Volume 56 — New York Supplement

<p>Appeal from special term, New York county.</p> <p>Action by Max Gabriel and another against the Sicilian Asphalt Paving Company. From a judgment dismissing the complaint (52 N. Y. Supp. 722), plaintiffs, appeal.</p>

<p>1. Infringement of Trade-Name—Preliminary Injunction—Grounds.</p> <p>A sale by defendant of stock in trade pending an action to enjoin the infringement of a trade-name will not impair the effect of a judgment in plaintiff’s favor; and hence he is not entitled to a preliminary injunction against the sale, under Code Civ. Proc. § 604, subd. 1, providing for a preliminary injunction where defendant is about to do an act tending to render the judgment ineffectual.</p> <p>& Preliminary Injunction—Issuance.</p> <p>A preliminary injunction, which, in effect, determines the litigation, and gives the relief which it is expected to obtain by the judgment, should be granted with great caution, and only when necessity requires.</p>

<p>Action by Albert B. Vorhis against Gabriel Elias and others. Judgment for defendants.</p>

Action by Anna E. Munson against the Genesee Iron & Brass Works and others, to set aside and declare void certain mortgages and contracts by the Genesee Iron & Brass Works, a corporation, to the other defendants,. covering all its real and personal property, as fraudulent and void, upon the grounds—First, that the same were executed by the corporation with intent to hinder, delay, and defraud its creditors; and, second, that the same were given by the corporation in…

Action by Samuel Langer against Morris Berger.. From a judgment directing defendant to pay an amount on an account stated, and dismissing the complaint as to equitable relief, plaintiff appeals.

<p>Action by Louis O. Regener, as receiver of the Equitable Mutual Fire Insurance Corporation of Yew York, against one Hubbard, on a capital stock note executed by him. Judgment for plaintiff.</p>

<p>1. Husband and Wife—Monet Paid—Evidence—Dismissal. '</p> <p>Plaintiff, in an action to recover money paid by her to her husband, testified that she paid the money at his instance, to be put into his bank, as it was not convenient for her to deposit it. In a former action she had claimed to have given him the money in consideration of a promise to care for her son by a former marriage, which promise he had failed to fulfill. Held, that her two versions of the transaction were not so inconsistent as to require a dismissal of the complaint.</p> <p>2. Same—Vabiance.</p> <p>Such former claim was.not incompatible with allegations that the payment was for plaintiff’s benefit, and was to be returned to her at any time, as she wished.</p>

Action by Thomas Crowe against the House of the Good Shepherd. From a judgment dismissing the complaint at the close of plaintiff’s case, and from an order denying a new trial, plaintiff appeals.

<p>.'Attachment—Removal with Intent to Defraud.</p> <p>Attachment, on the ground of removal from the state with intent to defraud, is not warranted on a mere showing that defendant is indebted to plaintiff, that he is removing to a place in another state, and has packed all his goods in boxes, addressed to himself at such place.</p>

<p>Injuries to Employe—Negligence op Master—Evidence.</p> <p>Complainant alleged the death of her intestate from an explosion of naphtha while he was in defendant’s employment making varnish, caused by the defective apparatus and structure of defendant negligently employed in the process. Intestate was a skillful workman in the manufacture of varnish. He had been in the employ of the defendant only a week, but the premises were designed by him, and he was engaged long prior thereto in the manufacture of varnish therein for another company, and was fully acquainted with the uses of naphtha. There was no proof of defective construction chargeable to defendant, nor any insecurity in the condition of the premises or of the appliances which it was defendant’s duty to point out to intestate. Held, that a nonsuit was properly granted.</p>

<p>1 Action by Louis C. Regener, receiver, etc., against Charles M. Warner-. ' Judgment for plaintiff.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Anna Mueller against the Tenth & Twenty-Third Street Ferry Company for personal injuries. From an order denying defendant’s motion for a further bill of particulars, defendant appeals.</p>

<p>Application by the people, on the application of Frederick Howard, for writ of peremptory mandamus to compel the board of supervisors of Erie county to place relator’s name on the roll of members, allow him to vote, and recognize him as a member of the board from the Twenty-Fourth ward of the city of Buffalo, N. Y.</p>

In the matter of the assignment of A. J. Farmer & Co. for the benefit of creditors an order was made requiring the Manhattan Importing & Exporting Company to submit to an examination of its books of account and officers, and from an order denying a motion to modify such order the Manhattan Importing & Exporting Company appeals.

<p>Appeal from trial term.</p> <p>Foreclosure of mechanic’s lien by Alexander E. Brace and Eugene Pierce against the city of Grloversville and others. There was a judgment for defendants William and Charles Holden, and plaintiffs appeal.</p>

Certiorari, on the relation of John Schulz and others, to review the determination of the board of contract and apportionment of the city of Albany in awarding a contract for the construction of a sewer.

<p>1. Foreign Corporation—Actions by Nonresidents.</p> <p>. Under Code Civ. Proc. § 1780, providing that an action may be maintained against a foreign corporation by a nonresident “in one of the following cases only,” an action by a nonresident against a foreign corporation on a contract made and to be performed in another state is not maintainable, it not being one of the cases enumerated.</p> <p>2. Pleading—Objection by Answer.</p> <p>Under Code Civ. Proc. § 499, excepting an objection to the jurisdiction of the court from those objections declared waived, if not taken by demurrer or answer, a claim that defendant waived an objection to the jurisdiction of the court over the subject-matter, by not raising it in his answer, is unavailing.</p> <p>3. Jurisdiction—Consent.</p> <p>Jurisdiction over the subject-matter cannot be conferred by consent.</p> <p>4. Same—Dismissal—Costs.</p> <p>Where the’ complaint was dismissed at the trial for want of jurisdiction, costs follow as of course, the objection not appearing on its face.</p>

Action by Hyman Sonn and another against Herman Heilberg. There was a judgment for defendant, and plaintiffs appeal. Transferred from First to Second department.

<p>Action by one Ruellan against one Stillwell. On order to show cause why the complaint should not be amended.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Sidney W. Rice against Charles A. Coutant, impleaded with James Wright. There was a judgment for plaintiff, and defendant Coutant appeals. Transferred from First to Second department.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Aimee R. Lecour, as administratrix of the estate of Eugene H. Lecour, deceased, against the Importers’ & Traders’ National Bank and Abram Kling. There was a judgment for plaintiff, and defendants appeal.</p>

<p>Injury to Tenant—Dangerous Premises.</p> <p>On the roof of a tenement house was a flooring of slats with poles for drying clothes, such place being the only one provided by the landlord for that purpose. For weeks some of the slats had been rotten, and others broken, such condition being known to the landlord. Plaintiff, a tenant, while drying clothes, was injured by a slat breaking, the slat not being previously broken. Held, that plaintiff’s knowledge of the condition of the flooring did not, as matter of law, make the continued use of-the roof contributory negligence.</p>

Complaint by the people, on the relation of Edward F. Brush, for a writ of mandamus to compel the New York Suburban Water Company to furnish relator with pure water, and on reasonable terms. From a judgment overruling a demurrer to the alternative writ, defendant appeals.'

