Volume 58 — New York Appellate Division Reports

<p>Appeal by James Regan, as executor, etc.,- of John Feehan, deceased, from an order of the Surrogate’s Court of the county of New York, entered in the office of said surrogate on the 29th day of December, 1900, setting aside a certain satisfaction piece of a decree of distribution, and certain releases given by the distributees to an executor, on the ground that such releases and satisfaction piece were procured by the executor and given by the distributees in fraud of the rights of the attorneys of the .latter in the proceeding in which the decree was entered.</p> <p>The order appealed from also authorized the enforcement of the decree to the extent of the claim of the attorneys.</p> <p>The questions presented arise upon facts of which a summary is. as follows: Proceedings against James Regan* executor of and trustee under the last will and testament of John Feehan, deceased, were taken by the children (legatees) of the testator to compel him to account as such executor and trustee. He had for a long time neglected or failed to account, and the children of the testator could obtain no information from him concerning the estate. They employed the firm of Adams & Hyde, attorneys at law, to institute the proceeding in the Surrogate’s Court to compel the accounting. It does not appear that any specific agreement for compensation for services to be rendered was made with these attorneys, but there was, in any event, an implied promise to pay what those services would be worth. There is in the record a schedule annexed to a petition, hereafter to be referred to, in which it is stated that two of the children of the testator employed the attorneys named for themselves and the other children, legatees under their father’s will, and they stated that being without means they could not pay a retainer, but would pay a liberal fee out of the money which the executor should pay to them if it was found that he had assets in his hands for distribution. Under their employment the attorneys began the proceeding in the Surrogate’s Court. They compelled the executor to present his account and file an inventory of the estate. After a contest the proceeding terminated (in December, 1898) in a decree made by the surrogate of the county of Hew York,, in which it was found that the cash in the hands of the executor and trustee for distribution on January 31, 1898, was the net sum of $7,610.35, and the executor was required forthwith to pay to five of' the testator’s children named therein each the sum of $1,522.07, and also to pay to them jointly the sum of $590.60 for costs and disbursements. That decree was entered on the 10th day of December, 1898. In the proceeding, which resulted in the entry of that decree, the attorneys for the Feehan children rendered meritorious and valuable services and it fully appears that the favorable result of the accounting to these children was due altogether to the efforts of the attorneys they employed. After the entry of the decree, and on or about the 10th of January, 1899, a receipt for costs awarded by the decree was given to the executor, and a release and discharge from all' claims therefor was executed under seal by each of the five children, was acknowledged before a notary public and delivered to the executor, and on the same day each of the five children executed under his or her hand and seal an instrument acknowledging the receipt from the executor, by each, of the sum of $1,522.07, paid in accordance with the direction of the decree and each of the instruments contained the following clause: “ I hereby expressly acknowledge the receipt of the said sum from the said James Regan, executor and trustee as aforesaid, and forever release and discharge him from all claims therefor.” On the 11th of January, 1899, the clerk of the Surrogate’s Court made a certificate showing the satisfaction of the decree of December 10, 1898, and that certificate was filed in the New York county clerk’s office on the same day, thus making a record of the complete satisfaction of all the provisions of the decree entered upon the final accounting. The receipts, releases or satisfaction pieces, and the certificate of the clerk of the Surrogate’s Oourt were all made, executed and filed without the knowledge of the attorneys for the Feehan children, and those attorneys claim that the instruments were procured by the executor upon a compromise and settlement made with the children for a sum less than that required to be paid them by the decree; that the settlement was made collusively and in fraud of the rights of such attorneys; that it was made by the executor after notice served upon him by the attorneys that they held an assignment of the right, title and interest of the five children in and to the assets of the estate of their father, and that the attorneys also had a lien on the distributive share of each of such children for compensation. That notice was given in writing on the 4th of November, 1898. It does not appear that there was any actual assignment of the shares made, but that the notice of the claim of lien was given is abundantly proven. The attorneys did not discover until the 12th of January, 1899, that the settlement and compromise above mentioned had been made by the executor with the Feehan children. Thereafter the attorneys brought an action in the City Court against the Feehan children to recover the value of the services rendered them in the accounting proceeding in the Surrogate’s Court, and that action resulted in a judgment in favor of the plaintiffs therein for the sum of $2,083,24, upon which an execution was issued and returned unsatisfied. There-, after, and in June, 1899, the attorneys applied by petition to the surrogate of the county of Rew York setting forth the material facts and praying-that a citation be issued to Regan to show cause why the records of the Surrogate’s Court should not be corrected, why a memorandum of the satisfaction of the decree made at the foot thereof and signed by the clerk of the Surrogate’s Court should not be stricken from the decree, and why a paper purporting to be a transcript-of the decree and filed in the office of the clerk of the county of Rew York should not be set aside to the extent of the petitioners’ claim or lien with interest thereon, and why the satisfactions of the said judgment -should not be set aside, and why other relief should not be granted. The executor answered the petition by affidavit, and the matter coming on to be heard before the surrogate, an order was made directing that the records of the Surrogate’s Court be corrected and amended by striking therefrom a memorandum at the foot of the decree to the effect that the decree was satisfied of record, and to amend the same so that “ said decree is satisfied, except as to the sum of $2,083.24, with interest from May 17th, 1899,” by further directing that the satisfaction of the decree filed in .the Surrogate’s. Court be vacated and set aside “ to the extent of $2,083:24, with interest from May 17th, 1899, which sum is the lien of the petitioners upon said decree; ” that the certificate of the clerk of the Surrogate’s Court appended to the transcripts of the decree to the effect that the decree was satisfied of record, and which transcripts and certificates were filed in the office of the clerk of the county of Rew York on the 11th day of January, 1899, be vacated and set aside-to the extent before referred to, and the county clerk was ordered to mark upon the certificates, -.and each of them, the fact that the same, and each of them, is vacated and set aside as aforesaid, that is, to the extent of $2,083,24, with interest as aforesaid, and that the petitioners (Messrs. Adams ■& Hyde) are authorized 'to enforce a decree of the Surrogate’s Court of the 10th of December, 1898, against the said James Regan, so far as it may be necessary to satisfy their aforesaid lien upon the said decree. It is from this last-mentioned order that the present appeal is taken.</p>

Appeal by the defendant, John F. Betz, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of December, 1900, granting upon terms an order for the substitution of attorneys for the defendant. .

