Volume 57 — New York Appellate Division Reports

Appeal by James T. Walker, an alleged incompetent person and an inmate of the Willard State Hospital at Willard,.Hew York, from an order of the Supreme Court, made at the Wayne Special Term and entered in the office of the clerk of the county of Wayne on the 21st day of July, 1900, appointing a committee of the person and property of the appellant, and directing the committee to pay the Willard State Hospital for his support and maintenance.

Appeal by the petitioner, Howland P. Wells, from an order of the County Court of Ontario county, entered in the office of the clerk of the county of Ontario on the 11th day of May, 1900, denying his motion to confirm an inquisition and dismissing the petition.

Appeal by the defendant, Orville A. Dean, 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 24th day of February, 1900, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, David 0: Benham and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 4th day of Hay, 1900, upon- the report of a referee. -

Appeal by the plaintiff, Anna Barbara Mais, as administratrix, etc., of Joseph Henry Mais, also known as Henry Mais, deceased, 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 2d day of June, 1900, denying a motion for an order vacating and setting aside the verdict of a jury in favor of the plaintiff for the sum of twenty-five dollars rendered on the 12th day of January, 1900.

Appeal by the defendant, Isaac R. Miller, 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 11th day of Juné, 1900, upon the verdict of a jury rendered by direction of the court.

<p>Conspiracy to destroy a transportation business — allegations as to acts of the defendants, done befoi'e plaintiff ’ s incorporation a/rvd in fraud of the United States, are irrelevant.</p> <p>Where an action is brought by a corporation charging the defendants, one of whom was the assistant quartermaster-general of the United States army and depot quartermaster at the city of New York, having charge of the forwarding of supplies for the United States army to Cuba and the Philippine Islands, with having conspired to destroy the plaintiff’s business of transporting freight between the United States and the Philippine Islands, allegations contained in the complaint of acts done before the incorporation of theplaintiff and of fraud committed "by the defendants upon the United States government are irrelevant and should be stricken out.</p>

Appeal by the petitioners, Charles L. Mitchell and others, 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 9th day of October, 1900, denying their motion for a substitution of attorneys in the proceeding.

Appeal by the plaintiff, Joseph Hartmann, from a judgment of the County Court of Nassau county in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 9th day of May, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of June, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Brooklyn Heights 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 6th 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.

Appeal by the defendant, The Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 18th day of June, 1900, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 18th day of July, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by . the defendant, The City of Mount Vernon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 9th day of June* 1900, Upon the verdict of a jury for $500, and also from an order bearing date the 6th day of June, 1900, and entered in said ■clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Emilie Huber, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant, rendered on the 16th day of May, 1899, upon the decision of the court.

Appeal, by the defendants, Caroline Myrus 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 Suffolk on the 12th day of May, 1900, upon the decision of the court rendered after a trial at the Suffolk Special Term.

Appeal by the defendant, Frank G. Birdsall, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office-of the clerk of the county of Orange on the 8th day of February,, 1900, upon the,report of a referee. The action was brought to recover upon two promissory notes,, one for $33 and the other for $100, executed by the defendant to-the order of the plaintiff.

Appeal by John O. Baker and ■ another, as' executors, etc., of Mills P. Baker, deceased, from a decree of the Surrogate’s Court of the county of Queens, entered in the office of said Surrogate’s Court on the ljtk day of May, 1900, settling1 their accounts as such executors, in so far as it relates to the trust fund provided for the respondent under the last will and testament of their testator.

Appeal by the proponents, Jeremiah M. Dominy and' another, from a decree of the Surrogate’s Court of the- county of Suffolk, entered in said Surrogate’s Court on the 10th day of June,-1899, adjudging that a paper dated October 1, 1898, propounded as the last will and testament of Esther M. Hedges, deceased, was procured while she was under restraint and undue influence, and was, therefore, null and void.

Appeal by the plaintiff, John W. Swain, from a judgment of the .

Appeal by the defendant, The Tillage of Larchmont, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 5th day of June, 1900, upon the decision of the court rendered after a trial at the Westchester Special Term, and also from an order entered in said clerk’s office on the 5th day of June, 1900, appointing commissioners to determine the question as to the damages sustained.

Appeal by the defendants, Abraham Abraham and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of February, 1900, upon the. verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of February, 1900, denying the defendants’ motion for a new trial made upon the minutes,

<p>Appeal by the defendant, Nicholas Epaski, from a judgment of the County Court of Wéstchester county in favor of the plaintiff, rendered on the 1st day of February, 1900, upon the verdict of a jury convicting him of the crime of manslaughter in the first degree.</p>

<p>A driver for an expressman, temporan'ily employed by a furniture dealer — when the latter is liable for the driver’s negligent act.</p> <p>A driver in the general employ of an expressman was, under a contract between the -expressman and a furniture dealer, temporarily withdrawn from the business of the former and transferred, with his horses and truck, to the furniture dealer, whose firm name and place of business were put on the truck, to be used by him in his business, not in a special or particular instance, but generally so . far as concerned that business in a particular locality.</p> <p>Held, that whether the agreement was that the expressman should deliver the furniture dealer’s goods for a specified sum a week or should furnish the furniture dealer with an outfit for that purpose, the latter, in' either case, having tlie use and control of the outfit for the time being just as though it was his own, was liable for the driver’s negligent act, committed while delivering his goods.</p> <p>Goodrich, P. J., dissented.</p>

<p> Oasts—what items are taxable where there are several trials. </p> <p>On the trial of an action in June, 1898, the jury disagreed. On a trial in June, 1899, a verdict was rendered in favor of the plaintiff, which the court set aside because of the misconduct of" the jury, ordering “ that the action be replaced upon the calendar of this court and to be tried as though no verdict had been rendered.” In November, 1899, the complaint was dismissed at the- trial court, because of plaintiff’s default, which was afterwards opened upon payment by plaintiff to defendant of the costs Of the term and of the motion. In April, 1900, the case was again tried and a verdict was rendered for the plaintiff.</p> <p>Held, that only fifteen dollars could be taxed for all proceedings after notice and before trial;</p> <p>That, as each of the three trials occupied more than two days, ten dollars in addition to the thirty dollars trial fee was taxable for each of the three trials;</p> <p>That the plaintiff was entitled to tax twenty-five dollars for all proceedings after the granting of and before the'new trial;</p> <p>That jury fees of three dollars having be'en paid by the plaintiff to the first jury, which disagreed, it was a proper item of disbursement and should be allowed;</p> <p>That the plaintiff was not entitled to tax the stenographer’s fees for furnishing the minutes of one trial for use upon the subsequent trial;</p> <p>That the sheriff’s calendar fees should not be taxed in excess of one dollar and a half;</p> <p>That the plaintiff might tax, as a disbursement, the witnesses’ fees for the November term, 1899, notwithstanding the fact that he was obliged to pay the costs of that term to the defendant as a condition of opening his default.</p>

<p>Application made, pursuant to section 1348 of the Code of Civil Procedure, for a modification of the writ of certiorari to review an assessment.</p>

Appeal by the defendant, J. Howard Burton, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 23d day of March, 1899, upon the verdict of a jury, and also from an order entered in said, clerk’s. office on the 24th day of March, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The City of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 9th day of April, 1900, upon the decision of the court rendered after a trial at the Queens County Trial Term, a jury having been waived by both parties.

Appeal by the claimant, Jennie Heinemann, 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 oh the lath day of October, 1900, sustaining exceptions filed to the report of a referee in surplus proceedings and awarding the surplus to the defendant Catharine F; Salomon as against the appellant, Jennie Heinemann, and from the whole of said order, except- that part thereof which directs the…

<p> Town constable, employed to execute process of a justice of the peace under a resolution of the trustees of Port Jervis, cannot recover therefor—the police constable should he employed. </p> <p>Where the trustees of the village of Port Jervis pass a resolution providing that all commitments issued by the police justice be placed in the hands of town Constables, although section 86 of the village charter (Laws of 1896, .chap.-529) provides that such process shall be delivered to, and be executed by, a salaried officer of the village, known as a police constable, the village is not liable for the services of a-town constable in executing process delivered to him by the police justice in pursuance of the resolution of the trustees and in violation of the charter.</p> <p>The resolution-does not make the town constable a special policeman of the Village under section 39 of the charter.</p>

<p>Negligence—injury from an electric car catching fire — charge as to the duty of the railroad, company to “insure” against accidents — as to the use “of a very high degree of care ” —a veo'dict which is not excessive.</p> <p>In an action to recover for personal injuries sustained by the plaintiff in consequence of one of the defendant’s electric cars catching fire from the electric current, a witness for the defendant, who inspected all of the “ crippled” cars, and whose attention was called to the particular car in question for the first time upon the trial, eight months after the accident, may, with a view to testing his memory, be asked on cross-examination : “ How many cripples a day come into your depot of these Nassau cars ? ”</p> <p>In such case the court may properly charge, in reference to the duty of inspection resting upon the defendant, that it must be “ Such as is sufficient to insure — or, rather, such as experience has shown to be sufficient to insure against accidents of this kind,” where the context shows that the justice used the word “insure -’ not in the limited sense that the defendant was an insurer, but in the sense of “to secure” or “to attain.”</p> <p>The court may properly charge, in reference to the care required of the defend- ' ant, that “ in the use of motive power like electricity, power of such appalling. possibilities, it should be a very high degree of care.”</p> <p>A verdict for .$13,750 is not excessive where it appeared that the plaintiff, who was thirty-one years Old, sustained a sprained back, a very bad sprain of the right, ankle and, a laceration of its ligaments, three fractures of the left ankle and a. . laceration, accompanied with much attendant pain and suffering, .a weakness, in the right foot, making it liable “ to give way under her- any time,” and a deformity in the left foot, rendering it impossible for her to put her heel on the.ground; that she was obliged to walk with a crutch, and that her crippled', condition would be permanent; that she did the housework for' her husband. . and two children before the accident, and thereafter required the aid of an. assistant and her children.</p>

Certiorari issued out of the Supreme Court and attested the 17th day of June, 1899, directed to The County of Westchester and The Board of Supervisors of Westchester County, commanding them to certify and return to the clerk of the county of Westchester all and singular their proceedings in relation to the audit by The Board of Supervisors of Westchester County of the claim of the relator.