<p>L Justice op the Peace—Practice—Losing Jurisdiction.</p> <p>Under Code Civ. Proc. § 2934, providing that “at the place, and within one hour after the time specified in the summons for the return thereof, pleading of the parties must be made and issue must be joined; when both parties appear upon the return of the summons, an issue must' be joined before an adjournment is had, except when the defendant refuses or neglects to plead”; and section 2959, providing that “at time of the return of the summons, or the joinder of issue, but at no other time, the justice may in his discretion * * * adjourn the trial,”—the justice does not lose jurisdiction, where the case is called at 11 a. m., plaintiff alone appearing, and is held open till 1 p. m. of that day, when plaintiff alone appeared, and filed complaint, and court is then held open till 6 p. m. of the same day, when plaintiff alone appears, and is sworn as a witness, and thereafter, on the same day, judgment is rendered.</p> <p>3. Same—Appeal—Presumption.</p> <p>It will be presumed, on appeal from justice of the peace, the contrary not appearing, that he held the case open the proper length of time.</p>

<p>Appeal from special term.</p> <p>Action by Annie H. Westervelt against Elizabeth T. Morrelle. From an order striking out an answer as defendant appeals.</p>

<p>Appeal from trial term.</p> <p>Action by Chañe Hurwitz against the Hamburg-American Packet Company for loss of baggage alleged to have been delivered for carriage from Hamburg to New York. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from special term.</p> <p>Action by F. Delsalse and others against Martin Cassidy. Judgment for plaintiffs in the matter of proceedings supplementary to execution. Defendant appeals.</p>

<p>Appeal from trial term.</p> <p>Action by Frank J. Dupignac, as committee, against August Quick, on a lost note. Judgment for plaintiff. Defendant appeals.</p>

<p>1. Guaranty—Construction.</p> <p>A brewing company, at the request of one of its customers, executed a guaranty of the lease of his store in its, corporate name, but in the body the guarantor was described as another person. Held, that it was the guaranty of the corporation.</p> <p>2. Corporations—Guaranty op Lease—Validity.</p> <p>A brewing company has power to guaranty the performance of the covenants of a lease of a store building to one of its customers.</p> <p>8. Same—Powers op Vice President.</p> <p>A contract which the corporation has authority to make may be executed by its vice president in the absence of the president.</p> <p>4. Guaranty—Notice to Guarantor—Evidence.</p> <p>Where a guaranty required notice of the principal’s default to be given to the guarantor within a stated time, and such notice was duly mailed; but its receipt was denied, the question of its sufficiency is for the jury, since the mailing of the notice raises a presumption that it was received.</p>

Action by the National Life Association of Hartford, Conn., against Francis A. Thompson. From a judgment entered on a verdict in favor of plaintiff, directed by the court, and from an order denying a new trial, defendant appeals.

<p>Appeal from special term.</p> <p>Action by Morris L. Ernst and another against the Rutherford & Boiling Springs Gas Company, otherwise called the New York, Rutherford & Suburban Gas Company, and others. From an interlocutory judgment sustaining demurrers to the complaint, plaintiffs appeal. Reversed as to the gas company.</p>

• Action by J. M. Fair against E. C. Mevey. Heard on motion to dismiss the complaint because it showed on its face that limitations had run against plaintiff’s cause of action, and that the promise was on condition to pay when able, and the complaint failed to show defendant’s ability to pay.

Application by the people, on the relation of Charles Earwicker, against Michael J. Dillon and others, constituting the town board of the town of New Bochelle, for a peremptory writ of mandamus. From a final order refusing the same, relator appeals.

Action by Hannah Quinn, as administratrix of William Quinn, deceased, against Pasquale Pietro. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Action by Harry Isenman against William A. Miles & Co. Prom a judgment entered on a verdict for plaintiff, and from an order denying a new trial, defendants appeal. Transferred from First to Second department.

<p>1. Landlord and Tenant—Covenant to Repair—Recovert for Damage to Goods—Notice. .</p> <p>A landlord’s breach of his covenant to repair the roof of the demised premises does not authorize the tenant to recover for injury inflicted on his goods by the weather, he knowing for months of the roof’s leaky condition.</p> <p>2. Same—Evidence.</p> <p>A tenant was not, in an action for rent, entitled to deduct for expenses of repairs, where the proof did not show how much of a sum expended for repairs of two buildings was spent on the building in suit.</p> <p>8. Amendments—Discretion of Court.</p> <p>Denial of a motion for leave to amend, after motion for verdict, is within "the court’s discretion, and not ground for reversal.</p> <p>4. Judgment—Res Judicata.</p> <p>Where, in an action for rent, defendant counterclaimed for damages to his goods from a leaky roof, and that only was litigated, he could after-wards assert claims for lessened rental value and expenses incurred from the same cause.</p>

<p>Appeal from special term.</p> <p>Action by Henry A. Siebrecht and another against the SiegelCooper Company. From an interlocutory judgment sustaining a demurrer to a counterclaim, defendant appeals.</p>

Action by John Brennan against Charles C. Richardson. Fi j a judgment entered on a verdict for defendant, and from an order denying a new trial, plaintiff appeals.

<p>3. Towns—Contract to Light Highways—Consideration.</p> <p>Under Laws 1892, c. 255, as amended by Laws 1896, c. 309, authorizing a town to contract for the lighting of its highways and public places on petition of not less than 25 taxable inhabitants, the town has no authority to let a contract for lighting on a petition by the requisite number of taxable inhabitants, from which a sufficient number of signers withdrew their names so as to leave less than 25 before the execution of the contract or the passage of a resolution by the town board awarding it.</p> <p>2. Same—Assignment of Contract—Validity.</p> <p>Under Laws 1897, c. 444, requiring municipal contracts to contain a provision prohibiting their assignment without the written consent of the municipality, and authorizing it to revoke a contract assigned without its written consent, and relieving it from all liability to the assignee thereunder, no recovery can be had on a contract with a town for lighting its highways which the contractor assigned to another.</p> <p>3. - Same—Privity between Assignor and Assignee.</p> <p>An assignment of such contract to a corporation avoids the contract, though the assignor was the president and general manager of the corporation, and testified that he was “practically the company,” since the corporation is a different entity.</p> <p>4. 'Same—Estoppel.</p> <p>A town is relieved from liability on a contract which was so assigned, even though it did ñot annul it until after receiving the benefits thereof, since all persons dealing with a town are chargeable with notice of the extent of its powers.</p> <p>5. Same—Street-Lighting Contracts—Validity.</p> <p>Laws 1892, c. 255, as amended by Laws 1896, c. 309, authorizing a town to establish lighting districts outside the limits of incorporated villages within its boundaries, and to contract for lighting the same, a contract for lighting a district made up partly of the territory of an incorporated village is void.</p>

<p>1. Husband’s Tbust Deed—Agreement to Separate—Subsequent Cohabitation.</p> <p>A husband conveyed property in trust for the benefit of his wife for life, to be reconveyed to himself on her death if he survived, otherwise to his heirs, the trustee covenanting against the grantor’s further liability for her support, and the instrument reciting that the grantor and she had mutually agreed to live apart. Held, that subsequent cohabitation did not avoid the deed as to the heirs.</p> <p>% Deed—Validity—Adverse Possession.</p> <p>A deed to the heirs in accordance with the trust was not void because, when executed, the wife’s lessee was in possession under a lease for a terms of years, as such possession could not be adverse to the heirs.</p>

Action by Lewelon E. Linderman and another, as trustee under the will of Herman O. Le Boy, deceased, against John W. Axford, impleaded with the Hastings Card & Paper Company. From a-judgment dismissing the complaint, plaintiffs appeal. Transferred from First to Second department. The following are the opinions of the court below (WALTEB LLOYD SMITH, J.): “This case presents many novel legal problems, which are not of easy solution.

Action by William Augustus Spencer and others, trustees under the will of Lorillard Spencer, deceased, against Sarah Griswold Spencer and another.. A judgment was entered on the report of a referee, and defendants appeal.

Action by Bridget Patterson, as administratrix of the estate of Mary Flannery, deceased, against Albert Hochster. There was a judgment for defendant, and plaintiff appeals. Transferred from First to Second- department.

Action by Robert Spitzer against Albert Spitzer, impleaded with others. From an interlocutory judgment in favor of the defendant Albert' Spitzer, plaintiff appeals. Transferred from First to Second department.

