Volume 55 — New York Supplement

Action by Ella Dreyfus against Henry Bernhard, as executor. Plain tiff procured an order for the examination of defendant, and for an inspection of his books and papers. On motion to vacate the same the order was modified, and otherwise the motion was denied, and defendant appeals.

<p>Appeal from trial term, New York county.</p> <p>Application for mandamus, on relation of William J. Barry, against John W. Keller and others. From an order granting a motion to prefer proceedings, defendants appeal.</p>

Action by Henry Hoyle against Bobert McCrea and another. There was a judgment for plaintiff. After having been discharged from custody under execution against their persons, defendants move for an order satisfying the judgment of record.

Austin and others, for the probate of the will and codicils of Anna Schuyler Austin, deceased. From a decree admitting the will and codicils to probate, the contestants appeal.

<p>1. Firm Books—Constructive Knowledge oe Partners.</p> <p>As to third persons, a member of a firm is conclusively presumed to know of entries in its books.</p> <p>2. Same.</p> <p>That a member of a firm was permitted to use its books for his individual business does not change the rule that a member is conclusively presumed, as to third parties, to know of entries in the firm books.</p> <p>8. Same—Loans to Partner.</p> <p>Where one member of a firm keeps the books and the bank account, and borrows money for the use of the firm, which was used by such firm, and the evidence of such borrowing and such use was entered on the books of the firm, the other members of the firm are bound by the transaction. Green, J., dissenting.</p>

Habeas corpus, on the relation of H. W. Leonard, in behalf of Julia H. Egan, an alleged lunatic, against the Long. Island Home and another. There was an order vacating an order adjudging the alleged lunatic insane, and respondents appeal.

Action by George Neher against Peter Bruckner. There was a judgment for plaintiff, and defendant appeals.

Action by Alexander Lyons and others against Charles Smith to recover for personal services rendered. From a judgment rendered upon the verdict of a jurv, defendant appeals.

Action by Henry C. Bryan against Pasquale Altieri and others to foreclose a mortgage.

Action by the Commercial Publishing Company against Samuel C. Beckwith. There was a judgment for defendant, and plaintiff’s motion for new trial on exceptions was ordered to be heard in the first instance by the appellate division, and he appeals.

Judicial settlement of the account of Bertha Koehler Myers, as executrix of Hermann Koehler, deceased. There was a decree settling the account, and the executrix appeals.

Action by Bennett J. King and others against Jacob Simmons and others to set aside a bill of sale as fraudulent. From a judgment for plaintiffs, defendants appeal.

Action by Patrick Farrell against William P. Tatham and others. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Action by Mary O’Brien against the Brooklyn Heights Railroad Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

<p>Appeal from special term, Westchester county.</p> <p>Bill by John B. Drake against the Hew York Suburban Water Company and others. There was a decree for plaintiff, and defendants appeal.</p>

<p>Appeal from trial term.</p> <p>Action by Arthur A. McLean against Dennis Eyan. From a judgment for plaintiff, and an order denying a new trial, defendant appealed.</p>

<p>Appeal from special term, Kings county.</p> <p>. Action Tby Frederick Ments against Henry Both. There was a judgment for plaintiff', and defendant appeals.</p>

<p>1. Insurance—Premium Notice—Payment.</p> <p>Pursuant to a premium notice requiring payment at the home office, the company recognized payments by check sent by mail; and this for over two years after it had changed the notice by adding in fine print a statement that it would not be responsible for loss or delay in the mails, and that mailing the premium was not payment; that the premium must be received at the home office on or before the date due. The company took no step to call insured’s attention to the change, and the beneficiary, who always made the payments, testified neither he nor insured had noticed the change. Held, that the seasonable mailing of the amount was a payment, though the company never received it, since notice of the change was not brought to insured’s attention.</p> <p>2. Appeal—Decision.</p> <p>The appellate court, in affirming a judgment, is not concluded by the grounds on which it was based.</p> <p>3. Same—Objection not Raised Below.</p> <p>Objection that a check insisted on as payment was not good cannot be first raised on appeal.</p> <p>4. Payment.</p> <p>Where a party denying that a check constituted payment refused to accept money, he cannot object that the check was not good.</p>

<p>Appeal from special term.</p> <p>Action by Gus Gomprecht and another against Libbie M. Scott. From an order denying a motion to compel the receiver in supplementary proceedings, therein appointed, to pay over to her certain moneys, Minna Scott and defendant, Libbie M. Scott, appeal.</p>

<p>Action by Rosa Zipp, as executrix, against Frances E. Barker and others, to enforce certain covenants. Judgment for plaintiff.</p>

<p>Appeal from special term, Rockland county.</p> <p>Action by Julia A. Peterson against John De Baun. Prom a judgment for defendant, plaintiff appeals.</p>

Action by Patrick J. Desmond against Harriet C. Schenck and another, executors of Lucia L. Kearny, deceased. From a judgment for plaintiff, and an order denying a new trial, defendants appeal.

<p>1. Partnership—Parol Contract—Validity.</p> <p>A contract of partnership for dealing in realty, not involving the conveyance by one partner to another of any interest in the realty itself, need not be in writing. *</p> <p>2, Same—Evidence.</p> <p>The fact that, after an alleged parol partnership transaction^ in realty, two of the partners requested the third, who had taken the title in the land purchased, to convey to them, does not conclude them from claiming as partners in the proceeds.</p>

Action by William Hughes, as trustee of Maud A. Cuming, against Mari A. Cuming. From a judgment for plaintiff, and an order overruling his motion for a new trial, defendant appeals.

