Volume 56 — New York Appellate Division Reports

<p>Insurance policy—assignment of, to one “ if living” — the words "if living” held, to refer to the díate of its maturity.. .</p> <p>Where a policy of insurance, payable in twenty years, or upon the death of the assured, one J. Charles Burton, is assigned by the beneficiary “to Lizzie J. Burton, wife of J. Charles Burton, if living; if not, then to J. Charles Burton; ” and it appears that J. Charles Burton and Lizzie J. Burton were living together when the assignment was made, the words “if living” do not refer to the time when the assignment was made, but to the date of the maturity of the policy.</p> <p>Under such an assignment, if Lizzie J. Burton predeceases J. Charles Burton, before the maturity of the policy by the death of J. Charles Burton or the lapse of twenty years, the policy on its maturity is payable to J. Charles Burton, or, if he be then dead, to his personal representatives.</p>

Appeal by the defendant, Thomas B. Gale, 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 4th day of June, 1900, upon the decision of the court rendered after a trial at the New York Special Term, directing that the defendant render an account to the plaintiff of the receipts and expenses connected with the hotel business conducted pursuant to an agreement between the plaintiff…

Appeal by the defendant, The Mount Morris Electric Light Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of June, 1900, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Henry Chaurant, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 14th day of February, 1893, upon the report of a referee dismissing the plaintiff’s complaint upon the merits.

<p>Injunction undertaking — when counsel fees paid, on the trial a/)'e recoverable thereunder—services rendered prior to the entry of the order continuing the injunction are not.</p> <p>An undertaking, given in an action to restrain the defendant from removing-certain fixtures which had been placed upon the premises leased by him from, the plaintiffs, provided that the plaintiffs “ will pay to the said defendant such damages, not exceeding the sum of §3,000, as the defendant may sustain by-reason of the said injunction, if the court shall finally decide that the plaintiffs are not entitled thereto.”</p> <p>The complaint having been dismissed upon the trial of the action, on a reference to ascertain the amount to which the defendant was entitled, -it was Reid,' that the court having continued the temporary injunction during thependency of the action notwithstanding the defendant’s objection, thus obliging the defendant to proceed to the trial of the action in order .to; procure a dissolution of the injunction, he was, therefore, entitled to an allowance for counsel fees incurred upon the trial;</p> <p>That the defendant was not entitled to recover counsel fees paid for services of counsel rendered in unsuccessfully opposing the motion to continue the injunction, nor for any services rendered prior to the entry of the order continuing the injunction.</p>

Appeal by the petitioner, Edward A. Hayes, 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 ’ 27th day of July, 1900, denying his motion for an alternative writ of mandamus directed to the comptroller of the.city of Hew York. and the finance department of that city, commanding the reinstatement of the relator in the office or position of assistant to expert accountants under chapter…

<p>JSquity— when the maintenance of an electric power plant, alleged to constitute a nuisance, will not he enjoined.</p> <p>An injunction will not be granted where it would create serious injury to an individual or to the community at large, and a relatively slight benefit to the party seeking it.</p> <p>In an action to enjoin an electric light company, engaged in supplying electricity for lighting the public streets and private places and for motive power, from operating its machinery so as to discharge, as alleged, quantities of Soot, cinders, etc., upon the plaintiff’s premises, which were adjacent to its plant, and to cause noise and vibration affecting the beneficial enjoyment of the plaintiff’s property, it appeared that the neighborhood in which the property was located was devoted almost exclusively to manufacturing and warehouse purposes, with a few stables and a few old-fashioned dwellings turned into tenement houses; that the defendant’s machinery was of the best known kind and created no noise or vibration which was not essential to its operation, and that the greatest care was used to prevent soot, cinders, etc., from escaping from the chimney to the adjoining premises ; that the plaintiff’s damages consisted solely of his alleged loss of rents, and that he had previously obtained from an elevated railroad company whose railroad was operated in front of his premises a substantial sum in payment for the injury resulting to his property from its maintenance and operation.</p> <p>Held, that, considering the locality and the nature of the business there transacted, the case was not one in which equity should" enjoin the defendant’s use of its property, and that the plaintiff should be left to his remedy at law.</p>

<p>Map — when, referred to in a deed,, it controls the distances stated therein.</p> <p>Where, in all the conveyances of a city lot made since 1825, it has been conveyed as lot No. 60 on a specified map, and the easterly line of said lot, by actual occupation, is and has been located not more than a certain number of feet from an adjacent avenue, and all the deeds of conveyance of adjoining lots on the east and west, to wit, lots Nos. 59 and 61, since the first-mentioned date, have-referred to such map and recognized the location of lot No. 60 as the correct one, the map must be considered and read as a part of the description of lot. No. 60 and the distances given in the conveyances thereof must be lengthened or shortened "so as to conform'to the bounds called for by the map.</p>

Appeal by the plaintiff, Harry L. B. Noad, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 4th day of March, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the New York Trial Term.

. Appeal by the defendant, John O. Baker, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 26th day of October, 1900, upon the report of a referee directing .the specific performance of a contract for the sale of real estate.

<p>Surety company — it is subject to the Insurance Law prohibiting the assumption of a risk exceeding ten per cent of its capital and surplus—collaterals taken by the company a/re to be deducted in determining the amount of a risk.</p> <p>A surety company is not exempt from section 24 of the Insurance Law (Laws of 1892, chap. 690), limiting the amount of any one risk which may he assumed by the company to “ ten per cent of its capital and surplus.”</p> <p>Section 24 has not been rendered inapplicable to such companies by chapter 720 of the Laws of 1893, as amended by chapter 178 of the Laws of 1895.</p> <p>In determining whether a surety company in executing an undertaking has exposed itself to a loss exceeding “ten percent of its capital and surplus,” the value of collaterals taken by the company to secure itself from loss upon the undertaking should, it seems, be deducted from the amount.</p>

<p>Insolvent corporation—right of a crédito?'thereof to property improperly assigned by it, which has been sold unden' a judgment against the assignee — statutes applicable, in the State of New York, to foreign corporations.</p> <p>Where a foreign corporation executes to a copartnership, at a time when both are insolvent, a bill of sale of personal property situated in the State of New York, in consideration of the sum of one dollar and the assumption by the copartnership of all the debts of the corporation, a creditor of the copartnership, who, before the bill of sale, which was accompanied by a change of possession of the property sold, had been attacked by either the corporation, its stockholders or creditors, obtains a judgment against the copartnership and levies upon the property covered by the bill of sale, is not obliged to account for the proceeds of the execution sale to creditors of the corporation.</p> <p>Such a bill of sale is not void, but simply voidable.</p> <p>Section 48 of "the Stock Corporation Law (Laws of 1892,' chap. 688), relative to-transfers made- by a corporation when insolvent, does not apply to foreign - corporations.</p> <p>Comity does not require effect to be given to a general' statute Of the State in which a corporation was organized, not a part of the charter or of the organic-law of the corporation, for .the purpose of depriving a domestic creditor of a lien, acquired by him, under the laws of the State of New York, upon, property situated therein. "</p>

Certiorari issued out of the Supreme Court and attested on the 19th day of January, 1900, directed to John J. Scannell, as tire commissioner of the fire-department of the city of New York, commanding him to certify and return to the office of the clerk of the county of New York all and singular the proceedings had before him relating to the dismissal of the relator from the first grade in the uniformed force of the fire department ofp the city of Mew York..