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 clerk of the county of New York on the 28th day of June, 1900, upon the verdict of a jiiry for $1,400, and also from an order entered in said clerk’s office on the 29th day of June, 1900, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Fidelity and Casualty Company of Hew York, from a judgment of the Supreme Court in favor o£ the plaintiff, entered in the office of the clerk of the county of Hew York on the 14th day of October, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of October, 1899, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought on a contract whereby the defendant agreed to reimburse the plaintiff “ to the extent of Twenty thousand dollars ($20,000), or 50-lllths of any such sum or sums as the ‘ Reinsured ’ may become liable to pay, and pay under or by virtue of v its bond of insurance issued to the Metropolitan Street Railway Company, guaranteeing and indemnifying against any loss by reason oE “the personal dishonesty or culpable negligence” of its employee George S. Wickham. The reinsurance agreement also covered expenses incurred in investigating, settling and resisting any claim made, and provided that if a claim were made “ the ‘ Rein-surer ’ shall at once be advised and consulted before the admission or payment by the ‘ Reinsured.’ ” Reference is made to the insurance bond given by the plaintiff, which, among other things, provides that the surety company “ shall not be liable * * * for any act or thing done or left undone by any employe in obedience to or in pursuance of any instruction or authorization received by him from the employer * * * nor for any mere error of judgment, nor any injudicious exercise of discretion * * * wherein he shall have been vested with discretion * * * and it is expressly understood and agreed that the company shall in no way be held liable hereunder to make good any loss by robbery that the employer may sustain unless the same be occasioned by or with the connivance or culpable negligence of some one or more of said employes.” The surety company agreed to reimburse the employer for loss sustained under conditions stated, “at the expiration of three months next after due and satisfactory proof of the loss herein mentioned shall have been furnished.”</p> <p>These contracts being in force, demand was made upon the plaintiff by the Metropolitan Company on January 27,1897, for payment -of a loss alleged to have been sustained on January 18,1897, through the culpable negligence of George S. Wickham, from, whose possession a canvas bag containing $5,817.15 was taken while he was in ■the discharge of his duties of conveying the money of the company "from the Broadway station to the Pacific Bank. Mr. U. Parsons, plaintiff’s superintendent of claims, at once gave notice to the defendant of the demand made, and consulted and acted with defendant’s Tepresentatives in investigating the loss, one of whom made a sketch -of the wagon used by Mr. Wickham xvhen the money disappeared. On March 13, 1897, the plaintiff wrote defendant that “ after an exhaustive and complete investigation of all the known circumstances connected with the loss ” it was entirely satisfied that, the said loss was occasioned by or with the culpable negligence of George S. Wickham, and that it is liable for and must pay for such loss. Demand was made that the defendant bear its proportionate share. ' On March seventeenth the plaintiff paid the claim in full, and the defendant refusing to pay any part thereof, this action xvas ¡brought against it, and the defense relied upon is that the facts do mot show that the loss was occasioned by the “ culpable negligence ” •of George S. Wickham.</p> <p>It was admitted on the trial that in addition to the $5,817.15 paid by the plaintiff to the Metropolitan Company, the additional -expense incurred by the plaintiff in investigating the claim, etc., was- $820.44, so there is no dispute as to the amount due from the -defendant^ if any sum is due.</p> <p>The sketch put in evidence and the testimony given show that -the wagon used by Wickham was like the covered delivery wagons used by dry goods stores, provided with windows at the back and .on the sides, but having no entrance except over the seat in front. The bed was built very high, resting on springs which brought the footrest directly over the front wheels, and as there was no step on the side nor any shaft — two horses being used with the wagon — it was necessary to step upon and over the wheel to get in. The seat was txvo feet from the dashboard and was but three feet four inches long and eighteen inches wide, and was provided with a hinged back which was let doxvn to reach into the' rear of the wagon. The bed comprised a “ money box,’’ having lids opening upward against the sides of the wagon and was provided with a lock for which Hr. Wickham held the key.</p> <p>The evidence shows that Mr. Wickham was officially known as. “ the Collector General ” and made the rounds of the various stations every day, taking the money in bags, labeled for deposit in various banks. Accompanying him was Hr. Battey, the driver. Both men had been employed for several years in this work without mishap. The story of what occurred is to be gathered entirely from their testimony.</p> <p>Hr. Wickham says that he had received six bags of coin from the station at Broadway and Fiftieth street, each weighing about fifty or sixty pounds, and a canvas bag containing $5,817.15 in bills With* the exception of the cents. This bag, it is admitted, was twenty-two inches long, twelve inches in height and eight inches wide at the bottom. All the bags, Mr. Wickham says, were put in the money box back of the seat and locked up and not opened until the Pacific Bank at 470 Broadway was reached at about twelve o’clock. The wagon was driven up beside the curb and stopped so the front of it was opposite a short flight of stairs which led to the bank. There were then ■ a number of people in the street. Mr. Battey went up the stairs through a corridor into the bank and brought a small truck to the head of the stairs where it could be seen from the wagon, and then came down to get the money. Mr. Wickham unlocked and opened the money box (and may, he says, have got into it) and threw the bags of coin to the front of the wagon down by the dashboard. He then locked the money box and placed the canvas bag containing the bills “behind him” on the lid of the money box and handed out to Mr. Battey two bags of coin. Mr. Battey carried the bags up the stairs to the truck and came back for two more. These were given him, Mr. Wickham having meanwhile seen that the canvas bill bag was safe'. After Mr. Battey had gone up with the second set of bags, a man approached the wagon and said something to Mr. Wickham which he says he could not understand. Mr. Battey saw this man while coming down stairs and says that his lips moved and he gesticulated and then moved along and at that time if any one had attempted to enter the wagon from the other side, he would certainly have seen him. Mr. Wickham states that he looked back again for the bag and it was there and he then handed Hr. Battey the two remaining bags of coin and 'Hr. Battey went np the stairs with them. . Turning then for the canvas bill bag, which he intended to take himself into the bank after Hr. Battey had delivered the coin and returned, Hr. Wickham discovered that the bag of bills had disappeared. . He saw no one and had no knowledge whatever of its being taken. Hr. Battey says he heard Hr. Wickham make an outcry as though something was wrong and he ran down the steps and learned that the bag of bills was gone. The bags of coin were then carried in and deposited and the two men, though there were policemen near at hand, said nothing to them, but went to the office of the treasurer of the railroad company and reported the loss. Both Hr. Wick-ham and Hr. Battey say they saw np suspicious person other than the man who spoke to Hr. Wickham and had no intimation that a theft was committed. Inquiry in the neighborhood also failed to elicit any clue as to the cause of the disappearance of the money.</p> <p>The court submitted to the jury the question whether the money was lost “ through the culpable negligence’’ of Hr. Wickham, and in its charge said that if he performed that duty “ imprudently or with a lack of watchfulness which he should have exercised, and permitted his attention to be diverted for one instant, upon any pretext, he was- guilty of negligence.” To the latter part of this charge exceptions were taken, and the trial judge pointed out that he had said “ with a lack of watchfulness, permitted his attention to be diverted.” The court also charged that “ in order to enable plaintiff to recover in this case the jury must find from the evidence that the loss of the bag of money in question was by or through the culpable negligence of George S. Wickham ; ” and defined culpable negligence as “ an extreme degree of negligence * * * stronger and greater than is meant by the ordinary term 1 negligent,’ and in case the- jury find that George S. Wickham was not guilty of such a degree of negligence the verdict must be for the defendant.” Further, the court charged that “ if the jury find that George S. Wickham performed the duties with which he was charged at the time when this loss occurred, in pursuance of his judgment, and that such loss occurred solely by reason of the judicious exercise of discretion on Ms part * * * wherein he was clothed with discretion either by instructions or by the rules and requirements of the Company,” then the verdict must be for the defendant. The court refused to charge again as to culpable negligence, or the defendant’s liability in case of the exercise of discretion, and exception was taken to the .refusal to charge as requested by defendant in these matters.</p> <p>The jury returned a verdict in favor of the plaintiff, and from the judgment so entered, and from the order denying the motion for a new trial, the defendant appeals. ,</p>

<p>Appeal by the plaintiff, Alexander Mackintosh, 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 16th day of October, 1900, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case after á trial at the New York Trial Term.</p> <p>The action was brought upon an' alleged contract of employment. The complaint alleges that on or' about the 11th of March, 1896, the plaintiff entered into a contract with the defendants whereby plaintiff agreed to remain in their employ at the same salary which he was then receiving, during the completion by the defendants of two certain buildings in consideration of the defendants’ agreement with the plaintiff then' and there made, to pay him in addition to his salary the reasonable value of his services and time spent upon said buildings while in the defendants’ employ; that the plaintiff in the performance of his duties under the contract was employed for over two years and the buildings in question are now completed and the reasonable value of his services, above his salary, is $12,356.20.</p> <p>At the opening the plaintiff’s attorney claimed for plaintiff “ a reasonable interest in the two buildings if he should stay until they were completed ” — an interest in the profits. Objection was made to showing this under the complaint, which alleged reasonable'value of services; and the court said: “ You say nothing about profits in the complaint.” Plaintiff’s attorney asked to add to the complaint after the words “ the reasonable value of his services and time spent upon said buildings while in said defendants’ employ ” the words “ in the shape of such interest in the profits of these two buildings as may be reasonable.” This amendment was opposed and the motion was denied and exception taken. The plaintiff’s attorney said : “I do not think that requires any accounting. We have no right .to an accounting as an employee, and we do not claim that Mackin tosh was a partner.”</p> <p>The plaintiff testified that he was an architect and architectural designer, and considered himself thoroughly competent as an expert designer and draftsman in the architectural line; that he was employed by defendants in 1893, and in 1895 told them he intended to leave their employ unless they paid him more money, and was told that just then no increase could be given, but he should be paid more if more work came in; that in March, 1896, he reminded Mr. Kimball of the promise, and referred to the new work being done on the Empire and the Altman building, and said he would start for himself if he was not paid more; that Mr. Kimball “ said that his idea was to give me an interest in the Altman Building and in the Empire Building. He said that the amount of the cost of those buildings was so enormous £ that you may rely upon the compensation being enlarged.’ Then I asked him, ‘ How am I to know what I will get?’ He said: ‘ You can rely upon me; I will see that it is all right.’ Further, on leaving, he said, ‘ You don’t know what I have in view.’ * * * I was to have the same salary, $36 per week. * "" * I continued with Kimball & Thompson. * * * The share in the profits was in addition to my regular salary. I remained with the firm * * * up to the dissolution of the partnership, which took place in May or June, 1898; ” that there were about eight men in the designing staff under him, and his work on the buildings was to design all the work and superintend the men, and there were over 500 designs. Plaintiff then identified various designs and drawings as his, made during the work, and testified that he had worked 5,122 hours, and estimated his work at $3 an hour, or $15,366, of which $4,656 had been paid; that he trusted Mr. Kimball to do something about an interest in the profits.</p> <p>On redirect examination the plaintiff testified that Mr. Kimball said “ his idea was to give me an interest in the profits upon the Altman Building and the Empire Building; that I could rest assured that the amount would be large enough because of the enormous cost of those two buildings. He said if I left the matter to him he would see it was all right; ” that in reliance on that statement he remained with the firm. Evidence as to the defendants’ profits on the two buildings was excluded and exception taken; but two architects testified as experts that the work claimed to have been done by the plaintiff as shown by the designs and drawings was reasonably worth three dollars an hour.</p> <p>The plaintiff having rested, a motion was made to dismiss the complaint, which was granted, and a motion by the plaintiff to go to the jury upon the question of how much the plaintiff’s services were worth was denied. From judgment dismissing the complaint the defendants appeal.</p>

<p>Oua/ranty—when presumed to relate to a partieula/r note — it is transferable in the-same way as the note, and is subject to the law merchant.</p> <p>In an action brought upon a written guaranty, alleged to have been given to-assure the payment of a note, the fact that the note and guaranty are identical as to the names of the parties, the amount payable, the date, time and place of" payment, and that in every transaction which appeared in evidence the note- and guaranty accompanied each other, creates an inference that the guaranty was given to assure the payment of that particular note.</p> <p>It seems, that a guaranty accompanying a negotiable note is transferable in the-same way as the note itself, and is governed by the law merchant.</p>

<p>Extra allowance — on a partnership accounting it must he hosed upon the plaintiff’s interest in the assets.</p> <p>An extra allowance, granted to the plaintiff in an action for an accounting as to the affairs of a partnership, should not be computed upon the total assets of the partnership but only upon the proportion thereof to which the plaintiff was entitled.</p>

<p>Appeal by the plaintiff, Henry Hentz, 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 October, 1899, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.</p>

<p>.Appeal by the defendants, Alpin J. Cameron and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of December, 1900, setting aside a judgment entered upon the dismissal of the complaint at the Trial Term, and granting plaintiff’s motion for a new trial on the ground of newly-discovered evidence.</p>

Appeal by the petitioner, Mary E. Barrett, as executrix, etc., of Thomas Dugan, deceased, from a decree of the Surrogate’s Court of the county of Mew York, entered in said Surrogate’s Court on the 26th day of December, 1899, judicially settling her accounts.