Appeal by the relator, Peter J. Bungart, from or. order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Suffolk on the 16th day of July, 1900, dismissing a writ of habeas corpus issued to . the sheriff of the county of Suffolk and remanding one George L. Wright to the custody of the defendant, and also from an order bearing date the 12th day of July, 1900, and entered .in said clerk’s office, made on the…

<p>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- 15th day of June, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of June, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the relator, Matthew J. Colbert, 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 26th day of June, 1900, denying a motion for a peremptory writ of mandamus.

Appeal by the plaintiff, Annie E. Wilson, as administratrix, etc.,, of Henry Wilson,- deceased, from so much of a judgment of the-Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 19th day of December, 1899, upon the verdict of a jury, as directs the. dismissal of a claim, for royalty set up -in the complaint, constituting a part of the plaintiff’s cause of action.

Appeal by the plaintiff, Sarah McNeil, as administratrix, etc., of Paul McNeil, deceased, 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 1st day of November, 1900, denying a motion to vacate and set aside an ex parte order directing the plaintiff to give security for costs.

<p>Appeal by the defendant, the City of New York, 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 19th day of November, 1900, adjudging that chapter 257 of the Laws of 1899 was unconstitutional and void and vacating an order theretofore entered appointing commissioners for the proposed improvement of Clinton avenue, borough of Brooklyn.</p>

<p>Appeal by the defendant, Richard A. Sammis, from an order of the. County Court of the county of Nassau, entered in the office of' the clerk of-the county of Nassau on the 25th day of July, 1900, reversing upon appeal a judgment in favor of the plaintiff rendered by a justice of the peace in a summary proceeding, and also from a judgment entered upon said order in said clerk’s office on the '25th day of July, 1900, awarding possession to the landlords.</p>

Appeal by the plaintiff, Mary O’Hara, 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 19th day of June, 1900, upon the dismissal of'the complaint by direction of the court at the close of the whole case after a trial at the Kings County Trial Term.

Appeal by the relator, Elizabeth Baxter, 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 27th day of November, 1900, dismissing a writ of habeas corpus.

<p>Mortgage foreclosure — a judgment for a deficiency, including costs, against an executor is not “ a judgment for a sum of money only."</p> <p>Section 1835 of the Code of Civil Procedure, providing that “ where a judgment for a sum of money only is rendered against an executor or administrator in an action brought against him in his representative capacity, costs shall not be awarded against him, except as prescribed in the next section,” does not, apply to an action brought against an executor to foreclose a mortgage, the payment of which was assumed by her testator and to recover any deficiency arising on the sale.</p> <p>A “ judgment for a sum of money only,” defined.</p>

Appeal by the plaintiff, Lydia S. Cutting, as executrix, etc., of Heyward Cutting, deceased, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 28th day of May, 1900, dismissing on the merits a proceeding to recover the possession of real property.

Appeal by the plaintiff, Emily A. Weeks, 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 28th day of November, 1899, upon the dismissal of the complaint by direction of the court after a trial at the Orange County. Trial Term.

Appeal by the defendant, the New York Building Loan Banking 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 21st day of February, 1900, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Annie McGuire,- from a judgment of the Municipal Court of the city of Mew York, first district, borough of Brooklyn, in favor of the defendant, rendered on the 10th day of July, 1900, upon the decision of the court dismissing the complaint.

Appeal by the defendant, Nellie Brucato, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, fifth district, in favor of the plaintiff, rendered on the 1st day of February, 1900, upon the decision of the court.

Appeal by the defendant, the Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, first district, in favor of the plaintiff, rendered on the 26th day of November, 1900, upon the decision of the court.

<p>Appeal by the plaintiff, Joseph R. Kinney, from an interlocutory judgment of the Supreme Court in favor of the defendant, The-Reid Ice Cream Company, entered in the office of the clerk of the county of Kings on the 4th day of May, 1900, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling a demurrer interposed by the plaintiff to the amended answer of said defendant.</p>

Appeal by the plaintiff, Fanny Davidson, as administratrix, etc., of James Davidson, deceased, 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 11th day of December, 1900, requiring and directing her to pay into court the sum of $250, ■ to be applied to the payment of the costs, if any, awarded against her as such administratrix, or at her election to file with the clerk of this…

Motion by the plaintiff, Laura Adelaide Nelson, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the'verdict of a jury in favor of the defendant, rendered by' direction of the court after a trial at ; the Kings County Trial Term on the 29th day of January, 1900.

<p>Appeal by the defendant, William H. Stowell, from an order of the Supreme Court, made at the Chemung Special Term and entered in the office of the clerk of the county of Broome on the 7th day of June, 1900, denying, except upon terms; a.motion to require the plaintiff to accept service of a case and exceptions upon appeal. _</p>

Appeal by the defendants, Peter Walker, chairman of the board of supervisors of the county of Albany, and others, from.an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 17th day of October, 1900, denying a motion to dissolve a temporary injunction.

<p>Industrial insuranceon the life of a husband — where the wife signs the “proposal,” in which sheis named as the beneficiary, the husband, who signs the “ application ” enumerating the conditions, may change the benefieia'ry.</p> <p>An insurance agent sent for by a wife to insure the life of her husband, produced a printed blank called a “ Proposal for Industrial Insurance,” which contained certain questions as to the name, residence, age, etc., of the person to be insured, to be signed by the “ person to be insured, or * * * the beneficiary (if husband or wife).”- The “proposal” was signed by the wife, and the insurance was stated therein to be for her benefit.</p> <p>The agent at the same time produced another printed blank called an “Application for Insurance ” which contained various questions concerning the age, occupation, relatives and health of the person to be insured.. Under the questions was printed : “I declare and warrant that the representations and answers made herein are strictly correct and true; that they shall form the basis and become part of the contract of insurance, if one be issued; that any untrue answers will render the policy null and void, and that said policy shall not be binding upon the company unless upon its date the person to be insured shall be alive and in good health. The right is also reserved to change the beneficiary1 from time to time, with the consent of the company, by written notice to said company, but payment upon presentation of the policy and premium receipt book shall be a discharge to the company.” The “application” was signed by the husband. The policy issued thereon made the ‘ ‘ application ” a part thereof, but neither paper contained a reference to the “proposal.”</p> <p>Held, that the husband was entitled to change the beneficiary without the consent of his wife.</p>

Appeal by Hannah Goundry, one of the .administratrices of the estate of Catharine Goundry, deceased, from an order of the Surrogate’s Court of the county of Schuyler, entered in the office of said surrogate on the ,25th day of April, 1900, requiring the filing by the said administratrix of a new bond and an amended inventory of the estate of Catharine Goundry, deceased.

Appeal by the defendant, the Binghamton Railroad Company, from an order of the Supreme Court, made at Broome Special Term and entered in the office of the clerk of the county of Broome on the 5th day of February, 1900, granting the plaintiff’s motion to' set aside the verdict of a jury in favor of the defendant, and granting a new trial of the action. Defendant operated by electricity a line of street cars in Binghamton.

Appeal by the defendant, Charles J. Wright, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 30th day of March, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of March, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the claimant, Maurice Shannahan, from a judgment of the Court of Claims in favor of the defendant, entered in the office of the clerk of the Court of Claims on the 14th day of December, 1899, upon the decision of the court;

<p>Decision on a demurrer — an order ovm'ruling the demurrer signed by the clerk is sufficient—presumption that matter is pleaded as a complete defense — a judgment for damages for a nuisance is not a complete defense to a subsequent action for dami ages and an injunction — damages recoverable.</p> <p>An order overruling a demurrer and directing judgment against the party interposing the demurrer, signed by the clerk of the court and not by the judge presiding at the trial of the issues raised by the demurrer, is a sufficient decision.</p> <p>¡New matter contained in an answer and not stated to constitute a partial defense, will, for the purpose of a demurrer interposed thereto, be assumed to have been pleaded as a complete defense, and must be tested accordingly..</p> <p>The payment of a judgment in favor of the plaintiff, rendered in an action to recover damages sustained by the plaintiff in consequence of the maintenance of a nuisance upon the defendant’s premises, does not constitute a complete defense to a subsequent action by the same plaintiff against the same defendant and others to enjoin the maintenance of such nuisance and to recover the damages resulting therefrom.</p> <p>Semble, that the damages recoverable in the second action are those which have accrued since the commencement of the former action.</p>

■ Appeal by the plaintiff, Hermann Schmaltz, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Clinton on the 25th day of April, 1899, upon the decision of the court rendered after a trial at the Clinton Trial Term, at which certain questions of fact had been submitted to the jury, and also from an order entered in said clerk’s office on the 8th day of December, 1898, denying the plaintiff’s motion for a new…

Appeal by the plaintiff, Monroe F. Smith, from a .judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 22d day of August,. 1899, upon the decision of the court rendered after a trial at the Onondaga Special Term dismissing the complaint. This appeal was transferred from the fourth department to the third department.

