Volume 57 — New York Supplement

<p>1. Leases—Provision for'Renewal—Notice.</p> <p>A tenant must give notice or request a renewal of a lease to avail himself of a provision wherein the landlord “agrees to renew” at its expiration.</p> <p>3. Appeal—Sufficiency op* Evidence.</p> <p>A judgment on conflicting evidence, in summary proceedings for the removal of a tenant, will be sustained, if it does not appear that injustice has been done.</p>

Action by A. & S. Henry & Co., Limited, against James Talcott, for price of goods sold and delivered.

<p>Appeal from municipal court, borough of Brooklyn, Second district.</p> <p>Action by Charles W. Warner against the Consolidated Ice Company. From a judgment for plaintiff, defendant appeals.</p>

Certiorari, on the relation of Thomas J. Gunson, to review the action of Theodore Roosevelt and others, as police commissioners, in dismissing relator from the police force of the city of Hew York.

<p>Appeal from special term, New York county.</p> <p>Action by Elise Otto against Catherine T. McCaffrey and others. From a judgment for plaintiff, said McCaffrey and other defendants appeal.</p>

Action by Peter H. Daly against the Central Railroad Company of New Jersey. From a judgment entered on a verdict directed for defendant, and from an order denying a motion for a new trial made on the minutes, plaintiff appeals.

Action by the village of Port Henry against George S. Kidder. From an order confirming award of compensation made by commissioners in condemnation proceedings, plaintiff appeals.

<p>1. Injun ction—Infringement of Trade Secrets—Decree.</p> <p>In a suit to restrain an ex-employé from using trade secrets learned during the employment, a decree restraining him from using “similar rolls,” “similar collapsable reels,” and “similar cutting machines” is too indefinite, and should be limited to the use of them in the particular way in which they had been secretly taught.</p> <p>2. Same—Judgment on Appeal.</p> <p>Where an injunction suit has been twice tried on the same evidence, it will not be sent back for error in the form of the decree, but the decree will be modified by the appellate court.</p>

<p>New Trial.</p> <p>New trial moved for on the ground that the verdict was contrary to the law, and against the weight of evidence, “and on all the grounds specified by Code Civ. Proc. § 999,” is improperly granted, the verdict being supported by the evidence, and no complaint being made of the charge or any error in the conduct of the trial.</p>

Action by Sophie Basting, an infant, by Sophie Loose, her guardian ad litem, against the Brooklyn Heights Railroad Company. From a judgment on a verdict of $6,500 for plaintiff, and from an order denying a new trial, defendant appeals.

Action by Frederika Egerer against the New York Central & Hudson River Railroad Company. On motion for a new trial on exceptions ordered to be heard at the general term in the first instance, after trial and direction of a verdict for defendant. Exceptions sustained.

<p>1. Limitation of Actions—Part Payment.</p> <p>In an action for an accounting, it appeared that defendant loaned plaintiff §50 in 1889, and that defendant worked for plaintiff for a year from such time; and certain payments were shown after that time. The bill of items furnished by defendant to plaintiff set forth the loan, and the balance due on wages, with interest, in 1892, as two separate items, and stated that the loan matured by demand for its payment made in 1893. The other evidence showed that defendant regarded the loan as a separate transaction. Held, that the payments, being made on the claim for labor, did not interrupt the running of limitations against the loan.</p> <p>3. Same.</p> <p>An action to recover a loan payable on demand must be brought within six years from the time of the loan.</p> <p>3. Accounting—Evidence.</p> <p>In an action for an accounting, the introduction in evidence by plaintiff of an account, kept by defendant, containing a certain charge against plaintiff, is a concession of the correctness of such charge.</p> <p>4. Costs.</p> <p>Where the only questions litigated before a referee arose out of the counterclaim set up by defendant, and the decision was adverse to defendant on such question, the referee properly allowed costs to plaintiff.</p> <p>Follett, J., dissenting.</p>

Suit Tby the German-American Bank of Rochester against Charles J. Russell, Helen W. Bussell, and others. Defendants appeal from two orders,—one of July 21, 1898, denying a motion for a resale of premises sold on the 21st of June, except upon the defendants’ complying with the terms and conditions mentioned in the order; and the other an order made August 8,1898, which denied a motion to resettle the last-mentioned order.

