Volume 55 — New York Appellate Division Reports

Appeal by the defendant, the Merchants’ National Bank of Poughkeepsie, N. Y., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 14th day of April, 1900, upon the report of a referee ; also an appeal by the plaintiff, the James Reynolds Elevator Company, from so much of said judgment as allows interest on the moneys found due by the referee only from the time of the commencement of the action,…

Appeal by the defendant, Henry Brown, from'so .much of an order of - the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of November, 1900, on the defendant’s motion for a retaxation of costs, as ■ denies the defendant any costs at Special Term.

<p>Negligence — a covered wagon run into from, the ream' by a street ewr and the driver thrown out and hilled—proof of his ea/rning capacity and of his contribution to the support of his family.</p> <p>In an.action to recover damages resulting from the death of the plaintiff's intestate, it appeared that the intestate was driving a horse attached to a covered business wagon, the rear end of which was closed by a curtain, along a city street at the side of the defendant’s street railroad; that in order to pass a vehicle standing in the roadway, the intestate was obliged to drive upon the tracks, and that immediately after doing so his wife, who was riding on the seat with him, leaned over and looked out of the left side of the wagon toward the rear to see whether a car was coming, but saw none; that the horse was trotting slowly, and that after proceeding half a block the intestate’s wife again looked back, but saw no car; that after the wagon had proceeded another half block in the car track it was struck from the rear by a car with such force that the intestate was thrown out and sustained injuries which resulted in his death. The accident occurred in broad daylight upon a much traveled street at a point where the defendant’s servant, in the exercise of reasonable care, could not have failed to see the wagon in time to have given warning of the approach of the car and if necessary to have stopped it.</p> <p>Meld, that a verdict in favor of the plaintiff would not be disturbed;</p> <p>That the jury might properly conclude that the vigilance of the intestate’s wife was known to the intestate and that, under the circumstances and surroundings under which he had driven upon the track, he had not been guilty of contributory negligence;</p> <p>That evidence of the earning capacity of the intestate and as to the extent to which he contributed to the support of his family was competent upon the question of damages, it being shown that his income was derived from his own labor without the investment of capital in any proper sense, although he had the assistance of a few other men, which fact did not materially increase his individual earning capacity Bjrschbers, J., dissented.</p>

Appeal by the defendant, the Welsbach Light Company, from so much of an order of the Supreme Court, made at the Kings County Special- Term and entered in the office of the clerk of the county of Kings on the 27th day of August, 1900, denying the motion of said defendant to set aside the service of the summons and complaint upon it, as reads as follows: “ Ordered that said motion under said order to show cause be,, and the same hereby is, in all respects denied, with $10…

Appeal by the defendant, the Atlanta Home Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the T9th day of December, 1899, upon the. verdict of a jury; also from an order entered in said clerk’s office dn the 19tli day of December, 1899, denying the defendant’s motion for a new trial made upon the minutes, and also from an order made at the Westchester Special Term and entered…

<p>Contributory negligence — when a question for the jury—injury at an icy railroad crossing, obstructed by standing trains, near a curve, in the absence of signal, gates, flagman or lights.</p> <p>In an action brought to recover'damages resulting from the death of the plaintiff’s intestate, who was killed, at a highway crossing on the defendant’s railroad, it appeared that at the crossing there were five tracks extending north and south, a south-bound switch, the south-bound main, the north-bound main and two north-bound switches.</p> <p>There was evidence tending to show that the accident happened- on a dark cold night, when the planking at the crossing was icy and slippery, while the intestate was attempting to walk across the tracks in an easterly direction along a highway, which bore to the north; that freight trains were standing on the three switch tracks, but had been divided so as to leave the crossing clear, the engine connected with the train on the south-bound switch making some noise by the revolving of its wheels and the-escape of steam, and that when the intestate was clear or nearly clear of the north-bound main, he was struck and killed by a north-bound train, which, without giving any warning of its approach, came upon him at a speed of twenty-five miles an hour around an abrupt curve located just south of the crossing. Evidence was given that a train traveling twenty-five miles an hour would reach the crossing in a very few seconds after turning the curve, and that the distance from the point where the deceased emerged from the broken freight train on the south-bound switch to the place where he was struck was about thirty feet. There were no gates at the crossing, no flagman and no lights.</p> <p>There were no eye witnesses of the accident, but it appeared that the deceased was an educated, temperate man, forty-five years old, with good eye sight and hearing, and careful and cautious in disposition and temperament.</p> <p>Held, that the question whether the plaintiff’s intestate was guilty of contributory negligence was properly submitted to the jury.</p> <p>Goodrich, P. J., and Jbnks, J., dissented.</p>

Appeal by the plaintiff, Robert Govers, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the-20th day of March, 1900, upon the decision of' the court rendered after a trial at the Westchester Special Term dismissing the plaintiff’s complaint upon the merits. ■ •

Appeal by the defendants, E. Holbrook Cushman and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of March, 1900, upon the verdict of jury for $5,000, and also from an order entered in said clerk’s office on the 19th day of March, 1900, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, the Laflin and Rand Powder Company, from a judgment of the Supreme Court in favor of the plaintiff, entered- in the office of the clerk of the county of Kings on the 16th day of January, 1900, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 16th day of .January, 1900, denying the defendant’s motion for a new trial made upon the minutes.

<p> Arbitration clause in a building contract—when not a bar to an action for extra work. </p> <p>A provision in a building contract that “ should any dispute arise respecting the true value of any carpenter work added or omitted by the contractor, the same shall be valued by two competent persons, one employed by the owner and the other by the contractor, and these two shall have the power to name an umpire, whose decision shall be binding on all parties,” is not a bar to an action by the contractor to recover for extra work ordered by the owner where it does not appear that the owner either took steps for the selection of arbitrators or demanded or offered arbitration.</p>

Appeal by the defendant, the Village of Port Jervis, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 29th day of March, 1900, upon the decision of the court rendered after a trial at the Orange Special Term overruling the defendant’s demurrer to the plaintiff’s complaint.

Appeal by the petitioners, Edward B. La Fetra and George W. Glaze, composing the legal firm of La Fetra & Glaze, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 14th day of December, 1899, denying their motion to impress a lien for professional services rendered to Ella L. Millard in the above-entitled action upon the amount adjudged to be due the said Ella L. Millard by the…

Appeal by Robert J. Shadbolt from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 19th day of June, 1900, directing Robert J. Shadbolt to deposit to the credit of Sidney L. Rowland and Robert P.' Everett, as executors of Thomas R. Everett, deceased, certain money withdrawn by him, and also from an order entered- in said Surrogate’s Court-on the 10th day of July, 1900, resettling the first-mentioned order. -:

Appeal by The City of New York, the defendant in each of the above-entitled actions, from judgments of the Supreme Court in favor of the plaintiff in each of the above-entitled actions, entered in the office of the clerk of the county of Kings on the 2d day of May, 1900, upon decisions of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Bobert Fyfe, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, fourth district, rendered on the 26tli day- of J uly, 1900, upon the decision of the court dismissing the plaintiff’s complaint. The complaint in this action alleged, among other things: “ Second.

Appeal by the defendants, The Westchester County Water Works Company and others, from a final order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 1st day of September, 1898, confirming the report of the commissioners of appraisal appointed in the proceeding, with notice of an intention to bring up for review upon such appeal a judgment in favor of the plaintiff entered in the office of…

Appeal' by the defendant, John Niéderstein, from an amended j udgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of January, 1900, upon the decision of the court rendered after a trial at the Kings County Special Term decreeing specific performance of a contract to purchase a bond and mortgage, except .from so. much of said judgment as awards the sum of seventy-five dollars to the defendant for an…

Appeal by the plaintiff, Calvin E. Hull, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings oil the 13th day of February, 1900, upon the decision of the court rendered after a trial at the Kings County Trial Term. The case was tried before a jury, but each party having moved for the direction of a verdict, the court discharged the jury and decided the case.