Action by Margaret O’Kourke against ^Hannah Hall, impleaded with others. From a judgment declaring certain deeds null and void, and adjudging plaintiff to be the owner in fee of one undivided one-third of the premises, defendant Hall appeals.

<p>1. Malicious Prosecution—Instigation—Question por Jury.</p> <p>Where, in an action for malicious prosecution, the criminal proceeding was instituted by an officer, but there is evidence that it was instigated by defendant, the jury must determine whether or not defendant was really the prosecutor, since, if he was, it is immaterial that the formal complaint was made by another.</p> <p>2. Same—Appeal.</p> <p>Whether or not defendant, in an action for malicious prosecution, is not liable because all the statements contained in the complaint instituting the criminal proceeding were true, cannot be determined where the case on appeal does not contain the criminal information or any statement of its contents.</p> <p>3. Same—Probable Cause.</p> <p>Although the evidence, in an action for malicious prosecution, is uncontroverted, if the facts are capable of supporting different inferences, the question of probable cause is for the jury.</p> <p>4. Same—Extra Allowance—Excessiveness.</p> <p>The imposition of costs and an extra allowance of $1,000 is too severe a penalty to inflict on a domestic servant in favor of her employer, on the dimissal of her complaint in an action for malicious prosecution.</p>

<p>Appeal from special term.</p> <p>Action by Sarah G. H. Scripture against Fanny Morris, impleaded with William H. Good. From an order directing William H. Good to complete his purchase at a foreclosure sale, he appeals.</p>

Action by Frederick Sturz against Frederick S. Fischer. The complaint was dismissed, and plaintiff’s exceptions were ordered to be heard in the first instance in the appellate division. Transferred from First to Second department. For a previous appeal, see 45 N. Y. Supp. 1009.

<p>Appeal from judgment on report of referee.</p> <p>Action by John D. Hicks and others against Jesse T. Magoun and others. From a judgment entered on a report of a referee in an action to foreclose a mechanic’s lien, defendant Magoun appeals.</p>

<p>Action by John McLaughlin and others against Leopold Bieber and others. Judgment for defendant Leopold Bieber.</p>

<p>Appeal from order of surrogate, New York county.</p> <p>In the matter of the taxation of property transferred by Jabez A. Bostwick, since deceased. From an order of the surrogate confirming the report of -an appraiser assessing a tax, Fanny E. Carstairs and others appeal.</p>

<p>1. Administrator’s Bond—Equitable Action against Surety.</p> <p>A judgment against an administrator as such is insufficient as a basis of an equitable action to charge the surety on his bond with liability, where no disobedience of any mandate issued by the surrogate, or the impossibility of invoking the statutory remedies applicable to surrogates’ courts, is shown.</p> <p>2. Same—Surrogates—Substituted Service of Process.</p> <p>The jurisdiction of the surrogate to compel the administrator to account, on a due proceeding, is not lost by the administrator’s absconding from the state, or his concealment with intent to avoid the service of the citation, since Code Civ. Proc. § 2521, authorizes the surrogate to order a substituted service of process as if he were a judge of a court of record.</p>

<p>Street Railroads—Bicyclists—Collisions—Contributory Negligence.</p> <p>An expert bicyclist, familiar with the streets and the dangerous situation into which he was riding, was following a downtown car, and when it stopped he turned out and passed it, crossing to the opposite •track, and was struck by an uptown car, which, when he turned out, was only 25 feet away. Held, that freedom from contributory negligence was not shown.</p>

Resell H. Meagley died January 20, 1890, leaving a last will and testament, in which he devised and bequeathed all his estate to his widow, Julia <L. Meagley, who was therein named as executrix. The will was duly proved, and letters testamentary issued to said Julia L. Meagley, February 3, 1890.

Suit by the Coney Island & Gravesend Railway Company against the Coney Island & Brooklyn Railroad Company and the Brooklyn City & Newtown Railroad Company. There was a decree for defendants, and plaintiff appeals.

Action by Violet Rosalie Anderson, an infant, by William B. Anderson, her guardian ad litem, and others, against George H. Daley and others. There was a judgment for plaintiffs, and defendant J ones appeals.

Action by Robert B. Hull and others, executors of Joseph Wild, against Charles Pearson and others. From a judgment dismissing a counterclaim, the New York Baptist Union for Ministerial Education appeals.

In the matter of the estate of Robert H. Arkenburgh, deceased, Robert H. Arkenburgh and another, legatees, appeal from a decree settling the account of Eliza J. Arkenburgh and another, executors, and from an order denying their motion to vacate or modify the decree.

Action by Eobert E. Jenkins (as assignee) and another, suing on their own behalf and on behalf of all other creditors of Joseph Kuntz, similarly situated, who may contribute to the costs and expenses of the action, against Moritz Hammerschlag and others, to set aside a sale of shares of stock, and to require defendants to account for the administration of the trust in favor of plaintiffs. From a judgment for plaintiffs, defendants appeal.

Action by the Bank of the Metropolis against Eberhard Faber. From a judgment dismissing the complaint after a trial without a jury, plaintiff appeals.

Separate actions by Pauline W. Squire, and by Artlissa V. Gearon, against Ella Y. Greene and Maria S. Dunlrin, impleaded with others, to foreclose mortgages. The mortgages were foreclosed, but the net proceeds of the sale, namely, $2,881.32, were insufficient to satisfy all incumbrances; and, from judgments fixing the priorities, the respective plaintiffs appeal.

<p>Appeal from trial term, Kings county.</p> <p>Action by Henry K. Gordon, as administrator de bonis non of Cuthbert C. Gordon, against Joshua M. Van Cott and others, executors of Joshua M. Van Cott. Judgment for plaintiff, and defendants appeal.</p>

<p>Change op Venue—Convenience op Witnesses.</p> <p>Where the cause of action has arisen in another county, and the convenience of witnesses will be promoted by a change of venue to that county, defendant,is entitled to a removal thereto, regardless of the inconvenience resulting to plaintiff therefrom.</p>

<p>Action on Note—Evidence of Title.</p> <p>Where, in an action on a note, plaintiff presents it, indorsed by the maker and by a third person to plaintiff, or order, the indorsements make the plaintiff the legal holder, and entitled to enforce it.</p>

<p>1. Specific Performance—Mortgages—Redemption—Contracts.</p> <p>A decree foreclosing a second mortgage held by a corporation having been rendered, it was agreed between K., the vice president of the corporation (apparently individually), and F., a person procured by the mortgagor, that K. should purchase at the foreclosure sale, and hold the premises till a certain date, on or before which F. might redeem by paying to K. “whatever sum of money he may have paid on or for said property,” with interest; '“it- being understood that IC. [was] to be paid sufficient so that no loss whatever [should] inure to him * * * by reason of such purchase; this to include all charges he may have paid for legal services, rendered or to be rendered, interest on first mortgage, costs of [an] action [then] pending to foreclose the same, and any charge for extension of said mortgage.” F. then gave IC. a note, whose proceeds were to be credited on the amount due, in case of redemption. If F. should not redeem, it was to be held as liquidated damages. A more formal contract embodying the agreement was to be afterwards executed. The property was bid in by K., subject to the first mortgage, for an amount less than that due on the second mortgage. F. sought to compel a conveyance on payment of the amount of the bid, together with expenses, without paying the balance due on the second mortgage. Held, that a conveyance on such terms would not be enforced, as it would violate the real object of the parties, and produce a result not contemplated when the agreement was made.</p> <p>2. Cancellation op Instruments—Promissory Notes.</p> <p>Where specific performance of a contract involving a past-due note of plaintiff was denied, and plaintiff was left to his remedy at law, the court would not require defendant to deliver up the note or cancel it, in the absence of allegations that he had sought to enforce it, or that there was not an ample defense at law.</p>