Action by Edward H. Costigan against the Metropolitan Life Insurance Company and others. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Action by Patrick Whalen, as administrator of the estate of Bridget Whalen, deceased, against the New York Central & Hudson River Railroad Company, as lessee of the New York, West Shore & Buffalo Railroad Company. From a judgment dismissing' plaintiff’s complaint, he appeals.

<p>Appeal from Monroe county court.</p> <p>Action by John J. Grauwiller against Joseph Z. Culver. Verdict for plaintiff for $410.08, and from a judgment entered thereon defendant appeals.</p>

Action by Ellis E. Williams against the Delaware, Lackawanna & Western Railroad Company. From a judgment in favor of plaintiff, and an order denying a motion for a new trial, defendant appeals. Plaintiff seeks to recover damages sustained by him, while in the employ of the defendant as brakeman, on the 8th of July, 1882, while riding on top of a freight car in the village of Norwich.

<p>Corporations—Sales op Stock—Fraud.</p> <p>Where one is induced by the fraudulent representations of certain of the directors and stockholders of a .corporation to purchase stock, some of which is owned by each of the directors and stockholders, who receive their share of the price, the representations of the individuals are binding on all, and each becomes responsible therefor.</p>

<p>1. Municipal Corporations—Streets—Proceedings to Open—Assessment</p> <p>—Failure to Include Property Benefited—Effect. •</p> <p>At the time Buffalo' assessors assessed property for the extension.of an avenue to terminate at a street, proceedings had been taken to, extend it beyond the street, and the city had accepted land dedicated for such extension, and had contracted for the construction of a bridge along the route thereof. Held, that City Charter, § 146, required the assessors to have assessed all lands benefited by the improvement, including the proposed extension, and for their failure to do so the assessment was invalid.</p> <p>2. Certiorari—Decision—Grounds—Issues of Fact and Law—Statement.</p> <p>On certiorari to vacate an assessment for the opening of an avenue, the court set aside the assessment, and stated in its decision that property other than that assessed was benefited, and should have been included in the assessment, and that one of relator’s grounds for vacating the assessment was the omission of the assessors to include property so benefited.’ Seld, that the decision stated the facts found and the conclusion of law, within Code Civ. Proc. § 1022.</p>

<p>Decree—Stay</p> <p>An order in an action staying a final decree in another action is practically an injunction, and improper.</p>

<p>Appeal from special term.</p> <p>Action by Richard D. Harris against George Elliott and others. There was a judgment for defendants, and plaintiff appeals.</p>

Action by Kate Gordon, an infant, by Mathilda Gordon, her guardian ad litem, against the Second Avenue Railroad Company. From an order setting aside a verdict for plaintiff and granting a new trial, plaintiff appeals.

<p>Appeal from trial term, New York county.</p> <p>Action by Henry H. White against John F. Daniels. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal—Relief against Stipulations.</p> <p>One of several defendants appealing from an order permitting plaintiff to amend, through oversight, failed to have his affidavits included in the printed papers on appeal; and on motion to dismiss the appeal, made after-the expiry of time to serve the papers, his attorney, honestly believing-that a decision for his co-appellants would include his client, stipulated to withdraw the appeal. In this he was mistaken. There was a reversal as to the co-appellants, hut his client was required to meet the complaint as amended, which sought to recover about $1,000,000 on 110 causes of action. Held, that an order relieving him from the stipulation, and placing him on the same footing as the other defendants, was not error.</p>

Action by Charles W. Weston against Louis A. Goldstein and another. From an order restraining defendants, pendente lite, from voting on or disposing of their stock in the corporation (56 N. Y. Supp. 755), defendants appeal.