<p>•Contract for the publication of theatre programs — it ends with the death of either party—right of an assignee thereof to recover of the owner money paid by his assignor thereunder.</p> <p>A contract by which the owner of a theatre gives a particular person the exclusive right to publish the official program of such theatre for a period, of three years, which contract contains no provision indicating an intention to bind the representatives or the successors of the respective, parties, and provides that the size of the program shall be determined by the owner of the theatre, and that his assent shall be obtained before any cuts shall be placed upon any part of the program except the last page, contemplates the continued existence of the owner of the theatre and of the person with whom the contract was made, and the death of either party, prior to the time that the publication is to begin, will dissolve the contract and end the liabilities of the parties thereunder.</p> <p>An assignment of such a contract, made before the time fixed for the performance thereof, which recites that the consideration paid for the assignment represents a payment made under the contract by the assignor to the owner of the theatre, is effective, in the event of the dissolution of the contract by the death of such owner, to entitle the assignee to recover such payment from the -owner’s executors.</p>

Appeal by the plaintiff, John C. Rodgers, from an order of the Supreme Court, made at the New York Special Term and entered in the office óf the clerk of the county of New York on the 28th day of December, 1900, granting, upon terms, the motion of the defendant to be allowed to serve an amended answer.

<p>Temporary receivers of a corporation— they and all creditors are proper parlies to an action to enforce the personal liability of its directors.</p> <p>Temporary receivers of a corporation, appointed in a proceeding for its voluntary dissolution, are proper parties to an action subsequently brought to enforce the liability imposed upon the directors of the corporation by section 24 of the Stock Corporation Law (Laws of 1890, chap. 564, as amd. by Laws of 1892, chap. 688) for the excess of its debts over and above its capital stock, in order that the court may have before it the parties in whom are vested the assets of the corporation, and may in the decree make proper provision as to the application of such assets as well as of the amount which the directors are directed tó pay in discharge of their liability under the statute.</p> <p>Such an action is one in equity, and all of the creditors, as well as the corporation itself, are necessary parties thereto.</p>

Appeal by the plaintiff, Gertrude Bettenhasser, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 13th day ■of April, 1898, upon the verdict of a jury, and also from an order ■entered in said clerk’s office on the 15th day of April, 1898, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John B. McDonald, 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 18th day of December, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

<p>Appeal by the defendants, Lewis A. May 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 New York on the 30th day of March, 1900, upon the decision of the court rendered after á trial at the New York Trial Term before the court without a jury, and also from an order entered in said clerk’s office on the 29th day of March, 1900, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the Provident Savings Life Assurance Society of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county ■of New York on the 12th 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 2d day of July, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the petitioner, Herman Bolte, as surviving executor, etc., of Christian Koch (sometimes called Cook), deceased, from so much of an order of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 8th day of October, 1900, which taxes, allows and awards a sum of money for disbursements to Anna Dieckmann, and directs that that amount, in.addi tion to ten dollars costs, be paid by the appellant as sole surviving executor.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of May, 1900, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 28th day of May, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, John D. Keiley, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of January, 1901, denying his motion to vacate an order for his examination before trial, and for the production of certain books and papers in connection with the examination.

Appeal by the defendant, Amelia Gall, as administratrix, etc., of Joseph Gall, deceased, 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 25th day of October, 1900, denying defendant’s motion to strike from the judgment 'entered in the above-entitled action a provision as to costs and allowances.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of April, 1900, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 9th day of April, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Lucius C. Miles, from a judgment of the Supreme Oourt in favor of the plaintiff, entered in the office of the clerk of the county of Rew York on the 18th day of May, 1900, upon the verdict of a jury, and also from, an order entered in said clerk’s office on the 11th day of May, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, William E.. Sabin, from a judgment of. the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 30th day of March, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of April, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Rachel Weinstein, 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 20th day of July, 1900, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint.</p>

Cross-appeals by the plaintiff, Irving T. Bush, and by the defendants, John O’Brien and others, 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 2d day of January, 1901, granting in part and denying in part a motion made on behalf of the plaintiff for leave to serve a supplemental summons and complaint herein, and to bring in as parties defendant Walston H. Brown individually, L.…

<p>Pleading — what is not a denial of the execution of an instrument —pa/rol evidence ■ as to previous negotiations, to determine whether there a/re three contracts or an original and, two duplicates—form of exception thereto — evidence as to character.</p> <p>An answer interposed in an action upon a contract alleged to have been executed by the defendants, which denies knowledge or information sufficient to form a. belief as to that portion of the complaint which avers the execution and delivery of the contract by the defendants, and then admits that the defendants-sighed a certain paper or- memorandum, but denies any knowledge or information sufficient to form a belief as to whether the paper set forth in the complaint is the one which the defendants signed, does not constitute a denial of the execution of the contract set out in the complaint.</p> <p>The fact that the parties to a written contract, before executing the same, strike-therefrom a provision reciting that it- contains the whole agreement between, them, does not render the contract incomplete or entitle either party to vary its terms by parol evidence.</p> <p>Where the issue litigated in an action is whether the. defendants executed three-written contracts or one contract with two duplicates thereof, parol evidence, as to all the negotiations leading up to the execution of the instruments, is-admissible upon that issue, and it is the duty of a party, who claims that such, evidence is not admissible, to request the court to limit the effect of such testimony to the issue upon which it is competent.</p> <p>Persons who, during a period of from eight to fifteen years, have known a witness whose credibility is attacked, and have had business relations with him and are acquainted generally in the community in which such witness lives,. • are competent to testify in support of such witness’ credibility, although they testify that they never heard the witness’ character discussed.</p>

<p>Appeal by the defendant, Bird S. Ooler, as comptroller of the city of Hew York, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 21st day of December, 1900, directing the issuance of a peremptory writ of mandamus requiring the comptroller of the city of Hew York to draw a warrant on- the chamberlain of said city for a sum of money, being an installment claimed to be due under a contract for. the erection of a pier at the foot of Broad street, East river, in the city of Hew York, and also from an order entered in said clerk’s office on the 12th day of December, 1900, granting the relator’s motion for an extra allowance.</p>

Appeal by the defendant, The New York Juvenile Asylum, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the-county of New York on the 11th day of' December, 1900, requiring the defendant to restore the relator’s child to her.

<p>Insurance—proceedings on a coroner’s inquest are not competent on the issue of suicide — representation as distinguished from warranty— question of intent for the jury—previous ■ attempt to commit suicide — custom of life insurance companies in refusing in such cases to issue policies—motion to amend, when it rests in the discretion of the court.</p> <p>In an action upon a policy of insurance in which the defense is interposed that the policy is void because the insured had committed suicide, the papers and proceedings upon the coroner’s inquest held on the body of the insured in the State of Pennsylvania are not admissible in evidence, notwithstanding the fact that the plaintiff’s counsel, after forwarding the complete proofs of death, sent such papers and proceedings to the defendant at its request.</p> <p>The following question in the application for the policy, “Is there any fact relating to your physical condition, personal or family history, or habits, which has not been stated in the answers to the foregoing questions, and with which the company ought to be made acquainted ? ” calls for the opinion of the insured, and the answer thereto is to be construed as a representation and not as a warranty.</p> <p>The fact that the insured answered “ No,” to such question and failed to disclose to the company that he had made a previous attempt to commit suicide upon being discovered to have been guilty of larceny and forgery, will not render the policy void unless the insured knew that those matters were material and concealed them with the intent that the company should know nothing about them.</p> <p>The intent with which the insured answered the interrogatory presents a question of fact for the jury.</p> <p>Evidence concerning the custom of life insurance companies with regard to issuing policies on the lives of persons who were known to have attempted suicide, and as to whether the defendant would have issued the policy in suit if the fact that the insured had attempted to commit suicide had been made known to it, and as to whether that fact would have been deemed material in passing upon the application, is incompetent.</p> <p>A motion made by the defendant upon the trial for leave to amend its answer for the purpose of enabling it to have the affirmative of the issue, which it has lost by denying certain facts set up in the complaint, is addressed to the discretion of the court; the same is true of a motion to amend the answer by alleging that the policy was invalid because of false answers to a series of questions contained in the application.</p> <p>Inqraham, J., dissented.</p>

Appeal by the defendants, Elizabeth Hill and Jacob F. Miller, as -executors and trustees under the last will and testament of Mary L. Everdell, deceased, 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 Hew York on the 24th day of Juné, 1899, upon the decision of the court rendered after a trial at the Hew York Special Term, and also from an order entered in said clerk’s office on the 20th day of…

Appeal by the plaintiff, Louis 0. Raegener, as receiver of the Equitable Mutual Eire Insurance Corporation of Hew York, from a judgment of the Supreme Court in favor of the defendants, entered in. the office of the clerk of the county of Hew York on the 11th day of June, 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 18th day of June, 1900, denying the plaintiff’s motion for a new trial made…