Appeal-by the defendant-, Clarence F. True, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the 'county of Hew York on the 27th day of June, 1900, upon the decision of the court rendered after a trial at the New York Special Term adjudging that certain projections on buildings ■erected by the defendant referred to therein are nuisances, awarding the plaintiff $2,500 damages, and granting the plaintiff the right to reopen…

<p> Negligence — injury from, the cogwheel of a crane defective because having no “dog.” </p> <p>Where an employee is directed to hoist a weight with a crane which he has never seen operated before, .and which to the knowledge of his employer was defective-in not having a-mechanical contrivance called a-“ dog ” to drop into the cogwheels to hold the weight when raised; and, being unaware of this defect, the employee provides himself with nothing to use in place of the “ dog,” and, in an endeavor to obey an order to insert something in the cogwheels, his fingers are caught between the cogs and are injured, the submission to-the jury, in an action brought to recover damages for such injury, of the questions of the defendant’s negligence and the plaintiff's freedom from contributory negligence is proper.</p> <p>The employee in such case is not bound to examine the crane to see whether it is defective, but is justified in assuming that it is in good condition.</p>

<p>Appeal by the defendant, George Laemmle, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county.of Uew York on the 14th day of May, 1900, upon the verdict of a jury for $200.</p>

Appeal by the defendants, Moses Crystal and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of April, 1900, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 26th day of April, 1900, denying‘the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Otto H. Bauer, from an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of ¡New York on the 18th day of September, 1900, granting the motion of John H. Delack to be made a party defendant in the action.

Appeal by the defendant, Edge Moor Bridge Works, from a judgment of the Supreme Court in favor of the plaintiff, entered in. the office of the clerk of the county of Hew York on the 5th day of June, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of June, 1900, denying the defendant’s motion for a new trial made upon the minutes.

<p>-Action to cha/rge an heir at law or devisee with his decedent’s debts—a beneficia/ry under a trust created by the decedent is a grantee — a recovery against one as devisee is not proper where the complaint alleges the will to be void — Statute of Limitations a/pplicable — validity of a trust continuing “ until the youngest survivor ” of five nieces and nephews “ shall arrive at the age of thirty years’’ —payments avoiding the Statute of Limitations.</p> <p>An action to charge an heir at law or devisee with liability for his decedent’s debts to the extent of the real property which he derived from the decedent, cannot be maintained, under section 1843 of the Code of Civil Procedure, against an heir at law whose interest'in the decedent’s real property was not derived as heir or devisee, but as remainderman under a deed of trust executed by the decedent, without consideration, for her own benefit for life, with ■remainder over to her children, in the absence of evidence that such deed of trust was executed with intent to defraud creditors.</p> <p>Where, in such an action, the plaintiff elects in the complaint to treat the will of the decedent as á nullity and to charge the defendants as her heirs at law on the theory that her will was void, the action cannot be sustained against the defendants as devisees under the will. .</p> <p>A trust created to continue “ until the youngest survivor of my said nieces and nephews shall arrive at the age of thirty years,” will not, although it appears that there were five nieces and nephews, he held by the court to violate the statute against perpetuities, in the absence of proof that, at the time the trust took effect, more than two of such nieces and nephews were under the age of thirty years.</p> <p>Semble, that the words youngest survivor ” might be construed to mean either the youngest of the nephews and nieces in question who should survive the testatrix or the youngest of those who should live to be thirty years old,, and that the former construction, involving a lawful disposition of the estate, would he preferred.</p> <p>Semble, that the action must be brought within the period of limitation governing an action on the original claim against the decedent, plus the three years added by section 1844 of the Code of Civil Procedure.</p> <p>A payment by one of several obligors upon a note does not affect the running of the Statute of Limitations in favor of a co-obligór; nor does a payment thereon made by the son of one of the obligors, when not made in the lattér’s interest, have that effect as against such obligor or her co-obligors; nor, it seems, would it so operate even if made in the, interest, qf such obligor.</p> <p>The burden rests upon a party, seeking to charge another with an obligation claimed to be barred by the Statute of Limitations, to show that the payments necessary to take the debt out of the statute were made by the party sought to be charged for his own account-and with reference to that particular debt.</p>

Appeal by the relator, William J. Rodgers, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 26th day of June, 1900, denying his motion for a peremptory writ of mandamus.

<p> Surety for a trustee—Ms liability on a bond giren some years after the appointment of the trustee—effect of a judgment against the executrix of the trustee. </p> <p>The accounts of a substituted trustee of an estate, appointed in 1883, were passed by a j udgment entered in 1890 which adjudged that a certain sum was ‘ ‘ held by the defendant as aforesaid [to] be divided and distributed among the several cestuis que trust according to their several interests in the estate of the defendant’s testator,” and he was directed to make the distribution thereof among the several beneficiaries. Thereafter, in 1898, pursuant to an order of the court, reciting the death of his former bondsman, the trustee gave another bond for §25,000, conditioned that he “ shall faithfully execute the trust reposed in him as such trustee, and shall faithfully pay over, distribute and divide and account for all the property and money which shall come into his hands as such trustee, in accordance with the provisions of the said will.”</p> <p>Meld, that the surety upon the last-mentioned bond was not responsible for any failure on the part of the trustee to faithfully execute the trust prior to the giving of such bond;</p> <p>That in order to create a liability, on the part of the surety under such bond, it would be necessary to show that after its execution the trustee had failed to faithfully execute the trust reposed in him as such trustee, or had failed to faithfully pay over, distribute and divide and account for all of the property and money which was in his hands at the time of the execution of the bond, or which, after its execution, had come into his hands;</p> <p>That a j udgment, rendered in an action brought against the executrix of the trustee by his successor in the trust, adjudging a certain amount to be due from the trustee to the cestuis que trustent, but containing no adjudication that the trustee had failed to account for money in his hands at the time of the execution of the second bond, or money which had come into his hands subsequently, was not conclusive upon the surety mentioned in that bond.</p>

Appeal by Theodore Sattler and another 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 2d day of October, 1900, denying their motion to refer their claim to the commissioners of estimate and assessment under chapter 1006 of the Laws of 1895.

Appeal by the plaintiffs, Virginia Stuart Maekay-Smith and others, as trustees under the will of Ellen E. Ward, deceased, for William Cairns Stuart, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 26th day of June, 1900, upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by the plaintiff, the Barrett Chemical Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 9th day of July, 1900, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merits.

Appeal by the plaintiff, Thomas Nelson, from a judgment of the Supreme Court in favor of the defendant Edward S. Hatch, entered in the office of the clerk of the county of New York on the 18th day of May, 1899, upon the report of a referee. Lilyon B. Daniels brought an action against William B. Daniels in the County Court of Arapahoe county, in the State of Colorado, to annul a decree Of divorce which she alleged was obtained by him against her by fraud.

Appeal by the defendants, Daniel E. Finn and others, from two several judgments of the Supreme Court in favor of the plaintiff, each entered in the office of the clerk of the county of New York on the 23d day of December, 1899, upon the verdict of a jury, and also from two several orders entered in said clerk’s office on the 19th day of January, 1900, denying the defendants’ motion in each case ■for a new trial made upon the minutes.