<p>1. Municipalities—Lighting Contracts—Petition—Notice of Filing.</p> <p>A notice by the town board that a petition for lighting had been received is a substantial compliance with Laws 1896, c. 309, §§ 2, 3, requiring notice that the petition had been filed with the town clerk.</p> <p>2. Same. .</p> <p>A 10-year lighting contract made by a village about to he merged in the city of New York, from which it could derive no benefit prior to the consolidation, was invalid, as depriving the consolidated city of the power conferred on it by the legislature, in Greater New York Charter, § 587, to contract for and regulate street lighting.</p>

<p>Appeal from surrogate’s court, Chenango county.</p> <p>Petition by Jerome S. Warner, as administrator of Stebbins Warner, deceased, against Marcia S. Bartle, as administratrix of David W. Bartle, deceased, for a decree directing defendant to pay a judgment against her decedent in favor of plaintiff’s decedent. From a decree dismissing the petition without prejudice (50 N. Y. Supp. 940), plaintiff appeals.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by Charles J. Cohen against the Berlin & Jones Envelope Company, impleaded with others, for damages for breach of a contract. From a judgment for plaintiff, and from an order denying a new trial, the company appeals. Transferred from First to Second department.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by Christian Baechtold and Steven Parker, composing the firm of Baechtold & Parker Electric Company, against Augustus Clason. From a judgment in favor of plaintiffs, and from an order denying a new trial, defendant appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Frederick L. De Grauw against George F. Schmid. From an order granting a temporary injunction, defendant appeals.</p>

<p>1. Contract—Publication of Books—Rights of Third Persons.</p> <p>An agreement between the owner of the copyright of a book and certain plates for printing it, and one to whom it sells a set of the plates and the right to publish the book from such set, that the book shall not be sold at less than a certain price, is binding on one who thereafter buys the copyright and other plates.</p> <p>2. Same—Contract.</p> <p>A contract between the owner of the copyright of a book and plates for printing it, and one to whom it sells a set of the plates and right to publish the book from such set, that “plainly-bound copies” should not be sold below a certain price, means that the cheapest edition shall not be sold below such price, and prevents better books being sold for less.</p> <p>8. Same—Restraint of Trade.</p> <p>Agreement that a certain copyrighted book shall not be sold below a certain price is not within the principle of contracts in restraint of trade.</p>

Action by Martin Zimmerman, an infant, by his guardian ad litem, against Frederick L. Stahl. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a new trial, defendant appeals. The ordinance referred to in the opinion reads as follows: “Sec. 671.

<p>1. Witnesses—Impeachment—Proof of Indictment.</p> <p>A witness cannot be impeached by compelling him to answer that he is the defendant named in an indictment which counsel declares he holds in his hands.</p> <p>8. Same—Failure to Offer Indictment.</p> <p>Error in compelling a witness to state whether he is the defendant named in a certain indictment is prejudicial, though the indictment was not read in evidence.</p> <p>3. Same.</p> <p>The error is prejudicial, even though the witness, after admitting that he is the person named in the indictment, says that he did not state that he was ever indicted.</p>

<p>Remarks op Counsel.</p> <p>There is reversible error where counsel for plaintiff, in his argument in a libel suit, said, “To show how juries give verdicts in libel suits, I have here a volume of court of appeals cases, * * * and in the action * * <= the jury rendered a verdict for $10,000;” and, on the court stating it was improper, he proceeded, “And the court of appeals affirmed this judgment;” and, on exception by defendant, he said, “I withdraw my remark about $10,000 verdict, and ask you not to consider it,”—though the court charged the jury that this matter had nothing to do with the case, and they were to give it no significance.</p>

<p>1. Municipalities—Improvements—Assessments—City Engineer’s Salary.</p> <p>Under Laws 1896, c. 747, § 151, providing that all special-assessment improvements shall be by contract let to the lowest bidder; and paid for-from the funds raised therefor, the expenses of such improvements may he made to include the cost of the city engineer’s and his assistants’ services in overseeing the work, notwithstanding their salaries are prorvided for by the city charter.</p> <p>2. Same—Objections—Appeal.</p> <p>A person whose objection to a special assessment was fully heard cannot complain that the council confirmed the assessment before the-expiration of the time allowed for objections.</p>

<p>Appeal from Bungs county court.</p> <p>Action by the city of Brooklyn against the Nassau Electric^ Railroad Company. From a judgment of the county court affirming a judgment of the justice’s court of the city of Brooklyn for plaintiff, defendant appeals.</p>

<p>1. Leases—Subletting—Holding Over.</p> <p>Where neither of the parties to a lease treats a subletting as changing their status, a holding over the term by the subtenant continues their relation of landlord and tenant on the original terms.</p> <p>2. Pleading—Evidence.</p> <p>Defendant, under the general denial, in an action to recover a certain sum of money for certain items, is entitled to show payment of certain of the items.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Clara J. Brown and others against Henry B. Mount and! others. A motion to compel John Potts to complete his purchase off' land was denied, and plaintiffs and part of the defendants appeaL.</p>

<p>1. Pleading—Frivolous Answers.</p> <p>An answer is not frivolous, within Code Civ. Proe. § 537, if it traverse any material allegation of the complaint.</p> <p>2. Same—Sham Answers.</p> <p>An answer is sham, within Code Civ. Proe. § 538, only when it is clearly false.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by the New York Life Insurance & Trust Company, as substituted trustee under the will of James Baker, deceased, against William J. Baker and others. From an adverse judgment, plaintiff ■appeals.</p>

<p>Appeal from trial term.</p> <p>Action by James P. Summers against Frederick L. Colver. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.</p>

<p>1. Security for Costs—Nonresident Plaintiff—Laches.</p> <p>Defendant is not guilty of laches in applying for an order requiring a nonresident plaintiff to give security for costs, where she moves therefor as soon as she learns of plaintiff’s nonresidence.</p> <p>2. Same—Notice.</p> <p>Defendant is not charged with notice that plaintiff was a nonresident by the fact that the complaint was verified by plaintiff’s agent, and stated that the reason why it was not verified by plaintiff was because he was not then within the state.</p>

<p>Appeal from Dutchess county court.</p> <p>Action by Frances E. Burhans and another against Carrie Cf. Monier. From a judgment of a county court affirming a judgment of a justice of the peace in favor of plaintiffs, defendant appeals.</p>

Action by Charles Deutermann and others, executors, against Alexander Pollock and another. From an order of October 14, 1898, denying plaintiffs’ motion to resettle a former order resettling the case on appeal, plaintiffs appeal.

<p>Appeal from special term, Orange county.</p> <p>Action by Stephen St. John against Wade Buckley and others. From an order vacating an order of the special county judge of Orange county for examination of defendant Whittaker, plaintiff appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by William E. D. Stokes against Edward S. Stokes. From an order vacating an- order granting a new trial, defendant appeals.</p>

.Certiorari by the people, on the relation of Ida A. Everitt, against Charles B. Hubbell, president of board of education, and others, to review the dismissal of relator as a teacher of the public schools of New York.

Action by Alleine Lee against William H. Jacob and another. From a judgment on an order adjudging defendants’ answer frivolous, and ordering judgment for plaintiff for the relief demanded in the complaint, defendants appeal. Transferred from First to Second department.