<p>Appeal by the plaintiff, tlie Quee Drug Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 23d day of December, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint on the merits.</p>

<p>Appeal by the defendant, The City of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of May, 1900, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 9tli day of April, 1900, denying the defendant’s motion for a new trial made u]Don the minutes, unless within ten days after service of the order the defendant should pay $50 to the plaintiff.</p>

<p>Appeal by the plaintiff, Johanna Brogan, as administratrix, etc., of Michael Walsh, deceased, from a judgment of the- Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 4th day of January, 1900, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Kings County Trial Term.</p>

<p>Appeal by the defendant, Annie E. Heiland, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 5th day of March, 1900, upon the decision of the court, rendered after a trial at the Queens County Special Term, overruling the said defendant’s demurrer to the complaint, interposed on the ground that the complaint did not state facts sufficient to constitute a cause of action.</p>

Appeal by the defendant, The Brooklyn Union Elevated Railroad. Company, from a judgment of the Supreme Court in favor of the plaintiff, entered-in the office of the clerk of the county of Kings on the 28th day of June, 1900, upon the verdict of a' jury for $1,500, and also from an order entered in said clerk’s office on the 14th day of July, 1900, denying the defendant’s motion for a. new trial made upon the minutes.

<p>Will—an absolute gift in a will — qualified by a gift over, by a codicil, of the same property, “on the death of" the beneficiary named in the will.</p> <p>Where a testator by his will devised the family residence to his only son, Oliver, in fee, and by the 4th codicil thereto provides: “On the death of my said son Oliver, I give and devise to my said grandson, Oliver E.,' his heirs and assigns,” such family residence, the son Oliver only acquires a life interest in the premises and not the fee thereof, especially where it appears that until after the execution of the 3d and before the execution of the 4th codicil the son Oliver had no issue.</p> <p>The words, “On the death of my said son Oliver,” used in the 4th codicil, mean “at the death of my son” or "upon the death of my son,” and are not synonymous with “in the event of the death of my son” or similar phrases. In this case the death referred to was not a death of the son during the life of the testator.</p> <p>This construction is supported by the fact that the testator in the 2d codicil to his will made provision for the devolution of his property “in the event that my children, or either of them, shall depart this life before my death.”</p>

<p>Appeal by the defendants, Max Fleischmann and another, from an order of the City Court of Mount Vernon, entered in the office of the clerk of said court on the 25th day of June, 1900, denying the defendants’ motion for a stay of execution pending the determination of an appeal from a judgment theretofore entered in the action.</p>

Appeal by the plaintiff, John Coney, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schoharie on the 13th day of April, 1900, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Schoharie Trial Term.

Appeal by the plaintiff, Alvina D. Budd, from a judgment of’ the Supreme Court in favor of the defendant, entered in the office of' the clerk of the county of Warren bn the 30th day of January, 190Ó,, upon the report of a referee dismissing the plaintiff’s complaiút and granting the defendant an absolute divorce, with notice of an intention to bring up for review on such appeal an order made at the Washington Special Term, bearing date the 22d day of January, 1900, and…

.Appeal by the relator, Mary O’Brien, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered' in the office of the clerk of-the county of Clinton on the 17th day of November, 1899, denying the relator’s motion for a peremptory writ of mandamus directed to the defendants, commanding them to declare the relator entitled to the benefits of chapter 767 of the Laws of 1895, and to certify the name of the relator to the board of supervisors of the…

Appeal by the plaintiff, Sarah M. Breed, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chenango on the 14th day of February, 1900, .upon the report of a referee appointed under section 2718 of ' the. Code of Civil Procedure dismissing the plaintiff’s claim against the estate of Byron M.'Breed, deceased.

Appeal by William J. Morgan, Comptroller of the State of New York, and another, from a decree of the Surrogate’s Court of the county of Washington, entered in said Surrogate’s Court on the 13th day of April, 1900, revoking the transfer tax theretofore fixed upon the shares passing to Cornelius Corbett and Ellen Corbett, and adjudging that such shares are exempt from taxation under the Transfer Tax Law.

<p> Selection of a right of way. </p> <p>In selecting a route for a right of way, given without a definite statement as to its location, a reasonable regard for the interests and convenience of the person over whose lands it is to be laid out must be shown.</p> <p>The use of a way by the parties gives a construction to the grant.</p>

<p>Town bridge — authority of the town board required to aMthorize its construction — right of one contracting with the commissioner of highways to rely on his statements — remedy of the town to^prevent interfer.ence-with the bridge.</p> <p>Where a town board passes a resolution allowing the commissioner of highways to rebuild a bridge destroyed by a flood provided he can dó so by subscriptions for the necessary labor, except that of one skilled man, and out of material owned by the town, except the necessary iron, which he was to furnish, and after subscriptions amounting to about 180 days’ labor have been obtained, the town board passes the following resolution: “ Resolved, that we, as a Town Board, hereby consent that the Commissioner of Highways build the bridge known as the Wilcox Bridge at Bedford, provided that the same contributions can be secured as has heretofore been offered,” the highway commissioner has no power to enter into a contract for the construction of an iron bridge for the contract price of $4,000, to be paid in cash or town.certificates, providing that “ the subscription of labor, subscribed heretofore, will be used in hauling and erecting work.”</p> <p>The party contracting with the highway commissioner has no right to rely solely upon the second resolution, as such resolution contained oh its face a condition of which the contracting- party was obliged to take notice.</p> <p>A claim or explanation made by the highway commissioner, tending to extend the authority actually given him, is not binding on the town.</p> <p>.Semble, that if the party contracting -. with the commissioner proceeds to enter upon the performance of the contract, the town is not obliged; to.seek redress in an action for damages, but may maintain an action in equity to restrain the icontracting party from in any way interfering with -the bridge and its •.approaches.</p>

<p>Appeal by the defendant, John G. Hilliard,, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Ulster on the 12th.day of April, 1900,. upon the verdict of a jury; also from an order made at the Albany Special Term and entered in the office of the clerk of the county of Ulster- on the 19th day of March, 1900, denying the defendant’s, motion to change the place of trial of the action from the county of Ulster to the county of Hew York or to the county of Kings, and also from an order made at the Ulster Trial Term bearing date the 2d day óf April, 1900, and entered in the-office of the clerk of the' county of Ulster, denying the defendant’s motion for a stay of proceedings until the hearing and determination of the appeal from the. order denying his motion to change the venue of the action.</p>

<p>Appeal by the defendant, The Kingston City Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 2d day of December, 1899, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the contestant, Henry A. Howard, as executor, etc., of Clarissa Ordway, deceased, from a decree of the Surrogate’s Court of the county of Warren, entered in said Surrogate’s Court on the 12th day of June, 1900, judicially settling and allowing -the account of William McEchron and James M. Ordway, as surviving trastees of Clarissa Ordway under the last will and testament of Jones Ordway, deceased.

<p>Appeal by George T. Murdock, as receiver of the partnership property of Witherbee, Sherman- & Co., from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the. clerk of the county of Essex on the 8th day of August, 1900, discharging the said George T. Murdock, as receiver of the partnership property of Witherbee, Sherman & Co., and directing him to turn over the property of said copartnership to the corporation of Witherbee, Sherman & Co.</p>

Appeal by the defendant, Edwin B. Cable, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of tlie clerk of the county of Delaware on the 18th day of April, 1900, upon the decision of. the court rendered after a trial at the Delaware Special Terra.