<p>Motion to change the venue of an action affecting the title to real property to (lie county in which it is located — the demand therefor may accompany an amended answer—failure to move under a demand accompanying the original answer — effect, off an admission of‘ due service ” of a demand,.</p> <p>An action brought to procure a j udgment declaring that certain property, belonging to the estate of a testatrix, was subject to, and charged with, the execution of certain secret trusts, independent Of the will, and for a judicial construction of the will, is a local action and is properly triable in the county in which all of the testatrix’s real estate is located, although the'action will affect personal property located elsewhere.</p> <p>' An amended answer served within a time covered by the defendant’s legal right becomes the answer contemplated by sections 985 and 986 of the Code of Civil' Procedure, conferring on the defendant the right, at the time of joining issue, to demand that the action be removed for trial to the proper county; and such demand may be served with the amended answer, except in cases where the amended pleading is not served in good faith, but for the purpose of delay. The fact that the defendant served a similar demand with his original answer and failed to move thereunder within ten days after the expiration of a period of five days from the time it was served, does not constitute a waiver of his right to serve the second demand with the amended answer.</p> <p>Semble, that an admission by the plaintiff’s attorneys of “ due service ” of the second demand, implies that it was properly served in time to save the parties’ legal rights.</p>

Appeal by the plaintiff, The Aultman & Taylor 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 10th day of October, 1900, setting aside an execution upon the ground that more than five years had elapsed since the entry of 'the judgment at the time when the execution was issued.

Appeal hy J. E. Williston & Company, the third party herein, 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 15th day of October, 1900, denying the motion of said third party to vacate a second order for the examination of said third party in supplementary proceedings.

Appeal by the defendant, Bird S. Coler, comptroller of the city of Hew York, 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 19th day of October, 1900, ordering the issuance of a peremptory writ of mandamus directing the defendant to reinstate the relator in the place or position of senior clerk, third grade, in the bureau of taxes of the finance department of the city of Hew York,…

Appeal by the plaintiff, Joseph H. Lumley, 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 23d day of August, 190Q, vacating and setting aside a warrant of attachment against the property of the defendant.

<p>Guardian and wa/ra — expenses incurred oy a mother in recovering■ possession .of her infant son before' her appointment as his general gua/rdiam. — they are not chargeable against the son’s estate — when the mother is not entitled, to an allowance for the-soris board in his stepfather’s-house. .</p> <p>A mother who, to recover the custody of her infant boy from his grandmother, institutes habeas corpus proceedings based solely upon the fact that she is his mother, is not entitled, upon - subsequently being appointed his general guardian, to charge the expense of the proceeding -against' the- estate of the child. Where, after the mother’s appointment as general guardian, the child lives with his mother and stepfather in the stepfather’s house, his mother paying nothing for his board nor agreeing to do so, the mother is not entitled to an allowance . out of the child’s estate of the cost of the board thus furnished to the child. Quaere, whether the stepfather could enforce any claim for the child’s board.'</p>

Appeal by the defendant, Thomas Kavanagh, 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 5th day of Hovember, 1900, denying the defendant’s motion to require the plaintiff to give security for costs.

<p>Appeal by the defendant, the Union Railway Company of New York City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on' the 21st day of April, 190Ó, upon the verdict of a. jury for $752.06, and also from an order entered in said clerk’s office on the 18th day of May, 1900. denying the defendant’s motion'for a new trial made upon the, minutes.</p>

Appeal by the defendants, The Manhattan Railway Company and ■another, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 1st day of October, 1900, joining Charlotte H. App ell as a party plaintiff in the action, and continuing the same in her name as plaintiff with the other plaintiffs, •except from so much of said order as vacated an order entered in ■said clerk’s office on the 14th…

<p>Bequest to charge— the court is not obliged, to charge what is proper and reject the rest of the request.</p> <p>The court is not called upon to dissect a request to charge and eliminate therefrom such matter as it is not proper to charge, and charge the remainder. If the request as a whole is not correct, no error can be based upon the refusal of the court to charge it.</p> <p>In an action to recover damages for personal injuries, the plaintiff’s testimony was to the effect that while being escorted by a policeman across the defendant's street car tracks her progress was impeded by a wagon, and that she was unable to get off the tracks until she was struck by a car. The defendant’s evidence tended to show that the plaintiff and the policeman had crossed the tracks once, but had been driven back thereon by an approaching wagon.</p> <p>Meld, that it was not error to refuse a request to charge that “ The gripman was ' not bound to anticipate that the policeman, having once crossed the track, would step back into a place of danger, and .the gripman had a right to assume that, having once crossed the track, if you so find, the policeman would remain in a place of safety,” or that “ If the policeman stepped back six feet in front of the car and too near to avoid an accident, while this would not be contributory negligence attributable to the plaintiff, yet she could not succeed in this suit, because in that case it would become an unavoidable accident so far as the railroad is concerned, and there could.be no recovery,” as such a request would not be applicable to the plaintiff, unless she had stepped off the tracks and then stepped back thereon.</p>

<p>Negligence — leaving electric light wires, disconnected from a lamp, in front of asiore — injury to one attempting to extinguish afire caused by them.</p> <p>In an action to recover the damages resulting from the death of the plaintiff’s intestate, it appeared that the defendant; an electric light company, after an arc lamp had been removed from in front of a store, left the iron bar, from which the lamp was suspended, and the feed wires in such a condition that by the constant motion of the wires against the store awning the insulation had been worn off so that whenever the electricity was transmitted through them the current escaped to the framework of the awning and the iron front of the store; that after this condition had existed for about eight months the current thus transmitted set fire to the awning, and that in an attempt to extinguish the fire the plaintiff’s intestate came in contact with the store front and was killed by the electric current transmitted through the wires.</p> <p>Held, that the jury was justified in finding that the defendant was guilty of negligence in thus permitting the electricity to escape;</p> <p>That the act of the plaintiff’s intestate in attempting to extinguish the fire was not, as matter of law, contributory negligence on his part.</p>

<p>Building contract making time of its essence—duty of the owner to procuré the proper permit — right of the contractor to sue for damages occasioned by the owneo^s delay in doing so.</p> <p>An owner of real property who entes into a contract for the erection of a building thereon, which requires the contractor to proceed promptly and diligently with his work, makes time of the essence of the contract, and imposes upon the contractor a penalty for a failure to complete the building within the prescribed time, thereby assumes an implied obligation to perform with due diligence any act required of him by law in connection with the contract, such as to procure a building permit from the public authorities, although the contract contains an implied condition that the erection of the building shall not be commenced until the permit has been obtained.</p> <p>Semble, that the fact that the contractor, notwithstanding the delay occasioned by the owner’s failure to obtain such permit with due diligence, goes on and finishes' the work and receives his compensation therefor, does not preclude him from bringing an action for the damages occasioned by such default on the part of the owner.</p>

<p>Appeal by the plaintiff, Retta L. McKay, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 22d day of November, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Orange Trial Term, and also from an order entered in said clerk’s office on the 21st day of February, 1900, denying the plaintiff’s motion for a new trial.</p> <p>This appeal was transferred from the second department to the first department.</p>

Appeal by the defendants, Edwin A. Stevens and others, from so-much of a judgment of the Supreme Court in favor of- the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of December, 1899, upon the verdict of a jury as adjudged that the plaintiff recover judgment against the said defendants in the sum of $113,839.02, and also from an order entered in said clerk’s office on the 5th day of January, 1900, nunc pro tuno as of the 15th day of…

<p> jIssue as to whether a note had a valuable consideration,—proof that the consideration of the note became of no value after it was made. </p> <p>In an action to recover the amount of a promissory note from an indorser thereof, the plaintiff contended that the note was given to him as the consideration for a transfer of 800 shares of stock to the maker thereof. One of the issues in the case was whether the note was given to the plaintiff by the maker thereof for a value.ble consideration, or whether it was given to him simply that it might be used to enable him to raise money. In the course of the defendant’s examination he testified that the sales of stock, made during the lifetime of the maker of the note, were at the rate of from eight to twelve dollars a share; he was then allowed, over the objection of the plaintiff, to testify that after the death of the maker of the note the stock had no market value.</p> <p>Held, as it was not unlikely that the jury might consider, in view of this evidence, that in fact the plaintiff had given nothing for the note, and would practically lose nothing if he failed to recover upon it, that its admission constituted a material error, requiring a reversal of the judgment.</p>

Appeal by the defendants, Nathan Rosenstein and others, from an order of the Supreme. Court, made at the New York Special Teim and entered in the office of the clerk of the county of New York on the 16th day of June, 1900, continuing a temporary injunction restraining the said defendants, among other things, from hindering, interrupting, obstructing or- otherwise interfering with the exercise and management of the lawful-trade, business and calling of the plaintiffs.

