Volume 59 — New York Appellate Division Reports

<p>Appeal by the plaintiff, Charles M. Allen, 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 1st day of February, 1900, upon the verdict of a jury, and also from an order entered in ■said clerk’s office on the 31st day of January, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Municipal ordinances when -it may not impose a tax upon a livery stable keeper in another State, whose carriages at intervals come. into the city of New York — what penalty is so indefinite as to be unenfioreible.</p> <p>Section 49 of the Greater New York charter (Laws of 1897, chap. 378), authorizing the municipal assembly to make ordinances “in relation to the licensing and business of * * * hackmen, * * * and to fixing the license, if any, therefor,” and “To regulate the rates of fare to be taken by owners or drivers of hackney coaches or carriages; such owners shall pay an annual license fee to be determined by the municipal assembly,” does not authorize the passage of an ordinance imposing a license fee sufficiently large to constitute a tax, independently of the cost of issuing and recording the license, or of any special police control over the matter regulated, upon a person engaged in conducting a livery stable in the State of New Jersey, who at intervals sends his carriages into the city of New York for the sole purpose of meeting the steamers of a transatlantic line and conveying the passengers to their respective destinations..</p> <p>Semble, that such a person is not a public hackman within the meaning of the ordinance.</p> <p>Semble, that a provision in the ordinance imposing for a violation thereof 1 ‘ a penalty of not less than S3 nor more than $35 for each offense,” is so indefinite as to render the validity of the ordinance doubtful.</p>

Appeal by the defendant, The City of Hew York, from a judgment of the .Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of October, 1900, upon the verdict of a jury for $4,500, and also from an order, bearing date the 5th of October, 1900, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes. *

<p>Alternative mandamus — denial of, on disputed facts — remedy by-mandamus, not available where a right of appeal exists —waiver of his right by a veteran, if notice be not given.</p> <p>The denial of an alternative writ of mandamus on disputed facts is equivalent to an adjudication that the allegations of the relator standing alone do not furnish a legal ground for the relief sought.</p> <p>Semble, that an attendance officer of the school board of the borough of Queens in the city of Hew York, appointed under section 1116 of the Greater Hew York charter (Laws of 1897, chap. 378), on the nomination of the borough superintendent and confirmed by the school board, must, if he is unlawfully discharged by the borough superintendent, take an appeal to the school board before he can institute a mandamus proceeding to compel his reinstatement.</p> <p>A veteran volunteer fireman appointed to a position in the civil service of the city of Hew York under section 1636 of the Greater Hew York charter, by reason of his having held a’ position abolished or made unnecessary by that act, may, in the absence of notice to the appointing power that he is a veteran ■ volunteer fireman, entitled to the protection of section 31 of chapter 370 of the Laws of 1899, he removed in the same manner as if he were not entitled to such protection.</p> <p>A notice that he is a veteran, volunteer fireman served upon the appointing-power after his removal is ineffective.</p>

Appeal by the plaintiffs, David Allen and another, from a judgment of the Municipal Court of the city of.Few York, borough of Brooklyn, in favor of the defendant, rendered upon the decision of the court,

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, first district, in favor of the plaintiff, rendered on the 7th day of March, 1900, upon the decision of the court.

<p>Appeal by Pasquale Acconcia from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Westchester on the 14th day of November, 1900, revoking and canceling a liquor certificate granted to him.</p>

<p>Appeal by the plaintiffs, Emily 0. Butler and judgment of the Stipre'me Court in favor of the def ‘in the office of the clerk of the county of Westch day of December,' 3.898, upon the decision of’ the after a trial at the Westchester Special Term, dism: mother, from a endant, entered ester On the 3d court rendered lissing the complaint upon the ground that the plaintiffs have an adequate remedy at law ■</p>

<p>Waiver of a husband’s right, existing prior to the Married Women’s Act of 1848, to money belonging to his wife — effect of his receiving it from his wife in trust for their son.</p> <p>A husband absolutely entitled to reduce to possession money bequeathed to his wife, before the passage of the Married Women’s Act in 1848, might waive such right and permit his wife to hold the money as part of her separate estate and might properly receive it from the wife upon trust to hold it for the benefit ■ of their son.</p>

<p>Negligence — liability for turning loose a horse which goes upon the lot of another person and there injures a child — direct cause of the injury.</p> <p>Where there is evidence from which it may be found that a horse was deliberately turned loose and driven from his owner’s stables late in the afternoon of a summer day, and passed into the public highway and from thence to an unfenced vacant lot adjoining the owner’s premises and there ran over and *killed one of a number of children who were playing in the lot which did not belong to the child or to the child’s parents, the question whether the owner of the horse is liable for the damages resulting from the child’s death should be submitted to the jury.</p> <p>In such a case the injury proceeds so directly from the wrongful act that, according to common experience and the usual course of events, it might have reasonably been expected.</p>

<p>Appeal by Benjamin Robinson, judgment debtor in the above-entitled proceeding, from an order of the Supreme Court, made at the.Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 7th day of December, 1900, adjudging him guilty of contempt for disobeying an order of the Supreme Court, and directing the defendant to pay the sum of $127 to the receiver appointed in the proceeding, with notice of an intention to bring up for review upon such appeal the order requiring such payment, entered in said clerk’s office on the 3d day of November, 1900.'</p>

<p>. Appeal by the plaintiff, Abraham J. Pratt, an infant, by Sarah E. Manuel, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, Martha Johnston, entered in the office of the clerk of the county .of Rings on the 10th day of July, 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.</p>

<p> Action for damages for a breach of a contract — it is not a ba/r to one to recover money advanced, under it—an objection that one is in affirmance and the other in disaffirmance of the contract. </p> <p>Where a contract, among other things, provides that one of the parties thereto shall advance a sum of money to the other party thereto who shall organize a corporation, which sum is to be returned if the corporation is not organized within a specified period of time, the pendency of an action to recover damages for an alleged breach of the contract is not a bar to an action to recover the money advanced thereunder upon the ground that it was obtained by fraud and deceit.</p> <p>The objection that the commencement of the action for the breach of the contract constituted an affirmance thereof, which would preclude a recovery on the ground of fraud and deceit, cannot be raised for the first time upon appeal.</p>

<p>Motion by the plaintiff, Stephen N. Halliday, 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 at the close of the plaintiff’s case, by direction of the court, after a trial before the court and a jury at the Kings County Trial Term.</p>

<p>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 Queens on the 24th day of January, 1900, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 8th day of February, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Negligence, in operating on a patient who pays only for hom'd and attendance and not for the sv/rgeon’s services — a post graduate school and hospital where it ocaursis not liable therefor.</p> <p>A corporation maintaining a school for the instruction of persons who have taken degrees as doctors of medicine, and a hospital for the treatment of diseased and injured persons, which has no capital stock and whose funds are derived from public and private donations, from devises and bequests, the board of paying patients and its tuition fees (the city of New York being authorized by statute to pay to it a large sum annually for its “ charitable uses and purposes ”), and whose officers, directors, faculty, physicians and surgeons render their services gratuitously, is not liable to a pay-patient for the negligence of one of its surgeons in whose selection the corporation has exercised due- care, where it appears that the sum paid hy the patient to the corporation was for room, hoard and attendance,, and that no charge was made for the services of the surgeon.</p>

<p> Contract to superintend the construction of a system of village sewers —period of its continuance </p> <p>The board of sewerage Commissioners of a village, acting under the authority of chapter 375 of the Laws of 1889, as amended by chapter 202 of the Laws of 1895, entered into a contract by which the engineer, in consideration of the payment of ten dollars per day, agreed to make the preliminary surface maps and profiles necessary for a sewerage system, to recommend the best sewerage system and to prepare complete plans and specifications therefor; ‘ ‘ to superintend and inspect, as supervising engineer, the construction of any sewers authorized to be constructed within a* year from the date of the letting of the contract.” The contract further provided that the appointment as supervising engineer should “ date three months prior to the date hereinafter decided upon, when the bids are opened for the construction of the system of sewers; ”, that if it should be decided that “ the appointment of the supervising engineer ” was illegal, or if the board should “ appoint another engineer,” the members of the board should be individually liable for the services rendered prior thereto. It also provided that “if for any reason work should be suspended for- a greater period than three weeks, no pay will be demanded for time in excess of said period.”</p> <p>Held, that the engineer’s engagement “ to superintend and inspect as supervising engineer the construction of any sewers authorized to be constructed within a year from the date of the letting of the contract,” was for a fixed period, not known in advance but dependent upon the duration of a specified piece of work, and that the engineer could not be. arbitrarily discharged before such work was completed.</p>

Appeal by the defendant, James Seaman, supervisor of the town of Woodbury, from an order of the Supreme Court, made at the Orange Special Term and bearing date the 1st day of December, 1900, and entered in the office of the clerk of the county of Orange, directing that a peremptory writ of mandamus issue to the said James Seaman, supervisor of the town of Woodbury, requiring him forthwith to sign bonds issued by the town board of the town of Woodbury for the purpose of…

<p> Negligence—injury resulting from an explosion of semi-liquid slag being dumped by an employee on ground in which cracks filled with water were permitted to exist. </p> <p>In an action brought to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant, a smelting company, it appeared that in the course of the business hot semi-liquid slag or dross was dumped on marshy ground adjoining the defendant’s premises; that the action of the tide was liable to cause cracks to open in the hardened slag and to expose the water, and that if the hot slag were suddenly dumped into such a crack an explosion would occur, but that it might be emptied slowly into the cracks without danger. The dumping ground was in charge of a foreman whose duty it was to direct the men where to dump and to keep the ground in good condition. On the night of the accident this foreman directed the plaintiff, who was a member of the night gang, to dump slag in a certain place, and while obeying this direction the wheel of his buggy sank into a crack, overturning the buggy and causing an explosion which seriously injured him. The crack had opened up two or three days before the accident, but the plaintiff had no knowledge of its existence, nor was it claimed, although he had been in the defendant’s employ seven or eight months, that he knew or had reason to know that an explosion would result from the sudden contact of slag with -water.</p> <p>Held, that a judgment in favor of the plaintiff should be affirmed;</p> <p>That the accident was caused by the failure of the defendant’s representative to keep in a reasonably safe condition the ground over which the plaintiff was obliged to pass in order to reach the place where he was to do his work;</p> <p>That the danger was not an incident of the plaintiff’s employment and did not result from the prosecution of the work.</p>

Appeal by the defendant, The Brooklyn Wharf and Warehouse Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of April, 1900, upon the decision of the court rendered after a trial at the Kings County Special Term, enjoining the defendant from constructing an extension to a pier, and directing the removal by the defendant of certain piles forming part of such proposed extension.