<p>Negligence — injury caused by the fall of a chimney upon a woman in an adjoining yard—duty of reasonable care imposed on the owner—pi'emous knowledge of the defective chimney is not contributory negligence, as matter of law..</p> <p>In an action brought to recover damages for personal injuries sustained by the plaintiff the evidence tended to show that a yard next to the house in which the plaintiff resided adjoined a house owned by the defendant, and that while the plaintiff was washing in the yard she was injured by a shower of bricks which suddenly fell from a chimney on the defendant’s house; that for a year prior to the accident the chimney had been in a dangerous condition; that the defendant did not occupy the house, and that about three months before the accident he rented the portion in which the defective chimney was located to a tenant.</p> <p>Held, that it was error to nonsuit the plaintiff;</p> <p>That it was a question for the jury whether the defendant, in the exercise of reasonable care, should have discovered and remedied the defect in the chimney;</p> <p>That proof of previous knowledge on the part of the plaintiff of the defective condition of the chimney did not establish, as matter of law, that she was guilty of contributory negligence.</p>

Appeal by the defendant, The Grand Rapids School Furniture Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 20th day of June, 1900, upon the decision of the court rendered after a trial at the Broome Special Term overruling the defendant’s demurrer to the complaint, and also from an order entered in said clerk’s office on the 20th day of June, 1900, upon which such…

<p>Champerty — the defense of, must be pleaded—exceptions only are reviewable on an appeal from a judgment — motion for a second new trial under Code of Civil Procedure, § 1525, when granted.</p> <p>Tlie objection th^t a deed under which the plaintiff in an action of ejectment claims title is void under the Champerty Act (R. S. part 2, chap. 1, tit. 2, § 147; Laws of 1896, chap. 547, § 225) is matter of defense, and is not available unless set up in the answer. ,</p> <p>An appeal from a judgment entered on a verdict must be determined solely upon exceptions taken at the trial. ' '*</p> <p>A motion for a new trial made in an action of ejectment under section 1525 of the Code of Civil Procedure, after one new trial has already been had under that section, is governed by the 2d clause thereof, and will not be granted unless the court is satisfied that j ustice will be promoted by another trial and that the rights of the parties will be more satisfactorily ascertained and established.</p>

Appeal by the plaintiff, Orrin W. Smith, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county, of Delaware on the 31st day of January, 1900, upon the decision of the court rendered after a trial before the court without a jury at the Delaware Trial Term dismissing the complaint upon the merits.

Appeal by the defendant, The First National Bank of Fort Edward, from a judgment of the Supreme Court in favor of the plaintiff, entered in .the office of the clerk of the county of Washington on the… Held: by plaintiff were bid in by the bank, the deed to it being dated January 28, 1899, and the bank thereby became and was the owner-of the premises at the time of the commencement of this action, on March 9, 1899.

<p>Appeal by the defendant, the Lehigh Valley Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 23d day of January, 1899, upon the verdict of a jury for $5,000, and also from an order made at the Erie Special Term and entered in ■ the office of the clerk of the county of Erie on the 19th day of January, 1899, denying the defendant’s motion for a new trial made upon a case- and exceptions.</p> <p>This appeal was transferred Irom the fourth department to the third department.</p>

Appeal by George T. Murdock, as receiver of the partnership property of Witherbee, Sherman & Co., from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Essex on the 11th day of September, 1900, adjudging him guilty of contempt for refusing to deliver the property of said partnership to the corporation of Witherbee, Sherman & Co., p ursuaiit to an order of the Supreme Court dated July 14, 1900, and also…

Appeal by the defendant, The State Board of Tax Commissioners, from so much of an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the. county of Albany on the 3d day of July, 1900, as provides: “ Ordered, that the motion to strike from the writ the words including the manner of making the same,, the method pursued by yon in making and fixing a valuation upon such special franchise of the petitioner in said city of…

Appeal by the defendants, Miles D. Goodyear and others, from a judgment of the County Court of the county of Cortland in favor of the plaintiff, entered in the office of the clerk of the county of Cortland on the 23d day of October, 1899, affirming, as modified, a judgment of a justice of - the peace in favor of the plaintiff for the sum of about forty-one dollars and costs.

<p>Appeal by the defendant, The City of Troy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 16th day of March, 1900, upon the verdict of á jury for $1,000, and also from an order entered in said clerk’s office on' the 11th day of April, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>. Upon the 3d day of January, 1897, the plaintiff, in walking along the north side of Harrison street in the defendant city, stepped upon a covering of a cesspool entrance which was upon the highway or sidewalk upon the street. This covering gave way and plaintiff fell in and was injured, and for these injuries she has recovered in this action. The stone is cut down around this hole a little way, leaving a rim or flange on which rests an iron plate. This flange was in places broken, and it is claimed that by reason of this imperfection the iron plate gave way, which caused the plaintiff’s fall. The notice of plaintiff’s claim was presented and left with the comptroller, pursuant to the charter of the city of Troy, and notice of an intention to commence an action was filed with the counsel to the corporation. The filing of these two notices is made by the charter of the city of Troy a condition precedent to the bringing of an action. An action was then commenced for this same injury, which was thereafter discontinued. After said discontinuance and before the bringing of- this action a new notice of an intention to commence an action was filed with the counsel of the corporation, but no new notice of claim was presented to or left with the comptroller.</p> <p>Further facts appear in the opinion.</p>

Certiorari issued out of the Supreme Court and attested on the 19th day of July, 1900, directed to John Magee, police commissioner of the village of Lansingburgh, N. Y., commanding him to certify and return to the clerk of the county of Rensselaer his proceedings in relation to the removal of the relator from the position of janitor and station-house keeper of the police station of the village of Lansingburgh. The relator is a veteran of the Civil war.

Appeal by the defendant, The Town of Bethlehem, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 3d day of April, 1900, upon the verdict of a jury for $700, and also from an order entered in said clerk’s office on the 12th day of April, 1900, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, John M. Barnett, from a judgment of the Supreme Court in favor of the defendant George W. Daw, entered in the office of the clerk of the county of Rensselaer on the 2d day of December, 1899, upon the report of a referee dismissing the complaint upon the merits.</p> <p>The plaintiff, being the owner of certain premises in Wisconsin, sold them to Sunderland and Ostrander and took back as part of the purchase money two notes, one for $400 and the other for $425. These notes were secured by a mortgage on the property sold. One of these notes was paid; the other one is the subject of this action. Thereafter Sunderland and Ostrander conveyed the property to one Le Claire by a deed in which Le Claire assumed the payment of the notes and mortgage. Subsequently Le Claire sold the premises to the defendants in this action by a deed in which these, defendants assumed the payment of the said mortgage and notes. In February, 1891, these defendants sold the same property to one Deyo by a deed in which Deyo assumed the payment of these notes and this mortgage. At this time, and prior thereto, one Gates had been the general agent of tlie plaintiff in the State of -Wisconsin, with general authority to deal with his property as he thought wise for the best interest of the plaintiff. As such agent he had possession of this note, which was unpaid, and of this mortgage. Deyo, who was then the owner of this property, held a mortgage upon some land owned by the agent Gates. A barter was attempted to be made between them. Deyo assigned to Gates the mortgage which he held upon his land, and under a power of attorney Gates assigned this mortgage and this note to Deyo.</p> <p>Gates thereafter had recorded in the clerk’s office of his county a deed to this plaintiff of a three-fourths interest in one of the lots which had been freed from the Deyo mortgage. It does not appear in the case that any knowledge of this deed or of the consideration of the assignment of this mortgage and note ever came to Barnett until about a year after the transaction, when he, through his agent acting under a general authority, repudiated the transfer of the property, disclaiming the authority of Gates to assign to Deyo the mortgage and note, and brought an action to foreclose the mortgage.</p> <p>'Meanwhile Deyo, after having obtained possession of this mortgage and note, transferred the same to the Douglas County Bank, of which he was then president. This bank thereafter went into the hands of a receiver, the Northern Trust Company,, which took possession of this note and this mortgage. This receiver was made a party defendant in this foreclosure action, and set up in defense its own ownership of the mortgage. While that action was pending, with the concurrence of Gates, this plaintiff deeded to this receiver the land which Gates had attempted to deed to him, and took from the receiver an assignment of this mortgage and of the note. The foreclosure action proceeded to judgment and sale, and upon the sale the sum of about twenty-five dollars was realized. Thereafter this action was brought upon the note against the defendants upon their covenant to pay the same contained in the deed by which they purchased the property. The defendants have asserted two defenses to this action: First, that the transfer by Gates of this mortgage and this note to Deyo was authorized under the general authority possessed by Gates; secondly, that if not authorized the transfer was afterwards ratified by the plaintiff. Upon both of these contentions the defendants have prevailed with the referee, and from the' judgment dismissing 'the complaint this plaintiff has appealed.</p>