<p> Pleading—effect of a denial of “ each and every allegation to the contra/ry in said complaint contained </p> <p>The complaint, in an action brought against the city of New York by an employee thereof to recover his wages for a certain period, alleged that a writ of mandamus had been issued, pursuant to an order of the Supreme Court, directing the proper officer of the city of New York to certify to the comptroller that the plaintiff was entitled to his wages for that period, and that such officer did so certify, but that the comptroller refused to pay the amount so certified. ;■ The answer alleged that the plaintiff had been removed from his position during the entire period for which he sought to recover wages and did not render any services; that another person, appointed and employed by the city, occupied the position and discharged its duties ddring such period, and was paid therefor. The answer further stated, “It alleges the facts to be as above stated, and denies each and every allegation to the contrary in said complaint contained. ”</p> <p>Held, that there was no denial that the order was made and the writ of mandamus issued, which, being admitted, the plaintiff's right to recover in the action could not be questioned.'</p>

<p>Appeal by the plaintiff, Charles Neukirck, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 18th day of May, 1900, upon the decision of the court rendered after a trial at the New York Special Term.</p>

Appeal by the defendant, the Bankers’ Life Insurance Company of the City of New York, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 2d day of March, 1900,. denying the defendant’s motion to set aside the verdict of a jury in favor of the plaintiff, and for a new trial made upon the minutes.

<p>Motion by the plaintiff, Edward E. Dunham, 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 New York Trial Term.</p> <p>The action is based upon a contract in writing, by the terms of which the plaintiff was constituted the sole agent of the defendant in the city of New York for certain purposes, and upon conditions therein expressed. The action was tried before the court and a jury, and resulted in a dismissal of the complaint at the close' of the plaintiff’s case, on the ground that the contract sued upon is void as against public policy; and" the question to be reviewed arises on the exceptions to this ruling and to the refusal of the court to submit to the jury the question of the legality of the contract.</p> <p>The defendant is a domestic corporation engaged- in the manufacture of paving blocks known as “ Compressed Asphalt Paving Blocks.” Prior to 1890 asphalt paving had been done in the city of New York with sheet asphalt only. Upon the suggestion of the president of the defendant, this plaintiff in that year organized a company, brought about the laying of a sample pavement of the asphalt block in the city, and reported to the president of the defendant that the city authorities would require that this pavement be laid for five years before allowing further bidding on that kind of pavement. At the end of this period, and in February, 1895, the contract in question was made between the parties. It is recited in the contract that the pavement company is desirous of having the use of its paving block introduced into and extended in the city of New York; that Edward B. Dunham (the plaintiff) has .offered to undertake and perform the labor-of securing the consent, provided he have the exclusive right, during a limited period, of introducing, extending and securing the use of such pavement in said city.</p> <p>The contract provides for the compensation to plaintiff, based Upon the square, yards laid under each contract secured, by way of commission, which provision was afterward modified by parol, by fixing the compensation of the agent at fifteen cents per square yard. In the contract the plaintiff agrees that he will, at all times during the continuance of the contract, “ use and make all reasonable, honest and lawful efforts to secure the right from the city of New York to make bids for laying such pavement or paving blocks upon the streets of the city of New York.”</p> <p>During the years 1895, 1896 and 1897 the plaintiff, with the assistance of Mr. Bollin M. Morgan, whom he interested with him, secured for the defendant the right to bid in competition with others for paving contracts. This required the passing of resolutions by the board of aldermen, providing for the paving of unpaved streets; the approval thereof by the mayor, etc., and involved interviews with city officials who were experts in street paving, and visits with them to other cities where the pavement had been in use; interviews with Mayor Strong, Commissioner Brookfield and others, including members of the board of aldermen, and a variety of other work not connected with the procuring of the passage of resolutions or other legislation. As a result of this work the defendant secured contracts for paving, and a large amount of its asphalt blocks were laid for the city, and to recover for plaintiff’s commissions for such services this action was brought.</p> <p>The trial court held that the contract, although valid on its face was, nevertheless, void, because the testimony “indicates that the purpose of this contract was to secure the passage by the board of aldermen, and the adoption by the city of New York, of ordinances authorizing the paving of particular streets in the city of New York with asphalt pavement, and that the resolutions should be broad enough to include the kind of asphalt block pavement which the plaintiff was trying to have introduced' in the city,” and dismissed the complaint. To this ruling the plaintiff’s counsel duly excepted, and asked leave to go to the jury on. the question whether or not the carrying out of the contract in the light of its provisions was or was not, under the rules of law to be laid down by the court, lawful or unlawful; and upon the question whether or not, under the terms of the contract, the acts which the plaintiff was bound to perform in order to comply with the contract were lawful or not.</p> <p>These requests were denied, to which rulings plaintiff’s counsel duly excepted. The court ordered that the exceptions be heard in the first instance at the Appellate Division.</p>

<p>'Transfer tax — new appraisal — an increased valuation of property already appraised and the rejection of claims for debts already deducted are improper— such right should be reserved.</p> <p>-On an application for a new appraisal, for the purposes of the transfer tax upon an estate, the appraiser is not authorized to reappraise property included in the original appraisal at a higher valuation than that fixed on such appraisal', to wit, at the amount realized by the executor of the estate upon the sale thereof, nor to reduce the allowance made upon the first appraisal for debts due by the decedent and for expenses of administration, although some of such alleged debts have been successfully disputed by the executor, and the expenses of administration have proved less than was estimated.</p> <p>.'The order fixing the tax on the basis of the appraisal originally made is conclusive upon such matters until it is reversed or modified.</p> <p>Where, on an original appraisal, deductions for doubtful or uncertain debts or claims are allowed, the appraiser’s report and the order of taxation should-contain a recital to the effect that the deduction is made without prejudice to the right of the State to a further appraisal and taxation of the whole or any part, thereof, in the event that it shall appear that the items so deducted are not-valid claims or are of less value than the amount at which they were allowed in reduction of the total assets of the estate.</p>

Appeal by the defendant, the Ocean Steamship Company of Savannah, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 26th day of June, 1900, upon the verdict of a jury for $3,000, as amended nunc pro tuno by an order entered in said clerk’s office on the 27th day of July, 1900, and also from an order entered in said clerk’s office on the loth day of June, 1900, denying the said defendant’s…

Appeal by the petitioner, John Q. A. Henry, from an order of the Supreme Court, made at the New York Special Term and. entered in the office of the clerk of the county of New York on the 10th day of September, 1900, denying the petitioner’s motion to cancel a liquor tax certificate issued to Frank E. Moran, and also from a judgment entered in said clerk’s office on the 15th day of October, 1900, upon the said order.

Appeal by the plaintiff, Dave Réed, Jr., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the cotinty of New York on the 16th day of October, 1900, directing the plaintiff to furnish and serve a bill of particulars.

Appeal by the plaintiff, Frederick W. Sander, from ah order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of November, 19.00, denying the plaintiff’s motion for a. retaxation of costs.