Appeal by the defendant, Wallace W. Collins, from a judgment of the County Court of Chenango county in favor of the plaintiff, rendered on the' 18th day of June, 1900, convicting him of the crime of perjury, and also from an order • denying the defendant’s, motion for a new trial made upon the minutes, entered in said, clerk’s office,- and also from an order entered in said clerk’s office on the 14th day of June, 1900, denying the defendant’s motion that the case pass the…

<p>Appeal by the plaintiff, The New York Milk Products Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Cattaraugus on the 28th day of December, 1899, upon the decision of the court rendered after a trial at the Cattaraugus Trial Term before the court without a jury.</p> <p>This appeal was transferred from the fourth department to the third department.</p> <p>The action was brought to recover damages for alleged wrongful acts of the defendants in making an assessment against the plaintiff.</p> <p>The facts, as found by the trial court, are substantially as follows:</p> <p>In the year 1897 the plaintiff was a foreign stock corporation, organized and incorporated under the laws of the State of New Jersey, and engaged in the manufacture and sale of milk-sugar and cheese in the States of New Jersey and New York. Its home office was in Jersey City, N. J., and its office within the State of New York for the purpose of transacting its financial business therein and where all its financial business therein was transacted, and where its warerooms and salesrooms were located, was in the city of New York, and it was there assessed for its personal property used in conducting its business within the State.</p> <p>In the year 1897 the plaintiff - was the owner of divers pieces of land in New Jersey and in the counties of Cattaraugus and Chautauqua, N. Y., upon which were situated its factories for manufactaring cheese and milk-sugar. One of such pieces was situated in the town of Leon, Cattaraugus county, and on it was a cheese factory and sugar of milk refinery. From May 1, 1897, to September 10, 1897, Murray H. Smith, the vice-president of the plaintiff, lived and resided with his family in the village and town of Randolph, 17. Y., and was engaged in superintending the milk-sugar branch of plaintiff’s business throughout Cattaraugus and Chautauqua counties. In the months of May and June, 1897, the plaintiff was making various additions and alterations at its sugar plants in those counties, the same being made under the supervision of the vice-president. From about June eleventh to the twenty-fifth he was supervising the additions and alterations being made at the property in Leon, and while so engaged purchased his meals .of one Fred. Payne, an employee of the plaintiff, who lived with his family on the premises in Leon, and occasionally when the roads during this time were not good, the vice-president spent the night on the prem-. ises with Payne. Thereafter, and in the month of June, and after the completion of the additions and alterations at that place, the defendants, as assessors of the town of Leon, visited the premises for the purpose of assessing the same for taxation. Upon the day of such visit the vice-president was not there or in the town, and the defendants were conducted over and about the premises, and the same were shown to them by Payne. The cheese factory on the premises was not operated during the year 1897. The sugar of milk' refinery was operated from about June 25 to September. 10, 1897. The vice-president was the only officer, director or stockholder of the plaintiff residing in the county of Cattaraugus in the year 1897.</p> <p>The defendants were thé assessors of the town of Leon for the year 1897, and made the assessment and assessment roll for that year. They assessed the lands of the plaintiff in that town, above referred to, in the same manner as though the plaintiff was a taxable inhabitant and resident of that town. The plaintiff’s name was entered in the first column of the roll among the names of the taxable residents and inhabitants of the town, and opposite its name and in other columns the defendants entered' the amount of real, property owned by the plaintiff in the town, the assessed and actual valuation, and the total value. Upon this assessment, and based thereon, the board of supervisors of Cattaraugus county levied a tax against the plaintiff in the sum of forty-nine dollars and seventy-five cents, and thereafter issued to the town collector its warrant in the usual form to collect, among others, the tax so levied. The collector, in February and March, 1898, acting under such -warrant, entered upon the land of plaintiff and sold property belonging to plaintiff to partly satisfy the tax.</p> <p>As matter of law the court decided that plaintiff failed to establish a, cause of action, and that the complaint be dismissed.</p> <p>From the judgment entered on this decision the plaintiff appealed.</p>

Appeal by the plaintiff, Frank Yaple, from a judgment of the ‘Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Sullivan on the 2'6th day of June, 1900, upon the dismissal of the complaint by direction of the court after .a trial' at the Sullivan Trial Term.

<p>Grant of land under water within New York city — right of its board of docks over the same.</p> <p>Section 86 of the Greater Hew York charter (Laws of 1897,. chap. 378) which provides, “If application he made to- the commissioners of .the land, office by the tfiparian proprietor for á grant of soil' or land under water within the city of INew York, as herein constituted, said commissioners shall give notice thereof to the board of docks of the city, which shall examine into such application and determine whether the granting of the same will conflict with the rights of the city under this act or be "otherwise injurious to the public interests of the said city, and shall report, their conclusions to said commissioners, who shall insert such terms and conditions in the grant recommended by the hoard of docks as will protect the public interests of the city in respect to navigation and commerce,” does not give the hoard of docks an absolute power to veto a grant to a riparian owner, hut only a qualified control over the grant, so far as .may be necessary for the promotion of the-foreign-and domestic commerce of the city.</p> <p>The report of the hoard of docks as to whether the granting of the application “will conflict with, the rights of the city under this act or be otherwise injurious to the public interests of the said city,” is advisory simply to the Commissioners of the Land Office, and is. not in any way conclusive upon them:</p> <p>The right of the commissioners "to annex conditions to a grant is not limited to a grant “ recommended by the board of docks.”</p> <p>Mbrwih, J.,,- dissented.</p>

Certiorari issued out of the Supreme Court and attested the 13th day of August, 1900, directed to John Magee, police commissioner of the village of Lansingburgh, Hew York, commanding him to certify and return to the clerk of the county of Rensselaer all and singular his proceedings in removing the relator from the office of patrolman upon the police force of the village of Lansingburgh.

<p>Appeal by the defendant, The Lawrence Cement Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Ulster on- the 15th day of April, 1899, upon the verdict of a jury for- $4,000, and also from an order bearing date the first Monday of April, 1899, entered in said cleric’s office denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover damages by reason of the alleged negligence, of the defendant resulting in the death of the plaintiff’s intestate.</p> <p>The defendant, a domestic, corporation, engaged in the manufacture of cement, in March, 1897, procured to be' placed in its mill, in Eddyville, N. Y., a new low-pressure engine, to be used in connection with its high-pressure engine, the ’ two constituting what is known as a compound engine. It had contracted for this engine with the Wright Steam Engine Works, of Newburgh, N. Y., who sent Law, a competent mechanic, to superintend its erection and make the proper connections. The steam from the cylinder of the high-pressure engine passed through a steam pipe into the steam chest of the low-pressure engine from which it was admitted into the cylinder by means of two admission valves, controlled, by a hook rod, and so arranged that they dropped back automatically and remained closed except when the hook rod raised them to admit the steam. from the steam chest to the cylinder of the low-pressure engine. The hook of this rod dropped down over a pin on a wrist plate, and to prevent its jumping off the wrist plate there was a safety latch on the bottom of and across the hook which slipped underneath the pin of the wrist plate and into a slot in the hook. If this safety latch is not fastened, the hook rod is liable to jump from the wrist plate, and when it becomes disengaged the admission valves are closed, the steam cannot escape from the steam chest into the cylinder, it continued to be pumped from the high-pressure engine into the steam chest of the low-pressure engine and the pressure raised until the limit of endurance is reached, when an explosion is inevitable.</p> <p>The new engine was started on Saturday, April 3, 1897, and on . the following Monday, April fifth, it was again started for the purpose of grinding cement in the defendant’s mill. Law was in charge of it. Carter,- the plaintiff’s intestate, was an oiler and had been in that position for two days, having previously been in the employment of the defendant as a laborer. The safety latch of the hook rod was left open by Law, and the engine ran' with this unfastened for a little over two hours, when, in consequence of the safety latch being open, the hook rod jumped the wrist plate and an explosion followed. The end of the steam chest was blown off, struck the live steam pipe above the cylinder, caused a rupture and the plaintiff’s intestate was killed by inhalation of the escaping hot -steam.</p>

Appeal by the defendant, The Village of Walton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Delaware- on the • 16th day of June, 1900, upon the verdict of a jury for $640, and also from, an order bearing date the 17th day of May, 1900, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

<p>Condition that a grantee shall erect a building on the premises conveyed— it is a condition subsequent —where the grantor'prevents its performance he cannot re-enter for its breach—form of judgment.</p> <p>A deed of a vacant lot to a Woman’s Christian Temperance Union stated that it was to he used, occupied and enjoyed, “ subject to the- following conditions and limitations, viz.: The building to be placed thereon shall be erected as soon as the 1st day of January, 1896, and no intoxicating beverages shall ever intentionally be permitted to be manufactured, sold, given away or consumed within or upon said premises or any part thereof, and the said grantee is required to use all reasonable diligence to prevent a violation of this condition. A substantial compliance with the foregoing requirements shall be deemed essential to the validity and permanence of the title hereby conveyed.”</p> <p>The Woman’s Christian Temperance Union entered into possession of the premises, and on November 8,1895, with the consent of the grantor, made a contract for the erection of a building thereon, and, to secure certain parties who had guaranteed the payment to such contractor of the contract price, the Woman’s Christian Temperance Union executed to them a mortgage covering the lot. The contractor thereupon commenced work and continued until December 9, 1896, when he was. stopped by the holder of the mortgage, whose action was induced by a false and unwarranted claim of the grantor that the deed to the Woman’s Christian Temperance Union was obtained by fraud.</p> <p>In an action subsequently brought by the grantor to set aside the deed and mortgage,</p> <p>Held, that the covenant to erect the building constituted a condition subsequent;</p> <p>That as the suspension of the work upon the building had been caused by the grantor, the failure to erect the building within the time prescribed by the deed did not forfeit the grantee’s estate nor authorize the grantor to re-enter;</p> <p>That the judgment entered in the action should, however, not declare the absolute fee of the premises to be in the grantee relieved from the condition contained in the deed in so far as it required the erection of the building.</p> <p>Serribls, that the grantee should be allowed ,a reasonable time in -which to perform such condition, . •</p>