<p>1. Corporations—Pleading—Averment of Incorporation.</p> <p>Under Code Civ. Proe. § 1775, providing that, “in an action brought by or against a corporation, the complaint must aver that the plaintiff, or the defendant, as the case may be, is a corporation,” etc., an allegation in a complaint that plaintiff is a corporation organized under the laws of the state was a sufficient averment of such fact.</p> <p>2. Mortgage—Foreclosure—Statement of Cause of Action.</p> <p>In an action to foreclose a mortgage, where the complaint alleged that defendant agreed to pay the sum secured thereby, by means of certain weekly payments; that none of such payments had been made since a certain date referred to; and that there is justly due plaintiff thereon a certain specified sum,—a demurrer, on the ground that such complaint does not state facts sufficient to constitute a cause of action, was without merit.</p>

Action by Count W. Weeks against E. Holloway Coe, as executor, etc. Judgment for plaintiff, and defendant appealed. Pending the appeal a new trial was ordered, and plaintiff appealed. Each party moves to dismiss the other’s appeal.

<p>Appeal from trial term, Kings county.</p> <p>Action by John Bartnik, an infant, by Francis Gottsberger, his guardian ad litem, against the Erie Railroad Company. • From a judgment for plaintiff-, and an order denying a new trial, defendant ap: peals.</p>

<p>1. Master and Servant—Personal Injuries—Proximate Cause.</p> <p>An injury caused to a carpenter by being knocked from a ladder by a loose borse and cart striking it was not proximately caused by the absence of a vice principal who was to guard the ladder against passing carts or ears.</p> <p>2. Same—Fellow Servants.</p> <p>A driver of a cart removing rubbish from a building under construction is a fellow servant of a carpenter on a ladder the foot of which was near a door where the cart had to pass.</p>

<p>Principal and Agent—Unauthorized Act of Agent.</p> <p>An insurance company is not liable on a note executed by its agent, in its name, without its authority, to obtain money which the lender knows the agent wants on his own account, to pay a shortage in premiums due the company.</p>

Action by Oscar Anderson against the ThircJ Avenue Railroad Company for personal injuries. Plaintiff recovered a verdict for $1,500, and from a judgment entered thereon, and also from an order denying a motion for a new trial, defendant appeals.

Action by Theodore F. Reed against the Provident Savings Life Assurance Society of New York. From a judgment for defendant, and from an order denying a motion for a new trial because of newly-discovered evidence, plaintiff and others appeal.

Action by John D. Gutter against the Gudebrod Bros. Company to restrain the use of trade-names. From a judgment restraining plaintiff from using such names, he appeals.

Action by Henry W. Savage against Anthony W. Gerstner. From a judgment for plaintiff, and from an order denying a new trial, defendant appealed.

Action by Cecilia J. Zimmer, an infant, by Charles V. Zimmer, her guardian ad litem, against the Third Avenue Railroad Company and the Metropolitan Street-Railway Company. From a judgment for plaintiff, and from orders denying defendants’ motions for a new trial, defendants appeal.

<p>Appeal from trial term, Queens county.</p> <p>Action by Charles V. Zimmer against the Third Avenue Railroad Company and the Metropolitan Street-Railway Company. From a judgment for plaintiff, and an order denying a new trial, defendants appeal.</p>

Action by William H. Hoggett against the city of Mt. Vernon. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

<p>Appeal from special term.</p> <p>Action by Julius Manheim against Michael Seitz. A judgment for plaintiff. Defendant appeals.</p>

Robert Dietzel appealed from a decree settling Ms account as administrator on the application of Herman Weber, guardian of Theresa Dafeldecker, and moves for an order resettling the case on appeal so as to amend said case as settled by the referee.

Bill by Robert B. Hull and others, as executors of, and trustees under, the last will and testament of Joseph Wild, deceased, against ■Charles Pearson and others, defendants, impleaded with the Long Island Baptist Association. There was a decree construing the will, and defendants Pearson and others appeal.

Proceeding before a justice of the supreme court on application of the freeholders of the town of Hempstead for a summary investigation into the financial affairs of the town.

Action by George Stillwell against Francis W. Boyer and others. From a judgment for defendants, and an order denying a new trial, plaintiff appeals.

Action by Ellis M. Santee against the Standard Publishing Company for libel. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

Action by Bushton Peabody against Douglass B. Satterlee and another, of the firm of D. B. Satterlee & Co., as attorneys and managers for the underwriters at the Lloyds of New York City. Judgment for defendants, and plaintiff appeals.

Action by Charles Seeber against the People’s Building, Loan & Saving Association. From a judgment for defendant, and an order denying a new trial, plaintiff appeals.

Action by James R. Dé Remer against William Brown and another. Verdict for plaintiff, and defendants moved for a new trial upon exceptions, which were directed to be heard in the first instance in the appellate division.

Action by William E. T. Smith and others against the trustees of the freeholders and commonalty of the town of Brookhaven and another for partition. From an order refusing to set aside a judgment granting actual partition, and to direct a sale of the property, ■and a reference to take testimony upon such questions (53 N. Y. Supp. 1075), plaintiffs appeal.

Action by Edwin E. Whitney against James Hanse. From a judgment for plaintiff, and an order denying a motion for new trial, defendant appeals.