Appeal by the defendant, Nicholas Schnepp, 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 11th day of October, 1900, vacating an order which required the plaintiff to give security for costs, and granting leave to the plaintiff to sue as a poor person.

Appeal by the Havens Relief Fund Society, one of the legatees named in the last will and testament of William Tilden deceased, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 9th day of October, 1900, denying its application to open and vacate a decree of said court, entered on the 7th day of December; 1899, in so far as the same failed to admit to probate a codicil to said last will and testament, as a will of…

<p>Appeal by the relator, William Lemmon, from a final order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th.day of March, 1900, dismissing a writ of certiorari issued to review an assessment against the relator for personal property.</p>

<p>Appeal by the defendant, the Metropolitan Street Railway Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of November, 1900, vacating an order requiring the plaintiff to give security for costs.</p>

<p>' Appeal by the defendants, Charles J.' Warren and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Mew York on the 1st day of March, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of March, 1900, denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Contract — effect of an agreement that the certificate of a third person shall be conclusive as to its performance—-manner in which the owner may complete the work after a default by the contractor-\</p> <p>An agreement, which recited the making'by the parties thereto of a prior contract for the installation of certain elevators, and that there was unpaid a specified sum, which the contractor was desirous of having paid before the complete performance of his contract, stated that, in consideration of the payment of that sum, it1 was agreed, among other things, that the contractor should perform “ completely every provision and requirement in said contracts contained on or before the 16th day of May, 1898, to the satisfaction of R. M. Watson, who is hereby made sole judge and arbitrator as to what- shall be deemed compliance with the-provisions and requirements of' said contracts, and whose determination, given in writing,. shall be binding and conclusive upon the parties hereto.” It further provided that time should be of the essence of the contract, and that if the work was not completed before a specified day to the satisfaction of said Watson, the owner might, under the direction of Watson and at the expense of the contractor, complete the work, and in so doing replace any part or parts of the elevators and their appurtenances with articles manufactured by parties other than the contractor.</p> <p>Seld, that the certificate of Watson, that the contract had not been performed, was conclusive upon the contractor in the absence of bad faith, corruption or palpable error in the making thereof;</p> <p>That the fact that, the owner, in completing the work left incomplete by the contractor, installed an elevator running at the rate Of 200 feet a minute, instead of one, called for by the contract, running at the rate of 300 feet a minute, the machinery necessary to run which" would cost more than the machinery necessary to run the elevator actually installed, did not establish a failure on the part of the owner to complete the work in accordance with the terms of the contract;</p> <p>That the owner was not limited to simply replacing parts of the machinery which were defective, nor bound, to "confine himself to machinery manufactured by the contractor, but might complete the elevator by adding to it parts of machinery made by other manufacturers, so as to finish the work completely and perfectly, in such wise that the elevator would work as well as the contractor had -agreed that it should — certainly in the absence of proof that-the defective pieces could have been replaced in such a way as to make the elevator work as the contractor had agreed that it should work.</p> <p>It seems, that the certificate of Watson would be conclusive with respect to the reasonable cost of the execution by the owner of the work left incomplete by the contractor.</p>

<p>Appeal by the defendant, Ricola Dellaglio, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Rew York on the 29th day of June, 1900, reversing a judgment in favor of the defendant rendered by the Hunicipal Court of the city of Rew York, borough of Manhattan, second district, dismissing the complaint.</p>

Appeal, by the relator, Frank J. Martin, from an order of the Supreme'Court, made at the New York Special Term, bearing date the 6th day of December, 1900, and entered in the office. of the ■clerk of the county of New York, denying the relator’s application for a peremptory or. alternative writ of mandamus.

Appeal by the defendants, Frederick Lohbauer and another,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on. the, 28th day of December, 1898, upon the decision of the court rendered; after a trial at the New York Special Term.

Appeal by the defendant, James Harvey Travis, from that portion of a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of -the county of Hew York on the oth day of February, 1895, upon the report of a referee, which adjudges that, the moneys in the hands of the plaintiffs to be distributed to the parties interested therein should be divided into 390 ■equal parts, and that it is unknown who is the person entitled to 30 of said parts,…

<p>Preponderance', of testimony -^-charge..that a certain inference shall be drawn if certain facts a/re, found — starting a car while a passenger is getting on is negligence.</p> <p>The fact that the number of witnesses testifying in support- of one view greatly exceeds those testifying in support of the contrary view, is not a controlling factor in determining the preponderance of evidence.</p> <p>It is only where the facts, if found in accordance" with the testimony offered by . one party, will justify .'but a single inference, that the court is warranted in directing the jury, as a,matter of law,, to .draw such inference, if. they find such, testimony to he true.</p> <p>iWh'ere a plaintiff seeking to recover damages for personal injuries against a street railroad company testifies that, after' stopping the car and while she was in the act of-getting on-'it and before she had reached a place of safety,-the conductor blew the whistle and in starting the car threw her off, it -is -not improper for the court to submit to the jury the question 'whether the act of the conductor was not a negligent one.</p> <p>Qucere, whether an, inference of negligence as a matter of law would not arise ■ from such facts if proved: 1 ’ 1</p> <p>Van Brunt, P. J.,' and McLaughlin, A dissented". ’</p>

<p>Appeal by the plaintiff, Mary L. Parsons, a taxpayer 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 29th day of June, 1900,. denying her motion to continue a,n injunction pendente Ute.</p>

Appeal by the relator, Stefano Marinello, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 8th day of September, 1900, denying the relator’s motion for a peremptory writ of mandamus directing and ordering that he be reinstated in the defendant society, and to compel said society to accept the dues tendered and permit the relator to share the sick benefit and other funds and benefits…

<p>.Right of a wife to the amount payable under a matured policy upon her husband’s life — it is exempt from the claims of the wife's creditors — when the exemption ceases.</p> <p>'The exemption in favor of a wife contained in chapter 80 of the Laws of 1840, relating to insurance upon the life of a husband for the benefit of his wife, that the “ sum or net amount of the insurance becoming due and payable by the terms of the insurance shall be payable to her, to and for her own use free from the claims of the representatives of her husband or of any of his creditors,” operates to prevent a creditor of the wife from reaching by attachment or judgment her interest in a policy of insurance issued by an ordinary life insurance company on the life of her husband after the policy has matured, and before payment to her by the company of the proceeds.</p> <p>Semble, that the exemption ceases when the proceeds of the policy have been actually paid to the wife, unless the policy was issued by a fraternal beneficiary society, the law providing for the organization of which'contains a provision exempting the beneficiary fund from execution or from being reached or taken by “any legal or equitable process.”</p>

<p>Appeal by the plaintiff, Frederick A. Baker, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 30th day of July, 1900, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.</p> <p>The action was brought by a stenographer employed by the city to recover for copies of transcripts of testimony- furnished by him to the district attorney for. which he claims to be entitled to compensation in addition to his regular salary. It was stipulated by the parties that the plaintiff was duly appointed' by the board of coroners as a skilled stenographer for the purpose of taking accurate and full stenographic minutes of all proceedings and testimony taken before a jury in the Coroners’ Court as .might be directed, by said board; that the plaintiff was and is still a stenographer to and duly appointed by the coroners pursuant to the statute in such case made and provided and engaged in the discharge of his duties as such and receives an annual salary of $2,500; that from the 1st day of January, 1898, to the 1st day of July, 1899, the plaintiff took minutes and made transcripts “ for the use of the District Attorney of the County of New York pursuant to the statute, directing the transcription thereof and at the request and direction of the Board of Coroners * * * amounting in the aggregate to 6,568 folios at the rate of six cents per folio which amounts to the sum of $394.08, no part of which sum has been paid,” though demanded and a claim therefor filed with the comptroller. Upon this stipulation, the complaint was dismissed.</p>