<p>Appeal "by the plaintiff, Carolina Stiasny, as committee of Albert E. Stiasny, a lunatic, 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 17tli day of May, 1900, upon the verdict of the jury, and also from an order entered in said clerk’s. office on the 11th day of May, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendants, Philip Kling and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of June, 1900, upon the verdict of a jury rendered by direction of the court, for the possession of premises and damages for withholding the same against the defendants Kling and Husted.</p> <p>The action is in ejectment. The complaint alleges that the defendant Kling claims title to the property, which is located at '■206 Forsyth street, and that the defendant Husted, as receiver, had collected $700 in rents. Judgment was asked for possession; for $700 “as the value of the use and occupation,” and for other relief.</p> <p>The plaintiff’s record title to the property, which was originally owned by Rebecca Weisel, was established through an execution sale on November 22, 1894, to Charles Smith, and a sheriffs deed thereafter given on March 5, 1897. Smith assigned the certificate of sale on November 23, 1894, to Chaim Weisel, and on December 9, 1894, it was recorded. On .March 2, 1897, the certificate was assigned by Weisel to the plaintiff and recorded the same day, and the sheriff’s deed to plaintiff was recorded on March 15, 1897.</p> <p>The alleged title of the defendant Kling rests upon two distinct .claims. The first is that, on October 5, 1895, Rebecca Weisel gave a deed to Joseph Weiser, thereby conveying her right to redeem the premises from the sheriff’s sale of 1894 to Smith, and that thereafter, pursuant to a decree made February 25, 1897, in an action wherein one Wright was plaintiff and Rebecca Weisel and Joseph Weiser were defendants, Thomas D.- Husted (defendant herein), as -receiver, sold on ■ April 26, 1897, the rights of' Rebecca Weisel and ■Joseph Weiser in the premises to Philip. Kling, and a deed thereof was executed to him May 1, 1898. The second claim of title is that, as the result of special proceedings in an action brought by one ’Jacob Wolf against the plaintiff, Pfeifer and Abraham Lent, WiL liara E. Wyatt was appointed receiver of the plaintiff Pfeifer’s property, and as such receiver sold the plaintiff’s interest in the premises on February 23, 1899, to Louis M. Seaver, and on March 7, 1899, gave a deed therefor which was recorded the following day, and that thereafter Seaver and his wife conveyed the property to the defendant Kling by deed recorded March 23, 1899. As an additional defense, the defendant Kling alleged that the premises in question are held by the plaintiff for and on account of the said Rebecca Weisel and Joseph Weiser, and that they, for the purpose of hindering and defrauding creditors, conspired to have the sheriff’s deed made to the plaintiff to keep the premises in the control of Rebecca Weisel.</p> <p>The defendant Husted answered, admitting that he was a duly appointed receiver, and as such collected rents, and has sold the premises; and he stated that he was in possession when the action was brought for the reason that the closing of the title had been adjourned.</p> <p>Hpon the trial the various transactions alleged affecting the real estate as to judgments and sales were proved ; and it was admitted that the property was worth $30,000 and that the rental value was $2,900; and it appeared that the property was sold to Smith for $110, which was the price paid by the plaintiff. “ Chaim” Weisel, or Hyman Weisel, was the husband of Rebecca Weisel, and Joseph Weiser was her stepson. The defendant Kling placed in evidence an order to show cause procured by the plaintiff, asking that the sale by William E. Wyatt as receiver be set aside, and an order dated April 18, 1889, denying the application on the merits. There was also introduced "in evidence an order confirming the- sale by Husted as receiver, showing that he had paid out the balance of the rents collected to the attorneys in the action in which he was appointed.</p> <p>Henry J. Golden testified for the defendants that he was an attorney, and after 1897 acted as such for Charles Smith; and that he had a conversation with Smith on the day he purchased the property in 1894. Objection was made to the witness stating such- conversation, which objection was sustained and exception taken. Thereafter similar questions were ruled out, such as whether Smith said he had bought the property for the benefit of Rebecca Weisel, and exceptions were taken. Benjamin Reass, a lawyer, testified that he had- acted for the plaintiff “ nominally ” in 1897, but was. not employed by him. Objections were made to his stating what conversation he then had with the plaintiff as to the transfer of the property, whether the plaintiff had paid for the transfer, and what the circumstances were; and these were sustained and exceptions taken. Charles H. Smith, a lawyer and a notary, testified' that he took Smith’s acknowledgment on ISTovember 23,1894, and talked with him as to how it should be done, but was not allowed to state whether he held any relation professionally with him, or what Smith had said; and exceptions were taken. "William Fox, a liquor dealer, testified that he had had a conversation with the plaintiff in 1897 in reference^ to the premises in dispute; but he was not permitted to say what such such conversation was, nor whether the plaintiff said that he was holding the property for the benefit of Rebecca Weisel.</p> <p>The court directed a verdict in favor of the plaintiff as owner and entitled to possession of the premises,, and entitled to recover from the defendant Husted rents collected from April, 1897, to May 15, 1897, amounting to $394, with interest, and damages against the defendant Fling for $9,081.31, as the rental value from the commencement of .the action to date. A motion to amend the complaint to conform with the verdict rendered was denied. From the judgment entered in accordance with the direction of the court the defendants Kling and Husted appeal.</p>

<p>Appeal by the defendants, Solomon B. Toplitz and others, 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, striking out as sham the 3d paragraph of the answer interposed by the defendant, and overruling the remainder of said answer as frivolous.</p>

<p>Appeal by the plaintiffs, Emanuel Mansbach and others, as executors, etc., of Jacob New, deceased, and others, from so much of 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 27th day of July, 1900, upon the decision of the court rendered after a trial at the New York Special Term, as provides as follows-:</p> <p>“Tenth. That under subdivisions ‘1st’ and ‘2d’ of paragraph 4 Ninth,’ which must be read in connection with each other, the testator creates a trust .which provides for the suspension of the power' of alienation for a period of one life and two minorities!, a minority being equivalent to a life, and is, therefore, a violation of the statute against perpetuities, and is void.</p> <p>“ Eleventh. That as to that portion of the testator’s real estate mentioned in the two subdivisions aforesaid, testator must be deemed to have died intestate.</p> <p>.“ So much of paragraph ‘ Thirteenth ’ as does not state that the power of sale created under subdivision ‘4th’ of paragraph ‘Ninth’ of said will is valid during the continuance of the trust created and provided for in subdivision ‘ First ’ and ‘ Second ’ of paragraph 4 Ninth ’ of said will. Also except to the following containéd in said paragraph ‘ Thirteenth: ’ ‘ All said real estate being subject to the right of dower of the widow therein.’</p> <p>“Fifteenth. That subdivision ‘6th’ of paragraph ‘Ninth’.has reference to the invalid trust created by subdivisions ‘ 1st’ and‘ 2d’ of paragraph ‘Ninth,’ and is, therefore, ineffectual for any purpose, and falls with the trust to which it refers and is invalid and void.</p> <p>“■ So much, of paragraph ‘ Sixteenth ’ as does not state ■ that the powers of sale created under paragraphs ‘Tenth’ and ‘ Eleventh’ of the said will are valid during the continuance of the trusts providéd for in subdivisions ‘ First ’ and ‘ Second ’. of paragraph ‘ Ninth ’ of said will. Also except toso much of 'the. judgment contained in paragraph ‘ Sixteenth’ as states: ‘Ail the real estate being subject to the right of dower therein.’</p> <p>“Eighteenth,. That paragraph ‘ Thirteenth ’ of the said will becomes ineffectual since the provision made for the wife of the testator under subdivision ‘ 1st ’ of paragraph ‘ Ninth ’ of the said ■will is void.”</p>

Appeal by the defendant, Malcolm Dickerson, from a judgment 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 31st day of May, 1899, convicting him of the crime of rape in the second degree, under subdivision 5 of section 278 of the Penal Code.

Appeal by Annie E. Cornell, individually and as administratrix, etc., of Genevieve M. Rudd, deceased, from portions of 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 4th day of October, 1899, upon the report of a referee in an action brought for the judicial construction of the last will and testament' of George Rudd, deceased.

Appeal by the plaintiff, Charles E. Brown, trustee, 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 Eew York on the 22d day of October, 1900, denying plaintiff’s motion for a commission to take the testimony of Frances M. R. Wright, a non-resident defendant.

<p>Memoval of a regular clerk in New York city—explanation by him of his absence from the office — when he is not entitled to give proof in support thereof.</p> <p>A regular clerk in the department of buildings in the city of New York obtained a leave of absence for a week on account of the serious illness of his wife. On October 12, 1899, the day the leave expired, he started for California with his wife, because her physician said that course was absolutely necessary to preserve her life. He made no personal application for a further leave of absence before taking the journey, but alleged that he sent a written request to the commissioner asking for a leave of absence for four months. November 1, 1899, the commissioner suspended him pending charges. Notice of the suspension was received by him December 20, 1899, but, so far as appeared, he-made no response thereto. Early in February, 1900, he returned to the city of New York, but did not report for duty or notify the commissioner of his return. In June, 1900, notice was served upon him of the commissioner’s intention to remove him because of his absence without leave and his failure to notify the department of his change of residence, and he was given an opportunity to make an explanation in writing in relation to the matter. _ He accordingly submitted a written explanation which did not deny the truth of the charges, but attempted to explain them. The commissioner refused to allow him to introduce testimony establishing the truth of the facts set out in the explanation, and removed him.</p> <p>Held, that the relator was not entitled to give any evidence establishing the truth of his explanation;</p> <p>That when he had offered his- explanation it was for the commissioner to say whether it was satisfactory, and that the commissioner’s conclusion could not be reviewed by the courts.</p>

Appeal by the defendants, W enzel Schrenk 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 New York on the 17th day of July, 1900, upon the verdict of a jury rendered by direction of ■ the court. The contract sued upon was made in the State of New; York.

Appeal by the defendant, Poland D. Jones, from a judgment of the Supreme Court in favor of the plaintiff, and the defendant Henry L. Fridenberg, as assignee, etc.; of the Manhattan Concrete-Company, entered in the office of the clerk of the. county of New York on the 11th day of May, 1900, upon the decision of the court, rendered after a trial at the New York Special Term.

<p>Action in equity to restrain a violation of a contract — a counterclaim for damages-for a violation of another contract cannot be interposed—a demurrer is not necessary to raise, nor is a reply a waiver of the objection thereto.</p> <p>In an action brought to restrain the defendant-from interfering with the trade and business established by the plaintiffs under and in pursuance of a contract made-in 1894 between the plaintiffs and the defendant, and to require the defendant to transfer to the plaintiffs certain property as provided by the terms of the contract of 1894, the defendant is not entitled to set up a counterclaim for-damages arising out of the breach of a contract (made in 1891 between two of the plaintiffs and the defendant’s assignor, under which the plaintiffs claim no rights and admit no liability) and for which the contract of 1894, sued upon, was, as alleged by the plaintiffs, a substitute.</p> <p>Such a counterclaim does not tend to diminish or defeat the plaintiff's recovery, nor is it “a cause of action arising out of the contract * * * set forth in the complaint as the foundation of the plaintiff’s claim,” nor is it “ connected with the subject of the action,” nor is the action set up in the complaint one on contract within the meaning of section SOI of the Code of Civil Procedure.</p> <p>In such a case it is not necessary for the plaintiffs to demur in order to preserve, nor by replying do they waive, the right to object to the counterclaim on the trial.</p>

<p>Appeal by the defendant, Mary A. Early, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of January, Í901, enjoining the defendant, during the pendency of the action, from disturbing a sewer drain running over and across, her premises.</p>

Appeal by Mary Louise Love and others, representatives and successors in interest of Samuel W. Hale, deceased, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 29th day of October, 1900, denying their motion to revive and con- . tinue the action in their names as plaintiffs, in the place and stead of said Samuel W. Hale, deceased.