<p>Negligence — injury occasioned by a motorman with defective sight running his cat-against the conductor of another car.</p> <p>In an action brought to recover damages resulting from the death of a conductor on the defendant’s railroad, who, while adjusting the fender at the rear of his car, was killed by a car running into him, the motorman of the colliding car, who had been in the defendant’s employ about a year, testified that the accident was due to his defective eyesight, although it appeared that he could see the decedent’s car, which was illuminated. He further testified that he had had two previous collisions, which were also due to the same cause, and that he had explained this fact to the inspectors or officers of the defendant.</p> <p>Held, that the evidence was sufficient to support a conclusion that the motorman was not physically competent, and that the accident was caused thereby, and that the defendant could and would have discovered his condition in the exercise of reasonable diligence.</p>

Appeal by the plaintiff, Helene M. Ryan, from a judgment of the Supreme Oourt in favor of the defendants, entered in the office -of the clerk of the county of Suffolk on the 13th day of June, 1900, upon the decision of the court rendered after a trial at the Suffolk Special Term dismissing the complaint upon the merits.

<p> A gift by will to a class—where some of the class are incompetent to talce, became of being witnesses to the will, their shares pass to the. others as a class. </p> <p>Where a will provides, “ I give and bequeath to the sons and daughters of Cor- . nelius Simonson all my real ‘and personal estate remaining, to be equally divided among the said sons and daughters, share and share alike,” and two of the sons of Cornelius Simonson are rendered incapable of taking, by reason of having been witnesses to the will, the testator does not die intestate as to the shares of the two-witnesses, but such shares pass to their brothers and sisters as a class.</p>

<p>Appeal by the plaintiff, The Continental National Bank of New Tork, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of May, 1899, upon the verdict of a jury,, and also from an order entered in said clerk’s office on the 29th day of March, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Xandloj’d and tenant — what constitutes an abandonment of a renewal of a lease and creates a holding from, month to month.</p> <p>A lessee, whose lease gave it the privilege of a renewal for another year, served upon the lessors a notice stating that it wished to renew the lease, but that it desired to obtain additional room. After some negotiations, the lessee sent to the lessors an instrument reciting: “ This is to certify that we, Adams Brothers Co., accept your proposition regarding leasing premises Nos. 152 and 154 Fort Greene Place, Brooklyn, New York, and additional adjoining space as specified in option expiring this day, January 29, 1900.” The lessors caused to be inserted in the new lease a provision not contained in the old lease, and the lessee refused to execute it. Subsequently the lessee wrote to the lessors expressing his approval of a suggestion made by the lessors’ attorney that all negotiations in regard to the new lease be declared at an end and stating, “ in the meantime you will consider us tenants from month to month at the rate of $83.334 Per month, pending any new deal which we might hope to make with you.” The lessors made no objection to this proposition and received rent-for six months in accordance therewith without protest.</p> <p>Held, that the lessors’ conduct must be deemed an acquiescence in the lessee’s proposition to hold from month to month, at least to the extent of preventing the lessors from asserting that they had elected to regard the lessee as holding over, under the terms of the former lease, for a year.</p>

<p>Appeal by the plaintiff, Margaret Fogarty, from a judgment of the Supreme Court in favor of the defendant, entered in the office of- the clerk of tliei county of Kings on the 4th day of April, 1900, upon the dismissal of the complaint at the close of the plaintiff’s case by direction of the court, after a trial before the court and a jury at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 11th day of April, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Landlord and tenant — memorandum not expressing■ a consideration .or the substantial terms of a contract of lease for more than a yea/r — it is not a compliance mth- - the Statute of Frauds..</p> <p>A memorandum dated March 26, 1897,' stating, “ Dear Madam..— We agree to» take entire charge of the premises No. 100 West 109th Street, corner Columbus. Ave., keeping it in good order and paying all expenses until May 1st, 1900. We further agree to pay you the sum of seventy-five dollars ($75) per month, beginning May 1st, 1897. If, at the expiration of this agreement, the rent of said property shall have advanced, and if said agreement shall be renewed, we» will increase the monthly payment to you in proportion to the advance in rents,’’ is not a sufficient compliance with the Statute of Frauds, as it does not. express the consideration for the monthly payments of seventy-five dollars or the substantial and material terms of the contract, and parol evidence is not. admissible to supply the deficiency.</p>

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of April, 1900, upon the verdict of a jury for $4,000, and also from, an order entered in said clerk’s office on the 20th day of April, 1900, denying the defendant’s motion for a new trial made upon the minutes.

<p>Amendment of a wan'ánt of attachment by stating the ground thereof, pending a motion to vacate it—-relative position of a beneficiary under a will and of am assignee in respect to a cause of action — assignment of a portion of a debt.</p> <p>The court has power, alter the making of a motion to vacate a warrant of attachment because it did not state the ground on which it was granted, to supply the omission by an amendment to the warrant.</p> <p>A beneficiary under her father’s will occupies a relation to a claim acquired thereunder, which gives to her sworn statement greater authenticity than would exist in the case of a stranger who has purchased a cause of action.</p> <p>It seems, that an assignment of a portion of a debt is valid.</p>

Appeal by the plaintiff, Emma E. Wenz, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn,, first district, in favor of the defendants, rendered on the 3d day of October, 1900.

Appeal by the plaintiff, Henry Fennikoh, from, a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant, rendered on the 2d day of October, 1900, dismissing the plaintiff’s complaint upon the merits.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Oourt in favor of the plaintiff, ■entered in the office of the clerk of the county of Kings on the 4th ■day of June', 1900, upon the verdict of a jury for $3,041.66, and ■also from an order entered in said clerk’s office on the 12th day of June, 1900, denying the defendant’s motion for a new trial made upon the minutes.

-Appeal by the defendant, Israel Potter, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 10th day of September, 1900; enjoining the defendant, pendente lite, from interfering with the plaintiff in her possession of the property-described in the-complaint and from maintaining or continuing summary proceedings to-evict the plaintiff from said premises. ■. .

Appeal by the plaintiffs, Mary Maguire and others, from a judgment of the Supreme Court in favor of the defendant Kate Maguire, entered in the office of the clerk of the county of Kings on the 6th day of June, 1900, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint upon the merits.

Appeal by the defendants, William Thomas Ritch 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 Westchester on the 17th day of April, 1900, upon the verdict of a jury for $20,000, -■and also from an order entered in said clerk’s office on the 20th day -of April, 1900, denying the defendants’ motion for a new trial made upon the minutes.

<p>Action for an accounting and to cha/rge real property with a Ken far money alleged to home been stolen — when barred by the Statute of Limitations.</p> <p>In an action brought by a father against his son for an accounting and to charge ■ certain realty of the defendant with a lien for any money found due thereon, it appeared that between 1881 and 1889 the plaintiff gave the defendant certain moneys to deposit at interest with the latter’s employer; that large sums thereof were withdrawn and that a portion of the moneys withdrawn was used to purchase real estate for the plaintiff. The defendant, to a great extent, managed such real estate transactions, but they were completed only with the consent of the plaintiff. The contention of the plaintiff was that the defendant had stolen moneys from him, and that the realty sought to.be charged with the lien was the fruits thereof. The court found that the defendant had accounted for all the moneys or property intrusted to him by the plaintiff since July 1, 1889.</p> <p>Held, that as to any peculation committed by the defendant prior to that time, the action was barred by the Statute of Limitations, which began to run when the wrong was committed;</p> <p>That if any trust arose out of such peculations, it was a constructive trust ex maleficio or ex delicto;</p> <p>‘That the action being for an accounting and not brought on the ground of fraud, did not fall within the exception contained in subdivision 5 of section .383 of the Code of Civil Procedure.</p>

<p>Security for costs — what delay in applying foi' it does not constitute laches.</p> <p>Where an action to recover damages for personal injuries is begun by the service of the summons, and the complaint is not served until after the plaintiff has: received seven successive extensions of time, aggregating one hundred and fifteen days, an order procured by the defendant, before answering and before the expiration of the twenty' days within which it might answer, requiring the plaintiff to file security for costs, should not be vacated on the ground of laches.</p>

Appeal by Margaret Larkin and others from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 16th day of October, 1900, settling the account of Mary J. Meehan, as administratrix, etc., of Christopher Meehan, •deceased.

Appeal by the relators, George T. Mathews and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 16th day of June, 1900, dismissing a writ of certiorari theretofore issued in the proceeding.

Appeal by the. plaintiff, Gilbert Dechen, an infant, by Katie ■ Dechen, Ms guardian ad litem, from a judgment of the Municipal •Court of the city of Rew York, borough of Richmond, first district, rendered on the 11th day of September, 1900, dismissing the complaint upon the ground that the Municipal Court did not have jurisdiction of the subject-matter of the action.

<p>Contributory negligence as matter of law — crossing a railroad where an approaching train is-seen- 600 feet away.</p> <p>In an action to recover damages for personal injuries, sustained by the plaintiff in a collision with one of the defendant’s trains while he was driving over a highway crossing, it appeared that the accident occurred at one o’clock in the afternoon of a bright, clear day and that at any point on the highway within 150 feet of the crossing the plaintiff could have seen down the track' in the direction i rom which the train came 680 feet or more if he had looked. The plaintiff was familiar with the crossing, and when about 25 or 80 feet from the first .track he stopped his horse, looked and listened,' but did not hear any signal or the sound of the train which he knew to be due about that time; during the time his horse was approaching the track -he did not look again, but as his horse stepped upon the first track he saw the train approaching from behind a toolhouse 600 feet from the crossing; that he then attempted to cross in advance of the train, although the track upon which the train was approaching was 60 feet distant.</p> <p>Sdd, that the only inference from the facts was that the plaintiff either underestimated the speed of the train .or overestimated the speed of his horse; that in any event he knowingly exposed himself to the peril which he encountered, and that a judgment in his favor should he reversed.</p> <p>Woodward, J., dissented.</p>

Appeal by the relator, Michael Seitz,, from an- order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of August, 1900, denying his motion for an alternative writ, of mandamus directed to Henry H. Lyman, as State Commissioner of Excise, requiring him to prepare two orders for the payment to the relator of a rebate on a liquor tax certificate.