<p>Appeal by the plaintiff, Henderson Hill, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 12th day of March, 1900,. reversing á judgment in favor of the plaintiff and against the defendant John Moebus, rendered by the Municipal Court of the city of’ Hew York, borough of Manhattan, seventh district.</p> <p>The damages awarded by the Municipal Court amounted to $249.</p>

Appeal by the defendant, James Everard, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 2d day of February, 1900, denying the defendant’s motion to set aside a verdict of $4,000 in favor of the plaintiff, and for a new trial made upon the minutes. ■

Appeal by the defendant, Herman Eunkel, individually, from so much of 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 27th day of August, 1900, upon the decision of the court rendered after a.trial at the New York Special Term, as ■adjudges and decrees that the demurrer interposed by the said defendant to the first cause of action set forth in the amended complaint be overruled, and…

• Appeal by the relator, Marion McA. Christie, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of July, 1900, denying her motion for a peremptory writ of mandamus to reinstate her in her position as a teacher of cooking in the public schools of the city of New York, and also denying her motion that an alternative writ of mandamus be accorded her,

Appeal by the plaintiff, Sigmund R. Casper, from a judgment of the Supreme Court in favor of the defendant, entered in the office bf the cleric of- the county of New York on the 16th day of May, 1900, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendants, Grace L. McCabe, as administratrix, etc., of Lawrence McCabe, deceased, and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of July, 1900, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 2d day of July, 1900, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the plaintiffs, Snsan T. Homans and another,' as executors, etc., of Susan Wilson Tyng, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of December, 1900, amending a judgment entered in this action against the defendant.</p>

Appeal by the defendant, William, B. Riker, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of September, 1900, denying his motion to vacate and cancel a lis pendens filed in the action.

Appeal by the plaintiff, Frank Austin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of July, 1900, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint.

Appeal by the plaintiff, Edward F. Browning, 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 7th day -of December, 1900, denying the plaintiff’s motion for the appointment of a receiver of the mortgaged premises sought to be foreclosed in the action.

Appeal by the plaintiffs, William H. Douglas and another, 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 21st day of November, 1900, denying their motion to continue an injunction pendente lite.

<p>Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New.York on the 14th day of May, 1900, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 21st day of May, 1900, denying the défendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Edmund J. Lowry, from a judgment of the Supreme Court in favor of the defendants, entered in the offic.e of the clerk of the county of Mew York, on the 10th day of August, 1900, u]ion the decision of the court, rendered after a trial at the Mew York Special Term, dismissing the complaint upon the merits.</p>

Appeal by Mary L. Warrin, as administratrix of John W. Warrin,., deceased, and another, from a decree .of the Surrogate’s Court of-the county of New York, entered in said Surrogate’s Court on the,' 2d-day of May, 1900, confirming the report of a referee, and also-from an order entered in said Surrogate’s Court on the 4th. day of. May, 1900, judicially settling her accounts' as administratrix.

Appeal by the defendant, the New York and Queens County Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of June, 1900, upon the vérdict of a jury for $6,000, and also from an order, bearing date the 26th day of June, 1900, and entered in said clerk?s office, denying the defendant’s motion for a new trial made upon the minutes.

<p> Libel —a defendant may not testify to his belief without stating facts in support thereof—charge by the judge as. to the law. </p> <p>Under section 244 of the Penal Code providing that a libelous publication is excusedwhen it is honestly made in the belief of its truth and upon reasonable. grounds for this belief,” a person on trial upon a charge of having published a libelous article cannot testify to his belief in the truth of the article until he has stated facts and circumstances from which a legal inference canbe drawn that there was at least, some-ground for such belief.</p> <p>A judge presiding at the trial may and should instruct the jury as to the law, so. long as he does not arrogare to himself the power conferred on the jury by the Constitution to be the sole judges of both the law and the fact.</p>

<p> Abatement of an action for libel against a corporation ceasing to exist by statutory limitation. </p> <p>An action, commenced in March, 1899, to recover damages for the publication of an alleged libel in February, 1899, against a corporation organized in 1871,■■ under chapter 40 of the Laws of 1848, as amended by chapter 262 of the Laws • of 1857, abates upon the expiration of the life of the corporation by the limitation contained in its articles of incorporation, and cannot be revived against the trustees of the corporation in office at the time of such expiration.</p> <p>Section 19 of chapter 40 of the Laws of 1848, providing, “nor shall the dissolution of any such company take away or impair any remedy given against any such corporation, its stockholders or officers, or any liability which shall have heen previously incurred,” was not, so far as such an action is concerned, preserved hy the saving clause contained in the General Corporation Law (Laws of 1890, chap. 563, as amd. by Laws of 1892, chap. 687), which repealed the entire law of 1848.</p> <p>Chapter 611 of the Law-s of 1875 does not apply to such a corporation, nor does section 5 of the Business Corporations Law (Laws of 1892, chap. 691, amending Laws of 1890, chap. 567, § 6), which contains a provision similar to section 19 of chapter 40 of the Laws of 1848, where it appears that the corporation did not take any proceedings to come within the terms of these acts.</p> <p>O’Brien and Batch, JJ., dissented.</p>

Appeal by Kayeton Kautsky, as assignee of the estate of Theodore Agazzi, and Sylvester Peyser, under a general assignment for the benefit of creditors, and The Lawyers’ Surety Company of Yew York, surety on the bond of the said assignee, from a decree of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 27th day of June, 1900, confirming the report of a referee appointed to take and state the account…

Appeal by the defendants, Charles Siedler and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 29th day of May, 1900, upon the report of a referee. The action was brought upon an undertaking given to discharge mechanics’ liens.

Appeal by the petitioner, William W. Law, and others, from a decree of the Surrogate’s. Court of the county of Hew York, entered in said Surrogate’s Cdurt on the 18th day of June, 1900, dismissing an application for the probate of the last will- and testament and codicil thereto of John S. Law, deceased.

<p>Appeal by the relator, Ralph J. Treat, from am 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 5th day of June, 1900, denying the relator’s motion for a peremptory •writ of mandamus to compel the defendant to deliver a warrant on the chamberlain of the city of New York for the payment of the amount earned under a contract for the construction of sewers in East One Hundred and Eighty-second street, between Washington and Third avenues, in the city of New York.</p>

Appeal by the defendant, John P. Cleary, from an order of the Court of Special Sessions, of the first division of the- city of, Hew York, made on the 28th day of June, 1900, adjudging him. to-bb- the father of the complainant’s bastard child. ■ 1 '