<p>Sales—Security—Payment—-Jury.</p> <p>Under a sale of saloon fixtures and good will, the buyer was to pay a certain sum by a date given, and receive an assignment of the license. In an action for damages for failure to assign the license, whereby the buyer was closed out by the police, plaintiff testified that he gave defendant a bank book and order for the sum as security therefor (the bank requiring 90 days’ notice of withdrawals); that the order and book were accepted in absolute payment, and with the understanding that the license would be assigned; and that he made repeated efforts to obtain the license, and defendant repeated promises to assign it. Held, that the question whether the book and order were received absolutely, or as security, was for the jury.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by John Hart against Denman Thompson and another. From a judgment for defendants on the report of a referee, plaintiff appeals.</p>

<p>1. Evidence—Objections—Specificness.</p> <p>An objection to evidence as incompetent and immaterial is not sufficiently specific to reach the objection that the question involved a conclusion, and that the evidence was not the best evidence.</p> <p>2. Same—Appeal.</p> <p>An objection to evidence must be specific, to be available on appeal, unless the objection is of such a character that it could not have been obviated in the trial court. '</p>

<p>Action by Frank H. Short against Aaron B. Scutt. On motion to set aside an order in supplementary proceedings appointing a referee.</p>

<p>■ • Action by James D. Putnam against Margaret McAllister for foreclosure. Heard on motion for the appointment of a receiver.</p>

<p>'Action by one Cahn, as receiver, against one Sugenheimer. Defendant moves for security for costs.</p>

<p>Appeal prom Short Decision—Necessity op Exceptions.</p> <p>Since Code Civ. Proc. § 1022, requires a general exception to a short decision, not stating separately the facts found, rendered under that section, such a judgment, to which no exception was taken, must be affirmed.</p>

Action by Mary Mulligan against the Third Avenue Railroad Com-.$>any. From a judgment for plaintiff, and an order denying a new «trial, defendant appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Paniel Wetterau against the Metropolitan Elevated. Railway Company and another. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>1. Illegal Taxes.</p> <p>A tax levied by a village to raise money to assist the county in repairing its buildings located in the village is invalid.</p> <p>2. Same—Recovery by Taxpayer—Form op Action.</p> <p>One who has paid an invalid village tax may recover the amount paid in an action against the village for money had and received.</p>

<p>Action by William E. Deane against the Maltby-Henley Company. A judgment for plaintiff in the municipal court was filed with the county clerk, and defendant moves to correct the same by reducing the amount of fees allowed for a deposition.</p>

<p>Attachment proceedings by the Corn Exchange Bank against Marckwald. Heard on motion by a junior attaching creditor to dissolve the attachment.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by Mary Casso against the Nassau Electric Railroad Company. From a judgment entered on a verdict for plaintiff and from an order denying a new trial, defendant appeals.</p>

<p>Appeal—Be view—V erdict.</p> <p>Where the evidence is conflicting, the court will not disturb the verdict.</p>

<p>Appeal from municipal court.</p> <p>Action by Bobert B. Corbett against Augustus Clason. From a judgment for plaintiff, defendant appeals.</p>

<p>Discovert—Costs.</p> <p>It is error, in granting defendant an order of discovery, to tax costs absolutely on plaintiff, since they should abide the event of the action.</p>

Ejectment by Esther A. Hulse and others against William T. Bacon and others. From a judgment of the special term dismissing plaintiffs’ complaint on the merits, plaintiffs appeal.

Action by. Charles Menken against William C. Baker, as sheriff' of Queens .county. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.

Action by James Quinn against the Brooklyn City Railroad Company for personal injuries. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

Certiorari by William F. Nisbet and Martha A. Aborn against Caleb F. Underhill and others, assessors of the city of Yonkers. There was a judgment for relators, and respondents appeal.

<p>Appeal—Findings—Review.</p> <p>Findings of fact by a referee, where made on contradictory evidence, will not be disturbed.</p>

<p>Appeal from city court of Yonkers.</p> <p>Action by the Citizens’ National Bank of the City of Yonkers against Marie E. Lilienthal. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Sales—Warranty—Burden of Proof.</p> <p>In an action for breach of warranty on a sale of goods, the burden oti proof is on plaintiff.</p> <p>3. Same—Evidence—Contemporaneous Agreement.</p> <p>In an action for a breach of warranty of goods, sold under a contraer consisting of a correspondence between the parties, a contract between*, them for the sale of similar goods, referring to previous dealings between the parties as to the quality of goods to be thereafter delivered, is competent as showing the meaning of the descriptive terms used in the correspondence constituting the contract in suit.</p>

Action by Aaron Ballin, assignee for benefit of creditors of James W. Gough and another, against Carl Vietor and others. From a judgment on a verdict for defendants, plaintiff appeals.