<p>Appeal from trial term, New York county.</p> <p>Action by Martha Wigton against the Metropolitan Street-Railway Company. Judgment for plaintiff, and she appeals from a refusal to allow the jury to consider whether it should give exemplary damages.</p>

<p>Appeal from special term, New York county.</p> <p>Proceeding by the people, on the relation of Denis J. Mahoney, against Charles F. MacLean and others, as police commissioners of the city of New York. From an order granting relator’s motion to compel defendants to withdraw their exceptions to sureties on an undertaking, defendants appeal.</p>

<p>1. Pleading—Amended Complaint—Acceptance.</p> <p>A defendant cannot return an amended complaint for not conforming to the order giving leave to serve it, after he has retained it three days after receiving the costs awarded by the order.</p> <p>2. Same—Striking Improper Allegations.</p> <p>The proper practice was thereafter to move to strike out such portions as failed to conform to the order.</p>

Action by Emily A. Bliss and others against Byram L. Winters and others to set aside a will, a deed, and a bill of sale, for fraud. From an order directing plaintiffs to separately state and number causes of action, they appeal.

<p>Appeal from trial term, New York county.</p> <p>Action by Laura Le Couteux De Caumont against Antonio Ra-zines. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Sale and Delivery—Evidence—Sufficiency.</p> <p>Plaintiff, on order of defendant, shipped to him seven boxes of earth paint, directed to him at his home, via a carrier, which delivered them to a teamster to whom defendant had directed it to deliver his freight. Plaintiff mailed a statement of the account therefor to defendant, with a return notice on the envelope, but it was not returned. Defendant sat silent in court while these facts were proved. Held, that there was evidence to sustain a finding of a sale and delivery.</p> <p>The plaintiff is a business corporation incorporated under the laws of the state of Ohio, and doing business there, but having an office in the city of New York. It commenced an action in the justice’s court of Saratoga county against the defendant upon a complaint for goods sold and delivered to the amount of $31.30. The defendant interposed a verified answer. The case came on for trial before the justice, and at the close of plaintiff’s evidence (none being offered in behalf of the defendant) the justice rendered judgment for the plaintiff. The defendant appealed therefrom to the county court of Saratoga county. That court reversed the judgment of the justice, and from that judgment of the county court the plaintiff has appealed to this 'court.</p>

Action by Jacob Van Name against William H. Van Name and Peter Van Name, administrator of Peter Van Name, deceased, for a partnership accounting. From a judgment in favor of plaintiff and defendant Peter Van Name, administrator, and from an order denying motion of defendant William H. Van Name to set aside the referee's report, and vacate, set aside, or modify the judgment, said William H. Van Name appeals.

Action by. Catharine Vogedes against Adam W. Beakes, sheriff of Orange county, for conversion. From a judgment on a verdict for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Attorney and Client—Summary Proceedings.</p> <p>T., plaintiff in action against L., had agreed to pay E., her attorney, for his services, 30 per cent, of any recovery. E. had entered into an agreement with three other attorneys, including B., that they should divide the fees of matters which they should litigate, E. to appear as attorney of record. On collecting the judgment, E. retained the costs, and divided them between the four attorneys. On motion of plaintiff to compel B. to pay over the costs, he was directed to turn over a certain sum. Held, that B., who had a judgment against E., and refused to contribute his share to E., though offering to credit it on the judgment, could not, by motion of E. in the action of T., be compelled to turn over such share, the relation between B. and E. being merely that of debtor and creditor, in no wise connected with the affairs of a client.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by the Third National Bank of the-City of New York against the Travelers’ Insurance Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.</p>

<p>1. .Mechanics’ Liens—Material Man—Change of Relation.</p> <p>By foreclosure of mortgages given as collateral to a debt for building, material, the mortgagee did not cease to be a. material man. . .</p> <p>2. Same—Grantee’s Contract to Pay—Personal Liability.</p> <p>On accepting from a failing debtor a deed to certain premises, a creditor agreed to complete buildings in course of erection thereon, and to pay all claims for material and labor furnished and received therefor out of the proceeds of a sale thereof, and, after paying bis own claim, to divide any surplus with the grantor. Held, that the grantee was not personally liable to a material man until he had sold the property, or had failed to do so through lack of reasonable diligence.</p>

Action by Louis Lowenstein and others, as executors, etc., of Isaias Meyer, deceased, against Herman Schiffer and Alfred Schiffer. From a judgment for plaintiffs, and from an order granting an extra allowance, defendants appeal.

Mandamus by the people, on the relation of the city of Hew York, against Timothy L. Woodruff, as lieutenant governor, and others, commissioners of the land office, and others. There was an order denying the writ, and relator appeals.

<p>1. Appeal and Error—Reversal—Decision op Appellate Court—Res Judicata—Law op the Case.</p> <p>A decision of an appellate court reversing a judgment for failure to give an instruction warranted by the uncontradicted evidence is not binding on the trial court on the second trial, where further evidence is introduced changing the aspect of the case, and making such issue a question for the jury.</p> <p>2. Evidence—Admissions.</p> <p>A written statement by the makers of a note that it was issued by them, and was good commercial paper, and “is good business paper for value received,” is admissible in an action on the note to contradict the payee’s statement that he gave nothing therefor, and that the note had its inception when it was passed from him to the indorsee.</p> <p>3. Costs—Extra Allowance.</p> <p>An extra allowance of costs was improperly granted on plaintiff’s stipulation that he would waive the same if defendants did not appeal.</p>

Action by Alden S. Swan against Grovener Goff to recover damages for taking ice from a lake. Judgment for defendant, and plaintiff appeals.

<p>Trusts—Testamentary Disposition.</p> <p>Deposit, of a fund in bank payable to the depositor, or, in case of his death without withdrawing it, to another, does not create a trust in favor of the other, the title to the fund not being transferred to the beneficiary, nor retained by the depositor as trustee.</p>

<p>Mechanics’ Liens—Enforcement—Parties.</p> <p>A complaint in an action to foreclose a mechanic’s lien executed by a husband alleged that the husband, to fraudulently hinder the collection of his claim, conveyed the premises, and his grantee conveyed them to grantor’s wife, and prayed a personal judgment against all parties. Held, that the grantee was not a necessary party, since he devested himself of title by his conveyance, and no personal claim was made against him.</p>

<p>Verdict—Correction by the Court.</p> <p>The intention of the jury being clear in their answer “not proven to the issue defendant’s adultery, under the authority given it by Code Civ. Proc. § 723, to make the verdict conform to such intention, may change the answer to “No.”</p>

Action by Margaret Cummings against the village of New Rochelle for injury received from a defective cross walk. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Ejectment by James A. Deering against William J. Reilly and others. The complaint was dismissed, and plaintiff moves for a new trial.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by Harry B. Hollins and others against Samuel T. Hubbard, Jr., and others. From judgment on a verdict directed for defendants, plaintiffs appeal.</p>

Action by the Consolidated Fruit-Jar Company against Henry C. Wisner. From an interlocutory judgment, entered on a decision of the referee, directing defendant to account to plaintiff, defendant appealed. Transferred from First to Second department. The opinion of the referee is as follows: This action is brought for an accounting by defendant for his acts while and as president of the plaintiff. It was commenced June 14, 1897.