Appeal by the People of the State of New York from an order of the Supreme Court, made at the Kings County Special Term and entered in the Office of the clerk of the county of Kings on the 16th. day of November, 1900, adjudging the petitioner, John P. Cleary, to be entitled to an award for land taken in the proceeding, and directing the comptroller of the city of New York to pay such award to the petitioner.

<p>Appeal by James B. Ludlow and another, as only surviving executors of and trustees under the last will and testament of Thomas W. Ludlow, Jr., deceased, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 19th day of April, 1900, granting the motion of The Hew York Central and Hudson River Railroad Company to vacate and set aside an order appointing commissioners of estimate and assessment and all proceedings in the above-entitled matter had subsequent to the making of such order.</p>

<p>Appeal by the defendant, George Ringler &: Company, from a ' judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of July, 1900, upon the verdict of a jury rendered by direction of the court.</p>

<p> Eminent domain—the appeal by the defendant must be from the final order, not from the judgment. </p> <p>The defendants in a condemnation proceeding, instituted under the Condemnation Law (Code Civ. Proc. §§ 3357-3384), cannot appeal from a judgment condemning the property entered in favor of the plaintiff, pursuant to the provisions of section 3369 of the Code of Civil Procedure; they can review such judgment only by appealing from the final order, as provided by section 3375 of the Code of Civil Procedure.</p>

. Appeal by the defendant, Robert Dudley Winthrop, from a judgment of the Supreme Court in favor of the plaintiffs, entered in ■the office of the clerk of the county of Nassau on the 28th day of March, 1900, upon the verdict of a jury, and also from an order ■entered in said clerk’s office on the 30th day of March, 1900, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Abraham Larssen, 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 31st day of January, 1900, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case after a trial at the Kings County Trial Term.</p>

<p>■Husband and wife — action by a wife for a separation on the ground of abandonment — a defense, based on her refusal to cohabit with Tier husband and to cease her intercourse with an alleged pa/ra/mowr —condonation of adultery.</p> <p>A husband, whose wife so conducted herself with a male acquaintance as to arouse his suspicions and excite the comment of the neighbors, brought an action against her for an absolute divorce, but discontinued the suit upon the wife signing a letter in which she denied that anything improper had taken place, and promised that she would cease all intercourse or correspondence with her alleged paramour, and would avoid meeting him. Notwithstanding her promise, the wife refused to cohabit with her husband, and continued to meet her alleged paramour without the sanction of her husband who, upon learning of such meetings, /eft her but was subsequently induced to return by a mutual ' friend. Thereafter the husband discovered that his wife persisted in her secret meetings and finally left her. She thereupon brought an action against him for a separation, on the ground of abandonment, to which .the husband interposed the defense of justification.</p> <p>Held, that it was not necessary for the defendant to establish adultery on the part of the plaintiff subsequent to the reconciliation and the_withdrawal of the action for divorce; .</p> <p>That her conduct subsequent to the condonation, in refusing to cohabit with her husband, and in persisting in disregarding his wishes and her own promises, constituted a sufficient justification for his leaving her and refusing to support her;</p> <p>That the withdrawal of the divorce suit did not operate as a condonation of the offense of adultery, as the wife, at the time of the alleged condonation, denied that she had been guilty of that offense.</p> <p>Hirschberg, J., dissented.</p>

<p>Appeal by William Texter from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 7th day of September, 1900, revoking and canceling five liquor tax certificates issued to him under subdivision 1 of section 11 of the Liquor Tax Law.</p>

Appeal by the plaintiff, Annie Monahan, as administratrix, etc., of James Monahan, deceased, from a judgment of the Supreme Court- in favor of the defendants, entered in the office of the clerk of the county of Kings on the 19th day of May, 1900, upon the dismissal of the complaint, by direction of the court, at the close of the plaintiff’s evidence, after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 24th day of May,…

Appeal by the defendant, Patrick McCarthy, from a judgment of the County Court of Queens county in favor of the plaintiff, rendered on the 25th day of May, 1900, convicting the defendant of the crime of keeping a disorderly house.

<p> Assessment against one “ as executor and trustee ” —it need not specify the amount held as executor and as trustee in each of several trust funds. </p> <p>Where the executor of a will is also the trustee of three separate trusts created by the will and holds several funds, one as executor and one as trustee for each trust, an assessment against him u as executor and trustee ” for an aggregate amount which he admits holding in those capacities, is not illegal because of the failure of the assessors to levy three separate assessments against him as trustee of the trust funds, and a fourth separate assessment against him as executor. '</p>

<p> Negligence,—injury from a wagon striking a stone on a MU, and throwing out the occupant—proof as to care—what part of the road constitutes the highway. </p> <p>In an action to recover damages for personal injuries sustained by the plaintiff in consequence of the dangerous condition of a highway in the defendant town, the evidence tended to show that such condition of the highway had existed for several months and that the highway commissioner was notified thereof, but that no work was done upon the road during the year in which the accident happened; that on the occasion of the accident the plaintiff was riding along the highway with her husband in a platform spring wagon drawn by a gentle horse; that they were driving down a steep hill and that the husband had applied the brake; that the plaintiff was sitting on the seat with him looking ahead when a wheel on the husband’s side of the wagon struck a stone and she was pitched forward; that before she could recover herself, the wagon struck a second stone and she was thrown to the ground and injured.</p> <p>Held, that the inference that the plaintiff was exercising a reasonable degree of care might be drawn from the circumstances, although there was no direct testimony to that effect.</p> <p>The traveled portion of a highway is not confined to the part actually used by vehicles the greater portion of the time, but includes that part which is held open to the public as a highway and which is used in passing other teams.</p>

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of January, 1900, upon the verdict of a jury and also from an order entered in said clerk’s office on the 5th day of February, 1900, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by Euphemia D. Russell and James R. Hogg, as executors, etc., of J ames Russell, deceased, and others from a decree of the Surrogate’s Court of the county of Westchester, entered in said'Surrogate’s Court on the 2d day of October, 1900, settling the accounts of said executors, and also from an order entered in said Surrogate’s Court on the 23d day of January, 1899, directing said accounting.</p>

<p> Negligence — injury from, falling off the uninclosed end of a suspended platform in a boiler room—an employee assumes risks known or obvious to-him. </p> <p>In an action to recover damages for personal injuries it appeared that the defendant maintained in its boiler room a bridge of iron lattice work suspended thirty feet above the floor, and that the platform of the bridge did not extend in one direction as far as the handrail thereof; that on the occasion' of the accident the plaintiff, who was a fireman in the defendant’s employ, went upon the bridge to regulate a valve, and that in so doing he was scalded and the room became darkened from vapor; that he then attempted to crawl on his hands and knees along the platform of the bridge towards the ladder by which he had ascéhded and fell over the end of the platform. It further appeared that the part of the platform from which the plaintiff fell, which was about twelve feet beyond the ladder, was never used by any of the defendant’s employees, and that there was no. occasion to foresee that any one would go there for any purpose; that the plaintiff had been employed in the boiler room for four years, and that the construction of the bridge was perfectly apparent both from the floor of the room and from the platform itself.</p> <p>Held, that the plaintiff assumed risks which were known or which were obvious to persons of ordinary intelligence, and could not recover damages for the injury.</p>

<p>Appeal by the plaintiff, James Mikles, from a judgment of the . Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 5th day of January, 1900, upon the dismissal of the complaint by direction of the court after a trial at the Orange Trial Term, and also from an order entered in said clerk’s office denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Patrick J. Gormley, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendéred on the 5th day of July, 1900.

<p>Appeal by the Board of Education of the City of New York from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of December, 1900, directing said board to pay to the respondents certain moneys, withheld from the award made to property owners with which to pay taxes for the year 1900.</p>

<p>Jurisdiction of the Supreme Court and of the Surrogates Court over an executor's accounting — under what circumstances, when that of the Supreme Court is first invoiced, it will retain the case.</p> <p>The infant children of George Steinway, deceased, whose will directed a part of the income of his estate to be applied to their maintenance, brought an action in the Supreme Court against one von Bernuth, as executor and trustee under the will of George Stein way-, .deceased, the said von Bernuth and others as executors of William Steinway, deceased,, and the residuary legatees of George Steinway, deceased. The complaint therein alleged that eighteen months had elapsed since the death of George Steinway, but that von Bernuth, as his executor, had taken no steps towards an accounting; that he had refused to apply any portion of the income of the estate of George Steinway to the support of the plaintiffs, basing such refusal upon the ground that the executors , of William Steinway (von Bernuth being one of them) had made a claim a.gainst von Bernuth as executor of George Steinway, involving substantially the whole estate, and that it would be unsafe for him to make any further application of the income to the support of the plaintiffs while that claim was pending and undetermined. The complaint further alleged that von Bernuth’s wife was a residuary legatee under the will of William Stein way; that the interest of von Bernuth was antagonistic to the interest of the plaintiffs; that the claim was fraudulent, and that there was danger of a delay in the determination thereof, and that in the meantime the plaintiffs lacked support. The relief asked was a determination that the claim was invalid, an accounting by von Bernuth and such other equitable relief as might be then proper.</p> <p>Held, that as the jurisdiction of the Surrogate’s Court had not been invoked, the Supreme Court might retain and dispose of the matter.</p> <p>Jenks and Sewell, JJ., dissented.</p>

<p> Conversions it does not lie, for the failure of a common carrier to take up a bill of lading’on delivery of the goods to the holder thereof, in favor óf a subsequent transferee of the bill of lading. ■' .1 </p> <p>Where goods, shipped under a bill of lading containing a provision that the bill shall-be surrendered upon the delivery of the'goods2 are delivered by the carrier to the lawful holder of the bill of lading without requiring the surrenderdhereof, the carrier is not-liable, as for the conversion of the goods, to a ' subsequent transferee of the bill of lading who took the same without knowledge that the goods had been delivered".. The functions of the bill ceased upon the delivery of the goods, and it could not thereafter operate To vest the title of the goods in the subsequent transferee^ "</p> <p>The liability, if any, of the- carrier to the subsequent transferee of the bill of lading, for the former’s failure to take up the bill when it delivered the goods, cannot be enforced in "an action based solely upon the theory of a conversion of the goods, : • - ~ "■</p>

Appeal by the defendant, Nicholas B. Platz, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 28th day of February, 1900, upon the decision of the court rendered after a trial' at the Albany Trial Term, the jury having been discharged.