<p>Appeal from special term, Westchester county.</p> <p>Action by Peter L. Van Wagenen against Adrian Iselin and others. Judgment for defendants, and plaintiff appeals.</p>

Action by John Enright against the American Belgian ¡Lamp Company. From a judgment for plaintiff, and an order denying a motion tor a new trial, defendant appeals. The appellant is the manufacturer of the “Belgian Lamp.” Certain parts of this lamp, which constitute the burner, were manufactured at Liege, Belgium, under Belgian patents, and the appellant is the sole American agent of the patentee for the sale of the burners.

Arents against the Long Island Railroad Company. There were judgments for plaintiff, and from an order denying defendant’s motion to set them aside, and for a restitution of moneys paid by it to plaintiff’s attorney thereon, defendant appeals.

<p>In the matter of the judicial settlement of the accounts of the executor of Daniel Mullen, deceased.</p>

Action by Leopold Hass and others against Louis Selic and another. A verdict was directed for plaintiffs, and from an order refusing to set it aside defendants appeal.

<p>Appeal from trial term.</p> <p>Action by Fannie Bean Carrere against Robert G. Dun. From a judgment entered on the verdict of a jury in favor of defendant, plaintiff appeals.</p>

Foreclosure by Adrianna B. Simonson, as executrix of the will of Abraham Nafis, deceased, against Esther E. Nafis and others. There was a judgment for plaintiff, and defendants appeal.

Action by the Electric Power Company against the mayor, aldermen, and commonalty of the city of New York and others. There was a judgment for defendants, and plaintiff appeals. Transferred from First to Second department.

Action by William Barton against Jed H. Griffin. From an order striking part of the answer (53 N. Y. Supp. 661), defendant appeals. Affirmed. Tiie complaint in this action alleges as a cause of action that the defendant unlawfully evicted the plaintiff and his family from the premises lawfully occupied by them, under the color of legal proceedings.

<p>Wills—General Legacy—Right to Lapsed Legacy.</p> <p>After making specific bequests, a will gave the income of a stated sum to a person for life; after her death said sum and accrued interest to go to certain legatees in stated proportions. The fund was insufficient to pay all the legacies in full, but one of them lapsed, being invalid. Held, that the legacies were general as against the fund out of which they were payable, and hence residuary legatees were not entitled to the lapsed legacy until after full payment of the other legacies.</p>

<p>Street Railroads—Passengers—Alighting from Moving Car.</p> <p>A passenger on a street car signaled the conductor to stop the car, and, as it was slowing down, he prepared to get off. and was injured by the gripman suddenly increasing the speed of the car. Eeld, that he could not recover in the. absence of proof that the conductor signaled the grip-man, since the latter may have slackened the speed in the exercise of reasonable care in the operation of the car.</p>

<p>Appeal from trial term, Westchester county.</p> <p>Action by Caroline Van Tassel against Ellen J. Bead. There was. a judgment for defendant, and plaintiff appeals.</p>

• Appeal from trial term. Action by Charles Meyers, as committee of the estate of Edward Crawford, an incompetent person, against the New York County National Bank. There was a judgment for defendant, and plaintiff appeals.

Proceeding by Solomon H. Schlesinger and another against Emita W. May and another, as executors of Lewis May, deceased, for an accounting of decedent’s dealings as executor of the estate of Herman Schlesinger, deceased. From a decree requiring them to account (In re May’s Estate, 53 N. Y. Supp. 710), the executors appeal.

<p>Clerks of Municipal Courts.</p> <p>Kelator was appointed second assistant clerk to a justice of the peace. Prior to the consolidation under the Greater New York charter, the assistant clerk was removed, and another appointed in his place; but relator’s position was not changed. Held that, the charter having abolished all other clerkships but the clerk and one assistant, the relator, though a veteran, had no position in which to be “retained in like position and under the same conditions,” as provided by the charter.</p>

Robert W. Fielding was convicted of conniving at the auditing of a fraudulent claim against the city of Brooklyn, with intent to defraud, and he appeals.

Appeal by Bartlett B. Griffin, as county treasurer, etc., from an order of a justice of the supreme court, made upon the return of a writ of certiorari issued in pursuance of section 28 of the liquor tax law (Laws 1896, c. 112), on petition of John McGrievy and others, directing that said treasurer issue to each of the applicants a liquor tax certificate, under the provisions of subdivision 1 of section 11 of the liquor tax law, on the payment by each of the sum of $100,…

Summary proceedings by Patrick Dougherty against Samuel McMillan and' others to regain the possession of certain premises claimed to have been forcibly entered on and detained by defendants. From a final order dismissing the petition on a trial without a jury, petitioner appeals.

<p>Appeal from Orange county court.</p> <p>Application of John B. Tuthill and others for the appointment of commissioners to drain certain wet and low lands in the towns of Chester and Blooming Grove, in Orange county. The county court made an order directing the clerk to docket a judgment in favor of the commissioners against Mary Rowe and others. 50 N. Y. Supp. 410.</p> <p>From said order, and the judgments entered thereon, William R. Conklin and others appeal.</p>