Appeal by the defendants, Edson Bradley and others, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Albany on the 16th day of July, 1900, denying the defendants’’ motion to change the place of trial from the county of Albany to the county of Hew York.

Appeal by the claimant, the Lakeside Paper Company, from a judgment of the Court of Claims in favor of the claimant, rendered on the 23d day of March, 1900, for the sum of $2,242, with interest from June 26, 1896, except from so much of said judgment as adjudges that the claimant recover of the State the sum of $146, its costs upon the last preceding appeal to the Appellate Division from the judgment rendered by the Court of Claims on January 18,1899 The grounds of the…

Appeal by the plaintiff, James Rutherford, from so much of an order of the Supreme Court, made at the Delaware Trial Term and entered in the office of the clerk of the county of Delaware on the 22d day of March, 1900, as denies the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Isaac P. Sutherland and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 14th day of July, 1899, upon the report of a referee dismissing the complaint upon the merits.

Appeal by the plaintiff, Christina Walter, from a judgment of the County Court of Montgomery county in favor of the- defendant, entered in the office of the clerk of the county of Montgomery on the 20th day of February, 1900, upon- the report of a referee dismissing the complaint. The. action was originally commenced in the court of a justice of the peace, where a judgment was rendered in favor of the defendant.

<p>Special franchise tax—failure to report within thirty days — it does not create a forfeiture of the right to the statutory writ of certiorari — a petition for the writ need not negative the forfeitu/re.</p> <p>The provision in section 43 of the Tax Law (Laws of 1896, chap. 908), as amended by chapter 713 of the Laws of 1899, the Special Franchise Tax Law, requiring a written report to the State Board of Tax Commissioners “ within thirty days after this section takes effect, or within thirty days after such special franchise is acquired,” when construed in connection with «the clause imposing a-forfeiture of “ the sum of one hundred dollars for every such failure, and the Additional sum of ten dollars for each day that such failure continues,” does not impose an absolute time limit of thirty days, for a failure to make a report within which time the party in default shall forfeit his right “to review the assessment by certiorari, as provided by section 45 of this chapter,” but permits the report, subject to the pecuniary penalty imposed, to be made at any time before a final assessment is made.</p> <p>'The forfeiture, if there has been such forfeiture, of the right to a review by the statutory writ of certiorari, is a matter of defense and need not be negatived in the petition for the writ of certiorari provided for in said section 45.</p>

Appeal by the relator, Edward H. Spain, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 1st day of June, 1900, denying the relator’s motion to make absolute an alternative writ of prohibition, and authorizing the respondent, Mark J. Coyle, as commissioner of public safety of the city of Troy, to proceed in the matter or proceeding pending before him against the said relator, as…

<p>Specific performance of a contract — an injunction not granted where its enforcement will involve very serious difficulty — an injunction which will occasion greater . damage than will result from its denial will not he granted.</p> <p>In an action brought to compel the specific performance of a contract by which the defendant agreed to sell and deliver to the plaintiff yearly 11,000 to 13,000 cords of pulp wood for a period of ten years, or, at the option of the plaintiff, for a period of twenty years, an injunction pendente lite, following the terms of a negative covenant contained in the contract, will not be granted, enjoining the defendant from “selling or disposing of any of the thirty-two thousand (32,000) acres of land described in the complaint * * * or the pulp wood or timber thereon, consisting of spruce and balsam, so as to in any way jeopardize or prevent the complete fulfillment and performance of the contract,” as the court, in view of the difficulties involved in compelling obedience to its decree, will not direct specific performance of a contract of this kind.</p> <p>The fact that the plaintiff’s ultimate success was doubtful and-that the injury to the defendant which would follow the injunction would be greater than any possible injury which would result to the plaintiff from its denial, affords an additional reason for denying the injunction pendente lite.</p>

Appeal by the defendant, Della Hartwell, from a judgment of the County Court of the county of Chenango in favor of the plaintiff, rendered on the 'Tth day of April, 1900, convicting her of the crime of feloniously receiving stolen property knowing it to have been stolen; also from an order denying the defendant’s motion for a new trial, and also from an order entered in said clerk’s office on the 26th day of March, 1900, overruling her demurrer to the indictment and…

Appeal by the plaintiff, David M. Alexander, from a judgment and order of the County Court of the county of Albany in favor of the defendant, entered in the office of the clerk of the county of Albany on the 28th day of March, 1900, affirming a judgment of the City Court of Albany rendered on the 28th day of December, 1899, dismissing the plaintiff’s complaint.

Appeal by the defendant, The Commercial Travelers’ Mutual Accident Association of America, from a judgment of the Supreme Court in favor of the plaintiff, entered.in. the office of the clerk of the county of Chemung on the 10th day of April, 1899, upon the verdict.of a jury, and also from an order entered in said clerk’s office on' the 26th day of June, 1900, denying the defendant’s motion for a new trial made on a case and exceptions.

Appeal by Charles W. Morse, the relator in the first above-entitled. action, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 3d day of July, 1900, setting aside an alternative writ of prohibition, theretofore granted commanding Myer Mussbanm, an alleged referee, and John C. Davies, Attorney-General of the State of Mew York, to desist and refrain from any further proceedings under an ex…

<p>Certiorari-—not granted to review the proceedings of an examining hoard appointed under section 64 of the Military Code.</p> <p>An examining board appointed under section 64 of the Military Code (Laws of 1898, chap. 212) to “ examine into the moral character, capacity and general fitness for the service” of any commissioned officer of the National Guard of the State of New York ordered before it, and to return the testimony taken and a record of its proceedings to the Governor, does not possess or exercise judicial functions, and its proceedings cannot he reviewed by certiorari.</p>

Appeal by the plaintiff, Susan S. Morris, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 1st day of May, 1900, upon the dismissal of. the complaint by direction of the court after a trial before the court and a jury at the Saratoga Trial Term. The action was brought to recover damages sustained by the plaintiff by reason of the alleged negligence of the defendant.

Certiorari issued out of the Supreme Court and attested on the 24th day of April, 1900, directed to William J. Morgan, as Comptroller of the State of Rew York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in the settlement of the account for taxes assessed against the relator for the years 1896,1897 and 1898.

