe trial it was admitted by tbe plaintiff’s counsel: “ That tbe boat Lafayette bad been temporarily repaired and bad been in use since tbe time of tbe accident.

Appeal by Joel B. Erhardt, receiver of the New York City and Northern Railroad Company, from an order directing him to pay the sum of $8,540.95 into the treasury of the State of New York, for taxes upon the earnings of the railroad company for the years 1883, 1884, 1885 and 1886, and to issue receiver’s certificates to obtain money for that purpose.

<p>Power of an agent to bind an inmrance company as to risks accepted by him, subject to the approval of the company, considered — when the question of acceptance should be submitted to the jury.</p> <p>Upon the trial of this action, brought to recover for a loss caused by a fire which occurred on January 24, 1881, by which the building and printing -office of the assignor of the plaintiff, located at Lancaster, South Carolina, were burned, it appeared that the defendant company had a general agency in the city of Atlanta, and that one Nelson was employed by it to solicit insurance by personal application to persons owning property, and was entrusted with. blank printed applications and receipts, and in the course of that business received the premiums upon risks which were satisfactory to him, took the application of the owner and delivered receipts subscribed by himself for the future issuing of a policy, subject to the approval of the insurance company.</p> <p>In the course of this employment Nelson filled out an application for a policy upon the building, and books and furniture therein, for the owner, B. F. Welsh, for the term of one year from January 5, 1881, received from him the premium to be paid, and delivered to him a receipt stating the application for the insurance for the term of one year, subject to the approval of the company, and acknowledged the receipt of tlie premium, the application being the same day mailed to the general agent at Atlanta.</p> <p>On February fifteenth a letter was written to Welsh by the manager of the defendant’s business, at Atlanta, informing him that the application had been laid before him on January twenty-sixth, and that when the class of hazard was ascertained it was rejected as a prohibited risk, and that the application was returned, and the agent so advise’d. Evidence that it took a letter three or four days to go from Lancaster to Atlanta and back by rail, and that the company had proposed to insure a printing-office and dwelling belonging to a witness, was given upon the trial.</p> <p>Held, that the court erred in taking the case from the jury and dismissing the complaint, as the decision of the case depended upon a state of facts from which the jury might have inferred, if it had been submitted to them, that the insurance was intended to be binding from the time the application was accepted, and that it was satisfactory to the general agency of the company at Atlanta, after its receipt at that office, and was rejected only for the reason that the property was destroyed by fire before a policy was made out and delivered.</p> <p>That if the agency actually accepted the application for the insurance, then it became a binding contract upon the defendant,-e/en if, Nelson’s authority extended no further than to receive and forward applications to the office, to be there either accepted or rejected.</p> <p>Walker v. Ifarmers’ Insurance Company (51 Iowa, 679) followed; Winnesheik Instance Company v. Holzgrafe (53 111., 516) distinguished.</p>

<p>Appeal from an order made at Special Term refusing to release the relator on habeas corpus.</p>

<p>Appeal from an order made at a Special Term denying a motion to compel a purchaser to complete liis purchase.</p>

<p>Appeal from a judgment in favor of tbe plaintiffs, entered upon the report of a referee.</p>

Appeal by tbe defendants from a judgment in favor of tbe plaintiffs entered upon a decision of tbe court at tbe circuit, upon a trial before tbe court without a jury.