Appeal by the plaintiffs, Charles V, T. Foley and another, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Yew York on the -31st day of October, 1900, upon the decision of the court, rendered after a trial at , the Yew York Special Term, ■overruling the plaintiffs’ demurrer to the defendants’ counterclaim, and also from a final judgment entered in the office of the clerk of the county of Yew…

<p>Appeal by the plaintiff, Alice B. Eagan, 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 oil the 5th day of August, 1897, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merits.</p> <p>James Eagan, a brother of the defendant and the husband of the plaintiff in this action, became a member of the Mount Morris Council of the Catholic Benevolent Legion on the 19th day of February, 1885. By the certificate of membership issued to .him the supreme council of the association agreed to pay out of its benefit fund to Peter Eagan, the defendant, a sum not exceeding $5,000, according to the provisions of law governing said fund, upon the death of said member in good standing, provided he should not have substituted another beneficiary or reduced the amount of his benefit certificate.</p> <p>The by-laws of the legion at the time of issuing this certificate and at the time of the death of the insured member, provided that the name of the person to whom the member desired the benefit paid should be inserted in the certificate, “subject to such future disposal of the benefit among their dependants ” as the member may direct; and also provided that “ a member may at any time, when in good standing, surrender his certificate and have a new one issued payable to such beneficiary * * * as he may direct,, upon the payment of a certificate fee of fifty cents.”</p> <p>. The insured member, James Eagan, married the plaintiff in the-year 1888 and died in the month of February, 1894, leaving the plaintiff, his widow, and one child surviving. About four, months after his marriage to plaintiff the insured delivered the certificate of membership in said association to his wife, telling her as he did so that the insurance was for her; that if anything happened to him she was sure of the money, and this statement was repeated, in substance, a few days before the member’s death. From that time to the death of the insured the certificate remained' in the possession of the plaintiff, and it appears that she from time to time gave to her husband, from her own funds, money to pay assessments and membership dues which accrued against the member under the certificate.</p> <p>When James Eagan applied for membership he signed a written application in which he directed, in case of his decease, all benefits to be paid to Peter Eagan, Jr., subject to future disposal of the benefit as he might direct in compliance with the laws of the legion, and Peter Eagan’s name was inserted in the. certificate as the beneficiary and so remained until the certificate was paid and surrendered. It is not claimed that any change in the beneficiary was in fact made, or that any application was made pursuant to the by-laws for a substitution of the name of the plaintiff; but it is claimed that the facts shown constitute an equitable assignment of the certificate and money to grow due thereon, and that the defendant held the fund paid to him upon the certificate in trust for the plaintiff and is estopped from asserting his ownership thereof; or that there was a valid gift of the certificate and the money secured to be paid thereby to the plaintiff, causa mortis.</p> <p>The court below dismissed the complaint upon the merits, upon the ground that at the death of the member the person entitled to receive the benefit of the said certificate of insurance was Peter Eagan, the defendant, and that the plaintiff had no right or interest in the same or any part thereof, and judgment was entered accordingly. From such judgment the plaintiff appeals to this court.</p>

Appeal by the defendants, Sidney Ward, as executor, etc.,-of Anna Sutherland, deceased, and another, from ’an interlocutory judgment of the Supreme Court in favor'of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of November, 1900, upon the- decision of the court, rendered after a, trial at the New York Special Term, overruling their demurrer to the amended complaint.

Appeal by the defendants, The Hew York and Harlem Railroad Company and another, from an interlocutory 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 30th day of. Hovember, 1900, upon the -decision of the court, rendered after- a trial at the Hew York Special Term, sustaining a demurrer to a defense in the answer.

Appeal by the defendant, the F. C. Linde Company, from two several judgments of the Supreme Court in favor of the plaintiff, each entered in the office of the clerk of the county of New York on the 11th day of October, 1900, upon the verdict of a jury, and also from two several orders, each entered in said clerk’s office on the 29th day of October, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Hyman Israel, and by Elizabeth M. Anderson, the petitioner herein, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of June, 1900, denying a motion to join Elizabeth M. Anderson as a party plaintiff in the action and for leave to serve a supplemental complaint.

Appeal by the defendant, The Wilson Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of June, 1900, upon the decision of the court rendered after a trial at the New York Trial Term before the court without a jury, and also from an order entered in said clerk’s office on the 6th day of June, 1900, denying said defendant’s motion for a rehearing and for a new…

Appeal by the plaintiffs, George' Burnham and others, 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 21st day of November, 1900, upon the decision of the court rendered after a trial at the New York Trial.Term before the court without a jury dismissing the complaint.

Appeal by the defendant, Edward J. Flack, as treasurer of “ Company D” of the Seventy-first Regiment, National Guard of the State of New York; 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 November, 1900, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the 20th day of November, 1900, denying the defendant’s motion for a new trial made upon…

Appeal by the plaintiff, Denis A. Spellissy, 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 15th day of August, 1900, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Samuel Shoenblum, an infant, by Joseph Shoenblum, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 17th day of October, 1900, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiffs, Joseph Hamershlag 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 Mew York on the 18th day of July, 1900, upon the decision of the court rendered after a trial at the Mew York Special Term.

<p>Appeal by the plaintiffs, Jacob Rothschild and others, as executors and trustees under the last will and testament of Simon Goldenberg, deceased,, from an order of the Supreme' Court, made at the New York Special Term and entered in, the office of the clerk of the county of New York on the 29th day of January,' 1901, amending the summons and pleadings in the action by striking therefrom .the names of Julius Goldman and M. Warley Platzek as parties defendant in the action.</p>

<p>Appeal by the plaintiff, Leonard G. Ketchum, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the comity of New York on the 11th day of October, 1900, reversing an order of the General Term of the City Court, entered in the office of the clerk of- said court on the 9th day of May, 1900, affirming a judgment in favor of the plaintiff entered upon the verdict of a jury rendered by direction of the court, and also reversing an order of the General Term 'of the City Court of New .York affirming an order denying the defendant’s motion for a new trial. .„. •</p>

<p>Appeal by the plaintiff, Egbert David Fitzgerald, an infant, by Mary Josephine Higgins, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 13th day of June, 1900, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term. •</p>

Appeal by the defendant, the Guardian Trust Company, from an interlocutory judgment of the Supreme Court in fpvor of the plaintiffs, .entered in the office of the clerk of the'couiity of New York on the 19th day of November, 1900, upon the decision of the court' rendered after a trial at the New York Special Term overruling the demurrer to the complaint.

<p>Ma/rhetdble title — lands sold by executors for a nominal consideration —right to object cured by lapse of time.-</p> <p>In an action brought to compel the specific performance of a contract for the sale of real estate, it appeared that" John L. Milledoler, who held the legal title to the whole and the equitable title to one-half of the property in question, executed a will by which he empowered his executrix and executor to sell his real estate and to .give one.sixth of the proceeds (that is, one-twelfth of the proceeds of the entire property) to Helen S. Milledoier and Walter G. Milledoler. December 19, 1853, Charles H. Thompson and Cornelia Graham, the executor "and executrix named in the will, united with others in a conveyance of certain lots to Margaret Ann Brett. June 39, 1854, Margaret Ann Brett conveyed the same premises to Cornelia Graham. The conveyance to Margaret Ann Brett and from her to Mrs. Graham recited a nominal consideration.</p> <p>At the time of" the conveyances Helen S. Milledoler and Walter G. Milledoler were infants over the age of fourteen years and of sound mind:</p> <p>Upon the accounting in the Surrogate’s Court of Charles H. Thompson, as executor, one-twelfth of the: proceeds of the property was accounted for as money due to each of the infants, allowance being made to them for their interest in the land, conveyed for a nominal consideration to Mrs. Graham at the' same valuation as that at which the other lots had been sold.</p> <p>Walter <3. Milledoler subsequently executed a conveyance to Mrs. Graham of whatever interest he had in the premises; but Helen S. Milledoler never did, and died in 1891, leaving five children surviving her.</p> <p>Meld, that although there might have been a technically defective execution of the power of sale, conferred by the will of John L. Milledoler, the infants’ interest in the land having been accounted for by his executor, specific performance of the contract should have been decreed; .</p> <p>That even if no consideration was paid for the conveyance of the infants’ interest in the land conveyed to Mrs. Graham, the two infants having attained their majority about 1861, and no attack upon Mrs. Graham’s title having been made by them or either of them, or any one claiming.under them, for forty years, the . title had become perfect by lapse of time.</p>

<p>Appeal by the plaintiff, Charles M. Cohnfeld, 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 20th day of November, 1900, upon the decision of the court rendered after a trial at the New York Special Term dismissing the 'complaint.</p>

Appeal by the plaintiff, Henry K. Spaulding, 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 5th day of December, 1900, granting the defendant’s motion to stay proceedings on the part of the plaintiff until the payment of a judgment for costs, recovered by the defendant in a prior action between the plaintiff’s assignors and the defendant.

<p>Appeal by the defendant, Daniel W. Pugh, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of September, 1900, upon the decision of the court rendered after a trial at the New York Special Term overruling the said defendant’s demurrer to the complaint.</p>

<p>■ Preference on the calendar — waived by serving notice of trial without applying for it, although no note of issue was filed.</p> <p>A party to an action who serves a notice of trial for. the April term, 1899, and also one for the November term, 1900, without serving any notice of a claim for . a preference with either of such notices of trial, waives his right to apply for a preference, under section 791 of. the Code of Civil Procedure, at the December term, 1900, although he served notice of his intention to apply for such preference with his notice of trial for that term; the fact that he did not file a note of issue with the notice of trial for either the April term, 1899, or the November term, 1900, does not alter the case.</p> <p>Appeal by the defendant, The Yule Machine Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 15th day of January, 1901, placing the action' on the preferred calendar.</p>

' Appeal by the plaintiff, Frank M. Peet, from so much of 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 4th day of December, 1900, as requires the plaintiff to pay costs and an extra allowance of costs as a condition of being allowed to discontinue the action.