<p>Appeal by the defendant, Milton E. Button; from a judgment of the Supreme Court in favor of the plaintiff, .entered in the office of the clerk of the county of Rensselaer on the 2d day of June, 1900, upon the report of a referee.</p> <p>The action is for partition, and if partition cannot be had, for a sale and a division of the proceeds of the sale. The sole issue is upon the construction of a will.</p> <p>. William P. Button died on the 16th day of November, 1897. At the tinie of his death he was the owner of two farms, one. called the homestead farm of about 100 acres and which he valued, as the referee has found, at about $8,000, and the other a farm of about 60 acres which, as the referee has found, he valued at between $5,000 and $6,000. At the time of the making of his will he had personal property to the value of about $1,350 and. was owing about $350 of indebtedness, Thus conditioned, .he made his will as follows:</p> <p>“I, William P. Button, being of sound and disposing.mind and memory, do make, publish and declare my last will and testament as follows:</p> <p>“ First. I direct payment of all my debts, funeral' and testamentary expenses.</p> <p>“ Second. I give and bequeath to my daughter, Lottie Stiles, the sum of two hundred dollars ($200),. and make the same a charge upon all my estate.</p> <p>“ Third. I give and devise unto my sons, Luther John Button and Myron R. Button, the homestead farm whereon I am now located and now reside, situated in the town of Brunswick, containing about one hundred (100) acres of land, more or less, and being purchased by me of George Brust, equally as tenants in common.</p> <p>“ Fourth. I give and bequeath all'tlie stock, wagons, harness and farming utensils on said homestead farm at the time of my decease to my son, Myron B. Button.</p> <p>, “Fifth. I direct the payment of the encumbrances upon said homestead farm out of such of my property as is not herein specifically devised and bequeathed, and which I empower my executors hereinafter named or the survivor to sell and convert into money, hereby requiring my said executors to pay to my daughters, Ophelia Stannard, Lottie Stiles and Milton E. Button, my son, the sum of three thousand five hundred dollars ($3,500.00) in equal proportions ■of one-third each, which is bequeathed to them in case the said property in this, the fifth clause of my will, shall be sufficient to pay the encumbrances on said farm, and if not sufficient the amount •of the deficiency shall be deducted equally from each of the shares so bequeathed of the said three thousand five hundred dollars ($3,500) and deducted therefrom. And the said sum of three thousand five hundred dollars ($3,500), or such portion thereof as may be payable as herein stated, shall be paid within two years after my decease, without interest.</p> <p>“ Sixth. The remainder of my said estate I give, devise and bequeath unto my daughters, Ophelia Stannard and Lottie Stiles, and to my son, Milton E. Button, in equal proportions.</p> <p>“ Seventh. In the case of the death of my daughter, Ophelia Stannard, before my decease, the share or sums so bequeathed to her shall be given to my other four children, provided she shall die without issue, and not otherwise.</p> <p>“Eighth. I appoint my sons, Myron B. Button and Luther John Button, executors of this, my will, directing them to. erect, with moneys belonging to my estate, a suitable headstone at my grave like the one at the grave of my wife in Cooksborough cemetery.</p> <p>“ In witness whereof, I have hereunto set my hand and seal this 14th day of April, one thousand eight hundred and ninety-four, hereby revoking all former wills by me made.”</p>

<p>Tax on railroad corporations upon their gross earnings within the ■ State of New YorTt— when moneys received for carrying the United States mail are not taxable ■ thereunder. „</p> <p>Under section 184 of the Tax Law (Laws of 1896, chap. 908), imposing upon certain corporations “ an annual excise tax or license fee which shall be equal to five-tenths of one percentum upon its gross earnings within the State, which shall include its gross earnings from its transportation or transmission business originating and terminating within this State, but shall not include earnings derived’ from the business of an interstate character,” a railroad company is not taxable on moneys received for carrying the United States mail, part of which originates and terminates within the State of New York and part of which originates and terminates without the'State of New York, where it appears that it is impossible to ascertain the proportion of mail which originates and terminates in the State of New York.</p>

<p>.Erection of a house, with the consent of a contract vendee, on the land contracted to be sold — the house becomes, as to the contract vendor, part of the realty.</p> <p>"Where the wife of a vendee of land under an executory contract of sale, with the consent of her husband, erects upon the land a wooden house, resting upon blocks or posts and without other foundation or fastening to the soil, a person who purchases the house from the wife acquires no title thereto as against the vendor,.in the absence of proof that the house was erected with the consent of the vendor, or pursuant to an agreement between him and the vendee’s wife.</p>

<p>Labor Law —• it does not apply to a contract to furnish gas and. electricity to State buildings—quiere as to furnishing “renewals and repairs of arc lamps”— pleading. '</p> <p>Section 3 of the Labor Law (Laws of 1897,. chap: 415, as amd. by Laws of 1899, chap. 567), providing that each contract to which the State is a party and which involves the employment of labor shall contain a stipulation that no employee ■ of the contractor shall be permitted of required to work more than eight hours . in any one calendar day, is limited to contracts for1 “ public work.”</p> <p>A contract made between a corporation engaged in manufacturing and furnishing gas and electricity for lighting and heating purposes, and the State of New York by which the corporation agrees to furnish sufficient gas and electricity to light and heat the New Capitol and Executive Mansion at" Albany, is a, con- ' tract for the purchase'of a commodity and not a contract for a “public work.”</p> <p>A provision in the contract by which the corporation agrees to “ furnish and supply all needed f * * renewals and repairs of arc lamps,” even if construed as an agreement to furnish labor, does not impress its character upon the entire contract; in any event the fact that the employees of the corporation engaged in furnishing such renewals and repairs were required or permitted . to work more than eight hours in one calendar day is not available, in an action brought by a citizen to annul the contract, unless it is alleged in the complaint.</p>

<p> Bill of particulars—what is required in an action to recover an attorney’s fee for professional services. </p> <p>An attorney brought an action to recover §20,305 for professional services rendered to the defendants during a period of about four years, and, upon the defendants’ demand, served a bill of particulars setting forth items of disbursement aggregating §204, and placing a value agreed upon for some minor services aggregating §101, and giving the value of the remaining services in one lump sum, §20,000.</p> <p>The items upon which the charge of §20,000 was based were separately stated in the bill of particulars, and each item so named had a value well known to practicing attorneys.</p> <p>BCeld, that the attorney should be required to serve an additional bill of particulars, setting forth the value, claimed by him, of each item of service rendered.</p> <p>Parker, P. J., and Merwin, J., dissented.</p>

Appeal by William J. Morgan, Comptroller of the State of New York, from an order of the Surrogate’s Court of the county of Tompkins, entered in the office of said surrogate on the 7th day of April, 1900, affirming the order of the surrogate fixing the tax upon the estate of Harriet W. Thompson, deceased, under the law relating to taxable transfers.

Appeal by the plaintiff, Matthew Gallavan, from an interlocutory judgment óf the Supreme Court in favor of the defendants, James Gallavan and another, entered in the office of the clerk of the county of Chemung on the 15th day of June, 1900, upon the decision of the court , rendered after a trial at the Chemung Special Term sustaining a demurrer to the complaint. . The action is in partition.

• Appeal by the defendant, William T. Sanger, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 8th day of March, 1900, upon the decision of the court rendered after a trial at chambers in St. Lawrence, county, pursuant to an adjournment by stipulation from the Franklin Trial Term.

Appeal by the defendant, Robert MacKinnon, 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 15th day of November, 1899, denying the defendant’s motion to change the place of trial of the action from the county of Rensselaer to.the county of Herkimer, and also from an order entered in said clerk’s office on the 3d day of January, 1900, denying the defendant’s motion to resettle the…

<p>Transportation Oorpomtions Law, exempting from, toll persons lining within one-half mile of the gate — it applies only to corporations created under the general act— an oral agreement not to charge any toll for all time is valid.</p> <p>The provision of section 130 of the Transportation Corporations Law (Laws of 1890, chap. 566, as amd. by Laws of 1893, chap. 538), that no tolls shall be collected at any gate from any person living within one-half mile of the gate, only applies to corporations incorporated under the general act and does not apply to a turnpike company incorporated in 1799 under a special charter.</p> <p>Where a person, assuming to act on behalf of a turnpike company, makes an oral agreement with the life tenant of a farm within half a mile of the toll gate, that if such life tenant will close up a private road which diminishes the travel over the turnpike, the occupants of the farm shall be forever relieved from liability to pay tolls, the turnpike company cannot, after recognizing the agreement for forty years, question the authority of the person who made the agreement on its behalf.</p> <p>:Such an agreement operates as an advanced payment of the tolls for all time, and is not void under the Statute of Frauds as being an agreement not to be performed within one year, or a grant of an interest in lands.</p> <p>Parker, P. J., and Smith, J., dissented.</p>

<p>Certiorari issued out of the Supreme Court and attested the 31st day of May, 1900, directed to William J. Morgan, as Comptroller of the State of New York, commanding him to certify and return to the clerk of the county of Albany all and singular his proceedings in assessing the relator for the year ending October 31, 1899, upon the relator’s capital employed within the State of New York'during that year.</p>

Certiorari issued, out of the Supreme Court- and attested the 20t-h day of October, 1899, directed to William C. Elmendorf, as mayor of the city, of Ithaca, commanding him to certify and return to the.clerk of the county of Tompkins all and singular his proceedings in relation to the dismissal, of the relator from the police force - of the city of Ithaca. This case was decided at the May term, 1900 (51 App. Div. 173), and an order was thereafter made granting a reargument.