<p>1. Evidence—Payment op Note—Memorandum of Holder.</p> <p>On an issue as to whether a certain $200 note, dated August 28, 1886, in the possession of plaintiff’s intestate at the time of his decease, had been paid by defendant, the latter produced in evidence a check for $200, dated September 12, 1887, and another for $12.46, dated November 11, 1887, both of which he had given to decedent, and which had been paid. The amount due on the note in question, September 12, 1887, was just $212.46. Defendant also produced a memorandum, in the handwriting of decedent, showing a loan of $200 to defendant, August 26, 1886, and the receipt of $200, September 13, 1887, “on note Aug. 28/86.” Held, that the payment of such note was fairly established.</p> <p>2. Same—Money Loaned—Sufficiency of Proof.</p> <p>That a certain check made by plaintiff’s intestate to defendant was a • loan, and not a payment, was sufficiently proven where a memorandum, in the handwriting of decedent, produced by defendant, showed a loan to defendant of the sum named in such check, on the date therein specified.</p> <p>3. Same—Payment of Rent—Presumptions.</p> <p>Where it was proven that defendant had leased to plaintiff’s intestate certain premises belonging to defendant’s ward, at an annual rent, which decedent agreed to pay, and it was not shown that decedent had paid him any more than he had given him credit for. the fact that defendant had settled with liis ward for the entire rent raised no presumption that decedent had paid it in full.</p>

<p>Injunctions — Easements — Private Roads—Contracts—Restrictive Covenants—Pleading—Sufficiency of Complaint.</p> <p>In an action to restrain the obstruction of a private road through adjoining parcels of land, the complaint alleged that such road had been laid and mapped out by the former owners of such parcels, who agreed that such road should he forever kept open, for the benefit of themselves and of any subsequent owners of any of the land delineated on such map; that plaintiff acquired title to the parcel owned by her, subject to such agreement; that one of the defendants acquired title to the other parcel, through certain conveyances, each containing a covenant that no fence should be erected along the line of such road within a certain specified distance from the center thereof; and that his co-defendant, by whom the road in question was being obstructed, acquired title to a portion of the latter parcel, with full knowledge of such agreement respecting such road. Held, that such complaint stated a cause of action, as it showed an intent to locate and perpetuate such road, for the benefit of each parcel of the entire property affected thereby.</p>

Action by Milo Daniels against Irene F. Southard and another. Appeal from an order granted setting aside a judgment rendered by a justice of the peace, and vacating and canceling, as to the respondent, the transcript and docket of judgment thereon filed, and entered in the county clerk’s office of said county, and vacating and staying execution and all proceedings thereon. 51 N. Y. Supp. 1136.

<p>Appeal from judgment on report of referee.</p> <p>Proceedings on objections filed by Albert Ivins Croll, Schenectady Bank, and Jonathan Levi, in the matter of the final accounting of Angel J. Simpson as assignee of the Empire State Knitting Company for the benefit of creditors. From the order overruling the objections, the objectors appeal.</p>

Action by Samuel D. Coykendall against Stephen D. Hood, as chief of police of the city of Kingston. From an order granting an injunction, defendant appeals.

<p>Appeal from surrogate’s court, Sullivan county.</p> <p>Judicial settlement of the accounts of James T. Mitchell and others, as executors of the will of Hannah Hammond, deceased. From a decree of the surrogate surcharging the account of John B. Boosa as such executor, he appeals.</p>

Application of the Central New York Telephone & Telegraph Company for condemnation of a right of way in the town of Canton, St. Lawrence county, belonging to Henry Woods and others. From an order modifying the report of the commissioners, both parties appeal.

<p>1. Arrest—Action on Foreign Judgment.</p> <p>Under Code Civ. Proc. § 552, providing that the recovery of judgment in another state for the same cause of action shall not affect plaintiff’s right to arrest defendant in this state, an order for the arrest of defendant may be granted in an action in New York on a foreign judgment alleging fraud in the original transaction, though no fraud was alleged in the action resulting in such judgment.</p> <p>& Same.</p> <p>The receipt of a check by the creditor, which is afterwards returned dishonored to the debtor, does not change the rights or remedies originally possessed by the creditor.</p>

<p>Foreign Corporations—Service op Summons.</p> <p>A service of summons on one whose affidavit shows him to be a director in defendant company, a foreign corporation, will not be set aside, where deponent fails to show that he is not also an officer of the company on whom process may be served, under Code, § 432.</p>

<p>Appeal from trial term.</p> <p>Action by John H. Wood against James J. McGuire. From an order at trial term permitting plaintiff- to amend, and setting the cause down for trial for a day certain, defendant appeals.</p>

In the matter of the estate of Conrad F. Lange. Contest between the executor and the city comptroller as to the tax, under the transfer tax act.

<p>Action by one Ragsdale against Green. Motion for injunction pendente lite to prevent plaintiff from being embarrassed by multiplicity of suits.</p>