<p>1. Constitutional Law—Boards of Health—Powers.</p> <p>The legislature may confer power on boards of health to enact sanitary ordinances having the force of law within the localities for which they act.</p> <p>2. Same—Nuisance—Abatement.</p> <p>A regulation of a city board of health prohibiting the maintenance of a privy vault within 25 feet of any door or window of any residence is reasdnable.</p> <p>3. Same.</p> <p>The constitutional provision for the protection of property does not prohibit the destruction of property when necessary to abate a nuisance summarily.</p> <p>The plaintiff is the owner of a lot in the city of Cohoes upon which is erected a four-story double brick building. The plaintiff has erected at a distance of about 12 feet from said brick building a brick privy or closet, some 27 or 28 feet in length, subdivided into eight compartments, which since its erection has been maintained for, and constantly used by, the tenants of such building. Such privy is within 12 feet of the doors and windows of such four-story brick building, and within 25 feet of the doors and windows of other buildings used for residences and business purposes. These vaults or closets have three openings into a sewer. No water passes through them, except in times of rain, when the water from the roof of the main building in front passed through. Fecal and other matter accumulates in them, and it has been the custom of the plaintiff to clean them out about three times a year. By chapter 661 of the Laws of 1893, the legislature has conferred upon local boards of health the power to make orders and regulations for the preservation of life and health, and the execution and enforcement of the public health law. Pursuant to such law the board of health of the city of Cohoes on the 7th day of August, 1895, adopted a regulation or ordinance providing in part as follows: “No owner, lessee, occupant or agent of any building or premises shall maintain within the city any privy, privy vault or cesspool made or built in. the earth within twenty-five feet of any door or window of any residence upon such premises, or any residence upon the adjoining premises, and such maintenance of any privy, privy vault or cesspool is hereby declared to be a nuisance and condition detrimental to life and health. And any or all privies, privy vaults and cesspools existing within the city shall be removed or filled up by the owner, lessee, occupant, agent or other person having charge or control of the premises on which they exist, whenever the same becomes a nuisance and condition detrimental to life and health, by rendering the soil, air or water impure, injurious, unwholesome, or they constitute a condition of any kind detrimental to life and health.” This regulation was numbered regulation or rule 26, and was duly published in the newspapers published and circulated within the city of Co-hoes. Upon the 26th day of October, 1895, notice was served upon the plaintiff, by the health officer of the board of health, requiring her to abate and remove such nuisance within five days after such notice. After receiving this notice the plaintiff caused such vaults to be cleaned out, by removing all fecal matter therefrom, but continued to use them as theretofore. Thereafter, on the 6th day of November, the board of health passed a resolution whereby it ordered that the plaintiff be cited to personally attend a meeting of the board of health on the 14th day of November, at a time and place specified therein, to show cause why proceedings should not be taken to declare the privy a nuisance and condition dangerous to health, and also in violation of the order and regulation No. 26, hereinbefore referred to, and to abate the same. A copy of this resolution was served upon the plaintiff on the Sth day of November. The plaintiff did not appear before the board of health on the 14th day of November. The board, after an examination of witnesses in relation thereto, adopted a resolution declaring said privy to be a nuisance and detrimental to life and health, and also in violation of the order and regulation known as rule or regulation No. 26 of the board of health, and directed the health officer to notify the owner of said privy or closet of the adoption of such resolution, and requiring her to abate such nuisance and to comply with the requirements of rule 26 within five days; and, in the event of the owner failing to abate such nuisance and to comply. with the requirements of said order and regulation No. 26, the health officer was directed “to enter upon the premises and perform such work as may be necessary to abate and suppress said nuisance, and render it of no nuisance or condition detrimental to life and health, or not in violation of said order or regulation.” Such resolution or order was served upon the plaintiff on the 15th day of November, 1895. The plaintiff neglected and refused to comply with the order of the board of health, and on the 25th day of November the health officer of the board of health entered upon the premises of the plaintiff, opened the doors of said privy, took up the floors, threw chloride of lime into the vaults, and filled them up with earth. The plaintiff thereupon commenced this action demanding -judgment that-the defendants, their agents and servants, be forever restrained from “removing^ tearing down, or interfering in any way with said brick water-closet building or buildings, and closing and filling up such vault or vaults, or otherwise wasting or injuring the same, and from in any way or manner entering in and upon said land and premises to interfere with said brick water-closet, or vault or vaults.” The plaintiff obtained a temporary injunction restraining the defendants as prayed for in the complaint, and thereafter removed the earth from said vaults or closets, and proceeded to use and allow them to be used as theretofore. The action was referred to a referee, who made his report, wherein, among other things, he directed judgment against the plaintiff, dismissing her complaint and vacating the injunction; and from the judgment so directed this appeal is taken.</p>

<p>Appeal from special term, New York county.</p> <p>' Action by the Gould Paper Company against Peter Frank and others. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Appeal from special term.</p> <p>Action by Israel P. Grant, as surviving partner, etc., against Ezra P. Griffith. From a judgment for defendant, plaintiff appeals.</p>

Action by Martha A. Biglow against Harriet Biglow and Louisa Wooster, impleaded with others, for partition. An interlocutory judgment of sale was ordered, from which said two defendants appeal, with notice of intention to bring up for review on such appeal the order referring the case.

Action by Charles Tygart against Warren E. Wilson and another f»or dissolution of co-partnership and for an accounting. From a judgment entered on the report of a referee, defendants appeal. Reversed, referee discharged, and new trial granted.

Injunction by the people of the state of Hew York against Edward H. Page.

<p>Appeal from trial term.</p> <p>Action by John Fritz against Winfield Tompkins. From a judgment for plaintiff, defendant appeals.</p>

Action by William L. Brown against William Georgi and another. From an order of discovery granted against defendants, and from an order striking their answers for refusal to comply therewith, defendants appeal.

<p>Settlement of the account of the executors of Morris Franklin, deceased.</p>

Action by Louis Miller against George Marshall. There was a judgment for plaintiff for less than the relief demanded, and he appeals. .

Action by John W. B. Quail and another, as executors of the will of James T. Quail, deceased, against Jesse S. Nelson. From an order denying a motion to vacate an order of arrest, defendant appeals.

<p>Appeal from special term, Kings county.</p> <p>Action by Thomas J. Blanch, as trustee under the will of John W. Blanch, deceased, against Jesse S. Nelson. From an ordering denying a motion to vacate an order of arrest, defendant appeals.</p>

Action by the people of the state of New York against the Adirondack Railway Company and others.

<p>Appeal from special term, Kings county.</p> <p>Action by Robert A. Cruilcshank against William H. Walsh and another. There was a judgment for defendants, and plaintiff appeals.</p>

Action by James McCormick against the Catholic Belief & Beneficiary Association. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from trial term, Westchester county,</p> <p>Action by Francis T. Holder against the city of Yonkers. From a judgment for defendant (55 N. Y. Supp. 254), plaintiff' appeals.</p>

<p>Appeal from trial term.</p> <p>Action by Alexander Finelite, receiver of Julia Dorian, against ■Julia Dorian and others. From a judgment in favor of plaintiff, defendants appeal.</p>

Proceedings in the matter of the judicial settlement of the account of John H. Rhoades and others, trustees under the will of Benjamin F. Wheelwright, for the benefit of Benjamin F. Wheelwright, 2d. From the judgment (54 N. Y. Supp. 301), Elizabeth G. Wheelwright, in her own behalf ¿nd as trustee, and certain other heirs, appeal.

Action by John Schreyer against Thorndike Saunders, impleaded with others. Judgment for plaintiff, and defendant Saunders appeals. Affirmed without opinion. 56 N. Y. Supp. 1116. Heard on motion for reargument.

In the matter of the application of Elizabeth S. O’Brien, executrix of Edward J. Dwyer, deceased, for the disposition of the real property of the decedent for the payment of his debts and funeral expenses. From a decree adjudging that said executrix has a valid lien against the estate of the decedent, and directing sale of the estate for the payment thereof, one of the heirs appeals.

Action by Cora L. Hosford, administratrix of the estate of Fred Hosford, deceased, against the New York Central & Hudson River Railroad Company, to recover damages sustained by the death of her intestate, alleged to have been caused by defendant’s negligence. From a judgment for defendant, and an order denying a motion for a new trial, plaintiff appeals.

Application by Harriet A. Greer for the appointment of commissioners to assess damages for changing the grade of a street by the village of North Pelham. From a judgment in favor of petitioner, the village appeals.

Action, by James Barnes against William H. Masterson. From a judgment entered on a verdict for plaintiff, and from an order denying a new trial, defendant appeals.

Foreclosure suit by Morris Fosdick against Catharine C. Lyons and others. From an order, directing the distribution of the surplus money on a foreclosure sale, defendant L. Napoleon Levy appeals.