<p>Appeal by the defendants, J. Murray Downs, individually and as referee, 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 Albany on the 4th day of October, 1900, upon the decision of the court rendered after a trial at the Albany Trial Term, the jury having been discharged:</p> <p>The plaintiff seeks to recover the sum of $6,000, now in the custody of the court, under' the following circumstances:</p> <p>Certain premises in the city of Albany were incumbered by a mortgage to secure $20,000. The defendant “ The First National Bank of Albany” held a judgment which was a subsequent lien upon such premises. The American Fur Company acquired the title to- such premises, subject to such liens. On January 4, 1897, the premises were sold on execution issued on the bank’s judgment and bid off by such bank. On January 20, 1897, a judgment foreclosing the said mortgage and ordering a sale of the premises was entered, whereby the defendant Downs was appointed a referee to make the sale. On February 11 j 1897, Downs, as such referee, offered the premises at public sale, and the defendant Gillig bid the sum of $40,000 therefor. They were struck off to him at that figure, and in accordance with certain terms of sale then and there signed, he paid to the referee fifteen per cent of such bid, viz., $6,000, by a check for that amount, drawn on the National Exchange Bank to the order of the referee and certified as good by its cashier. The referee indorsed such check “ for deposit only,” and it was placed to his credit in the First National Bank of Albany. By the terms of sale Gillig was to pay the balance of his bid by February ■fifteenth, and it was therein further provided: “ Sixth. The bid-dings will be kept open after the property is struck down, and in case any purchaser shall fail to comply with any of the above con- ■ ditions of sale, the premises so struck down to him will be-again put up for-sale, under the direction of said referee under these-same terms-•of sale, without application to the court, unless the- plaintiff’s-attorneys shall elect to-make such- application, and such purchaser will beheld liable for any deficiency there may be between -the sum for which, said premises shall'be struck down upon the sale, and that for which they may be purchased on the resale, and also any costs or expenses occurring on such resale.”</p> <p>- Gillig refused to: complete his purchase, and oh May 22, 1.897, an' order of court was made directing Gillig-to complete his purchase,, and in the event that, he failed to do so, directing that a resale be had and that the - $6,000 be retained by • the referee, subject to the further order of the court. A resale was had on June twenty-eighth,, ■ and the-premises were. struck off to one Keeler for the sum of $28,850, who paid! the money and took a conveyance from the referee. The referee applied a sufficient amount thereof to satisfy the mortgage debt and costs, - and reported that he had a balance of $5,997.12 in his hands, as. sur plus moneys-arising on,the sale, -which, was paid to the county treasurer. He also reported that he still held the $6,000, and asked instructions regarding the same. . On July-fourteenth an order; was made confirming his report and directing him to hold such $6,000 until further order.</p> <p>This action was subsequently commenced by the plaintiff, as- ■ receiver of the fur company, to recover such amount, on the-ground that Gillig, -being an officer of the fur company, had unlawfully abstracted it from the funds of that, company. The-. defending bank claims that, being the owner of the equity of redemption in. the mortgaged premises, it is entitled, to such fund.. A judgment- of the Special Term was rendered -in the plaintiff’s; favor; and from such judgment this appeal is brought:</p>

<p>Appeal by the plaintiff, DeWitt 0. Bouton, as executor, etc., of Gershom Hanford, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Tompkins on the 4th day of August, 1900, upon the report of a referee.</p> <p>The action was brought for the foreclosure of a mortgage. The contention.of the respondent, Alice Welch, who was the adopted daughter of the plaintiff’s testator, was that the latter, desiring to make some provision for her, induced her husband to exchange a farm owned by him for a farm owned by the testator; that the ■exchange was effected and the mortgage in suit was then given for an amount which was double the difference in the value of the two farms, the testator orally agreeing that he would either assign the mortgage to the respondent or bequeath it to her at his death.</p>

Appeal by the defendants, Curtis' A. Barnum and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Otsego on the 7th day of November, 1900, substituting Chatfield Leonard, as receiver of the property of Curtis A. Barnum, as plaintiff in the action in the place of Frank L. Smith, deceased, except the parts of said order directing the defendants tó enter final judgment.

<p>Accident insurance — a reasonable time, beyond that specified, given to bring a suit — a limitation of liability to weekly wages held inapplicable — deposit, by agreement with the agent, of the premiums in a bank — effect of a decla/ration of forfeiture on a tender and on the right to withdA'aw the deposit,</p> <p>A certificate of accident insurance provided for an indemnity of twenty-five dollars per week for fifty-two weeks against loss of time resulting from accidental injury; that legal proceedings to enforce payment thereunder should not be brought until the expiration of three months after receipt by the association of satisfactory proofs of loss, and that no suit should be maintained upon the certificate unless brought within one year from the date of the alleged accident.</p> <p>Held, in a case in which the disability continued so long that the proofs of loss could not be furnished and the three months expire before the expiration of the year, that the certificate holder was entitled to a reasonable time after the expiration of three months from the furnishing of the proofs of loss within which to commence an action upon the certificate;</p> <p>That a delay of seventeen days after the expiration of three months from the ' time of furnishing the proofs of loss was not unreasonable.</p> <p>A provision in such a certificate that “ in no casé shall the weekly indemnity ■ exceed the weekly salary of the insured,” when construed in connection with another provision of the policy which provides, “ This certificate does not cover accidents or injuries to persons who have ceased to follow any regular occupation, except such persons as are insured as prefemd,” must be deemed to refer only to those persons insured who are receiving a weekly salary and does not limit a recovery by one who is insured in the preferred class as a retired farmer.</p> <p>In an action brought to recover upon such a certificate it appeared that the plaintiff, before starting on a journey in February, 1897, entered into an arrangement with the defendant’s agent and the cashier of a bank by which the plaintiff agreed to deposit in the bank a certain sum of money for the purpose of paying the dues on the certificate during his absence, and by which the agent agreed to collect the dues at said bank. The agent collected at the bank the dues which became due April 1, 1897, and July 1, 1897, pursuant to the agreement. In August, 1897, he was succeeded by a new agent who, when informed of the arrangement for the payment of the dues, assented thereto. About October 1, 1897, when the next quarterly dues became due, the new agent bought a draft at the bank for remittance to the defendant, and upon his attention being called by the cashier to the fact that he had not included the plaintiff’s dues, he stated that he had forgotten them but would include them later with others. October twenty-fifth the' plaintiff met with an accident, and, notice thereof having been given to the defendant, it asserted that the certificate had been forfeited because of the failure to pay the October dues.</p> <p>Held; that the declaration of forfeiture was wrongful and excused the plaintiff from the necessity of making a formal tender of the quarterly dues to the defendant or leaving the amount of such dues on deposit with the bank;</p> <p>That the fact that the plaintiff, after notice of the alleged forfeiture, withdrew his entire deposit from the bank and waited over a year thereafter before bringing an action upon the certificate, did not deprive him of his right to recover thereon.</p>

<p> Agreement as to wages-r-when a finding that it was “a present or a voluntary gift ” will he set aside. </p> <p>A domestic who for twelve years had worked for a person, since deceased, and hack received therefor wages at the rate of five dollars per month, presented a claim, against his estate based upon an alleged agreement made by him to pay her, at his death, twenty-five dollars per year as additional compensation. Upon, the hearing of the claim the claimant’s husband gave evidence in support of" the alleged agreement, which was corroborated by the evidence of two disinterested witnesses, one of whom testified that he had endeavored to procure-the services of the .claimant and was willing to pay her higher wages than. the decedent, and that in a conversation with the decedent, the latter, as a reason why the claimant should remain in his service, stated that there had been, a bargain between him. and the claimant that at his ’death she should ‘ ‘ have-525 a year for each year that she was there as wages for her work.”</p> <p>Held, that a finding that this arrangement was a promise of “a present or a voluntary gift ” should be set aside.</p>

<p>Corporation tax — the Comptroller, on a revision, cannot increase it for some yea/re because he has reduced it in others — the prepcoration of a street and the placing thereon of an asphalt pamement is not a process of manufacture-^ quaere as to the prepa/i’ation of the asphalt.</p> <p>The fact that the State Comptroller, upon a revision and readjustment of the taxes assessed against a corporation during several years, finds that in some of such years taxes were collected which could not have been lawfully demanded, and reduces the account pro tanto, does not authorize him to increase the amount of the taxes assessed against the corporation during other years.</p> <p>The preparation of a street for the purpose of laying an asphalt pavement thereon, . and the placing of such pavement thereon is not á process of manufacture-within the meaning of the statutes .relating to the exemption of manufacturing corporations from taxation (Laws of 1880, chap. 542, § 3; Laws of 1889, chap. 353; Laws of 1896, chap. 908, § 183).</p> <p>Qwcere, whether the preparation of the asphaltum as a compound used in making the pavement is a process of manufacture within the meaning of those statutes.</p>

Appeal by the defendant, the New York Mutual Savings and Loan Association, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 25th day of October, 1900, as “ ordered and adjudged that Warren Teator, plaintiff, recover of the New York Mutual Savings and Loan Association, defendant, the sum of $342.36, being the sum awarded to said plaintiff by the verdict of the jury, together with…

Appeal by the defendant, The Washington 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 Ulster on the 20th day of September, 1900, upon the decision, of the court rendered after a trial at the Ulster Trial Term before the court without a jury. Upon the 24th of April, 1897, the defendant delivered, to Peter E. Te Bow a policy of life insurance, No. 98,902.

Cebtiobabi issued out of the Supreme Court, and attested on the 28th day of June, 11900, directed to Fred C. Ham, commissioner of public safety of the city of Albany, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings in relation to. the removal of the relator from the office of police surgeon of the city of Albany.