<p>Appeal from special term, Schoharie county.</p> <p>Action by Elizabeth C. Taylor against Charles Wright. On motion of defendant, at the close of plaintiff’s case the complaint was dismissed. From an order denying his motion for a retaxation of costs (53 N. Y. Supp. 423), which had been taxed by the cleric in favor of plaintiff, defendant appeals.</p> <p>This is an action of trespass, commenced in the justice’s court. The defendant interposed a plea of title. The plaintiff discontinued, and thereafter brought her action in the supreme court. In the plaintiff’s complaint she alleged that she was the owner and in possession of a certain described farm and premises situated in the town of Esperance, Schoharie county. She then alleges various acts of trespass upon the part of the defendant. The defendant, in his answer, first denies each and every allegation contained in the complaint, and for a further answer alleges that at the times alleged in the plaintiff’s complaint he was the commissioner of highways of the town of Esperance, Schoharie county, and was acting as such at the time of the commission of the alleged wrongful acts stated in the plaintiff’s complaint. He further alleges that the plaintiff was not the owner of the lands, soil, and freehold where the trespass was committed, but that the premises were owned by John. Enders, deceased, and his grantees; and also denies that plaintiff was in possession of such premises; and further alleges that the place' where such trespass was committed was used by the public in common for more than 20 years, and was owned by the public, and not by the plaintiff. Upon the trial the plaintiff gave documentary evidence of her title to the farm and premises described in the complaint, but upon her own oral examination it appeared that she had not been in actual possession of the premises for a number of years, and was not in actual possession of such premises at the time of the alleged trespass, but that at such time said premises were in the possession and occupation of a third party, holding under a lease. At the close of the plaintiff’s evidence; the defendant moved to dismiss the complaint, which motion was granted by the court, upon the ground that the plaintiff had not proved possession in fact under the allegation in her complaint, which the court held was an essential allegation for her to prove. Defendant’s counsel asked for an order permitting him to tax the costs without being-compelled to go to the special term. The court refused to determine the question at that time. Subsequently, the parties appeared before the county clerk, and each requested hint to tax their costs. Against the objection of the defendant, the clerk taxed costs in favor of the plaintiff. The defendant thereupon moved before the court at special term, held by the same justice who tried the case, for a retaxation of such costs in favor of the plaintiff, and for a direction that the clerk tax defendant’s costs against the plaintiff, or for a certificate, under section 3235 of the Code of Oivil Procedure, that title to real property came in question upon the trial. The court denied the motion, and from such order the defendant appeals to this court.</p>

<p>Corporations—Default Judgments.</p> <p>Code Civ. Proc. § 1778, providing that In an action against a corporation to recover on a note, unless defendant serves, with a copy of his answer, a copy of an order of a judge directing that the issues presented by the pleading be tried, plaintiff may take judgment as in default, has no application where the action is both for goods sold and delivered and on a note.</p>

■ Action by Horace Benjamin against Catherine O. Ver Nooy, administratrix, and Almon H. Sanders, administrator c. t. a. of Hiram Crandall, deceased. From a judgment for plaintiff, and from an order awarding costs against defendants, they appeal.

<p>Appeal from trial term, Kings county.</p> <p>Action by Mary G-. Keeler against Victor Hollweg and others. From a judgment for plaintiff (51 N. Y. Supp. 259), defendants Wiessaer and Loch appeal.</p>

<p>Wills—Construction—Vested Remainders.</p> <p>A will directed an equal division of testator’s estate, after his widow’s death, among the legatees, and provided that a certain sum tie deducted from a certain legatee’s share, and paid to a nephew. The share of any legatee dying. before the widow was to go to his issue, and, in the absence of issue, to be divided among the surviving legatees. Held, that an assignee of one of the children of a legatee dying after testator, but before his widow, was entitled to a distributive share of the share coming to such legatee’s children, though testator's widow survived said child, as the will shows testator’s intention to have the legatees’ remainder vest on his death.</p>

<p>1. Receiver—Accounting.</p> <p>Where, in partition, a receiver is appointed of the rents and profits, and a judgment is thereafter rendered dismissing the complaint, the court does not lose jurisdiction of the funds brought into court under the receivership, and may direct the receiver to account therefor.</p> <p>2. Same.</p> <p>Where, pending partition, plaintiff executed a bond conditioned for payment of rents collected by him for other parties interested, and he was thereafter appointed a receiver, on dismissal of the action the order requiring him to account as receiver for the rents cannot compel him to account for the rents collected by him before appointment as receiver.</p>

Action by Charles Deutermann and others, as executors, against Alexander Pollock and another. From an order denying plaintiffs’ motion to resettle a previous order, plaintiffs appeal.

<p>Appeal—Resettling Case.</p> <p>Where moving party, on resettling a case, sets out in detail a colloquy, which defendant’s attorney states took place at'the trial, and the opposing affidavits set out plaintiff’s version thereof, and the official stenographer made no record of the subject, and the statement is a conclusion reached by the court as an inference from what transpired, and not the facts in detail, appellant is entitled to an order resettling the case.</p>

county. Action by William E. Sabin against Garry I. Mix and another for breach of contract. The complaint was dismissed at the close of plaintiff’s case, and from an order denying a new trial, and directing exceptions to be heard in the first instance at the appellate division, plaintiff- appeals.

<p>Appeal from trial term, Richmond county.</p> <p>Action by Tito Bini against John Smith. From a judgment dismissing complainant’s claim on the merits, he appeals.</p>

Action by William Boentgen against the New York & Harlem Railroad Company. From a judgment of the trial term (50 N. Y. Supp. 331), and from an order denying a motion for new trial, plaintiff appeals.

<p>Appeal from municipal court."</p> <p>Action by Earle B. Douglass against George A. Hobe and others. From a judgment of the municipal court dismissing plaintiff’s complaint, he appeals.</p>

<p>1. Bills and Notes—Defenses—Want of Consideration.</p> <p>Where a note was given in settlement of a suit for the infringement of certain patents, apparently valid, and both parties acted in good faith, the maker cannot avoid payment on the ground of want of consideration, because the patents were subsequently adjudged void in another suit.</p> <p>2. Same—Payee’s Right to Sub.</p> <p>The fact that the payee of a note, given in settlement of a pending suit, was not a party thereto, does not affect his right to recover thereon.</p> <p>3. Same—Consideration.</p> <p>A note was given in settlement of a suit for the infringement of patents on electric car equipments to a company not a party to the suit, which also agreed to promptly furnish the maker any trolley equipment It might require. Held that, though the patents were invalid, there was a sufficient' consideration for the note moving from the payee in this additional agreement.</p>

<p>Appeal from trial term, Westchester county.</p> <p>Action by Wilhelmina Gunther, as administratrix of the estate of Charles Flag, deceased, against Addison Johnson, as sheriff. There was a judgment for defendant, and plaintiff appeals.</p>

Action by Tobias L. Bose against Harrison Wells. From a judgment entered on the verdict on a new trial on appeal from a judgment in favor of plaintiff rendered on a trial before a justice of the peace, defendant appeals.