Mandamus by the people, on the relation of Adolph Schumann, against Bird S. Coler, as comptroller of the city of Hew York, and another. There was an order granting a peremptory writ, and respondents appeal.

Proceeding by William Bayard Cutting against Eleanor Margarette Hamilton and others to be discharged as trustee under the will of Charles Kennedy Hamilton, deceased. From an order denying defendants’ motion to vacate an order appointing a guardian ad litem nominated by petitioner, defendants appeal.

<p>Trustees—Discharge—Inpants—Guardian Ad Litem—Erroneous Appointment.</p> <p>Where, in a proceeding hy a trustee of an infant’s estate to be discharged and for an accounting, the court erroneously appointed a person nominated by such trustee guardian ad litem for the infant, in violation of Gen. Frac. Buie 49, an order discharging the trustee, and appointing a referee to take and state his accounts, was invalid.</p>

Certiorari on the relation of Joseph E. Brady to review the action of Frank Moss and others, commissioners, in dismissing relator from the police force of New York City. Relator reinstated.

<p>Appeal from special term, Monroe county.</p> <p>Action by Anna Hodecker against Frederick Hodecker. Plaintiff appeals from a judgment entered on the 2d day of July, 1898, dismissing the plaintiff's complaint on the merits, without costs to either party; and also from an order entered on the 3d day of June, 1898, which, among other things, directed that a motion for a new trial, made by the plaintiff on the ground that a decision had not been duly made and filed by the justice who tried said case within 20 days after the adjournment of the term at which such action was tried, be heard on the 11th day of June, 1898; and also from an order granted on the said 11th day of June, 1898, at a special term, and entered on the 30th day of June, 1898, which denied the plaintiff’s motion and application for a new trial, which motion was made upon the ground that a decision of the trial justice had not been made and filed within 20 days after the adjournment sine die of the court at which said action was tried.</p>

Action by William B. Wright, Jr., as receiver of the property of Theodore H. and George C. Meyers, against William F. Bond, impleaded with Theodore EL and George C. Meyers. From a judgment in favor of plaintiff, entered on the report of a referee, defendants appeal.

<p>Appeal from Erie county court.</p> <p>Partition by Sarah O’Toole against Mary Ann O’Toole and others. From an order compelling Mary Ann O’Toole to complete her purchase of the premises at a referee’s sale, she appeals.</p>

<p>1. False Imprisonment—Perjury—Justification for Issuance of Warrant.</p> <p>Or. Code, § 150, requires a justice to issue a warrant of arrest where depositions taken by him satisfactorily show that the crime complained of has been committed, and that there is reasonable ground to believe the defendant guilty of it. Pen. Code, § 96, declares that one who willfully and knowingly states any matter to be true which he knows to be false, on an occasion where an oath is taken and is required by law, is guilty of perjury. A deposition did not state that the false testimony was “willfully and knowingly” given, but did state that plaintiff had sworn in one court, a month after a trial in another court, that he had not sworn to the contrary as to a certain fact, in the latter court, and that deponent was present at both examinations, and knows that plaintiff gave the contradictory testimony. Held sufficient to warrant the justice in assuming that the testimony was “willfully and knowingly” given, so as to authorize the court to issue the warrant, which protects the person instigating it from an action for false imprisonment.</p> <p>2. Same.</p> <p>The word “willful,” as used in Pen. Code, § 96, in defining perjury, means merely that the perjured testimony must have been given with some degree of deliberation.</p> <p>8. Sufficiency of Warrant.</p> <p>A warrant of arrest, where in the form prescribed by the Code of Criminal Procedure, and containing a statement of the crime, as required by sections 151 and 152, need not state the particulars of the crime.</p> <p>Barrett and Patterson, JJ., dissenting.</p>

<p>1. Municipal Corporations — Dredging Rivers—Special Assessments — Notice.</p> <p>A notice published by the city of Buffalo of an intention to dredge a channel in a river, the center of which is stated to be the center of the river, sufficiently complies with its charter (section 407), requiring publication of notice of an intended improvement, though the city intended to construct the channel according to specifications not referred to in the publication, which do not fix the center of the channel in the center of the river at every point, in order to avoid sharp angles and curves; the river varying greatly in width, and having sharp indentures of the shore line.</p> <p>2. Same—Objections.</p> <p>An abutter on a river cannot assail an assessment on his property on the ground that the published notice of improvement did not exactly conform to the specifications, without showing that he was injured thereby.</p> <p>3. Same.</p> <p>A landowner filing objections to a special assessment roll is not prejudiced by the city clerk’s failure to state in his certificate to the comptroller that objections had been filed to the roll, where it had been confirmed by the council in default of any appearance to support the objections.</p> <p>4. Same—Presumptions.</p> <p>The approval of a mayor of a city of a confirmation of a special assessment roll by the council, essential to its validity, will he presumed, in the absence of evidence to the contrary.</p> <p>5. Same—Benefits—Evidence.</p> <p>To increase his docking facilities, plaintiff dredged a river 90 feet from the shore of his land, having a frontage of 1,840 feet, so as to give a depth of 17 or 18 feet of water for the first 600 feet of frontage, and 15 feet for the remainder. Subsequently the city commenced 30 feet from the bank line, and dredged a channel 140 feet wide so as to give a depth of 19 feet. Land on one side of plaintiff’s had a depth of 238 to 245 feet, and was assessed at $12 per front foot, and land on the other side was irregularly shaped, had a depth of 31% feet, and was assessed at $2.76 per front foot, the first 1,390 feet of plaintiff’s land, having a depth of 183 to 207 feet, was assessed at $11.86 per front foot, and the remainder, having a depth of from 31% to 134 feet, was assessed at $11.02. On the opposite side the river was not dredged for a distance of 30 feet from the shore line, and the expense of doing so would be much greater than that of dredging the water adjacent to plaintiff’s land, and that land was assessed at $8 per front foot. Held, that the assessment on plaintiff’s land was not illegal, as being in excess of the benefits, or on an erroneous basis.</p> <p>6. Same—Prior Improvements by Abutter.</p> <p>Assessors making special assessments for dredging a river cannot reduce the assessment of a particular abutter for his having done a portion of the work contemplated, provided the assessment only represents the benefits to Mm of the improvement as a whole, and is made in the same proportion as the assessment on other property.</p> <p>7. Same—Widening Channel—Improvements by Abutter.</p> <p>The fact that an abutter on a river had dredged a channel that was sufficient for the purposes for which he was using his property does not preclude a city from assuming that the property would be benefited by a widening of the channel and from making special assessment thferefor.</p> <p>The action was commenced on the 2d day of December, 1895, to set aside and annul a local assessment levied by the defendant upon the property of the plaintiff, for dredging a section of the Buffalo river adjacent to its property, in the city of Buffalo, N. Y. The plaintiff alleges two grounds of complaint against the defendant, upon which it bases its right to recover in this action: First, that the proceedings taken and instituted by the defendant in authorizing and contracting for the completion of the improvement in question, and in levying a portion of the cost thereof upon the property of the plaintiff, were not in compliance with the requirements of the charter of the defendant, but were irregular, illegal, and void; second, that the amount assessed upon plaintiff’s property was excessive, was in excess of the benefits, was inequitable, and was not made upon a fair, legal, or proper basis, and therefore does not constitute a valid assessment upon the plaintiff’s property.</p>