Appeal by the defendant, William I. Gardenier, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 13th day of November, 1900, upon the decision of the court, rendered after a trial at the Albany Special Term, sustaining a demurrer to the second defense- set up in the answer.

<p>Appeal by the defendant, The Masonic Equitable Accident Association of the World, from a judgment of the Supreme Court in favor of the plaintiff, entered in.the office of the clerk of the county of Schoharie on the 29th day of January, 1900, upon the verdict of a jury, and also from an order, bearing date the 18th day of January, 1900, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>Indorsed on the back of the policy there were the following conditions, among others:</p> <p>“Fifth. Written notice shall be given the said Association at Boston, Mass., within ten days of the date of the accident, and injury for which claim to indemnity or benefit is made, with full particulars thereof, including a statement of the time, place and cause of the accident, the nature of the injury and the full name and address of the insured and beneficiary, and unless such notice and statement is received as aforesaid, all claim to indemnity or benefit under this certificate shall be forfeited to the Association. * * *</p> <p>“ Seventh. This certificate will not entitle the certificate holder, or any person in interest, to indemnity for disability of any kind, unless the disability accrues within thirty days from the date of the accident causing such disability, of which accident this Association shall have had notice within the ten days above mentioned of the happening thereof.”</p>

Certiorari issued out of the Supreme Court and attested on the. 1st day of November, 1900, directed to Daniel E. Conway, mayor of the city of Troy, commanding him to certify and return to the office of the clerk of the county of Eensselaer all and singular his-proceedings in relation .to the removal of the relator from the office-of school commissioner of the city of Troy.

<p>Appeal by the plaintiff, John Tolmie, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 13th day of October, 1900, upon the dismissal of the complaint by direction of the court . after a trial at the Saratoga Trial Term.</p>

Appeal by the petitioner, Zalia M. Chadwick, from an order of the County Court of Tioga county, entered in the office of the clerk of the county' of Tioga on the 15th day of ¡November, 1900, denying petitioner’s application for an order directing the board of supervisors of Tioga county to refund certain taxes claimed to have been illegally and improperly assessed or levied, the application having been made under section 16 of chapter 686 of the'Laws of 1892, known as the…

Appeal by the plaintiff, Wilson T. Johnson, from a judgment of the County Court of Albany county in favor of the defendant, entered in the office of the clerk of the county of Albany on the 23d day of June, 1900, affirming upon appeal a judgment rendered by the City Court of Albany.

<p>Will—directions for themaintenanceby a devisee of the testator’s daughters—when a charge on the testator’s farm—when a lien prior to a mortgage given to-obtain money paid by the devisee to certain of the daughters — effect of a pyroffer by the mortgagee in possession of maintenance on the farm.</p> <p>A testator, whose'family at the time of his death consisted of his wife, his son, fpur married daughters and two single-daughters, gave all his real and personal property to his son, and directed him to pay certain legacies to his married daughters. He then made the following provisions for his wife and his two unmarried daughters:</p> <p>“ Thirdly. I will and order that my beloved wife Julia shall have her home knd maintenance and good and proper clothing in sickness and in health, and shall have the use and right to occupy the north room below and the room with the two bedrooms above, and privilege of cellar and thirty dollars yearly as long as she lives.</p> <p>“"Fourthly. I will and order that my son David Jaleel pay to my daughter Mary '• J. two hundred dollars five years after my decease without interest. And to my daughter Emily A. one hundred and fifty dollars five years after my decease without interest. And that my daughters Mary J. and Emily A. shall have their home and maintenance and good clothing in sickness and health here out of my estate as long as they are single and unmarried, and they shall have the same right and privilege of the house to use as was given to their beloved • mother, but if they marry, then they shall have the same given to them as my other daughters had, clothes, two beds, four pillows, bedclothes, one cow and fifty dollars.”</p> <p>The widow died and one of the unmarried daughters married, and thereafter the son executed a mortgage on the farm, subject to the interest of the remaining unmarried daughter. Subsequently the son, having become insolvent, abandoned the farm and informed the unmarried daughter that he was unable to support her on the premises and to carry out the provisions of his father’s will.</p> <p>In an action brought by the unmarried daughter against the son and the mortgagee to have her support declared a lien on the farm and have the farm sold to satisfy such lien, the mortgagee alleged that a portion of the moneys advanced on the mortgage had been used by the son to pay legacies to the testator’s married daughters which were a charge upon the land, and to the extent of the money so used the mortgagee claimed an equitable lien prior to that of the plaintiff. She further alleged that, as mortgagee in possession, she had offered to provide the plaintiff with a home and maintenance and everything required in the will on the said farm, and was still able, ready and willing to do so.</p> <p>Held, that the use of a part of the money advanced on the mortgage by the mortgagor in the payment of the pecuniary legacies did not entitle the mortgagee to invoke the doctrine of equitable subrogation as it did not appear that the mortgagee made the loan to protect any interest which she had in the premises or knew the purpose to which the money loaned by her was to be applied, and for the further reason that the mortgage was by its terms made subordinate to the plaintiff’s lien;</p> <p>That the duty of furnishing a home, maintenance, etc., to the unmarried daughter on the farm, was a personal obligation resting on the testator’s son, and that the plaintiff was not obliged to accept performance of that obligation from the mortgagee in possession.</p>

<p>Appeal by Judson A. Betts, county treasurer of Greene county, from an order of the Supreme Court, made at the Ulster Special 'Term and entered in the office of the clerk of the county of Greene ■on the 16th day of July, 1900, directing that a special town meeting be held in the town of Prattsville, Greene county, N. Y., for the purpose of resubmitting to the electors of said town, to be voted on ■at a special town meeting, the four questions provided by section 16 ■of the Liquor Tax Law, and directing that the county treasurer •cancel of record the certified copy of the statement of result of the vote on said local option questions of the said town of Prattsville, ■dated November 8, 1899, and filed in the office of the county treasurer on the 11th day of November, 1899.</p> <p>At a town meeting of the town of Prattsville, held at the time of the general election on November 7, 1899, the four questions -specified in section 16 of the Liquor Tax Law (Laws of 1896, ■chap 112, amd. by Laws of 1897, chap. 312; Laws of 1898, chap. 167; Laws of 1899, chaps. 398, 434) were submitted to the electors ■of the town. A petition, signed by the electors of the town to the number of ten per centum of votes cast at the next preceding general ■election, requesting such submission, was filed in the office of the clerk of Greene county, but no petition' for such submission was filed in the office of the town clerk of the town of Prattsville, nor ■did the clerk of said town give any notice of the proposed questions and that a vote thereon would1 be taken by ballot at the town meeting, as required by section 34 of the Town Law (Laws of 1890, ■chap. 569). A majority of the votes cast on each of the four questions was in the- negative. The whole number of ballots cast at said ■election was 230, of which 36 were blank on the first question, 98 blank on the second question, 101 blank on the third question, and 54 blank on the fourth question.</p> <p>On May 5, 1900, a petition, signed and acknowledged by at least ten per cent of the electors who voted at the next preceding general election, was filed in the town clerk’s office at Prattsville, requesting the resubmission of the four questions to the electors of the town at a special town meeting thereafter to be held, and thereafter a motion, on notice, was -made at a Special Term of this court for an order directing a special town meeting to be held for the purpose of resubmitting to the electors the .said four questions and for the cancellation of the certified copy of statement of result of the vote of November 8, 1899, filed in the office of the treasurer of Greene county. From the order granting such motion this appeal is taken.</p>

Appeal by the plaintiff, Luzerne A. Wild, as executor of the last will and testament of Allen Wild, deceased, from -a judgment of the Supreme Court in favor of the defendant, entered in the office of' the clerk of the county of Delaware on the 28th day of May, 1900,. 'upon a nonsuit granted by the court after a trial at the Delaware Trial Term, and also from an order entered in said clerk’s office ón. the 7th day of July, 1900, denying the plaintiff’s motion for a new-trial…

<p> Contract for the exclusive sale of paper hangings in a specified district—it is not personal and may he assigned—parol assignment. </p> <p>The Liberty Wall Paper Company made a contract with one Stoner, by which it agreed to sell to Stoner, and Stoner agreed to purchase from it, paper hangings to the amount of between §25,000 and §50,000. The contract provided that Stoner should have the exclusive right to sell paper hangings, manufactured by the Liberty Wall Paper Company, in the States of Iowa and Nebraska, except at points thereafter to be agreed upon.</p> <p>Meld, that the contract was not a personal one in the sense that Stoner was bound to perform it in person, but that if he assigned the contract without the consent of the Liberty Wall Paper Company, and his assignee failed to perform the contract, the Liberty Wall Paper Company might have resort to Stoner;</p> <p>That a parol assignment of the contract (under which the property and the contract itself were delivered to the assignee) was sufficient to transfer the contract.</p> <p>JLellogg, J., dissented.</p>