Action by the Emigrant Mission Committee of the German Evangelical Lutheran Synod of Missouri, Ohio, and other states, at the; city of New York, against the Brooklyn Elevated Railroad Company, From a judgment for plaintiff, defendant appeals. From an order refusing to vacate a stay of proceedings on appeal, plaintiff appeal©.'

<p>Appeal from trial term, New York county.</p> <p>Action by Aimee Saunders against the Agricultural Insurance Company of Watertown, N. Y., impleaded with Sophie Courtois, on a fire policy issued by defendant company to defendant Courtois, payable to plaintiff mortgagee as her interest should appear. The policy referred to in the opinion as the “Greenwich Policy” was one issued by the Greenwich Insurance Company, covering certain of the farm buildings involved in this case, and which expired just before issuance of the policy sued on. From a judgment on a verdict for plaintiff, and from an order denying a new trial, defendant appeals. Transferred 'from First to Second department.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by Francis T. Walton against Robert A. Cheseborough. From a judgment on verdict for plaintiff, and from an order denying a new trial, defendant appeals.</p>

<p>Action by Francis T. Walton against Patrick McMorrow. From a judgment on a verdict for plaintiff, and from an order denying a new trial, defendant appeals.</p>

Certiorari by the people, on relation of Pierre A. Siegelstein, against Thomas F. Woods, president, and others, to review the action of the board of aldermen of the city of New York in an election contest.

<p>Carriers—Injuries in Alighting from a Car—Witness—Impeachment— Verdict.</p> <p>Plaintiff, suing for injuries caused by alighting from a street car, alone testified to the accident. In response to a motion for a bill of particulars, he denied knowing the number of the car, yet on the trial gave it to his lawyer. He testified that two men who picked him up gave him their addresses, yet one had known him before, and testified he did not see the accident, and the other was not produced. Plaintiff testified he was 14 months in bed as a result of the injury, and had done no work. His physicians testified he was in bed 2 or 3 months, and during that time would go out, and visited them at their offices. It was proved plaintiff worked as a night watchman at $7 a week for 11 months between the accident and the trial. He testified he spent $125 for medicines, but could not give the name of a single shop, where he spent any part of the money. Held, that the witness was thoroughly impeached, and a verdict based on his testimony alone should be set aside.</p>

<p>Appeal from trial term, Queens county.</p> <p>Action by Dana A. Patten against the Climax Quick-Tanning Company and the Canaigre Construction Company. There was a judgment for defendants, and plaintiff appeals.</p>

<p>Appeal—Review—Verdict.</p> <p>An order denying a new trial, asked on the ground that the verdict was against the weight of the evidence, will not be reversed; though there was a serious conflict in the evidence, unless it is clear that the verdict was the result of passion, prejudice, corruption, or mistake.</p> <p>Patterson, J., dissenting.</p>

<p>1. Construction of Lease—Bond.</p> <p>Tie rent a bank was to pay was to depend on the deposits made by the landlord. Subsequently, on condition of the landlord keeping a specified deposit, the bank agreed to pay a certain rental for the remaining four years of the lease; and for two years did so, when it went into voluntary liquidation, thus preventing the landlord from continuing his deposit. Held, that the landlord was entitled to same rate of compensation during the balance of the term.</p> <p>2. Same—Defense—Pleading.</p> <p>The bank could not interpose the defense that the landlord withdrew his deposit below the agreed sum before the liquidation, without pleading it.</p>

<p>1. Witnessest—Attorneys—Privileged Communications.</p> <p>Proof of the signature of a person, by one who was his attorney in the proceedings in which the instrument subscribed was used, cannot be excluded on the ground of privileged communication.</p> <p>2. Change of Venue—Affidavits—Sufficiency.</p> <p>An affidavit, in an application for a change of venue, which states that, affiant is informed by his attorney that certain facts can be shown by certain witnesses, must disclose the source or nature of the attorney’s knowledge.</p> <p>3. Same.</p> <p>An affidavit, in an application for a change of venue, which states that certain witnesses will testify to certain statements, must disclose the materiality of such evidence.</p> <p>4 Same.</p> <p>" An affidavit stating that certain, evidence is accessible in the venue laid, which is equally accessible in the venue to which it is sought to transfer the action, or that certain evidence is accessible in the venue laid which does not tend to establish any fact in controversy, does not state any valid objection to the change.</p> <p>5. Same.</p> <p>An affidavit, in an application for a change of venue, which states that certain facts can-be proven by certain witnesses, "must show that affiant has information on which to base his affidavit.</p> <p>6. Same—Place of Trial.</p> <p>An action is properly triable in the county where all the proceedings concerning the matter in suit were had, and in which all the material witnesses reside.</p>