<p>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 New York on the 16th day of August, 1900, upon the-verdict'of a- jury for $5,000, and also from an order entered in said. •clerk’s office on the 14th day of August, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover damages for personal injuries sustained by the plaintiff, a boy six years of age, through the alleged negligence of the defendant in the operation of a ferry boat plying between West Forty-second street in the city of New York and Weehawken, in the State of New Jersey, on which the. boy, his mother and a -sister, about three years old, were passengers. The -accident happened while the boat was entering the slip on the New Jersey side, and the testimony of the plaintiff’s witnesses tends to ¡show that by reason, of the negligent operation and management of the boat it struck with such violence against the north side of the rack of the slip that plaintiff was thrown to the deck flat upon his back; that the boat careened so. that the side upon which plaintiff was standing was lower -than the other side, and in some manner the plaintiff slipped through the open space in a part of the vessel known as a cleat, in such manner that when the boat after striking the north rack was thrown over towards and struck the south rack it caught the tip of the foot between the vessel and the slip, and so injured it that it had to be amputated between the ankle and the knee.</p> <p>It appears that there were no conditions of wind or tide at the time of the occurrence to occasion any unusual impact of the vessel with the sides of the slip. It was a fine clear day and the trip an ordinary one.</p> <p>The plaintiff’s mother testified that she reached .the ferry house on the New York side at about four o’clock in the afternoon and went immediately on the boat, passing through the ladies’ cabin to the front deck, where she stood beside the rail just in front of the hood, holding the boy and his sister by the hand; that as the boat entered the ferry slip they were all facing towards the ferry house, she still holding the children’s hands, the boy on her left, alongside the rail; that he at no time stood or sat upon the iron cleat fastened to the deck beside which they were standing; that the boat on entering the slip struck the north side of the slip a very hard- blow, harder" than she had ever experienced before, although she had crossed this ferry many-times; that she had difficulty in keeping her own balance and the blow threw the other passengers forward against the boy and he fell, breaking his hold of her hand, and as he fell ■or after he lay on his back before he could rise his foot went on the outside of the boat, and before it could be withdrawn the boat struck the south side of the slip and caught his foot between the boat and the slip ; that the boy’s right leg went through the hole ■or opening in the iron cleat out to the side of the boat; that the boat struck the north side of the slip with unusual and “ terrific ” force and rebounded and struck the south side; other witnesses testified that the force of these impacts was very much greater than they had ever observed before upon this line, where they were accustomed to cross.</p> <p>It is conceded that the plaintiff and his mother. had a right to stand upon the deck of the vessel where they did, and that the loss ■of the plaintiff’s right leg from a point about four inches below the knee joint was the result df the injuries sustained by the plaintiff upon the defendant’s ferry boat. The facts as testified to by the plaintiff’s, witnesses are • practically uncontradicted, except the .•alleged unusual and violent impact of the boat against the rack, and •the exact manner in which the injury was received, the attempt being made to controvert the testimony on the latter point by demonstrating that it was a physical impossibility that the leg should have passed through the cleat and the foot have extended far enough to •come in contact with the slip or rack outside the boat, the theory of the defendant being that the injury could not have been received in the manner alleged or according to the theory of the plaintiff, to which theory he must be held upon this appeal; and that defendant’s ■alleged negligence was not, therefore, the proximate cause of the '.accident.</p>

Appeal by Herman Williams and Huntington W. Jackson, executors, etc., of John Crerar, deceased, from an order, of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 29th day of May, 1900, denying their motion to dismiss proceedings begun by the comptroller to appraise the property of the decedent under the Inheritance Tax Law, and also from an order entered in said Surrogate’s Court on the 29th day of May, 1900, amending an order of…

Appeal by Fanny Turner Wharton, purchaser, from an order of the Supreme Ooúrt, made at the 'New York -Special Term and entered in the office of the clerk of the county of New York on the 16th day of November, 1900, directing her to complete her purchase of certain premises, pursuant to the terms of a written agreement made between herself and the plaintiffs.

Appeal by the plaintiff, The New York Bank Note Company, from so much of a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of July, 1900, upon the report of a referee as adjudges that the plaintiff is entitled to only six cents damages, without costs, as against either defendant, and that the defendant, The Hamilton Bank Note Engraving and Printing Company, have judgment against the…

<p>Oral negotiations and agreements, where both parties contemplated that they should be reduced to writing, held notfo constitute a completed contract of lease — expenditures by the tenant in reliance upon the oral understanding.</p> <p>The owner of an apartment house, through her agent, made an oral agreement with one Franke, who was the previous owner of the house, and was then in possession, by which the agent agreed to lease the house to Franke for a term of ten and one-Iialf months at a rental of §25,000 a year, payable on the fifteenth of every month, Franke to pay the taxes, Croton bills, running expenses and repairs, the taxes and Croton rates to be paid in advance by equal monthly payments equal to a pro rata of the preceding year’s taxes, and to have the rebate upon such payments on the ensuing October first, and also to pay the fire insurance and to keep the building in good repair. After the parties had settled upon these terms the agent said to Franke: "Now, this is agreed between us, and you can go ahead, and I will, in the meantime, have the lease drawn up.” Thereupon Franke made some repairs to the house, purchased certain supplies and proceeded to collect the rents, after doing which he received a letter from the agent which stated that the lease was ready for examination, and concluded: "In the meantime, I suppose you are collecting the rents and paying the help just the same as you did before you sold the property. It will be necessary, however, to keep a careful account so that we may know how much is to be charged to you and how much to me.” Subsequently, the parties met and the agent produced a written lease, the terms oí» which did not conform to the oral agreement previously made. Franke refused to sign the lease, and the agent then said: “ You need not go any further; this will end it,” and told Franke to send him his bill of expenses.,</p> <p>jReid, that, in view of the fact that this was a letting of considerable magnitude and that large interests were involved, and that the terms settled upon in the oral negotiations were the barest outline of an agreement upon so important a subject, and were such matters as would be discussed and agreed upon as preliminary to any practical negotiations, and as they left untouched. particulars which persons of the experience of these parties must have known would be certainly incorporated in any written lease, and as the evidence showed that Franke understood from the beginning that a written lease was to be made, there was no completed contract of lease;</p> <p>That the fact that Franke had made certain expenditures in reliance upon the oral agreement did not change the situation.</p>

Appeal by the plaintiff, Gilbert E. Mapes, from a judgment of the Supreme Court in- favor of the defendant, entered in the office of the clerk of the county of Orange on the 20th 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 Orange Trial Term.

<p>Oontract — by an attorney to pay for having a demand put in Ms hands foi' collection.</p> <p>A complaint which alleges that the plaintiff, a customs broker, made a contract with the defendant, an attorney at law, by which the "broker was to procure employment for the defendant in and- about the collection of excessive customs duties paid to, the government, to be prosecuted upon contingent fees of fifty per cent of the,amount recovered; such fees to be divided equally between the plaintiff and the defendant, and demanding judgment for one-half of a certain amount thus collected by the defendant, is demurrable on the ground that the contract is in violation of section 74 of the Code'of Civil Procedure, providing in substance that an attorney or -counselor .shall not, either before or after action brought, promise or give a valuable consideration to any person as an inducement to placing, or in consideration for having placed in his hand's, a demand of any kind for the purpose of bringing an action thereon.</p>

Appeal by the plaintiff, Martin Foley, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, first district, in favor of the defendant, entered in the office of the clerk of -said court on the 13th day of June, 1900, dismissing the complaint.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of June, 1900, upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived.

Appeal by the plaintiff, David N. Carvalho, from a judgment of the Supreme Court in favor of the: defendant, entered in the office of the clerk of the county of Queens on the 2Yth day of April, 1900, upon the decision of the court rendered after a trial at the Queens County Special Term dismissing the complaint.

Appeal by the plaintiff, Malaohi Farrell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 26th 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 Orange Trial Term, and also from an order entered in said clerk’s office on the 12th day of April, 1900, denying the plaintiff’s motion for a new trial made upon the…

Appeal by the defendant, the American Steel and Copper Plate Company, 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 Kings on the 4th day of September, 1900, denying the defendant’s motion for a bill of particulars.

<p>Appeal by the defendant, the Lidger wood Manufacturing 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 26th day of April, 1900, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 26th day of April, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal.by the defetidant, the Malcom Brewing 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 14th day of April, 1900, upon the verdict of a jury rendered by direction of the court.