<p>Certiorari issued ■ out of .the Supreme Court and attested the . 18th day of July, 1900, directed to Timothy L. Woodruff and others, composing the Board of Commissioners of the Land Office, commanding them to certify" and return to the clerk of the county of Albany ■ all and singular their proceedings in relation to the denial of the application of. the relator for the refunding of moneys by reason of the alleged failure of the title of the State to lands granted under its authority to the relator.</p> <p>In the months of August and September, 1891, at a public sale, held by the State Engineer and Surveyor, pursuant to a resolution of the Commissioners of the Land Office, the relator purchased the title of the People of the State to twenty-seven lots of land in the county of Kings, paid the purchase price therefor, and on August sixth and September fourteenth, seventeenth and twenty-ninth of that" year letters patent therefor were issued to the relator.</p> <p>These lots of.land had been acquired by the State at the Comp- ■ ■ troller’s tax sales, and had been conveyed thereon to the People of the State of Hew York.</p> <p>The letters patent issued to the relator for these lots read as follows:</p> <p>“ The People of the State of Hew Yobk, by the Grace of God Free and Independent;</p> <p>“ To all to whom these presents, shall come, Greeting: Know Ye, That we have granted, released and quit-claimed, and by these presents do grant, release and quit-claim unto Amos 0. Hall, all the right, title and interest acquired by us from or through the sale for taxes made by the Comptroller of this state in the year-, in and to the premises described as follows, viz.: ”</p> <p>At their conclusion the letters patent contain the following further provision: “These Presents shall in no wise.operate as a warranty of title.”</p> <p>After the relator’s purchase his title to one of the lots was disputed on the ground of alleged defects and irregularities of the assessment and tax levy for which the lands were sold, and an action was brought in the Supreme Court by one Hagner, claiming to be the owner of this lot, to determine the validity of the title, in which action a judgment was recovered against the relator declaring the tax sales invalid.</p> <p>Thereafter an application, made by the relator to the Comptroller for the cancellation of the tax sales of all of the lots, was granted by the Comptroller.</p> <p>The relator thereafter filed with the Commissioners of the Land Office an application for a refunding to him of the several amounts paid by him to the State for the said lands, claiming' that the title thereto had failed; and in support of his application submitted the certificate of the Comptroller to the efEect that he had canceled the tax sales of said lots, a certificate of the register of Kings county that the relator had not parted with the title of the lots, minutes of the proceedings had before the Comptroller in relation to the cancellation, a conveyance from himself and wife to the People of the State of the lots in question, and an affidavit that he had not since +he sale to him sold or contracted to sell his interest in the premises.</p> <p>The commissioners denied his application, and this proceeding was instituted to review their determination.</p>

Appeal by the defendant, Thomas Austin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 9th day of July, 1900, upon the report of a referee. On about November 1, 1883, the plaintiff and the defendant formed a copartnership for the purpose of conducting an insurance business and agency in the city of Albany.

Appeal by the defendant, William Bourdon, from a judgment ' of the Supreme Court in favor of the plaintiffs* entered in the office of the clerk of the county of Albany on the 10th day of July, - 1900, upon the decision of the' court rendered after a trial at the Albany Special Term in an action brought to compel the specific performance of a contract to purchase real estate. .

Appeal by the defendant, Joseph E. Elwell, from an order of the Supreme Court, made at Broome Special Term and entered in the office of the clerk of the county of Otsego on the 10th day of May, 1900, striking out the answer of the defendant as sham, false and frivolous. This is an action for slander.

Appeal by the plaintiff, Lou E. Chambers, from a judgment of the County Court of St. Lawrence county in favor of the défendant, entered in the office of the clerk of the county of St. Lawrence on the 31st day of May, 1900, affirming a judgment rendered by a Justice’s Court in favor of the defendant.

<p>Appeal by the defendant, William A. Bannin, from a judgment of the County Court of Warren county in-favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 17tli day of July, 1900, upon the. verdict of a jury, and also from an order bearing date the 13th day of July, 1900, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Fred 0. Ham, commissioner of public safety of the city of Albany, H. Y., from an order of the Supreme Court, made at the Albany Special Term' and entered in the office of the clerk of the county of Albany on the 8th day of October, 1900, directing that a peremptory writ of mandamus issue commanding him to reinstate the relator in the position of station house keeper in the first precinct station house in the city of Albany.

Appeal by the plaintiffs, Henry Sonn.and another, from a judgment of the Supreme Court in- favor of the defendant, entered in the' office of the clerk of the county of Tompkins on ■ the 20th day of September, 1900, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the 20th day of September,. 1900, denying the plaintiffs’ motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Joseph W. Merchant and others, from an order of the Supreme Oourt, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 16th day of November, 1900, substituting Nettie M. White as defendant in the action in the place of. Northwestern Mutual Life Insurance Company. .

<p>Appeal by the defendant, The Delaware, Lackawanna and Western 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 Tompkins on the 16th day of April, 1900, upon the verdict of a jury for $11,000, and also from an order entered in said clerk’s office on the 10th day of October, 1900, denying the defendant’s motion for a new trial made, upon the minutes.</p> <p>The defendant, in constructing its railroad, had crossed the highway through a deep cut, and had been obliged to take such highway over its road by a bridge. The plaintiff, in crossing such bridge with a heavy traction engine, upon which he was riding, and .which it was claimed weighed, with its load and attachments, considerably more than four tons, broke through the bridge and was seriously injured. Negligence was charged against defendant for not keeping such bridge in reasonably safe repair, and its breaking down, and the injury consequent thereon, is charged as the result of. such negligence. This action was brought to recover against defendant for the injuries sustained. The jury rendered a verdict in-favor of plaintiff, and from the judgment rendered thereon and the order, denying a new trial this appeal is taken. .</p>

Appeal by the plaintiff, Daniel Tyrrel, 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 19th day of November, 1900, making as parties to the action “John Sweeney and all persons unknown, being herein generally described as the widow, next of kin, executors, administrators or assigns, if any, of said John Sweeney.” A. '. .

<p>Habeas corpus —final order, when issued, although the person required to be produced is out of the State — when not issued.</p> <p>The Supreme Court has jurisdiction to issue a writ of habeas corpus to inquire into the cause cf a person’s detention, notwithstanding the fact that it appears in the petition for the writ that such person is not within the State of New York, if it is shown that the respondent may have the power to produce such person.</p> <p>If it appears affirmatively that it is physically impossible for the respondent to obey the writ it must be vacated and the .petitioner be remitted to his remedy in another State or to the criminal law.</p> <p>Where an orphan asylum makes a return, supported by affidavits, to a writ of habeas corpus requiring it to produce three of the petitioner’s children, from which it appears that it has bound the children out to persons in Illinois, over whom the orphan asylum has no power, and that said persons refuse to produce the children or to send them into the State of New York, and that the children are unwilling to return, a final order requiring it to restore to the relator the custody of the children should be reversed.</p> <p>Patterson and O’Brien, JJ., dissented.</p>

Appeal by the defendant,'The Hampton and Branchville Railroad and Lumber 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 26th day of November, 1900, denying a motion to set aside the service of the summons made upon the defendant’s president.

Appeal by the plaintiffs, George W. Crossman and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 31st day of May, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of May, 1900, denying the plaintiffs' motion for a new trial made upon the minutes.

Appeal by the defendant, the Westchester Trust 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,, restraining said defendant from bringing an action against the plaintiff. .

<p>Appeal by the plaintiffs, Charles Jones 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 New York on the 2d day of July, 1900, upon the report of a referee.</p>

<p>Security for easts — Code Giml Procedure, § 3268, does not apply to an action by a trustee in bankruptcy to set aside transfers by the bankrupt.</p> <p>The defendants in an action, brought by a trustee in bankruptcy to set aside certain assignments and transfers made by the bankrupts before the adjudication in bankruptcy with intent to defraud their creditors, are not entitled, as a matter of right, to an order requiring the trustee to give security for costs, under section 3268 of the Code of Civil Procedure, which provides that a defendant may require security for costs where the plaintiff is an assignee in bankruptcy and the cause of action arose before the adjudication in bankruptcy.</p> <p>Section 3268 does not apply to such a case, as the bankrupts not being entitled to attack the transfers, and it not appearing that there were any judgment creditors of the bankrupts, no cause of action of the character set out in the complaint existed in anybody until after the adjudication in bankruptcy and the appointment of the trustee..</p>

<p>Appeal by the plaintiff, the American Tartar 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 3d day of November, 1900, denying plaintiff’s motion for a preliminary injunction.</p>

Appeal by the plaintiff, Ernest 0. Brown, 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 oh the.21th day of February, 1900, setting aside the verdict of a jury in favor of the-plaintiff and ordering a new trial of the action.

Appeal by the plaintiff, Frank Richards Abbey, from an order of the Supreme Court, made at the Hew Ymtk Special Term and entered in the office of the clerk of the county of Hew York on the 15th day of Hovember, 1900, granting the defendant Wheeler an extra allowance of costs.

<p>Appeal by the defendant, Charles W. Hines, from a judgment and order of the Court of General Sessions of the Peace in and for the city and county of New York in favor of the plaintiff, rendered on the 1st day of November, 1900, affirming a judgment of a city magistrate convicting the defendant of the crime of vagrancy, and sentencing him to a term of six months in the city prison,</p>

<p>Appeal by the defendant, Francis J. Trainer, from a judgment of the Court of General Sessions of the Peace in and for the city and county of ¡New ¡Fork in favor of the plaintiff, rendered on the 17th day of November, 1899, convicting him of keeping a gambling establishment and being a common gambler, as defined in sections 343 and 344 of the Penal Code, and also from an order entered in said clerk’s office denying his motion for a new trial made upon the minutes, and his motion in arrest of judgment.</p>

Motion by the defendant, The Hastings Pavement Company, for a reargument after a decision in favor of the plaintiff upon a motion 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. The decision upon the original motion is reported in 56 Appellate Division, page 244.

<p> Olaim rejected by executors—proof required of its existence and amount. </p> <p>Where a claim against the estate of a decedent, arising out of deficiency judg- • ments recovered against the decedent in his lifetime, is rejected by the executors and a notice thereof is served on the claimant, the latter, upon the executors’ accounting, is obliged to establish the existence of. the claim and the ■ amount due thereon in the ordinary way.</p>

<p>Amicable adjustment of fke affairs of an estate, assented to by alt- parties — not disturbed many years after the executorsi accounts an'e, approved'. -¡Li</p> <p>Five children of a testatrix, who owed no debts, except to one of her exécutors, entered into an arrangement by which certain real property of which she died ■ seized was to be conveyed to one of them by the executors, to whom mortgages were to be given" back, which were to be used to pay in part the claim existing in favor of the executor against the testatrix. The accounts of the executors were subsequently duly passed by the Surrogate’s Court, these mortgages, being reported by the executors to be assets in their hands, and by a decree entered in that proceeding the executors were released from further liability, and it was directed that the balance in their hands should be applied to the claim of the executor. No steps were ever taken to set aside such decree.</p> <p>Held, that a daughter of the testatrix, who was an active" participant in the accomplishment of the arrangement, and had received material advantages because of her consent thereto, and had substantiated the - executor’s claim before the surrogate, could not, after the lapse of over twenty years, repudiate her acts, and claim an interest in the property;</p> <p>That the .decree of the surrogate was binding upon her as a party and as one who-helped to procure its rendition.</p>

Motion by the plaintiff, Alfred Murphy, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon a nonsuit granted by the court ■after a trial before the court and a jury at the Seneca Trial Term on September 25, 1899.