<p>1. Corporations—Officers—Authority—Evidence.</p> <p>A corporation authorizing its president to contract for the construction of a railroad authorizes him to advance bonds and stock of the corpora- • tion to a contractor agreeing to construct it.</p> <p>2. Same.</p> <p>The president may, under such an authorization, extend the time of performance to a contractor whom he has employed.</p> <p>3. Same—Burden of Proof.</p> <p>A corporation has the burden of showing that its president had no authority to do what the corporation could authorize him to do.</p> <p>4. Same—Issuing Stock and Bonds.</p> <p>Laws 1892, c. 688, § 42, prohibiting corporations from issuing “stock or bonds except for money, labor done, or property actually received,’' does not preclude a corporation from delivering stock and bonds to a contractor as advance payments on a contract to construct a railroad worth the amount of the stock and bonds.</p> <p>5. Same—Contracts—Rescission.</p> <p>A corporation cannot recover back stock and bonds issued by it to a contractor, on the ground of his failure to construct a railroad as he had agreed to do in consideration thereof, where it failed to keep its agreement to furnish rights of way.</p> <p>6. Same.</p> <p>A corporation cannot recover back its stock and bonds, delivered to a contractor on his agreement to construct a railroad on a right of way to be furnished by it, on the ground that they were all the assets it had, and that it had no means to procure the right of way.</p> <p>Merwin, J., dissenting.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by Julia A. Bishop Quill against the mayor, aldermen, and «commonalty of the city of New York. From an order granting defend-</p> <p>ant a new trial after verdict in favor of plaintiff, she appeals. Transferred from First to Second department.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by Catharine Burnett against the mayor, aldermen, and commonalty of the city of New York. There, was a judgment for defendant, and plaintiff appeals. Transferred from First to Second department.</p>

Action by J. Jacob Owens against the New Rochelle Coal & Lumber Company. From a judgment for plaintiff', and from an order denying a new trial, defendant appeals.

Action by Samuel H. Simon against Mary E. Simon. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Transferred from First to Second department.

Action by the Dr. David Kennedy Corporation against David Kennedy. From a judgment dismissing the complaint on the merits, with costs, and from an order granting an extra allowance, plaintiff appeals. The referee found: First.

<p>Married Women—Contracts.</p> <p>Under Act 1884, as amended in 1892 (substantially re-enacted as Domestic Relations Law 1896, § 20), a married woman has the same power to contract as a feme sole.</p>

Action by John B. Drake against the New York Iron Mine and others. From an order of the special term granting plaintiff leave to amend the record after dismissal of his- appeal in the court of appeals (50 N. E. 785, 1116), defendants appeal.

Action by Thomas Dwyer against the mayor, aldermen, and commonalty of the city of New York. From a judgment entered on the verdict of a jury, plaintiff appeals.

<p>In the matter of the application of the Riverhead, Quogue & Southampton Railroad Company to the railroad commissioners for a certificate of its compliance with the law, respecting a change in its articles of incorporation, providing for a change in the route of its road, and of the convenience and necessity of the change. The application was denied, and it applies to the appellate division to compel an issuance of the certificate.</p>

<p>Appeal from special term, New York county.</p> <p>Action by the London & River Plate Bank, Limited, against the Hanover National Bank, impleaded with Abe Stein and others. From a judgment in favor of defendant bank, plaintiff appeals. Transferred from First to Second department.</p>

Action by Josephine G. Drake against Edward C. Bell. Judgment for plaintiff. The plaintiff made a contract with a mechanic to repair her vacant house for $210. By his own mistake he went into the vacant house of the defendant next door and repaired it instead. He discovered his mistake after the work was done. He then informed the defendant. The work was done without the defendant’s knowledge. It was all of an irremovable character like plastering and painting.

<p>Appeal from special term, Queens county.</p> <p>Six actions by Albert JV Spencer, as assignee of Walter Blister and -others, against the Wabash Railroad Company, for loss of.baggage. Demurrers to the complaints were overruled, and from the interlocutory judgments entered thereon defendant appeals.</p>

<p>Certiorari by the people, on the relation of A. Klipstein & Co., against James A. Eoberts, as comptroller of the state of New York.</p> <p>Certiorari to review the determination of the comptroller of the state of New York refusing to revise and readjust an account for taxes audited and stated against the relator for the two years ending November 1, 1895, under chapter 542, Laws 1880, and its amendments, and for one year ending Novem ber 1, 1896, under chapter 908, Laws 1896. The relator is a foreign corporation, organized under the laws of the state of New Jersey, with a paid-up capital stock of $200,000. It carried on in the city of New York, during the years for ‘which the tax was levied, the business of dealing in chemicals and dyestuffs. Six-sevenths of such business consisted of importing from countries in Europe chemicals and dyestuffs, and selling the same in the original packages as imported. One-seventh of its business consisted of the sale of broken packages of its imported goods, and also of some domestic goods of the like character.</p>