<p>Bond given by a, husband for the suppoi't of his wife— when not void.</p> <p>A bond, reciting that a wife has “ just cause for living separate and apart from her husband,” and has not "any means of support or maintenance for herself and children,” which is conditioned that the husband shall pay or cause to be paid to her a certain sum per week “for the support, education and maintenance of herself and children, for and during the term of the natural lifetime ” of the wife, is not void or contrary to public policy as being a contract between a husband and wife to live apart, or without consideration, or in violation of section 21 of chapter 272 of the Laws of 1896, as being an executory “ contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife,” it appearing that the wife with just cause had not lived with her husband as his wife for some time prior to the execution of the bond.</p>

Appeal by the defendant, Frank F. Keeney, from á final order of the Municipal Court of the city of New York, borough of The Bronx, first district, made on the 11th day of June, 1900, awarding to the plaintiff possession of the premises described in the petition in the proceeding which was instituted to obtain possession of certain real estate in a summary manner from the defendant.

Appeal by. the defendant, Walter S. Chapman, from a judgment of the Municipal Court of the city of New York, borough of Brooks lyn, second district, in favor of the plaintiff, rendered on the 19th day of October, 1900.

<p>Appeal by Wilbur Hynard, one of the inhabitants and protectors of the rights and interests of school district No. 6, town of Somers, Westchester county, from an order of the county-judge of Westchester county, entered in the office- of the clerk of the county of Westchester on the 18th day of November, 1899, upon the ground that the county judge of the county of Westchester and the said County Court had no jurisdiction in the above-entitled matter.</p> <p>The proceeding was instituted under chapter 556 of the Laws of 1894, and the order appealed from allowed the claim of Theodore Purdy against school district No. 6, town of Somers, Westchester county, New York.</p>

<p>Negligence — collision between a bicycle rider and am, electric lamp.</p> <p>Proof that the rider of a bicycle came into collision on a public street with an electric lamp of a light and power company, which had been, or was being, lowered for the purpose of cleaning it and supplying new carbons, unaccompanied by other evidence showing a want of due care on the part of the company, creates no presumption of negligence on its part.</p>

Appeal by the defendants, John W. Block and another, 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 Kings on the 3d day of November, 1900, granting the plaintiffs’ motion for a verified bill of particulars of the details and particulars in which the defendants claim plaintiffs have failed to perform the conditions of a contract.

<p>Appeal by the plaintiff, Alfred Carlson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 3d day of November, 1899, 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, and also from an order entered in said clerk’s office on the 23d day of October, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Sebastian Wahlj an infant over fourteen years of age, by George Wahl, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 25th day of April, 1899, upon the dismissal of the complaint at the close of the plaintiff’s case, by direction of the. court, after a trial before the court and a jury at the Kings County Trial Term.</p>

<p>Action by a husband for the loss of his wife’s services—evidence competent therein — his recovery is not affected by his wife’s recovery for pain, etc.— acts and exclamations of the wife when examined by a physician.</p> <p>A husband, suing to recover damages for the loss of the services of his wife, occasioned by injuries sustained through the alleged negligence of the defendant, is entitled to place before the jury the ages of the parties, their conditions for the enjoyment of life before the happening of the accident, and the condition of the wife after she has suffered from the injury.</p> <p>The right of the husband to recover is not affected by the fact that the wife may have previously recovered damages for the pain and ' suffering she has undergone. *</p> <p>Where a woman forty-eight years of age, the wife of a man forty-seven years of age, is injured so that she is not likely to contribute anything of importance to his aid, comfort or society, a verdict for §7,250 is not excessive.</p> <p>A physician who made an examination of the wife, for the purpose of enabling him to testify on the trial, may describe the tests applied by him and the results which followed in the way of manifestations of pain, or the absence of sensation, in so far as his statements are confined to the acts and exclamations o£ the patient, and do not embrace statements made by the patient to the physician.</p>

Appeal by the plaintiffs, Peter Moller, Jr., and others, and by the defendant, John Daniell, Jr., from an 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 21st day of November, 1900, granting a motion to set aside a sale in foreclosure and directing a resale. '

Appeal by the defendants, Albert Meislahn and another, as executors, etc., of Albert Meislahn, deceased, from judgments of the Supreme Court in favor of the plaintiffs in each of the above-entitled actions, entered in the office of the clerk of the county of Kings on the 5th day of May, 1900, upon the decision of the court rendered after a trial at the Kings County Special Term. The three actions were tried at the same term.

Appeal by the' defendant, the Nassau Electric 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 2d day of February, 1900, upon the verdict of a jury for $4,000, and also from an order entered in said, clerk’s office on the 8th day of February, 1900, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the’ plaintiff, Frank & J. G. Jenkins, Jr., 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 20th day of September, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term.</p> <p>The action is brought to compel the delivery to the plaintiff corporation of coupon bonds of The John Good Cordage and Machine Company, and to foreclose the mortgage given to secure such bonds.</p>

Appeal by the plaintiff, Henry H. Lyman, as State Commissioner of Excise, from a judgment of the Supreme Court in favor of the defendant, the Fidelity and Deposit Company of Maryland, entered in the office of the clerk of the county of Rensselaer on the 31st' 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 Rensselaer Trial Term.

Appeal by George F. Yietor and others, composing the firm of Frederick Yietor & Achelis, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the count}' of Albany on the 27th day of April, 1900, staying the prosecution of an action brought by George F. Yietor and others, composing the firm of Frederick Yietor & Achelis, against J. Sheldon Frost, the receiver of the Egbert Woolen Mills Company, until the final…

Appeal by the defendant, Le Roy Riclterson, as comptroller of the city of Troy, 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 Rensselaer on the 23d day of July, 1900, directing that a peremptory writ of mandamus issue requiring the said Le Roy Rickerson, as comptroller of the city of Troy, to countersign a draft payable to the order of the relator for his salary during the month of March, 1900,…

<p>Principal and agent — when the Statute of Limitations begins to run because of the agent’s failure to pay a tax on his pi'incipal’s real property—where the action is on contract section 388 of the Code of Givil Procedure does not apply.</p> <p>An agent in the charge of real property omitted within the time allowed by law to either pay the tax which had been.assessed against the property of his principal or to notify the principal that the same was payable. Such omission caused no immediate injury to the principal beyond such as would have been adequately compensated by the awarding of nominal damages, but subsequently the principal was obliged to commence an action to redeem and recover her premises from the purchaser at the sale for such tax, in the prosecution of which she incurred a large expense.</p> <p>Held, that the cause of action, if any, in favor of the principal, growing out of such omission, accrued at the time of the omission.</p> <p>In such case, where the plaintiff’s action is founded upon a breach of contract and not upon fraud, the provision of subdivision 5 of section 388 of the Code of Civil Procedure, declaring that in certain cases a cause of action is not deemed to have accrued until a discovery by the plaintiff of the facts constituting the same, has no application.</p>

Appeal by the defendant, George Wing, from an order of the Supreme Court, made at the Erie Trial Term and entered in the office of the clerk of the county of Erie on the 13th day of December, 1899, denying the defendant’s motion to set aside a verdict in favor of the plaintiffs and for a new trial made upon the minutes.

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 Onondaga on the 12th day of March, 1900, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 19th day of March, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Charles A. Hanes, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ontario on the 9th day of February, 1900, upon the dismissal of the complaint by direction of the court at the close of the evidence after a trial before the court and a jury at the Ontario Trial Term, and also from an order entered in said, clerk’s office on the 14th day of February, 1900, denying the plaintiff’s…