Action by Howard Lockwood against Max Sello. There was a- judgment for plaintiff, and from an order denying a motion, to vacate an. order for the examination of third persons in supplementary proceedings defendant appeals.

<p>Appeal from trial term.</p> <p>Action by Marcus Sergey Freide against Achille Weissenthanner on a contract of employment. From a judgment for defendant and an order denying a motion for new trial, plaintiff appeals. Reversed. For former opinion, see 56 N. Y. Supp. 399.</p>

<p>Proceedings in Aid op Execution—Transfer.</p> <p>Proceedings for the examination of a judgment debtor, in aid of execution, residing in that part of Westchester county which was annexed to New York City under Laws 1895, c. 934, will be transferred to the Second department, though the order for the examination was made by a justice of the supreme court, who failed to make it returnable to the Second department.</p>

<p>Justice of the Peace—Finding of Fact—Conclusivenf.ss.</p> <p>The rule that the supreme court cannot reverse the judgment of a justice of the peace on a disputed question of fact does not apply where defendant swears positively to a payment, and plaintiff only states that he cannot swear whether defendant paid him or not The dispute must be real and substantial to have the rule apply.</p>

<p>Action by one Butler against one Frazer and others to foreclose a mortgage. On motion for the appointment of a receiver.</p>

Action by Walter G-. Hennessy, as receiver, against Henry S. Tutkill, to recover rents. The money was paid into court, and Arthur Sweeney, as receiver, was interpleaded as defendant. Judgment for defendant.

Action by Joseph Edall against the New England Railroad Company. From a judgment for plaintiff and an order denying a motion for new trial, defendant appeals.

<p>Judicial settlement of the accounts of John F. Brayer, as the committee of Joshua E. Lovecraft, an incompetent person, now deceased.</p>

<p>Pleading—Amendment—Laches.</p> <p>On a trial 18 months after issue joined,. defendant offered evidence, which was excluded on the ground that there was no defense in the answer under which it was admissible. A juror was withdrawn, and subsequently defendant, at special term, moved for leave to amend the answer, on affidavit stating only what had occurred on the trial. Plaintiff’s affidavit stated that after service of the answer a request had been made by defendant to serve an amended answer, which was refused. Held, that leave to amend was properly refused.</p>

Action by Emily A. Bliss and others against Byram L. Winters and others. Prom an order striking out parts of the answer of certain defendants (56 N. Y. Supp. 362), they appeal.

<p>Appeal from special term, New York county.</p> <p>In the matter of the assignment of D. Wegman’s Sons, M. Angelo Elias, assignee, was adjudged to be in contempt for failing to obey an order to produce a ledger, and he appeals.</p>