<p>Contract—Breach—Liquidated Damages.</p> <p>Actors contracted with a theatrical manager for their services for 11 weeks at $220 per week, during which time they agreed not to perform in any other theater in the city until their engagement was fulfilled, stipulating for a “penalty” of $500 to be paid the manager for a breach of their engagement, or of any of the conditions of the contract. Held, That on breach of their engagement the manager was entitled to recover the sum named as liquidated damages, notwithstanding it was termed a “penalty.”</p>

Action by Isabelle G. Bump, as administratrix of the estate of Allen Bump, deceased, against the New York, New Haven & Hartford Railroad Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

<p>1. Street Railroads— Location— Objections bt Lakdoweers—Waiver.</p> <p>Railroad Law, §§ 6, 90, provides that a street surface railroad corporation, before constructing its road, shall file a map and profile of the route, and notify occupants of lands over which the route passes; that any occupant may, within 15 days after notice, apply to a justice of the supreme court for relief against the route designated, and alteration of the same; and that the corporation shall not proceed to condemn until the 15 days have expired, nor until final determination of any application for change of route. Eeld, that an occupant who fails to object to a proposed route within 15 days cannot afterwards attack it.</p> <p>2. Same—Petition for Condemnation—Sufficiency of Description.</p> <p>If the center line of a proposed street surface railroad extension is staked out on the ground, or otherwise ascertainable by inspection, without reference to the map of the route, or already known, it is a monument that may be referred to in the “specific description of the property sought to he condemned, and its location by metes and bounds,” required by Code, § 3360, subd. 2.</p> <p>3. Same—Right to Condemn—Agreement with Owner.</p> <p>Where an adult asserts undivided ownership in land sought to be condemned by a street surface railroad company, and several infants claim an interest therein, and there are liens on the property, the company may resort to condemnation proceedings, under Railroad Law, § 90, authorizing that course when the company is “unable to agree” for the purchase of the land.</p>

<p>Appearance—Extension op Time to Answer — Service op Answer by Another Attorney.</p> <p>The fact that an attorney subscribes himself as attorney for defendant,, and stipulates for an extension of the time to answer, is not such an appearance as prevents the service of an answer signed by another attorney without substitution.</p>

Action by Mary Jane Mather against W. A. Mather. There was judgment by confession, which was set aside, on motion of Nelson Morris and others, junior judgment creditors of defendant (53 N. Y. Supp. 999), and plaintiff appeals.

<p>1. Brokers—Commissions—Employment by Both Parties.</p> <p>Where a broker employed to exchange lots for all he could get for them is, without the knowledge of his principal, also employed by the other party to the transfer, he is not entitled to a commission.</p> <p>2. Same—Burden of Proof.</p> <p>Where it appears, in an action for broker's commissions, that plaintiff, who was invested with a discretion, was also employed by the other party to the transfer, the burden is on plaintiff to show that such employment was with defendant’s consent.</p>

Action by George Lacker against Christian W. G. Dreher. From an order denying a motion to vacate a warrant of attachment, based on the papers on which the warrant was granted, defendant appeals.

Action by Caroline Falke against the Second Avenue Railroad Company and the Third Avenue Railroad Company. From a judgment for plaintiff, and order denying a motion for a new trial, the Third Avenue Railroad Company appeals. Transferred from First to Second department.

<p>Removal of Causes—Venue—Special Act.</p> <p>A removal of a cause from a justice’s to the city court, as authorized by Laws 1878, c. 186, entitled “An act in relation to the city court of Yonkers,” as amended by Laws 1893, c. 416, is not a change of venue, within Const, art. 3, § 18, forbidding the legislature to pass a local bill providing for a change of venue.</p>

<p>Injury to Servant—Defective Machinery—Assumed Risks—Master’s Liability.</p> <p>Decedent had been employed for ten years in defendant’s foundry, and for eight or nine days in the milling room; his duty being to unload castings from trucks, and place them in revolving tumblers for cleaning. The tumblers, which were revolved by gearing from behind, were secured, when closed, by a wooden wedge, which projected slightly, as did the flanges and rivet heads on the side, which projections were plainly visible. Deceased slipped while unloading pipe, was thrown against a revolving tumbler, caught between it and the shafting, and received injuries from which he died. tBfeM, that such dangers were within the risks of the employment, which decedent assumed, and that defendant was not liable for his death.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by C. H. Diamond & Co. against Marcellus Hartley for commissions for negotiating a sale of land. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals. Transferred from First to Second department.</p>

<p>Replevin—Property in Custodia Legis.</p> <p>Since a defendant in replevin who rebonds is required to hold the property subject to the final judgment, property so redelivered to defendant on a forthcoming bond is in custodia legis, and not subject to replevin at the suit of third persons.</p>