Appeal by the defendants,-the County of Erie 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 Erie on the 19th day of June, 1900, upon the decision of the court rendered after a trial at. the Erie Special Term. This action, which was commenced on the 4th day of January, . 1899,'was brought under, section 1638 of the Code of Civil Procedure to compel the determination of a claim to real property.

<p>• Appeal by the plaintiffs, Thomas- Tindle and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 5th day of May, 1900, upon a nonsuit granted by the court after a trial at the Erie Trial Term.</p> <p>This action was originally brought against the defendant.and one Calvin P. Russell, who constituted the firm of Russell & Birkett, to recover for fraud and deceit in the purchase by that firm of certain goods and merchandise of the plaintiffs upon, three separate occasions. During the pendency of the action the defendant Russell died and the action was continued against the defendant Birkett as his survivor.</p> <p>The firm of Russell & Birkett was for many years engaged in business as millers and produce dealers at the village of Penn Yan, Yates county, and the goods in question were purchased of the plaintiffs on the 30th day of November, 1898, the 21th day of January and the 25th day of March, 1899, respectively, the value thereof amounting in the aggregate to $901.86.</p> <p>On the fifteenth day of April following the last purchase, the members of the firm were adjudged bankrupts upon their own petition in proceedings duly instituted for that purpose in the United States District Court for the northern district of New York.</p> <p>Prior to such adjudication, and on the 16th day of September, 1897, the defendant Birkett, for the purpose of securing a rating by * the mercantile agency of R. Gr. Dun & Co., made and delivered to such agency a statement of the financial condition of his firm, which showed a net worth of $152,858.22.</p> <p>Thereafter, and on the 2d day of November, 1898, in a reply to a request from the agency for further information, Birkett wrote a letter, in which he practically reiterated his former statement and added that the business of the firm was “ large, increasing and profitable.” Still later, and on the 9th day of March, 1899, a representative of the agency called upon Birkett personally and then received from him a verbal statement to the effect that there had been no material change in the financial condition of the firm.</p> <p>Upon these various statements, as well as upon the information derived from other sources, Dun & Co. gave the firm a rating of from $125,000 to $200,000, which was never changed, and the plaintiffs gave evidence which tended to prove that the goods in question were sold in.reliance upon the rating thus given, although it is not claimed that they ever saw either of the statements upon which it was based.</p> <p>In his statement to the Dun agency the defendant specified, as part of the firm assets, certain real estate of the estimated value of $105,500, which he asserted was subject to a mortgage of $27,000 ; but he omitted all reference to an existing, unrecorded mortgage of $95,000 to secure a contingent liability for that amount, and to cer- / tain indebtednesses of the firm to the wife, son, daughter and daughter-in-law of his partner, Russell, which amounted in the aggregate to upwards of $4i),6Q0.</p> <p>The defendant’s business, instead of being “ profitable,” as represented to the Dun agency, was unprofitable to liis knowledge, and s had been for three or four years prior to the time such representation was made; and, as a matter of fact, Birkett Was aware that .financial ruin was staring him in the face, although he was hoping to obtain an extension of time from his creditors which would postpone and possibly avoid such a catastrophe.</p>

<p> Special Sessions—its jurisdiction must be affirmatively shown—a magistrate of a, town issuing a warrant returnable before himself, where the offense is alleged to have been committed in another town. </p> <p>The Court of Special Sessions being a' court of limited jurisdiction, the fact that it has jurisdiction in a particular case must appear affirmatively, and no presumption will be indulged in to support it.</p> <p>Semite, that the Appellate Division, upon an appeal from a judgment of the County Court affirming a j udgment of conviction" rendered by a Court of Special Sessions in the county of Cayuga, will not indulge in any presumption and inference that the crime was committed in the county in which the Court of Special Sessions was organized— especially where the defendant was apparently guilty of no criminal intent.</p> <p>A magistrate who issues a warrant returnable before himself, although the information upon which it is issued alleges that the offense was committed in another town, has no power, after the defendant, when arraigned before him, has objected to the jurisdiction of the court, to direct a constable to take the ' defendant before a magistrate of the town in which the offense was alleged to have heen committed. In such a case the latter magistrate does not acquire jurisdiction, anda judgment of conviction rendered by him will be reversed.</p>

Appeal by the defendant, the Bank of Suspension Bridge, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 28th day of June, 1900, upon the decision of the court rendered after a trial ' ■ at the Niagara Special Term. The findings of the trial court in this action were based entirely upon a stipulation entered into between the counsel for the respective parties during the progress of the trial.

Appeal by the defendants, William B. Kirk and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 24th 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 26th day of March,. 1900, denying the defendants’ motion for a new trial made upon the minutes. • The action was commenced on the 27th day of January, 1900, to-recover…

Appeal-by the defendant, The National Bank of Auburn, 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 28th day of December, 1899, upon the report of a referee.

<p>Covenant not to sell liquor — when it runs with the land —it is not destroyed by a, ■quitclaim deed subsequently given.</p> <p>The owner of a building occupied as a saloon and restaurant conveyed three inches of land adjoining his building and the usó of a wall of said building to the owner of the adjoining lot, by an instrument containing a covenant, stipulated to run with the land, that the owner of the adjoining lot would “'not use or allow her said building to be used or occupied for a period of five years from, the date of this instrument as a place for the sale of ales, beers, wines or liquors. ’y</p> <p>Subsequently, for the purpose of quieting-the adjoining owner’s title to.a part of such adjoining lot, the owner of the saloon and restaurant executed to such adjoining owner a quitclaim deed, founded upon a valuable consideration, of .all the adjoining lot, which contained no stipulation concerning the sale of intoxicating liquors on the. premises.</p> <p>Eeld, that the restriction in the first-mentioned instrument was a valid condition running with the land and was enforcible against the owner of the adjoining lot and all persons who, with full knowledge of such restriction, leased the building erected on said lot;</p> <p>That the quitclaim deed did not operate to annul such restriction, especially as it appeared that, contemporaneously with the execution of the quitclaim deed, the parties entered into a written agreement reaffirming the prior contract.</p>

<p>Appeal by the defendant, Charles A. Stilwell, 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 30th day of July, 1900, upon the decision of the court, rendered after a trial at the Onondaga Special Term, decreeing the foreclosure of two mortgages, with the usual provision for deficiency against the obligors on the bonds accompanying the said mortgages.</p> <p>On the 1st day of April, 1881, the defendant Charles A. Stilwell executed and delivered to Elizabeth B. Stevens his bond in the penal sum of $4,000, in which he bound himself to pay to said obligee the sum of $2,000, and as collateral security thereto executed and delivered a mortgage upon certain land owned by him in the town of Dewitt in said county. On October 1, 1886, said Stilwell obtained an additional loan of $1,000 from said Elizabeth B. Stevens, which was also secured by the bond of said Stilwell, and a second mortgage upon the said premises. The wife of the mortgagor executed said mortgages, each of which was recorded soon -after it was given. On the 10th day of December, 1890, said bonds and mortgages were duly assigned to Helen B. Sanford, and which said assignments were duly recorded on the same day.</p> <p>On the 20th day of November, 1897, said Stilwell executed a bond to Helen B. Sanford in which he covenanted to pay $3,720; $720 represented a new independent consideration and the balance was intended as further security for the obligations above set forth, the whole principal of each of which remained unpaid. A mortgage was given as collateral security to said bond upon premises not included in said prior mortgages.</p> <p>On February 10, 1899, said Helen B. Sanford commenced an action to foreclose said last-mentioned mortgage, asking for a deficiency judgment in the complaint thereof against said obligor. Judgment was ordered in said action, and the amount reported as due and unpaid on the three separate claims was $4,105.38. A sale of said premises was had by virtue of said judgment of foreclosure, and out of the avails the said indebtedness of $720 was first paid, and the balance thereof was applied on said two obligations originally held by Mrs. Stevens. The sheriff reported a deficiency of $2,774.47, but no judgment therefor was ever docketed or execution issued to collect the same.</p> <p>Thereafter, and on the 24th day of December, 1899, said Helen B. Sanford' assigned and transferred said two bonds and mortgages given to Elizabeth B. Stevens to. the plaintiff in this action, but made no forma,! transfer of any rights she may have possessed by reason o,f the judgment recovered by her. .</p> <p>' This action was commenced December 14,1899, to foreclose said two mortgages assigned to the plaintiff, and no leave of the court • was sought or obtained to bring the same.</p>

Appeal by the defendant, Charles Harter, from an order of the Supreme Court, made at the Onondaga Special Term and entered , in the office of the clerk of the county of Onondaga on the 22d day of June, 1900, substituting Mary A. Wilson, as administratrix, etc., of Stanley W. Wilson, deceased, as plaintiff in the action in the place of Stanley W. Wilson, deceased.

Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure. On the 1st of March, 1900, the plaintiff was appointed deputy comptroller of the city of Rochester, which was an office created by section 61, chapter 182 of the Laws of 1898, and immediately filed his oath of office and entered upon the discharge of his official duties and has since continued to perform the same.