<p>Society of St. Vincent de Paul, incorporated under chapter 197 of the Laws of 1873 — a legacy to it is valid, although the will be executed within the “ two months before the death of the testator."</p> <p>The Society of St. Vincent de Paul, a corporation organized under a special act (Lawsof 1873, chap. 197), which empowers it to “take real and personal estate - by purchase, gift, devise or bequest subject to the limitations prescribed by law," is not subject to section 6 of chapter 319 of the Laws of 1848, which provides that no devise or bequest to “Any corporation formed under this act, * .* * shall be valid in any will which shall not have been made and executed at. least two months before the death of the testator.”</p> <p>Van Brunt, P. J., dissented.</p>

Appeal by the plaintiff, Gustave Schwarz, 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 24th day of January, 1901, removing the action from the City Court of New York to the Supreme Court, and changing the place of trial of the action to Westchester county for the convenience of witnesses.

Appeal by Hermann D. Newcomb, the son, and Florence W. Newcomb, the wife, of H. Victor Newcomb, an incompetent perspn, 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 16th day of January, 1901j denying their motion directing and requiring H. Victor Newcomb to submit to a physical and mental examination by certain physicians named in the petition, in order to allow them to testify…

<p>Appeal by the defendant, Bird S. Coler, as comptroller of the city of New York, from an order of the Supreme Court, made at the New York Special Term, bearing date the 28th day of November, 1900, and entered in the office of the clerk of the county of New York, granting a peremptory writ of mandamus commanding him to draw his warrant on the chamberlain of the city of New York for the amount due under a contract between the relator and the city of New York, and also from an order entered in said clerk’s office, granting to the relator an extra allowance.</p>

Appeal by the defendants, Charles H. Steinway and others, as -executors, etc., of William Steinway, deceased, from an interlocutory juugment of the Supreme Court in favor of the plaintiff, •entered in the office of the clerk of the county of New York on the 1st day of December, 1900, upon the decision of the court rendered •after a trial at the New York Special'Term sustaining demurrers to .separate defenses contained in the answer of the defendant executors.

<p>Appeal by the plaintiff, Mary Louise Clary-Squire, 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 7th day of June, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of June, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Benjamin M. Whitlock, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of January, 1901, granting the plaintiff’s motion to discontinue the action upon paying the taxable costs and filing a stipulation that if the plaintiff begins a new action for the same relief, and the defendant interposes the same counterclaim interposed in the answer herein, the plaintiff will make the same admissions as are contained in the reply as it now stands.</p>

Appeal by the defendants, The Manhattan Railway 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 New York on the 29th day of June, 1900, upon the decision of the court rendered after a trial at the New York Special Term.

<p> Notion to annul a marriage contracted in the State of New York—the Supreme Oourt may entertain it where both parties are non-residents—the defendant may be served by publication. </p> <p>The Supreme Court of the State of New York has jurisdiction of an action to annul a marriage contracted within the State of New York, irrespective of the residence of the parties.</p> <p>Where the parties interested in such an action are both non-residents the Supreme Court has power to acquire jurisdiction of the defendant by service of the summons by publication, or at the option of the plaintiff personally without the State of New York.</p>

<p> Sham or frivolous answer—what is not. </p> <p>The court has no power to strike out as sham or frivolous an answer interposed, in an action brought to foreclose a mortgage upon real estate, by a defendant who is sought to be held liable for a deficiency, in which he “denies the allegation contained in the third paragraph or subdivision of the complaint that this defendant in the deed therein mentioned, made by the defendant Samuel Shapiro and wife (the mortgagors) to this defendant, covenanted therein and thereby to assume and did assume the payment of the mortgage in said paragraph of the complaint referred to, and this defendant alleges that on the contrary it was expressly understood and agreed between this defendant and said Samuel Shapiro, at the time said deed was executed and delivered, and said deed was delivered upon the express understanding and agreement, that this defendant did not, in and by said deed, assume the payment of said mortgage, and that this defendant was not to be liable for the payment thereof.”</p>

<p> Action against sureties on an undertaking given on an appeal to the Court of Appeals—allegations of the complaint authorizing proof that the judgment of the Court of Appeals was made the judgment of the Supreme Cowrt. </p> <p>An order of the Court of Appeals affirming a judgment of the Appellate Division, with costs, is not of itself sufficient to create a liability upon the part of the sureties on the undertaking given on the appéal to the Court of Appeals, hut there must also he an order of the Supreme Court making the judgment of the Court of Appeals the judgment of the Supreme Court and adjudging that the respondent on the appeal to the Court of Appeals is entitled to a definite amount of costs.</p> <p>A complaint in an action brought to recover upon such an undertaking, which alleges that the Court of Appeals affirmed the order appealed from, with costs, and that a specific sum was “ duly awarded as costs and disbursements on said appeal to the Court of Appeals, in favor of the above-named plaintiff against the appellant on said appeal,” is sufficient to entitle the plaintiff to prove that, after the affirmance of the order by the Court of Appeals, the matter was remitted to, and made the judgment of, the Supreme Court by an order duly entered, and that the costs were there taxed according to law.</p>

Appeal,by the defendant, The Dry Dock', East Broadway and Battery 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 Hew York on the 6th day of January, 1900, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 13th day of February, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, James McGuire, 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 29th day of October, 1900, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

<p>Appeal by the plaintiff, The People of the State of Hew York, from a final judgment of the Supreme Court in favor of the -defendant, entered in the office of the clerk of the county of Hew York on the 11th day of December, 1900, upon the decision of the -court rendered after a trial at the Hew York Special Term sustaining a demurrer to the complaint.</p>

Appeal by the defendants, Edward B. Cuthbert and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of February, 1900, upon the decision of the court-rendered after a trial at the New York Special Term.

<p>Partnership accounting — duty of the referee — evidence of bad faith i7i the sale at auction of partnei'ship assets—pi'esumption as to the value of book aacmmts sold— real estate, where to be sold —-power of a court of equity over a non-resident plaintiff.</p> <p>A referee to take and state an account, appointed under an interlocutory judgment rendered in an. action brought to obtain an accounting of the affairs of a ■partnership, has no power to determine an issue raised by the pleadings as to whether there were one or two distinct firms.</p> <p>The fact'that a partner engaged in liquidating a partnership business, after his. copartner had protested against the sale of the assets at public auction and had unsuccessfully attempted to enjoin such a sale, sold the assets at ..public auction under a notice stating the maximum value of some of the assets and that others were “ supposed to have little or no value,” is strong if not conclusive evidence of bad faith on the part of the liquidating partner.</p> <p>Where a portion of the assets thus sold by the liquidating partner consisted of book accounts, for some of which the liquidating partner held collateral security equal in whole or in part to the amount of the indebtedness, the liquidating partner, in the absence of proof as to their actual value, is chargeable with their face valu§; the utmost relief to which the liquidating partner is. entitled is an opportunity to exonerate himself from liability for the face value of such accounts by transferring them to thé receiver appointed in the action, brought for an accounting.</p> <p>Real estate belonging to the copartnership should be sold at the place and in the State where it is situated.</p> <p>The court has power to compel a non-resident, who submits himself to its jurisdiction and invokes the exercise of its equitable powers, to bring within its. jurisdiction- property necessary for the ultimate settlement of the rights of the parties and to compel him to execute a conveyance thereof, and, in the-event of his failure to obey the requirement, to charge the value thereof against his interest in the property within its jurisdiction.</p>

<p>Appeal by the plaintiff, the L. D. Garrett Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 11th day of December, 1900, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint upon the merits.</p>

<p>Appeal by the defendant, Jessie Meyer, from so much of 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 19th day of February, 1900, upon the decision of the court rendered after a trial at the New York Special Term in an action to foreclose a mortgage, as makes her liable for a deficiency.</p> <p>The action is for the foreclosure of a mortgage. On May 31, 1889, the defendant Jessie Meyer, the appellant herein, being then the owner of certain premises in the city of New York, executed a deed thereof to John Heyman; on the same day Heyman, to secure a loan of $55,000, executed a bond conditioned for the. payment of said sum, and as security for the payment of the same, made, executed, duly acknowledged and delivered the mortgage in question, and on the same day executed a deed back to Jessie Meyer, subject to the mortgage. In 1893 Jessie Meyer paid $11,000 on account of the mortgage debt, thus reducing the same to $44,000, and received a release of a portion of the" mortgaged premises. In 1894 an action was brought to foreclose the mortgage, and Jessie Meyer as. owner of the property was made a party defendant; upon her solicitation the action was settled and discontinued, she paying the costs and interest, and, as a further consideration for such settlement and discontinuance, she executed and delivered her bond dated February 2, 1895, conditioned for the payment of said sum of $44,000 and the interest thereon, in which it was recited that “ the above obligation is given by the said Jessie Meyer as a collateral .security and to secure a certain bond and mortgage collateral thereto made by John Heyman,” etc., referring to the bond and mortgage in question.</p> <p>By deed dated January 31, 1895, Jessie Meyer conveyed the mortgaged premises to one Lieb, which deed was recorded February 4, 1895. Lieb gave back to Jessie Meyer an option to repurchase "the property, and thereafter reconveyed the premises to her, and she was the owner when the present action was brought. When the mortgage was made the elevated railroad Company was operating, its railroad in front of the premises on Second avenue in the same manner as it is now; and in July, 1898, Lieb, still holding the record title to the mortgaged premises, settled with the railroad •company all his claim for damages to his easements of light, air and access occasioned by its occupation of the street, receiving as consideration the sum of $540 ; $300 of which was paid to the mortgagees for their consent, which the railroad company insisted upon having.</p> <p>It is conceded that the plaintiffs were entitled to judgment of foreclosure and sale ; but it is contended that they' w’efe not entitled to a judgment against the appellant for deficiency, on the ground that she was but a surety for the mortgage debt; that the release executed by the owner was. without her knowledge or consent, and that thereby she became discharged from all liability on her bond.</p> <p>The court below decided that, conceding the liability of Jessie Meyer to be that of surety, without so deciding, she could claim, a release only to. the extent to which the. security was impaired, and that, as there had been no impairment, her liability remained unchanged. The usual judgment of foreclosure and sale was entered, charging the defendant Meyer with any deficiency arising on the sale, and from such judgment this appeal is taken.</p>

Appeal by the defendant, D. Maitland Armstrong, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Few York on the 1st day of Sep- . tember, 1900, upon the report of a referee.