<p>1. Surrogates’ Courts—Jurisdiction—Disputed Claims—Payment.</p> <p>A surrogate’s court has no jurisdiction to compel payment of disputed claims against a decedent’s estate.</p> <p>3. Executors—Accounting—Petition by Creditor.</p> <p>• Though Code Civ. Proc. § 2727, authorizes the surrogate’s court to require executors to account, at the instance of a creditor, in the absence of good cause shown to the contrary, yet where the claim is disputed, and the executors allege facts which, if true, tend to show that petitioner is not a creditor, the petition should not be granted.</p> <p>8. Same—Claims—Establishment.</p> <p>Mere presentation of a claim against an estate to executors, and silence on their part, do not render a claim an established one, so as to give the surrogate’s court jurisdiction to decree its payment on a settlement of the executors’ accounts.</p> <p>4. Same—Invalid Order.</p> <p>Where a surrogate erroneously ordered an accounting by executors at the instance of a creditor whose claim was disputed, such order is not validated by Code Civ. Proc. § 2726, authorizing the surrogate to require an executor to account at any time, in his discretion,—especially where the estate is large, and not ready for distribution, and the granting of the order would he an abuse of discretion.</p>

<p>1. Fraudulent Conveyances—Bona Fide for Jury-..</p> <p>Where evidence offered by a purchaser of property from a fraudulent vendor, to show himself a bona fide purchaser for value, is contradictory, in many respects improbable, and in conflict with that of other wit-, nesses, the question of bona tides on all the evidence is for the jury.</p> <p>8. Same—Evidence.</p> <p>K., being insolvent, purchased a large amount of goods on credit, intending not to pay for them, which he packed in his livery stable, but did not use or display for sale. K. and defendant were relatives and on intimate terms. Defendant recommended him for credit, though he was insolvent, and loaned him $5,000, without security, at 12 months. Three months later IC., in consideration of a further advancement of $6,000 to pay “confidential debts,” executed a demand note .and mortgage to defendant on all the property, the cost price of part of which was $25,850, and immediately absconded. Defendant foreclosed the mortgage at once, buying the property in bulk through one of his clerks for $3,150, and directed the clerk “to have enough people on hand to remove the property at once, as there was danger that third parties would seize it.” Held, in an action by one of K.’s creditors to recover property so fraudulently purchased by him, that the evidence would have warranted a finding that defendant was not a bona fide purchaser, and that the question should have been left to the jury.</p> <p>8. Same—Notice—Inadequacy op Price.</p> <p>Gross inadequacy of price at which one in possession of goods offers to sell them is of itself evidence to the purchaser of an infirmity in the vendor’s title.</p>

Action by Norman 0. Raff and another against Koster, Bial & Co. From a judgment for plaintiffs, entered upon an order of the court directing the clerk to enter judgment, defendant appeals.

<p>Appeal from special term.</p> <p>Action by John W. Queen and another, as receivers of the Weaver Cycle-Material Company, against Joseph A. Weaver. From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from judgment on report of referee.</p> <p>Actions by Augusta O. Genet against the president, managers, and company of the Delaware & Hudson Canal Company. From judgments for plaintiff in both actions, both parties appeal.</p>

<p>Appeal from trial term, Oswego county.</p> <p>Action by Michael Fitzgerald against the Supreme Council of the Catholic Mutual Benefit Association. There was a judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from municipal court, borough of Manhattan, Second district.</p> <p>Action by Antonio Gagliostro against Rosina Caprorale. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>On rehearing. • Affirmed;</p> <p>For prior report, see 54 X. Y. -Supp. 262.</p>

Action by Catherine F. Wetmore, as executrix of E. Carman Combes, deceased, against Indiana V. Stromeyer, impleaded with others. From a judgment entered on the report of a referee, both parties appeal.

Action .by Christopher Bolte against the Third Avenue Railroad Company. From a judgment for plaintiff and from an order denying a new trial, defendant appeals.

<p>Removal of Trustee—Malfeasance—Compensation.</p> <p>Where the trustee of a relief fund, without authority of the board to which he was responsible, invests the money in part in a mortgage taken in his own name, and falsely alleges an investment of the balance of the fund in a mortgage proven to be a fabrication, in which the mortgagors were fictitious parties, and repudiates the authority of the board over the fund, and violates his duty as trustee in relation thereto, it is proper to remove him, and appoint a successor, requiring the removed trustee to account for the moneys received, with interest, and be credited with any reasonable charges in originally obtaining possession of the money, and with any payments made by him by the authority of the board, but with no allowance for commissions as trustee, or counsel fees or disbursements incurred in resisting the claim of the board to such funds.</p>

Action by Thomas Barry against the mayor, aldermen, and commonalty of the city of New York. From a judgment for a less amount than that demanded, and from an order denying a new trial, plaintiff appeals.

<p>Action by Orville M. Barkley against the New York Central & Hudson River Railroad Company.</p>

<p>Action by John Bartnik, an infant, by Francis Gottsberger, his guardian ad litem, against the Erie Railroad Company.</p>

<p>Action by the Babcock Printing-Press Company against George E. Ranous.</p>

<p>In the matter of William Bridge.</p>

<p>Action by Prudence Carr against Jerome B. Maltby and another. A judgment was rendered from which all parties appeal. Modified.</p>

<p>Action by William G. Dean against Charles P. Allen, impleaded, etc.</p>

<p>Action by Marshall S. Driggs against Robert J. Dean and another. Judgment for plaintiff, and defendants appeal. Affirmed. L. E. Warren, for appellants. John Berry, for respondent.</p>

<p>Actions by the Empire State Insurance Company of New York, The Continental Insurance Company of New York, the London Insurance Company, the Lancashire Insurance Company, the Phoenix Insurance Company, and the Springfield Fire & Marine Insurance Company against the Central Vermont Railroad Company, the Ogdensburg & Lake Champlain Railroad Company, and the Ogdensburg Terminal Company.</p>

<p>Action by Howard S. Jones against John F. Menke and others. W. J. Lippman, for appellants. S. D. Levy, for respondent.</p>

<p>Action by Sarah Curran Kelley against M. J. Hoey and Charles Reese, individually, and as executors and trustees of, and under, the will of John McGrath.</p>

Action between Lewis Kochman and Isaac W. Chase and John L. Chase. Judgment for defendants, and plaintiff appeals. Reversed. Sullivan & Burke (H. V. Burke, of counsel), for appellant. L. A. Serviss (L. F. Fish, of counsel), for respondents.

<p>Action by Jerome B. Maltby against Prudence Carr and others. A judgment was rendered from which plaintiff and defendant Carr appeal. Modified.</p>

<p>Action by Clara E. Nolan against Catherine F. L. Nolan and others.</p>

Proceeding by the people of the state of New York, on the relation of the New York ClearingHouse -Building Company against Edward T. Barker and others. D. Willcox, for appellant. J. M. Ward, for respondents.

<p>In the matter of the judicial settlement, etc., of Harriet Rutledge as executrix, etc., of Walter Heard, deceased.</p>

<p>Action by Herman Schiffer and an•other against Edward Lauterbach and others. From a judgment dismissing the complaint on re.port of a referee, and an order granting an extra allowance, plaintiffs appeal. Reversed. Samuel Untermeyer, for appellants. John E. Par■sons, for respondents.</p>

Action by Rudolph Sommer against Alfred Adler and others. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Reversed. Hoadly, Lauterbach & Johnson, for appellants. Abraham A. Joseph, for respondent.

<p>Application of Elizabeth Suydam to remand an action against the Metropolitan Street-Railway Company and John Scullan to the Manhattan municipal court, Third district. From an order remanding the cause, one of the defendants appeals. Reversed, with leave to renew the motion on a more complete record. Henry A. Robinson, for appellant. M. A. Lesser,, for respondent.</p>

<p>Action by Magdalena Spangehl against Louis W. Spangehl.</p>

<p>Action by Mary F. Warner against Wilhelmina Billings, impleaded, etc.</p>

<p>In the matter of the' Twelfth Ward Park. W. M. Ivins, for appellant. H. A. Forster, for respondent.</p>

<p>Action by Mordecai M. Willson, Jr., against Mary S. Eveline.</p>