<p>Carriers—Evidence—Negligence—J ury.</p> <p>Plaintiff and one witness testified that plaintiff was thrown to the ground by a street car starting with a jerk after it had stopped to let her off. The conductor and gripman testified that she stepped down facing the opposite way before the car stopped, and that they called -to her to wait till the car stopped. Two other witnesses testified that -she fell or stepped off before it came to a full stop, and a third that she -stepped off just as the car was coming to a standstill. Meld, that the •question of the company’s negligence was for the jury.</p> <p>This action was brought to recover damages for injuries received by plain-l tiff through the alleged negligence of the defendant’s servants while she was ■■■ a passenger on defendant’s car. On the evening of July 10, 1896, at about * 9 o’clock, the plaintiff boarded a Third avenue, uptown, open car at 35th -street, and took the seqond seat from the front. Between 112th and 113th - streets she signaled the conductor to stop at the next crossing, and, in alighting, she fell or was thrown to the ground and against one of the elevated rail.-road posts which ivas about 20 feet north of the crossing, and was so severely injured that she was taken to the hospital, where she remained till September "15, 1896, when she was discharged uncured. The plaintiff testified: “The -•car came to a full stop, and I started to get off. The car came to a full stop : at 113th street, on the uptown side. * * * I got off and put my foot • down on the step. I could not tell you anything-more after that until some -.gentlemen lifted me up off the street;” that she did not know what happened ¡-after she put her foot on the step; that she struck the elevated post and be- - came unconscious when she was knocked up against the abutment, but not i-till she struck the abutment. She was able to say, however, that after the 'time she put her foot on the step, and before she struck the abutment, the ¡car moved. Edwin Schott testified for the plaintiff: That he was on the same <car, seated on the third seat from the front; that between 112th and 113th -streets the plaintiff signaled the conductor to stop, and at 113th street the car stopped; that “Mrs. Bennett arose out of her seat and walked to the platform. She arose from her seat when the car stopped, when it came to the ¡crossing. I think I watched her getting off the car. She put her foot down on the step of the car, and in one hand she had a satchel, which she held around the rod, the brass rod; as she put the other foot on the street, the caiga ve a jerk, and she fell in the street against the post,—one of those elevated pillars. I got off the car and assisted the lady to the drug store, which was right on the corner,. I stayed in the drug store until the policeman came.” On cross-examination this witness said that he had been employed by the Third Avenue road, and was discharged in 1894 or 1895'; that no reason was given why he was discharged; that he had no bad feeling towards the company; that he could not tell exactly how long he was out of employment, at what he was next employed, or how long he remained employed; that he had been in process-serving business and in collections, and had done considerable detective work. The testimony of physicians as to the serious nature of the plaintiff’s injuries closed the plaintiff’s case. The defendant’s evidence consisted of the testimony of the conductor and the gripman, both of whom had resigned from the defendant’s employ, and of three passengers on the car. The conductor testified: That he was signaled to stop, and pulled the bell rope; that the plaintiff, as the car was coming to a stop, stepped down on the running board that runs along the car and faced south; that he jumped down from the back platform and ran along the running board, and called to her to wait till the car had stopped, as he could see by her actions that she wanted to step off; that before he reached her “she stepped off the car. The car had not stopped yet. She landed on her feet, and then lost her balance and fell back and struck the elevated pillar. I assisted her to her feet and asked her what she did that for. She said, ‘Why didn’t you stop?’ I said, ‘You should have waited till the car stopped.’ Then I got her name and address, and she walked away.” The conductor further testified that he was the only one that lifted her up; that Mr. Schott did not do so; that the post was about four feet from her when she fell, and she fell back and struck her head against it; that the car stopped within two feet after she got off; that she did not seem to be seriously hurt. The gripman testified that he received the signal from the conductor to stop, and that his attention was called to the woman trying to get off, and he called to her to wait a moment till the car-stopped, but that she would not wait; that she stepped off the car and was facing south, and the car was then going at very slow speed; that he was about to stop at the crossing; that he brought up the car always so as to just clear the crossing; that the car was thirty-four feet long; that the caréame to a stop after the plaintiff stepped off within about two or three feet; that the conductor had also called to her to wait till the car stopped. Thomas Leddy, a passenger, testified that the plaintiff signaled the conductor to stop the ear; that the conductor pulled the bell, and before the car entirely stopped she jumped off; that the conductor, as she jumped off, was going up the side step to the front of the car, and called to her to stop; that she was facing south when she jumped off; and that the car came to a full stop afterwards within about two or three feet. Johanna Zwilling, who was also on the car, said that the plaintiff fell off because she did not wait for- the car to stop; that it was about to stop, but it did not stop. Louis A. Kraus testified: That he saw the plaintiff signal, and that the car was coming to a full stop when she arose: that “she grabbed the stanchion at the side of the car there and was about to step off; then I heard somebody holler, ‘Wait till the car stops.’ I was looldng and I saw the gripman with the grip, and I knew the power was off. I heard the brake, * * * the woman stepped down, * * * the car was about coming to a standstill, back she went and struck an elevated pillar. I got up. * * * The conductor was standing in front of the woman, asking her what her name was. I am positive he was talking to her.” In rebuttal, the plaintiff denied that the conductor called to her not to get off the ear, and testified that she saw the gripman turn around, but not when the car stopped; that he did not tell her to wait till the car-stopped; that the car came to a full stop before she got off. Motion was made to dismiss the complaint on the ground that no negligence was shown on the part of. the defendant, and furthermore for a direction of a verdict for the defendant on the ground that the evidence preponderates in defendant’s favor. The motion was denied, and a verdict of $1,500 was returned for the plaintiff. Motion was then made for a new trial, and was denied. From the judgment entered in accordance with the verdict, and from the order denying the motion for a new trial, the defendant brings this appeal.</p>