Appeal by George B. Coe, as executor, etc., of Sarah A. Coe, deceased, from so much of a decree of the Surrogate’s Court of the county of Chenango, entered in said Surrogate’s Court on the 20th day of FTovetnber, 1899, as directs the said George B. Coe, as executor, to pay to the Associated Presbyterian Society of Oxford a legacy of $2,000, with interest thereon from September 11, 1891, with notice of an intention to bring up for review upon such appeal an order of the…

Appeal by the plaintiff, Carrie Jarvis, as administratrix, etc., of William W. Jarvis, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of St. Lawrence on the 13th day of October, 1898, upon the dismissal of the complaint by direction of. the court after -a trial before the court and a jury at the St. Lawrence Trial Term.

<p>Action fm' a penalty, under the Agricultural Law, for selling impure milk — the facts as to the conduct of the inspection need not be alleged.</p> <p>In an action brought by the Commissioner of Agriculture in the name of the People of the State of New York to recover a penalty alleged to have been incurred by the defendant in selling impure and adulterated milk in violation of sections 20 and 23 of the Agricultural Law (Laws of 1893, chap. 338), the complaint need not allege the existence of the facts and circumstances mentioned in section 12 of the Agricultural Law, as amended by chapter 557 of the Law's of 1898, providing how the inspection should be conducted, in order to entitle the plaintiff to prove by chemical analysis that the milk was adulterated within the definition of adulterated milk specified in subdivisions 1, 2 and 3 of section 20, and that the inspection was conducted in accordance with section 12. Parker, P. J., dissented.</p>

Appeal by the defendant, Bradford R. Wood, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 30th day of April,. 1900, upon the report of a referee. The action was brought to recover damages by reason of the maintenance of a nuisance on the defendant’s premises adjoining those of the plaintiff in the city of Albany.

Appeal by Frank H. Ball and William I. Ball, individually and as. executors, etc., of Edwin J. Dixon, deceased, from a decree of the Surrogate’s Court of the county of Cayuga in favor of legatees representing one-fourth of the residuary estate of the testator, entered in said Surrogate’s Court on the 12th day of August, 1899, surcharging the executors’ account with the loss upon two Minnesota mortgages, and also charging the executors with interest and taxes, upon the…

<p>Service of a summons — set aside when made on the president of a foreign corporation, induced, to come within the State for the purpose of settling another claim. '</p> <p>The service of a summons, in an action brought by a domestic corporation against a foreign corporation, upon the president of the latter, while in the State of New York upon the invitation of the president of the' domestic corporation, for the purpose of adjusting a claim against such corporation, will be set aside, although the president of the domestic corporation denies that .the invitation was a trick or device for the purpose of obtaining the service.</p>

Appeal by the Board of Education of the City of Rochester from an order of the Supreme Court, made at the Monroe Special Term and… Held: for a definite term, shall be entitled to continue and serve in such position or office during the remainder of such unexpired term ; but the rate of compensation paid to such teacher, officer or employe at the time of the passage of this act shall not be increased' or diminished during the remainder of such unexpired term.” (§ 140i,…

<p>Appeal by the defendant, The Trustees of Union College in the Town of Schenectady, in the State of New York, from an order of the Supreme Court, made at the Essex Special Term and entered in the office of the clerk of the county of Clinton on the 18th day of May, 1899,- continuing the action in the name of Emmett Arm-: strong, as executor, etc., of Harriet H. Armstrong, deceased.</p> <p>This action was brought by one Harriet H. Armstrong to recover her dower interest in certain lands of which the defendant, the Trustees of Union College, is the present owner, and also damages for the withholding of such interest.</p> <p>At the time, of bringing her action the plaintiff claimed to be the widow of one Thomas Armstrong, deceased, who was the defendant’s predecessor in title to such lands, and who, it is alleged, died seized thereof, whicli allegation is in part admitted by the answer.</p> <p>The issues raised by the defendant’s answer were duly tried and resulted in a dismissal of the plaintiff’s complaint, with costs, and judgment was ordered accordingly on the 24th day of October, 1898.</p> <p>Thereafter an extra allowance of $350 was awarded the defendant, and the order awarding the same, together with the decision of the court upon the principal issues, was tiled January 26, 1899.</p> <p>Upon the eighteenth day of February following, and before any judgment had been entered, Mrs. Armstrong died, leaving a last will and testament in and by which she appointed one Emmett Armstrong sole executor thereof, and he thereupon duly qualified and is now acting as such.</p> <p>On the' 8th day of May, 1899, the executor moved at Special Term to, be substituted as plaintiff in the place of Harriet H. Armstrong, deceased, and that the action be continued in his name. This motion was granted, and from the order granting the same this appeal is brought.</p>

Appeal by the defendants, Dorns Healy, as administrator, etc., of Joshua Healy, deceased, and others, from a judgment of the Supreme Court in fav.or of the plaintiff, entered in the office of the clerk' of the county of Steuben on the 6th day of June, 1900, upon, the decision of the court, rendered after a trial at the Steuben Special Term..

Appeal by the plaintiff, John E. Leggett, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 9th day of February, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Jefferson Trial Term. Court street in the city of Watertown runs practically north and south.

Appeal by the defendant, Harmon H. Fulton, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 3d day of May, 1900, upon the decision of the court rendered after a trial before the court without a jury at the Erie Trial Term, the parties having waived a jury trial.

Appeal by the plaintiffs, Louis Schoellkopf and another, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 21st day of Hay, 1900, upon the decision of the court rendered after a trial at the Erie Special Term sustaining the defendants’ demurrer to the plaintiffs’ complaint.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 30th day of March, 1900, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 26th day of March, 1900, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Mary 0. Murray, as administratrix, etc., of William H. Murray, deceased, from a judgment of the Supreme-Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga On the 12th day of March, 1900, upon the dismissal of the complaint by direction of the court after a ,trial before the court and a jury at the Onondaga Trial Term.</p> <p>The action was comnienced on the 17th day of - July, 1899, to recover damages sustained by the next ■ of kin of the plaintiff’s intestate, on account of his death, which occurred on the 29th day of - June, 1899, as is alleged, through the negligence of the defendant.</p>

<p>Replevin for part, and action on an implied contract for the balance, of goods obtained by fraud — election of remedies—judgment roll in the action on implied contract, as evidence in the replevin suit—cha/rge as to untrue statements made by the vendee.</p> <p>A vendor of goods, sold in reliance upon the fraudulent representations of the- ' vendee, who has brought an action of replevin to recover a portion of them from the possession of the vendee’s assignee for creditors, may waive the fraud of the vendee as to the balance of the goods and maintain an action for the-value thereof against him upon the implied contract, without thereby prejudicing his right to recover in the replevin suit.</p> <p>In such a case the judgment roll in the action upon 'the implied contract is not material in the replevin action to prove an election of remedies by the vendor, as the commencement of the action of replevin operates as an irrevocable election, forever depriving the vendor of the right to make any other or different election.</p> <p>Semble, that, if there were any issue as to election, the judgment roll would be-competent.</p> <p>In the replevin action, the court may properly charge that, if the vendee represented the facts stated by him to be true to his personal knowledge, with a view of inducing the vendor to believe them, and the vendor did believe, rely and act upon them, and they were not true, the vendee was chargeable with deceit precisely as if such statements were made with the knowledge at the time that they were untrue.</p>

<p>Sope — evidence of an absence of virginity twenty months thereafter is not corroborative of the complainant’s statement of the offense.</p> <p>On the trial of an indictment for rape the statement of the complainant that the intercourse took place at a certain date is not corroborated, as required by section 283 of the Penal Code, by the testimony of a physician that he examined the person of the complainant twenty months after such date and found that she was not then a virgin.</p>