<p>Appeal by the defendant, Ephraim Hamel, from a judgment of the County Court of Tompkins county in favor of the plaintiffs,, entered in the office of the clerk of the county of Tompkins on the-5th day of October, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of October^. 1900, denying the defendant’s motion for a new trial made upon a case containing exceptions.</p> <p>The action was commenced in a Justice’s Court of the county of Tompkins, where a judgment was rendered in favor of. the plain- . tiffs for $200 damages and costs. The defendant then appealed • to the County Court and demanded a new trial.</p> <p>On the 22d day of May, 1896, plaintiffs owned and maintained a lunch wagon in the city of Ithaca; the defendant also owned a lunch wagon, which was maintained in the city of Ithaca by the plaintiffs as his employees. On that day the defendant offered to sell his lunch wagon to the plaintiffs, stating that his health was getting poor; that he wanted to get out of the business, and that he would not put a wagon in Ithaca or sell one to anybody to run there. The plaintiffs accepted the offer and suggested that a contract be drawn, and the three went to the office of a lawyer where the plaintiffs told the lawyer that they had bought the lunch wagon of the defendant and wanted to get a contract drawn, and the terms of the contract were stated. The plaintiffs claim that they forgot to tell the lawyer that part of the agreement in which the defendant agreed not to put another lunch wagon in Ithaca. After the contract had been drawn it was read over, and the lawyer asked if it was all right, whereupon the plaintiffs said that it was all right, except the clause in regard to defendant’s agreement not to put a lunch wagon in Ithaca, or selling one to anybody to be maintained there. The lawyer stated that he would draw a new contract or interline such a provision in the contract he had drawn. The defendant said that it was not necessary, that he was in a hurry, that the plaintiffs had always done as they had agreed by him, and that he certainly would by them. The lawyer said that it would be better to have the entire agreement in writing, but it was not redrawn or changed. The contract was then executed in duplicate and acknowledged before a notary. The material part of the contract is as follows: “ Party of the first part hereby sells, transfers and delivers to the parties of the second part, one Cornell Cafe, situated on Eddy street in said city, for several weeks last past run'by parties of the second part, together with all of the fixtures and appurtenances thereto, belonging and owned by said party of the first part, for and in consideration of the sum of •One Thousand dollars ($1,000), which consideration of One Thousand dollars is to he paid to the party of the first part by the parties of the second part as follows:</p> <p>“ Fifty dollars ($50) to be paid even date herewith, the receipt •whereof is hereby confessed and acknowledged; fifty dollars ($50) within one week from this date; the balance of said consideration, or the sum of Hine Hundred dollars ($900) to be paid in installments of twenty-five dollars ($25) each, weekly thereafter, the first of said installments to be due and payable on June 5, 1896, with annual interest upon all sums unpaid at the rate of five per cent.”</p> <p>After plaintiffs had continued the business with the two wagons a little over a year, a third wagon was brought to Ithaca and a lunch business was maintained therein. It is claimed by the plaintiffs that this wagon was owned and maintained by the defendant, and this action was brought against him by the plaintiffs for damages by reason of the alleged breach of the agreement hot to put another lunch wagon in Ithaca. The action- was originally brought and tried in a Justice’s Court, and a verdict of $200 found in favor of plaintiffs. An appeal was taken to the County Court of Tompkins ■county for a new trial, and on such new trial a verdict of $200 was again found for the plaintiffs.</p>

<p>Turnpike—ea/re required in its maintenance—an ungua/rded approach to a bridge —proof that no previous accident had occurred—a verdict for $1,400 held not to be excessive — waiver of the prohibition against a physician’s testimony.</p> <p>A turnpike road is a public highway, and the same duty rests upon a turnpike company to keep its roads and bridges reasonably safe for ordinary travel that rests upon municipalities with reference to roads and bridges owned and maintained by them. The absence of a guard or railing where one is needed to make a .highway reasonably safe is a defect.</p> <p>Where the approach to a bridge on a much traveled turnpike consists of a fill between retaining walls, eighty-eight and nine-tenths feet long, twenty-five feet wide at the commencement and eighteen feet wide at the bridge, at which, point it is over ten feet above the adjoining lands, the question whether the failure to maintain guards or railings on the approach is such a defect as will constitute negligence on the part of the turnpike company and. render it liable for personal injuries sustained by a woman while riding up the approach, between nine and ten o’clock on a starlight night, in a wagon drawn by a gentle horse, driven by her son-in-law, who was acquainted with the horse and accustomed to driving, in consequence of the horse shying for some undisclosed reason and plunging over the side of the approach, is a question for the jury as-is also the question of the injured party’s contributory negligence.</p> <p>In an action against the turnpike company to recover damages for such injuries, evidence that no previous accident had occurred on the approach to the bridge is proper for the jury to consider in determining whether it was a dangerous place, and whether the accident was one that could have been reasonably anticipated, but such evidence does not of itself establish a defense to the action.</p> <p>A verdict of §1,400 in favor of the plaintiff is not excessive where the evidence-tends to show that the plaintiff, when the accident happened, was fifty-one years of age, that her weight had decreased from 192 pounds to 128 pounds, that she had suffered since the accident continuous pain and had frequent-dizzy, fainting and sinking spells, during some of which she was unconscious and had had a number of hemorrhages, that she was unable to attend to her domestic duties and had been obliged to abandon her dressmaking business ■from which she had previously earned an average of one dollar a day, and that-such results were the natural consequence of her injuries and that she would not recover from them.</p> <p>The fact that the plaintiff, on her examination on her own behalf, stated that the¡ physician who attended her the day after the accident gave her internal remedies which she used, although she did not attempt to repeat any conversations with such physician or detail what, if anything, was done by him, and on her cross-examination testified as follows: “ Q. What did the doctor do for you-then? A. He examined my back and examined me. He ordered alcohol. Q. What did he give you? A. He gave me some medicine, that is all I can tell you; something in a glass, two or three different kinds,” does not establish a. waiver by the plaintiff of the prohibition contained in section 834 of the Code-of Civil Procedure and entitle the physician to testify on behalf of the defendant as to what he did or learned during the examination.</p> <p>The determination of the question of a waiver of the prohibition contained in section 834 of the Code of Civil Procedure depends very largely upon the extent to which the patient enters into the details of ' the consultations with the-physician.</p>

Appeal by the defendants, William C. Brass 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 Albany on the 4th day of October, 1899, upon the reports of a referee. The action is brought by the plaintiff to foreclose two mortgages given by Anna Stahl and Lewis Stahl, her husband, on premises in Albany, N. Y., known as No. 538 Broadway.

Appeal by the plaintiff, Jane Pilkey, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 28th day of September, 1900, upon the dismissal of the complaint at the close of the plaintiff’s ease by direction of the court after a trial at the Montgomery Trial Term.

Appeal by the defendant, the Keeseville Electric Company, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Essex on the 17th day of January, 1901, granting an injunction pendente Vite. The plaintiff is a municipal corporation and owns and operates a system of water works by which water is supplied to its inhabitants for domestic and fire purposes.

Appeal by the Bank of D. Powers & Sons and by the National Bank of Troy from so much of a decree of the County' Court of Rensselaer county, entered in the office of the clerk- of the county of Rensselaer on the 20th day of July, 1900, upon the decision of the court judicially settling the accounts of the assignee, as disallows the claim of the.said Bank of D. Powers & Sons, and the claim of the National Bank, of Troy, from sharing in the distribution of the general fund in…

. Appeal by the plaintiff, Theodore F. Lozier, from two several judgments of the Supreme Court in favor of the defendant in each of the above-entitled actions, entered in the office of the clerk of the county of Saratoga on the 18tli day of April, 1900, upon the dismissal of the complaint in each action by direction of the court, after a trial at the Saratoga Trial Term, and also from an order in each of the above-entitled actions entered in said clerk’s office granting an…

Appeal by Clay Brown from an order of the Supreme Court^ made at the Erie Special Term and entered in the office of the clerk of the county of Cortland on the 3d day of January, 1900, directing the reference of an application made by Alice A. Brown Haworth for an order modifying a decree of divorce; also from an order made at the Erie Special Term and entered in the aforesaid clerk’s office on the 14th day of December, 1899, nuno fro tuno as of the 20th day of January,T899,…

<p>Appeal by the defendant, the Wayside Knitting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 5th day of October, 1900, upon the verdict of a jury for $5,000, and also-from, an order entered in said clerk’s office on the 5th day of October, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The work which this plaintiff was required to perform by the defendant was to sew up certain seams on shirts and drawers in process of manufacture. She did this by a sewing machine. The place in which she was required to work was a large room, in which' was a long table, and upon which, on either side, were fastened the sewing machines, run by power taken from a line shaft.</p> <p>Several other employees worked at this same table, and each was seated in a chair by the table in front of the machine at which she worked. Each article upon which these' seams were to be sewed was cut in forms ready to be sewed together, and folded up, and about twelve of these were tied into one bundle, each bundle weighing about eight pounds. It was the "duty of the witness Marks, another employee of the defendant, who was then about seventeen-years old, to go and get these bundles and pile them up in some place contiguous and convenient to those working at this table, and each girl was required to get for herself from such pile the material as fast as she needed it to work upon. The plaintiff had worked for the defendant at this work about two years, and Marks had worked at getting and piling up these bundles about six months prior to the accident. Back of the plaintiff’s chair,there was an open space on the floor, in which Marks, after dinner, on January 8, 1899, began to pile up such bundles for those working at this table. He piled them up in rows about six feet long on the floor, and enough rows to cover about six feet measured the other way, thus starting a pile about six feet square. This pile he built up in this way, one row on top of another. The space which he left between the pile and the chair in which the plaintiff sat at her work was large enough for him to walk through. Just how wide it was does not appear, but, as the pile grew in height, Marks placed a chair in such passageway, and, standing on it, reached across the pile in placing the bundles on it. From the chair, as the height increased, he got up on top of the pile, and so continued to take up and place- the bundles until the pile was six or seven feet high. He was about two hours at this work, and during all- that time the plaintiff was at work in her chair and saw just what Harks was doing and the height to which he was extending the pile. Finally, as Harks got down from the pile onto the chair and thence onto the floor, just as he turned to go from the pile it toppled over, some three or four rows of it, on the side towards him and the plaintiff, and some of it striking the plaintiff on the back and head as she sat in her chair, forced her face down upon the machine, and the back of the needle bar struck her three sharp blows in the face before she could stop its running or get away from it. By this injury she claims very serious nervous complications have been caused, which have permanently impaired her health and caused her much damage.</p> <p>She brought this action to recover for the damage so sustained, and at the trial the jury rendered a verdict in her favor for $5,000. From the judgment entered upon such verdict, and the order denying a new trial, this appeal is taken.</p>

' Appeal by the defendant, Daniel Gaffey, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Saratoga on the lLth day of May, 1900, directing him to pay to the referee who made a sale pursuant to a judgment of foreclosure in the action a sum of money bid by him upon such sale.

<p>Municipal corporation-^-its duty to one coming upon a street from 'a road which is ■ ñot a public highway — effect of its changing the grade of the street.</p> <p>Where a road, apparently, though not in fact, a public highway, is commonly used~by the public, and a municipality, in the exercise of its right to improve a public street which intersects such road, lowers the grade of the street, so as to leave a sharp bank on each side where the road crosses it, thus making the approach to the street from the road dangerous, the duty of the municipality to the public requires it to exercise reasonable care to prevent such accidents as may reasonably be anticipated to happen to those traveling upon the road with, due care and in ignorance of the danger.</p> <p>Kellogg, J., dissented..</p>

Appeal by the plaintiff, Martin Wagner, from a judgment of the Supreme Court in favor of the defendant, entered. in the office of the clerk of the county of' Monroe on the 12th day of June, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of June, 1900, denying the plaintiff’s motion for a new trial, made upon the minutes.