Action by George M. Hard' against Emmet Densmore and others. From a judgment for plaintiff and an order denying a new trial, defendants appeal.

Action by Hugo Boessneck and others against Charles Edelson and another. There was a judgment for plaintiffs, and defendants appeal.

<p>Appeal from, special term, New York county.</p> <p>Certiorari to review an assessment of property for taxation, issued at instance of Mary A. Fitzgerald against Thomas L. Feitner and others, as commissioners of taxes and assessments of the-city of New York. From an order denying defendants’ motion to» modify the writ, they appeal.</p>

Action by Alfred W. Booth, Edward H. Booth, and Allan H. Church, as partners, against Morris Horwitz. From an order of the special term vacating a warrant of attachment, plaintiffs appeal.

<p>Appeal from special term, New York county.</p> <p>Action by Albert J. Morgan against "James Gordon Bennett. From an order striking portions of the complaint, plaintiff appeals.</p>

.Appeal from trial term, New York county. ,Action by Emelie F. Antony against Charles F. Dickel and 'Others. From a judgment in favor of plaintiff, and from an order ■denying a motion for a new trial, certain defendants appeal.

Action by Donald McLean, receiver of the F. E. McAllister Company, against the F. E. McAllister Company, John S. Garrison, and others. From an order denying a motion by defendant Garri■son for an order modifying an injunction in a judgment so far as to allow him to proceed with an appeal taken in a suit by one Walter against the F. E. McAllister Company and others from so much of the judgment therein as appointed plaintiff permanent receiver of the company, defendants appeal.

Action by John F. Baxter against Michael A. Corrigan and another. From an order denying motion for further bill of particulars, defendants appeal.

<p>Street Railways—Injury to Child in Street.</p> <p>Refusal to instruct that, if defendant’s car was running' at a moderate and proper rate of speed, and at the time deceased child left the curb to cross the tracks the car was so close to where deceased was struck that it was impossible for the car, under any circumstances, to be stopped before running over deceased, verdict must be for defendant, is error; the court not having elsewhere instructed as to what would be the duty of the jury, or the rights of the parties, on such a state of facts.</p>

<p>Public Nuisance—Remedy—Suit by Private Persons.</p> <p>The construction of a street railway in a public street under a void charter constitutes a public nuisance which will not be restrained, even before the commencement of the work, at the private suit of a taxpayer who has suffered no special injury.</p>

<p>Appeal from surrogate’s court, Richmond county.</p> <p>-Final settlement of the accounts of Edward Sprague as surviving administrator of the estate of David H. Journeay, deceased. From a decree settling the accounts, Mary L'. Engelbrecht, contestant, .appeals.</p>

<p>Action by George A. Bagley against the Mutual Reserve Fund Life Association.</p>

<p>Action by Frederick E. Barnes against Edith M. Robinson. H. B. ICinghorn, for appellant. A. N. Hand, for respondent.</p>

<p>Action by Seelye Benedict and others against J. Lawrence Davis and others. From an order vacating an injunction, plaintiff appeals. Affirmed. William G. Choate, for appellants. Hector M. Hatchings, for respondents.</p>

<p>Action by Anna K. Brummer against the Metropolitan Elevated Railroad Company and another for injunction and damages. From a judgment for plaintiff, defendants appeal. Reversed. S. Babcock, for appellants. W. R. Page, for respondent.</p>

<p>Action by Tyler</p> <p>Brigham against Eugene Zaiss. J. C. Myers, for appellant. A. Epstein, for respondent.</p>