<p>Statement made by a district attorney to the jury as to using the prisoner, if con-rioted, to gire State’s evidence •— when it requires the granting of a new trial.</p> <p>Where it is the theory of the prosecution, on the trial of an indictment for arson, that the owner of the burned building procured the defendant to set it on fire in order to obtain the insurance thereon, a statement by the district attorney during his summing tip, that “ if in your judgment you believe this man to be .guilty, then I want you to have the nerve to vote him guilty, and if yoii do, then I will put him upon the stand as a witness, and if he will tell the truth about it, and use him as a witness against the true criminal in the case, and will ask the court to suspend sentence upon him,” is so prejudicial to the defendant as to require the reversal of a judgment of conviction.</p> <p>The effect of such statement is not removed by a remark of the court that, “I will say to the jury that the suggestion to which the district attorney has just referred may not be considered by the jury in this case at all. If this man is guilty he must be convicted upon the evidence here, and whatever further disposition may be made with reference to him is a matter which you may not enter into in determining this question here in this case.”</p>

<p>Appeal by the defendant, Gilbert Milks, from a judgment of the County Court of Cattaraugus county in favor of the plaintiff, rendered on the 24th day of October, 1899, convicting the defendant of the crime of arson in the third degree; also from an order entered in the office of the clerk of the county of Cattaraugus on the 24th day of October, 1899, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 24th day of October, 1899, denying the defendant’s motion to arrest the judgment herein.</p> <p>On the 16th day of February, 1899, the grand jury of Cattaraugus county indicted the defendant, jointly with one Mitchell Smith, for the crime of arson in the third degree, for having on the 4th day of June,. 1898, willfully, unlawfully and feloniously and with intent to destroy the same, set on fire and burned a certain dwelling house in ' the town of Kew Albion, in said county, the property of the defendant. The defendant was arraigned upon such indictment at a Trial Term of the Supreme Court held in and for said county on the 16th day of February, 1899, and pleaded not guilty. On the following day the indictment-was sent, by order of the Supreme Court, to the County Court for trial. The defendant demanded a separate trial, which was had, commencing on the 16th day of October, 1899, Mitchell Smith having been previously tried and convicted. It is the contention of the People that this defendant, Gilbert Milks, being the owner of the buildings and property burned, procured said Mitchell Smith to set said'property on fire and cause its destruction, while he (the defendant) was away from home and at a place sixteen miles distant, in order that he might obtain the insurance thereon. The jury found ■ the defendant guilty as charged in the indictment, and he was sentenced' to the State’s prison at Auburn for the period of three years and nine months. The presiding judge granted a certificate of reasonable doubt-, a stay was granted and the defendant was admitted to bail.</p>

<p>Appeal by the defendant, The City of Rochester, from an order of the Supreme Court, made at the Monroe Special Term and .entered in the office of the clerk of the county of Livingston on the :27th day of June, 1900, denying the defendant’s motion to change the place of trial from the county of Livingston to the county of Monroe.</p> <p>The action was commenced on the 15th day of February, 1900, to recover possession of certain real property situate in the town of Lima, county of Livingston, IST. Y., and twenty-five dollars for withholding the same, it being alleged that the plaintiff is the owner of the fee, and that on or about the 1st day of July, 1896, the defendant, through its agents and servants, unlawfully, and without any :right or authority so to do, entered upon said premises and erected thereon six poles with four braces upon each, stretched wires thereon, ¡and is in the actual possession and occupancy of the same. The venue of the action was laid in the county of Livingston. The 'defendant demanded that the venue be changed to Monroe county* upon the ground that it was the proper county, which was refused. Thereupon a motion was made upon that ground for a change of venue, and the order appealed from was made denying such motion.</p>

Appeal by the plaintiffs, Perry E. Brown and another, as executors, etc., of Andrew Brown, deceased, from a judgment of .the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Chautauqua on the 21st day of December,- 1897, upon the report of a referee dismissing the plaintiffs’ complaint.

Appeal by the defendant, Harriet B. Lee, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 20th day of October, 1899, upon the report of a referee. This action was brought to recover damages for the conversion by the defendant of an engine and boiler placed by the firm of Penn & Lee upon premises leased .by them from the defendant.

Appeal by the defendant, Theresa Smith, from a judgment of the County Court of Onondaga county in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 14th day of June, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of June, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John E. Ottaway, from a judgment of the County Court of the county of Monroe in favor of the defendant, •entered in the office of the clerk of- the county of Monroe on the 1st day of May, 1900, upon the dismissal of the complaint at the ■close of the plaintiff's case by direction of the court after a trial before the court and jury, and also from an order entered in said ■clerk’s office on the 1st day of May, 1900, denying the plaintiff’s motion for…

Appeal by the defendant, Walter D. Wilcox, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Ontario on the 5th day of May, 1900, denying his motion to set aside and vacate a judgment of foreclosure and sale theretofore entered in. the action.

Appeal by the plaintiff, Howard A. Hamilton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 20th day of December, 1899, upon the dismissal of the complaint at the close of the plaintiff’s case by direction of the court after a trial before the court and a jury at the Erie Trial Term.

Appeal by the plaintiff, Lena E. Hunt, from a judgment of the . Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Ontario on the 13th day of September, 1899, upon the decision of the court rendered after a trial at the Ontario Special Term dismissing the complaint upon the. merits, except from so much of said judgment as denies costs.

<p>Appeal by the plaintiff, Polly Lavinia' Crawford, from a final judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Allegany on the 26th day of June, 1900, upon the decision of the court, rendered after a trial at the Allegany Special Term, sustaining the defendant’s demurrer to the complaint and dismissing the complaint.</p> <p>The complaint alleges that plaintiff is the widow of Alfred Crawford, who died intestate on the 16th'day of February, 1898, leaving-no minor child him surviving and no property “ except the sum of about one hundred and ten dollars cash in bank in the city of Buffalo and a watch or two, a little wearing apparel and household property not exceeding in value forty dollars, and the entire estate left by him did not exceed in value the sum of one hundred and fifty dollars,” of which she became the sole owner and entitled to-possession upon his death; that defendant upon his own petition, which omitted plaintiff’s name, has procured from the Surrogate’s-Court of Erie county letters of administration to be issued to himself upon the estate of said decedent, without the issue of any citation or waiver thereof by plaintiff and without her knowledge or consent; that thereupon defendant drew said money from the bank,, took possession of all the personal property and wrongfully and unlawfully converted the same to his own use, and that more than - three months have elapsed since letters were issued, and he has failed, neglected and refused to make or file an inventory, although requested so to do, and has failed, neglected and refused, upon demand duly made, to deliver said money and property to plaintiff, and has expended and disposed thereof.</p> <p>The grounds of the demurrer are (1) that the court has not jurisdiction of the person, (2) or of the subject-matter; (3) that the complaint does not state facts sufficient to constitute a cause of action, and (4) that plaintiff has not legal capacity to sue.</p>

<p>Foreclosure •— effect of a release of the mortgagor, where one undivided half part of the mortgaged premises has been sold by the mortgagor to a grantee which assumes one-half the mortgage debt.</p> <p>Where a mortgagor who gave no bond and was not personally liable for the mortgage debt conveys an undivided one-half of the mortgaged property to a corporation, which assumes the payment of one-half of the mortgage indebtedness, the release from the lien of the mortgage of the undivided one-half of the premises owned by the mortgagor, upon the payment by him. of half of the mortgage debt, does not discharge the other undivided one-half of the property-conveyed to the corporation from-the lien of the unpaid portion of the mortgage debt. „</p> <p>In such a case the assumption by the corporation of one-lialf of the mortgage debt operates to fix the amount which it must pay, and sets apart its interest in the land to meet that burden.</p>

<p>A written resolution of a corporation authorizing a purchase—competency of parol evidence to establish other agreements in respect thereto — an oral agreement fm' no definite time is not within the Statute of Frauds.</p> <p>Where a resolution of a corporation recites and accepts an offer by certain parties to transfer to the corporation a manufacturing business, tools, machinery, etc., and a patent, for a specified sum payable in the stock of the corporation, parol evidence establishing an oral agreement between the corporation and the parties making the offer, by which, as part of the consideration, two of such - parties were to enter into the employment of the corporation, is competent, when the resolution contains no provision as to such employment, and the evidence justifies a decision that.the whole agreement was by parol, and that the resolution was merely a step taken in carrying out in part such parol agreement.</p> <p>A parol contract of employment which does not, by its terms, extend for any definite time, -is not void under the Statute-of Frauds as being one not to be performed within one year.</p>

Appeal by the defendant, Patrick L. Kelley, from a judgment of the County Court of Oneida county in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 13th day of February, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th «day of March, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John S. Allen, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 31st day of January, 1900, upon the decision of the court rendered after a trial before the court without a jury at the Monroe Trial Term dismissing the complaint.