Appeal by the plaintiff, Simon D. Paddaek, from a judgment of the County Court of Onondaga county in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 16th day of January, 1900, upon the decision of the court, rendered after a trial before the court without a jury, dismissing the complaint on the merits.

<p>Partnership — an agreement to subscribe towards the expense of drilling a gas wed does not create it — what appearances do not indicate a partnership.</p> <p>The following agreement: “We, the undersigned, agree to pay the sum set opposite our several names to Henry W. Watson, room 100, White Building, whenever called upon, for the purpose of drilling and putting down a gas well on Grand Island on the property of The Morrahuiga Park Land Company, adjoining Sour Spring Grove.. 'If gas is found in paying quantities each subscriber to this fund is to share in the proceeds or profits of the well in the same proportion as he subscribes for the putting down of the same. Not over $50 is to be paid for the privilege of putting down this well to the owners of the land,” does not constitute the subscribers thereto partners as to a third party who, with full knowledge of the situation, entered into a contract with the executive committee appointed by the subscribers to drill the gas well. Circumstances showing that the third party was not misled by any appearances indicating the existence of a copartnership, considered.</p>

Appeal by William G. Ramage from an order of the County Court of Cayuga county, entered in the office of the clerk of the county of Cayuga on the 22d day of December, 1900, revoking ■liquor tax certificate No. 16,158, issued to him.

Appeal by the plaintiff, Cornelia Sample, from a judgment of the Supreme.Court in favor of the defendant, entered in the office of the clerk of the county of Steuben on the 27th day of April, 1900, upon the decision of the court rendered after a trial at the Steuben Special Term overruling the plaintiff’s demurrer to the amended answer to the amended complaint.

Appeal by the defendant, the Fire Association of Philadelphia, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 30th day of November, 1900, upon- the verdict of a jury rendered by direction of the court. There is no appeal from the order denying the motion for a new trial made upon the minutes.

<p>Bill of sale — executed on condition that a certain period is to elapse hefoi'e the title ■ passes — during such period a levy may he made on the goods■ under a judgment against the vendor.</p> <p>Where a firm executes a bill of sale of its stock in trade as security .for a' debt,, upon the understanding that' it shall have until the following Tuesday to pay the debt, and that in the meantime the ownership of the property shall remain in the firm and it shall continue the business as usual, the firm, until the following Tuesday, has an interest in the-property which is subject to seizure and sale upon execution.</p> <p>The secured creditor cannot take forcible possession of the property against the will of the firm before the following Tuesday.</p> <p>Spbing, 3., dissented.</p>

<p>Appeal by the defendants, John Dunfee 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 Cayuga on the 13th day of July, 1900, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 13th day of July, 1900, denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, the Northern Central 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 Oswego on the 16th day of January, 1900, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 12th day of January, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p>

Motion by the plaintiff, Isaac Brazee, for a new trial upon a case. containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon a nonsuit granted by the court at the Steuben Trial Term on the 19th day of April, 1899.

Appeal by the defendant, David Shankland, as president of Typographical Union No. 9, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk -of the county of Erie on the 12th day of January, 1900, upon the verdict of a jury for $650, and also from an order bearing date the 4th day of January, 1900, and entered in said clerk’s office, denying thé defendant’s motion for a new trial made upon a case containing exceptions.

Appeal by the defendant, Alice E. Grant, as executrix, etc., of James Bridger, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Wayne on the 31st day of August, 1900, upon the decision of the court rendered after a trial at the Wayne Special Term.

<p>Municipal corporation — its pipe line and crib in a lake owned by the State are subject to assessment for general tax—they a/re exempted from, the special franchise tax.</p> <p>An engine or pump, pipe line and crib, maintained by a municipal corporation as a part -of its water works in a lake forming a part of the public waters of the State of New York, located in a town outside of the municipality, which-property was taxable as real property under sections 3 and 4 of the Tax Law (Laws of 1896, chap, 908), were not exempted from taxation by chapter 713 of the Laws of 1899, which left sections 3 and 4 of the original act unchanged, as the act of 1899, while defining a special franchise in such wise as to include a pipeline and exempting it from taxation except under that act, specially provides, that “no property of a municipal corporation shall be subject to a special franchise tax.”</p> <p>This construction is confirmed by section 47 of the Tax Law, added to the original Tax Law by the amendatory act, which provides that the payment of the special franchise tax shall not relieve a corporation from the payment of any other-franchise tax.</p>

Appeal by the relator, the City of Rochester, from a final order of the Supreme Court in a special proceeding instituted by a writ of certiorari to review and correct an assessment made by the defendants, entered in the office of the clerk of the county of Monroe on the 20th day of Hovember, 1900, upon the decision of the court rendered after a trial at the Monroe Special Term.

<p>Appeal by the Grade Crossing Commissioners of the city of Buffalo and others, from so much of an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 6th day of June, 1900, as confirms that portion of the report of the commissioners of appraisal appointed in the proceeding which fixed the awards to the Cary Safe Company, George Rumsey Howard, mortgagee, and the American Glucose Company.</p>

<p>Trust—a power of disposition by will given to a cestui que trust does not authorize a transfer during her life — a release executed by remaindermen precludes an action by the life cestui que trust in their behalf— effect of a release by the cestui que trust—when the cestui que trust is estopped and ba/rred by laches to maintain an action against the trustee.</p> <p>The will of a testator gave his residuary estate to the executor in trust, “ to receive~the rents, profits and annual avails thereof and to apply them to the use - of my only daughter, Mrs. Helen Woodbridge, wife of the Rev. John Woodbridge, during her natural life, not, however, to exceed in the aggregate the annual sum of three thousand five hundred dollars; intending that such rents, profits and avails, to and not exceeding the aforesaid annual amounts of three thousand five hundred dollars, shall be given and paid over to my said daughter annually in semi-annual payments as her own separate property, to be expended and used by her according to her own wishes. And, secondly: On the decease of my said daughter the trust fund and property to go and belong to her child or children, if more than one, in equal parts, the same in all respects as if she had been the absolute owner thereof in her own right and had died intestate and unmarried; and in case my said daughter shall die leaving no child or descendant of any child her surviving, then and in that case said trust fund and property to go and belong to my next of kin and heirs at law the same in all respects as if I had died intestate holding and owning the same. • But it is my will and purpose, and I so here declare and direct, that my said daughter, if she so desire, shall he at liberty by a last will and testament duly executed by her, to give and bequeath from said trust fund and property a sum and amount, not exceeding one-half of such trust fund and property, to whomsoever she may choose and as * may choose; and the above provisions of my said will are to be deemed qualified in so far as may be necessary by this right and privilege given and extended to my said daughter.”</p> <p>The testator was survived by his daughter Helen Woodbridge, who, at the time óf his death, had two infant children. The letters testamentary under his will were'issued December 24, 1870, and the executor thereupon entered upon the discharge of his duties as executor and trustee. He made a full and complete inventory of the estate and then, with the oral sanction of Mrs. Helen Wood-bridge, allowed her husband to retain the trust securities and manage the trust estate until June 28, 1872. On the last-mentioned .date the trustee, with the written authority of Mrs. Helen Woodbridge, executed a power of attorney to her husband authorizing him to take possession of the trust property and to use, manage and control the same. Mrs. Woodbridge also executed an instrument reciting that she ratified and approved the said power of attorney and that her husband was also to be deemed her agent and attorney in all matters and things to be done thereunder. The balance in the account of the trustee was thereupon deposited to the individual credit of Mrs. Woodbridge and thereafter the account was kept in her name until December 19, 1874, from which time it was kept in the name of her husband. From the time the power of attorney was executed until September 12, 1889, the business was conducted by the husband of Mrs. Woodbridge with her knowledge and approval.. On that date Mrs. Woodbridge and her two children, who were then of age, executed and delivered to the trustee a release from all liability arising or thereafter to arise out of his executorship and trusteeship. Thereafter Mrs. Woodbridge managed the trust estate exclusively and the trustee took no part therein.</p> <p>June 9, 1894, the trustee and thechildren of Mrs. Woodbridge joined in a petition praying that the trustee’s resignation be accepted and that Mrs. Woodbridge be appointed substituted trustee. The court made an order accepting the resignation and appointed Mrs. Woodbridge substituted trustee. The accounts of the trustee were never judicially settled.</p> <p>Mrs. Woodbridge made no complaint as to the manner in which the trust estate had been administered until in May, 1897, when she began an action as substituted trustee against the original trustee to charge him with a deficit in the trust fund. It appeared that such deficit Was caused by the fact that in 1872 the husband of Mrs. Woodbridge, with her knowledge and acquiescence, used 850,000 of the trust fund for the purchase of a family residence, and by the fact that he had made some unprofitable investments. The children of Mrs. Wood-bridge were not, made parties to the suit, and it did not appear that they had ever taken any steps to revoke or cancel the release executed by them.</p> <p>Held, that the power given to Mrs. Woodbridge to dispose of one-half of the trust property by will related to the remainder only and did not empower her to use or transfer any part thereof during life;</p> <p>That the provisions of the Revised Statutes, that when an absolute power of disposition, not accompanied by any trust, has been given to the owner of a par- . ticular estate for life or for years, such estate shall be changed into a fee, and where a general and beneficial power to devise the inheritance shall be given to a tenant for life or for years, such tenant shall be deemed to possess an absolute power of appointment, do not apply to a beneficiary of rents and profits who is prohibited from alienating his future income;</p> <p>That Mrs. Woodbridge could not maintain the action for the benefit of her children as the release executed by the latter to the defendant was presumptively binding upon them;</p> <p>That, under the circumstances of this case, the court would not in this action undertake to protect the interests' of the contingent remaindermen (other than plaintiff's children), but would leave them to an action for the protection of their own interests;</p> <p>That the release executed by the plaintiff was effectual to bar any right of action on her part for accrued income;</p> <p>That, having induced the defendant to commit the breach of trust, and having acquiesced therein for twenty-five years, Mrs. Woodbridge was precluded by the doctrine of estoppel and by lachea from maintaining the action in order that she might receive her semi-annual income in the future.</p>

Appeal by the defendant, Lyman A. Stevens, from a judgment of the. Supreme Court in favor of the plaintiff and the defendants Julia E.' Stevens and others, entered in the office of the clerk of the county of Onondaga on the 17th day of July, 1900, upon- the decision of the court rendered after a trial at the Onondaga Special Term.