<p>1. Municipal Corporations—Land for Streets—Amount—Limitation.</p> <p>A municipality, in the exercise of its right to take land for street purposes, is not limited to the amount actually needed for travel, but may take ample space for the access of light and air, etc., not required or used for travel.</p> <p>3. Same—Dedication—Acceptance.</p> <p>Land adjoining Fourth place, in Brooklyn, was authorized to be taken for a courtyard by Act May 12, 1846, which authorized changes in cer- . tain streets in that city. In 1858 the abutting owner conveyed his land, “subject to the provisions, restrictions, and reservations” of said act. Held, that such reservation constituted a dedication of such land, and that the subsequent acts of the city in improving it amounted to an acceptance thereof.</p> <p>3. Same—Basement—Owner’s Rights—Limitation.</p> <p>Prior to a dedication of land abutting a city street for a court, a mortgage on the land provided that, “whenever the northerly line of Fourth place was referred to, the northerly line of Fourth place, as established under Act May 12, 1846 [which authorized the taking of part of the land for a court], was intended, the space fronting on Fourth place reserved and set apart under said act.” Plaintiff claimed title to the land through foreclosure of such mortgage, and subsequent grantors, who recognized such land as a part of the court connected with the street. Held, that plaintiff’s right to use the land was limited by the dedication, and that he had no right to build thereon.</p>

Action by the New York & New Haven Automatic Sprinkler Company against James F. Andrews. From a judgment in favor of plaintiff and from an order denying a new trial, defendant appeals. Transferred from First to Second department.

<p>Appeal from special term, New York county.</p> <p>Action by Henry Gucker against the Manhattan Railway Company and another. From a judgment of special term for plaintiff, defendants appeal. Transferred from First to Second department.</p>

Action by Asa R. Runyon against Henry Doherty and another. From a judgment in favor of plaintiff, and from an order denying a new trial, defendants appeal. Transferred from First to Second department.

<p>Appeal from trial term, New York county.</p> <p>Action by Solomon Hexter against the Pennsylvania Railroad Company. From an order setting aside a verdict for plaintiff, and ordering a new trial, plaintiff appeals.</p>

In the matter of the examination of Charles A. Bird, judgment debtor, in proceedings supplementary to execution, upon the application of Charles S. Whitney and Samuel A. Wheeler, judgment creditors.

<p>Action by Jennie L. Chatterton against Nellie Mar Chatterton, individually and as executrix, etc., and others.</p>

<p>Action by Samuel Victor Constant, as assignee, against Gustave E. Schloss and another. L. A. Gould, for appellant. Oppenheim & Severance, for respondent.</p>

Action by Edward A. Duffy against the mayor, aldermen, and commonalty of the city of New York. Louis Steckler, for appellant. Theodore Connoly (Terence Farley, on the brief), for respondent.

<p>Action by Leopold Ehrman, as administrator, etc., of Minnie Ehrman, deceased, against the_ Nassau Electric Railroad Company.</p>

<p>In the matter of Robert Dietzel.</p>

<p>Action by Henry C. Fischer against Frederick CClingman.</p>

In the matter of the application of Coleridge A. Hart for an order requiring the state board of canvassers to act or show cause.

<p>Action by the First Presbyterian Church in the Village of Waterford against Edgar C. McKallar and others, executors, etc.</p>

<p>Action by Charles Haber against Bernard J. York and others. David May, for appellant. Terence Farley, for respondents.</p>

<p>Action by Harry S. Henry against Monroe Salisbury. A. H. Hummel, for appellant. H. M. Whitehead, for respondent.</p>

<p>Action by the Hecla Iron Works against Edward P. Milliken and another.</p>

<p>Action by John Mahar against James Compton.</p>

<p>Action by the New York Security & Trust Company against the Saratoga Gas & Electric Light Company.</p>

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

<p>Action by Rose T. O’Flaherty against the Nassau Electric Railroad Company.</p>

<p>Action by the Oneida County Bank against Philip E. Lewis and others.</p>

<p>Proceeding by the people of the state of New York against Thomas Gritellia.</p>

<p>Application for mandamus, on the relation of Carl Jussen, against John J. Scannell, as fire commissioner of the city of New York. Theodore Oonnoly, for appellant. Henry L. Stimson, for respondent.</p>

<p>Actions by the Rochester Savings Bank and the Commercial Bank against Moses Foltz and Beaman Catto.</p>

<p>Action by Julius Rothschild against Samuel Mosbacher.</p>

<p>Action by Joseph Ricca, Jr., an infant, by Joseph Ricca, his guardian ad litem, against the Third Avenue Railroad Company. Herbert R. Limburger (Henry L. Scheuerman, on the brief), for appellant. John B. Shanahan (James W. Ridgway, on the brief), for respondent.</p>

<p>Action by Jennie Sanders against Adolph Richter. C. Brandt, Jr., for appellant. L. W. Harburger, for respondent.</p>

<p>Action by Herman Siefke against Henry Siefke. De Lancey Nicoll, for appellant. William Allan, for respondent.</p>

<p>Action by Harry Simon against the Long Island Mutual Fire Insurance Company.</p>

<p>Action by Aaron R. Stevens and others against the Central National Bank of Boston and others.</p>

<p>Action by James S. Sullivan, Timothy D. Sullivan, and Charles J. Sullivan against the Spring Garden Insurance Company.</p>

<p>Action by Andrew Volkommer, an infant, by Carrie Volkommer, his guardian ad litem, against the Nassau Electric Railroad Company. Henry Yonge (Clarence J. Shearn, on the brief), for appellant. Edward J. McGrossin, for respondent.</p>

<p>Action by the Western Union Telegraph Company against the Syracuse Electric Light & Power Company.</p>

<p>Action by Frederick B. Wendt and others against Robert Megowan. Edward J. McGanney, for appellant. C. G. F. Wahle, for respondents.</p>

<p>Action by Albert J. Wheeler against William G. Preston and others.</p>