Motion by the plaintiff, Nettie West, as administratrix, etc., of Okarles E. West, deceased, for a new'trial upon a case containing-exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Wayne Trial Term in October, 1899.

Appeal by the defendant, Ray B. Lewis, from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Oneida on the 8th day of October, 1900, denying the defendant’s motion to change the place of trial from the county of Oneida to the county of Herkimer, on the ground that the parties to the action were both residents of the county of Herkimer.

Appeal by the 'defendant, the Metropolitan Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on. the 23d day' of November, 1899; upon the verdict of a jury, and ■ also- from an order entered in said clerk’s office on the 2d day of - February, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the .County, of Niagara from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Niagara ón the 1st day of June, 1900, appointing a referee pursuant to the provisions of chapter 614 of the Laws of 1900.

<p>Appeal by the defendants, William H. Johnston and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of. the clerk of the county of Lewis on the 17th day of January, 1900, upon the verdict of a jury rendered by direction of the court after a trial at the Lewis Trial Term.</p>

Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Wyoming on the 31st day of May, 1899, upon the verdict of a jury for $1,500, and also, from an order entered in said clerk’s office on the 31st day of May, 1899, denying the defendant’s motion for a new trial made upon the minutes. .

<p>Appeal by the defendant, The Village of Hunda, from a judgment- of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Livingston on the 18th day of December, 1899, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 29th day of November, 1899, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p> Negligence—collision under a viaduct between a vehicle and a street car—proximate cause of death. </p> <p>What evidence of the circumstances attending a collision between a vehicle, driven from the side of a street under a viaduct beneath which street cars are operated, and a street car running from fifteen to twenty miles an hour, the motorman of which saw the vehicle when from fifty to seventy-five feet distant and did nothing towards stopping the car, presents a question for the jury as to the freedom from contributory negligence of the party injured and as to the negligence of the railroad company, considered.</p> <p>What evidence is sufficient to sustain a verdict that injuries received in such collision were the proximate cause of death, considered.</p>

Appeal by the plaintiff, J. Warrant Castleman, as receiver of the. property of.

<p>Mre from a passing engine — evidence authorising a jury to find, that it was caused, by an.engine having a defective spark arrester, rather than by another engine which was not defective — evidence of such defeat.</p> <p>In an action brought to recover damages for the destruction of a coal shed by a fire alleged to have been caused by sparks emitted from one of the defendant’s passenger engines, the defendant contended, that it was just as probable that the fire was caused by sparks emitted from a freight engine which passed the coal shed ten or twelve minutes before the passenger engine. Evidence was given tending to show that the coal shed was constructed of very dry, inflamable material, and that the fire was discovered from three to fifteen minutes after the passenger engine had passed it; that the freight engine did not labor when passing the shed and that the passenger engine did.</p> <p>There was no evidence that the spark arrester of the freight engine was defective or that it threw out sparks of uncommon size or in unusual quantities, while there was evidence that the spark arrester of the passenger engine was defective and permitted the escape of live cinders of uncommon size and in unusual quantities.</p> <p>Held, that the evidence warranted a finding that the fire was caused by the passenger engine.</p> <p>Evidence justifying a jury in finding that a spark arrester was defective, considered.</p>

Appeal by Henry C. Henderson from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of May, 1900, denying his application to intervene in this proceeding as a party defendant.

<p> What surrender of a lost insurance policy is necessary to entitle the owner thereof to a paid-up policy—a complaint not alleging a surrender is demurrable. </p> <p>Where a policy oí insurance contains a provision that if it should become void, after the payment of the premiums for three years, because of a default in the payment of any subsequent premium, the insurer would issue in lieu thereof a new paid-up policy, “provided that said policy shall be surrendered duly receipted within six months of the date of default in payment of premium on said, policy,” the fact that the policy sought to be exchanged has been stolen, and that it is impossible for the policyholder to surrender the identical instrument, does not excuse him from his duty to deliver to the insurer a sufficient surrender of the policy and a sufficient receipt of all liability thereon.</p> <p>A complaint, in an action brought to compel, the delivery of a paid-up policy in lieu of the stolen one, is demurrable unless it alleges the delivery to the insurer of a valid surrender of the stolen policy.</p>

<p>Appeal by the plaintiffs, Caroline Roosevelt Stei'ffel and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on' the 26th day of September, 1900, denying the plaintiffs’ motion to strike out portions of the answers of the defendants Charles H. Tolhurst and Oswald J. Waite as irrelevant and redundant, and to require the said defendants to make other portions of their answers more definite and certain.</p>

<p> What inquiry is necessary, where the right to remarry, after a husband or wife shall have been absent for five years, is exercised—when a secretary of a lodge cannot exercise the power to suspend a subordinate lodge. </p> <p>A person desiring to take advantage oí the provision of the Revised Statutes, that if “any person whose husband or wife shall have absented himself or herself for the space of five successive years, without being known to such person to be living during that time, shall marry during the lifetime of such absent husband or wife, the marriage shall be void only from the time that its nullity shall be pronounced by a court of -competent authority,” must act in good faith and use all such means to obtain information with respect to the absent spouse as reasonable persons would make use of under the circumstances; she cannot shut her eyes and ears and make ho effort to secure information and then marry at the end of the five years relying merely on the absence of her husband!</p> <p>Evidence that the husband oí an ignorant Roumanian woman deserted her; that he had been gone nine years, during which period she had never seen or heard from him, although she had made some inquiries for him, is sufficient to warrant a finding that a marriage contracted by her six years after the desertion was valid.</p> <p>The general secretary of a fraternal society has no authority to suspend a subordinate lodge for non-payment of its dues where the constitution of the society gives such power to the grand lodge and the executive committee.</p>

Appeal by the defendant Martha Keery from so much of a judgment of the Supreme Court in favor of the defendant Charles L. Dimon, as administrator, etc., of Stephen 0. Dimon, deceased, entered in the office of the' cleric of the county of New York on the 20th day of September, 1899, upon the decision of the court rendered after a trial at the New York Special Term, as follows: First.

Appeal by the defendants, The Board of Taxes and Assessments and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 2d day of July, 1900, granting the relators’ motion for a peremptory writ of mandamus directing the Board of Taxes and Assessments in the city of Hew York to forthwith strike from the annual record of assessed valuations in the borough of Manhattan, in the city of…

■ Appeal by the plaintiff, Wood & Selick, from a final judgment of the Supreme Court, entered in the office of the clerk of the-county óf New York on the 13th day of June, 1900, dismissing the complaint as to the defendants, Benjamin B. Vanderveer and William M. Reckless, with notice of an intention to bring up for review upon such appeal an order made at the New York Special Term and entered in said clerk’s office on the 10th day of May, 1900, overruling the plaintiff’s…

Appeal by the defendant, James P. Keating, as commissioner of the department of highways of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of May, 1900, granting the relators’ motion for a peremptory writ of mandamus commanding the defendant to grant forthwith the relators’ application to open the street at Madison avenue and West Farms road,…

Appeal by the defendant, Patrick Iv. Gray, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of August, 1900, upon the decision of the court rendered after a trial at the New York Special Term overruling the defendant’s demurrer to the amended complaint.