Appeal by the plaintiffs, Richard Delafield and others, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 24th day of January, 1901^ vacating a warrant of attachment upon the papers on which the same was granted.

<p>Appeal by the defendant, Harold P. Brown, 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 20th day of November, 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 15th day of November, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Jonathan Thompson, an infant over fourteen years of age, by Samuel Ti Cushing, his guardian ad litem, and " by the defendants Jane Remsen Thompson, the younger^ and Elizabeth Remsen Thompson, by Samuel Phillips Savage, their guardian ad litem, from a judgment of the Supreme Court in favor of the defendants, Henry Hart and others, entered in the office of the clerk of the county of New York on the 4th day of January 1901, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint.</p> <p>The action was brought for the partition of three tracts of land with adjacent water front, situated within the blocks bounded by Fourth avenue, One Hundred and Twenty-ninth street, One Hundred and Thirty-first street and the Harlem river. Before the death of William Remsen this property belonged one-third to him and two-thirds to the defendant Henry Hart. William Remsen died in 1895, .leaving a last will and testament which was duly proved and admitted to probate, the important parts of which are as follows : After making certain specific bequests the testament provides :</p> <p>“ Thwd. All the rest, residue and remainder of my estate, both real and personal, of whatsoever kind or nature, and wheresoever situate, of which I may die seized or possessed, or be .in any way entitled to, and whether held by me solely, or in common with others, I give, devise and bequeath unto my executors hereinafter named and the survivors and survivor of them, upon the trusts, and to and for the-uses and purposes following, that is to say:</p> <p>“ 1st. In trust, to divide the same into five equal parts or shares, and to allot to my children, Robert George Remsen, Charles Rem-sen, Jane wife of Joseph T. Thompson, Elizabeth Remsen, and Sarah wife of William Manice, each, one of said five parts or shares.</p> <p>“ 2nd. And as to each of such parts or shares to continue seized of the same for and during the life of the child to whom such part or share is allotted upon the trust, to collect and receive the rents, issues, profits, dividends, interest moneys and income arising therefrom, and after paying all the taxes, assessments, repairs, charges, costs and expenses thereon, to apply in the cáse of my son Robert George Remsen the net annual income arising from the part or share allotted to my said son Robert George Remsen to his use, maintenance and support, for and during his life, and in the case of my other son Charles, and of my daughters, to pay over to them respectively the net annual income of the share or part allotted to them, and on the death of each of the children mentioned in this third clause of my will, to convey, pay over and distribute the whole capital of the part or share allotted to the child so dying, with all accumulations thereof, to and among the lawful issue, if any, of such deceased child, and if such child leave no lawful issue then surviving, then to divide, distribute and pay over the said capital and accumulations in equal portions to and among the children then living of any surviving brothers and sisters including the children then living of any deceased brother or sister mentioned in this third clause of my will per capita, and not per sUrpesP</p> <p>By the 4th clause of the will the trustees of the several shares are given power to “ put, place, invest and keep the principal of each share,” and to “ improve, alter, repair and rebuild any of the real estate held by them under the provisions of this will; ” to lease any of the real estate for terms not exceeding twenty-one years, and at any time during the continuance of the trusts “ to ■ sell and convey any real estate held by them under the provisions of this will, or purchased by them, on such terms and conditions and either wholly for cash or partly for cash and partly on credit, and to give good and sufficient deeds of conveyance therefor.”</p> <p>By the 5th clause of the will each of the children to whom a 'part or share was given was authorized to dispose of the same by will to and among his or her lawful issue, if any, and in default of such issue then to and among his or her surviving sisters and brothers, and the lawful issue of any deceased brother.or sister mentioned in the 3d clause.</p> <p>By the 6tli clause it is provided that, in case of the death of either or any of the sons or daughters mentioned in the 3d clause before the death of the testator, the part or share of the child so dying was to be conveyed, paid over and distributed to the lawful issue of such child, and failing such issue, then to the surviving brothers and sisters of the child so dying, including the children then living of any deceased brother or sister mentioned in the 3d clause, per capita and not per stirpes.</p> <p>• The 7th clause is as follows: “ Seventh. Por-the more convenient discharge of the duties herein imposed upon my executors, I authorize and empower them or such of them as shall act, and the survivors and survivor of them, to compromise, compound, settle and adjust by arbitration, purchase or otherwise according to their discretion, all accounts, contracts, agreements, claims, demands, suits at law or in equity and controversies in favor of, or against or belonging or relating to me or to my estate, to make all payments necessary therefor out of any funds in their hands, to partition any lands or real estate which I may hold solely or in common with others either by voluntary deeds or by means of actions or other proceedings instituted for that jturpose, to exchange lands and to purchase any outstanding leases, to lease or demise all or any part of the real estate which I shall own at my decease or which they may acquire under the provisions of this my will on such terms and for such rents as they shall deem most advantageous and to renew all or any leases-thereof, to sell all or any part of the estate, real and personal, which I shall own at my decease or which my said executors may acquire under the provisions of this my will, at such times and on such terms and in such manner as in their discretion shall seem best and either for cash or partly for cash and partly for credit to be secured by bond and mortgage thereon, and to give good and sufficient deeds of conveyance therefor.”</p> <p>He then nominated and appointed his son Charles and his sons-in-law William Manice and Joseph T. Thompson to be the executors and trustees under the will.</p> <p>Besides the undivided interest in the land sought to be partitioned in this action, which is substantially unimproved and unproductive, the testator left a personal estate valued at more than $3,300,000 ; twenty-eight separate pieces of improved and unincumbered real estate in Manhattan, and an undivided two-thirds interest in fourteen other parcels of improved real estate in that borough. At the time of his death the testator was a widower, and his sons, Robert George Remsen and Charles Remsen, and the three daughters, Jane R. Thompson, Elizabeth Remsen and Sarah Manice, survived him. Robert G. Remsen, the son mentioned in the 3d clause of the will, died in January, 1898, intestate, without issue and unmarried.</p> <p>Charles Remsen and William Manice qualified as executors and assumed the execution of the trusts created for the testator’s children, Robert, Charles, Elizabeth and Sarah, but resigned the trust for Mrs. Thompson. Joseph T. Thompson renounced his executor-ship, and the United States Trust Company of New York was appointed cotrustee with him of Mrs. Thompson’s part or share of the trust estate.</p> <p>The plaintiff, a son of Jane R. Thompson, one of the eestuis que trust under the will in question, brings this action for partition, claiming that upon the death of Robert G. Remsen an undivided one-fifteenth share or interest in the premises in question thereupon passed to the children of his brothers and sisters then living, by virtue of the 2d paragraph of the 3d clause of the will.</p> <p>At the time of Robert’s death there were eight of the grandchildren of testator living, one of whom, Elizabeth Remsen the younger, was born after the death of the .testator.</p> <p>The trial court held and decided that the plaintiff had no such interest in the property described in the complaint as entitled him to maintain an action for partition, and, therefore, dismissed the complaint. Judgment was entered accordingly, and from such judgment appeals were taken by the plaintiff and by the defendants Jane Remsen Thompson the younger and Elizabeth Remsen Thompson.</p>

Appeal by the plaintiff, Frank R. Abbey, from a final judgment-, of the Supreme Court in favor of the defendant, Jerome B. Wheeler, entered in the office of the clerk of the county of New York on the 30th day of November, 1900, upon an interlocutory judgment entered in said clerk’s office on the 3d day of April) 1895, which interlocutory judgment was entered pursuant to an order of' the General Term of the Supreme Court, entered in said clerk’s office on the 25th day of…

Appeal by Frederick A. Betts, as receiver of the National Life Association, 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 30th day of April, 1900, denying his motion to vacate and set aside a warrant of attachment and to vacate and set aside the judgment in the action.

<p>Appeal by Mary Hynes from a final order of the Supreme Court,, entered in the office of the clerk of the county of New York on the 7th day of March, 1900, upon the report of a referee in a special proceeding directing that certain money deposited with the comptroller of the city of New York, awarded to the appellant in a condemnation proceeding, be paid to the respondents.</p>

<p>Purchaser at a partition sale—what he must show to be relieved from his bid — when interest begins to run on a legacy—presumption as to personalty where a legacy is charged on land.</p> <p>A purchaser at a sale in partition will not be relieved from his bid unless he establishes facts creating such a doubt concerning the validity of the title to the property as will affect its value and , interfere with its sale to a reasonable purchaser.</p> <p>A legacy does not begin to bear interest until the expiration of a year after the appointment of an executor of the will.</p> <p>"Where a legacy is made a charge upon land it will be presumed, in the absence of evidence to the contrary, that the testator left sufficient personal property to pay the- legacy without resorting to the land.</p>

Appeal by the relator, The H. B. Claflin Company, from an order of the Supreme Court, made at the New York Special Term andi entered in the office of the clerk of the county of New York on the 30th day of August, 1900, dismissing a writ of certiorari theretofore issued in the proceeding to review the assessment for taxation made against the relator.

Appeal by the plaintiff, Benjamin W. Fleisher, from a final judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 6th day of July, 1900, upon the decision of the court, rendered after a trial at the Hew York Special Term, sustaining a demurrer to the reply of the plaintiff. The action was brought against a trustee of a railroad mortgage.