<p>Action hy John J. Canavan, an infant, against Hugh O’Neill.</p>

<p>Action by Guiseppe Cinque against the Brooklyn Wharf & Warehouse Company.</p>

<p>Action by Mary Curry against Gershom Wiborn and John W. Wiborn. From a judgment for plaintiff entered on a verdict, and from an order denying a motion for a new trial made on the minutes, defendants appeal. Walter S. Hubbell, for appellants. P. Chamberlain, for respondent".</p>

<p>Action by the fire department of the city of New York against George A. Stanton. W. B. Ellison, for appellant. W. L. Findley, for respondent.</p>

<p>Action by Benjamin Garvey and others against the Union Trust Company of New York, executor, etc., and others, and Helena Blanche Garvey and others.</p>

<p>Action by Mary E. Hinman against John Devlin.</p>

<p>Action by Louis Hoffman against the Metropolitan Street-Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed. Henry A. Robinson, for appellant. Joseph I. Green, for respondent.</p>

Action by Elise M. Kiralfy against Bolossy Kiralfy. From an order awarding alimony and counsel fees, defendant appealed. Affirmed. Julius Lehmann, for appellant. A. H. Hummel, for respondent.

<p>Action by John L. Lawrence against George W. Smith and others, constituting the board of supervisors of the county of Queens, and the Suburban Electric Light Company of Valley Stream and another.</p>

<p>Action by William J. McLoughlin against the Long Island Railroad Company.</p>

<p>Action by Julius Marcus against Joseph Hollander, as executor of A. Pfirrman & Go. From a judgment for plaintiff, defendant appeals. Affirmed. James Ridgway, for appellant. Wise & Lichtenstein, for respondent.</p>

<p>Action by Elizabeth L. Nelson against the Lehigh Valley Railroad Company.</p>

<p>Action by the New York Central & Hudson River Railroad Company against the state of New York.</p>

<p>Action tiy the New York Mercantile Loan Association against the National Sewing-Machine Company. From a judgment for plaintiff, defendant appeals. Reversed. ICennesen, Crain & Ailing, for appellant. McCrea, Somerville & Taylor, for respondent.</p>

<p>Action between Mary E. Paling and James H. Perkins and another. From an order denying a motion to change the place of trial, the former appeals. Reversed. Thomas H. Lee, for appellant. T. S. Corey, for respondents.</p>

<p>Proceeding by the people, on the relation of John J. Albright, against the city of Buffalo.</p>

<p>Proceeding by the people of the state of New York, on the relation of Charles Earwicker, against Michael J. Dillon and others, constituting the town board of the town of New Rochelle.</p>

<p>Proceedings by the people, on the relation of Bertha E. De Land, against George Weller and others.</p>

<p>Action by John F. Porter against the Metropolitan Street-Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. Henry A. Robinson, for appellant. Hart & Hopkins, for respondent.</p>

<p>Action by Michael L. Rodkinson against Joseph Gantz. R. Marks, for appellant. 0. A. Brodek, for respondent.</p>

Action by William J. Renshaw against the city of New- York to recover for additional compensation as a member of the uniformed force of the fire department. From a judgment dismissing the complaint, plaintiff appeals. Affirmed. James M. Hunt, for appellant. Terence Farley, for respondent.

<p>Action by Francis B. Robert against Sarah H. Powell.</p>

<p>Action by Julius Scharmann against Frederick Schoell and others.</p>

<p>Action by Belle C. Schenck against William D. Barnes and Henry W. Taft, 'as trustees.</p>

<p>Action by John Schreyer against Thorndike Saunders impleaded with others.</p>

<p>Action by Henry L. Toplitz against Adolph Mendel. There was a judgment for plaintiff, and defendant appeals. Affirmed. Louis Levy, for appellant. Joel J. Squier, for respondent.</p>

<p>In the matter of the investigation of the financial affairs of the town of Hemp-stead.</p>

<p>Action by Charles Twist, as administrator, against the city of Rochester, impleaded, etc.</p>

Application by Mary J. Westerfield and another for an order directing the payment of certain moneys by William Shillaber, Jr., as trustee under the will of Jason Rogers, deceased.

<p>Action by Caroline Weil against the mayor, etc., of the city of New York. L. Leo, for appellant. T. Connoly,' ■for respondent.</p>

<p>Action by Cecilia J. Zimmer, an infant, against the Third Avenue Railroad Company and the Metropolitan Street-Railway Company.</p>