<p> “Sweeper” employed by a city on car tracks—Ms duty to avoid the cars—hisright to notice of their approach.' </p> <p>The general rule of law applicable to pedestrians approaching railway tracks does ■ not apply -to a “sweeper” in the employ of a city street cleaning department whose duties in the public service require him to work- between' the rails of the car tracks upon a public street over which cars are operated at half a minute’s headway.</p> <p>Semite, that a sweeper so engaged has a right to assume that some notice of the approach- of a car will be given to him.</p>

Appeal by the defendant, Kathleen B. Anderson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the - clerk of the county of Rew York on the 31st day of January, 1900, upon the verdict of a jury rendered by direction of the court; also from an order entered in said clerk’s office on the . 18th day of January, 1900, denying the defendant’s motion for a new trial made upon the minutes, and also from an -order entered in said clerk’s…

Appeal by the plaintiff, Lewella G. Oakes, from a judgment of the Supreme Court in favor of the defendants Francis J. Oakes and Adelaide Sullivan Oakes, entered in the office of the clerk of the county of Few York on the 23d day of July, 1900, granting the motion of the defendants Francis J. Oakes and Adelaide Sullivan Oakes for judgment upon the pleadings dismissing the complaint, and also from an order made at the Few York Special Term and entered in said clerk’s office on…

Appeal by the plaintiff, the Washington Savings Bank, Washington, D. 0., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county… Held: such issue to be to each creditor to the amount of his or its claim. A reorganization committee was appointed and its members were the defendants in this action as it was originally framed.

<p>Motion • by the defendants, Edward P. Coe and another, composing the copartnership of Cadenas & Coe, for a new trial upon a case containing exceptions, ordered to he heard at the Appellate Division in the first instance upon the. verdict of a jury rendered by direction of the court after a trial at the Hew York Trial Term.</p> <p>The action was brought to recover $13,300 for goods delivered under a contract.</p> <p>The complaint states that the plaintiff was appointed receiver of the Worcester Cycle Company in 1897, and alleges two causes of action : First, that the receiver on or about February 10,1898, contracted with the defendants to manufacture for and sell them, upon specifications furnished, 3,000 bicycles, of which 1,230 were delivered and accepted, amounting to $21,600, on which has been paid $13,000,- leaving still due and unpaid the sum of $11,600 ; and, second, that the receiver on May 9, 1898, sold and delivered to the defendants 100 juvenile bicycles amounting to $1,700, which sum has not yet been paid. As to the first cause of action, the answer admitted that a contract was made for the manufacture of bicycles upon specifications, and that 1,230 wheels were delivered, but denied that they were accepted, alleging “ that the same were defective in many parts; that they were not made in accordance with the terms of. said agreement; that they were not the bicycles for which the said defendants had contracted, and that they refused to accept the same in fulfillment of said contract.” So, also, as to the second cause of action, the answer admits the agreement entered into and the delivery of certain bicycles and payment on account of the agreement, but alleges that the wheels were defective and that the defendants have refused to accept the same and have been ready to return them. The answer further sets up two counterclaims growing out of the agreements: First, that by the contract of February 10,1898, by which the plaintiff was to deliver to the defendants bicycles for shipment to Germany, “ it was agreed between the said defendants and the said plaintiff that the said bicycles should be equal to, and of the same kind and quality as certain samples submitted by the said plaintiff to the said defendants, and that said bicycles should be manufactured according to certain specifications; ” that the bicycles upon their arrival in Germany were found not to have been manufactured as stipulated, in consequence of which defects the defendants were damaged in the sum of $13,688. Similarly a second counterclaim is alleged resulting from plaintiff’s failure to duly perform the contract of May 9, 1898, the damage being stated at $300.</p> <p>At the trial the plaintiff testified that 2,481 wheels were delivered at the dock in Flew York, of which 1,025 were paid for and $13,300 was paid on the balance, leaving the amount unpaid $13,200. The defendants’ testimony is that when the consignments of wheels arrived at the dock shipping receipts were given, which they exchanged for bills of lading, no examination being made until the goods were placed in a warehouse and in a store in Germany, as the wheels were separately wrapped and crated in bundles of five; and that upon such examination the wheels were found to-be apparently defective and different from the specifications and sample.- Letters were introduced to show what the terms of the contract provided. The. court, upon the evidence, dismissed the counterclaims and directed a verdict for the plaintiff for $13,200, and ordered the exceptions to be heard in the first instance at the Appellate Division.</p>

• Appeal by the claimants, The Winsted Hosiery Company and The Daniel Forbes Company, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of September, 1900, as confirms the report of the referee appointed in the proceeding, overrules the exceptions filed thereto by said claimants, and allows the claim of the Winsted Hosiery Company at $830.85 and no more, and wholly…

<p> Contract of sale by correspondence stating estimates of maximum and, minimum amount of merchandise to be required,—when it obliges the purchaser to take at least the smaller amount. </p> <p>Where dealers in chewing gum write to a manufacturer thereof asking for “prices for supplying our requirements,” stating “We estimate our yearly-requirements at from five to ten million pieces. Are confident that they will not be less than the smaller amount and reasonably certain that they will come up to or exceed the larger one,” to which the manufacturer replies, “ I would be willing to make a yearly contract with you for from five to ten million pieces * * * at twenty-eight cents per one hundred pieces,” the dealers do not fulfill the contract by accepting and paying for less than five million pieces,'although that was all they required during the year.</p>

Appeal by the defendant, the Globe & Rutgers Eire Insurance Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of October, 1900, denying, the said defendant’s motion to substitute John S. Butcher in its place as defendant on payment into court of the sum of $850.

<p>Appeal by the plaintiff, A. Ames Howlett, from an order of the Supreme Court, made at the Hew'York Special Term and entered in the office of the clerk of the county, of Hew York on the 12th day of October, 1900, denying his motion for a discovery and inspection of books in the defendant’s possession.</p> <p>The relief sought in this action is the cancellation of a note for $3,200 given by the plaintiff, as alleged, under the defendant’s wrongful representation that, in the course of the partnership, the plaintiff had overdrawn his account about $6,400. The complaint avers that there was no such overdraft of $6,400, and that the defendant having exclusive control of the partnership books would not permit the plaintiff to examine them. After issue ivas joined, the plaintiff applied for an order directing the defendant to accord him an examination of the books in the office of the defendants’ attorneys, by depositing them' there for plaintiff’s inspection.</p> <p>In support of the application it is stated that the plaintiff during the partnership had been ill and never had a full opportunity to examine the books and had relied upon defendant’s statements when he gave the note for $3,200, which statements, he now alleges, were untrue. In opposition to the application, the defendant stated that the partnership had been dissolved by mutual consent, and the question of accounts left to an arbitrator who found that the plaintiff had overdrawn and recommended a compromise; that the plaintiff had access to the note for $3,200. The defendant’s affidavit also contains the statement that, owing to the plaintiff’s illness, he has not devoted to the partnership business from its formation to its dissolution, more than five days in a period of two years.</p> <p>The plaintiff’s application for an examination was denied, and from the order so entered, he appeals.</p>

Appeal by the defendants, Charles M. Ffoulke and another, ' appearing specially for such purposes only, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 10th day of September, 1900, denying the defendants’ motion, to vacate an attachment theretofore issued in the action.