<p>Failure of executors to divide the residuary estate into several trust funds — investments involving the creation of a debt to avoid taxation — interest on money kept in an open bank account — reservation to meet diminution in premiums on securities purchased— commissions of executors and of trustees — on moneys received — on the value of real property—ivaiver of right to commissions—reinstatement of. such right.</p> <p>Where a will directed' the executors to divide the residuary estate into, as many ■ equal shares as there were children of the testator’s daughter, and to hold each of the said shares in trust for certain purposes, the fact that the executors failed to set apart specific securities for each trust, but distributed the income of the entire residuary estate as if there had been such a division, is not a ground for complaint on the part of the cestuis que trustent where they have sustained ho injury from the executors’ action.</p> <p>The fact that the executors, finding difficulty in investing the trust fund in mortgage securities, and desiring to shield the estate from the visits of the tax-gatherer, entered into a contract with a bank, of which one of them was president, by which they agreed to purchase United States four per cent bonds of the par value of $100,000 for $131,500, paying $31,500 of the purchase price in cash, and giving their note to the bank for $100,000 due on demand, and bearing interest at the yearly rate of three and three-tenths per centum, which was precisely the rate of interest the bonds would net the executors, the hank agreeing to repurchase the bonds at the option of the executors, and to pay tliere- ■ for the price which the executors had paid the bank, which arrangement was finally consummated by the purchase of the bonds by the bank, and resulted in a profit to the trust estate, affords no ground for criticism on the part of the cestuis que trustent.</p> <p>The executors should not be charged with interest on trust moneys kept by them in an open account with a hank of which one of their number was the principal stockholder, where it appears that the amount kept in such open account, was no larger than the proper execution of the trust required, and that the account was .treated the same as that of any other depositor.</p> <p>Where the apparent intention of the testator was that the entire earnings of the trust fund should he available as income, the trustees have no power to reserve any portion of the income of the trust fund to compensate for theidiminution of the premium paid by them for the United States bonds.</p> <p>The failure of the executors to divide the residuary estate into separate trust funds as directed by the will, does not affect the trustees’ right to commissions.</p> <p>Where the will clearly distinguishes between the executorship and the trusteeship the executors are entitled to commissions in both functions, although they may not have been discharged as executors.</p> <p>Where the trustees have waived their right to commissions on a trust fund by failing to retain such commissions from the income thereof, and subsequently an order has been made, in a proceeding instituted by the person entitled to the principal of the trust fund, directing the trustees to pay such principal to her, less a specified sum to cover the commissions, and such beneficiary takes no appeal from the order and accepts the fruits of the same, she cannot subsequently repudiate that portion of the order which enabled the trustees to retain their commissions.</p> <p>For receiving the corpus of the estate each trustee is entitled to one-half of the commissions allowed by section 3730 of the Code of Civil Procedure for “receiving and paying out,” such commissions to be computed on the entire principal which came into their custody as trustees.</p> <p>The commissions to be awarded upon distributing the principal of the fund must be deferred until such principal is paid over.</p> <p>The trustees are entitled to commissions on first-class securities which were ■ owned by the testator and which they did not convert into cash.</p> <p>The executors, who' were given power to sell the real estate of which the testator died seized, are not entitled to commissions on the unsold portion of such real estate, the rents and income of which they were receiving as part of the trust estate, but are limited to commissions upon the income.</p> <p>Semitic, that when the property is turned over to the persons ultimately entitled thereto, commissions will be allowable upon the agreed, or ascertained, value of such unsold real estate.</p>

Appeal by the plaintiff, Caroline Fink, from a judgment of the Supreme Court in favor of the defendant Ellen Fink, entered in the office of the clerk of the county of Erie on the 11th day of June, 1900, upon the- decision of the ■ court rendered after a trial at the Erie Special Term. .

• Appeal by the People’s National Bank of W aynesboro, Pa., from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 27th day of July, 1900, denying its motion to vacate an order appointing a temporary receiver and enjoining creditors from prosecuting claims and to have an execution theretofore delivered to the sheriff ■ of Erie county in its behalf declared a first lion on all the personal property…

<p> Real estate agent—when Tie may take commissions from both parties—when they are earned—the general manager of a loan association has authority to employ him. </p> <p>A real estate broker, merely authorized to find and introduce a party with whom he thought it probable that his client could make an exchange of property, and not authorized to fix the valúe of his client’s property of to agree upon any of the terms of the exchange, is at liberty to receive a commission from each party, without the knowledge of the other.</p> <p>In the absence of an express agreement to the contrary, a real estate broker, employed to effect an exchange of real estate, is entitled to his commissions, where, through his procurement, a contract for such exchange has been agreed upon and entered into between his client and a person introduced by the broker, even though one of the parties be unable to fulfill the contract.</p> <p>The general manager of a savings and loan association has power to authorize a collecting agent of the company to employ a broker, at the prevailing rate of commissions, to effect an exchange of property owned by the corporation.</p>

<p>Appeal by the defendant, John W. Smith, 2d, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tates on the 10th day of July, 1900, upon the decision of the court rendered after a trial at the Tates Trial Term before the court, a jury having been waived, 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 under section 1002 of the Code of Civil Procedure.</p>

<p>Appeal by the defendant, Mrs. S. L. James, from a jridgment of the Municipal Gourt of the city of Buffalo in favor of the plaintiff, entered in the office of said court on the 10th day of August, 1900, upon the decision of the court rendered after a trial before the court without a jury.</p>

Appeal by the plaintiff, James H. Hooker, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 28th day of July, 1899, upon the decision of the court rendered after a trial at the Monroe Special Term dismissing, the complaint.

<p>Appeal by Louisa B. Allen,-, a daughter of the testator’s first cousin, from portions of a decree of the Surrogate’s Court of the county of Erie, entered in the office of the said surrogate on the 9th day of August, 1899, judicially settling the accounts of the administrator with the will annexed.</p> <p>The proceeding was instituted by the petition of the executor. Answers were interposed by the special guardian of three infants, grandchildren of one of testator’s first cousins, and by three incompetent persons, the children of one of his first cousins, by which they claimed the right as his heirs to share in the remainder of the trust fund created by the 4th clause of the testator’s will and the 8th clause of the codicil thereto. Thereupon an order of reference was granted to take evidence as to the persons entitled to take said fund and to examine the account filed by the executor, to hear and determine, subject to confirmation by the court, all questians arising upon the settlement thereof that the surrogate would have power to determine, and to report with his opinion thereon, and also to report what sum remained in the hands of the executor for distribution, and the amount payable to each person found to be entitled to share therein.</p> <p>By the 1st clause of the will testator directed the payment of his funeral expenses, the expense of a suitable headstone, the costs and disbursements incident to proving the will and to the administration of his estate, and authorized the sale and conveyance of any portion of his property. The 2d clause directed the erection of a suitable family monument on his burial lot in Forest Lawn at an expense not exceeding $5,000, and a suitable headstone at the grave of his son. The 3d clause bequeathed to Mrs. Elizabeth Jordan Whelan, whom he describes as “ the trusted and faithful friend of my - deceased wife and son,” such of his household furniture “ as she may select; and also for and during the term of her natural life, an annuity or clear yearly rent or sum of seven hundred dollars, free of all taxes and other deductions,” payable quarterly from the time of his death. The 4th clause directs his executor to set apart and create, out of his personal and real estate, ¿ trust fund of $25,000, and to invest and keep the same invested in good securities, such as certain railroad stock, which he mentions, gov-eminent, State or municipal bonds, or bonds or mortgages on unincumbered real estate in the county of Erie, “ so as to realize the best attainable rate of interest consistent with security in the investment, and in creating said fund to' retain and hold any of the above mentioned stock or bonds or other good securities that may belong to my said estate at my decease, and to keep said fund so invested as to obtain the best attainable rate of interest consistent with its security, and so long as the same shall be required to pay the annuity hereinbefore devised and bequeathed; and out of the interest, dividends and proceeds of said fund, to pay ” (1) the said annuity to Elizabeth J. Whelan and' the expense of her last sickness and funeral and of a proper tablet to be erected at her grave; (2) the expenses of keeping, investing and reinvesting and paying out said fund and the taxes theréon; and (3) “ The surplus, if any, of the annual income of said fund after making the payments above provided for, shall at the end of each year during the continuance of said trust, that is, during the life of the said Elizabeth Jordan Whelan, be divided equally between the Buffalo Homeopathic Hospital and ‘ The Home for the Friendless,’ * * * and paid to them annually, share and share alike. Upon the death of said Elizabeth Jordan Whelan, the principal .remai/ni/ng of said fund 1 direct to be paid by my said executor and trustee to nvy heirs or to such other person :or persons ' or object as I may by a future will or a codicil to this will, dwect.” '</p> <p>The testator then authorizes his executor to sell and convey any portion of his real and personal property “ for the purpose of raising, investing and continuing the said fund of twenty-five thousand dollars as hereinbefore directed.” The 5th and last clause merely appoints ah executor and makes a bequest to him in addition to legal fees and commissions.</p> <p>The 1st clause of the codicil ratifies and confirms the will, except . as inconsistent therewith; the 2d appoints an additional executor with a bequest in addition to fees and commissions, and in the 3d the executors are requested to erect a headstone with suitable inscription at testator’s grave and to cause an inscription to be made on his monument, and are released from erecting the monument and headstone referred to in the will on account of his having already done so. By the 4th clause the testator gives a legacy of $5,000 to said Elizabeth Jordan Whelan. The 5th clause gives to the Buffalo Historical Society $1,000, and commits to said society “The custody of my family pictures, portraits and miniatures and family bibles, and my revolutionary trunk that belonged to my grandfather, and my watch, watch chain and seal and keys and any other jewelry, and other pictures, ornaments or articles of taste, curiosity or art, I may have ; none of which articles are to be sold or disposed of by my executors, but are to be given up by said society on the order of my executors to such of my relatives as would be entitled to them.” The 6th clause bequeaths “ to the heirs of Anna Maria Craig, deceased,” who is not related to him, “ the portrait ” of her which he has, and whatever may remain due and unpaid to him' under her will. By the 7th clause he gives, devises and bequeaths to a certain person designated and to “ the heirs ” of another person designated, and to their heirs and assigns, none of whom were related to him, a lot and building in the city of Buffalo and certain bank stock standing in his name in three specified banks.</p> <p>The 8th clause of the codicil is as follows : “ I direct my executors to retain all of my stock in the New York Life Insurance and Trust Company as a part (estimate at its par value) of the fund of twenty-five thousand dollars provided for in my will to provide an annuity for the benefit of Mrs. Elizabeth J. Whelan and for other purposes therein named during her life. The annual sum or annuity given by my said will to said Mrs. Elizabeth J. Whelan and directed to be paid from the income of said fund, is hereby increased from the sum of seven hundred dollars to the sum of one thousand dollars per year, free of all taxes and other deductions and payable quarterly at the times and in the manner in my said will directed. The surplus, if any, of the annual income of said fund after making the payments in the first and second subdivisions of the fourth clause of my will as modified by this clause of my codicil provided, instead of being paid as in the third subdivision of the fourth clause of my will provided, I direct to be paid during the lifetime of said Mrs. Elizabeth J. Whelan as follows: one-fourth to the Buffalo Homeopathic Hospital, one-fourth to the Home of the Friendless, situated in the city of Buffalo, one-fourth to the said Mrs. Elizabeth C. Rhoades,, and one-fourth to the heirs of the said James R. Craig; and after the decease of said Mrs. Whelan 1 direct my. executors to give and divide twenty-eight shares of the said stoclc, of the New York Life Insurance cmd Trust Company, the one-half thereof to the said Mrs. Elizabeth C. Rhoades or her heirs, and the other one-half thereof to . the heirs of the said James R. Craig ; cmd pay the remainder of said fund to my heirs. In case of the death of said Mrs. Whelan during the running of any term for which her share of the income from said fund so as aforesaid given her shall not have been paid to her, the proportionate share of her said income or annuity for said unexpired term up to the date of her decease, not already paid to her, shall be paid to her legal representatives.”</p> <p>•The 9th clause provides for an inscription'on the headstone which he has erected for the said Elizabeth J. Whelan, and the 10th forbids any interment in his cemetery lot except that of his deceased son, himself and Mrs. Elizabeth J. Whelan, or any other inscription upon the monument or headstones on said lot unless he should, otherwise direct by a written appointment. By the 11th clause he gives and devises his pew in the First Presbyterian Church to the church society and directs the executors to pay all taxes and assessments remaining unpaid thereon. The 12th clause makes a bequest to William Henry Crosby, to whom. he was not related, or, if he be not living, to the Rev. Dr. Howard Crosby, “ his heirs and assigns* the miniature or silhouette which I have of their mother ”' and a set of Shakespeare and the book rack therefor. The 13th clause expresses the wish that .his library of miscellaneous books “ except the law books ” shall not be sold, “ at least not at auction; ” but he authorizes his executors “to give and distribute them to and among my heirs, at their discretion.” The 14th and last clause authorizes the executors, in their discretion, to use his stock in the Niagara Falls International Bridge Company and in the Niagara Falls Suspension Bridge Company as a part of the trust fund of $25,000 thereinbefore provided for, and in lieu of any railroad bonds specified in the 4th clause of the will, but not in lieu of any other securities specified in said clause, nor in lieu of his stock in the New York Life Insurance and Trust Company, specified in the codicil.</p> <p>The referee made elaborate findings of fact enumerating all of testator’s heirs and the degree of their relationship to him, and decided that the first cousins only, they being testator’s next of kin, were entitled to share in said fund. The report of the referee was confirmed by the surrogate. The will was dated and executed on the 15th day of April, 1876, and the codicil thereto was made and dated on the 20th of July, 1880. Testator died on the 16th of April, 1887. The will was admitted to probate on the 27th day of July, 1888, and letters testamentary were thereupon issued to James II. Madison, the sole surviving executor named therein. Said Elizabeth J. Whelan died on the 16th day of August, 1896. • The other material facts are stated in the opinion.</p>