<p>Insurance — awa/t'd set aside because of misrepresentations as to the appi'aiser selected by the insurance companies — effect of his want of authority to represent one of the companies—notice of appraisal to the insured—judicial notice as to a custom of the insured to state the loss to the appraisers.</p> <p>Where property covered by several insurance policies is destroyed by fire and the insurance companies demand an appraisal under a clause of the policy providing that in case of disagreement the amount of loss shall “ be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one,” evidence that the person representing the insurance companies stated to the insured that the appraiser nominated by the insurance companies was not a professional appraiser for insurance companies, and had never appraised a loss for any of the companies interested, and that he was a proper man to act as an appraiser, when in fact such appraiser’s principal occupation for several years had been appraising losses for insurance companies, and he had previously acted for the companies interested in the loss in question, coupled with the fact that the appraiser gave the insured no notice of the time and place of the appraisal, and refused to accept information offered by an employee of the insured as to items of property wholly destroyed or otherwise not visible or open to inspection, and that they awarded the insured $3,031 while a referee found the amount of the loss to be $3,830.28, is sufficient to warrant the setting aside of the award on the ground of fraud.</p> <p>The fact that the person who acted for the insurance companies had no authority " to represent one of them, does not affect the right of the insured to have the award set aside as against such insurance company, as if the latter was not responsible for the fraud it could not hold the insured to a contract obtained by such fraud.</p> <p>Semble, that while insurance appraisers are not obliged to give the claimant any formal notice, or — at least not in all cases — to hear evidence, the insured must, unless he waives his right, either have notice or knowledge of the meeting of the appraisers and an opportunity to draw their attention to the items of his loss and make representations and explanations to them concerning the nature thereof and thus insure a consideration of his entire claim and guard against omission and misconduct.</p> <p>The court will take judicial notice of the fact that it is usual and customary for the insured or his representatives to make statements to the appraisers concerning the loss.</p>

Appeal by the plaintiff, Alice M. Everson, from a judgment of the County Court of Onondaga county in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 31st day of July, 1900, upon the decision of the court affirming, upon appeal, a judgment of the Municipal Court of the city of Syracuse.

<p>Appeal by the plaintiff, Rollin B. Wood, as executor, etc., of Frederick Weitz, deceased, from a judgment of the County Court of Monroe county in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 24th day of May, 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 24th dry of May, 1900, denying the plaintiff’s motion for a new- trial made upon the minutes.</p>

Appeal by Emma E. Cramer, individually and as general guardian of Grace E. Cramer, deceased, from so much of a decree of the Surrogate’s Court of the county of Wayne, entered in said Surrogate’s Court on the 16th day of October, 1900, as directs that the sum of $144.80, being the avails which came from the will of Gennet T. Gurnsey, the great-grandmother of Grace E. Cramer,, be paid to Emma E. Cramer, as genéral guardian of Myrtle Cramer, an infant. ' ,

Appeal by the plaintiff, T. Franklin Crittenden, as trustee in' bankruptcy of the estate of Frederick Porschet and Frank C. Barton, as copartners under the firm name of Porschet & Co., from a judgment of the' Supreme Court in favor of the defendant, entered in the office of the1 clerk of the county of Monroe on the 2d day of August, 1900, upon the decision of the court, rendered after a trial at the Monroe Special Term, dismissing the complaint, upon the merits,

<p> Contract for the ser nice of a canal boat, men and teams—measure of damages which a contractor may recocer where he is notified not to do any more work under it. </p> <p>Where persons having a contract with the State of New York for repairing the • Erie canal, upon receiving notice from the Superintendent of Public Works that work under the contract will be suspended on account of the lack of funds, notify a party with whom they have made a contract for the use of two canal boats and the necessary men and teams for a definite period, that they will not be able to use his boats for the remainder of the contract period, the canal boat owner is entitled to recover, as damages, the contract price, less (1) the deduction expressly provided for in the contract; (2) any expense which would have been incurred in its performance, but which could be reasonably avoided on account of its termination by the contractors, and (3) less such sum as the canal boat owner, the teams and boats earned, or could, by the exercise of reasonable diligence have been made to earn, in other employment during the contract period.</p> <p>In determining the amount that should be deducted from the contract price on account of earnings by the boats from other employment, the gross sum received from such other employment should be taken as the basis; if the canal boat owner incurred the same expense only in such other employment as he would in performing the contract, such gross sum would represent the amount to be deducted; but if he reasonably incurred additional expense, that should first be deducted from such gross sum.</p>

Appeal by the defendant, Josephine Schmid, 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 February, 1901, vacating an order directing the examination of the plaintiff before the trial.

Appeal by the defendant, the Florida East Coast Railway Company, 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 8th day. of January, 1901, as directed a reference to take proof to be used on a motion to set aside the service of the summons and complaint and to dismiss the action.

Appeal by the defendant, 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 20th day of February, 1901, denying the defendant’s motion to open a default and vacate the judgment entered in the action, and for leave to serve, an answer.

Appeal by the plaintiff, Alfred .B. Marx, from an order of'the Supreme Court, made at the Xew York Special Term and entered .in the office of the clerk of the county of New York on the 5th day of February, 1901, vacating a levy made under a warrant of attachment.

Appeal by the defendants, William C. Tompkins 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 4th day of February, 1901, vacating and setting aside a final order confirming the awards of commissioners in condemnation proceedings.

<p>Life insurance policy — assigned to secure a debt and subsequently to secure a second debt of the owner, each creditor thereafter paying a proportionate pourt of the premiums—proper division of the proceeds of the policy.</p> <p>July 18, 1873, the owner of a policy of life insurance assigned the same to one Shaw as collateral security for the payment of a §600 note. Shaw paid the full premiums during the years 1873 and 1874. In November, 1874, the owner of the policy assigned it to one Cornell to the extent of $1,300, and since that time, until the policy matured in 1899, Shaw paid one-third of the premiums and Cornell, or his estate, paid two-thirds thereof. The premiums paid by Shaw, together with his loan and the interest thereon, exceeded the amount which became payable upon the death of the party insured.</p> <p>Held, that as it was evident from the correspondence of the parties that the policy was kept in force for their mutual benefit and that it was not contemplated that Cornell’s payments should he used to keep alive Shaw’s security, the-proper method of dividing the proceeds of the policy was to give back to each of the parties, the premiums which each had paid, with interest, and then to-apply the balance upon the debt due to Shaw.</p>

<p>Jury'trial — a demand therefor at Special Term" before the production of any evidence” is in time — noticing the case for trial at Special Term is not,a waiver — action in equity does not lie to discover evidence.</p> <p>Where the complaint, in an action moved by the plaintiff for trial at a Special Term, contains a demand for equitable relief in addition to a money judgment, and it appears that, under the allegations of such complaint, no equitable relief can be granted, the defendant is entitled to a jury trial, A demand by the defendant for a jury trial, made “before the production of any evidence ■upon the trial’.’ at the Special Term, is made in time to save the defendant's rights within section 1009 of the Code of Civil Procedure.</p> <p>The defendant, by noticing the case for trial at the Special Term, does not waive its right to a jury trial.</p> <p>A suit in equity cannot be maintained for the purpose of obtaining a discovery . of books and papers.</p>

Cross-appeals by the plaintiff, Alice Duffy, as administratrix, etc.,' of Nicholas Duffy, deceased, and by -the defendant, the Consolidated Gas Company of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the cleik of the county of New York on the ¿1st. day of January, 1901, denying a motion to vacate an order for the examination before trial of the defendant and its officers,,and limiting the scope of the…

Appeal by the defendants, A. Hamilton Higgins, executor, and Mary A. Lynch, executrix of J ohn W. Healy, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the offibe of the clerk of the county' of New York on the 17th day of January, 1901, upon the decision of the court rendered after a trial at the New York Special Term overruling a demurrer to the complaint, and also from an order entered in said clerk’s office on the 17th…

Appeal by William 0. Wotton, as executor, etc., of Phebe E. • Bonnefoux, deceased, from a decree of the Surrogate’s Court of the county of Eew York, entered in said Surrogate’s Court on the 4th day of May, 1900, settling his accounts as such executor and overruling exceptions filed by him to the report of the referee and denying his motion for a reargument of the exceptions.

Appeal by the plaintiffs, James F. Sutton and another, partners under the firm name of American Art Association, 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 3d day of December, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of December, 1900, ■denying the plaintiffs’ motion for a new trial made upon the minutes.

<p>Taxpayer — right of, to añ inspection of the tax rolls in New York city — how fa/r limited.</p> <p>Section 1545 of the Greater New York charter (Laws of 1897, chap. 378), providing that all books of any department, except the police and law departments, shall at all times be open to the inspection of any taxpayer, subject to any reasonable rules and regulations in regard to the time and manner of such inspection as such department may make in regard to the same in order to secure'the safety of such books and the proper use of them by the department, and section 892 of such charter, providing that the tax rolls shall be open for examination and correction during a certain period, so that persons assessed may have an opportunity to examine them, do not confer upon a taxpayer an unlimited and general power to inspect the tax rolls, and the court may, under the authority of section 1545 of the charter, make an order requiring an attor-' ney, who desires to inspect the tax rolls on behalf of several persons assessed for personal property only, to furnish to the commissioners the names of the persons represented by him, and providing that he shall have an opportunity to inspect the entries indicated by the list of names so furnished, under the personal supervision of the commissioners or that of such officer, clerk or employee as they may designate for that purpose.</p>

Appeal, by the defendant, Arend H. Von Seggern, 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 Hay, 1899, upon the decision of the court rendered after a trial at the New York Trial Term before the court without a jury.

Appeal by the Standard Gas Light Company 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 6th day of May, 1899, confirming the report of the commissioners of appraisal appointed in the proceeding.