Appeal by the plaintiff, Antonio De Sisto, from an order of the Supreme Court, made at the New York Appellate Term and entered in the office of the clerk of the county of New York on the 20th day of June, 1900, reversing a judgment in favor of the plaintiff rendered by the Municipal Court of the city of New York, borough of Manhattan, second district, and directing a new trial.

<p> Agreement unde,r seal executed, by an administrator, alleged to act also as the attorney for distributees of the estate — the distributees m'e not proper parties to an action to enforce it—an order overruling a demurrer is not appealable. </p> <p>The complaint in an action alleged that the plaintiff, for the purpose of settling an account between himself, as surviving partner of a copartnership, and the estate of Edward F. Randolph, his deceased partner, entered into an agreement 1 with the defendant Obadiah W.- F. Randolph, individually and as administrator with the will annexed of Edward F. Randolph, and as agent and attorney in fact of each of the other defendants who were distributees of the estate of Edward F. Randolph. The agreement, which was incorporated into the complaint by a reference thereto, was executed under seal by the plaintiff and by Obadiah W. F. Randolph, as administrator with the will annexed of Edward F. Randolph, and contained no mention of any of the parties defendant other than Obadiah W. F. Randolph. The complaint demanded as relief that “the said defendants, and each and every of them, may be adjudged and decreed to specifically perform the terms of their said agreement.”</p> <p>Held, that the distributees of the estate of Edward F. Randolph were not necessary or proper parties to the action;</p> <p>That as they had made no independent contract, they could not be made parties to the sealed instrument by the allegation that they authorized the administrator to execute such instrument;</p> <p>That such instrument was the contract of the administrator alone.</p> <p>An appeal will not lie from an order overruling a demurrer.</p> <p>Rumsey, J.,- dissented.</p>

Appeal by the plaintiff, the Connecticut Trust and Safe Deposit Company, from so much of a judgment of the Supreme Court in favor of the plaintiff and the defendant Leslie C. Wead, entered in the office of the clerk of the county of New York on the 18th day of January, 1901, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term, as directs the dismissal of the complaint as to the defendant Leslie C. Wead.

<p>Trust created by mil, indefinite as to the beneficiaries—right of the Attorney -General to be made a party to an action for its construction.</p> <p>Under chapter 701 of the Laws of 1893, providing that no gift for religious, educational, charitable or benevolent uses, in other respects valid, shall fail for indefiniteness as to the beneficiaries, and that if uo person is named as the trustee, the title to the trust property shall vest in the Supreme Court and that “the Attorney-General shall represent the beneficiaries in all such cases and it shall be his duty to enforce such trusts by proper proceedings in the court,” the Attorney-General is entitled to be made a party to an action brought to obtain a judicial construction of a will by which the testator gave his residuary estate to certain persons to apply the same “ to the creation of some charitable or educational institution in the city of New York,” and provided, “ I desire to place no restriction upon them with regard to the character of such charitable or educational institution, excepting that I desire the same to be non-sectarian, and that I do not desire to have the fund hereby created to be divided between existing charities (but this not to preclude said legatees from enlarging or placing upon a solid foundation an existing charitable institution, if they shall deem it advisable so to do), having full confidence that they will found a charity which will add something to the improvement of the physicial, moral or intellectual improvement of those for whose benefit they will create such institution.”</p> <p>The objection that the Attorney-General has no standing to represent the beneficiaries until the latter are designated by the trustees, is untenable.</p>

Motion by the petitioner, the Metropolitan Street Railway Company, to confirm the report of the referee in a proceeding instituted for the disbarment of Benjamin Oppenheim, an attorney and counselor at law.

Motion by the plaintiff, J ames Talcott, 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 at the Yew York Trial Term on the 23d day of October, 1900.

Appeal by the defendants, Duncan McGibbon and another, from an interlocutory 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 18th day of January, 1901, upon the decision'of the court, rendered after a trial at the Hew York Special Term, sustaining the plaintiff’s demurrer to a separate defense contained in said-defendants’ answer.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office, of the ..clerk of the county of New York on the 23d day of November, 1900, upon the' verdict of a jury for-$500, and also from an order entered in said clerk’s office on the 3d day of December, 1900, denying the defendant’s motion for a new-trial made upon the minutes.

<p>Appeal by the plaintiffs, Alessandro Bolognesi and another, from an order of the Supreme Court, made at the New York Special Term and entered- in the office- of the clerk of the county of New York on the 19th day of November, 1900, granting the defendants’ motion requiring the plaintiffs to give a bill of particulars or to stipulate that they will confine their claim to' general damages.</p>

Appeal by the defendant, Richard Cooper, from a judgment of conviction 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 14th day of January, 1901, convicting him of the crime of receiving stolen goods knowing them to have been stolen.

Appeal by the plaintiff, Julius Meyers, from an interlocutory 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 21st day of December, 1900, upon the decision of the court rendered after a trial at the New York Special Term sustaining a demurrer to the complaint.

Appeal by the plaintiff, Henry Boeger, as president of the Lincoln Kranken Unterstutzungs Yereins Ho. 2, from an order of the • Supreme Court, made at the Hew Y ork Trial Term and entered in the office of- the clerk of the county of Hew York on the 16th day of January, 1901, denying the plaintiff’s motion for a preference upon the calendar of the court.

Appeal by the defendants, Charles H. Knox and others, as commissioners, constituting the municipal civil service commission of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of January, 1901, directing the issuance of a peremptory writ of mandamus requiring them to certify that an increase, of salary as prayed for by the relator had been made pursuant…

Appeal by the plaintiff, Gudrun S. Collier, 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 6th day of April, 1900, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Kings County Trial Term.

Appeal by the defendant, The Board- of Water Commissioners of the Village of. Peekskill, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of-the county of Westchester on the 26th day of May, 1900, upon the decision of the court, rendered- after a trial at the Kings County Special Term, overruling a demurrer to the amended return made to an alternative writ of mandamus.

<p>Appeal by the relator, the New York and Queens Gas and Electric Company, from an order of the Supreme Court, made at the Queens County Special Term and entered ip the office of the clerk of the county of Queens on the 30th day of July, 1900, quashing á writ of .certiorari issued to review an assessment on the relator’s capital stock.</p>

<p>Appeal by the defendant; August G. Grauer, 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 23d day of April, 1900, upon the decision of the court rendered after a trial at the Queens County Special Term.</p>

<p>Appeal by the plaintiff, Townsend Westbrook, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 20th day of July, 1900, upon the decision of the court rendered after a trial at the Orange Special Term sustaining a demurrer ta the' complaint.</p>

Appeal by the defendant, Gustave Loeb, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 18th day of June, 1900, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the 18th day of June, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Rose J. Regensburg, 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 26th day of April, 1900, upon the verdict of a jury, and also from an order entered in the said clerk’s office on the 31st day of March, 1900, denying^ the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, The People of the State of Hew York, irom a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, fifth district, in favor of the defendant, rendered on the 10th day of October, 1900, dismissing the complaint.</p>

Appeal by Francis Larkin, Jr., and another, as executors of George A. Brandreth, deceased, from a decree of the Surrogate’s Court of the county of Westchester, bearing date the 29th day of June, 1899, and entered in said Surrogate’s Court, confirming the report of the appraiser appointed in the proceeding..

Appeal by Robert H. Arkenburgh and' another, two of the legatees named in the last will and testament of Robert H. Arkenburgh, deceased, from a decree of the Surrogate’s Court of the county.of Rockland, entered in said Surrogate’s Court on the 30th day of December, 1899, settling the accounts of Eliza J. Arkenburgh and and another, as executors of Robert H. Arkenburgh, deceased, and also from an order bearing date the 21th day of January, 1900, and entered in said…

Appeal by the defendants, The City of New York 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 Kings on the 19th day of February, 1900, upon the verdict, of a jury for $5,000, and also from an order entered in said clerk’s office on the 27th.day •of February, 1900, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the relator, James H. Nason, from a final 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 fTth day of December, 1898, dismissing an alternative writ of mandamus, commanding the respondents to reinstate the relator in the position of clerk in the office of the departtnent of' taxes and assessments of the city- of New York, and also from an order made at the Kings County Trial Term…

<p>Deed of land described by a map ■number — effect of a resolution of a voluntary .association authorising the fencing in of part of a street — acceptance of the dedication by legislative act.</p> <p>An unincorporated association purchased in 1850 a quantity of land in the present city of Mount Yernera, the title being taken in the name of its presi • dent. April 18, 1851, a map of the land, plotted for a village, delineating the streets as sixty feet in width, was presented to the association and was. afterwards approved by it, and was December 22, 1851, filed in the county clerk’s office. September 26, 1851, before any deeds of the property were executed, the association passed a resolution which was nowhere publicly-recorded, providing “that each member be privileged to set his fence five feet on the sidewalk, still leaving the sidewalk ten feet clear.” November 1, 1851, the president of the association conveyed to the individual members of the association the lots into which the land was divided as laid down on the map without making in the.deeds thereof any mention of the resolution of the association, but bounding and describing the premises by the streets, numbers and dimensions set forth in the map. Thereafter the Legislature passed chapter 114 of the Laws of 1854, section 7 of which' provides that “the said village of Mount Yernon shall be and is hereby constituted a separate road district, and all the streets and avenues in said village shall be considered : public highways of the width of sixty feet.”</p> <p>Held, that the unrecorded resolution of the association did not operate to reduce the width of the streets as laid down on the map, but at most only superimposed upon the public easement therein a private easement in the abutting - -owners to construct their fences “-five feet on the sidewalk,” for the purpose of affording courtyards for their premises;</p> <p>That the Legislature might properly accept by the act of 1854 the dedication of the streets as laid down on the map subject to the private easement;</p> <p>That a subsequent grantee' of one of the lots was not entitled to erect his house ■ “ five 'feet, on the sidewalk.”</p>

Appeal by the defendant, The Security Trust and Life Insurance Company, 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 23d day of December, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of January; 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The New York, New Haven and Hartford 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 Dutchess on the 24th day of April, 1900, upon the verdict of a-jury for $3,000, and also from an order, bearing date the 19th day of April, 1900, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes. .