Appeal by the defendant, David J. Nugent, from a judgment of the County Court of Erie county in favor of the People, rendered on the 17th day of January, 1900, upon the verdict of a jury convicting him of the crime of assault in the second degree, and also from an order entered in said clerk’s office on the 15.th day of January, 1900, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 17th day of…

<p>Surety upon a bond given by an applicant for a liquor taz certificate—false representations contained in the application for the certificate do not render the surety liable — a valid certificate is a condition of liability.</p> <p>Where a bond given by an applicant upon procuring a liquor tax certificate is conditioned as follows, “If the said liquor tax certificate applied for is given unto the said principal and the said principal will not, while the business for which such liquor certificate is given shall be carried on, * * * violate any of the provisions of the Liquor Tax Law * * * then the above obligation," the fact that the certificate was procured by false representations made by the applicant as to material facts, and was, therefore, void, relieves the sureties from liability.</p> <p>Semble, that a valid certificate legally issued and given to the principal is a condition precedent to the liability of the sureties.</p>

Appeals by the plaintiff, Teresa Rice, and by the défendant Julius Friederich from so much of a judgment of the Supreme Court in favor of the defendant Marvin A. Culver, entered in the office of the clerk of the county of Monroe on the 15th day of January, 1900, upon the decision of the court rendered after a trial at the Monroe Special Term, as adjudges that the liens of the plaintiff and of the defendant Julius Friederich are not valid as against the defendant Marvin A.…

<p>Appeal by the defendant, Stella Maria Welch, from a judgment of the Supreme Court in favor of tlie plaintiff, entered in the office of the clerk of the county of Erie on the 6th day of November, 1899, upon the decision of the court after a trial at the Erie Special Term.</p>

<p>Appeal by the plaintiffs, Rose Beckrich and another, as executors, etc, of Nicholas Beckrich, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the. clerk of the county of Niagara on the 19th day of July, 1900, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 30th day of July, 1900, denying the plaintiffs’ motion for anew trial made upon the minutes.</p>

<p> The cost of stenographer’s minutes, used by a 'respondent in preparing amendments to a case on appeal, is taxable. </p> <p>The expense incurred by a respondent in obtaining a copy of the stenographer’s minutes of the trial for the purpose of preparing amendments to. a case and exceptions served by the appellant on an appeal to the Appellate Division (when the use of the appellant’s copy of such minutes cannot be obtained) is a necessary and proper disbursement under rule 32 of the General Buies of Practice, and is taxable under section 3253 of the Code of Civil Procedure.</p>

Motion by the respondent, Edward S. Hatch, for a reargument of the appeal by the plaintiff 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, 1899, upon the report of a referee. The Appellate Division reversed the judgment and ordered a new trial before another referee. The opinion upon such appeal is reported in volume 56, Appellate Division, page 149.

Appeal by the plaintiff, the Commercial Publishing Company,, 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 7th day of January, 1901, vacating an order for the examination of the defendant before trial.

Appeal by the defendant, John Lulham Pound, 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 August, 1900,-upon the report of a referee.

Appeal by the defendants, The Hew York and Harlem Railroad Company 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 Hew York on the 27th day of June, 1900, upon the decision of the court rendered after a trial at the Hew York Special Term. The court awarded $4,000 fee damages and $1,500 rental damages.

Appeal by the petitioner, George S. Chapman, 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 December, 1899, denying his motion for the appointment of a referee to hear and examine into his claim for reimbursement for expenses incurred by him, which application was made pursuant to chapter 700 of the Laws of 1899.

<p>Conviction not reversed for a refusal to strike out testimony called out by the defendant — instruments of forgery, marked for identification but mt put in evidence.</p> <p>The Appellate Division will not reverse a conviction because of the refusal of the court to strike out incompetent testimony on the motion of the defendant’s counsel, where it appears that such testimony was elicited, on cross-examinatian, by the defendant’s counsel after he had been advised by the court not to insist thereon, and that, after his attention? had been directed to its incompetency, he said he wished it in the case, and took no exception to the denial of his motion to strike it out.</p> <p>A conviction of the crime of forgery will not be reversed because two of the instruments alleged to have been forged were not technically offered in evidence, where it appears that they were proved and marked for identification, that witnesses on behalf of both parties testified with respect to their genuineness, and that they were shown to the jury.</p>

<p> Negligence—failure of proof tliat a railway company or a contactor with it was responsible for the existence of a hole in a city street. </p> <p>In an action brought against Thomas E. Crimmins and the Metropolitan Street Bailway Company to recover damages for personal injuries sustained by the plaintiff December 1, 1897, in consequence of her stepping into a hole in a public street four or five feet outside of the railway company’s tracks, it appeared that during the summer and fall of 1897 the railway company had been engaged in changing the motive power upon its road, and that it had let contracts for the work to different persons, the defendant Crimmins being a sub-contractor for the work in the locality in which the accident happened. No evidence was given showing the extent of the excavation required to complete the contract or the extent of the excavation actually made or who made it or whether the hole into which the plaintiff fell was within the area of that excavation. *</p> <p>Held, that the plaintiff had failed to prove that the condition of the street arose from any act of either defendant.</p>

Motion by the defendants, Charles Heidenheimer and Louis Heidenheimer, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiffs, rendered by direction of the court after a trial at the Hew York Trial Term on the 2d day of May, 1898.

Appeal by the defendant, Andrew McLean, 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 11th day of August, 1899, upon the decision- of the court rendered after a trial at the Hew York Trial Term before the court without a jury.

Appeal by the defendant, Caroline Faas, 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 21st day of Hovember, 1900, granting the plaintiff’s motion for leave to serve a supplemental complaint.

<p>Appeal by the defendants, Clayton E. Sweet and Clinton W. Sweet, as executors, etc., of James Orr, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office óf -the clerk of the county of New York on the 27th day of March-, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s, office on the 27th day of March) 1899, denying the, defendants’ motion for a new trial made upon the minutes.</p>